Trump’s NARA-Lago Defenses Are Looking Shaky

Photo: Andrew Harnik / AP

On Friday, a heavily redacted version of the affidavit submitted in support of the application for a search warrant for Mar-a-Lago was unsealed. Predictably, allies of the former president and Trump himself claimed it showed there was no justification for the warrant, while legal analysts noted that even the unredacted portions were highly damaging to Trump’s case. 

Once again, it feels as if we are in alternate universes. In MAGA land, the search was nothing more than a political hit job organized by Trump’s foes, including President Biden and Attorney General Merrick Garland, to damage the leading GOP candidate for president in 2024. The Department of Justice, through its papers, argued the warrant and search necessary to recover top secret national defense information and other highly sensitive and classified information from someone who has no legal right to hold them and who stymied every prior attempt to recover them. There is very little room for any middle ground here.

Today, I focus on some of the legal arguments and facts that each side has actually presented so far. I walk through Trump’s position with respect to the documents and his actions, as set forth by his main attorney on this matter, Evan Corcoran, and then review what the DOJ has said in response so far.

“We’ve Been Cooperating.”

Included within the affidavit was a letter dated May 25, 2022 from Corcoran to Jay Blatt of the Justice Department’s Counterintelligence section. The letter was a real head scratcher, but it does provide key insight into how we got to the point where a search and seizure of documents held by a former president was necessary. Corcoran began that letter by asserting that Trump had cooperated fully with the initial request by the National Archives to return a total of 15 boxes of documents, which turned out to be only a subset of what he took with him to Mar-a-Lago. Corcoran described the back-and-forth as a “voluntary and open process” and represented that the “communications regarding the transfer of boxes to NARA were friendly, open, and straightforward.” This narrative was amplified by the former president, who complained that the warrant and search was unnecessary and claimed that “the government could have had whatever they wanted, if we had it” had they simply asked instead of going in to seize it.

But a prior letter from the National Archives to Corcoran on May 10, 2022, which a conservative aide to Trump bafflingly made public last week, belies this claim. It’s clear from that letter, written by acting archivist Debra Steidel Wall, that NARA was deeply concerned that Corcoran had sought twice to delay the disclosure of records to the FBI. Her ire was clear in her criticism about the lengthy back-and-forths already created by Trump’s team: “As you are no doubt aware, NARA had ongoing communications with the former representatives throughout 2021 about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January of 2022.” It was only after NARA received the boxes that it realized the kinds of top secret, highly classified documents that the former president actually had taken, and it immediately notified the FBI. She reminded Corcoran that the “urgency” of the matter required the involvement of federal authorities and that there was no precedent for a former president retaining records and asserting “executive privilege” against the administration seeking the documents and against which the privilege was apparently being invoked.

To obtain still more missing documents, ultimately a grand jury subpoena had to be issued and the DOJ’s top Counterintelligence official personally had to travel to Mar-a-Lago and speak with Trump and his attorneys in June, resulting in even more files being turned over. Trump’s attorneys prepared and signed a declaration saying that there were no more responsive documents. But a review of security footage and interviews of more witnesses led the Department to believe that this was untrue, resulting in a warrant and a search that recovered still more records, some of them top secret.

In short, rather than being “cooperative,” Trump and his lawyers were being obstructionist, so much so that on the warrant application the Department added Section 1519 obstruction as a crime that was being actively investigated, for which they believed evidence could be found at Mar-a-Lago.

“The movers did it.” 

Corcoran claimed in the May 25, 2022 letter that boxes had been “unknowingly included among the boxes brought to Mar-a-Lago by the movers” when Trump departed the White House. This perhaps was his way of setting up the idea that Trump did not “willfully” hold on to records that he had no right to. Rather, he might argue, Trump simply did not realize what he had taken.

This excuse is both counterfactual and irrelevant. According to NBC News who interviewed two sources familiar with the move out of the White House, Trump had personally set aside some documents to be taken with him to Mar-a-Lago and had instructed aides to pack up other documents and items. He didn’t leave much time for this, however, having never really absorbed the reality that he had lost the election and would need to move out. This resulted in aides hurriedly stuffing the documents along with personal effects into banker boxes. “It was a chaotic exit,” one source told NBC. “Everyone piled everything — staff, the White House movers — into the moving trucks. When they got to Mar-a-Lago, they piled everything there in this storage room, except for things like the first lady’s clothes. Everything in a box went there.”

Even if we grant the notion that the president is something of a magpie, causing him instinctively to collect and hoard random documents, including some that are top secret and highly sensitive national defense information, that doesn’t explain why after being given several opportunities to return these documents, he simply refused. The only one who could explain why he took but then stubbornly held on to some of the nation’s most closely guarded secrets for over a year, even in the face of a grand jury subpoena, is Trump himself. Tellingly, as Greg Sargent of The Washington Post noted, Trump has never said anything publicly about his motives that might explain this. Under these circumstances it would be unwise to assume that he took and kept some of the crown jewels of our national intelligence simply because he wanted to, and that there was not some other nefarious benefit or reason behind it.

“The president can declassify documents.” 

In the same May 25, 2022 letter, Corcoran argued that a particular law relating to classified material— one for which Trump himself pressed to have penalties increased in the wake of the Hillary Clinton email investigation—simply did not apply to the president because he was not an “officer…of the United States” under the meaning of the statute. (As I said, the letter is a head scratcher.) Corcoran also asserted that the former president had “absolute authority to declassify documents” and that Trump’s “actions involving classified documents are not subject to criminal sanction.” 

Once again, this argument is both counterfactual and irrelevant. First, the letter curiously never actually asserts that Trump ever declassified any of the documents, only that he enjoyed an “unfettered” ability to do so. The notion that Trump earlier had provided a standing order that anything he took to the Residence at the White House was automatically deemed declassified was first floated well after the FBI search was conducted. But no aide to the former president has ever heard of such a standing order, nor would it make any sense with respect to top secret documents. After all, under this alleged system, even top secret documents would have lost all protection and could be then viewed by anyone thereafter simply because Trump had moved them to the White House residence. Moreover, with respect to signal intelligence and nuclear weapons documents, under law even the president doesn’t have the right to declassify them unilaterally.

The argument around “declassification” is in any event entirely irrelevant. The Justice Department’s affidavit made clear that it was investigating three crimes, but none of them turns on whether documents were ever classified or declassified. Importantly, section 793(e) of the Espionage Act pertains to individuals with “unauthorized” possession, access or control of written materials involving national defense. As the Justice Department noted in the affidavit:

18 U.S.C. § 793(e) does not use the term “classified information,” but rather criminalizes the unlawful retention of “information relating to the national defense.” The statute does not define “information relating to the national defense,” but courts have construed it broadly… [as] “referring to the military and naval establishments and the related activities of national preparedness.” In addition, the information must be “closely held” by the U.S. government.

Section 2071, also cited by the Department, refers to anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys, or attempts to do so, or, with intent to do so takes and carries away any record…” Like 793(e), there is no requirement that the record be “classified,” and therefore even if a document is “declassified” it is still a record that should not be willfully and unlawfully carried away, no matter by whom. Finally, Section 1519, also cited by the Department, is about obstructing and impeding an investigation. It has nothing to do with whether a document is classified or not.

Corcoran was wrong to focus on the specific question of “classified” or “declassified” in his letter, and it probably led the Department cleverly to avoid the question altogether in its affidavit and criminal investigation. With this argument disposed of, Trump is left only arguing that this is a political witch-hunt. But this argument is looking shaky, too. The affidavit made clear that the over 180 documents recovered from Mar-a-Lago, through a year and a half of diligent efforts by NARA and the Justice Department, included HCS (Human intelligence Control System), ORCAN (Original Control), NOFORN (No Foreign Nationals) and SI (Special Intelligence) documents. These are by definition documents of the utmost importance to our national defense and intelligence. Perhaps this explains why Trump’s allies in Congress were eerily quiet over the weekend, with no one seriously willing to come to the former president’s defense on the Sunday talk shows.

The document categories not only demonstrate the justification for the search but also suggest that what was later seized from Mar-a-Lago by the FBI might be of equal or greater importance. After all, the final boxes of documents taken contained those that Trump had decided after all this back-and-forth to keep in his possession. They were the documents his lawyers decided to lie about. They probably never imagined that the Justice Department would go in with a warrant to get them.