“Release The Warrant,” What Has Actually Been Done
In the wake of the search warrant executed on Trump’s home public cries, mostly from Republicans, demand that the DOJ release information related to the search. Demands include that the warrant be released, and that the DOJ justify the search.
Some of the confusion is caused by a lack of understanding of what are really at least three distinct documents. Two of these documents have been released by the DOJ. They were released to the target of the search. They were given to Trump through his attorneys. Donald Trump is completely free to release these documents to the public himself. He has chosen, so far, not to.
Let’s discuss the three documents, what information they do (and do not) provide, and their current status.
The Warrant Itself: The first document is the warrant itself. It’s a bare bones thing, but it includes at least three items of interest.
- The name of the judge authorizing the warrant. This is already known. It was Magistrate Judge Bruce Reinhart of Florida. He has already been targeted by a Republican smear campaign and has received death threats.
- The nature of the items that are the subject of the search. Presumably classified materials from the National Archives, but we don’t know exactly what the warrant says. We don’t know because Trump has not released it.
- The criminal statutes that are being investigated that justify the search. I previously discussed some of the potential statutes. It would, for example, be of great interest to see if the warrant mentions provisions in the Espionage Act (18 U.S.C. §§ 792 et. seq.) or (at the other extreme) if it is just violations of Presidential Records Act. Again, we don’t know because Trump has chosen not to release it. Infer from that what you will.
For the record, we know Trump received the warrant, his attorney Christina Bobb acknowledges that was given to her.
To be clear, the warrant itself, with the information described above, is not under seal as some continue to falsely claim. Trump has it, and is free to release it at his discretion.
The Warrant Return: The warrant return is essentially an inventory of everything that was seized and taken during the search. This is a common sense precaution to protect all parties involved, including the government. The government gives the subject of the search an itemized list of everything that was taken so the subject can’t down the road claim something else was. It would be interesting to see exactly what the FBI took as that might suggest what Trump improperly had and explain why the search was necessary. Once again, Trump is free to publicly release this document. He simply chooses not to. Infer from that what you will. Without evidence, some on Trump’s team have claimed the FBI planted evidence. This should be viewed as an admission that Trump knows the FBI founds things that should not have been there.
The Warrant Affidavit: This is the central document, that along with the formal warrant application and supporting exhibits, was presented to the judge laying out the almost certainly much more than probable cause evidence justifying the search. I wish to emphasize, that for what should be obvious reasons, THIS DOCUMENT HAS NOT BEEN GIVEN TO TRUMP AND IS NOT PUBLIC. This document is “under seal,” as it should be. The document is a detailed accounting to the judge of the evidence found so far in the investigation. As such, its release now could compromise the investigation. As but one example, media sources (now including the Wall Street Journal), say a confidential source in Mar-a-Lago told the FBI what documents Trump wrongly still had, and exactly where they were (to include his safe). Releasing the affidavit would reveal that source. Another reason the affidavit is not released is to protect the subject of the search. Releasing it could unfairly spill evidence publicly on an individual who may never be charged.
However, if Trump is indicted, as I strongly believe he will be, the warrant affidavit will then be given to his defense team as part of discovery. At that time Trump will once again have the option of making it public if he wants. So far Trump has chosen to not release what he could release, instead playing that he is the victim. By Trump’s choice, documents that could support, or repudiate that claim of victimhood, have not been released.
At about 3 pm on Thursday August 11th Merrick Garland announced that he is requesting that the court allow him to publicly release the warrant and warrant return with the inventory of items taken. In short, Garland is asking the court to allow him to release what Donald Trump already has. He has called Trump’s bluff. It will be interesting to see if Trump now opposes the DOJ’s motion to publicly release what Trump already has.