The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Government's Argument Against Unsealing Mar-A-Lago Search Warrant Affidavit
The search warrant and some related materials have been unsealed—but the affidavit is where the details on the justifications for the search would be, and the government says this has to remain secret, at least for now.
From the Government's Response to Motions to Unseal; I hope to also blog the media entities' replies when they are filed:
On August 8, 2022, the Department of Justice executed a search warrant at the premises located at 1100 S. Ocean Blvd., Palm Beach, Florida 33480, a property of former President Donald J. Trump. 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, the government moved to unseal the search warrant, its attachments, and the Property Receipt summarizing materials seized, which motion this Court granted. Those docketed items, which had already been provided to the former President's counsel upon execution of the warrant, have now appropriately been made public.
The affidavit supporting the search warrant presents a very different set of considerations. There remain compelling reasons, including to protect the integrity of an ongoing law enforcement investigation that implicates national security, that support keeping the affidavit sealed. {The government has carefully considered whether the affidavit can be released subject to redactions. For the reasons discussed below, 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. Nevertheless, should the Court order partial unsealing of the affidavit, the government respectfully requests an opportunity to provide the Court with proposed redactions.} …
"In the Eleventh Circuit, potential prejudice to an ongoing criminal investigation represents a compelling government interest that justifies the closure of judicial records." In Valenti, for example, the Eleventh Circuit concluded that the district court properly denied a newspaper's motion to unseal transcripts from closed court proceedings "as a necessary means to achieving the government's compelling interest in the protection of a continuing law enforcement investigation." As Judge Jordan explained in the context of one "highly-publicized criminal case," there are compelling reasons not to release non-public information in an ongoing investigation that could "compromise the investigation and might . . . lead to the destruction of evidence." Even when the public is already aware of the general nature of the investigation, revealing the specific contents of a search warrant affidavit could alter the investigation's trajectory, reveal ongoing and future investigative efforts, and undermine agents' ability to collect evidence or obtain truthful testimony. In addition to the implications for the investigation, the release of this type of investigative material could have "devastating consequences" for the reputations and rights of individuals whose actions and statements are described. For these reasons, courts in this jurisdiction have consistently denied motions to unseal investigative records—including search warrant affidavits—in ongoing criminal investigations….
Here, the government has a compelling, overriding interest in preserving the integrity of an ongoing criminal investigation…. From [earlier] disclosures, the public is now aware of, among other things, the potential criminal statutes at issue in this investigation, see D.E. 17:4 (Attachment B to the search warrant) (permitting the government to seize materials "constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519"), and the general nature of the items seized, including documents marked as classified, see D.E. 17:5-7 (Property Receipt). The government determined that these materials could be released without significant harm to its investigation because the search had already been executed and publicly acknowledged by the former President, and because the materials had previously been provided to the former President through counsel.
Disclosure at this juncture of the affidavit supporting probable cause would, by contrast, cause significant and irreparable damage to this ongoing criminal investigation. As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e). 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. In addition, 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. {This is not merely a hypothetical concern, given the widely reported threats made against law enforcement personnel in the wake of the August 8 search.} 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. The fact that this investigation implicates highly classified materials 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.
{Given that the Court is considering motions to unseal this affidavit merely days after reviewing these materials and approving the warrant application, the government is mindful that this Court is familiar with the highly sensitive contents of the affidavit and the specific harms that would result from its unsealing. However, if the Court would like the government to file a sealed ex parte supplement that addresses with more specificity the contents of the affidavit and the harms identified in this response, the government stands ready to do so.} …
Further, and in view of what the government has already moved to make public, there is no "less onerous alternative to sealing" the affidavit. Unlike the Property Receipt—which the government moved to unseal subject to minor redactions, including to protect the identity of law enforcement officials—the affidavit cannot responsibly be unsealed in a redacted form absent redactions that would be so extensive as to render the document devoid of content that would meaningfully enhance the public's understanding of these events beyond the information already now in the public record. There is simply no alternative to sealing that could ensure the integrity of the government's investigation and that would prevent the inevitable efforts to read between the lines and discern the identities of certain individuals, dates, or other critical, case-specific information.
The case law cited by the intervenors is readily distinguishable. Many of those cases involved unsealing requests made well after charges were filed. See, e.g., United States v. Peterson, 627 F. Supp. 2d 1359, 1374 (M.D. Ga. 2008) ("Defendant is already under indictment"); United States v. Shenberg, 791 F. Supp. 292, 293 & n.1 (S.D. Fla. 1991) (defendants were already under indictment, and charges were "well known and have been extensively reported by the media"); United States v. Vives, No. 02-20030 CR, 2006 WL 3792096 (S.D. Fla. Dec. 21, 2006). In other cited cases that involved requests to unseal warrants in the investigation phase—in other words, before any charges—the court ultimately concluded that the government's compelling interest in protecting the integrity of its investigation outweighed any public right of access. E.g., In re Search Warrant for Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 574 (8th Cir. 1988) (rejecting disclosure request); Bennett, 2013 WL 3821625 (same); Patel, 2019 WL 4251269, at *4 ("The Court finds that unsealing the underlying [search warrant] affidavit and related documents would severely prejudice the Government's ongoing investigation"); In re Search of Wellcare Health Plans, Inc., No. 8:07-MJ-1466-TGW, 2007 WL 4240740, at *2 (M.D. Fla. Nov. 28, 2007) ("The protection of this continuing law enforcement investigation is a compelling governmental interest that outweighs the public's interest in immediate access to" the warrant affidavit). And in In re Four Search Warrants, 945 F. Supp. 1563 (N.D. Ga. 1996), involving the 1996 Atlanta Olympic bombing investigation, "the criminal investigation into [the search subject's] participation in the bombing ha[d] ended" and he was "no longer considered a suspect" by the time the media sought the search warrant materials. Unsurprisingly, none of these cases concerned circumstances remotely similar to these—where there is an active investigation and a search was executed just days ago. Thus, while the intervenors quote these opinions for general principles about the right of access, the actual application of those principles in those cases favors the government's position here.
