Merrick Garland’s thick black pen got quite a workout. The attorney general may have used more than one Sharpie to obliterate the face of a document he used for the pre-dawn raid of former President Donald Trump’s home. He literally shed more darkness than light on the matter.
Much of what Garland grudgingly released to the public on Friday was a heavily redacted copy of the search warrant affidavit. It revealed precious little about why he chose to launch his unprecedented intrusion. The AG clearly prefers to bludgeon his boss’s political adversary with the cudgel of pernicious leaks to the media rather than being transparent about his dubious legal maneuvers.
Garland earlier claimed that he only speaks through his court filings. Then he muzzled with ink the most important filing of all. He argued for secrecy while whispering into the ears of liberal media outlets that promptly trashed Trump with ludicrous allegations of espionage and treason.
If national security was truly in jeopardy, why did the AG dither for weeks before sending a phalanx of FBI agents to Mar-a-Lago to remedy something so urgent? Indeed, if bureau officials were aware of errant documents in early June or even back in February, why wait for months to retrieve them? If there are answers to those vexing questions in the affidavit, you won’t find them amid pages brimming with black lines.
Nor will you find any reference to how Trump and his legal team cooperated in returning previously requested documents to the National Archives. That kind of exculpatory information might have discouraged the magistrate from signing off on the warrant. Was he deceived by omission, as the FBI has done in the past when obtaining lawless warrants? Did the FBI misrepresent the government’s discussions with Trump’s lawyers? We don’t know because so much is wiped out in black.
The first eight pages are a rote recitation of background information and quotations from statutes that Garland cited to the magistrate to gain his consent for the raid. But the core of the affidavit that contains the attorney general’s probable cause arguments and justification for the raid—pages 9 through 29—are nearly all redacted. The pagination is there, but that’s about it. Then the affidavit ends abruptly with a two-sentence conclusion that reveals nothing meaningful.
We already knew this sordid affair was a dispute over the custody of documents. If Trump declassified them as he insists, then the statute involving the retention of “defense information” has no relevance. The other two laws cited by Garland involve improper possession of government records. But, pursuant to the Presidential Records Act of 1978, they don’t apply. That Act grants former presidents a right of access to presidential papers, as well as possession. The Act is a specific statute that takes precedence over general statues, namely those cited by the attorney general.
There is nothing readable in the affidavit that alleges Trump harbored any criminal intent to break the law. The absence of such a claim is conspicuous inasmuch as all three statutes upon which Garland relies demand proof that an accused person act “willfully” or “knowingly” or “deliberately.”
Even if Trump somehow violated the Presidential Records Act, the proper legal cure is a civil enforcement proceeding. The Attorney General could have filed a motion in court to compel the return of the materials sought. An impartial judge would have resolved the dispute by evaluating competing interests consistent with the law.
Instead, Garland overreached and pursued a criminal course against Trump that smacks of thuggish authoritarianism. He employed a general warrant which is strictly forbidden by our Constitution’s Fourth Amendment that requires a description of specific or particular places to be searched and things to be seized. Garland’s warrant did not. This was the definition of an unreasonable search and seizure as FBI agents spent ten hours rummaging through offices and buildings at Mar-a-Lago. They grabbed just about anything in sight.
This appears to have been an investigation in search of a crime where government agents exploited a disagreement over records as a pretext for something else—snooping for a document that might tie Trump to some other imagined offense. Friday’s release of the heavily redacted affidavit did nothing to dispel this very real possibility.
In a case that yearns for transparency, the attorney general chose concealment. But don’t expect Garland’s assault on justice to end here. More leaks from his politicized department will take venomous aim at President Joe Biden’s nemesis as the current administration lays waste to the rule of law.