(Bloomberg) -- Once the Justice Department announced it wouldn’t stand in the way of releasing the search warrant for Donald Trump’s Mar-a-Lago home, the president’s allies shifted tack, calling for the immediate release of more detailed information. That’s not likely to happen.
The Justice Department will want to keep an underlying affidavit for the warrant sealed to protect the investigation and any sources or classified information, former prosecutors said. It’s also not up to DOJ to decide whether to share something filed under seal -- as with the warrant, the department would have to make a request in court.
It would be highly unusual to see that affidavit now, let alone at any point before someone is formally charged, said Sarah Krissoff, a former federal prosecutor in New York now in private practice.
“If there are sources close to Trump who are providing that information, the department is going to be very careful about outing those sources,” she said.
The search warrant for Trump’s home would generally describe the location, what investigators are looking for, and what crimes are under investigation. A receipt of what items FBI agents took during Monday’s search is also likely to be unsealed, though it likely won’t include many details about the contents of documents.
Trump posted overnight on his social media site, Truth Social, that he wouldn’t oppose releasing those documents; he’s had copies since the search took place and could make them public at any time.
But with their demand for the release of the warrant and receipt met, those in Trump’s inner circle and conservative commentators have shifted to calling for the immediate publication of the affidavit, which is presented to the judge to support the warrant application.
Such an affidavit typically features a narrative explaining not only what crimes are under investigation, but also how investigators have been gathering information to date, what evidence they already have, and how they believe any evidence seized at the property they want to search will build on that probe.
Rudy Giuliani, a Trump ally and the former US attorney in Manhattan, tweeted Friday morning that “Garland must release the affidavit” -- a judge would decide whether to grant any request to unseal -- and that, “Right now we are getting the ‘run around.’” Similar calls have come from commentators like Trump’s former acting chief of staff Mick Mulvaney and Newsmax host Greta Van Susteren.
Christopher Slobogin, director of the Criminal Justice Program at Vanderbilt University, said that while the affidavit should eventually become public, the government “wouldn’t want to tip its hand too early” about the details of its probe. Prosecutors may want to keep information in the application secret until they present a case to a grand jury for a possible indictment, he said.
Information in the affidavit about what they learned from a source at Mar-a-Lago could expose the person even if their name is redacted, Slobogin said.
“The application should describe in a fair amount of detail how the informant came by the information, the basis of the informant’s information, and indicia of reliability -- why we can trust this informant,” Slobogin said. “There’s a lot of detail in a good warrant application that would help someone identify an informant.”
Any references to classified information would also give the DOJ a reason not to support unsealing the affidavit, Mary McCord, the former acting head of the department’s National Security Division, wrote in an email.
The Justice Department can’t unilaterally decide to declassify information; there are a series of steps that judges have to take to determine what classified information a defendant must have access to once they’re charged and what information the government must admit at trial to ensure a defendant’s rights are protected. Prosecutors can be forced to drop a case if they can’t reveal government secrets that a judge deems necessary.
“Nothing that is classified could be unsealed, so if there were consent from the government, it likely would be to the release of a heavily redacted version of the affidavit,” McCord wrote.
The Washington Post reported that FBI agents were looking for documents related to nuclear weapons during the Mar-a-Lago search; it wasn’t clear if those involved US weapons or weapons that belonged to another country. The New York Times reported that investigators were searching for materials related to highly sensitive operations. Earlier this summer, multiple outlets reported that a top DOJ counterintelligence official, Jay Bratt, was part of a team that visited Mar-a-Lago to review the materials in Trump’s possession; Bratt signed the department’s motion yesterday to unseal the search warrant.
Separate from the fight over public disclosure, Representative Mike Turner, the top Republican on the House Intelligence Committee, told reporters that he wanted the Justice Department to turn over information to lawmakers that officials relied on to secure the search warrant.
“There’s nothing that would be the subject matter of this that cannot be disclosed to our committee,” Turner said. “We want to know what was this imminent national security threat upon which this was based.”
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