On Friday, the FBI released a severely redacted version of the 38-page affidavit submitted to Magistrate Judge Bruce Reinhart in support of the application to search former President Donald Trump’s Mar-a-Lago home in Palm Beach, Florida. The redactions conceal much of the text, including the parts that purportedly would explain why the FBI believed that a crime was being committed.
As I wrote here two weeks ago, there is every reason to believe that the search warrant is evidence of the FBI’s dogged pursuit of a way to charge Trump with a crime, any crime, in order to prevent him from being eligible for the presidency again.
A little more background is necessary.
In April, the New York Times reported that President Joe Biden said he wanted Trump to be indicted for the Jan. 6, 2021, riot at the Capitol. This was, of course, contrary to Biden’s campaign statements that claimed he would not direct the Department of Justice to investigate Trump.
And there’s more. According to a letter published by the acting national archivist, Debra Steidel Wall, Biden delegated to her the authority to rule on any claims of executive privilege related to the documents that Trump handed over to the National Archives.
That, alone, is extraordinary. The validity of claims of executive privilege would normally be decided by the White House counsel’s office or the Justice Department’s Office of Legal Counsel, or both. These offices’ denial or confirmation of privilege can be challenged in court. Delegation to the archivist is entirely improper.
As I wrote two weeks ago, the ghost of Lavrentiy Beria, Stalin’s chief of the secret police, has haunted the FBI since 2015 when the bureau and the CIA began investigating Trump and his campaign because of the Russia hoax orchestrated by the Democratic presidential nominee Hillary Clinton and her campaign. Beria is reported to have said, “Show me the man and I’ll find you the crime.” Trump is assumed to be guilty of something, so the FBI is pursuing him relentlessly.
The House Jan. 6 Committee has been holding hearings on the Capitol riot. It is aiming to refer Trump to the Justice Department for criminal indictment on those grounds. It hopes to see Trump convicted of the crime of insurrection against the United States, which, under the 14th Amendment, bars anyone who has engaged in rebellion or insurrection against the United States from holding an elected federal office.
The FBI hopes to use Section 2071 of the U.S. Criminal Code — which is a statute cited in both the affidavit and the search warrant itself — to accomplish the same. Section 2071 prohibits concealing or destroying federal documents and stipulates, among its penalties, that anyone convicted under it is disqualified from holding federal office. Section 2071 is patently unconstitutional because Congress cannot, by passing a law, change or add to the constitutional criteria for eligibility for the presidency.
The redacted affidavit released Friday says in its first paragraph:
The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022.
The FBI affidavit says that Trump’s lawyers had, before the search, released 15 boxes of documents to the National Archives, which contained, among other unrelated papers, a number of “highly classified documents,” some top secret, including sensitive compartmented information such as intelligence information gathered by U.S. spies.
While the key paragraphs of the affidavit are redacted — those numbered 70 to 76, which state the warrant’s probable-cause claim — the FBI affidavit also reveals that the government believed more classified documents were being held at Mar-a-Lago in addition to the 15 boxes previously surrendered to the National Archives.
The affidavit says:
Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
The FBI says that additional top secret and other classified documents were seized in its raid and that these records were not stored properly. Government regulations state at length how classified documents, including top secret documents, must be segregated and stored in safes that only a limited number of people can access.
Several commentators say that the classified documents found by the FBI in its search create enough evidence to indict Trump. Nonsense.
No president is directly responsible for how documents are stored. If any indictments arise from this search, they would only be directed toward Trump staffers. Perhaps that is what the FBI wants to do: gain leverage over Trump’s staff in order to charge the former president with a crime.
The redacted affidavit raises more questions than it answers.
The FBI agent who signed the affidavit — his name was, of course, redacted — said in the affidavit that he was trained in “counterintelligence and espionage” at the FBI Academy. Is he part of the same group of FBI counterintelligence agents who conducted the infamous “Crossfire Hurricane” investigation of Trump and his campaign?
Was he one of the agents who participated in former FBI Director Robert Mueller’s investigation into Trump, which failed to indict Trump on anything connected to the “Steele dossier” hoax?
Was he one of the agents whose information (or signature) was on the falsified Foreign Intelligence Surveillance Court applications for warrants to surveil Trump campaign officials such as the foreign-policy adviser, Carter Page? Was he one of the agents who reported to disgraced anti-Trump FBI agent Peter Strzok on the Trump investigation? Were the agents who conducted the raid part of that same team?
If the answer to any of these questions is “yes,” why are Attorney General Merrick Garland and FBI Director Christopher Wray trusting him — and them — with this investigation?
We have seen several reports that there was chaos in the White House after Trump’s loss to Biden. Trump certainly didn’t expect to lose. In the flurry to pack up Trump’s papers, it would be expected that some classified documents would be packed among others. Any president would have hundreds or thousands of classified documents among his papers, but that doesn’t excuse his staff from not storing them in safes as regulations require.
Why, if the FBI believed that there were more classified documents stored improperly at Mar-a-Lago, didn’t Garland and Wray simply go to court to enforce earlier subpoenas that covered all or part of the documents or merely issue a new subpoena rather than conduct a high-profile raid on Trump’s home?
The only answer to that question is that the Democrats are terrified that Trump will run again in 2024.
Biden, Garland, and Wray have been shown the man, and they are intent on showing, in turn, that he committed a crime.
There may be a need to redact small parts of the FBI affidavit in order to protect the names of confidential informants, but the vast majority of it needs to be made public. Only then can we decide for ourselves the truth of what it states.
The title of a Wall Street Journal editorial about the affidavit states, “The Mar-a-Lago Affidavit: Is That All There Is?” Obviously, it isn’t.