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Op-ed

Court ruling clears way for Trump criminal investigation to continue, as it should, despite the former president’s claims | GUEST COMMENTARY

FILE - This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and partially redacted by the source, shows a photo of documents seized during the Aug. 8 FBI search of former President Donald Trump's Mar-a-Lago estate. In the weeks since the FBI searched the estate and seized about 100 documents with classification markings, Trump has insisted he did nothing wrong and argued he declassified the information. On Sept. 21, he said in a Fox News interview that a president can declassify material “by thinking about it.” (Department of Justice via AP)

The ruling last week by the 11th Circuit Court of Appeals that the criminal investigation into Donald Trump’s possession of classified materials at his Mar-a-Lago estate can continue — without first submitting documents to a special master for review, as another judge had unwisely ordered — was the right call for a number of reasons. Among them is the fact that the special master himself undercut claims by Trump that the FBI planted evidence during an initial search.

Trump, with his usual gift for understatement, has called the search a “travesty of justice that made a mockery of America’s laws, traditions, and principles” and “one of the most shocking abuses of power by any administration in American history.” And he pushed for the disclosure of details regarding the sworn affidavit that supported the search warrant.

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To assess the validity of the search and understand why this request for early disclosure was so dangerous, it is first necessary to understand just what affidavits are and why the granting of these requests would be extraordinary exceptions to how criminal cases normally proceed.

Search warrants are issued only when a judge determines that there is probable cause that evidence of a crime is located in the place to be searched. That probable cause comes from the affidavit, a statement made under oath and under the penalty of perjury for false testimony. Before the judge determines the existence of probable cause, he or she must decide that the information comes from a reliable source and that that source has a reliable basis of knowledge regarding the presence of the criminal evidence. Only then does the judge issue the search warrant, the purpose of which is to enumerate and limit what can be searched and what items can be seized. The search of Mar-a-Lago was a duly executed warrant issued by a federal judge, not the “assault” that Trump called it.

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While the subject of the search is entitled to see the warrant and an inventory of the items seized from his property, the affidavit leading to the warrant is normally revealed only well into the criminal case if at all. Usually this occurs after the defendant, in this case Trump if he is charged, files a motion to suppress the evidence that was seized, and a different judge deciding the motion looks to see if the affidavit sufficiently demonstrated probable cause. Even when probable cause is found to be lacking, the evidence is still admissible at the trial if the law enforcement personnel made the mistake in good faith.

There are many reasons that affidavits are not revealed before this time. Although there are exceptions, hearsay evidence (i.e. “I was told by John Smith he saw cocaine”) is generally not permitted during a criminal trial. It is permitted however to support the affidavit on the issue of probable cause. Often the source of the information remains anonymous even within the affidavit.

There are several reasons that prosecutors wish to keep affidavits from the defendant as long as possible. One relates to concern that revealing the source of the information that led to the search will expose the informant to danger. Seeing the numerous threats to the FBI agents who merely did their duty in executing the search and Trump’s recently calling FBI agents “vicious monsters,” makes this fear for the safety of the informants in this case far from hypothetical. Senator Lindsey Graham’s prediction that there would be riots in the streets if Trump is prosecuted magnifies this concern.

Another reason for avoiding early disclosure of the affidavit is that in many cases the search, as here, comes near the beginning of the investigation and revealing the affidavit compromises the ability of the authorities to get at the facts or witnesses as the investigation continues and at times gets broader.

Now it is reasonable to observe that searching the residence of a former president is a matter of substantial public interest, and therefore allows for different treatment of the search warrant process. In this case, the judge who issued the warrant (not the judge who appointed the Special Master) has made parts of the affidavit public, but paid special attention to redacting those portions that could compromise the safety of the FBI agents or those who provided information leading to the probable cause. Bear in mind that even without naming the informants, the nature of the information in the affidavit can itself be a roadmap to who the informants are.

From a legal Fourth Amendment standpoint, the existence of probable cause for the warrant is determined at the time the affidavit is issued, regardless of what ultimately is discovered in the search. From a political standpoint however, the recovery of apparently hundreds of classified documents — some of them marked “Top Secret” — belies the claims of Trump and his supporters that the search was a fraud.

So here we go again, headfirst into the Trump as a victim narrative that is merely a smokescreen to cover up his belief that he is and always has been above the law.

Steven P. Grossman (sgrossman@ubalt.edu) is Dean Julius Isaacson Professor Emeritus at the University of Baltimore School of Law.


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