Breaking Down The Facts And Fiction Of The FBI Search Warrant For Mar-A-Lago

Since Monday when the FBI executed a court authorized search warrant, grounded upon probable cause that evidence of a crime would be found at the “Orange Mafia” Don’s home in exile at Mar-a-Lago, there has been a fire hose of news reports trying to fill in all the facts.

There also has been a fire hose of disinformation and lies spewing from the “Orange Mafia” Don, which has been parroted and amplified by elected Republicans and the right-wing media complex, the purpose of which is to muddy the waters by creating confusion and doubt among the American people. As Donald Trump told his cult followers many times at his Nuremberg-style rallies “you shouldn’t believe anyone but me” (a basic tenant of of personality cults).

So let’s start from the beginning, with Trump’s failed coup d’état on January 6, 2021. He never planned for what would happen if his criminal insurrection against the U.S. government actually failed. This is why there wasn’t the normal transition process between outgoing and incoming administrations.

We were first asked to believe that Trump’s aides simply gathered up everything lying around the White House and threw it all into boxes over the next two weeks before the moving trucks arrived at Noon on January 20, 2021. This is NOT how this is done by any stretch of the imagination. This is an admission that the Trump administration cavalierly violated the Presidential Records Act, among other laws.

This excuse is bullshit. We now know that some of what Trump took with him in exile to his home in Mar-a-Lago contained some of the highest designation of classified documents, i.e., “TS/SCI documents” (which stands for top-secret and sensitive compartmented information) that were part of “special access programs,” known as SAP. The Washington Post reports that some of these documents involve nuclear secrets. FBI searched Trump’s home to look for nuclear documents and other items, sources say.

“TS/SCI documents” that are part of “special access programs,” are handled with a strict chain of custody protocols and would not have been simply lying around in Trump’s in-box or on his desk.  Members of Congress who have a security clearance for these sensitive documents can view them “eyes only” in a “SCIF,” Sensitive Compartmented Information Facility. During his presidency, the government built a SCIF for Trump’s use while he was at Mar-a-Lago.

It is well known that Trump did not read presidential daily briefings, and in any event, would dismiss the intelligence agencies’ briefings because his “gut instincts” knew better than the intelligence agencies. Which means that Trump would not have read or understood the value of highly classified documents to our foreign adversaries, or even our allies.

All of which raises the prospect that Trump had someone inside the Department of Defense and/or the Department of Energy (which has jurisdicition over nuclear programs) who did know the value of these highly classified documents and who carefully curated “TS/SCI documents” that were part of “special access programs,” based upon their value to our foreign adversaries, or even our allies. This would help to explain why this Department of Justice investigation is pursuant to the Espionage Act. This is not just about the mishandling of highly classified documents for the National Archives, but suggests a conspiracy to sell secrets to a foreign adversary, or even an ally.

Next in the timeline of events:

An Official from the National Archives and Records Administration, known as NARA, contacted Trump’s team in May 2021 after realizing that several important documents weren’t handed over before Trump left the White House. In hopes of locating the missing items, NARA lawyer Gary Stern reached out to someone who served in the White House counsel’s office under Trump, who was the point of contact for record-keeping matters.

Trump’s team and lawyers worked with NARA to voluntarily turn over some documents, but slow-walked their response. (It is not clear to me why so much deference was shown to citizen Trump. Anyone else in possession of classified documents would have been arrested in short order.  Just ask Sandy Berger or Gen. Michael Petraeus.)

By the Fall of 2021, NARA had grown frustrated with the slow pace of document turnover after several months of conversations with the Trump team. Stern reaches out to another Trump attorney to intervene. The archivist asks about several boxes of records that were apparently taken to Mar-a-Lago during Trump’s relocation to Florida. NARA still hasn’t received the White House documents they are searching for.

In January 2022, NARA retrieved 15 boxes of Trump White House records from Mar-a-Lago. NARA says in a statement that some of the records it received at the end of Trump’s administration were “torn up by former President Trump,” and that White House officials had to tape them back together. Not all the torn-up documents were reconstructed, NARA says. The boxes contained some materials that were part of “special access programs,” known as SAP, which is a classification that includes protocols to significantly limit who would have access to the information.

In February 2022, NARA asked the Justice Department to investigate Trump’s handling of White House records and whether he violated the Presidential Records Act and other laws related to classified information. NARA informed the Justice Department that some of the documents retrieved from Mar-a-Lago included classified material. NARA also tells the department that, despite being warned it was illegal, Trump tore up documents while he was president, and that senior officials in the Trump administration did not properly preserve their social media messages, draft tweets and deleted tweets.

In April 2022, the Department of Justice launched a criminal probe into Trump’s mishandling of classified documents. Around this time, FBI agents quietly interview Trump aides at Mar-a-Lago about the handling of presidential records as part of their widening investigation.

In May 2022, a criminal grand jury issued a subpoena to NARA for access to the classified documents it retrieved from Mar-a-Lago.

In June 2022, a criminal grand jury issued a subpoena to Trump’s team at  his home in exile at Mar-a-Lago for some of the sensitive national security documents on the premises, and the DOJ take away the subpoenaed documents. Feds removed documents from Mar-a-Lago in June with grand jury subpoena. Four investigators, including a top Justice Department counterintelligence official, visit Mar-a-Lago seeking more information about classified material that had been taken to Florida. The four investigators meet with Trump’s attorneys and look around the basement room where the documents are being stored. Trump briefly stops by the meeting to say hello to the officials, but he does not answer any questions.

Trump’s attorneys also receive a letter from federal investigators, asking them to further secure the room where documents are being stored. In response, Trump aides add a padlock to the room in the basement of Mar-a-Lago.

The New York Times reports, Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned:

At least one lawyer for former President Donald J. Trump signed a written statement in June asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government, four people with knowledge of the document said.

The written declaration was made after a visit on June 3 to Mar-a-Lago by Jay I. Bratt, the top counterintelligence official in the Justice Department’s national security division.

The existence of the signed declaration, which has not previously been reported, is a possible indication that Mr. Trump or his team were not fully forthcoming with federal investigators about the material. And it could help explain why a potential violation of a criminal statute related to obstruction was cited by the department as one basis for seeking the warrant used to carry out the daylong search of the former president’s home on Monday, an extraordinary step that generated political shock waves.

It also helps to further explain the sequence of events that prompted the Justice Department’s decision to conduct the search after months in which it had tried to resolve the matter through discussions with Mr. Trump and his team.

* * *

In an effort to resolve the dispute, Mr. Bratt and other officials visited Mar-a-Lago in Palm Beach, Fla., in early June, briefly meeting Mr. Trump while they were there. Two of Mr. Trump’s lawyers, M. Evan Corcoran and Christina Bobb [former on-air host at OANN and who set up a PAC to pay for the Arizona “Fraudit”] spoke with Mr. Bratt and a small number of investigators he traveled with, people briefed on the meeting said.

Mr. Corcoran and Ms. Bobb showed Mr. Bratt and his team boxes holding material Mr. Trump had taken from the White House that were being kept in a storage area, the people said.

According to two people briefed on the visit, Mr. Bratt and his team left with additional material marked classified, and around that time also obtained the written declaration from a Trump lawyer attesting that all the material marked classified in the boxes had been turned over.

A short time after the meeting, according to people briefed on it, Mr. Bratt sent Mr. Corcoran an email telling him to get a more secure padlock for the room. Mr. Trump’s team complied.

This appears to be key:

The Justice Department also subpoenaed surveillance footage from Mar-a-Lago recorded over a 60-day period, including views from outside the storage room. According to a person briefed on the matter, the footage showed that, after one instance in which Justice Department officials were in contact with Mr. Trump’s team, boxes were moved in and out of the room.

Something Mr. Bratt observed on the surveillance video must have led to the search warrant this week.

That activity prompted concern among investigators about the handling of the material. It is not clear when precisely the footage was from during the lengthy back-and-forth between Justice Department officials and Mr. Trump’s advisers, or whether the subpoena to Mr. Trump seeking additional documents had already been issued.

[In] recent months, investigators were in contact with roughly half a dozen of Mr. Trump’s current aides who had knowledge of how the documents that had been kept at Mar-a-Lago were handled, two people briefed on the approaches said. At least one witness provided the investigators with information that led them to want to further press Mr. Trump for material, according to a person familiar with the inquiry. [An insider informant.]

This explains why the obstruction of justice statute was listed in the warrant.

We are next asked to believe that Trump had a “standing order” that any documents he took with him to Mar-a-Lago were declassified. Why? So he could share the nation’s most sensitive secrets with his Mar-a-Lago club members? Ths is quite literally insane, and incredibly reckless. And it means that Donald Trump is America’s top national security risk.

The New York Times reports Trump claims he declassified all the documents at Mar-a-Lago. Even if that’s true, it probably doesn’t matter.:

Kash Patel, [a late Trump administration appointee to the Department of Defense], and a major supporter of Mr. Trump, asserted that Mr. Trump had deemed those files declassified shortly before leaving office, but that the markings had not been removed from them.

This guy would be among my list of likely suspects for how nuclear secrets, “TS/SCI documents” that were part of “special access programs” wound up at Mar-a-Lago. He would have known the value of those documents to our foreign adversaries, or even our allies, in a conspiracy to sell secrets to a foreign adversary, or even an ally.

Mr. Trump has offered no details, but if he is saying he made a blanket, oral invocation that all the files he took to Mar-a-Lago were unclassified, without making any formal, written record, that would be difficult to prove or disprove. Even if there is no evidence that Mr. Trump followed normal procedures for declassifying certain types of information, his lawyers could argue that he was not constitutionally bound to obey such rules.

Note: Graeme Wood explains, Not Even the President Can Declassify Nuclear Secrets: “The Atomic Energy Acts of 1946 and 1954 produced an even stranger category of classified knowledge. Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material.”

But in any case, such a claim would not settle the matter. For one thing, two of the laws that a search warrant executed at Mar-a-Lago this week referred to — Sections 1519 and 2071 of Title 18 of the United States Code — make the taking or concealment of government records a crime regardless of whether they had anything to do with national security.

For another, laws against taking or hoarding material with restricted national-security information, which generally carry heavier penalties than theft of ordinary documents, do not always line up with whether the files are technically classified.

That is because some criminal laws enacted by Congress to protect certain national-security information operate separately from the executive branch’s system of classifying documents — created by presidents using executive orders — as “confidential,” “secret” or “top secret.”

In particular, a third law the warrant references was Section 793, which carries a penalty of up to 10 years in prison per offense. The Espionage Act makes no reference to whether a document has been deemed classified. Instead, it makes it a crime to retain, without authorization, documents related to the national defense that could be used to harm the United States or aid a foreign adversary.

Prosecutors could argue that a document meets that act’s standard regardless of whether Mr. Trump had pronounced it unclassified short before leaving office; by the same token, defense lawyers could argue that it fell short of that standard regardless of how it had been marked.

As Philip Klein says at the National Review, Trump’s Explanation of Document Declassification Doesn’t Pass the Smell:

Whatever anybody thinks about the FBI’s actions at Mar-a-Lago, can we all agree that Donald Trump’s claim — that there was a “standing order” that said whatever he brought to his Florida residence was automatically declassified — is patently absurd?

Consider all the times that Trump was at Mar-a-Lago during his presidency and worked out of there. Are we to believe that each and every document he brought with him there, no matter how sensitive, was immediately declassified and thus widely available for people to see?

If this ridiculous policy were actually even true, it would raise a different set of serious questions about Trump’s recklessness in handling sensitive documents.

We are next asked to believe Trump’s classic mob boss excuse, “I was framed I tell ya!” Trump recklessly, and without evidence asserted that the FBI planted evidence to frame him (always playing the persecuted victim). This reckless statement was unquestionally parroted by Republican members of Congress and amplified by the right-wing propaganda media without evidence.

Trump also suggested without evidence that the FBI “planted” the documents because “nobody” was allowed to watch, but then it was learned that not only were two of his lawyers present during the search, but he watched the entire search on CCTV.Trump lawyer blows up his “planted” evidence claims: Trump watched “the whole thing” on CCTV:

Former President Donald Trump and his lawyers have baselessly peddled a conspiracy theory that the FBI may have “planted” evidenceduring its raid on Mar-a-Lago because “nobody” was allowed to watch. But Trump’s lawyer admitted on Thursday that Trump and his family watched the “whole thing” go down from New York through CCTV footage from the resort.

Trump and his attorneys, Christina Bobb and Alina Habba, immediately claimed that the FBI may have “planted” damning evidence during the Mar-a-Lago raid on Monday without any proof, citing only the fact that Bobb was prevented from observing the search as is standard in such FBI operations. Trump, Bobb and Habba in numerous statements speculated about what the FBI may have done while “nobody” was watching.

Bobb acknowledged on Thursday that while surveillance cameras at Mar-a-Lago were shut off for a “very short period of time” while FBI agents spoke to Trump’s legal team, the former president and his family were able to view the entire raid through surveillance video.

“I think the folks in New York — President Trump and his family — they probably had a better view than I did. Because they had the CCTV, they were able to watch,” Bobb told the right-wing outlet Real America’s Voice.

Bobb said that she was busy speaking with investigators during the search but the Trump family saw “the whole thing.”

Trump’s attorney tonight reveals that Trump and his family were watching the FBI conduct the search from NY inside Mar-a-Lago on the security camera feed. pic.twitter.com/PU84lmLOxj

— Ron Filipkowski (@RonFilipkowski) August 12, 2022

Note: Christina Bobb and Alina Habba need to be facing bar disciplinary proceedings for disbarment for lying to the FBI in June, and for lying about the the FBI search in August, and facilitating Trump’s fraudulent claims.

Just as there is 60 days of surveiilance video the FBI has from the “secure” room in which the classified documents were stored, there is also surveiilance video of the FBI executing a valid search warrant. To put this lie to rest, release the tape! Enough of this bullshit maligning of the FBI for simply doing its job from Trump, his lawyers, Republican politicians and the right-wing media complex.

Trump then resorted to his go-to move, playing the race card: “Whatabouta the Black guy? Why are you always picking on this white guy?”

The Washington Post reports, The story behind Trump’s and Fox News’s specious ‘What about Obama’ parallel:

On few previous occasions has the Trump movement so embraced Stephen K. Bannon’s strategy (paraphrased here) of flooding the zone with shit as after the FBI executed a search warrant at Mar-a-Lago. Prominent Republicans and conservative pundits have pushed suggestions that President Biden himself ordered the search, that the FBI planted evidence, and posited all manner of other theories — all without even the slightest hints of evidence to back up these suggestions.

But when it comes to the sheer embrace of innuendo and a concerted lack of logical consistency, it’s difficult to top the latest entry. And it’s now led to a highly unusual rebuttal from the National Archives.

In recent days, Donald Trump and conservative media has debuted a new whataboutism defense: What about Obama?

Several Fox News shows on Wednesday picked up on a New York Post column that noted Barack Obama at the end of his presidency had 30 million records shipped to Chicago for his presidential library.

“They shipped 30 million pages of sensitive and possibly classified materials to Chicago, and, by the way, he has yet to return any of it to the National Archives. Not one page,” Fox host Sean Hannity intoned. “So is his house about to get raided?”

Former Trump campaign legal adviser Harmeet Dhillon added on Jesse Watters’s show: “Are there SWAT teams descending on Chicago to get those documents? No. And so the double standard and triple standard here is very apparent.”

Watters added: “Now, Obama has got boxes of stuff in Chicago. … But Trump is not allowed to have a love letter from little rocket man [Kim Jong Un]?”

Trump and Donald Trump Jr. were also on the case, promoting the New York Post’s story on social media. And the elder Trump was at it again both Thursday and Friday, drawing a more direct comparison between his lot and what Obama supposedly did.

[As] was reported back in late 2016, the Obama team was transferring the records to Chicago through the National Archives, which legally owns the documents once a president leaves office. Once the documents ultimately reached a warehouse in Chicago, the Obama Foundation was then due to pay the National Archives and Record Administration to digitize the documents. The lengthiness of that process aside, there isn’t the faintest hint of legal violations — nor does the New York Post’s story suggest as much.

The faintest hint of evidence, of course, is currently surplus to requirements on many portions of the right. Hannity stated conspiratorially that “they shipped 30 million pages of sensitive and possibly classified materials to Chicago,” without noting that the “they” included the National Archives.

The implication is that perhaps Obama, too, is surreptitiously obscuring his sensitive documents — but without being searched. But there’s no evidence he has hidden anything from the Archives or that he didn’t go through the processes required to share and protect those documents once they leave Washington.

And on Friday, after Trump raised the issue again, the Archives sought to put an end to the charade. It issued a statement outlining these facts and assuring that it has custody of classified documents:

The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA). NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration.

In other words, there’s no parallel.

More: National Archives counters Trump’s baseless claims about Obama records, and Obama did not keep classified documents, the National Archives confirms.

Literally everything Donald Trump, his incompetent lawyers, and his sycophant MAGA supporters in Congress have said on right-wing media are lies – they know they are lies – and yet they continue to propagate the lies to gin up outrage among the MAGA/QAnon cult crazy base of the Republican Party.

Finally there was the gamesmanship over the subpoena and inventory of items taken by the FBI from Mar-a-Lago. The subpoena and inventory of items was given to Trump’s lawyers who were on the premises and dealing with the FBI.

Read the unsealed DOJ documents underpinning search of Trump’s Mar-a-Lago.

It was Trump himself who released information abut the FBI executing a searching warrant at his home in exile in Mar-a-Lago.

Then he would not release the subpoena and property receipt for several days while he grifted off his MAGA/QAnon cult for money, and maligned the FBI with his lies.

This prompted Attorney General Merrick Garland to call Trump’s bluff and put the honus back on him to release the subpoena and property receipt. Garland Calls Trump’s Bluff as Justice Department Moves to Unseal Warrant:

In so doing, the attorney general alluded to the fact that Mr. Trump was free to release the documents himself, but has chosen not to do so. “Copies of both the warrant and the F.B.I. property receipt were provided on the day of the search to the former president’s counsel, who was on site during the search,” Mr. Garland said.

Moving quickly, a federal magistrate judge — Bruce E. Reinhart, who has also come under attack by Trump supporters — set a deadline of 3 p.m. on Friday for the department to relay any objection from Mr. Trump about unsealing the documents. In his brief remarks, Mr. Garland said he decided to make a public statement because Mr. Trump had confirmed the action and because of the “substantial public interest in this matter.”

Mr. Garland did not propose unsealing the department’s application for the search warrant and any accompanying affidavit from a criminal investigator explaining why there was probable cause to believe the search would uncover evidence of a crime.

Those materials would lay out in starker detail not just what criminal investigators think they know — for example, whether they believed Mr. Trump was illegally hoarding government documents, whether some of those files were classified and where at Mar-a-Lago they were being stored — but how the investigators knew those things.

In short, the application would make clear whether the Justice Department is talking to one or more confidential sources in the Trump camp who are providing information.

It is not surprising that the Justice Department is not proposing unsealing that particularly sensitive material because it would be careful to protect its sources. But at the same time, that is what Mr. Trump’s supporters are most eager to learn.

Senator Lindsey Graham, the South Carolina Republican who is a [Trump fluffer], released a statement on Thursday afternoon saying that he wanted to know the basis for the search — alluding to “the deep mistrust of the F.B.I. and D.O.J.” among the former president’s supporters.

Riiiight, just because all the MAGA/QAnon cult members are fucking nuts the FBI is supposed to release the Affidavit which includes sources and methods, and would jeopardize its criminal investigation. The MAGA/QAnon cult just wants to know who the insider informant to the FBI is, so they can put his/her life in jeopardy.

It was Trump who leaked the Mar-a-Lago search warrant and property receipt simultaneously to the Wall Street Journal, Fox News and Breitbart, main players in right-wing media complex.

In the past hour, the WSJ, Fox News and Breitbart have all have reported that they have obtained the Mar-a-Lago search warrant and property receipt. pic.twitter.com/xgscwxD1Dq

— Brian Stelter (@brianstelter) August 12, 2022

So now we have a pissing match over the supporting affidavit that Trump sycophants want for nefarious purposes, and the surveillance video of the FBI executing the search warrant at Mar-a-Lago that would refute reckless and false claims of Trump an his incompetent lawyers that the FBI was planting evidence. The grand jury can always subpoena the video tape. The DOJ holds all the legal leverage. The actions of Trump and his incompetent lawyers since the execution of the search warrant are additional facts in support of the obstruction of justice count in the search warrant.

Criminal charges are in the hands of the criminal grand jury handling this Espionage Act case.

UPDATE:  Now Trump has run out of cards to play, he is falling back on attorney client privilege and executive privilege. Trump calls on FBI to return “privileged” documents seized at Mar-a-Lago:

Trump on Sunday called on the FBI to return seized documents that are allegedly protected by attorney-client and executive privileges.

Fox News reported on Saturday that the FBI seized boxes covered by attorney-client privilege and possibly executive privilege, according to unnamed sources familiar with the investigation.

Trump and his associates have frequently sought to claim executive privilege to prevent the release of documents or information.

First, the incumbent president decides what documents are subject to executive privilege, as the federal courts have ruled. An ex-president has no power to assert executive privllege.

Second, any attorney-client legal documents are subject to the crime-fraud exception to waive the priviliege.  If there are actually any attorney-client legal documents, they will be run through an independent screening committee at the DOJ, because the DOJ only wants admissible evidence at trial. Documents that are genuinely attorney-client privileged and not waived by the crime-fraud exception will be returned.

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