FBI Investigation Into Donald Trump's Handling Of Presidential Documents

In 2022, the Federal Bureau of Investigation (FBI) started the ongoing criminal investigation into former President Donald Trump's handling of classified and national defense-related government documents, looking for possible violations of the Espionage Act and obstruction of justice. The investigation is under the direction of Jack Smith, a special counsel appointed by United States Attorney General Merrick Garland.

Origin and presidential transition

Following Trump's loss in the 2020 United States presidential election, talks began between the Trump administration and the National Archives and Records Administration (NARA) regarding transferring documents related to the Trump administration. Under the Presidential Records Act (), any presidential documents under the current administration must be transferred to the Archivist of the United States by the end of their term. White House chief of staff Mark Meadows informed the National Archives during this period that he would take care of the documents. On January 18, 2021, at least two moving trucks were spotted outside the Mar-a-Lago, Trump's private residence in Palm Beach, Florida. Pictures were taken on the day of his departure showing boxes of materials that he had taken with him.

In May 2021, the National Archives became aware of missing documents. Among the missing material were correspondence letters with Kim Jong-un and a congratulatory letter from former President Barack Obama. On May 6, Gary Stern—the general counsel for the National Archives—emailed Trump's representatives, including Patrick F. Philbin, to inform them that such material was missing. In the email, Stern named Pat Cipollone as a witness to the documents, identifying two dozen boxes that were in the White House but had not been transferred to the National Archives. Scott Gast, a representative for Trump, responded to Stern by giving him a note informing him that Trump would return his correspondence letters with Kim, although Trump was unclear on how to proceed. An archive official recommended FedEx as a method of transferring the documents; Trump aides objected to this idea, and Trump did not return the letters. Trump displayed these letters to people in his office, leading to Meadows contacting Philbin in an effort to figure out how to facilitate the return of these documents.

Trump's lawyers informed the National Archives in December that they had found 12 boxes of documents at the Mar-a-Lago.

NARA retrieval of documents

In January 2022, the National Archives and Records Administration (NARA) had begun a process to retrieve 15 boxes that were taken from the White House at the end of Trump's term to his private Mar-a-Lago estate, and successfully negotiated with Trump's lawyers in retrieving the documents. Among what was contained in the documents was classified information.

Following the discovery, the National Archives notified the Justice Department and the House Committee on Oversight and Reform began an investigation into the documents. The Justice Department instructed the National Archives not to share any more details about the documents to the committee, implying that the FBI was beginning a separate investigation. Of the documents retrieved by NARA from Mar-a-Lago, archivists and federal agents determined that 184 unique documents had classification markings, of which 25 were marked "top secret", 92 "secret" and 67 "confidential". Some materials were governed by special access programs (SAP), a type of protocol reserved for extremely sensitive U.S. operations conducted abroad, intended to significantly limit access to the information.

Investigation

Justice Department documents subpoenas

In May 2022, the Justice Department subpoenaed the National Archives in an attempt to obtain the documents, and had interviewed several White House officials who were present in the days leading up to Trump's departure from the White House, seemingly confirming that the Justice Department was beginning a grand jury investigation into the documents. The Justice Department also subpoenaed Trump in May 2022 to return all documents with classification markings.

On June 3, 2022, the Justice Department sent counterintelligence chief Jay I. Bratt and three FBI agents to Mar-a-Lago to retrieve the documents requested in the subpoena and meet with Trump's legal team. At the meeting, Christina Bobb, the Custodian of Records for purposes of the subpoena, gave a signed letter to the Justice Department certifying that a diligent search had been conducted and all documents responsive to the subpoena were being turned over. Trump's lawyers also claimed that all the documents were stored in a single basement storage room on the property.

On June 8, Bratt emailed Trump's lawyers, telling them to put a stronger lock on the basement and to keep all documents "preserved in that room in their current condition until further notice".

On June 19, Trump wrote to NARA, telling them that former Trump administration official Kash Patel, as well as journalist John Solomon, should be considered "representatives for access to Presidential records of my administration".

Mar-a-Lago security footage subpoena

On June 22, the Justice Department subpoenaed surveillance footage from Mar-a-Lago of the basement where records had been stored. According to the ''New York Times'', sources familiar with the tapes revealed that "the video showed boxes being moved out of the storage room sometime around the contact from the Justice Department. And it also showed boxes being slipped into different containers, which alarmed investigators."

The FBI suspected violations of the Espionage Act and obstruction of justice due to information from "a significant number of civilian witnesses", as stated in an affidavit. This affidavit was used to obtain a search warrant.

FBI search of Mar-a-Lago

Having uncovered multiple sources of evidence that more classified documents remained at Mar-a-Lago and "government records were likely concealed and removed from the storage room and that efforts were likely taken to obstruct the government's investigation," the Justice Department sought a warrant to search Mar-a-Lago from a federal magistrate judge in early August 2022.

On August 8, 2022, the FBI executed the search warrant on Mar-a-Lago. Thousands of government documents were seized, some with classification markings: top secret/ sensitive compartmented information (TS/SCI), top secret, secret, and confidential. TS/SCI is the highest possible classification and is supposed to be read exclusively in secure government facilities.

Across three interactions with Trump in 2022, including the August search of Mar-a-Lago, the government recovered approximately 13,000 documents totaling 21,792 pages. Some of the recovered classified documents, including top secret documents, had been stored in boxes with personal effects such as press clippings, clothing, magazines and gifts. The government also recovered dozens of empty folders that carried classified markings.

Trump's response

Trump claimed he made a "standing order" to declassify all material brought to Mar-a-Lago, though there is no known documentation of the order and no former Trump administration official defends Trump on this point. Only one former Trump administration official, Kash Patel, initially agreed with Trump's claim that such an order existed; later, however, Patel refused to answer most questions when he went under oath before the grand jury in October. He did answer related questions under oath in November, but it is not yet known how he answered. Even had the information been declassified, it would have remained illegal for Trump to take and keep documents that belong to the government.

Despite not turning over all the requested material during his previous interactions with the government, Trump has said that the search warrant was unnecessary, claiming: "the government could have had whatever they wanted, if we had it."

Special master

Trump's legal team sued to request a "special master" whose review would identify any privileged material or material not covered by the search warrant to ensure that the Justice Department return that material to Trump. Federal judge Aileen Cannon granted Trump's request and appointed Raymond Dearie as special master, a person suggested by Trump's legal team. Dearie was required to complete his review by November 30, 2022, and Trump was required to pay the costs.

On September 21, 2022, the United States Court of Appeals for the 11th Circuit ruled that the Justice Department could resume using the classified documents and that neither Special Master Dearie nor Trump's team needed to review the documents with classification markings.

Early in the investigation, Trump suggested, without evidence, that the FBI planted classified documents taken during the search. In response to the informal allegations, Dearie asked for Trump's team to officially state in court filings whether they believed the FBI lied about documents taken and to certify the inventory. Dearie gave Trump a deadline to formally dispute the inventory of the seized property, to which Trump's team objected that they wouldn't be able to meet the deadline. Dearie also asked for Trump to sort the documents he claimed as protected by executive privilege into two categories -- privilege from disclosure to people outside the executive branch, like Congress, and privilege from review within the executive branch. On September 29, 2022, Judge Cannon invalidated both of Dearie's requests. In the same decision, Cannon also extended the timeline for completion of Dearie's review to December 16 instead of the original November 30th deadline, citing issues in finding a vendor to scan the 11,000 documents.

On December 1, the U.S. Court of Appeals for the 11th Circuit in Atlanta overruled Judge Cannon's appointment of a special master, thus ending Dearie's review of documents In its ruling, the court wrote "We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so." The court gave Trump the option to appeal the decision by December 8, but he did not appeal. Therefore on December 8, 2022, the ruling went into effect, meaning that the review officially ended and the Justice Department regained the right to access the documents under review.

On December 12, 2022, Judge Cannon officially dismissed Trump's Mar-a-Lago lawsuit case due to "lack of jurisdiction". The end of the case also nullified Trump's request for access to the unredacted affidavit used to obtain the Mar-A-Lago search warrant.

Additional missing documents

Even after the Mar-a-Lago search, the Justice Department stated in court filings that it was still determining whether more government documents remained missing. The search of Mar-a-Lago had retrieved empty folders with classification markings, raising the question of whether Trump still had documents. In September of 2022, Jay I. Bratt informed Trump's lawyers that the Justice Department believed Trump had still not returned all the government documents in his possession. NARA also informed Congress that Trump had still not turned over all presidential records.

In early December 2022, it was reported that Trump's attorneys had hired a search team to look for any classified material still in his possession, after being pressed by a federal judge to search more thoroughly for any remaining documents. Two documents with classified markings were found in a storage unit in West Palm Beach, Florida and were given to the FBI. The storage unit had been arranged by the General Services Administration in coordination with Trump's team to store items from a North Virginia office that had been used by Trump's staffers. Three other locations were also searched — Trump Tower in New York, Trump's Bedminster Golf Club, and a Florida office — but no additional classified documents were found. Trump's lawyers said this satisfied the subpoena for classified documents issued six months earlier; the DOJ disagreed and asked DC District Chief Judge Beryl Howell to hold Trump in contempt of court. Though the court proceedings are officially sealed and not public, it was reported that Judge Howell decided not to hold Trump in contempt of court, instead urging the Justice Department and Trump's team to resolve the matter of any remaining documents privately.

Court proceedings

On October 13, 2022, Kash Patel appeared before the grand jury. He chose to invoke his Fifth Amendment rights and refused to answer most questions. The Justice Department asked a federal judge to compel his testimony; the judge declined, saying the Justice Department would first have to promise him immunity. The Justice Department then gave Patel limited-use immunity, meaning he would lose the immunity if he lied under oath, and he testified on November 3.

On October 27, Trump's legal team and federal prosecutors came for a hearing at a federal courthouse in Washington, DC. The hearing was sealed, but it is known that it was at least partly related to whether all classified material in Trump's possession has been returned to the government. Previous court appearances by Trump's legal team had been in Florida; this was their first appearance in Washington, DC for this case. In late October, it was reported that the Justice Department had brought on federal prosecutor David Raskin. Raskin has worked on international counter-terrorism cases and, more recently, on the investigation of the January 6 attack, and he gradually began working on the Mar-a-Lago document case.

On November 18, Attorney General Merrick Garland named Jack Smith as independent special counsel to lead the investigation of the classified material case, and to review Trump's role in the January 6 United States Capitol attack, with specific focus on any potential obstruction to the transfer of presidential power that may have occurred following the 2020 U.S. elections. In December, Smith and his team of 20 prosecutors filed subpoenas targeting Trump allies who worked at the local and state government levels during the 2020 elections in Georgia, New Mexico, Nevada, Michigan, Arizona, Pennsylvania and Wisconsin.

References

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2022 in the United States
National Archives and Records Administration
Classified information in the United States
Federal Bureau of Investigation operations
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