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When the FBI searched former President Donald Trump’s Mar-a-Lago residence earlier this month, they didn’t find a smoking gun, but they did find some smoldering passports.
On August 8, agents removed from Trump’s home 33 boxes of sensitive government documents, including more than 100 records classified at the highest levels. In a 36-page brief responding to Trump’s motion to appoint a special master to review the material seized by the FBI, the Justice Department explained that three of the classified documents were recovered from Trump’s private office, known as “the 45 Office.”
According to DOJ’s recent brief, classified documents in that office were “commingled” in a desk drawer with three passports. While the government did not disclose the name on the passports, Trump himself has complained that during the search, the FBI “stole” his three passports. It seems a safe bet that the passports DOJ recovered were Trump’s.
The significance of the passports is enormous. As DOJ explained in an understated footnote, “The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information.”
In other words, the presence of the passports in the same drawer as the classified records tends to tie the unauthorized possession of these documents to Trump himself. A photo included with the filing shows the items that were recovered from his office. Among the classification markings on the documents are “Top Secret,” meaning that the disclosure of the material could cause exceptionally grave damage to the national security of the United States.
A routine practice in drafting search warrants is to include a request to seize identity documents that can connect the subject of the investigation with the premises. That helps to make the evidentiary tie between the person and any contraband that might be found at the location. For example, if searching for illegal drugs in a house where multiple people come and go, agents will seek authority to seize identity documents like a driver’s license, photographs or other personal possessions located in the same room as the contraband. Finding both of these items together tends to connect the person to the contraband. Here, the presence of Trump’s passports alongside the classified documents supports an inference that he himself possessed the classified documents.
To the extent Trump may be inclined to pin all blame on his lawyer who signed a document in June attesting that all of the classified documents had been returned, the documents in his personal desk drawer are a problem for him. The former president would need to explain away the notion that he himself possessed these documents long after the government asked for their return, and despite personal assurances from Trump when Counterintelligence Section Chief Jay Bratt visited Mar-a-Lago in June to inspect the storage of documents. At the time, Trump told Bratt, “Whatever you need, just let us know.”
The former president’s continued retention of the documents, even after the repeated requests to return them, suggests a willful violation of the law.
After the filing, Trump doubled down on the argument that he had declassified the documents, an apparent concession to being caught red-handed with them in his desk drawer. While Trump’s claim may work as a talking point among his supporters, it will fail in court. Not only is the claim improbable, and would amount to a reckless abuse of power, but it is legally irrelevant.
None of the crimes for which the magistrate judge found probable cause for the search require as an element of the offense that the documents be classified.
One statute makes it a crime to retain government records. Another statute prohibits willful retention of “national defense information.” The third prohibits concealing documents to obstruct justice. Trump could declassify these documents all day and it would not make a bit of difference in his guilt or innocence of those charges.
Passports usually permit entry to other nations. These have opened the door for investigators.