Read the [Redacted] Affidavit Justifying the FBI’s Search of Mar-a-Lago

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Affidavits submitted by law enforcement in court typically describe why authorities have reason to believe there is evidence of criminal activity at a certain location, and often contain names of witnesses to crimes alleged.

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Experts have argued in recent weeks that while U.S. presidents’ enjoy broad authority to declassify information on a whim, their ability to do so is statutorily limited in certain areas, including those relevant to covert operations and nuclear secrets — information that the government considers “born secret”.

What’s more, the affidavit refers to intelligence obtained under the Foreign Intelligence Surveillance Act (FISA): methods of controlling and authorizing electronic surveillance that targets foreign agents and adversaries who are considered national security threats — processes which are regulated under congressional statutes (as opposed to executive order) and are overseen by a secret court.

The improper collection or disclosure of information protected under FISA would, in almost every imaginable case, be considered a violation of the Espionage Act.

The affidavit was made public on Friday by order of Federal Magistrate Judge Bruce E. Reinhart, despite the reported opposition of Attorney General Merrick Garland. Reinhart is the same judge who authorized the search of Trump’s Mar-a-Lago residence and private club, which was carried out on Aug. 8. Several news agencies, including the Washington Post, had argued in court for the affidavit’s release

The release of the document followed Reinhart’s approval of numerous redactions suggested by the DOJ in an effort, the document says, to protect “a significant number of civilian witnesses.”

A DOJ filing notes the names of FBI agents involved in the investigation and search of Mar-a-Lago necessitate redactions due to “repeated threats of violence from members of the public.” The identities of certain agents were notably contained in unredacted copies of the FBI’s warrant, as well as receipts describing items seized from Mar-a-Lago on Aug 8.

While the agents’ names were redacted in copies of those documents unsealed by Reinhart on Aug. 12, the Trump-friendly website Breitbart News independently obtained its own unredacted copies and choose to publish the names roughly an hour before the court’s redacted versions were made public.

According to the affidavit released Friday, the FBI’s review of the classified materials taken from Mar-a-Lago in March found 184 documents bearing classification markings, including 92 marked “secret” and 25 marked “top secret”. Some contained additional markings known as “handling caveats,” including “HCS, FISA, ORCON, NOFORN, and SI”.

Handling caveats are used to further restrict or “compartmentalize” sensitive information among individuals with security clearances. A document marked “TS/HCS,” for example, may only be viewed by someone with a “top secret” clearance who is also authorized to know “human confidential sources.” (Human sources are among the hardest to obtain, and due to the threats they face, extreme care is taken by intelligence community members to protect them.)

The dissemination of documents marked “ORCON” can only be authorized by the department or office whence they originate. “NOFORN” documents cannot be shared with non-U.S. citizens, even if they’re trusted by the U.S. government. “SI” refers to a control system that protects communications and electronic surveillance — known as SIGINT — which is managed by the director of the National Security Agency (NSA).

Federal investigators had served Trump with a grand jury subpoena this spring in effort to retrieve what now appears to have been a considerable amount of classified material improperly transferred to his Florida estate following his electoral defeat by now-President Joe Biden. The National Archives, which has overseen the handling of president records since the late 1970s, reportedly arranged to retrieve 15 boxes of such materials. According to the affidavit, the FBI retrieved them in March.

The affidavit’s author — an FBI special agent whose identity is withheld —wrote that, based on training and experience, “I know the documents classified at these levels typically contain NDI.” (NDI is an initialism for “national defense information.”)

The DOJ’s warrant for Mar-a-Lago specified three federal statutes under which it claimed to have probable cause to demonstrate a crime had occurred or was underway. Notably, the provision of the Espionage Act cited by DOJ specifically forbids the “gathering, transmitting or [loss]” of information “relating to the national defense,” which the possessor knows, or has reason to believe, could harm the United States or provide an advantage to a foreign nation.