Today, Explained - Merrick Garland’s dilemma

Episode Date: August 18, 2022

The Justice Department is investigating Donald Trump, but the ex-president's still-large base likely won’t want him prosecuted under any circumstances. Vox’s Zack Beauchamp explains the ongoing fallout from the FBI raid at Mar-a-Lago. This episode was produced by Victoria Chamberlin, fact-checked by Laura Bullard, engineered by Efim Shapiro, and edited by Amina Al-Sadi and Noel King, who also hosted. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

In his role as Attorney General, Merrick Garland has been the silent type. Since I became Attorney General, I have made clear that the Department of Justice will speak through its court filings and its work. He has his reasons. Much of our work is by necessity conducted out of the public eye. We do that to protect the constitutional rights of all Americans and to protect the integrity of our investigations. But exactly one week ago, Merrick Garland was in the position of needing to say something. Republican lawmakers and some regular Americans were going after the FBI, conspiracy theorizing

about the raid on Mar-a-Lago. So Garland made himself clear. I personally approved the decision to seek a search warrant in this matter. The attorney general spoke for fewer than four minutes, and now a lot of work lies ahead. Coming up on Today Explained, Merrick Garland's dilemma. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points.

Visit superstore.ca to get started. It's Today Explained. I'm Noelle King. Zach Beecham, senior correspondent at Vox. What do we know about Raida Lago that we didn't know last week? We learned more or less what Trump was under investigation for, right? Like why they raided his house. We knew it related to classified documents, but we didn't know exactly what the legal authority was for pursuing him. It turns out that there is a suspicion in the Justice Department that his handling of classified documents at Mar-a-Lago,

I mean, bringing it there in the first place, was in violation of three different statutes, one of which, the most important and significant, is the Espionage Act. Not just about spying, as it may sound, but in general governs the handling of information by government officials and non-government officials for that matter. It was the authority for the prosecution of Julian Assange. What is the either potential or alleged crime that the DOJ is investigating? What we should look at is something called Section 793 of 18 U.S. Code Chapter 37. So broadly, it covers the mishandling of national security information that could possibly harm the United States or aid its

enemies. So we're talking about classified documents, to be sure, but also anything having to do broadly with national defense information potentially being stored unlawfully in the former president's home. What do cases against people who are charged with violating the Espionage Act typically look like? Usually it's not a former president. We can start there. No, no, it is basically never. One example is Julian Assange, the head of WikiLeaks. Assange was charged with violating the Espionage Act by disseminating classified information.

The additional 17-count indictment alleges Assange and WikiLeaks have repeatedly sought, obtained, and disseminated information that the United States classified due to the serious risk. Another example is Reality Winner. I am not a traitor. I am not a spy. This is a person who is a contractor with the National Security Agency, leaked a classified report about Russian meddling in the 2016 election

to The Intercept. Something in the documents that were posted by The Intercept allowed Winner to be identified by the government and was arrested shortly after the story was published. I am somebody who only acted out of love for what this country stands for. Another famous case, an older one, is Daniel Ellsberg, who was tried in 1973 for leaking the so-called Pentagon Papers, all these documents about the Vietnam War and the U.S.

government's handling of it that were pretty damning to the Washington Post and the New York Times. Ellsberg's case was dismissed, and both he and Winner had legal access to their documents. Assange did not. Those are sort of a variety of different cases, but generally the thing that ties them together is that somebody got some classified information and leaked it publicly. How has Donald Trump been responding to all of this? So Trump does what he always does, right? Which is like throw shit at the wall and see what sticks.

Former President Trump is battling back against the Justice Department. He is demanding that the department release to him and to the public the underlying evidence and justification for the search at his Mar-a-Lago residence. He has argued that Barack Obama also retained classified information. No, that's not true. He said that the documents that were acquired in the search were planted, especially the damning ones that, as far as we can tell, is completely made up. He also claims that he declassified all of the documents. There's no public evidence of him having declassified this stuff.

But one variant of the argument that has been picked up on, especially among right-wing commentators, has been that the president just like – if the president takes a document out of a government building, then the president declassifies it basically using the powers of their mind. The feds say they seize classified documents. How'd they know that? Just because some little lawyer didn't put a C on the bottom of the page? You don't need a little C on the bottom of the page. Once the president says something's declassified, that's it.

The rest is bookkeeping. It's something akin to like, you know, there's that scene in The Office where Michael Scott wants to declare bankruptcy. And instead of going to file the legal process where he declares bankruptcy, he says, I declare bankruptcy! This is basically the presidential equivalent of that, is how the argument works. Does the argument that when a president leaves the White House with documents, those documents are then declassified by dint of the fact that he's the president and he's leaving with them, does that hold water? What do scholars tell us about that? So it's obviously not something that's ever been tested in court, right?

So we don't have authoritative rulings that would answer the question. My gut read of what I've seen so far is that that is not going to be an effective defense. Right. Like if Trump had tweeted out the documents, maybe that would be different than just like taking it home. Right. Because you're making you're choosing to make it public rather than just sort of like hiding it. I also don't know if that distinction would hold. What I do know is that there are certain documents the president does not have unilateral authority to take and handle as he might choose, right? So even if the declassification theory is true, and I'm very much not confident that it is, there are other regulations governing the handling of these documents and their storage.

This is really serious stuff, and it's not clear that the president's declassifying authority can get him out of it, to say the least. What are the odds, Zach, that Donald Trump will be charged with something? What are you hearing? Nobody knows. Literally nobody knows. Part of it is that the Garland Justice Department has been very leak-free. Since I became attorney general, I have made clear that the Department of Justice

will speak through its court filings and its work. Unlike the Mueller investigation, where there was like a constant drip, drip, drip of information coming out about what they were doing about Trump throughout that entire Russia inquiry, we just don't know a lot about what the Justice Department is thinking

about trying the former president. And until we have information about how strong they think the case is, how Merrick Garland is thinking about the political consequences of indicting a former president, there's just too many variables for me or anyone else on the outside to be able to make some kind of authoritative assessment. Hey, do you think Merrick Garland knows if Trump will be charged? I don't know if he knows. He may not have made up his mind yet, right? Like the thing is, they just got these documents. Federal law, longstanding department rules, and our ethical obligations prevent me from providing further details as to the basis of the search at this time.

They probably need to go over them and look at them and then look at the evidence, any other evidence they got from the search of Mar-a-Lago, right? Like did they learn more about how it was secured there? And then there are also like other prosecutions. There's investigations of Trump in Georgia about his election interference allegedly. There's two different cases in New York at least, right? Like one at the state level and one at the Manhattan level relating to the Trump organization's business practices. And so we have all of these different legal lines of inquiry into the president.

Then there's the one that we know the Justice Department is pursuing related to classified documents. And like any one of these could result in an indictment of Trump down the line. We just don't know where they're going. One piece of information Garland does have is he knows what the documents were. And since we don't know, we don't know how seriously dangerous it was that they were there. And the more serious they are, the more Garland may feel that he has no choice but to indict the president. This is all I can say right now. More information will be made available in the appropriate way and at the appropriate time. Thank you.

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We're back with Vox's Zach Beecham. And Zach, I guess there were always going to be two big questions. What might Donald Trump have done? And how would the Republican Party respond to all of this messiness? Republicans had an opportunity to say, okay, we got really mad about Hillary Clinton storing classified information improperly on her private server in 2016. Secretary Clinton sent and received emails that contained highly classified information. If the average American did that, they'd lose their clearance, their job, and might even go to jail.

And maybe we should apply the same standard to what looks to be a much, much, much more serious mishandling of much, much, much more serious classified information. They decided to do the exact opposite of that. So the entire response of the Republican Party as an organized institution has been to say this is a politically motivated witch hunt. The FBI raid of President Trump is a complete abuse and overreach of its authority. To double down on the idea that the FBI and the Justice Department are tools of the Democrats, the deep state, and the capital R regime. So I think every Republican believes that the FBI,

when it comes to Trump and other organizations, have lost their mind. It seems like nearly the entire apparatus of the Republican Party, from the institutional party to state and local officials to conservative media, they've all aligned themselves with Trump or said nothing, with just a handful of prominent party members starting to speak out against Trump and in support of the FBI. Mike Pence. Yeah, this one was actually a little bit surprising, but it seems like Pence, despite taking a somewhat craven position after being literally threatened to be hanged by Trump supporters

on January 6th, is starting to be a little bit more outspoken in positioning himself in opposition to some of Trump's stance, not all of them. He hasn't said he wouldn't vote for Trump or anything, but he said, and I quote, these attacks on the FBI must stop. Calls to defund the FBI are just as wrong as calls to defund the police. That is a really interesting line, right? Like that's the pushback that you've been seeing from some of the more never Trumpy, very establishment-minded Republicans who are frustrated with the Trumpy wings, anti-FBI demagoguery. But Pence is, I would say, probably the most prominent Republican

to take this position so publicly. Let me ask you about the Republicans who didn't take the Mike Pence route. How did House Minority Leader Kevin McCarthy respond? McCarthy called for an investigation into Merrick Garland as soon as he takes the speaker's gavel. Why would you go to this level without just communicating? That's what's different to me. Why would you have him wait? So many questions I think all of America's asking. Which could be as soon as 2023, if McCarthy in fact does retake the House, he's going to conduct a politically motivated inquiry into a neutral investigation that he is alleging was in fact politically

motivated, which is Orwellian in one sense, but also disturbing in another because it's the weaponization of the U.S. House against one of the core institutions of U.S. democracy, a guardrail that prevents the abuse of power by powerful people. How did Florida's Governor Ron DeSantis respond? Yeah, look, DeSantis is the only plausible 2024 candidate except for Trump. He also could have gone in two directions, trying to position himself as somebody who didn't do these terrible things that Trump did in advance of the 2024 race. Again, he did the opposite of that. They're enforcing the law based on who they like and who they don't like. That is not a republic.

Well, maybe it's a banana republic when that happens. Shortly after the news broke, he sent a tweet accusing the search as being an operation of the capital R regime, which is a term that you typically find associated with a sort of fringe right intellectuals on the internet. The idea of using that term is to claim that there's a kind of shadowy cabal of people who actually run the government, a confluence of big business and entrenched liberal interests and academia and like this whole melange of different liberal forces in society as they see it, right?

And the government is doing their bidding in this case. For him to say that, to essentially accuse the search as being part of a conspiracy against conservatives, it's really profoundly disturbing. He's not only putting himself on Trump's team, he's putting himself on the same team as the more conspiratorial elements of the Trumpist coalition. What did Senate Minority Leader Mitch McConnell say? Ah, now Mitch McConnell is, he's a little cagey, right? So McConnell basically said, you know, we need to see some serious evidence about this.

He asked to see the warrant. He wanted to understand what was going on. He was, I would say, the most influential and powerful Republican not to jump on the this is a conspiracy train. He didn't condemn them either, which would be the responsible thing to do. He's, again, trying to do this balancing act between not going full Trumpist, but also not rejecting that tendency of the Republican party in case he needs it. And a question we have to ask is, is there any merit to what Trump supporters in Congress are saying that this raid was politically motivated?

Garland decided based on the evidence that he had and actually quite a long period of time of negotiating with Trump to try to get the documents back. And Trump was not just like handing them over, that they had no choice but to send people to execute a search warrant and take the documents, which they did. They then provided a listing of what the documents are, at least in broad strokes. Most of them just said like the level of classification of the documents in a particular box. One of them said information already president of France, which is hilarious. I'm like really curious what it is about Emmanuel Macron that Trump took home. But like we know that the documents were there now, right?

They took them out of Mar-a-Lago. They existed, right? This isn't just some kind of made-up thing designed to get Trump and make him look bad. He had the things that he should not have had and they took them away. And then the question is whether what he did constitutes a federal offense under the Espionage Act or some other statutes. Maybe. We'll find out. But right now, we have every indication that this was very cautiously pursued deliberately over the course of months after Trump refused to turn over the documents without the FBI showing up.

So I just don't know what to tell people who see this as a conspiracy theory. Like I get why you're concerned about it, especially if you voted for Trump in 2020. But you can't let those concerns turn into like a totally unreasonable suspicion of something that based on what we see right now really does appear to be on the level. Are there any Republicans who have come out and said, I don't support Donald Trump on this? Even Mike Pence kind of hedged and said, don't mess with law enforcement. Don't mess with the FBI. They're few and far between.

You're Liz Cheney's and you're Adam Kinzinger's, right? People who are very, very already like skeptical of what the Republican Party is doing with Trump and basically hate him. This past weekend, Brian Fitzpatrick, who's a Republican from Pennsylvania, went on Face the Nation and basically told other Republicans like don't jump to conclusions about the federal government is doing. They are not your enemy. We live in a democracy that's 246 years old. That's not long. That's just a few generations. And yet we're the world's oldest democracy. And the only way that can come unraveled is if we have disrespect for our institutions that lead to Americans turning on American and the whole system becomes unraveled. And a lot of that starts with the words we're using. And this is notable because Fitzpatrick himself is a former FBI agent, right? Like he has direct experience with the kind of people who are executing this search.

And like he should know, and I think most of us do, that the FBI does overstep its authority. It has a history of, let's say, non-ideal behavior. And the Justice Department's not above criticism either. But at the same time, there are also professionals who have rules and professional standards. Where do ordinary Americans who support Donald Trump fit into this? The raid on Mar-a-Lago happens. And then what do we see civilians doing? It seems, based on what I've seen so far, that pretty much everyone who supports Trump have come to see it through the conspiratorial lens that he's created.

After what happened on Monday, we have to show our support for the president, the real president anyway. The Biden administration, the Democrats, are weaponizing the FBI, and it has to stop. The FBI is not here to weaponize against another president. It never has happened before. But the degree to which you're willing to act on that and you're willing to make that into a defining element of your political personality is heavily mediated by how into this world you are, right? There's a lot of stuff coming out from the people who are like

super hardcore MAGA types about how this is a prelude or maybe even the beginning of a second civil war. Listen, I'm just like you. I've seen what happened to Trump. Yeah, it's go time. Everybody knows exactly what I'm talking about. And that kind of talk is horrifying. It's often very loose, right? Most of these people have no idea what a civil war entails and less of an incentive to actually pursue a violent insurgency against the government. But we've already seen at the fringes some violence, right? You may have heard reports about an attack on an FBI building. When the suspect wearing body armor and carrying a nail gun and long, tried to breach the FBI's visitor screening center in Cincinnati.

The FBI says agents confronted the suspect before he fled, leading to a car chase. The man was killed after an unsuccessful attempt to negotiate him down by police. frequent poster on Truth Social, which is Trump's proprietary Twitter knockoff social media platform, and had been posting a lot about how angry he was about the raid and how he needed to do something and it was time to act. And then he wrote something about his attempt to breach the FBI building. And like that kind of case is an extremist, the logical endpoint of this rhetoric that the government is fundamentally hostile to Republicans. Because if you believe the government is in fact part of a shadowy regime that's bent on destroying the party that you see as standing for political freedom in the United States and destroying the person that you voted for in 2020, would you just sit back and

take it? Or would you do something about it? It's the exact same logic that motivated people to attack the Capitol on January 6th, a deep and sincere belief in a conspiracy theory about a country being stolen from them. What does all of this disarray mean for an institution that Americans, for the most part, 10, 15, 20 years ago, seem to trust more or less the FBI. Are we witnessing a sea change in the way Americans think about the FBI? Look, I see what's happening to public perceptions of federal law enforcement as a symptom of a broader disease, right? There's just been a pretty wide collapse in trust in government institutions across the board.

And that owes primarily to – I mean among other causes to political polarization, to a sense that when a government institution makes decisions that go against your party, that they are acting immorally, illegally, improperly, et cetera. And then also by members of the two parties, but I think in my judgment, especially Republicans, working to politicize these institutions, either like in the case of the Supreme Court, treating it as a political post basically in terms of how appointments work and ensuring that they get a majority on it to change policy, and in terms of the FBI and the Justice Department deliberately trying to cast them as political actors even when they're not acting politically. People are so identified with their political parties that attacks from one party on an institution are less likely to undermine the party than they are to undermine the institution itself.

I think we are starting to see polarization of opinions about the Justice Department and the FBI, but that's part of a much bigger problem that is chipping away at the kind of broad-based respect for government that away at the kind of broad-based respect for government that's at the heart of American democracy. Today's episode was produced by Victoria Chamberlain.

It was edited by Amina El-Sadi. It was fact-checked by Laura Bullard twice. Fun story there, I'll tell you sometime. It was engineered by the great Afim Shapiro. I'm Noelle King. It's Today Explained.