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WASHINGTON — A newly released FBI document is helping to clarify the contours of an investigation into classified material at former President Donald Trump’s Florida estate. But many questions remain, especially because half of the affidavit outlining the FBI’s rationale for searching the property was blacked out.
This document, which the FBI provided so it could obtain a search warrant for Trump’s winter home, provides new details about the volume and top-secret nature of what was recovered from Mar-a-Lago in January. It shows how Justice Department officials raised concerns months before the raid that closely guarded state secrets were illegally stored, and before they returned in August with a court-approved warrant and found even more classified records at the property.
All of this raises questions about whether a crime was committed and, if so, by whom. Answers may not come quickly.
A department official this month described the investigation as in its early stages, suggesting there is more work to be done as investigators review the documents they removed and continue to interview witnesses. Intelligence officials will simultaneously assess any national security risk potentially created by the leaked documents.
At the very least, the investigation is a political distraction for Trump as he lays the groundwork for a potential presidential bid.
Then there is the obvious legal hazard.
A look at what’s next:
What is the FBI investigating?
None of the government’s legal documents released so far have named Trump — or anyone else — as a potential target of the probe. But the warrant and accompanying affidavit indicate the investigation is active and criminal in nature.
The department investigates potential violations of multiple laws, including a statute of the Espionage Act that governs the collection, transfer or loss of national defense information. Other laws deal with the mutilation and removal of records, and the destruction, alteration, or falsification of records in federal investigations.
The investigation began quietly with a referral from the National Archives and Records Administration, which removed 15 boxes of records from Mar-a-Lago in January — 14 of which were found to contain classified information. In all, the FBI’s affidavit said, officials found 184 documents bearing classification markings, including some believed to contain information from highly sensitive human sources. Several had what appeared to be Trump’s handwritten notes, the affidavit said.
The FBI spent months investigating how the documents got from the White House to Mar-a-Lago, whether there might be any other classified records at the property. The bureau also sought to identify the person or persons “who may have removed or retained classified information without authorization and/or in an unauthorized space,” the affidavit said.
So far, the FBI has interviewed “a significant number of civilian witnesses,” according to a Justice Department summary released Friday, and is seeking “additional information” from them. The FBI has not identified all “potential criminal associates, nor has it recovered all evidence relevant to its investigation.”
Will anyone be charged?
It’s hard to say at this stage. To obtain a search warrant, federal agents must convince a judge that there is probable cause to believe there is evidence of a crime at the location they want to search.
But search warrants are not automatic precursors to prosecution and certainly do not signal that charges are imminent.
The laws in question are crimes that carry jail time.
A law involving the mishandling of national defense information was used in recent years in the prosecution of a government contractor who kept reams of sensitive records at his home in Maryland (he was sentenced to nine years in prison) and an employee of the National Security Agency who disclosed classified information to a person who was not authorized to receive it (the case is pending).
Attorney General Merrick Garland has not commented on the matter. Asked last month about Trump in the context of a separate investigation into the Jan. 6, 2021, riot at the Capitol, he replied that “no one is above the law.”
What has Trump argued?
Trump, angered by the investigation into the documents, issued a statement Friday saying he and his team had cooperated with the Justice Department and that his representatives had “GIVE THEM A LOT.”
This contradicts the portrayal of the Trump team in the affidavit and the fact that the FBI search occurred despite warnings months earlier that the documents were not being stored properly and that there was no safe place for them anywhere at Mar-a-Lago .
A letter released as part of the affidavit previews the arguments Trump’s legal team intends to make in the investigation. A May 25 letter from attorney M. Evan Corcoran to Jay Bratt, the Justice Department’s counterintelligence chief, sets out a robust, expansive view of the executive branch.
Corcoran claims it’s a “fundamental principle” that the president has absolute authority to declassify documents — though he doesn’t actually say Trump did. He also said the underlying law governing the mishandling of classified information does not apply to the president.
The statute he cited in the letter is not among those the Justice Department is basing its investigation on, according to the affidavit. And in a footnote in the affidavit, an FBI agent noted that the National Defense Information Act does not use the term classified information.
What did the Biden administration say?
The White House has been particularly guarded about the investigation, with officials repeatedly saying they would let the Justice Department do its job.
Director of National Intelligence Avril Haynes notified Congress on Friday that her office would conduct a classified review of documents found during the search. Intelligence officials will also conduct an assessment of any potential national security risk, Haynes wrote to the leaders of two House committees who requested it.
In the letter, Haynes said any intelligence assessment would be “conducted in a manner that does not unduly interfere” with the criminal investigation.
President Joe Biden appeared on Friday to scoff at the idea that Trump might just declassify all the documents he has, telling reporters: “I just want you to know that I declassified everything to the world. I’m the president, I can do it – come on!”
He then said he would “let the Justice Department take care of that.”
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