In Alice’s Wonderland, or, rather, its Gilead equivalent, a bluff is not a bluff

benfell

See updates through August 14, 2022, at end of post.

Our story today begins with a search. Conducted by the Federal Bureau of Investigation on Donald Trump’s Mar-a-Lago estate,[1] apparently for nuclear secrets that should have been turned over to the National Archives and Records Administration when Trump left office,[2] it has provoked the entirely predictable white Christian nationalist outrage[3] and reunified the Republican Party around Trump.[4]

Attorney General Merrick Garland has responded to the outrage by calling for the search warrant to be unsealed, condemning threats of violence against the Federal Bureau of Investigation, and saying that he personally authorized the request for a warrant.[5] Some in the mainstream media are treating this with a poker analogy, suggesting that Garland has ‘called’ Trump’s ‘bluff.’[6]

Republicans seem to contend that treating Trump like any other American is by definition illegitimate. That’s what lies behind the protestations that something tyrannical is going on, that as Florida Republican senator Rick Scott put it, “This is 3rd World country stuff.”

But now that [Merrick] Garland has asked a court to unseal the warrant that led to the search, he is calling the bluff of [Donald] Trump and Republicans. If the court brings transparency to the warrant, he is essentially saying, you can see for yourself what we’re after — and whether we’re the jackbooted federal thugs you say we are.[7]

In this analogy, Trump has in turn ‘raised,’ acquiescing to the release of the warrant to search his Mar-a-Lago property and asking that the seized documents themselves be released.[8] But this isn’t poker. If indeed there were nuclear secrets among the documents seized,[9] the conspiracy theorists, including Trump himself, will undoubtedly double down on claims that the Federal Bureau of Investigation “planted” evidence. And, as it is unlikely that any nuclear secrets would now be released, these ‘theorists’ will also likely claim that the documents were not in fact so sensitive.

Finally, that these ‘theorists’ also claim that Trump is the legitimate president leads to a denial that he was not entitled to these documents.

That a court is unlikely to accept the ‘planted evidence’ claim and indeed that Mar-a-Lago security cameras would likely catch any attempt to plant evidence[10] can be counted on to be every bit as effective in refuting these claims as have been the multitude of court rejections of “stolen election” claims. Which is to say, they may persuade a majority of non-conspiratorially-oriented folks, but will utterly fail to do so among most Republicans. This search is simply more grist for the conspiracy theory mill.

The epistemological challenge here is the same as for other conservative ways of knowing: That they are unmoored in actual evidence[11] means that evidence cannot suffice to rebut them. Which is to say that Trump’s bluff isn’t actually a bluff. Among his base, he wins either way.

A better analogy might be Lewis Carroll’s seemingly hallucinogenically-inspired Alice in Wonderland except that the threat of violence here goes far beyond a few fictional characters’ heads.[12]

Update, August 12, 2022:

FBI agents who searched former President Donald Trump’s Mar-a-Lago home Monday removed 11 sets of classified documents, including some marked as top secret and meant to be only available in special government facilities, according to documents reviewed by The Wall Street Journal.

The Federal Bureau of Investigation agents took around 20 boxes of items, binders of photos, a handwritten note and the executive grant of clemency for Mr. Trump’s ally Roger Stone, a list of items removed from the property shows. Also included in the list was information about the “President of France,” according to the three-page list. The list is contained in a seven-page document that also includes the warrant to search the premises which was granted by a federal magistrate judge in Florida.[13]

While documents with varying levels of classification were seized, we do not know the contents of the documents,[14] including whether nuclear secrets were included.[15]

Update #2, August 12, 2022:

The warrant [for the search at Mar-a-Lago] shows federal law enforcement was investigating [Donald] Trump for removal or destruction of records, obstruction of justice and violating the Espionage Act — which can encompass crimes beyond spying, such as the refusal to return national security documents upon request. Conviction under the statutes can result in imprisonment or fines.[16]

Update, August 14, 2022: In a previous blog post, I expressed doubt that, due to uncertainties as to his state of mind, Donald Trump could be shown beyond a reasonable doubt to have committed seditious conspiracy for his role in the January 6 coup attempt.[17] Renato Mariotti argues that that defense would be unlikely to succeed against charges flowing from the search of Trump’s residence at Mar-a-Lago.[18]

[The Department of Justice’s] repeated requests and demands to [Donald] Trump and his team served the same purpose [of demonstrating willful conduct]. It will be difficult for Trump to claim that he did not realize that the records he kept were national security secrets that rightfully belonged to the government, given that the government repeatedly told him so and demanded their return. Moreover, Trump was present when the DOJ visited Mar-a-Lago to meet with his lawyers and demand the records.[19]

It also appears that Trump would not be able to evade a conviction by claiming he had declassified all documents at Mar-a-Lago and that “one of Trump’s lawyers signed a written statement falsely asserting that ‘all material marked as classified’ had been returned to the government” could be the basis of a charge of obstruction of justice.[20]

Mariotti thinks the Department of Justice has a strong case to bring against Trump should it choose to do so. That doesn’t mean that it will and Mariotti writes that he “would not be surprised if DOJ refuses to pursue charges, regardless of their strength, in the absence of a ‘plus factor’ like obstruction.” Trump would apparently need to waive attorney-client privilege to blame the lawyer for that misrepresentation and the lawyer in question would thus be accepting personal liability for it. Mariotti seems to think that’s a stretch.[21] That “plus factor” would thus seem to be present.

The question, as it has been from the beginning, remains whether Merrick Garland has the cajones.

  1. [1]Scott R. Anderson et al., “What We Do and Don’t Know About the FBI’s Mar-a-Lago Search,” Lawfare, August 9, 2022, https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search; Devlin Barrett et al., “Mar-a-Lago search appears focused on whether Trump, aides withheld items,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/trump-fbi-search-mar-a-lago/; Eric Tucker and Michael Balsamo, “Trump says FBI conducting search of Mar-a-Lago estate,” Associated Press, August 8, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-9e8d683afe87389407950af7ccfdbdd6↩
  2. [2]Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/↩
  3. [3]Julia Ioffe, “Defund… the F.B.I.?” Puck News, August 9, 2022, https://puck.news/defund-the-f-b-i/; Perry Stein, “Garland vowed to depoliticize Justice. Then the FBI searched Mar-a-Lago,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/garland-trump-raid-politics/↩
  4. [4]Tina Nguyen, “‘The DeSantasy Is Over,’” Puck News, August 10, 2022, https://puck.news/the-desantasy-is-over/; Steve Peoples, “GOP rallies around Trump following FBI search of his estate,” Associated Press, August 10, 2022, https://apnews.com/article/gop-rallies-around-donald-trump-a0f20a219b1090fd02f529acf744f246↩
  5. [5]Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/; Andrew Solender, “Political threats spiral,” Axios, August 11, 2022, https://www.axios.com/2022/08/12/political-threats-spiral↩
  6. [6]For example, Paul Waldman and Greg Sargent, “Merrick Garland’s surprise announcement calls the Trump-GOP bluff,” Washington Post, August 11, 2022, https://www.washingtonpost.com/opinions/2022/08/11/garland-announcement-trump-fbi-bluff/↩
  7. [7]Paul Waldman and Greg Sargent, “Merrick Garland’s surprise announcement calls the Trump-GOP bluff,” Washington Post, August 11, 2022, https://www.washingtonpost.com/opinions/2022/08/11/garland-announcement-trump-fbi-bluff/↩
  8. [8]Eric Tucker and Michael Balsamo, “Trump calls for ‘immediate’ release of Mar-a-Lago warrant,” Associated Press, August 12, 2022, https://apnews.com/article/donald-trump-search-unsealing-the-warrant-5e00a3e6728cd77daa0d2180d078fcb6↩
  9. [9]Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/↩
  10. [10]Erik Larson, “Trump’s ‘Planted Evidence’ Claim Unlikely to Stand Up In Court,” Bloomberg, August 11, 2022, https://www.bloomberg.com/news/articles/2022-08-11/trump-s-planted-evidence-claim-unlikely-to-stand-up-in-court↩
  11. [11]David Benfell, “A theory of conservative epistemology,” Not Housebroken, August 6, 2022, https://disunitedstates.org/2022/08/06/a-theory-of-conservative-epistemology/↩
  12. [12]David Benfell, “The danger that still remains,” Not Housebroken, January 22, 2022, https://disunitedstates.org/2021/11/24/the-danger-that-still-remains/; Philip Bump, “What we’re talking about when we talk about civil war,” Washington Post, January 4, 2022, https://www.washingtonpost.com/politics/2022/01/04/what-were-talking-about-when-we-talk-about-civil-war/; Bruce Hoffman, “A Year After January 6, Is Accelerationism the New Terrorist Threat?” Council on Foreign Relations, January 5, 2022, https://www.cfr.org/in-brief/year-after-january-6-accelerationism-new-terrorist-threat; Stephen Marche, “The next US civil war is already here – we just refuse to see it,” Guardian, January 4, 2022, https://www.theguardian.com/world/2022/jan/04/next-us-civil-war-already-here-we-refuse-to-see-it; Andrew Solender, “Political threats spiral,” Axios, August 11, 2022, https://www.axios.com/2022/08/12/political-threats-spiral; Barbara F. Walter, “Why should we worry that the U.S. could become an ‘anocracy’ again? Because of the threat of civil war,” Washington Post, January 24, 2022, https://www.washingtonpost.com/opinions/2022/01/24/why-should-we-worry-that-us-could-become-an-anocracy-again-because-threat-civil-war/↩
  13. [13]Alex Leary, Aruna Viswanatha, and Sadie Gurman, “FBI Recovered Eleven Sets of Classified Documents in Trump Search, Inventory Shows,” Washington Post, August 12, 2022, https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501↩
  14. [14]Alex Leary, Aruna Viswanatha, and Sadie Gurman, “FBI Recovered Eleven Sets of Classified Documents in Trump Search, Inventory Shows,” Washington Post, August 12, 2022, https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501↩
  15. [15]Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/↩
  16. [16]Betsy Woodruff Swan, Kyle Cheney, and Nicholas Wu, “FBI search warrant shows Trump under investigation for potential obstruction of justice, Espionage Act violations,” Politico, August 12, 2022, https://www.politico.com/news/2022/08/12/search-warrant-shows-trump-under-investigation-for-potential-obstruction-of-justice-espionage-act-violations-00051507↩
  17. [17]David Benfell, “Reasonable and unreasonable doubt in ‘seditious conspiracy,’” Not Housebroken, June 20, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584↩
  18. [18]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584↩
  19. [19]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584↩
  20. [20]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584↩
  21. [21]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584↩