In the document, investigators probing the Trump White House’s handling of classified documents would have to explain to the judge why they believed there was probable cause for a crime and that there was evidence of that crime at the Florida resort. The affidavit contains “important information from the court,” a Justice Department lawyer told Reinhart at a hearing last week where media organizations and other entities argued for public release of the document, which was filed under seal. Trump asked for the affidavit to be released because it was not part of the warrant-related documents obtained by his legal team for the investigation. But the former President has yet to formally seek to be involved in this legal battle over whether the affidavit should be unsealed, and has instead filed a separate case before a different judge where he is asking to see the affidavit in its entirety. Here’s what we know about what’s to come:
The DOJ’s next deadline is Thursday — but what it does will likely be under seal
The Justice Department has until noon Thursday to submit the corrections it believes the affidavit will need if the judge releases it. With this, the department will also present legal arguments as to why these amendments are necessary. Previously, the department argued that once the necessary corrections were made, the affidavit would be “devoid of substance.” Reinhart said Thursday’s filing could be under seal. It is possible that prosecutors could publicly file an amended version of their legal arguments. But so far, there is no indication that the department plans to do so. Beyond Thursday’s filing deadline for the DOJ, there is no set timeline for what will happen next in the dispute.
The judge could still decide not to release any part of the affidavit
The judge said last week that the department had not yet convinced him that the entire affidavit should remain sealed. But he still has some room for himself to change his mind, depending on what the department tells him in this latest round of secret depositions. He wrote in an opinion released Monday that “the present record” does not warrant “holding the entire affidavit under seal.” He also wrote that “at this point” he didn’t buy the Justice Department’s argument that once all the necessary corrections were made, they would be “so extensive as to result in a meaningless disclosure.” “[B]and I may eventually come to that conclusion after hearing more from the government,” he wrote. For now, all that is certain is that the Justice Department has convinced the judge not to release the affidavit in its entirety without any redactions.
But the judge takes into account factors that favor transparency
As Reinhart wrote in Monday’s opinion, the Justice Department has already acknowledged that the warrant involves “matters of significant public interest.” “Certainly, unsealing the affidavit would advance public understanding of historically significant events,” Rinehart said. “This factor weighs in favor of disclosure.” The historical significance of the Mar-a-Lago investigation also made Reinhart skeptical of another argument the DOJ has made: that the work that would go into making corrections would strain the department’s resources and could set a precedent that would create similar disturbances and burdens in the other cases. “Particularly given the intense public and historical interest in an unprecedented search of a former president’s residence, the government has yet to demonstrate that these administrative concerns are sufficient to justify sealing,” the judge wrote. Reinhart will have before him the reasons the Justice Department says the affidavit information must remain confidential, including how it could reveal sources and methods used by the government in its investigation and how evidence from affidavits could be used to identify witnesses.
It may take several weeks to resolve the dispute over unsealing the affidavit
Once the Justice Department files its submission, there are no other pending deadlines currently in the public docket — meaning the judge could make his next move very quickly, or he could wait several days or even weeks to act . During last week’s hearing, the lawyer arguing on behalf of the government — DOJ counterintelligence chief Jay Bratt, who plays a prominent role in the investigation — said that after the department submitted its proposed amendments, it would be willing to appear before the judge to discuss them “in camera”. That means a private process that would be imperceptible not only to the public, but also to parties who oppose the Justice Department’s seeking to release the warrant documents. But it’s unclear whether the judge will request such a hearing and whether there will be any indication in the public record that it is happening — adding more uncertainty to what will happen in the coming days and when. Adding to the fluid nature of the timeline is the possibility that the Justice Department, if the judge ultimately disagrees with its recommendations to process the affidavit, would be given time to appeal the decision. The judge can issue his decision, but put it on hold for a certain period of time so that the Department of Justice can file an appeal. That would start a new round of litigation that could last weeks or even months. CNN’s Katelyn Polantz contributed to this report.
