U.S. Magistrate Bruce Reinhart must decide what to do about the governments demand that the Mar-a-Lago search affidavit remain sealed. Former President Trump’s lawyers have demanded the opposite: that the affidavit be unsealed and open to the public.
Under the First Amendment, there is a strong presumption in favor of transparency and public availability of important documents. This presumption is rebuttable upon a showing of good cause. The showing cannot be a general claim that investigations should be protected; it must specifically point out names, words, and sentences whose unsealing would pose a significant danger. Unless such a showing can be made, secrecy is not justified in relation to important documents which the public has a legitimate interest in seeing.
Accordingly, Judge Reinhardt should demand of the government that they make a showing of necessity sufficient to overcome the presumption of transparency. The result of such a process would be the release of most of the affidavit, with certain information redacted. The redacted information might include the names of cooperating witnesses, as well as other information that might compromise the ongoing investigation. But the Judge should demand specificity and good reasons for withholding information, since governments generally prefer secrecy to disclosure.
As one of the lawyers in the Pentagon Papers Case, I vividly recall the government making exaggerated claims that the release of the secret Pentagon Papers would cause enormous harm to our national security. Nonetheless the papers were released with small redactions, and there is no evidence that any harm resulted. There have been many other instances where the government has cried wolf.
This is not a run-of-the mill case involving a search warrant for drugs or white-collar corruption. The search of Mar a Largo was the first time in American history that a potential future presidential nominee of the opposite party was subject to a multi-hour extensive search that recordedly included his wife’s closet and other private areas. The nation is deeply divide3d about the legitimacy of this search. Many are suspicious of the motive of those who authorized it. Though I am not necessarily among them, I understand the suspicion especially after the scandal involving the Fizer warrant based on the Steele dossier which turned out to be anything but the truth, the whole truth and nothing but the truth. In a democracy, suspicions must be allayed by facts and documentation. It is not enough for government officials to say, “trust us, we’re the government.” A better mantra is, “trust but verify.” The best way to verify the constitutional justification for the search, if there was one, is to be transparent.
I have always lived by the following general rule: if there is a dispute between two parties, and one of them wants everything disclosed, while the other one wants to keep it secret, I generally believe the former rather than the latter. There may be good reasons for nondisclosure of some materials in this case, but there is no reason or keeping the entire affidavit sealed.
Consider for example, the reported search of the safe. In order to get a warrant for breaking open of a safe, great specificity is required. What did the affidavit claim was in the safe? What was the basis for this claim? Does the fact that nothing was apparently found in the safe raise questions about the basis on which the safe was searched? The same would be true of the search reportedly extending to Mrs. Trump’s private areas and clothing. Does the affidavit contain information justifying that search? If so, what is the basis for such information? The names of cooperating witnesses who may have provided the information need not be provided, but the information should be made public.
Generally, when there is a conflict between government claims of secrecy and the public demand for openness, the American Civil Liberties Union and other left-wing organizations are on the forefront of demanding openness. But apparently this demand doesn’t apply to Donald Trump, who is despised by the left. “Openness for me, but not for thee” seems to be the rule of the day, when it comes to Trump. But we cannot have one rule for people who are despised by the left and another for people who are admired by them. So Civil liberties organizations should be demanding openness as some in the media have done.
We are a deeply divided nation. The Trump search has divided us even further. Secrecy will only raise more suspicions. Transparency is an important first step to bridging our divide.
Alan M. Dershowitz is the Harvard Law School Felix Frankfurter Professor of Law, emeritus. He is the author, most recently, of The Price of Principle: Why Integrity Is Worth the Consequences. Follow him on Twitter: @AlanDersh. His new podcast, “The Dershow,” is available on Spotify, YouTube, and iTunes. Also: Dersh.Substack.com.
The views expressed in this article are the writer’s own.
welcome to your health-fighters.us