Despite the redactions contained in the search warrant affidavit, there’s enough there to give us a better idea of the sequence of events in this saga to date.

The Timeline

By May 6, 2021, National Archives (NARA) officials began asking Trump and his representatives to return records that were supposed to have previously been transferred to NARA by Trump’s last day in office. Those requests went unanswered until December 2021, when Trump’s representatives informed NARA officials that 12 boxes were at Mar-a-Lago.

For reasons that remain classified (per pp. 14–16 being either largely or completely redacted), it appears that the number of boxes examined by the FBI in May 2022 was actually 15 versus the 12 originally reported by Trump’s representatives. Fourteen of the boxes contained a total of 184 classified documents, ranging from CONFIDENTIAL to TOP SECRET, including documents labeled “HCS”—intelligence community short-hand for HUMINT Control System. As the affidavit notes, “The HCS control system protects human intelligence-derived information and information relating to human intelligence activities, capabilities, techniques, processes, and procedures.” (p. 4)

Upon discovering that the classified material was in no way secured according to established U.S. government policy on the handling and storage of classified information, the Department of Justice (DoJ) counsel overseeing the investigation told Trump’s counsel on June 8, 2022, “…that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.” (p. 22).

Last week, the New York Times reported that, “Aides to Mr. Trump turned over a few dozen additional sensitive documents during a visit to Mar-a-Lago by Justice Department officials in early June.” Why the FBI did not seize all of the material at that time is unclear, and the specific reasons may be contained in some of the redacted pages of the affidavit.

Sometime after June 9, the FBI came to believe that even more classified material remained at Mar-a-Lago in an improperly secured state. As we now know, the investigation intensified in the period between June and early August 2022, at which time the FBI seized over 20 boxes of material containing classified information.

The Implications

When Trump left office, he no longer could lawfully retain any classified information. Moreover, at no time has evidence surfaced that Trump issued any executive order declaring the information he wanted to take to Mar-a-Lago to be declassified, in contrast to how President Clinton handled a mass federal government document declassification decision in 1994. Absent such a formal, established declassification process, the material in question remains classified in the eyes of the agency or department from which it originated.

Further, even if Trump had properly declassified the original documents, those originals remain the property of the people of the United States via the Presidential Records Act, Section 2202, which states:

The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.

The most serious charge Trump (and perhaps others in his orbit who had access to or responsibility for storing the purloined classified documents) faces is 18 U.S.C. § 793(e), a provision of the Espionage Act that, per the affidavit, states in relevant part:

“[w]hoever having unauthorized possession of, access to, or control over any document…or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted” or attempts to do or causes the same “to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it” shall be fined or imprisoned not more than ten years, or both.

What Comes Next

With the investigation clearly ongoing, it’s unknown at this point when, or even if, Attorney General Merrick Garland will move forward with formal charges against Trump or others involved in “Documentgate.” But there was one other line in the affidavit (p. 2) that jumped out at me, and it’s significant:

There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.

Presumably, this is a reference to obstruction of justice (18 U.S. Code § 1503), which states:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

Given how much concern DoJ officials expressed about potential witness intimidation attempts as a result of making the affidavit public, as has already happened with some witnesses who appeared before the House January 6 Select Committee, it’s understandable why they fought to keep witness names and affiliations secret for now.

The last five years have been among the most domestically tumultuous in American political history. If Garland does move forward with criminal charges against Trump, no matter how well founded, he will be taking the nation into uncharted political and legal waters. Fiat Justitia Ruat Caelum.