Judge weighs unsealing redacted affidavit to show justification for granting search warrant
By Elijah McKee and Miriam Raftery
August 18, 2022 (Washington D.C.) – Agents from the Federal Bureau of Investigation (FBI) removed over 20 containers including 11 sets of classified documents during a search of former President Donald Trump’s Mar-a-Lago residence in Florida on August 8. Trump’s removal of documents from the White House and his handling of top secret information has potentially serious national security implications, as well as potential criminal liability, though thus far Trump has not been charged with any crime.
A property receipt made public this week reveals that the documents found by the FBI include four sets marked “top secret,” three sets of “secret” documents, three “confidential” sets, and one set of “top secret and sensitive compartmented information (TS/SCI). The latter is a category that even some people with top secret clearance cannot access, such as nuclear secrets and details on U.S. intelligence gathering operations overseas.
“People who work in the national security sector at any level know that they should not keep documents labeled TS/SCI,” said Mark Zaid, an attorney specializing in national security, National Public Radio (NPR) reports.
The search was conducted lawfully after the FBI obtained a search warrant, which authorized confiscation of “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. 793, 2071, or 1519.”
18 U.S.C. § 793 is the 1917 Espionage Act. Intended to combat spying, it restricts possession of national defense information, regardless of classified status, and can be punished by up to 10 years in prison. The has been used in recent years against leakers of military and national security secrets, including Edward Snowden, former military intelligence analyst Chelsea Manning and WikiLeaks founder Julian Assange.
Laws 2071 and 1519 further protect official U.S. documents from concealment, tampering, and destruction. 2071 can result in three years in prison, and 1519 in 20 years. Neither one stipulates that such material must be classified.
There is also a law that prohibits removal of classified documents to an unauthorized location. In fact, Trump bolstered the punishment of this law while in office from one to five years. While this law was not cited in the warrant, potential charges under this law could also be possible.
Presidents and others are prohibited from taking home classified materials, and when presidents leave office, they are required to return all government property.
The federal government had already made numerous efforts to recover the classified documents, but Trump failed to comply. The National Archives and Records Administration is responsible for ensuring proper transfer of all governmental property whenever a president leaves office. The Archives asked for the return of documents improperly removed form the White House and Trump’s attorney reported that all items had been returned. With items still missing, the Archives asked the U.S. Department of Justice to investigate and the DOJ obtained a search warrant.
The warrant and property receipt have been made public, a rare occurrence in an ongoing investigation. Trump disclosed the search himself and did not object to the unsealing of warrant materials.
Today, in the latest churn of the wake created by the search, the judge who signed the original search warrant ordered the DOJ to prepare a redacted version of the lengthy affidavit that explains the justification for the search.
Judge Bruce E. Reinhart, the Florida judge presiding over the matter, will consider whether to unseal the redacted version and make it publicly available in response to requests from news organizations. The DOJ has objected to its release, since it could contain national security details, names of witnesses or whistleblowers, targets of a criminal probe, and other sensitive information. It could also have a chilling effect on other witnesses considering coming forward. Trump's lawyer was present, but did not seek to block release of the affidavit's contents. The DOJ also revealed that the search found evidence of obstructon at Mar-a-Lago and that unsealing the affidavit could lead to more obstruction.
The FBI has provided only general descriptions of the classified levels of most documents, due to their sensitive and secretive nature. However some details were released; the documents included a presidential grant of clemency for Trump ally Roger Stone, and unspecified information about the president of France.
The Washington Post has cited multiple anonymous sources who reportedly said that classified documents related to nuclear weapons were among the items sought by the FBI. This has not been confirmed, though release of a redacted affidavit could clarify this matter. Nor do we know whether or not the FBI found any nuclear-related documents.
Trump claimed his social media platform Truth Social, “They didn’t need to seize anything. They could have had it anytime they wanted without playing politics and breaking into Mar a Lago.”
The FBI did not break in; the agency had a warrant lawfully obtained from a court. Trump had failed to turn over the classified materials despite multiple requests including the issuing of a subpoena for him to do so.
Trump has alternately claimed that the FBI “planted” documents and contradictorily, that he had a blanket order in the White House to declassify any documents that he took home while president.
CNN however, contacted 18 former top Trump administration officials who all confirmed that no such order existed. Collectively those officials spanned the entire tenure of Trump’s presidency.
“Nothing approaching an order that foolish was ever given,” John Kelly, Trump’s chief of staff from 2017-19 told CNN. He added that anyone at the White House would not have allowed such an order “without dying in the ditch trying to stop it.”
Another senior White House official told CNN Trump’s claim was “total nonsense,” adding, “If that’s true, where is the order with his signature on it?”
David Laudman, former chief of the Justice Department’s counterintelligence division, explained that declassification must include reviews by agencies such as the CIA, NSA, Department of Energy, State Department and Defense Department.. There is “no evidence” that any officials at those agencies were notified of a declassification proposal by Trump. “It can’t be just in his head,” Laudman told CNN.
Attorney General Merrick Garland discussed the warrant and search in a speech on August 11. “The department does not take such a decision lightly,” he stated. “Where possible, it is standard practice to seek less intrusive means as an alternative to a search, and to narrowly scope any search that is undertaken.”
Garland made clear that there was a reason for the search, and that the federal agents involved acted properly under probable cause.
He also condemned the backlash the FBI has received including an attempted attack on an FBI building in Cincinnati in which the attacker was killed and a threat to release a dirty (nuclear) bomb in front of the FBI’s Washington D.C. headquarters, NPR reported.
Hateful rhetoric has been spinning off Trump’s social media platform; Trump and some GOP supporters have been vocal in casting the search as “prosecutorial misconduct” and a political maneuver given that Trump has voiced his ambitions to run for the presidency again in 2024.
The investigation into the classified documents at Mar-a-Lago is just one of several state and federal investigations the President is facing, including a criminal inquiry in Georgia over Trump pressuring election officials to alter election results and a civil probe in New York into whether Trump and his family’s real estate business fraudulently inflated values of his hotels, golf courses and other properties to obtain favorable loans.
Today, Allen Weisselberg, Chief Financial Officer for Trump’s family business, pleaded guilty in a New York court to conspiring with Trump’s company to commit 15 felony crimes, Associated Press reports. Weisselberg struck a deal with prosecutors that could make him a star witness against the company at a trial this fall. Trump has called the case a political “witch hunt.”