Opinion Merrick Garland’s surprise announcement calls the Trump-GOP bluff
It’s that situation that Garland appeared to address when he made an unusual public statement about the case Thursday afternoon and asked the judge to unseal the search warrant authorizing that search.
“I personally approved the decision to seek a search warrant in this matter,” Garland confirmed. He suggested the department had exhausted any “less intrusive means” to obtain the documents in Trump’s possession.
Republicans seem to contend that treating Trump like any other American is by definition illegitimate. That’s what lies behind the protestations that something tyrannical is going on, that as Florida Republican senator Rick Scott put it, “This is 3rd World country stuff.”
But now that Garland has asked a court to unseal the warrant that led to the search, he is calling the bluff of Trump and Republicans. If the court brings transparency to the warrant, he is essentially saying, you can see for yourself what we’re after — and whether we’re the jackbooted federal thugs you say we are.
Stephen Vladeck, a law professor at the University of Texas at Austin, notes that asking a judge to unseal the warrant is “not typical, but it’s not unheard of.” This provides a lawful, procedurally sound way to keep the American people informed in law enforcement operations of high national interest, Vladeck said.
As Vladeck put it, Garland is “following the settled procedure for cases in which there’s a high degree of public interest in what is usually a confidential search.”
In this case, there is a strong public interest in understanding why the government conducted the search. But it’s important to note that this interest was created in part by Trump’s decision to reveal that it happened, and by Republicans who keep casting it as a deep state conspiracy.
Garland did not say in his public statement why he signed off on the warrant. But he did suggest that it came after some unspecified previous events that made it necessary.
It’s true, of course, that law enforcement in this country has a long history of persecuting some political groups. And so, we should all agree there is a public interest in seeing the warrant unsealed.
But note that the Justice Department’s motion to unseal the warrant requests this “absent objection” from Trump, meaning he can stop its unsealing. And so, with Republicans having spent days demanding its release, will Trump now kill this, given that it could actually undercut Trump’s conspiracy-theorizing demagoguery? Republicans should want its release, right?
“If the warrant is unsealed, it should shine some light on why the department had to undertake a search, which is what Republicans say they’re looking for,” former federal prosecutor Harry Litman told us.
Were Trump to call for the warrant to remain sealed, you might think that the Republicans would cease their conspiracy-theorizing. But Trump and his allies would justify this with some new invention, such as claiming any unsealed warrant would itself be fraudulent, and thus more confirmation of his persecution.
We have noticed that reporters and commentators keep suggesting the political atmosphere in this country is unusually tense in the wake of the search. Occasionally you see a reporter ask rhetorically whether Garland can or will do anything to ease these tensions.
But this is absurd. These tensions are being actively created by Republicans who are telling millions of voters that the Department’s move can only and inevitably reflect unfair persecution of Trump.
There is a more responsible, alternate way for Republicans to react. They could reasonably suggest that the search directed at a former president raises questions for the public that deserve answers, without claiming — utterly baselessly — that there is no conceivable way the search is legitimate.
Such a stance might actually help ease all the tensions this is creating. But Republicans are instead choosing once again to demagogue the moment. No reporter should suggest it’s Garland’s job to shape his response around Republican noisemaking, or that he do anything beyond what the rule of law dictates.
At any rate, if Republicans genuinely believe the search raises questions that the public must have answered, well, they might get their wish.
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