On August 8, 2022, the Federal Bureau of Investigation (FBI) executed a search warrant at Mar-a-Lago, the residence of then-former U.S. President Donald Trump in Palm Beach, Florida.
The search warrant application was authorized by U.S. Attorney General Merrick Garland and approved by Magistrate Judge Bruce Reinhart, following a criminal referral by the National Archives and Records Administration (NARA). The order, unsealed a few days after the search, showed that the FBI obtained the search warrant as part of an investigation into Trump relating to three federal criminal statutes:
Later, courts released the affidavit with redactions, giving the public a window into the FBI's goals in this search and what the FBI seized. In 2021, NARA tried to recover material, and Trump went through the material in his possession at the end of that year. Between May 23 and June 2, 2022, Trump's employee Walt Nauta allegedly moved 64 boxes in and out of a storage room, according to surveillance footage subpoenaed by the Justice Department and as described in the indictment. The Justice Department said the classified documents at Mar-a-Lago were likely "concealed and removed" to block investigation.
Over 13,000 government documents were recovered. They included nuclear-related information and FBI, CIA, and NSA information about national security interests. Of these documents, 337 were classified: 197 handed over in January 2022, 38 turned over under subpoena in June 2022, and 102 seized in the August search of Mar-a-Lago. Months later, at least two more documents with classified markings were uncovered at Trump locations.
On June 8, 2023, Trump was indicted on federal charges related to the documents. On June 13, Trump surrendered to federal custody and was arrested, booked, processed, and arraigned in the U.S. District Court of South Florida. Trump pleaded not guilty to all 37 charges. On July 27, a new version of the indictment (superseding the old) added three counts against Trump. However, the judge dismissed the case on July 15, 2024. Though the special counsel initially appealed this dismissal, he dropped his appeal following Trump's election to the presidency that November and resigned before Trump took office.
Background
Handling, storage, and disposition of U.S. government records
The Presidential Records Act (44 U.S.C. ch. 22) establishes that presidential records belong to the United States and must be surrendered to the Archivist of the United States at the end of a president's term of office (or second term of office, if consecutive). Unauthorized removal and retention of classified information of the United States government is a criminal offense under U.S. federal law; it has been a felony since the enactment of the FISA Amendments Reauthorization Act of 2017, which was signed into law by President Donald Trump in January 2018 and increased the maximum term of imprisonment for this offense from one year to five years.
Criminal laws listed on search warrant
The search warrant and accompanying affidavit listed three federal criminal statutes as the basis of the investigation: "18 U.S.C. §§ 793, 2071, [and] 1519". The Sections cited are:
- § 793, enacted as part of the Espionage Act of 1917, makes the unauthorized retention or disclosure of documents related to national defense, which could be used to harm the United States or aid a foreign adversary, a crime. The maximum penalty is 10 years in prison. The Espionage Act was passed before the development of the modern classification system of the United States government, and thus does not refer to the classification status of the documents; unclassified "national defense information" would still be covered under the Espionage Act. As noted by the Congressional Research Service, the "affidavit supporting the warrant focuses on subsection (e), which applies when an individual is in unauthorized possession of certain national defense information".
- § 2071 criminalizes the theft or destruction of government records, regardless of their relevance to national security. The maximum penalty is 10 years in prison.
- § 1519, enacted as part of the Sarbanes–Oxley Act, criminalizes the act of destroying or concealing documents or records, regardless of their relevance to national security, "with the intent to impede, obstruct or influence the investigation or proper administration of any matter" within the jurisdiction of any federal department or agency. The maximum penalty is 20 years in prison.
Classified material and the presidency
Beginning in 1940, U.S. presidents have used the constitutional and statutory powers of the president of the United States to create classification systems through executive orders. The Code of Federal Regulations contains rules for classified material as 32 CFR 2001.
Generally, the president and the United States National Security Council set information security policy such as the sharing and classification of information. The day-to-day oversight of the government-wide classification system is handled by the Information Security Oversight Office (ISOO), a component of the National Archives.
Since the 1988 Supreme Court decision in Department of the Navy v. Egan, there is consensus that a sitting president has broad Constitutional powers to classify (and declassify) information. However, there are procedures for doing so. Following former President Trump's claims that the documents found at Mar-a-Lago had been declassified, the Congressional Research Service issued a policy paper in August 2022 highlighting relevant regulations: per 32 CFR 2001.25, the declassification process requires markings "uniformly and conspicuously applied to leave no doubt about the declassified status of the information and who authorized the declassification".
In 2003, Scooter Libby, former chief of staff to Vice President Dick Cheney, claimed to have received a direct but unrecorded disclosure order from President George W. Bush and Cheney to leak classified information to reporters. In what became known as the Plame affair, Libby was ultimately not charged for releasing classified information. Steven Aftergood, a critic of U.S. government secrecy policy, said the case "highlights the fact that the president purports to, or does, stand outside of the classification system".
Federal regulations require that "any person who has knowledge that classified information has been or may have been lost, possibly compromised or disclosed to an unauthorized person(s) shall immediately report the circumstances to an official designated for this purpose." Regulations also require notification of the Director of the ISOO if the specific classified information could attract "significant public attention", if the information in question is voluminous, or if a key vulnerability has been exposed. The Department of Justice is also to be consulted if criminality is suspected.
Events leading to the search
When Trump left the White House, he brought government documents with him. "From January through March 15, 2021," the grand jury alleged, "some of Trump's boxes were stored in The Mar-a-Lago Club's White and Gold Ballroom, in which events and gatherings took place. Trump's boxes were for a time stacked on the ballroom's stage". In March, they were moved to a "business center". In April, they were moved to a "bathroom and shower" in the Lake Room.
NARA actions to retrieve presidential records from Mar-a-Lago
In February 2021, the National Archives and Records Administration (NARA), the federal agency that preserves government records, asked Trump to return presidential documents. By May 2021, NARA realized they were missing the correspondence sent from North Korean dictator Kim Jong-un to Trump. They also knew they were missing other presidential documents like the altered Hurricane Dorian map. NARA contacted Trump's representatives. On May 6, NARA emailed Trump's lawyers with the request for their "immediate assistance" to return the Kim letters along with "roughly two dozen" boxes that were in Trump's White House residence during the final days of his presidency and that were sent to Florida, although Cipollone had determined they should have been sent to NARA. That month, Trump allegedly had some of the boxes brought to the Bedminster Club.
In June 2021, NARA instructed a former lawyer in Trump's White House counsel's office to send them the Kim letters via FedEx. On June 24, boxes in the Mar-a-Lago Lake Room were moved to the storage room.
On November 21, 2021, a White House employee flew to Mar-a-Lago and advised Trump: "Whatever you have, give everything back. Let them come here and get everything. Don't give them a noble reason to indict you, because they will." In an FBI interview a year later, this person said they had believed that Trump would return the boxes to NARA.
NARA and Trump's lawyers continued to negotiate. Between November 2021 and January 2022, Trump allegedly had his employees bring boxes out of the storage room and into his residence so he could review their contents. Trump did not request that they retrieve any specific boxes, nor any specific number of boxes, per the testimony of his valet Walt Nauta, who retrieved boxes and said he was unaware of their contents. Nauta took "roughly 15 to 17" boxes stored near Trump's bedroom in a room called Pine Hall, and "we transferred them into my car; from my car to the semi truck", as he would tell investigators several months later.
Partial return of records to NARA
In January 2022, NARA retrieved 15 boxes of documents, gifts, and other government property from Mar-a-Lago that should have been transferred to NARA at the end of Trump's term. The boxes included documents from the CIA, the FBI, and the National Security Agency on a variety of topics of national security interest. Archivists and federal agents determined that 184 unique documents (totaling 700 pages) had classification markings, of which 25 documents were marked "top secret", 92 "secret" and 67 "confidential". This material included:
- "sensitive national security information", including signals intelligence and the Kim letters
- documents governed by special access programs (SAP), a type of protocol reserved for extremely sensitive U.S. operations conducted abroad, intended to significantly limit access to the information
- documents marked as "HCS, FISA, ORCON, NOFORN, and SI"
The document about Iran that he showed off at Bedminster in July 2021 may have been among the documents surrendered at this time; a military document marked "TOP SECRET//NOFORN" was in Trump's possession until January 17, 2022, and Trump was eventually charged with possessing it.
Trump attorney Alex Cannon helped to transfer these 15 boxes to NARA. The documents were stored in a sensitive compartmented information facility (SCIF) while DOJ officials considered how to proceed.
Trump's statement regarding return of records
After transferring the 15 boxes, Trump dictated a statement that "everything" requested by NARA had been returned, and he told Cannon to send a similar statement to NARA. Cannon declined because he was not sure it was true, and a different statement was released three days later, saying that "[t]he papers were given easily and without conflict and on a very friendly basis".
NARA makes criminal referral
On February 7, 2022, NARA put out a news release acknowledging the receipt of the 15 boxes and the claim by Trump's representatives that they would look for more material. On February 8, NARA lawyer Gary Stern told colleagues that Cannon had told him he was unsure whether all relevant documents had been turned over. NARA itself had noted "reams of classified material and disorganized boxes" and remained suspicious, according to the Washington Post. On February 9, NARA sent a criminal referral to the Department of Justice (DOJ).
Tom Fitton's advice to Trump
Tom Fitton, president of activist group Judicial Watch, advised Trump in February 2022 not to give any more records to NARA. As justification, Fitton cited a 2012 case in which a federal judge said that NARA had no authority to designate materials as "presidential records" nor did it have the right to seize materials. That case concerned audio tapes of historian Taylor Branch privately interviewing his friend, Bill Clinton, during Clinton's presidency. Though NARA had previously said the tapes were private property, Judicial Watch demanded NARA seize the tapes and hand them over to Judicial Watch. The judge dismissed the lawsuit.
Trump embraced Fitton's position and would continue to include him in discussions over a year later.
FBI/DOJ launches criminal investigation and issues subpoenas
In April 2022, the DOJ opened a criminal investigation and initiated a grand jury process and instructed NARA not to share further details about the materials recovered from Mar-a-Lago with the House Oversight Committee. The FBI interviewed Trump administration officials and aides at Mar-a-Lago about the handling of presidential records, including former White House Counsel Pat Cipollone and his former deputy Patrick Philbin.
On April 12, 2022, NARA said it would let the FBI access the documents retrieved from Mar-a-Lago. Trump's lawyers sought to delay this outcome. On May 10, Debra Steidel Wall, the acting Archivist of the United States, wrote to Trump's attorney Evan Corcoran to reiterate that Trump had taken hundreds of pages of classified materials with him, including highly classified Special access programs materials, and that their extended negotiations over alleged executive privilege was delaying investigations and threat assessments already underway. She said that based on legal counsel she had decided not to honor their request for further delays. An ally of Trump made the letter public on August 22. When NARA provided the FBI with access to the records it retrieved, the FBI provided copies to individual agencies of the US Intelligence Community to conduct classification reviews and determine whether their disclosure could put at risk sensitive sources.
May 2022 subpoena
Trump's team, anticipating a subpoena, practiced moving documents. Some officials have referred to this behavior as a "dress rehearsal".