Thursday, September 28, 2023

DOJ Won’t Talk About FBI’s Trump Investigation Because They Can’t

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If you were hoping for more information on the recent FBI search for former President Donald Trump’s Florida residence, Attorney General Merrick Garland just delivered — kinda.

On Thursday, Garland announced that the Justice Department has asked a federal magistrate to disclose certain details related to Monday’s Mar-a-Lago search, including the actual search warrant issued against Trump, the “redacted title deed stating of objects seized under the search’ and two documents identified only as ‘Appendices A and B’.

The results of this announcement are that the public will soon learn more about this search, but may not learn more than Trump — who has a copy of the search warrant — already knows. Garland emphasized that the DOJ will not provide additional information about the search, or any other ongoing investigation into Trump, saying, “Federal law, lengthy department rules and our ethical obligations prevent me from providing further details.”

These developments come after Republicans spent much of the week attacking the DOJ, urging it to comment on the ongoing investigation. As Senate Leader Mitch McConnell (R-KY) in a angry statement implying that the Department of Justice is inappropriately hiding important details about this investigation, “the country deserves a thorough and immediate explanation of what led to” the search, McConnell demanded, adding that Garland “should have provided answers already” and “must do” immediately.”

But McConnell, who ever served as Deputy Assistant Attorney General within the Justice Department almost certainly knows better. The Justice Department has an explicit policy and very strict standards that prevent it from speaking publicly about ongoing investigations, and this policy is supported by external rules that bind the attorneys of the Department. All these restrictions exist for very good reasons. Not only do they protect the Department of Justice’s own investigations, they also protect potential suspects from minor government charges before they are charged with a crime.

But these restrictions on disclosure could also serve another, more nefarious goal — at least in the short term. Lawmakers who want to support Trump or the GOP more broadly can use the DOJ’s silence to trick the public into thinking the Justice Department’s silence is somehow nefarious.

Here’s the reality.

Multiple rules and policies prevent the Justice Department from speaking about an ongoing criminal investigation

For starters, let’s take a look at the Justice HandbookDOJ’s internal document that describes in excruciating detail the various rules and procedures that DOJ employees must comply with.

That manual explicitly warns DOJ personnel not to speak up about pending criminal investigations — with the media or otherwise.

“DOJ staff will not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before the charges are made public,” the manual states in quite categorical terms. The manual allows for exceptions “when the community needs reassurance that the appropriate law enforcement agency is investigating a case, or when the disclosure of information is necessary to protect public safety.” But none of these exceptions should apply to the Trump investigation — among other things, the “community” doesn’t need reassurance that Trump is under investigation, because the FBI’s search of his residence was widely reported and confirmed by Trump himself.

The Justice Handbook is admittedly an internal policy document that sets out the restrictions that the Ministry of Justice imposes on itself and its own employees. But there are also external restrictions that DOJ attorneys must comply with, regardless of their employer’s policies. One of these is Rule 6 of the Federal Rules of Criminal Procedurestipulating that state attorneys “must not disclose a case in front of the grand jury.”

This matters because the New York Times reported in May that “federal prosecutors a grand jury investigation started to investigate whether classified White House documents that ended up in former President Donald J. Trump’s Florida home were mishandled.” The FBI’s search for Trump’s residence is reportedly related to that grand jury investigation, and if so, Rule 6 therefore limits the Justice Department’s ability to talk about it.

In all fairness, rule 6 is not so broad that it prohibits the DOJ from literally revealing any information related to this query. As Andrew Weissmann, a longtime Justice Department veteran, explained on Twitter, Rule 6 shouldn’t. prevent the department from disclosing the actual search warrant performed this week, or “any part of the supporting affidavit that is not” [grand jury] information.” (To obtain a warrant, a federal agent must typically: submit an affidavit explaining where they plan to search, what they hope to find, and the basis for believing this search will reveal evidence of a federal crime.)

At the moment, however, there is another restriction that prevents disclosure of the warrant and the accompanying affidavit. These documents are “under seal,” meaning a federal court order prevents them from being made public.

That is likely to change soon, as the Justice Department has now asked the court to release at least some of this information. Multiple media and advocacy groups also have: requested the court to disclose the affidavitthough it’s less clear whether that will happen.

It should be noted that there is one person who can provide additional information about what happened during the FBI’s search: Donald Trump himself. When federal agents execute a search warrant, they usually provide a copy of that warrant (but not the supporting affidavit) to the person being searched. Trump’s lawyer Christina Bobb reportedly received a copy on behalf of Trumpthat Garland confirmed on Thursday.

This warrant will reveal some information about the search, including the… specific criminal laws allegedly violated. Trump is free to reveal his copy of the warrant at all times.

Why the Justice Department isn’t talking about ongoing investigations

Just in case there is any doubt, the Justice Department has very good reasons to keep quiet about ongoing criminal investigations.

One reason is pretty obvious. If prosecutors and law enforcement officers speak openly about a criminal investigation, they could reveal information to a suspect that could undermine the investigation itself. Trump could potentially destroy evidence if he knows the DOJ is looking for it, or he could try to intimidate a witness if he knows that witness is one of DOJ’s sources.

Although the Supreme Court has said that “the courts of this country recognize a general right to access and copy public records and documents, including court records and documentsLower courts have ruled that this right can be circumvented by the government’s need to keep sensitive information about pending investigations secret. As the U.S. Court of Appeals for the 11th Circuit, which oversees federal affairs in Florida, said in one case, documents can be kept secret when there is a “significant likelihood that the ongoing government investigation seriously compromised when the sealed documents were released.”

(That doesn’t necessarily mean the full affidavit should be kept secret in Trump’s case, but it does mean it will likely remain under seal if it could jeopardize the DOJ’s investigation into Trump.)

There’s another reason the Justice Department rarely talks about ongoing investigations: This is unfair to criminal suspects, including Trump.

If Trump is ultimately charged with an alleged violation of federal criminal law, he will have a right to stand trial and a chance to prove that he is, in fact, innocent. Assuming he doesn’t accept a plea deal, a jury will weigh the evidence and make a verdict of “guilty” or “not guilty.” Technically, a “not guilty” verdict wouldn’t be a statement that Trump is actually innocent — it just means the prosecution hasn’t proven his case beyond a reasonable doubt — but it would go a long way toward clearing the cloud. of suspicion that hangs over anyone accused of a crime.

But when the Justice Department openly talks about a criminal investigation before someone is actually arrested, they put that cloud over a criminal suspect’s head without giving that suspect a forum to justify his reputation. As former Deputy Attorney Generals Jamie Gorelick and Larry Thompson explained in a 2016 Washington Post op-ed, the Justice Department’s “longstanding and well-established traditions of limiting the disclosure of ongoing investigations” that could affect elections, that prosecutors “create unfair innuendo to which an accused party cannot respond properly.”

So we can expect that the Justice Department will be very quiet about the investigation into Donald Trump from now on, unless that investigation leads to arrests. This silence is not an attempt to counteract. It is consistent with long-standing DOJ policy that protects both the Department and anyone accused of a federal crime.


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