His move means that the next phase of this dramatic saga will unfold with Justice Department officials, who had vehemently argued for keeping the document under seal, making a case for which details must be kept private. Judge Bruce Reinhart plans to hear more from the DOJ by next Thursday about how extensively investigators will seek to redact the affidavit before any public release.
The Mar-a-Lago affidavit is fated to become one of the most scrutinized documents in modern American politics, possibly taking its place alongside the Pentagon Papers and President Richard Nixon’s tapes as an artifact that helps define an iconic controversy and the legacy of a dramatic Washington moment.
Thursday’s hearing is sure to fuel a week of speculation as lawyers and media pundits puzzle over the fascinating possibilities of what the affidavit contains and the implications for Trump’s legal exposure and likely 2024 presidential bid.
It also caught some legal observers off guard.
“It was very surprising and I think that he is feeling the pressure from the public to find out what is going on,” retired judge Nancy Gertner, who now teaches at Harvard Law School, told CNN’s Anderson Cooper. Gertner, however, said she would be further surprised if much detail from the document was released.
A released document could be disappointing
Despite tantalizing possibilities, any affidavit reveal is likely to be disappointing, given the focus on highly classified national security documents, the need to protect witnesses who may be inside Trump’s circle and the fear of exposing more FBI agents to safety threats arising from the ex-President’s rhetoric.
“I think what we are going to actually see is Swiss cheese,” conservative lawyer George Conway, a prominent critic of the former President, said on CNN’s “The Situation Room with Wolf Blitzer” on Thursday. “But that being said, it’s going to be something to actually see page after page of blacked-out material going onto I don’t know how many pages,” he added. “(It) is going to give us the feeling that there really is something behind the curtain.”
The question of how much information from the affidavit reaches the public will be the result of granular discussions between the judge and a Justice Department that has already warned disclosure could severely damage its investigation.
The debate will turn on a vital question that is especially significant given Trump’s ambitions to soon announce a 2024 White House bid and his long record of crushing the truth: How much information should the public be given in order to instill trust in what is one of the most critical Justice Department investigations in years, which has already been caught in efforts to politicize it from all sides?
Debunking Trump’s claims of persecution
The claims of naked political persecution issued by Trump and his supporters in conservative media are hysterical and politically motivated. They’ve been echoed even by senior Republicans who lack any inside knowledge of the offenses that the former President and those around him may have committed.
But that irresponsibility doesn’t mask the fact that this is a highly unusual and explosive case given that it involves a former president and head of state — even one with Trump’s history of facing multiple investigations.
Presidents are not typically pursued by the Justice Departments of their successor administrations. Even though the Biden White House has repeatedly stressed the independence of the DOJ, the public is being asked to take a great deal on trust at a moment when the nation is devastatingly split over politics, with millions of people believing Trump’s false claims that the 2020 election was stolen.
In a filing to the court, media companies seeking the unsealing of search warrant records, including CNN, noted, “not since the Nixon Administration has the federal government wielded its power to seize records from a former President in such a public fashion. … the tremendous public interest in these records in particular outweighs any purported interest in keeping them secret.”
The US Capitol insurrection and the eruption of fury on the right over the search at Mar-a-Lago have, meanwhile, shown how violence simmers below the surface of US politics. The FBI has reported a surge in threats toward its personnel, following a backlash against the search whipped up by Trump and his supporters.
This in itself plays into arguments for unsealing the material since the former President has filled the vacuum of knowledge with politically motivated falsehoods and conspiracy theories that risk polluting the public’s perception of the investigation and discrediting any eventual case it brings.
Trump is also using the furor to raise a massive haul of campaign cash. The ex-President’s coffers were being filled at a rate of $1 million a day immediately following the search, a source familiar with the figures told CNN’s Kaitlan Collins, as donors respond to an endless torrent of campaign emails and texts.
If Trump were guilty of such an offense, it would mark yet another extraordinary transgression in his wild political career — the possibility that an ex-president actually put national security at risk because of his behavior. Such a charge would also raise fears among national security experts about the implications of a second Trump term.
DOJ warns release could effectively end its investigation
Contrary to Trump’s claims, the Justice Department appears to be focused on criminal rather than political considerations.
Lawyer Jay Bratt, who heads the DOJ’s counterintelligence section, argued to the judge on Thursday that the affidavit that was used to obtain a search warrant is long and contains substantial grand jury information. Revealing it to the public would “provide a roadmap to the investigation,” and could even indicate its next steps, he said. Bratt did acknowledge a public interest in transparency, but raised a competing public interest in criminal investigations proceeding unimpeded.
“The Department of Justice is on the horns of a dilemma. I would imagine this is an affidavit even more exhaustive than most because they knew what the target was and they knew that there would be pushback,” Gertner, the law professor, said. “And so now having laid it all out and more in an affidavit, to have the risk that everything that they are doing become public must be very troubling to them.”
Still, while it is following legal procedures that weigh against full transparency, the Justice Department is operating in a highly politicized environment, especially as Trump partisans demand the full unveiling of documents and justification for the raid.
Former Trump national security adviser John Bolton suggested that the DOJ could describe the type of classified information that the FBI expected to take from Mar-a-Lago in a partially redacted affidavit — in a way that does not threaten sources and methods and potentially disclose information helpful to US enemies.
“I think this is going to be very hard to do,” Bolton told CNN’s Cooper. But he added: “I just think if the department insisted on the normal practice of complete confidentiality of the affidavit, it is going to take a terrible beating in Congress even from people who are trying to help it out.”
Events of the last weeks and months, however, offer another strong reason why large sections of the affidavit are unlikely to be released publicly any time soon.
Bratt warned that the FBI had faced a surge in threats since the search, including a standoff at a bureau field office in Cincinnati and threats from “amateur sleuths” on the internet. Another concern would be that sources mentioned in the affidavit could face reprisals from Trump’s orbit, chilling other witnesses who could be fearful of coming forward if they faced public outrage.
Trump has already demanded the full release of the affidavit on his social media network, a call that might hint at his desire to find out the identities of any witnesses.
This saga is unfolding following warnings from the House select committee probing the January 6, 2021, insurrection that Trump had tried to contact at least one witness in its investigation. Those who have taken part in the panel’s televised hearings have also faced a fierce campaign of intimidation and political ostracization by the former President.
“I think there is a realistic concern here — not just boilerplate — but a realistic concern that witnesses could be affected,” Robert Litt, a former principal associate deputy attorney general, told CNN’s Erin Burnett on Thursday.
“If you know that your name may be released publicly, you are going to be less likely to come forward and tell the truth than if you are going to be protected.”
This, among other reasons, is why the judge’s decision to move forward in a process of unsealing the document may eventually produce much less clarity on this critical case than many outsiders wish to see.