Trump Affidavit Contains Broad-Based Probable Cause of Three Federal Crimes

The August 8 search of Donald Trump’s Mar-a-Lago compound yielded 11 sets of classified documents, including several “Secret,” “Top Secret” and “Confidential” documents, according to the Property Receipt filed with the court on August 11. Agents also seized documents marked “SCI,” or highly classified “sensitive compartmented information.”

After considering the Department of Justice’s (DOJ) affidavit, U.S. Magistrate Judge Bruce E. Reinhart had found probable cause that a search of Mar-a-Lago would turn up evidence of three federal crimes: unauthorized possession, obstruction and concealment or removal of government documents. He issued a search warrant on August 5. When Reinhart unsealed the affidavit on which the warrant was based, half of the 38 pages were redacted, or blacked out.

Apparently concealed by the redactions in the affidavit are reports from informants and other information that supported the probable cause determination. Even the unredacted allegations, however, provide “overwhelming evidence” that serious crimes were committed, Harvard Law School professor Laurence Tribe affirmed.

Affidavits typically include critical information regarding an investigation, including facts about why the government wants to search a particular location and what evidence of a crime they expect to find there. They contain statements from informants and indicate avenues that will be pursued during the investigation.

The DOJ is investigating the improper removal and storage of classified documents in unauthorized places and the unlawful concealing or removal of government records. The FBI has interviewed “a significant number of civilian witnesses.” But the affidavit says the FBI had “not yet identified all potential criminal confederates nor located all evidence related to its investigation.”

It is highly unusual to unseal a search warrant affidavit before criminal charges are filed. In fact, affidavits are generally unsealed only after the defendant makes a motion to suppress evidence seized in the search. Defendants often argue that the evidence should be excluded from their trial because the search violated their Fourth Amendment right to be free from unreasonable search and seizure. No charges have yet been filed in this case. But due to strong public interest in the search of Trump’s home and seizure of hundreds of classified documents, the judge unsealed the affidavit with extensive redactions.

Reinhart wrote in his order unsealing the affidavit that the government had shown “a compelling reason/good cause to seal portions of the Affidavit because disclosure would reveal (1) the identities of witnesses, law enforcement agents, and uncharged parties, (2) the investigation’s strategy, direction, scope, sources, and methods, and (3) grand jury information protected by Federal Rule of Criminal Procedure 6(e).”

Reinhart relied on his prior finding of probable cause that the crime of obstruction had been committed, as well as an uptick in specific threats of violence against FBI agents and the armed attack on the Cincinnati FBI office after the search was conducted. He found that the disclosure of the affidavit would likely result in intimidation and harassment of witnesses and reveal critical facts about the investigation. But Reinhart ultimately agreed to unseal the affidavit after the DOJ suggested massive redactions.

Since Reinhart was identified as the judge who issued the search warrant for Mar-a-Lago, there have been antisemitic attacks against him on right-wing message boards and social media platforms. His synagogue canceled its Friday night Shabbat service following a number of antisemitic threats.

Initial Documents From Mar-a-Lago Contained Highly Classified Information

From May 2021 until late December 2021, the U.S. National Archives and Records Administration (NARA) repeatedly asked Trump for documents stored at Mar-a-Lago. Trump stonewalled for seven months. “They’re mine,” he insisted, when he was urged to return the boxes of information.

On February 9, 2022, NARA told the DOJ that on January 18, 2022, it had received 15 boxes of records from Trump. “Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified,” according to the NARA referral.

A preliminary review of the 15 boxes by the FBI revealed that 14 of them had classification markings. They found 184 unique documents, including 67 marked CONFIDENTIAL, 92 marked SECRET and 25 marked TOP SECRET. Each of these markings respectively indicates an increased threat of harm to national security if the information is disclosed without authorization, according to the unnamed special agent of the FBI who signed the affidavit. Several documents contained what were apparently Trump’s handwritten notes.

FBI agents also saw markings that said HCS, FISA, ORCON, NOFORN and SI. “HCS” denotes intelligence information from clandestine human sources or “human intelligence.” “FISA” stands for Foreign Intelligence Surveillance Act, which protects intelligence information from sources authorized by the Foreign Intelligence Surveillance Court. “ORCON” means “Originator Controlled,” that is, dissemination beyond pre-approved entities requires the approval of the originator. “NOFORN” signifies “Not Releasable to Foreign Nationals/Governments/US Citizens” without permission of the originator. “SI” means “Special Intelligence,” designed to protect technical and intelligence information gleaned from the monitoring of foreign communications signals by other than the intended recipients.

NARA found that the 15 boxes contained more than 100 documents with classification markings, comprising more than 700 pages. Some included the highest levels of classification, including Special Access Program information, which are highly classified data with safeguards and restrictions on access greater than those for ordinary classified information.

Affidavit Contains Probable Cause of Unauthorized Possession, Obstruction and Mutilation of Documents

The affidavit alleged there was probable cause to believe that documents containing classified National Defense Information would be found at Mar-a-Lago. “There is also probable cause to believe that evidence of obstruction will be found,” the agent wrote. Apparently one or more informants told the government that additional boxes of classified material were still at Mar-a-Lago, although their identity/identities have been redacted from the affidavit.

Reinhart agreed that the allegations in the affidavit constituted probable cause to believe that a search of Mar-a-Lago would reveal “evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. [sections] 793(e), 1519, or 2071.”

Section 793(e) [the Espionage Act] prohibits the “unauthorized possession of, access to, or control over any document … or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” It also forbids the willful retention of such national defense information and failure to deliver it to the U.S. officer or employee entitled to receive it. Violation of this section carries a maximum of 10 years in prison.

Section 1519 prohibits obstruction. Anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation” can receive 20 years’ imprisonment.

Section 2071 prohibits concealment or removal of government materials. Anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing” can be sentenced to a maximum of three years in prison.

Reinhart issued a search warrant authorizing the search of Mar-a-Lago and the seizure of “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” that violated the three federal code sections listed above.

The warrant also authorized the seizure of any evidence regarding storage or transmission of national defense information and evidence of “knowing alteration, destruction, or concealment” of any government and/or Presidential Records, or documents with classification markings.

Trump argues that he had declassified all of the seized documents. But none of the 18 former White House aides and advisors interviewed by CNN had ever heard that Trump issued a blanket declassification order and they believed such a claim to be patently false. But setting aside the question of whether a president has the authority to declassify documents en masse, none of the three federal code sections cited above require that the offending documents be classified.

Trump Requests “Special Master” to Examine Documents for Privileged Material

Debra Steidell Wall, acting archivist of the United States, rejected Trump’s “protective assertion of executive privilege,” finding no basis for the claim. She concluded that Trump sought “access to records belonging to, and in the custody of, the federal government itself.” This “protective” claim of privilege has never been made except in a congressional demand for information from the executive branch.

The documents belong to the National Archives, not the president.

Nevertheless, Trump made a motion for a special master. This is a third party — usually a former judge — who reviews the documents and determines whether the FBI seized “privileged and potentially privileged materials.” Trump also seeks the return of the documents seized from Mar-a-Lago during the search.

U.S. District Judge Aileen Cannon, a Trump appointee, said she had a “preliminary intent” to grant Trump’s motion for a special master, and scheduled a hearing for September 1.

On August 29, the DOJ told the court that it is undertaking its own privilege review and has identified some “limited items” that are potentially protected by the attorney-client privilege.

Attorney General Merrick Garland, who heads the DOJ, will use the documents seized from Mar-a-Lago on August 8 in his investigation. They will help inform his determination of whether to file criminal charges against Donald Trump.