The Department of Justice is opposing the release of the underlying affidavit justifying its unprecedented raid of Mar-a-Lago, just days after it agreed to unseal the warrant approving the FBI search of former President Donald Trump’s Florida resort.
“There remain compelling reasons, including to protect the integrity of an ongoing law enforcement investigation that implicates national security, that support keeping the affidavit sealed,” DOJ lawyers declared on Monday, also indicating, however, that they would be open to releasing redacted portions of other related documents.
Trump is being investigated for a possible Espionage Act violation and possible obstruction of justice, according to the warrant unsealed Friday, which cited 18 U.S. Code 793 (part of the Espionage Act) related to “gathering, transmitting, or losing defense information.” Despite its name, many of the law’s provisions don’t relate specifically to espionage.
The warrant also pointed to 18 U.S. Code 2071 on “concealment, removal, or mutilation generally” and 18 U.S. Code 1519 on “destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” The latter relates to obstruction of justice.
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Magistrate Judge Bruce Reinhart, who had also signed the Aug. 5 warrant for the Aug. 8 raid, ordered that the warrant be unsealed after the Justice Department told the court that Trump wasn’t objecting to it being made public.
“The government has carefully considered whether the affidavit can be released subject to redactions,” the DOJ said Monday. “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.”
The DOJ said that if the judge ordered a partial unsealing of the affidavit anyway, “the government respectfully requests an opportunity to provide the Court with proposed redactions.”
The department’s lawyers added that the DOJ “does not object to unsealing other materials filed in connection with the search warrant whose unsealing would not jeopardize the integrity of this national security investigation, subject to minor redactions to protect government personnel.” It said those documents include the cover sheets associated with the search warrant application, the DOJ’s original motion to seal, and the court’s original sealing order.
The department said its “proposed redactions to those documents have been filed under seal … and the government now asks the Court to unseal the materials contained in that filing.”
Attorney General Merrick Garland said last week that he “personally approved the decision to seek a search warrant.”
Numerous groups and outlets, including the conservative legal group Judicial Watch, the New York Times, CBS News, and the Washington Post, sought access to the affidavit in recent days.
“As the government has readily acknowledged, the circumstances here — involving a search of the premises for a former President — involve matters of significant public concern,” the Justice Department said before arguing the affidavit should remain secret despite the warrant being released.
“Disclosure at this juncture of the affidavit supporting probable cause would, by contrast, cause significant and irreparable damage to this ongoing criminal investigation,” the DOJ argued, saying the affidavit contains “highly sensitive” information about witnesses, specific investigative techniques, and information “required by law” to be kept under seal.
The affidavit could serve as a “roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course” and could “compromise future investigative steps,” the Justice Department warned. Information about witnesses “is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation,” and releasing the affidavit “would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses,” department lawyers contended.
The items seized by the FBI last week included “various classified / [top secret] / [sensitive compartmented information] documents,” four “miscellaneous top secret documents,” three “miscellaneous secret documents,” two “miscellaneous confidential documents,” and one “confidential document.” Other records the FBI seized were the “Executive Grant of Clemency re: Roger Jason Stone Jr.,” “Info re: President of France,” two binders of photos, and a “handwritten note.”
Trump and his allies said he declassified the records, with the former president contending he had a “standing order” throughout his presidency that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
“Number one, it was all declassified. Number two, they didn’t need to ‘seize’ anything,” Trump said on Truth Social, his social media website, last week when condemning the search. “They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request.”
The property to be seized included documents constituting “evidence” of violations of the listed criminal statutes, including “any physical documents with classification markings” along with any boxes containing that information and any other containers stored with those records. The FBI also looked for “any government and/or Presidential Records” from Trump’s presidency.
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Then-Archivist David Ferriero said in February that the National Archives “identified items marked as classified national security information within the boxes” it received from Mar-a-Lago this year and that “because NARA identified classified information in the boxes, NARA staff has been in communication with the Department of Justice.” Ferriero said the National Archives had “ongoing communications” with Trump representatives throughout 2021, “which resulted in the transfer of 15 boxes to NARA in January 2022.”
The referral has not been made public despite Republican demands for it to be produced.
A host of congressional Republicans have condemned the raid and called on Garland, FBI Director Christopher Wray, and the National Archives to provide answers. Senior members of the Republican Party have also said they believe a double standard was on display with the DOJ’s handling of its investigation into Hunter Biden when compared to the Trump raid.
