Mar-a-Lago affidavit

Reading between the lines of the Mar-a-Lago affidavit

The heavily redacted document reveals potential obstruction claims against Trump.

By Ellen Ioanes

An affidavit released Friday presenting evidence for the FBI’s search of former President Donald Trump’s Mar-a-Lago residence. Though heavily redacted, it indicates that Trump had highly protected information about human intelligence gathering — and that the agency had reason to believe that he was attempting to obstruct the investigation into the records.

The 38-page affidavit was written to support the government’s request for the search warrant executed August 8 and gives more insight into the timeline of events leading up to the search. The Justice Department made the search warrant public on August 12; that document indicated that the search was in support of an investigation into Trump under the Espionage Act, as well as two other federal statutes: obstruction of justice and destroying or concealing federal records.

Though the affidavit is heavily redacted in order to preserve the investigation and protect the identities of witnesses, it still provides new information. Crucially, the affidavit states that within the 15 boxes of documents returned to the National Archives in January of this year, there were “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”

Some of those documents, the affidavit indicates, could contain extremely sensitive information about intelligence gathering activities, potentially compromising information about the identities of foreign nationals who spy for the US, and information intercepted from foreign intelligence.

A memo justifying the redactions to the affidavit also indicates that “a significant number of civilian witnesses” are cooperating in the investigation; the redactions, according to the memo, protect their “safety and privacy” in addition to that of “law enforcement personnel, as well as to protect the integrity of the ongoing investigation.” In court proceedings to determine whether and how much of the affidavit to release, the court sided with the government, ruling that releasing significant portions of the affidavit would subject the investigation to possible obstruction and threats, citing probable cause to believe that obstruction had already occurred, as well as increased threats against FBI personnel since the August 8 search.

The burden of evidence for executing the warrant

An affidavit is not an indictment; its purpose is merely to establish probable cause to execute the search warrant. The affidavit itself makes that clear, saying, “it does not set forth each and every fact” that the investigation has uncovered so far. The purpose of the affidavit is only to meet a reasonable threshold to justify the search of the former president’s home.

Much of that evidence is still under seal, but, as a letter dated May 10 from acting US archivist Debra Steidel Wall to Trump’s attorney Evan Corcoran indicates, the 15 boxes the government retrieved in January contained hundreds of pages of documents with classified markings, up to the level of Special Access Program (SAP) — security protocols that heavily restrict access to some of the government’s most sensitive information. Those documents were intermingled with “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, [and] personal and post-presidential records,” according to the affidavit.

Furthermore, the evidence presented in the affidavit indicates that at least some of those records discuss clandestine human intelligence operations — spying — as the New York Times’s Julian E. Barnes and Mark Mazzetti wrote Friday. Should information about those sources, the information they collect, and how they collect it get into unauthorized hands, not only could it jeopardize US intelligence gathering, but it puts the lives of people who spy on behalf of the US at risk.

Though Trump claimed he had a standing order to declassify information at Mar-a-Lago, documents of this sort would be marked HCS for Human Intelligence Control System; that system is tightly guarded to keep the information, techniques, and people used to gather it safe. “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,” former legal adviser to the National Security Council John Bellinger III told the Times.

Though such documents can be general, sometimes they hold more specific information about human intelligence sources and the information they’re providing — increasing the possibility of identifying the human source. “The more sensitive the information, the fewer the suspects or technical vulnerabilities for the adversary to investigate,” Douglas London, former CIA officer and counterterrorism official under Trump, told the Times.

The affidavit and DOJ memo also both raise the possibility that Trump and his associates tried to obstruct the government’s effort to retrieve the sensitive documents and that they could try to similarly hamper the DOJ’s investigation. The statute that covers obstruction, Section 1519, could put Trump and his team in more danger, according to Georgetown Law professor Julie O’Sullivan. Since Trump has claimed that he already declassified the documents in his possession, O’Sullivan told the Times, “he is essentially conceding that he knew he had them” and has been “obstructing the return of these documents” by refusing to hand them over.

What’s next for Trump?

The FBI investigation into the records at Mar-a-Lago is just one of four major criminal investigations involving Trump at present, as Vox’s Ian Millhiser previously explained.

The DOJ’s investigation into the January 6, 2021, insurrection has resulted in federal charges against more than 830 participants; some defendants are facing extremely serious sentences. While, as Millhiser writes, it’s not clear whether the DOJ is investigating Trump for his role in the riot, “both congressional and judicial officials have indicated that Trump most likely violated at least two federal criminal statutes during his efforts to overturn the 2020 election — one protects Congress from interference, and the other prohibits conspiracies to defraud the nation.” That investigation, like the others, is ongoing, and no charges have been issued against Trump himself.

There is also an ongoing investigation into the Trump campaign’s efforts to overturn the 2020 presidential election in Georgia — specifically the 16 fake electors the campaign recruited to falsely claim that Georgia’s electoral college votes went to Trump. Those 16 individuals could face criminal charges, as could another target of the investigation, former New York City Mayor and Trump insider Rudy Giuliani.

Fulton County District Attorney Fani Willis’s office is also eyeing Sen. Lindsey Graham (R-SC) for his involvement in the attempts to overturn the Georgia election results. Graham has been issued a subpoena to testify regarding two phone calls with Georgia Secretary of State Brad Raffensperger, in which Graham allegedly “questioned Secretary Raffensperger and his staff about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” according to a court document justifying the request for Graham’s testimony.

Again, while Trump is not yet facing charges in the Georgia case, he could under two Georgia laws. One statute makes it a crime to engage someone to willfully interfere with “any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine.” Another Georgia statute outlaws “criminal solicitation to commit election fraud,” as Millhiser writes.

Trump’s businesses are also the subject of criminal probes in New York State, where Attorney General Letitia James is investigating whether the Trump Organization committed fraud by overstating the value of the business’s assets when seeking bank loans — or, alternately, claiming to tax officials that the company had a lower value to shirk its taxpaying duties. James’s office deposed Trump earlier in August, but he pleaded the Fifth Amendment — protecting himself from self-incrimination — more than 400 times during his deposition. James could choose to request that Trump’s business be essentially dissolved if the investigation finds it repeatedly committed fraud or other crimes, but it’s a civil case, not criminal — meaning it can’t end in a Trump indictment.

In the case of the Mar-a-Lago records, Director of National Intelligence Avril Haines wrote in a letter to lawmakers Friday that her office is assessing “the potential risk to national security that would result from the disclosure of the relevant documents,” Politico’s Andrew Desiderio and Nicholas Wu reported Saturday. That investigation will likely determine, among other things, whether people without the proper authority to access highly sensitive documents could have done so while they were at Trump’s residence. That’s not impossible, given the DOJ’s concern about the lack of security at Mar-a-Lago. Reporting by the Pittsburgh Post and the Organized Crime and Corruption Reporting Project (OCCRP) indicates that a scammer posing as a member of the Rothschild banking family gained access to Mar-a-Lago and to Trump himself last year.

Senate Intelligence Committee chair Mark Warner (D-VA) and vice-chair Marco Rubio (R-FL) have also requested to see the documents removed from Mar-a-Lago, indicating Congress’s interest in understanding the kind of information Trump was hoarding — and the effect that improper handling of such information could have on the intelligence community. Even if the FBI has now removed all federal records from Mar-a-Lago, the investigation is expected to be protracted and not likely to be settled soon.