Addressing the Mar-a-Lago affidavit challenge

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This article first appeared in the Washington Examiner on August 22nd, 2022. Click Here to read the original article

The Justice Department’s decision to execute a search warrant of Mar a Lago has ignited a two-front war, legal and political. Legally, a Federal magistrate authorized a search based on an FBI affidavit that there was probable cause crimes had been committed and that pertinent evidence was at Mar a Lago. In the “normal” course, little more would be said publicly by anyone involved. Justice would proceed to conclusion: prosecute someone or close the file, in silence. On the legal front, Justice’s position is comparable to many thousands of routine search warrants executed annually.

Enter Donald Trump, who, predictably, has launched a political war, one Federal law-enforcement officials were utterly unready to fight. Trump complained of unfair treatment, certainly compared to Hillary Clinton. He didn’t have any classified documents, or, if he did, he had declassified them, or something. His lawyers are challenging the warrant, and he insists the entire court file, including the underlying affidavit, be made public. He tweeted his complaints, inspired his allies to complain, and did television interviews. And that was just in the first few days. For Trump, this was the rough equivalent of clearing his throat.

Attorney General Merrick Garland responded in a public statement defending his Department’s actions, which he seemed to be doing under duress. This is unsurprising since DOJ, especially in criminal cases, normally speaks publicly only through its court filings and courtroom appearances. There are good reasons for the absence of public commentary, most importantly fairness to those under investigation. If they are not ultimately prosecuted, it is long-standing Anglo-American practice that their files are closed, and the matter ended. Prosecutors prosecute or don’t; they do not make social commentary on their work or the people they investigate, however loathsome they may be.

Now the political battle (and, incidentally, the legal battle) is whether the underlying affidavit should be made public. Trump has publicly so stated, thereby potentially waiving any argument that disclosing the affidavit’s contents would cause him harm. In addition, media companies are in court seeking to have the affidavit made public. DOJ vehemently opposes this request, arguing that disclosure would endanger existing and potential witnesses, and jeopardize the entire ongoing investigation, which is still at a relatively early stage.

The magistrate ordered Justice to consider “redacting,” or blacking out affidavit language it considers sensitive so at least parts could be made public. Justice said it would have to redact

so much that what was left would be unintelligible. Nonetheless, the magistrate ordered Justice to submit proposals for redaction by April 25. There is little doubt Justice will fight every step of the way, including appealing to an Article III judge if the magistrate does not rule to its satisfaction. Meanwhile, Trump is very successfully fundraising off the controversy, and Justice is, in Watergate parlance, left twisting slowly, slowly in the wind.

Trump has a First Amendment right to say what he has, but Justice has no obligation to be a punching bag. Substantively, DOJ’s concerns are compelling, but it needs to recognize the exigent circumstances it faces. It should acknowledge past mistakes, like then-FBI Director James Comey’s misbegotten handling of Hillary Clinton’s case. It should be timelier and more aggressive in publicly communicating the facts about its positions and actions. It need not say anything it has not already said in court filings and appearances, but it needs to speak more often, in more different fora and media, and especially in more extensive contact with Congress.

On the affidavit itself, there is an alternative to all-out trench warfare over “redaction” versus “no redaction”: paraphrase where possible what the actual affidavit says. This would allow at least some additional information to be made public. Such paraphrasing, of course, would have to be approved by the magistrate to ensure it accurately, if more obscurely, reflects what the original text said.

For example, affidavit references to classified documents might contain actual sensitive information from the documents, or materials that could reveal sources and methods of gathering intelligence. Instead, phrases could be used like “information about American nuclear weapons,” or “information about Chinese ballistic missile capabilities.” There might be ways to refer to present or future witnesses that would not reveal their identities or make them easily identifiable. There could be more-generalized statements about the probable-cause narrative on what crimes Justice alleges have been committed. There are almost certainly cases where paraphrasing is impossible, in which case the magistrate will have to rule on full disclosure or no disclosure.

Like everyone else in this debate except DOJ personnel and the magistrate, I have not seen the affidavit. I do not underestimate how difficult or unusual is the suggestion I am making. If there are better suggestions, let’s hear them. Otherwise, important law-enforcement institutions are in for a firestorm of unanswered criticism.