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DOJ bets its future on how it handles the search of Trump's Mar-a-Lago resort

The Justice Department's actions are going to come under intense scrutiny, including from Trump's supporters in Congress.
Photo illustration of the FBI crest, former President Donald Trump, Mar-a-Lago resort, and Attorney General Merrick Garland.
The Justice Department's future depends on its handling of the Mar-a-Lago search.NBC News; Getty Images

WASHINGTON — In approving the unprecedented search of former President Donald Trump's Mar-a-Lago resort, Justice Department leaders have bet the house on their handling of an investigation that will have sweeping implications for the future of both federal law enforcement and American democracy.

Monday's hourslong search of Trump's Florida resort in connection with an investigation into classified documents that Trump is alleged to have kept on the property will reverberate in American politics for the foreseeable future.

On top of the threats from Trump supporters calling for "civil war," the Justice Department and the FBI are facing an avalanche of calls from lawmakers and even from some in the media to violate long-standing protocols and release information about the investigation, which could be derogatory to Trump, a presumed 2024 presidential candidate who hasn't been accused of a crime.

By all indications, Justice Department leaders have handled the search by the book, a carefulness that could be helpful in an extraordinary case like this one. Even so, they've given the former president a lot more leeway than any subject of a search warrant in a more run-of-the-mill investigation. The search was done quietly without any media circus, and, according to a Secret Service official, FBI special agents involved in the search didn't even wear the standard identifying gear that would be used in typical searches.

Given the stakes, the Justice Department and the FBI have been even quieter than usual, declining even to confirm law enforcement activity at Mar-a-Lago. That has meant that the majority of information about the search has been coming from Trump's team and even directly from Trump, a notoriously unreliable narrator who has incentive to portray himself as the innocent victim of overreach by a "deep state" out to get him.

A Trump-appointed former U.S. attorney described being "torn" about whether or not the Justice Department should break protocol in this "historic, almost breathtaking situation." But, that person noted, there is no law or congressional mandate that the department stick with protocol.

“You don’t want to impugn someone if the media isn’t going to get it right, or exactly right,” the former U.S. attorney said. “But what I would also say is when you’re dealing with the former president of the United States and a search warrant being executed on his home, it definitely is a situation where the policies don’t apply.

“If DOJ is unwilling to release more information about the predication behind the search warrant, then it would just be helpful to know that both the director of the FBI and the attorney general of the United States approved the action, the execution of the search warrant.”

But another former U.S. attorney, Joyce White Vance, an NBC News legal analyst, said breaking standard practice in this case would backfire, because the Justice Department shouldn’t be releasing derogatory information about people it hasn't formally charged.

“Play that out a little bit: What do these people want?" said Vance, an Obama appointee. "Do they want Merrick Garland to come out and say, 'Here’s all our evidence against Donald Trump'? Do they really think that DOJ should try its cases in the press? That’s not what we want in a functioning, rule-of-law country from our Justice Department."

Vance said the Justice Department's handling of the matter shows the emphasis by Garland, the attorney general, on doing things by the book.

"Merrick Garland's goal is to restore the department to a place where that's the way normal business is conducted: in a court, with the rules," Vance said.

"I think Merrick Garland understands that DOJ bets its future on every case, and his role was to restore DOJ's integrity so that in the tough cases like this one, where he can't talk about the substance of a search warrant, the public knows that they can have confidence that the leadership at DOJ is following the rules and doing things the right way," Vance said.

But some of Garland’s colleagues think the extraordinary circumstances justify taking a different approach, one that would break protocol.

A senior DOJ official and a former senior official at the department told NBC News that multiple Justice Department officials believe Garland should make a public statement explaining the need for the Mar-a-Lago search warrant.

Garland, a former judge, has spoken repeatedly about the importance of following Justice Department protocols. The supposed justification for Trump's firing of former FBI Director James Comey, according to a 2017 letter written by former Deputy Attorney General Rod Rosenstein, was Comey's decision to hold a news conference during the 2016 campaign about former Secretary of State Hillary Clinton's handling of classified emails.

"Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously," Rosenstein wrote, calling Comey's actions a "textbook example" of what federal prosecutors and special agents are cautioned against.

"When federal agents and prosecutors quietly open a criminal investigation, we are not concealing anything; we are simply following the longstanding policy that we refrain from publicizing non-public information," Rosenstein wrote. "In that context, silence is not concealment."

Garland is a devotee of that long-standing Justice Department policy.

"The Justice Department's policies make clear that derogatory comments about subjects, targets, even people who have been indicted — except what's in the indictment — are not appropriate," Garland said at his confirmation hearing.

FBI Director Christopher Wray, the lifelong Republican whom Trump himself appointed to a 10-year term after he fired Comey, has said he has drilled into the bureau's leaders the need to make sure they don't give any ammunition to critics who wish to paint their motives as political. Inside the FBI, officials have seen the consequences for former bureau officials whose personal comments, even internally, have subjected them to intense scrutiny.

“I feel very strongly, and I have communicated consistently since I started as director, that our folks need to make sure that they’re not just doing the right thing, that they’re doing it in the right way and that they avoid ... even the appearance of bias or lack of objectivity,” Wray said in recent congressional testimony.

Wray said the FBI he sees is full of “patriots working their tails off with tremendous integrity and objectivity.”

The Justice Department and the FBI are already pretty swamped by the investigation into the Capitol attack. Both the department and the bureau are still emerging from years of attacks on the FBI from a Republican Party that, historically, aligned itself with law enforcement.

Those who have worked for and with the FBI still have trouble adjusting to the notion that millions of Trump supporters believe that the bureau, a generally conservative-leaning law enforcement organization, is some sort of left-wing bastion. A right-leaning former FBI official described the bureau as a “pretty conservative, right-leaning organization that tries to divorce itself of politics.”

The Trump-appointed former U.S. attorney said that he trusted the FBI “implicitly” and that calls from some far-right members of Congress to “defund” the FBI were exactly what Republicans needed to avoid if they wanted to run “law-and-order” campaigns against Democrats.

Vance said the portrayal of the FBI by Republicans and in conservative media is out of touch with reality.

"I'm sure the people who are the most appalled to learn today that they're radical liberals are the leadership of the FBI," Vance said. "The notion that the FBI isn't, in essence, a conservative-leaning organization is really silly, and it shows you just how far the Trump people are willing to go to justify the unjustifiable."

A Justice Department official, naturally, declined to comment for this article.