[The redacted affidavit is further proof that Mr. Trump’s
flouting of criminal statutes persisted for a long time and gives
every appearance of being intentional. ]
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THE REDACTED AFFIDAVIT: MORE EVIDENCE V. TRUMP  
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Andrew Weissmann
August 26, 2022
New York Times
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_ The redacted affidavit is further proof that Mr. Trump’s flouting
of criminal statutes persisted for a long time and gives every
appearance of being intentional. _

,

 

We always knew that whatever the information about the Mar-a-Lago
search that would be released by a federal court, it would not help
Donald Trump.

We know that not just because Judge Bruce Reinhart already concluded,
based on seeing the unredacted affidavit used to obtain the search
warrant, that there was probable cause to believe three federal crimes
had been committed and that evidence of those crimes was at
Mar-a-Lago, Mr. Trump’s Florida club-residence.

Mr. Trump knows the answers to the most important unanswered
questions: What material did he take from the White House, why did he
take it, what had he done with it, and what was he planning to do with
it? There is nothing that prevented him for over a year from publicly
answering those questions; he surely has not remained silent because
the answers are exculpatory.

Above all, the redacted affidavit
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an accompanying brief explaining the redactions), which was released
on Friday, reveals more evidence of a righteous criminal case related
to protecting information vital to our nation’s security.

I can assure you, based on my experience as the general counsel of the
F.B.I., that although there may be too much information deemed
sensitive at the lowest level of classification, that was never the
case with top-secret material.

Indeed, the redacted affidavit details some of what was found in a
preliminary review of material earlier returned by Mr. Trump at the
repeated requests of National Archives officials, including “184
unique documents bearing classification markings, including 67
documents marked as confidential, 92 documents marked as secret and 25
documents marked as top secret.” An agent who reviewed that earlier
material saw documents marked with “the following
compartments/dissemination controls: HCS, FISA, ORCON, NOFORN and
SI.”

The markings for top-secret and sensitive compartmented information
indicate the highest level of security we have. Those levels protect
what is rightly described as the crown jewel of the national security
community.

Especially with information classified at that level, the government
doesn’t get to pick and choose to defend the nation’s top secrets
based on politics — it doesn’t matter if the person in question is
a Democrat or Republican, a former president, a secretary of state or
Edward Snowden. These documents belong to the government, and their
having been taken away posed a clear risk to our national security.

The release of the redacted affidavit provides further clarity on why
Attorney General Merrick Garland took the extraordinary step of
approving the search of certain locations at Mar-a-Lago. The short
version is that nothing else had worked and top-secret information was
at stake.

In any normal case, in my experience, with a responsible, upstanding
citizen who may have inadvertently taken government documents, a
simple voluntary request for their return would ordinarily suffice. If
that failed, a grand jury subpoena would typically do the trick. In
this case, neither approach worked. The attorney general had to resort
to the most intrusive method of obtaining the return of the documents,
a search warrant approved by a federal court.

We already had some indications as to why the search warrant was
required. The head of the National Archives and Records Administration
wrote Mr. Trump’s team a letter in May that makes clear that for
months the federal archives had beseeched the former president to
return the documents and that a partial return, of 15 boxes, included
over 700 pages of classified documents. And we knew that Mr. Trump
opposed the archives releasing the information to the Justice
Department.

The redacted affidavit provides additional evidence that the
government exhausted every other avenue to get the rest of the
documents. It offers a few more details about that back and forth with
the Trump team. Within the Justice Department, there seems to have
been concern that the Trump team had not been entirely forthright
about having returned all the records and concern about interference
with witnesses in the case, contradicting Mr. Trump’s current claims
that he has fully cooperated with the department.

The redacted affidavit is further proof that Mr. Trump’s flouting of
criminal statutes persisted for a long time and gives every appearance
of being intentional.

The redacted affidavit also provides reason to believe that the
Justice Department acted quickly once it was made aware of the nature
of the information that may have remained at Mar-a-Lago. There is no
question that some will say it should have acted sooner, given the
grave risk to national security posed by the existence of highly
classified documents at a place as insecure as a beach resort that had
already been the target of suspected foreign infiltration. And
supporters of Mr. Trump will continue to contend the Justice
Department acted precipitously and that he was fully cooperating —
but as the disclosures on Friday demonstrate, the facts increasingly
contradict these claims.

That debate is a sideshow. The key questions that remain include what
precisely is the full scope of what Mr. Trump took from the White
House, why he took the documents and did not return them all and what
he was doing with them all this time.

The redacted affidavit does not answer those questions, and the
usually loquacious Mr. Trump has not addressed them. But we do now
know that the Justice Department is one step closer to being able to
hold Mr. Trump to account for his actions, if it so chooses.

Under Mr. Garland’s leadership, only the facts, law and precedent
will matter. Mr. Trump’s penchant for hyperbole and spin to his base
will be ineffective in a forum where the rule of law governs.

_Andrew Weissmann (@AWeissmann_
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a former Justice Department prosecutor and senior prosecutor in Robert
Mueller’s special counsel investigation, is a professor of practice
at the New York University School of Law and the author of “Where
Law Ends: Inside the Mueller Investigation
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_Subscribe to the New York Times
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subscription helps our journalists seek the truth. Enjoy unlimited
digital access to news and analysis._

* Donald Trump
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* Mar-a-Largo
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* Department of Justice
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