Despite warnings from the Justice Department that disclosure of the key court document could “irreparably harm” an ongoing criminal investigation, a federal judge in Florida is likely to order the document’s release.
An affidavit establishes probable cause in a criminal case, names witnesses to a potential crime, and lays out the likelihood of criminal prosecution. Magistrate Judge Bruce Reinhart has ordered the Justice Department to prepare redactions to the affidavit that led to the search of the former president’s Mar-a-Lago estate on Aug. 8. He has not yet decided if the entire document should be unsealed as a result of that search. However, the government will have another chance to present its case on Aug. 25.
On Monday, the Justice Department requested the court keep the entire affidavit under seal, warning that its disclosure could cause irreparable damage to the investigation. Reinhart said he is inclined not to seal the entire affidavit.
Several media outlets requested the court make the affidavit public so the public could better understand the reasoning for the raid on a former commander-in-chief’s home. The hearing on Aug. 25 will be presided over by Magistrate Judge Bruce Reinhart, who approved the original search warrant on Aug. 5. It is unclear whether he will take the case under advisement or decide from the bench.
Following the FBI raid on Mar-a-Lago last week, political tensions have risen over the allegation that Trump failed to turn over presidential records to the National Archives and Records Administration (NARA).
According to Trump, his staff was working with the National Archives to provide the documents as required by the Presidential Records Act. This has never happened to a United States president before; Trump said in a statement last week. In addition, Trump claims that the seized documents were declassified, so they were not subject to special safeguards. As a result of the denials, GOP lawmakers have called on the Justice Department to release its affidavit justifying the search warrant.
The names and other sensitive information can be redacted, but the DOJ must lay its cards on the table, said Sen. Lindsey Graham, R-South Carolina.
The DOJ and Attorney General Merrick Garland oppose public disclosure of the document. According to the Justice Department, disclosing the affidavit would violate longstanding legal precedent, jeopardize the government’s investigation and expose confidential sources.
Ordinarily, an affidavit listing probable cause for a search warrant is not unsealed until after an arrest or indictment. There have been exceptions to that precedent, primarily when exceptional circumstances arose.
It is debated mainly whether the affidavit can be made public without undermining ongoing investigations and what is included in it.
Typically, an affidavit of probable cause is based on more than one interview or piece of evidence. According to Ken Gray, a former FBI agent, and professor of criminal justice at the University of New Haven, it usually consists of a set of steps explaining why you believe a crime has been committed and where the evidence can be found.
There is a lot that depends on the details in the document. A redaction may still reveal the sources, especially if only a few people hold that information. The Justice Department believes that unsealing the affidavit might harm the government’s ability to attract sources.
Additionally, there is a more significant issue at stake, namely the credibility of the Justice Department in investigating one of President Biden’s biggest political rivals and a likely opponent in 2024. In the wake of leaks revealing insight into the DOJ’s activities surrounding the raid, those questions have only grown.
Legal experts say that the Justice Department must be transparent about its case for raiding Mar-a-Lago.