Feds Oppose Unsealing Affidavit Used To Obtain Mar-a-Lago Search Warrant (UPDATE: Hearing Set For 8/18/2022)

Feds Oppose Unsealing Affidavit Used To Obtain Mar-a-Lago Search Warrant (UPDATE: Hearing Set For 8/18/2022)

Numerous outlets, led initially by Judicial Watch and followed by the NY Times, Times Union, and many others, have filed motions in court seeking to have the Affidavit supporting the search warrant raid on Mar-a-Lago released.

DOJ just filed its Opposition. Unlike the warrant and inventory list, DOJ says the Affidavit is too sensitive and cannot be redacted:

The affidavit supporting the search warrant presents a very different set of considerations. There remain compelling reasons, including to protect the integrity of an ongoing law enforcement investigation that implicates national security, that support keeping the affidavit sealed.1

1 The government has carefully considered whether the affidavit can be released subject to redactions. For the reasons discussed below, 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, and the release of such a redacted version would not serve any public interest. Nevertheless, should the Court order partial unsealing of the affidavit, the government respectfully requests an opportunity to provide the Court with proposed redactions.

The government does not oppose unsealing certain other information, like the original motion to seal the warrant, but otherwise says national security would be jeopardized:

Here, the government has a compelling, overriding interest in preserving the integrity of an ongoing criminal investigation. As the government has readily acknowledged, the circumstances here—involving a search of the premises for a former President—involve matters of significant public concern….

Disclosure at this juncture of the affidavit supporting probable cause would, by contrast, cause significant and irreparable damage to this ongoing criminal investigation. As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e). If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps. In addition, information about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation.5

5 This is not merely a hypothetical concern, given the widely reported threats made against law enforcement personnel in the wake of the August 8 search. See, e.g., Alan Feuer et al., “Armed Man Is Killed After Trying to Breach FBI’s Cincinnati Office,” N.Y. Times (Aug. 11, 2022), available at https://www.nytimes.com/live/2022/08/11/us/fbi-cincinnati-shootingnews; Josh Margolin, “Authorities Monitoring Online Threats Following FBI’s Mar-a-Lago Raid,” ABC News (Aug. 11, 2022), available at https://abcnews.go.com/US/authoritiesmonitoring-online-threats-fbis-mar-lago-raid/story?id=88199587.

Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations. The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly.6

6 Given that the Court is considering motions to unseal this affidavit merely days after reviewing these materials and approving the warrant application, the government is mindful that this Court is familiar with the highly sensitive contents of the affidavit and the specific harms that would result from its unsealing. However, if the Court would like the government to file a sealed ex parte supplement that addresses with more specificity the contents of the affidavit and the harms identified in this response, the government stands ready to do so.

Redaction is not possible, the feds say:

Unlike the Property Receipt—which the government moved to unseal subject to minor redactions, including to protect the identity of law enforcement officials—the affidavit cannot responsibly be unsealed in a redacted form absent redactions that would be so extensive as to render the document devoid of content that would meaningfully enhance the public’s understanding of these events beyond the information already now in the public record. There is simply no alternative to sealing that could ensure the integrity of the government’s investigation and that would prevent the inevitable efforts to read between the lines and discern the identities of certain individuals, dates, or other critical, case-specific information.

More to follow.

Note the feds are using the Cincinnati incident. But the NY Times article they cite does not attribute a motive to the perp, and another article says he was on the feds radar for months and also does not attribute his attack to the Mar-a-Lago raid. The ABC News article is just a “wrap up smear” where the press repeats what the feds are saying about unspecified threats, and then the feds use the press reports as proof.

There is no doubt that if names of informants and witnesses were disclosed, it might pose a threat, but why not just redact those names? It appears the feds don’t even want to try to reasonably redact the affidavits, they don’t want anything disclosed. (As an aside, I don’t know if Trump’s lawyers would have copies of the affidavits, since there is no criminal proceeding, just an “investigation”).

The feds have a problem in playing this close to the vest — this is not just any raid. Harvard Law Prof. Jack Goldsmith notes that Merrick Garland appears unprepared for the implications of what he has unleashed:

Several sensible commentators—including George Will, Damon Linker, and David Brooks—think Attorney General Merrick Garland made a mistake, perhaps a disastrous one, in executing the search warrant at Mar-a-Lago. (They made these claims before the federal magistrate unsealed the warrant and the inventory of seized materials.) They worry that the search will, in Will’s sedate words, harm “social comity” and “domestic tranquility.”

Which is not to say that Garland made the wrong decision. On that question it is far too early to tell. Will is right to suggest that Garland’s decision, even if scrupulously nonpolitical in intent, is “inherently political” and should be judged by how well he “adjust[s] tidy principles to untidy realities” and “balance[s] competing objectives.” And the bar should be very high before the Justice Department in an administration run by Trump’s former and probably future political opponent, uses unprecedented criminal process against Trump—especially given our cleaved politics, upcoming elections, and the well-documented mistakes and illegalities that the Justice Department and FBI committed in pursuing Trump in the past….

Several other factors will inform how Garland’s actions here are judged. It obviously matters if Garland indicts anyone following this search. A prosecution—of either Trump or his associates—would raise the stakes significantly higher. Garland could have executed the warrant in good faith as a last-ditch effort to secure sensitive documents and yet decide, as a matter of prosecutorial discretion, that any discovered criminal activity should not be prosecuted for prudential reasons—including national harmony, worries about revealing classified information at trial, or doubts about a successful prosecution.

The final factor concerns where the Mar-a-Lago action fits into the larger picture of Justice Department actions against Trump, including, for example, any criminal action related to Jan. 6….

Garland may have no way out except to prosecute. Or resign.

More

I just noticed the reference to Rule 6(e). That relates to grand jury secrecy. That suggests this is heading towards prosecution. Garland’s going to go for it. As I wrote when this first broke, probably after the midterms:

There’s obviously a full-on DOJ-FBI effort to get Trump on something. That’s part of what’s happening here. But there’s probably a lot that we don’t know about how that is going to happen. I think we’ll find out right after the midterms when DOJ/FBI slam  down whatever hammer they think they have.

Even More

Just saw this from Sean Davis:

Biden’s corrupt AG Merrick Garland is going to use a corrupt DC grand jury taken from a pool of 95% hardcore Democrat partisans to indict Trump.

He’ll then use a corrupt DC trial jury from the same rigged pool to convict Trump. Dems want a constitutional crisis, so buckle up.

— Sean Davis (@seanmdav) August 15, 2022

UPDATE 12-16-2022

The court has set an in-person hearing:

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