Lazy Caturday Reads: Revelations from the Mar-a-Lago AffidavitPosted: August 27, 2022
Once again, it has been quite a week. I’ve been checking the latest headlines and looking around Twitter to see what’s happening. Of course, most of the political talk is about the redacted affidavit the DOJ used to get a warrant to search Mar-a-Lago for classified documents that Trump refused to return to the government.
After yesterday, legal experts are arguing that it is inevitable that Trump will be indicted and charged with obstruction and possibly with violations of the espionage act. Today, I see more experts speculating that Trump may have already shared top secret information with foreign parties. A number of people are sharing this timeline from The Intellectualist. Laufer is a well-known civil rights attorney.
Here are the latest stories on the search, the affidavit and what may happen next.
First up, this is from Andrew Weissman, a leading prosecutor in the Mueller investigation. The New York Times: We Knew the Justice Department Case Was Righteous. This Affidavit Confirms It.
Mr. Trump knows the answers to the most important unanswered questions: What material did he take from the White House, why did he take it, what had he done with it, and what was he planning to do with it? There is nothing that prevented him for over a year from publicly answering those questions; he surely has not remained silent because the answers are exculpatory.
Above all, the redacted affidavit (and an accompanying brief explaining the redactions), which was released on Friday, reveals more evidence of a righteous criminal case related to protecting information vital to our nation’s security.
I can assure you, based on my experience as the general counsel of the F.B.I., that although there may be too much information deemed sensitive at the lowest level of classification, that was never the case with top-secret material.
Indeed, the redacted affidavit details some of what was found in a preliminary review of material earlier returned by Mr. Trump at the repeated requests of National Archives officials, including “184 unique documents bearing classification markings, including 67 documents marked as confidential, 92 documents marked as secret and 25 documents marked as top secret.” An agent who reviewed that earlier material saw documents marked with “the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN and SI.”
The markings for top-secret and sensitive compartmented information indicate the highest level of security we have. Those levels protect what is rightly described as the crown jewel of the national security community.
Especially with information classified at that level, the government doesn’t get to pick and choose to defend the nation’s top secrets based on politics — it doesn’t matter if the person in question is a Democrat or Republican, a former president, a secretary of state or Edward Snowden. These documents belong to the government, and their having been taken away poseda clear risk to our national security.
Read the rest at the NYT link.
The Washington Post Editorial Board: The Trump affidavit shows the Mar-a-Lago search was hardly capricious.
Trump defenders have slammed the FBI’s search as aggressive and unwarranted. What has come out since, including on Friday, suggests the search was hardly capricious. Instead, all available evidence suggests it was a thoughtful choice made after other options had been exhausted. Along the way, the affidavit showed that the Justice Department considered the dubious defense from Mr. Trump’s allies that all the documents were declassified and that keeping them at Mar-a-Lago was therefore legal.
The catalogue of markings on the 184 classified documents agents reviewed before asking to search Mar-a-Lago also explains the DOJ’s determination to learn more. Acronyms such as SI, HCS, FISA and NOFORN might seem like collections of random letters to the layman, but they signify extraordinarily sensitive information: intelligence derived from clandestine human sources, for example, or from surveillance of foreign spies. That material in these categories was allegedly mixed in with other random papers as well as a mishmash of items reportedly including golf balls, a raincoat and a razor, is alarming — even absent intent to use them maliciously.
Read together, these facts should help assuage concerns that Attorney General Merrick Garland embarked on an ill-considered prosecutorial frolic when he sought to search Mar-a-Lago — though this reality is unlikely to stop the flow of reckless rhetoric from Trump acolytes. Meanwhile, those taking a more levelheaded approach should continue to do what they’ve done so far: wait. There was much we didn’t know before this affidavit was unsealed. There’s much we still don’t know now.
National security attorney Bradley Moss writes at The Daily Beast: It’s Over: Trump Will Be Indicted.
I have finally seen enough. Donald Trump will be indicted by a federal grand jury.
You heard me right: I believe Trump will actually be indicted for a criminal offense. Even with all its redactions, the probable cause affidavit published today by the magistrate judge in Florida makes clear to me three essential points:
(1) Trump was in unauthorized possession of national defense information, namely properly marked classified documents.
(2) He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago.
(3) He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant earlier this month.
That is the ball game, folks. Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury.
Moss says that if only Trump had cooperated after he was pressed by the National Archives last year instead of turning over some of the documents and holding on to the rest, he probably would have gotten away with taking them from the White House.
But Trump just could not bring himself to play by the rules. He turned over 15 boxes last January but did not turn over all the records. Political operatives from conservative organizations started whispering into his ear that he had legal precedent on his side to refuse to turn over the classified records to NARA (he did not). His lawyers surprisingly wrote a rather condescending letter to DOJ in May 2022, effectively arguing that even if there were still classified records at Mar-a-Lago the FBI lacked the authority to take any criminal action against Trump given his former status as president. Then, in June 2022 after the FBI executed a subpoena to recover more records at Mar-a-Lago, two Trump lawyers wrote (and one signed) a sworn affidavit reassuring the government there were no more classified records at the property.
Read more at the link.
Charlie Savage at The New York Times: Possibility of Obstruction Looms Over Trump After Thwarted Efforts to Recover Documents.
When the Justice Department proposed redactions to the affidavit underlying the warrant used to search former President Donald J. Trump’s residence, prosecutors made clear that they feared the former president and his allies might take any opportunity to intimidate witnesses or otherwise illegally obstruct their investigation.
“The 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 disclosed,” prosecutors said in the brief.
The 38-page affidavit, released on Friday, asserted that there was “probable cause to believe that evidence of obstruction will be found at” Mr. Trump’s Mar-a-Lago compound, indicating that prosecutors had evidence suggesting efforts to impede the recovery of government documents.
Since the release of the search warrant, which listed three criminal laws as the foundation of the investigation, one — the Espionage Act — has received the most attention. Discussion has largely focused on the spectacle of the F.B.I. finding documents marked as highly classified and Mr. Trump’s questionable claims that he had declassified everything held at his residence.
But by some measures, the crime of obstruction is as, or even more, serious a threat to Mr. Trump or his close associates. The version investigators are using, known as Section 1519, is part of the Sarbanes-Oxley Act, a broad set of reforms enacted in 2002 after financial scandals at companies like Enron, Arthur Andersen and WorldCom.
The heavily redacted affidavit provides new details of the government’s efforts to retrieve and secure the material in Mr. Trump’s possession, highlighting how prosecutors may be pursuing a theory that the former president, his aides or both might have illegally obstructed an effort of well over a year to recover sensitive documents that do not belong to him.
To convict someone of obstruction, prosecutors need to prove two things: that a defendant knowingly concealed or destroyed documents, and that he did so to impede the official work of any federal agency or department. Section 1519’s maximum penalty is 20 years in prison, which is twice as long as the penalty under the Espionage Act.
There’s much more at the NYT link.
Julian Barnes and Mark Mazzetti at The New York Times: Classified Material on Human Intelligence Sources Helped Trigger Alarm.
They risk imprisonment or death stealing the secrets of their own governments. Their identities are among the most closely protected information inside American intelligence and law enforcement agencies. Losing even one of them can set back American foreign intelligence operations for years.
Clandestine human sources are the lifeblood of any espionage service. This helps explain the grave concern within American agencies that information from undercover sources was included in some of the classified documents recently removed from Mar-a-Lago, the Florida home of former President Donald J. Trump — raising the prospect that the sources could be identified if the documents got into the wrong hands.
Mr. Trump has a long history of treating classified information with a sloppiness few other presidents have exhibited. And the former president’s cavalier treatment of the nation’s secrets was on display in the affidavit underlying the warrant for the Mar-a-Lago search. The affidavit, released in redacted form on Friday, described classified documents being found in multiple locations around the Florida residence, a private club where both members and their guests mingle with the former president and his coterie of aides.
Nothing in the documents released on Friday described the precise content of the classified documents or what risk their disclosure might carry for national security, but the court papers did outline the kinds of intelligence found in the secret material, including foreign surveillance collected under court orders, electronic eavesdropping on communications and information from human sources — spies….
Could Trump have already revealed secret sources of intelligence, as implied in the Tweet at the top of this post? I’m asking, not the NYT reporters. They note that Trump claimed he declassified all the documents at his resort, but . . .
“HCS information is tightly controlled because disclosure could jeopardize the life of the human source,” said John B. Bellinger III, a former legal adviser to the National Security Council in the George W. Bush administration. “It would be reckless to declassify an HCS document without checking with the agency that collected the information to ensure that there would be no damage if the information were disclosed.”
C.I.A. espionage operations inside numerous hostile countries have been compromised in recent years when the governments of those countries have arrested, jailed and even killed the agency’s sources.
Last year, a top-secret memo sent to every C.I.A. station around the world warned about troubling numbers of informants being captured or killed, a stark reminder of how important human source networks are to the basic functions of the spy agency. Honestly, I wouldn’t put it past Trump to have handed secret information over to Russia or Saudi Arabia.
Could Republicans be getting a little nervous about how serious the case against Trump is? Jonathan Weisman at The New York Times: Republicans, Once Outraged by Mar-a-Lago Search, Become Quieter as Details Emerge.
In the minutes and hours after the F.B.I.’s search of former President Donald J. Trump’s residence in Florida this month, his supporters did not hesitate to denounce what they saw as a blatant abuse of power and outrageous politicization of the Justice Department.
But with the release of a redacted affidavit detailing the justification for the search, the former president’s allies were largely silent, a potentially telling reaction with ramifications for his political future.
“I would just caution folks not to draw too many conclusions,” Gov. Glenn Youngkin of Virginia, a Republican, said on Fox News. It was a starkly different admonition from his earlier condemnations of what he said were “politically motivated actions.”
Some Republicans will no doubt rally around Mr. Trump and his claim that he is once again being targeted by a rogue F.B.I. that is still out to get him. His former acting White House chief of staff, Mick Mulvaney, said on Twitter that “this raid was, in fact, just about documents,” which he called “simply outrageous.” Representative Andy Biggs, Republican of Arizona and an ardent Trump ally, was on the right-wing broadcaster Newsmax denouncing the F.B.I. as politically biased, though he notably did not defend the former president’s possession of highly classified documents.
But generally, even the most bombastic Republicans — Representatives Marjorie Taylor Greene of Georgia, Lauren Boebert of Colorado, Jim Jordan of Ohio — were at least initially focused elsewhere. Ms. Greene was posting on Friday about border “invasions.” Ms. Boebert noted on Twitter the anniversary of the suicide bombing of U.S. service members at the airport in Kabul, Afghanistan. Mr. Jordan was focused on an interview with Mark Zuckerberg, the Facebook founder. None tweeted about the affidavit.
Read the rest at the NYT.
A few more stories on the search and affidavit to check out:
Lloyd Green at The Guardian: The FBI’s Mar-a-Lago affidavit paints an unsettling portrait of Trump.
Mary Papenfuss at HuffPost: William Barr Rips Trump For ‘Pandering To Outrage’ Over Mar-A-Lago Search.
The New York Times: Inside the 20-Month Fight to Get Trump to Return Presidential Material.
Charlie Savage at The New York Times: The Affidavit for the Search of Trump’s Home, Annotated.
Greg Sargent at The Washington Post: 3 big things we learned from the Mar-a-Lago affidavit.
That’s quite a bit of reading material, I know. Pick and choose what interests you. What else is on your mind today?