This week, a curious scene will play out in a Florida courtroom. A federal magistrate will be asked to uphold what are expected to be extensive redactions of the affidavit supporting the search warrant on Mar-a-Lago. The judge, however, will be able to read an array of the same details at breakfast in newspaper accounts leaked by the government.
The feds have maintained that absolute secrecy is essential to protect their investigation and national security while reportedly leaking some of the very information the affidavit contains. It is an all-too-familiar pattern for some of us who have litigated national-security cases against the government.
The Washington Post and The New York Times have published a series of leaks clearly designed to put Donald Trump and his team on the defense in the media, including claims that he was hiding sensitive nuclear-weapons material and details on how the search was prompted by video surveillance outside the storage room at Mar-a-Lago.
Most recently, a Times report disclosed that the Justice Department recovered more than 300 documents with classified markings, citing multiple sources connected to the investigation. The leak further revealed that the government collected more than 150 documents marked as classified in January and another 150 in June and in the August raid. It also recounted specific meetings and individuals involved in past discussions.
The Times story made the purpose of the leak evident when reporters concluded that the divulged information “suggested to officials that the former president or his aides had been cavalier in handling it, not fully forthcoming with investigators, or both.”
This is precisely the type of information the government has refused to release under a claim that any disclosures would materially endanger the investigation and national security.
In addition, both the Trump team and the National Archives and Records Administration have released accounts of the communications leading up to the raid. NARA put out a letter from May 10 that suggested the Biden White House was involved in the controversy and detailed how Trump sought repeatedly to block the archives from sharing documents taken from Mar-a-Lago with the FBI.
Despite the leaks and these public accounts, the Justice Department is still implausibly insisting that no substantive information can be released in a redacted affidavit. These affidavits commonly have sections on the case background that can be released in redacted form without compromising sources, including confirmation of how the FBI presented facts the Trump team and NARA allege.
There are also common legal sections that discuss the basis for probable cause. The government alleged that Trump was “unlawfully” holding material that he claims to have declassified. It references presidential papers Trump holds, but the ability of presidents to retain documents under the Presidential Records Act remains a matter of intense debate.
On both the legal and factual background, a redacted affidavit could reveal whether this information was presented fairly and accurately. It is a reasonable concern for many in the public given the record of the FBI and the Justice Department in falsifying information or misleading courts on prior Trump investigations. During the Russian-collusion investigation, some of us flagged Justice officials using the presumptively unconstitutional Logan Act.
The legal sections could reveal both the basis and nexus used to establish probable cause of criminal acts. It could well support the government, but there is no reason why such legal arguments cannot be released in part.
These sections could also shed light on why the court approved a warrant that was ridiculously broad. It allowed the FBI to seize not only any box containing any paper with any classification marking, but then allowed it to take every other box stored with that box. It also allowed the seizure of any paper created during the Trump presidency. It had all the selectivity of a cyclone. The legal section of the affidavit could disclose how such a seemingly limitless warrant was justified under the law.
Some of these sections could also explain how the department justified this extraordinary action very different from how it treated past figures like Hillary Clinton and her associates who resisted inquiries into classified material kept on unsecured servers, including top-secret material. There were also allegations of efforts to influence investigators.
These are legitimate questions that could be answered through the redacted affidavit or simply an independent Justice Department disclosure. Attorney General Merrick Garland has had at least four opportunities to take modest steps to assure the public on the department’s motives and means in this controversy. This includes the use of a special master to sort through the documents seized in this overbroad search. Garland failed to take any of these steps as he lashed out at those who question his department’s integrity.
The fact is that affidavits are routinely released after charges to the defense. Though it’s certainly less common before charges, this is a unique circumstance that justifies greater transparency while recognizing the need to protect confidential sources and methods. The Justice Department does not deny it can release a redacted affidavit but insists any material would be so limited and disconnected as to be incomprehensible.
That simply doesn’t appear to be true. It is plainly implausible that these sections cannot be released in some form without compromising confidential sources or the already publicly known investigation. Garland cannot ignore his department’s checkered history in Trump-related investigations or the contrast in treatment with past investigations like Clinton’s classified emails.
That does not mean this investigation is baseless or that there were no crimes committed. But with modest disclosures, Garland can earn the trust of the public rather than simply demand it.
Jonathan Turley is an attorney and professor at George Washington University Law School.
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