Mar-a-La Oh No: The DOJ’s Criminal Investigation of Donald Trump
On August 8, 2022, the FBI executed a search warrant and seized roughly 11,000 documents - 100 of which bore classification markings - from former President Trump’s Florida Mar-a-Lago estate - an unprecedented move by the DOJ.
The political implications of the raid and subsequent criminal investigation - which the DOJ, no doubt, expected - has prompted much debate about the extent of Trump’s executive privilege and the legality of his possession of classified federal documents, with the possibility of indictment looming.
Opponents have criticized the investigation as a political weaponization by the Justice Department to damage Trump and Republicans in the upcoming midterm elections. However, the series of events leading up to the raid casts doubt on the validity of that conclusion.
Near the tail-end of Trump’s presidency, the General Services Administration (GSA) instructed members of Trump’s transition team to pack and “certify in writing that the items being shipped were required to wind down the Office of the Former President and would be utilized as the Office transitioned to its new location in Florida.”
However, the GSA neither inspected the boxes nor “had [any] knowledge of the contents prior to shipping,” said one agency spokesperson to AP News. Since Trump shipped his belongings through a private moving company, the GSA held no responsibility for said contents.
The Presidential Records Act (PRA) of 1978 - the law at the center of the controversy - requires outgoing presidents to return all historically-relevant presidential records, which are considered federal property, to the National Archives and Records Administration (NARA).
On top of this, numerous federal laws regulate the handling of classified/sensitive government documents. One of these statutes, 18 U.S. Code § 1924, makes it a crime to remove and retain these documents in an unauthorized location.
In May 2021, NARA requested documents that appeared to be missing from the material Trump had given them when leaving office. Not until December did a representative for Trump finally inform the agency that 12 boxes of records that should have been turned over earlier were located at Trump’s Mar-a-Lago estate and were ready to be recovered by the agency.
Later, in January 2022, NARA agents obtained 15 boxes of presidential records from Mar-a-Lago. Of these boxes, 14 contained 184 classified documents mixed in with an assortment of other materials, including notes, photos, and newspapers.
This mishandling of classified documents, especially the intermixing of sensitive materials, led the Archives' Office of the Inspector General to conclude that there may have been violations of the PRA and ultimately referred the case to the DOJ.
“Of most significant concern,” the referral stated, “was that highly classified records were unfolded, intermixed with other records, and otherwise unproperly [sic] identified.”
Following a review of the referral, the FBI opened its criminal investigation.
On April 11, the White House Counsel’s Office issued a request that NARA grant the FBI access to the 15 boxes retrieved from Mar-a-Lago. The following day, Trump's attorney Evan Corcoran requested and successfully received an extension until April 29.
The DOJ then sent a letter to Corcoran on April 29, insisting that Trump give the FBI immediate access to the material: citing “important national security interests” and the need for such documents “for [the] purposes of our ongoing criminal investigation." Nevertheless, Corcoran requested another extension to examine the documents, invoking a “protective assertion of executive privilege.” However, NARA Archivist Deborah Steidel Wall shot down this “no basis” claim in a letter to Corcoran, stating that the FBI must be allowed access to the documents as early as May 12.
On May 11, the Justice Department obtained a grand jury subpoena to have “any and all” additional classified records located at Mar-a-Lago handed over by May 24, which was later granted yet another extension until June 7 for Trump’s compliance with the subpoena.
In accordance with the subpoena, on June 3, three FBI agents and DOJ counterintelligence chief Jay Bratt went to Mar-a-Lago to collect materials, where Trump’s lawyers handed them a “single Redweld envelope, double-wrapped in tape” containing 38 documents bearing classification markings. Investigators reported that neither Corocan nor Trump’s custodian of records asserted executive privilege over the documents.
Trump’s attorneys then took investigators to the Mar-a-Lago storage room, where they had kept all White House records. Though permitted to visit the room, investigators were not allowed to inspect the contents of the boxes, “giving no opportunity for the government to confirm that no documents with classification markings remained.”
The custodian of records later signed and sent a certification letter that day to the Justice Department, attesting that a “diligent search” had been conducted and that no documents remained on the premises.
On June 8, Corocan received a letter from the Justice Department requesting that the storage room be secured, prompting Trump to direct his aides to padlock the room and preserve all its contents until further notice.
One month later, the DOJ filed a search warrant, which a judge signed that same day, under the “probable cause'' that other presidential classified records remained at Mar-a-Lago. Later that month, federal prosecutors stated that the FBI “developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government's investigation."
Finally, on August 8, the FBI executed their search warrant, obtaining twice as many classified documents as the “diligent search” weeks prior, casting severe doubt on Trump’s willingness to cooperate with the Justice Department.
Agents discovered documents not only in the storage room but in Trump’s office as well - three of which were found in desks rather than in boxes.
“In some instances,” reported the Justice Department, “even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.”
Three days later, Attorney General Merrick Garland, in a brief yet firm statement to the press, revealed that he personally approved the decision to seek a search warrant, noting that he "does not take such decisions lightly."
"Faithful adherence to the role of law is the bedrock principle of the Justice Department and our democracy,” he said. “Upholding the rule of law means applying the law evenly without fear or favor. Under my watch, that is precisely what the Justice Department is doing. All Americans are entitled to the even-handed application of the law, to due process of the law, and to the presumption of innocence."
The DOJ then moved to ask the court to unseal the search warrant, given Trump’s public confirmation of the search, which went unopposed by the former president and was subsequently granted. Most notably, the unsealed search warrant revealed that the DOJ was looking into possible violations of the Espionage Act, criminal handling of government records, and obstruction of justice.
For context, under the Espionage Act (specifically Section 793 of 18 US Code Chapter 37), Trump may be held liable for “gathering, transmitting or losing defense information.” This essentially means that Trump, who once had legal access to national defense documents, may be subject to punishment if the DOJ finds that he improperly retained such information.
On August 22, Trump filed a lawsuit against the Justice Department, seeking the appointment of a special master to independently review records seized by the FBI, which was soon given “preliminary intent” by Federal District Judge Aileen Cannon. On September 5, Cannon granted Trump’s request for a special master, who would have access to the documents under attorney-client and executive privilege.
Three days later, the Justice Department sought an appeal for Cannon’s decision. In their appeal, Federal prosecutors argued that (1) being denied access to classified documents in their criminal investigation and (2) having to hand them over to the special master would pose a national security threat. Accordingly, they also requested that the court temporarily pause two portions of her ruling for the time being.
In response, Trump’s lawyers argued that the DOJ had not proven the records’ “classification status,” asserting that the former president designated some records as “personal property” and that the issue should be resolved under the PRA rather than under criminal prosecution. However, the lawyers did not mention whether or not Trump had taken steps to declassify these documents.
Judge Cannon ultimately rejected the DOJ’s request and appointed senior Judge Raymond Dearie, one of Trump’s picks, as special master. She wrote, “The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.”
This was only a temporary win for Trump, however. Because on September 22, the U.S. Court of Appeals for the 11th Circuit, in agreement with the Justice Department’s rationale, permitted the DOJ to resume its use of classified documents in its ongoing criminal investigation, which otherwise would have delayed the investigation for weeks.
In their appeals court decision, the judges wrote, “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”
Legal experts say that if indicted and subsequently found guilty of violating two federal laws and the Espionage Act, Trump could face up to a 33-year sentence. As of writing, the investigation is still underway.