New DOJ Filing Raises Security Red Flags and Legal Challenges

August 31, 2022

DOJ Filing

A new DOJ filing reveals that Donald Trump held onto more than twice as many classified documents as those his lawyers had turned over in June, and that the documents were likely concealed or mishandled in compromising ways in the former President’s residence. The search warrant and other DOJ filings regarding the government documents at Mar-a-Lago also raise legal challenges, including how to bring a case forward, if it comes to that, when it almost certainly would involve some of the nation’s most closely-guarded secrets having to be entered as evidence.

DNI Undertaking Damage Assessment of Mishandled Documents

Director of National Intelligence (DNI) Avril Haines has informed House Intelligence and House Oversight Committee Chairs, Adam Schiff (D-CA) and Carolyn Maloney (D-NY), that the intelligence community is conducting a damage assessment of the documents retrieved from the August 8 FBI search warrant of Mar-a-Lago. James Bruce, former CIA Executive Officer and Adjunct Researcher at the RAND Corporation, tells Political IQ that damage assessments of compromised materials look at “the so-called ‘opportunity’ cost. It’s the cost of the intelligence that you will never collect.” He adds that Mar-a-Lago “is going to be a very hard damage assessment to do because the only thing you can be sure of is that these documents were essentially unprotected in an environment where they could have had some exposure.” On Tuesday night, just before a midnight deadline, the DOJ responded to a Trump legal team request for a neutral third party, a so-called “special master,” to review the documents. In its filing, the DOJ said the FBI retrieved “33 items of evidence, mostly boxes” containing “documents with classification markings or what otherwise appeared to be government records.” These included “classified documents that were not located in boxes but rather relocated in the desks in the ’45 office.'” This follows earlier reports that highly classified material was mixed in with newspaper clippings and dinner menus. Michael Morell, former acting CIA director, suspects the mishandling of classified documents by Trump wasn’t just a post-Presidency issue. “I think they were vulnerable, even at the White House,” he said Sunday. “We have to look at that, as well as Mar-a-Lago.”

Human Intel Sources Among Retrieved Documents

The final page of the DOJ’s Tuesday court filing was a photo showing cover sheets, some marked “Top Secret,” spread along the floor of Trump’s office, including documents with highly sensitive material like human sources. Among the 15 boxes retrieved in June were many files labeled “HCS” – the intel classification code for Human Control System. The presence of these materials reportedly triggered the alarm to go back and do an additional search of Mar-a-Lago. An HCS is often an individual recruited from a country hostile to the U.S., like Russia, China, Iran or North Korea, according to Bruce. “They want to help the United States,” he says. “When we have a source like that, we have a powerful, practical and moral obligation to keep them safe.” And the way these documents were mishandled at Mar-a-Lago, “most certainly it creates a chilling effect” upon these potential sources, says Valerie Shen, Vice President for the National Security Program at Third Way, a think tank that champions center-left ideas. “They won’t want to deal with the U.S. intelligence community because they can’t rely on us to protect their identities.” A connection to Mar-a-Lago has not been made, at least not publicly, but an October, 2021 memo from top counterintelligence officials to every CIA station and base around the world warned of a troubling number of foreign informants being killed or captured, and highlighted the agency’s struggle to recruit international spies.

DOJ Response to Special Master Raises New Security Questions

Federal Judge Aileen Cannon of the Southern District of Florida has suggested she’s inclined to approve the Trump team’s request for a special master, but she gave the DOJ opportunity to respond. Along with making the point throughout its Tuesday night filing that Trump did not assert Executive privilege over any of the documents, DOJ also claimed that Trump did not assert that any of the documents were declassified prior to the search. And in its initial review on Monday, the DOJ said it had already set aside documents that fell under attorney-client privilege. On Monday, Trump attorney James Trusty pushed back, saying, “They are trying to suggest with this pleading like, Judge, don’t be surprised that we’ve already taken care of all this. Nothing to see here. Well, we’re not in a position where we can really have a lot of faith in that.” If a special master is assigned, it would likely have to be someone with the highest security clearance, says Shen. “Then they’d also be read in specifically to any of the documents that were at the highest levels, meaning sensitive compartment information or special access programs. The agencies presumably would immediately do that because it’s part of an inter-agency review.” According to the DOJ’s Tuesday night filing to Judge Cannon, some of the documents recovered on August 8 from Mar-a-Lago were so sensitive that even FBI agents and DOJ attorneys needed additional security clearances to review them.

Would There Be Challenges to Seating a Jury?

If that’s the case, would it even be possible to seat a citizen jury, should the former President be criminally charged, or would any potential jurors also have to obtain high-level security clearances? According to Bruce Bagni, former DOJ Attorney and former Law Professor, the prosecution can argue a case without revealing the country’s most top-secret details via the Classified Information Procedure Act. “It allows for a court to rule that a highly-summarized document in the place of the top-secret document can go into evidence, or a redacted version or a combination thereof,” he says. Names and other sensitive information can be redacted in a way that “balances the interests of the government against the interests of the defendant,” he explains, adding, “if you didn’t have something like this, would the answer be to just let a criminal go, somebody who’s stolen these materials that are very sensitive national security documents? We’re just going to let him walk? No. No way.”

Trump Faces Potential Espionage, Obstruction Charges

The FBI search warrant listed three criminal laws as the basis of the investigation, including the removal or destruction or records, as well as the Espionage Act, which prohibits obtaining or disclosing information related to national defense if it could be used at the expense of the United States or to the advantage of any foreign nation. The third criminal law, obstruction of justice, appears in both the search warrant and the DOJ’s Tuesday night filing. The DOJ tells Judge Cannon that government records at Mar-a-Lago were “likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.” “I think obstruction is a significant issue here,” says Bagni.

The “Damaging Precedent” of Not Indicting

“When you look at the words of the statutes and you look at the actions, there definitely could be an indictment here,” said Dan Abrams, ABC News Chief Legal Analyst.  “The question of whether they will indict is a separate question.” Shen believes it would set an “incredibly damaging precedent” if someone who mishandled classified and top-secret documents in this manner were not indicted. “You know, everyone is saying this is an unprecedented situation, which is true, but our justice system, the rule of law itself, is dependent upon the evenhanded application, no matter the individual,” she says. “And so to make an exception profoundly undermines that principle.” She adds that not indicting would only encourage others because “they’ll think there will be no legal consequence in taking classified materials and risking the entire nation’s national security with them.” Bagni concurs, adding, “I think that’s the ultimate deciding factor in whether or not to seek an indictment from the grand jury.”

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