(CNN) — The FBI and the Justice Department are damned if they do and damned if they don’t on the question of whether they should quickly explain in public why they searched former President Donald Trump’s Florida resort for missing documents.
Attorney General Merrick Garland is facing a cacophony of demands from Republicans to take over the operation, including threats of withering oversight if the GOP wins the House of Representatives in November’s midterm elections.
His failure to do so has already created a void filled by Trump’s fury, misrepresentations of the search and now conspiracy theories that the office planted incriminating evidence in the former president’s home.
The conservative media machine is in meltdown mode. Several of Trump’s most pro-Trump lawmakers and pundits, who have criticized liberal “defund the police” rhetoric, are now calling for the defunding and expulsion of the FBI. This is a slogan for a party that prides itself on supporting law and order. And it could portend serious damage to the office under a possible future Republican Congress or president, not to mention neutralizing the country’s ability to fight foreign espionage, violent crime, drug trafficking and domestic extremism.
By using terminology like “raid” and “siege” to describe the legally sanctioned search, Trump and his allies repaint him as the victim of political persecution, a technique that ties him more closely to grassroots voters and will shore up his likely campaign to the White House in 2024.
In the face of this relentless onslaught, the FBI and the Justice Department — both of which Trump sought to weaponize for his own political ends in office — are relearning a Trump-era platitude. Playing by the rules and observing legal and protocol standards—such as not speaking publicly about open investigations—can be the foundation of good governance and impartial justice. But it is ineffective as a public relations strategy when the former president and his acolytes erase all perspective in a torrent of chaos and falsehoods designed to obscure the facts. Given Trump’s power over his supporters and the right-wing media furore, the Justice Department investigation has already been tainted in the eyes of millions of people … whatever it turns out to be.
Trump is adopting the exact same playbook he used in his campaign against special counsel Robert Mueller’s Russia investigation, which has mostly stuck to his code of working behind closed doors and pursuing justice quietly. (Mueller did not find that the Trump campaign conspired with Russia to win the 2016 election, but he did unearth multiple bizarre contacts with the Russians and plenty of evidence that Trump might have obstructed justice.)
Trump’s asymmetric political war against the FBI and the Justice Department, entities that for legal and procedural reasons cannot fight back, has caused consternation among some insiders, and questions about whether there should be a public response.
CNN’s Evan Perez reported Wednesday that some Justice Department officials are chafing at the attorney general’s silence and believe there should be a public statement about the unprecedented search of Trump’s home. Those officials believe the silence is detrimental to the interest of the department and the public, since Trump has filled the void and defined the consequences of the search, Pérez reported.
Why the Justice Department’s options are limited
There are real questions about the justification for the Mar-a-Lago search and whether an explosive step like breaking into a former president’s home was necessary or proportionate. If Trump’s conduct did not merit such an intrusion, it would be a scandal and would require congressional oversight, once the facts are known and legal proceedings are completed. If the FBI and the Department of Justice were to obtain a warrant on a minor administrative matter, the search could appear disproportionate.
But given the predictable political turmoil, and the caution of leaders like Garland and FBI Director Christopher Wray (Trump’s appointee), the idea that this is a petty affair seems implausible.
There may be reasons specific to this case why it cannot be discussed publicly, such as the implication of classified documents, although a briefing to Congress in closed session might be possible.
But while a decision by the FBI or the Justice Department to offer some explanation at this point could calm some of the furor over the search and undermine Trump’s attacks on them, it would also drag them down a politically slippery slope.
The traditional reluctance to discuss ongoing cases is designed to protect the reputations of individuals subject to search warrants and the affidavits supporting them in case they are innocent of the crimes they are suspected of committing.
And Trump, after all, could post the search warrant himself if he wanted to. The fact that he didn’t and the increasingly insane tone of his attacks on the Justice Department only deepen the impression that he has something to hide. As was the fact that it was he, and not the FBI or the Justice Department, who broke the news of the search in a transparent attempt to establish a media narrative that he had been unfairly treated.
George Conway, a conservative lawyer and prominent Trump critic, questioned whether there was anything to be gained from the Justice Department bowing to Republican pressure and making a public statement.
“I really don’t think they need to say anything other than what their procedures are, what their processes are in general for issuing search warrants and conducting investigations in general,” Conway told CNN’s Anderson Cooper.
“I think the goal of the rule of law is that the law applies equally to everyone.”
Comey’s shadow in the Hillary Clinton case
Any public statement would also draw comparisons to then-FBI Director James Comey’s decision to speak publicly about reopening an investigation into Hillary Clinton’s email server just days before the 2016 election, prompting accusations of that he was playing politics and dragged the FBI into a political morass. The episode was an object lesson in why the FBI tends to follow its own protocols and avoid political calculations.
Republicans have spent years attacking Clinton for her use of a private email server while secretary of state and have been quick to argue that the FBI’s treatment of Trump has been unfair, even as they applauded similar scrutiny of the presidential candidate. 2016 Democrat.
Garland has said in the past that silence on these matters is vital to ensure the integrity of an investigation and the privacy of those involved, in line with a convention in which public statements are typically made only if someone is charged.
In a speech earlier this year, the attorney general acknowledged his frustration with the department’s reluctance to discuss its investigations into the US Capitol uprising.
“I understand this may not be the answer some are looking for. But we will and we must speak through our work. Anything else jeopardizes the viability of our investigations and the civil liberties of our citizens,” Garland said.
When he took office, President Joe Biden argued that it was important to restore the quasi-independence of the Justice Department and the White House, which Trump repeatedly trampled on. Aides said, for example, that Biden was unaware of his predecessor’s home search until he saw it on the news. But Garland is not the first top Washington official to find that attempts to insulate investigations from politicization are impossible when Trump is involved.
GOP attacks suggest Trump is above the law
One of the most notable, yet characteristic, features of Republican criticism of the Justice Department is that the savage claims of political persecution are made by those with no apparent knowledge of any possible wrongdoing Trump may have committed. All that matters to GOP politicians, who see their own political fortunes tied to him, is that Trump is under attack.
Top House Republican Minority Leader Kevin McCarthy, for example, accused Democrats of abuses of power on Wednesday, telling members in a Facebook post: “NOW is the time to speak up and be noisy.”
His comment suggested that the volume of outrage outweighed the issues of fact at stake, showing how deeply the would-be future House speaker has learned the lessons of Trumpism. This kind of backlash also helps explain why even if the Justice Department were to soften its policy on discussing an ongoing investigation, it wouldn’t help quell GOP outrage. It wouldn’t matter what was said, as it would still be manipulated, taken out of context, and discredited by the Trump propaganda machine.
Another extraordinary feature of the GOP’s uproar about the search is the claim, made without evidence, that the Justice Department specifically targeted Trump simply because he is a former president and a potential 2024 candidate who could run against Biden.
“They have turned the machinery of government and law enforcement into a weapon to attack their political enemies,” Republican Sen. Ted Cruz of Texas said Tuesday on Fox News. Such claims ignore how Trump used the power of the presidency to try to fix the election, for example by leaning on Ukraine to investigate Biden and later trying to overturn the result in 2020.
In her statement about the Mar-a-Lago search, New York Rep. Elise Stefanik, the No. 3 House Republican, suggested that Trump was in the crosshairs as “the likely Republican nominee for President of the United States.” United in 2024.”
It’s about a high-ranking Republican making the premise that a former president, who hasn’t even officially declared a political campaign, should be immune from investigation.
That is not only equivalent to the politicization of justice. It is a recipe for the collapse of the rule of law, which is supposed to apply to everyone in democratic societies like the United States.