Multiple folks are making the observation that given the search warrant issued on Donald Trump's Mar-a-Lago resort property and hauling off boxes of classified documents that Trump illegally kept, Attorney General Merrick Garland has no choice but to indict Trump.
Around 7 p.m. Monday, the nation’s already fragile body politic was shocked to learn that a team of FBI agents had descended on Mar-a-Lago, the faded Palm Beach mansion where a once-and-wannabe-future president resides in exile. The raid on Trump’s primary residence was confirmed by the short-fingered vulgarian himself in a lengthy online diatribe, in which POTUS revealed that the feds even cracked open his personal safe.
I’m writing this in the pre-dawn gloaming less than 12 hours later, and the list of what we don’t know about the FBI’s action is a lot longer than what we do know. Most importantly, it’s unclear — given the long potential list of high crimes and misdemeanors that could be tied to the ringleader of the Jan. 6 insurrection — what exactly the feds were looking for inside the Trump castle.
Early reports centered on those 15 boxes of documents, including some highly classified papers, that Trump spirited out of the White House before President Biden moved in, and the possible implications for national security. That’s a potentially serious crime that could, according to the statute, bar Trump from running again for president in 2024.
But whatever the goal of the FBI raid, one thing was clear: American politics will never be quite the same. In our long-running debate over whether presidents — even undeniably rotten ones like Nixon or Trump — are above the law, Attorney General Merrick Garland and his Justice Department have just crossed a Rubicon, and there is no turning back. Either Donald Trump will be brought to justice, or the American Experiment will implode.
Under Justice Department rules, federal prosecutors are not allowed to reveal the details of investigations outside of indictments and court filings. This is to protect the subjects of probes. If an investigation ends up with no prosecution, the person or entity investigated ought not be blemished. This rule has occasionally been broken, most famously when FBI Director Jim Comey disclosed that the bureau was investigating Hillary Clinton for her use of a private server for her emails when she was secretary of state. And I’ve argued that Garland should have set this rule aside and told the public what his department was doing regarding possible investigations of Trump and his crew’s efforts to overturn the 2020 election. But it’s generally a sound rule, and so far the Justice Department and the FBI appear to be adhering to it by not commenting on the Mar-a-Lago raid.
We probably won’t see a press conference from Garland, Wray, or anyone else that details the reasons for the raid—though in this highly unusual instance, too, one could contend that an exception is warranted. But let’s assume Garland and the others remain tight-lipped. That means the only way the Justice Department will be able to justify the search will be to issue an indictment. An indictment would reveal the crime being investigated and why the bureau concluded an uninvited trip to Trump’s resort was necessary. Whatever details are contained in such an indictment would likely not be sufficient to convince the Trump fanatics, but they could convince reasonable-minded Americans that the Justice Department and the FBI acted appropriately and legally.
We have all heard countless times that Garland is an institutionalist who cares deeply about depoliticizing the Justice Department and its reputation. Certainly, Garland, widely criticized by progressives for not vigorously investigating Trump, cares about his own rep, too. He and the department are now highly incentivized to justify the FBI raid to preserve the image of the department and the bureau—as well as his own. The stakes are high, and Garland has crossed a line. For him and the department to prove this was not an obscene abuse of power, the investigation must reach the point where indictments are released and information is presented to the public. If the probe fails to hit that stage, this raid will indeed create suspicion (for those not in the Trump cult) and tarnish the department. To prevent a massive blow to the DOJ, the department has to pursue this matter vigorously and eventually unveil a strong case. Garland will have to put the department’s cards on the table. There can be no bluffing here.
As of now, it is easy to speculate about the investigation. The boxes of documents Trump improperly took from the White House—which contained highly classified materials—had been returned. So a good guess is that this probe is focused on how that material was handled. Were all the records sent back? Were any documents destroyed, copied, or shared with another party? Does the possible crime involve someone other than Trump? (We do know that foreign intelligence services, including the Chinese intelligence service, have targeted Mar-a-Lago.)
The mystery might remain for a while, absent an official statement or leaks from the Justice Department and the FBI. Meanwhile, the political battle detonated by the raid will not fade. This move has increased the already excessive and unfounded paranoia on the Trump right and has placed the Justice Department in a tight spot. The only way out for Garland and the department is to show it had no choice but to send its agents to search the home of a former president and blow his safe. For that to happen, someone will likely have to be indicted.
The significant fact is that the Department of Justice chose to utilize a search warrant to obtain the evidence rather than a subpoena. This suggests that they did not believe that the evidence in question would be produced by Trump pursuant to a subpoena, and they had to utilize the drastic remedy of a search warrant against a former President.
To me this decisive action by Attorney General Garland means that his mindset has shifted from whether to seriously investigate Trump, to how to investigate Trump, to a new focus where Donald Trump is now the target of the Department of Justice. Every person who is a target is not indicted, but being a target is a legally dangerous place to be.
The firestorm created by the execution of the search warrant was predictable. In the wake of the news reports, Donald Trump lashed out and suggested that he is the victim of a political persecution. Politicians like Ronald DeSantis, Minority Speaker Kevin McCarthy and Republican National Committee Chair Ronna Romney McDaniel are arguing that the Department of Justice is weaponizing its investigations. Some right-wing extremist groups have already proclaimed that they are getting ready to go to “war.” In my view, these false and bombastic counterattacks against Merrick Garland will only make him more, not less determined. Once somebody jumps out of an airplane, there is no turning back.
Theft of government records is the least of Trump’s legal worries, however. Attorney General Merrick Garland appears to be finally bringing the full weight of federal law enforcement to bear on the former president. Depending on how aggressively Garland pursues Trump for the attempted coup that he and his co-conspirators tried to engineer after he lost the 2020 presidential election, the list of criminal charges could include seditious conspiracy, conspiracy to defraud the US and obstruction of official proceedings.
Garland’s choices in the months ahead will have momentous consequences. His correct course of action would be to demonstrate that no president is above the law and indict Trump. As the Jan. 6 committee hearings have already demonstrated, Trump and his team were awash in crimes — including creating slates of false electors to be used in an attempt to overturn the 2020 presidential vote and pressuring former Vice President Mike Pence to withhold certification of the 2020 election. The Justice Department has convened a grand jury to investigate both of those efforts.
Attorney General Merrick Garland has been accused of moving too slowly to indict Trump. There is considerable merit to the accusation. Garland’s televised response to the question of why the Justice Department was moving at glacial speed (actually, a glacier can move more quickly) was that ultimately no one would be treated as above the law. “Ultimately” can be a very long time, however. It is indeed puzzling why Garland has yet to act after nineteen months of having his Justice Department investigate what happened on that January day.
Garland’s exceedingly deliberate approach appears to mirror that of the administration as a whole. After all, the Biden team was slow to plan for the military’s departure from Afghanistan, resulting in a chaotic debacle. It was slow to arm Ukraine with HIMARS rockets and other high technology systems, with the result that Kyiv lost more territory to Russia than might otherwise have been the case. It was slow to recognize that its “Build Back Better” domestic plan had absolutely no prospect of ever getting through the Senate. The cost of the far more realistic plan that actually did pass into law involved just over 20 percent that of its original version.
Yet it is critical that Garland accelerate his investigation and indict Trump. The former president is dropping increasingly heavy hints that he intends to run for his former office in 2024. Indeed, in the aftermath of the FBI raid on his home, which Trump claimed was “under siege, raided and occupied by a large group of FBI agents,” while calling himself “president,” he went on to assert that the raid was “an attack by Radical Left Democrats who desperately don’t want me to run in 2024, especially based on recent polls.” He is, in effect, positioning himself as a martyr in the event that he is indicted.
Trump is expected formally to announce in September that he is once again running for the presidency. Once having made his announcement, his response to an indictment would be an even shriller version of his accusation that the FBI raid was nothing more than political persecution.
On the other hand, his bleating would be far less credible if he were indicted before he announced that he is running again. To all but his most ardent admirers—that is, those who throw money at his offers of golf balls, whiskey glasses, photos, and free trips—his announcement that he was a candidate for president would appear to be little more than just another attempt to discredit the indictment. Moreover, an early indictment would certainly embolden his Republican rivals—and there are many—to challenge him for the nomination.
An early indictment may not on its own be enough to derail Trump’s efforts once more to seize the helm of this great land. But it would put Trump on the political defensive and hearten those genuine Republicans who wish to see him gone. Merrick Garland should not wait for Trump to announce another run for the White House. He should indict him as soon as possible and no later than Labor Day.