Judge Says Part Of Trump Search Affidavit Could 'Presumptively Be Unsealed'

The federal magistrate judge who authorized the FBI search warrant of former President Donald Trump's Florida residence said he could release portions of the underlying affidavit to the public, pending proposed redactions by federal prosecutors. 

Judge Bruce Reinhart said Thursday he was "not prepared to find the affidavit should be fully sealed," during a court hearing between members of the media and the Justice Department. 

"There are portions of it that could, at least, presumptively be unsealed."

Media organizations including The New York Times, CBS News and others asked the court to unseal the affidavit, arguing the affidavit's release would help the public determine if the Justice Department had legitimate reasons for the search. Trump, too, has called for the release of the unredacted affidavit, though his lawyers have not been entered as interested parties in the court proceedings.

The judge gave prosecutors one week to file their proposed redactions to the affidavit – which likely contains a more detailed accounting of the reasons behind last week's Mar-a-Lago search — and said he will make a decision after that. 

Prosecutors from the Justice Department's National Security Division said they opposed the release of the affidavit "to protect the integrity of an ongoing law enforcement investigation that implicates national security."

That investigation is examining Trump's handling of presidential records after the National Archives and Records Administration said in January it had retrieved 15 boxes of presidential records, some of which contained classified national security material, from Mar-a-Lago, and asked the Justice Department to look into the matter.

The Justice Department, with the approval of Attorney General Merrick Garland, sought the search warrant that resulted in the Aug. 6 law enforcement action at Trump's resort. Reinhart, who has seen the affidavit and examined any evidence from investigators, authorized the search warrant on Aug. 5. He told the court Thursday that in approving the government's warrant, "all the information that the court relied upon is in the affidavit." 

Newly unsealed court documents revealed more about the exact laws investigators say may have been broken: "18 U.S.C. § 793 Willful retention of national defense information; 18 U.S.C. § 2071 Concealment or removal of government records; and 18 U.S.C. § 1519 Obstruction of federal investigation."

Last week, the court unsealed the warrant itself with the consent of both Trump's lawyers and federal prosecutors, an unusual move spurred by the former president's public acknowledgment of the FBI search. 

The media outlets argued that the affidavit and all other documents related to the investigation should be unsealed, based on the intense public interest in the case. 

In court on Thursday, Jay Bratt, the high-ranking Justice Department official spearheading the probe, responded, "There is another public interest at stake: that criminal investigations are able to go forward." 

Releasing the affidavit, he argued, would interfere with the investigation, which Bratt said is "in its very early stages." 

But the media contended that at least a redacted version should be released because it could satisfy both the public interest in the case and investigators' intent in continuing the probe unencumbered. 

"We, the people, are the ultimate stakeholders," Chuck Tobin said on behalf of the media organizations. "Transparency serves the public interest in understanding the results. You cannot trust what you cannot see." 

"You are standing in for the public. You are the gatekeeper," Tobin said to the judge, who has since received threats from far-right internet trolls after finding "probable cause" to authorize the Trump warrant. 

"I am inclined to say I am not going to seal the entire document," Reinhart revealed in court Thursday.

He issued an order saying, "I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed."

Reinhart ordered the Justice Department to propose redactions to the affidavit by next Thursday, after which, "I will issue a judgment accordingly," Reinhart said. 

"I may agree with the government and we may be done. I may not agree." 

Federal investigators are looking into allegations that Trump mishandled classified information after improperly bringing documents from the White House to the Florida estate.

The former president has also claimed that he declassified the documents at issue before he left office, and he denies any wrongdoing. On Thursday, Trump circulated on social media an order from January 2021, shortly before he left office, in which he declassified federal material tied to the FBI's investigation into alleged ties between Trump and Russia. It is not clear whether these were among the documents were found in the Aug. 8 search at Mar-a-Lago. 

A federal grand jury issued a subpoena related to the investigation in the spring, according to sources familiar with the matter, and Trump attorneys met at Mar-a-Lago with Justice Department officials later in June. The online news outlet Just the News first reported the existence of the subpoena.

A lawyer for Trump later signed a document certifying all classified materials had been removed from Mar-a-Lago, CBS News has learned, but the now-released search warrant inventory created following the search last week indicated that the signed document was incorrect — 11 more sets of classified documents were recovered. 

First published on August 18, 2022 / 2:43 PM

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