The FBI was Justified in Searching Mar-a-Lago for Government Documents.

It is a mystery why former President Donald Trump kept hundreds of classified documents and other government records at his Mar-a-Lago club. It is no mystery why the government wanted those documents returned. It has become clear in recent weeks from the release of previously sealed court documents, that the FBI was fully justified in retrieving those documents.
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Most Americans were unaware of government efforts to retrieve documents from Trump until August 8, 2022, when the FBI executed a search at Mar-a-Lago. During the search the FBI retrieved more than 100 classified records, some of which are so sensitive that few people in government have the security clearance to view them.

The FBI’s search was not a partisan attack on the former president. It was not an attempt to discredit him and his allies ahead of the mid-term elections. Trump has called the FBI’s search at Mar-a-Lago an unprovoked “raid”, and totally unnecessary because he and his attorneys had been cooperative with the FBI and Department of Justice (DOJ) every step of the way. Don’t believe this nonsense.

The National Archives and Records Administration (NARA) and the DOJ had been attempting to retrieve Presidential records and classified government documents, unlawfully held by Trump, for well over a year. Trump’s refusal to hand over the documents prompted the DOJ to secure a subpoena to search Mar-a-Lago and retrieve the documents.
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A lot of what the public knows about the ongoing investigation into Trump’s mishandling of government documents comes from the publication on August 26, 2022 of the affidavit used to obtain the warrant to search Mar-a-Lago. Nearly half of this 38- page affidavit was redacted to protect sensitive information and witnesses involved in the ongoing investigation. But there is still a lot that is known that should give any fair-minded American reason for concern.

Why This Matters:

1. The Presidential Records Act established that Presidential records automatically transfer into the legal custody of the NARA as soon as the President leaves office. Presidential records are not the personal property of the President. This includes classified as well as non-classified documents.
2. Multiple federal laws govern the handling of classified and sensitive government documents, some of which make it a criminal offense to remove such documents and retain them at an unauthorized location.
3. Possible violation of several federal laws pertaining to Presidential records and classified documents is the basis for the DOJ’s ongoing investigation into Trump and some of his associates. The FBI has uncovered evidence that Trump and/or his associates obstructed the DOJ’s investigation.
4. Some of the top-secret documents found at Mar-a-Lago contained highly sensitive intelligence information with national security implications. Possession of these documents may be in violation of the Espionage Act. 

​Time-Line of On-Going Investigation:

May 6, 2021: After determining that it was missing about two dozen boxes of documents from Trump’s presidency, the NARA requested their return from Trump. The effort was stonewalled by the Trump team for months.

December 2021: A Trump representative informed the NARA that 12 boxes of records had been found at Mar-a-Lago and could now be retrieved.

January 18, 2022: Agents from the NARA picked up 15 boxes of Presidential records from Mar-a-Lago. It would later be revealed that 14 of the boxes contained classified documents. Over 700 pages of classified documents were found, including 25 documents marked “TOP SECRET”.

February 9, 2022:  Based upon the fact that classified materials had been potentially mishandled and improperly stored at Mar-a-Lago, the NARA’s Office of the Inspector General referred the matter to the DOJ. Soon after, the FBI opened a criminal investigation into the matter.

April 12, 2022: The NARA informed Trump of its intention to provide the documents recovered from Mar-a-Lago to the FBI. To appease Trump’s attorneys, the documents were not provided to the FBI until May 12, 2022.

May 11, 2022: The DOJ issued a subpoena for additional records.

June 3, 2022: In response to the subpoena, a Trump attorney handed over more documents to three FBI agents and a DOJ attorney at Mar-a-Lago. Of the 38 documents handed over, 16 were marked “SECRET”, and 17 were marked “TOP SECRET”.

No explanation was given for why these documents had not been previously turned over to the NARA. The FBI agents were told that all the White House records had been stored in a single room. Trump’s attorney gave the agents a signed letter certifying that a “diligent search” had been completed and that no government documents remained.
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June 8, 2022: The DOJ sent a letter to Trump’s attorney requesting that “all the boxes that were moved from the White House to Mar-a-Lago be preserved in that room in their current condition until further notice.”

August 5, 2022: The DOJ filed an application for a search and seizure warrant for Mar-a-Lago, citing “probable cause” that additional Presidential records and records containing classified information remained in various locations at the club. Federal Judge Bruce Reinhart approved the application that day. 

​August 8, 2022: The FBI executed the search at Mar-a-Lago and seized 36 items of evidence, including more than 100 classified records. The evidence was found in the storage room as well as in Trump’s office. It would latter be learned that some of the documents were so sensitive that even FBI counterintelligence agents and DOJ attorneys required additional security clearances before they could review them. Trump and his allies called the search a “weaponization” of the justice system, and soon after the FBI reported a surge in threats against its agents.

August 26, 2022: Upon the order of Judge Reinhart, a redacted version of the affidavit used to obtain the search warrant for Mar-a-Lago was released. The affidavit revealed the DOJ’s reasoning for requesting the search warrant. According to the affidavit there was “probable cause to believe that evidence of obstruction will be found” at Mar-a-Lago, suggesting that there were efforts underway to impede the recovery of government documents.

The affidavit listed three criminal laws that may have been violated as the basis for the investigation. The federal laws citied were the Espionage Act, obstruction under section 1519 of the Sarbanes-Oxley Act, and the willful retention of national security and other records that rightfully belonged to the NARA.

The affidavit also revealed that the government had interviewed a significant number of civilian witnesses who had information pertaining to the movement of documents to and within Mar-a-Lago, and knowledge of Trump’s post-presidency actions.

​September 5, 2022: District Judge Aileen M. Cannon announced that she will grant Trump’s request to appoint a “special master” to examine the documents seized at Mar-a-Lago. The role of the special master will be to identify any material that might be protected by attorney-client or executive privilege.

This move prevents the DOJ from further review of the materials in question and using them in the ongoing investigation, until the review by the special master is complete. The Office of the Director of National Intelligence may still continue to review the material to make an assessment of the potential damage that may have resulted from the manner in which the documents were transported and stored.
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September 6, 2022: The Washington Post reported that some documents seized at Mar-a-Lago detailed top-secret U.S. operations and nuclear capabilities of some foreign nations. This level of intelligence is usually restricted to the President, some cabinet secretaries, and near-cabinet level positions with the highest security clearance.

September 8, 2022: The DOJ threatens to file an appeal with the 11th Circuit Court of Appeals if Judge Cannon doesn’t restore their access to the documents seized at Mar-a-Lago.
 
The documents seized at Mar-a-Lago and Trump’s culpability is an ongoing story and will be played out over the months ahead. Even if a special master is not appointed, I think that the DOJ will take a cautious approach to the investigation. Trump is an incendiary character and the mid-term elections are less than 60 days away. The last thing the DOJ wants, and the country needs, is for any of its actions to influence the upcoming elections in any way. It appears as if the most sensitive documents in Trumps possession have been recovered, and there will be ample time to build a case and issue indictments if the evidence justifies it.

The FBI was fully justified in searching Mar-a-Lago and retrieving Presidential documents and classified materials stored there. Donald Trump had several months to turn these records over to the NARA, but he didn’t. This was not a partisan attack, but a legal process precipitated by his own actions. The search at Mar-a-Lago would never have taken place if he had simply followed the law and returned all of the documents that belonged to the NARA.

Even if Trump had declassified the documents, as he has claimed, they were still not legally his. This is no simple dispute over the storage of documents, as the Trump camp would like you to believe. It is criminality.
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If Donald Trump is a victim, he is a victim of his own ignorance and arrogance. His callous disregard for the rule of law has once again landed him in hot water, and I think this time he is going to get burned.

Updated 9-16-22: On September 15, 2022 Judge Cannon appointed a former chief federal judge in New York, Raymond J. Dearie, to be the special master to review the documents seized at Mar-a-Lago. Cannon ruled that the special master should examine the documents with classified materials and give priority to them over the non-classified documents taken from Mar-a-Lago. The Judge has given the special master until November 30th of this year to complete the review, and has denied the use of the records by prosecutors until after the review.

This is a good thing in my opinion. It will cool things down a bit and get us past the mid-term elections. I think that indictments will eventually result from this case, so it is important to get it right and not be perceived as in any way political. 

Updated 9/24/2022: On September 21, 2022 the U.S. Court of Appeals for the 11th Circuit in Atlanta sided with the DOJ to prevent the special master from evaluating the roughly 100 classified documents seized from Mar-a-Lago. This will allow the FBI to use the documents in its ongoing criminal investigation.

Trump continues to claim that he declassified the documents before they left the White House. According to Trump, he can declassify material “even by thinking about it.” That would be a frightening prospect if true. What else can a president do simply by thinking about it, issue pardons or getting into a military confrontation?

The Appeals Court was not moved by the Trump team’s argument that the documents had been declassified. They couldn’t produce any evidence to back up the claim. In any case, the issue of declassifying the documents is irrelevant. As the court stated, “the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”

Now the special master can get on with the work of reviewing all of the non-classified material taken from Mar-a-Lago to determine if any may be covered by claims of attorney-client privilege or executive privilege. The special master has until the end of November to complete his work.

Updated 6/8/2023: Today the special counsel investigating Donald Trump’s handling of classified documents that he brought to Mar-a-Lago has handed down seven indictments against the former president. Trump has been summoned to appear at the Federal Courthouse in Miami on Tuesday at 3 PM to answer to these charges. We will not know the full extent of the charges until then. But they will be related to violations of the Espionage Act, making false statements and obstruction of justice.
 
Those opposed to Donald Trump will gloat in triumph, and those who support him will call this an outrageous witch-hunt and an illegal use of the Department of Justice to bring him down. There is nothing to celebrate here. This is not good for the country, and we need to remember that Donald Trump has the presumption of innocence until proven guilty. He deserves his day in court.
 
Donald Trump and his allies will assert that Mike Pence and Joe Biden did the same thing by keeping classified documents in their personal possession after they left office. But the differences couldn’t be starker.  When it was discovered that classified documents had been discovered in the possession of former Vice President Mike Pence and President Joe Biden, the FBI was notified and given full access to locations where any and all documents could be stored. There was no attempt to prevent the FBI from retrieving the documents.
 
Donald Trump misled the FBI and prevented it from obtaining government documents that he had in his possession for well over a year. This forced the FBI’s hand and led to the raid on Mar-a-Lago last year. 
 
This is the first federal indictment ever brought against a former president. Stay tuned. 




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