Dear Commons Community,

New York Times reporter Michael S. Schmidt analyzed the  redacted affidavit used by the Justice Department to justify its search of former President Donald J. Trump’s Florida residence including information that provides greater insight into the ongoing investigation into how he handled sensitive national security documents he took with him from the White House.  Schmidt provides three key takeaways:

The government tried to retrieve the documents for more than a year.

At the beginning, the National Archives and the Justice Department sought to resolve the situation through communication and negotiation, focusing primarily on retrieving and securing sensitive documents and other presidential records.

The affidavit showed that the archives asked Mr. Trump in May 2021, a few months after he left office, for any documents that he might have taken with him that needed to be returned to the federal government under the terms of the Presidential Records Act.

Seven months later, in late December, Mr. Trump’s representatives told the agency that it had a dozen boxes at Mar-a-Lago that were ready to be retrieved. In January, the archives collected what were actually 15 boxes.

The affidavit included a letter from May 2022 that showed that Mr. Trump’s lawyers knew that he might be in possession of classified materials, that the government still wanted them back and that Justice Department was investigating the matter.

Mr. Trump’s aides turned over more documents in June. But the Justice Department was interviewing witnesses about the matter, and came to believe that Mr. Trump was in possession of still more classified materials. It was then that prosecutors went to a federal judge this summer, saying it had probable cause to carry out a search of Mar-a-Lago. The search turned up a trove of highly sensitive documents.

The material included highly classified documents.

The F.B.I. said it had examined the 15 boxes Mr. Trump had returned to the National Archives in January and that all but one of them contained documents that were classified. In all, the agents found 184 documents that were marked classified — 92 of which were marked “SECRET” and 25 of which were marked “TOP SECRET.”

The affidavit did not disclose the contents of any of the documents or specify the subject matter they addressed, and the Justice Department has not addressed what risk there could be to national security if any of the documents were to fall into the hands of rival nations. But the classification markings they carried suggested that some could reveal clandestine human intelligence sources and that others were derived from national security surveillance.

Some materials were marked “NOFORN,” meaning that they cannot be legally shared with a foreign government and others “SI,” an abbreviation for special technical and intelligence information related to surveillance of foreign communications.

Prosecutors are concerned about obstruction and witness intimidation.

To obtain the search warrant, the Justice Department had to lay out to a judge possible crimes, and obstruction of justice was among them.

There is “probable cause to believe that evidence of obstruction will be found” at Mr. Trump’s house, the Justice Department wrote in its request for the search.

In a supporting document, the Justice Department said it had “well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed.”

Mr. Trump has had a pattern throughout his presidency of taking actions that raise questions about whether he is trying to interfere with law enforcement investigations of him and his closest allies. Robert S. Mueller III, the special counsel in the Russia investigation, raised the possibility that Mr. Trump had obstructed justice in that inquiry, though Mr. Trump was never charged. More recently, members of the House select committee investigating the Jan. 6, 2021, attacks and what led to them raised questions about whether Mr. Trump or his allies were trying to intimidate witnesses.

Thank you Mr. Schmidt for this analysis!

Tony

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