The warrant that authorized the F.B.I. to search former President Donald J. Trump’s Florida residence listed three criminal laws as the basis of its investigation, offering a glimpse of an inquiry into his possession of government documents, reported The New York Times.
The search warrant, which was unsealed and made public on Friday in response
to a motion by the Justice Department, showed that the magistrate judge who
issued it found that there was probable cause to believe the F.B.I. would
uncover evidence of all three crimes.
Mr. Trump, who had declined to make the documents
public himself but did not object to their release, said that the materials
listed in an inventory of items seized from his home had all been declassified.
The inventory included multiple caches of documents that the F.B.I. described
as top secret along with other government files.
Even if it is true that Mr. Trump deemed the files
declassified before the end of his presidency, however, none of the three
crimes depends on whether the documents are classified.
A federal judge on Friday unsealed the search
warrant for former President Donald J. Trump’s Mar-a-Lago residence in Palm
Beach, Fla., as well as a list of items removed from the property when federal
agents executed the warrant this week.
The first law, Section
793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It
criminalizes the unauthorized retention or disclosure of information related to
national defense that could be used to harm the United States or aid a foreign
adversary. Each offense can carry a penalty of up to 10 years in prison.
Despite its name, the Espionage Act is not limited
to instances of spying for a foreign power and is written in a way that broadly
covers mishandling of security-related secrets. The government has frequently
used it to prosecute officials who have leaked information to the news media
for the purpose of whistle-blowing or otherwise informing the public, for
Importantly, Congress enacted the Espionage Act in
1917, during World War I — decades before President Harry S. Truman issued an
executive order that created the modern classification system, under which
documents can be deemed confidential, secret or top secret. The president is
the ultimate arbiter of whether any of those classifications applies — or
should be lifted.
As a result, while these classifications —
especially top secret ones — can be good indicators that a document probably
meets the standard of being “national defense information” covered by the
Espionage Act, charges under that law can be brought against someone who
hoarded national security secrets even if they were not deemed classified.
The list of items that the warrant authorized the
F.B.I. to seize captured this nuance. It said agents could take “documents with
classification markings,” along with anything else in the boxes or containers
where they found such files, but also any information “regarding the retrieval,
storage or transmission of national defense information or classified
The government has not said what specific documents
investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found
there. The inventory of items was vague, including multiple mentions of
“miscellaneous top-secret documents,” for example.
But the invocation of “the retrieval, storage or
transmission” of secret information in the warrant offered a potential clue to
at least one category of the files the F.B.I. may have been looking for. One
possible interpretation of that phrase is that it hinted at encrypted
communications, hacking or surveillance abilities.
The other two laws invoked in the warrant do not
have to do with national security.
The second, Section
1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in
2002 after financial scandals at firms like Enron, Arthur Andersen and
Section 1519 sets a penalty of up to 20 years in
prison per offense for the act of destroying or concealing documents or records
“with the intent to impede, obstruct or influence the investigation or proper
administration of any matter” within the jurisdiction of federal departments or
The warrant does not specify whether that
obstruction effort is a reference to the government’s attempts to retrieve all
the publicly owned documents that should be given to the National Archives and
Records Administration, or something separate.
The third law that investigators cite in the
warrant, Section 2071, criminalizes the theft or
destruction of government documents. It makes it a crime, punishable in part by
up to three years in prison per offense, for anyone with custody of any record
or document from federal court or public office to willfully and unlawfully
conceal, remove, mutilate, falsify or destroy it.
While the list of items that the search warrant
approved F.B.I. agents to seize singled out “documents with classification
markings,” it contained a separate catchall phrase that appeared to be intended
to scoop up any government-owned documents that Mr. Trump had unlawfully taken
The agents were authorized to seize “any government
and/or presidential records created between Jan. 20, 2017, and Jan. 20, 2021” —
the dates of Mr. Trump’s presidency — as well as “any evidence of the knowing
alteration, destruction or concealment of any government and/or presidential
records, or of any documents with classification markings.”
Notably, another penalty in Section 2071 for any conviction is that the defendant is barred from holding federal office. Against the backdrop of widespread expectations that Mr. Trump intends to run for president again in the 2024 election, that provision has attracted particular attention.
However, many legal specialists believe that any
conviction under Section 2071 would be unlikely to block Mr. Trump from running
again. Supreme Court rulings suggest that because the Constitution sets out
criteria for who is eligible for the presidency, Congress cannot, by criminal
law, alter that standard.
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