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What To Do When You're Stopped By Police - The ACLU & Elon James White

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Thursday, August 18, 2022

Judge May Release Affidavit in Trump Search, but Only After Redaction

Judge May Release Affidavit in Trump Search, but Only After Redaction

“The possibility emerged after news organizations sought to unseal the affidavit submitted in support of the search warrant. Any public version of the affidavit could be heavily redacted.

Deanna Shullman, a lawyer for a coalition of news outlets seeking to unseal the affidavit, outside the federal courthouse in West Palm Beach, Fla., on Thursday.
Saul Martinez for The New York Times

WEST PALM BEACH, Fla. — A federal judge ordered the government on Thursday to propose redactions to the highly sensitive affidavit that was used to justify a search warrant executed by the F.B.I. last week at former President Donald J. Trump’s private home and club, saying he was inclined to unseal parts of it.

Ruling from the bench, the judge, Bruce E. Reinhart, said it was “very important” that the public have as “much information” as it can about the historic search at Mar-a-Lago, Mr. Trump’s Florida residence. He noted later in a written order that the government “had not met its burden of showing that the entire affidavit should remain sealed.”

Judge Reinhart went on to say that he was leaning toward releasing portions of the document, adding that “whether those portions would be meaningful for the public or the media” was not for him to decide. He also acknowledged that the redaction process could often be extensive and sometimes turned documents into “meaningless gibberish.”

In its fullest form, the affidavit supporting the warrant would reveal critical details of the broader investigation into Mr. Trump’s handling of sensitive documents, chief among them what led prosecutors to believe there was probable cause that evidence of a crime existed at Mar-a-Lago. Even a redacted version could shed light on aspects of the inquiry, such as the back-and-forth negotiations between Mr. Trump and federal prosecutors about returning the documents, a crucial step in showing that the former president may have willfully kept them in his possession.

Judge Reinhart’s decision in the closely scrutinized case appeared to strike a middle course between the Justice Department, which had wanted to keep the affidavit entirely under wraps as it continued to investigate Mr. Trump’s retention of classified documents, and a group of news organizations, which requested that it be released in full to the public.

As part of his ruling, Judge Reinhart ordered the government to send him under seal proposed redactions to the warrant affidavit by next Thursday at noon. He said he would review the suggestions and decide if he agreed with them. But he did not set a specific date for the affidavit to be released.

“This is going to be a considered, careful process,” Judge Reinhart said.

The Justice Department did not immediately respond to Judge Reinhart’s ruling, but privately, officials said they were surprised by the decision.

The hearing, in Federal District Court for the Southern District of Florida, emerged from an effort last week by a coalition of news organizations to unseal the affidavit, a document that is almost always kept under seal until charges are filed. Among the news organizations making the request were The New York Times, The Washington Post and Dow Jones & Company.

It is unlikely, however, that any critical details of the inquiry, including issues related to probable cause or the identities of witnesses who were interviewed by prosecutors, will make it into the redacted version of the affidavit.

At the request of the Justice Department, Judge Reinhart has already unsealed the warrant itself and two attachments to it. Those documents revealed, among other things, that prosecutors have been looking into whether Mr. Trump violated the Espionage Act, mishandled government records and obstructed a federal investigation by removing boxes of material from the White House at the end of his tenure.

Outside the courthouse in downtown West Palm Beach, news media vans and cameras lined the street, prompting a passer-by to remark that someone famous must be inside. More than three dozen reporters filed into the courtroom, wearing masks at the court’s request. A few curious members of the public also attended.

Before the proceeding began in earnest, Judge Reinhart unsealed a few more ancillary documents connected to the warrant affidavit that all of the parties had agreed to release. They included a redacted copy of the warrant application, the original order to seal the warrant and the government’s request to seal the warrant.

A top Justice Department lawyer began the arguments in front of Judge Reinhart by admitting that the search of Mar-a-Lago had attracted “heightened public interest,” but he still opposed the request to unseal the affidavit. It was a “very detailed and reasonably lengthy” document that would provide a guide to the department’s continuing inquiry into Mr. Trump, he said.

The lawyer, Jay Bratt, the chief of the Justice Department’s counterintelligence and export control section, which has led the investigation from the outset, noted that if the affidavit were publicly available, it could reveal the government’s next investigative steps and jeopardize the safety of its witnesses at a moment when the search of Mar-a-Lago had resulted in multiple threats against federal agents and others.

On social media, Donald J. Trump has called for the affidavit that was used to justify a search by the F.B.I. to be released.
Jamie Kelter Davis for The New York Times

“This is a volatile situation with respect to this particular search across the political spectrum, but certainly on one side in particular,” Mr. Bratt said. “There is a real concern not just for the safety of these witnesses, but to chill other witnesses who may come forward and cooperate.”

In court papers filed on Monday, prosecutors said much the same, strongly objecting to the affidavit being made public and arguing that it offered a “road map” to their inquiry. In their papers, prosecutors also said that the release of the affidavit could harm “other high-profile investigations,” but did not specify which inquiries they were referring to.

Under questioning by Judge Reinhart, Mr. Bratt said that the department did not want to release even a redacted version of the affidavit, arguing that it could set a poor precedent for future cases.

“It is not a practice that we endorse and certainly would object to it very strongly,” he said.

Speaking for the news media coalition, a lawyer, Charles D. Tobin, said this was a “case of historic importance” and argued there was great public interest in understanding the underlying justification for the search.

“The raid on Mar-a-Lago by the F.B.I. is already one of the most significant law enforcement events in the nation’s history,” Mr. Tobin said, asking Judge Reinhart to provide “transparency” into the process.

“You are standing in for the public, your honor,” Mr. Tobin said at one point. “You are the gatekeeper.”

In court papers filed on Wednesday, the news organization group quoted Attorney General Merrick B. Garland who wrote, while he was a judge, about the right of public access to judicial records being “a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent judicial branch.”

Although Mr. Trump himself has called on social media for the affidavit to be released — echoing similar demands made by congressional allies like Senator Lindsey Graham, Republican of South Carolina — his lawyers were conspicuously absent from the legal proceeding surrounding the unsealing process. At any time, Mr. Trump could have filed papers asking Judge Reinhart to make the affidavit public, but he chose not to.

Indeed, one of Mr. Trump’s lawyers, Christina Bobb, showed up at the courthouse for the hearing, but only as an observer, not a participant, she told reporters. Ms. Bobb confirmed that Mr. Trump’s legal team did not intend to get involved in the arguments about the warrant affidavit.

The search of Mar-a-Lago, on Aug. 8., ignited a firestorm of condemnation from right-wing figures in the news media and congressional Republicans, resulting in rallying cries to defund and destroy the F.B.I. and even warlike calls for violence. Three days after agents descended on Mar-a-Lago, an armed man apparently enraged by the search tried to breach the F.B.I.’s Cincinnati field office and was subsequently shot to death after trading gunfire with the local police during a standoff.

Even Judge Reinhart himself had been dragged into the furor surrounding the search.

In the days after Judge Reinhart signed the warrant, several threats — some of them antisemitic — were issued against him and his family on pro-Trump message boards with one person writing, “I see a rope around his neck.”

Patricia Mazzei reported from West Palm Beach, Fla., and Alan Feuer from New York. Glenn Thrush contributed reporting from Washington.“

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