(CNN) — The FBI search of Donald Trump’s Mar-a-Lago resort in Florida and the theft of classified information poses a compelling need for maximum public disclosure given the implication of a former president who is a likely 2024 candidate.
The Florida judge overseeing the case implicitly acknowledged this reality with his decision Thursday to begin proceedings for the potential disclosure of part of the critical affidavit the Justice Department used to justify the search at Mar-a-Lago last week. pass.
His decision means the next phase of this dramatic saga will play out with Justice Department officials, who had argued vehemently for the document to remain sealed, arguing which details should be kept private. Judge Bruce Reinhart is scheduled to hear more information from the Justice Department next Thursday about the scope of the affidavit before making it public.
The Mar-a-Lago affidavit is destined to become one of the most scrutinized documents in modern American politics, possibly taking its place alongside the Pentagon Papers and President Richard Nixon’s tapes as an artifact that helps define an iconic controversy and the legacy of a dramatic moment from Washington.
Thursday’s hearing is sure to fuel a week of speculation as lawyers and media pundits wonder about the tantalizing possibilities of what the affidavit contains and the implications for Trump’s legal exposure and his likely presidential bid in 2024.
It has also caught some legal observers off guard.
“It was very surprising and I think he’s feeling 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 details of the document were released.
A published document could be disappointing
Despite the tantalizing possibilities, any disclosure of the affidavit is likely to be disappointing, given the focus on highly classified national security documents, the need to protect witnesses who may be within Trump’s circle, and the fear of expose 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 with that said, it’s going to be something to really see page after page of blacked out material that goes down to I don’t know how many pages,” he added. “(This) is going to give us the feeling that there really is something behind the curtain,” she added.
The question of how much information from the affidavit reaches the public will be the result of granular discussions between the judge and a Justice Department that has already warned that disclosure could seriously damage its investigation.
The debate will revolve around a vital question that is especially significant given Trump’s ambitions to announce his candidacy for the White House soon in 2024 and his long record of squashing the truth: how much information should be given to the public to instill confidence in the that it is one of the most critical investigations of the Department of Justice in years, which has already been involved in efforts to politicize it on all fronts?
Debunking Trump’s Persecution Claims
The claims of political persecution made by Trump and his supporters in the conservative media are hysterical and politically motivated. They have been echoed even by high-level Republicans who lack any inside knowledge of the offenses the former president and those around him may have committed.
But that irresponsibility does not hide 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’s record of facing multiple investigations.
Presidents are not typically prosecuted by the Justice Departments of their successor administrations. Although the Biden White House has repeatedly stressed the independence of the Justice Department, the public is being asked to be very trusting at a time when the nation is devastatingly divided on politics, with millions believing the false claims. of Trump that the 2020 election was stolen.
In a court filing, the media companies seeking disclosure of the warrant records, including CNN, noted that “not since the Nixon Administration has the federal government exercised its power to seize the records of a former president so publicly. … the tremendous public interest in these particular records outweighs any purported interest in keeping them secret.”
The insurrection in the US Capitol and the outburst of right-wing fury over the Mar-a-Lago search have, meanwhile, shown how violence simmers beneath the surface of US politics. The FBI has reported an increase in threats against his staff, following the backlash against the record sparked by Trump and his supporters.
This, in itself, plays into the case for uncovering the material, as the former president has filled the knowledge gap with falsehoods and politically motivated conspiracy theories that risk contaminating public perception of the investigation and discrediting any possible case that arises.
The former president and his supporters have unsubstantiated claims that the FBI planted material at his residence and have insisted that all material there was declassified en masse. CNN exclusively reported Thursday that 18 former top 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, something the former president and his allies have claimed in days after the FBI search.
Trump is also taking advantage of the furor to raise a lot of money for his campaign. The former president’s coffers filled at a rate of $1 million a day immediately after the filing, a source familiar with the figures told CNN’s Kaitlan Collins, as donors respond to an endless stream of campaign emails and texts. .
A full disclosure of the affidavit is likely to undermine Trump’s disinformation campaign if it shows widespread evidence of crimes and possible violations of the law. In one of several procedural documents unsealed by the judge Thursday, the DOJ was more specific about the crimes it is investigating, including “willful withholding of national defense information.”
If Trump were guilty of that crime, it would mark another extraordinary transgression in his madcap political career: the possibility that a former president would actually put national security at risk by his behavior. Such an indictment would also make national security experts fearful of the implications of a second Trump term.
DOJ Warns Release Could Effectively End Its Investigation
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 used to obtain a search warrant is long and contains substantial information from the grand jury. Revealing it to the public would “provide a roadmap to the investigation,” and might even indicate his next steps, he said. Bratt acknowledged the public interest in transparency, but raised a competing public interest in seeing criminal investigations proceed unimpeded.
Still, while pursuing legal proceedings that weigh against full transparency, the Justice Department is operating in a highly politicized environment, especially as Trump supporters demand full disclosure of the documents and justification for the raid.
Trump’s former national security adviser, John Bolton, suggested that the Justice Department could describe the kind of classified information the FBI hoped to take from Mar-a-Lago in a partially redacted affidavit, in a way that doesn’t threaten sources and methods and potentially reveal useful information to America’s enemies.
“I think this is going to be very difficult to do,” Bolton told CNN’s Cooper. But he added: “I think if the department insists on the normal practice of complete affidavit confidentiality, it’s going to take a terrible beating in Congress, even from people who are trying to help it.”
The events of the last few weeks and months, however, offer another compelling reason why large sections of the affidavit are unlikely to be made public in the near future.
Bratt warned that the FBI had faced an increase in threats since the search, including a standoff at an office field office in Cincinnati and threats from “amateur sleuths” on the Internet.
Another concern would be that the sources named in the affidavit could face retaliation from Trump’s circle, intimidating other witnesses who might be afraid to come forward if faced with public outrage.
Trump has already demanded the full release of the affidavit on his social media, a call that could hint at his desire to find out the identity of any witnesses.
This saga unfolds after 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 have participated in the panel’s televised hearings have also faced a vicious campaign of intimidation and political ostracism by the former president.
“I think there’s a realistic concern here — not just a cauldron — but a realistic concern that witnesses could be affected,” Robert Litt, a former senior deputy attorney general, told CNN’s Erin Burnett on Thursday.
“If you know your name can be released publicly, you’re going to be less likely to come forward and tell the truth than you’re going to be protected.”
This, among other reasons, is why the judge’s decision to move forward with a document disclosure process may end up producing much less clarity in this critical case than many forum members wish to see.