Commentators Say Affidavit Shows Clear DOJ Justifications for Mar-a-Lago Search

A redacted version of an affidavit from an FBI search warrant justifying why the Department of Justice (DOJ) felt compelled to search for and remove government documents from former President Donald Trump’s Mar-a-Lago residence was made public on Friday, revealing that there was “probable cause to believe that additional documents” were at the property pertaining to National Defense Information (NDI) and other presidential records.

The affidavit’s release was previously ordered by Magistrate Judge Bruce Reinhart, who had originally signed off on the warrant. The document states that there was “cause to believe that evidence of obstruction” of the investigation into how classified White House documents wound up at Mar-a-Lago would also be found at the estate.

Attempts to interfere with the investigation could potentially result in obstruction charges against Trump or those working on his behalf.

Though the affidavit was heavily redacted, commentators and legal experts reacted to its release.

“The redacted affidavit makes it seem that DOJ has President Trump dead-to-rights on the wrongful retention of national defense information,” said legal commentator and University of Texas School of Law professor Steve Vladeck.

The affidavit’s release was preceded by the DOJ’s explanation of why portions of the document would be redacted. “[T]he government has well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely involved,” the department wrote.

Many interpreted this message as a direct reference to Trump.

“This is quite something: DOJ is saying publicly they can’t trust former President Trump not to interfere w/the investigation if the roadmap is disclosed,” former U.S. acting Solicitor General Neal Katyal said.

The language used in the non-redacted portions of the DOJ explainer “strongly suggests that their criminal investigation is ongoing,” said Renato Mariotti, a former federal prosecutor.

Mariotti added that department officials made clear to Reinhart that there were several attempts to “[give] Trump every opportunity to return the classified material voluntarily and that they were going out of their way to be fair to him.”

Within the affidavit, the DOJ stated that it 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.”

The investigation began after a referral from the National Archives Records Administration (NARA) told FBI officials that an initial retrieval of documents from the property in January netted, “among other things, highly classified documents intermingled with other records.”

Several items that were taken back by officials in that retrieval contained National Defense Information (NDI). Of the more than 180 documents that were retrieved by NARA in January, 92 had a classified designation of “secret,” while 25 were labeled “top secret,” the affidavit revealed.

The affidavit also noted that the DOJ had sent a letter to Trump’s legal counsel in June, telling them that Mar-a-Lago is “not authorized to store classified information.” The letter asked that the documents currently secured there “be preserved” in a storage room “in their current condition until further notice.”

The letter contradicts Trump’s claim that he was simply told by the DOJ to get a better lock for the documents.

Much is still unknown about the affidavit’s contents and the Mar-a-Lago search. One heavily redacted section of the document, in which no words from the DOJ are shown, is simply titled, “There is Probable Cause to Believe That Documents Containing Classified NDI and Presidential Records Remain at the Premises.”

Reinhart’s original order to release portions of the affidavit came as many across the country called for more transparency into the search warrant that was executed by FBI agents at the Palm Beach, Florida, estate earlier this month. But Reinhart also stated in his order that while the affidavit should be made public, the document may be so extensively redacted by the DOJ that it would “result in a meaningless disclosure.”

Reinhart had maintained that the DOJ had good reason to keep some parts of the investigation hidden, saying that certain disclosures “would reveal the identities of witnesses, law enforcement agents, and uncharged parties, the investigation’s strategy, direction, scope, sources, and methods, and grand jury information.”

Portions of the search warrant that were previously made public indicated that the DOJ is looking into the possibility of Trump violating parts of the Espionage Act, a law used to prosecute individuals who mishandle government information to the detriment of U.S. interests abroad. (Notably, the law is most often used to prosecute whistleblowers and antiwar activists.)

Although the redacted affidavit leaves many questions unanswered, much of the investigation into Trump’s mishandling of classified documents has been revealed through various media reports, which have relied on sources that are familiar with the inquiry.

More than 300 classified documents have been removed from Mar-a-Lago over the past year, in three different searches — one in January, when 15 boxes were retrieved from the Trump property, one in June, when 26 boxes were subpoenaed by DOJ to be returned, and the FBI search in August, where 20 additional boxes were taken back by government officials.

Trump has described the search at Mar-a-Lago this month as being unfair and illegal — though in his own arguments in a court filing earlier this week demanding the documents’ return, he appeared to acknowledge, perhaps unintentionally, that the material seized legitimately belonged to the federal government.

The former president’s other defenses of his actions have also fallen apart. Among the many claims he and his allies have made, Trump has said that an FBI search warrant was an extraordinary action. Trump has also claimed that he was cooperating with investigators previously, and that a simple ask to return the documents would have been honored.

In fact, NARA has been attempting to get Trump to return government records since before he even left office. The agency continued to press Trump to return them through most of 2021. When he finally agreed to return some of the documents — resulting in the retrieval of materials in January 2022 — it was only because NARA had threatened to get Congress involved in the matter.

The subpoena order in June of this year also required Trump to attest that he had returned all classified documents that were in his possession to the feds. The FBI search of the property earlier this month was prompted by an as-yet unknown informer who told the DOJ that Trump had more documents hidden, as well as surveillance footage at Mar-a-Lago.