WASHINGTON (CN) — To have its agents execute a search warrant last week at Mar-a-Lago, the south Florida home of former President Donald Trump, the FBI had to lay out its case in a sworn affidavit to U.S. Magistrate Judge Bruce E. Reinhart.
That document remains under seal and hotly sought after by both members of the media and a conservative nonprofit.
Ahead of a Thursday afternoon hearing where Reinhart will hear the argument to make the affidavit public, experts see that result as something of a long shot — even with Trump stating publicly that he would not oppose release.
“While Trump has claimed on social media that he doesn't oppose release, that is a far cry from filing a formal legal document taking a legal position that he does not oppose release,” said Jennifer Rodgers, who joined the U.S. Attorney's Office for the Southern District of New York in 2000 and stayed there in various capacities for over a decade.
According to records unsealed by the court last week, 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.”
Rodgers, who today is a legal analyst for CNN and New York University law professor, explained how the affidavit summarizes the evidence that the FBI has developed thus far.
“It would describe why the FBI believes that Trump took the subject documents from the White House to Mar-a-Lago, what the FBI thinks are contained in the documents (in general terms), why the FBI believes the documents could harm the U.S. if they fell into the wrong hands, and why they have reason to believe Trump and/or associates destroyed documents,” she said in an email.
What could hurt the argument to unseal, Rodgers said, is the Justice Department’s claim that the move could impact FBI sources.
For that reason, Rodgers puts the chances of the document getting unsealing as remote.
“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,” she said.
She predicted the the affidavit could include evidence of interactions between Trump and his associates with the National Archives, the FBI and the Justice Department, as well as redacted witness statements and evidence from documents previously recovered from Mar-a-Lago. The National Archives had noted in January that at least 15 boxes of White House records that should have been given to the agency when Trump left office were ultimately retrieved from Mar-a-Lago.
Former federal prosecutor Daniel Richman told Courthouse News on Tuesday that “the need to give a basis for someone’s knowledge can be quite revealing,” but he also doubts that the news outlets and nonprofit will prevail.
“While affidavits will generally be disclosed in discovery at trial, they are rarely disclosed right after a search, and I would be surprised if the judge ordered that here,” said Richman, a law professor at Columbia Law School.
And even if the affidavit is released, Rodgers explored a few questions that she says will likely remain unanswered.
“If the affidavit were released, it would still not reveal the names of witnesses or informants, and it wouldn't contain information that has been developed during the investigation that is unrelated to the search,” she said.
The Justice Department successfully worked to have the search warrant and a redacted property receipt unsealed last week.
Thursday’s hearing centers on an Aug. 10 motion to unseal by the conservative outfit Judicial Watch. Several news media outlets, including The New York Times, The Washington Post, CNN, CBS News and NBC News, have joined in the fight.
In a statement on Friday, Trump insisted that the materials seized by FBI agents from his estate earlier that week were “all declassified.”
His son Eric Trump told Fox News host Sean Hannity on Monday that his family is planning to release surveillance tapes of the FBI search of his father’s mansion “at the right time.”
Republicans on the House Committee on the Judiciary penned letters on Monday to U.S. Attorney General Merrick Garland, FBI Director Christopher Wray and White House chief of staff Ronald Klain, decrying the raid as “a shocking escalation of the Biden Administration’s weaponization of law-enforcement resources against its political opponents.”
The committee members demanded they turn over all documents and communications referring or relating to the execution of a search warrant on President Trump’s residence by Aug. 29, and to “preserve all documents that are or may be potentially responsive to this inquiry.”
House Speaker Nancy Pelosi said last week that the raid was a “major step” during an interview on NBC’s "Today Show,” and said that Democrats believe “no person is above the law … not even a former president of the United States.”
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