Release Mar-a-Lago affidavit, judge says

Unseal redacted document today, U.S. told

Former President Donald Trump’s Mar-a-Lago estate at Palm Beach, Fla., is shown in this Aug. 10 aerial photo. A redacted version of the affidavit used to justify a search of the residence is to be unsealed today.
(AP/Steve Helber)
Former President Donald Trump’s Mar-a-Lago estate at Palm Beach, Fla., is shown in this Aug. 10 aerial photo. A redacted version of the affidavit used to justify a search of the residence is to be unsealed today. (AP/Steve Helber)

WASHINGTON -- A federal judge in Florida on Thursday ordered that a redacted version of the affidavit used to obtain a warrant for former President Donald Trump's Florida residence be unsealed by noon today -- paving the way for the disclosure of potentially revelatory details about a search with enormous legal and political implications.

The decision by Judge Bruce Reinhart came hours after the Justice Department submitted its proposal for extensive redactions to the document, in an effort to shield witnesses from intimidation or retribution if it is made public, officials said.

Reinhart appeared to accept the requested cuts and, moving more quickly than government lawyers had expected, directed the department to release the redacted affidavit in a brief two-page order issued from U.S. District Court in Southern Florida. The order said that he had found the Justice Department's proposed redactions to be "narrowly tailored to serve the government's legitimate interest in the integrity of the ongoing investigation."

The redactions, he added, were also "the least onerous alternative to sealing the entire affidavit."

In its most complete form, the document would reveal important details about the government's justification for taking the extraordinary step of searching Mar-a-Lago on Aug. 8.

The ruling is a significant legal milepost in that investigation. It is also an inflection point for Attorney General Merrick Garland, who is trying to balance protecting the prosecutorial process by keeping secret details of the investigation, and providing enough information to defend his decision to request a search.

"There are clearly opposed poles here," said Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University, who added that it might be difficult, even impossible, for Garland to strike the right balance.

Reinhart surprised prosecutors earlier this month by saying he was inclined to release portions of the affidavit at the request of news organizations after the government proposed redactions.

Under typical circumstances, disclosing even a partial version of an affidavit would be highly unusual: Such documents, which tend to include evidence gathered to justify a search, such as information provided by witnesses, are almost never unsealed before the government files criminal charges. There is no indication the Justice Department plans to file charges anytime soon.

But Reinhart, recognizing the significance of the government's case, had made it clear in recent days that he wanted the government to provide a far more detailed justification for the search than the bare-bones legal rationale outlined in the unsealed warrant.

He reiterated this week that he might agree to extensive redactions, acknowledging that they could be severe enough to render release of the final document meaningless.

"I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the government," he wrote in an order issued Monday.

A Justice Department spokesperson did not have an immediate comment on the judge's decision.

Justice Department officials had previously suggested that they would abide by his general guidance but push hard to scrub anything that could expose witnesses in the case to intimidation or retribution by Trump's supporters. After the search at Mar-a-Lago, the FBI reported a surge in threats against its agents; an armed man tried to breach the bureau's Cincinnati field office before being killed in a shootout with local police.

Garland is also overseeing the sprawling investigation into the attack on the Capitol on Jan. 6, 2021, which has increasingly focused on the actions of Trump and his supporters. The attorney general has repeatedly said he is going where the evidence leads him, unmoved by political considerations or concerns about a backlash, without "fear or favor."

SHIFTING STRATEGY?

The attorney general's unusual decision this month to call for the judge to unseal the warrant itself stemmed from a recognition that the search required public explanation, rather than refusing to comment about current investigations, as he typically does, people close to him said.

Garland and his aides do not see that call, or the news conference that accompanied it, as a strategic shift. Others have. And some who back his tight-lipped caution toward the Jan. 6 investigation now say he should adopt a posture of complete disclosure on the Mar-a-Lago search to defend the integrity of the investigation.

"I think anytime you search a former president's home, you have got to treat it with more transparency, and you need to disclose all the details with alacrity and quickness," said John Fishwick, an Obama appointee who served as the U.S. attorney for the Western District of Virginia from 2015 to 2017.

"All eyes are on this thing, and the public should know what is happening," he said. "Americans are smart. They can evaluate what they see, and when things are hidden from them, they get suspicious."

Trump's legal team has not yet seen the affidavit. The government is not required to show it to them. But they have not opposed efforts to unseal it nor taken a position in court that it should be released.

The former president's allies, who have also not seen the document, argue that its disclosure will prove Garland overreached and that Trump was in his rights to retain documents he believed he had informally, but legally, declassified in his final days as president.

"I think the document is likely to show there was no good-faith reason for the raid, despite the strained analysis of the Presidential Records Act," said Tom Fitton, a frequent defender of Trump and the president of Judicial Watch, a conservative legal advocacy group that also sued to unseal the complete document.

The full affidavit is likely to contain telling details about the Justice Department's inquiry into whether Trump mishandled national defense documents and obstructed a federal investigation.

Typically, the courts have allowed redactions that protect "sources and methods" of current investigations. Reinhart is unlikely to stray from that practice.

Legal experts say he is all but certain to permit redactions of portions that mention the government's witnesses, or parts that explicitly describe the reasons prosecutors believe there was probable cause to find evidence of a crime at Mar-a-Lago, which could compromise the investigation.

But the affidavit is still likely to be the most comprehensive description of events to date and could provide, at the very least, a cogent timeline of the government's efforts to retrieve the documents from Trump and his attorneys before the FBI descended on Mar-a-Lago.

Trump's legal team has already revealed many of those efforts -- among them, meetings with prosecutors and the issuance of federal subpoenas -- in a motion filed this week seeking a special master to oversee a review of the seized documents.

And people in his orbit have leaked some details, part of a campaign to portray the department's search as a partisan witch hunt overseen by Garland at the direction of President Joe Biden.

Ultimately, however, it is the contents of the boxes recovered from Trump's residence, not the legal paperwork, that will determine the course of the investigation and the public's perception of it.

The affidavit, if it is released mostly intact, could resolve some of those questions.

A partial disclosure, on the other hand, could deepen confusion.

A heavily redacted document "might just give fuel to those on one side or the other who, like a Rorschach test, will simply see what they want to see in the blacked-out spaces," Richman said.

ADVANCE NOTICE DENIED

Biden said Wednesday he had no prior knowledge of the FBI search at former President Donald Trump's Mar-a-Lago residence.

"I didn't have any advance notice," Biden said at the White House following an event to announce student loan relief. "None, zero, not one single bit."

The remarks were the first time Biden has personally commented on the unprecedented effort by federal law enforcement to recover classified documents being held by a former president, though other White House officials had previously said he did not know about the Aug. 8 search before it was reported in the media.

Some Republicans have suggested that the effort was politically motivated by Biden, whom Trump has hinted he plans to challenge in the 2024 presidential election.

Information for this article was contributed by Glenn Thrush and Alan Feuer of The New York Times; and by Justin Sink of Bloomberg News (TNS).


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