The Redacted Mar-a-Lago Affidavit DOJ Should Submit

As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.

68 replies
  1. Alan says:

    What’s different here is that the target of the warrant put the search into the media spotlight and he’s working to keep it there. He’s also not opposed to (and possibly in favor of) releasing redacted docs. The magistrate judge has also already publicly stated that he believes some portions of the affidavit can be released. Given the unique circumstances of this case, I think the DOJ should release as much as they fairly can, in a show of good faith and cooperation with the court and the press. Whatever they can’t release because it would compromise an ongoing investigation will of course speak volumes.

    • bmaz says:

      What a load of complete bunk. You “think”, because you are pruriently interested, that norms ought be set aside. What a joke.

      By the way, your experience with grand juries and search warrants historically is exactly what to render this opinion?

      • Alan says:

        Here’s the part I think you’re missing. When you and I are sitting on the bench making tough decisions and getting death threats, then our opinions might carry a little weight. Until then, we need to defer to the person who is. As the magistrate judge stated, he believes portions of the affidavit can be released. The DOJ should cooperate with the judge. Time may tell, when all is revealed, if the judge made a good decision or not…

        • bmaz says:

          Here is the part I think you are missing: You apparently do not know jack shit about GJ practice and law. I have been in those rooms, have you? Grand juries are not ruled by magistrates, they are run by chief judges. Not magistrate judges. But thanks.

        • Alan says:

          Be that as it may, unless and until Judge Reinhart is overruled by Judge Rosenberg, Judge Cannon, or another judge, he’s the one hearing this issue, making the tough decisions and facing down death threats, and he deserves a large measure deference.

        • Alan says:

          …from you and I and the DOJ

          [Welcome back to emptywheel. SECOND REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Alan” or “Allen”; as I indicated when I asked the first time back in June, your identity may already have been confused with another “Alan.” Thanks. /~Rayne]

        • Scott says:

          So Bmaz if Judge Reinhart decides to unseal I’m guessing you’ll stay silent because after all you are not a judge.

          Appeal to authourity cuts both ways

      • LeeNLP says:

        I would assert that one can and should always act in good faith, regardless of what others do. I may (and don’t) know much about the law, but I do understand the importance of holding to well-established norms especially when well meaning people find all kinds of reasons not to.

    • Tom R. says:

      That’s a bad idea for multiple reasons. The cost/benefit ratio is very unfavorable.

      1) If you unredact the information that is available from other sources, it does indeed speak volumes. It reveals far too much about what investigators know and what they don’t, and about what they consider relevant and what they don’t.

      −− Is there any other point to which you would wish to draw my attention?
      ++ To the curious incident of the dog in the night-time.
      −− The dog did nothing in the night-time.
      ++ That was the curious incident.

      2) On the other side of the same coin: There is no benefit to unredacting the information that is available from other sources. Let the press run the stories, citing the other sources.

  2. joel fisher says:

    One hesitates to use the word “think”, however, it appears that at least part of Trump’s motivation is trying to goad the USA and Magistrate Judge into revealing his mole. For irony fans this is delicious because a huge part of the problem with keeping the country’s secrets at a wedding venue is the ease with which the service staff and Trump’s ever-changing inner circle can be penetrated by foreign agents, Democrats, RINOs and other disloyal types. Impatient types like me have to think–there’s that word again–the process is like Thanksgiving Day: the turkey’s in the oven, you can smell it, but you won’t be eating it for a while and that’s OK.

    • GWPDA says:

      Perfect! The analogy for which I have been waiting!
      (I won’t open the oven, I won’t, I won’t, I won’t….)

  3. GKJames says:

    I wondered why Reinhart didn’t ask the press, “What in the rules of Federal Criminal Procedure requires me to consider media revenue streams as a basis for unsealing?” Nothing would affirm the nobody’s-above-the-law principle more than treating — and talking about — the Trump matter as a standard case governed by well-established rules and policies.

  4. Badger Robert says:

    The magistrate knows that part of the affidavit is about the negotiations between the government and the suspect to get the documents back. That part doesn’t have to remain secret and its already leaking into the public domain. The parts about the witnesses and their information may not ever be released unless there are indictments.
    The issues swirl around the documents. But the documents are just a small part of what the Justice Dept is working on.

    • bmaz says:

      Complete bullshit. The “magistrate” “knows” what is in the affidavit. So, you think this, one, case is bigger and more important than the law that exists as to any client I may have, have ever had, or other common putative defendants?

      So, you are really not about the normal rule of law, but about special rules for this putative defendant? That is your position?

      • Badger Robert says:

        I don’t care about this defendant or your hypothetical defendants. These were the public’s documents and most of the high level negotiations were conducted by public employees. The 1st Amendment exists as a protection for the public. This is a limited instance in which the public has an interest that is in conflict with the need for secrecy. And the secrecy has hardly been maintained, regardless.
        The entire problem would be on the way to resolution of Patel and the other document hoarders were indicted.

        • bmaz says:

          No, it is patently evident you indeed do not. It is funny, but pathetic, how people claim to give a shit about the law only when it is convenient for them. Now you invoke the 1st Amendment in a conversation about classified information and Rule 6 grand jury information? That is laughable.

        • Ruthie says:

          As is so often stated, comment quality at this site is typically, although not universally, very high.
          Nevertheless, the majority of us aren’t lawyers; mistakes can maybe be forgiven, even if they seem pretty dumb to the initiated. What’s less understandable is doubling down in spite of the repeated, painstaking efforts you and others who do have knowledge and experience are making.
          I’ve been chastened from time to time myself, but at least I’m smart enough not to come back for more.

        • earlofhuntingdon says:

          You need to get out more. Your curiosity does not describe the breadth and reach of the First Amendment or records disclosed to a grand jury.

          The First Amendment limits government overreach of the kind that Ron DeSantis exhibits every day in Florida. It is not a free pass to see everything in the goverment’s files.

          The great and observant pulic is not entitled to see, for example, every record the government produces. It will probably never see the bulk of documents recovered from Trump’s tiny hands. It will not, nor should it, see a great many grand jury records.

          Nor does your comment seem to recognize that Trump is making a brouhaha about things he knows that neither he nor the public is entitled to see right now. He does it for effect and to play the victim card.

        • LeeNLP says:

          I hope the day comes, and soon, that the public won’t feel obliged to play Trump’s games, to dance to his tune, to do or believe anything at all that he demands should be done or believed. He is a master puppeteer. For him, having the strings cut would be the ultimate hell. May he soon reach that destination.

      • Puriya says:

        Thanks, Badger Robert, for the question. It was going to be mine. And, thanks, bmaz, for the response. It’s disappointing to have to treat Donny as a regular guy. Very tempting to look for opportunities to turn the public against him. But the new DoJ we (and Garland) aspire towards ought not to be tempted.

  5. rattlemullet says:

    Thank you for stating clearly and succinctly that trump should be treated no differently than any other American citizen. The release of any of the affidavit would only serve the press to further feed more incorrect speculation to the already misinformed masses that gobble down the trash they peddled as journalism to try and obtain ratings, likes or dislikes. Also any release would just be fuel to the fire for possible violence against innocent people by the overly armed maga crowd of true believers.

  6. JVO says:

    I usually avoid all qualifiers and modifiers in my sentences. I almost always delete every “Therefore,” every “Whereas,” every “Morever,” every “Clearly,” etc. This is the best reason I’ve seen to leave at least a few sentence opening modifiers in my documents.

  7. Fraud Guy says:

    “You can have my answer now, if you like. My final offer is this: nothing. Not even the fee for the [filing], which I would appreciate if you would put up personally.”

    • Rwood says:

      He should just say it in words they immediately understand.

      “F your feelings. If you don’t like it, you can leave.”

  8. dadidoc1 says:

    If the warrant affidavit for the Mar-a-Lago search were released, redacted or not, and the release was outside of routine judicial procedure, would that weaken the DOJ’s case against Trump, et. al.?

  9. Chuffy says:

    Witness tampering; threats and intimidation of prosecutors, witnesses and judges; 24×7 incitement by “conservative” media; constant delaying/stalling tactics; online bullying by TFG; and the J6 precedent…frankly, if any of the affidavit reaches the public, it gives the impression that this type of pressure and intimidation works. The MSM won’t point any of these things out in their reporting, so I *think* it’s up to the Justice system to stand firm and uphold the damn law. If they cave, they will be credibly accused of politics. If they don’t cave, the accusations of political motivation will still come, but they’ll have the high ground. Never cede the high ground.

    • LeeNLP says:

      Beautifully said! Brings to mind the famous words of Obi Wan Kenobi- “It’s over Annakin. I have the high ground.” Having the high ground should mean something.

  10. P J Evans says:

    Release the boilerplate parts. Everything else is hidden. We don’t need the names that aren’t already out because of the warrant.

    • bmaz says:

      Release NOTHING. If you were a potential defendant, would you want the affidavit used to search your house and life blithely made public before there were any charges ever filed? Before you answer yes, think long and hard. Suppose the warrant was not even primarily about you as a defendant, would you want that?

      • nord dakota says:

        I’ve been the non-defendant in that situation, and the answer is no. God forbid.

        (I admit to some pruriency but I guess I can live without the titillation.)

        • bmaz says:

          That’s the thing. We’d all “like” to see it, but should we? And, by the way, for anybody here who still thinks the “magistrate judge” ought to blithely release anything, you ought go check the McKeever decision by the DC Circuit with cert denied by the Supremes.

      • P J Evans says:

        Boilerplate: “based on training and experience”, “I swear”, and not much else…certainly none of the stuff they’re trying to get released.
        We actually agree….

  11. noromo says:

    Bmaz, brilliant.

    To misquote Sgt. O’Rourke from “F-Troop”: I don’t know why everyone says you have no sense of humor.

    (Which is not to underscore the absolute seriousness of it all.)


  12. earlofhuntingdon says:

    As a respite from learning new things we’re curious about, but which aren’t part of our daily lives, here’s a handy list you can trot out over Labor Day, when friends and family shout over the barbecue sizzle that student debt relief is morally debased.

    Thirteen Republican congresscritters, a mere sampling, accepted debt relief for Covid-related loans totaling over $16 million. Average relief, about $1.25 million. Examples: Rick Gaetz ($476,000), MTG ($180,000), Vern Buchanan ($2.8m), and Brett Guthrie ($4.3m).

    • earlofhuntingdon says:

      I don’t recall Republicans whining about inflation – as they are over Biden’s proposed student debt relief – when Trump passed his $1.7 trillion tax cut. But then, its biggest beneficiaries plowed their gains back into Wall Street, instead of putting food in their kids’ mouths, and paying rent, healthcare, and transportation to and from their two jobs.

      • Rayne says:

        The GOP were whining like crazy about inflation going into summer, especially gasoline prices, going so far as to encourage rogue stickers placed on gas pumps to blame Biden. But then the Dobbs decision came along and kicked that effort to the curb. The effect of Dobbs on the polls was proven in Kansas where the GOP had done as much as they could to suppress Dobbs’ effect on primaries yet the voters ensured abortion rights were saved.

        Now the GOP has a new chew toy with which to motivate their base with faux-trage but Dobbs is still going to peel away GOP voters.

  13. Cosmo Le Cat says:

    I want to preface my comment by saying I don’t have a position on this issue. We should 100% defer to the wisdom of the magistrate, knowing with certainty that the DOJ will appeal if his decision is wrong.

    This case is distinguished by a few circumstances not mentioned above. 1st, the defendant himself made the existence of the warrant public. 2nd, the defendant has not opposed release in court and has publicly called for its release. 3rd, there is extraordinary public interest in this case.

    • bmaz says:

      There is no “defendant”. Do not mistake a search warrant subject with a putative defendant. And nobody should ever “100% defer to the wisdom of the magistrate”. That is ridiculous. Not when there is a superior judge available. Magistrates are real judges that do real work. But they are certainly not Article III judges.

    • earlofhuntingdon says:

      By all means, let’s set the rules for the legal process based on opinion polls. That and the PR campaigns of targets of properly issued search warrants. Public interest, if relevant, should not be a determining factor.

  14. WilliamOckham says:

    I’m going to come at this from a different direction that bmaz. [Spoiler alert: I’m going to end up at the same place.]

    I’m not a lawyer, I’m more of a public policy guy (as in, I went to grad school at the Lyndon B. Johnson School of Public Affairs). I have a pretty strong belief that there are times when deviating from the rigid application of traditional legal procedure is justifiable on public policy grounds. I will also acknowledge that when this has happened in the past, it’s been disastrous more often than not. So, I’m not particularly upset that Judge Reinhardt is considering releasing a redacted version of the search warrant affidavit. And I’m never going to complain about a judge telling the DOJ to justify their position. We need a lot more of that.

    All that being said, the single overriding public policy concern in this case is the rule of law and its equal applicability to every citizen. And that comes down strongly on the side of not releasing the affidavit.

    • Troutwaxer says:

      Exactly. If I’d been caught with the number and type of documents Trump had assembled, I’d be in jail and some lawyer from the DOJ would be arguing about how I shouldn’t be granted bail, and the judge would likely agree… In all likelihood I would never see sunlight again!

      IMHO the judge should do nothing but remind Trump of the fact that he’s very lucky not to currently be in jail, and he can take his bizarre motions, fold them up until they’re all sharp corners, and put them where the sun don’t shine!

      • SMF88011 says:

        As someone that has held a security clearance for over 30 years, I can guarantee you that if you had done what Trump has, you would be behind bars already. While classified contamination of email is a common occurrence (they have a manual with checklists on what to do in this type of thing – I had the checklists memorized because how many times I did it), it is an entirely different animal when you physically walk out of a security area with classified documents. Yes, there ARE ways to legally do so but there is a lot of hoops you have to go through to do it.

        If you want to know about the manual I spoke about, search the Internet for “ODAA Process Manual 3.2”. Checklists for contamination cleanup start on pg. 118. You might find other parts of the manual interesting.

    • DrDoom says:

      Also not a lawyer, and view this the same as WilliamOckham and Troutwaxer. And for Bmaz, thanks for the object lessons on how that *thinking* stuff can be dangerous in the wrong hands.

  15. JTK0403 says:

    Thanks for all the writers who do great work on this site. For someone like myself who has no knowledge of the legal system, these analyses have been enlightening in the best sense of the word – and powerful arguments.

    While I admittedly know nothing about law, it seems that what is paramount is consistent policies and legitimate process. For our system of justice (and constitutional and national integrity) to survive, we cannot allow what amounts to political ogling and intentional, manipulative malice to subvert our judicial ideals and procedures.

    When I hear the political/media figures who are screaming the loudest about allowing the public to see the affidavit, they remind me of a high priest moralizing about throwing the proverbial virgin into the volcano – in this case, shouting to sacrifice our constitutional ideals to appease the gods of corporate profits, lust for power, and political gain.

  16. Alan says:

    “ORDER granting in part 4 Motion to Unseal. On or before noon Eastern time on Friday, August 26, 2022, the Government shall file in the public docket a version of the Affidavit containing the redactions proposed in ECF No. 89-1. Signed by Magistrate Judge Bruce E. Reinhart on 8/25/2022. See attached document for full details. (jmd) (Entered: 08/25/2022)

    [Welcome back to emptywheel. THIRD REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Alan” or “Allen”; as I indicated when I asked the first time back in June, your identity may already have been confused with another “Alan.” Thanks. /~Rayne]

      • dude says:

        Bmaz–is it wrong to assume Garland is part of the thinking about what to or not to redact? What I am getting at here is: if Garland is part of this redaction process on DOJ’s side, and he is an experienced judge, what do you suppose he is thinking? Or does he have no input at this level?

  17. earlofhuntingdon says:

    Erstwhile lawyer Kenneth Cheseboro, friend of John Eastman and co-author of the plan to get Mike Pence not to certify the votes regarding Joe Biden’s victory (and to enable Trump to stay in office), was subpoenaed by the Fulton County, GA, DA to appear before her special grand jury. A NY judge has ordered Cheseboro to appear before it on August 30th

    Cheseboro, like Brian Kemp, is resisting, claiming in a filing in Georgia that, in his case, A/C privilege and a broader duty of confidentiality owed to clients under state codes of professional conduct would preclude him from answering most questions the DA might ask. He wants a a hearing to determine the scope of questioning. [Or, he could show up and claim privilege, if and when applicable, to specific questions. But that would be under oath, something I assume he’s trying to avoid.]

    What Cheseboro’s filing does not provide, though, is an affidavit to support his claim that he was retained by the Trump campaign (or other relevant entity) to provide legal services (and their scope), or that he was working for and under the authority of someone who was. He might have worked pro bono, but he still needs evidence of an engagement.

  18. Marinela says:

    In the past, how many times a warrant affidavit was released in the middle of on-going investigation?

    This is the standard we should use for Trump as well. If it means the public doesn’t know things for nine months, but it protects the investigation, I am fine not knowing.

    People screaming for releasing, want preferential treatment because it is related to Trump and somehow all rules can be broken.
    Trump and MAGA base doesn’t get to decide for DOJ to break rules just so he can get the help he desperately needs.

    If Trump is not guilty, not releasing, actually protects him as any other defendant in similar case.

  19. Fran of the North says:

    Do I want to know each and every particular right now? Absolutely. Should I have the privilege? Absolutely not.

    Seems to me that any solution other than the one bmaz proposes (and frankly even his) will be met by howls of indignation. ‘We need to see more! This doesn’t give us enough of the dirty details and the whos and wherefores.’

    Releasing any version, no matter how much or how little it has been redacted will only lengthen the time that this issue remains a burr under the saddle of the news orgs and spin meisters.

  20. Yorkville Kangaroo says:

    After reading Reinhart’s Order I’m more than convinced the DoJ should appeal the decision.

    Reinhart states that one of the considerations for relasing the document is, “whether
    access is likely to promote public understanding of historically significant events.” In fact, that’s really the only thing he cites that has any currency in this deliberation as far as I can tell. I’m also unsure as to why, exactly, access for the purposes of understanding historically significant events needs to be contemporaneous. Perhaps the lawyers amongst us can elaborate.

    He then speaks in great detail about why the affadavit should remain sealed and that he gives “great weight” to them:

    • There is a significant likelihood that unsealing the Affidavit would harm legitimate privacy interests by directly disclosing the identity of the affiant as well as providing evidence that could be used to identify witnesses. As discussed above, these disclosures could then impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation. This factor weighs in favor of sealing.
    • The Affidavit discloses the sources and methods used by the Government in its ongoing investigation. I agree with the Government that the Affidavit “contains, among other critically important and detailed investigative facts: highly sensitive information aboutwitnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8. Disclosure of these facts would detrimentally affect this investigation and future investigations. This factor weighs in favor ofsealing.
    • The Affidavit discusses physical aspects of the Premises, which is a location protected by the United States Secret Service. Disclosure ofthose details could affect the Secret Service’s ability to carry out its protective function. This factor weighs in favor of sealing.

    He goes on to say, “I do not give much weight to the remaining factors relevant to whether the
    common law right of access requires unsealing of the Affidavit.”

    He then spends a single paragraph weighing up ‘Less onerous alternatives’ and relies on:

    • As the Government concedes, this Warrant involves “matters of significant public concern.” ECF No. 59 at 7. Certainly, unsealing the Affidavit would promote public understanding of historically significant events. This factor weighs in favor of disclosure.

    to conclude, basically, that because it’s of historical significance and precedential because it’s a former POTUS it should NOT be completely sealed. It’s as if he just ignored his own arguments held in the Discussion about exactly why it ought remain sealed.

    I browsed this article to get an idea about ‘Less Restrictive Alternatives:

    Not sure it helped me too much but might others.

    Not drowning, waving.

    • SMF88011 says:

      It depends. If it is redacted like thumbnail for “The Redacted Mar-a-Lago Affidavit DOJ Should Submit”, it will be fine. There might be a few other words that would be okay being released but not many. I could also see the DOJ redacting some non-sense stuff on a form just so the redaction’s shape is a middle finger.

  21. Rugger9 says:

    I am wondering about the effect of affidavit release on any prosecution to come. Much of this would depend on what the redactions are, but are there items in the Rules of Evidence where releasing the affidavit would create prosecution problems later, perhaps for affiliated minions not originally included as a search target (like Bobb)? That seems to be a core consideration here by my reading of the motions: DoJ wants to preserve its options to bag the whole crowd.

  22. khollenCA says:

    Thank you, bmaz. This is sobering, & a good reminder. Of course I “want to know.” I want lots of stupid things that I shouldn’t get.

    IANAL, but my understanding is that very few of us, should we for whatever reasons ever appear in an affidavit, would be afforded the same level of care that was presumably taken in the redactions here.

Comments are closed.