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No parts of the Mar-a-Lago affidavit should've been publicly released

The release was a dramatic departure from the normal secrecy afforded an affidavit supporting a search warrant application and put the investigation into Trump at risk.

UPDATE (Aug. 26, 2022, 4:20 p.m. ET): This story has been updated throughout to reflect that a copy of the redacted FBI affidavit used to justify a search of Mar-a-Lago has been released.

On Friday afternoon, the Justice Department unsealed a redacted version of the affidavit that supported the FBI’s search of Donald Trump’s Mar-a-Lago estate. The move came the day after Magistrate Judge Bruce Reinhart approved the release.

It’s an outcome that should have been avoided.

Even this partial disclosure of the affidavit is an extraordinary blunder. Such an order is a dramatic and ill-conceived departure from the normal secrecy afforded an affidavit supporting a search warrant application, especially at an early stage of an investigation.

During a hearing last week, the government had vehemently argued against the release of any parts of the affidavit. The hearing occurred after news organizations, including NBC News, asked for its release.

An affidavit with much of its text blacked out, like the one released Friday, is more likely to engender public distrust and promote conspiracy theories than if the entire document had remained sealed.

In response to the news organizations’ request, government lawyers stated in a court filing before the hearing that publicly releasing the affidavit “is highly likely to compromise future investigative steps“ and affect the willingness of future witnesses to cooperate.

On Monday, Reinhart released a written order explicitly acknowledging the strength of the government’s arguments.

In it, he admitted that, first, any disclosure might increase the risk that the FBI special agent who signed the affidavit and other witnesses could be identified via social media. Second, the government’s claim that disclosure would reveal sources and methods used by investigators made sense. And his third reason should appeal to even the most ardent Trump supporter: The affidavit describes the physical premises of Mar-a-Lago; this information could make the Secret Service’s job of protecting Trump more difficult.

Reinhart seemed to validate arguments that would justify a decision to deny even a partial release of the affidavit. But here we are now, with the public reading what should’ve been kept under wraps.

Unsurprisingly, the situation presented government lawyers with a conundrum.

They were faced with seeking to appease the court by submitting a redacted affidavit or spurning the opportunity to submit a proposal that would permit even limited public disclosures. 

The lawyers should’ve chosen the latter, with the Justice Department preserving its position that any disclosure, no matter how limited, could impair the investigation and potentially allow the identification of witnesses whose testimony supported the search warrant application.

Refusing to support any disclosure, however modest, made sense as the magistrate’s ruling was the beginning, not the end, of the litigation.

Reinhart’s order for a redacted affidavit could have been appealed to the United States district court. That ruling, in turn, could have been appealed.

Although the Supreme Court ruled in 1978 in a case involving the copying of former President Richard Nixon’s White House tapes that the public has a qualified right to review court records, the court stated that such a right is not absolute, and a court can deny access.  

Reinhart acknowledged this principle in Monday’s order.

In 2005, a federal appellate ruling applied this standard to deny disclosure of a search warrant affidavit. The media unsuccessfully sought the release of the affidavit justifying a search warrant executed in an investigation of the Sept. 11, 2001, terrorist attacks. The affidavit remained sealed when the 4th Circuit Court of Appeals upheld a magistrate judge’s order sealing a more than 100-page affidavit. 

The court of appeals wrote: “The documents presented to the court demonstrate that the government’s interest in continuing its ongoing criminal investigation outweighs the petitioners’ interest in having the document opened to the press and the public.”

That’s the precise point that government lawyers were arguing to Reinhart.

The very existence of redactions can create misunderstanding. The parties seeking the release of the entire affidavit will have no role in deciding what is redacted. Neither they nor the public will know whether the redactions alter the gist of the affidavit.   

An affidavit with much of its text blacked out, like the one released Friday, is more likely to engender public distrust and promote conspiracy theories than if the entire document had remained sealed.

In this super-charged political environment, even this partial release of the affidavit’s contents could imperil the investigation. Law enforcement agents and potential witnesses might find themselves in danger from zealots motivated by the frenzied rhetoric about the search of Mar-a-Lago.

On Monday, when it seemed like there was a chance that such a release might not have happened, Reinhart wrote that these “concerns are not hypothetical,” citing the attack on the FBI office in Cincinnati and “increased threats to FBI personnel” since the search.

That being said, the rule of law, the integrity of the investigation and the safety of law enforcement personnel and witnesses demanded that the affidavit should’ve remained sealed.

With the harsh national spotlight laser-focused on the Florida court proceedings, the danger caused by this wrong judicial decision to release the affidavit is incalculable.