A Surprise Turn in the Trump Search-Warrant Case

I n a surprising move, federal magistrate judge Bruce W. Reinhart indicated today that he would consider unsealing at least some of the information in the probable-cause affidavit submitted by an FBI agent in support of the search warrant the Justice Department executed last week at former president Donald Trump’s Mar-a-Lago estate.

To be clear, we are a ways away from seeing even a comma of the affidavit, and that still may not happen. Judge Reinhart gave the government a week to propose a redacted version. The Justice Department, which strenuously objected to the motion by news organizations and private watchdog groups for the affidavit’s disclosure, will surely propose a very heavily redacted document that substantially reveals nothing — and that will be only after using the next week to try to change Reinhart’s mind. There will be haggling between the government and the court regarding the redactions. And ultimately, if DOJ decides it cannot live with Reinhart’s ruling, it will appeal.

Nevertheless, it is highly unusual for the unsealing initiative to have gotten even this far. Ordinarily, search-warrant affidavits are kept under seal unless and until criminal charges, to which the search is relevant, are filed. Even then, such affidavits often do not become public until months later, when indicted defendants make motions to suppress evidence seized pursuant to the warrant.

The information at issue is the government’s evidentiary basis, submitted by a law-enforcement officer (often an FBI agent in federal investigations), for contending that there is probable cause that a crime has been committed and that evidence of the crime is likely to be found in the place the government seeks to search.

It is a closely held document because it provides information from people who may be covertly cooperating with the government. Although such people are typically not referred to by name, the affidavit will set forth enough information about them that the suspects (among others) could easily figure out who they are. In many situations, this can imperil informants, undercover agents, and ordinary witnesses.

Further, and of particular concern when search warrants are sought while an investigation is still ongoing: A warrant affidavit makes it easy to figure out who is under investigation and what the government’s theory of the case is. If disclosed, it can thus give suspects the heads-up they need to destroy evidence, intimidate witnesses, get their stories straight, or even flee.

It is thus obvious why the Justice Department would want to keep a warrant affidavit under wraps. Indeed, that is why, in most criminal cases, investigators wait to seek warrants until the end of the probe, when they have accomplished pretty much everything that can be done covertly and are prepared to make arrests.

With respect to the Mar-a-Lago search warrant, however, the Justice Department has not helped its cause thus far.

Attorney General Merrick Garland took the unusual step of making a public statement about the search last week. Perhaps because he realized this was a risky departure from Justice Department protocols, Garland said very little. But this just left him more vulnerable: He could no longer credibly claim to be adhering to the Justice Department practice of not commenting on pending investigations, yet he neither (a) responded to claims that former president Trump was making publicly, nor (b) addressed the matters the public was actually interested in.

Some of his remarks were also disingenuous. He said, for example, that the Justice Department routinely uses the evidence-collection method that is least intrusive under the circumstances, and that its searches are narrowly tailored to collect relevant evidence. The case, however, involves not only the unprecedented execution of a search warrant against a former U.S. president, but the most intrusive kind of search — a search in someone’s home, and all its most private places, by more than two dozen FBI agents.

In addition, when we saw the warrant, we learned that, despite all the chatter about Trump’s mishandling of classified information, the warrant was the antithesis of a narrow tailoring, authorizing agents to scoop up every scrap of paper generated during the four years of the Trump administration. Then, it became manifest that the agents had not done a careful, methodical job — despite the breadth of the warrant, it clearly did not cover Trump’s passports, but the FBI took them anyway. That suggests the bureau indiscriminately grabbed things without being careful — an impression fortified by the property receipt that agents left at Mar-a-Lago, which does not describe the items seized (around 30 boxes’ worth) in anything close to an itemized fashion.

Moreover, Garland created a problem for prosecutors at Thursday’s hearing. The Justice Department is arguing that information has to be kept under wraps to protect the integrity of the investigation. That’s a hard sell when the AG is speaking publicly about the case. And from the court’s perspective, it may have been an even harder sell because the government is doing what it always does in big cases (and in anything involving Donald Trump): It is leaking. The most egregious example was the leak to the Washington Post that Trump might have been hoarding nuclear-weapons intelligence — but that was hardly the only talking-out-of-school by government officials. Judges tend to get angry when prosecutors righteously dilate on how vital investigative integrity is while the government is leaking like a sieve.

Still another unforced error: In arguing that disclosure of the warrant affidavit could mortally wound their investigation, prosecutors told Reinhart that they were still at an early stage of their probe. I imagine this was just a sloppy way of saying they were not yet at the point of deciding whether to file charges. Nevertheless, they just performed an unprecedented search of a former president’s home, under circumstances in which the AG claims that DOJ tries not to be gratuitously intrusive. Is that really the kind of drastic step you take early in an investigation? If investigators were in the early stages, why didn’t they attempt less intrusive means of obtaining the records in Trump’s possession? If they were in the early stages, why has it been reported that Garland has been considering this step — which he says he personally authorized — for weeks?

All that said, I would not be so sure that we are going to see anything very illuminating, either a week from now or anytime soon thereafter.

While there is great public interest in the Trump investigation, competing public interests are at stake, and they are at least as important if not as apparent. By leaving the disclosure door ajar, Reinhart has guaranteed that there will be a constant, intense public discussion for the next couple of weeks about the possibility of informants being outed. It will be much harder for the police to persuade people to give them information if those people believe they will be identified publicly and portrayed as snitches.

In addition, in some cases, it is necessary for investigative reasons for the government to seek and execute a search warrant before it is ready to make arrests — cases, for example, where investigators are not yet satisfied that they have sufficient evidence to charge the most culpable suspects. If the precedent going forward is that a warrant affidavit becomes a public document (or at least a somewhat public document) even when a search is executed in an ongoing investigation, the government will be very hesitant to seek such a warrant — even in cases where there is a strong public interest in making the case against dangerous criminals.

That is why I believe the Justice Department will spend the next few days trying to convince Judge Reinhart that he is wrong to broach the possibility of disclosing even a significantly redacted affidavit. When DOJ does submit proposed redactions, they will be so extensive that virtually nothing of interest will be revealed. And to repeat, if prosecutors believe Reinhart is trying to force them to reveal too much information, they will appeal, which could tie the matter up for additional weeks.

Another thing to watch: If the Justice Department is being honest when it claims that disclosure could undermine its investigation, then the threat of disclosure will undoubtedly cause the FBI and DOJ to step up the pace, and perhaps even conduct more searches and make some arrests. If the government was hoping to pursue some angles that would no longer bear fruit if details in the affidavit are revealed, then investigators have to pursue those angles now if they think there’s any chance the court will force them to disclose those details.

Could be an interesting few days.

A final point: While former president Trump publicly claimed to favor disclosure of the unredacted affidavit, his lawyers did not file a formal motion supporting the organization that sued for disclosure. As I suggested in today’s column, while Trump was playing to the court of public opinion, much as Garland was when he spoke publicly last week, he is probably about as anxious as the Justice Department is for the public to read an FBI agent’s description of probable cause that he committed federal felonies.