By Tierney Sneed, CNN
An extraordinary dispute will play out in a federal courthouse in South Florida on Thursday afternoon over what transparency the American public is owed into the Justice Department investigation of the handling of classified documents from former President Donald Trump’s White House.
US Magistrate Judge Bruce Reinhart is holding a hearing at 1 p.m. ET on requests by various media organizations and others that he unseal materials secretly filed by the DOJ in his court when the department sought approval for a warrant to search Trump’s residence at Mar-a-Lago.
Some of the documents have already been unsealed, with the Justice Department seeking to unseal them last week and Trump not opposing their release. But some news outlets — including CNN — are pushing for more of the sealed court filings related to the search to be made public. Of particular interest is the affidavit that federal investigators would have had to file with the court under seal laying out why they thought there was probable cause that a crime had been committed and why they believed that evidence of the crime had existed at Mar-a-Lago in recent days.
The Justice Department is opposing the release of the additional search warrant materials, telling the court in a filing this week that doing so would “cause significant and irreparable damage to this ongoing criminal investigation.”
Here’s what to watch for as news comes out of Thursday’s hearing, which is being held in person and will not be live streamed:
How does the DOJ describe the risks disclosing the documents poses to its investigation?
The Justice Department said in its filing that its investigation would be “irreparably” harmed if the additional materials are unsealed.
“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,” the Justice Department filing said. It pointed specifically to the threat that disclosure of information about FBI witnesses would “chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.”
The Justice Department may seek to emphasize those points in a way that gives more of a picture of where the probe stands.
While it was known before the search that the Justice Department was investigating the handling of classified documents from Trump’s White House, the news of the search has led to confirmation that the probe has taken some other significant steps, including with FBI interviews of prominent ex-Trump officials.
Among those who have spoken to the FBI for the investigation are Trump’s White House counsel Pat Cipollone and his former deputy Patrick Philbin, as CNN and The New York Times reported on Tuesday. Other Trump aides who are known to have been interviewed by investigators include Molly Michael, then an executive assistant to Trump; Beau Harrison, an operations coordinator for Trump who previously worked in the White House; former White House staff secretary Derek Lyons; and Walt Nauta, a former White House valet.
How does DOJ describe the national security risks of unsealing the documents?
As the Justice Department put forward in its filing, this investigation is not just any criminal probe but one that “that implicates national security.”
“The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improper,” the Justice Department said.
Thursday’s hearing could give some hints about why the department sought to execute the search when it did.
CNN and The New York Times have reported how a series of investigative steps and efforts to secure material marked as classified played out over several months before the search. The National Archives had first requested and got back into its possession 15 boxes in January — with some materials labeled with a classification level — prompting the agency to call for a criminal investigation. The Justice Department then looked into the matter, with major investigative steps taken, especially in June. Investigators visited the beach club, saw where records were being kept, asked the Trump team to secure them and issued a subpoena to have them returned to federal hands. The Trump Organization also provided investigators access to surveillance videos in response to another subpoena. That led investigators to spot something on the video around a storage room that concerned them, the Times has reported.
Does the Trump team seek to make his views known to the judge?
The former President is not officially a party in the dispute. Instead, the Justice Department is facing off with the news outlets and other organizations that are seeking the release of the documents. When DOJ proposed unsealing the initial round of warrant materials last week — specifically the search warrant itself and the property receipt from the search — the judge instructed the department to confer with Trump and to inform the court whether the former President opposed releasing those materials. He did not and they were released on Friday.
The court has not since sought more information about how Trump views releasing more warrant materials, but Trump’s opinions about unsealing the documents have been presented to the court by other means. One of the groups that asked the court to unseal the documents is Judicial Watch, a conservative group that regularly advocates for transparency around government activity and documents. The organization has repeatedly flagged in court public statements Trump has made in favor of releasing the documents. Judicial Watch has asked the court to allow it to present brief arguments at Thursday’s hearing, and there is a 9 a.m. ET Thursday deadline for other parties to file in court to respond to the DOJ’s opposition to unsealing the documents.
Trump on social media has called for the “immediate release of the completely Unredacted Affidavit,” but whether his team seeks to weigh in before the judge remains to be seen.
Will the judge give any indication for how he will rule?
In the dispute, Reinhart is being asked to weigh the Justice Department’s reasons for keeping the documents secret against the public interest in transparency around a highly newsworthy investigation. The Justice Department — by previously seeking to unseal the initial round of warrant materials — has already conceded that there is a significant public interest that warrants giving some transparency around the FBI’s search. But the department has drawn the line on the release of the additional warrant documents.
The question is whether that is where Reinhart draws the line as well.
He could say what he is going to do from the bench during Thursday’s hearing. Or he could keep his cards close to his chest and wait to rule with a written order at a later time. Or Thursday’s hearing could not fully get into the substance of both sides’ arguments, and stay on certain procedural issues the judge wants to settle first.
But it would be very surprising if the judge didn’t agree with the Justice Department. Though this is an unusual situation, the secrecy around an ongoing investigation is a norm in the judicial system across the country. And the judge has already seen this search warrant affidavit and can assess for himself already the gravity of the details within it.
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CNN’s Katelyn Polantz contributed to this story.