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Mar-a-Lago affidavit: Are Trump’s declassified documents irrelevant?

A redacted affidavit released by the DOJ sheds light on the former president’s handling of national security material

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Pages from the affidavit by the FBI in support of obtaining a search warrant for former President Donald Trump’s Mar-a-Lago estate are photographed Friday, Aug. 26, 2022. U.S. Magistrate Judge Bruce Reinhart ordered the Justice Department to make public a redacted version of the affidavit it relied on when federal agents searched Trump’s estate to look for classified documents.

Jon Elswick, Associated Press

The Department of Justice has completed its review of documents seized from former President Donald Trump’s Mar-a-Lago residence. This review, conducted to determine if any materials are protected by attorney-client privilege, identified “a limited set of materials,” according to The Associated Press.

Friday, a redacted version of an FBI agent’s affidavit, outlining the case against Trump in support of an application for a warrant, was released that clarified some facts surrounding the events. Here is what we know so far:

A timeline of the investigation

  • In early May 2021, the United States National Archives and Records Administration started requesting missing records from Trump, which are the property of the public per presidential record law.
  • NARA continued to make requests until late December 2021 when they were informed 12 boxes were ready for retrieval at Trump’s residence in Mar-a-Lago.
  • On Jan. 18, NARA received 15 boxes of records containing, among other things, highly classified documents, according to the affidavit.
  • On Feb. 9, NARA made the referral to the DOJ, stating that “a lot of classified records” were found in the 15 boxes returned, and “of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly (sic) identified,” per The New York Times.

Did Trump have the power to declassify documents?

The former president’s legal team makes the argument that the president has “absolute authority to declassify documents,” per the affidavit. Kash Patel, a high-ranking White House official, alleged that Trump “declassified whole sets of documents,” including those related to Hilary Clinton’s email investigation and the Russia investigation.

Patel was alluding to a tweet Trump published on Oct. 6, which said “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!”

Mark Meadows, former White House chief of staff, later testified in court that “the President indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents.”

Glen Gerstell, former general counsel of the National Security Agency, indicated that since the Truman administration there has been a detailed system in place for the handling of classified documents, and the process of declassification, per MSNBC.

Is declassification relevant to the investigation?

Though the former president’s legal team has made the case that sensitive documents identified by NARA and the DOJ were not classified, the three laws cited in the affidavit do not depend on the documents’ classification.

One driving force behind the FBI seizure was the possible violation of law involving the “destruction, alteration or falsification of records in federal investigations.” A letter from Acting U.S. Archivist Debra Steidel Wall to Trump’s attorney Evan Corcoran alleged that the former president could have impeded or obstructed the DOJ’s investigation by delaying the release of these documents.

Additionally, the affidavit cites the Espionage Act, which criminalizes the “unlawful retention of information relating to the national defense.” Because it was put in place before the classification system, the issue of classification may not apply in this case.

In a letter to a congressional committee regarding the documents at Mar-a-Lago, former U.S. Archivist David Ferriero cited instances during Trump’s presidency where he tore up presidential records that White House staff had to tape back together to send to NARA, though some were not recovered.

Most likely, the investigation will not hinge on whether or not the recovered documents were classified, but on whether sensitive national security information was mishandled, and if the investigation was obstructed.

What to watch

Federal Judge Aileen Cannon is planning a hearing this week on Trump’s motion for an independent “special master” to review the documents, but the DOJ announced Monday that agents have already finished their reading of the material, per The New York Times.

According to The Associated Press, intelligence agencies are eager to review the boxes of classified information to assess potential damage to their agents on the ground and national security.