We Probably Already Know What’s in the Mar-a-Lago Search Affidavit

T oday’s perhaps-not-so-big development in the Mar-a-Lago search saga has already happened. As directed, the Justice Department has delivered to Magistrate Judge Bruce Reinhart, under seal, a version of the search-warrant affidavit that could be made public without unduly harming the government’s interest in investigative secrecy. As I’ve noted in a post on the Corner, the government predictably proposed major redactions, and some highly uninformative version of the affidavit — revealing nothing that the public is actually curious about — may be released on Friday.

For now, I want to make two points, both following on columns from the last few days:

First, as I noted in describing the lawsuit Trump filed against the government on Monday, Trump is pushing for a judicially appointed neutral arbiter — a “special master” — to oversee the Justice Department’s sifting through the seized documents so that those of the documents that are privileged can be identified and kept away from the prosecution team. According to Trump’s legal filing, prosecutors would not voluntarily consent to the appointment of a special master. In court, the Justice Department is likely to counter that, besides the fact that Trump’s request for a special master came too late (prosecutors had already been sifting through the Mar-a-Lago seizures for two weeks when Trump’s lawsuit was filed), there is no need for one because the filter-team procedures the DOJ has in place are sufficient.

It is highly probable that the Justice Department and FBI explained those procedures in the affidavit they used to apply for the search warrant. I can’t think of any reason why that part of the warrant should not be made public, which would just describe a process, without getting into either the evidence or the sources from which the FBI obtained it. I suspect that is the kind of information the Justice Department agreed to disclose publicly.

Of course, that is not the information people crave. The public wants to know (a) the FBI’s basis for believing that Trump is guilty of crimes, and (b) what damning events occurred that convinced the Justice Department that the drastic step of seeking a search warrant for a former president’s home was its best option.

That brings me to the second point. As I illustrated in my column yesterday, analyzing the ramifications of the May 10 letter from national archivist Debra Seidel Wall to Trump lawyer Evan Corcoran, a great deal of information about the Mar-a-Lago search is already public. Even though the information we currently have does not identify potential witnesses, it goes far toward explaining what happened and why the Justice Department decided to seek a search warrant — especially when we consider it in conjunction with what we know about events that transpired after May 10. Consequently, I believe we already know the essence of what must be in the warrant affidavit, based on the government documents that have been disclosed and the deductions we can draw — without making extravagant leaps of logic — from media reporting.

Rich and I recorded The McCarthy Report podcast on Thursday morning. In getting ready, I prepared for myself a timeline of major events that we know about. It doesn’t tell us much about potential obstruction of justice, but it tells us a lot about why the Justice Department believed there was probable cause that the former president mishandled classified information and was unlawfully retaining government records. It also provides insight about why prosecutors decided that a search warrant was their best option — i.e., because alternative evidence-collection methods such as grand-jury subpoenas had failed to result in Trump’s surrender of the documents.

Here is my timeline:

• May 6, 2021: NARA lawyer Gary Stern emails Trump representatives Scott Gast and Michael Purpura, along with former White House deputy counsel Pat Philbin, to complain about what NARA believes are two dozen boxes of missing Trump documents. These are said to include letters to President Trump from President Obama and North Korean dictator Kim Jong-un. Stern writes that Trump White House counsel Pat Cipollone (not copied on the email) had agreed that these documents needed to go to NARA.
• May–late 2021: NARA makes several requests to get the documents back.
• As 2021 draws to close, Stern says he may have to refer the matter to Congress but doesn’t want to take that step if he doesn’t have to. His position is that NARA just wants the documents back; it’s not spoiling for a fight.
• Late 2021–January 2022: Trump reluctantly surrenders 15 boxes of documents, which are reportedly not organized in any way and include no index. In sifting through them, NARA discovers that they include what turns out to be over 100 classified documents, which total 700 pages. Some of the intelligence in these documents is TS/SCI (top-secret/sensitive-compartmentalized information) and “special access program” intelligence — the highest levels of classified information.
• January–February 2022: Because of evidence of mishandled top-secret information, NARA refers the matter to the Justice Department. DOJ then says it wants the FBI to have “immediate access” to the documents, because an assessment must be done of potential harm to national security.
• February–March 2022: The FBI drags its feet, only going so far as to interview Archives officials.
• April 2022: The FBI is finally ready to review the 15 boxes of documents. Because these are Trump’s records (i.e., the records of a prior president), the Presidential Records Act (PRA) says access to them is restricted. But an exception applies: The incumbent president may request a former president’s records if it is necessary to the incumbent administration’s work. The DOJ asks President Biden to request that NARA give the 15 boxes of documents to the FBI. Biden complies.
• April 12: Pursuant to the PRA, NARA notifies former president Trump that NARA is about to share the boxes with the FBI. Trump’s team seeks a delay, asking that the FBI not be shown the documents until it can review them. Biden’s White House Counsel’s Office and NARA agree to delay giving the FBI the documents until April 29.
• April 29: In a classic bit of deadline-day brinksmanship, Trump’s lawyers seek another, indefinite delay so that they can review the documents with Trump (a task they apparently still haven’t completed in the 17 days since being granted the first delay). If NARA does not want to grant the second, indefinite, delay, the Trump camp says NARA should consider Trump to be asserting executive privilege to block the FBI from reviewing the documents.
• The PRA now requires that the NARA consult with Biden (the incumbent president) to determine whether he supports the assertion of executive privilege made by Trump (the former president). Biden refuses to support Trump’s privilege claim. But, because he knows this makes it look like he is involved in the DOJ’s investigation of Trump, Biden — by law, the only person who can make the decision — tries to obscure the fact that he is making it by purporting to delegate that responsibility to archivist Debra Seidel Wall.
• May 10: Wall, in collaboration with the Biden DOJ’s Office of Legal Counsel, writes a letter to one of Trump’s lawyers, Corcoran, informing him that Trump’s privilege claim is being rejected and that the FBI will begin reviewing the 15 boxes of documents.
• May 11: The DOJ issues a grand-jury subpoena for any documents with classification markings that are being stored at Mar-a-Lago.
• June 3: Trump and two of his lawyers, Corcoran and Christina Bobb, meet at Mar-a-Lago with Jay Bratt (the chief of the Counterespionage and Export Control Section of the DOJ’s National Security Division) and a group of FBI agents. (Though Trump later describes this as a cordial, cooperative meeting in which he promised the government “anything you need,” it is important to remember here that the meeting was triggered by a grand-jury subpoena — i.e., this is a criminal case.) In response to the subpoena, Trump’s lawyers present the government officials with a package that they claim contains all documents with classification markings remaining at Mar-a-Lago. At the government’s insistence, the lawyers execute a memorandum, reportedly signed by Bobb, representing that Trump has no other classified documents at Mar-a-Lago.
• June 3–June 22: The FBI interviews Mar-a-Lago and Trump staffers. Bratt requests that a better lock be installed in a Mar-a-Lago storage area where some of the remaining documents are kept.
• June 22: Apparently in light of information learned during the course of the FBI’s interviews, the Justice Department issues yet another grand-jury subpoena to Trump, this time calling for production of Mar-a-Lago surveillance-video footage (which reportedly goes back 60 days in some parts of the estate).
• Post-June 22: According to the New York Times (based on leaks obviously coming from the government), the subsequently surrendered surveillance-video footage revealed, among other things, “people moving boxes in and out [of a corridor outside the storage area], and in some cases, appearing to change the containers some documents were held in.” It is not clear (a) when the Justice Department received the surveillance-footage evidence, (b) when that evidence was analyzed, or (c) what other incriminating information the FBI may have learned in the interviews it has conducted from June onward. (We can assume that witness interviews and analysis of video and documents continued to take place from July into early August.)

And that brings us up to the search itself. On August 8, Magistrate Judge Reinhart signed the warrant — I do not know whether he signed it the same day the Justice Department applied for it, though that would be typical. On August 11, the warrant was executed. According to the search inventory, a significant amount of classified information, including highly sensitive TS/SCI intelligence, was seized. Between the first 15 boxes received by the government in January 2022, the package surrendered at the June 3 meeting, and the August 11 search, media reports indicate that the government has now recovered over 300 documents with classification markings — in addition to many other government records — that were stored at Mar-a-Lago.

Upon reviewing the timeline, I think we already know essentially what the warrant affidavit must say about why the government believed that (a) it had probable cause to suspect that crimes involving the mishandling of classified information and unlawful government-records retention had been committed, and (b) that, because the Justice Department and NARA had been unable to recover the documents it sought despite high-level negotiations and multiple grand-jury subpoenas, a search warrant was the appropriate next step. Moreover, we can deduce the latter even without knowing what else the FBI had learned from witnesses and surveillance video that might have added to the probable cause and the sense of urgency to execute a search.

So it is not worth waiting with bated breath in anticipation of shocking revelations if and when some or all of the affidavit gets released: It’s very likely that we already know the essence of what it says.