The Daily - About Those Documents at Mar-a-Lago

Episode Date: August 18, 2022

Last week, the F.B.I. took the extraordinary step of searching Mar-a-Lago, former President Donald J. Trump’s private club and Florida home. Their goal? To find materials he was thought to have improperly removed from the White House, including classified documents.An inventory of the material taken from the search showed that agents seized 11 sets of documents with some type of confidential or secret marking on them.We explore some of the latest developments in the case.Guest: Maggie Haberman, a White House correspondent for The New York Times.Background reading: Mr. Trump and his allies have given often conflicting defenses of his retention of classified documents. These shifting explanations follow a familiar playbook.The Justice Department’s warrant for the search and two critical supporting memos shed considerable light on the Mar-a-Lago investigation.Here’s a timeline of the former president’s false and misleading statements on the search.For more information on today’s episode, visit nytimes.com/thedaily.Transcripts of each episode will be made available by the next workday.

For the past few days, Trump allies and Republicans on Capitol Hill have been clamoring for the Attorney General to explain this FBI search of a former president's home. And so Merrick Garland basically said, OK, fine. You want answers? I'll show you the warrant. Just now, the Justice Department has filed a motion to unseal a search warrant. The warrant revealing that Trump is being investigated for obstruction of justice and violating the Espionage Act. Since the raid, Trump's explanations have shifted. His team now says he had a standing order to declassify documents the moment they were removed from the Oval Office. As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. A Trump lawyer signed a statement in June saying all

classified documents at Mar-a-Lago had been turned over to federal investigators, but that apparently was not the case. Sources say investigators are now scrubbing through security footage they subpoenaed from Mar-a-Lago. A tight circle of former Trump White House officials are among those interviewed by the FBI. I think this investigation is just getting warmed up. From The New York Times, I'm Michael Barbaro. This is The Daily. Today, making sense of the latest developments in the case of Donald Trump and the highly classified documents that he stored at Mar-a-Lago.

I spoke with my colleague, Maggie Haberman. It's Thursday, August 18th. Maggie, welcome back to the show. I always wondered what it would take to get you on The Daily twice in a week, a much-desired-for possibility, and it turns out it's the FBI searching the home of the former president. Michael, thank you for the occasion. Well, again, you don't have to thank me, you have to thank the FBI.

Since we spoke last with you, Maggie, right after the FBI conducted the search of Mar-a-Lago, there has been a lot of new developments, most of them broken by you and our colleagues. So we want to talk through those developments and make sense of them because it's still a pretty confusing story, I think, for a lot of people. So I want to start with the nature of the documents that FBI agents found at Mar-a-Lago. What do we know specifically about these documents? So Michael, there were several boxes of documents, other pieces of paper, and so forth, taken from Mar-a-Lago during this search. According to the inventory that was made public last week,

there were 11 sets of documents with classification markings on them. So there's TS, which means top secret, the highest classification. Then there's TS-SCI, which is an abbreviation for top secret sensitive compartmented information. And what does that mean? classification. Then there's TSSCI, which is an abbreviation for Top Secret Sensitive Compartmented Information. And what does that mean? So SCI is a separate security clearance process that runs through the CIA. That suggests an even narrower group of people who would have

access to those pages. Got it. So the kinds of documents that are reserved for the absolute highest levels of government, really the most sensitive kind of information that there is. That is exactly correct. Maggie, among these documents that you just described, do we know any specifics about what kind of secrets they contain? What kind of words were on the page? What kind of words were on the page? We only know, Michael, certain descriptors of specific pieces of information that they took, the FBI took. So for instance, there's one document marked info related to the president of France.

We don't know what that is. We know that in another case, something related to his clemency grant toward Roger Stone, his longtime advisor, was there as well. But in terms of the classified material that had these markings on them, it could be anything, and I do mean anything. There has been a lot of questions about the range of secrets that he had access to and might have taken with him.

We also know from our reporting that at least during the course of the last roughly 18 months, when federal officials were trying to get these documents back, they were said to contain material that was part of special access programs. That is very, very, very sensitive information with real access restrictions. And that could be a lot of different things related to weapons systems, related to a number of other items that most government officials would not want to see outside the government. Right. There's been speculation that those programs might include nuclear programs.

Do we know if that's true? We don't know that. That has not been confirmed. The idea that it could contain materials related to nuclear programs does not necessarily mean weaponry specifically. It's a range. It also doesn't mean it's necessarily about U.S. nuclear programs. It could be a foreign country's nuclear programs or nuclear capabilities or development.

Again, it's a very, very broad range, but we have not confirmed that. Okay, so let's turn to what we're learning about the lengths that the Department of Justice and the National Archives went before this FBI search to get these documents. You referred to an 18-month period. I want to further explore what occurred during that period, because I know you found a lot of new information about that. Sure. So, Michael, at some point in 2021, the National Archives realized that it was missing material. Last week, we talked about the efforts to get back 15 boxes of material in January of 2022. Since then, we have learned that there was a grand jury that was impaneled to investigate this,

ultimately issuing a subpoena in May for these documents. It's a pretty severe step to have to take. It's pretty telling because subpoenas get issued when you'd think that other methods have not worked. And so a subpoena was issued to try to force this. And right before a planned meeting on June 3rd between two of Trump's lawyers

and a top counterintelligence official at the Justice Department's National Security Division, one of those lawyers, Evan Corcoran, is said to have gone through the boxes to try to identify the material the DOJ wanted. And this other lawyer, Christina Bob, met with these officials on June 3rd, handed over a sheaf of material with classified markings, and signed a statement, at least one of them signed a statement, saying that material found in those boxes had been returned suspects there's still more documents left at Mar-a-Lago that they want. They're not getting them back. And so they issue a subpoena. And now there's a negotiation about getting them. That's kind of where we are in the story you're telling. That's right. And an assurance, Michael, that they have the material they were seeking on June 3rd.

That's key. that they have the material they were seeking on June 3rd. That's key. After that, the Justice Department gets some witness testimony indicating that there may be additional material at Mar-a-Lago. They then, on June 22nd, subpoena surveillance footage from the club. Wow. Not just, but including the outer area

outside of the storage room in the basement where these boxes at that point were being kept. And what do they find in that surveillance video? So they see something that alarms them. The footage was for a 60-day period. And it shows, again, this outer area outside this room where there's a lot of traffic. There are a lot of people coming in and out

during this 60-day period when the Justice Department is in touch with Trump's team. Got it. And this raises concerns for them. And I assume the concern is, we've got classified documents at Mar-a-Lago, they're not being returned, and they're definitely not secure

because people are going in and out of this room. That's what the surveillance video is revealing. At minimum, Michael, that is what the surveillance video is revealing, And that's what they're concerned about. They are worried at minimum that there are more documents remaining there. And we don't know why there were still these additional documents and why they were left behind. But clearly after seeing the video, the Justice Department decided that it couldn't take assurances that everything was being safely dealt with.

And all of this, as we understand it, formed the basis for the probable cause that led to this extraordinary search warrant on August 8th. Right, and those include, correct me if I'm wrong, Maggie, active resistance from Trump, a lawyer of his incorrectly stating that all the documents

had been returned, surveillance tape showing this space where the documents are isn't secure. So overall, what we're seeing is what looks like some level of not just resistance from the Trump world, but deception when it comes to these documents. That's what the government has observed before they start searching the place. That, Michael, as we understand it, is the Justice Department's position that they believed they were not being told the truth. And it was more than just an inadvertent slip. It was more than just not knowing the full scope of what was there, that they had tried and tried and tried and had been trying to work with Trump's team

and been given assurances, and those assurances turned out to be false and that they couldn't let this go on any longer. Got it. So this is all the background that unfolded in a very unseen way by the public before the FBI and the Department of Justice reach the conclusion that they need to go there

with agents and search this place, get these documents. There was an enormous amount of backstory here before they got to the point of executing a warrant, which is an extraordinary step and which the Justice Department has acknowledged was an extraordinary step to take against a former president. But it was because they felt they had tried everything else and they were not being told the truth by Trump's team

and that there was more in terms of documents that were sensitive and that were related to national security that were at Mar-a-Lago, not clearly secured, and that needed to be retrieved. We'll be right back. So as you said, Maggie, all this backstory is what leads us to a search warrant and to an actual search at Mar-a-Lago. When we spoke with you last week, we didn't really have any information about that search warrant.

Now we do. So what does the warrant tell us about what exactly the Justice Department was worried about and what legal grounds they used to conduct this very unusual search? So, Michael, there were three criminal statutes that were cited in the warrant. Mm-hmm. One related to obstruction of justice. One related to mishandling of records. And the third, which caught a lot of us by surprise,

was the Espionage Act. Right. I think obstruction and mishandling of documents makes a certain amount of intuitive sense, given everything that you have just told us about the president's resistance to giving the documents back. But can you explain the role of the Espionage Act here and how that might apply to the circumstances we're discussing? The Espionage Act, Michael, is a very old law. It goes back to 1917 during World War I. And what it does is it criminalizes

the unauthorized retention or disclosure of information related to national defense that could harm the United States or aid its enemies. Now, a president has never been charged with violating this act before. And we don't know yet if Trump or anyone around him will be charged. But the thinking is that Trump taking these documents to Mar-a-Lago or someone sending them to Mar-a-Lago with Trump is a violation of the rules around retention and mishandling of sensitive government documents. around retention and mishandling of sensitive government documents. Just so I understand, it's not under this law just illegal to share state secrets,

which is, I think, how many of us think of the word espionage. It's also, under this law, illegal just to possess them if you're not authorized to do so or if you haven't handled the documents in the right way. That's how this might apply to Trump, in theory. That is exactly right. Okay, so this brings us to a claim that Trump made in the right way. That's how this might apply to Trump, in theory. That is exactly right. Okay, so this brings us to a claim that Trump made in the past few days, which is that he had set up a system, he said, of automatically declassifying documents as president. And I believe his defense here is,

by the time these documents got to Mar-a-Lago, they're no longer classified. Therefore, what's the big deal? And why on earth are you searching my house? What do we make of that claim, Maggie, that as President Trump had established this automatic declassification system? So as somebody who covered the Trump White House, Michael, I had never heard of this claim before. And I asked several former officials about it, and they hadn't either. There's no evidence to support this claim. John Bolton, Trump's third national security advisor, told me he himself was never briefed on such a system when he came into the government. He never heard of it in his 17 months there.

He never heard of it after from any of his colleagues with whom he was still in touch. And he told me that he thought it was almost certainly a lie. If anyone has seen this standing order, I am unaware of it, and therefore it is not clear that it's actually true. Wow. Okay, well, even if this standing order did exist, which it sounds like in many people's minds it didn't, would it matter to the legal questions at hand? questions at hand. So our colleague Charlie Savage has looked at this question, and Charlie knows these issues and the issues around classification in and out. And his point has been that the question of whether these documents were classified or not is actually irrelevant to any potential charges that Trump or people around him could be facing. The three criminal statutes that are mentioned in the warrant, obstruction, mishandling of documents, and the Espionage Act, they don't require the documents to have classified markings. Interesting. Yeah, even in the case of the Espionage Act,

which is, you know, concerned specifically with secrets of the state, it just needs to be considered sensitive information. Got it. So it's not really about the classifications on the document. It's about the fact that they feared these were the kinds of documents that, if they got into the wrong hands, would present a threat to the United States. That's exactly right. Maggie, is the Department of Justice claiming that Trump did anything wrong with these documents during all this time? Or is this just about a theoretical fear that he might at some point do something wrong with documents,

share them with somebody who was a spy for an agent, so on? What we know the federal government has alleged, Michael, is that they wanted documents back and couldn't get them. And it may end there. We don't know. We don't know if there is something broader, but there have been some clues from the Justice Department that there is something broader. Such as? Well, they've done a number of interviews with current Trump aides who would have some visibility into whether documents were still at the property and what

he was doing with them, but also former senior Trump White House officials who had direct knowledge of how documents were handled. And they've clearly tried gleaning insight into what was going on with Trump and these documents over a long period of time. So the Justice Department was clearly afraid that Trump could do exactly what you just said. Share them, let somebody access them through carelessness, put the federal government at risk by doing so, and that it could be with some knowledge of what he was doing. But to be fair, Trump is somebody, as I told you last time we

talked about this, who has a long history of loving tchotchkes and showing them off to people. So there is a world where these were things he took as some kind of personal keepsake because he refuses to see them as the government's property and that it was less nefarious than it was obstinate. But for the federal government, that doesn't matter that much. Right. I do wonder what the federal government would think of you describing a top-secret document as tchotchke, but...

I'm sure there are many, many, many national security officials, current and former, who would take issue with that. But that's how he would see it. Right. So at the end of the day, this 18 months of the government asking for this stuff, it's very possible that he's simply resisting all of that, essentially for the sake of what amounts to a classified scrapbook. That's an excellent phrase, Michael. You should patent that. And yes, that may indeed exactly be what this is, that this is somebody who liked the things that he got his hands on. This is somebody who has always focused on other people's secrets

and thought he had secrets from the government that he thought were cool and could hang on to them. So, Maggie, where does this story go next? What are you still trying to understand here? It's only been a week. There's still a lot of elements at play. Among the key issues, Michael, beyond what was in the documents, the nature of them, just how sensitive they were, did they contain specific references to

very potentially scary secrets? More about the timeline. Exactly how long these negotiations were going on. Exactly what they entailed. And whether the government ultimately is truly considering bringing charges against a former president or any of his aides in connection with this. That's my question. I think it's my biggest question in all of this. Is it possible that this entire saga ends with the government getting the documents back,

being grateful, and moving on? Or do they have a bigger legal strategy that is more punitive in mind? I don't think they're ever going to feel grateful about how this all went down, Michael. But it certainly could end with them having the documents back, exhausting interviews and other methods of investigation, and deciding that's that and moving on from this.

But it's way too soon to say. Well, until next time, hopefully within another week. Thank you very much, Maggie. Thank you, Michael. We'll be right back. Here's what else you need to know today. Our party stands with the men and women who serve on the thin blue line at the federal and state and local level. And these attacks on the FBI must stop. In a speech on Wednesday, former Vice President Mike Pence called on Republican officials to stop attacking law enforcement agencies like the FBI and the Department of Justice for searching Donald Trump's house for classified documents. His remarks appeared to be aimed, above all, at congressional Republicans,

some of whom have called for the destruction and defunding of the FBI in the wake of the search, and was the latest sign that Pence is distancing himself from the Trump wing of the Republican Party. Calls to defund the FBI are just as wrong as calls to defund the police. The truth of the matter is, we need to get to the bottom of what happened. We need to let the facts play out. But more than anything else... And the head of the Centers for Disease Control and Prevention said that the agency has failed to effectively respond to the COVID pandemic

and would undertake a major set of reforms. Many of those reforms will focus on ensuring that the CDC issues clear and fast guidance to the public rather than the sometimes confusing and contradictory guidance that characterized its response to COVID. Today's episode was produced by Rob Zipko and Will Reed. It was edited by Paige Cowett, fact-checked by Susan Lee. Contains original music by Dan Powell and Rowan Emisto. And was engineered by Corey Schreppel.

Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.