By Clark D. Cunningham
The FBI recovered confidential and top-secret items from Mar-a-Lago during its Aug. 8, 2022, search of the estate – pointing to former President Donald Trump’s potential violation of several federal laws.
A Florida federal judge – the same one who issued the warrant to search Trump’s estate – ordered on Aug. 12, 2022, that the document be made public – along with an inventory of items seized during the FBI’s raid.
The unsealed documents seem to indicate that the U.S. Department of Justice believes Trump may have violated the Espionage Act, as well as other criminal laws relating to the handling of public records.
Clark Cunningham, Georgia State University legal scholar and an expert on search warrants, explains how this new information connects to possible criminal wrongdoing by the former president.
Drew Angerer/Getty Images
These laws were potentially violated
The released warrant authorized the FBI to search for evidence that Trump has violated three key laws.
First, there is the Espionage Act, which applies to possession of information related to the national defense that could be used to harm the U.S. or aid a foreign adversary. This law applies to someone who, like Trump, initially had lawful possession of such information but who, after their time in office ended, refuses to return it to the government.
Then, there is obstruction of justice, which includes concealing documents to obstruct a federal investigation.
Finally, there is the Public Records statute, which prohibits someone entrusted with a public record from “concealing” that document.
What’s in the inventory
The inventory of items taken by the FBI from Mar-a-Lago apparently shows Trump may have violated these laws in a number of different ways.
The inventory shows that FBI agents seized documents designated “SCI,” which refers to Sensitive Compartmented Information. In simple terms, this is classified information that comes from intelligence sources – and must be handled only within secured government locations.
Because this kind of sensitive information can reveal both methods and procedures for collecting intelligence – including the identity of undercover agents in hostile countries – the presence of such materials at Mar-a-Lago may be a violation of the Espionage Act, if Trump was willfully retaining this information after the government demanded its return.
The inventory also refers to numerous “top-secret” documents. Federal law defines this as “information or material which requires the highest degree of protection” and could threaten national security. The FBI’s discovery of top-secret documents could corroborate The Washington Post’s report that the FBI search included classified documents related to nuclear weapons. The FBI also seized documents designated “secret” and “confidential.”
All told, the FBI removed 27 boxes and other individually listed items, including photographs.
Trump received a federal subpoena in the spring of 2022 to return documents taken from the White House.
So if the inventory includes items that should have been returned in response to the subpoena, but were not, that can be evidence of obstruction of justice and concealment of public records.
A defense that might not hold
Trump has suggested that the FBI may have planted evidence during its search.
However, federal rules about search warrants provide strong protection against such a possibility, by requiring that a government officer present when a search warrant is carried out “prepare and verify an inventory” of property seized in the presence of “another officer” and “the person from whom, or from whose premises, the property was taken.”
The officer must then “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken,” according to these rules.
U.S. Attorney General Merrick Garland said during his Aug. 11 statement about the search that these procedures were followed. “Copies of both the warrant and the FBI property receipt were provided on the day of the search to the former president’s counsel, who was on site during the search,” Garland said.
The federal rules say that if the owner of the premises is not present, another “credible person” can verify the inventory – in this case, the unsealed records confirm that Trump’s attorney, Christine Bobbs, acknowledged receipt of the inventory at 6:19 p.m. on Aug. 8, 2022.
Stringer/AFP via Getty Images
Limited precedent for unsealing these types of documents
It’s relatively rare for a judge to unseal court records of a search warrant, unless an actual criminal prosecution is underway and the record is needed in court.
One other notable exception occurred in December 2016 when a New York federal court issued an unsealing order for the Oct. 30, 2016, search warrant requested by former FBI Director James Comey to investigate emails improperly stored by former Secretary of State Hillary Clinton.
Unlike the Justice Department’s Aug. 12, 2022, order regarding Trump, the unsealing of the Clinton-related warrant included the underlying affidavit. An affidavit is a statement made under oath to the issuing judge to obtain the warrant.
Disclosure of these documents provided the basis for a firestorm of criticism by Clinton allies that there was insufficient evidence to support the FBI’s warrant application.
As explained in a judge’s October 2016 order to make the search warrant for the Clinton investigation public, warrant application proceedings “have historically been highly secretive in nature and closed to the press and public.” In that case, the judge said that in deciding whether to unseal, courts must consider both the government’s interest in not compromising an ongoing criminal investigation and the need to protect the privacy and reputation of the person subject to the search who may never be charged with a crime.
However, for the Mar-a-Lago warrant, both the government and Trump, the subject of the search, consented to the unsealing.
True to his reputation for careful judgment, Garland went by the book in response to an avalanche of attacks from Trump allies demanding transparency about the search. The warrant and inventory have now been released for all to see through a proper court procedure – which Trump publicly endorsed.
Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Clark D. Cunningham is W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State University.
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Bell says
If this political mess was not so sad and pathetic, it would be funny. Let’s see the affidavit not some silly order signed by a magistrate that was friends with Epstein, et Al or an”inventory” that is as vague and broad as the search warrant. Lots of speculation with little or no knowledge or facts. A waste of time and energy.
Wallingford says
Although it is the final decisions of the Attorney General and the FBI Director, staff members, I understand, are pushing for indictment under the Espionage Act since Mr. Trump was in possession of SCI materials before the distraction of a 2024 campaign.
MikeM says
Beware the red wave in November because all that Sleepy Joe and his minions did was unite and galvanize the middle and the right. Sooner or later the pendulum always swings the other way.
Careful what you dems wish for.
Charles says
Who’s Donald going to blame this on? He does no wrong it is always someone elses fault. When things aren’t going his way he threatens our own law enforcement, if someone gets hurt because of that he needs to be held accountable.
Maybe one day he will finally tell the truth, but I doubt it. He has been lying through life way to go long.
Michael Cocchiola says
45 has shown a lifetime of ignoring the law. He now seems to think the MAGA vote that so egregiously elevated him to the presidency has given him lifetime dictatorial powers to do whatever he wants by simply waving his hands over his illegal actions like some divine blessing.
45 is dangerous to America and to our allies. He is most likely guilty of espionage, and perhaps treason if he provided national secrets to Russia, Saudi Arabia, China or North Korea in return for favors like money laundering, loans or permission to build signature hotels and golf courses.
45 must be stopped. I thank Merrick Garland, as should all Americans, for pulling the emergency brake to stop the runaway 45-train.
joe says
Promise made – Promise NOT kept!
https://twitter.com/i/status/1559212852334022656
Bell says
Exactly. This article is interesting.
https://www.foxnews.com/opinion/merrick-garland-case-against-trump-dangerously-problematic
Must be a lot of money in beating this to death before many, if any, facts are known.
Sherry says
Right On Michael! People essentially don’t change their way of being in this world. . . once a dangerous, corrupt, liar always a dangerous, corrupt, liar! In trump’s case I would add “treasonous” , “sexist” and “racist”!
Laurel says
So Trump left the White House and took a few souvenirs, like maybe a sword from the Arabs or a love letter from Kim Jong Un, or maybe a tape from Putin, but explain to me why he took boxes of any kind of files home with him. Late night reading? Line a bird cage? Fix the souls of his shoes? Classified files, that belong to the American People. Best question: what was his intent?
This man is a serious threat to our constitution and our country, and if you cannot see that with all the transparency of his narcissistic rhetoric, then I don’t know what’s wrong with your thought process.
Ellen says
All those in the Cult GOP party that are too afraid to say in public they don’t support Trumps action against our law enforcement or the laws of our country are just as much as fault as Trump. Who can respect a politician when they are backing someone who is destroying our government so they can be a dictator of our country? Th’ey all lack courage and intrigrity and don’t deserve anyone’s vote.
Sherry says
For anyone who thinks that trump holding onto classified government documents is a “nothingburger”. . . imagine if Hillary had done one tenth of what trump has. You would be screaming bloody murder! It’s amazing how millions of normally reasonable people can continue to look away from crimes committed by trump and company. Millions have been totally duped, first by FOX, and then by completely corrupt trump and his minions.
The factual truth will set you free! VOTE! VOTE! VOTE!
DaleL says
By “minions” are you referring to Chistopher Wray, the director of the FBI? You do know that he is a life long Republican, don’t you? He was appointed in 2017 by none other than Donald Trump and was confirmed by every Republican senator.
Donald Trump complains that there is a “deep state” out to get him. It is rather similar to how Al Capone and other gangsters complain about law enforcement being out to get them. Trump has been shady and loose with the facts long before he was elected president.
As for the “red wave”, fivethirtyeight now predicts that the Democrats may gain Senate seats. It does look like Republicans will retake the House, but even that is shifting a bit. I personally hope that in 2024, both parties have candidates for President who are not old enough to collect SS.
DaleL says
Well Hillary did inappropriately use a private email server for some of her official work as Secretary of State. It did have some 30,000+ emails on it. There were only a few hundred of those which contained classified information. Only 3 were clearly marked “classified”. Not great for Hillary, but not the equivalent to boxes and boxes of government documents stored at a resort and secured at best by a padlock. Especially since we now know that the government had made repeated attempts to get Trump and his lawyers to return the documents.
I want Trump to go away. He doesn’t need to go to jail; he could just go live in his hotel in Dubai.
rich Santomassino says
Keep on “wishing on a star”, as we know from past prognosticators of elections have found out: the results are often not what was predicted (See 2016 election results).
Trump is and has been a criminal for a long time. Possession of SCI, top secret and classified docs AFTER your lawyer signed off that you were not in possession of ANY of the docs is a serious crime. As I have learned from many of you trumpers: “I could stand on Fifth Ave. and shoot someone” and you idjits would still vote for him.
rich Santomassino says
Right on Sherry!
Alphonse Abonte says
Not knowing the truth make you ignorant, not wanting to know the truth make you a Democrat……….
Alphonse Abonte says
The era of Donald Trump has brought a great many changes to the political world since 2016, and the year 2023 will be no different –
the dynasties of Bush, Cheney, McCain, and Clinton will hold no quarter in either statewide or national office.
With the defeat of Liz Cheney in the Wyoming Republican congressional primary on Tuesday, the franchise dynasties that have
dominated the U.S. political landscape going all the way back to the 1970s came to a crashing halt.
Alphonse Abonte says
They’re after Trump. They’re so old and decrepit that they can’t win an election against Trump that they will do anything. To me it’s just sad that as a country we have to wait for these old geezers to die off before we can take control of our country. They need caskets made of $100 bills for their corpses and hope that people speak fondly of them in death. Me personally I’d rather run down their kids, confiscate their inheritance and give it back to the American people since it’s all money from inside trading, crooked deals, etc.
Laurel says
AA: Wow, you do have a very strange way of thinking. You admire a man who publicly mocked a man with palsy. Who talks about himself all the time. Who name calls people like a bad, little boy. What a guy. That, and the comments you made above, makes me suspect that maybe you should consider coming back to Earth and turning off the wild ass shows you’re watching. Try talking to others outside your circle. Something is amiss.
Bell says
While I agree in substance with your thoughts I probably would accomplish the goal a bit differently.
Trump will straighten them out in court. Last I checked presidents have the ability to declassify information. Do not believe that means a stamp on the document would be removed, however, it would be declassified. He will run if he wants to do so. They cannot stop him try as they may. Their desperation is showing.
Congress members definitely need term limits. I don’t really care if they live or die so long as they leave. Agree there are a bunch of old senile loons on both sides that need to go.
No doubt there is a ridiculous amount of nonsense that goes on and fortunes are made at our expense. I certainly would be in favor of confiscating that money and returning it to the coffers of the American people. Catch would be proving it. There has to be a trail somewhere. Always is just have to find it.
Understand your frustration.
Bell says
One other quick thought. If they actually had anything, it would have LEAKED by now. That is their SOP (standard operating procedure). Lots of leaks already and, of course, coming from the top. Nothing of substance found but makes for good liberal news and lots of money made on the fodder. If, If, If… People should have figured it out by now. Hmmmmm.
Laurel says
That Trump is a spring chicken, right? He’s a fat, old man. Not a muscular Rambo with a machine gun plastered in the center of Old Glory. Oh yeah, and a draft dodger. Get real with your prejudice.
I keep asking his supporters, with no answers yet, to give me one good reason that he took 27 boxes of files home with him? I keep waiting, and waiting for one good answer. If, just one file out of all those 27 boxes, had top secret information, he would be intentionally crippling the current administration, and therefore the safety of our home land. That’s treason. Please tell me, what was his intent?
JimBob says
Was this federal magistrate closer to Epstein than the Trumps were? Remember, Donald and Melania double dated with Epstein and Maxwell.
Alphonse Abonte says
The left takes its vision seriously…..more seriously than it takes the rights of other people. They want to be our shepherds, but that requires us to be sheep…..
Laurel says
It is the right who are legislating women’s wombs, contraception, peoples’ hormones, libraries and religion. They are the ones who are taking away rights. They are the ones who believe their messiah, Trump, is above the law and the poor, white, rich, crying baby is sooooooo persecuted. What a victim!
I’m not a Democrat, but your vision of the left is far off. We tend to lose rights whoever is in control, but the right is being exceptionally obnoxious, controlling and obtrusive now. They don’t seem to be interested in truth and democracy. There’s your sheep.
Bell says
According to the tabloids. You might consider not wasting your time on them. Trump was and is a commercial real estate developer that ran in social circles few experience or understand. That said sure Trump was seen publicly with many people and many photos were taken. Cannot take the media too seriously. They need gossip for their fodder. Another sad mess.
You might read Patterson’s book on Epstein. Interesting read and he generally does a good job of researching factual matters for his books.
Gossip is just that gossip. Let’s see the affidavit(s) involved in the current raid.
Laurel says
When Trump was told about Maxwell being arrested, he said “I wish her well.” A trafficker of teenage girls. Not gossip, but a quote. He also stated “Epstein likes them young.” Disgusting!
It was not a “raid” and Trump is doing all that he can to sabotage the investigation. He’s a major shit stirrer. Poor little victim. We don’t need to know about the warrant until the investigation is over. In fact, I’m quite surprised that the major networks are ratings greedy enough to push for information that could thwart the investigation.
Now, tell me exactly why Trump took 27 boxes of files home with him when he left the White House. What possible reason would he do that for? I keep waiting for that answer, that never seems to come.