What We Don’t Know About Classified Information at Mar-A-Lago

On August 8th, the FBI conducted a raid on the home of former President Trump at his home at Mar-A-Lago in Palm Beach Florida.  According to the unsealed but heavily redacted affidavit, the FBI stated the justification in this way;

“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 investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022, hereinafter, “NARA Referral.” The NARA Referral stated that on January 18, 2022, in accordance with the Presidential Records Act (PRA), NARA received from the office of former President DONALD J. TRUMP, hereinafter “FPOTUS,” via representatives, fifteen (15) boxes of records, hereinafter, the “FIFTEEN BOXES.” The FIFTEEN BOXES, which had been transported from the FPOTUS property at 1100 S Ocean Blvd, Palm Beach, FL 33480, hereinafter, the “PREMISES,” a residence and club known as “Mar-a-Lago,” further described in Attachment A, were reported by NARA to contain, among other things, highly classified documents intermingled with other records.”

Critics of the President objected to the characterization of the execution of the search warrant as a raid, but more than 40 heavily armed FBI agents showed up in the pre-dawn hours at the residence while the former president was away.  The property was cordoned off and all entries and exits were guarded by heavily armed local police and Trump’s own Secret Service detail as documented in the image below taken by Getty Images photographer, Giorgio Viera on the morning of August 9th.  Given that the property is located on an island, the FBI would have also had agents in boats on the back side of the property and most likely a helicopter doing on-scene surveillance over the property.  This is quite a bit more than the standard way the FBI executes a search warrant.

We’re not sure why the FBI felt as if they needed to show up armed to the teeth when the resort is closed to guests during the summer, the Trumps were not located at the residence and Mar-A-Lago has armed Secret Service Agents stationed at the property round the clock whether the President is there or not.

It is not as if former President Trump was unresponsive or non-cooperative with the National Archive in its efforts to recover documents it states are supposed to be in possession of the government.

The Presidential Records Act is not a Criminal Statute

In mid-January, fifteen boxes of presidential records at Mar-a-Lago were transferred to the National Archives and Records Administration. The transfer was the result of a Trump representative telling the agency in December 2021 that there were records in Florida for nearly a year after he left office. The agency says that under federal law, all records have to be “preserved”, but not necessarily kept in the sole hands of the National Archives. Copies of these records could be returned to Trump.

Trump’s representatives said they would continue to cooperate with the National Archives in locating any remaining records they wanted.

On January 31st, 2022, the National Archives said in a statement that some paper records from Trump’s Presidency had been torn up by Trump, while still in office. White House records management officials had recovered these papers from the trash and taped them together and turned them over to the archives when he left office.

It should be pointed out that the Presidential Records Act is not a criminal statute, it’s more along the lines of guidance for government officials in preserving records.  There are no criminal penalties for violating the act, but they can be seized by the government. It is a fair question to wonder if the FBI needed to go to these lengths to retrieve these records as if Trump was a Mexican drug cartel boss.

Pundits on TV exploded in speculation about what was taken and of course put it on a rocket to Mars, claiming the former President was being investigated for espionage.

Others were quick to claim that if they took classified records home with them, they would be arrested including former U.S. Congressman and CIA Operative Will Hurd on an appearance on CNN,

“Let’s be honest, when I left Congress, if I would have went to the House Permanent Select Committee on Intelligence SCIF, the special compartmented location where you can store classified documents, and took 15 boxes of classified information and brought it to my house in San Antonio, Texas, and had it in my personal office, guess what, I wouldn’t be sitting here talking to you because I would be in prison.”

This became a line used by several other critics as well, saying that if they retained classified information they would be thrown in prison.

They are probably right, but none of these people are the President of the United States.

The President is the Final Authority on Matters of State Secrets

The President is vested with the ultimate authority to determine what is and what is not classified information. The laws about the handling, possession, and dissemination of classified information certainly apply to bureaucrats working for the government as an “officer, employee, contractor or consultant” under the statute, while the President is not an “officer” under the Constitution.  He is the authority that makes “officers” out of others working under his authority.

The President’s authority to classify or declassify information is unfettered under established law.  The Pentagon or the DOJ may recommend not declassifying information, but that decision is the President’s to make at his own discretion. He may do so in any manner he pleases, either in writing or informally by the spoken word. There is no oversight over his decisions by members of Congress, the intelligence agencies, or the DOJ. He cannot be legally overruled on his decisions in these matters by anyone. Nor can Congress intrude on that authority with any law.  His powers are separate and co-equal under the Constitution and Congress may not intrude on them arbitrarily or capriciously.

Why does the President have such authority?  One reason is that the intelligence agencies and the Defence Department tend to classify everything from newspaper articles to the menu at a State Dinner.  The other reason is that these agencies could use the classification system for self-serving purposes.  Imagine that the CIA began a secret program to assassinate foreign leaders(I mean again). This might be in the national interest in some circumstances, but the American People would probably be against it in the majority. The President being able to declassify the program would allow Congress to exert oversight on the now declassified nature of its existence(which would not be known to them otherwise) and end the program and hold those responsible to account.

In January 2021, the President broadly declassified information related to the CrossFire Hurricane investigation according to the federal register.

This was done over the vociferous objections of the FBI and DOJ.

That means these documents are no longer classified material, they are just documents now.  It is not illegal for the President or any other person to be in possession of them. So news reports(based on leaks by the DOJ) claiming that classified materials were retained by the President, if they are documents related to CrossFire Hurricane, they are no longer classified documents under the law.  They are just documents.  Even if the documents are marked “Top Secret//SCI/NOFORN/SI/-G/TK/HCS,” if they have been declassified by the President they are no more secret than the cafeteria menu at the Pentagon is.

There is reason to believe that some of the documents seized by the FBI were in fact related to the CrossFire Hurricane investigation, The warrant affidavit states that classified information related to FISA warrants was turned over to the National Archives in January, including,

“184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compa11ments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI”

Recalling that the FBI did not want records related to the CrossFire Hurricane investigation declassified by Trump and released to the public, their seizure of those records now will probably assure they will not be released to the public any time soon.

These documents appear to have been scattered among the contents of some 15 boxes of papers. That is how they may be marked, but that does not mean they are still classified information.   The affidavit itself does not assert that the documents were in fact classified materials, only that they are “marked” as such.  It is a fine distinction, but a distinction nevertheless.

Kash Patel, Deputy Chief of Staff to Defence Secretary Christopher Miller told Breitbart News in a phone interview in May 2022,

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,”

He stated that a bureaucratic error resulted in their declassification not being updated, “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,”

“I was there with President Trump when he said ‘We are declassifying this information.'”

Reading the full affidavit it appears that the original boxes turned over to the National Archives in January contained some of these documents that had not been remarked as “declassified.”  The Archives then contacted the Justice Department and notified them that classified materials were found among these 15 boxes of documents.  That seems to have formed the predicate for the search warrant of Mar-A Lago, with the FBI treating additional documents that Patel states were declassified by the President in his presence as still having their original classified status.

The FBI also cited a news report on CBS regarding two moving trucks spotted at Mar-A-Lago, on or about January 18th, 2021.  as evidence that Trump retained possession of classified documents as if the only reason two moving trucks might appear at the resort was to relocate boxes of documents in possession of the ex-President.  The trucks could have contained chairs and furniture for an event, or to deliver new furniture or other items for the resort which has 54 bedrooms.

If news reports becoming evidence sounds familiar, this was also a feature of the CrossFire Hurricane investigation, where Christopher Steele leaked parts of his Dossier to the press, which the FBI then used as 3rd party corroboration of the Dossier itself in front of federal judges to open the investigation into Trump colluding with Russia.

This CBS report in part resulted in the opening of an espionage investigation that may or may not have former President Trump as a suspect.

The affidavit also seems to involve a dispute as to whether the residence of the President is considered a proper storage facility for presidential documents, which is not a criminal matter but an administrative one between the ex-President and the National Archives.

Is it fair to ask why it takes 40 FBI agents to settle a non-criminal administrative dispute by opening an espionage investigation and getting a search warrant? Did the National Archive exhaust every means of obtaining these records themselves before asking the FBI to get involved?  Did they send people to retrieve the records themselves? The record is not clear on that. What is clear is that Trump’s representatives were cooperative and responsive to the Archives in their requests for records and documents.

SOFREP has expressed concern with what we perceive to be a politicized FBI and DOJ. Whistleblowers at the DOJ have come forward to members of Congress to complain about being pressured to “find” domestic terrorism cases to prosecute, a purge of agents perceived to have rightward political leanings, and a seemingly uneven-handed approach to the way Democrats are treated compared to Republicans.  We see a danger that a foreign power could exploit an FBI’s reluctance to investigate members of one party by making them targets of bribery, coercion, and espionage, knowing that discovery is likely to result in the FBI warning the politician away from being compromised without arresting the foreign agents attempting it.

On the Joe Rogan Podcast, Facebook CEO Mark Zuckerberg stated that the FBI warned him that a large Russian disinformation campaign was again afoot in the 2020 election and to be on the lookout for a large drop of misinformation materials in the near future.  When news of the Hunter Biden Laptop was initially reported in the NY Post, Facebook took this as the event they were warned about.  This seemed reasonable because some 50 former members of the intelligence agencies signed a letter saying they believed the story was Russian disinformation in October 2020 just weeks before the presidential elections.  Zuckerberg stated that Facebook suppressed the information on the story by pushing it way down in their newsfeed for members.  They could still find the information and share it, but prevent it from being widely seen.  The Facebook CEO contrasted the behavior of his platform with Twitter, which all but completely erased any trace of the laptop story from their platform, even going as far as suspending the account of the NY Post for two weeks until the Twitter CEO was called to task by a Senate Committee over censoring news stories.

Famous Neuroscientist, Author, and podcaster Sam Harris gave an interview where he stated that the press and social media platforms colluding together(with a helpful push from the FBI as Zuckerberg) to suppress the story about the contents of Hunter Biden’s laptop was warranted to prevent Trump from winning a second term,

“Now, that doesn’t answer the people who say it’s still completely unfair to not have looked at the laptop in a timely way and to have shut down the New York Post’s Twitter account, that’s a left-wing conspiracy to deny the presidency to Donald Trump – absolutely it was, absolutely. But I think it was warranted,”

Some of what the FBI seized are asserted by Trump’s representatives as privileged communications between the ex-president and his lawyers and as a matter of law, the FBI is not allowed to read them, copy them or disseminate them to anyone or even keep them.  Given the leaks to the media that have already occurred in this matter by DOJ sources(all of them damning to Trump), there is no small risk of these privileged communications also being shared with the media or being leaked to the January 6th Committee.

The Law Restrains the Law Enforcer as well as the Citizen

We will not speculate wildly on what the FBI’s actual intent might be here, but the DOJ trying to challenge the authority of the President to classify or declassify documents on his own authority seems like the DOJ engaging itself in a legal insurrection within the bureaucracy of the executive branch itself, which the DOJ and FBI are a part of.  As if their authority exists beyond the powers of the presidency itself.

If Trump did possess classified documents unlawfully, this would seem to be the same crime Hillary Clinton was accused of. A crime the FBI declined to prosecute even though the scale of it was much greater in scope and had the added dimension of being stored on an unsecured computer server in her home with a much greater risk of unauthorized disclosure being present.  There was also the matter of the hard drives and other evidence under subpoena being deliberately destroyed, tens of thousands of documents.  As Secretary of State, Mrs. Clinton did not enjoy the latitude of a US President when it comes to handling classified information and destroying records.  The Secretary of State is an appointee of the President, the kind of “Officer” the statute on mishandling classified materials the statute talks about.

The bottom line for us is that we want the FBI and the DOJ to conduct themselves fairly, impartially, and without favor to anyone.  The power of the DOJ is both awe-inspiring and terrifying at the same time.  There are some 10,000 federal laws on the books and about 19,000 people working for the FBI and 119,000 working for the DOJ with a $30 Billion dollar budget.  If the DOJ wants to get you for something, they will get you for something.  The only protection we have as individuals facing such overwhelming might is our trust in the DOJ’s own self-restraint in not bending or breaking the laws to enforce them against us.  To remember that the law restrains not just the People who have to live under them but also those who make the laws and enforce them.