Ordering the unsealing of the Mar-a-Lago search warrant affidavit would be wrong as a matter of law. But as a matter of lessons learned, Americans can infer that the unprecedented search of former President Donald Trump’s home rested on circular reporting, material omissions, misleading assertions, informants of unproven reliability, and an investigation undertaken by partisan agents.
Federal Magistrate Judge Bruce Reinhart will hear oral arguments Thursday afternoon on the media’s motions to unseal the Trump search warrant materials. The Department of Justice, with Trump’s consent, already released the search warrant and the corresponding attachments: Attachment A, which described the places to be searched, and Attachment B, which identified things to be seized. The government also released a redacted Property Receipt list.
The Biden administration opposes, however, unsealing the affidavit filed in support of the search of Trump’s home, arguing that “the search warrant presents a very different set of considerations,” and that there are “compelling reasons, including to protect the integrity of an ongoing law enforcement investigation that implicates national security, that support keeping the affidavit sealed.”
Precedent solidly supports the government’s argument. While the First Amendment provides the press and the public the “right of access to criminal trial proceedings,” neither the U.S. Supreme Court nor the 11th Circuit — the federal appellate court that establishes mandatory precedent for the Florida federal district court where the case is pending — have addressed the question of whether the First Amendment right of access extends to sealed search warrant materials. However, other federal appellate courts have held that “there is no tradition of public access to ex parte warrant proceedings,” and based on that precedent, the DOJ argues that the “better view is that no First Amendment right to access pre-indictment warrant materials” exists.
The Sixth Circuit’s detailed analysis in In re Search of Fair Finance strongly supports the DOJ’s position. In that case, the federal appellate court explained that under Supreme Court precedent, for a First Amendment right to access a particular criminal proceeding to exist, the proceeding must have “historically been open to the press and the general public,” and “public access [must] play[] a significant positive role in the functioning of the particular process in question.” Then, after discussing the relevant history, the court concluded that there was no “historical tradition of accessibility to documents filed in search warrant proceedings,” and “that alone requires a rejection of the newspapers’ contention that there is a First Amendment right of access to them.”
Given the strength of the analysis in In re Search of Fair Finance, Reinhart is unlikely to unseal the search warrant affidavit because that precedent indicates there is no right to access the materials at all. However, rather than hold...
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