Is Merrick Garland Right?
Why DOJ Wants To Keep The Affidavit Secret
We all want to know what’s in the affidavit DOJ submitted to support its request to search Mar-a-Lago. The affidavit is the juiciest part of any search warrant application. It’s the part where a federal agent lays out, under oath, the facts the establish probable cause for the search—the evidence that establishes federal crimes have been committed. It only makes sense there would be a clamor to release the affidavit in this case, especially when the search warrant itself points straight at Donald Trump, authorizing the FBI to search the “45 Office.”
DOJ asked the court to unseal the search warrant, which we saw over the weekend, but balked at releasing the affidavit. They acknowledged that there is a legitimate public interest at stake, but argue it is outweighed. DOJ wrote, “the government has a compelling, overriding interest in preserving the integrity of an ongoing criminal investigation.”
The magistrate judge has schedule a hearing on Thursday.
That’s very interesting. DOJ flatly says that is has an ongoing criminal investigation, one that continues even though the execution of the search warrant is complete. There has been a fair bit of criticism suggesting Merrick Garland doesn’t have the will to take on the former president. This may not be the January 6 investigation proper, but it seems that Garland does. Reclaiming documents Trump took to MAL wasn’t the end game. While that doesn’t necessarily mean Trump or anyone else will be indicted, it means, at a minimum, that DOJ hasn’t ruled it out.
But, they don’t want anyone outside of DOJ and the court to see the affidavit they submitted to obtain their search warrant while the investigation is ongoing. DOJ was specific about key reasons for keeping the affidavit under seal:
1. To avoid giving out a roadmap to the future of its investigation, which DOJ says, would be highly likely to compromise its future.
2. To protect existing witnesses and ensure future ones won’t be scared off. DOJ says that releasing the affidavit would “undermine agents’ ability to collect evidence or obtain truthful testimony.” It doesn’t take a lot of imagination to understand that, given Trump’s insistence on loyalty and past efforts to keep people from testifying. The calls Cassidy Hutchinson received ahead of her J6C interview are a recent example.
3. To protect evidence obtained through testimony to, or subpoenas issue by, a grand jury. Federal Rule of Criminal Procedure 6(e) requires any information obtained this way to remain secret during the investigation.
4. To protect classified information, which is likely referenced throughout the affidavit given the crimes DOJ is investigating. Any release of this information if the affidavit is unsealed could damage, perhaps gravely, our national security.
5. Finally, DOJ points out that anyone who is under investigation and discussed in the affidavit, but hasn’t been charged, should be protected. Irony is dead right there. DOJ advised the court that the release of information in the affidavit could have “devastating consequences” for the reputations and rights of individuals whose actions and statements are described in it.
That last point might make you wonder why Republicans are demanding the release of the warrant. I think the answer is, it permits them to make the argument Merrick Garland has something to hide while remaining secure in the knowledge it’s highly unlikely the affidavit will be released any time soon. Regrettably for our collective curiosity, DOJ set forth compelling reasons for keeping the affidavit under seal. I’d be very surprised if the judge released it.
There is one possible mid-path between the all or nothing approaches of sealing or unsealing the affidavit. The judge could order it released with redactions that would mitigate DOJ’s concerns. Anticipating this possibility, DOJ argued it wasn’t feasible. This is what they wrote:
The government has carefully considered whether the affidavit can be released subject to redactions…the redactions necessary to mitigate harms to the integrity of the investigation would be so extensive as to render the remaining unsealed text devoid of meaningful content, and the release of such a redacted version would not serve any public interest.
DOJ asked the court for permission to submit proposed redactions if the court decides to go down this path. While the judge could consider a selective release, it seems unlikely. Criminal investigations proceed outside of the public eye. Otherwise, investigations would be preempted, and it wouldn’t be possible to bring criminals to justice. It would be surprising to see the judge depart from the rules that are generally applied to investigations in this case. This investigation seems likely to proceed. Despite the doubts people have expressed these past few years, increasingly, it’s looking like we can still have confidence that it’s true: in our system of justice, no man is above the law.
We’re in this together,