The FBI sought to retrieve above-Top-Secret documents dealing with "sources and methods"—which Donald Trump does not have the authority to declassify.
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BY
WILLIAM M. ARKIN ON 8/12/22 AT 11:32 AM EDT
In pursuing the unprecedented search of
Donald Trump's residence on Monday, the
FBI was seeking to retrieve Top Secret and "compartmented" documents dealing with intelligence "sources and methods," two federal government sources tell
Newsweek—documents with the potential to reveal U.S. intelligence sources, including human sources on the American government payroll.
This greatly complicates any public discussion of the documents or any substantiation of Trump's potential violation of U.S. law. The sources, who were briefed on the investigation, requested anonymity in order to discuss sensitive information.
Former U.S. President Donald Trump leaves Trump Tower to meet with New York Attorney General Letitia James for a civil investigation on August 10, 2022 in New York City. (Photo by James Devaney/GC Images)JAMES DEVANEY/GC IMAGES
"Compartmented" is a
specific term meaning "classified information concerning or derived from intelligence sources, methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of National Intelligence." It includes a variety of different access categories—for example, human, intercept, satellite sources—each of which limits how many people can know the nature of the compartment. One of the government sources says that "special access program" information was involved in the Mar-a-Lago case, a further category of information limited to an even smaller group of people.
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Intelligence sources familiar with the classification system and the investigation say that neither the search warrant nor the inventory, if unsealed, will likely answer most people's questions about whether the search was necessary.
"In order to prove that this was a matter of national security and essential to be done in this way, some detail on what Trump was keeping will have to be revealed," one intelligence officer, granted anonymity to speak about an ongoing investigation, tells
Newsweek. "That might be difficult for the government precisely because of the sensitivity of the documents."
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Under normal circumstances, investigators write a detailed list of all the materials taken from a person or property that is searched, filing a copy of that inventory with the court that approved the search warrant. But in the case of classified documents, the inventory list might be intentionally vague: for example, "ten documents, numbered 1 through 10, consisting of 65 pages, stamped Top Secret and above." Since the assumption is that the search warrant might become public, neither the inventory nor the search warrant would include any classified information.
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The former president does not have authority to declassify such documents, intelligence sources say, because they are classified under statute rather than by executive order. Trump's possession of those documents and the fact that he was secreting them away came to light in the course of a multi-month federal government investigation that focused on the status of presidential records taken from the White House.
On Monday morning, FBI agents and technicians arrived at Donald Trump's Florida residence and presented the former president's attorneys a search warrant to retrieve highly classified documents at Mar-a-Lago. According to Trump spokespeople, the FBI investigators were focused on three rooms at the residence. Trump said that the FBI had broken into at least one safe of his, presumably in the Trump office or bedroom where it was found.
The information as to the whereabouts of the documents,
Newsweek previously reported, came from a confidential human source, presumably someone inside the Trump camp. While not acknowledging any details of the investigation, on Thursday, Attorney General
Merrick Garland stated that the Justice Department was asking that the search warrant and the inventory of property taken from Mar-a-Lago be released by the court. That request has to be agreed to—officially, not just in public statements—by Donald Trump.
Given the political firestorm that the search at Mar-a-Lago provoked, questions about the documents are of critical importance. If they were merely "routine," as Trump insists, then the search will be seen as politically motivated. The fury might be quelled if the documents are indeed revealed to be highly classified and sensitive, and the Justice Department can prove that the former president was holding onto them with no intention of giving them back. The public might conclude that the search was valid and necessary.
The road to the search at Mar-a-Lago began 18 months ago in the transition from the Trump to the Biden administration. In inventorying presidential records, the National Archives and Records Administration concluded that there were additional documents that were in Donald Trump's possession that were "presidential records" and not personal papers and thus needed to be returned to the Archives.
Months of negotiations followed, and in January 2022, 15 boxes of such boxes were turned over to the Archives. That collection led to further suspicions that the Trump camp still possessed more. Federal investigators began interviewing Trump White House and Mar-a-Lago staffers to determine what was moved. Those interviews, and a broader investigation overseen by a U.S. Attorney resulted in a grand jury subpoena served on Trump in late May to produce specific documents.
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According to John Soloman, a journalist with Just the News who has also served as one of Donald Trump's liaisons to the National Archives, the subpoena requested any remaining documents Trump possessed with any classification markings, even if they involved photos of foreign leaders, correspondence or mementos from his presidency.
On June 3, three FBI special agents and a senior Justice Department official visited Mar-a-Lago to discuss any additional documents in response to the subpoena. The visiting officials were shown the basement storage room where White House records were stored, and in fulfillment of the subpoena, left with "a small number of documents," according to Soloman. The documents were classified as Top Secret and were compartmented, according to people familiar with the investigation. Trump and his spokespeople say the visit was cordial and that the Trump camp fully cooperated.
After the June visit, according to the Trump camp, communications with the investigators ceased until agents showed up on Monday to execute the search warrant. According to people familiar with the search, the decision to escalate the matter to a surprise search came because investigators concluded that additional documents were at Mar-a-Lago—documents so sensitive, they had to be retrieved in order to protect national security.
The search warrant was approved by the Florida magistrate on Friday, August 5, and three days later, the FBI showed up at Mar-a-Lago to execute the search. Some 12 additional boxes of records were hauled away. The FBI inventoried what was taken and left behind a two-page inventory with Trump's lawyers.
In the aftermath of the search, the Trump camp insists that President Trump had the right to declassify information, and thus none of the records were classified. Kash Patel, a Trump loyalist who served in intelligence and defense positions in the administration (and who also identifies himself as one of Donald Trump's representatives to the National Archives), told the Just The News podcast that Trump was the "ultimate arbiter" of the classification of a document and thus there could be no wrongdoing.
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That characterization is incorrect, experts say, because documents that are covered by statute, and not classified under presidential executive order, cannot be classified or declassified by the president. That includes nuclear secrets (under the Atomic Energy Act) and documents that might identify
CIA case officers or agents (under the Intelligence Identities Protection Act of 1982).
The Washington Post has reported that the documents sought at Mar-a-Lago related to nuclear weapons.
That law labels as a CIA sources "an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency."
Bill Leonard, who as head of the Information Security Oversight Office for six years in the Bush administration and oversaw this system, makes a clear distinction between information that is classified pursuant to the President's Article Two constitutional authority as commander-in-chief and those that are classified by statute, such as nuclear secrets and intelligence sources and methods regarding human agents. "That sort of information and other sensitive intelligence sources and methods are protected pursuant to law, not necessarily protected pursuant to the president's unilateral classification authority," Leonard told Grid this week. "So even an incumbent president does not have total, unfettered authority to declare information unclassified at will. Certainly, a former president has no authority to declassify any sort of information."
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