On Friday, Judge Bruce Reinhart released parts of the affidavit the Department of Justice filed with the court previous to the FBI search of Mar-a-Lago. As expected, the document is heavily redacted to protect both witnesses and the contents of heavily classified documents. On Thursday, Reinhart appeared to accept the redactions proposed by the DOJ, and though Donald Trump’s team of crack attorneys had a full day to object to these redactions, it does not seem that they lodged a complaint.
The execution order unsealing the affidavit can be found here. The letter from the DOJ explaining the reasoning behind redactions is here. The heavily redacted list of requested redactions is here. And finally, the affidavit itself is here. And that affidavit wastes no time in making clear that this is a serious matter:
The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. … the Federal Bureau of Investigation opened a criminal investigation to, among other things, determine how the documents with classification markings and records were removed from the White House (or any other authorized location(s) for the storage of classified materials) and came to be stored at the PREMISES
And when it comes to the conclusion, the document is even more harsh:
Based on the foregoing facts and circumstances, I submit that probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation18 U.S.C. §§ 793(e), 2071, or 1519 will be found at the PREMISES.
That’s far from all that’s still visible, and still incredibly damning for Donald Trump.
When it comes to the statutory authority behind the affidavit, the FBI goes immediately to the heart of concerns:
Under 18 U.S.C. § 793(e), “whoever having unauthorized possession of, access to, or control over any document … or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted” or attempts to do or causes the same “to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it” shall be fined or imprisoned not more than ten years, or both.
This is a criminal investigation. The FBI has cause to believe that there have been multiple violations of federal law. That law calls for fines and/or imprisonment. And they believe the “fruits of crime” will be found at “PREMISES”—otherwise known as Mar-a-Lago.
Does that sound like enough to get measured for an orange jumpsuit? Hold on for another paragraph.
Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
So, in addition to stolen classified documents, the FBI expected to find evidence of obstruction at PREMISES-a-Lago.
Everything, everything, about the released documents indicates an ongoing, active, criminal procedure. While in the immediate wake of the search many suggested that the incident was likely to end with the National Archives recovering the documents it was seeking, the number and nature of documents found would seem to make further legal action much more likely. The tone and text of this affidavit underscores just how pissed off and serious the DOJ is about this.
In the section describing the reasons why the government wanted all this sealed, there’s another tip that the jumpsuit order may be made in bulk.
I believe that sealing this document is necessary because the items and information to be seized are relevant to an ongoing investigation and the FBI has not yet identified all potential criminal confederates nor located all evidence related to its investigation. Premature disclosure of the contents of this affidavit and related documents may have a significant and negative impact on the continuing investigation and may severely jeopardize its effectiveness by allowing criminal parties an opportunity to flee, destroy evidence (stored electronically and otherwise), change patterns of behavior, and notify criminal confederates.
So, the FBI was also concerned about “potential criminal confederates” and didn’t want to tip off these “criminal parties” in ways that would let them bury the evidence of their crimes.
Some of that is likely to be boilerplate from other criminal investigations … like looking at mob bosses or investigating drug cartels. Whatever its source, it has some impact when seen on the page.
Oh, and throughout the document, Trump is labeled “FPOTUS,” a term you just know he’s going to hate.
In its letter explaining the redactions, the government lists five categories of information that it wants protected: witness information, the “roadmap” of its ongoing investigation, safety of the law enforcement personnel charged with carrying out the warrant, privacy interests of those mentioned in the warrant, and “rule six” information that “must be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).”
Many of the topics covered by the affidavit are thought to be highly classified documents connected to national security. Earlier reports indicated that some may even include secrets related to nuclear weapons. That’s why even the names of these documents are hidden. Titles alone could give away areas of U.S. interest, technology breakthroughs, or placement of agents. That’s why most of the space devoted to these documents is one big mass of black on the redacted document.
It’s also essential that the document provide protection to witnesses. Donald Trump has shown many times that he is eager to go after whistleblowers and witnesses and expose them to both ridicule and personal danger. Many of the redactions on the document are expected to hide information that either came directly from witnesses, or might be used to determine the identity of witnesses. The DOJ explanation for its redactions indicates that Reinhart had previously agreed that releasing the affidavit unredacted would result in “witnesses being ‘quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated.’”
Preserving this information, and protecting the witnesses, is particularly vital in an ongoing criminal procedure—and that’s exactly what this is.
Immediately before releasing the affidavit, three new sealed issues appeared on Judge Reinhart’s docket. These sealed documents may be connected to the list of requested redactions.
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