We have always known that whatever information about the Mar-a-Lago searches is released in federal court will not help Donald Trump.
We know this not only because Judge Bruce Reinhart had already concluded, based on the unredacted affidavit used to obtain the search warrant, that there were probable grounds for believing that three federal crimes had been committed and that the evidence for those crimes was in Mar- a-Lago, Mr. Trump’s residence club in Florida.
Mr. Trump knows the answers to the most important unanswered questions: what materials did he take from the White House, why did he take them, what did he do with them, and what was he going to do with them? Nothing prevented him from answering these questions publicly for more than a year; he, of course, did not remain silent, because the answers are exculpatory.
First of all, the redacted affidavit (and accompanying explanatory note) released on Friday reveals new evidence from a just criminal case involving the protection of information vital to the security of our country.
I can assure you, based on my experience as FBI General Counsel, that while there may be too much information considered confidential at the lowest security level, this has never been the case with top secret material.
Indeed, the redacted affidavit details some of what was unearthed during a preliminary study of materials previously returned by Mr. Trump at repeated requests from National Archives officials, including “184 unique classified documents, including 67 documents marked as confidential, 92 documents marked “secret” and 25 documents marked “top secret”. An agent reviewing this earlier material saw documents labeled “with the following sections/distribution controls: HCS, FISA, ORCON, NOFORN and SI”.
The marking for top secret and confidential information indicates the highest level of security we have. These levels protect what is rightly called the pearl of national security.
Especially with information classified at this level, the government cannot select and protect the country’s top secrets based on policy – it doesn’t matter if the person in question is a Democrat or Republican, a former president, a secretary. state or Edward Snowden. These documents belong to the government and their seizure a clear risk to our national security.
The release of the redacted affidavit provides additional clarity as to why Attorney General Merrick Garland took the extraordinary step of authorizing searches of certain locations in Mar-a-Lago. The short version is that nothing else worked and top secret information was at stake.
In any normal case, in my experience, with a responsible, decent citizen who could inadvertently take government documents, a simple voluntary request for their return would usually suffice. If this failed, a subpoena from the grand jury usually helped. In this case, none of the approaches worked. The Attorney General had to resort to the most intrusive method of obtaining documents – a search warrant approved by a federal court.
We already had some indication of why a search warrant was required. In May, the head of the National Archives and Records Administration wrote a letter to Mr. Trump’s team explaining that for months the federal archives had begged the former president to return the documents and that the partial return of 15 boxes included more than 700 pages. secret documents. And we knew that Mr. Trump objected to the archives turning information over to the Justice Department.
The redacted affidavit provides additional evidence that the government has exhausted every avenue to obtain the remaining documents. He offers a few more details about what happened to the Trump team. The DOJ appeared to be concerned that the Trump team was not completely forthright about the return of all records and concerned about witness interference in the case, contradicting Mr. Trump’s current claims that he was fully cooperating with the DOJ. .
The redacted affidavit is further proof that Mr. Trump has been flouting the criminal laws for a long time, and everything looks deliberate.
The redacted affidavit also suggests that the Justice Department acted quickly once it became aware of the nature of the information that may have remained in Mar-a-Lago. There is no doubt that some will say that she should have acted sooner, given the serious national security threat posed by having top-secret documents in a place as insecure as a beach resort, which has already been the target of alleged foreign infiltration. And Mr. Trump’s supporters will continue to argue that the Justice Department acted recklessly and that he was fully cooperative, but as Friday’s revelations show, the facts increasingly contradict those claims.
This debate is an interlude. Key questions that remain include exactly what the full extent of what Mr. Trump took from the White House, why he took the documents and didn’t return them all, and what he has been doing with them all along.
The redacted affidavit does not answer these questions, and the usually loquacious Mr. Trump did not answer them. But we now know that the Justice Department is one step closer to holding Mr. Trump accountable for his actions, if it wants to.
Under Mr. Garland, only facts, law, and precedent will matter. Mr. Trump’s penchant for exaggeration and exploiting his base will be ineffective in a forum where the rule of law rules.
Andrew Weissmann@AVeismann_), former Justice Department Attorney and Senior Attorney in Special Counsel Robert Mueller’s investigation, is Professor of Practice at New York University School of Law and author of Where the Law Ends: Inside the Mueller Investigation.