I didn’t know if they would go there. But they did.A large group of media entities sought to intervene in Judicial Watch’s motion to unseal all documents regarding the FBI raid on Mar-a-Lago. The government in response itself moved to unseal the Warrant and Receipt for seized items. But the feds oppose release of the Affidavit used to obtain the warrant on the grounds that it would interfere with ongoing criminal investigations and threaten national security. So sensitive is the Affidavit that the feds said it couldn’t even be unsealed in redacted form.As a general matter, search warrant affidavits are not released until and unless criminal charges are filed. But this was no ordinary raid – it was a raid on a former president and (almost certain) presidential candidate who (likely) will be the Republican nominee.But more, the feds have been leaking like a sieve, or more appropriately, like a fire hose on full blast.Fortunately, in addition to Judicial Watch’s Reply, these media entities in a Consolidated Reply filed late today catalogued how many details have been reported by them. Almost all of those details would have had to come from the feds because team Trump would not be in a position to know what the FBI was doing behind the scenes. From the Reply (for the footnoted links see the document):
Indeed, the press has already widely reported significant details about the events leading up to the search and the investigation, including that:
• Some of the materials sought in the Mar-a-Lago search related to nuclear weapons5 and/or “special access programs”6;• The National Archives referred the matter to the Justice Department after it retrieved 15 boxes of materials from Mar-a-Lago in January7;• Some of the materials recovered by the National Archives were classified, including signals intelligence8;• Some of the recovered materials were torn up and needed to be taped back together9;• The Department of Justice launched an investigation and convened a grand jury10;• This spring, the Department of Justice served a subpoena on Trump seeking additional classified materials in his possession11;• Department of Justice officials, including Jay Bratt, the department’s chief of counterintelligence and export control, met at Mar-a-Lago in June with Trump attorneys Christina Bobb and Evan Corcoran12;• During the June meeting, Trump briefly stopped by but did not answer any questions13;• Also during the June visit, the group toured storage facilities at Mar-a-Lago and reviewed some materials there14;• Bratt subsequently sent an email to Corcoran instructing him to further secure the area where the documents were kept15;• One of Trump’s attorneys signed a letter to the Department of Justice stating that all materials marked as classified and held in storage at Mar-a-Lago had been turned over16;• The Department of Justice also subpoenaed surveillance footage from Mar-a-Lago, which showed that boxes were moved in and out the storage room where the records at issue were kept17; and• Justice Department officials interviewed many current and former Trump employees, at least one of whom indicated there may have been additional classified materials remaining at Mar-a-Lago18.
To the extent that the affidavit of probable cause contains any of this information, or other details about the investigation already reported in the press, there is no compelling interest in maintaining it under seal. Instead, those portions of the affidavit should be made public even if the Court finds a compelling interest to maintain other discrete portions under seal.
Some of these reports may be accurate, some inaccurate, and most likely, a lot of partial truths/partial falsities intended to litigate the case not in court, but in the media.
So, having turned on the leak fire hose full blast just three months from national elections, it’s pretty cheeky for the feds now to claim everything about the circumstances leading up to the raid has to be kept under seal.
That’s the winning argument. Not to unseal the entire affidavit — I can’t see that happening — but to limit the redactions.
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