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Was it surprising that the judge favored unsealing portions of the affidavit?


Jessica Roth joins us next. She worked in the United States Attorney's Office for the Southern District of New York for seven years and is now a professor of law at the Cardozo Law School at Yeshiva University in New York.


JESSICA ROTH: Thank you.

INSKEEP: Were you surprised that the judge favors unsealing portions of this affidavit?

ROTH: I was surprised because it is so exceedingly rare that an affidavit in support of a search warrant would be released at this stage - before any charges have been filed, before we even know whether charges will be filed. On the other hand, if ever there were a circumstance in which a judge might release at least portions of an affidavit in support of a search warrant, this would be it because - has been remarked upon repeatedly - this is just such an unusual situation involving a former president of the United States who has publicly announced that the search already took place.

INSKEEP: But with that said, Carrie Johnson, who's very well-sourced and very knowledgeable, said a couple of things I want to follow up on. One, she said, it seems likely that once the Justice Department redacts whatever they feel they need to redact from this document, there would be, quote, "minimal new information of the sort the public would be interested in." Why would that be?

ROTH: Well, because the government is trying to protect some very important interests here. And the judge is cognizant of this. The judge is trying to balance some very important competing interests and walking a really fine line. On the one hand, you have the interest in transparency and promoting the public's understanding of events of heightened public interest. On the other hand, we have really important government interest in protecting the integrity of an ongoing investigation, protecting witnesses and protecting national security information. And the judge has indicated and ordered that the government propose redactions and also given it the space and invited submission of a legal memorandum justifying the redactions.

And so the government is going to presumably submit something in the form of a redacted affidavit explaining the rationale for all the redactions. And so that may wind up essentially being a redacted document where very little remains available for public disclosure. On the other hand, the judge who reviewed the search warrant affidavit and approved it clearly seems to think that there is some portion of it that can be released to the public. And what he said is whether it actually promotes public understanding all that much is really sort of beyond the scope of his consideration of whether or not to release it at all.

INSKEEP: Carrie also mentioned another thing that I don't want to let pass without discussing. Trump publicly called for the affidavit to be released when he's talking on social media. But Trump's lawyers, she notes, took no position in court. They're not making an effort in court to get this thing released. Is it possible the lawyers know that this affidavit could be very, very damaging to their client?

ROTH: I think it is very telling that Trump's lawyers are not taking a position in court when they clearly could do so. It is hard to imagine that there's anything in this affidavit that is beneficial for Trump to be released. So I think that they may be trying to benefit strategically from sort of publicly calling for its release. On the other hand, not taking a position in court - but the fact that they are not taking a position in court, I think, increases the argument for releasing it because the president - former president - is not asserting, at least in court, any remaining privacy interest in the affidavit remaining under seal.

INSKEEP: Is the public interest in finding out about this criminal investigation that normally would be private - does - it illustrates our larger reality about law enforcement. We would like to think that law enforcement is purely driven by facts, that it has nothing to do with politics. But the reality is it's a democracy. And so everything is in some way political. We hire the president, who in turn hires the attorney general with the consent of the Senate. And they hire all these lawyers. And we, the people, have a role to play here. And that is why we, the people, would expect to know, to some extent, what's going on.

ROTH: Yes. There's a very important value in transparency into what the government is doing on our behalf, including what law enforcement is doing on our behalf. And the case law governing making documents in judicial proceedings available to the public recognizes that important interest in transparency, which is important not only for promoting public understanding, but maintaining the integrity of law enforcement operations. Here, however, we have to balance that very important interest against the interest that the government has articulated in protecting ongoing investigations.

INSKEEP: Does this have any...

ROTH: And also...

INSKEEP: Go on. Go on. Go on.

ROTH: Well, the government - is that, in fact, it - not only the interest in protecting an ongoing investigation, but the protection of witnesses, both in this investigation and in future investigations, who might be chilled to the extent that information that might identify the witnesses who cooperated here is disclosed, and then also the interest in this unique circumstance, given the nature of the investigation in protecting national security information.

INSKEEP: Jessica Roth, thanks for your insights - really appreciate it.

ROTH: My pleasure.

INSKEEP: She's a former federal prosecutor, now a professor of law at the Cardozo Law School at Yeshiva University. Transcript provided by NPR, Copyright NPR.