Dan Alonzo emphasized to me the phrase “burden of transparency,” as if such a burden existed, because who isn’t making up new burdens these days? But the battle being fought yesterday was who had the “duty” to come forward with the warrant executed* at MAL. While Trump claimed to have the “warrant” that put his “beautiful home” under “siege,” he demanded that Attorney General Merrick Garland release the warrant and explain himself.
Of course, if there was anything in the warrant that Trump could use, no matter how hard the spin required, for his benefit, he would have plastered that sucker everywhere. Trump is not shy about anything that benefits him or any lie needed to justify it. But here he didn’t, which suggests that whatever he had either couldn’t be used in any way to help him or was pretty darn bad for him.
Or, he had the warrant, a one page order citing the statute(s) of the offense, the items to be searched and seized, the location and times and the signature of the authorizing magistrate, none of which was very interesting, and what he really wanted was to put the government on the defensive to reveal the information that might become available to Trump’s lawyers should there be a prosecution and the warrant application, the affidavit(s) that provide the basis for the probable cause determination by the magistrate, during discovery.
For the most part, Trumpkins joined in his hallelujah chorus, because what else could they do, not support Feckless Leader? It’s not as if they knew any better, and may well have misunderstood Trump’s possession of a “warrant” to mean that he had the full application with all the substantive background that the government was now “concealing” from the public. A bold move if it works. But I digest.
But what is surprising is that people who should know better, more particularly the ubiquitous “former federal prosecutor” so beloved by MSNBC, would take the anti-Trump position of demanding that the government, that Garland, go public now because “the public deserves it.”
Some lawyers have also suggested to me in recent days that the public will get greater insight into the department’s work investigating Mr. Trump if (or perhaps when) prosecutors start filing charges that more directly implicate him. But it is possible that in some areas, the federal government will never charge anyone, perhaps because it considers the matter closed or because it opted to cede the investigation to a local prosecutor. If that is what happened, the public deserves to know in order to assess both the performance of the Justice Department and the extent to which federal law enforcement officials have reviewed Mr. Trump’s conduct.
There is a lengthy list of reasons why the government keeps its information close to the vest, not the least of which is to prevent the defense from having more time to conduct its own investigation and prepare its defense. But none of those reasons involve an assessment of what “the public deserves to know,” or how “deserves” has anything to do with it.
Furthermore, the department’s fully ceding ground here could create a void easily filled with inaccurate information and politically motivated speculation. About the Mueller investigation and impeachment proceedings, Mr. Trump made deeply misleading public comments on social media, in public appearances and in interviews, and allies and surrogates echoed his dubious claims and cast him as a political martyr suffering at the hands of crazed opponents. The claims were often tenuous or transparently false, but they were effective in persuading a significant bloc of Americans to discount the findings of the investigations.
It seems too obvious to require stating, but I’ll do so anyway: Those inclined to believe Trump are not going to believe what the government has to say. And, indeed, former federal prosecutor Ankush Khardori realizes this and explains why the government should go public anyway.
But Mr. Garland’s proper audience is not Mr. Trump or the Republicans on Capitol Hill but the American people, particularly those who remain legitimately concerned about Mr. Trump’s conduct. If Mr. Garland speaks out, he might be able, first, to provide the public with long overdue insight into the topical scope and nature of the department’s work as it relates to Mr. Trump and his administration (not simply to inform the public that his conduct may be under investigation in some vague sense) and, second, to allow the public to gauge whether the current administration is fulfilling its duty to ensure that serious misconduct at any level is investigated thoroughly and fairly.
Yes, Khardori is arrogant enough to lay claim to the “American people” for his tribe, more to the point, his argument is that Trump should be tried on MSNBC’s Court of Public Opinion rather than in a court of law, should that be where this ends up. This is Trump’s game, as the trial will be simulcast on Newsmax and their respective juries will only hear half the “argument,” either by prosecutor Maddow or defense lawyer Hannity. Yes, they’ll both have teams, but let’s not get bogged down here.
Kahrdori has a point, that by remaining silent, official and appropriate, Garland is ceding the loud ground to Trump and his minions, who will seize every advantage possible without an iota of shame. And there is no doubt the American public, on either end, not only wants to know everything, but expect immediate gratification from the government because they have an 8-second attention span, and the world moves far too fast these days to await the outcome of a real legal proceeding.
But does the public “deserve” it?
Democracy is the theory that the common people know what they want, and deserve to get it good and hard.
–H. L. Mencken
*There was also some debate over whether this was a “raid” or the execution of a search warrant, because “raid” conveyed to some a nefavrious implication that it was FBI run amok rather than acting under court order. I am of the view this is a silly semantic argument, and calling it a raid is accurate and it’s purpose is to execute a search warrant.
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