The Department of Justice squared off in a Florida court Thursday against an unlikely set of opponents. On the one hand, a collection of some of the most influential mainstream media outlets. On the other, the conservative activist group Judicial Watch.
This unlikely coupling united to argue for the release of the affidavit supporting the search warrant executed last week at Mar-a-Lago, former President Donald Trump’s Florida home. The Justice Department argued that the case under investigation is still in its early stages and too precarious to allow the release of such a sensitive document.
While both Judicial Watch and the media had the same goal in mind, getting the receipts that convinced a federal magistrate to sign off on the warrant, it’s worth noting the divergent motives behind their arguments.
The main case made by the media companies who have filed to have the warrant records released is that the public has a right to know the reasoning behind a former president’s property being searched. And as The New York Times acknowledged in its original Aug. 10 filing, while the unsealing of documents normally comes at the end of an investigation, this is not a normal case.
“The investigation has been made public by the target of the warrant himself, details of the investigation have appeared in publications throughout the world, members of Congress have demanded that the Justice Department provide an explanation, and political commentary on the search continues unabated,” the Times argued. “In short, with so much publicity surrounding the search, the Court should be skeptical about government claims that disclosure of this true information will invade privacy, disturb the confidentiality of an investigation, tip off potential witnesses, or lead to the destruction of evidence.”
The Justice Department’s lawyers countered that thinking in an omnibus response to the various motions to unseal by basically saying “no, the affidavit release will definitely mess up this investigation.” The affidavit would divulge “highly sensitive information about witnesses, including witnesses interviewed by the government” and “specific investigative techniques,” their Monday filing asserted. “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.”
Even if the court disagreed, the Justice Department argued, “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.” In other words, whatever could be safely released would be useless, so why bother?
It’s in Judicial Watch’s response to that argument that we can see where the divide between it and the media lies. Where the outlets in question see the transparency that the documents’ release would provide as a way to advance the public good, Judicial Watch founder Tom Fitton clearly frames the affidavit as a potential weapon against the Biden administration.
“The Biden administration is compounding the obvious abuse of the raid on Trump’s home with an arrogant assertion of secrecy about its unprecedented action,” he said in a statement Wednesday. “The Biden administration has created a crisis of confidence in its ability to fairly administer justice which requires, in the least, basic transparency about its extraordinary targeting of President Trump.”
Trump himself seems to think similarly. He’s posted on Truth Social, the social media platform he founded, that the affidavit should be released in full and that the contents of it will vindicate him. Taylor Budowich, one of his lawyers, tweeted as much Thursday, saying that “no redactions should be necessary and the whole affidavit should be released, given the Democrats’ penchant for using redactions to hide government corruption, just like they did with the Russia hoax.”
That an affidavit that convinced a federal judge to agree to a search of a former president’s home is somehow good for Trump feels delusional
Even leaving aside that last bit about the “Russia hoax,” that an affidavit that convinced a federal judge to agree to a search of a former president’s home is somehow good for Trump feels delusional. So does Trump reportedly considering releasing the surveillance footage of the FBI search at Mar-a-Lago. We already know that the search was appropriate given that classified material was seized, so how on earth would footage of FBI agents calmly walking around a resort counter that?
We can’t know the thinking behind these statements as Trump’s lawyers didn’t file any documents related to the case. Attorney Christina Bobb, who was there for the FBI search, appeared at Thursday’s hearing but was just there as “an observer,” she told reporters. Not exactly the actions of someone champing at the bit to get the full affidavit out there.
I understand why Judicial Watch would want to jump into the fray on this case — the publicity the group will get among conservative media and Trump’s base can’t be overstated. Even if the results aren’t helpful to Trump, it can at least fundraise on the fact that it forced the Justice Department's hand. Trump and his clique’s motives are less apparent, though. They, in fact, seem devoid of any sort of real strategy on their threatened transparency aside from, as The Washington Post’s Greg Sargent argues, a belief that Trump “can spin its release to his advantage no matter what’s in it, so formidable are his magical reality-bending powers.”
In the end, U.S. Magistrate Judge Bruce Reinhart split the difference: He ordered that the Justice Department file a proposed redaction of the affidavit for release by Aug. 25; Reinhart will do his own redaction and compare the two versions. In the meantime, he also agreed to release a few more documents related to the warrant that don’t tell us much of anything new.
When what remains legible of the affidavit is finally released, though, don’t expect it to be the last nail in Trump’s coffin. The ordered redactions may protect the Justice Department's investigation, but it’s also likely that they’ll be spun, as Budowich implied, to show that the real reason Trump was raided is still being covered up. While the media will get at least a partial win, and the public will learn at least some of the facts, the Trump acolytes of the world will still have plenty of conspiracies to feed their base.
