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What Was The FBI Searching For?

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The bar for a search warrant on a former President is high.

The timing suggests that the search had to do with the documents that Donald Trump inappropriately and probably illegally took with him when he left the White House. Criminal investigations take time, and it’s not clear that other investigations that we know of are at the stage where such a search would be needed. The material from Alex Jones’s lawyer, for example, probably hasn’t even been properly sorted through.

Earlier this year, 15 boxes of those documents were removed from Mar-a-Lago and sent to a SCIF (Sensitive Compartmented Information Facility, where highly classified documents can safely be stored). That implies that some or all of the material was classified in a way that only limited numbers of people could have access to it. It may be that the material was sufficiently mixed and poorly marked that it was not clear at what level all of it was classfied.

Then, in June, a group of government officials visited Trump’s attorneys to discuss something about those documents. Some documents remained with Trump, and they were being stored inappropriately. The investigators wrote a letter requesting that the documents be further secured, and a padlock was added somewhere. One of the investigators was Jay Bratt, chief of the counterintelligence and export control section at the Justice Department. That department looks at how and whether material might be shared outside the United States. It’s not necessarily espionage, as some are concluding.

It looks like correspondence between Trump and his lawyers could have been part of what Trump retained.

I think Asha Rangappa is wrong on this

It’s true that taking and holding classified documents in inappropriate ways can be a crime. I recall my horror one morning finding a classified document in a pile of unclassified at the office. I had forgotten to put it back in the safe the night before, but fortunately no roaming security guard had checked that pile. My office was in a restricted area, though, so it would have been an administrative violation. Mar-a-Lago is not a restricted area, and the security described seems inadequate to me, but the information is inadequate to a conclusion.

It could be that the simple possession and inadequate security of the documents is at issue, although the procedures necessary to justify an FBI unannounced search imply it was more than that.

We know of two investigations into Trump: the document investigation, and investigation of his role in January 6. I’m not convinced that the search was strictly about the documents. It’s possible that both were involved. And part of the justification of the search had to be that the documents were in danger of being lost to the investigation if timely action was not taken. I recall a point in the January 6 hearings when the idea struck me that some of the documents they were looking for could have been in the documents Trump took with him. I can’t recall the specifics of that enlightenment.

Why did Trump keep the documents? Deciphering Trump’s motivations is always difficult, and I don’t have any special insight here. But it was important to him to have them, rather than to destroy them.

Emptywheel has some suggestions:

Trump would be apt to take classified documents pertaining to the following topics:

* The transcript of the “perfect phone call” with Volodymyr Zelenskyy and other documents pertaining to his first impeachment

* Notes on his meetings with other foreign leaders, especially Vladimir Putin and Saudi royals, including Trump’s July 16, 2018 meeting with Putin in Helsinki

* Information surrounding the Jamal Khashoggi execution (and other materials that make Jared Kushner’s current ties to Mohammed bin Salman suspect)

* Policy discussions surrounding Qatar, which tie to other influence peddling investigations (for which Barrack asked specifically)

* Intelligence reports on Russian influence operations

* Details pertaining to security efforts in the lead-up to and during January 6

* Intelligence reports adjacent to Trump’s false claims of election fraud (for example, pertaining to Venezuelan spying)

* Highly sensitive NSA documents pertaining to a specific foreign country that Mike Ellis was trying to hoard as boxes were being packed in January 2021

For many if not most of these documents, if Trump were refusing to turn them over, it might amount to obstruction of known investigations or prosecutions — Barrack’s, Rudy’s, or Trump’s own, among others. Thus, refusing to turn them over, by itself, might constitute an additional crime, particularly if the stolen documents were particularly damning.

The FBI seems to have been looking for documents, and some reports are that they got them. So it’s something fairly specific and not voluminous.

Coda: We will now go through the “Actually, the President holds the ultimate classification authority” stage of social media. This is not untrue, but the way it is used is almost always misleading. (The clue is “actually.”) Even for the President, a certain amount of paperwork and justification is required to declassify classified material. And after noon, January 20, 2021, Trump no longer had that authority. If he had documents with classified markings at Mar-a-Lago, he was in violation of the regulations. Whether it was a crime depends on the level and type of classification.

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