DOJ argues against release of probable cause affidavit behind FBI Trump search

The U.S. Justice Department on Monday rejected calls to release a document that details what evidence it had when it made the request to search Mar-a-Lago, former President Donald Trump’s home and private club in Palm Beach.

In a 13-page response to a request made by more than a dozen news organizations, including The Palm Beach Post, federal prosecutors said releasing the probable cause affidavit would cause "irreparable harm" to the ongoing investigation.

"If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps," federal prosecutors wrote.

More: Though Mar-a-Lago warrant released, Palm Beach Post asking court for entire documents

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More: Read the FBI's search warrant for Donald Trump's Mar-a-Lago property

Key witnesses could be revealed and the revelation could keep others from cooperating, wrote South Florida U.S. Attorney Juan Gonzalez and Jay Bratt, chief of DOJ's Counterintelligence and Export Control Section in Washington.

"The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly," the prosecutors wrote in papers filed in U.S. District Court in West Palm Beach.

Instead, they recommended that other sealed documents, that appear to be largely clerical in nature, could be released.

U.S. Magistrate Judge Bruce Reinhart, who signed off on the warrant that last week led to the unprecedented search of a former president’s home, will decide whether the affidavit will be released.

On Tuesday, he said he would hold a hearing on Thursday to give newspaper attorneys and prosecutors a chance to explain their positions. Reinhart is a former federal prosecutor who also worked as a defense attorney.

Republicans joined calls to release key documents about Mar-a-Lago search

Over the weekend, as Trump supporters took to the streets to protest the search, a growing number of Republican lawmakers joined the chorus of those pushing for the affidavit to be made public.

The search warrant and a list of items taken from Mar-a-Lago were released Friday. The documents showed that agents were investigating potential violations of the Espionage Act and that they found what they described as classified documents.

But neither the warrant or the inventory provided any details about why federal prosecutors made the request to enter Trump’s home.

While speaking on “Meet the Press” on Sunday, U.S. Sen. Mike Rounds said the affidavit would show whether the FBI had justification to descend on Trump’s estate or whether it was engaged in “a fishing expedition.”

The affidavit would show "they had due cause to go in and to do this, that they did exhaust all other means,” said Rounds, a Republican from South Dakota. “And if they can't do that then we've got a serious problem on our hands.”

U.S. Rep. Mike Turner, the top Republican on the House Intelligence Committee, voiced a similar view.  If the affidavit remains sealed, "it will still leave many unanswered questions," the Ohio Republican told reporters.

Legal experts cautioned such affidavits rarely released

Still, legal experts said, such affidavits are rarely made public unless an arrest is made. Affidavits aren’t released for the very reason federal prosecutors don't want to share the one submitted to get the warrant to search Mar-a-Lago.

“There's an ongoing investigation and the government would not want to disclose the contents of that investigation,” said Gregg Lerman, a West Palm Beach defense attorney.

The affidavit could identify people who might have tipped off the FBI that classified documents, removed from the White House when when Trump left office, were at Mar-a-Lago.

Even if they were identified only as confidential informants in the affidavit, Lerman said it is possible Trump’s team or others could figure out who they were. “That would be my concern – for that individual’s safety,” Lerman said.

Reinhart has reportedly been the target of death threats because he signed the warrant.

The search warrant allowed agents to inspect the "45 Office," apparently referring to a room in Mar-a-Lago where Trump, the nation’s 45th president, works. Agents were also allowed to look in other “rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes of documents could be stored.”

The inventory list showed agents carried out nearly 30 boxes of documents along with binders of photos, handwritten notes and other materials. About a dozen groups of unboxed documents were labeled either top secret, classified or confidential.

In a statement on Friday, Trump questioned why agents didn’t simply ask him for the documents. The National Archives and Records Administration in January retrieved 15 boxes of documents from Mar-a-Lago.

Trump has also claimed he declassified the documents found in his home. Experts have said he wouldn’t have that power after he left office and even a sitting president’s ability to do so is limited.

Editor's Note: This story has been updated to reflect U.S. Magistrate Judge Bruce Reinhart's decision to hold a hearing on Thursday.

Jane Musgrave covers federal and civil courts and occasionally ventures into criminal trials in state court. Contact her at jmusgrave@pbpost.com.

This article originally appeared on Palm Beach Post: Justice Department opposes release of Trump, Mar-a-Lago search document