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Trump affidavit saga continues this week [1]
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Date: 2022-08-22
“I’m not prepared to find that the affidavit should be fully sealed,” Reinhart said, according to CNN.
Prosecutors, led for the moment in this inquiry by Jay Bratt, the department’s counterintelligence and export control chief, have pushed to keep the affidavit under wraps. The department’s position is that any transparency could jeopardize and weaken its investigation. Bratt cited a recent uptick in violence targeting FBI agents as another reason for the secrecy.
But some details of that investigation were exposed a bit more broadly anyway last week as Reinhardt heard the requests before ordering a redacted copy of the warrant application be released, plus the order to seal the warrant, and finally, the request by prosecutors to seal it.
There is probable cause outlined in that affidavit indicating obstruction of justice likely occurred at Mar-a-Lago thanks to Trump’s retention of classified and top secret documents after his time in the White House ended. There is also considerable grand jury information contained in the affidavit, and there is a pressing need to preserve witness integrity, too.
Trump’s attorneys have deliberated—a bit late—over whether to seek a “special master” to review the evidence seized from Mar-a-Lago on Aug. 8. That “special master” of review would determine what privileged materials were in the boxes and filter them out. Filter agents were on site during the Aug. 8 search, but Trump’s legal team has argued those agents cannot be trusted.
“The benefit of a special master is we can stop DOJ in their tracks of inspecting these documents,” Jim Trusty, Trump’s attorney, said in an appearance on the Mark Levin Show.
Ty Cobb, Trump’s former attorney in the White House, told CBS on Friday that he thought the Justice Department might agree with the request because the prosecution of a former president and an investigation of this magnitude was unprecedented.
As of Saturday morning, Trump’s attorneys had yet to file anything on the docket in south Florida.
Trusty and other sources told CBS that Trump’s attorneys may consider invoking two provisions under the Federal Rules of Criminal Procedure in order to have a full inventory of property seized, a receipt, and a copy of the warrant remitted. One of the provisions, if invoked and approved by the judge, would mean that all of the items seized at Mar-a-Lago on Aug. 8—all 11 boxes of classified materials—would need to be returned. Moreover, the provision would declare that Trump was searched “unlawfully.”
The unsealed search warrant—again, different than the anticipated affidavit—has already exposed that Trump is under investigation for possible crimes associated with the Espionage Act.
According to a report from The New York Times on Saturday, sources say Trump kept sensitive documents flowing freely around him and right up until the moment he left the White House:
Although the White House counsel’s office had told Mark Meadows, Mr. Trump’s last chief of staff, that the roughly two dozen boxes worth of material in the residence needed to be turned back to the archives, at least some of those boxes, including those with the Kim [Jong-un] letters and some documents marked highly classified, were shipped to Florida. There they were stored at various points over the past 19 months in different locations inside Mar-a-Lago, Mr. Trump’s members-only club, home and office, according to several people briefed on the events.
Trump and his lawyers have argued that he had broad authority to declassify documents on a whim and verbally. But this is not so according to most legal experts. Records cannot be declassified in the abstract, but must go through an organized and often painstaking process where materials are reviewed line by line and word by word.
In any event, successful prosecution of the crimes associated with the affidavit—willful retention of national defense information, obstruction of a federal investigation, and concealment of government records—do not hinge on whether any of the records were classified or not.
The 45th president’s penchant for flouting rules is renowned. The handling of White House documents was no exception. Though the Presidential Records Act has enshrined rigorous rules around the handling or retention of White House records and their mandatory return to the National Archives when an official departs, Trump has rarely respected those laws, even going so far as to flush White House records down the toilet.
There is no clear indication yet that former Trump Chief of Staff Mark Meadows took up the mantle of preparing documents to be returned to the National Archives. This task became his responsibility after Trump White House Staff Secretary Derek Lyons stepped down on Dec. 18, 2020. White House attorneys like Pat Cipollone and Patrick Philbin, both of whom were recently questioned by a grand jury in regard to the Justice Department’s investigation of Jan. 6, were allegedly aware of Trump’s destruction of records. Philbin and Cipollone were also interviewed by the FBI at some point earlier this year and are considered the senior-most Trump officials to meet with the FBI.
The saga of the search at Mar-a-Lago began in earnest several months ago.
On Trump’s very last day in office, National Archivist David Ferriero was reportedly alarmed after watching administration staff leave the White House, white banker boxes in tow. Ferriero told The Washington Post he recalled saying to himself: “What the hell’s in that box?”
The National Archives said this January that it received 15 boxes from Mar-a-Lago that were improperly removed and further confirmed that some of the documents relinquished were visibly tattered, ripped up, and in some cases, taped back together. By early February, the Justice Department was asked by the National Archives to investigate. Within weeks, the National Archives confirmed that some of the documents first recovered in the 15-box set were, in fact, marked classified.
The House Oversight Committee was simultaneously conducting a probe of its own into the presidential records. However, within a few months—as the Justice Department’s own investigation accelerated—the department asked the National Archives to stop sharing its records with the committee. It was in April when Trump reportedly first received a subpoena to remit the records. By May, the department was moving full steam with a reported grand jury investigation. Aides were hauled in for interviews. By June, authorities came to Mar-a-Lago. The FBI met with Trump’s attorneys and in short order another subpoena was issued, this one for security footage of the West Palm Beach resort. After complying with the request for the tape, a lawyer for the former president also signed off on a statement vouching that everything was provided to authorities seeking retention of the records as requested.
The search at the beginning of this month has set off a firestorm of new questions around Trump and curious circumstances worth a second glance. This June, Trump named his former crony at the Defense Department, Kash Patel, to serve as his liaison to the National Archives, making him one of several stewards already picked by Trump months before. Trump asked right-wing writer John Solomon to join Patel.
Trump’s insertion of Patel and Solomon came just as the FBI and Department of Justice had visited Mar-a-Lago and assessed an area where the 11 boxes of sensitive records were found last week. The New York Times reported sources who saw the security footage from the storage room alleged boxes were moved in and out of the room after Trump’s legal team had contact with the department.
And atop all this, questions are steadily arising around Patel’s involvement and possible culpability in any bid to illegally retain the classified records on Trump’s behalf. More analysis on that here from Marcy Wheeler.
Precisely what was taken from the White House by the former president or his aides and associates and found in the 11 boxes at Mar-a-Lago is unclear, but for certain is that various documents seized were clearly labeled top secret, sensitive compartmented information, or otherwise classified.
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https://www.dailykos.com/stories/2022/8/22/2117575/-Judge-weighs-whether-to-unseal-Trump-affidavit-this-week
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