Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

I want to look at three ways that Attorney General Merrick Garland and DOJ spoke of Trump yesterday using language that acknowledges the possibility he will be indicted.

They were subtle, but consistent references based in DOJ’s policy, one Garland’s DOJ has adhered to inflexibly, about avoiding discussion of any suspect unless they have been charged.

First there was Garland’s statement. It was short, clocking in at fewer than 500 words.

Remarkably, it adhered to DOJ guidelines prohibiting the naming of uncharged individuals (though the motion to unseal did name Trump). Rather than referring to Donald J. Trump by name, the Attorney General referred to him, exclusively, as “the former President,” just as Tom Barrack’s charging documents do.

Garland reminded that everyone is entitled to the presumption of innocence.

All Americans are entitled to the evenhanded application of the law, to due process of the law, and to the presumption of innocence.

But the Attorney General also said that his DOJ is, using the present tense to describe an investigation of the man who used to be President, “applying the law evenly, without fear or favor.”

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.

Applying the law evenly means that if someone steals classified documents and stores it in their basement, they get charged for it. And the invocation of “fear and favor” even as an attack against the Cincinnati FBI office was still being resolved suggests that the actuality of violence will not deter charges, if they are warranted.

After saying that (and rigorously adhering to rules about releasing the name of uncharged persons), Garland suggested that there “will” come a time when he will be able to, under the same rules, provide a more fulsome explanation.

Federal law, longstanding Department rules, and our ethical obligations prevent me from providing further details as to the basis of the search at this time.


This is all I can say right now. More information will be made available in the appropriate way and at the appropriate time.

That description — the appropriate way, the appropriate time — is the way DOJ always refers to speaking through indictments.

There’s a third, less surprising instance of this in the motion to unseal. In a footnote to an argument in the body of the motion in favor of a First Amendment right of access to court filings, it notes there’s no 11th Circuit ruling on whether that right extends to sealed search-warrant affidavits “at the preindictment stage.” (Bart Gellman made this observation yesterday.)

2 In addition, the First Amendment provides a basis for the press and the public’s “right of access to criminal trial proceedings.” Chicago Tribune Co., 263 F.3d at 1310. However, this Circuit has not addressed whether the First Amendment right of access applies to sealed search warrant materials. See, e.g., Bennett v. United States, No. 12-61499-CIV, 2013 WL 3821625, at *3 (S.D. Fla. July 23, 2023) (“this Court has found no Eleventh Circuit decisions addressing whether a First Amendment right of access extends to sealed search-warrant affidavits, particularly at the preindictment stage”).

This is normal language in all fights over unsealing search warrants, one we’re seeing in the fight to unseal the Project Veritas warrants in SDNY, among others. DOJ will rely on it heavily come Monday, when it makes a bid for more time before unsealing the affidavit itself.

But like Garland’s own language, it describes this search as one not to collect information Trump forgot to return, but one conducted at a preindictment phase. That envisions at least the possibility of a time when the calculus about providing more information might be different because the former President would have been indicted.

I’m pointing to this language not as a guarantee that Trump will be indicted. And I don’t think Garland is saying that either. For example, he might also approve the release of information at such time that this investigation is closed.

But particularly the language that Garland used is language that lays the groundwork for the possibility that the former President of the United States might, because DOJ was “applying the law evenly,” be indicted.

92 replies
  1. FLwolverine says:

    I do hope the possibility of an indictment grows into an actual indictment.

    Tangential: I wondered about the word “fulsome”, because I’ve always seen it used to mean “cloyingly excessive”, as in “fulsome praise”. So I looked it up, and indeed there is a second, perfectly legitimate meaning – once obsolete but recently back in use – of “copious, abundant, extensive”.

    I learn all sorts of things reading this blog!

  2. Leu2500 says:

    Yeah, Trump seems to have handed DoJ a much easier/sooner way to prosecute him than the complex Jan6 case.

    And the penalties under the Espionage Act seem plenty stiff. Especially for someone in their mid 70s who must have health issues.

    • BobCon says:

      There was a flurry of calls in late 2020/early 2021 for Biden to pardon Trump in the name of healing divisions, as though Biden would somehow be responsible for Trump’s divisiveness.

      Look for another flurry — the Chicago Tribune and Richmond Observer have recently published pieces calling for a pardon.

      Biden pledged in 2020 he would not, and he’s been clear he won’t interfere with the administration of justice. But that won’t stop people from bemoaning the idea of a man in his 70s going to prison, and they’ll puff up (often in bad faith) the idea that there is a scenario where Trump admits guilt and helps unify the country and deserves a pardon.

      • Rugger9 says:

        No doubt you’re right the RWNM will agitate for pardons but the following argues against any pardons:

        1. Nixon’s pardon only emboldened the GOP to keep trying and solved nothing.
        2. Individual-1’s crimes are far worse and far more extensive than Nixon’s without any compensating good acts (like EPA) which would indicate any interest in America’s interests.
        3. Individual-1 has expressed zero remorse and has done everything possible to interfere and obstruct the investigation including attacking the Capitol.

        OT – Colbert had a new nickname for Individual-1: Velveeta Voldemort.

        • Sandy says:

          Additionally, not treating secessionists as the traitors they were allowed the whole Lost Cause Myth to grow, eventually even allowing traitors to be honored in government buildings and military bases. It allowed southerners to never wrestle with the fact that they had fought a war to perpetuate human enslavement, and there is a direct line from that huge mistake to today. These people fervently believe a fake history in which they have a right to both glory and grievance.

          Translating that into the Lost Election/Big Lie myth was very easy and potent.

        • Purple Martin says:

          Andrew, yes, every citizen of the USA who took up arms for the CSA committed Constitutionally-defined treason against their country…

          US Constitution, Article III, Section 3, Clause 1:
          Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

          …and were covered by Abraham Lincoln’s blanket pardon for that treason (an act of mercy that, to me, made sense for the vast majority of their rank-and-file soldiers, though not for the CSA’s primary government and military leaders). But a pardon does not erase the treason for which the pardon was granted, just forgives it.

          But why do you ask? Not even the “…adhering to their Enemies, giving them Aid and Comfort” part would apply to Trump actions of which we are currently aware (actually, no theoretical Trump actions because, by historical and current interpretations, ‘aid-and-comfort’ treason is possible only when the U.S. is in a declared-by-congress state of war).

          People throw around ‘treason’ far too easily.

        • Sal says:

          Sandy…..that was succinct and perfect….thank you.

          [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Sal,” “Sally,” or “Salvatore.” Thanks. /~Rayne]

        • Frank Miller says:

          As a lifelong student of the Civil War, you are absolutely correct. This cannot be emphasized enough and has been neglected for far too long. With a few notable exceptions, most Confederate generals and many lower ranking officers fully deserved to have been charged with and convicted of treason and subjected to the appropriate penalties, especially former US Colonel R.E. He alone was responsible for scores, if hundreds of thousands of additional, unnecessary deaths for continuing to fight long after it was obvious that the South had zero chance of prevailing in its effort to secede.

      • Ruthie says:

        I can’t imagine that a former president would be sent to even the cushiest federal prison; if convicted, I suspect he’d be sentenced to house arrest, or similar.

        • Peterr says:

          I disagree.

          I think they will simply update the John Mitchell suite at the Federal Prison Camp in Montgomery AL (on the Maxwell Air Force Base) from “former Attorney General” level to a more appropriate “former President” level.

        • P J Evans says:

          Just replace the stuff that needs replacing. The former guy isn’t worth better than “former AG” level housing.

        • Lester Noyes says:

          Howzabout he walks on his knees from Trump Tower, NY to Merdalago, stopping once an hour to proclaim out loud that he lost the election, he lied, he cheated everyone at everything – including golf – he stole, he… OR prison. His choice.

        • Frank Miller says:

          Permanent exile on Diego Garcia. No lnternet or other communication with the outside world except weekly phone conversations with immediate family. No TV, or golf. Other than that, he could have unlimited access to the base library, (books only) enlisted personnel chow and free walking around the island. Within a few weeks he’d do a version of the Bruce Dern character’s final act in “Coming Home.”

      • Randy Baker says:

        I think the post-presidency part is a two edged sword. It certainly reduces defenses Trump otherwise might raise. On the other hand, if Trump is not tried for his criminal usage of the presidency to attack American democracy, it simply adds encouragement to future would be autocrats to do the same. And, it is likely such folks will not be as undisciplined as Trump, and therefore more likely to succeed.

        • bmaz says:

          So, you think the justice system should be used for political purposes, especially ones you care about?

        • Steve in MA says:

          In my admittedly non-lawyer lack of any expertise, I have believed that punishment for a crime is at least in part to deter future similar criminal behavior. As such, bringing Trump to justice not as a political step but one guided by the facts and evidence, and if convicted sentenced in an appropriate manner seems quite justified. Though not perfect, deterrence is often cited as a suitable reason for criminal punishment. But as I stated, I am not a lawyer.

        • timbo says:

          Indeed, the reason there are written laws is to be a deterrent to lawbreaking. If those laws are not enforced then the original purpose of writing down those laws becomes shallower and shallower over time.

        • Randy Baker says:

          I think the justice system should be used precisely the way Merrick Garland says it should be used, to ensure that no one is above-the law. Failure to prosecute crimes by sitting presidents, means sitting presidents are above the law.

        • bmaz says:

          That’s swell. Who should decide that though? Public clamor on the internet or actual normal DOJ charging criteria?

        • Randy Baker says:

          I’m with you! I want those normal DOJ criteria applied:
          Department of Justice: 9-27.000 – Principles Of Federal Prosecution

          9-27.230 – Initiating and Declining Charges—Substantial Federal Interest
          In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

          Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
          The nature and seriousness of the offense;
          The deterrent effect of prosecution;
          The person’s culpability in connection with the offense;
          The person’s history with respect to criminal activity;
          The person’s willingness to cooperate in the investigation or prosecution of others;
          The person’s personal circumstances;
          The interests of any victims; and
          The probable sentence or other consequences if the person is convicted.

      • Rugger9 says:

        We’d also have to look at the enablers. I see a report in DKos regarding how the POGO group had acquired a draft of the IG report which shows that the DHS IG (Cuffari) had spiked an opportunity to notify Congress about the wiping process, delaying notification for weeks.

        Much as I can sympathize POTUS’ desire for IG independence, this is another clear example of Cuffari using his office for political purposes which is supposed to be a termination offense. It might even be worth charges if it is shown that Cuffari directed the obstruction of justice.

        • Ginevra diBenci says:

          Bad as he is, Cuffari is just the tip of the iceberg when it comes to enablers. Dealing with self-deified folks like Flynn (whose followers are terrifyingly rabid and willfully ignorant) who played, I suspect, far more central roles in the actual sedition must come first.

  3. jeco says:

    We’re too far down the road for trump to use the Steve Martin “I forgot” defense. I forgot to respond to the subpoena for classified documents that I forgot were in my basement. The fact that he may not have turned them over to foreign adversaries yet doesn’t exactly make it a , no harm, no foul, situation.

    • timbo says:

      Basically, it there is no strong chain of custody for any of those documents, our country has to assume that any secrets contained have been compromised. This is a huge blow basically to purpose behind our counter-intelligence efforts, whether any particular secret in those documents was compromised. That’s why the handling of marked secret documents is important and why any ex-President worth their salt should be very cautious with those documents, not just throw’em in the back of a pickup and drive’em to Miami…

  4. ThingWithFeathers says:

    Thank you Dr. Wheeler and tireless moderators for this site and your analyses here. Especially important now as things seem to be coming to a head. To other readers like me who rely on this site to stay informed and stay focused, please consider a donation to support this valuable work.

    • BloggeristaBabe says:

      100% ⬆️

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve commented previously as “Diane.” Your new username is preferred for its differentiation. Thanks. /~Rayne]

  5. Kalkaino says:

    A philosophical question here, a call for “‘speculatin’ on a hypothetical” as (O’Doole says in Miller’s Crossing): What would be the legal/ethical implications of asking Trump the question, “Which secrets did you sell, and to whom,” at Gitmo, with assistance from chamois towel and a garden hose? If ever there were a case for it, this might be that.

  6. Molly Pitcher says:

    Late last night Meidas Touch posted on IG the headline for an article from March of 2019 titled “Trump Admin Weirdly Eager to Hand the Saudis Nuclear Secrets”, with pictures of MBS and Jared.

    I am traveling with limited and inconsistent access to the internet, so I apologize, I haven’t looked up this article yet. But if there is nuclear information in what was removed from MAL, it would intriguingly fit with Jared’s little $2B gift from the Saudi’s and the new golf league

  7. Badger Robert says:

    I think DofJ would like to have Trump strategically isolated, when all his conspirators are also indicted.
    It would make sense to indict all of them simultaneously so that the discovery schedules are the same.
    The odds of an indictment of Trump increased. We still don’t know the odds.

  8. Frank Wilhoit says:

    Policy (as far as the niceties of naming names versus using any kind of metonymy) is over anyone’s head, but I think it is tactically wrong to refer to Trump as “former President”. At this time, he is a private citizen, who is, in principle, on an equal footing with any other. I think it is therefore also tactically wrong to apply the “90-day” rule of thumb to him. His name appears on no ballot.

    The fact that he previously held office comes to opportunities to commit crimes, not only then but now and going forward. If there is a justification for referring to him by a courtesy title, in this context, that would be it.

    Meanwhile I am waiting for anyone to point out that the loophole with respect to the handling of sensitive information must be closed. No one can be permitted to run for office without passing a full security screen for the most sensitive level of information to which they may be exposed, by the definition of that office’s responsibilities.

    (Throw in life underwriting and there goes the gerontocracy, as well.)

    • Rayne says:

      The problem is the Constitution, which places few limits apart from age and citizenship on candidates for president. We’d need an amendment to address security shortcomings, and a successful amendment requires one of these processes:

      — two-thirds vote in both houses of the U.S. Congress, ratified by three-fourths of the state legislatures
      — two-thirds vote in both houses of U.S. Congress, ratified by ratification conventions in three-fourths of the states
      — national constitutional convention called by two-thirds of the state legislatures, ratified by three-fourths of the state legislatures
      — national convention called by two-thirds of the state legislatures, ratified by ratification conventions in three-fourths of the states

      We could start with the Democratic Party adding it to their platform at state and national level, and that amendment should also include not only security clearance but submission of 10 years’ tax returns to predict possible conflicts of interest and emolument challenges. Should also require liquidation of personal businesses and investments sent to a blind trust upon inauguration.

      We should also ask the House January 6 Committee to ensure this is included in its eventual recommendations because Trump’s efforts to stay in office may have been intended to assure access to US classified materials.

      • Purple Martin says:

        A start, short of the Amendment process, would be for Congress to extend the current legislatively-implemented provisions for classification, control and management of DoE nuclear-related information, to TS/SAP/SAR National Defense Information (NDI). “Special Access Program” & “Special Access Required” are labels of compartmented code-name programs under the umbrella of Sensitive Compartmented Information or SCI.

        Specifically, Congress can rescind the the ability of the President alone to declassify such information without going through a process involving the applicable NDI SCI Original Classification Authority. Again, as is already the case for DoE nuclear classifications.

        Congress gave the President that authority; Congress can take it away. One more thing on the to-do list when we finally end the filibuster (something I’ve supported since the 1990s, regardless of whatever party controls the Senate at the time).

      • bmaz says:

        Lol, there will not likely be another Amendment in our lifetimes. And the J6 Committee is laughably irrelevant to the discussion of one.

        • gmoke says:

          19 states have called for an Article V Constitutional Convention. 34 are needed. Enough states have resolutions on deck to add up to more than 34 now.

          Don’t count the chickens yet no matter how much we’d like to.

    • BrokenPromises says:

      Former President? Christina Bobb, who used to be a TV host on the far right OAN Network in an interview continually referred to *rump as the President as though he were still in office while alleging that he could declassify confidential documents in phrases that implied he could do it now. *rump world is nuts all the way down.

      • earlofhuntingdon says:

        The MSM also routinely refers to Trump (see how easy that was?) as “the president,” then ornately corrects itself to refer to him as “the former president.” It’s pathetic.

      • bmaz says:

        Does it make you feels better to use junk like *rump”? What in the world does that accomplish? JFC. This type of petty garbage just amazes me.

  9. Bay State Librul says:

    If he is not indicted, I’m moving to Ireland — where my Murphy and Walsh grandparents originally came from (County Cork, I believe)

  10. Peterr says:

    Garland’s whole statement had this “We’re getting to that, and we’ll get there on my timeline, not Trump’s or anyone else’s” vibe.

    By the end, the question I was asking myself was not “Will Trump be indicted?” but “What will Trump be indicted for?”

    • Ruthie says:

      from Garland: “More information will be made available in the appropriate way and at the appropriate time.”

      Marcy suggested that Garland could release information when the investigation is over even if no indictment is forthcoming, but wouldn’t he then be repeating Comey’s mistake, albeit without (presumably) the imminent election angle? That sentence above almost implies an indictment is coming, IMO.

      • Rayne says:

        Trump is not on the mid-term ballot. There may be consideration made if the situation has implications for subjects/targets of any conspiracy/ies not disclosed who are also candidates for election/re-election.

        • Ruthie says:

          I wasn’t referring to the upcoming election. As far as I know, there’s no indication that an indictment is imminent.

          I noted that the election issue wouldn’t likely be a factor, while leaving open the possibility that a 2024 run for president might make it an issue in the future. At least, that’s what I meant.

      • Riktol says:

        I am not a lawyer so I might be wrong about this (please be gentle).
        Prior to the Sussman trial there was some issue where Durham pointedly would not tell Rodney Joffe whether he was still under investigation for all that business (in order to discourage him from testifying). So on that basis, I gather that at some point it is normal DOJ policy to tell someone they aren’t under investigation.
        This means your last sentence is wrong, because there are still 2 appropriate options, either to indict Trump, or tell him that he’s not under investigation. Garland has said he’ll do so at the appropriate time, so on that basis he won’t be doing so close to an election where Trump is running.

  11. Cosmo Le Cat says:

    According to Wikipedia, in 2020 The Hill was the largest independent political news site in the United States. Early this morning I checked The Hill website on my phone. I could not find anything regarding nuclear documents. I just checked again. The biggest headline, “Astonished Democrats…,” regards the inflation bill. The next two smaller headlines are about Garland’s speech and “Biden’s new challenge is FBI’s Trump search,” the latter being a trash-bin article IMHO. Scrolling down, next are Trump calling for release of search warrant and lawmakers heading to Ukraine.

    Yet further, there’s finally an article referencing the most explosive (pun intended) story of the 21st century, “Trump pushes back on report FBI sought nuclear weapons.”

    Astute readers of EW will note there’s been absolutely no assertion that nuclear weapons were hidden in Mar-a-Lago.

    It’s a very short article with only 3 sentences mentioning nuclear weapons, two of which refer to Trump calling it a hoax. Scrolling down further on the main page, past a headline on Salman Rushdie, I finally saw a headline about the Washington Post article.

  12. BrokenPromises says:

    “Applying the law evenly means that if someone steals classified documents and stores it in their basement, they get charged for it.”
    It surprised me that I laughed out loud at this chickens come from eggs level of obviousness. Stealing classified documents especially ones on nuclear weapons is a first level broken promise. This is the moment where Republicans are compelled to act the way they did when they heard Nixon’s tapes. Yet here we are with a first world order of insane lying and attacks on the rule of law and democracy. God help us all. (I don’t even believe in “God”. I’m with Lennon – it’s us.
    (grammatical note. It should be them related to documents in the plural.)

  13. Riktol says:

    If Trump gets indicted for mishandling classified documents alone, would DOJ have to provide him discovery (brady material?) related to their investigation of the various spokes of Jan 6th?

    Is he likely to get charged in Florida because of where he stored the documents, or DC because that’s where they belong?

    Relatedly, if they charged him for mishandling classified documents initially, and later they wanted to bring charges related to Jan 6th, how would that affect things? For Michael Avenatti (as far as I understand, it’s confusing) he was charged once per state, but the charges were split into 2 separate trials. Is that a likely way of going about it (assuming that they get to indictment stage in both areas)?

  14. Cosmo Le Cat says:

    The FBI recovered 11 sets of classified documents from its search of Mar-a-Lago, including some materials marked as “top secret/SCI,” The Wall Street Journal reported. 20 boxes, one set of “top secret/SCI” documents, the highest level of classification, four sets of “top secret” documents, three sets of “secret” documents and three sets of “confidential” documents.

    Includes a document about pardoning Roger Stone.

  15. JamesJoyce says:

    Espionage Act…


    “An unsealed FBI raid warrant revealed on August 12, 2022 that 45th President of the United States Donald Trump was under investigation for possible violations of the Espionage Act after the FBI had raided his Mar-A-Lago home.[129]”

    Illegal possession and the law?

  16. Max404 says:

    The first of the tests in the Principles Of Federal Prosecution is “The nature and seriousness of the offense.”

    I find it inconceivable that given sufficient evidence the DOJ will not indict Trump. The very preamble to the Constitution lays out the why of it:

    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    Trump was in possession of documents classified TS/SCI. The documents were subpoenaed; no answer. The FBI visited and asked in person, give them back. No answer. I cannot imagine any effective defense. If Trump is not indicted under the Espionage act, for having committed a crime which potentially seriously weakens the national defense, the executive branch will have failed in its role to provide for the common defense. I cannot believe that the DOJ will be party to that failure, in this moment in history.

    The consequences of that failure would be huge. This must be obvious to all the decision makers in the DOJ.

    Why did Trump do it ? Beyond the “rational” reasons of compromat-collection or secret-selling, there is also the child-Trump crying out “stop me, stop me!” Who cares. In my opinion Garland and his colleagues will not walk away from this.

    Infinite thanks to EW and the brilliant co-posters and commenters for their work giving clarity to the moment.

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