A Little Knowledge Is [Redacted]

In the ordinary course of a pre-arrest search warrant, the application for the warrant, usually an affidavit or two and occasionally accompanied by an exhibit or two, is held under seal, not to be seen either by the eyes of the target or the media. And, indeed, the idea of motions, amici, and more motions by random intervenors, was unheard of. Not this time.

Ruling from the bench, the judge, Bruce E. Reinhart, said it was “very important” that the public have as “much information” as it can about the historic search at Mar-a-Lago, Mr. Trump’s Florida residence. He noted later in a written order that the government “had not met its burden of showing that the entire affidavit should remain sealed.”

If ever there was a situation where “a little knowledge is dangerous,” this would be it. As the past two weeks have shown, the barest scintilla of information has given rise to a cottage industry of fantastical claims of what the law is and how the law works. “Facts” are invented out of nothing, and reinvented as swiftly and often as necessary to stay ahead of reality, Not only is no one any smarter for such claims of inanity, but hard sides harden even more to the point of sharpening the knives for Civil War 2.0 in defense of their Feckless Leader.

What’s curious here is that the court framed the question as to whether the government met its burden to show that the currently sealed, and traditionally always sealed, affdiavit should remain that way. The burden is on the moving party to change the status quo, meaning that it’s not the government’s burden, but the movants’* burden. This is a curious insight into the way Magistrate Judge** Reinhart is looking at the issue.

Judge Reinhart went on to say that he was leaning toward releasing portions of the document, adding that “whether those portions would be meaningful for the public or the media” was not for him to decide. He also acknowledged that the redaction process could often be extensive and sometimes turned documents into “meaningless gibberish.”

As a general sense, redaction almost always turned docs into “meaningless gibberish,” the only question being to what extent. To those familiar with the inside of a case, the gibberish may be less meaningless, but the redacted portions are the ones you want and need. You already know the rest.

But in a case like this, where the unredacted portions will fly out the courtroom window into the cultural hands of such brilliant legal scholars as Roger Stone and Ian Milhiser Larry Tribe and Alan Dershowitz, there will be dire and absolute pronouncements as to its legality, constitutionality, sufficiency and significance that will be based on partial information. People will believe, whether for or against, with their hearts and souls. Just not with their minds.

The application for a search warrant requires probable cause that a crime has been committed and that specific evidence of the crime can be found at a particular location. The application exists as a totality of its content, not five (for example) specific factual reasons, each of which gets parsed individually and must stand alone of the warrant fails.

And it’s “probable cause,” that horrible phrase that doesn’t mean what its clear definition suggests (“probable” means more likely than not, except when its “probable cause”) it should, but rather that quantum of information that a reasonable person would find sufficient to believe a crime has been committed. Meet any reasonable people lately?

Mag. Reinhart says it’s not for him to decide whether “whether those portions would be meaningful for the public or the media,” which is true in the sense that this question doesn’t, and shouldn’t, arise at all when deciding whether to unseal a search warrant application, redacted or otherwise. It’s a cop out, of course, as the heat came down on him hard when he signed off on the warrant and word quickly spread where his kids go to school and the synagogue he attends.

That he now wants out from the public scrutiny and death threats against anyone who makes life unpleasant for Il Douche is understandable. On the one hand, no one applies to be a mag to have their kids threatened. On the other, no one said the job was limited to snotty comments from the bench. Maybe this is perceived as a way out, a way to give the media and the Trumpalos what they want so as to not be the mag who authorized the raid on beautiful Mar-a-Lago, even the safe!

But is there a duty, or at least a legitimate consideration, that the release of a redacted copy of the warrant application will almost certainly cause grave mischief as the unredacted bits are seized upon by Alex Jones wannabes to create the fantasyland of their viciously fertile imaginations? Does the mag have any duty not to put out into the ether a document with lots of black boxes that could well cause some otherwise nice folks to kill or be killed? Or what of the rules of professional conduct prohibiting make the public stupider? This will almost certainly bring a tsunami of dopiness ashore, though to be fair it won’t be the first and there’s little chance that the full affidavit, no redactions, won’t do the same as well because reasons.

This seems like a terrible idea, a dangerous idea, and one that will take the fragile status of legal integrity and further embroil it in the dubious exercise of public scrutiny of the law. What could possibly go wrong?

*Curiously, there has been no motion by Trump, despite his cries for the release of the application on social media, suggesting he may know something we don’t.

**The NYT refers to Reinhart as “judge,” but he is a Magistrate Judge, formerly just “magistrate,” and not an Article III judge.