Judge who approved Mar-a-Lago search finds ‘significant likelihood’ of witness intimidation if unredacted affidavit released

‘I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government’

Andrew Feinberg
Washington, DC
Monday 22 August 2022 15:54 BST
Schiff: Mar-a-Lago affidavit could lead to Trump lawyers intimidating witnesses
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The federal magistrate judge who approved the 8 August search of former president Donald Trump’s Palm Beach, Florida, home appears unlikely to allow much — if any — of the affidavit used to justify issuing a warrant to search the ex-president’s property to become public.

On Friday, Magistrate Judge Bruce Reinhart told attorneys for the Department of Justice and a coalition of news organisations that are seeking access to the affidavit he was “inclined” to allow at least a redacted version of the document to be unsealed.

In a 13-page opinion and order released on Monday, Mr Reinhart ordered the government to file a sealed submission to propose redactions that would protect sensitive information that must remain private in the event he chooses to allow a version of the affidavit to be made public.

But the magistrate judge appeared to backtrack on allowing the release of a version of the sworn statement that reveals much about what the government knows about Mr Trump’s alleged illegal conduct or how the government knows what it knows.

Although he found that unsealing the affidavit “would promote public understanding of historically significant events” because the search of a former president’s property is a “[matter] of significant public concern,” the magistrate judge found four other factors that “weigh in favour” of continuing to keep the affidavit sealed.

Mr Reinhart wrote that the government has a legitimate concern over whether witnesses would remain willing to cooperate if their identities become known and whether there would be “an increased risk of obstruction of justice or subornation of perjury if subjects of investigation know the investigative sources and methods”.

“As the Government aptly noted at the hearing, these concerns are not hypothetical in this case,” he said, adding that one of the statutes under which he found there was probable cause for the government to believe that a crime had been committed deals is the section of the US criminal code which prohibits obstruction of investigations.

“Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated,” he continued, adding that he gives “great weight” to the “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”.

“These disclosures could then impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation,” he said. But he also noted that the government had “not yet shown” continuing to keep the entirety of the document sealed is justified “given the intense public and historical interest in an unprecedented search of a former President’s residence”.

Mr Reinhart ordered the government to file its proposed redactions under seal by 25 August along with ”any additional evidence or legal argument” to continue keeping the entire affidavit sealed.

But he also left open the possibility that he may decline to order a redacted version — or any version — to be made public if the proposed redactions would be so extensive as to make the redacted version useless.

“I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government,” he said.

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