In an unusual move in an already unprecedented investigation, the judge contemplating whether to publicly release the government affidavit detailing the evidence used to seek a search warrant authorizing the seizure of government documents stored at Donald Trump's Mar-a-Lago club is now indicating that he's willing to consider such a release—at least in part.
Magistrate Judge Bruce Reinhart has ordered the Justice Department to present a version of the affidavit with their proposed redactions by next Thursday, after which he would make his final ruling.
The Justice Department strongly argued against releasing even a redacted version, citing a "real concern" for the safety of the witness and the exposure of the "investigative techniques" being used to gather evidence. It's for these reasons that affidavits detailing the evidence the government has gathered to justify warrants in criminal investigations are almost never released, at least not until indictments are handed down and the resulting court cases begin. Giving those being investigated for crimes an up-to-the-minute roadmap of how the government knew where to search and why would obviously jeopardize the investigation going forward.
Department of Justice Chief of Counterintelligence Jay I. Bratt argued to the court that after all the redactions necessary to protect the investigation were made, "there would be nothing of substance" left.
Reinhart, who knows what's in the affidavit in question and signed the order to seal it in the first place, wasn't convinced, and ordered the department to produce proposed redactions for public release before he rules.
Trump's legal team made no arguments for or against the release, even after taking to fascist media outlets to demand it, but the same Republican lawmakers who have thrown themselves to Trump's defense in the past have been screaming for the affidavit precisely because of what it contains: a detailed outline of the government's current evidence against Trump, including testimony by witnesses who may have seen the classified documents firsthand or have firsthand knowledge of how they got there, or what efforts Trump's team went to in order to hide the documents from government investigators.
Multiple media outlets have asked that the affidavit be released as well, citing a public interest in its contents.
It still appears vanishingly unlikely that Reinhart would agree to release a fully unredacted version of the affidavit, but even a release of a partial version would be remarkable. It's also possible that Reinhart—who, again, has already read the document in full—won't agree with the full scope of the Justice Department's desired redactions. And even partial information, such as the revelation of what a redacted witness saw or when, could help Trump's defenders estimate what else the government might know and what it still doesn't.
But it is also possible that a redacted release would backfire spectacularly for Trump's defenders. By its nature, an affidavit details the crimes the government believes were committed and sworn testimony outlining every bit of evidence investigators have to convince a judge that evidence of that crime can be found in a specified location.
In Donald Trump's case, those details will include "violations of the Espionage Act" and, likely, "because government-tracked national security documents went missing in the White House on such-and-such a date but were later discovered to be inside a storage box inside Donald Trump's private club, nearly a year and a half after he lost all presidential authority to have them."
It's even vaguely possible that Reinhart, who was subject to death threats and other vitriol from Trump's far-right supporters for authorizing the warrant to begin with, might lose no sleep over publicly releasing a redacted warrant that goes into stark detail as to just what went missing, how dangerous it would be in unauthorized hands, and a date-by-date rundown of all the various interactions federal agents had with Trump and his legal team in their efforts to retrieve the classified information without a warrant.
It has been reported that federal agents had reason to believe Trump and his subordinates were lying to them about the presence of the documents. Their evidence that Trump was attempting to hide the documents from investigators will unquestionably have been included in the affidavit.
We won't know until at least next Thursday whether even a redacted version will be released, but it's still extraordinary that the judge is willing to consider it. That may be very good news for the Republicans looking to target whatever whistleblowers they can find from the released documents, or it might be very bad news for Donald Trump, who is still pretending that the retrieval of government documents is a political war against him rather than an Espionage Act-premised national security matter.
But the more attention Trump's alleged crime gets, the more difficult it's going to become for federal prosecutors to not indict him over it. It's quite possible that the Department of Justice was going to let the case quietly go away after securing whatever "nuclear weapons" documents they believed were too important to leave inside Trump's spy-riddled golf club—that the department simply had no stomach for the circus that would result from an actual indictment.
If it's a circus already, though? There's not much to lose, and even Trump allies are arguing that it would be more intolerable for the FBI to seize classified documents from Trump's for-profit house and not indict him over it.
Let's talk about the possible crimes underpinning the Mar-a-Lago search warrant
Trump attempted to weaponize Mar-a-Lago documents to use against FBI and DOJ
Trump breaks the law, so Republicans say it's the law that needs to go—and the agents who caught him
Trump took classified docs and tried to hide them from investigators. His excuses don't hold water