The
Department of Justice (DOJ) [yesterday] released
the redacted affidavit that persuaded a judge to agree to issue a search
warrant for FBI agents to look for classified documents at Mar-a-Lago, the
property owned by the Trump Organization in Florida.
It
was bad.
The
affidavit explained to the judge the history behind the FBI’s request.
On February 9, 2022, the National Archives and Records Administration (what did I say about archivists?) told the DOJ that after seven months of negotiations, on January 18 it had received 15 boxes of material that former president Trump had held at Mar-a-Lago.
Those boxes contained “highly classified documents,” including some
at the very most secret level of our intelligence: those involving our spies
and informants.
In
those initial 15 boxes, FBI personnel found 184 classified documents.
Sixty-seven were labeled CONFIDENTIAL, 92 were SECRET, 25 were TOP SECRET. Some
were marked SCS, FISA, ORCON, NOFORN, and SI, the very highest levels of
security, involving human intelligence, foreign surveillance, intelligence that
cannot be shared with foreign governments, and intelligence that is
compartmented to make sure no one has full knowledge of what is in it. The
former president had made notes on “several” of the documents.
On June 8, 2022, a DOJ lawyer
wrote to Trump’s lawyer to reiterate that Mar-a-Lago was not authorized to
store classified information, and warned that the documents were not being
handled properly. The DOJ lawyer asked that the material be secured in a single
room at Mar-a-Lago “in their current condition until further notice.”
Trump’s
lawyers told the DOJ that presidents have the absolute authority to declassify
documents—this is not true, by the way—but did not assert he had done so.
The
FBI opened a criminal investigation “to, among other things,” figure out how
the classified records were taken from the White House and ended up at
Mar-a-Lago, and to determine if other classified records might have been
improperly taken and stored, and to figure out who might have taken and
mishandled them.
They concluded that there was good reason to think that more classified records remained at Mar-a-Lago and that investigators would find evidence that Trump and his allies were obstructing the government’s effort to recover the material.
The person who made the affidavit said they were a special agent with
the FBI, “familiar with efforts used to unlawfully collect, retain, and
disseminate sensitive government information, including classified N[ational]
D[efense] I[nformation].” They swore that “there is probable cause to believe”
that locations at Mar-a-Lago “contain evidence, contraband, fruits of crime, or
other items illegally possessed.”
The
affidavit confirmed that the Department of Justice 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,” and asked for the affidavit to be sealed
because “the items and information to be seized are relevant to an ongoing investigation
and the FBI has not yet identified all potential criminal confederates nor
located all evidence related to its investigation.”
Sidestepping
Trump’s insistence that he could declassify whatever he wished when president,
the affidavit specifies that the documents could cause damage even if they are
not classified, and it notes that retaining “information related to the
national defense” is illegal.
The
information that Trump stole classified documents itself was eye-popping, and
then that he refused to return them was astonishing. Now, the knowledge of the
extent of it, and that it included information from our human sources, is
stunning.
AND
THIS WAS JUST THE AFFIDAVIT TO GET A SEARCH WARRANT TO GET MORE RETAINED
DOCUMENTS… which the FBI did on August 8.
We
still don’t know what was in those more recently recovered boxes.
Trump
is in serious trouble…and so are the rest of us. This stolen and mishandled
classified intelligence compromises our security. The best-case scenario is
that it was never seen by anyone who knew what they were looking at. Even that
would mean that our allies have every reason to be leery about sharing
information with us again.
But
that’s the best-case scenario. We have to wonder, who else now knows the
secrets designed to keep Americans safe? Multiple news stories during Trump’s
presidency noted that even then, Mar-a-Lago was notoriously insecure. And,
unthinkable though it should be but sadly is not, what if secret documents have
already been given or sold into the hands of foreign actors whose interests
conflict with ours?
I
have been writing today about Trump’s
first impeachment and the hearings where Marie Yovanovitch, Fiona Hill, and
Alexander Vindman, immigrants all, who served our nation faithfully and fully,
risked—and ultimately lost—their jobs to warn us that Trump was willing to
compromise our national security for his own interests.
“He
has betrayed our national security, and he will do so again,” House impeachment
manager Adam Schiff warned the Senate. “You can’t trust [Trump] to do the right
thing. Not for one minute, not for one election, not for the sake of our
country. You just can’t. He will not change and you know it.” Schiff begged
them to say “enough.”
But they would not, and they did not, and here we are.
-Heather Cox Richardson
What’s the most important takeaway from this affidavit?
ReplyDeleteGiven that a lot of the information on the affidavit has been blacked out, probably the most telling new information is that the FBI agent says that a review of Mar-a-Lago documents the government had already obtained by grand jury subpoena earlier this year were marked in a way that would clearly indicate national security was at risk.
How does the affidavit show national security was at risk?
The affidavit reveals that some of the documents stored at Mar-a-Lago were marked HCS, indicating they were intelligence derived from clandestine human sources – or what we would think of as secret intelligence information provided by undercover agents or sources within foreign governments. If the identity of agents or sources is revealed, their intelligence value is compromised and, even, their lives may be at risk.
There were also documents marked FISA, meaning they were collected under the Foreign Intelligence Surveillance Act, documents marked NOFORN, meaning that the information cannot be released in any form to a foreign government, as well as documents marked SI, meaning they were derived from monitoring foreign governments’ communications.
What does this say about the investigation and the seriousness of Trump’s alleged crimes?
The information revealed in the affidavit indicates that the country’s national security and the safety of intelligence agents were possibly put at severe risk when national defense documents were apparently stored in a room at a resort in Florida.
It’s a little confusing – there’s been much talk in the media about classified information. Improper storing of classified information is a crime, but that is not what is being investigated here. A much more serious crime under the Espionage Act is at stake.
Even someone like a former president who initially had lawful possession of national defense information commits a felony by retaining that information after the government demands its return. Trump cannot hang on to national defense documents even if, while president, he “declassified” such documents, as he claims he did.
It’s been documented that a Chinese spy penetrated Mar-a-Lago while Trump was president. It is an unsecured location. If a foreign spy got into that room and walked out with information disclosing U.S. undercover agents around the world, or how we have been monitoring and collecting classified information around the world, I see the potential harm as staggering.
Clark D. Cunningham is W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State University
“The clock ticks down for Merrick Garland, the attorney general, and Trump. Under justice department practice, politically sensitive prosecutions cannot be launched within 60 days of an election. As a result, Labor Day in early September marks a cut-off for indicting Trump until after November’s congressional contests.”
ReplyDelete-Lloyd Green served in the Department of Justice from 1990 to 1992.