Some thoughts on publicly disclosing the Mar-a-Lago affidavit

I am betting that Bruce Reinhart, the federal magistrate judge who ordered the government to consider publicly disclosing portions of the FBI’s probable-cause affidavit in support of the Mar-a-Lago search, is sorry he ever dug this hole for himself.

Reinhart issued a succinct order this afternoon, essentially instructing the Justice Department to release only what it had proposed to release, after he directed them to make such a proposal last Thursday.

Naturally, the Justice Department did not want to make any part of the affidavit public because the investigation is still pending. To unseal a warrant affidavit in the middle of an investigation would be a disaster for investigators. It would identify witnesses, provide a road map of the government’s investigative theory, close off any promising but untapped sources of information, encourage the destruction of evidence and the flight of suspects, and sundry disasters.

This is why the government usually waits until the end of the investigation to seek search warrants. The Justice Department cannot properly get a search warrant unless it has probable cause that crimes were committed. If it has such probable cause, that almost always means it has a basis to make arrests — for which probable cause that a crime has been committed is also the standard. In a normal case — and there’s nothing normal about the Mar-a-Lago probe — arrest and search warrants are executed at the end, frequently based on the same probable-cause affidavit.

At that point, the defendants get formally indicted, and the government must provide discovery of the warrant affidavits. These become the basis for defendants to make pretrial motions to suppress evidence. As a result, we get to find out what was in the affidavits. The government can no longer complain at that stage about harm to the investigation or danger to informants because the investigation is over and the informants are likely to be witnesses at the public trial.

Because this is all obvious, I assumed that Judge Reinhart was going to deny the motion of the news organizations for disclosure of the warrant. Again, this is a criminal investigation — we’re not talking about a classified FISA warrant that we were never going to get to see. Here, it’s very likely to be a matter of when, not if, the public gets to learn what is in the affidavit. I can think of one possible intriguing exception to that, which I will get to in a moment. The point is that since we’re probably going to find out soon enough what is in the affidavit, there is no great public need to find out now, when the downside would be to undermine the government’s investigation.

But for whatever reason, Reinhart couldn’t bring himself to say no to the news organizations, so he told the Justice Department to propose some redactions. But he gave prosecutors a week to convince him that it was a crazy idea, which they’ve apparently done. So he has now climbed down from last week’s odes to government transparency by making findings that to disclose the full warrant at this point “would reveal (1) the identities of witnesses, law enforcement agents, and uncharged parties, (2) the investigation’s strategy, direction, scope, sources, and methods, and (3) grand jury information protected by Federal Rule of Criminal Procedure 6(e).” Yet, he’ll be able to hold his head up and say he made the Justice Department disclose a few things that no one is terribly interested in.

Let me get to the intrigue.

I find the most interesting part of the short order the revelation that the Justice Department argued that disclosure would reveal, and thus cause unfair prejudice to, uncharged parties. Of course, the major uncharged party here is former president Donald Trump.

Now, maybe prosecutors said they were worried about causing such prejudice because it’s the standard thing the Justice Department says: DOJ guidelines prohibit comment on investigations of, and evidence against, people who are not charged; they are presumed innocent, and prosecutors should not tar people unless they are ready to file formal charges, which gives the charged person due-process rights to defend the allegations in court.

On the other hand, maybe the Justice Department said this because the objective here is not to charge the former president with a crime.

Clearly, it was appropriate for people to be stunned over the execution of a search warrant at the home of a former president. But the reaction, which spurred no shortage of outrage from many quarters, pales in comparison to what would happen if the Justice Department actually indicts Trump.

Attorney General Merrick Garland knows this. My belief is that what the DOJ, the FBI, the intelligence agencies, and the National Archives and Records Administration wanted was to get the documents back and ensure that highly classified information is returned to its proper secure repositories. I don’t think they’re hot to make a criminal case out of this.

To be sure, the classified-information crimes could be serious, given how top-secret the intelligence at issue apparently is. But as we’ve noted, Trump has defenses, and the Hillary Clinton precedent argues against such a case. And even if there is a technical records-retention crime in hoarding nonclassified information under Section 2071 (the statute cited in the warrant), I can’t believe the DOJ would indict a former president over that. Not only did DOJ not indict Hillary Clinton for destroying thousands of government records; Trump’s documents are covered by the Presidential Records Act, which Congress clearly did not intend to enforce by criminal penalties.

I believe the DOJ would indict Trump over Capitol riot–related offenses if prosecutors could make the case. And I remain convinced that they expect that some of the records that have now been seized from Trump might advance their January 6 probe. But I don’t think Garland is contemplating a Mar-a-Lago prosecution against the former president. I think they mainly just wanted their stuff back, especially the high-level intelligence.

If I’m right about that, and there are no charges related to the search, then we would not get to see the warrant affidavit in the regular course of a prosecution because there wouldn’t be a prosecution. If that happens (or, I suppose, doesn’t happen), then the news organizations will race back to court with Freedom of Information Act demands for disclosure of the warrant affidavit.

For the moment, the former president claims to support the news organizations’ effort to get full disclosure of the affidavit. Will he still take that position if there are no charges? If the news organizations come back at that point and say, “There is no longer an investigation that could be compromised, so let us see the affidavit,” would Trump still be supportive of public disclosure of an FBI affidavit contending that he committed three federal felonies?

Count me a skeptic. I think he’d have a new appreciation for the Biden Justice Department’s position that disclosure could be unfairly prejudicial to uncharged persons. Just a hunch.

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