(Photo by Win McNamee/Getty Images)
About a week ago, Donald Trump reportedly tried to contact Merrick Garland to ask how Trump could “reduce the heat” caused by the execution of a search warrant at Mar-a-Lago.
Gee, let me think about this for a minute.
Oh! I’ve got it: If Trump wanted to “reduce the heat” related to the search warrant, Trump could have issued a statement such as this:
Everyone should calm down about the search warrant. I didn’t actually have any classified documents on the premises at Mar-a-Lago. The search warrant was thus issued by mistake. I have complete confidence in the American judicial system. I won’t be indicted; if indicted, I trust that a plainly nonpolitical jury will find me not guilty. There’s no reason to get worked up about this. Calm down; trust the process. I do.
Of course, for Trump to issue that statement, he would have to actually want to reduce the heat. If Trump had no intention of reducing the heat, and Trump actually thinks it works to his advantage to have FBI agents, and prosecutors, and judges fearing for their lives if they take any action against him, then Trump would continue stirring the pot.
It’s January 6 all over again: If Trump wanted the rioters to leave the Capitol Building, he could have tweeted promptly upon the start of the insurrection:
Stop! I don’t know whether you’re my supporters who are invading the Capitol, but if you are, then you’ve completely misunderstood me. I never intended for today to turn violent. Leave the Capitol Building immediately, and go home. This is not at all what I had in mind!
Trump didn’t do that, because he wanted the violence. Trump likes people who oppose him to worry about the wrath of Trump’s mob.
That’s thinking like a person; allow me now to think like a lawyer: Last week, various media outlets filed a motion for the court to make public the affidavit justifying the Mar-a-Lago search warrant. Trump filed no papers on that issue, took no position in court, and simply acted as a bystander to the proceedings. Why?
Here’s my guess: On the one hand, Trump’s lawyers are intensely curious about the contents of the affidavit. They’d love to see the affidavit, start analyzing it, and start considering whether there are any flaws in the affidavit that would later justify challenging the propriety of the search.
On the other hand, the affidavit presumably contains many pages of material that crap all over Trump. The affidavit presumably describes in detail how the Department of Justice knows that Trump retained government property (or classified government property), the preliminary conversations in which the Department of Justice tried to convince Trump to turn over that property (and Trump’s response to those communications), and which crimes the government is investigating. As a political matter, it probably wouldn’t look very good to have that information made public.
So Trump says that he wants the affidavit to be made public, but he does not actually want that result.
Lastly, if Trump takes no position on whether the affidavit should be released, he arguably avoids waiving his rights to challenge whatever action the court takes. If Trump affirmatively argued that the affidavit should be made public, he couldn’t later object to the harm inflicted on his defense by the affidavit having been made public. If Trump takes no position in court on this issue, Trump can later complain about whatever decision the court makes.
Ultimately, I suspect that the court will release a version of the affidavit redacted almost entirely, so the folks arguing that the affidavit should be made public will be left unsatisfied. And Trump can again complain — but not on the record, in court — that the Department of Justice is hiding something.
As always, time will tell.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
