The move, ordered by a judge Thursday, is another highly unusual twist in an unprecedented probe into a former commander in chief that has provoked a political uproar and is shaping the political environment ahead of the 2022 midterms and his possible 2024 candidacy.
The quick deadline for the release of the affidavit shows that while Trump has succeeded in whipping up a political storm over the search at his home earlier this month, the pace of what becomes public about the probe is being dictated by the courts and the Justice Department. It is not clear that Trump’s time-honored tactics of delaying, distracting and distorting will derail this case — one of a clutch of legal threats now hanging over his head. Trump has posed questions about a potential indictment to members of his inner circle, a source close to him told CNN.
The affidavit in its full text would complete a comprehensive picture of why the Justice Department was able to convince a judge there was probable cause a crime was committed in connection with classified material being kept at Mar-a-Lago.
But the most revealing passages of the affidavit — dealing with the identities of witnesses, law enforcement agents, uncharged parties and the investigation’s strategy and grand jury information — will be blacked out. The judge appeared to agree with the Justice Department on the need for such details to be kept secret for the protection of the people involved and the integrity of the investigation. This will make it impossible for outsiders — and Trump’s legal team — to get a full picture inside the probe. And it is possible that the released version will not move the public understanding of the case forward by much.
Still, page after page of black ink could play into Trump’s political strategy since he is likely to argue that the Biden administration is acting in a sinister manner to keep from the American people the true story of what he claims is a partisan attack on him.
But the redactions will also complicate Trump’s chaotic legal strategy, making it hard for his outmatched team to predict the DOJ’s next steps and for the former President to unleash his political and media attack machine on current or future witnesses who have information about his refusal to send classified material to the National Archives.
What will the DOJ share?
The Justice Department had earlier argued that the document must be kept entirely under seal to protect the investigation, witnesses, sources and methods. But Magistrate Judge Bruce Reinhart gave the department until Thursday to draw up redactions as he weighs the public interest in finding out new details against the need to protect the probe.
Normally, it would be highly unusual for any parts of an affidavit to be unsealed at this stage of a case. But given the politically charged circumstances — a search at the home of an ex-president, not to mention one who seems to be planning to run for the White House again — the pressure to know why the DOJ mounted its search is heightened. A group of media organizations, including CNN, had asked the judge for a full reveal of the document for exactly this reason.
It is unclear to what extent the document will affect Trump’s framing of the case. But any details that do escape the DOJ’s redactions may contradict his narrative and bolster the department’s justification for seeking a search warrant after what appears to be weeks of requests and approaches to Trump to get the information — some of which bore the highest designations of official secrecy.
The ex-President’s approach to the affidavit reflects the confusing way his camp has responded to the FBI search over the last two weeks and has raised doubts about the quality of his legal representation. Trump has called for the affidavit to be released. Several members of his legal team made similar points. But his lawyers have yet to take any legal action to seek its disclosure.
It also seems unlikely that a full opening of the sealed document would benefit Trump’s political case, given the facts that are publicly known and the lingering question over why Trump thought he could store highly classified information at his resort.
Former judge surprised that redacted affidavit will be released
Legal experts will scour procedural and other details that are not redacted from the affidavit to try to assess the breadth of the investigation, where it may be headed next and the extent of Trump’s legal peril.
Former federal Judge Nancy Gertner told CNN’s Anderson Cooper on Thursday evening that she was surprised that a redacted document will be revealed.
“It must be that the government showed that it can disclose something without unpacking the entire investigation,” said Gertner, who is now a professor at Harvard Law School.
There could also be some details in the affidavit that have become publicly known since last week’s court hearing. For instance, John Solomon, a conservative writer who is also one of Trump’s designees to the National Archives, this week released a letter from the national records repository to the ex-President’s legal team from May that showed that some documents previously retrieved from Mar-a-Lago had contained classified material.
Other details of the interactions between the FBI and the DOJ and Trump’s aides have also emerged in recent days — including in a motion filed by the ex-President asking a court to appoint a “special master” to sift documents taken from the resort for privileged items. (The Trump legal team has until Friday to refile its motion on that matter after a judge said it was improperly argued.)
Still, the fact that the judge agreed on what are likely to be swathes of redactions in the affidavit requested by the Justice Department is a victory of sorts for investigators in the face of an onslaught from Trump and his allies designed at the least to discredit and at the most to derail the probe.
Judging by his social media feed on Thursday, which recalled his most unhinged Twitter screeds during the most fraught days of his presidency, Trump is feeling under threat from the latest developments.
“They illegally Raided my home, and took things that should not have been taken. They even broke into my safe, an unthinkable act!” Trump wrote in a series of posts on his Truth Social platform.
The search of Trump’s home was not illegal since it was based on the search warrant approved by Reinhart, which was based on the affidavit to be released by midday Friday.
Despite his outward bravado and the way he has seized on the investigation to unite much of the Republican Party around him ahead of a possible 2024 campaign, one adviser noted to CNN that while Trump has been in legal peril before, he seems more exposed now since he lacks the shield of the presidency. A Trump spokesperson did not respond to multiple requests for comment.
It seems certain that whatever emerges is unlikely to help the former President’s case, though that will not stop him from launching yet another political counteroffensive.
Evan Perez, Gabby Orr, Kristen Holmes, Jeremy Herb, and Tierney Sneed contributed to this report.