On August 8 the Department of Justice executed a Search Warrant and a Return of Service and Inventory at former President Donald Trump’s Mar-a-Lago residence in Florida. A link to review the search warrant is here:
The judge authorized federal agents to gather any documents with classification markings as well as information about how “national defense information or classified material” had been stored and handled. The judge also gave agents leeway to collect any other government records created between the day Trump took office on Jan. 20, 2017 and when he left four years later that might be evidence of violations of the Espionage Act or other document-related crimes under investigation.
Attachment B of the search warrant shows what was to be seized and says federal agents were to gather evidence that include physical documents with classification markings, and the containers or boxes those documents were located in, as well as other containers that were stored or found together with those documents. They also were to seize “information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material.” The document also called for seizure of any presidential or government records and any evidence of alteration or destruction of those records or other classified documents.
The warrant allows for the seizure of “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of” various aspects of the Espionage Act.
The search warrant says federal agents are investigating potential violations of three different federal laws. The three specific federal criminal laws are:
18 USC 793, which is part of the Espionage Act and makes it a crime to remove or misuse information related to national defense;
18 USC 2071, which makes it a crime to hide, damage, or destroy government records; and
18 USC 1519, which makes it a crime to falsify, destroy, or cover up records to obstruct or interfere with a federal investigation or “proper administration of any matter” under the jurisdiction of an agency.
All 3 potential offenses cited in the warrant are felony crimes. The obstruction charge carries a maximum sentence of up to 20 years in prison. The Espionage Act crime has a maximum sentence of 10 years in prison, and the catch-all offense for destroying government records carries up to three years behind bars.
“The records destruction statute also states that a person found guilty “shall forfeit his office and be disqualified from holding any office under the United States,” but legal scholars have largely agreed that it’s unlikely that punishment could apply to the presidency, since the Constitution directly spells out what qualifies, or disqualifies, a person for that office.”
A total of 27 boxes were seized. Included in the documents and items seized were 11 sets of documents labeled classified, confidential, secret and top secret. The list of boxes of information seized during the search includes documents that were the US government’s highest top-secret ratings.
“The FBI seized “TS/SCI documents,” which stands for top-secret and sensitive compartmented information, a government label for material gathered through sensitive intelligence sources or methods. The seized records marked “sensitive compartmented information” is a special category meant to protect the nation’s most important secrets that if revealed publicly could cause “exceptionally grave” damage to U.S. interests. In other words, documents were seized that potentially compromise the country’s national security. Federal prosecutors are indicating that they are exploring possible violations of the federal Espionage Act.”
The property receipt also shows the FBI collected other potential presidential records, including the order pardoning Trump ally Roger Stone, a“leatherbound box of documents,” and information about the “President of France.” A binder of photos, a handwritten note, “miscellaneous secret documents” and “miscellaneous confidential documents” were also seized in the search.
Trump’s attorney, Christina Bobb, who was present at Mar-a-Lago when the agents conducted the search, signed two property receipts. One receipt was two pages long and another that is a single page.
The links to quoted news source material are here:
ANALYSIS OF AFFIDAVIT FOR SEARCH WARRANT
The execution of the search warrant was immediately attacked by Trump and his Republican allies as a political move by President Joe Biden. Trump himself suggested the search warrant was politically motivated and went so far to advance the baseless conspiracy theory that the FBI agents might have planted evidence. The White House has said that Biden was not even told in advance about the search.
Multiple national news outlets as well as Trump and his Republican allies demanded that the Affidavit for Search Warrant be released in full with the Department of Justice opposing such release claiming release would jeopardize an ongoing investigation and compromise and endanger witnesses
On Friday, August 26, a redacted version of the affidavit that the Justice Department used to obtain a search warrant of Trump’s Mar-a-Lago was released. The affidavit was revealing and shed new light on the federal investigation into the handling of documents from his White House. The release of the redacted affidavit provides a timeline about how the investigation unfolded.
Given the controversy surrounding the search of a former Presidents home, an review of the affidavit language is in order. The Affidavit for Search Warrant is 38 pages long and is sworn to under oath by a sworn FBI agent. The first 6 introductory paragraphs provide a succinct rational for the warrant alleged by the FBI agent. Following are edited first paragraphs of the Affidavit:
“1. 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. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022, … .
The NARA Referral stated that on January 18, 2022, in accordance with the Presidential Records Act (PRA), NARA received from the office of former President DONALD J. TRUMP, hereinafter “FPOTUS,” via representatives, fifteen (15) boxes of records, hereinafter, the “FIFTEEN BOXES.”
The FIFTEEN BOXES, which had been transported from the FPOTUS property at 1100 S Ocean Blvd, Palm Beach, FL 33480, hereinafter, the “PREMISES,” a residence and club known as “Mar-a-Lago” … were reported by NARA to contain, among other things, highly classified documents intermingled with other records.
2. After an initial review of the NARA Referral, the Federal Bureau of Investigation (FBI) opened a criminal investigation to, among other things, determine how the documents with classification markings and records were removed from the White House … and came to be stored at the PREMISES [and to]
[A.] determine whether the storage location(s) at the PREMISES were authorized locations for the storage of classified information;
[B.] determine whether any additional classified documents or records may have been stored in an unauthorized location at the PREMISES or another unknown location, and whether they remain at any such location;
[C.] identify any person(s) who may have removed or retained classified information without authorization and/or in an unauthorized space.
3. The FBI’s investigation has established that documents bearing classification markings, which appear to contain National Defense Information (NDI), were among the materials contained in the FIFTEEN BOXES and were stored at the PREMISES in an unauthorized location.
Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES.
There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
- Based upon the … facts [enumerated herein] there is probable cause to believe that the locations to be searched at the PREMISES contain evidence, contraband, fruits of crime, or other items illegally possessed in violation 18 U.S.C. §§ 793(e), 1519, or 2071.”
Paragraphs 8 through 27 of the affidavit outlines specific statutory authority and the specific federal criminal laws and penalties dealing with the possession and handling of classified documents and presidential documents and penalties. The 4 federal laws cited with particularity are 18 U.S.C. § 1519, 18 U.S.C. § 2071, PRA, 44 U.S.C. § 2201 and 44 U.S.C. § 3301(a).
Under 18 U.S.C. § 1519: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Under 18 U.S.C. § 2071: (a) 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, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
Under the PRA, 44 U.S.C. § 2201: (2) The term “Presidential records” means documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but
(B) does not include any documentary materials that are (i) official records ofan agency (as defined in section 552(e) of title 5, United States Code; (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
Under 44 U.S.C. § 3301(a), government “records” are defined as: all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.
32 C.F .R. Parts 2001 and 2003 regulate the handling of classified information. Specifically, 32 C.F.R. § 2001.43, titled “Storage,” regulates the physical protection of classified information. This section prescribes that Secret and Top-Secret information “shall be stored in a [General Services Administration]-approved security container, a vault built to Federal Standard (FHD STD) 832, or an open storage area constructed in accordance with§ 2001.53.”
DEFINITIONS OF DOCUMENT CLASSIFICATIONS
The Affidavit for Search Warrant goes to great lengths to define the various levels of classified documents that are the subject of the search warrant. The definitions of classified documents enumerated in the affidavit includes the following:
“Confidential” [is where] unauthorized disclosure could reasonably result in damage to the national security, the information may be classified as and must be properly safeguarded.
“Secret” [ is where] … such unauthorized disclosure could reasonably result in serious damage to the national security, the information may be classified as and must be properly safeguarded.
“Top Secret” [is where] Where such unauthorized disclosure could reasonably result in exceptionally grave damage to the national security, the information may be classified as “Top Secret” and must be properly safeguarded.
“Sensitive Compartmented Information (SCI)” means classified information concerning or derived from intelligence sources, methods, or analytical processes, which is required to be handled within formal access control systems.
Special Intelligence, or “SI,” is an SCI control system designed to protect technical and intelligence information derived from the monitoring of foreign communications signals by other than the intended recipients. The SI control system protects SI-derived information and information relating to SI activities, capabilities, techniques, processes, and procedures
HUMINT Control System, or “HCS,” is an SCI control system designed to protect intelligence information derived from clandestine human sources, commonly referred to as “Human intelligence.” The HCS control system protects human intelligence-derived information and information relating to human intelligence activities, capabilities, techniques, processes, and procedures.
The Affidavit states:
“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.” Among other requirements, in order for a person to obtain a security clearance allowing that person access to classified United States Government information, that person is required to and must agree to properly protect classified information by not disclosing such information to persons not entitled to receive it, by not unlawfully removing classified information from authorized storage facilities, and by not storing classified information in unauthorized locations. If a person is not eligible to receive classified information, classified information may not be disclosed to that person. In order for a foreign government to receive access to classified information, the originating United States agency must determine that such release is appropriate.”
DOCUMENTS TURNED OVER IN MAY
It is paragraph 47 that the FBI agent outlines the classified documents that were contained in the 15 boxes turned over in May:“From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. 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 FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI.
HEAVILY REDACTED AFFIDAVIT
Pages 9 to 29 of the 36-page affidavit are 100% redacted or are partially redacted. Ostensibly, these paragraphs contain the detailed allegations of fact to establish probable cause of a crime, identifies confidential witnesses and evidence sought that provides a “road map” of the investigation.
Links to review the unedited entire search warrant is here:
On August 26, the national news outlet CNN published a news account entitled “Takeaways from the Mar-a-Lago search warrant affidavit” written by staff reporters Tierney Sneed and Marshall Cohen, with Jeremy Herb, Katelyn Polantz and Josh Campbell contributing to the report. Following is the edited CNN report giving a summation of the major take aways gleaned from the affidavit:
FBI SAID THERE WAS LIKELY “EVIDENCE OF OBSTRUCTION” AND CLASSIFIED DEFENSE DOCUMENTS
“The FBI told US Magistrate Judge Bruce Reinhart the search would likely find “evidence of obstruction” in addition to its explanation to the court that there was “probable cause to believe” that classified national security materials were improperly taken to “unauthorized” locations at Trump’s resort. [The affidavit states]:
“There is probable cause to believe that additional documents that contain classified (National Defense Information) or that are Presidential records subject to record retention requirements currently remain at (Mar-a-Lago). There is also probable cause to believe that evidence of obstruction will be found at (Mar-a-Lago.)”
FBI FOUND 184 CLASSIFIED DOCUMENTS FROM 15 BOXES EARLIER THIS YEAR
“When the FBI reviewed in May the 15 boxes the National Archives retrieved from the Florida resort in January, it found “184 unique documents bearing classification marking.” … Among the materials were “67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET,” according to the filing.
The agent who submitted the affidavit noted that there were markings on the documents with multiple classified compartmentalized controls, as he told the court that “[b]ased on my training and experience, I know that documents classified at these levels typically contain” national defense information.
NEW DETAILS ABOUT HOW THE DOJ GOT INVOLVED
“The FBI affidavit reveals new insights into how the investigation began. It started after a criminal referral from the National Archives, which was sent to the Justice Department on February 9.
The Archives told the Justice Department that the boxes recovered in January contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records.”
The Archives official said there was “significant concern” over the fact that “highly classified records were … intermixed with other records” and weren’t properly identified.
After receiving this information, the DOJ and FBI launched a criminal investigation into the matter, leading to the subpoena in June for classified material, and the search of Mar-a-Lago … .”
REDACTIONS KEEP OBSTRUCTION EVIDENCE SECRET
“One unredacted subhead in the affidavit cues up the probable cause the FBI had to believe that there were documents containing classified defense information and presidential records at Mar-a-Lago.
Most of the section … is redacted, and the unredacted subhead aligns with two of the criminal statutes the affidavit cited at the beginning.
But the third potential crime — obstruction — that was cited by the warrant materials does not have a corresponding unredacted subhead in the affidavit. The FBI would have had to provide the court its explanation of why it believed that there was likely evidence of that crime at Mar-a-Lago, so the absence of any unredacted details about that evidence signals that that part of department is particularly sensitive about that aspect of its investigation being made public.”
NEWS UPDATE: On September 1 a federal judge ordered the release of a detailed list of the property seized during the FBI’s search while reserving judgment on whether to appoint an outside party to review the documents. Federal prosecutors initially submitted a property receipt to the U.S. District Court for the Southern District of Florida though it was filed under seal. The Justice Department told the court in a separate filing it was prepared to release the receipt to the public given the “extraordinary circumstances” of the case and provide it “immediately” to Trump.
Justice Department records unsealed on Friday August 2, offered new details about the volume of documents former President Trump stored in his personal office at Mar-a-Lago, as well as other items seized during the search of his Florida home. The filing revealed Trump was storing at his home more than 100 classified documents the Department of Justice (DOJ) says it recovered from Mar-a-Lago.
FBI agents found 43 empty folders with classified banners in Trump’s personal office as well as another 28 empty folders that were labeled “return to staff secretary/military aide,” according to the inventory. The inventory details others that were found within Trumps office: 3 documents marked confidential, 17 documents marked secret and 7 documents marked top-secret. Their location in Trump’s office could be significant to the Justice Department’s investigation, particularly after it alleged earlier this week that items were “likely concealed and removed.”
SENSITIVITY OF DOCS TRUMP TOOK FROM WHITE HOUSE REVEALED
“The affidavit used a handful of acronyms when describing the sensitivity of the documents that were recovered from Mar-a-Lago earlier in the year. This “alphabet soup” is probably confusing to most Americans, but national security experts have said it reveals the horrifying scope of this security breach.
Some of the classified documents that Trump brought with him from the White House to Mar-a-Lago contained markings for “HCS, FISA, ORCON, NOFORN, and SI,” … .
“HCS” indicates that the material is about human sources, or spies, that often work with the CIA. “FISA” relates to court-ordered surveillance collecting foreign intelligence, including wiretaps. “ORCON” means the document is so sensitive that its originator must approve any request to share it. “NOFORN” means the material can’t be shared with any foreign entities, even allies, without permission. “SI,” short for Special Intelligence, relates to signals intercepts, which are typically handled by the National Security Agency.
These phrases confirm what many feared — that the documents that may have been illegally mishandled at Mar-a-Lago contained some of America’s most sensitive secrets.”
DOJ KEEPING DETAILS ABOUT PERSONNEL INVOLVED CLOSE TO THE CHEST
“The department said in its legal brief justifying the memos that that the FBI personnel who had already been identified as involved in the investigation had received “threats of violence from members of the public.”
The FBI told the judge that “[m]inor but important” redactions in the affidavit were needed to “protect the safety of law enforcement personnel.”
Even with the redactions, the affidavit revealed some information about the professional background of the FBI agent who submitted the affidavit. The affiant said that they were trained in “counterintelligence and espionage investigations” at the FBI Academy in Quantico, Virginia.
In the court proceedings around whether the affidavit should be released, the Justice Department has kept limited the number of its officials known to be involved. The legal filings in that dispute bear the signatures of just two DOJ attorneys: Juan Antonio Gonzalez, the US Attorney for the Southern District of Florida, and Jay Bratt, the chief of the Counterintelligence for the DOJ’s National Security Division.
Bratt argued for the DOJ at the court hearing last week on unsealing the document — a notable choice, given that there are numerous other lower-level DOJ attorneys who would have been equipped to argue the criminal procedure questions that were central to the dispute.”
TRUMP CLAIMS THAT HE COULD UNILATERALLY DECLASSIFY DOCUMENTS
“When seeking the warrant, the FBI made the judge aware that Trump’s team had claimed that Trump had “absolute authority to declassify documents.”
The affidavit cited, and included as an attachment, a letter Trump attorney Evan Corcoran sent the Justice Department in May — after the existence of the investigation surfaced publicly — asserting that Trump had such authority. As the affidavit noted, the letter instructed the DOJ to provide the letter to any court considering motions related to the investigation.
The affidavit also referenced a Breitbart article quoting Kash Patel, a former Trump national security aide who was named as one of Trump’s designees to handle issues with his presidential records in June, as stating that Trump had declassified the materials retrieved by the National Archives in January.
The rest of the section in the affidavit, however, is classified, so it’s not clear why federal investigators cited Patel’s comments.
Since the FBI’s search, Trump has pointed to a January 19, 2021, memo in which he declassified documents related to the FBI’s Russia investigation. There’s no evidence, however, that those materials were what the FBI was looking for when it searched Mar-a-Lago earlier this month.”
DOJ HOPED TO KEEP DOCUMENT SECRET
“It’s important to remember the process that led to … unsealing of the affidavit.
Shortly after the Mar-a-Lago search, news outlets, including CNN, urged the judge to unseal the entire court record, to provide unprecedented transparency into an unprecedented investigation.
The Justice Department argued in court … against releasing the affidavit, but its lawyers were unable to convince the court that the entire affidavit should be kept under seal. Instead, the prosecutors were told to prepare a version for the public with limited redactions which contained a surprisingly robust amount of information.
When DOJ was arguing that the entire affidavit should be kept under seal, the prosecutors claimed that once all the necessary redactions were made to the affidavit, it would be devoid of any meaning that would serve the public interest in transparency.
The link to the unedited CNN report is here:
COMMENTARY AND ANALYSIS
It remains unclear whether the Justice Department will move forward with any indictment of Trump for espionage or if the warrant was simply a means to retrieve records Trump took from the White House that were confidential, secret or top-secret documents that were highly classified and without any authorization. It is clear that he and the Republican Party believe he is above the law.
What is also clear is that the revelations from the search and the classified materials seized have open a major frontal attack that will benefit Democrats and increase the Democrats chances of holding onto congress at a time Republicans want to make Joe Biden’s job performance, the economy and inflation the main issues in the mid-terms.
The search and the documents seized show how just dangerous it is if Trump returns to power. Republicans protect Trump no matter the cost, even when he places our national security at risk, or for that matter attempts to overthrow the results of an election, he lost by orchestrating the January 6 capital riot to stop the certification of the election.
Thus far absent from all reporting is any explanation or disclosures as to what former President Trump was doing with top secret classified documents in his home? One news report revealed that some of the classified documents were found in Trump’s desk at Maro Largo leading to speculation that the documents were being used by him and not merely being stored at the residents.
It’s disgusting that the Republican party defends Trump at all cost. What’s very alarming are the threats on law enforcement that are occurring because of his encouragement. No one really knows but Trump what he was doing with 20 boxes of classified documents, what he did with top secrets and classified documents and who did he share them with and for what purpose.