Heavily Redacted Affidavit May Be Meaningless, Judge Admits; But Even Largely Unredacted One Would Not Answer Important Questions
A Meaningless Disclosure
WASHINGTON, D.C. (August 22, 2022) – The federal judge who ordered the Department of Justice [DoJ] to consider releasing the affidavit which provided the basis for the search of Mar-a-Lago.
After enough has been redacted to protect the government’s interests, has recognized that it may “result in a meaningless disclosure.”
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But even the release of the entire affidavit, much less one which is even largely unredacted, would not answer most of the important questions involving the search warrant and the resulting search.
And would provide virtually no assurance that the DoJ's investigation of Donald Trump and others is being conducted without political taint.
More specifically, in response to DoJ's argument that the necessary redactions “would be so extensive as to render the document devoid of content that would meaningfully enhance the public’s understanding of these events beyond the information already now in the public record.”
Federal Magistrate Judge Bruce E. Reinhart said in his written order that "I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government."
Banzhaf explains why even a largely unredacted affidavit will in no way solve the problem of having a clearly biased prosecutor, nor whether the warrant and the search tactics.
Even if legally supported by the affidavit, would have been employed by a prosecutor who did not have a clear conflict of interest, argues Banzhaf.
These problems also would not be addressed if the judge appoints - as Trump is likely to request - a special master to oversee the handling of the documents which were taken in the search.
Many lawyers and even laymen know that there is much truth in the old saying that a prosecutor can indict a ham sandwich.
While it's not quite as easy to obtain a search warrant, it would not be difficult for a skilled Justice Department lawyer to provide a barely legally valid basis in an affidavit - e.g., swearing that a reliable informant said there were still classified national security documents at Mar-a-Lago - to justify this search.
But that doesn't begin to address the question of whether an investigation headed by someone without a clear conflict of interest, and a bias against his boss' major political rival and presumed challenger for reelection, would have used a search warrant.
Rather than, for example, first issuing another more specific subpoena, continuing to negotiate for voluntary release longer, etc. - which are matters of judgment rather than mere questions of law and legal sufficiency.
But even assuming that the affidavit did meet the bare legal requirements for the issuance of a search warrant, as a judge has already ruled.
Its release will not even begin to answer whether an impartial prosecutor would have, for example, permitted Trump's attorneys to witness the search in order to guard against baseless speculation that incriminating evidence was being planted, to raise timely objections if any materials being seized might be protected by attorney-client or executive privilege, etc.
The Release Of The Affidavit
The release of the affidavit probably also would not permit even skilled prosecutors and law professors to resolve issues such as whether the resulting warrant was worded more broadly than probably necessary and/or granted access to more areas of the estate than reasonably required.
Finally, regardless of what the warrant might or might not say, it will provide no assurance,to impartial legal observers - much less to many Republican members of Congress and Trump supporters.
Whether judgment calls such as: what further witnesses should be required to testify, whether Trump himself should be subpoenaed to appear before a grand jury.
And, most importantly, whether this former president under all the circumstance should be indicted and tried, even if the evidence finally developed might be legally sufficient.
After all, AG Merritt Garland serves at the pleasure of the current president and is required by law to obey his orders. Biden has said that he plans to run again.
And most commentators now believe that Trump represents his most likely opponent and the greatest threat to the election of any Democrat.
It has also been widely reported that President Joe Biden has said that Trump is "a danger to democracy" and "should be prosecuted."
So it appears undeniable that Garland is in an unavoidable conflict of interest situation: if Biden ordered or even just hinted that Garland should take some action which could reduce Trump's chances for reelection.
The AG would have to decide whether to follow that request, or to substitute his own judgment as to what would be just, fair, and most in the public interest under the circumstance in making such a judgment call.
Even if Biden never sought to interfere in this matter, Garland certainly knows that he would lose his job if Trump were elected.
So he also has a clear conflict of interest between leaning in judgment calls - i.e., where two or more actions might be legally valid - against the former president, and simply exercising his best judgment.
The importance and broad sweep of this basic legal principle is illustrated by a recent example.
Fani Willis, the DA of Fulton County, Georgia, is currently conducting a criminal investigation of Trump and others as the result of a formal complaint by Prof Banzhaf that Trump violated state laws by attempting to interfere with the most recent presidential election.
But when she notified a Republican candidate for lieutenant governor that he was a subject of the investigation, a judge ruled that she was disqualified from prosecuting him. The reason - she had headlined a fund-raiser for his opponent, a fellow Democrat.
So even though her own position was in no way threatened by this potential defendant - and in supporting a candidate of her own party for a different office she did nothing more than most political figures do routinely.
The judge found that there was a sufficient conflict of interest to prevent her from proceeding any further.
A Simple Solution
Fortunately, there is a simpler solution for Garland; one which not only is possible, but is actually required by law.
The law requires that he appoint an independent special counsel to conduct investigations which "would present a conflict of interest for the Department or other extraordinary circumstances.
And that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."
Even belatedly appointing an independent special counsel now would go a long way towards dispelling growing distrust over the incident because he would have the power to return all or some of the documents to Trump.
If appropriate, to set up a fair procedure to see if any are protected by attorney-client or executive privilege, and, most importantly, to make an impartial judgment, free of conflict of interest.
As to whether any documents uncovered by the search would - as a matter of judgment as well as strictly legal requirements - warrant seeking an indictment against Trump.
Moreover, suggests the law professor, appointing an independent special counsel now would help to insure far broader support and less objection to any further actions.
Taken as part of the investigation, including but not limited to any charges, offers to plea bargain, etc. which might result from the search or otherwise.
