A Legal Expert Answers Questions About the FBI’s Mar-A-Lago Search Warrant Affidavit

by | Aug 28, 2022 | Quick Facts

FBI headquarters building, Washington D.C. Photo: Carol M. Highsmith, Wiki Commons

A Legal Expert Answers Questions About the FBI’s Mar-A-Lago Search Warrant Affidavit

by | Aug 28, 2022 | Quick Facts

FBI headquarters building, Washington D.C. Photo: Carol M. Highsmith, Wiki Commons
The information revealed in the affidavit indicates that our national security and the safety of intelligence agents were put at severe risk when national defense documents were apparently stored in a room at Mar-a-Lago.

The Justice Department on Aug. 26, 2022, released an affidavit written by an FBI special agent that was used to obtain a court order for the FBI’s search of former President Donald Trump’s Florida estate for documents related to national defense and other government records.

Large portions of the affidavit were blocked from public view, leaving many questions about details of the investigation. Nonetheless, what is visible shows the FBI had solid evidence that Trump took documents critical to national security to his Mar-a-Lago estate.

Florida federal Judge Bruce Reinhart had ordered on Aug. 22, 2022, that the affidavit—which typically contains key details about an investigation to justify a search warrant—be made public following a lawsuit from media organizations and other groups. But Reinhart also said in his order that he would allow the Justice Department to first redact some of the affidavit’s most critical information, like “the identities of witnesses, law enforcement agents, and uncharged parties … the investigation’s strategy, direction, scope, sources, and methods, and … grand jury information.”

It’s the latest development in the legal conflict over government documents, including national security material, that Trump has kept in violation of the law, according to the affidavit. The document shows that there is what the law calls “probable cause” to believe that Trump committed various crimes, including violation of the Espionage Act.

We asked Georgia State University legal scholar and search warrant expert Clark Cunningham to answer five key questions to help explain this new development.

1. What is a search warrant affidavit?

Let’s start with a search warrant, which is a court order authorizing government agents to enter property without an owner’s permission to search for evidence of a crime. The warrant further authorizes agents to seize and take away such evidence if they find it.

In order to get a search warrant, the government must provide the court one or more statements made under oath that explain why the government believes a crime has been committed, establishing that there is sufficient justification for issuing the warrant. If the statement is written, it is called an affidavit. This is why the first sentence of the unsealed affidavit has the words “being duly sworn” following the blacked-out name of the agent making the statement.

2. What’s the most important takeway from this affidavit?

Given that a lot of the information on the affidavit has been blacked out, probably the most telling new information is that the FBI agent says that a review of Mar-a-Lago documents the government had already obtained by grand jury subpoena earlier this year were marked in a way that would clearly indicate national security was at risk.

3. How does the affidavit show national security was at risk?

The affidavit reveals that some of the documents stored at Mar-a-Lago were marked HCS, indicating they were intelligence derived from clandestine human sources—or what we would think of as secret intelligence information provided by undercover agents or sources within foreign governments. If the identity of agents or sources is revealed, their intelligence value is compromised and, even, their lives may be at risk.

There were also documents marked FISA, meaning they were collected under the Foreign Intelligence Surveillance Act, documents marked NOFORN, meaning that the information cannot be released in any form to a foreign government, as well as documents marked SI, meaning they were derived from monitoring foreign governments’ communications.

4. Is it common for a court to unseal an affidavit while an investigation is underway?

Because a search warrant affidavit usually lays out the government’s case and identifies witnesses, it is very rare for a search warrant affidavit to be unsealed if there is an ongoing criminal investigation. That’s why there were so many redactions in the version of the affidavit that was released. If such an affidavit is unsealed, it’s most often later in the process, when criminal charges are actually filed.

Security officers guard the entrance to the federal courthouse in West Palm Beach on Aug. 18, 2022, as the court holds a hearing to determine if the Trump affidavit should be unsealed. Chandan Khanna/AFP via Getty Images

5. What does this say about the investigation and the seriousness of Trump’s alleged crimes?

The information revealed in the affidavit indicates that the country’s national security and the safety of intelligence agents were possibly put at severe risk when national defense documents were apparently stored in a room at a resort in Florida.

It’s a little confusing—there’s been much talk in the media about classified information. Improper storing of classified information is a crime, but that is not what is being investigated here. A much more serious crime under the Espionage Act is at stake.

Even someone like a former president who initially had lawful possession of national defense information commits a felony by retaining that information after the government demands its return. Trump can not hang on to national defense documents even if, while president, he “declassified” such documents, as he claims he did.

It’s been documented that a Chinese spy penetrated Mar-a-Lago while Trump was president. It is an unsecured location. If a foreign spy got into that room and walked out with information disclosing U.S. undercover agents around the world, or how we have been monitoring and collecting classified information around the world, I see the potential harm as staggering.The Conversation

Republished with permission from The Conversation, by Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State University

The Conversation

The Conversation

The Conversation is a nonprofit, independent news organization dedicated to unlocking the knowledge of experts for the public good. We publish trustworthy and informative articles written by academic experts for the general public and edited by our team of journalists.


Submit a Comment

Your email address will not be published.

Related Articles

Sep 24 2022

DeSantis Sued Again for His Martha’s Vineyard Stunt

A Florida state senator has filed a lawsuit against Governor Ron DeSantis for his abuse of Florida state funds for his Martha’s Vineyard scheme.
woman raise signage
Sep 20 2022

A New Survey Shows the Top Issues Motivating American Voters

A 19th/Survey Monkey Survey finds the economy is a bigger deal for Republicans and preserving democracy is bigger for Democrats as a motivating factor in this year’s...
Queen Elizabeth II in an open carriage with Prince Philip for trooping the colour 2015 to mark the Queens official birthday, London, UK
Sep 09 2022

The Long Reign and Enduring Legacy of Queen Elizabeth II

Elizabeth II inherited a monarchy whose political power had been steadily ebbing away since the 18th century but whose role in the public life of the nation seemed, if...
Sep 06 2022

Facebook Accused of Fueling Bolsonaro Coup-Mongering in Brazil

Facebook and Meta are actively helping mobilize an online army in Brazil that’s peddling conspiracy theories about the integrity of the election and threatening a...
Sep 03 2022

Judge Orders Lindsey Graham to Testify in Georgia Grand Jury’s Election Probe

A U.S. District Court judge has ordered South Carolina U.S. Sen. Lindsey Graham to testify in Fulton County special grand jury investigation into attempts to overturn...
Former President Donald Trump, at the Conservative Political Action Conference, Aug. 6, 2022, in Dallas. Photo by Brandon Bell/Getty Images
Aug 16 2022

Someone Doesn’t Have to Be a Spy to Violate the Espionage Act

When you hear “espionage,” you may think spies and international intrigue. More typically the Espionage Act applies to the unauthorized gathering, possessing or...
People vote in the primary election at the civic center in Silver Spring, Md., on July 19, 2022. Robb Hill for The Washington Post via Getty Images
Aug 08 2022

No, Local Election Officials Don’t Tilt Elections in Favor of Their Party’s Candidates

Have these officials, as some charge now, used their authority to interfere with America’s democratic process? Do local election officials abuse their power? The short...
Jul 29 2022

How Polio Snuck Back Into the U.S.

The first sign of trouble surfaced when a young man in Rockland County, New York sought medical treatment for weakness and paralysis in June. By the time tests...
Jul 29 2022

How a Grand Jury Works and Why Prosecutors Are Using Them to Investigate Insurrectionists

Aside from considering whether individuals may have committed a crime, a grand jury can also be used by a prosecutor as an investigative tool to compel witnesses to...
Jul 27 2022

Medical Price Gouging: From an Ambulance Ride to Collections

Peggy was “a little stunned” but mostly unhurt as three ambulances descended on the crash site, alerted by 911. She was seen briefly in an emergency room and went home...
Subscribe for Updates!

Subscribe for Updates!

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!

Pin It on Pinterest

Share This