FBI headquarters building, Washington D.C. Photo: Carol M. Highsmith, Wiki Commons
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.
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 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.
Help Support Factkeepers!
{"id":null,"mode":"form","open_style":"in_place","currency_code":"USD","currency_symbol":"$","currency_type":"decimal","blank_flag_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/flags\/blank.gif","flag_sprite_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/flags\/flags.png","default_amount":500,"top_media_type":"none","featured_image_url":false,"featured_embed":"","header_media":null,"file_download_attachment_data":null,"recurring_options_enabled":true,"recurring_options":{"never":{"selected":true,"after_output":"One time only"},"weekly":{"selected":false,"after_output":"Every week"},"monthly":{"selected":false,"after_output":"Every month"},"yearly":{"selected":false,"after_output":"Every year"}},"strings":{"current_user_email":"","current_user_name":"","link_text":"Leave a tip","complete_payment_button_error_text":"Check info and try again","payment_verb":"Pay","payment_request_label":"Factkeepers.com","form_has_an_error":"Please check and fix the errors above","general_server_error":"Something isn't working right at the moment. Please try again.","form_title":"Help Support Factkeepers","form_subtitle":null,"currency_search_text":"Country or Currency here","other_payment_option":"Other payment option","manage_payments_button_text":"Manage your payments","thank_you_message":"Thank you for being a supporter!","payment_confirmation_title":"Factkeepers.com","receipt_title":"Your Receipt","print_receipt":"Print Receipt","email_receipt":"Email Receipt","email_receipt_sending":"Sending receipt...","email_receipt_success":"Email receipt successfully sent","email_receipt_failed":"Email receipt failed to send. Please try again.","receipt_payee":"Paid to","receipt_statement_descriptor":"This will show up on your statement as","receipt_date":"Date","receipt_transaction_id":"Transaction ID","receipt_transaction_amount":"Amount","refund_payer":"Refund from","login":"Log in to manage your payments","manage_payments":"Manage Payments","transactions_title":"Your Transactions","transaction_title":"Transaction Receipt","transaction_period":"Plan Period","arrangements_title":"Your Plans","arrangement_title":"Manage Plan","arrangement_details":"Plan Details","arrangement_id_title":"Plan ID","arrangement_payment_method_title":"Payment Method","arrangement_amount_title":"Plan Amount","arrangement_renewal_title":"Next renewal date","arrangement_action_cancel":"Cancel Plan","arrangement_action_cant_cancel":"Cancelling is currently not available.","arrangement_action_cancel_double":"Are you sure you'd like to cancel?","arrangement_cancelling":"Cancelling Plan...","arrangement_cancelled":"Plan Cancelled","arrangement_failed_to_cancel":"Failed to cancel plan","back_to_plans":"\u2190 Back to Plans","update_payment_method_verb":"Update","sca_auth_description":"Your have a pending renewal payment which requires authorization.","sca_auth_verb":"Authorize renewal payment","sca_authing_verb":"Authorizing payment","sca_authed_verb":"Payment successfully authorized!","sca_auth_failed":"Unable to authorize! Please try again.","login_button_text":"Log in","login_form_has_an_error":"Please check and fix the errors above","uppercase_search":"Search","lowercase_search":"search","uppercase_page":"Page","lowercase_page":"page","uppercase_items":"Items","lowercase_items":"items","uppercase_per":"Per","lowercase_per":"per","uppercase_of":"Of","lowercase_of":"of","back":"Back to plans","zip_code_placeholder":"Zip\/Postal Code","download_file_button_text":"Download File","input_field_instructions":{"tip_amount":{"placeholder_text":"How much would you like to donate? You can change this amount to anything you would like.","initial":{"instruction_type":"normal","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."},"empty":{"instruction_type":"error","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."},"invalid_curency":{"instruction_type":"error","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."}},"recurring":{"placeholder_text":"Recurring","initial":{"instruction_type":"normal","instruction_message":"How often would you like to donate this?"},"success":{"instruction_type":"success","instruction_message":"How often would you like to donate this?"},"empty":{"instruction_type":"error","instruction_message":"How often would you like to donate this?"}},"name":{"placeholder_text":"Name on Credit Card","initial":{"instruction_type":"normal","instruction_message":"Enter the name on your card."},"success":{"instruction_type":"success","instruction_message":"Enter the name on your card."},"empty":{"instruction_type":"error","instruction_message":"Please enter the name on your card."}},"privacy_policy":{"terms_title":"Terms and conditions","terms_body":null,"terms_show_text":"View Terms","terms_hide_text":"Hide Terms","initial":{"instruction_type":"normal","instruction_message":"I agree to the terms."},"unchecked":{"instruction_type":"error","instruction_message":"Please agree to the terms."},"checked":{"instruction_type":"success","instruction_message":"I agree to the terms."}},"email":{"placeholder_text":"Your email address","initial":{"instruction_type":"normal","instruction_message":"Enter your email address"},"success":{"instruction_type":"success","instruction_message":"Enter your email address"},"blank":{"instruction_type":"error","instruction_message":"Enter your email address"},"not_an_email_address":{"instruction_type":"error","instruction_message":"Make sure you have entered a valid email address"}},"note_with_tip":{"placeholder_text":"Your note here...","initial":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"empty":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"not_empty_initial":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"saving":{"instruction_type":"normal","instruction_message":"Saving note..."},"success":{"instruction_type":"success","instruction_message":"Note successfully saved!"},"error":{"instruction_type":"error","instruction_message":"Unable to save note note at this time. Please try again."}},"email_for_login_code":{"placeholder_text":"Your email address","initial":{"instruction_type":"normal","instruction_message":"Enter your email to log in."},"success":{"instruction_type":"success","instruction_message":"Enter your email to log in."},"blank":{"instruction_type":"error","instruction_message":"Enter your email to log in."},"empty":{"instruction_type":"error","instruction_message":"Enter your email to log in."}},"login_code":{"initial":{"instruction_type":"normal","instruction_message":"Check your email and enter the login code."},"success":{"instruction_type":"success","instruction_message":"Check your email and enter the login code."},"blank":{"instruction_type":"error","instruction_message":"Check your email and enter the login code."},"empty":{"instruction_type":"error","instruction_message":"Check your email and enter the login code."}},"stripe_all_in_one":{"initial":{"instruction_type":"normal","instruction_message":"Enter your credit card details here."},"empty":{"instruction_type":"error","instruction_message":"Enter your credit card details here."},"success":{"instruction_type":"normal","instruction_message":"Enter your credit card details here."},"invalid_number":{"instruction_type":"error","instruction_message":"The card number is not a valid credit card number."},"invalid_expiry_month":{"instruction_type":"error","instruction_message":"The card's expiration month is invalid."},"invalid_expiry_year":{"instruction_type":"error","instruction_message":"The card's expiration year is invalid."},"invalid_cvc":{"instruction_type":"error","instruction_message":"The card's security code is invalid."},"incorrect_number":{"instruction_type":"error","instruction_message":"The card number is incorrect."},"incomplete_number":{"instruction_type":"error","instruction_message":"The card number is incomplete."},"incomplete_cvc":{"instruction_type":"error","instruction_message":"The card's security code is incomplete."},"incomplete_expiry":{"instruction_type":"error","instruction_message":"The card's expiration date is incomplete."},"incomplete_zip":{"instruction_type":"error","instruction_message":"The card's zip code is incomplete."},"expired_card":{"instruction_type":"error","instruction_message":"The card has expired."},"incorrect_cvc":{"instruction_type":"error","instruction_message":"The card's security code is incorrect."},"incorrect_zip":{"instruction_type":"error","instruction_message":"The card's zip code failed validation."},"invalid_expiry_year_past":{"instruction_type":"error","instruction_message":"The card's expiration year is in the past"},"card_declined":{"instruction_type":"error","instruction_message":"The card was declined."},"missing":{"instruction_type":"error","instruction_message":"There is no card on a customer that is being charged."},"processing_error":{"instruction_type":"error","instruction_message":"An error occurred while processing the card."},"invalid_request_error":{"instruction_type":"error","instruction_message":"Unable to process this payment, please try again or use alternative method."},"invalid_sofort_country":{"instruction_type":"error","instruction_message":"The billing country is not accepted by SOFORT. Please try another country."}}}},"fetched_oembed_html":false}
{"date_format":"F j, Y","time_format":"g:i a","wordpress_permalink_only":"https:\/\/factkeepers.com\/a-legal-expert-answers-questions-about-the-fbis-mar-a-lago-search-warrant-affidavit\/","all_default_visual_states":"inherit","modal_visual_state":false,"user_is_logged_in":false,"stripe_api_key":"pk_live_40P3DgGDAHEP1QtJ0nOU4nms5JYHI8GbQ05dYiB1S8OPP5oMSIpOCCeeIawOyeW6bWDkDMWdUeggbhxOQTSA6aedu00ROAbhXBd","stripe_account_country_code":"US","setup_link":"https:\/\/factkeepers.com\/wp-admin\/admin.php?page=tip-jar-wp&mpwpadmin1=welcome&mpwpadmin_lightbox=do_wizard_health_check","close_button_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/closebtn.png"}
