A United States judge has said he is leaning towards releasing some of the evidence submitted by the US Department of Justice to justify its request for a search warrant for former President Donald Trump‘s Florida residence earlier this month.
During a court hearing on Thursday, US Magistrate Judge Bruce Reinhart said he believed “there are portions of the affidavit that could be unsealed,” referring to the sworn statement laying out the evidence for why there was probable cause to search the Mar-a-Lago resort.
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Several news organisations have asked the court to make the affidavit public, arguing its contents constitute a matter of “utmost public interest”, but the government has argued that doing so would jeopardise its investigation.
Unsealing the affidavit would provide a “road map” of the probe — which is in its “early stages” — and would expose the next steps to be taken by federal agents and prosecutors, said Jay Bratt, the chief of the Department of Justice’s counterintelligence and export control section.
He argued it was in the public interest for the investigation, including interviews of witnesses, to go forward unhindered. “There is another public interest at stake and that is the public interest that criminal investigations are able to go forward unimpeded,” he said.
But Reinhart, who is also the judge who authorised the warrant, said in court on Thursday that he was “inclined” not to seal the whole affidavit and told the Department of Justice to submit a copy of the affidavit with proposed redactions for the information it wants to keep secret.
After the government submits that proposed version by next Thursday, the judge said he would review it and may meet lawyers for the government and give them a chance to make an argument for why specific information should be withheld.
Lawyers for several media outlets including The New York Times, ABC News and NBC News told Reinhart that the public’s right to know and the historic significance of the search outweigh any arguments to keep the records sealed.
“The public could not have a more compelling interest in ensuring maximum transparency over this event,” said Charles Tobin, one of the lawyers arguing for the media companies.
Trump, in statements on social media, has called on the court to unseal the unredacted version of the affidavit “in the interest of transparency”. But none of his lawyers has filed any motions asking the federal court in West Palm Beach, Florida, to do so.
Trump’s lawyer Christina Bobb was present in the courtroom on Thursday to observe the proceedings, however. As the hearing kicked off, a small caravan of vehicles with Trump flags drove past the court.
The search of Mar-a-Lago on August 8 was part of a federal investigation into whether Trump illegally removed documents when he left office in January 2021 after losing the presidential election to Democrat Joe Biden.
The Department of Justice is investigating violations of three laws, including a provision in the Espionage Act that prohibits the possession of national defence information and another statute that makes it a crime to knowingly destroy, conceal or falsify records with the intent to obstruct an investigation.
Trump and his supporters have claimed the search was politically motivated, and a Reuters/Ipsos poll this week found that 54 percent of Republican voters said they believed federal law enforcement officials behaved irresponsibly in the case.
Threats against FBI agents also have increased since the raid. In Ohio last week, police fatally shot an armed man after he tried to breach an FBI building. A second man in Pennsylvania, meanwhile, has since been charged with making threats against FBI agents.
Bratt said on Thursday that the two agents whose names appeared on a leaked copy of the unredacted warrant have also since received threats. In addition, he said, the department “is very concerned about the safety of the witnesses in the case”.
Last week, US Attorney General Merrick Garland took the highly unusual step of publicly moving to unseal the search warrant, two attachments and a redacted version of the receipt showing the items the FBI seized during its search.
The records showed that the FBI seized boxes containing 11 sets of classified materials, some of which were labelled “top secret” – the highest level of classification reserved for the most closely held US national security information.
Earlier this week, the Department of Justice said it is open to releasing some additional redacted materials from the warrant, such as cover sheets, the government’s motion to seal and the court’s sealing order.
Claire Finkelstein, a law professor and academic director of the Center for Ethics and the Rule of Law at the University of Pennsylvania, said “the risk of compromising the investigation is very, very high” and the judge will need to “step very lightly” as he mulls releasing evidence from the affidavit.
She said two main types of material, in particular, will need to be redacted, should any part of the affidavit be made public: anything that touches on highly sensitive, national security issues – nuclear secrets, for example – and anything that pertains to grand jury secrecy.
“If Judge Reinhart is seriously thinking that this document could be released in some way, shape or form, the amount of information that could be left after those redactions may be very, very limited,” Finkelstein told Al Jazeera.