They do from a law enforcement perspective. When you’re up against a former president, you have to cross every t and dot every i to reduce the suggestions of partisanship in law enforcement which will inevitably follow, so that in the event of charges, that allegation of partisanship does not become a basis for the defendant to challenge it.
They also have to follow legal restrictions that do not apply to ordinary situations, such as the access restrictions in the Presidential Records Act and assertions of executive privilege.
If someone comes to the FBI and says “Northern Piper has top secret documents, here’s how I know”, a search warrant could issue real quick, because Northern Piper can’t assert executive privilege, and the DOJ doesn’t have to ask the President of the United States for special access to Northern Piper’s documents.
Not so when it’s documents held by an ex-prez, who is asserting executive privilege.
When the search first occurred, Republican supporters of Trump immediately said that a search warrant against a former President’s home was way over the top! Talking points were:
- Why didn’t Archives just negotiate the return of the documents?
- Trump returned all the documents Archives asked for.
- There was no need to get the FBI involved!
- Why didn’t they just get a subpoena?
*There was no need for a search warrant, which should only be used in the clearest of cases. - These documents aren’t really a security issue.
And now, the talking points have been rebutted, with the release of the warrant, the inventory, and the affidavit:
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Late 2020: Archives starts negotiating about the presidential records, after the election was clear, just like they do with every other outgoing president;
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The Trump response was initially “they’re mine - bugger off!”
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May, 2021: Archives notifies Trump of specific documents that they are aware exist and are missing, and ask for him to return them (the Kim letter, Obama’s farewell note, etc). No suggestion at that time of classified / national security documents. Trump is reported to be showing the Kim letter to guests at Mar-a-Lago, confirming that he has it.
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Late 2021: negotiations between Archives and Trump’s folk drag on until late 2021, when Archives warns that they may have to make a referral to Justice under the Presidential Records Act; again, no suggestion of national security docs.
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January 18, 2022 - Trump transfers 15 boxes of documents to Archives
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January 2022 - Archives officials start going through the docs in the 15 boxes and discover that there are national defence information documents, not contained in any separate folders, just bundled up with non NDI documents. Archives notifies Justice Department.
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January 2022 - DOJ makes formal request to Biden to authorise the FBI to look at the documents. DOJ is required to seek presidential authorisation, as the Presidential Records Act provides that only the president can authorise law enforcement to look at presidential records.
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January 31, 2022: Archives makes public statement concerning the records and that some may be missing or destroyed
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February 9, 2022: Archives refers the national security issue to Justice.
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Spring 2022: DOJ empanels a grand jury to review; conducts interviews with several Trump officials and lawyers about access to the documents.
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April 29, 2022: DOJ formally advises Trump’s lawyers that the review has uncovered over 100 documents, totalling more than 700 pages, that are marked with various classification markings; advise Trump’s lawyers that they can review the documents on behalf of Trump, provided the lawyer doing so has the appropriate classification authorisation; Trump’s lawyers have trouble finding a lawyer with the necessary authorisation.
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May 10, 2022: National Archivist sends extremely detailed letter to Evan Corcoran, Trump’s lawyer, outlining the entire chronology and responding to Corcoran’s request for more time. States that Trump has made an assertion of privilege; Biden has delegated the decision on privilege to her; on advice of DOJ counsel she has concluded there is no basis for privilege; and, Trump has had ample time to provide the documents requested by Archives. She will therefore grant the FBI access to the documents.
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May 11, 2022: Grand jury issues subpoena to Trump seeking additional documents with classified markings.
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Mid-May, 2022: FBI begins review of the documents; finds that there are 184 unique documents with classification markings; of those, 67 are confidential, 92 are secret and 25 are top secret. Several have additional restrictions on distribution; some relate to “human intelligence”, the most sensitive type of intelligence.
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May 25, 2022: Trump’s lawyer sends letter asserting that Trump had declassified the documents and that the DOJ should be careful about allowing partisanship to influence law enforcement
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June 3, 2022: DOJ lawyers visit Mar-a-Lago; Trump’s lawyer, Christina Bobb, signs written statement that Trump has returned all classified documents, satisfying the subpoena.
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June 8, 2022: DOJ sends letter to Trump, asking that the document room at Mar-a-Lago be secured.
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June, 2022: FBI interviews Trump’s personal and household staff.
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June 22, 2022: DOJ subpoenas surveillance video.
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August 5, 2022: DOJ files application for search warrant.
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August 8, 2022: Search of Mar-a-Lago.
For me, the key take-aways are:
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Archives initially was just trying to get missing records; there was no suggestion of classified documents;
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It took from late 2020 to January 2022 before Trump sent the 15 boxes of documents;
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It was only when Archives did the initial review of the documents that they realised there were classified docs; Archives immediately alerted DOJ
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The Presidential Records Act restricted Archives’ ability to get FBI involved; DOJ had to make request from President Biden;
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ex-president Trump made an assertion of executive privilege, which had to be carefully reviewed by DOJ;
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DOJ immediately convened a grand jury to begin an investigation;
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only after the executive privilege issue was resolved in early May, 2022, was Archives able to allow FBI access to the documents.
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FBI began an immediate review and is able to state exactly what type of classified docs are in the 15 boxes;
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Grand jury issues a second subpoena;
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Trump lawyer signs document stating the subpoena has been complied with;
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In June, FBI conducts interviews of staff at Mar-a-Lago
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June 22 - DOJ issues additional subpoena for surveillance video.
It’s only after all those steps, in early August, that the FBI applies for the search warrant. Something about those interviews and the surveillance video appear to have triggered it, including information not just about the documents, but the issue of obstruction. There are media reports that the video showed people going in and out of the room where the documents were stored, and the affidavit requests that the warrant not just be in that room but in other areas of Mar-a-Lago.
So to respond to the talking points:
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Why didn’t Archives just negotiate the return of the documents?
Archives tried to negotiate the return of the documents for over a year, from late 2020 to early 2022, when Trump finally sent the 15 boxes. -
Trump returned all the documents Archives asked for.
It was only when the 15 boxes arrived that Archives became aware of the national defence intelligence documents. -
There was no need to get the FBI involved!
It was the discovery of the national defence intelligence documents in the 15 boxes that triggered the involvement of the FBI. Up until then, it was just a long-dragged out attempt to get missing presidential records, as required by federal law, but not a potential criminal issue. -
Why didn’t they just get a subpoena?
The DOJ got at least three subpoenas from the grand jury: when it was first convened; after the Archivist rejected the claim of executive privilege in May, and one on June 22, after the interviews with staff at Mar-a-Lago. -
There was no need for a search warrant.
We are not able to tell what was submitted to the judge on this point, but from the chronology, including the interviews with staff and the subpoena for the surveillance video, the FBI must have made a case that there were enough grounds to believe that the alternative of further subpoenas was not sufficient. This is particularly the case in light of the allegation in the affidavit of evidence of obstruction. Once you’re in obstruction territory, the need for speed ramps up, to prevent evidence from disappearing. -
These documents aren’t really a security issue.
Top secret documents are the highest classification, and top secret documents relating to human intelligence are particularly sensitive.
Here’s the two NYT articles I relied on for the above chronology: