An attorney for former president Donald Trump was harshly criticized by other lawyers for comments about the criminal investigation into documents recently seized by FBI agents at Mar-a-Lago during an unprecedented search-and-seizure executed at the home of a former U.S. head of state, the first such instance in U.S. history.
“What I would advise him is to ask them to uncover everything so that we can see what is going on,” Alina Habba said during an appearance on Newsmax’s National Report. “I understand the witness protection issue. But at the same time, these witnesses are truly not going to be concealed for very long. That’s just not the nature of the DOJ and the FBI. And, unfortunately, our country. There’s always leaks.”
“I’ve dealt with that even with local law enforcement; there’s leaks when there shouldn’t be,” she continued. “So, I think it’s in the best interest so that the country can get comfortable. To see what the basis was, especially from somebody who was cooperating, who was working with them with his attorneys. This is not a good reason to be blindsided.”
Habba’s comments set off an online firestorm after being shared widely via The Recount, a digital video journalism organization that often shares clips from cable TV news programming.
Here’s how the commentary was characterized:
Trump’s attorney, Alina Habba, says Trump wants the Department of Justice to release the names of the witnesses who helped secure the search warrant for Mar-a-Lago. pic.twitter.com/n3MJsD1tBI
— The Recount (@therecount) August 16, 2022
“Alina Habba is spewing pure nonsense,” former assistant U.S. Attorney Mitchell Epner tweeted. “Confidential witnesses are NEVER identified at the pre-indictment stage. Grand jury secrecy really does protect the ‘CW’ or ‘CC’. In 25 years of working as in criminal litigation (3 as an AUSA, 22 on the defense side), I know of only one leak.”
Former appellate defense lawyer Teri Kanefield was also skeptical.
“Of course, this is what Trump wants (and it’s probably driving him crazy that people are talking to the DOJ about him and he doesn’t know who they are),” she tweeted. “The reasons Trump wants to know are exactly the reasons he shouldn’t know.”
On Monday, the U.S. Department of Justice responded to transparency requests from a GOP Senate candidate in a motion arguing against releasing the probable cause affidavit undergirding the Trump warrant and raid on his storied Palm Beach estate.
“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 motion says. “In addition, information about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation.”
“Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations,” the government’s argument continued.
While being shared thousands of times, the Habba video was also quote-tweeted, or shared with comments, hundreds of times.
Many commenters, legal and lay alike, suggested the 45th president’s attorney was asking for the release of information that might eventually lead to witness intimidation in a climate ripe with threats and ratcheted-up rhetoric.
Criticism of Trump’s attorney’s Newsmax commentary was not simply limited to Twitter.
“Ms. Habba’s comments fly in the face of the very essence of the criminal process,” national security attorney Bradley P. Moss told Law&Crime in an email. “The names of cooperating witnesses are never officially revealed at this stage, especially because of the concern about retaliation and pressure from the targets of the investigation. If there ultimately is a criminal indictment, this kind of information is usually disclosed in pre-trial discovery, if not at trial itself, but the idea of disclosing it at this stage is outright lunacy.”
Atlanta-based attorney Page Pate told Law&Crime the circumstances and context matter in this case due to the underlying nature of the person at the center of things but that he still didn’t think it justified releasing the names of witnesses.
“Never had a leak like that happen in one of my cases,” Pate said in an email. “But then again, I’ve never handled a case involving a criminal investigation of a former president. Not sure if that makes a leak more or less likely. But even if there is a ‘leak,’ it won’t be a list of witnesses or anything that detailed. And it would be just rumor, so no corroboration. The remote possibility of a leak is no reason to identify government witnesses. If someone is ultimately indicted, then witnesses should be disclosed for due process reasons.”
Law&Crime reached out to Habba for comment on this story, but she declined to comment on the record.
[image via screengrab/Newsmax]
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