Redacted Affidavit of Mar-a-Lago Search Warrant Highlights FBI Concerns
Because the public version of Mar-a-Lago’s search warrant affidavit is heavily redacted, it does not resolve lingering questions about the FBI’s justification for searching former President Donald Trump’s residence at his compound. from Palm Beach. But the document sheds light on the circumstances that led to the August 8 search, in which the FBI seized 11 sets of documents marked as classified, as well as unclassified presidential files that belonged to the National Archives. The affidavit – which was unsealed by US Magistrate Judge Bruce Reinhart, who approved the search warrant – also clarifies Trump’s defense against possible criminal charges stemming from his retention of the documents.
According to the affidavit, which the Department of Justice released today, the National Archives and Records Administration (NARA) first requested the return of the missing presidential records on May 6, 2021, three and a half months after the departure. of Trump. He “continued to make requests until around the end of December 2021”, when “NARA was informed that twelve boxes had been found and were ready for collection”. Trump representatives finally handed over 15 boxes in January, a year after President Joe Biden was inaugurated.
On February 9, after NARA discovered that the boxes contained classified documents, it referred the case to the Department of Justice. NARA reported that the boxes contained “newspapers, magazines, printed news articles, photos, miscellaneous printouts, notes, presidential correspondence, personal and post-presidential records, and ‘numerous classified documents.’ “. have been downgraded, mixed with other documents and otherwise inappropriately [sic] identified.”
From May 16 to May 18, “FBI agents conducted a preliminary examination” of the 15 boxes. They found “184 unique documents with classification marks, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET and 25 documents marked as TOP SECRET”.
Some of the documents bore markings requiring special handling: HCS (HUMINT Control System), FISA (Foreign Intelligence Surveillance Act), ORCON (Originator Control), NOFORN (Not Releasable to Foreign Nationals) and SI (Special Intelligence). The affidavit notes that HCS and SI fall under “sensitive compartmented information” (SCI), which refers to “classified information concerning or derived from intelligence sources, methods or analytical processes” that “must be handled in part of formal access control systems.”
The affidavit includes a May 25 letter from Trump attorney Evan Corcoran to Jay Bratt, head of the counterintelligence and export controls section of the Justice Department’s National Security Division. Corcoran said documents “allegedly marked as classified” were “once at the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers.” He described Trump as fully cooperative with NARA’s demands. “Communications regarding the transfer of the boxes to NARA have been friendly, open and direct,” he wrote, adding that Trump “readily and voluntarily agreed” to waive the recordings.
Corcoran urged Bratt to keep “a few fundamentals” in mind. First, “a president has absolute power to declassify documents.” Second, “presidential actions involving classified documents are not subject to criminal sanctions.”
Under 18 USC 1924, Corcoran noted, it is a felony, punishable by up to five years in prison, for “an officer, employee, contractor, or consultant of the United States” to knowingly delete documents classified “without authorization and with the intention of retaining such documents or materials in an unauthorized location.” This provision, he said, “Not Applicable to the President”, who is not considered “an officer, employee, contractor or consultant of the United States”. Corcoran also warned that “any attempt to impose criminal liability on a president or former president involving his or her actions at the documents marked classified would involve serious constitutional separation of powers issues.”
Corcoran did not address 18 USC 793(e), one of the statutes the FBI would later cite in its search warrant affidavit. As relevant here, this provision applies to anyone who has “unauthorized possession” of “national defense information” that he “has reason to believe could be used to the detriment of the United States.” United States or for the benefit of a foreign nation” and who “deliberately retains” such information and “fails to deliver it to the officer or employee of the United States entitled to receive it”.
The definition of this offense, which is a crime punishable by up to 10 years in prison, does not depend on the work of the accused. The law also does not mention classification, although defense information of the type it describes would presumably be classified.
Nor did Corcoran address the other two laws cited by Mar-a-Lago’s search warrant. 18 USC 2071 makes it a felony, punishable by up to three years in prison, to conceal, remove, or destroy a US government document. 18 USC 1519 makes it a felony, punishable by up to 20 years in prison, to conceal “any record, document, or tangible object” with intent to “obstruct, obstruct, or influence “a federal investigation.
After noting Corcoran’s letter, the FBI affidavit mentions a May 5 Breitbart News story in which Kash Patel, a former National Security Council staffer who represented Trump in his negotiations with NARA, claimed that Trump “declassified the documents at issue.” This paragraph is followed by fully redacted two-and-a-half pages, which may include the FBI’s rebuttal of the argument that Trump cannot be criminally responsible for retaining sensitive documents because they were no longer classified.
Trump claims he had “a standing order” as president that automatically declassified any material he managed to remove from the Oval Office. It’s unclear whether Trump ever actually issued such an order, which was news for John Bolton, who served as his national security adviser for 17 months in 2018 and 2019, and Glenn Gerstell, who served as general counsel. of the National Security Agency. from 2015 to 2020.
Even if Trump were to declassify documents he kept while he still had the authority to do so, it would not be relevant under 18 USC 2071 or 18 USC 1519. Under the definition of “national defense information” , declassification might not be relevant. neither be relevant under 18 USC 793. If we were allowed to read it, the blacked-out section of the affidavit following the reference to Patel might clarify the FBI’s position on this issue.
On June 8, according to the affidavit, the Justice Department sent Trump’s lawyers a letter that “reiterated” the government’s concerns about the security of documents stored at Mar-a-Lago. “As I have indicated to you previously, Mar-a-Lago does not include an authorized secure location for the storage of classified information,” the letter states. “It appears that from the time the classified documents…were removed from the secure White House facilities and transferred to Mar-a-Lago on or about January 20, 2021, they have not been handled appropriately or stored in an appropriate place. Accordingly, we request that the room in Mar-a-Lago where the documents had been stored be secured and that all boxes that have been moved from the White House to Mar-a-Lago (as well as all other items in this room) be kept in this room in their current state until further notice.”
The New York Times reports that Trump staff responded to Justice Department concerns by replacing the lock on the storage room. But after obtaining surveillance video from Mar-a-Lago, the FBI was reportedly alarmed by footage of people removing equipment from that room. And contrary to the Department of Justice’s request that all classified documents be kept there, the Time said, FBI research found some in Trump’s desk closet.
After the affidavit quotes the Justice Department’s June 8 letter, the narrative is again interrupted by several pages of complete deletions. But around the same time, according to the Time, “Mr. Trump’s aides turned over a few dozen additional sensitive documents” in response to a federal subpoena. The FBI feared there were none left, and it evidently confirmed that suspicion by interviewing people who had seen classified documents at Mar-a-Lago after the June visit.
Verification of this point would have been crucial in establishing probable cause to believe that a search would find objects “possessed in violation” of the three laws cited by the FBI. But the section of the affidavit describing the evidence supporting that conclusion is blanked out, likely because it would reveal FBI sources and compromise its ongoing investigation. Based on this redacted information, the FBI requested and was granted permission to search not only the storage room, but also “Trump’s residential suite, Pine Hall, ‘Office 45,’ and other spaces” at Mar-a-Lago which “are not currently authorized locations for the storage of classified information or NDI [national defense information].”
Due to the numerous redactions, it remains unclear why the FBI decided to take this unprecedented and politically explosive action. The redacted passages could include additional evidence of Trump’s recalcitrance or his sloppy handling of the documents, making it easier to understand why the FBI chose a more aggressive and visible approach than, say, trying again with another quote. to appear.
The missing information could also support the suspicion that Trump deliberately kept government documents and deliberately obstructed the FBI investigation. In Corcoran’s account, Trump’s movers inadvertently brought the documents to Mar-a-Lago, and Trump quickly took action to remedy the situation when it was brought to his attention. This gloss seems pretty implausible in light of Trump’s protracted negotiations with NARA and the Justice Department. But even if Trump wasn’t as observant and cooperative as Corcoran suggests, that doesn’t necessarily mean he had criminal intent.
Finally, the unredacted affidavit might give us a clue as to the nature of the information the FBI was trying to protect. We know that he found “dozens of additional documents” (according to the Time) with markings ranging from “confidential” to “top secret/SCI” (according to research inventory). Trump insists that, despite those labels, he had declassified all of the material seized by the FBI, implying that he believed it posed no threat to national security. While it’s certainly not safe to trust Trump’s judgment on this issue (or pretty much anything else), the FBI hasn’t publicly explained why it thinks the danger is serious enough. and imminent to justify research that was to be extremely controversial.