Judge Permits Zilch Disclosure In Mar-a-Lago Affidavit

Published on

Judge Permits Zilch Disclosure in Mar-a-Lago Affidavit; Appointment of Special Counsel Request Now More Important

Zilch Disclosure Permitted In Mar-a-Lago Affidavit

WASHINGTON, D.C. (August 25, 2022) – Those who had hoped to learn more about why Donald Trump‘s Mar-a-Lago home had to be searched rather than just subpoenaing the documents, why the scope of the search warrant was unusually broad, why Trump’s attorneys were not allowed to even view the search itself, etc., will be disappointed because it appears they will get to see only a highly redacted version of the affidavit supporting the “raid,” says public interest law professor John Banzhaf.

Get Our Activist Investing Case Study!

Get The Full Activist Investing Study In PDF

Q2 2022 hedge fund letters, conferences and more


The judge who had earlier ruled that the Department of Justice [DoJ] could not keep the affidavit secret just ruled that a full unsealing would reveal identities of sources, methods, and scope of the investigation. Therefore he will permit DoJ to post a copy of the affidavit, but apparently with all the redactions which the government suggested.

More precisely U.S. Magistrate Judge Bruce Reinhart wrote that "I have reviewed the Government’s memorandum of law and proposed redactions to the search warrant Affidavit. . . . I am fully advised in the entire record, including the contents of the Affidavit."

He ruled that DoJ "has met its burden of showing a compelling reason" and "good cause to seal portions of the Affidavit," because disclosure would reveal "the identities of witnesses, law enforcement agents, and uncharged parties" and the investigation's strategy, direction, scope, sources and methods, and grand jury information protected by federal rules.

Thus, he concludes, DoJ "has met its burden of showing that its proposed redactions are narrowly tailored to serve the Government’s legitimate interest in the integrity of the ongoing investigation and are the least onerous alternative to sealing the entire Affidavit."

Since the publication of the heavily redacted version of the affidavit, which Reinhart apparently approved without any changes, is likely to be heavily blacked out, many important questions regarding the fairness of the government's tactics, and the extent to which some may have been influenced by political considerations, will remain unanswered. 

This makes the need for the appointment of a special counsel, which the law requires in cases such as this, even more pressing, argues Banzhaf, and the formal request before another judge even more important.

The Appointment Of A Special Master

The federal judge to whom Donald Trump's motion for the appointment of a special master - to determine if any of the materials seized from Mar-a-Lago are protected by any privilege - has been asked, in the alternative, to consider instead the appointment of a special counsel who would have far more legal authority, says Professor Banzhaf, whose legal filings helped lead to the appointments of special prosecutors to investigate Richard Nixon, and who obtained a court order for an independent counsel to investigate "Debategate."

The formal request, filed this morning, points out that any appointment of a special master almost certainly would come too late since the documents have been in the hands of Justice Department [DoJ] attorneys for over two weeks already, and it is almost certain that no order pausing the review process is likely to be issued before all the documents have been seen by DoJ attorneys, and probably also by others at the National Archives and Records Administration.

Judge Aileen M. Cannon has been told that "If appointed, an independent special counsel could do everything a special master reviewing the documents based solely on the basis of possible privilege could do, and much much more." 

"For example, if he concluded that a search warrant should not have been issued under the circumstances - e.g., that it involved a former president and likely foe in the 2024 presidential election, that additional negotiations and/or more subpoenas should have been utilized instead of a search, that Trump’s attorneys or other representatives should have been permitted to witness the search process, etc. - he could prohibit any further use of the documents even if no privilege applied."

"He would also be in a much better position to do what a special master cannot possibly do: prevent the use of any information Justice Department attorneys may have acquired as a result of documents to which they should not have been entitled - e.g. because of privilege, bias or political pressures behind the search, other procedural problems or unfairness with the search, etc.- from being used in the ongoing criminal investigation (e.g., to identify other witnesses) as the fruit of a poisonous tree."

The judge is being told that, at the very least, requiring DoJ to "justify its refusal to appoint a special counsel as seemingly required by the binding regulation would probably have a salutary effect, greatly increase the transparency of the entire process (in a way the release of a redacted affidavit cannot), and help ease the public outcry and anger regarding what has occurred."

The filing argues that there is a "a clear and blatant and completely unavoidable conflict of interest" because the criminal investigation involves President Joe Biden's chief rival. Thus prosecuting Trump, or even embarrassing him with searches, could help protect not only Biden's job in the future, but also AG Merritt Garland's own position, since Trump would not keep him on as attorney general on elected.

Controlling law requires the appointment of a special counsel to oversee any criminal investigation when it "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," professor Banzhaf notes.