The Mar-a-Lago Affidavit Circus

T he next act in the Mar-a-Lago search-warrant drama will play out in south Florida on Thursday afternoon. Magistrate Judge Bruce W. Reinhart has scheduled a hearing on the motion to make public the currently sealed, probable-cause affidavit filed by the Justice Department in support of last week’s search of former president Trump’s estate. The motion was made by several media organizations and private watchdog groups.

In an unusual move, the former president has expressed support for the movants seeking the unsealing of the warrant. Normally, a person as to whom the government contends there is probable cause of guilt of at least three federal felonies would not be enthusiastic about the publication of the FBI’s summary of its supporting evidence (much as he would, no doubt, like to see the summary for himself). Trump, however, clearly realizes that the court is not going to unseal the warrant at this premature stage. His pose thus helps him in the court of public opinion: He appears to be pushing for transparency while the Justice Department is pushing for concealment.

Despite the sky-is-falling rhetoric from the competing sides, Thursday’s hearing will not be of epic significance or the final word on the matter. The judge is surely going to decline for now to disclose the affidavit (or at least the parts of the affidavit people are interested in), but it will ultimately be disclosed.

One of the many oddities of the Mar-a-Lago search is that it comes in the middle of a criminal investigation (I would say, a number of criminal investigations) to which it may be relevant. In a normal criminal case, the government will wait to execute search warrants until it is ready to end the investigative phase by arresting and charging people. If it has probable cause to get a search warrant, the government nearly always has probable cause for an arrest warrant, too. In fact, quite often the same affidavit is filed to support arrest warrants and search warrants. Investigators would rather wait until the end of their probe to seek both, because investigations are best done in secrecy, without tipping off suspects while evidence is still being covertly gathered. Once suspects know they are under investigation, police and prosecutors worry, they might destroy evidence, work on getting their story straight (which could undermine later interviews), and perhaps even flee.

Moreover, once a search pursuant to warrant is done, everybody knows there is an affidavit under seal with the court that likely lays out the government’s case. The detail is sure to include the basis for the investigators’ suspicions and enough information about informants and witnesses whom the suspects, if they could read the affidavit, would easily be able to identify. Consequently, if the court were to order the public release of the Mar-a-Lago search affidavit at this stage, then the ongoing investigation(s) could be blown, witnesses would be identified and subjected to intense and even vituperative media scrutiny, and existing streams from which investigators may still be getting valuable information would dry up.

Furthermore, it would set a precedent that search affidavits should be released whenever there is public curiosity about a criminal investigation. That would not be in the public interest. It would induce the Justice Department and FBI to no longer seek court-authorized warrants when it may be safest and most opportune to seize evidence, for fear that avenues of investigation that are still bearing fruit will be exposed and shut down. It might well, for example, force the FBI to extract from an investigation well-placed informants or undercover agents who are still collecting evidence.

There is no compelling reason to go this route, especially since the affidavit will eventually be released.

Once an investigation is at its end, charges to which the search is relevant either will or will not be filed. If they are, then any defendant who is charged will receive the search affidavit in discovery. It will then become public — as is usually the case — during pre-trial litigation over evidence derived from the warrant. On the other hand, if charges are not filed, then the media and other interested parties will file Freedom of Information Act claims, and the government will no longer have the excuse that disclosure would harm an active investigation.

Let’s assume that Judge Reinhart does not recuse himself from the warrant matter (curiously, he has recused himself in another Trump case but not yet this one). I believe he will substantially deny the motion to publish the affidavit at this time. I further suspect that he will schedule a status conference for the government to update him (ex parte, without the presence of the movants) about whether the investigation is nearing a conclusion. He might direct the government to notify the court and the movants when the investigation has concluded so that they can renew their disclosure motions (unless the affidavit has already been disclosed by then). Ordinarily, in such cases, the court should require periodic updates so that the government is reminded that there remains interest in disclosure, and that the matter cannot stay under wraps forever.

The affidavit will not be unsealed on Thursday. But we will ultimately learn what’s in it — perhaps sooner rather than later.