There is an outcry in much of the Republican Party about why neither the Department of Justice nor the FBI has released a statement regarding the search of former President Donald Trump’s Palm Beach residence on Monday night.
FBI Director Christopher Wray is the only related person to make a public comment regarding the action taken by the bureau, and that was only to say he couldn’t discuss the topic.
There are also calls for a copy of the search warrant to be released by investigators showing why the FBI was able to enter Mar-a-Lago and leave with a reported excess of 10 boxes of documents after an hours-long search for classified materials allegedly taken by the former president from the White House when he left office in January 2021.
There are two reasons why neither has happened. First, the FBI has learned through experience that it is not in the bureau’s interest to insert itself into the political battlefield. James Comey’s statement to the press and later letter to Congress remains a sore point with Democrats for – some argue – affecting Hillary Clinton’s performance in the 2016 election.
The second is that the Justice Department is neither able to comment on an ongoing investigation, nor is it able to release a copy of the warrant that was granted in order to carry out the search of the former president’s home.
One person who could release a copy of the warrant is Donald Trump himself. His legal team would be in the possession of it, Politico notes, and most likely this would be through his lawyer Christina Bobb who was present at Mar-a-Lago on Monday – though she claims she was not permitted to observe the search and was not given a copy of the warrant but had seen it. She claims the agents on site initially refused and described the document as “thin”.
Ms Bobb appeared on a number of broadcasts on Tuesday decrying the events of Monday and suggested that the FBI had the opportunity to plant evidence — an accusation echoed by Mr Trump — or that the bureau would simply make something up.
On Wednesday, Mr Trump’s son Eric told The Daily Mail that the agents would not give Ms Bobb a copy of the warrant and showed it to her from 10 feet away, adding that he would be “thrilled” to find out if there really was a valid warrant.
If there is any reticence on the part of the Trump team to publish the warrant, should it be in their possession, it is likely because a court-authorised FBI search to reclaim governmental materials would only be granted if the documents were of such national security sensitivity that there was no question they should be reclaimed, even for safekeeping.
It is highly unlikely that the FBI would apply for a warrant without solid reasoning that there was a criminal violation behind the retention of documents supposed to be in the National Archives. There are reports of an informant at Mar-a-Lago who may have tipped off the bureau.
A warrant would list the alleged crimes of which Mr Trump or his team are accused. If the highly sensitive documents in question are related to national security, then that could fall foul of the Espionage Act. That would be difficult for the Trump team to spin and could dampen the rush of support from the wider Republican Party he has seen since Monday night.
If they wished, the Trump team could also defuse some of the controversy by showing a full inventory of documents in their possession and those sought by the National Archives — should they be not of a sensitive national security nature or declassified by the former president before he left office. Indeed, Mr Trump is the only one who can speak to that. Further, he is also the only one who can argue why he disagrees with the notion they should not be in his possession.
As columnist and Trump supporter Hugh Hewitt wrote in The Washington Post when arguing for the former president to release the warrant: “The questions are: What is the Justice Department looking for, and was this necessary?”
If the former president has nothing to hide, revealing the warrant should provide enough information for the public to assess if there was probable cause for a search and if the judge made a fair decision to allow one — or if there was some other motive.
By not releasing a copy of the warrant, it may appear that the Trump team either does not want to reveal the serious nature of the allegations against the former president or is leveraging the resulting political firestorm for their gain in the run-up to 2024.
What the former president will not have a copy of — but which will have been presented to and signed by the judge who approved the search — is the affidavit the FBI used to obtain the warrant, which is sealed while a case is ongoing.
Dr Marcy Wheeler explains on her blog emptywheel that this document would go into huge detail regarding who is under investigation (i.e. whether Trump staffers are also involved); the background to the case and its timeline; previous refusals to comply with demands to return documents; and examples of classified documents in the fifteen boxes turned over in 2021, and what they believe is in the remaining boxes.
There could be even more detail included regarding correspondence with the Trump team; documents known to be missing from the National Archives; and details of testimony given to the FBI by aides regarding any stolen documents.
While the affidavit and this level of detail will not be made public anytime soon, the information it contained must have been robust enough for the judge to issue the subsequent warrant regarding the home of a former president.
It’s unlikely that any judge would make such a decision without good reason.