Public reactions to Friday’s release of the affidavit underlying the Mar-a-Lago search warrant, heavily redacted, were largely predictable. Partial disclosure played into Trump’s strategy to demand the entire document be unsealed, fully expecting it would not be. His supporters’ criticism of the search itself continued, although some saw signs it was more muted than before. Trump’s opponents, by contrast, saw criminal prosecutions looming.
Trump’s “cover-up” claims are disingenuous. Revealing more of the affidavit would hurt, as did Friday’s disclosures, but Trump certainly knows that compromising the investigation itself may be his best hope to avoid prosecution. In fact, significant information remains unknown; a May National Archives letter to Trump’s counsel provided more background than the affidavit. Unsurprisingly, Trump has opened a new front, seeking a special master and other relief.
However, Trump’s critics still lack an adequate basis to claim their dreams have become facts. Overhyping their case (among other things) earlier cost them two impeachment defeats, thereby empowering and emboldening Trump, instead of restraining and deterring him. Overzealously making more of the evidence than it can now bear to demand prosecution does Trump’s work for him, and risks a third defeat.
The Mar-a-Lago classified materials require careful analysis to assess accurately what they contain. Consider just a few examples of the work ahead. Each paragraph of a document containing classified information is typically marked at the classification level applicable to that paragraph. So, one paragraph may be marked “(U)” for unclassified, followed by an “(S)” (secret) paragraph, a couple of “(C)” (confidential) paragraphs and then one “(TS/SCI)” (top secret/sensitive compartmented information) paragraph.
In such a case, the entire document would be classified TS/SCI. Theoretically, there could be a 100-paragraph document, with 99 unclassified paragraphs and one TS/SCI paragraph: The entire document would be marked TS/SCI. (Of course, there could also be documents with 100 TS/SCI paragraphs.) It in no way diminishes the sensitivity of TS/SCI information to say that, as of now, we simply do not know how much is involved or potentially compromised.
Nor can we tell whether Mar-a-Lago documents, even those marked TS/SCI, today remain classified at those levels. Time, and the bureaucracy, marches on. Even ignoring the absurd declassification claims Trump’s supporters make, some information becomes less sensitive; some leaks to the media; and some is declassified for the government’s own reasons. All Mar-a-Lago classified documents are now reportedly being reviewed with these and related considerations in mind.
Once again, these caveats do not ignore or minimize the potential harm to the United States, but they do counsel that, at this point, we simply lack sufficient information to make an informed judgment regarding how much national-security damage was done.
Nor are these considerations a defense of Trump’s conduct. His disdain for intelligence equities, his cavalier disregard for the sensitivity of classified information and the deeply idiosyncratic way in which he “governed,” including the chaos of his White House departure, justify no defense. In a normal case, conducted discretely, the Justice Department could make a prosecutorial decision without having its very institutional legitimacy and integrity assaulted. The prudent course of waiting for all the facts to be assembled would make sense.
But with Donald Trump, there is no such luxury. While his lawyers are stumbling over themselves trying to mount a defense, his political advocates need only rhetoric to discredit the seemingly ponderous, opaque Justice Department process. In such circumstances, appealing to regular order, institutional legitimacy and the personal integrity of key decisionmakers, however correct, is not sufficient. Trump is attacking precisely these characteristics.
And Justice is hardly guilt-free. FBI Director James Comey’s public performance closing Hillary Clinton’s email case in July 2016, was utterly unjustified and unprecedented, as was his October letter to Congress proclaiming the case reopened. Had he not made the first mistake, he need not have made the second. Indeed, given this misconduct, Trump would have been entirely justified firing Comey on Jan. 20, 2017. Moreover, the Department’s Hunter Biden investigation drags on unresolved, energizing those claiming a Justice “double standard.”
Nonetheless, contrary to widespread speculation, the Mar-a-Lago search still seems limited to the documents issue, and is not, apparently, a cover to obtain information relating to Jan. 6. Thus, whatever Justice may be thinking about Trump’s potential criminal liability for that sad day is, at least for now, beside the point.
Obviously, Trump is waging both a political and a legal battle, hoping the former will disrupt the latter. Justice is foreordained to lose the political debate by adhering to traditional practice. Losing honorably, however, is neither a desirable nor inevitable outcome. What should Attorney General Merrick Garland and others properly do in the department’s defense?
First, speed up both the Trump and Hunter Biden investigations so that prosecution/no prosecution decisions can be made more expeditiously than in the normal course. Giving more priority to these matters in no way compromises the integrity of the investigative or prosecutorial processes, nor does it tilt toward one final substantive decision over another. But Justice needs to act instead of remaining a stationary target.
Second, Garland should confront Comey’s misdeeds, and definitively repudiate his public posturing in the Clinton case. By owning up to its prior mistakes, Justice can blunt the “double standards” line of attack. While he’s at it, Garland should defend Robert Mueller’s conclusions that there was insufficient evidence of Russian collusion to prosecute Trump on those grounds.
Third, members of Congress should embrace reported “Gang of Eight” efforts to learn more about the Mar-a-Lago documents. Leaving this to congressional committees is insufficient. Top Republican leaders must step forward. If Trump has in fact caused profound damage, this is an opportunity for Republicans to defend our national-security and rule-of-law values unambiguously, rather than cede these grounds to his depredations.
None of this is a cure-all. But defaulting to business-as-usual approaches while Trump and his supporters attack foundational law enforcement institutions and principles is worse.
John Bolton was national security adviser to President Trump from 2018 to 2019, U.S. ambassador to the United Nations from 2005 to 2006 and held senior State Department posts in 2001-2005 and 1985-1989. His most recent book is “The Room Where It Happened” (2020). He is the founder of John Bolton Super PAC, a political action committee supporting candidates who believe in a strong U.S. foreign policy.