The Justice Department has released a redacted version of the affidavit it used to convince Judge Bruce E. Reinhart to authorize a search warrant on Mar-a-Lago, former President Donald Trump’s Florida residence.
The DOJ is investigating Trump over allegations that he mishandled documents related to national security; Trump maintains he declassified the documents as president. The DOJ is also looking into obstruction.
The affidavit, which is largely redacted, says that the government’s investigation concerns “the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.”
The affidavit says that the investigation began with a criminal referral made by the National Archives on Feb. 9, 2022, that alleged that classified documents it received from Trump were “intermingled” with other records. The FBI then opened the investigation, the DOJ wrote, to determine how documents with classified markings came to be stored at Mar-a-Lago, whether Mar-a-Lago was an authorized location to store such material, whether any such material remained there, and who may have “removed or retained” the documents. This is the first time the National Archives has made a criminal referral in relation to documents possessed by a former president.
The DOJ told the judge that “there is probable cause to believe that additional documents that contain classified [National Defense Information] or that are Presidential records subject to record retention requirements currently remain at [Mar-a-Lago].” It added that there was probable cause to believe “evidence of obstruction” would be found at Mar-a-Lago.
The government wrote in the affidavit that the boxes of material handed over to the National Archives included “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”
In the affidavit, almost the entire section under the heading “There is Probable Cause to Believe That Documents Containing Classified NDI and Presidential Records Remain at the Premises” is redacted. This section would include the rationale the DOJ used to convince Reinhart that classified documents related to national defense remained at Mar-a-Lago. One portion of that section, which is not redacted, says, “As described above, evidence of the SUBJECT OFFENSES has been stored in multiple locations at [Mar-a-Lago].”
Another highly redacted section concerns the DOJ’s understanding of how documents were transferred from the White House to Mar-a-Lago. A portion that is not redacted notes an article published by CBS Miami about “Moving Trucks Spotted at Mar-a-Lago” in January prior to the inauguration of President Joe Biden.
Trump responded to the release of the affidavit on his social network site Truth Social: “The political Hacks and Thugs had no right under the Presidential Records Act to storm Mar-a-Lago and steal everything in sight, including Passports and privileged documents. They even broke into my safe with a safecracker – Can you believe? This Act was created for a very good reason, and it works.”
He added, “We are right now living in a Lawless Country, that just so happens to be, also, a Failing Nation!”
In the affidavit, the government provided an argument that disputes Trump’s claim that he was authorized to possess the material because he declassified it. The Espionage Act, it says, forbids retaining defense information that could aid a foreign adversary but says nothing about the classification system. In a footnote, it says, “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 related to the national defense,’ but courts have construed it broadly.”
On Monday, two lawyers who served in the Reagan and George H. W. Bush administrations wrote in the Wall Street Journal that they believe the rights given to Trump under the Presidential Records Act outweigh the criminal statutes that the FBI used to justify the raid. The lawyers, and , say that the FBI had “no legally valid cause” for the warrant.
“Federal law gives Mr. Trump a right of access to [government records],” they write. “His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.”
Reinhart ruled the affidavit should be released after multiple news outlets asked for the affidavit to be made public, citing extremely high public interest in the unprecedented and highly politicized search of a former president’s home. The release of the affidavit prior to the filing of any charges is highly unusual for an investigation.
The federal magistrate judge said Monday that he is “satisfied” that the facts in the affidavit are “reliable.”
The DOJ justified the redactions on the basis that it needed to protect witnesses, law enforcement officials, and avoid compromising the remainder of the investigation. It had argued in court against the release of the affidavit. Trump called for the document to be released, but his lawyers did not argue for it to be made public in court.
On Friday, Reinhart also ordered that documents related to requests to redact the affidavit be made public.