Predictably, it was much nothing about ado.
To what should be the surprise of no one, the Justice Department so thoroughly redacted the affidavit supporting the FBI’s raid of Donald Trump’s Mar-a-Lago estate that the exercise was pointless. DOJ has given us nothing about the monumental decision to execute a search warrant at the home of a former American president — unprecedented in US history.
In the absence of information, we are left with speculation. Here are a couple things worth observing:
Interestingly, one of DOJ’s principal arguments against disclosing the FBI’s warrant affidavit, an argument that plainly persuaded Magistrate Judge Bruce Reinhart, was the need to avoid unfair prejudice to uncharged persons. Of course, the uncharged person at issue here is former President Trump.
Now, it’s possible DOJ was just paying lip service to its oft-repeated tenet that because Americans are presumed innocent, the government should not reveal investigative information that portrays a person as a criminal unless and until prosecutors are ready to file charges. At that point, the formally accused person is given counsel and the full array of Bill of Rights protections to defend himself.
Nevertheless, it is also possible DOJ raises the need to avoid prejudicing uncharged persons because the objective here has never to been to build a criminal case against Trump for mishandling classified information.
Leave aside that such cases are extraordinarily difficult to prosecute and that the complexities would be magnified in a prosecution of a former president. In a case the government intends to prosecute, search warrants are typically executed at the end of the FBI’s investigation, when arrests are made (usually based on the same probable-cause affidavit that establishes probable cause to search).
It makes little sense that Justice Department officials would be fighting so hard against revealing the sensitive information in the affidavit if they intended to prosecute. If the department indicted Trump, the affidavit would be disclosed to the defense and become public in short order. And if DOJ officials intended to prosecute, they could have charged Trump already. After all, if they had probable cause of crimes justifying a search, then they had probable cause of crimes justifying charges — and the case only got stronger after the search of Mar-a-Lago, which yielded more classified documents.
To indict or not
To the contrary, the ardor to keep the affidavit largely redacted, to protect witness identities and to shield the substance of the sensitive information that was seized at Mar-a-Lago, makes perfect sense if the Justice Department does not plan to indict the former president.
In the nonindictment scenario, the government accomplishes the goals of (a) getting its top-secret information back; (b) assessing the damage that may have been caused by the mishandling of that intelligence (you really need to have the classified documents to do that); (c) collecting the rest of the presidential records Trump has been hoarding at Mar-a-Lago that, by law, are property of the government and should be maintained by the National Archives; and (d) continuing to conceal the now-redacted portions of the warrant affidavit that, if revealed, could expose witnesses, reveal methods of collecting intelligence and signal to hostile governments the kinds of sensitive US defense secrets that may have been exposed to untrustworthy people who might be willing to sell them.
There are two things that cut against this nonprosecution theory.
First, perhaps the most overlooked sentence in the partially disclosed affidavit released Friday is on Page 2: “There is also probable cause to believe that evidence of obstruction will be found at the PREMISES” (i.e., Mar-a-Lago).
Because of the extensive redactions, we don’t know what the government’s claimed evidence of obstruction is. Still, if there is convincing proof of attempts to conceal or destroy government records, especially highly classified ones, that could change the equation. The Justice Department typically takes very seriously any tampering with witnesses or evidence. I am not saying the former president is guilty of such behavior — and again, we don’t know what the government represented to the court in this regard. But it might well be possible for the Justice Department to prosecute a narrow obstruction case without having to expose classified intelligence and the identities of, at least, most of its informants.
Second, the former president could easily talk himself into being charged if he continues to rail against Justice Department and FBI corruption.
I don’t think the Justice Department and FBI want to prosecute Donald Trump on classified-information or document-retention offenses in light of all the considerable downsides of doing so. (I do think they’d like to make a Jan. 6 case against him.) If the former president continues to assail the integrity of law-enforcement officials, however, they might well decide that only a public trial can show who was breaking the law and who was protecting national security.
Of course, the Biden Justice Department has shown itself to be very responsive to the demands of Democrats’ progressive base. As the midterms approach, if the left’s rabid insistence on a Trump indictment gets intense enough, all bets are off.
Andrew C. McCarthy is a former federal prosecutor.