Yesterday, the U.S. District Court for the Southern District of Florida unsealed a heavily redacted version of the affidavit of probable cause used to obtain the constitutionally overbroad search warrant for former President Donald Trump’s Mar-a-Lago resort home. From all that is shown in the redacted affidavit, and from the statutes cited 1, the Biden Administration’s justification for the raid appears primarily to be “unauthorized” storage of classified material, and retaining “Presidential records” that the National Archives and Records Administration (NARA) believes should be stored under their control.
The affidavit, which was sworn to by an unidentified FBI Special Agent (via WhatsApp), reveals little of what would be important to establish probable cause for the search, and seems to be a defensive release in response to political blowback on the FBI and DOJ for conducting the raid. It’s notable that the DOJ did not appeal Judge Reinhart’s partial unsealing of the affidavit, as some legal commentators had assumed they would in order to delay its release. The release is defensive, in my view, because it addresses one of the speculations about the affidavit, that it may have omitted exculpatory information known to the government which could undermine probable cause and make the warrant invalid, such as failing to address public statements by President Trump, his attorneys, and former Trump administration officials that all of the documents taken to Mar-a-Lago were already declassified.
According to the affidavit, “the [FBI] investigation began as a result of a referral [NARA] sent to the United States Department of Justice (DOJ) on February 9, 2022, after reviewing fifteen boxes of documents returned to NARA from Mar-a-Lago on January 18, 2022. (p.1)
The description given in the affidavit of the contents of the fifteen boxes returned to NARA from Mar-a-Lago indicates that what was retained were primarily “personal records” under the Presidential Records Act (PRA):
“…a preliminary review of the FIFTEEN BOXES indicated that they contained ‘newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and 'a lot of classified records.' Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified." p.8
Regarding the documents having classification markings, the affiant states “[s]everal of the documents also contained what appears to be FPOTUS 's handwritten notes.” p.17
I discussed the Presidential Records Act in detail in my previous article, “It Came From The White House!” If the documents in the FIFTEEN BOXES(!) were considered by President Trump to be “personal records” under the PRA, then caselaw suggests that the National Archives doesn’t have any legal authority to get them back, hence the DOJ referral over “classified documents.”
The affidavit mentions that on February 18, 2022, David S. Ferriero, then-Archivist of NARA, wrote a letter to Rep. Carolyn B. Maloney (D-NY),2 replying to a letter from Maloney sent on February 9 (the day of the Archivist’s criminal referral to DOJ), which Maloney had apparently been tipped to in order to ask questions about. The Archivist could not provide details about the contents of the documents in the fifteen boxes, both because they were still being inventoried, and because they are protected from disclosure by the PRA, unless Congress or one of its committees could satisfy the access requirements of the PRA (specifically, §2205(2)(C)). The origins of this story appear similar to the first impeachment over the Ukraine phone call, with a partisan "whistleblower" from an executive branch agency tipping off the congressional Democrats.
The concern of the DOJ as expressed in the affidavit is ostensibly over the security of classified documents and whether storage was “authorized.” The affidavit quotes this passage from a June 8, 2022 letter3 sent by an unnamed DOJ COUNSEL to one of President Trump’s attorneys, M. Evan Corcoran.
As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents [—————REDACTED—————] were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.
The Affidavit implies the documents in the FIFTEEN BOXES were moved to Mar-a-Lago when storage was “authorized,” as noted by the affiant FBI special agent:
According to a CBS Miami article titled ''Moving Trucks Spotted At Mar-a-Lago," published Monday, January 18, 2021, at least two moving trucks were observed at the PREMISES on January 18, 2021. p.11 ¶30
(Moving trucks reported at the PREMISES as President Trump was moving out of the White House —how suspicious!)
Storage of classified documents at Mar-a-Lago subsequently became “unauthorized” with the end of President Trump’s term, on January 20, 2021.
“Based upon this investigation, I believe that the STORAGE ROOM, FPOTUS's residential suite, Pine Hall, the "45 Office," and other spaces within the PREMISES are not currently authorized locations for the storage of classified information or NDI [National Defense Information]. Similarly, based upon this investigation, I do not believe that any spaces within the PREMISES have been authorized for the storage of classified information at least since the end of FPOTUS's Presidential Administration on January 20, 2021.” p.29
(emphasis added)
Implying, as is obviously the case given President Trump’s use of Mar-a-Lago at times as his southern White House, storage of classified documents there had previously been authorized.
Then there’s the disputed question whether the documents stored in this “unauthorized” space at a building which remains under protection of the U.S. Secret Service, and which had previously been “authorized,” are even classified, or —as President Trump, his attorneys, and former administration officials assert— they were declassified prior to being moved to Mar-a-Lago.
The affidavit does reference the legal argument for declassification presented in a letter to DOJ by one of President Trump’s attorneys, so it at least the warrant isn’t invalidated for withholding that bit of exculpatory evidence:
In the second such letter, which is attached as Exhibit I, FPOTUS COUNSEL 1 [M. Evan Corcoran] asked DOJ to consider a few ‘principles,’ which include FPOTUS COUNSEL 1's claim that a President has absolute authority to declassify documents. In this letter, FPOTUS COUNSEL 1 requested, among other things, that ‘DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.’ p.19
What is dismissively described as FPOTUS COUNSEL 1’s “claim that a President has absolute authority to declassify documents” cites to Supreme Court precedent. (It’s not like he made it up himself!)
In Dept. of the Navy v. Egan (1988), cited in the letter, Justice Harry Blackmun, writing for the 5-3 U.S. Supreme Court majority4, said:
The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, §2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.
p.527 of the opinion (emphasis added).
In other words, the power conferred on the President by the Constitution as the embodiment of the Executive Branch, in naming him as Commander-In-Chief, is the source of authority to classify and declassify information, and not controlled by the same laws Congress has enacted governing the handling of classified information which apply to everyone else. As former CIA analyst Buck Sexton noted recently, a President can, if he so chooses, disclose classified information publicly at a press conference, for example, claiming responsibility on behalf of the U.S. for a drone strike, which it would have been unlawful only seconds earlier for anyone else to have done. Sexton says that CIA agents sometimes jokingly refer to this as “realtime declassification.” Can’t then documents also be declassified by a President’s actions, not just his words?
It is a little curious that the affidavit designates President Trump’s attorney M. Evan Corcoran as “FPOTUS COUNSEL 1” despite his identity being clear from his signature on the letter attached to the affidavit as Exhibit 1. Former chief of staff to the acting Secretary of Defense, Kash Patel, is publicly more than a bit upset that his name is mentioned in the affidavit, which quotes his view published in Breitbart News on the matter of the President’s classification power. Would he have preferred to be referred to as FORMER FPOTUS ADMINISTRATION OFFICIAL 1?
The affidavit also goes into some detailed description of the FBI’s planned search procedures for handling attorney-client privileged information. It should be noted that the Feds have previously raided several Trump attorneys, and it’s apparent from the affidavit that the FBI recognized that its search warrant was so broad as to likely encounter attorney-client privileged documents. So if the DOJ didn’t happen to have seen all of President Trump’s communications with his attorneys from other raids, they probably have now. President Trump filed a motion Monday for a special master to be appointed to protect his 4th Amendment rights, and legal and constitutional privileges.
Although President Trump is involved in a lot of legal matters, could one objective of the raid be to cause political embarrassment by revoking FPOTUS’ security clearance, if there is there such a thing? A President while in office doesn’t need one, but from what I’ve read, there are provisions for former Presidents to be granted a security clearance, given that they can have access to classified material in their own presidential archives. The security clearance is entirely a discretionary executive branch matter, and wouldn’t require going through any court.
At least from what we can see on the face of the redacted affidavit and warrant, and the fact that the DOJ hasn’t appealed the judge’s decision to release them, it appears they're looking for political damage, not a conviction.
The affidavit mentions the Espionage Act, 18 U.S.C. § 793(e), and the affiant goes into a detailed explanation of classification markings. The two other criminals statutes mentioned are the same ones listed in the warrant itself, 18 U.S.C. § 1519 and 18 U.S.C. § 2071. The affidavit also cites the Presidential Records Act, 44 U.S.C. § 2201, and 44 U.S.C. § 3301(a), which aren’t criminal statutes.
Maloney, the current Chairman of the House Government Reform committee, recently lost re-election in the Democratic primary after being re-districted into a battle against Jerry Nadler, Chairman of the House Judiciary Committee.
And what is this long redaction in the middle of the second sentence quoted from the DOJ letter? Presumably from the context the redaction describes the subject matter of the classified documents, and seems to indicate an interest in classified documents pertaining to a particular topic.
The vacancy in the Court resulting from the retirement of Justice Lewis Powell, Jr. had not been filled when the case was argued, and then-recently appointed Justice Anthony Kennedy did not participate in the case, as he was sworn in less than a week prior to the Court’s decision being announced.
There's an interesting conflict here. Nearly all classification is by executive order, so it's totally under the control of the sitting POTUS. That means POTUS can pull crap on FPOTUS, denying him access to stuff he has already seen and possessed legally. It seems worth while to grant every FPOTUS a lifetime Top Secret clearance, with the understanding that access is granted only to material already possessed or in the FPOTUS presidential archives. Also, some accommodation so that the FPOTUS can store some docs at one location that meets applicable security standards (at FPOTUS expense) and subject to inspection. This would prevent a future POTUS from ordering another bullshit raid on a FPOTUS he didn't like.