By Isabel Pulgarin
After the FBI retrieved dozens of empty folders marked “classified” among about 11,000 loose government documents, including 103 documents marked “confidential,” “secret,” or “top secret” from former President Donald Trump’s Mar-a-Lago estate on Aug. 8, there is now an ongoing investigation into Trump over alleged violations of the Espionage Act, illegal handling of government records and obstruction of justice.
The U.S. Court of Appeals for the 11th Circuit ruled in favor of the prosecutors’ appeal, allowing them access to the classified documents for their investigation, according to the Court’s filings on Sep. 21. They argued that presiding Trump-appointed District Judge Aileen M. Cannon was jeopardizing national security interests by halting the case to allow a special master to filter out these private documents before proceeding. Judge Cannon had originally ruled in favor of the defense that documents seized by the FBI might be Trump’s private property.
The prosecutors told Judge Cannon that with a “filter team,” they separated more than 500 pages of potentially privileged documents for the defense’s taking, making this new review pointless. This filter team was approved by the U.S. magistrate judge who approved the FBI’s search warrant in August.
“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the 100 documents with classification markings,” the court wrote, ruling the documents be accessed only by the Department of Justice (DOJ).
This comes after the special master, U.S. District Judge Raymond Dearie, ordered the former president’s defense to enter any incorrect claims in the FBI’s inventory.
“I declassified the documents when they left the White House,” Trump said in an interview with Fox News. “There doesn’t have to be a process as I understand it. You’re the president of the United States, you can declassify … even by thinking about it.”
When Trump lost the election in 2020, Trump’s transition team, who reported to the General Services Administration (GSA), was responsible for turning over presidential records to the National Archives and Records Administration (NARA), the agency that enforces this under the Presidential Records Act of 1978. It is not responsible, however, for a president’s personal belongings or anything protected by attorney-client privilege.
NARA is only concerned with records considered federal property, meaning classified information that threatens national security. The defense is currently claiming that any documents with handwritten notes are private property and cannot be a part of the investigation, no matter the content. For example, the FBI had found a bundle of photos containing a handwritten note with unspecified United States of America, Plaintiff v. Donald J. Trump, Defendant information about the President of France in their search that has yet to be deemed classified.
The GSA trusted the transition team and their version of listed materials for shipment to be certified and true. They did not inspect the pallets of documents or have prior knowledge of what was inside to go to the Mar-a-Lago office in Palm Beach.
“This is highly unusual,” said Political Science Professor Leah Blumenfeld. “I wouldn’t say it’s normal for a president leaving office to take so many documents with him, whether they are classified or just part of the public record for his time in office. It speaks to a general lack of transparency that was a part of the Trump administration.”
During this time, Trump-appointed GSA administrator Emily Murphy, stalled his moving out because she was in favor of the former president. Trump was refusing to concede his loss in the presidential election. So, while the process is normally swift, for more than two weeks after Biden won the election Nov. 3, the Office of the President-Elect was delayed.
At the start of May 2021, NARA realized they were missing materials they should have received from Trump’s presidency and so they sent a request for the documents to be returned, according to a heavily redacted affidavit. After continuous requests, it wasn’t until late December 2021 that a Trump representative revealed they discovered 12 boxes of records that should have been turned over at his Mar-a-Lago residence.
Fifteen boxes of presidential records were turned over to NARA on Jan. 18 of this year, 14 of which contained 184 classified documents among many personal items like photos, personal messages and magazines.
Then, on Feb. 9, NARA’s Office of the Inspector General sent an email referral to the justice department about what had been stored in Trump’s office in Palm Beach, and an FBI criminal investigation started. An official subpoena was issued and carried out on June 3. FBI agents were given a single envelope, double-wrapped in tape that they found out later contained 38 classified documents stored in a storage room.
During the visit, investigators were permitted to walk about in the storage room but were prohibited from opening or looking inside any other boxes. On June 8, the Justice Department requested that the room be secured and that all the boxes from the White House be preserved in their current condition until further notice.
In their most recent search on Aug. 8, the FBI uncovered twice the amount of classified documents they did in June.