The Department of Justice on Friday released a redacted version of the sworn affidavit used to substantiate the FBI’s search of Donald Trump’s Mar-a-Lago estate for evidence of potential violations of the Espionage Act and obstruction of justice, including the unlawful retention of classified documents prosecutors say weren’t supposed to be there.
The 38-page affidavit, submitted by an unidentified FBI Special Agent with training “specific to counterintelligence and espionage investigations,” says that there was probable cause to believe that classified national defense information or records subject to presidential retention requirements were still somewhere at Mar-a-Lago.
“There is also probable cause to believe that evidence of obstruction will be found,” the affidavit says, though it does not specify what investigation or investigations were potentially obstructed.
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In an accompanying motion, also unsealed Friday, the government acknowledged that the investigation had the cooperation of a “significant number” of witnesses.
The heavily redacted affidavit lays out a timeline of the FBI’s criminal investigation, which opened in February on a referral from the National Archives. That investigation, the affidavit says, established that boxes taken from Mar-a-Lago in January contained “documents bearing classification markings, which appear to contain National Defense Information (NDI),” and had been stored at the club in an “unauthorized location.”
When the FBI reviewed those boxes in May, they discovered “184 unique documents bearing classification markings,” including 67 marked “CONFIDENTIAL,” 92 marked “SECRET,” and 25 documents identified as “TOP SECRET”—where unauthorized disclosure could reasonably result in “exceptionally grave damage to the national security.”
The review also turned up documents bearing some of the government’s highest compartmentalization markings, indicating Trump had withheld for a full year information related to secret human intelligence sources, foreign surveillance efforts, and “originator controlled” documents, which cannot be shared with anyone without the original source’s approval.
“Based on my training and experience, I know that documents classified at these levels typically contain NDI,” the agent wrote, adding that Trump had also written notes on some of the documents.
The lives of U.S. intelligence sources could, in theory, be placed at risk if those materials about HUMINT, some of the most protected secrets among U.S. spies, were to fall into the wrong hands. And in past cases that have involved similar retention of classified materials touching on human intelligence sources, prosecutors have wanted hefty sentences.
A former National Security Agency (NSA) contractor, Harold “Hal” Martin, who stole a trove of classified materials from the U.S. government and stored them in his home, was sentenced in 2019 to nine years in prison. And some of the documents he stole touched on similar human intelligence questions, CIA intelligence information including foreign intelligence sources.
The affidavit also shines more light on the contentious back-and-forth between Trump’s attorneys and the FBI this spring as Trump continued to withhold dozens of boxes of documents, despite the government’s repeated demands to return them.
In the process, the agent shoots down one of Trumpworld’s favorite counterarguments—that the president has absolute authority to declassify documents—and reveals that Trump’s own attorneys had anticipated as early as May that the FBI would ask a judge to approve a search warrant.
The affidavit includes a letter Trump attorney Evan Corcoran wrote to the FBI’s chief of counterintelligence and export control in late May, asking that before investigators seek a judge’s intervention, they consider a few “bedrock principles”—specifically that the president has absolute authority over declassification, and cannot be prosecuted for retaining classified documents.
And while pages and pages of the affidavit are redacted, the argument here is not. After citing Corcoran’s point about declassification authority—as well as similar claims from Trump adviser Kash Patel—the agent points out in a footnote that the Espionage Act “does not use the term ‘classified information,’ but rather criminalizes the unlawful retention of ‘information relating to the national defense.’”
Corcoran, apparently believing a judge would find his argument exculpatory, asks the FBI to include his letter if they decide to ask a court to intervene. The affidavit is proof that the FBI complied with this request, and that the judge—who eventually sided with the FBI and issued the warrant—was not convinced.
Further, the affidavit says that not only was Mar-a-Lago not an authorized location to hold these documents but that this information—potentially some of the government’s most sensitive secrets—wasn’t even held in a “secured” room.
“As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information,” the FBI wrote to Trump attorneys this June, according to the affidavit, noting that the documents “have not been handled in an appropriate manner or stored in an appropriate location.”
The FBI’s letter asked Trump’s attorneys to put “all of the boxes” that Trump had taken from the White House into a storage room “in their current condition,” and to secure the room.
But the affidavit says there was probable cause that Trump did not comply with the FBI’s request. The judge agreed when he signed the warrant targeting Trump’s personal “45 Office” along with the storage room.
The affidavit also shows that the FBI gave careful advance consideration to Trump’s claims of attorney-client privilege, and deployed a special “Privilege Review Team” to filter out potentially privileged material in the 45 Office.
The affidavit’s much-heralded public unveiling follows an intense series of legal maneuvers by the ex-president, who has claimed he wants to see the affidavit made available for all to see, and the federal government, which wanted to keep it sealed so as not to jeopardize its ongoing investigation. A consortium of media organizations has also pushed for the affidavit’s release, citing public interest.
“I’m not prepared to find the affidavit should be fully sealed,” U.S. Magistrate Judge Bruce E. Reinhart—who originally signed off on the search warrant—said in court last week. “I believe based on my initial careful review of the affidavit many times, that there are portions that could preemptively be unsealed.”
On Thursday, Reinhart ordered the document unsealed by noon today.
Reinhart’s decision followed the submission by DOJ attorneys of proposed redactions to the affidavit, which the feds said were necessary to protect investigative methods and confidential sources. In the order, Reinhart said the suggested markup sufficiently shielded both.
On August 12, four days after the FBI searched Trump’s club, Attorney General Merrick Garland released the search warrant itself, along with a property receipt listing everything FBI agents carted away from Trump’s Palm Beach club, where he now resides. The feds seized 20 boxes from various areas within the Mar-a-Lago compound, among them 11 sets of classified documents including one marked “various classified/TS/SCI,” for “Top Secret/Sensitive Compartmented Information.”
Such items are only allowed to be viewed in secure government facilities, which Trump’s resort is not. The FBI also clawed back binders of photos, a version of Trump’s executive grant of clemency to convicted political operative Roger Stone, and information about French President Emmanuel Macron. Perhaps most disturbingly, Trump had a batch of “classified documents relating to nuclear weapons,” a source told The Washington Post.
Trump, who insists he is the victim of a political “witch hunt,” has offered evolving explanations for why he took classified material with him at the end of his term. At first, the former president suggested the FBI may have planted incriminating evidence in his home during the search. He then denied the Post report about nuclear documents, and dubbed the entire thing a “hoax.”
Next, Trump’s allies claimed he had always had a “standing order” to declassify anything and everything he removed from the White House. Trump then floated the notion that everything the FBI removed from Mar-a-Lago was protected by attorney-client privilege, going on to complain that agents “stole” his passports during the search.
Trump’s former national security adviser, John Bolton, called his ex-boss’ claim of a standing declassification order “almost certainly a lie,” telling The New York Times that he had never heard of such a thing while serving in the administration.
“When somebody begins to concoct lies like this, it shows a real level of desperation,” he said.
“While Trump could have declassified whatever he liked while president, his apparent inability to produce any credible evidence that he actually did so is a genuine problem—particularly against the backdrop of an incumbent president who clearly sees the documents as still classified,” Scott Anderson, a former senior legal adviser at the State Department, told Roll Call.
The ongoing imbroglio between Trump and the feds follows almost a full year of delays by the ex-president to return the documents, which belong to the government. He returned some 700 pages of material in January to the National Archives and Records Administration (NARA), according to official correspondence released by the agency.
In April, when NARA officials became concerned that Trump was still withholding some of the materials they had requested, Acting Archivist Debra Steidel Wall told the former president’s legal team that there were “important national security interests in the FBI and others in the Intelligence Community getting access to these materials.”
At that point, Trump’s attorneys tried to buy additional time, saying they would not turn anything over to the FBI until Trump had decided if he wanted to claim executive privilege over the files.
But Steidel Wall dismissed the move outright, saying in a letter, “The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to ‘conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.’”
When that didn’t work, the FBI got a search warrant, culminating in the search of the former president’s home for evidence of criminal activity—an unprecedented moment in American history.
Security measures at Mar-a-Lago are notoriously lax, and foreign nationals have long been able to get suspiciously close to Trump with apparent ease.
— with reporting by Shannon Vavra
