The search warrant that authorized the FBI to seize purloined government documents from former President Donald Trump's home at his Palm Beach resort sheds some light on the justification for that unprecedented and politically explosive step. So does the inventory of the items that the FBI seized, which was unsealed last week along with the warrant. But the affidavit that the FBI submitted to obtain the warrant, which explained why the bureau thought it had probable cause to believe it would discover evidence of criminal conduct, includes a lot more detail that would help answer lingering questions about the FBI's investigation.
That is why several news organizations are asking U.S. Magistrate Judge Bruce Reinhart, who approved the warrant, to unseal the affidavit. It is also why the Justice Department argues that the affidavit should be kept under wraps. Reinhart, who is hearing the arguments of both sides today, is apt to agree with the government. But the Justice Department's case for keeping the affidavit sealed, which it laid out in a brief filed this week, is itself revealing in several ways.
Juan Antonio Gonzalez, the U.S. attorney for the Southern District of Florida, begins by noting the reasons for unsealing the warrant and the inventory. "Given the circumstances presented in this matter and the public interest in transparency, and in the wake of the former President's public confirmation of the search and his representatives' public characterizations of the materials sought," Gonzalez writes, "the government moved to unseal the search warrant, its attachments, and the Property Receipt summarizing materials seized, which motion this Court granted." But he adds that "the affidavit supporting the search warrant presents a very different set of considerations."
Gonzalez warns that "disclosure of the search warrant affidavit would irreparably harm the government's ongoing criminal investigation." In case there was any doubt, that argument confirms that the Mar-a-Lago search was not aimed merely at securing classified material and recovering documents that belonged in the National Archives under the Presidential Records Act. It was also aimed at finding evidence that could support criminal charges against Trump and/or his underlings.
Gonzalez says the affidavit contains "highly sensitive information" about "specific investigative techniques" and "witnesses interviewed by the government." If it were disclosed, he says, "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." He adds that "information about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation."
That argument confirms that the FBI relied on inside sources not only to show that Trump improperly took government documents with him when he left office—which was already clear from the 15 boxes of material that his representatives surrendered to the National Archives and Records Administration in January and the additional documents that the Justice Department obtained under a grand jury subpoena in June—but also to show that unrecovered items remained at Mar-a-Lago. That point would have been crucial in obtaining the warrant, which was based on the likelihood that the search would find records "possessed in violation of" three federal laws: 18 USC 793, which deals with mishandling of "defense information"; 18 USC 2071, which applies to someone who "conceals, removes, mutilates, obliterates, or destroys" U.S. government documents; and 18 USC 1519, which makes it a felony to conceal "any record, document, or tangible object" with the intent to "impede, obstruct, or influence" a federal investigation.
"Disclosure of the government's affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations," Gonzalez says. In other words, the FBI is still seeking informants who could help build a criminal case. Given the potential for felony charges under the statutes cited in the warrant, not to mention the law that makes lying to the FBI a crime punishable by up to five years in prison, the bureau probably will find more insiders who are willing to cooperate.
"The fact that this investigation implicates highly classified materials," Gonzalez says, "further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly." That argument highlights how little we know about the documents that the FBI seized.
According to the search warrant inventory, the FBI recovered 11 sets of classified documents with markings ranging from "confidential" to "top secret." The top-secret documents include some labeled "SCI," or "sensitive compartmented information," an especially restricted category. But without knowing, even in general terms, what sorts of information those documents contain, it is hard to assess the FBI's claim that leaving them at Mar-a-Lago, or waiting for Trump to finally turn them over, posed an intolerable threat to national security. The affidavit presumably would illuminate that issue, which is one reason news outlets are keen to see it. But it is also one reason the government says they can't.
After the Justice Department sought to unseal the search warrant and the inventory, Trump welcomed that prospect. "Not only will I not oppose the release of documents related to the unAmerican, unwarranted, and unnecessary raid and break-in of my home in Palm Beach," he said, "I am going a step further by ENCOURAGING the immediate release of those documents, even though they have been drawn up by radical left Democrats and possible future political opponents, who have a strong and powerful vested interest in attacking me, much as they have done for the last 6 years."
That position was a bit puzzling, since Trump could have shared those documents immediately after the search but chose not to do so. But now he is all in favor of more transparency.
"There is no way to justify the unannounced RAID of Mar-A-Lago, the home of the 45th President of the United States (who got more votes, by far, than any sitting President in the history of our Country!), by a very large number of gun toting FBI Agents, and the Department of 'Justice,'" Trump wrote on Truth Social this week. "But, in the interest of TRANSPARENCY, I call for the immediate release of the completely unredacted affidavit pertaining to this horrible and shocking BREAK-IN."
The idea that Trump would benefit from the affidavit's disclosure seems more than a little dubious. Such documents, by their very nature, present a one-sided narrative aimed at persuading a judge that a search is apt to find evidence of one or more crimes. They do not include potentially exculpatory information, which would undermine that argument.
Trump seems to think more details about the FBI's investigation will energize his supporters by reinforcing his reflexive claim that he is once again a victim of a partisan "witch hunt." More likely, that information would give pause to at least some people who otherwise would be inclined to accept Trump's take.
Right after the Mar-a-Lago search, Fox News host Laura Ingraham, a longtime Trump buddy, amplified his claim that it was the product of a partisan vendetta. "As images of Trump supporters waving flags and holding signs saying, 'In Trump I Trust,' played," The Washington Post noted, Ingraham "demanded that Republicans purge the federal government if they retake power in Congress." She said federal officials who "have abused their power" must be "held accountable."
After the search warrant and inventory were unsealed, however, Ingraham was singing a different tune. "People conflate Trump with people's overall sense of happiness in the country," she said during a podcast interview. "Donald Trump's been a friend of mine for 25 years, and I'm always very open about this on my show. But you know, we'll see whether that's what the country wants….The country, I think, is so exhausted. They're [so] exhausted by the battle, the constant battle, that they may believe that, well, maybe it's time to turn the page if we can get someone who has all Trump's policies [but] who's not Trump."
The Post reports that "some within Trump's circle believe that releasing the [affidavit] would give him additional ammunition to attack the integrity of the Justice Department's inquiry," while "others fear that such a move could backfire because they do not know exactly what it contains." That fear seems well-grounded.
"It's an advocacy document," a "former senior Justice Department official who has closely watched the case unfold" told the Post. While "everything needs to be true, " this unnamed source said, "there's no exculpatory information. It's never a good story for the defendant."
Trump insists that the classified documents cited by the FBI, contrary to their markings, were not really classified. He says he had "a standing order" as president that automatically declassified anything he happened to remove from the Oval Office. Because of that purported decree, he says, it is absurd to claim that he violated 18 U.S. 793 by mishandling "defense information" that "could be used to the injury of the United States or to the advantage of any foreign nation."
Depending partly on whether there actually was such a "standing order," that argument may or may not hold water. Furthermore, it does not address the viability of charging Trump with obstruction or with improperly retaining government documents, although it probably would be difficult for the government to meet the mens rea requirements for convicting Trump under those laws. But whatever the legal merits of his defense, Trump does not claim the FBI is framing him for a crime that someone else committed. He claims there is no crime to investigate. It seems unlikely that the affidavit would help him make that case.