The affidavit that was used to obtain the search warrant executed at Mar-a-Lago has perhaps raised more questions than the subsequent search has yet to answer, however, it does provide a surprising amount of information and insights. Many legal experts and media agencies are now suggesting that the release of the affidavit was quite harmful to Trump, and represents a political fumble. So what has the affidavit revealed, exactly?
- Possible or Suspected Violations of the Espionage Act
The Espionage Act was created to ensure that sensitive and classified information about the United States does not end up in enemy hands. For this reason, a key tenet of the Espionage Act is that classified government documents not be removed. It was reported to the Department of Justice that former president Trump was still in possession of a large number of classified and highly classified documents and that they had been removed from the White House and were being kept in a secret storage area in Trump’s Mar-a-Lago estate. Multiple requests were made by the government for Trump to return these documents but he did not follow through in doing so, which led to increased security concerns and the execution of this warrant to retake possession of them.
As noted in a previous Law360 article, in which two of the National Security Law Firm’s associates were quoted, citing the Espionage Act does not mean that Trump committed acts of espionage. The Espionage Act requires proof of intent to commit crimes against the United States or to intentionally share confidential information that could result in harm to the United States. This can be difficult to prove, and there is no evidence at this point that Trump had any such intention. Rather, the Department of Justice may have been acting out of caution based on the security classification of the documents at risk. However, the Act was cited in the affidavit and the charges will be tried in court.
- Trump’s Team Probably Contains a Mole
In the affidavit, the Department of Justice refuses to disclose the name of their informant as they state that doing so could have a chilling effect on other possible witnesses. However, they do present a detailed description of the exact location of the documents, in a box in an area between the primary bedroom and a storage room, in an underground portion of Trump’s Mar-a-Lago estate. The specificity of this location suggests that it would have to have been someone very close to Trump who has had access to the area who provided this information to the DOJ. This points to a likelihood that the informant is someone on Trump’s team or within his inner circle.
- Trump Has Been Dragging His Feet When it Comes to Returning Highly Classified Documents
It becomes clear in the affidavit, as well as in statements from the DOJ, that multiple requests have been made of Trump over the past year to return the classified documents that he is no longer supposed to have in his possession, and which should not have been removed from the White House because of their high level of classification. However, presidents also have broad authority when it comes to possessing and classifying government documents, so this would not likely have been a problem during his presidency, and he may even have changed the classification of the documents during his presidency (that remains unclear but will likely be a primary component of his defense).
Now that the matter has proceeded to court, it has become clear that Trump is likely to continue dragging his feet concerning this matter and making the court proceedings stretch out as long as possible. So far he has been successful in getting a special master appointed, and is fighting to get the judge to require the special master to inspect every individual document, while the DOJ argues that there is no need to inspect documents that are marked as classified. Legal experts believe that he is doing this in an attempt to slow down the process, as it could push back an outcome as far as 2024, conveniently when the next presidential election will occur.
- Trump Has Refused to Give Up These Documents
As noted above, Trump has been dragging his feet when it comes to returning classified documents to the National Archives and Records Administration (NARA), which began making requests for the returns of the documents in May 2021. It took Trump until December to return the documents, but he still withheld the box of classified documents which remained at Mar-a-Lago. The fact that Trump gave up some documents while continuing to hold on to these, could be the basis for the obstruction of justice charges.
- There is Probably Evidence of Obstruction
Trump’s lack of cooperation in promptly returning all classified documents requested by NARA could result in an obstruction of justice charge. Brett O’Brien of our law firm, the National Security Law Firm, points out that even if Mar-a-Lago was authorized for the storage of classified documents during Trump’s presidency, it was made clear through countless letters and notices from the DOJ that it was not currently so authorized, and yet, Trump refused to remove or return the classified documents. This could result in a finding of obstruction of justice, but we will not know until the matter is tried in court.
- Trump Will Likely Claim That He Used His Presidential Powers to Declassify the Documents
Presidents have broad powers when it comes to classifying and declassifying documents, and in Trump’s attorney’s response to the affidavit, they seem to indicate (while stopping short of saying) that Trump may have declassified these documents during his presidency, which could make this matter moot. However, many of these documents feature classification stamps, which it has previously been established to constitute indefinite evidence of classified status. It will be interesting to see if Trump presents proof that these documents have been declassified.
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