News : Why it took so long for Merrick Garland to go public

Thursday, August 11, 2022

Why it took so long for Merrick Garland to go public

Aug 11, 2022

With help from Calder McHugh

'PUT UP OR SHUT UP' — Merrick Garland has broken his silence.

In a five-minute afternoon presser, the attorney general revealed that he personally approved of the decision to execute the search warrant at Mar-a-Lago on Monday, and announced the Department of Justice's decision to unseal portions of the warrant. The move comes after three days of wall-to-wall media coverage and a massive outcry from Republicans who have demanded more information about the search and why it was necessary.

Garland's comments marked the first public acknowledgment that the DOJ is investigating former President Donald Trump's handling of classified records, and they came on the heels of a New York Times report that Trump received a subpoena this spring in search of documents.

What's been missing during this week of noise and speculation is an explanation as to why Garland and FBI Director Christopher Wray have been so tight-lipped about what led the FBI to scour Trump's West Palm Beach resort.

Nightly called an expert who is familiar with what can and cannot be said under these circumstances. Andrew Weissmann, a former federal prosecutor and general counsel for the FBI who's probably best known for being one of the senior prosecutors on Robert Mueller's Trump-Russia investigation, pointed to two legal rules and one departmental policy.

According to Weissmann, the first legal rule is that the FBI can't disclose anything that's covered under grand jury secrecy, as established by rule 6(e) of the Federal Rules of Criminal Procedure. Based on his experience, he noted, this likely applies to only a "small subset" of the information related to the Trump investigation.

The other legal barrier is the sealing order Garland addressed today. When a search warrant is obtained, the approving judge is often asked to seal the warrant so the investigative process is not impeded. While we could soon see portions of the search warrant, we will not yet have access to the underlying affidavit.

"For instance, if the underlying affidavit discloses that there was an informant or many informants, and it gave information about reliability of information that could suggest who that informant is, you can imagine why the Department of Justice wouldn't want to disclose it," Weissmann said.

But the main thing at play here is likely DOJ policy, he explained. The department has a huge book called the Justice Manual, which outlines the general practice that officials don't speak about ongoing investigations.

This policy was established for two reasons: to protect the investigation process and to safeguard civil liberties.

"It is so-called put up or shut up, which is you are either charging someone, or it's not your place to talk about who is under investigation. They're innocent until charged and proven guilty," Weissmann said, noting that this is why people were outraged by then-FBI Director James Comey's handling of the Clinton emails investigation.

Trump, who had the right to do so, publicly announced on Monday night that he is under investigation — no longer making civil liberties a concern. During his presser today, Garland said he moved forward with the rare step of addressing an ongoing investigation for this reason and because doing so would serve the "public interest."

Trump and his allies, without evidence, have suggested the search warrant was politically motivated, and some conservative commentators have floated conspiracy theories suggesting FBI agents planted the evidence. Garland addressed these attacks head-on today and defended the men and women of the FBI.

"I will not stand by silently when their integrity is unfairly attacked," he said.

With his announcement, Garland succeeded in putting the ball back in Trump's court. The former president and his legal team have the option to block the public release of the warrant, a step that would be in opposition to Republicans' calls for answers. Magistrate Judge Bruce Reinhart, who signed off on the Mar-a-Lago search warrant, ordered today that the DOJ must relay Trump's decision to him by 3 p.m on Friday.

Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight's author at mward@politico.com or on Twitter at @MyahWard .

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What'd I Miss?

— New CDC guidance for schools aims for normalcy: The Centers for Disease Control and Prevention loosened its Covid-19 guidelines for isolation and testing in schools today as the country emerges from another bruising wave of cases and Americans' pandemic fatigue continues to deepen. In a much-anticipated decision, the CDC lifted previous recommendations that students quarantine if exposed to someone positive for the virus. The new guidance also drops recommendations that schools limit students' contacts by cohorting them in groups during the day. And it said that schools should no longer conduct Covid-19 routine testing for asymptomatic or unexposed students.

— Suspect killed after attempted attack on FBI building: An armed man suspected of attempting an attack on an FBI building in Cincinnati today was later shot and killed by police , according to the Ohio Highway State Patrol. The unidentified man, wearing body armor, was shot by police after raising a gun toward law enforcement officials around 3:45 p.m. Eastern. He died of fatal injuries on the scene, according to a State Patrol statement, which unveiled more details about what happened between the subject's leaving the scene and his death.

— Federal watchdog approves Google program to let campaigns skip spam filters: The Federal Election Commission, the nation's campaign finance watchdog agency, gave its blessing to a program proposed by Google today that will effectively allow federal campaigns and other political committees to bypass spam filters and land in the inbox of Gmail users . The commission, in a 4-1 vote, said that Google's program would not amount to an impermissible contribution to the committees, clearing the way for the search giant to implement the program should it so choose.

— Florida bans Medicaid from covering gender-affirming treatments: Florida's Medicaid regulator has finalized new rules banning health care providers from billing the taxpayer-funded program for gender-affirming medical treatments , a move that comes as the state has sought to block such therapies for young people. The new rules declare that the program does not cover services for treatments such as puberty blockers, hormone therapies or surgical procedures as a treatment for gender dysphoria. The updated rule will take effect on Aug. 21.

DISPATCH FROM UKRAINE

A map of Ukraine.

Defense Department handout

THE FOG OF WAR — As we approach the six-month mark of Russia's invasion, the war is entering a new phase. There's widespread confusion about the state of the fight, and competing information continues to pour in from all directions.

This week alone, while satellite images showed several Russian military planes destroyed and three large blast craters — suggesting a serious blow to the country's military — Moscow downplayed the strikes and said the blasts were caused by ammunition accidentally detonating. There's also great uncertainty about casualty numbers, clouding assessments about how long Russia can keep this up. The Pentagon estimated this week that 80,000 Russian troops have died so far; Moscow hasn't updated its March total of 1,351 dead. The General Staff of the Ukrainian Armed Forces put the number at 42,200 on social media over the weekend.

In the interest of shedding light on the current situation, Nightly's Myah Ward checked in with POLITICO's national security correspondent Christopher Miller , who's on the ground in Ukraine.

How would you describe this phase of the war?

We're entering what I'd call the third phase of Russia's latest invasion. First, in late February through March, Russia tried and failed a blitzkrieg approach to capture Kyiv and Kharkiv and decapitate Ukraine's government. Ukrainian forces repelled the assault and forced Russian forces to retreat. In April, we saw the second phase, when Russia redeployed forces to the eastern Donbas region and Vladimir Putin reverted to his originally stated goal of capturing all of the Donetsk and Luhansk regions. There, Russian forces haven't been entirely successful; they haven't made much progress in the eastern Donbas region since the battles for Severodonetsk and Lysychansk, from which Ukraine made tactical retreats in June and July, respectively. But they have destroyed a lot of cities and towns there. This third phase sees Ukraine going on its own offensive — to recapture territory in the southern Kherson and Zaporizhzhia regions that were occupied by Russian forces in the first days and weeks of the invasion.

Can you talk about what's happening in Crimea this week, and why it's significant?

A Russian military airfield in western Crimea was hit with a series of explosions. Moscow claims it was an accident; Ukraine is being coy about what it thinks happened. I was told by two Ukrainian officials — who were careful not to explicitly confirm that Ukraine was behind the blasts — that we should consider it the start of Ukraine's counteroffensive in the south. Kyiv said Russia was keeping attack aircraft at the base that it deployed to attack targets inside Ukraine. Whatever happened, it's a big deal. It's likely to damage the morale of Russian forces who have until recently felt like they were out of reach of Ukrainian weapons, and will certainly infuriate Putin, who is likely to view it as an escalation.

There's been a round of fresh aid this week from the U.S. to Ukraine, but what more do Ukrainian officials want from the U.S. and allies right now?

I met with several of President Zelensky's advisers this week and last week. They were very clear: They want a lot more ammunition so they can keep fighting. They want long-range ammunition for the High Mobility Artillery Rocket System that the U.S. has supplied so they can keep hitting Russian command and control center and ammunition depots far beyond Russian lines and further disrupt the enemy's logistics. And they want security guarantees. They dream of something like a NATO-style Article 5 that would see the U.S. and NATO countries coming to its aid if Russia were to escalate in a more significant way. But there is some talk of those guarantees being something along the lines of the West explicitly laying out the costs for Russia if it escalates. Some examples might be severe sanctions, coupled with Western guarantees to supply Ukraine with X weaponry and financing for X number of years, and/or provide Ukraine with weaponry that the West has so far been more cautious about supplying, such as air defense systems and those long-range shells for HIMARS.

The grain deal seemed like somewhat of a breakthrough, but did you see it that way, and is there room for any other progress on negotiations at this point?

The grain deal is viewed by Ukraine as a good deal in the short term. But there is a lot of concern about how long it will last. Some officials here in Kyiv believe Putin will try to use it to strong arm the West into getting Ukraine to make concessions. As for further negotiations, the answer is no. The Ukrainians see no reason for talks at the moment.

It feels like there's been a drop off in public interest here in the U.S. How would you describe the attitudes of Ukrainians right now, particularly in parts of the country where there isn't active fighting?

Ukrainians are determined, stoic. I'm constantly impressed by Ukrainians and their ability to rally and unite for a common cause. I saw it during the revolution in 2014, and in their response to Russia's first invasion later that year. They are worried that the world will forget them; the waning interest really frustrates them. Ukrainians truly believe they are on the front line not of a war against Ukraine only — but a great war against the West and democratic values.

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Nightly Number

49 percent

The share of respondents who said the search warrant on Trump's Florida estate was primarily conducted because of evidence he committed a crime , according to a POLITICO/Morning Consult poll. Thirty-nine percent said the search was conducted mostly to damage Trump's political career.

Parting Words

A photo of historians Jon Meacham and Doris Kearns Goodwin

Jon Meacham (center) and Doris Kearns Goodwin (right), two historians who have been invited to the White House. | Susan Walsh-Pool/Getty Images

HISTORY LESSONS — The list of attendees at the White House this week — Michael Beschloss, Jon Meacham, Anne Applebaum and more — might sound like an MSNBC viewer's dream cocktail party. But these public historians were invited by President Joe Biden this week not to hobnob but rather to warn him of threats to American democracy, writes Nightly's Calder McHugh .

The historians warned Biden about the rise of totalitarianism around the world, according to a Washington Post report , and described our current moment as among the most dangerous to American democracy.

It's not the first time that a president, or even Biden himself, has invited historians to the White House. Biden also did it in March 2021, when he had dreams of a larger domestic agenda that would reshape America. Last year, during more ambitious times, he wanted to talk about FDR and the possibility of his own New Deal.

There are many reasons why a president might invite the counsel of a historian, but two stand out in a modern context — we are in the midst of a crisis with some historical precedent (like dangers to democracy) or a president wants to check in on how his own legacy might look (and perhaps shape it through some of these chroniclers).

President Barack Obama did one such early check-in during his first year in office. A year later, though, Garry Wills — one of his guests — wrote a scathing piece in the New York Review of Books about how Obama had not internalized what they told him, in particular about getting American troops out of Afghanistan. That task was finally completed over a decade later by Biden.

The first-year Obama and Biden dinners shared a common theme — early in their first terms, both presidents believed they could bring transformational change to the country and were interested in placing it in historical context. But it wasn't long before contemporary political reality set in, and big dreams about legacy were supplanted by smaller goals.

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