3 big things we learned from the Mar-a-Lago affidavit
By Greg Sargent
Columnist|Following
August 26, 2022 at 3:56 p.m. EDT
In the Mar-a-Lago saga, Donald Trump has offered several big defenses. First, the former president has reportedly insisted to aides that he primarily took from the White House documents that were “mine.” Second, he has suggested he always intended to do the right thing and turn over government documents in his possession. Third, he has said in many ways that the FBI’s Aug. 8 search of his Florida estate amounted to illegitimate jackbooted tyranny.
Now
that the Justice Department has released a
redacted version of the affidavit the FBI filed before getting
a warrant to search Mar-a-Lago, those arguments look even shakier.
The affidavit was released on Friday after federal Magistrate Judge Bruce E. Reinhart ordered the Justice Department to produce a redacted version, and then approved those redactions as reasonable to protect the investigation and the identities of witnesses. Here are three things the affidavit tells us:
Trump improperly hoarded a large amount of documents, including ones potentially identifying human intelligence sources
The affidavit describes in detail what the FBI found when it reviewed 15 boxes of documents that Trump provided to the National Archives in January, after archives officials had sounded the alarm about missing materials. (The Archives subsequently referred the matter to the Justice Department.
Those included 184 documents that were marked as classified, including some as highly classified. The affidavit suggests these contained classified National Defense Information, or potentially very sensitive top-secret information relevant to national security. Some appeared to bear Trump’s “handwritten notes.”
The affidavit also says markings on the documents included “HCS,” or human intelligence sources. Experts tell me it’s not clear whether this refers to information about people who are intelligence sources or information provided by such sources. Either way, they said, failure to secure such documents could compromise the identities of people providing the United States with important information from sensitive positions.
This badly undermines the notion that Trump merely kept a bunch of documents for sentimental reasons, such as his letter from the North Korean leader, because they were “mine.
Columbia Law School professor Daniel Richman says the government typically treats documents about confidential national security sources as “among its most valuable and protected secrets.”
“Because they involve references to confidential sources, particularly in the national security area, they are not the type of things anyone can maintain as souvenirs of service,” Richman told me.
Remember,
it’s been reported that
Trump’s own aides tried to get this information handed over to the National
Archives but that Trump resisted. We now have a clearer picture of what he did
not want to give back.
This could get much bigger
At one point, the affidavit requests that a judge keep the document sealed because it could compromise the ongoing investigation and because “the FBI has not yet identified all potential criminal confederates.”
Obviously,
the document has been unsealed, with redactions. But that passage strongly
suggests that the investigation could broaden out to more criminal suspects.
National security lawyer Bradley Moss says this raises questions about who the FBI’s true target is right now. “Is it just Donald Trump?” Moss asked rhetorically. “Or some of his staff?”
We don’t know whether Trump or anyone around him will be charged with any crimes. But we do know that in approving this warrant, a federal judge concluded that evidence presented amounted to “probable cause” to conclude three statutes may have been violated.
Those statutes are the Espionage Act, a law against destroying or concealing documents with intent to obstruct an investigation or administration of other U.S. government matters, and a third involving mistreatment of government documents.
We now know the pool of potential suspects for these crimes could grow. As Moss told me: “The full scope of what this could result in is not yet defined.”
Trump’s conspiracy-theorizing is baloney
Trump is already seizing on the redactions to imply that more illegitimate law enforcement targeting of him is being covered up. He raged on Truth Social: “Affidavit heavily redacted!!!”
But what was disclosed in the affidavit has already confirmed that Trump had enormous piles of highly sensitive documents in his possession long after the National Archives wanted them back.
The affidavit also reveals that as late as June 8, the Justice Department sent a letter to Trump’s counsel suggesting that classified documents were still at Mar-a-Lago and still not being secured. The fact that the subsequent search found a large number of highly sensitive documents confirms that the department was right to suspect that.
“Over and over, the concerns about Trump’s conduct have been substantiated,” Moss told me.
And remember, a judge read these redactions and agreed that they were essential to preserve the integrity of the investigation.
“We
don’t know what’s under the redactions,” Stephen Vladeck, a law professor at
the University of Texas at Austin, told me. “But the judge thought they were
appropriate.”
How
the redacted FBI affidavit reveals depth of Trump’s legal peril
Columnist|Following
August 26, 2022 at 3:12 p.m. EDT
The redacted FBI affidavit released on Friday regarding the Aug. 8 search of the defeated former president’s Florida estate reveals many things about Donald Trump’s legal peril. It confirmed, for example, that the government is “conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.”
To state it more plainly: The defeated former president is being investigated for potential violation of several statutes pertaining to his illegal retention and storage of official documents containing sensitive secrets.
Brookings Institution scholar Norman Ornstein points out that we quickly learned from the redacted affidavit that there was no lock on Trump’s storage area. Beyond that, Ornstein says, “There is no revelation here beyond what we knew — which is just devastating to Trump.” The former president had “documents, including the most sensitive national security secrets, handled in a slapdash fashion, kept in multiple unsecured locations, intermixed with photos and family stuff.” Ornstein observes the plethora of “lies about what had and had not been returned [and] laughable assertions about Trump’s ability to declassify unilaterally.”
He concludes, “It reinforces how dangerous Trump is to the nation, and that is without any information yet about what malign reasons he had for grabbing these documents.”
Here are five
takeaways from the redacted affidavit:
There were a LOT of
documents
Of the 15 boxes Trump staffers returned to government possession in January, 14 contained super-secret information. “A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.” The preliminary review, conducted in May, found additional markings such as “HCS, FISA, ORCON, NOFORN, and SI.” These notations relate to national security secrets — one, HCS, indicates a category of highly classified government information; another refers to the Foreign Intelligence Surveillance Court — including human and signals intelligence
Trump had no right to retain these documents, the affidavit asserts, because “Classified information of any designation may be shared only with persons determined by an appropriate United States Government official to be eligible for access, and who possess a ‘need to know.’ ” These were government documents, not Trump’s personal papers
In citing 18 USC 793(e),
the government asserts that Trump had no right to refuse to return any document
“relating to the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the advantage of
any foreign nation.” He was no longer authorized to receive or retain such
documents. Hence, his legal liability is acute.
The claim of
declassification is evidence against Trump
It is telling that the government wants to highlight the argument from Trump’s team, raised in particular by Kash Patel, that Trump had a standing order to declassify the materials. (“FPOTUS COUNSEL 1 asked DOJ to consider a few ‘principles,’ which include FPOTUS COUNSEL 1′s claim that a President has absolute authority to declassify documents.” This is nonsense both factually and legally. It is also irrelevant to the retention of any government documents. There are no such principles that would help Trump here.
In a damning
footnote, the government points out that “18 U.S.C. § 793(e) does not use the
term ‘classified information,’ but rather criminalizes the unlawful retention
of ‘information relating to the national defense.’ ” In other words, the notion
that Trump could declassify documents at will is a fantasy. Classification is
beside the point.
We don’t know how the
government knew Trump still had more documents
This portion of the
affidavit is redacted, a necessary (and expected) measure to protect the
investigation and identity of witnesses. If the Trump brain trust thought they
were going to get the name of a “mole,” they really are living in fantasy land.
Trump had no right to
keep top-secret documents in an unsecured location
Quoting from
a June 8 letter the Justice Department sent to Trump’s lawyer, the affidavit
states, “As I previously indicated to you, Mar-a-Lago does not include a secure
location authorized for the storage of classified information. As such, it
appears that since the time classified documents [redacted] were removed from
the secure facilities at the White House and moved to Mar-a-Lago on or around
January 20, 2021, they have not been handled in an appropriate manner or stored
in an appropriate location.” That’s damning evidence of Trump’s violations of
statutes. (The affidavit notes: “Pursuant to Executive Order 13526, classified
information contained on automated information systems, including networks and
telecommunications systems, that collect, create, communicate, compute,
disseminate, process, or store classified information must be maintained in a
manner that: (1) prevents access by unauthorized persons; and (2) ensures the
integrity of the information.”)
We don’t know what
actions might have violated the obstruction statute (Section 1519) and the
mutilation statute (Section 2071)
The latter subjects to criminal punishment “Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing ...”). We know from news reports that certain documents were torn. But we do not know whether Trump attempted to destroy or alter other documents. (His handwriting was found on some.) The New York Times previously reported that subpoenaed surveillance “footage showed that, after one instance in which Justice Department officials were in contact with Mr. Trump’s team, boxes were moved in and out of the room.”
In sum, Trump is in heap of trouble. “The chilling reality is setting in,” constitutional scholar Laurence Tribe tells me. "In seeking this search warrant, the government had obviously exhausted every less intrusive way of protecting national defense information and other extremely sensitive top-secret material from those who illegally removed it to Mar-a-Lago, lied to government agencies about its being there, and kept it there for reasons that cannot have been entirely innocent and might have been unimaginably dangerous to our nation.”
Tribe adds: “Mr.
Trump must regret having bragged that this search was baseless rather than
coming up with some less easily refuted account of what he had been up to,
because no rational person, after reading the affidavit even with its
redactions, could doubt that there was more than just probable cause to believe
that federal crimes of the most serious kind ... had been committed and, in
some instances, were still being committed at the Mar-a-Lago premises.” In
other words: The government caught Trump with top-secret documents and appears
to have found that he hadn’t turned over all of them as his lawyer represented.
Trump’s apologists might want to disentangle themselves from him before they
thoroughly embarrass themselves.
