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DOJ affidavit raises 3 important questions about Trump Mar-a-Lago case

This recovering litigator is focused on the kind of small details lawyers normally obsess over — and sometimes with good reason.


After weeks of anticipation, a redacted copy of the Justice Department’s Mar-a-Lago search warrant affidavit was made public on Friday. And so breathless were we to read it that collectively, we all but crashed the online library of federal court filings.

But now that we have it, what’s really significant about the affidavit? After all, 21 pages of material were at least partially redacted from it.

It turns out, however, that notwithstanding the redactions, which, as many predicted were extensive, there are meaty, additional details within both the affidavit itself and the brief the DOJ filed requesting the affidavit remain entirely under seal. (The brief was also partially redacted as publicly filed on Friday.)

The Justice Department has now confirmed, for instance, that its request for a warrant was predicated, at least in part, on information provided by “a broad range of civilian witnesses” — and, in introducing some now-redacted content, the DOJ noted the court itself has previously concluded concerns about those witnesses’ safety and privacy are not “just hypothetical.” That raises the specter that Donald Trump, against whom credible claims of witness intimidation have been made since the Mueller investigation and the Ukraine-focused public hearings that led to Trump’s first impeachment, could attempt to influence or tamper with witnesses again.

The DOJ also has revealed that among the first 15 boxes of materials stored at Mar-a-Lago that Trump returned to the National Archives in January, there were nearly 200 classified documents. Some of those documents contained “intelligence information derived from clandestine human sources,” or the sort of folks you and I call spies, or otherwise relating to “human intelligence” activities or capabilities, according to the DOJ.

But the things this recovering litigator is focused on are the admittedly smaller details, the sorts of things that lawyers obsess about — and which sometimes turn out to be meaningful.

Why mention Trump’s handwritten notes?

In detailing the 184 classified documents returned in January, including 25 marked as “top secret,” the FBI stated several documents contained what appeared to be Trump’s “handwritten notes.” 

Aren’t presidents allowed to mark up classified materials to aid in their own review and digestion, you might ask? The answer, of course, might depend on when those notes were made. After all, one of the statutes cited in the warrant application — 18 U.S.C. § 1519 — is violated by knowingly altering any government record or document, whether or not classified or relating to the national defense, if a person’s intent is to obstruct not only an investigation but also the “proper administration” of any federal department or agency. 

Imagine, for instance, those handwritten notes are post-presidential attempts to declassify documents with the stroke of a Sharpie, and not contemporaneous reflections on intelligence received during his term. One can see why handwritten notes on classified material, while justifiable in one context, could be criminal in another.

Why does it matter that the FBI lists specific spaces within Mar-a-Lago?

In addition to explaining the FBI’s belief that no spaces within Mar-a-Lago have been authorized for the storage of classified information “at least since the end” of Trump’s presidency, the affidavit also lists several specific places within Mar-a-Lago — a storage room, Trump’s “residential suite,” a room known as Pine Hall and Trump’s office — that the affidavit more definitively says “are not currently authorized locations for the storage of classified information or [national defense information].”

The express mention of those spaces in the affidavit suggests to me that the FBI had reason to believe additional classified or national defense information would be recovered in one or more of them upon execution of the search warrant. More importantly, the FBI’s identification of those spaces specifically suggests that the FBI learned those places were relevant to its investigation through either witnesses, electronic evidence, such as the surveillance tapes the DOJ subpoenaed in late June, or both.

Why did the FBI let us see some correspondence with Trump World — and not others?

Over the last week, we’ve learned a great deal about the negotiations between Trump lawyers and the federal government — discussions that began in May 2021 and proceeded for more than a year before the Justice Department issued its first subpoena to Trump on May 11. Specifically, we know now that prior to that subpoena, on April 29 and May 1, Trump’s team apparently begged the National Archives through at least two letters not to give the FBI access to the 15 boxes; in a third letter, sent on May 5, Trump lawyer Evan Corcoran appears to have requested that Trump’s team at least be allowed to review the materials themselves, to which NARA responded that Trump’s “designated representatives” could do so, “subject to obtaining the appropriate level of security clearance.” 

But none of that correspondence was referenced, much less included, in the portions of the affidavit publicly released on Friday. Nor did we see the reported June 3 statement to DOJ — allegedly prepared by Corcoran and signed by another Trump lawyer, Christina Bobb — attesting that to the best of their knowledge, all classified material at Mar-a-Lago had been returned to the government.

On the other hand, the government not only references but also includes — in full — a May 25 letter from Corcoran to the head of DOJ’s counterespionage section, which it describes as “the second such letter.” That begs two questions: First, why does the DOJ’s redacted affidavit reference, much less attach, the May 25 letter? And second, why is there virtually no public disclosure of other correspondence between Trump’s team and the government?

On the first question, one plausible explanation is perhaps the simplest: Corcoran expressly requested that the letter — which outlines two prospective defenses for Trump — be provided to any judge “asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request” or to any grand jury considering evidence or issuing a subpoena in the investigation. If it was that important to Corcoran that the DOJ be transparent about so-called “exculpatory evidence” with judges and grand juries, the DOJ could have determined that to prove its fairness, the public should see it as well.

Another explanation could be that the contents of the May 25 letter contrast with other information or evidence the FBI has collected during the investigation, and the FBI is using Corcoran’s argument — which it shorthands as “a President has absolute authority to declassify documents” — to highlight someone else’s knowledge or willfulness. Indeed, right after discussing the May 25 letter, the affidavit notes that about three weeks prior, Trump adviser Kash Patel publicly characterized reports that NARA had recovered classified documents as “misleading” because Trump had already declassified those documents. 

That begs the remaining question, however: What about the other letters? If the May 25 letter is the “second such letter,” why did DOJ not show us the first? And did DOJ redact references to other, similar correspondence? 

Of course, redactions are literally big black boxes. All we have to unpack them are our intuitions and experiences. But drawing on my own, I continue to believe that at least some of that the prior correspondence would reveal one or more of the categories of information the court said could properly remain under seal: grand jury information, which federal law prohibits sharing, and even the identities of witnesses and uncharged parties, including, but not limited to, the investigation’s subjects. 

Recall that some former Trump lawyers with knowledge of what Trump retained at Mar-a-Lago and who may have communicated with NARA about those issues have reportedly been government witnesses in this investigation already. Depending on what Trump communicated to them and their own conduct with law enforcement, others could end up being witnesses as well — or worse. In particular, The New York Times reported Friday that shortly before meeting with the DOJ and FBI on June 3, Corcoran “went to the basement to search through the boxes for classified material, according to two people briefed on the matter.” It is unclear whether Corcoran, a former federal prosecutor, has any active security clearances.

These and other mysteries of the affidavit are not likely to be untangled immediately. But I’ve got my eyes on these issues — and so should you.