Following the death of Supreme Court Justice Antonin Scalia in February 2016, President Obama nominated Merrick Garland to fill the vacancy. Then–Senate Majority Leader Mitch McConnell blocked the nomination, arguing that the Senate should not consider a Supreme Court nominee during a presidential election year. He maintained that the decision should be left to the next president, allowing “the American people to decide.”
Perhaps the only saving grace of Garland’s tenure as attorney general is that it made unmistakably clear how dangerous a lifetime appointment to the Court would have been. Thank you, Sen. McConnell.
Although Obama and his “wingman” Attorney General Eric Holder began the process of weaponizing the Justice Department, Garland will be most remembered for finishing the job, leaving Americans’ trust in a once-revered institution in tatters.
One of Garland’s most egregious decisions was his personal approval of the warrant request for the FBI’s infamous raid on then-former President Donald Trump’s Mar-a-Lago residence in August 2022.
Several days after the raid, Garland made a brief statement to reporters in defense of his decision. He said, “The search warrant was authorized by a federal court upon the required finding of probable cause.”
He admitted he had “personally approved the decision to seek a search warrant in this matter” and claimed “the department does not take such a decision lightly.”
What followed was one of the most brazenly insincere and dishonest defenses of bad behavior ever delivered by a public servant [Emphasis added.]:
Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy. Upholding the rule of law means applying the law evenly, without fear or favor. Under my watch, that is precisely what the Justice Department is doing.All Americans are entitled to the even handed application of the law, to due process of the law, and to the presumption of innocence. Much of our work is by necessity conducted out of the public eye. We do that to protect the constitutional rights of all Americans and to protect the integrity of our investigations.
On Tuesday, Sen. Chuck Grassley (R-IA), the Chairman of the Senate Judiciary Committee, revealed he had received “shocking” new documents from the DOJ and the FBI “showing [the] FBI DID NOT BELIEVE IT HAD PROBABLE CAUSE to raid Pres Trump’s Mar-a-Lago home but Biden DOJ pushed for it anyway. Based on the records Mar-a-Lago raid was a miscarriage of justice.”
The documents can be viewed in full here. And indeed, they show that the FBI struggled to find probable cause for the raid.
While most email senders and recipients are redacted, the documents nonetheless reveal that the FBI was searching for a plausible pretext to search the residence. In one email, an FBI official expressed his preference to wait until Trump had left the property for the season before carrying out the raid.
With Trump’s team having returned “a trove” of documents on June 3, 2022, and witness interviews providing no clarity on whether any specific documents remained outstanding, agents expressed frustration over how to establish probable cause for a search.
In a July 13, 2022, email, an agent asked, “What is the guidance for continuing to work on this document without any new information?”
An hour later, an agent from the FBI’s Washington Field Office wrote, “We haven’t generated any new facts, but keep being given draft after draft after draft. Absent a witness coming forward with recent information about classified on site, at what point is it fair to table this?”
Another agent recounted six “counterproductive” weeks spent trying to justify a search warrant, before the DOJ stepped in and overruled them, as one top official bluntly remarked that he “frankly [didn’t] give a damn about the optics.”
A July 20 memo from a redacted sender at the FBI’s Washington Field Office began, “As everyone is tracking, WFO does not believe (and has articulated to DOJ CES), that we have established probable cause for the search warrant for classified records at Mar-a-Lago. DOJ has opined that they do have probable cause, requesting a wide scope including residence, office, storage space. …”
Throughout July 2022, versions of a search warrant were frantically drafted and sent back and forth between FBI and DOJ officials.
On August 1, one week before the raid, an email from Anthony Riedlinger, special agent in charge of counterintelligence at the Washington field office, told George Toscas, the deputy assistant attorney general in the DOJ’s National Security Division, “WFO would like to propose a second path.”
It appears that Riedlinger was overruled by DOJ officials. Despite his objections and those of other FBI officials, Garland signed off on the search warrant just three day later.
According to the emails, the FBI wanted the search warrant to be executed “in a professional, low key manner … mindful of the optics of the search.”
As we know, the raid was a spectacle.
Former special counsel Jack Smith used material gleaned from the search as the basis of his classified document case against Trump, a sham case that was mercifully dismissed by U.S. District Court Judge for the Southern District of Florida Aileen Cannon.
Smith will testify under oath before the House Judiciary Committee on Wednesday. It will be fun to watch him squirm.
But the committee ultimately needs to hear directly from Garland himself. In light of Grassley’s revelations, a subpoena now appears not only justified, but necessary — and there is little doubt it will be forthcoming.
Elizabeth writes commentary for Legal Insurrection and The Washington Examiner. She is an academy fellow at The Heritage Foundation. Please follow Elizabeth on X or LinkedIn.
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