Prosecutors continue to bear down on Mar-a-Lago, weeks after they seized reams of government documents that former President Trump was holding at his South Florida estate.
Documents, including a redacted affidavit, are slowly being released from the investigation, giving a window into a high-profile — and high-stakes — national security probe into a former president.
Below are takeaways from the affidavit, along with further questions that the redacted document raises.
Espionage Act
The document mentions the Espionage Act as one of the statutes that prosecutors suspect may have been violated at Mar-a-Lago.
They cite subsection “e” of the statute, which prohibits unauthorized possession, willful retention, or transmission of national defense information.
As experts noted to TPM, that’s not necessarily classified information, but the distinction may not end up being so meaningful: out of the Espionage Act prosecutions that have taken place for squirreling away government documents, none have involved non-classified information.
What struck Tim Perry, a former federal prosecutor, was in part that the language within the Espionage Act — 793(e) — cited by prosecutors in the affidavit explicitly mentions a person who “willfully communicates” national defense information.
“To convict somebody of 793(e), you’d only have to show that they willfully retained it, not necessarily that they transmitted it,” Perry remarked. “So why include that in the search warrant affidavit? It suggests that they may have evidence to suggest that the information was somehow transmitted to another, or caused to be transmitted.”
Telling a story
That doesn’t necessarily mean that prosecutors have nailed Trump on communicating — or transmitting — information to someone who was unauthorized to have it. The affidavit is an investigative document, not a charging sheet.
But the question goes to a larger point: prosecutors would still need to establish both that Trump was aware that records were being unlawfully kept at Mar-a-Lago, and that there was a compelling “why” to explain the allegedly unlawful behavior.
“Charging a former President will likely not just come down to purely willful retention,” Brian Greer, a former attorney with the CIA’s office of general counsel, told TPM. “The key question is going to be, why did he retain those documents? Did it go beyond gross negligence?”
Damage done
Prosecutors cited multiple categories of classified information in the affidavit that were found in the 15 boxes of information taken by the National Archives from Mar-a-Lago in January 2022, including information not to be shown to foreign nationals or which dealt with signals intelligence.
One of the categories that drew the most attention was HUMINT: top secret information that deals with clandestine human sources.
This can be some of the most guarded secrets the government possesses. Senate Intelligence Committee Chairman Sen. Mark Warner (D-VA) issued a statement after the affidavit was released saying that “among the improperly handled documents at Mar-a-Lago were some of our most sensitive intelligence.” Warner called for a “damage assessment” to survey the extent of the threat that the incident may have caused, and Director of National Intelligence Avril Haines confirmed that she would begin that review.
It remains unclear exactly what human intelligence source information might have been located in the records — whether it was general information that might leave individual sources difficult to identify, or something far more detailed.
‘Declassifying’
Trump and his allies have argued that the element of the incident that’s most likely to attract criminal charges — the former President’s squirreling away of classified information — was mooted at the end of his administration by various efforts that Trump undertook to declassify the information at hand.
These supposedly took place at the end of Trump’s term, in January 2021.
Per statements from Kash Patel cited in the affidavit, Trump issued orders to declassify reams of records, but was thwarted by incompetent or corrupt staff who failed to change the classification markings on boxes of records.
“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said in a Breitbart article cited by prosecutors in the affidavit. Right-wing journalist John Solomon, Patel’s co-designate to the National Archives, has also argued that efforts to declassify some of the records were thwarted.
Greer, the former CIA attorney, told TPM that the DOJ has likely already examined the argument that the material had been declassified, and found it lacking.
“A big question from the classification perspective is what’s redacted after Kash Patel’s name is mentioned,” Greer said, referring to redacted portions of the affidavit that follow a reference to Patel. “I would love to know that, because I think it likely indicates that they’ve carefully looked into the declassification argument, and suggests that they don’t think there’s anything to it.”
Trump did issue a declassification order towards the end of his administration. On Jan. 19, 2021, he issued an order which mandated that some records related to the Trump-Russia investigation be declassified.
Greer argued that the presence of the order may harm Trump’s argument that the Mar-a-Lago records were declassified.
“It shows that they did, in fact, follow a formal process, one that’s not often followed by a President,” he said. “And two, by its own terms, that order applied to a very specific binder of documents, and the President accepted the redactions requested by the FBI.”
“The only way that order helps Trump is if a binder of those redacted documents was sitting at Mar-a-Lago,” Greer added.
