(The Hill) — Former President Trump could be facing mounting legal troubles as new details emerge about the Department of Justice (DOJ) investigation that prompted an FBI search of his Mar-a-Lago estate.
Trump has called for the release of more information tied to the search, an effort that corresponds with bashing the agency for what he claims is a politically motivated attack.
Meanwhile, the DOJ has fought to limit how much information will come out about an ongoing investigation with Trump as its target.
Here’s what we’ve learned this week.
Trump eyed for ‘willful’ violations of the Espionage Act
Although the most highly sensitive materials underlying the Mar-a-Lago search warrant remained under seal this week, the judge presiding over the case did make one court record newly available to the public. That document, known as a criminal cover sheet, provided additional insight into the nature of the crime under investigation, according to some legal experts.
It was already known that investigators believed the materials housed at Trump’s residence were linked to a likely violation of the Espionage Act, a WWI-era statute designed to help safeguard the country’s vital national security secrets. What the criminal cover sheet revealed, after it was unsealed Thursday, is that law enforcement had probable cause to think a “willful retention of national defense information” occurred.
That new detail appeared to lend further support to the theory — one that was already widely assumed — that Trump himself is the target of the investigation.
“This aligns with what we know so far from public media reporting, as well as the minimal information we have derived from the unsealed court filings,” Bradley Moss, a national security lawyer and partner in the law office of Mark S. Zaid, told The Hill in an email.
“All indications are that the government’s argument will amount to three things: (1) Trump took the properly marked classified records with him to Florida; (2) he left them in boxes in the basement; (3) when confronted about it, he willfully held onto records despite demands from NARA and later the FBI to return them,” he added, referring to the National Archives and Records Administration, which takes custody of White House records when a president leaves office.
DOJ appears to be investigating Trump’s claims around a ‘standing order’
In a sign the Department of Justice is not content to have simply secured the return of classified materials, its investigators appear to be contacting former Trump-era officials about his claims of having declassified the contents removed from his Florida home.
According to reporting from Rolling Stone, the FBI has thus far been conducting voluntary interviews with those who could have knowledge of such an order, including former staff on the National Security Council.
Shortly after the warrant was executed, Trump claimed the documents removed from his home were “all declassified.” He later elaborated in a statement to Fox News that he had “a standing order” to declassify any documents.
“If the DOJ was really focused on recovering the classified material and was not criminally investigating the former president, they would not be calling in former NSC officials to question them about Trump’s supposed “standing order” declassifying documents,” Renato Mariotti, a former federal prosecutor, wrote on Twitter.
National security law experts who previously spoke with The Hill noted that while Trump would have broad powers as president to declassify documents, such a practice is usually done on a case-by-case basis, and also triggers notification to other agencies that hold classified information, so that they can reclassify them appropriately in their own system.
“Realistically, no one actually believes that Trump had such an order. It was not written down anywhere, doesn’t make a lot of sense (as some of his own appointees have pointed out), and was never raised by Trump’s lawyers during their communications with DOJ,” Mariotti continued.
Even if Trump did declassify documents, that isn’t a defense for the Espionage Act, one of the three statutes cited in the warrant. That law only requires mishandling national defense information to trigger a violation.
Trump wants it all released
Former President Trump and his allies have responded to the government’s desire for redactions with calls for the release of the full document.
“Pres. Trump has made his view clear that the American people should be permitted to see the unredacted affidavit related to the raid and break-in of his home. Today, magistrate Judge Reinhard rejected the DOJ’s cynical attempt to hide the whole affidavit from Americans,” Taylor Budowich, a spokesperson for the former president, said Thursday.
Trump separately posted on Truth Social, his social media platform, calling for the “immediate release” of the unredacted affidavit, citing the need for transparency. He also called for Reinhart to recuse himself from the case without giving a clear reason.
The former president and his allies have attacked the credibility of the FBI and DOJ ever since the search was executed earlier this month, pointing to the handling of the Russia investigation to allege it is the latest politically biased attack on Trump.
By calling for the unredacted affidavit to be released when the government opposes such a move, Trump will likely further fuel distrust in the Department of Justice among his supporters.
DOJ is working through redactions
The Department of Justice, however, does not want its affidavit for the warrant fully released.
The department argued that the affidavit should remain under seal in its entirety, saying the information it contained laid out a “roadmap” to its ongoing investigation, “highly sensitive information about witnesses,” and “specific investigative techniques.”
But a federal magistrate judge on Thursday dismissed efforts by the DOJ to maintain the affidavit entirely under seal.
“I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed,” Judge Bruce Reinhart said in a brief order.
Reinhart said there were parts of the affidavit that “could be presumptively unsealed,” The New York Times reported.
The DOJ has until noon Thursday to submit their proposed redactions, after which Reinhart, who approved the initial warrant, will review them — meaning a redacted version of the affidavit could be released as early as next week.
What it means for Trump and 2024
Casting a cloud over the entire proceeding is the fact that Trump is likely to announce a 2024 White House bid in the coming months, though he may wait until after the midterm elections.
Trump denied in an interview last month with New York Magazine that any presidential run would be a way to insulate himself from criminal consequences as he faces investigations over election interference in Georgia, business dealings in New York, the Capitol riots on Jan. 6, 2021, and now his handling of classified information.
And while some experts believe it’s unlikely Trump will ultimately be indicted over the documents he kept at Mar-a-Lago, the political consequences could still loom large over his desire to return to the White House.
A Reuters-Ipsos poll conducted this week found that 54% of Republicans believe the FBI behaved irresponsibly following the Mar-a-Lago search, compared to 23% who said the agencies behaved responsibly.
Comparatively, 71% of Democrats felt law enforcement had acted responsibly, as did 50% of independent voters. It is the latter category that bears watching in determining how the search could swing Trump’s political fortunes.