World: Why the DOJ won’t talk about its investigation of Donald Trump

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If you were hoping for more information about the recent FBI search of former President Donald Trump’s Florida residence, Attorney General Merrick Garland just delivered — kind of.

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On Thursday, Garland announced that the Justice Department asked a federal magistrate judge to unseal certain records relating to the Monday search at Mar-a-Lago, including the actual search warrant served on Trump, the “redacted Property Receipt listing items seized pursuant to the search,” and two documents identified only as “Attachments A and B.”

The upshots of this announcement are that the public will soon learn more about this search, but may not learn more than Trump — who has a copy of the search warrant — already knows. Garland emphasized that DOJ will not provide additional information about the search, or any other ongoing investigation into Trump, saying, “Federal law, longstanding department rules, and our ethical obligations prevent me from providing further details.”

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These developments come after Republicans have spent much of the week attacking the DOJ and insisting that it comment on the ongoing investigation. As Senate Minority Leader Mitch McConnell (R-KY) said in an angry statement implying that the Justice Department is inappropriately keeping important details about this investigation secret, “the country deserves a thorough and immediate explanation of what led to” the search, McConnell demanded, adding that Garland “should have already provided answers” and “must do so immediately.”

But McConnell, who once served as a deputy assistant attorney general within the Justice Department, almost certainly knows better. The Justice Department has explicit policies and very strong norms that prevent it from speaking publicly about ongoing investigations, and these policies are bolstered by external rules that bind the department’s lawyers. All of these limitations exist for very good reasons. They not only protect the Justice Department’s own investigations, they also protect potential suspects from being disparaged by the government before they are charged with any crime.

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But these limits on disclosure could also advance a different, more nefarious goal — at least in the short term. Lawmakers who want to bolster Trump or the GOP more broadly can use DOJ’s silence to mislead the public into thinking that the Justice Department’s taciturnity is somehow nefarious.

Here’s the reality.

Multiple rules and policies prevent the Justice Department from speaking about an ongoing criminal investigation

For starters, let’s look at the Justice Manual, DOJ’s internal document which lays out, in excruciating detail, the various rules and procedures DOJ employees must comply with.

That manual explicitly warns DOJ personnel not to speak about ongoing criminal investigations — to the media or otherwise.

“DOJ personnel shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before charges are publicly filed,” the manual states in fairly categorical terms. The manual does permit exceptions “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.” But neither of these exceptions should apply to the Trump investigation — among other things, the “community” does not need reassurance that Trump is being investigated because the FBI search of his residence was widely reported and confirmed by Trump himself.

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The Justice Manual, admittedly, is an internal policy document laying out the constraints the Justice Department imposes on itself and its own employees. But there are also external constraints that DOJ lawyers must comply with regardless of their employer’s policies. One of these is Rule 6 of the Federal Rules of Criminal Procedure, which provides that government attorneys “must not disclose a matter occurring before the grand jury.”

This matters because the New York Times reported in May that “federal prosecutors have begun a grand jury investigation into whether classified White House documents that ended up at former President Donald J. Trump’s Florida home were mishandled.” The FBI’s search of Trump’s residence is reportedly connected to that grand jury investigation, and if that’s the case, Rule 6 therefore constrains the Justice Department’s ability to speak about it.

In fairness, Rule 6 is not so broad that it forbids DOJ from revealing literally any information related to this search. As Andrew Weissmann, a longtime veteran of the Justice Department, explained on Twitter, Rule 6 should not prevent the department from disclosing the actual search warrant that was executed this week, or “any part of the supporting affidavit that does not contain [grand jury] info.” (To obtain a warrant, a federal agent typically must submit a sworn affidavit laying out where they intend to search, what they hope to find, and the basis for believing that this search will reveal evidence of a federal crime.)

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For the moment, however, there is another constraint preventing disclosure of the warrant and accompanying affidavit. These documents are “under seal,” meaning that a federal court order prevents them from becoming public.

That is likely to change soon, as the Justice Department has now asked the court to disclose at least some of this information. Multiple media and advocacy groups have also asked the court to unseal the affidavit, although it is less clear whether that will happen.

It should be noted that there is one person who could provide some additional information about what happened during the FBI’s search — Donald Trump himself. When federal agents execute a search warrant, they typically provide a copy of that warrant (but not the supporting affidavit) to the person being searched. Trump’s lawyer Christina Bobb reportedly received a copy on behalf of Trump, which Garland confirmed Thursday.

This warrant will reveal some information about the search, including the specific criminal statutes that were allegedly violated. Trump is free to disclose his copy of the warrant at any time.

Why the Justice Department does not talk about ongoing investigations

In case there is any doubt, the Justice Department has very good reasons why it keeps its lips shut about ongoing criminal investigations.

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One reason is fairly obvious. If prosecutors and law enforcement speak openly about a criminal investigation, they could reveal information to a suspect that could undercut the investigation itself. Trump could conceivably destroy evidence if he knows that DOJ is looking for it, or he might attempt to intimidate a witness if he knows that witness is one of DOJ’s sources.

Indeed, while the Supreme Court has said that “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents,” lower courts have held that this right can be overcome by the government’s need to keep sensitive information about ongoing investigations secret. As the US Court of Appeals for the 11th Circuit, which oversees federal cases in Florida, said in one case, documents may be kept secret when there is a “substantial probability that the government’s on-going investigation would be severely compromised if the sealed documents were released.”

(That doesn’t necessarily mean that the entire warrant affidavit in Trump’s case must be kept secret, but it does mean that it will likely remain under seal if it could compromise DOJ’s investigation of Trump.)

There’s also another reason why the Justice Department rarely speaks about ongoing investigations: Doing so is unfair to criminal suspects — including Trump.

If Trump is eventually indicted for an alleged violation of a federal criminal law, he has a right to stand trial and will have an opportunity to present evidence that he is, in fact, innocent. Assuming that he does not accept a plea deal, a jury will weigh the evidence and return a verdict of “guilty” or “not guilty.” Technically, a “not guilty” verdict would not be a declaration that Trump is actually innocent — it merely means that the prosecution failed to prove its case beyond a reasonable doubt — but it would go a long way toward clearing the cloud of suspicion that hangs over anyone charged with a crime.

But if the Justice Department speaks openly about a criminal investigation before anyone is actually arrested, they place that cloud over a criminal suspect’s head without giving that suspect a forum to vindicate their reputation. As former deputy attorneys general Jamie Gorelick and Larry Thompson explained in a 2016 Washington Post op-ed, the Justice Department’s “long-standing and well-established traditions limiting disclosure of ongoing investigations” that might influence elections prevent prosecutors from “creating unfair innuendo to which an accused party cannot properly respond.”

So we should expect the Justice Department to be very quiet from here on out about its investigation of Donald Trump, unless that investigation leads to arrests. This silence is not an attempt to stonewall. It is consistent with longstanding DOJ policies that protect both the Department and anyone accused of a federal crime.

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