Manipulating the criminal code to find a basis to search the home of a political enemy represents an appalling weaponization of the criminal justice system.
At noon on Friday, the search warrant affidavit used by the DOJ to obtain a warrant to raid Trump’s Mar-a-Lago home hit the public court docket, albeit with heavy redactions. While sparse, the unredacted portions of the affidavit nonetheless proved significant, especially when read in conjunction with the previously unsealed search warrant and the leaks to the compliant media cartel.
“The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records,” the affidavit opened, before noting that “the investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022.”
The affidavit then summarized the background of the NARA referral, explaining that “on February 9, 2022, the Special Agent in Charge of NARA’s Office of Inspector General sent a referral via email to the DOJ.” The referral explained that the NARA’s White House Liaison Division director had reviewed 15 boxes NARA had retrieved from Mar-a-Lago including “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.’” “Of most significant,” the search warrant affidavit explained, was that “highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”
While the next nearly eight pages of the search warrant affidavit remained redacted, the disclosures that followed exposed the affidavit’s focus on “classified records” as a sham. “On or about May 6, 2021, NARA made a request for the missing PRA records and continued to make requests until approximately late December 2021 when NARA was informed twelve boxes were found and ready for retrieval at the [Mar-a-Lago],” the affidavit continued, with the abbreviation “PRA” previously noted to stand for the Presidential Records Act.
As I explained previously, to fully comprehend the Biden administration’s weaponizing of the DOJ and FBI, it is necessary to understand the Presidential Records Act, the concept of “presidential records,” and the NARA’s role, and the search warrant affidavit’s references to those concepts confirm that point. In short:
“The Presidential Records Act provides that documents created or received by the president or his immediate staff, such as memos, letters, notes, emails, and other written communications, related to a president’s official duties, constitute ‘presidential records’ and must be preserved. The act further declares that the United States shall retain complete ownership, possession, and control of Presidential records.’ And at the conclusion of a president’s term in office, the ‘Archivist of the United States’ ‘assumes responsibility for the custody, control, and preservation of, and access to, the Presidential records.’”
The Presidential Records Act, however, expressly excludes specific documents from the definition of “presidential records,” including any documentary materials that are “official records of an agency,” “personal records,” or “extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.” The federal statute further defines “personal records” as “diaries, journals, or personal notes ‘not prepared or utilized for, or circulated or communicated in the course of, transacting Government business’” or “materials relating to private political associations” or “relating exclusively to the President’s own election to the office of the Presidency.”
The public (understandably) may wish to sidestep the minutia of the mandates of the Presidential Records Act, but three top-line takeaways prove imperative to understanding the scandal of the Mar-a-Lago search. First, the Presidential Records Act is not a criminal statute, and violations of that federal law do not constitute a crime. Second, the Presidential Records Act does not reach broad swathes of documents retained by a former president, including “official records of an agency,” “personal records,” and convenience copies of presidential records. And third, the courts have refused to question a former president’s conclusion that a record constitutes a “personal record” and not a “presidential record.”
Two additional legal points require expansion for the populace to fully grasp the outrageous overreach of the DOJ, which was further exposed in the partially unsealed affidavit. The first legal principle of note concerns a president’s power to declassify documents. As Trump’s attorney stressed in a May 2022 letter to the DOJ, which the government released along with the redacted version of the search warrant affidavit, “a president has absolute authority to declassify documents.”
“Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents,” Trump’s lawyer Evan Corcoran explained in his correspondence with the DOJ. Citing both the Constitution and Navy v. Egan, 484 U.S. 518, 527 (1988), wherein the United States Supreme Court wrote, “the President’s authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant,” Corcoran countered the DOJ’s attempt to frame NARA’s discovery of documents marked “classified” as warranting a criminal investigation.
Trump’s lawyer stressed a second significant legal principle in the same letter, writing that “presidential actions involving classified documents are not subject to criminal sanction.” Then, after noting that “any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues,” Corcoran wrote: “Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President.”
The attorney for the former president then quoted the statute that criminalizes the removal, possession, or retention of classified materials before stressing that “an element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is ‘an officer, employee, contractor, or consultant of the United States.’” “The President is none of these,” Trump’s attorney continued, before concluding, “thus, the statute does not apply to acts by a President.”
Corcoran closed his letter by reminding the DOJ of its obligation “to be candid in representations made to judges,” and requested that a copy of the lawyer’s letter be provided “to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation,” as well as “any grand jury considering evidence in connection with this matter, or any grand jury asked to issue a subpoena for testimony or documents in connection with this matter.”
The search warrant affidavit referenced Corcoran’s letter and provided a copy to Magistrate Judge Bruce Reinhart, who issued the search warrant. The DOJ also informed Reinhart of a Breitbart News article from May 5, 2022, which states that a former Trump administration official, Kash Patel, had characterized as “misleading” reports that documents retrieved by NARA included classified material; Patel alleged that the reporting was misleading because Trump had declassified the materials at issue.
The DOJ informed Reinhart of the above details and thus, in essence, that the government lacked probable cause to search Mar-a-Lago based on a violation of the statute governing the mishandling of classified documents. But what Trump’s legal team did not foresee, and what the search warrant affidavit revealed, was that the DOJ would twist the facts to find other crimes to justify the targeting of Trump.
The introductory section of the affidavit summarized three other legal theories to justify the search, stating first that “the FBI’s investigation has established that documents bearing classification markings, which appear to contain National Defense Information (NDI), were among the materials” contained in the 15 boxes retrieved by the NARA. Second, the affidavit maintained that there was “probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the Mar-a-Lago.” And third, the affidavit claimed there was “also probable cause to believe that evidence of obstruction will be found at” Mar-a-Lago. Those legal theories track the three statutes cited by the DOJ to justify the search, namely 18 U.S.C. §§ 793(e), 1519, and 2071.
As I previously explained, none of those criminal code provisions require material to be classified for there to be criminal liability. Rather, Section 793(e), also called the Espionage Act, makes it a crime for a person “having unauthorized possession of, access to, or control over” “national defense information” to “willfully” share that information with a “person not entitled to receive it” or to “willfully retain” the national defense information and fail to deliver it to an employee of the United States “entitled to receive it,” if “the possessor has reason to believe [it] could be used to the injury of the United States or to the advantage of any foreign nation.”
The unredacted portions of the search warrant affidavit reveal how the DOJ manipulated the facts to fit within the Espionage Act. First, for the Espionage Act to apply, the material must qualify as “national defense information.” To establish probable cause that “national defense information” remained at Mar-a-Lago, the affidavit noted that a review by FBI agents of the 15 boxes retrieved by NARA “identified documents with classification markings in fourteen of the fifteen boxes.” The FBI agent who signed the search warrant affidavit then attested that based on his “training and experience,” he “knows that documents classified at these levels typically contain NDI” or “national defense information.”
What the DOJ did here, then, was this: It highlighted that the documents retrieved by the NARA contained “classification markings” and then used the FBI agent’s expertise to establish that documents that receive a classification marking typically include “national defense information.” That Trump declassified (or may have declassified) the documents is irrelevant under this analysis because the fact that they were ever classified would mean they likely qualified as “national defense information.”
The DOJ subtly confirmed this point by dropping a footnote that explains that “§ 793(e) does not use the term ‘classified information,’ but rather criminalizes the unlawful retention of ‘information relating to the national defense.’” The footnote continues by noting that Section 793(e) does not define “information related to the national defense,” but adds that courts have construed national defense information “broadly.”
In other words, the DOJ bent the Espionage Act to fit the facts of Trump’s possession of documents at Mar-a-Lago. The Biden administration couldn’t target Trump for mishandling classified material both because he declassified it and because the statute that criminalizes such mishandling doesn’t reach a president or a former president. So instead, they tried to find a crime to get the man.
Even then, there is a second problem with the DOJ’s reliance on the Espionage Act: An Espionage Act violation only occurs if the person has “unauthorized possession of, access to, or control over,” the national defense information. But how was Trump’s possession “unauthorized”?
From the unredacted portions of the affidavit, it appears the DOJ maintained that Trump’s possession of the national defense information was “unauthorized” because the documents were “presidential records” wrongly retained by Trump. But “presidential records” do not include agency records, personal records, or convenience copies, and the documents bearing the classification markings likely originated from intelligence community agencies and/or were hard copies printed for convenience, meaning Trump’s possession of those documents would not be “unauthorized” under the Presidential Records Act.
For the same reason, the DOJ’s reliance on Section 2017, which criminalizes the removal, destruction, or concealing of government records, falters because that criminal provision protects the government’s access to its own records, and merely possessing copies of government records is not enough to constitute a crime. Yet from the search warrant affidavit and the search warrant, it appears the government sought to recover from Trump hard copies of information it already had within its possession, either through various agencies or the electronic copies maintained by the relevant authorities. And it is a stretch for the government to rely on Section 2017 to criminalize Trump’s possession of the records.
Again, what we are seeing is a bending and twisting of the law to find a crime on which to launch the Mar-a-Lago raid. Mishandling of classified materials wouldn’t work, and Trump’s attorney made sure the DOJ knew that, so the creative team working under Attorney General Merrick Garland combed the federal code and found two plausible statutes on which to rely, adding a claim of obstruction of justice to round out the search warrant affidavit. While it is unclear from the affidavit the basis for the government’s obstruction of justice allegation, the affidavit establishes that the other criminal provisions relied upon representing illicit maneuvering to manufacture a crime for the man who was their political enemy.
Americans may shrug when prosecutors use pretext to target known drug dealers or human traffickers, but manipulating the criminal code to find a basis to search the home of a former president and a political enemy represents an appalling weaponization of the criminal justice system. And while large portions of the affidavit remain under seal, the country has seen enough to know that is precisely what the Biden administration did to get Trump.