Federal Judge Bruce Reinhart in Florida, the same judge who signed off on the original warrant “personally approved” by Attorney General Merrick Garland, is expected to hear arguments for and against the unsealing on Thursday afternoon. Many media outlets and Trump himself have publicly called for the affidavit’s release, while former federal prosecutor Glenn Kirschner said Thursday that the odds of the contents being unsealed are “slim to none, and slim is fading fast.”
“I think the prosecutors have a powerful argument that the standard, the practice, is that these things are never unsealed,” Kirschner told NBC News Now, adding that such a move “could have a chilling effect on the witnesses who have already come forward and provided information, and might deter other witnesses from coming forward and participating in the investigation.”
Kirschner added that the standard practice is not to unseal these types of documents unless someone is indicted.
Former federal prosecutor Neama Rahmani told Newsweek that he believes Trump’s legal team is encouraging the unsealing of the affidavit more for political rather than legal gain, adding that the government had “more than probable cause” for the search warrant.
“The former president and his legal team have made reference on traditional and social media (to documents being declassified), but really the documents need to be with the National Archives regardless of whether they are declassified or not,” said Rahmani. He added that even if the affidavit is unsealed, he doesn’t believe Trump’s lawyers would win a motion to suppress seized evidence, as probable cause is a “relatively low standard and statutes are broad.”
Rahmani echoed Kirschner regarding a potential chilling of witness cooperation should information become public, saying that identified witnesses would likely receive public pressure and may be subject to violence or attempts of violence. An FBI field office was targeted last week and threats from lawmakers and others against the FBI have ramped up since the initial search.
However, Rahmani said he doesn’t fully know if he agrees with the legal argument of how unsealing would negatively affect the ongoing DOJ investigation.
“I don’t know if this was Garland and the DOJ trying to actually indict the former president, or this was just a matter of getting the documents back,” he said. “Either way, they have the documents and the investigation is over, or they intend to charge the president. There’s already plenty of evidence he committed a crime….Either get a grand jury indictment and unseal the affidavit, or close the investigation.”
Olga Izmaylova, a criminal defense attorney with Atlanta Criminal Defense Team, told Newsweek that affidavit and search warrant documents typically contain information regarding the types of evidence sought by law enforcement, usually making the unsealing of documents “neutral” for both parties.
“However, given the highly publicized nature of this particular case, I believe the main reason Trump would request those documents to be unsealed is to expose the names of people involved in this investigation,” Izmaylova said. “As we know, Trump supporters have already been harassing individuals whose names have already been leaked to the public, so I think Trump and his team are looking to ’expose’ more people to his supporters.”
The DOJ’s argument of the unsealing hindering the investigation makes sense in this instance due to the potential of harassment or violence, she added, saying, “Trump and his team are trying to ‘politicize’ this issue to take the public’s attention off of the actual investigation into Trump’s alleged criminal activities.”
David Schoen, an attorney for Steve Bannon and for Trump during his second impeachment trial, said Thursday on CNN’s New Day that Trump “has been very clear that he wants transparency” due to a “checkered history” of past federal investigations, specifically mentioning the Mueller investigation.
“The risks would be that negative information comes in, but that’s going to have to come in one way or another,” Schoen said. “I think you’re better off testing it now.”
