The affidavit used to obtain a warrant to search former President Donald Trump’s Mar-a-Lago home will be unsealed, and the Department of Justice must justify every redaction it seeks to make to the material, Magistrate Judge Bruce Reinhart ruled yesterday. While Thursday’s decision represents a victory for the media outlets seeking access to the documents, whether the public sees anything of substance in the short term remains to be seen.
Following the unprecedented raid on the former president and de facto leader of the Republican Party, the Department of Justice agreed to release the search warrant and the accompanying attachments that described the places to be searched and identified the items to be seized. The government also filed an unsealed, but redacted, copy of the property receipt list, and yesterday, with the government’s agreement, the court unsealed the criminal cover sheet, the government’s motion to seal the search warrant, and the court’s order sealing the warrant and related materials.
The Department of Justice, however, refused to unseal the search warrant affidavit used to obtain the search warrant, even as multiple media outlets argued in motions that they had a First Amendment right to access that material. Thursday afternoon, Reinhart heard oral argument on the consolidated motions and quickly made clear he believed some portions of the affidavit needed to be unsealed.
“On my initial careful review … there are portions of it that can be unsealed,” Reinhart told the attorneys. Then, following arguments, the court issued an order finding “that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed.” The court further directed the government to file under seal, by Thursday, August 25, 2022, “its proposed redactions along with a legal memorandum setting forth the justification for the proposed redactions.”
In opposing the motion to unseal the search warrant affidavit, the DOJ had argued it “carefully considered whether the affidavit can be released subject to redactions,” but concluded that “the redactions necessary to mitigate harms to the integrity of the investigation would be so extensive as to render the remaining unsealed text devoid of meaningful content…” That argument, coupled with the DOJ’s representations during yesterday’s hearing, suggests that when the government submits its proposed redactions next Thursday, they will be extensive.
Specifically, in seeking to keep the affidavit sealed in its entirety, DOJ lawyer Jay Bratt argued that the “very detailed and lengthy” affidavit contained “substantial grand jury” information and in a case with “national security overtones.” Bratt also stressed the government’s concern for “the safety of the witnesses,” with the prosecutor noting the risk that “‘amateur’ internet sleuths” might uncover their identities and contact information. Then, pointing to the failed attempt to attack FBI agents in Cincinnati, Ohio, Bratt argued the situation was “volatile,” justifying extreme measures.
The government further argued that releasing the affidavit created “the threat of possible obstruction and interference” — a threat that exists in all cases, but which Bratt claimed proved particularly acute in this situation. “The court has found probable cause that there was a violation of one of the obstruction statutes, and that evidence of obstruction could be found in a redacted version of the affidavit,” the DOJ attorney maintained, a veiled suggestion that the release of the affidavit might prompt Trump or his representatives to destroy or hide evidence. Bratt also highlighted that the investigation remained in its “early stages,” positing that unsealing the affidavit could harm the probe.
These arguments suggest that the government will seek to redact any information connected to witnesses or confidential human sources, and not merely their names, job titles, or relationship with Trump or Mar-a-Lago. What the witnesses purported to witness, where they were physically located, and what they told the FBI, the DOJ is likely to argue must be redacted to protect their identity. The government seems sure to seek the redaction of the various steps taken in investigating Trump as well, with attorneys likely to say that such information would provide Trump and his attorneys a roadmap to the case, and thereby harm the investigation.
In considering the DOJ’s arguments for redaction, Reinhart won’t have the benefit of a counterargument, however, because the DOJ’s filing will be under seal and unopposed. Yet, the DOJ may have unwittingly provided the court with the best counter-argument to its claim of the need for secrecy with the many leaks about the investigation reaching the press.
During Thursday’s hearing, Reinhart explained that after the DOJ files its proposed redactions and the accompanying legal memorandum with the justification for keeping those details sealed, “he would then review the document and either order its release if he agrees with the redaction or hold a closed-door hearing with the government if he disagrees.” The court would then enter an order unsealing the affidavit with the redactions deemed appropriate by the court, but temporarily staying the release of the material to allow for the DOJ to appeal his decision.
The DOJ may not wish to wait until then to appeal, though. Rather, the DOJ might seek immediate review of Reinhart’s decision that the affidavit must be unsealed but with redactions. Such a review would occur first at the district court level because of Reinhart’s status as a magistrate judge. From the district court, the DOJ could further appeal to the 11th Circuit Court of Appeals and even seek review by the United States Supreme Court.
It is possible that the district court and the appellate courts will rule that before appealing, the DOJ must first present redactions to the magistrate judge, but even the process of seeking review and losing will delay the release of the documents.
Alternatively, if the DOJ argues the magistrate judge erred as a purely legal matter in ordering the unsealing of the document, with or without redactions, because there is no First Amendment right of access to sealed search warrant materials, pre-indictment, review by the district court immediately and later the 11th Circuit would be appropriate. This strategy would delay the release of any information from the affidavit for some time, while the review and then appellate process played out. And then, even if the DOJ lost on appeal, it would merely return the case to the magistrate judge to argue over the appropriate redactions.
At that point, strategically, the DOJ would push for the most extensive redactions possible, with the intent to appeal any rejected by Reinhart, meaning the case would ascend to the district court and 11th Circuit again, and then potentially the Supreme Court.
Delaying the release of the material long enough to advance its “investigation” against Trump may be enough to satisfy the DOJ, no matter the outcome of an appeal. But the attorney general and U.S. attorney must also be cognizant of the potential for establishing unfavorable precedent that will apply in cases of mobsters or gangs or drug or sex traffickers. And so, the government may prefer to fight as little as possible here, believing that revealing some information about its investigation into Trump is far superior to having a federal appellate court rule that the press has a First Amendment right to access all sealed search warrant affidavits — something that’s possible if the DOJ fights this on appeal.
The DOJ may also realize that the more it fights to keep the search warrant affidavit sealed, the more political and unjustified the search appears to the average American who already sees the raid on Trump’s home as abusive. Accepting yesterday’s loss and moving forward with narrow and tailored redactions might be the best way for the DOJ to end that portion of the public relations nightmare.
However, that approach will only work if the DOJ has nothing to hide, and history suggests that is unlikely. Unfortunately, history also indicates it is unlikely the public will see the search warrant affidavit anytime soon, especially if the prosecutors play a delay game.