Judge Leans Towards Redacted Affidavit, But… Disclosure Would Not Help Resolve The Major Issues
Judge Leans Towards Releasing A Redacted Affidavit
WASHINGTON, D.C.(August 18, 2022) – The judge asked to unseal the affidavit supporting the search warrant for Mar-a-Lago said he is leaning towards releasing a redacted – indeed, possibly heavily redacted – version.
But put off any further decision for now, says public interest law professor John Banzhaf.
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While many are calling for the release of the affidavit which was submitted to support the search warrant for Donald Trump's residence in the hope that it would show whether or not the search.
And possibly the tactics related to the search - were lawful, it will in no way solve the problem of having a clearly biased prosecutor, nor whether the warrant and the search tactics.
Even if legally supported by the affidavit, would have been employed by a prosecutor who did not have a clear conflict of interest, argues Banzhaf.
Many lawyers and even laymen know that there is much truth in the old saying that a prosecutor can indict a ham sandwich.
While it's not quite as easy to obtain a search warrant, it would not be difficult for a skilled Justice Department lawyer to provide a barely legally valid basis in an affidavit.
E.g., swearing that a reliable informant said there were still classified national security documents at Mar-a-Lago - to justify this search.
But that doesn't begin to address the question of whether an investigation headed by someone without a clear conflict of interest.
And a bias against his boss' major political rival and presumed challenger for reelection, would have used a search warrant rather than, for example, first issuing another more specific subpoena, continuing to negotiate for voluntary release longer, etc. - which are matters of judgment rather than mere questions of law and legal sufficiency.
But even assuming that the affidavit did meet the bare legal requirements for the issuance of a search warrant, as a judge has already ruled.
Its release will not even begin to answer whether an impartial prosecutor would have, for example, permitted Trump's attorneys to witness the search in order to guard against baseless speculation that incriminating evidence was being planted.
To raise timely objections if any materials being seized might be protected by attorney-client or executive privilege, etc.
The release of the affidavit probably also would not permit even skilled prosecutors and law professors to resolve issues such as whether the resulting warrant was worded more broadly than probably necessary and/or granted access to more areas of the estate than reasonably required.
Finally, regardless of what the warrant might or might not say, it will provide no assurance to impartial legal observers - much less to many Republican members of Congress and Trump supporters.
Whether judgment calls such as: what further witnesses should be required to testify, whether Trump himself should be subpoenaed to appear before a grand jury.
And most importantly, whether this former president under all the circumstance should be indicted and tried, even if the evidence finally developed might be legally sufficient.
After all, AG Merritt Garland serves at the pleasure of the current president and is required by law to obey his orders.
Biden has said that he plans to run again, and most commentators now believe that Trump represents his most likely opponent and the greatest threat to the election of any Democrat.
It has also been widely reported that President Joe Biden has said that Trump is "a danger to democracy" and "should be prosecuted."
So it appears undeniable that Garland is in an unavoidable conflict of interest situation: if Biden ordered or even just hinted that Garland should take some action which could reduce Trump's chances for reelection.
The AG would have to decide whether to follow that request, or to substitute his own judgment as to what would be just, fair, and most in the public interest under the circumstance in making such a judgment call.
Even if Biden never sought to interfere in this matter, Garland certainly knows that he would lose his job if Trump were elected.
So he also has a clear conflict of interest between leaning in judgment calls - i.e., where two or more actions might be legally valid - against the former president, and simply exercising his best judgment.
The importance and broad sweep of this basic legal principle is illustrated by a recent example. Fani Willis, the DA of Fulton County, Georgia, is currently conducting a criminal investigation of Trump and others.
As the result of a formal complaint by Prof Banzhaf that Trump violated state laws by attempting to interfere with the most recent presidential election.
But when she notified a Republican candidate for lieutenant governor that he was a subject of the investigation, a judge ruled that she was disqualified from prosecuting him.
The reason - she had headlined a fund-raiser for his opponent, a fellow Democrat.
So even though her own position was in no way threatened by this potential defendant - and in supporting a candidate of her own party for a different office she did nothing more than most political figures do routinely.
The judge found that there was a sufficient conflict of interest to prevent her from proceeding any further.
Fortunately, there is a simpler solution for Garland; one which not only is possible, but is actually required by law.
The law requires that he appoint an independent special counsel to conduct investigations which "would present a conflict of interest for the Department or other extraordinary circumstances.
And that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."
Even belatedly appointing an independent special counsel now would go a long way towards dispelling growing distrust over the incident because he would have the power to return all or some of the documents to Trump if appropriate.
To set up a fair procedure to see if any are protected by attorney-client or executive privilege, and, most importantly, to make an impartial judgment, free of conflict of interest, as to whether any documents uncovered by the search would - as a matter of judgment as well as strictly legal requirements - warrant seeking an indictment against Trump.
Moreover, suggests the law professor, appointing an independent special counsel now would help to insure far broader support and less objection to any further actions taken as part of the investigation, including but not limited to any charges, offers to plea bargain, etc. which might result from the search or otherwise.