A redacted version of the Affidavit that was the basis for DOJ’s Mar-a-Lago raid was made public today. In my judgment, it adds little to our knowledge of the case.
The Affidavit recites various statutes and recounts the history of 15 boxes of documents that were removed from the White House to Mar-a-Lago and subsequently sent to the National Archives by President Trump. It says that those boxes included some documents that were marked as classified. It recites that there are additional boxes still at Mar-a-Lago, and says there is reason to believe that these boxes, too, may contain classified information. Information on this point is, however, redacted.
Broadly speaking, there are several statutes at issue. The Presidential Records Act says that records of a former president belong to the National Archives. There are no penalties for violation of the Presidential Records Act by a former president.
The criminal statutes relied on by the FBI relate generally to 1) putting classified documents in an unauthorized location, and 2) conveying classified information to an unauthorized person. There is nothing in the Affidavit (the unredacted portions, anyway) that changes what I wrote here:
I have no idea whether classified information is included in the 15 boxes that Trump has in his basement or not. It wouldn’t be surprising. The serious criminal statutes on classified information relate to passing it on to, say, the Russians or Chinese. As far as we know, there is no suggestion that Trump gave classified information to anyone. He was perfectly entitled to know it and to view it himself; the issue is that he may have taken it to an unauthorized location, i.e., Mar-a-Lago. Until now, this has generally not been considered a serious offense. Sandy Berger is an exception, although he got a slap on the wrist. But in his case, the point was that he stole a document from the Archives, apparently something damaging to the Clinton administration, so as to delete it from the historical record. There is no such suggestion, as far as we know, with regard to Trump.
Of course, Trump had the power to declassify documents. I assume he also had the power to authorize that documents be stored in a particular location, although that may not survive his term in office. The Affidavit includes as an attachment a letter from Trump’s lawyer that argues, among other things, that the statutes on keeping documents in an unauthorized location does not apply to a president, since he is not an “officer…of the United States.”
It is possible that there is something serious and important going on here, but the Affidavit offers no such evidence. Vast quantities of federal records are marked as classified, most of which have little or no importance. Boxes sitting in a basement at Mar-a-Lago have no likely national security significance. This is unlike the Hillary Clinton case; Hillary was conducting current, official State Department business on an unauthorized server that could easily have been penetrated by the Russians, Chinese or others. There is no suggestion in the Affidavit (again, the unredacted portions) that foreign powers have penetrated, or are likely to penetrate, Trump’s basement. Nor is there any suggestion that Trump has transmitted secret information to anyone–something he could have done, of course, at any time in the last five and a half years, if he was so inclined.
The obvious question is why this controversy exists at all. Why didn’t Trump just send the remaining boxes back to the Archives, as he did the first 15? At this point, we have no idea. I suspect that this is a petty struggle between rabid anti-Trumpers in the Biden administration and a pig-headed former president.
Who knows, maybe it will turn out someday that something important was at stake after all. But I doubt it.
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