Yesterday, Attorney General Merrik Garland announced the DOJ had filed a motion (available here) to unseal “the search warrant and property receipt” relating to the search of former President Trump’s Mar-A-Lago estate.
Below is the search warrant and accompanying attachments, first put out by Jack Posobiec and Human Events. Huge hat tip to them.
The PDF of the unsealed search warrant and attachments is available here via Courtlistener. I’ve also posted all the pages below.
Some observations.
First, the alleged statutory violations. The property to be seized (allegedly) constituted “evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.” Let’s go through these statutes.
18 USC § 793 - also called the Espionage Act. This statute “prohibits communicating, transmitting, or delivering to any person not entitled to receive it ‘any document, writing, ... or note relating to the national defense,’ or attempting to do so.”1
18 USC § 2071. This law prohibits the removal of “any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office. . .”
18 USC § 1519. This statute prohibits the destruction of “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
As you can imagine, the press is happy to run with allegations that the former President violated the Espionage Act. You have to ask whether the intent is to damage Trump or to indict Trump.
Second, the scope of the warrant (related to my first point discussing the statutes). A lot has been said about the removal of classified information. Yet the statutes prohibit the removal of other documents (or, in the case of Section 1519, the destruction of records) - not just those that are classified. I’ll add that 18 USC 2071, mentioned in the search warrant documents, does not require a record to be classified for prosecution to be successful. For example, that statute has been used to prosecute a court employee for stealing a sealed affidavit filed with a federal court.2
Anyways, look to Attachment B, which seeks both classified and unclassified documents, evidence of transmission of “national defense information or classified material,” and evidence relating to the alternation/destruction of “Presidential Records, or of any documents with classification markings”:
And looking at the “Receipt for Property,” the DOJ/FBI apparently seized items that were likely unclassified, such as two binders of photos.
Third, what remains at issue is whether Trump can be charged with these violations. This isn’t a normal criminal case. Rather, it implicates this country’s foundational separations of powers, and whether Congress can limit the power of the Executive. Put it another way, can Congress criminalize declassification by a US President? I think not. The same might be said for the preservation of records after a President leaves office. Mike Davis has some great points on this general topic:
🇺🇸 Mike Davis 🇺🇸 @mrddmia
In 1987, the Supreme Court (again) made clear the President has constitutional power, as commander-in-chief, to classify and declassify. Regardless of any statute passed by Congress. Did AG Merrick Garland obtain an OLC opinion before ordering his illegal Trump raid? Why not? https://t.co/falznetyDPIt is exceedingly reckless that Merrick Garland went through with these warrants despite the serious Constitutional issues that would emerge if these statutes were used to prosecute Trump.
Then there are the missing documents. We don’t have the most important part of the warrant application: the affidavit in support prepared by an FBI agent. The affidavit would likely describe:
The basis for believing that classified documents, including those relating to nuclear weapons, were at Mar-A-Lago;
The history of the Trump classified documents investigation;
The assertion of probable cause that Trump had committed a crime; and
Information gathered through surveillance or through informants (most notably whoever told the FBI about the safe).
As to unsealing the affidavit, Judicial Watch and some media companies, including The New York Times, are leading that fight. Judicial Watch has asked that all warrant materials, including the affidavit, be unsealed “as expeditiously as possible.” The DOJ’s response to that issue is due on Monday, August 15.
Garland also proclaimed yesterday that “the Department of Justice would speak through its court filings and its work.” Nobody believes that. Certainly Garland doesn’t. But he lies to the public anyway. It’s the height of cynicism.
No doubt the DOJ is speaking to its friends in the media on background or off the record. We couldn’t notice that yesterday, after Garland’s statement, it was leaked to the Washington Post that “classified documents relating to nuclear weapons were among the items FBI agents sought in a search of former president Donald Trump’s Florida residence.”
To that we might ask what exactly are “classified documents relating to nuclear weapons”? Nobody knows, as the leaks structured to make the documents sound as scary as possible while keeping their true nature purposefully vague.
Devlin Barrett @DevlinBarrett
New: FBI searched Trump’s home to look for nuclear documents and other items, sources say https://t.co/7kdbutTQZ7Even Vice agreed, observing that “anything related to nukes in the U.S. is classified by default” and summarizing their conversations with nuclear weapons experts:
“They had no idea what it was, and the list of possibilities was enormous. The category of ‘classified documents relating to nuclear weapons’ is so broad as to be meaningless.”
Your initial reaction to the “nuclear weapons” documents leak was probably one of disbelief: are we to believe that the DOJ would allow these purportedly dangerous nuclear secrets to sit at Mar-A-Lago for months without taking action?
The answer to that question comes from today’s unsealed documents, which sought general presidential records and classified/unclassified materials. They waited so long because there was no rush.
Not to be outdone by their competitor, The New York Times reported the documents relate “to some of the most classified programs run by the United States.” What programs, and how are the documents related to these programs? Both essential questions are left unanswered, leading to public speculation about their contents and the thoroughly corrupt Gen. Michael Hayden - who oversaw and covered-up illegal NSA spying - to suggest that Trump deserves the death penalty.
Michael Beschloss @BeschlossDC
Rosenbergs were convicted for giving U.S. nuclear secrets to Moscow, and were executed June 1953: https://t.co/0Ox1JXoNDfIn any event, it’s the Biden DOJ setting the narrative. They’ve done what they’ve set out to do: to poison the public with the “nuclear weapon” allegations. Today’s disclosures push back on those leaks. Don’t be surprised when the DOJ fights the full release of the search warrant affidavit. Leaks can be managed; full disclosure is much tougher to defend.
United States v. Schulte, No. 17-CR-548 (JMF), 2022 WL 1639282, at *3 (S.D.N.Y. May 24, 2022).
US v. Lang, 364 F. 3d 1210 (10th Circuit 2004).
As Michael Burry (The Big Short) said yesterday: "The FBI lied to the FISA court, altered emails, leaked lies to the press to get Trump. Nothing’s shocking."
This whole charade is completely obvious. Why would any establishment ever treat a former president with such disdain? It’s never been done in my lifetime other than Nixon. You’ll notice as George Webb pointed out that Pottinger (father and son) was involved with Nixon and now with Trump, creating the PR fire. There’s def more than meets the eye here. This is political House of Cards shenanigans.