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‘No grounds’ to unseal affidavit justifying raid of Trump’s Mar-a-Lago residence, Northeastern law professor says

Documents related to the search warrant for former President Donald Trump's Mar-a-Lago estate in Palm Beach, Fla., are photographed Thursday, Aug. 18, 2022. U.S. Magistrate Judge Bruce Reinhart agreed to make public documents, including the warrant's cover sheet, the Justice Department's motion to seal the documents and the judge's order requiring them to be sealed. AP Photo/Jon Elswick

The Justice Department investigation into Donald Trump’s alleged mishandling of classified documents has unearthed a century-old law that could shed light on potential crimes committed by the former president. 

When the federal warrant used in the raid on Trump’s Mar-a-Lago residence was unsealed, it surfaced that Trump was under investigation for potential violations of the Espionage Act, a 1917 law that’s historically been used to prosecute spies and leakers, according to the New York Times.

It’s unclear if the Justice Department’s probe is part of a larger investigation into Trump that goes beyond what federal prosecutors say they found inside Trump’s resort—or the improper handling of classified documents. 

headshot of michael meltsner
Michael Meltsner, George J. and Kathleen Waters Matthews Distinguished University Professor poses for a portrait. Photo by Matthew Modoono/Northeastern University

But that information could be made clear in the coming days. On Thursday, a federal judge magistrate said he’s inclined to at least partially unseal the affidavit used to justify the FBI raid. The judge ordered the Justice Department to submit proposed redactions that he would review.

“On my initial careful review,” Magistrate Judge Bruce Reinhart said at the conclusion of the hearing, according to NBC News, “there are portions of it that can be unsealed.”

The release of an entirely unredacted affidavit would set a dangerous precedent in that it would reveal “methods and sources,” including potentially the names of FBI agents and witnesses to any criminal wrongdoing, Michael Meltsner, the George J. and Kathleen Waters Matthews distinguished university professor of law. Not only would that jeopardize an ongoing investigation, but it creates a personal safety risk to those who would be outed. 

Even a redacted release, which Reinhart appears to favor, is an “unusual” step, given that, in addition to these sensitivities, the probe could involve national security interests. 

“It’s unusual and somewhat troubling,” he says. “Of course, the devil is in the details. If you’ve ever gotten a [Freedom of Information Act] response from the federal government on a serious topic, you often find that you have more black lines than text.”

Indeed, the Justice Department has argued that the investigatory document needs to be kept under wraps because it contains “substantial grand jury” information pertaining to potential national security concerns, NBC News reports. 

“Criminal investigations cannot properly take place if information is shared before charges are brought,” Meltsner says. “This is one reason why grand jury investigations are secret.” 

Because of the unprecedented nature of the case, some news organizations, including the Wall Street Journal, have argued that the affidavit should be unsealed so that the federal government’s probable cause rationale can be better understood. 

But the public interest argument, Meltsner says, doesn’t outweigh the potential damage unsealing it might cause. 

Additionally, there are “no grounds or tradition” to do so, he says.     

“The judge magistrate may feel he has discretion to do this,” Meltsner says. “But it couldn’t be plainer than this would be an unusual step given the representations of the government. If he’s going to unseal the affidavit, how much info he allows to be divulged is an open question.”

It’s an open question, he says, because depending on the number of redactions, the document upon unsealing could be essentially unreadable gibberish—something that Reinhart himself acknowledged.

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