Why The Justice Department Can’t Say More About The Mar-A-Lago Raid

And why Donald Trump can.

The calls for transparency came quickly after Monday’s FBI raid of Mar-A-Lago, the home and social club of former President Donald Trump in Palm Beach, Florida.

Trump supporters in elected office demanded explanations from the Justice Department for the unprecedented search of the home of a former president ― and potential electoral rival for the sitting president.

“Why are the FBI and DOJ refusing to comment after raiding the private home of a former U.S. President?” Sen. Marsha Blackburn (R-Tenn.), a staunch Trump ally, wrote on Twitter. “The American people demand transparency — they do not want another political witch hunt of President Trump.”

Even Republicans who opposed Trump wanted more details ― why was Mar-A-Lago raided? And why was it raided now? ― out of the agency, often arguing the unprecedented move required the Justice Department to put aside standard procedure.

“These are unprecedented circumstances that require unprecedented transparency and accountability from our government institutions,” said Maryland GOP Gov. Larry Hogan, a frequent critic of Trump who is considering a 2024 presidential bid. “The American people deserve to know all the facts as soon as possible, and I call on the Biden administration to release ― at a minimum ― the documents authorizing the FBI search.”

The Justice Department, however, is sticking to its strict rules against discussing ongoing investigations, amid recent experiences seeing how violations of those rules can quickly create unintended consequences. The calls for transparency are likely to go unanswered, at least in the short-term.

But there is someone who is free to provide more information: Trump. While Trump was not at Mar-A-Lago during the raid, FBI agents would have supplied one of his lawyers and employees with both a search warrant outlining the justification for the search and an inventory of everything agents ultimately seized. The former president is free to release those documents.

Some details have leaked out, both from Trump and from unnamed sources with knowledge of the investigation. Trump said the FBI broke into his safe, for instance, and multiple news outlets have reported the search dealt with an investigation into Trump’s decision to remove 15 boxes of White House documents, some of them classified, and bring them to Mar-A-Lago rather than with the Justice Department’s investigation into the Jan. 6 insurrection.

Tim Purdon, a former U.S. Attorney for North Dakota during the Obama administration, explained the Justice Department’s relative silence this way: Imagine the opposite scenario.

“Let’s say Merrick Garland had appeared at a press conference at the gates of Mar-A-Lago and told the American people all of the evidence that made up the probable cause warrant in this case,” Purdon said. “Many, many people would say ‘How dare the AG, the Justice Department go on and say they have this evidence without filing an indictment? They’re taking away the defendant’s right to a fair trial.’”

Purdon’s imagined reaction does reflect the bad faith in which many Republican elected officials were certain to deploy if the Justice Department moved against Trump. But what about Trump opponents like Hogan, who feel an unprecedented step requires unprecedented disclosures and explanations? Purdon says they likely won’t have to wait for long.

“This seems to be the sort of investigatory, law enforcement action you take not at the beginning of an investigation, but very close to the end of an investigation,” Purdon said. “So who’s to say that the government is not going to speak and be transparent sometime in the short term here?”

And recent history shows the pratfalls of breaking from that policy: Former FBI Director James Comey, trying to maintain his independence from the Justice Department under then-President Barack Obama, repeatedly spoke out regarding the agency’s investigation into the Democratic presidential nominee Hillary Clinton. The famous “Comey letter,” released weeks before the 2016 election, may have tipped the election to Trump.

After Trump fired Comey, now-FBI Director Christopher Wray said at his confirmation hearing he would not release derogatory information about suspects, satisfying both Democrats angry at the FBI’s treatment of Clinton and Republicans frustrated with leaks regarding the Trump campaign’s contacts with Russia.

In the meantime, however, some Democrats ― who did not want to openly comment on an investigation they know little about ― are fretting that the silence from the FBI and Justice Department could be filled with misinformation generated by Trump and his allies. That’s part of the reason why some Democrats have begun calling on Trump to release the warrant and inventory from the search, a step he’s so far declined to take.

“Donald Trump has a copy of the search warrant. He’d show us the warrant if he were so wronged,” Rep. Eric Swalwell (D-Calif.) wrote on Twitter. “Show it or shut it.”

Whenever the public does learn more about the search ― both its cause and results ― Purdon is confident the Justice Department made the right move.

“The top folks at DOJ are not exactly riverboat gamblers,” he said. “This has to be the most scrutinized search warrant in the history of the Justice Department.”

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