DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

Everyone is squabbling over whether DOJ should release more information on the search of Mar-a-Lago, with entirely reasonable people saying they want DOJ to have to defend taking documents the government owns so we can learn more about what went down.

But we may get more clarity more easily than that. That’s because, if DOJ has any intention of actually charging Donald Trump for stealing classified information, then obtaining specific documents he stole may be one of the last things they need to do before charging him.

As I noted here and here, one of the statutes that’s likely on the table for the Former President is 18 USC 793(e), basically taking national defense information you’re not authorized to have and refusing to give it back.

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

Regular readers of this site are familiar with this statute because I’ve covered tons of cases charging it: Reality Winner and Hal Martin and Joshua Schulte, among others.

But I went back and found some pattern jury instructions for the unlawful retention charge, and because of that meeting in June, DOJ has most of what they’d need to charge the Former President.

Here’s what jurors would be asked to decide:

Did the defendant, without authorization, have possession of, access to, or control over a document that was National Defense Information?

Yes. The Archives spent a year telling him he was not authorized to have it under the Presidential Records Act.

Did the document in question relate to the national defense?

We don’t know what the documents in question are, but given WaPo’s description in February, then absolutely.

Bonus fact: The jury decides if something was NDI, not the former Original Classification Authority (the fancy term for, “the President gets to decide whether something is classified or not”). So if the agency whose document Trump stole is still trying to protect it from hostile powers, if that agency still believes it is classified, if it remains secret, then a jury is likely to find that it’s NDI.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?

Trump is such a psychopath that the answer to this might normally be in question. After all, he routinely treated top secret intelligence like it was toilet paper or party favors for visiting Russians.

Except DOJ went to Trump’s residence in June and told him this information could harm the US. Then they wrote him a letter, saying that it could harm the US and could he please put a padlock on the basement room that had, up until that point, been accessible to all the suspected foreign assets who’ve paid the price of admission to Mar-a-Lago.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it?

Yes! The Archives asked and asked and asked. And then DOJ went to his home and asked again!

Did he keep this document willfully?

Yup. Again, DOJ asked and asked and asked. Trump exhibited awareness the Archives were asking. He stopped in to say “hi!” when Jay Bratt, the head of DOJ’s espionage section, came to visit. And he still hoarded the document.

This may be why Trump claims that nothing was in the hotel safe in his bridal suite, by the way. Keeping these documents at Mar-a-Lago was willful by itself. But keeping such documents in his safe would be proof that he, personally, was hoarding it.

If the FBI really did scoop up highly sensitive documents when they were at Mar-a-Lago the other day, then there may be relatively few steps left to charging him — aside from cataloging the 12 new boxes of stolen documents. DOJ may only need permission from the agencies that own these documents to make the declassifications required to prosecute it.

By going to Mar-a-Lago and asking for these documents in person on June 3, DOJ made it very easy to prove that Trump had been asked, but refused, to give any classified documents found in Trump’s possession on Monday back.

Update: Here’s an indictment from the 793 case that’s most similar to the evidence that may be present with Trump. Hal Martin kept taking highly classified documents home from CIA and NSA, just like Trump took documents home. In Martin’s case, they charged him for 20 documents out of the great swath of documents he stole. He ultimately pled guilty. With good behavior he might get released next April.

135 replies
  1. cmarlowe says:

    How does this all work if the documents are TS and their content needs to remain secret?

    [Username edited. /~Rayne]

  2. Ravenclaw says:

    Yes. Even if one made a case that he HAD been authorized to possess those documents, that would fall under 18 USC 793(d), right? And the rest of the questions remain the same. So it would come down to whether any of the documents or other materials were defense-related and could conceivably have been used to the detriment of the USA or for the benefit of some adversary. If the case goes to court, then the defense attorneys will need to persuade enough of the jurors that this was not the case (i.e., that they were not really defense-related), despite the judgment of the original classifying authority. Correct?

  3. WilliamOckham says:

    Thank you for this. I’ve been trying to figure out how to explain to people that the sequence of events in June is the key to understanding what was going on. Corcoran and Bobb must have essentially admitted to the crimes on Trump’s behalf. There’s no other reason for the request to put a padlock on the door.

    • emptywheel says:

      Yup. And PUTTING a padlock on the door is part of your proof that they know the docs are classified.

      It’s all so graceful. And add in the way PRA and 793 work together. PRA is literally one of the ONLY laws that a President can’t say he’s immune from. It was written to cover someone doing just what Trump was attempting — to steal evidence of his corruption.

      And because it makes it clear that the Archives owns the documents, it makes the unauthorized part a cinch.

      • klynn says:

        Oh my! EW this is award winning writing! As groundbreaking as your waterboarding math observations!

      • Andrew says:

        Finding this website has been a godsend for me. I’ve been an avid court watcher for ages and you do a great job of explaining this stuff!

        [Welcome back to emptywheel. THIRD REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Andrew” or “Andy.” Thanks. /~Rayne]

    • Fancy Chicken says:

      Maybe I’ve missed this nugget of information: it’s logical to assume there have been a number of communications between TFG’s legal team and the feds since the first trove of boxes were taken so WHY ON EARTH didn’t the FBI team in June come with a secure vehicle and movers, like what transported the first group of boxes in February, and say “Last Chance Donny, hand the boxes over, and whatever else you have that is not your property but the Government’s or the next visit we’re coming for the boxes and YOU!”

      I mean I’m kinda baffled that the fed team got a basement tour on the June visit; like, why would you show off your crime boxes to feds?

      And why would the feds walk away empty handed BUT a few days later, ring up TFG and say “uh, you might want to put a lock on the door your crime boxes are behind ya know.”? And then a few days after that, ring up MAL and say “Hey, we’d like to have all your surveillance tapes.”, then taking over two months from the June meeting to finally get a warrant and take the boxes?

      It’s all clear as mud!

      I just really don’t understand the actions of the fed and no one has given any information about the June meeting such as did the feds ask for the stuff, were they refused, did TFG or his attorneys make any promises to hand the stuff over these past two months and reneged?

      Really, there is a whole lot to know here that would help make sense of the “why now” question, and why not a month ago. What has been going on in the fed end for this to play out nearly two months after asking for a freakin’ padlock, not even say a security system or guard that might be a stronger deterrent, on the basement door?

      Unless TFG decided to share the warrant or we get an affidavit or charging documents in the public realm, everything is just flat out speculative.

      I’m so very confused over what has gone on with the feds and TFG and it’s really frustrating!

      Done venting and any clarity anyone can offer is greatly appreciated.

      Fancy Chicken

      • Paulka says:

        Wild ass guess here, but maybe not recovering the material in June is due to the security and required processes involved in recovering the documents. I don’t think it is a simple as picking up a box of paper and putting it in your car. There is tracking and electronics and other stuff I am sure involved

        • bmaz says:

          No. You think Jay Bratt, Chief of Counterintelligence and Export Control Section, National Security Division, U.S. Depart. of Justice, did not have clearance to remove such documents?

      • Be-a-man says:

        “Why now” is likely due to Trump hosting the Saudis for a golf tournament. Granting them a sense of legitimacy and welcome-ness.

      • Mr. Keep it simple says:

        Simply put they were giving him way more than Ex-presidential preferential above the law treatment… more beneficial on his own time schedule to return those super-sensitive documents….than either you or I would have had to return them. A lot of other in this world think just like him and think they were just born with ENTITLEMENT. ABOVE THE LAW BS.

  4. Peterr says:

    Except DOJ went to Trump’s residence in June and told him this information could harm the US.

    They didn’t send a couple of low-level flunkie AUSAs to make this visit either. One of the lawyers involved was Jay Bratt, the chief of counterintelligence and export control. His fuller bio is . . . fuller:

    Jay Bratt is the Chief of the Counterintelligence and Export Control Section (CES) of the National Security Division [of the DOJ], where he oversees all of CES’ operations. Mr. Bratt is also CES’ Principal Deputy Chief, and he was previously CES’ Deputy Chief for Export Control and Sanctions, with responsibility for reviewing and approving all export control and sanctions prosecutions the Department of Justice brought. He previously served as the Deputy Chief of the National Security Section in the United States Attorney’s Office for the District of Columbia. At the U. S. Attorney’s Office, he prosecuted a wide variety of Espionage Act, export enforcement, and counterterrorism matters. Mr. Bratt has also served as the National Security Counselor to the Director of Immigration and Customs Enforcement, Deputy Director of the Guantanamo Review Task Force, and Chief of the Litigation Section in the Office of Intelligence at the Department of Justice, where he oversaw requests for the use of information obtained through the Foreign Intelligence Surveillance Act in connection with judicial and other proceedings. Before that, Mr. Bratt had many years of experience as a line prosecutor in the U.S. Attorney’s Office for the District of Columbia and within the Department of Justice. Mr. Bratt is a graduate of Harvard Law School and Brandeis University.

    WIthout any evidence, I think the DOJ included Bratt in the delegation to emphasize the seriousness with which the DOJ took the task of recovering these documents. Also without any evidence, I think Trump took Bratt’s presence not as proof that this was a serious issue, but as a sign that the DOJ was trying to bluff him, so he told his lawyers “stall them, stall them, stall them, and we’ll drag this all out in court so long I’ll be back in office before anything is decided.”

    And with the search warrant, DOJ demonstrated rather firmly that they were not bluffing. If you are right, Marcy, Trump may want to follow the advice someone else said recently in another context: “Preserve your documents and clear your calendar.”

  5. klynn says:

    Thank you! Thank you! Thank you!

    This is an amazing post! Now to get more journalists to understand these facts and lenses to analyze the misinformation being dropped!

    You are amazing EW!

  6. klynn says:

    Thank you! Thank you! Thank you!

    This is an amazing post! Now to get more journalists to understand these facts and lenses to analyze the misinformation being dropped!

    You are amazing EW!

  7. Tom-1812 says:

    When I check the internet, I find that paper holds fingerprints well because the surface fibres absorb the oil from your skin. Furthermore, paper items at crime scenes are frequently examined for fingerprints. Given that these are classified documents we’re discussing, you would think the number of people handling them would be limited and easy to identify.

    This is probably the wildest of wild goose chases, but I wonder whether it would be possible to check the documents now that they’re back in gov’t hands to see if there are any fingerprints on them that shouldn’t be there or that can’t be identified. Or would authorized people who handle these documents wear cotton gloves as a standard archival preservation measure so as not to leave skin oils on the paper? Of course, I understand we’re talking about 1000s of pages of documents.

    • Spank Flaps says:

      In regular criminal cases, they fingerprint any relevant documents that are in evidence. They have done since the 50’s.

    • Geoguy says:

      I am way out of my range here but I wonder if there is any value in tracking the machine identification codes on the copies that Trump had. They could show where, when, and from which printer the copies were made. That could show if the documents were originally printed in the White House, for example, or are copies printed elsewhere so the first copies could be in the wild. I looked at an article at for info; “computer-printers-have-been-quietly-embedding-tracking-codes-in-documents-for-decades”.

    • sleutherone says:

      If the goal is to return the originals to the archives they won’t likely process for prints. The handwritten notations are a big part of why they keep the original and/or annotated documents.

      That said, print processing is not so simple.

      There are several things that must be considered before deciding to process paper for prints. The type of information is being sought would determine which tests are performed. DNA sampling and ink analysis must be conducted first. Typically, the investigator(s) on the case meet with lab analysts and discuss what type of information is most important to the case. From there the sequence of analysis would be decided. The investigator would then have to submit a written request to the lab so that this sequence of analysis is documented.

      As I said the original document in question may have value of its own that would make it unreasonable for printing. For example, if there are handwritten notations and multiple types of inks, exposing the paper to chemicals (typically ninhydrin) may cause fading or total loss of this critical writing. Ninhydrin is a dark purple color. Developed prints might obliterate some writing.

      Something else that must be considered is the availability of prints to use for comparison. Lab analysis involves comparing unknown samples to known samples. While persons seeking security clearances or those in the military will have prints taken, most politicians have no such requirement.

      I’m not saying they won’t try getting prints, just that it’s not always as simple as one might like.

      • bidrec says:

        Working in banking will get you fingerprinted, e.g., Larry Kudlow, Steve Mnuchin, Wilbur Ross, etc.

        • grennan says:

          So will anyone who accepts a federal civil service job at any level…including GS-2 clerk-typists with no clearances, even if they’re just part of the summer jobs program.

  8. cmarlowe says:

    >> Bonus fact: The jury decides if something was NDI, not the former Original Classification Authority

    How does the jury decide if a classified document is NDI if they are not cleared to see it? Not clear to me how this all works.

    • Rugger9 says:

      Even if the document proper is redacted, there are still classification markings including whether it’s NDI that are not going to be redacted or covered up. Since this is a case about handling NDI rather than what is contained beneath the redactions that would be all that is necessary for proving the crime.

      When Joe Biden said “…so help me God” on 20 JAN 2021 he also removed the ability of Individual-1 to pixie-dust any insta-declassification exercise as well as pardon power. I wouldn’t put it past TFG to post-date docs to cover his tuchus.

      • cmarlowe says:

        Thx Rugger9. So the jury really doesn’t make a substantive NDI determination. You are saying that the Original Classification Authority determination (by at a minimum putting “classified” at the top and bottom of each page) is what holds.

      • SteveR says:

        Not sure how material it might be, but I also hope we learn that Biden took formal action to reclassify the docs in Trump’s possession and that Trump was explicitly notified of that action.

        • skua says:

          AIUI: That would make it certain that the documents are currently classified, irrespective of whatever DJT had done around declassification.

      • Joeff53 says:

        To save me having to dig thru the papers, do the courts use a general or special verdict form in these cases—i.e. does the jury announce decision on each of the questions you identify?

  9. Fran of the North says:

    I saw else web that the safe in question was in his office on an upper floor and it was described as a typical in-hotel-room safe. If correct, it presents a completely different perception than the one conjured by the statement’s Trump and his spokes persons are making.

    That article claimed that the safe was indeed empty, but how that description was sourced was not made clear, and may very well have been from a spin-meister.

    While hard to feel sorry for any of this crowd, I wonder if Bobb and Corcoran had attempted to get compliance but were stiff armed by their client, because he always knows what’s best.

  10. Terry Salad says:

    In your previous post, a commenter made the following statement: “The DOJ is not stupid, and they knew that the wingnuts would be riled up as soon as the warrant was served and made public. They also know that the wingnuts will not be appeased by a statement after the fact saying “OK, we got the docs back, so we’re all good here.” In other words, the DOJ is doing this because they are pursuing something, and it is something with big enough national security implications that they are willing to stir up Trump’s followers and deal with the PR blowback.”

    But Newsweek (not a reliable source, I know) now says “Both senior government officials say the raid was scheduled with no political motive, the FBI solely intent on recovering highly classified documents that were illegally removed from the White House. ”

    So that would suggest it WAS just about the documents right?

    I’m just trying to gauge how much trouble Trump is in. I want to know what the “something big” is. Trumpers have already framed this as basically “overdue library books.” They’ll continue with that even if the “library books” contain incredible sensitive secrets. But is there any suggestion Trump actually tried to do something with those documents?

    • JBinCA says:

      FWIW, the Newsweek piece also says:
      “The senior Justice Department source says that Garland was regularly briefed on the Records Act investigation, and that he knew about the grand jury and what material federal prosecutors were seeking. He insists, though, that Garland had no prior knowledge of the date and time of the specific raid, nor was he asked to approve it.”

    • 90’s Country says:

      I was in my early 20’s when I watched Watergate unfold on a black and white tv. Now I’m in my early 70’s and getting the same feeling of satisfaction that honest individuals are following the evidence where it leads, period. And this time it’s on my phone.
      Thanks for all you do, EW.

      • Tom-1812 says:

        That’s pretty well my memory of the Watergate summer of ’74, too. One big difference, though, is that most, if not all, members of Congress at that time had served in WWII in some capacity. Even Nixon, despite his Quaker beliefs, asked for active service and was posted to the Pacific Theatre. That generation of Republicans took their political responsibilities seriously because knew firsthand the dangers of fascist militarism and what it took to defeat it. Most present day GOPers are divas and lightweights by comparison.

        • Kris Prasad says:

          I too, in my early 20’s, watched the Watergate proceedings with astonishment as a a non- citizen though I am one now. I don’t know how many know this but George McGovern, whose election run triggered Watergate ( actually it was Sen. Muskie who was responsible but that is not relevant) , flew the most sorties of any pilot in WW2 ( please fact check). Ironic that he was labeled a peace-nik , or some such, after all that. Not unlike Eisenhower who warned of the military complex taking over the country.

        • Dmbeaster says:

          He flew 35 missions as a B-24 pilot, which was the most produced heavy bomber of the war. It was not an extraordinary number of missions, but the attrition rate for bomber aircrews was high. His service would be finished at 50, but the war ended. German fighter pilots racked up the most sorties – the record was 1,404. They typically stayed in service until killed.

        • David Finley says:

          The spell checker turned bombsight into homesite….

          Reasonably sure my father said his B17s were equipped with Norden bombsights, and surely the B24s would have been, as well.

        • posaune says:

          Bmaz @ 11:02 — My dad was a navigator on a B-17 out of Bassingbourne (the Memphis Belle base) — HB91st/324th. He flew 35 missions (including Regensburg and Schweinfurt) (on the Wild Hare, Lucky Lady, Black Swan); then was trained in Recon using the Norden bombsight — flew 7 missions in Recon. Back in the States by 6/30/1944. And he was a peacenik, too. So was my mother, as well, who worked for Robert Jackson at Nuremberg.

        • bmaz says:

          Awesome! Google the Norden, the Wiki alone on it is really good. Not particularly as accurate by anything we know today, but a spectacular piece of engineering.

        • grennan says:

          Another irony…late in life he said he’d voted for Gerald Ford in 1976, not Jimmy Carter, because he knew the former and not the latter.

          Kind of puts a different spin on “dangerous leftist”!

    • Peterr says:

      I’m the one who made that statement about the DOJ not being stupid. It was in reply to a question asking if the DOJ would drop pursuing charges if they got all the documents back, in order to calm down the wingnuts. My reply said that no, they wouldn’t do that. They made the decision to seek the warrant knowing it would cause political problems, and they also know that trying to backpedal after the fact would not calm them down. In other words, the DOJ didn’t care about the politics because the national security interests were so strong. Thus, I was saying the same thing that Newsweek was saying.

      But to say “it WAS just about the documents” misses the point. These are not attendance sheets at cabinet meetings that were somehow misfiled. These are not scorecards from the EOB v West Wing softball game. These are documents with strong national security implications, and the DOJ sent one of their top national security division folks to Mar-a-Lago in June to tell Trump just that.

      Simply possessing these documents without authorization is a *big* problem.
      Storing them in a less-than-secure manner makes that big problem bigger.
      Refusing to return them when asked — multiple times — makes that bigger problem even bigger.

      And that doesn’t even get into what Trump might or might not have done with them, like show them around to impress guests or try to leverage them in some way to enrich himself, either of which would make things exponentially worse.

      • Terry Salad says:

        Thanks for the info, it helps. Garrett Graff at Wired writes: “Ironically (again), the Justice Department’s 2016 decision not to prosecute Hillary Clinton for her sloppy handling of classified materials as secretary of state raises the bar for any prosecution stemming from Trump’s handling of classified documents. DOJ prosecutors are heavily driven by precedent and similar past cases, which means that in order to pursue this Trump investigation, there would have to be more serious (and criminal) concerns than there were in the investigation of Clinton.”

        “Thus, we’re left with the big question the FBI is ultimately trying to investigate right now: Who would have benefited from Trump taking home these particular documents—and why?”

        It is articles like this that make me think Trump was up to something with these documents. Exactly what that was seems to be subject of much speculation. I cannot help but think Trump tried something real bad here and I’d love to see him in prison for life.

      • khollenCA says:

        > They made the decision to seek the warrant knowing it would cause political problems, and they also know that trying to backpedal after the fact would not calm them down.

        Which is why I’m wondering if we can expect something like an indictment fairly imminently?

        I’m also wondering how much intention to attribute to Trump re: not releasing the search warrant or list of what the FBI retrieved. There’s been an astounding, and disturbing, amount of willingness among partisans including high-ranking MoC to defend him against very serious acts. So does that suggest that whatever’s in that warrant is not only bad, it’s so bad that Trump thinks it’s a bridge too far even for Rubio McCarthy etc.?

      • Marika says:

        There was some reporting that the Feds got security cam footage from Mar a Lago sometime before the search. Is it possible that the security cam footage showed someone accessing the locked room? Could that be why they asked for the warrant?

    • Hollygolightly says:

      Doesn’t the fact that Kumquat Pol Pot has not released the warrant indicate it is more that overdue library books? If it was that simple, he’d post the warrant and scream like a stuck pig about being persecuted for nothing. I know he is squealing, but, he hasn’t coughed up anything that’d vindicate him, and he would, if he could.

      • Riktol says:

        Trump released the incriminating transcript of his call with Zelenskyy and claimed it exonerated him, so frankly I don’t think we can rely on the logic that he’d release it if it was exculpatory.
        Of course he’s more sophisticated than he acts, so he might be worried about Fox using it against him, maybe in order to boost DeSantis.

        • Rayne says:

          It wasn’t a transcript he released. It was more like an executive summary and did not exonerate him in any way, especially since the transcript was archived in a non-standard way to prevent access.

        • Riktol says:

          Sorry for my inaccurate terminology, I hope it was clear enough that I didn’t say the call summary was exculpatory, only that Trump _claimed_ it was exculpatory.

    • Andrew says:

      Well, there was that Saudi-backed golf tournament at Bedminster last week or so. Could there have been a private auction going on at the same time? Could knowledge of that prompt the quick raid?

      Expiring minds want to know!

      [Welcome back to emptywheel. FOURTH REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Andrew” or “Andy.” PLEASE MAKE A HABIT OF CHECKING YOUR LAST COMMENT TO SEE IF THERE ARE ANY REPLIES FROM COMMUNITY MEMBERS INCLUDING MODERATORS. /~Rayne]

      • generalsternwood says:

        Which is another scenario in which Eric’s claim the safe was empty might be more damning than if it was found to be full of top secret documents.

  11. Mike Wyman says:

    Any padlock can be picked open within a minute by a competent picker. Or obviously destroyed or removed by simple leverage. A padlock is a barrier only to law abiders and children, and really nothing more than a signal that something valuable is inside. See Lockpickinglawyer on YouTube.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; your previous 12 comments here were as username “seesdifferent.” Thanks. /~Rayne]

  12. Chris says:

    But… but…. Kash Patel said the declassifying totally happened and was totes legit!

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you commented last as “Christopher.” However we have other community members named “Chris” “Kris” “Christopher” or “Kristopher.” Please use a more unique username or variant of previous usernames to distinguish yourself. Thanks. /~Rayne]

  13. Badger Robert says:

    The June 3 meeting built the arch. Serving the search warrant dropped the arch stone in place. The arch is now complete and the scaffolding can be removed.
    Departing the metaphor, it seems likely that DofJ can prove that the information has been dispersed to foreign adversaries of the USA. Given that DofJ could anticipate the blow back, it seems they would have concealed their final operational plan.

    • Gee says:

      I suppose it is also possible that the govt not only knows that some classified information is missing, but has through its own efforts, determined that some other foreign party ALSO has that information, and could have only obtained it from these missing source files. I’d imagine if you know certain things are missing, you’d probably be highly focused and tuned in to any chatter about these in intelligence circles during the period in which they’ve gone AWOL. Of all the criminality Trump has unleashed, I’d very much enjoy seeing him go down as the worst spy in our country’s history, since we sort of knew from early on he was doing more to aid other countries than helping his own. At this point, anything that puts him away is fine by me.

      • xbronx says:

        Putting my screenwriter’s hat on, this is what I was thinking as well. And if true, it would be delicious. As we have been dealing with a mob boss wannabe, I have always assumed that *45 was somehow getting a taste of whatever went down while he squatted in the Oval Office.

        • Peterr says:

          If the true part you refer to is that this information made its way into unfriendly foreign hands, it would be disastrous, not delicious.

          Information gets classified because revealing it can — and with highly classified information, will absolutely — get people killed. These might be US intelligence agents, sources on whom our intelligence agents rely, military troops in battle (ours or our allies, like Ukraine), or all kinds of ordinary people who would become collateral damage from a vengeful government.

          All in all, I’d rather Trump be convicted of trying to do something, not succeeding at it.

        • Badger Robert says:

          Hopefully it hasn’t already had that result. But we don’t know. The NSA and DofJ may know.

        • Vinnie Gambone says:

          ” Worst spy in History”

          I’m not understanding why, or what the basis was for leaving any documents behind after the June 3rd visit. They took some boxes then, right? Why not all ? Were they told by someone they could not take the remaining docs? Could they have placed a recording device in the room? Did someone set of a motion detected camera in the storage room which caught someone entering the room and taking something out, say, around the time of the Saudi visit?
          Did they do a complete inventory of what they left behind June 3? Was the raid to verify that items that were left behind June 3rd have been moved out of that storage, and the qustion now is, it was here June 3, where is it now?
          Just odd they left anything at all behind knowing Trump had no bussiness having possession.

        • Peterr says:

          The June 3 meeting wasn’t to collect materials. It was a discussion between lawyers – DOJ folks to say “you really have to produce the rest of this stuff” and the Trump folks to say “we’ll let the Boss know and get back to you.”

          The collection of boxes reported before this week happened in January, and when the Archives got that material back, they were horrified to see classified materials among the items in the boxes. They went to the DOJ to report this, and that kicked off the serious push to get it all back.

        • Fancy Chicken says:

          Yes indeedy, I have many questions similar to yours Vinnie.

          There is much to learn about what happened at that meeting in the beginning of June and what else went down that month.

  14. Obansgirl says:

    Thank you so much EW and commenters. This is like reading John Le Carre’ . I am glued (literally in this heat) to my chair. You are all so damn smart. I am in awe. Thanks again.

  15. khollenCA says:

    Valuable reading as always.

    What I keep coming back to are the personalities involved – it’s inconceivable to me that neither Monaco nor Garland closely reviewed the warrant request, weren’t fully aware of the likely response, and that the federal magistrate judge somehow didn’t appreciate what approving the warrant would mean (big picture *and* for them personally).

    It’s also difficult for me not to think that DOJ would’ve left this step to the last. Like, if you know that lining up this particular duck will set off a total shitstorm, then you make sure all your other ducks are lined up first. Maybe it’s wishful thinking on my part since I would really like to find out sooner rather than later what DOJ is doing here, and if this was the last duck, then I’d expect to find out very shortly. But I’ve been following the reporting here at EW closely, and the EW team has been tracking a lot of water fowl-adjacent movement over an extended period of time. So, give that and what’s laid out in this article, I don’t think it’s too far-fetched?

    (Now that I’ve killed that metaphor, and because I am at heart a petty person, I have to say that I hope y’all at EW are enjoying yourselves right now. The question “what is Merrick Garland/DOJ doing” just took on a whole different tenor.)

  16. Fran of the North says:

    To give you an idea about how seriously the military takes document security, one of my dad’s jobs (at the time either Maj or Lt Col) while he was at the Pentagon was to break into locked offices and file cabinets to make certain that classified documents were secured appropriately. If they weren’t, it was a potentially career ending mistake for the offender.

    As a kid I was always proud of my dad’s skills as a lock picker, and always hoped he’d teach me, but alas, no luck there. Sort of the same as an ethical hacker these days.

      • Fran of the North says:

        Another cool job he had was senior Army officer on the Airborne Command Post – Briefed Nixon and Kissinger on how they believed the Soviets would invade Europe – through the Fulda Gap.

        Another: Attache to the Ambassador in Moscow.

  17. Nick P says:

    Excellent analysis, Ms. Wheeler and a well deserved reference in WaPo.

    “The affidavit submitted by the FBI as it sought the warrant, however, would have been much more detailed. Journalist Marcy Wheeler walked through what the affidavit for the Trump search might have included in broad strokes, but the one submitted for the search of Trump adviser Roger Stone’s home gives a sense of the sort of detail that would have been included.”

    • hollywood says:

      There’s some deja vu here. Stone’s premises were raided and he howled about the illegality of it all. Then he was convicted. Then Trump granted him clemency. I don’t see anyone in a position of authority who would want to grant Trump clemency.

  18. hollygolightly says:

    Just want to say, if anyone hasn’t, please consider a donation to Emptywheel. The work here is excellent, and such a boon to our mental health, if nothing else. Reward them for their efforts.

        • bmaz says:

          Yeargh, I am not sure! There is a button on the support tab on the home page, but assuming your VISA is not PayPal linked. I will have Rayne or Marcy get back to you on that. And, thank you in advance for asking and trying!

        • Rayne says:

          You should be able to make a contribution as a guest through PayPal.
          — Go to the Support page (link at top right of home page next to the Search icon magnifying glass);

          — Click on Donate Via PayPal in center of Support page;

          — Click on Send below Marcy’s name;

          — Follow along with the prompts in PayPal; if you don’t have a PayPal account you can sign up or you can use your PayPal account by logging in at this point. You should also be able to contribute as a guest through PayPal.

          Thanks much for your support!

        • giorgino says:

          I tried PayPal, a no-go. I’m not a fan of surveillance capitalism so did not want to register with them. I now have your address and will send a cheque. I’m from Canukistan (just north of you all) so I’ll have to get to the bank and get a US$ draft. It’ll be a bit of time, but will get there. I assume it should be made payable to emptywheel, LLC?

          Thanks for you time!

    • mlmcgill says:

      Thanks for the nudge. Greatly appreciate the work that happens on this site — stories and comments both. Thanks for substantial insights in a world of bluster and spin.

  19. Matt Corr says:

    I wonder if Trump planned to use these documents as leverage against being indicted? Like “If you charge me, I’ll disseminate all of this classified information.”

    • bmaz says:

      Why are people that have no idea in the world, none, so hell bent on wildly speculating on what was sought, and subsequently taken, in the search?

      • Obansgirl says:

        It can be difficult on the blog to know when to participate. Intimidating in fact. I’m no kid. Pretty well informed as I read absolutely everything I can. Sometimes a community isn’t all that friendly. Just IMHO.

        • bmaz says:

          I’m sorry about that. But this not your local newspaper comment section, nor a 90’s MySpace discussion board. What does rampant beyond wild and completely unsupported speculation add? I think it was aliens that planted it all!

  20. Cosmo Le Cat says:

    I have a dream that properly justified and issued FISA warrants picked up Trump proffering defense secrets to foreign adversaries, and that those documents were recovered by the FBI.

    What a superb article, but I disagree with the statement, “there may be relatively few steps left to charging him.” That was probably said flippantly, but I would expect that all those who directed, selected or packed the documents at the White House and those who handled them at M-a-L would be brought before a grand jury. I can just imagine Trump telling some aid to “go down to the storage room and find me the list of CIA agents stationed in Saudi Arabia.”

    • cmarlowe says:

      >> I would expect that all those who directed, selected or packed the documents at the White House and those who handled them at M-a-L would be brought before a grand jury…

      Maybe they have been before a grand jury or have been otherwise interviewed.

      • bmaz says:

        Yeah, that is not necessarily true. Presentations to the GJ try to not be repetitive. That doesn’t mean that others may have been dealt with more informally, it is just not known yet.

  21. Brian Dodge says:

    “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, … or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…” My reading of this is doesn’t matter how crazy/stupid/willfully ignorant T***p is, If he’s sane enough to decide to keep it(“my safe”) he’s sane enough to be guilty.

  22. retired railroad switchperson says:

    I read Marcy’s & the rest of the team’s posts daily & am often challenged by the scope of information about evidence, court filings, DOJ practices, & federal court processes. But I do try to keep up. This is maybe the most lucid post I’ve read here. It’s especially encouraging in view of the fact that EW consistently slaps down conjecture based in wishful thinking. Thanks!

  23. kgb999 says:

    While this is true, such a visit seems completely unnecessary to establish any of the points you have raised. Correspondence between Trump’s team and the National Archive provides air-tight documentation.

    For the purpose of proving their case, top DoJ officials personally flying to Florida and begging Trump to give back the documents feels mostly superfluous. Yes it’s “more” … but it’s “more” that doesn’t actually add anything new. It’s not like the visit made already fully valid official demands even more valid. If the other cases highlighted here are a baseline for what a successful prosecution requires, agents acquired all the evidence necessary to request a warrant and secure a conviction sometime in mid-2021.

    There was a good bit of reporting to suggest Garland’s first official discussions about authorizing Trump as a direct criminal target occurred sometime after Cassie Hutchinson publicly testified. Another interpretation of the events could be that up until recently the DoJ has, by policy, specifically prohibited agents from treating Donald Trump as the target of a criminal investigation. We know the agency kept all of the Barr-era policies to that effect.

    It seems painfully obvious the DoJ was bending over backwards and then twisting themselves into pretzels to resolve the issue by getting Trump to willingly return the documents. Could it be that top officials attempted to resolve the situation by going down to Florida and begging because those were the only tools available to them at that time – absent Garland explicitly granting personal approval to treat the situation as a criminal matter?

    It feels like not *wanting* to raid Mar-a-Lago … and trying to negotiate a different outcome … explains those visits more than the idea of an 11th dimensional chess move to trick Trump into incriminating himself. He was already fully incriminated.

      • kgb999 says:

        Lol. ‘Zup Bmaz. Been awhile … lost track of y’all after FDL went tits-up. How you been?

        So. Any thoughts beyond insulting the initials representing my given name?

        • bmaz says:

          Ha! What was your name back then?

          And, heh, at the point in time, you had to figure somebody might react to KGB!

        • kgb999 says:

          Same name. Used it back in the arcade days when you only got 3 characters and had to put ’em in with a joystick … and just rolled with it ever since (the 999-variant seems to always be available).

          In retrospect, the handle was occasionally eyebrow-raising back in the 80s too :-). Wait long enough and I guess everything ends up going in a cycle. On the bright side, my wardrobe is wandering back into style

    • Rayne says:

      Avoid conflating the House January 6 Committee’s investigation, the DOJ’s January 6 investigation, and the DOJ’s investigation into presidential records at NARA’s request. Those are three wholly separate investigations, with the first two sharing some subjects and targets but not necessarily scope and and definitely not intent, and the last not related to the first two except that Trump was involved.

      Garland didn’t even sign off on the warrant for the presidential records and classified materials at Mar-a-Lago, but then he might not have signed off on warrants for presidential records and classified materials had someone other than Trump stolen them from the White House.

      Lastly, you need to be more explicit when referring to DOJ policy which “specifically prohibited agents from treating Donald Trump as the target of a criminal investigation“; if you’re referring to DOJ-OIG opinion about a seated president, Trump is no longer POTUS. If you’re not, cite a reference. “Barr-era policies” likewise refers to Barr’s tenure during Trump’s presidency — Barr’s gone and again, Trump’s not POTUS.

  24. Barb says:

    I have a hard time believing that Trump DIDN’T record every conversation of VIP he met with at Mar-a-Lago so I’m hoping there were ‘tapes’ found/seized.

  25. Hychka says:

    Dear EW,
    Thank you for your good work!
    I feel the same thrill I got back in the ‘70s reading Woodard & Bernstein every morning in WAPO.
    Being a non-lawyer I keep my trap shut on this site.
    However, I have followed you closely for the life of your blog to gauge how things will eventually transpire and why.
    You have an amazing track record!

    • Peterr says:

      Marcy is also a non-lawyer, and I am glad she doesn’t keep her trap shut.

      Part of what I love about this site is the way Marcy pays attention to people who have skills and insights that she does not, and she is able to weave things into a coherent picture that many journalists and lawyers miss. And she is very good at giving props to those who brought things to her attention!

      If you’ve got something worth saying, put it out there. Back it up with links and sources, or a bit of background to indicate why your point is important, and folks will appreciate it. And who knows – you may have the key to something that the rest of us have missed.

      • earlofhuntingdon says:

        The much-touted and well-paid legal analyst Ben Wittes does not have a law degree. And, yet, he teaches at Harvard Law School. I would rather follow Marcy’s take on the law any day of the week, and twice on Sundays.

  26. Savage Librarian says:

    Padlock Whack

    This old man, he played dumb,
    He played nick-that with his thumb,
    But a pick that padlock whack,
    Long gone his old Roy Cohn,
    Sent this old man straight to a phone.

    This old man, he played sue,
    He played nick-that in the loo,
    With a pick that padlock whack,
    Long gone his old Roy Cohn,
    This old man fell off his throne.

    This old man, he played fee,
    He learned nick-that at Pop’s knee,
    With a pick that padlock whack,
    Long gone his old Roy Cohn,
    This old man’s front now was blown.

  27. Vinnie Gambone says:

    ” Worst spy in History”

    I’m not understanding why, or what the basis was for leaving any documents behind after the June 3rd visit. They took some then, right? Were they told by someone they could not take the remaining docs? Could they have placed a recording device in the room? Did someone set of a motion detected camera in the storage room which caught someone entering the room and taking something out, say, around the time of the Saudi visit?
    Did they do a complete inventory of what they left behind June 3? Was the raid to verify that items that were left behind June 3rd have now been moved out of that storage, and the qustion now is, it was here June 3, where is it now?
    Just odd they left anything at all behind knowing Trump had no bussiness having possession.

    • Hika says:

      Just reiterating what was explained above: the June visit was government lawyers meeting with Trump’s lawyers to tell them that he really did have to comply with the law and return documents, while the previous seizure/collection of documents was in January. It seems as though the fact that the records picked up in January were found to contain classified material kicked off the defense information side of this on top of the presidential records that NARA was chasing.

      • Steven Smith says:

        To me, the fact that Jay Bratt made the June trip suggests that he was just going to assess the situation to see if he should back up his staff who were telling him how dire it was. I would guess that he was the key manager in coming to the conclusion that it was time to take the gloves off. Once he was on board, the top management of DOJ felt comfortable signing off…

  28. Rapier says:

    In the interest of completeness it can’t be ruled out that Trumpworld lured the Justice Department into Mar a Lago and in fact there was nothing there. Suppose for once they were competent.

    Sure, I figure because it was so astoundingly stupid to keep restricted documents. then of course Trumpster’s did it. That’s the safe bet.

  29. Absentia says:

    Any thoughts on 793f, specifically gross negligence? Would there be any reason to charge him under both e and f?

  30. Carol says:

    If a document is 100% no doubt about it classified according to the classifying authority, and a jury decides it’s not NDI, what then? Obv Trump would get off. But doesn’t that constitute a determination about the document that has other repercussions? Suppose Trump made copies and gave one to one of his kids. Would they be free to disseminate if a jury said it was not NDI? Could journalists demand a copy?

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Carol” “Carole” “Caroline” and versions spelled with K. Thanks. /~Rayne]

  31. Suzanne Annette Stone says:

    I think the June 3rd FBI visit to Mar-A-Lago had another purpose: install wiretaps and other surveillance in the document storage area. The reports say the advice was given to use a padlock. So the FBI knew where the documents would be kept. No mole needed. Perhaps by last weekend the FBI had all the evidence needed to show visitors were conducting transactions and move in and gather up documents and other devices. Time will tell.

  32. Robert from Michigan says:

    I just found this piece from a search about the Espionage Act. I’ve never seen this site before. Thanks for a fine and obviously authoritative report.

    I knew the Espionage Act was passed in 1917 because it’s been a bugaboo of mine for a long time. But was Section 793 original to that year? I ask because historically, the Act in general has just seemed an excuse for right-wing meatheads to beat up their critics on the grounds that all criticism of them is unpatriotic. I’ve never before heard it invoked over the subject of state secrets or national security. I didn’t know, for example, that it was used to prosecute Melody Winner. Obama’s vendetta against Edward Snowden is the prosecution I remember.

    In short, I’m conflicted to see its use at all here. On the one hand, I’m excited to see Trump in any legal official peril, no matter how slight or peripheral the charges. On the other hand, it’s never good news to hear that use of the Espionage Act is imminent against anyone, even when (as here) it appears to be completely pertinent.

    Surely the body of law governing secret documents, etc., is large enough that we could have found some other, or additional, section under which to charge Trump. Or is it all really confined to Section 793? If anyone knows, it’ll be the author of this article, whom I commend again.

    • Rayne says:

      Welcome to emptywheel. I’m sure if you check the Wikipedia entry under Espionage Act of 1917 you’ll find most of the history behind the statute. If you look up section 793 at Cornell’s Legal Information Institute you’ll find the legislative history:

      (June 25, 1948, ch. 645, 62 Stat. 736; Sept. 23, 1950, ch. 1024, title I, § 18, 64 Stat. 1003; Pub. L. 99–399, title XIII, § 1306(a), Aug. 27, 1986, 100 Stat. 898; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147; Pub. L. 103–359, title VIII, § 804(b)(1), Oct. 14, 1994, 108 Stat. 3440; Pub. L. 104–294, title VI, § 607(b), Oct. 11, 1996, 110 Stat. 3511.)

      ADDER: Where do you think the law covering gathering, transmitting, or losing defense information should go if not under section 793 of Title 18 Chapter 37?

    • bmaz says:

      There may, or may not, be other statutes being investigated, but those listed in the warrant are absolutely appropriate.

Comments are closed.