The American People Deserve to Know What the Justice Department Is Up To
In the days since the F.B.I. searched Donald Trump’s Mar-a-Lago residence, this country has been consumed by a predictable form of asymmetric political and media warfare. The former president and his conservative supporters have loudly condemned the tactics and supposed political bias of prosecutors, while the investigators have remained silent.
Of course, Attorney General Merrick Garland and the Justice Department should have a strong interest in preventing the investigation from looking as though it was driven by a partisan political motive. But at the moment, they are doing little, if anything, to counter the overwhelming condemnation from the right or, more important, to address the understandable questions that people throughout the country have about what happened at Mar-a-Lago.
The American people deserve answers, and the Justice Department would be wise to give them some details, not only about the possible mishandling of records, which appears to have prompted the Mar-a-Lago search, but also about its investigation into the efforts to overturn the 2020 election. The lack of authoritative information has created public confusion and uncertainty about a law enforcement matter of the utmost seriousness — one that involves the potential criminal misconduct of a man who is not just a former president but also a possible presidential candidate in 2024.
People often say that prosecutors cannot comment on ongoing criminal investigations, but that is not entirely true. According to Justice Department guidelines, prosecutors “generally will not confirm the existence of or otherwise comment about ongoing investigations,” but there are exceptions to this rule when “the community needs to be reassured that the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety,” such as during a possible terrorist attack. There are other examples as well — such as when Attorney General Eric Holder notified the public that the department was investigating unlawful treatment of military detainees.
The Justice Department communicates with the public in other ways, too. After charges are filed, it sends out news releases and conducts news conferences. And even before a case is charged, the department in rare cases provides officially sanctioned background or off-the-record briefings to reporters that outline the nature and progress of an investigation.
Of course, those disclosures can be risky if handled carelessly. When the F.B.I. director James Comey held a news conference disclosing that he had recommended no criminal charges be filed against Hillary Clinton but nevertheless criticized her for being “extremely careless,” the comments ignited a political firestorm and widespread condemnation. But there is room for the department to communicate with the public without making the same mistakes that he did.
This could be as simple as identifying all the broad areas in which the department has ongoing inquiries into Mr. Trump’s conduct. We already know about its inquiry into his alternate (or fake) electors and about the opening of a grand jury investigation concerning the documents at Mar-a-Lago.
A great deal remains unknown, however, about whether the department is actively investigating Mr. Trump’s infamous call with Secretary of State Brad Raffensperger of Georgia, Mr. Trump’s possible obstruction of the Mueller probe or the serious questions under federal law about the propriety of Mr. Trump’s financial dealings.
The standard reasons for investigative secrecy apply with much less force here. One of those reasons is that the department does not want to tip people off to the existence of an investigation, which might allow them to hide evidence, coordinate cover stories or flee the country. But these matters, to varying degrees, have already been publicly aired, discussed and reported on.
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.
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.
On Monday, Mr. Trump’s statement about the search at Mar-a-Lago, which fueled much of the political firestorm, was at best extremely tendentious. He claimed, for instance, that his home was “currently under siege, raided, and occupied by a large group of FBI agents,” when in fact, the agents were conducting an orderly, court-authorized search of his home. Mr. Trump also complained about “prosecutorial misconduct,” “the weaponization of the justice system” and “an attack by radical left Democrats who desperately don’t want me to run for president in 2024,” but he did not explain that the federal officials had apparently been dealing for months with his representatives about whether classified information was being stored at Mar-a-Lago, including through an in-person meeting there that Mr. Trump himself dropped in on.
Since Mr. Trump is not publicly disclosing information that is unhelpful to him and with the media breathlessly hyping the implications of the Mar-a-Lago search, the public may struggle to separate fact from fiction or know what information it can trust. Mr. Trump’s supporters have decried the supposedly unwarranted, heavy-handed tactics of the department, portraying him as the victim of a political witch hunt at the hands of the opposing party. And much of the liberal legal commentary on Mr. Trump that you’ll find on the cable news networks turned out to be wrong before.
Nothing the attorney general can say will placate Mr. Trump or his most ardent supporters, who will likely criticize Mr. Garland for saying too little or too much, regardless of what he does. 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.
Mr. Garland is fond of talking about the rule of law, a vital principle that, as he described it when accepting President Biden’s nomination for attorney general, ensures that “there not be one rule for Democrats and another for Republicans, one rule for friends, another for foes, one rule for the powerful and another for the powerless.” The principle is virtually meaningless, however, unless the public has the information to judge for itself whether the department is satisfying its obligations to the American people to responsibly evaluate and, if appropriate, prosecute possible misconduct at the highest level of our political system — up to and including someone who was once the president and who could, someday soon, be the president again.
Ankush Khardori is a former federal prosecutor and a contributing editor to New York and Politico magazines.
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