U.S. federal agents seized highly classified materials from Donald Trump’s Florida home earlier this week as part of an investigation into whether the former president violated the U.S. Espionage Act and other laws that govern handling of government records.
The explosive allegations against Mr. Trump were released Friday after a U.S. federal magistrate unsealed a search warrant and document describing items taken from Mr. Trump’s Mar-a-Lago residence. They include information about the President of France, handwritten notes, photos and a series of classified documents, some of them marked TS/SCI, for “top secret/sensitive compartmented information.”
Such information can include the country’s most jealously guarded information, including work produced by the Central Intelligence Agency and the National Security Agency. “Foreign governments salivate at the opportunity to gain access to top-secret documents,” said Brad Moss, a national-security lawyer based in Washington.
But a history of overly broad secrecy protections for information in the U.S. also makes it difficult to discern the sensitivity of the documents in Mr. Trump’s possession, and whether they posed such a pointed risk to national security that their retrieval merited the unprecedented search this week. Mr. Trump and his supporters have responded with fury, saying he has become the subject of a witch hunt by a politicized judicial apparatus.
The information unsealed Friday – with Mr. Trump’s blessing – did little to answer those accusations, shedding no light on the content of what was seized.
Top-secret documents are not rare inside the U.S. government, and the number of people with clearance to view them is estimated in the hundreds of thousands. Disclosure of the information held by Mr. Trump “could be anywhere from an inconvenience to the intelligence community to a complete, utter national-security disaster,” said Mark Stout, a former CIA analyst who now lectures at Johns Hopkins University.
“And given what we know at the moment, we have no way of saying.”
Mr. Trump, in a series of statements Friday, both denied wrongdoing – “it was all declassified,” he said – and argued that he did little different from his predecessors, accusing Barack Obama of taking classified documents to Chicago.
His accusation was swiftly rebutted by the National Archives and Records Administration, which said in a statement that the Obama records in Chicago are unclassified and the former president has no control over where they are stored.
Attorney Kash Patel, who Mr. Trump has assigned to oversee records, told Fox News that blame for mistaken movement of some documents belongs with the General Services Administration, a government agency. He said Mr. Trump had “issued sweeping declassification orders on multiple occasions,” although it’s not clear those orders applied to the material recovered in Florida.
Top-secret documents can include intelligence obtained through interception of communications, satellite reconnaissance or spies. Diplomatic communication is typically classified as secret or confidential, Mr. Stout said.
There is no historical parallel for the accusations against Mr. Trump, said Kathryn Olmsted, a historian at University of California, Davis who has written extensively on the U.S. intelligence establishment. President Richard Nixon, for example, “wasn’t allowed to take his documents out of the White House when he resigned. They went immediately to the National Archives.”
The investigation under the Espionage Act suggests that “the documents would have to be very sensitive,” she said. That act was used to prosecute Daniel Ellsberg, who released the Pentagon Papers in 1971, although the charges against him were dismissed.
The stakes are high not just for Mr. Trump, but for the administration of justice in a country where suspicion of political motives runs high across party lines. For the FBI, Prof. Olmsted said, “it could seriously hurt their credibility if it turned out they were overreacting.”
The secrecy designation makes it uncertain the full contents of the documents will ever be revealed.
Still, some in the legal community said the basic facts now known augur poorly for Mr. Trump. The laws under which he is being investigated require proof that a person has in their possession sensitive government materials they are not authorized to have.
“Any normal person would be prosecuted immediately over this,” said Kel McClanahan, a specialist in classified-information law who is executive director of National Security Counselors, a Washington-based law firm.
The careful approach by the FBI and the Department of Justice, he said, is related to Mr. Trump’s stature, and the risk of social shockwaves if the investigation is broadly seen as a misapplication of the law.
But, he said, there is also good reason to mount a case against the former president.
“If you don’t prosecute someone for this flagrant an abuse, then you are basically sending an unequivocal message that important people are above the law – and you are also inviting everyone who thinks they’re an important person to violate the law,” Mr. McClanahan said.
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