DOJ secrecy strikes once again

Think back five years to the frenzy of news reporting and commentary over Trump-Russia “collusion” — the allegation that the 2016 Trump campaign conspired with Russia to fix the presidential election. Most of the coverage, and especially the commentary, seemed predicated on the belief that collusion took place. But the extensive investigation of special counsel Robert Mueller was unable to establish that collusion ever occurred at all. The Mueller team spent years investigating an alleged crime and concluded they could not establish that the alleged crime even took place, much less who did it.

Much of the media’s collusion talkathon in 2017 and 2018 was based on secret evidence. There were super-secret recordings of Michael Flynn, President Donald Trump’s first national security adviser, talking to the Russians. There was secret evidence gathered by a secret FBI investigation. There was secret testimony to Mueller’s prosecutors. And there was, famously, a secret dossier of Trump allegations, which was a fraud.

Why retell that story? Because there is a new special counsel investigation of Trump, now a candidate for president. Attorney General Merrick Garland instructed the new counsel, Jack Smith, to investigate Trump’s alleged role in inciting the Jan. 6, 2021, riot and the “investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation.” What is notable about the documents investigation, is how much, like earlier probes, it is based on secret evidence.

There is no doubt that Trump kept a significant number of documents from his presidential years.

reported that Justice Department prosecutors have concluded Trump’s motive “was largely his ego and a desire to hold on to the materials as trophies or mementos.” The Biden Justice Department had looked hard for some kind of nefarious motive behind Trump’s actions and all it could come up with, if the

is correct, was a desire for high-end souvenirs.

Nevertheless, Garland appointed a special counsel.

Why? He argued that Trump launching his 2024 campaign made doing so in the public interest.

This is not just a legal case, Garland was saying, but one in which the public has a significant interest, and therefore one the DOJ must treat differently to ensure public confidence.

The heart of the documents case appears to be allegations that Trump improperly handled classified documents. But there are different degrees of classification, and there is a consensus that the government classifies too many documents to begin with. So to make Trump’s offense sound as serious as possible, there have been leaks suggesting that he mishandled the most sensitive of documents.

Here is the problem. The investigation is said to be in the “public interest,” but no one in the public knows what the documents are, other than broadly worded reports based on leaks. There is no way for people to evaluate the evidence.

The DOJ is even keeping the evidence from the Trump defense. Of course, prosecutors would argue that since no one has been charged in the case, the DOJ has no obligation to show anyone anything. Even if Trump is charged, prosecutors will probably try to keep lots of the evidence secret.

Maybe that is essential for national security. But remember what Garland said about the public’s interest in the case. One party, Trump, is running for president, while prosecutors under the authority of his potential rival, President Joe Biden, are preparing, possibly, to file criminal charges. There has been intensive media coverage of the case, much of it with the standard anti-Trump bias. What do the documents at the bottom of the case say? No one in the public knows.

In the absence of facts, there is speculation. That is what secrecy does to a high-profile case. It allows speculation to run amok — just watch MSNBC some time — while no one knows the facts. The public forms an impression of guilt or innocence — in this case, Trump’s guilt — without even knowing what, specifically, the case is about.

It has happened before with Trump. He faced accusations — often dramatic accusations, like the notion that he was a Kremlin asset — on the basis of unseen evidence that the talking heads said was reliable but that no one in the public could evaluate. Now, it’s happening again.