This week a reporter asked Attorney General Merrick Garland why the FBI decided it was necessary to search former President Donald Trump's residence at Mar-a-Lago, his Palm Beach resort. "I could tell you why," Garland replied, "but then I'd have to kill you."
Although that exchange is entirely imaginary, it encapsulates the puzzle that Americans face as they try to assess the justification for 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. That justification, which was based largely on a threat to national security that supposedly required immediate and drastic action, depends on the contents of purloined government documents that we are not allowed to see. While we still know almost nothing about that, we now have a better idea of how many documents in Trump's trove were marked as classified.
According to a recently released May 10 letter from the National Archives and Records Administration (NARA) to Trump lawyer Evan Corcoran, the 15 boxes that the former president relinquished to NARA in January included "over 100 documents with classification markings, comprising more than 700 pages." Some of those markings indicated "the highest levels of classification, including Special Access Program (SAP) materials." That discovery prompted the Justice Department to "investigate whether those records were handled in an unlawful manner" and to "conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported."
In June, The New York Times reports, "aides to Mr. Trump turned over a few dozen additional sensitive documents" in response to a federal subpoena. After that transaction, the Times says, Corcoran "drafted a statement" that was signed by another Trump lawyer, Christina Bobb, saying that "to the best of her knowledge, all classified material that was there had been returned."
According to the FBI's inventory, the August 8 Mar-a-Lago search turned up 11 more sets of classified material with markings ranging from "confidential" to "top secret/SCI" (i.e., "sensitive compartmented information"). The Times says they included "scores of additional documents," which the FBI found in a basement storage room secured by a padlock and in "a container in a closet in Mr. Trump's office."
All told, according to "people briefed on the matter," the government "has recovered more than 300 documents with classified markings from Mr. Trump since he left office." On the face of it, that is a pretty large volume of sensitive material, although we still don't know, even in general terms, why it was classified.
Trump insists that the documents, despite their markings, were no longer classified, because he had "a standing order" as president that automatically declassified anything he happened to remove from the Oval Office. But even if we accept that dubious claim, it does not preclude criminal charges based on the three statutes that the FBI cited in its search warrant.
Assuming that 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 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 prosecution has to prove the defendant did that "willfully."
18 USC 793, the Espionage Act provision that was cited in the warrant, likewise 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. According to a search warrant cover sheet that was unsealed last week, the FBI is investigating "willful retention of national defense information."
The FBI also mentioned 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. Again, that charge does not hinge on whether the records were classified.
The statement from Bobb that the Times describes could support an inference of willfulness or an intent to obstruct. So could the months of protracted negotiations that the NARA letter mentions.
"As you are no doubt aware," the letter says, "NARA had ongoing communications with the former President's representatives throughout 2021 about what appeared to be missing Presidential records." According to the Times, those missing records included "Mr. Trump's original letters from the North Korean dictator Kim Jong-un" and "the note that President Barack Obama had left Mr. Trump before he left office." They also included Trump's pardon for Roger Stone, which the FBI found at Mar-a-Lago during this month's search.
Trump evidently viewed such items as personal mementos. But under the Presidential Records Act, they belonged in the National Archives. That law, enacted in 1978, says "the United States shall reserve and retain complete ownership, possession, and control of Presidential records."
The fact that Trump did not return any records until a year after he left office and even then retained many more, including material marked as classified, could be viewed as evidence that he or his underlings willfully broke the law. But it also could be ascribed to laziness, carelessness, honest mistakes, or a misunderstanding of what the law required.
The same pattern of behavior likewise is consistent with the suspicion that Trump or his representatives deliberately obstructed a federal investigation, but it falls far short of conclusive proof. If a redacted version of the search warrant affidavit is ultimately released, it could clarify the history of communications between the government and Trump's people, which might shed light on his apparent recalcitrance and therefore the justification for the search.
After the search, George Washington University law professor Jonathan Turley noted the challenges that prosecutors would face if they decided to pursue charges under the statutes cited by the FBI. "These crimes…require intentional acts," Turley wrote in The Hill. "With Trump lawyers negotiating the status of the documents and previously turning over some material under subpoena, there is a plausible defense based on Trump's belief that the material was no longer classified and that his team was cooperating with officials in trying to resolve any disputes. If Trump believed the material was declassified and relied on legal advice to resolve any disagreements, then prosecutors would combine an unprecedented legal case with a heavily contested factual record."