Definitely a problem, if true. Also definitely a problem — leaks coming out of the same Department of Justice about the predicate for a raid that they want kept under wraps by a federal magistrate.
One thing at a time, though. The New York Times heard from multiple sources that Donald Trump retained custody of over 300 classified documents when he left the White House, and used that number in its headline last night. However, the National Archives had already gotten back half of those before the search warrant:
The initial batch of documents retrieved by the National Archives from former President Donald J. Trump in January included more than 150 marked as classified, a number that ignited intense concern at the Justice Department and helped trigger the criminal investigation that led F.B.I. agents to swoop into Mar-a-Lago this month seeking to recover more, multiple people briefed on the matter said.
In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, the people said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.
The previously unreported volume of the sensitive material found in the former president’s possession in January helps explain why the Justice Department moved so urgently to hunt down any further classified materials he might have.
It does … kinda. Despite the breathless attention this report received, it didn’t really tell us anything new about the conflict between Trump, the National Archives, and the Department of Justice except perhaps the scope of it. The released warrant made clear that the search intended to find classified documents in Trump’s possession as well as other documents related to the Presidential Records Act. Even the Politico report on it this morning that notes that the trove included “special access program materials” covers revelations that had been made public already.
The only real development on this belonged to John Solomon, who published a letter yesterday that the National Archives sent to Trump in May:
As you are no doubt aware, NARA had ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January 2022. In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.
Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” such records “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B). Those conditions are satisfied here.
According to other reporting, the DoJ got more involved at this point, asking Trump to secure the records a bit more robustly while the negotiations played out. This has also been widely known, and much commented upon. This sequence is one reason why critics of the DoJ wonder why the “raid” on Mar-a-Lago was necessary in the first place. Trump was still at least engaging on the issue; the FBI and DoJ had other options, such as forcing Trump into court to comply with a subpoena rather than just conduct a raid.
That’s not to say that the issue is somehow marginal. Classified material at that level relates to sources, methods, and knowledge that can be deeply damaging to national security if it gets out. That’s why this was such an issue with Hillary Clinton, who not only retained thousands of classified documents in digital form but also transmitted and stored them on an unsecured e-mail server in Chappaqua. Clinton instructed underlings to strip classification markers off of such documents in order to facilitate that transmission at times, and the material exposed also included “special access program materials”, ie, Top Secret and Compartmented information. The FBI allowed Clinton to purge the server before handing it over after a long, drawn-out conflict over it and then declined to enforce the same laws in question here.
If Trump violated the law, then the DoJ should enforce it. Despite Trump’s protests now, there is no such thing as automatic declassification; information has to go through a process to be declassified, even when presidents do it. Trump should definitely have cooperated with the National Archives on that point, and should have negotiated for a special master to handle a review before the legal conflict reached this pitch. This is at its root an unnecessary battleground, if not an unnecessary fight altogether.
But it looks verrry curious that the DoJ felt a raid was necessary at Mar-a-Lago over static documents in a known (if insufficient) storage facility under security surveillance, when it never bothered to execute a search warrant for Clinton’s server even after more than four years of transmitting and exposing the same level of classified material. And it also looks veeeeerrrry curious indeed that the same DoJ that insists that the affidavit that got a federal magistrate to issue the warrant has to remain secret is simultaneously leaking all sorts of self-serving info to media outlets to justify its actions.
If Merrick Garland and his team want a public debate on this warrant and search, then unseal the affidavit and let’s have it. Otherwise, the leak campaign leaves the impression that the DoJ and FBI are waging a political campaign — in direct contradiction to Garland’s claims. He can’t have it both ways.