Magistrate Judge Bruce Reinhart has directed the Department of Justice to produce a redacted version of the search warrant affidavit used to obtain the warrant for Mar-a-Lago. The government has done so and the mag has ordered its release by noon today.
A federal judge on Thursday ordered that a redacted version of the affidavit used to obtain a warrant for former President Donald J. Trump’s Florida residence be unsealed by noon on Friday — paving the way for the disclosure of potentially revelatory details about a search with enormous legal and political implications.
Search warrant affidavits are never released in advance of a prosecution. There are a host of good reasons why they remain under seal until a prosecution is commenced, but Judge Reinhart, notably a magistrate and not a Title III judge appointed by the president after the advice and consent of the Senate, has deemed this warrant affidavit singularly different.
Under typical circumstances, disclosing even a partial version of the affidavit would be highly unusual: Such documents, which tend to include evidence gathered to justify the search, like information provided by witnesses, are almost never unsealed before the government files criminal charges. There is no indication the Justice Department plans to file charges anytime soon.
But Judge Reinhart, recognizing the significance of the government’s case, had made it clear in recent days that he wanted the government to provide a far more detailed justification for the search than the bare-bones legal rationale outlined in the unsealed warrant.
On the one hand, the grant of a warrant for the search of the premises of a former president is, in itself, unique. On the other hand, Trump has been a “unique” president in his disdain and ignorance of law, norms and any other virtue one might associate with the office. Still, unsealing a redacted warrant application is something that few will appreciate as a measure that could create a depth of mischief and misapprehension unlike any other.
The search warrant was granted based upon the showing of probable cause in the warrant affidavit. Most non-lawyers (and quite a few lawyers, sadly) are unfamiliar with the meaning of probable cause. It is not what the plain words say. It’s not probable, as in more likely than not. It’s more along the lines of sufficient for a reasonable person to act upon, a description so vague as to mean whatever anyone wants it to mean.
This would be irrelevant if its release awaiting indictment, after which the probable cause showing in the warrant affidavit would be irrelevant old news. After all, we have an indictment now, so whatever we had before no longer matter. But because Judge Reinhart has decided to unseal it before charges are brought, it becomes the crucible upon which a nation burns.
But the cause will be based on the complete affidavit. Every word of it. Who gave the information. What their source of knowledge was. How fresh or stale it is. Whether they’re credible or not. Whether their information was, or could be, verified or confirmed otherwise. Whether it addresses the elements of the offence at issue. And maybe other issues, which would only become apparent from reading the affidavit and any exhibits that are used in support of it.
But that’s not what we will see. What we will see is something that looks more like this:
No doubt there will be more words, but no matter how many are revealed, it will not be enough because it will not be all the words, and all the words are what the issuances of the warrant was based upon.
Magistrate Judge Reinhart has stated that it’s not his job to determine whether unsealing is better or worse for the public, but only that he provide the maximum transparency within the limits of the government’s narrowly tailored redactions. Will the extent of information provided be sufficient to make any reasoned assessment of the validity of probable cause for the search of Mar-a-Lago? No one will know until it’s released.
But no matter what “take” comes of this warrant affidavit, it is not the basis upon which Reinhart’s signed the warrant, and no matter how much is revealed, it will not present an accurate representation of the warrant application approved by the magistrate judge. And the rationale for unsealing now, rather than waiting until after a prosecution is commenced, may prove to be a disastrously bad decision.
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