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Why Won’t the Justice Department Release the Affidavit?

AP Photo/Susan Walsh

It’s the question that’s on everyone’s minds. What is in the affidavit that the FBI used to obtain a warrant to search the home of President Donald Trump’s home at Mar a Lago?

Last week, Attorney General Merrick Garland announced that he had authorized the search. A judge later signed off on the warrant. But so far, nobody knows what information they provided for the judge to persuade him to grant the warrant.

Trump took to his social media platform, Truth Social, to demand that the Justice Department unseal the affidavit so the American people could see how the Bureau justified its need to search his home. He wrote:

“There is no way to justify the unannounced RAID of Mar-a-Lago, the home of the 45th President of the United States (who got more votes, by far, than any sitting President in the history of our Country!), by a very large number of gun toting FBI Agents, and the Department of ‘Justice’ but, in the interest of TRANSPARENCY, I call for the immediate release of the completely Unredacted Affidavit pertaining to this horrible and shocking BREAK-IN. Also, the Judge on this case should recuse!”

The affidavit would contain the details about the Bureau’s investigation and show what the prosecutors believed was the probable cause to justify the search of Trump’s home.

Republicans in Congress have also demanded the release of the document. Rep. Brian Fitzpatrick (R-PA), also a former FBI agent, said during a press conference last week that “the real story will be with the release of the affidavit itself, which is not currently planned to be released.”

He added: “The prosecution does have to repeatedly go back to the court and ask that it remain under seal. There is a baseline presumption that that document be released to the public in the interest of transparency.”

“That’s what’s going to tell us really what most of us want to know,” he concluded.

Rep. Mike Turner (R-OH) on Friday called for transparency and urged the Justice Department to reveal the affidavit. He said: “If these things rise to the level of national security threats, to which there is immediate need to enter the residence of a former president … that should have a higher level of scrutiny, right?”

“But just tell us …. if there are rational answers for it, then [Attorney General Merrick Garland] needs to come to this committee to disclose what the classified information is, disclose what the national security threat is so that we know,” Turner added.

Sen. Tim Scott (R-SC) told Fox News’ Brett Baier that “Until we see specificity within the affidavit, we will not have the clarity the American people need.”

 

Yet, the DOJ is not too keen on the idea. Big surprise there, right?

RedState’s Nick Arama noted that “the DOJ has not been transparent about critical information, including why they made a move to raid the home of the former president when Donald Trump had been cooperating with the National Archives’ effort to recover documents.”

The DOJ made a filing requesting that the courts not allow the affidavit to be released. It argued:

[The affidavit] contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).

DOJ lawyers said on Monday that “there remain compelling reasons, including to protect the integrity of an ongoing law enforcement investigation that implicates national security, that support keeping the affidavit sealed.”

The DOJ also explained that it considered whether a redacted version of the document could be released, but concluded that “the redactions necessary to mitigate harms to the integrity of the investigation would be so extensive as to render the remaining unsealed text devoid of meaningful content” and “would not serve any public interest.”

It seems most people wish to see what is in the affidavit. Not only are politicians demanding its unsealing, media outlets from both sides want the document to be revealed. So why does the Justice Department insist on keeping this information from the American public?

The answer seems obvious: They do not want to open themselves up to scrutiny.

If people can see what the FBI used to justify the search of Trump’s home, it will be easier to poke holes in the agency’s rationale. If the justification is flimsy, it might further expose the possibility that the Bureau is politically-motivated. The DOJ isn’t trying to protect the integrity of the investigation – they are engaging in a bit of CYA. But if the judge rules that the contents of the affidavit are in the public’s interest, the Justice Department won’t have much of a say in the matter.

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