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Release of Trump’s search warrant affidavit was a major blunder

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

On Friday afternoon, the Justice Department released an edited version of the affidavit supporting the FBI’s search for Donald Trump’s Mar-a-Lago estate. The move came the day after Magistrate Judge Bruce Reinhart approved the release.

It is an outcome that should have been avoided.

Even this partial disclosure of the affidavit is… an extraordinary blunder. Such a warrant is a dramatic and ill-considered departure from the normal secrecy that an affidavit provided in support of a search warrant, especially in the early stages of an investigation.

At a hearing last week, the government had argued strongly against releasing parts of the affidavit. The hearing took place after news organizations, including NBC News, asked for his release.

An affidavit with much of the text obscured, like the one released Friday, is more likely to stir public distrust and promote conspiracy theories than if the entire document had been sealed.

In response to the news organizations’ request, government attorneys stated in a court filing for the hearing that publicly releasing the affidavit is “very likely jeopardize future research stepsand influence the willingness of future witnesses to cooperate.

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

In it, he admitted that, for one, any disclosure could 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 researchers made sense. And his third reason should appeal to even the most ardent Trump supporter: The affidavit describes the physical buildings 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, as the public reads what should have been kept hidden.

Unsurprisingly, the situation has puzzled government attorneys.

They faced trying to appease the court by submitting a redacted affidavit or rejecting the opportunity to file a proposal that would allow even limited disclosure.

The lawyers should have opted for the latter, with the Justice Department maintaining its position that any disclosure, however limited, could harm the investigation and potentially allow the identification of witnesses whose testimony supported the search warrant.

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

Reinhart’s order for a redacted affidavit could have been appealed in the United States Court. That decision in turn could have been appealed.

Although the Supreme Court ruled in a 1978 case involving the copying of the White House tapes of former President Richard Nixon that the public has a qualified right to access court records, the court ruled that such a right is allowed. . not absolutelyand a court may refuse entry.

Reinhart acknowledged this principle in Monday’s order.

In 2005, a federal appeals ruling applied this standard to deny the disclosure of an affidavit of a search warrant. The media unsuccessfully sought the release of the affidavit justifying a search warrant executed in an investigation into the September 11, 2001 terrorist attacks. The affidavit remained sealed when the 4th Circuit Court of Appeals upheld a magistrate’s order that a sworn statement of more than 100 pages sealed.

The court of appeal wrote:“The documents submitted to the court show that the government’s interest in continuing the ongoing criminal investigation outweighs the petitioners’ interest in opening the document to the press and the public.”

That’s exactly the point that government attorneys had against Reinhart.

The very existence of redactions can lead to misunderstandings. The parties requesting the release of the full affidavit will have no role in deciding what will be redacted. Neither they nor the public will know if the editorial changes the gist of the affidavit.

An affidavit with much of the text obscured, like the one released Friday, is more likely to stir public distrust and promote conspiracy theories than if the entire document had been sealed.

In this overburdened political environment, even this partial release of the contents of the affidavit could jeopardize the investigation. Law enforcement officers and potential witnesses can be put at risk from fanatical minds motivated by the frenzied rhetoric about the search for Mar-a-Lago.

Monday, when it looked like there was a chance that such a release may not have happened, Reinhart wrote that these “concerns are not hypothetical,” citing the attack on the FBI’s Cincinnati office and “heightened threats to FBI personnel.” ” since the search.

That said, the rule of law, the integrity of the investigation, and the safety of law enforcement officers and witnesses demanded that the affidavit should have been kept sealed.

With the harsh national spotlight on Florida’s court proceedings, the danger posed by this erroneous court decision to release the affidavit is incalculable.

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