U.S. Magistrate Judge Bruce Reinhart, who approved the FBI's August 8 search of former President Donald Trump's Palm Beach resort, yesterday indicated that he is inclined to release a redacted version of the affidavit supporting that warrant. Depending on how extensive the redactions are, that step could help answer lingering questions about the justification for the search, during which the FBI seized 11 sets of documents marked as classified. The affidavit also could clarify the viability of criminal charges against Trump or his underlings for taking and keeping those documents, along with other material that was not classified but belonged in the National Archives.
After several news organizations asked Reinhart to unseal the affidavit, the Justice Department argued that doing so would expose sensitive information and compromise the FBI's ongoing investigation. During a hearing on the issue yesterday, Reinhart said it was "very important," given the controversy over the FBI's investigation, that the public see as much information as feasible. He later wrote that the government has "not met its burden of showing that the entire affidavit should remain sealed." He asked the Justice Department to propose redactions by next Thursday.
Justice Department officials reportedly were surprised by Reinhart's receptiveness to unsealing the affidavit, which explains why the FBI thought it had probable cause to believe the search would discover items "possessed in violation of" three federal laws. Although search warrant affidavits typically are kept under wraps until a criminal investigation is completed, Reinhart evidently thinks the issues raised by the FBI probe are important enough to depart from standard practice.
Jay Bratt, a Justice Department national security lawyer who urged Reinhart to keep the affidavit sealed, conceded that "there is heightened interest" in this case, which is putting it mildly. "This is likely an unprecedented situation," Bratt added.
One conspicuous question raised by that situation is why the FBI thought Trump's trove of government documents posed a national security threat grave enough to justify the unprecedented and politically explosive decision to search the home of a former president who is the leading contender to oppose the current president in the next election. We know almost nothing about the volume, contents, or precise location of the sensitive documents that the FBI seized.
Most of the documents seem to have been kept in a storage area secured by a padlock, which Trump's staff replaced with a more tamper-resistant model at the Justice Department's request. But The New York Times reports that the department, which subpoenaed Mar-a-Lago surveillance video, was alarmed by footage of people removing boxes from the storage room—a detail that the affidavit could clarify.
Kash Patel, who worked for the National Security Council under Trump and has represented him in negotiations with the National Archives and Records Administration (NARA), has said the documents at Mar-a-Lago were related to "national security matters" as well as "Russiagate" and "the Ukraine impeachment." The latter two subjects suggest that Trump may have collected material he thought would help make the case that those two investigations were part of a "deep state" conspiracy against him. Tim Weiner, a former national security reporter for the Times, notes that Patel "was one of the Trump appointees who led the attempt to uncover the secrets of the 'deep state' that consumed the president during his last year in power."
Trump reportedly insisted that the records he retained after leaving office belonged to him. "It's not theirs; it's mine," he said, according to "several" unnamed "advisers" cited by the Times. As Weiner notes, Richard Nixon took the same position regarding White House records, which prompted Congress to pass the Presidential Records Act in 1978. Under that law, "the United States shall reserve and retain complete ownership, possession, and control of Presidential records." Except for Trump, Weiner says, every president since Nixon has complied with that statute.
The Presidential Records Act does not prescribe penalties for violating it. But 18 USC 2071, one of the laws cited in the Mar-a-Lago warrant, makes it a felony, punishable by up to three years in prison, to conceal, remove, or destroy a U.S. government document. To obtain a conviction, the government has to prove the defendant did that "willfully," and the search warrant affidavit likely includes evidence supporting that element. In particular, the affidavit probably describes in detail the government's efforts to recover the purloined documents and Trump's resistance to those efforts.
In January, Trump's representatives turned over 15 boxes of documents to NARA, which noticed that some were marked as classified. That prompted an investigation by the Justice Department, which obtained additional documents under a grand jury subpoena in June. Around the same time, The New York Times reports, "a Trump lawyer" gave the Justice Department "a written declaration" saying "all the material marked classified in the boxes had been turned over."
According to the search warrant inventory, which was unsealed last week along with the warrant itself, that was not true. The FBI found documents with markings ranging from "confidential" to "top secret." The top-secret documents included some labeled "SCI," or "sensitive compartmented information," an especially restricted category.
Contrary to those labels, Trump insists, the documents cited by the FBI were not actually classified. He says he had "a standing order" as president that automatically declassified anything he happened to remove from the Oval Office. John Bolton, who served as Trump's national security adviser for 17 months in 2018 and 2019, thinks that is "almost certainly a lie." Bolton told the Times he had never heard of Trump's purported decree. Glenn Gerstell, who served as general counsel for the National Security Agency from 2015 to 2020, likewise told FactCheck.org he "was not aware" of any such policy, which would have been a haphazard and confusing approach to classified material.
Even if Trump declassified all the documents at Mar-a-Lago when he still had the authority to do so, that would not matter under 18 USC 2071, which applies to government records generally. Even 18 USC 793, the Espionage Act provision that was also cited in the warrant, does not mention classification, instead referring to "defense information."
Under that law, someone who "willfully retains" defense information that he "has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" is guilty of a felony punishable by up to 10 years in prison. The same penalties apply to someone who "through gross negligence" allows defense information "to be removed from its proper place of custody" or who fails to report such removal.
According to a search warrant cover sheet that Reinhart unsealed yesterday, the FBI is investigating "willful retention of national defense information." If Trump repeatedly rebuffed attempts to recover defense-related documents, that could support such a charge, whether or not he actually issued the "standing order" that he describes. The search warrant affidavit could illuminate that issue.
The same goes for the third law mentioned in the warrant: 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to conceal "any record, document, or tangible object" with the intent to "impede, obstruct, or influence" a federal investigation. While proving such an intent is no easy matter, the same pattern of behavior that could support charges under the other two statutes might support the inference that Trump deliberately tried to obstruct the investigation prompted by his document grab.
Given all the ways that the affidavit could flesh out the case for prosecuting Trump, his avowed eagerness to see "the immediate release of the completely unredacted affidavit" is rather puzzling. Trump surely is curious about the identities of the "witnesses interviewed by the government" that the Justice Department mentions in its brief arguing that the affidavit should not be unsealed. Since the warrant hinged on the expectation that unlawfully removed documents remained at Mar-a-Lago, those sources probably included insiders who had seen them there recently. But the names of those informants are bound to be redacted if the affidavit is unsealed, since the Justice Department warns that "the revelation of witness identities would impact their willingness to cooperate with the investigation" and deter other potential witnesses.
Trump's insistence on "TRANSPARENCY" may be nothing more than a tactical ruse. Although he could have shared the search warrant and inventory even before Reinhart unsealed them, he chose not to do so, "ENCOURAGING the immediate release of those documents" only after the Justice Department asked Reinhart to approve it. And despite Trump's demand for "the immediate release of the completely unredacted affidavit," his lawyers notably did not participate in yesterday's hearing, where their support for disclosure would have carried considerable weight.
Then again, the contrast between Trump's statements regarding transparency and his actions may reflect a conflict between his impulses and his lawyers' advice. It would not be the first time that Trump's impetuosity clashed with his attorneys' caution.
There are sound reasons why Trump's legal advisers might be less keen on "TRANSPARENCY" than he is. It is hard to see how a one-sided narrative laying out the evidence that Trump broke the law would help his case.
Even that narrative may be obscured by the expurgation that the Justice Department recommends. As the Times notes, Reinhart "acknowledged that the redaction process could often be extensive and sometimes turned documents into 'meaningless gibberish.'"