Washington’s Mar-a-Lago Prosecution by Leaks

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It sure looks like someone is prosecuting the case through the media. The latest example arrived Monday in a dispatch in the

New York Times

that Justice has recovered “more than 300 documents with classified markings” from Mr. Trump since he left office.

Which documents? The report doesn’t say. But, rest assured, they “included documents from the C.I.A., the National Security Agency and the F.B.I. spanning a variety of topics of national security interest, a person briefed on the matter said.” Ah, there’s our old friend, a person briefed on the matter. Nice to hear from you again, whoever you are.

This follows the Aug. 11 Washington Post report that the Federal Bureau of Investigation agents who searched Mr. Trump’s Mar-a-Lago home were looking for “classified documents relating to nuclear weapons.” Which nuclear secrets the Post didn’t say, and the search warrant released later included no mention of documents related to nuclear weapons.

As the leakers know, these reports are an attempt to justify to the public the extraordinary search of a former President’s home. They have the effect of suggesting that Mr. Trump may have committed a crime in mishandling the documents. They also keep the former President at the center of the 2022 midterm election campaign, which is exactly where Democrats in Congress want him.

Meanwhile, Mr. Garland’s lawyers are telling federal Judge

Bruce Reinhart

that the legal affidavit with more details about the search shouldn’t be released to the public. Or that, if the judge releases it, the affidavit should be so heavily redacted as to tell the public and Mr. Trump’s lawyers very little.

In other words, “a person briefed on the matter” can leak details about the investigation to the press that the public is supposed to credit as true. But the actual “court filings and its work,” in Mr. Garland’s phrase, must remain secret. And these people wonder why tens of millions of Americans don’t trust the Justice Department and FBI?

If this all sounds familiar, you may be thinking of the Russia collusion probe. That story was also fed by leaks to the press with episodes that were portrayed as ominous—“the walls are closing in”—but often turned out to have innocent provenance or far less consequence. We later found out the entire collusion probe was a political concoction promoted by a lawyer for

Hillary Clinton

with an assist from Justice and

James Comey’s

FBI.

Meanwhile, a report Tuesday in Just The News says that officials at the White House gave the green light to Justice and the National Archives to pursue the documents case by nixing Mr. Trump’s claim of executive privilege. The reporter,

John Solomon,

is Mr. Trump’s representative to the Archives, but the documents he cites appear to be genuine. Don’t expect this to get page one play in most of the press, but for those who want to do more than take Justice dictation this news isn’t reassuring that the probe is apolitical.

Two weeks since the Mar-a-Lago search, the legal case also doesn’t look any stronger. Lawyers

David Rivkin

and

Lee Casey

made a compelling case Tuesday on these pages that Mr. Trump has every right to hold the documents for a time at his home under the 1978 Presidential Records Act. If there is a dispute over them, that is a matter for negotiation and at most a minor sanction. Their argument is stronger than anything we’ve read so far about possible violations by Mr. Trump of the Espionage Act or some obstruction of justice charge.

Perhaps Mr. Garland’s prosecutors are sitting on bombshell evidence that Mr. Trump did something nefarious with the documents. But then putting that doubt in the public mind is one purpose of the leaks—make it all look bad without having to prove it.

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All of which goes back to the question of prosecutorial discretion. Mr. Garland may think he is being scrupulous about the law in pursuing Mr. Trump, but he has opened a political trauma room. If he doesn’t have a solid case that Mr. Trump committed serious crimes, with evidence that a majority of the public will find persuasive, he should settle the whole matter quickly. Prosecution by leak is hurting Justice as much as it is Mr. Trump.