The FBI found dozens of empty classified folders at Trump's Mar-a-Lago. What was in them?

Included in the inventory of documents seized from Donald Trump’s Mar-a-Lago estate that was made public Friday were two lines that set social media aflame because they suggested the possibility that the former president took with him – and still possesses –even more classified material than has previously been known.

One was 48 empty folders with classified banners that FBI agents recovered during the Aug. 8 search of Trump's Palm Beach, Florida, estate and members-only club. The other was 42 folders marked "return to staff secretary/military aide."

"Trump didn’t pack up EMPTY folders to take with him to FLA," said former federal prosecutor Glenn Kirschner in a Friday afternoon tweet. "Things just went from bad to worse to unfathomably dangerous."

Andrew Weissmann, another former federal prosecutor, tweeted, "It’s the empty classified folders that are of most concern. Where are the contents?"

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"Trump has not addressed that at all in all his bluster and obfuscation. What were you doing with these?" said Weissmann, who served on special counsel Robert Mueller's team during the investigation into Russia' interference in the 2016 election.

But what does the existence of the documents really say about what Trump took with him when he left the presidency? And do they suggest some kind of serious national security breach?

Those questions are particularly relevant because DOJ officials already have alleged that Trump and his legal team failed to provide relevant documents voluntarily, and "likely concealed or removed" some records as part of an effort to obstruct their investigation into the mishandling of classified information.

The Justice Department itself did not address that issue on Friday in another court filing aimed at persuading a judge to deny Trump's request to appoint a third-party special master to oversee the processing of the dozens of boxes taken during the FBI search.

But, it said, "the investigative team will continue to use and evaluate the seized materials as it takes further investigative steps, such as through additional witness interviews and grand jury practice."

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How the system is supposed to work

Rajesh De, a former senior White House information security official, said the newly disclosed inventory list does not contain enough information to determine what, exactly, happened to the documents within the empty “classified” folders retrieved by the FBI, or even what was in there in the first place.

“It’s tough to know, but empty folders could raise some alarm bells," said De, a White House staff secretary in the Obama administration who was in charge of securing classified documents and managing the paper flow to the president and senior staff.

Normally, most if not all classified documents shared with the White House would contain some form of classification markings on the pages themselves, not just on the cover sheets or folders, according to established federal laws governing the classification and protection of sensitive intelligence information.

"Important decision memoranda and other papers often need to be returned from the president to the staff secretary for distribution and implementation by senior aides on the whole range of subjects," said De, a former senior Justice Department and National Security Agency official who now chairs the National Security practice at the Mayer Brown law firm.

"As for the empty classified folders," he said, "one also has to wonder what became of the contents and what if they fall into the wrong hands?“

Read the list of documents found at Mar-a-Lago: What was found at Trump's Mar-a-Lago? Read the list detailing what FBI agents recovered.

Clearly established federal guidelines

According to federal law and policy, intelligence products – whether it be a specific document or a binder or folder containing many of them – must have a cover sheet with the highest level of classification of anything within it.

But the documents themselves, by law, must also have what are known as classification and control markings, or portion markings for short, for each section. Those describe whether the material contained within that portion is confidential, secret or top-secret, and whether there are even more restrictions if the information is based on even more sensitive “special access programs.”

One governing document issued by the Office of the Director of National Intelligence, described as “Intelligence Community Directive 710,” describes in great detail how officials must adhere to what is known as the Classification Management and Control Markings System.

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The markings “are the primary means by which the IC (Intelligence Community) protects intelligence sources, methods, and activities,” Directive 710 states. “The proper application and use of these markings enables information sharing while allowing the information to be properly safeguarded from inadvertent or unauthorized disclosure.”

As such, the documents that were in the folders marked classified are unlikely to be the same as the documents that the FBI retrieved that are listed as “government documents/photographs without classification markings.”

A more routine possibility

Another former White House information security official, John Fitzpatrick, said the search warrant receipt does not contain enough information to determine whether or not classified documents are missing.

“The document is prepared to reflect the dry, objective protocols of evidence gathering. The descriptions are plain and avoid conclusions that may be debated in a litigation later,” said Fitzpatrick, the former senior director for records access and information security management at former President Barack Obama’s National Security Council.

For example, the DOJ filing describes documents with confidential, secret or top secret classification markings, but does not describe them as classified at those levels. “That avoids any conclusion about whether they are or remain classified, which perhaps would be argued in court later,” said Fitzpatrick, a former CIA and National Archives official.

Similarly, there are items described as photos and documents without classification markings, which avoids the conclusion that they are unclassified simply because they are not marked, according to Fitzpatrick.

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“These are subtleties that show the care taken to simply describe what each line item is without leading to speculation or conclusions about its substance,” he told USA TODAY.  “Conclusions about substance and meaning would, presumably, be drawn in other parts of an investigation, but is not revealed by this inventory.”

Fitzpatrick also cautioned that the empty folders marked “classified” might refer simply to folders that were marked and reused regularly as classified materials were couriered around the West Wing to officials who had the necessary clearance – and need – to see them.

“Not all offices in the West Wing are approved for storage or discussion of classified material, so the staff secretary's office and the NSC records staff are constantly circulating among offices and officials with business-of-the-day documents, many of which are classified,” Fitzpatrick said. “So special folders are used – and reused – that bear markings to distinguish them from less sensitive documents.”

“It appears that some of these made it into the boxes that went to Mar-a-Lago,” he added. “Perhaps the docs noted as having classification markings were once in these folders and they became separated since.”

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This article originally appeared on USA TODAY: Trump classified documents: What do empty folders at Mar-a-Lago mean?