By Terrance Turner
Aug. 8, 2022 (updated Aug. 11, Aug. 31)
The Federal Bureau of Investigation has executed a search warrant at Mar-A-Lago, the Florida home of former president Donald J. Trump. The warrant reportedly has to do with the removal of certain documents from the White House after Trump’s exit from the White House in January 2021.
Trump tonight confirmed the news that the FBI had “raided” his home in West Palm Beach, FL. “My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents,” he said in a statement Monday evening. “Nothing like this has ever happened to a President of the United States before.”
“After working and cooperating with the relevant Government agencies, this unannounced raid on my home was not necessary or appropriate,” Trump said in his statement. He added: “They even broke into my safe!”
Mr. Trump was not present at Mar-A-Lago at the time of the search, according to the Washington Post. (He was at Trump Tower in New York.) Eric Trump, one of the president’s sons, told Fox News that he was the one who had informed his father of the search. The search started Monday morning; it went on four hours, according to CNN. Reporter Randi Kaye confirms that boxes were taken from Mar-A-Lago during the search, and documents were seized.
According to the New York Times, “The National Archives discovered in January that at the end of his term, former President Donald J. Trump had taken to his home at the Mar-a-Lago resort 15 boxes from the White House that contained government documents, mementos, gifts and letters. The boxes included material subject to the Presidential Records Act, which requires that all documents and records pertaining to official business be turned over to the archives.” The National Archives and Records Administration (NARA) later confirmed that the boxes contained classified material.
According to the Washington Post, the National Archives went to Mar-a-Lago in February to retrieve 15 boxes of documents and other items from the residence; the material should’ve been turned over to the agency when Trump left office. But Trump only handed over the materials after a lengthy back-and-forth with his lawyers and the archives — who later confirmed that some of the documents he tried to block from the committee were ones that he’d torn up! On Feb. 18, in a letter to Oversight Committee Chairwoman Carolyn B. Maloney (D-NY), U.S. Archivist David S. Ferriero revealed: “NARA has identified items marked as classified national security information within the boxes.”
As a result, NARA referred the matter to the Department of Justice.
In April, federal authorities appeared to be in the preliminary stages of investigating the handling of the classified documents. They began a grand jury investigation and issued a subpoena to the National Archives and Records Administration for the boxes, according to two people familiar with the matter, who spoke on condition of anonymity. It was one of several requests that the Justice Department had made to NARA for records from the Trump administration, the two people said.
Federal law bans moving classified documents to unauthorized locations. The Presidential Records Act, passed in 1978, says that presidential records are the property of the U.S. Government, not the president. A statute makes it a crime to conceal or intentionally destroy government property — punishable by up to three years in prison.
Trump may be in violation of this law. Within the White House, he had a habit of tearing up drafts, memos and documents after reading them. Some documents had to be taped back together to avoid charges of destroying government property. Trump even flushed papers down the toilet, according to CNN.
Yesterday, Axios revealed photos of the practice. New York Times reporter Maggie Haberman, while working on her upcoming book Confidence Man, obtained photos of the attempted flushings and shared them with Axios. “That Mr. Trump was discarding documents this way was not widely known within the West Wing, but some aides were aware of the habit, which he engaged in repeatedly,” Haberman told Axios. “It was an extension of Trump’s term-long habit of ripping up documents that were supposed to be preserved under the Presidential Records Act.”
Trump relentlessly hammered former Secretary of State Hillary Clinton in 2016 for having classified information on a private email server while serving as secretary — even urging that she be imprisoned. Yet Trump himself is now accused of mishandling classified information. And some of that information was marked as “top secret”, according to ABC News. Some of them even dealt with nuclear weapons.
Reaction to the news was widespread and intense, gaining top coverage on news networks. On MSNBC, host Rachel Maddow intoned: “Nothing like this has ever happened before, and we don’t know where this leads.” She added: “It is literally hard to narrow down which potential federal crimes, which federal grand jury investigations, this raid might have pertained to.”
On CNN, former FBI director Andrew McCabe had similar sentiments: “It’s just astounding. But on the other hand, as with so many things about the former administration, it’s also not that surprising. The former president currently finds himself in the middle of so many different and varied criminal investigations that honestly, the first thing that I thought of when I heard notice of the search warrant was, ‘Which investigation might this be a part of?’ There are so many options,” he said.
“The FBI would not have taken a step as drastic and serious this unless they had good information to indicate that this was the result of some knowing, willful, intentional acts, of removing classified documents or sensitive documents,” McCabe added.
New York Times reporter Maggie Haberman noted: “The news that the F.B.I. executed a search on Trump’s home was a remarkable escalation and a truly stunning turn of events, even by the standard of the Trump years, during which norms were repeatedly shattered.”
BREAKING (8/12/2022): The search warrant has been unsealed, along with a property receipt. The New York Times has obtained a copy of the warrant. The documents reveal that some of the material Trump took from the White House was labeled “top secret” and that he is now being investigated for violations of three different laws. As Times writer Charles Savage put it:
“The search warrant for Trump’s residence cited three criminal laws, all from Title 18 of the United States Code. Section 793, better known as the Espionage Act, which covers the unlawful retention of defense-related information that could harm the United States or aid a foreign adversary; Section 1519, which covers destroying or concealing documents to obstruct government investigations or administrative proceedings; and Section 2071, which covers the unlawful removal of government records. Notably, none of those laws turn on whether information was deemed to be unclassified.”
UPDATE (Aug. 22): Lawyers for Trump have now asked a federal judge to halt the review of documents taken from Mar-a-Lago until a “special master” — a court-appointed monitor who would go over the evidence and review its contents for any privileged information — is appointed, CBS News and the Associated Press report. In a federal lawsuit (the first filing by Trump’s legal team in the two weeks since the search), the lawyers argue that the FBI search was “shockingly aggressive” and that the DOJ & FBI are treating Trump unfairly.
“Law enforcement is a shield that protects Americans. It cannot be used as a weapon for political purposes,” the filing says. “Therefore, we seek judicial assistance in the aftermath of an unprecedented and unnecessary raid on President Trump’s home at Mar-a-Lago.”
Trump’s attorneys argue that the search raises Fourth Amendment concerns and that the warrant used was overly broad. They also say the department took the unprecedented step of searching the former president’s home despite what Trump’s attorneys say was his voluntary assistance with investigators over several months.
UPDATE (Aug. 26): The affidavit used to obtain the warrant for the FBI’s search of Mar-A-Lago has been released. The Washington Post explains: “Affidavits are detailed documents about an investigation that law enforcement officers submit to judges in hopes that they will approve their applications for search warrants.” Such documents typically contain information about witnesses and why agents believe a crime may have been committed.
The heavily redacted affidavit — including more than three dozen pages of evidence and legal arguments presented by the Justice Department — was released 18 days after the search. Judge Bruce E. Reinhart ordered redaction so as to shield witnesses. As two DOJ lawyers argue in the document: “First and foremost, the government must protect the identity of witnesses at this stage of the investigation to protect their safety.” The witnesses could be subject to “retaliation, intimidation, or harassment, and even threats to their physical safety.”
As a result, much material is missing. The Post notes: “Of the 38 pages in the affidavit, nearly half are entirely or mostly redacted.” The New York Times notes that pages 11 through 16 are mostly or completely blacked out. But page 17 reveals that the FBI search was prompted by its review of the 15 boxes Trump handed over to the National Archives Records Administration (or NARA).
“From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents revealed the following approximate numbers: 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”
(When disclosure of certain information could “reasonably result” in damage to national security, the information may be marked as “CONFIDENTIAL”. When serious damage to national security is possible, the info is labeled “SECRET”. If the info poses potential for “exceptionally grave” damage to national security, the info is marked “TOP SECRET”.)
“Further, the FBI agents observed markings [such as] HCS, FISA, ORCON, NOFORN, and SI.”
Court filings reveal that the week of the preliminary review in May, a grand jury subpoena had been sent to the former president’s counsel, requesting certain documents. Counsel reached out on June 2 to arrange a visit for the next day.
Three FBI agents and a DOJ attorney visited Mar-a-Lago on June 3. In addition to counsel (lawyers for the former president), a custodian of records was also present. According to the filing, counsel handed over a Redweld envelope, wrapped in tape, containing the documents that the Justice Dept. had requested.
Then the custodian signed a letter that reads, in part: “I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification.”
Counsel said that all the White House documents were stored in the storage room at Mar-a-Lago and “that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched.” They did not allow the agents to open or look inside boxes from that storage room.
The Redweld envelope contained 38 classified documents, including five marked CONFIDENTIAL, 16 marked SECRET, and 17 marked TOP SECRET, according to the filing. But the government soon discovered evidence that classified documents remained at the premises — and that a search of the Storage Room wouldn’t have produced all of them. “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”
Spurred by this evidence, the federal government sought and obtained a search warrant on Aug. 5. Judge Reinhart found probable cause for all three crimes alleged and authorized the warrant.
When the FBI searched Trump’s home on Aug. 8, they seized 33 items of evidence, mostly boxes (although three classified documents were found not in boxes, but in office desks!) Of the seized evidence, 13 boxes or containers had classified documents, yielding a total of “over 100 unique documents with classification markings.” Some of the documents had colored cover sheets indicating their classification, as shown here in this photo:
UPDATE: A judge has unsealed the full inventory list of what was found inside the boxes that the FBI took from Mar-a-Lago last month. The list includes 18 documents marked “TOP SECRET”, 54 marked SECRET, and 31 marked CONFIDENTIAL, according to CNN. There were 48 empty folders marked “CLASSIFIED.”
UPDATE (Sept. 5): A federal judge has ordered the appointment of a “special master” to review the trove of documents seized last month at Mar-a-Lago. “The judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Mr. Trump until the work of the arbiter, known as a special master, was completed.” This temporarily bars the Justice Department from using key pieces of evidence in its investigation, according to the New York Times.
UPDATE (SEPT. 20, 2022): The “special master” is Judge Raymond J. Dearie, of the Federal District Court in Brooklyn. Today, he held a hearing with lawyers representing the federal government and Donald J. Trump. The hearing began promptly at 2:00 pm and ended after about 40 minutes, according to MSNBC.
Judge Dearie pressed Trump’s lawyers to provide evidence that he declassified the documents seized by the FBI. (Trump has repeatedly claimed he declassified them, but his lawyers have not made that assertion in court.) The lawyers questioned the status of those classified documents in court papers. “The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable,” the lawyers wrote to the 11th Court of Appeals. “However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”
They presented similar arguments today. But Judge Dearie pushed them for evidence, using the concept of prima facie (a Latin term meaning “true on first impression,” or, legally speaking, true until disproved). “If the government gives me prima facie evidence that they are classified documents, and you don’t advance any claim of declassification, then I’m left with a prima facie case,” he told Trump’s lawyers.
Trump’s lawyers claimed they’re not in a position to address declassification until they see the documents. “It’s not about gamesmanship. It’s about not having seen the documents […] We are not in a position, nor should we be in a position at this juncture, to fully disclose a substantive defense,” Trump lawyer Jim Trusty said. “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”
The judge replied that not doing so could be bad for their case. “My view is, you can’t have your cake and eat it [too],” Dearie said.
UPDATE (Sept. 27, 2022): The Justice Department has filed a revised inventory of items taken from Donald Trump’s Mar-a-Lago estate last month.
The special master, Judge Raymond J. Dearie, had requested an affidavit saying the inventory was “full and accurate”, per CNN. That request came after Trump falsely claimed the FBI had planted evidence during the search.
As ordered, the Inventory contains an FBI affidavit — and a declaration from a special FBI agent who was present at the search. “I am not aware of any documents or materials seized from the premises on that date by the FBI that are not reflected in the Revised Detailed Property Inventory,” wrote the agent, whose named was redacted.