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 ReceiptAugust 11th, filed with the court Agents also seized documents marked “SCI,” or highly classified “sensitive compartmented information.”

After considering the Department of Justice’s (DOJ) affidavit, U.S. District 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 mutilation of government documents. On August 5, Reinhart issued a search warrant. When Reinhart unsealed the affidavitHalf of the 38 pages that were used to create the warrant were redacted or blacked out.

Redactions in the affidavit make it difficult to see reports from informants or other information that support 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 usually contain critical information about an investigation. They include facts about why the government is searching a specific location and what evidence they expect to find. They include statements from informants and indicate the avenues that will follow during the investigation.

The DOJ is investigating illegal removal and storage in unauthorized locations of classified documents and the concealment 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 rare for a search warrant affidavit to be unsealed before criminal charges can be filed. In fact, affidavits will not be unsealed unless the defendant moves to suppress evidence seized from the search. Defendants argue that the evidence should not be used in their trial, as it violated their Fourth Amendment rights to be free from unreasonable searches and seizure. In this case, no charges have been filed. 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 leaned on his prior finding of probable causeThe crime of obstruction was committed. There were also specific threats to violence against FBI agents and an armed attack on the Cincinnati FBI Office after the search was completed. He concluded that disclosure of the affidavit would likely lead to intimidation and harassment of witnesses, and reveal crucial facts about the investigation. Reinhart agreed to unseal the document after the DOJ suggested that there be extensive redactions.

Reinhart was the judge who issued Mar-a-Lago’s search warrant. There have been numerous antisemitic attacks on Reinhart on right-wing message boards as well as social media platforms. His synagogue canceled its Friday night Shabbat serviceFollowing a variety of antisemitic threats.

Initial Documents From Mar-a-Lago Contain Highly Identified Information

From May 2021 to December 2021, Trump was repeatedly questioned by the U.S. National Archives and Records Administration. Trump was silent for seven years. “They’re mine,” he insistedWhen he was asked to return the boxes of information, he agreed.

NARA informed the DOJ that it received 15 boxes of records by Trump on February 9, 2022. “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.

The FBI had already reviewed 15 boxes and discovered that 14 of them contained classification markings. They found 184 unique documents. Among them, 67 were marked CONFIDENTIAL, 92 were marked SECRET, and 25 were marked TOP SECRET. According to the FBI special agent who signed the affidavit, each of these markings indicates an increased risk of harm to national security if information is not authorized. Several documents contained what were apparently Trump’s handwritten notes.

FBI agents also saw markings indicating HCS (FISA), ORCON, NOFORN, SI and FISA. “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 15 boxes contained more than 100 documents with classification markingsThe book contains over 700 pages. Some of these included the highest levels, including Special Access Program information. These are highly classified data with access restrictions and safeguards that exceed those for ordinary classified information.

Affidavit Includes Probable Cause of Unauthorized Possession or Obstruction of Documents

The affidavit stated that there was probable cause to believe documents containing classified National Defense Information would be found in Mar-a-Lago. “There is also probable cause to believe that evidence of obstruction will be found,” the agent wrote. Evidently, one or more informants claimed that additional boxes of classified material were still at Mar-a-Lago. However, their identities/identities were removed 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. Violations of this section can result in a maximum of ten years imprisonment.

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 the destruction or mutilation 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 claims that he has declassified all seized documents. But none of the 18 former White House aides and advisorsInterview with CNNThey had never heard Trump issue a blanket order declassifying documents and believed this claim to be patently false. The question of whether a president is authorized to declassify documents should be left aside. en masseNone of the three sections of federal code cited above require that the offending documents must be classified.

Trump Requests “Special Master” to Examine Documents for “Executive Privilege”

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.

These documents belong to the National Archives and not the president.

Trump nevertheless 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 completed its own privilege review and set aside some “limited items” that are potentially protected by the attorney-client privilege.

Attorney General Merrick Galrland, who heads DOJ, will use documents seized from Mar-a-Lago August 8 for his investigation. They will assist him in deciding whether to bring criminal charges against Donald Trump.