The Mar-a-Lago Search Warrant Affidavit

The very heavily redacted search warrant affidavit explaining the probable cause basis for the Mar-a-Lago search is now available. You can read it HERE. Also worth review is an also heavily redacted memo explaining to the judge why the affidavit needs to be redacted. You can read that memo HERE.

Notably that memo makes clear that this case has a lot of witnesses we have not yet heard about. It states:

“the materials the government marked for redaction in the attached document must remain sealed to protect the safety and privacy of a significant number of civilian witnesses, in addition to law enforcement personnel, as well as to protect the integrity of the ongoing investigation.”

You won’t see even a mention of those witnesses in the affidavit. All of that has been redacted. But let’s walk through it and discuss what is not redacted. The opening line is a doozy as the agent informs the judge that:

The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.

The “unlawful concealment” there is noteworthy. It suggests deliberate efforts to hide classified documents and obstruct the investigation. It helps explain the obstruction related charge in the search warrant and shows the FBI has evidence of intentional misconduct.

The affidavit also makes clear that this investigation could involve multiple defendants, and yet more sensitive documents that remain hidden:

“the FBI has not yet identified all potential criminal confederates nor located all evidence related to its investigation. Premature disclosure of the contents of this affidavit and related documents may have a significant and negative impact on the continuing investigation and may severely jeopardize its effectiveness by allowing criminal parties an opportunity to flee, destroy evidence (stored electronically and otherwise), change patterns of behavior, and notify criminal confederates.”

If you are one of those other “potential criminal confederates” (accomplices/coconspirators) you should be worried.

As widely reported the investigation started when NARA recovered 15 boxes of material in January and found many of them were classified. NARA then referred this to the DOJ. The affidavit then says more classified material is there, and that there is evidence of obstruction.

In February 2022 NARA made public its referral to DOJ of the classified documents found within the 15 boxes taken from Mar-a-Lago in late January. Trump quickly released a statement describing the transfer as “an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Records Act.” The affidavit includes a picture of the full Trump statement. Pages of redactions follow suggesting the DOJ does not agree with Trump’s “ordinary and routine” characterization, but for reasons we can’t see.

In mid-May the FBI reviewed the 15 boxes recovered in late January and discovered:

  • 67 documents marked as confidential
  • 92 as secret
  • 25 as top secret. Many of the those marked top secret had additional codes associated with exceptional levels of top secret classification
  • For example, some were marked “ORCON” which stands for “originator controlled.” Per the affidavit, this designation “indicates that dissemination beyond pre-approved U.S. entities requires originator approval.”
  • Another example, some were marked “SI” which stands for “Special Intelligence.” This is designation is “designed to protect technical and intelligence information derived from the monitoring of foreign communications signals by other than the intended recipients. The SI control system protects SI-derived information and information relating to SI activities, capabilities, techniques, processes, and procedures.”
  • Some of the sensitive documents had hand written notes by Trump on them. So yes, he played with them.

The list of the number of sensitive documents is followed by more pages of redactions. For the record, that lengthy series of redactions begins immediately after the statement about Trump’s notes being on some of them. Read into that what you may.

The affidavit includes a stunning letter from Evan Corcoran, Trump’s attorney. The letter was sent on May 25th by Corcoran to Jay Bratt (who heads espionage investigations at the DOJ). The letter repudiates claims by Trump and his attorneys that the search warrant was a complete shock. The letter makes clear that Corcoran anticipated evidence being presented to a “judicial officer” who is asked to rule on anything to do with the investigation (e.g. a search warrant).

The letter demands that it be given to any such reviewing judicial officer as “exculpatory evidence” and so the judicial officer can hear Trump’s side of the story. This request was honored. The full letter was included as an exhibit in the affidavit. It is unredacted and you can read it in full.

The letter argued Trump had absolute authority to declassify documents, that those decision are immune to criminal action, that the DOJ was acting politically, and that DOJ must present exculpatory evidence, such as that letter, which they did.

The brief then discusses Kash Patel’s similar public statements in May claiming Trump had declassified all the documents. Once again, pages of redactions follow as the affidavit apparently addresses that concern in depth. Notably, an unredacted footnote states the criminal laws at issue don’t require the documents to be classified.

The affidavit discusses a June 8 letter sent to Trump counsel making clear Mar-a-Lago did not have a secure location and asking that the documents be better secured. The tone of the letter makes clear the DOJ regards what has happened as improper. It also suggests Trump’s claims that DOJ asked them to improve the lock on the door, so they added a padlock, are lies. The reading of the affidavit suggests the room was completely unsecured and the DOJ asked that they secure it.

Many redacted pages follow, but conclude with: “As described above, evidence of the SUBJECT OFFENSES has been stored in multiple locations at the PREMISES.”

Obviously, the most convincing evidence justifying the search warrant is within the bulk of the document that remains redacted. In that regards, it should be noted that earlier this week the judge who signed that warrant stated:

“Having carefully reviewed the Affidavit before signing the Warrant, I was — and am — satisfied that the facts sworn by the affiant are reliable.”

We did learn some things from today’s release, to include:

  • Even after returning hundreds of classified documents in January, Trump continued to retain many more that were seized just this month.
  • The DOJ’s probable cause for the search included information from “a significant number of civilian witnesses” and the investigating law enforcement officers.
  • The DOJ believes that Trump and/or others engaged in “unlawful concealment” of highly classified documents.
  • Trump attorneys saw the risk of this warrant coming and took steps to mitigate it. Those steps included demanding that a letter from Trump’s attorney, setting forth his legal and factual claims, be included in any such affidavit presented to a judge. That request was honored. The letter did not outweigh the evidence presented in the affidavit and the judge approved the search warrant.

Since then the judge has made clear, just a few days ago, that the evidence in the affidavit is reliable.

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Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80