The FBI search warrant and inventory of items seized leaves a lot of questions open, particularly since the supporting affidavits were not released.
The legal questions are not something I can address right now. I’m not that familiar with the classification system and the laws that pertain to it, so I’m going to have to rely on others until I can come up to speed. But we do know that Trump is asserting that the documents all were previously declassified by him while president even if the markings on the documents were not removed, that as president he arguably had an unfettered right to do so unrestricted by congressional statutes that might apply to others, that the potential violations of having such documents normally would not be prosecuted and were not prosecuted against Hillary Clinton. The legalities will have to work themselves out.
But what I do know about the legalities, based on the warrant and inventory, is that the DOJ used them as a hook for a much larger search of Trump’s records than merely trying to retrieve highly classified information. We know that from the scope of the warrant and inventory list.
First, the geographical scope of the search was not a specific location, it was almost all of the sprawling Mar-a-Lago except for guest rooms (emphasis added):
“The premises to be searched, 1100 S Ocean Blvd, Palm Beach, FL 33480, is further described as a resort, club, and residence located near the intersection of Southern Blvd and S Ocean Blvd. It is described as a mansion with approximately 58 bedrooms, 33 bathrooms, on a 17-acre estate. The locations to be searched include the “45 Office,” all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate. It does not include areas currently (i.e., at the time of the search) being occupied, rented, or used by third parties (such as Mar-a-Largo Members) and not otherwise used or available to be used by FPOTUS and his staff, such as private guest suites.”
Second, the scope of documents that could be searched and seized was similarly broad, and as Sean Davis and others have pointed out, included any and every record kept at Mar-a-Lago created during and as part of Trump’s presidency, regardless of subject matter or classification (emphasis added):
“All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071 , or 1519, including the following:a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; ord. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.”
Now you know why it took an estimated 30 FBI agents 9 hours to conduct the search and to package and remove the documents. We don’t currently know where exactly the FBI searched, but it was reported they brought a safe-cracker with them. It’s fair to assume they rifled through drawers and checked for storage places throughout Trump’s office and residence. Apparently the security cameras were not turned off, despite FBI request, so we may one day see at least some of what went on.
We also know how broad the search was from the breadth of materials removed, most of which (by box count) were not marked classified, and included likely personal items like photos. Most of the list consists of “boxes” but we don’t know how full the boxes were, some may have very little in them but were given separate boxes for tracking (e.g., the FBI would know which box related to which location).
Remember, these are just the materials removed. The scope of what was reviewed would have been much broader. I don’t know if the FBI took photos or notes and whether such information would have to be disclosed and turned over absent a criminal prosecution. So what was in the inventory is a subset of what was viewed by the FBI. It was intrusive far beyond the physical documents removed.
Here’s the inventory list (emphasis added, highlighting inventory items with no reference to classification):
1 – Executive Grant of Clemency re: Roger Jason Stone, Jr.lA – Info re: President of France2 – Leatherbound box of documents2A – Various classified/TS/SCI documents3 – Potential Presidential Record5 – Binder of photos6 – Binder of photos7 – Handwritten note8 – Box labeled A-19 – Box labeled A-1210 – Box Labeled A-1510A – Miscellaneous Secret Documents11 – Box Labeled A-1611A – Miscellanous Top Secret Documents12 – Box labeled A-1713 – Box labeled A-1813A – Miscellaneous Top Secret Documents14 – Box labeled A-2714-A – Miscellaneous Confidential Documents4 – Documents29 – Box labeled A-1430 – Box Labeled A-2631 – Box Labeled A-4332 – Box Labeled A-1333 – Box Labeled A-33
What was in the boxes? We don’t know.
After the release of the warrant, Andy McCarthy repeated his assessment that this is about January 6:
“I think the most remarkable thing about it is it lays out three statutory violations. And just to just to give a little background on this, to get a search warrant, you have to have probable cause that a crime has been committed, not a violation. It’s got to be a statutory crime, a penal crime. So they lay out three crimes that involve classified information, including the Espionage Act. And then this is attachment B, by the way, of the warrant for people who want to go look at it. But they they then go on to describe what you’re allowed to take, what what the court is allowing the agents to take, which is supposed to be evidence of these violations of law. And I get down to doubleheader. What does it B. And it says any government and or presidential records created by the created between the first day of Trump’s term and the last day of Trump’s term, that refers guy to a violation of the Presidential Records Act. It doesn’t relate to classified information. The Presidential Records Act. Is not a criminal law. It’s not a penal or criminal violation. So to my mind, this warrant allows them to take everything that is a presidential record, regardless of whether it is marked as classified information or not, which to my mind, not. You always have to police yourself falling in love with your own theory. But I think they’re trying to collect as much information as they can in hopes of getting the motherlode on on some January six related crime that they can bring against Trump. This warrant is clearly not limited to classified information.”
The affidavits supporting the warrants may shed light on why such a broad geographical and subject matter search was needed, but the scope of the warrant and material seized strongly suggest that securing highly sensitive documents that could damage national security was not the only goal. Until proven otherwise, that national defense objective appears to be a pretext for a wholesale rummaging through former President and likely candidate Trump’s files.
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