Trey Gowdy zeros in on why Mar-a-Lago search warrant affidavit 'certainly isn’t the whole story'



Fox News host Trey Gowdy explained Sunday why the pursuit to unseal the affidavit in the Mar-a-Lago search may be short-sighted.

What did Gowdy say?

Ahead of Federal Magistrate Judge Bruce Reinhart potentially forcing the Justice Department to release a redacted version, Gowdy pointed out the affidavit only provides one side of the story.

That side, according to Gowdy, is heavily biased in favor of the government.

"Even if we do get to see the affidavit, it’s just one side of the argument. It’s the government’s side. The target of the search doesn’t get to appear in front of a judge, and he doesn’t get to argue against the search or the affidavit," Gowdy explained.

"The information has not been cross-examined. And the rules of evidence, which do apply in court, don’t apply to search warrants," he pointed out.

Just as important, Gowdy, who is a former federal prosecutor, noted the burden of proof to obtain a search warrant is just probable cause, whereas a criminal conviction requires beyond a reasonable doubt, a much higher standard.

"It takes probable cause to search, but it takes a whole lot more than that to convict. Whatever’s in the affidavit, it may or may not wind up being true or proven," Gowdy explained. "And it certainly isn’t the whole story, because only the government participates in seeking a search warrant. We don’t know and we won’t know until both sides present their facts and test the evidence on the other side."

Trey Gowdy: Mar-a-Lago raid eroded trust in the DOJ, FBI youtu.be

Will it even make a difference?

In a world of tribal politics, ardent Trump supporters believe he is innocent, while fierce Trump critics believe he is guilty. So will releasing the affidavit even make a difference?

"Does the evidence still matter or have people already made up their minds?" Gowdy went on to say. "Despite what others may tell you, waiting and wanting to see the evidence is good. It’s even better when the jury hasn’t already made up its mind."

The court of public opinion aside, the release of the affitavit is not necessarily a win for transparency.

In fact, Reinhart indicated Monday that extensive government redactions could strip the affidavit of any real public significance and render it meaningless.

"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," Reinhart said.

Judge Bruce Reinhart rejects DOJ argument that Trump affidavit must remain entirely sealed



A federal judge who authorized an FBI search warrant to raid former President Donald Trump's Mar-a-Lago home has rejected the government's argument that the entire underlying affidavit must remain sealed.

In a written order Monday, Federal Magistrate Judge Bruce Reinhart said the Justice Department has a deadline of noon on Thursday, August 25, 2022, to submit proposed redactions to an FBI special agent's sworn affidavit that provided the facts to support the finding of probable cause to search Trump's home for evidence of a crime.

Reinhart said that there is reason to unseal the affidavit given "the intense public and historical interest in an unprecedented search of a former President's residence."

However, he agreed with the government's argument that portions of the document need to be redacted to protect FBI sources and methods, as well as to shield from harassment witnesses who could be identified by details in the affidavit.

"The Government has met its burden of showing good cause/a compelling interest that overrides any public interest in unsealing the full contents of the Affidavit," Reinhart wrote.

The Justice Department has opposed releasing the affidavit, arguing that its investigation into whether Trump mishandled classified documents is ongoing and still in its early stages. The DOJ said 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."

During a hearing last week, a top Department of Justice official told Reinhart that were the document to be released, necessary redactions would be so extensive as to render it meaningless. The judge conceded that this may be the case in his written order.

"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," Reinhart wrote on Monday.

Media organizations and the conservative watchdog group Judicial Watch have asked the court to unseal the affidavit, arguing there is extraordinary public interest in transparency about the unprecedented search and seizure at a former president's residence. They said that Reinhart must consider that the press has "already been permitted substantial access to the contents of the records," which have been disclosed in news reports.

However, Reinhart rejected the media's argument, noting, "much of the information being discussed is based on anonymous sources, speculation, or hearsay; the Government has not confirmed its accuracy."

Details of the case were also made public at the Justice Department's request. The FBI warrant and inventory of items taken from Trump's home were unsealed, revealing that the former president is under criminal investigation for violating the Espionage Act and the Presidential Records Act by allegedly taking classified materials with him to Mar-a-Lago after leaving the White House at the end of his term.

On Aug. 8, FBI agents executed a search and seizure at Mar-a-Lago, carrying away dozens of boxes of documents allegedly containing highly classified materials.

Trump has denied all wrongdoing and demanded the "immediate release" of the "unredacted" affidavit and warrant used to authorize the raid at his home. He has also accused the Biden administration of weaponizing law enforcement against him for political reasons.

Though Trump has called for the release of the FBI affidavit, Reinhart observed Monday that his lawyers have not filed a legal motion seeking to unseal the document.

“Neither Former President Trump nor anyone else purporting to be the owner of the Premises has filed a pleading taking a position on the Intervenors’ Motions to Unseal,” Reinhart wrote.

The highly controversial FBI raid sparked outrage among Republicans and Trump's supporters. In the days following the raid, the FBI and Department of Homeland Security reported an increase in violent threats against federal law enforcement. Last week, an Ohio man was killed in a shootout with police after shooting a nail gun into the FBI Cincinnati headquarters and fleeing the scene. A Pennsylvania man was also arrested and charged with making violent threats against FBI agents online.

Reinhart cited the public threats to FBI agents and law enforcement in support of the government's argument to keep portions of the affidavit sealed.

"Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated," the judge said.

He found "significant likelihood that unsealing the affidavit would harm legitimate privacy interests by directly disclosing the identify of the affiant as well as providing evidence that could be used to identify witnesses."

(h/t: The Washington Post)

Footnote in court filing shows why Judge Reinhart's ruling to consider releasing Trump affidavit not a win for transparency



Federal Magistrate Judge Bruce Reinhart appeared to give transparency a victory on Thursday when he ordered the Justice Department to prepare the search warrant affidavit in the case of former President Donald Trump for public release.

But even if the affidavit is released, what the American people see will probably be a highly redacted version that provides little transparency.

What did Reinhart say?

The government argued the search warrant affidavit should remain under government seal to protect the integrity of its ongoing investigation. But Reinhart disagreed, suggesting the public interest in the high-profile case may outweigh the DOJ's interests.

"I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed," Reinhart ordered.

The judge thus gave the government until next Thursday to file with his court "its proposed redactions along with a legal memorandum setting forth the justification for the proposed redactions."

But why does that not mean transparency?

Attorney Harmeet Dhillon explained on Fox News that she does not believe the affidavit will ever see the public eye.

"I think you are going to see virtually nothing after the redactions are presented to the judge," she said. "I think that the judge will take a look and see whether he agrees with the redactions or not, and then there will be some back and forth.

"Ultimately though, what we are seeing here is not some sort of outrageous change of behavior by the DOJ," she explained. "This is actually their existing way that they deal with requests like this. They typically stonewall, they typically hold all the cards. They never want to show a target or a defendant what they have. And they are very rarely held accountable, including by magistrate judges."

Dhillon added that especially in cases that involve national security — a category into which Trump's case falls — the search warrant affidavit is "restricted" to the defendant and their counsel.

In fact, the Justice Department argued the exact point Dhillon made, namely that a redacted affidavit will not provide the public any new information.

The government said in a court filing this week:

The government has carefully considered whether the affidavit can be released subject toredactions. For the reasons discussed below, the redactions necessary to mitigate harms tothe integrity of the investigation would be so extensive as to render the remaining unsealedtext devoid of meaningful content, and the release of such a redacted version would not serveany public interest.

Attorney General Merrick Garland said at a press conference last week that the DOJ will speak through court filings.

But as constitutional scholar Jonathan Turley explained this week, repeated leaks from within the DOJ to media outlets are framing the public narrative of the case, which a new poll found is assailing public trust in the FBI.

The Rasmussen survey discovered that, after the FBI's Mar-a-Lago raid, a majority of Americans now view the FBI as "Biden's Gestapo."