Beware of private correspondence posted on public websites.
Last week, lawyers for Donald Trump sent a letter to Attorney General Merrick Garland requesting a meeting to discuss the special counsel’s investigation into the former president. The letter comes as The Wall Street Journal reports that special counsel Jack Smith is nearing the end of his investigation into Trump’s possession of government documents at his Mar-a-Lago residence. The letter is a gimmick, a piece of propaganda designed to inflame passions and control the narrative. How do I know? The letter quite literally tells on itself.
A request for a meeting to discuss the investigation is therefore properly directed to Smith, not Garland.
First, the letter requests a meeting with Garland, even though he has named Smith as special counsel to handle the case. Garland appointed the special counsel in November after Trump announced his candidacy for president in 2024 in order to avoid any appearance of a conflict of interest. A request for a meeting to discuss the investigation is therefore properly directed to Smith, not Garland. Trump’s legal team, which includes former Justice Department lawyer James Trusty, certainly knows that. As former Justice Department spokesman Anthony Coley has explained, “Merrick Garland will not meet with Trusty or any of the other Trump lawyers. Jack Smith is running this investigation, not Merrick Garland.”
Why, then, would Trump’s team ask for such a meeting? Because they know Garland will decline. And when he does, you can bet Trump’s lawyers will wave around the refusal as proof of injustice. Trump will wail that this rejection proves once again that he is a victim of witch hunts and hoaxes. The predictability of Trump’s game would be tiresome if it were not so harmful to public trust in government institutions.
The second tell is the tone. The letter states, “No President of the United States has ever, in the history of our country, been baselessly investigated in such an outrageous and unlawful fashion.” No serious lawyer seeking a meeting with opposing counsel would make the request while attacking their integrity. That line was written for, if not dictated by, Donald Trump himself.
The letter also contains gratuitous references to Joe Biden and his son Hunter Biden, complaining about different treatment. Of course, a special counsel has already been appointed to investigate Joe Biden for what appears to be an inadvertent retention of government documents. The Trump-appointed U.S. attorney in Delaware is reportedly investigating Hunter Biden on tax charges. Both of those investigations are proceeding. By invoking the Bidens, the letter engages in “whataboutism,” the tactic of deflecting attention from oneself by pointing to the alleged misconduct of others. Trump’s guilt or innocence has nothing to do with these other investigations, but drawing the false equivalency provides a talking point for Trump’s supporters. This authoritarian trick seeks not to convince people that he is innocent, but that everyone is corrupt, so support the leader who shares your values.
The third tell is the aforementioned publication of the letter on social media. If Trump’s lawyers really wanted a meeting to discuss the investigation, they would not post the letter on a public website — a phone call to a member of the trial team would do. When I served as U.S. attorney, defense attorneys would periodically request a meeting with prosecutors before charges were filed. We were generally open to the idea, because the attorney may have a proposal for resolving the case or new facts to share. These are key details when deciding whether to file charges. But instead of picking up the phone to communicate their request, the lawyers instead published a vitriolic missive on social media. This is not a serious request for a meeting.
The final tell in the letter is its motive — fear. Sources familiar with the case told The Wall Street Journal that a charging decision in the case may be near. MSNBC hasn’t confirmed this specific reporting, but defense lawyers involved in a lengthy grand jury investigation can tell when it is nearing completion, especially one like this in which they have litigated privilege issues for witnesses subpoenaed to the grand jury. This letter is a pre-emptive strike that Trump can use if he is indicted. He will cite the letter to show that even before he was charged, his lawyers were on record complaining of unfairness.
Those complaints may score points in the court of public opinion, but they are irrelevant in a court of law.
