The Redacted Affidavit: More Evidence v. Trump
We always knew that whatever the information about the Mar-a-Lago search that would be released by a federal court, it would not help Donald Trump.
We know that not just because Judge Bruce Reinhart already concluded, based on seeing the unredacted affidavit used to obtain the search warrant, that there was probable cause to believe three federal crimes had been committed and that evidence of those crimes was at Mar-a-Lago, Mr. Trump’s Florida club-residence.
Mr. Trump knows the answers to the most important unanswered questions: What material did he take from the White House, why did he take it, what had he done with it, and what was he planning to do with it? There is nothing that prevented him for over a year from publicly answering those questions; he surely has not remained silent because the answers are exculpatory.
Above all, the redacted affidavit (and an accompanying brief explaining the redactions), which was released on Friday, reveals more evidence of a righteous criminal case related to protecting information vital to our nation’s security.
I can assure you, based on my experience as the general counsel of the F.B.I., that although there may be too much information deemed sensitive at the lowest level of classification, that was never the case with top-secret material.
Indeed, the redacted affidavit details some of what was found in a preliminary review of material earlier returned by Mr. Trump at the repeated requests of National Archives officials, including “184 unique documents bearing classification markings, including 67 documents marked as confidential, 92 documents marked as secret and 25 documents marked as top secret.” An agent who reviewed that earlier material saw documents marked with “the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN and SI.”
The markings for top-secret and sensitive compartmented information indicate the highest level of security we have. Those levels protect what is rightly described as the crown jewel of the national security community.
Especially with information classified at that level, the government doesn’t get to pick and choose to defend the nation’s top secrets based on politics — it doesn’t matter if the person in question is a Democrat or Republican, a former president, a secretary of state or Edward Snowden. These documents belong to the government, and their having been taken away posed a clear risk to our national security.
The release of the redacted affidavit provides further clarity on why Attorney General Merrick Garland took the extraordinary step of approving the search of certain locations at Mar-a-Lago. The short version is that nothing else had worked and top-secret information was at stake.
In any normal case, in my experience, with a responsible, upstanding citizen who may have inadvertently taken government documents, a simple voluntary request for their return would ordinarily suffice. If that failed, a grand jury subpoena would typically do the trick. In this case, neither approach worked. The attorney general had to resort to the most intrusive method of obtaining the return of the documents, a search warrant approved by a federal court.
We already had some indications as to why the search warrant was required. The head of the National Archives and Records Administration wrote Mr. Trump’s team a letter in May that makes clear that for months the federal archives had beseeched the former president to return the documents and that a partial return, of 15 boxes, included over 700 pages of classified documents. And we knew that Mr. Trump opposed the archives releasing the information to the Justice Department.
The redacted affidavit provides additional evidence that the government exhausted every other avenue to get the rest of the documents. It offers a few more details about that back and forth with the Trump team. Within the Justice Department, there seems to have been concern that the Trump team had not been entirely forthright about having returned all the records and concern about interference with witnesses in the case, contradicting Mr. Trump’s current claims that he has fully cooperated with the department.
The redacted affidavit is further proof that Mr. Trump’s flouting of criminal statutes persisted for a long time and gives every appearance of being intentional.
The redacted affidavit also provides reason to believe that the Justice Department acted quickly once it was made aware of the nature of the information that may have remained at Mar-a-Lago. There is no question that some will say it should have acted sooner, given the grave risk to national security posed by the existence of highly classified documents at a place as insecure as a beach resort that had already been the target of suspected foreign infiltration. And supporters of Mr. Trump will continue to contend the Justice Department acted precipitously and that he was fully cooperating — but as the disclosures on Friday demonstrate, the facts increasingly contradict these claims.
That debate is a sideshow. The key questions that remain include what precisely is the full scope of what Mr. Trump took from the White House, why he took the documents and did not return them all and what he was doing with them all this time.
The redacted affidavit does not answer those questions, and the usually loquacious Mr. Trump has not addressed them. But we do now know that the Justice Department is one step closer to being able to hold Mr. Trump to account for his actions, if it so chooses.
Under Mr. Garland’s leadership, only the facts, law and precedent will matter. Mr. Trump’s penchant for hyperbole and spin to his base will be ineffective in a forum where the rule of law governs.
Andrew Weissmann (@AWeissmann_), a former Justice Department prosecutor and senior prosecutor in Robert Mueller’s special counsel investigation, is a professor of practice at the New York University School of Law and the author of “Where Law Ends: Inside the Mueller Investigation.”
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