It’s Way Worse Than We’d Ever Imagined

Image courtesy of Salon

When Donald Trump left the White House in January of 2021, it was widely reported that he’d taken many items with him that, on their face, appeared to be government property. At the time, these boxes were evidence of “Donald being Donald,” once again flouting the norms, this time around presidential records and gift items. 

The national archivists were not pleased. They diligently and methodically set about attempting to retrieve the items he’d improperly taken to Mar-a-Lago. When they finally recovered some 15 boxes, they were alarmed to discover that it was more than just random records and Trump keepsakes like personal letters from Kim Jun-un. In the boxes they’d found documents that were actually classified, raising the stakes considerably over what Trump actually had removed. The National Archives made a criminal referral to the Justice Department based on that discovery.

From there, the Department of Justice convened a grand jury to investigate the removal of sensitive government documents by the former administration. This didn’t raise very much interest from the media at the time. After all, the Presidential Records Act really had no teeth to it from an enforcement standpoint, and it didn’t seem at all likely that indictments would ever be issued around what seemed like procedural missteps. So it came as a big shock when the next major piece of news around these documents was a full FBI search of Trump’s Florida property pursuant to a duly issued warrant, a move that set off howls of protests among GOP leaders, threats to the lives of agents and Justice Department officials from Trump’s base, and apparently a lone shooter who took it upon himself to attack the Cincinnati field office of the FBI and was killed in the attempt. 

So what on earth happened? Let’s rewind a few months and review.

The Investigation Has Been Building in Secret for Months

The zero to 60 feeling of events makes more sense once we better understand the history of months-long efforts by the Justice Department to obtain the documents. 

Investigators began interviewing Trump’s staff and former officials who had moved documents to Mar-a-Lago. Then, a subpoena for additional documents, which were still somehow remaining with the former president, was issued from the federal grand jury this spring. Justice Department officials, including the head of the Department’s Counterintelligence section, had traveled in June to Mar-a-Lago to inquire about the missing documents. There they met with Trump briefly and then with his attorneys more extensively, who ultimately turned over more documents with some marked “top secret” or higher. This had not been reported earlier, so no one except the Justice Department and Trump and his advisors knew this had occurred. 

After the June meeting, the Justice Department subpoenaed the Trump Organization for surveillance footage that showed who had regular access to the basement storage area where materials were purportedly located. The Justice Department reportedly began to suspect that Trump’s lawyers had not been entirely truthful about whether there were any documents still left unreturned. 

Something Big Triggered the Warrant and Search

Experts had pointed out that it was highly unlikely that the FBI and the Justice Department would undertake the extraordinary step of searching the home of a former president—one who is the de facto leader of one of the U.S. major political parties—without a compelling reason to do so immediately. Because warrants require information to be not stale in order to prevent law enforcement overreach, some kind of new information must have come into the hands of authorities that there were still highly classified documents still left unrecovered at Mar-a-Lago. Yesterday, it was reported that someone on the inside of the Trump team had provided that new, key information 

Also yesterday, The New York Times reported that allies close to Trump had advised GOP leaders to ease off on their attacks of the Justice Department. “Some senior Republicans have been warned by allies of Mr. Trump not to continue to be aggressive in criticizing the Justice Department and the FBI over the matter because it is possible that more damaging information related to the search will become public.” In short, there was another big shoe to drop, and Trump’s allies knew it.

Yesterday afternoon, Attorney General Merrick Garland stepped to the microphone, took ownership of the decision to authorize the search, offered to unseal the warrant and inventory list given Trump’s public statements regarding the search, and defended the integrity and work of his department and the agents who put themselves on the front lines every day to defend the country.

Did Trump Actually Take Nuclear Documents with Him?

That’s when The Washington Post dropped the shoe about which Trump’s allies had been warning. According to sources familiar with the investigation, the items that were being sought within Mar-a-Lago included documents relating to nuclear weapons, which are among the most highly classified type of information imaginable. 

The sources did not offer additional details about the information the FBI agents conducting the search were seeking, including whether it involved weapons belonging to the United States or some other nation. But the very idea that Trump might be in personal possession of such documents is almost unfathomable, and it certainly ought to silence Garland’s critics.

Before we get too ahead of ourselves, a few things to point out. Even after the warrant and the inventory list was unsealed, we don’t know yet whether nuclear weapons related documents were actually retrieved as part of the search. We only have reports from anonymous sources that the search included those documents. We can presume, however, that the affidavits in support of searching for those documents were enough to convince a federal magistrate to agree that there was probable cause to believe they were there. In such an explosive matter, with the stakes as high as they could possibly be, it seems highly likely that the Justice Department was confident in its assessment. 

As expected, the categories of documents, out of concern for national security, were not specific about what particular document were retrieved, only that there were documents of various classified statuses, including top secret documents that were only supposed to be viewed in a secured government facility. The warrant made clear that it was intended to aid in the investigation of several crimes, including violations of the Espionage Act, obstruction, and unlawful removal of government materials.

Why Would Trump Ever Do Such a Thing?

As crazy as all this sounds, we are now at a point where we need to ask some very important questions around why the FBI believed the former president took top secret documents relating to nuclear weapons with him to Mar-a-Lago. From a motive standpoint, Trump himself has little to gain and a lot to lose personally if he simply wanted to have these records in his possession. If they in fact exist, that likely means there is some other reason for why he took them in the first place and then dodged a subpoena for their return, even having his lawyers go so far as to be less than truthful—some might say obstructionist—with Justice Department officials.

One disturbing possibility is that Trump hoped to cash in on the secrets somehow. There are many unanswered questions around, for example, the Trump White House’s attempts in 2019 to assist the Saudi government in developing nuclear technology, why the Saudis recently funded Jared Kushner’s private equity company to the tune of $2 billion against the advice of their own analysts, and why Saudi Arabia is now bankrolling Trump with golf tournaments occurring on his properties. There may be reasons for all this having nothing to do with selling state secrets, but given the question of why Trump had these nuclear weapons materials in the first place, these connections and this money trail cannot be lightly dismissed.

Another possibility is that Trump instinctively knew that such top secret documents might be worth something someday to someone, but he never thought the archivists would be so persistent in trying to get them all back, let alone that a grand jury would be convened to look into the matter. If that in fact was what happened, Trump would have found himself in a very big legal pickle: He couldn’t return the classified documents because that would blow up in his face the minute that story came out, and he’d be facing legal liability; at the same time, he couldn’t hold onto the documents without defying the subpoena and risking contempt. Perhaps he chose instead to deflect the matter, having his attorneys turn over some documents while saying that there was nothing left to produce and hoping that the FBI would be satisfied with that. (This is a common technique among lawyers hoping to hide damaging evidence. “We did the search, this is what we found.” It’s hard to prove otherwise.)

A few final points. First, the right-wing narrative about “planted evidence” makes a lot more sense given what we now know more about what the FBI was looking for. If they found nuclear weapons documents, the only conceivable defense Trump would have is that he never took them and that they planted those on him. We are long past the point where he could plausibly claim he took something so important without knowing it was wrong. 

Second, if Trump is hoping to argue that the top secret nuclear weapons documents were not highly classified because, well, he said so as president before he departed the White House, this isn’t necessarily going to work. “Restricted Data” as defined by the Atomic Energy Act, which includes atomic weapons design information for example, can only be declassified by the designated officials within the Department of Energy, and for good reason. Those materials are so sensitive that their handling must receive the highest levels of care by the government, and not even the president has the power to change that.

What once seemed a routine, administrative effort to recover presidential records has now become a full-scale crisis and national security scandal of the highest order. Remarkably, Attorney General Merrick Garland was able to conduct this entire investigation without a single leak until the former president made the search of his property public.