Mar-a-Lago warrant unsealed. What we know and what’s next.

We know that Monday’s FBI search of former President Donald Trump’s winter home Mar-a-Lago was unprecedented. We know that it was approved by Attorney General Merrick Garland, and followed a long discussion between Mr. Trump and the U.S. government about retrieval of material he took from the White House prior to President Joe Biden’s swearing-in.

With the unsealing of the warrant Friday afternoon, we now have some information about what agents took when they drove out of Mar-a-Lago’s gate: around 20 boxes of items, including 11 sets of classified documents, some so secret they are meant to be viewed only in secure government facilities.

But some important questions regarding the affair remain unanswered, including where it is headed. Why has the Department of Justice put so much effort into clawing back Mr. Trump’s boxes?   

“It’s unclear if this is going to be a criminal case, or if this was just an effort to regain possession of classified documents,” says Andrew Weissmann, former general counsel for the FBI and former lead prosecutor in Robert Mueller’s Office of the Special Counsel.

The timeline

Monday’s appearance of FBI agents at Mar-a-Lago’s entrance was preceded by law enforcement attempts to avoid such a drastic step, according to Attorney General Garland.

“Where possible, it is standard practice to seek less intrusive means as an alternative to a search and to narrowly scope any search that is undertaken,” Mr. Garland said in his brief public remarks Thursday.

The National Archives and Records Administration became concerned about Mr. Trump’s removal of White House records shortly after he left office in 2021. In January 2022, the National Archives retrieved 15 boxes of material from Mar-a-Lago.

This spring, federal investigators served a grand jury subpoena on Mr. Trump in search of documents they suspected he still had in his possession, according to numerous news reports. This subpoena played a role in a June meeting between Jay Bratt, a top Department of Justice counterintelligence official, and Trump representatives at Mar-a-Lago. 

Mr. Bratt took away an unspecified number of classified documents at the time. He inspected Mar-a-Lago areas where documents were stored, and later requested a more substantial lock be placed on the door of one such area. Trump employees complied.

Agents broke open the lock while searching Mar-a-Lago this Monday.

The nature of this lengthy back-and-forth between the parties can be interpreted two different ways. Mr. Trump’s allies argue that it shows good faith on his part to cooperate in the process. Given that, federal agents showing up with a search warrant was a surprise, and overreach, they say.

“All presidents take records when they leave. ... It’s routine for any Office of the Former President to negotiate with the National Archives,” Mike Davis, founder and president of the Article III Project and a former Republican staffer on the Senate Judiciary Committee, said in a statement.

Justice Department supporters say it was obvious that Attorney General Garland was trying to solve the issue in a circumspect way. That means he and the FBI must have grown frustrated with the slowness of the process and perhaps believed they were being stonewalled.

“There are sensitivities with investigating a former president, as we’ve seen this week, but the government has a duty to safeguard its secrets,” says Barbara McQuade, a former U.S. attorney and current professor at the University of Michigan Law School.

Government secrets

It’s clear that classified information was at the heart of this dispute. Under the Presidential Records Act, all presidential documents are the property of the government, not the person who occupied the Oval Office. But it seems highly unlikely the Justice Department would take the unprecedented step of obtaining a search warrant for relatively mundane information.

And some classified documents are more classified than others. According to news reports, FBI agents at Mar-a-Lago were in search of classified information on some of the nation’s most sensitive secrets, perhaps dealing with nuclear weapons, or more general national security programs. 

According to an inventory list attached to the search warrant released Friday, the FBI removed three sets of secret documents from Mar-a-Lago, four sets of top-secret documents, and one set marked “TS/SCI documents,” an apparent reference to top-secret, sensitive compartmented information. 

Sensitive compartmented information comes from the nation’s most sensitive and secret producers of information, both human and technological. It is closely guarded and intended only for officials who have a need to know it. It is generally held in special rooms or buildings. 

As president, Mr. Trump would have been in essence the nation’s highest classification authority. He would have had the power to declassify many secrets at a whim. At times, he did, as when he declassified a photo of a fire on an Iranian rocket launchpad and posted it to his Twitter account in 2019.

“The President of the United States has both the constitutional and statutory power to declassify anything he wants,” Mr. Davis said in his statement. “If President Trump left the White House with classified records they are declassified by his actions.”

But that is not entirely true, say other experts. There are some secrets at the highest level that he cannot declassify. There are statutes that impose a greater level of secrecy on many nuclear secrets, for instance. And while the president does have the power to declassify, it is not instant – it is a process he must begin that is concluded by the classification bureaucracy.

“There’s a whole protocol around how that has to happen, [and] it seems highly unlikely that that was followed,” says Mr. Weissmann. 

What next?

It is possible that the FBI felt it had to act with a search warrant just to reel in secrets it was worried might end up in the wrong hands the longer they sat in Mar-a-Lago’s basement. Law enforcement also reportedly subpoenaed the surveillance footage from cameras trained on the resort’s storage entrances – suggesting officials were interested in, or worried about, who was coming in and going out.

In that case the retrieval of the documents could end the Department of Justice’s mission.

But U.S. officials are charged for mishandling classified documents. In 2005, former U.S. national security adviser Sandy Berger pleaded guilty to knowingly removing classified documents from the National Archives. In 2015, retired U.S. Army Gen. David Petraeus pleaded guilty to one count of unauthorized removal and retention of classified material, which he gave to his biographer and lover. 

Since 2005 the FBI has launched at least 11 investigations of unlawful removal and retention of classified material dealing with U.S. officials, according to cases compiled by Voice of America.

Generally speaking, prosecutors are looking for aggravating circumstances when they pursue such cases. That means indications of intentional mishandling, or the involvement of vast quantities of material and its exposure, or indications of disloyalty.

“It will matter a lot both what is in these documents and why Trump had them,” says the University of Michigan’s Professor McQuade.

The search warrant for Mr. Trump’s residence, released following a request from the attorney general, lists three criminal statutes in regards to the investigation. One simply covers the unlawful removal of government records. A second covers destroying records to obstruct a government operation.

The third is Section 793 of Title 18 of the U.S. Code, better known as the Espionage Act.

As of yet it is unknown how these statutes link up in any way to the documents the FBI has collected. Despite the precedents of prosecutions for improper use of classified information, this is simply uncharted territory for the U.S., legally speaking.

“Obviously we haven’t dealt with a situation where a former president has taken what appears to be many, many boxes of government documents, and what appears to be highly classified government documents, at a time when he didn’t have the authority to do that,” says Mr. Weissmann.