By Clark Cunningham
The Justice Department on Aug. 26, 2022, released an affidavit written by an FBI special agent that was used to obtain a court order for the FBI’s search of former President Donald Trump’s Florida estate for documents related to national defense and other government records.
Large portions of the affidavit were blocked from public view, leaving many questions about details of the investigation. Nonetheless, what is visible shows the FBI had solid evidence that Trump took documents critical to national security to his Mar-a-Lago estate.
Florida federal Judge Bruce Reinhart had ordered on Aug. 22, 2022, that the affidavit – which typically contains key details about an investigation to justify a search warrant – be made public following a lawsuit from media organizations and other groups. But Reinhart also said in his order that he would allow the Justice Department to first redact some of the affidavit’s most critical information, like “the identities of witnesses, law enforcement agents, and uncharged parties … the investigation’s strategy, direction, scope, sources, and methods, and … grand jury information.”
It’s the latest development in the legal conflict over government documents, including national security material, that Trump has kept in violation of the law, according to the affidavit. The document shows that there is what the law calls “probable cause” to believe that Trump committed various crimes, including violation of the Espionage Act.
We asked Georgia State University legal scholar and search warrant expert Clark Cunningham to answer five key questions to help explain this new development.
1. What is a search warrant affidavit?
Let’s start with a search warrant, which is a court order authorizing government agents to enter property without an owner’s permission to search for evidence of a crime. The warrant further authorizes agents to seize and take away such evidence if they find it.
In order to get a search warrant, the government must provide the court one or more statements made under oath that explain why the government believes a crime has been committed, establishing that there is sufficient justification for issuing the warrant. If the statement is written, it is called an affidavit. This is why the first sentence of the unsealed affidavit has the words “being duly sworn” following the blacked-out name of the agent making the statement.
2. What’s the most important takeway from this affidavit?
Given that a lot of the information on the affidavit has been blacked out, probably the most telling new information is that the FBI agent says that a review of Mar-a-Lago documents the government had already obtained by grand jury subpoena earlier this year were marked in a way that would clearly indicate national security was at risk.
3. How does the affidavit show national security was at risk?
The affidavit reveals that some of the documents stored at Mar-a-Lago were marked HCS, indicating they were intelligence derived from clandestine human sources – or what we would think of as secret intelligence information provided by undercover agents or sources within foreign governments. If the identity of agents or sources is revealed, their intelligence value is compromised and, even, their lives may be at risk.
There were also documents marked FISA, meaning they were collected under the Foreign Intelligence Surveillance Act, documents marked NOFORN, meaning that the information cannot be released in any form to a foreign government, as well as documents marked SI, meaning they were derived from monitoring foreign governments’ communications.
4. Is it common for a court to unseal an affidavit while an investigation is underway?
Because a search warrant affidavit usually lays out the government’s case and identifies witnesses, it is very rare for a search warrant affidavit to be unsealed if there is an ongoing criminal investigation. That’s why there were so many redactions in the version of the affidavit that was released. If such an affidavit is unsealed, it’s most often later in the process, when criminal charges are actually filed.
Chandan Khanna/AFP via Getty Images
5. What does this say about the investigation and the seriousness of Trump’s alleged crimes?
The information revealed in the affidavit indicates that the country’s national security and the safety of intelligence agents were possibly put at severe risk when national defense documents were apparently stored in a room at a resort in Florida.
It’s a little confusing – there’s been much talk in the media about classified information. Improper storing of classified information is a crime, but that is not what is being investigated here. A much more serious crime under the Espionage Act is at stake.
Even someone like a former president who initially had lawful possession of national defense information commits a felony by retaining that information after the government demands its return. Trump can not hang on to national defense documents even if, while president, he “declassified” such documents, as he claims he did.
It’s been documented that a Chinese spy penetrated Mar-a-Lago while Trump was president. It is an unsecured location. If a foreign spy got into that room and walked out with information disclosing U.S. undercover agents around the world, or how we have been monitoring and collecting classified information around the world, I see the potential harm as staggering.
Clark D. Cunningham is W. Lee Burge Chair in Law & Ethics and Director of the National Institute for Teaching Ethics & Professionalism at Georgia State University.
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Tunnz says
Blah,Blah,Blah,
Trumps corrupt? Record economy, Gas prices,, minority unemployment all time low but you’ll get him ! By Hook or crook. Please just admit it. This Blows ! Both houses are democratic and Trumps not president
Bill C. says
Blah, blah, blah…still trying to defend the indefensible. Economy, gas prices and minority unemployment have nothing to do with Trump or his improper removal and storage of government information. He has committed multiple crime and you want to absolve him? Scoffing at laws has always been his calling card. When is he to be held accountable? I’ll answer that for you: Now.
Flatsflyer says
Why haven’t the FBI “raided” Bedminister, Trump Towe and every other property he owns. Based on what was found at his beach club begs the question of what would be found at other locations. The FBI should also check the offices and residences of Junior, Eric, Jared and Ivonka. They have all lied numerous times, and Rhee is absolutely no reason to trust any of them.
Deka says
Don’t stop looking at those homes you just mentioned, the FBI should look at ever registered Republican”s home, you never know where Trump “hid” those double secrete docs. You know, those documents that were supposed to be in the safe that the FBI cracked open and found nothing. No wonder they had to look into Trumps wife’s wardrobe and especially her under garment draws, you never know where Trump would hide them. At this point, every registered Republican is a risk.
Nephew of Uncle Sam says
Sounds like Deka was right there along side the FBI, he knows so much about what happened there that morning. Wonder where he got that pertinent information?
Deka says
No, I was not there, however I read the news accounts.
jake says
Nothing but a political stunt by the corrupt DOJ, the FBI, and President Bozo.
Laurel says
Jake: I understand now that Trump took home somewhere around 41 boxes of materials, by including the 15 he gave up earlier this year, that belong to the government.
Now, he did this for a reason, so explain to me what that reason was. I’ve asked several times, but no Trump supporter has ever answered. Also explain how his action was a “political ploy.” Did he do this for more TV exposure?
I’m waiting for good explanations, and waiting, and waiting.
Robjr says
You will keep waiting.
These maga’s are the 21st century Moonies or worse.
The only regurgitate what they are told.
And act as they are told.
“Gimme some money.” They have two quarters to their name and they send knuckle head one of them.
“The FBI is the enemy” Then some idiot takes a nail gun to a FBI office and tries and shoot a nail through bullet proof plastic”
They all could be cast in a remake of Night of the Living Dead
Deka says
This story is just amazing and so full of politics. when Hillary Clinton had the secrete, double secrete , classified docs (the same type they claim Trump had) on an unsecured personal computer that the FBI acknowledges was hacked, because she is a democrat, that is just considered sloppy, however, when Trump has documents in his home that a foreign spy ONCE entered Mar a Largo years ago, throw Trump in jail. Yup, seems normal to me.
Dude says
Actually, she didn’t have anything stored on the server. And was investigated. Why do Republicans simply HAVE to lie about everything? Times up, the kids see right through the GOP fascists. Sarah Palin just lost a seat the Republicans have held for 40+ years to a democrat. In supposedly “deep red” Alaska. Be very afraid GOP. Your criminal conman leader is going to jail, and the free world will be safer.
Jacqui says
Mean orange tweeter didn’t steal anything. I can’t stand him, but even I see this for what it is. Sitting president using any means to keep the orange man from running for office again. You don’t find it odd that the same feds that ran this also ran j6, russia collusion, etc? As much as I can’t stand him, this was plain wrong.
Laurel says
Jacqui: Okay, explain to me why Trump took classified documents to his home when he is no longer in office. I’m waiting.
Nephew of Uncle Sam says
Someone should open a comedy club here in Palm Coast, so many stand up comedians still worshiping the Orange Messiah. We could call it Mar-a-Lardo’s.
Laurel says
Seriously, Mar-a-Lago would not be hard to infiltrate, even with Secret Service around. It’s accessible by foot, boat, road and swimming. Heck, even by parachute! Trump was clearly up to something and got turned in. He had some use for these documents and we won’t know his intentions until later. Actually, I think the FBI should not release a damn thing until trial.
Seems like some of the supporters here prefer KBG agent Putin, as Trump did, over our own intelligence agencies. Fascinating how people can be so easily mislead. What do y’all think Trump’s intentions were?
James says
What I’m wondering is whether we’ve hit the iceberg yet, or is there still time to change course.
Shuffle board… or should I say, pickle board… anyone?
joe says
Can’t take credit for this as I saw it elsewhere online, but damned if it doesn’t ask a good question:
“Can we at least all agree that this experiment of handing the world’s most powerful office to a dumb TV host & shady real estate developer with no government knowledge, 6 bankruptcies, 68 charges of sexual assault, 7,300 lawsuits and $1,000,000,000 in debt did not go well at all?”
The answer seems pretty obvious to all but the cult members.
Alphonse Abonte says
The FBI will say “Ooops” but the Trump Haters have already digested it all. It’s like telling the jury to disregard a statement. Once it’s heard, that’s it.
D says
He committed a crime. And was caught. WTF are you talking about?
Alphonse Abonte says
Former Washington Field Office Special Agent in Charge Tim Thibault was reportedly escorted out of the Bureau’s headquarters on Friday, amid whistleblower allegations that he showed political bias in his handling of politically sensitive investigations.
The Washington Times reported eyewitness accounts that “Mr. Thibault was seen exiting the bureau’s elevator last Friday escorted by two or three ‘headquarters-looking types.'”
B section says
Trump is a criminal. So are insurrectionist MAGATs. How does the old saying go, “Lock Him Up!”?