The Burden of Transparency

Dan Alonso emphasized to me the phrase “burden of transparency,” as if such a burden existed, because who isn’t making up new burdens these days? But the battle being fought yesterday was who had the “duty” to come forward with the warrant executed* at MAL. While Trump claimed to have the “warrant” that put his “beautiful home” under “siege,” he demanded that Attorney General Merrick Garland release the warrant and explain himself.

Of course, if there was anything in the warrant that Trump could use, no matter how hard the spin required, for his benefit, he would have plastered that sucker everywhere. Trump is not shy about anything that benefits him or any lie needed to justify it. But here he didn’t, which suggests that whatever he had either couldn’t be used in any way to help him or was pretty darn bad for him.

Or, he had the warrant, a one page order citing the statute(s) of the offense, the items to be searched and seized, the location and times and the signature of the authorizing magistrate, none of which was very interesting, and what he really wanted was to put the government on the defensive to reveal the information that might become available to Trump’s lawyers should there be a prosecution and the warrant application, the affidavit(s) that provide the basis for the probable cause determination by the magistrate, during discovery.

For the most part, Trumpkins joined in his hallelujah chorus, because what else could they do, not support Feckless Leader? It’s not as if they knew any better, and may well have misunderstood Trump’s possession of a “warrant” to mean that he had the full application with all the substantive background that the government was now “concealing” from the public. A bold move if it works. But I digest.

But what is surprising is that people who should know better, more particularly the ubiquitous “former federal prosecutor” so beloved by MSNBC, would take the anti-Trump position of demanding that the government, that Garland, go public now because “the public deserves it.

Some lawyers have also suggested to me in recent days that the public will get greater insight into the department’s work investigating Mr. Trump if (or perhaps when) prosecutors start filing charges that more directly implicate him. But it is possible that in some areas, the federal government will never charge anyone, perhaps because it considers the matter closed or because it opted to cede the investigation to a local prosecutor. If that is what happened, the public deserves to know in order to assess both the performance of the Justice Department and the extent to which federal law enforcement officials have reviewed Mr. Trump’s conduct.

There is a lengthy list of reasons why the government keeps its information close to the vest, not the least of which is to prevent the defense from having more time to conduct its own investigation and prepare its defense. But none of those reasons involve an assessment of what “the public deserves to know,” or how “deserves” has anything to do with it.

Furthermore, the department’s fully ceding ground here could create a void easily filled with inaccurate information and politically motivated speculation. About the Mueller investigation and impeachment proceedings, Mr. Trump made deeply misleading public comments on social media, in public appearances and in interviews, and allies and surrogates echoed his dubious claims and cast him as a political martyr suffering at the hands of crazed opponents. The claims were often tenuous or transparently false, but they were effective in persuading a significant bloc of Americans to discount the findings of the investigations.

It seems too obvious to require stating, but I’ll do so anyway: Those inclined to believe Trump are not going to believe what the government has to say. And, indeed, former federal prosecutor Ankush Khardori realizes this and explains why the government should go public anyway.

But Mr. Garland’s proper audience is not Mr. Trump or the Republicans on Capitol Hill but the American people, particularly those who remain legitimately concerned about Mr. Trump’s conduct. If Mr. Garland speaks out, he might be able, first, to provide the public with long overdue insight into the topical scope and nature of the department’s work as it relates to Mr. Trump and his administration (not simply to inform the public that his conduct may be under investigation in some vague sense) and, second, to allow the public to gauge whether the current administration is fulfilling its duty to ensure that serious misconduct at any level is investigated thoroughly and fairly.

Yes, Khardori is arrogant enough to lay claim to the “American people” for his tribe, more to the point, his argument is that Trump should be tried on MSNBC’s Court of Public Opinion rather than in a court of law, should that be where this ends up. This is Trump’s game, as the trial will be simulcast on Newsmax and their respective juries will only hear half the “argument,” either by prosecutor Maddow or defense lawyer Hannity. Yes, they’ll both have teams, but let’s not get bogged down here.

Kahrdori has a point, that by remaining silent, official and appropriate, Garland is ceding the loud ground to Trump and his minions, who will seize every advantage possible without an iota of shame. And there is no doubt the American public, on either end, not only wants to know everything, but expects immediate gratification from the government because they have an 8-second attention span, and the world moves far too fast these days to await the outcome of a real legal proceeding.

But does the public “deserve” it?

Democracy is the theory that the common people know what they want, and deserve to get it good and hard.

–H. L. Mencken

*There was also some debate over whether this was a “raid” or the execution of a search warrant, because “raid” conveyed to some a nefavrious implication that it was FBI run amok rather than acting under court order. I am of the view this is a silly semantic argument, and calling it a raid is accurate and its purpose is to execute a search warrant.

26 thoughts on “The Burden of Transparency

  1. Mike V.

    Professor Alan Dershowitz said the other day “Neutral, objective justice must not only be done: it must be seen to be done.” As long as Garland, Wray, and DOJ keep mum they make Trump a martyr. I saw a poll this morning that 60% of independents think searching Trump’s house was wrong. There is also a Washington Post report quoting a source at Justice listing items seized. There was no mention of classified documents; but it did mention napkins and a dinner menu. If there were hidden classified documents, the DOJ needs to say so, and soon. Otherwise, they’ve guaranteed a red wave this fall and maybe a Trump reelection in 2024.

    I don’t think Trump is this smart necessarily; but published reports say the FBI had an informant in “Trump’s Inner Circle” who told them where classified items would be stored. Could it be Trump played them like a violin? What if some in the Bureau let their dislike of Trump get the better of them and bought a tale hook, line, and sinker? I’d like to think they’re better than that; but what if they weren’t?

    1. SHG Post author

      None of these issues were unforeseeable before the DoJ went down this road. Dersh is just being Dersh, as the that fact that the social media and hyperpolitical public believes it’s entitled to immediate answers to every shit-for-brains notion that pops into their heads is nonsensical. The public wants it now. Is that how it works? If a crowd on the street demands you explain why you busted a perp, does that make it your duty to do so to their satisfaction or cut him loose?

      If the govt fucked up, and it may well have made a terrible miscalculation here, it will eventually be known. And it will be a disaster.

  2. Efrain Munoz

    Whoever ordered this and thought that the public would just agree with them that this is just “routine law enforcement, what’s the big deal?” should be fired. Or even worse “who cares what the American people thinks? they are just emotional and dumb”

    And there’s seems to be backtracking and damage control happening on the part of the DOJ and FBI. Because they now realize that this looks bad

    > “his argument is that Trump should be tried on MSNBC’s Court of Public Opinion rather than in a court of law”

    I think your real fear is that the DOJ and FBI might be tried on the Court of Public Opinion for this. Because for some reason the DOJ and FBI must be protected from the public opinion? Banana republic stuff.

    1. PK

      First off, telling the Host what his “real fear” is almost certainly won’t go well for you. Second, “banana republic” doesn’t mean what you think it means. Please stop using that term until you learn what it means. Last, how do you know what “the American people” think anymore than “whoever ordered this”? Do you usually tell other people what they fear and think?

      Please, please don’t make me regret trying to engage with you. None of this is said with ill intent at all, and to be transparent, I don’t care one way or the other if Trump gets something pinned on him. I try my damnedest not to think about him at all. I’m only slightly interested to see if the DOJ has something or not, that’s it.

      1. Efrain Munoz

        > telling the Host what his “real fear” is almost certainly won’t go well for you

        Oh no, I am shaking.

        > Last, how do you know what “the American people” think anymore than “whoever ordered this”?

        Merrick Garland, the current Attorney General who lost his Supreme Court Justice seat to a guy appointed by former president and most prominent political opposition is the ultimate responsible for this raid . If doesn’t matter if he knew nothing about it nor he denies any involvement. This is an extraordinary precedent that requires an extraordinary justification from the highest levels that so far seems very lacking. The DOJ is however in downplaying/hiding/backtracking mode which is the exact opposite of what to do when something like this is supposed to be just “righteous” . Not good optics.

        The American public can notice these kind of things, from either side. It doesn’t matter how stupid you think they are, Garland has the responsibility to show his face to them. We are not talking about some random street thug who “mishandles documents”

        If you don’t like how the term “Banana Republic” is being used , too bad. Sadly, there’s a chance it might stick nevertheless for obvious reasons .

        1. SHG Post author

          Nope. Not going to take the bait. Plus, I find Efrain an amusing and valuable foil to thoughtful commentary.

          Carry on.

    2. Grant

      I would summarize SHG’s argument as, ‘Despite the sound and fury emanating from Trump, the public doesn’t actually have the right to know right now what is in the warrant.’

  3. Paleo

    Well, the White House immediately claimed that nobody there knew about it in advance. Now it’s being said that Garland is claiming that he didn’t know in advance. It appears to have been ordered by a janitor at the DOJ, and really, how should he be expected to know better.

      1. Paleo

        I can’t find it. There are ten bazillion pixels out there in this stuff and I tried to tailor a search that would get it but failed to do so. But I know I saw it, and I’m neither a Trumpista (Trumpistx?) or a conspiracy addict so I’m not fabricating stuff I didn’t see.

        Unlike the White House that came out and said it publicly, the DOJ thing was “an unnamed senior DOJ official said”.


        1. Charles

          He didn’t know “the date and time” of the “specific” raid is far different than the article’s claim that Merrick Garland “didn’t know about the raid before it happened.”

          CW: “Hey, boss, we are going to raid Trump’s house. I approved it.”
          MG: “OK, just tell me when it’s done.”
          CW: “Do you even twit, bro?”

  4. Elpey P.

    It’s a race to the bottom between agents of chaos. Agents of chaos care more about misdirection and innuendo than transparency. It’s just another loaded fuzzword for them, like “empathy” or “democracy.” Every time someone says “civil war!” one of their angels gets its wings.

  5. C. Dove

    It’s not as if Garland himself was documented kicking in a closet to pry loose a small child from Trump’s clutches.

    Your point about Trump’s game of “you show me yours, I’ll show you mine,” touches on a related issue: Trump’s invocation of the Fifth during his NYS depo. He has time and again proven himself to be the absolute worst client. And yet someone somehow convinced a man whose psyche is all id to STFU, to the extent such a feat is possible.

  6. Hunting Guy

    The Dems will vote for a yellow dog if it has a “D” by the name and R’s will do the same for their candidate. The parties have to swing the independents to win the election and if the poll numbers Mike V. had are correct the FBI just handed the election to Trump.

  7. Mark Dwyer

    Personal AG approval for a warrant application. To be submitted after a subpoena was, it seems, blown off.

    OK by me. Not just legal, but 1000% more “polite” than the way others are dealt with.

  8. Hal

    “It was a great raid. A beautiful raid. People are telling me that it might be the most perfect raid ever.”

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