The FBI’s unprecedented raid on former President Donald Trump’s Mar-a-Lago club has split the nation, with Democrats calling to “lock him up” and Republicans railing that it’s more political harassment of Mr. Trump by a partisan Justice Department.
Since the unprecedented Aug. 8 search at Mr. Trump’s residence and office at his private club in Palm Beach, Florida, some lingering questions have been answered with the Justice Department’s release of the search warrant and a heavily redacted warrant used to obtain the search warrant.
Still, many questions remain unanswered.
The search
A search warrant unsealed this month revealed that the FBI is investigating Mr. Trump for suspected violations of the Espionage Act, a World War I-era law that covers crimes beyond spying, including the refusal to return national security documents upon request or mishandling or destroying classified government documents.
FBI agents obtained the search warrant after they recovered 184 classified documents in 14 out of the 15 boxes Mr. Trump sent to the National Archives and Records Administration after they were stored at Mar-a-Lago, according to an affidavit released Friday.
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Some of the documents, according to the affidavit, were marked “HCS,” a category of highly classified government information. Others were related to the Foreign Intelligence Surveillance Court, which monitors threats from foreign agents, and other material that could be used “to the injury of the United States.”
Several documents also appeared to include Mr. Trump’s handwriting.
Agents became concerned that Mr. Trump took more classified materials to “unauthorized locations” at Mar-a-Lago and told a federal judge that they would likely find “evidence of obstruction” during their search.
The agents told a judge that none of the rooms at Mr. Trump’s residence had been authorized for storing classified information. They said Mr. Trump might have stored the materials in his residential suite, his “45 office,” and other locations at Mar-a-Lago that put them at risk of being used “to injure the United States.”
Attorney General Merrick Garland said he approved the warrant to search Mr. Trump’s residence.
While the investigation centers on the potential mishandling of classified documents, it’s unclear why the FBI pulled the trigger on a raid this month. More than 30 armed, plainclothes FBI agents swarmed Mar-a-Lago, searched Mr. Trump’s office and rummaged through his personal spaces for about nine hours. The affidavit did note that “the premises is currently closed to club members for the summer.”
DOCUMENT: Justice Department affidavit Mar-a-Lago search
The National Archives, which is supposed to receive all classified documents at the end of each president’s term, had been engaging in “ongoing communications” with Mr. Trump’s team about missing records since 2021.
Mr. Trump and his attorneys insisted that the raid was unnecessary because they were in discussions with the Justice Department about turning over the documents. The Justice Department has remained mum, but its frustration with inaction from Mr. Trump’s team is obvious in released documents.
Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law, said it’s clear that the Justice Department was at the end of its patience.
“Every single option you can come up with for a different time they could have done the search is equally arbitrary,” he said. “So the only question is why didn’t they do it the second they found out classified documents were there? There is no significant difference to doing this in August as opposed to doing it in May as opposed to doing it in November.”
A Justice Department prosecutor said this month that the Trump investigation is still in “the early stages,” meaning the investigation likely won’t be resolved anytime soon.
What was seized?
Agents who searched Mar-a-Lago found documents in a basement storage area and Mr. Trump’s office closet, according to a property receipt detailing what the FBI took from the premises.
The receipt also revealed that the FBI took 11 sets of classified documents, including documents labeled “top secret” and “secret compartmented information,” two of the government’s highest security designations.
A letter this year from Debra Steidel Wall, the acting head of the National Archives, to the Justice Department revealed that Special Access Program materials were stored at Mar-a-Lago. It is unknown whether they were recovered in the search.
The level of Special Access Program materials is so high that they can be viewed only by those with a need to know and vetted in three different security clearances.
The Washington Post reported earlier that some of the most sensitive documents at Mar-a-Lago involved nuclear weapons. None of the documents released by the Justice Department referenced the search for or recovery of such materials.
Mr. Trump has blasted The Post’s reporting by saying the “nuclear weapons issue is a hoax.”
“When an archivist says these documents pertain to SAP, that will set off flashing red lights across the intelligence community that they don’t want anyone getting their hands on them,” Mr. McClanahan said.
What spurred the probe?
During his only comments about the search, Mr. Garland declined to explain why he signed off on the search warrant. He said only that he “does not take such a decision lightly.”
The 15 boxes of documents retrieved from Mar-a-Lago should have been handed over to the National Archives before Mr. Trump left the White House. Under a 1977 federal law, all presidents are required to hand over classified documents to the National Archives for review, storage and possible declassifications.
The 14 boxes containing 184 classified documents alarmed National Archivist David Ferriero, who referred the matter to the Justice Department.
Critics say Mr. Ferriero, who has since retired, is a partisan who once changed the rules to help excuse Secretary of State Hillary Clinton when she was under scrutiny for mishandling classified documents on her private, unsecured email server.
The Justice Department was informed that the boxes contained “a lot of classified records” along with “newspapers, magazines, printed news articles, photos, miscellaneous print outs, notes, presidential correspondence, personal and post-presidential records.”
An Archives official, according to the affidavit, said there was “significant concern” that “highly classified records … were intermixed with other records.”
The Justice Department then presumably opened a grand jury investigation.
The letter from Ms. Wall revealed that Mr. Trump’s legal team was aware in April that the intelligence community wanted those documents so they could assess any damage from mishandling.
“Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps,” Ms. Wall wrote.
The intelligence community could have several reasons for wanting to review those documents, Mr. McClanahan said.
“Every day that classified documents are out in the world, there is an incrementally greater chance that it will be used against us,” he said. “Often, there is great urgency to get this information back into government control. The fact that they are trying to grab it from a former president, there is definitely a balancing act here. They did jump through all these hoops to avoid pulling the trigger.”
Why does Trump have the documents?
Mr. Trump has not said why the documents were sent to Mar-a-Lago instead of the National Archives.
His attorneys have argued in a lawsuit against the Justice Department that Mr. Trump has executive privilege over records from his presidency. They have requested a “special master” — an independent legal analyst — to determine whether the seized records are privileged.
The letter from Ms. Wall shows that Mr. Trump’s attorneys attempted to claim a “protective assertion of executive privilege,” which would have blocked the National Archives from turning over the records to the FBI that Mr. Trump voluntarily returned earlier this year.
Whether Mr. Trump has executive privilege over those documents is a matter of debate. A 1977 Supreme Court decision said that a president cannot assert privilege over the executive branch, which includes the National Archives and FBI.
However, the Presidential Records Act gives a president the power to restrict access to some records for up to a dozen years. Early in his presidency, Mr. Trump told the National Archives that he would request the 12-year restriction.
A 1988 Supreme Court ruling may benefit Mr. Trump. In that case, which involved a U.S. Navy employee who had been denied a security clearance, the court concluded that the president has authority “to classify and control access to information bearing on national security.”
Mr. Trump also claimed that, as president, he had a standing order to declassify all documents moved from the White House to his possession. On his social media platform, Truth Social, he said the documents in boxes seized by the FBI were “all declassified.”
Some Trump allies have backed up that claim, while other former administration officials said that’s patently untrue.
Nonetheless, Mr. Trump has not publicly released any documentation of either his standing order or that materials seized by the FBI have been declassified.
What did Biden know?
Biden White House officials have repeatedly said they were kept out of the loop on the investigation and caught off guard by the raid. They emphasized the independence of the Justice Department.
“I didn’t have any advance notice. None. Zero. Not one single bit,” President Biden said of the raid.
In a letter to the Trump legal team, Ms. Wall said Mr. Biden agreed with her that attempts to assert executive privilege were baseless, the first evidence to show that the president was at least aware of the investigation.
The letter, first published by Just the News, also showed that Mr. Biden ordered the National Archives to share all materials it had requested from Mr. Trump to be shared with the Justice Department and the FBI.
It doesn’t explicitly say, however, that Mr. Biden knew in advance about the Mar-a-Lago raid.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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