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Affidavit for FBI search of Trump’s Mar-a-Lago will go public, with redactions

While the Department of Justice says disclosure could harm an ongoing investigation, Team Trump says the real reason is to "thwart President Trump from running again.”

(CN) — The sworn affidavit that brought FBI agents inside former President Donald Trump’s south Florida resort home, Mar-a-Lago, must be made public in less than 24 hours, a federal ruled Thursday.

U.S. Magistrate Judge Bruce Reinhart wrote in the 2-page order that he found the government “has met its burden of showing that its proposed redactions are narrowly tailored to serve the government’s legitimate interest in the integrity of the ongoing investigation.”

The redactions, Reinhart wrote, are “the least onerous alternative to sealing the entire affidavit.”

Justice Department representatives did not immediately respond to an email request for comment on the decision requiring it to make the affidavit public by noon Friday.

Reinhart's decision comes one week after he heard arguments from media groups and a conservative nonprofit that claimed the affidavit, which states probable cause for the search warrant, should be unsealed because it is of substantial public interest.

Redacted versions of the search warrant and property receipt, which lists items seized by the FBI, were already made public earlier this month by Judge Reinhart at the behest of the Department of Justice. 

According to the records unsealed by the court, the FBI took about 20 boxes of documents, including 11 sets of classified records, from Mar-a-Lago on Aug. 8. Among the seized materials were the grant of clemency to the former president's close ally Roger Stone, binders of photos and what is described as “info re: President of France.”  

Unsatisfied with the warrant and property receipt, the groups insisted in court filings that Judge Reinhart should also unseal the affidavit because “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 Justice Department meanwhile argued in a response brief that even though the “general nature” of the investigation is publicly known, “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.” 

Ruling from the bench last week, Judge Reinhart gave the Department of Justice until this afternoon to submit proposed redactions and to outline justification for what the department wants to keep hidden from the public.

On Monday, he issued a written order affirming his earlier decision to make the FBI submit proposed redactions for the affidavit. 

While he rejected the Department of Justice’s claim that drafting the redactions would take too much time and resources, Reinhart wrote in Monday’s order that the redactions might be so “extensive” – it would render the affidavit “meaningless” if released to the public. 

Come Thursday, Reinhart reviewed the proposed redactions and found that the government sufficiently proved parts of the affidavit should remain sealed because disclosure would reveal identities of witnesses, law enforcement agents and uncharged parties, the investigation’s strategy, direction, scope, sources, and methods, as well as grand jury information. 

Former federal prosecutor Jennifer Rodgers told Courthouse News earlier this month that even a redacted version of the affidavit could raise problems for the FBI.  

“Even though source names are not used, often sources can be identified by how they are described and the information they shared, and that could lead to a source ending his/her cooperation, or to witness tampering,” Rodgers said in an email.  

Trump, for his part, is not contesting the effort to unseal the affidavit and has criticized the raid as a “political witch hunt,” insisting he verbally “declassified” the sensitive documents seized by the FBI from Mar-a-Lago. 

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His attorney, Christina Bobb, attended last week’s hearing at the U.S. District Court for the Southern District of Florida as a spectator, telling ABC News she had no plans to file or argue anything. 

Although Trump did not oppose unsealing the search warrant materials, on Monday afternoon his counsel filed a motion in the federal court for the Southern District of Florida, asking a judge to block the FBI from reviewing classified documents seized during the August raid until a “special master” or third party is appointed to independently oversee the FBI review “to protect the integrity of privileged documents.” 

The 27-page motion for judicial oversight claims that the FBI’s August raid on Trump’s resort home violated the Fourth Amendment and that government officials refuse to give the former president any reasoning for the “unprecedented” search. 

Because the seized documents were “created during his term as President,” Trump’s counsel argues they are “’presumptively privileged’ until proven otherwise.’” 

“Only an evaluation by a neutral reviewer, a Special Master, can secure the sanctity of these privileged materials,” the motion states. 

Late Monday night, after Trump’s counsel filed the motion seeking to delay FBI review of the August materials, new details emerged about a different set of classified materials retrieved by the Archives from Trump’s Mar-a-Lago home in January – namely, that he also took steps to delay the FBI from reviewing those materials earlier this year.

The developments were revealed by conservative media outlet Just the News, which posted on its website a copy of a May 10 letter from then Acting Archivist of the United States, Debra Wall Steide, to Trump’s attorney, Evan Corcoran, regarding his requests to delay the FBI from reviewing the January materials.  

In June, Trump appointed Just the News’ editor John Solomon to be an official representative with access to his administration records. The Archives confirmed authenticity of the letter by posting a copy of it on the government’s website the following day.  

Until this week, details about the January materials were scarce, as the Washington Post broke the story in February, reporting that Archives officials said 15 boxes of documents and other items had been transferred from Mar-a-Lago to the agency. 

In the May letter, the National Archives and Records Administration [NARA] said it “had ongoing communications” with Trump’s representatives throughout 2021 “about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January 2022.” 

Upon initial review of the January materials, the Archives said it found more than 100 classified documents in 15 boxes, some of which were marked as “classified national security information … up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.”  

The Archives said it alerted the Department of Justice “about that discovery,” which is what led the department to ask President Joe Biden’s permission to request that the Archives give the FBI access “to the boxes at issue so the FBI and others in the Intelligence Community could examine them.” 

"Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps,” the letter states. 

After the White House Counsel’s Office “acquiesced” to Trump’s lawyer’s initial request to hold off on giving the FBI access to the January materials, the Archivist said his counsel asked for another time extension on April 29, the day FBI agents were supposed to be granted access. 

Trump’s counsel insisted they still needed more time to determine if any document is subject to executive privilege, including extra time for the former president to “personally make any decision to assert a claim of constitutionally based privilege.’”  

And if the Archives denied the request, Trump’s counsel said the agency should consider their April letter to serve as “a protective assertion of executive privilege made by counsel for the former President.” 

Biden left it up to Acting Archivist Wall Steide to determine whether to uphold Trump’s executive privilege claims, in consultation with the Assistant Attorney General for the Office of Legal Counsel. 

The assistant attorney general advised her that, “there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where ‘such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available,’” she wrote. 

It is not necessary, Wall Steide wrote, that she determines “whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions.” 

“The question, in this case, is not even a close one,” she wrote. “Accordingly, the only end that would be served by upholding the ‘protective’ assertion here would be to delay those very important reviews.” 

While the Archivist resisted Trump’s privilege claims over the January materials, it remains to be seen how his motion asserting privilege over the August materials will play out in court. 

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