Why the Mar-a-Lago affidavit could become one of the most scrutinized documents in American politics

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CNN

The FBI’s raid of Donald Trump’s Florida resort and the removal of classified information raises a dire need for maximum public disclosure given the involvement of a former president who is likely a 2024 candidate.

The Florida magistrate judge handling the case implicitly acknowledged this reality with his decision on Thursday to begin the process of potentially releasing part of the critical affidavit the Justice Department used to justify the search in Mar -a-Lago last week.

His decision means the next phase of this dramatic saga will unfold with Justice Department officials, who had argued vehemently to keep the document sealed, making a case for which details must be kept confidential. Judge Bruce Reinhart plans to hear more from the DOJ by next Thursday about the extent to which investigators will seek to redact the affidavit before any public release.

The Mar-a-Lago affidavit is destined to become one of the most scrutinized documents in modern American politics, perhaps taking its place alongside the Pentagon Papers and President Richard Nixon’s recordings as an artifact. that helps define an iconic controversy and the legacy of a dramatic The Washington moment.

Thursday’s hearing is sure to fuel a week of speculation as lawyers and media pundits ponder the fascinating possibilities of what the affidavit contains and the implications for Trump’s legal exposure and likely Trump’s presidential bid. 2024.

It also caught some legal observers off guard.

“It was very surprising and I think he feels the pressure from the public to find out what’s going on,” retired judge Nancy Gertner, who now teaches at Harvard Law School, told CNN’s Anderson Cooper. Gertner, however, said she would be even more surprised if many of the details of the document were released.

Despite tantalizing possibilities, any affidavit disclosure is likely to be disappointing, given the focus on highly classified national security documents, the need to protect witnesses who may be in Trump’s circle, and the fear of exposing more FBI agents to security threats stemming from the former president’s rhetoric.

“I think what we’re really going to see is Swiss cheese,” conservative lawyer George Conway, a prominent critic of the former president, said Thursday on CNN’s “The Situation Room with Wolf Blitzer.” “But that being said, it will be something to see page after page of blackened material on I don’t know how many pages,” he added. “(It) is going to give us the feeling that there really is something behind the curtain.”

How much information from the affidavit will make it to the public will be the result of extensive discussions between the judge and a Justice Department that has previously warned that disclosure could seriously harm its investigation.

The debate will focus on a vital question that is particularly important given Trump’s ambitions to soon announce a bid for the White House in 2024 and his long history of truth-crushing: how much information the public should- receive in order to inspire confidence in what is one of the Justice Department’s most critical investigations in years, which has already been caught up in efforts to politicize it on all sides?

The allegations of naked political persecution made by Trump and his supporters in the conservative media are hysterical and politically motivated. They have been echoed even by high-ranking Republicans who have no inside knowledge of the offenses the former president and his entourage may have committed.

But that irresponsibility doesn’t mask the fact that this is a highly unusual and explosive case given that it involves a former president and head of state – even one with Trump history who faced multiple surveys.

Presidents are generally not prosecuted by the justice departments of their successive administrations. Even though the Biden White House has repeatedly stressed the independence of the DOJ, the public is urged to show a great deal of faith at a time when the nation is devastatingly divided on politics, with millions believing in Trump’s false claims that the 2020 election was stolen.

In a court filing, media companies seeking to unseal search warrant records, including CNN, noted that “since the Nixon administration failed to exercise the power of the federal government to seize the records of a former president in such a public way. …the enormous public interest in these particular documents outweighs any alleged interest in keeping them secret.

The U.S. Capitol insurrection and the eruption of right-wing fury over the Mar-a-Lago raid have, meanwhile, shown just how much violence simmers beneath the surface of American politics. The FBI has reported an upsurge in threats against its staff, following a backlash against the search launched by Trump and his supporters.

That in itself plays a role in the arguments to unseal the material since the former president has filled the knowledge void with politically motivated lies and conspiracy theories that risk polluting public perception of the investigation and discrediting any eventual case it brings.

The ex-president and his supporters made baseless claims that the FBI had planted material in his residence and insisted that all material be declassified there en masse. CNN exclusively reported on Thursday that 18 former senior Trump administration officials ridiculed the idea that Trump had a ‘standing order’ to declassify documents he took from the White House to the Oval Office residence – this that the former president and his allies claimed in the days that followed. the FBI search.

Trump is also using fury to raise massive campaign funds. The ex-president’s coffers were filled to the tune of $1 million a day immediately after the raid, a source familiar with the numbers told CNN’s Kaitlan Collins, as donors respond to an endless torrent of campaign emails and SMS.

It’s possible that a complete unsealing of the affidavit would undermine Trump’s disinformation campaign if it showed widespread evidence of wrongdoing and potential violations of the law. In one of several court documents released by the judge on Thursday, the DOJ was more specific about the crimes it is investigating, including the “deliberate withholding of national defense information.”

If Trump were guilty of such an offence, it would mark another extraordinary transgression in his mad political career – the potential for an ex-president to endanger national security through his behavior. Such an accusation would also raise fears among national security experts about the implications of a second Trump term.

Contrary to Trump’s claims, the Justice Department appears to be focused on criminal rather than political considerations.

Attorney Jay Bratt, who heads the DOJ’s counterintelligence section, argued to the judge Thursday that the affidavit that was used to obtain a search warrant is lengthy and contains substantial grand jury information. Revealing it to the public would “provide a roadmap for the investigation” and may even indicate its next steps, he said. Bratt acknowledged a public interest in transparency, but raised a competing public interest in ensuring that criminal investigations proceed unimpeded.

“The Department of Justice faces a dilemma. I imagine this is an even more comprehensive affidavit than most because they knew who the target was and they knew there would be pushback,” said Gertner, the law professor. “And now, having exposed it all and more in an affidavit, having the risk of everything they do becoming public must be very unsettling for them.”

Yet while following legal procedures that weigh against full transparency, the Justice Department operates in a highly politicized environment, especially as Trump supporters demand full disclosure of documents and justification for the raid.

Trump’s former national security adviser, John Bolton, suggested the DOJ could outline the kind of classified information the FBI expected to get from Mar-a-Lago in a partially redacted affidavit — from a manner that does not threaten sources and methods and potentially disclose useful information to US enemies.

“I think it’s going to be very difficult to do,” Bolton told CNN’s Cooper. But he added, “I just think that if the department insisted on the normal practice of complete confidentiality of the affidavit, it would take a terrible beating in Congress, even from the people trying to help it.”

However, the events of the past few weeks and months offer another good reason why large sections of the affidavit are unlikely to be made public any time soon.

Bratt warned that the FBI had faced an increase in threats since the raid, including a standoff at a bureau field office in Cincinnati and threats from “amateur sleuths” on the internet. Another concern would be that the sources mentioned in the affidavit could face retaliation from Trump’s orbit, scaring off other witnesses who might be afraid to come forward if they faced public outrage.

Trump has already demanded the full publication of the affidavit on his social media network, a call that may hint at his desire to find out the identities of all witnesses.

This saga unfolds in the wake of warnings from the House Select Committee investigating the January 6, 2021 insurrection that Trump had attempted to contact at least one witness in his investigation. Those who took part in the panel’s televised hearings also faced a fierce campaign of intimidation and political ostracism from the former president.

“I think there’s a realistic concern here — not just boilerplate — but a realistic concern that witnesses might be affected,” Robert Litt, a former senior assistant deputy attorney general, told CNN’s Erin Burnett on Thursday. .

“If you know your name can be made public, you’ll be less likely to come forward and tell the truth than if you’re going to be protected.”

This is, among other reasons, why the judge’s decision to go ahead with a process of unsealing the document may eventually produce far less clarity on this critical case than many strangers wish to see.

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