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When I worked at the New Jersey Attorney General’s Office, we once found ourselves in the middle of a media firestorm over a case involving a celebrity. I can’t say the name here, but suffice it to say, things were spinning out of control. The local media was whipped into a frenzy and all manner of misreporting was beginning to take hold and spread.
We held a series of internal meetings about how we might staunch the damage. At one point, the AG even drafted a detailed Op-Ed that would set the record straight. For a moment, it felt like the right thing to do; run the piece and get everything straightened out. But, after a bit of reflection, we concluded: we can’t do this. We don’t open up the books on pending criminal investigations just to calm a public firestorm. It’s not easy, and it’s not pleasant – but, sometimes, prosecutors just have to sit back and take it.
While I’ve never been in a seat quite as hot as the one that Attorney General Merrick Garland occupies right now over the search of Mar-a-Lago, I can empathize. He is under enormous pressure – not only from Donald Trump but also from prominent politicians, including some Democrats – to publicly release more information about the search. As critical as I’ve been of Garland in some contexts, I give him absolute credit here for holding the line. I’m sure it’s tempting to simply open up the books on the Mar-a-Lago search and answer the call for transparency. But Garland is doing the right thing by staying mostly mum – even if it might cost him politically.
You see, in pretty much every aspect of the job, prosecutors hold all the power. Prosecutors get to decide who to investigate, whether to charge a case, whether to offer a guilty plea or go to trial, and what sentence to recommend, to name a few. It can get heady, candidly. Defense lawyers, defendants, witnesses, even judges are often at your mercy, or at least weigh your views heavily.
But there’s one notable exception: prosecutors are largely powerless when it comes to the media. Sure, we have our press conferences, boasting of the groundbreaking cases we’ve made, often flanked by seized drugs, guns, cash, and other flashy props. But after that initial burst of glory, prosecutors are supposed to do their talking only in court, through formal filings and during public legal proceedings.
Garland made a limited exception to this principle when he briefly addressed the media three days after the Mar-a-Lago search. He voiced support for the men and women of the Justice Department, he confirmed that he had personally approved the search, and he announced that DOJ had moved to release certain documents relating to the search logistics. But, crucially, he steered clear of any details about the underlying investigation itself.
While Garland was wise to call for the limited release of that initial set of documents – he was eventually joined by Trump’s team and the judge – he drew a crucial line: the affidavit is not going anywhere.
The initially-released documents, which ran a total of six pages, provided general information about the search: where DOJ sought to search within Mar-a-Lago, a broad inventory of items seized, a listing of the criminal statutes that DOJ had proven by probable cause.
But the affidavit is different. We haven’t seen this document yet, nor has Donald Trump; only prosecutors and the judge have it at this point – though we will see certain unredacted portions of it later today. (Trump, or any subject, would get the full document only if and when an indictment is filed, but we’re not at that point.)
So we don’t know exactly what’s in the Mar-a-Lago affidavit. But I’ve drafted and reviewed more search warrant affidavits than I can count, so I have some basis for informed conjecture. The affidavit is, in essence, the playbook. It’s the document in which prosecutors lay out probable cause, so typically it would describe the investigation in detailed, narrative form. The affidavit likely identifies witnesses (without listing proper names, but those can be easily deduced by an informed reader) and other investigative methods: wiretaps, surveillance, and other tactics that depend on secrecy. As DOJ put it in reference to the Mar-a-Lago search, “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.”
A group of media companies (including CNN, where I am a contributor) made a motion for the judge to unseal the affidavit. I don’t at all begrudge these plaintiffs the motion; it’s rightly the media’s job to try to get at crucial information. And I also credit Garland for resisting. I’m sure it would’ve been satisfying for DOJ to take a contrary position: OK, everyone. You want to see the affidavit? Here you go. Now you know how we established probable cause that Mar-a-Lago was a crime scene.
The problem, of course, is that public disclosure of the affidavit would expose DOJ’s pending investigation. We’d all know – and Trump and his team would know – what exactly DOJ has, and what it’s still looking for, right in the midst of an ongoing investigation. And, bigger picture: what happens in the next case? Does the next person whose home gets searched get an advance peek at the affidavit in their case, too? Does everybody? Or just the former president? Or only subjects in cases with profiles high enough to attract the media?
Earlier this week, the judge ordered DOJ to suggest redactions that might enable partial public production of the affidavit; DOJ complied and now will make public the redacted document by noon today. Don’t count on seeing much of substance. If DOJ has removed any and all information relating to the ongoing investigation (as they should), then we’re going to see mostly large swaths of black ink. I’d surmise prosecutors have un-redacted only the most benign, boilerplate portions of the affidavit, to make it look like they’re offering up some compromise while not actually revealing any information of substance. Indeed, the judge has said DOJ need not reveal witnesses, investigative methods, or other sensitive grand jury material.
It’s not easy staying quiet. It goes against everything prosecutors do, normally. In a trial, if somebody offers up misinformation, we jump to our feet to disprove it. If we get called out by defense counsel or the judge, we go to the podium and defend ourselves. Prosecutors are generally not passive folk.
But when it comes to the media, prosecutors often just have to take their lumps. It’s not easy, but it’s part of the job. Garland has shown commendable restraint and leadership here. By staying quiet and fighting to preserve the confidentiality of the affidavit, he’s doing the difficult thing – and the right thing.