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Affidavit behind Mar-a-Lago search in Trump inquiry released

FILE - The Mar-a-Lago estate on July 10, 2019, in Palm Beach, Fla. Former President Donald Trump says the FBI is conducting a search of his Mar-a-Lago estate. Spokespeople for the FBI and the Justice Department did not return messages seeking comment Monday, Aug. 8, 2022.(AP Photo/Wilfredo Lee)

FILE – The Mar-a-Lago estate on July 10, 2019, in Palm Beach, Fla. Former President Donald Trump says the FBI is conducting a search of his Mar-a-Lago estate. Spokespeople for the FBI and the Justice Department did not return messages seeking comment Monday, Aug. 8, 2022.(AP Photo/Wilfredo Lee)


FBI agents obtained permission from a federal judge to search Donald Trump’s home after finding that the former president had unlawfully removed 184 classified documents from the White House and stored them in “unauthorized” places at his Palm Beach residence — including many related to “national defense information,” according to a redacted affidavit released Friday.

Trump himself had voluntarily turned over those classified documents — mixed among magazines, newspapers, photos, letters, notes and other miscellaneous material — in 15 boxes to the National Archives in January after the federal agency responsible for holding presidential and government documents demanded that the former president return his records to Washington.

READ MORE: Trump’s Mar-A-Lago search warrant affidavit was just released. Read it for yourself

The discovery of those classified documents — including 67 marked as “CONFIDENTIAL,” 92 as “SECRET” and 25 as “TOP SECRET” — formed the body of evidence that the Justice Department cited in the FBI’s search warrant that was approved by a judge on Aug. 5 — three days before the FBI raid on Trump’s home at Mar-a-Lago.

“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,” an unidentified FBI agent wrote in the 32-page affidavit supporting the bureau’s search warrant.

“Further, there is probable cause to believe that additional documents that contained classified NDI [national defense information] or that are Presidential records subject to record retention requirements currently remain at” Trump’s residence, the agent wrote in the affidavit, noting he has received training in counterintelligence and espionage investigations. “There is also probable cause to believe that evidence of obstruction will be found” at his home.

The FBI agent noted that the investigation began as a result of a “referral” from the United States National Archives and Records Administration to the Justice Department on Feb. 9. That referral, along with material found in May when agents examined the 15 boxes Trump had returned as well as information from several witnesses, led to the FBI search of Mar-a-Lago on Aug. 8.

During that raid, dozens of agents hauled away 27 additional boxes of government and presidential records, including 11 sets of documents Trump took with him when he left the White House, according to an FBI list of the items taken from his home earlier this month. Some of the documents were classified as top secret while a smaller number were listed as “SCI,” which stands for “sensitive compartmented information.” It is restricted to only a small number of people with the highest security clearances and is often “designed to protect intelligence information derived from clandestine human sources.”

Trump, who claims he had declassified all of those sensitive documents before leaving office, has railed against the FBI and Justice Department for carrying out what he has described as another “witch-hunt” against him. The FBI search warrant, which was previously released by Magistrate Judge Reinhart after news organizations petitioned him to unseal it, indicated that the Justice Department is building a potential criminal case against Trump based on allegations of unlawfully removing classified materials, committing acts of espionage and obstructing justice.

Read More: FBI search warrant points to possible espionage and obstruction case against Trump

The search warrant, released earlier this month, focuses on whether the former president improperly possessed and stored classified documents in a number of areas at Mar-a-Lago, including storage rooms and his office. Because multiple pages of the affidavit are blacked out, as well as sections of a DOJ memo explaining why sections had been redacted, there were no details about additional allegations. There also were no details of the material in the classified documents.

While Trump said he has cooperated with the National Archives over the documents dispute, the court filing suggests otherwise. On Feb. 18, after the records agency made its referral to the Justice Department about the “classified national security information within the boxes” that Trump had turned over, the Save America Political Action Committee issued a statement on behalf of the former president: “The National Archives did not ‘find’ anything, they were given, upon request, Presidential Records in an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Records Act. …”

Then in a letter dated May 25, 2022, one of Trump’s lawyers, Evan Corcoran, made a number of assertions to the Justice Department.

First, he said the 184 classified documents found in the 15 boxes the former president had returned had been “unknowingly packed.”

A few paragraphs later, he also argued that the president has “absolute authority to declassify documents.” And he also asserted that federal law on the mishandling of classified materials does not apply to the former president. The law only applies to “an officer, employee, contractor, or consultant of the United States,” Corcoran wrote Jay Bratt, chief of the Justice Department’s counterintelligence section. “The President is none of these.”

“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.”

Many pages in the affidavit, filed by an agent whose name was blacked out for what the agency said was personal safety reasons, remained heavily redacted, as the Justice Department and magistrate judge who granted the initial search warrant agreed that releasing the full affidavit would compromise the government’s ongoing criminal investigation.

The Justice Department had opposed efforts by media organizations, including the Miami Herald, and conservative groups to secure the document’s release. But Reinhart ordered the Justice Department officials to propose redactions to the document last week, stating that he would rather release a partially concealed document than keep it entirely sealed. Reinhart accepted the proposed redactions on Friday.

In a legal memo, Justice Department prosecutors stressed that witnesses and federal agents — as well as the investigation — were at risk if the full affidavit was made public. “The materials the government marked for redaction in the attached document must remain sealed to protect the safety and privacy of a significant number of civilian witnesses, in addition to law enforcement personnel, as well as to protect the integrity of the ongoing investigation and to avoid disclosure of grand jury material.”

The memo also said: “If witnesses’ identities are exposed, they could be subjected to harms including retaliation, intimidation, or harassment, and even threats to their physical safety. As the [judge] has already noted, ‘these concerns are not hypothetical in this case.’ “ In fact, both the judge himself and FBI agents have been threatened since the Aug. 8 raid.

Trump’s legal team did not weigh in one way or another on whether the affidavit should be released, but the former president made public statements calling for it to be unsealed.

This story was originally published August 26, 2022 12:16 PM.

Michael Wilner is McClatchy’s Senior National Security and White House Correspondent. A member of the White House team since 2019, he led coverage of the federal response to the coronavirus pandemic. Wilner previously served as Washington bureau chief for The Jerusalem Post. He holds degrees from Claremont McKenna College and Columbia University and is a native of New York City.

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