Trump Would Like To See The Names Of The Witnesses Against Him. And So Would The Media.
Yo, Eleventh Circuit, you up?
Now would be a really good time for the Eleventh Circuit to put an end to the nonsense going on in Judge Aileen Cannon’s South Florida courtroom. Before someone really gets hurt.
On November 22, before the Thanksgiving holiday, Donald Trump moved to unseal an unredacted copy of the affidavit underlying the search warrant to search his Mar-a-Lago club on August 8 and seize any government records found there.
“Government agents acted with abandon in seizing Plaintiff’s property,” his attorneys howled, in their signature style.
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“[T]he Attorney General stated – in violation of long-standing DOJ policy – that the identified documents would be made public, unless Plaintiff filed an objection,” they went on, omitting to note that Trump himself called for the “immediate release” of the warrant and affidavit, even as he and his lawyers took to the airwaves to accuse the Justice Department of planting evidence to frame him.
In the event, Trump complained publicly but took no position with the court, leaving it to media outlets to litigate the matter. On August 25, Magistrate Judge Bruce Reinhart, who approved the warrant, issued an order to unseal it with redactions, writing:
I find that the Government has met its burden of showing a compelling reason/good cause to seal portions of the Affidavit because disclosure would reveal (1) the identities of witnesses, law enforcement agents, and uncharged parties, (2) the investigation’s strategy, direction, scope, sources, and methods, and (3) grand jury information protected by Federal Rule of Criminal Procedure 6(e).
Indeed, the danger to witnesses and law enforcement is not hypothetical. On the former president’s social media platform, his supporters doxxed FBI agents present on August 8, with the apparent approval of his lawyer, Alina Habba, who demands to know the names of witnesses and promises “mayhem” if Trump is charged with a crime.
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Nevertheless, Trump argued last week that “None of the purported justifications apply in the context of disclosure of the unredacted search warrant affidavit to Plaintiff under the protective order,” by which he appears to mean a September 23 order from Special Master Judge Raymond Dearie applying to the inventory of property seized pursuant to the warrant.
Trump’s logic is that, as former president, he’s entitled to a pre-indictment peek at the warrant and underlying affidavit to prepare his Rule 41 motion for return of property. Perhaps when the FBI was demonstrating probable cause that it would find evidence of crimes in the search — which it did! — the agency failed to tell Judge Reinhart about the awesome powers afforded an ex-president tooling around a golf course while vomiting invective onto social media.
Under all applicable law and precedent, the affiant was required to not make any material omissions and/or material misstatements in seeking the magistrate’s authorization—including, but not limited to, factual or legal errors relating to the history of cooperation by Plaintiff and his counsel. In addition, the affiant should have fully disclosed and discussed the total authority of a President to declassify materials and determine that materials are personal records under the Presidential Records Act, as well as the fact that presidents are accorded great deference when they have designated materials as either a Presidential record or a personal record.
Judge Cannon has thus far failed to respond to the motion, and, given the absolute beatdown Trump’s lawyer Jim Trusty took at the Eleventh Circuit last Tuesday as the government argued that the trial court abused its discretion in finding equitable jurisdiction over the warrant, it seems pretty likely to become moot in the near future. Nevertheless, a consortium of national and local media outlets just moved to unseal the unredacted affidavit, seeking the same relief from Judge Cannon which was already denied by Judge Reinhart.
“Because Trump filed his motion to unseal in the special master proceeding, the News Media have likewise filed their motion under this docket,” they write in a footnote, tacitly acknowledge the absolute bananapants craziness of this whole thing, and adding, “The News Media take no position on whether these motions should be adjudicated in this Court or under the original search warrant docket.”
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They argue that the public interest here is enormous, and thus, if Trump gets a copy of the unredacted affidavit, “the News Media respectfully request that the Court grant public access to the Affidavit to the same extent as it grants access to Trump. ” Moreover, they point out that “the protective order, by its terms, protects only materials seized during the execution of the search warrant” and thus “would not cover the Affidavit, which predates the seizure of any materials from Trump’s residence.”
Going by Judge Cannon’s previous conduct in this case, there’s absolutely zero reason to think she won’t order the Justice Department to do it, blithely disregarding both the need to protect the ongoing criminal investigation and the danger faced by Justice Department personnel whose names will be released. She’s given Trump everything he asked for, and even countermanded the special master she herself appointed when he was too mean to the guy who gave her life tenure on the bench.
So, hey, any freakin’ time, Eleventh Circuit.
Trump v. United States [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
