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US Prosecutors Face Quandary about Disclosing Trump Search Document

Former President Donald Trump departs Trump Tower, Aug. 10, 2022, in New York, on his way to the New York attorney general's office for a deposition in a civil investigation.
Former President Donald Trump departs Trump Tower, Aug. 10, 2022, in New York, on his way to the New York attorney general's office for a deposition in a civil investigation.

A federal judge has given the U.S. Justice Department one week to redact an affidavit used to justify the recent search of former president Donald Trump's Florida residence before the rest of the document could be made public.

The document is being sought by a group of news outlets following the unprecedented search that was carried out on August 8 as part of an ongoing federal investigation of Trump's handling of classified documents that he took to Mar-a-Lago.

The court-issued warrant used to search Trump's residence was unsealed last week, showing that Trump is under investigation for several potential crimes, including obstruction of justice and a possible violation of the Espionage Act. The law makes it a crime to obtain and release national defense information that could be used to harm the United States and benefit its enemies.

But prosecutors oppose unsealing the more sensitive affidavit, the legal document they presented to a judge to obtain the search warrant.

Jay Bratt, the head of the Justice Department's counterintelligence and export control section, argued that the document contains so much sensitive information that redacting it would practically render it worthless.

"There would be nothing of substance," Bratt said during Thursday's hearing with U.S. Magistrate Judge Bruce Reinhart.

The search of Trump's residence — during which agents removed 11 sets of classified documents he had taken from the White House and failed to turn over to the National Archives — has set off an angry backlash from the former president and his allies.

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Trump claims he had a "standing order" to declassify all documents removed from the Oval Office, a notion questioned by many national security experts.

The FBI investigation of Trump's handling of the classified documents is in its early stages, Bratt said in court Thursday.

What is an affidavit?

An affidavit, typically filed by an FBI agent, outlines the type of crime under investigation, the reason prosecutors believe evidence of that crime can be found at the location, and the source of the government's information.

In general, an affidavit is released once a defendant is charged with a crime, but not while an investigation is ongoing.

The judge’s order has put the Justice Department in a quandary. Prosecutors face a balancing act between protecting the integrity of the investigation and providing public disclosure.

Among the reasons the Justice Department wants the affidavit to remain under seal is to protect both Trump and the affidavit’s sources if prosecutors decide not to charge Trump with a crime, according to Daniel Richman, a former federal prosecutor who is now a law professor at Columbia University in New York.

“So, on these facts you could easily see why the government would not want to expose details of the investigation, would not want to go public with claims of Trump having committed a crime that [they] might not be ending up prosecuting him for and might want, in general, to keep covert some of this investigation.”

The affidavit would almost certainly reveal far more information about the investigation than did the search warrant, said Jordan Strauss, a former Justice Department official now a managing director at Kroll, an investigation and risk consultancy.

"If, for example, there's a confidential human informant or other source of information, it could reveal that," Strauss said in an interview. "And while there is no indication that this is the case, if there was a wiretap, if there was an anonymous tip given to the FBI or another law enforcement agency, or if there are other sources or methods in which information is being gathered — like if there were a cooperating individual or a cooperating defendant whose indictment is under seal — all of that could become public if there was no significant redaction."

What is more, a heavily redacted document that leaves out key details of the investigation could become a “Rorschach test” for the public, Richman said.

"Those looking for a reason to believe that this is a witch hunt, will find some,” Richman said. “Those inclined to think the government has reason to go forward with this search will be satisfied."

But news outlets say given the historic significance of searching a former president's home, releasing the affidavit is in the public interest.

“The raid on Mar-a-Lago by the FBI is already one of the most significant law enforcement events in the nation’s history,” Charles Tobin, a lawyer representing the media groups, said during the hearing.