Opinion | Trump’s risk of indictment for his document snatch just skyrocketed

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When U.S. Magistrate Judge Bruce Reinhart initially indicated he was disposed to unsealing the affidavit accompanying the search warrant executed at former president Donald Trump’s Mar-a-Lago home, former prosecutors and legal experts were surprised, to put it mildly. Sign up for a weekly roundup of thought-provoking ideas and debates ArrowRight Now it appears we are unlikely to see much if anything from the affidavit — and for good reason. On Monday, Reinhart issued a ruling noting that “one of the statutes for which I found probable cause … prohibits obstructing an investigation. Also, as some of the media Intervenors have reported, there have been increased threats against FBI personnel since the search.”

He therefore found that “given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated.” In other words, the MAGA campaign of incitement against law enforcement should weigh heavily against disclosure.

Reinhart continued, “The Affidavit discloses the sources and methods used by the Government in its ongoing investigation. I agree with the Government that the Affidavit ‘contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal.’ ”

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Reinhart therefore concluded: “Government has a compelling reason not to publicize that information at this time.” Reinhart agreed to consider whether a redacted affidavit might be released, but his opinion strongly suggests that nothing significant would be revealed.

While Trump has filed a preposterous lawsuit seeking a freeze on the examination of the recovered documents, he is unlikely to shift attention from this blockbuster revelation from the New York Times:

In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, [multiple people briefed on the matter] said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.

The sheer number of documents previously recovered and their sources (from the CIA, FBI and National Security Agency) raise the stakes considerably for Trump, undercutting his followers’ frivolous excuses and ludicrous accusations of an FBI plot to persecute him.

Even more incriminating, the Times reports, “Mr. Trump went through the boxes himself in late 2021,” meaning he was clearly aware of the contents and could view the classification markings. If the FBI and Justice Department are looking for evidence of Trump’s direct knowledge of the materials and willful refusal to return all of them, this would fit the bill.

If, contrary to what Trump’s counsel said, the government did not previously get back all sensitive materials, the only logical conclusion would be that Trump refused to part with documents he falsely told aides were “mine." This might be the rare case when Trump lacks even a hint of plausible deniability (e.g., the ability to shift blame to his attorney).

If the facts are as damning as they appear, Trump’s risk of indictment is quite high. After the evidence is gathered, Attorney General Merrick Garland will need to decide whether to pursue an indictment from the grand jury. With a discrete set of facts that a jury can easily comprehend, powerful evidence of Trump’s willfulness and the clear interest in protecting the nation’s secrets, Garland will have every incentive to proceed — and surely not wait until the exponentially more complicated Jan. 6 investigation concludes.