President Trump speaking at a campaign rally in Prescott Valley, Arizona (Gage Skidmorre/Flickr).
On August 8, Federal Bureau of Investigation (FBI) agents executed a search warrant at former president Donald Trump’s Mar-a-Lago Resort in Florida, seizing more than 20 boxes of government documents. This is the first time the FBI has raided a former president's private residence, so it raises many questions about the intentions and legality of the FBI’s actions. The affidavit used to obtain the warrant, made public on August 26, provides some useful insights.
The decision to release the affidavit, made by Southern Florida Magistrate Judge Bruce Reinhart on August 25, came after weeks of news media organizations and conservative circles calling for the affidavit’s release, citing the need to inform the public. However, the FBI and Reinhart had their reservations.
Jay Bratt, the head of the Department of Justice’s counterintelligence division, said that the affidavit could “serve as a roadmap to the government’s ongoing investigation” and could have a “significant and negative impact… by allowing criminal parties an opportunity to flee, destroy evidence (stored electronically and otherwise), change patterns of behavior, and notify criminal confederates.”
He added that in order to preserve the identity of witnesses and grand jury members, large sections of the affidavit would have to be redacted, leaving “nothing of substance” and rendering the document “useless.” However, although he agreed to the nearly 20 pages of redactions proposed by the FBI, Judge Reinhart still felt that the remaining information was substantive enough and ordered the affidavit’s release.
Why Did the FBI Raid Mar-a-Lago?
According to the affidavit, the probe into Trump’s Mar-a-Lago Resort started because of a referral from the National Archives and Records Administration (NARA) after they received 15 boxes of government records from Trump in late January. Included in the 184 documents were 67 marked confidential, 92 marked secret, and 25 marked top secret. Among the documents was information about intelligence personnel, foreign communication signals, and nuclear secrets (although Trump denies the latter).
The FBI’s main concern with the number of classified documents at Mar-a-Lago was the lack of security at the resort. “I do not believe that any spaces within the premises have been authorized for the storage of classified information,” the agent in charge of the affidavit wrote. If any of the documents were leaked, they could “conceivably threaten individuals’ lives,” said Mark Zaid, an attorney specializing in national security.
The FBI also alleged that three federal laws, all sections of the Espionage Act of 1917, could have been violated by the presence of documents at Mar-a-Lago. Section 793 of the Espionage Act, for example, prohibits the “gathering, transmitting, or losing” of defense information. If the information in the affidavit is true, many of the documents could fall under Section 793’s purview. “There is also probable cause to believe that evidence of obstruction will be found,” read part of the affidavit, a felony under 18 U.S. Code § 1519.
Were the Documents Declassified?
After the raid, Trump announced in an angry tweet that all the documents he took were declassified. His team later clarified that while he was in office, he had a standing order that all documents removed from the Oval Office be declassified. However, Glenn S. Gerstell of the National Security Agency said that the idea of such widespread declassification without notifying the relevant agencies is “preposterous.” “It would be reckless to declassify an HCS document without checking with the agency that collected the information to ensure that there would be no damage if the information were disclosed,” explained former National Security Council legal advisor John Bellinger III.
And even though Trump’s lawyer M. Evan Cocoran argued that Trump’s “constitutionally-based authority regarding the classification and declassification of documents is unfettered,” many including Gerstell remain skeptical about whether the president has the power to execute such widespread declassification.
Regardless, the Espionage Act is not reliant on the classification status of the documents, so whether Trump truly declassified the documents or not is largely unimportant. And while 18 U.S. Code § 1924 makes retention of classified documents illegal, it has not been labeled as a focus of the investigation as of yet.
What Does it Mean?
One of the most significant findings in the affidavit is that Trump’s team did not work with the FBI as they have been claiming they did. Trump continually argued that he and his lawyers were working with the DOJ, making the August 8 raid gratuitous. However, the affidavit shows that it took the Trump team seven months to release any documents. The affidavit also reveals that a request by the DOJ to secure the Mar-a-Lago storage room was not met. All of this evidence directly contradicts the narrative of cooperation Trump has been pushing since the raid. “It blows [Trump’s allegations] to smithereens,” said Harry Litman, former deputy assistant attorney general.
As the government said in a statement following the release of the affidavit, the investigation into Trump’s legal culpability is still in its “early stages.” As more evidence is released and the documents are investigated further, new information will come to light that could change the course of the investigation. It’s important to note that the affidavit does not have all the information that the FBI possesses, just enough to meet the threshold of probable cause. Much of what has been uncovered by the FBI is still under seal. However, the release of the affidavit is a good start to understanding where the investigation is now and where it is headed in the future.
Sources & Further Reading