Redacted Mar-a-Lago Search Warrant Affidavit Sheds Light on the FBI’s Concerns

It is difficult to resolve any questions regarding the FBI’s reasons for visiting the Palm Beach home of ex-President Donald Trump. The Mar-a-Lago search warrant application affidavit, which has been redacted heavily, does not address these questions. However, the document provides some insight into the circumstances surrounding the August 8th search in which 11 sets of classified and non-classified presidential records were seized by FBI agents. The affidavit—which was unsealed by U.S. Magistrate Judge Bruce Reinhart, who approved the search warrant—also clarifies Trump’s defense against possible criminal charges stemming from his retention of those documents.

The Justice Department has published the affidavit. It states that the National Archives and Record Administration (NARA), first asked for the return of presidential records missing three and a quarter months after Trump’s departure. It continued to request records until late December 2021, when NARA received notification that twelve boxes had been located and could be retrieved. Trump’s representatives eventually turned over 15 boxes on January 1, a year following President Joe Biden’s inauguration.

NARA discovered on February 9 that the boxes were containing classified documents. NARA referred it to the Justice Department. NARA stated that boxes had “newspapers and magazines printed with news articles and photos as well as notes and personal correspondence from the president and other classified documents.” NARA reported that the boxes contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records as well as highly classified records.” [sic] identified.”

Between May 16 and May 18, FBI agents performed a preliminary inspection of 15 boxes. There were 184 distinct documents with classification markings found, including 67 documents marked CONFIDENTIAL, 95 documents marked SECRET and 25 documents marked TOP SECRET.

HCS (HumINT Control System), FISA(Foreign Intelligence Surveillance Law), ORCON [Originator Control], NOFORN (Not Available to Foreign Nationals), SI (Special Intelligence), were just a few of the marks on some documents. HCS and SI were listed in the affidavit as “sensitive compartmented data” (SCI). This is information “that has to be dealt with within formal access controls systems.”

This affidavit contains a May 25th letter that Evan Corcoran (Trump lawyer) sent to Jay Bratt in the Counterintelligence and Export Control Section of the Justice Department’s National Security Division. Corcoran claimed that classified documents were “once inside the White House” and “unknowingly included in the Mar-a-Lago boxes by the movers”. Corcoran described Trump as being completely cooperative in responding to NARA’s demands. He wrote that “the communications concerning the transfer of boxes were friendly, open and simple” and added that Trump had “readily agreed to release the records”.

Corcoran recommended Bratt keep “a few core principles in mind.” The first is that a president can declassify documents with absolute authority. A second reason is that “presidential actions in relation to classified documents aren’t subject to criminal sanction.”

Corcoran pointed out that 18 USC 1924 makes it a crime, with a maximum five-year sentence for any “officer, employee, contractor or consultant of United States” who knowingly remove classified documents “without authorization and with an intent to keep such documents or material at an unauthorised location.” He said that this provision was “implementable.”Does not applyTo the President” who is not qualified as an “officer, employee contractor or consultant of United States.” Corcoran cautioned that any attempt to inflict criminal liability upon a President, or ex-President that involves him with regard to classified documents would be triggering grave constitutional separation-ofpowers issues.

Corcoran didn’t address 18 USC793(e), which the FBI later referenced in its search warrant application. As relevant here, that provision applies to anyone who has “unauthorized possession” of “information relating to the national defense” that he “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and who “willfully retains” that information and “fails to deliver it to the officer or employee of the United States entitled to receive it.”

This offense is considered a felony and can be punished with up to 10 years imprisonment. It does not depend on the job of the defendant. The statute does not mention classification although the defense information it refers to would presumably be classified.

Corcoran did not also address the other laws cited in the Mar-a-Lago warrant search warrant. To conceal, remove, destroy or alter a U.S. Government document is a felony under 18 USC2071. It’s a crime, punishable with up to 20 years imprisonment, under 18 USC 15.19, to hide any record, document or tangible object in the intention to “impede, hinder, or influence” federal investigations.

Corcoran’s letters were noted by the FBI. The affidavit from FBI mentions May 5, 2005. Breitbart NewsStory in which Kash Ptel, an ex-Staffer at the National Security Council, claimed that Trump had “declassified” the material in question. This paragraph is followed up by approximately two-and-half pages that have been completely redacted. These might contain the FBI’s response to the claim that Trump can not be held criminally responsible for keeping sensitive documents.

Trump claimed that he was granted a “standing order” by the president which automatically classified any materials he removed from Oval Office. Trump may not have issued the order. It’s unclear if Trump actually did so. Glenn Gerstell served 17 months as Trump’s national security adviser from 2018 to 2019, while John Bolton served as his national defense advisor in 2018.

Trump could not have declassified documents that he had retained while he was still able to, but this would be irrelevant under 18 USC 2071 and 18 USC 1519. Declassification could not be applicable under 18 USC 793, depending on how the “information relatingto national defense” definition is used. The section that is blacked out after the Patel reference might help clarify FBI’s position.

The affidavit states that on June 8th, Trump’s legal team received a notice from the Justice Department stating its concern over the security of documents at Mar-a-Lago. The letter stated that Mar-a-Lago did not contain a safe place for classified documents storage, as I had previously explained to you. “It appears that since the time classified documents…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. We ask for security in the Mar-a-Lago room where documents were stored. Also, that any boxes or other objects that were transported from Mar-a-Lago to the White House be kept in the same condition as they are now until further notice.

The New York TimesAccording to reports, Trump’s staff addressed the concerns of the Justice Department by changing the lock on the storage area. The FBI was allegedly alarmed at footage showing people taking material out of the room after Mar-a-Lago obtained surveillance video. Contrary to Justice Department requests that classified documents not be stored in this location, TimesAccording to the FBI, they found them in Trump’s closet.

The narrative gets interrupted again by pages of redactions after the affidavit quotes a June 8 Justice Department letter. However, the affidavit also cites the June 8 letter from the Justice Department. TimesAccording to the FBI, Trump’s “aides” turned over “a few more sensitive documents” to comply with a subpoena. FBI was concerned that more documents were being hidden. It interviewed people who saw classified documents at Mar-a-Lago following the June visit to confirm that it had.

It would have been vital to verify that this point was made in order to establish probable cause that an FBI search would reveal items that were “possessed in violation” of the three laws cited. However, the section of the FBI affidavit detailing the evidence that supports this conclusion was removed. It is believed it will reveal FBI sources and complicate its ongoing investigation. The FBI requested and was granted permission to search the storage room, as well as Trump’s residence, Pine Hall and the “45 Office”, and any other areas at Mar-a-Lago not authorized for classified or NDI storage. [national defense information].”

It is not yet clear why the FBI took this unprecedented, politically dangerous step. These passages may be further evidence of Trump’s stubbornness or his poor handling of the documents. It would then make it clearer why the FBI took a more assertive and visible approach to subpoenas.

This missing information could also support Trump’s suspicion that he willfully kept government documents and intentionally obstructed an FBI investigation. Corcoran explains that Trump’s movers accidentally brought the documents to Mar-a-Lago. Trump quickly took measures to correct the situation as soon as he was aware of it. This seems a bit unlikely considering Trump’s long negotiations with NARA/the Justice Department. However, Trump’s inattention and cooperation with Corcoran does not mean that he was criminally intent.

The FBI may have used the unspurgated form of an affidavit to provide some information about the content and purpose of the protected information. It found “scores more documents”, according to the TimesAccording to the search inventory, these markings could range from “confidential” or “top secret/SCI”. Trump claims that he has declassified every item that was seized by the FBI, even though it had given them labels. This implies that Trump believes that there is no national security threat. It is not safe to believe Trump’s judgement on this question or any other, but the FBI did not explain publicly why the FBI believed the threat was serious and imminent enough for it to warrant a search. This was sure to cause a lot of controversy.