U.S. District Judge from the Southern District of Florida Judge Aileen M. Cannon on Monday granted former President Donald Trump’s request for the appointment of a special master to review the documents seized by the FBI during a raid on his Mar-a-Lago home on Aug. 8.
Cannon's order and several other revelations over the past few days further call into question the Department of Justice's rationale for ordering the FBI raid on Mar-a-Lago.
According to the newly released and heavily redacted affidavit, the DOJ justified the raid in order to recover “classified” information. The DOJ told the warrant-issuing judge, “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as unlawful concealment or removal of government records.”
Adam Mill, an attorney specializing in labor and employment and public administration law, noted in an Aug. 29 analysis for American Greatness: "The FBI would do well to remember it has no constitutional authority except what it borrows from the elected president."
Mill cited the Wall Street Journal, which noted that the president’s constitutional authority over classified documents trumps any statute purporting to make his continued possession of these documents illegal.
"All Trump needs to argue is that when he shipped the documents to Mar-a-Lago, he intended to modify the classifications so he could keep them after he left office. Does anyone think he shipped them to Mar-a-Lago without the intention of keeping them? No, of course not," Mill wrote.
How did Trump obtain the documents seized by the FBI?
Mill asked: "Did he sneak back into the White House after Biden took the oath of office? Did disgruntled Biden employees smuggle the documents down to Mar-a-Lago?"
According to the affidavit: “Boxes Containing Documents Were Transported from the White House to Mar-a-Lago.”
The affidavit fixes this date at Jan. 18, 2021, noting that “at least two moving trucks were observed at the PREMISES,” presumably delivering the “classified documents.”
That statement in the affidavit amounts to "one giant problem for the FBI," Mill wrote. "Biden did not assume office until two days later. When those trucks arrived at Mar-a-Lago, Donald Trump was still president. The decision to repose classified documents in Mar-a-Lago was a presidential decision. Joe Biden might not have agreed with Trump’s decision to keep these records after leaving office. But this situation is no different than Trump’s decision to share intelligence with the Russians. He made an executive decision to repose classified documents in his personal residence."
Trump "did not break the law by receiving them," Mill wrote, and "he does not break the law by continuing to possess them."
Cannon, a Trump appointee, further held that the Department of Justice cannot review or use for criminal investigative purposes any material seized pending the review process.
In her 24-page order issued on Monday, Judge Cannon laid out several significant facts in the case, noted Margot Cleveland, The Federalist's senior legal correspondent.
Cannon provided a summary of the backdrop that led to the raid on Mar-a-Lago. Throughout 2021, Trump and the National Archives and Records Administration (“NARA”), “engaged in conversations concerning records from [Trump’s] time in office,” the court noted. Those discussions resulted in Trump in January 2022 transferring 15 boxes from Mar-a-Lago to NARA. NARA subsequently informed the Department of Justice that some items in the boxes contained markings of “classified national security information.”
Following the archive’s outreach to the DOJ, NARA notified Trump on April 12, 2022, that it intended to provide the 15 boxes to the FBI. Trump’s attorneys sought a delay in the transfer to assess whether any documents contained privileged material. But then, as Cannon wrote, after obtaining a short delay, on May 10, 2022, NARA informed Trump it would proceed with “provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.”
In including this quote in her order, Cannon cited the letter the NARA’s acting archivist sent to Trump’s lawyer. That letter explained that Biden had decided to defer to the archivist’s “determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not [the archivist] should uphold the former President’s purported ‘protective assertion of executive privilege.’” Acting Archivist Debra Steidel Wall then explained in the letter that based on her consultation with the assistant attorney general for the Office of Legal Counsel, she had decided not to honor Trump’s claim of privilege.
Cleveland noted that, "while the media has previously highlighted those aspects of the letter, Monday’s order highlighted a key sentence in that same letter that went less noticed by the press."
The letter states: “NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022” (emphasis added).
"This language indicates that Biden did not merely defer to the NARA but asked the NARA to give the documents to the FBI. Of course, deferring to the NARA’s judgment equated to Biden authorizing the hand-off to the FBI, but this passage suggests a more direct connection between Biden and the investigation into Trump," Cleveland wrote.
Another significant detail in the judge's order "concerns the timeline of events, which the court exposed by providing a clear chronology," Cleveland wrote.
Before the DOJ received possession of the 15 boxes from NARA, the DOJ “obtained a grand jury subpoena,” for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”
Cleveland noted: "Why would the DOJ seek a grand jury subpoena for any and all documents in Trump’s possession bearing classification markings before reviewing the material provided by the NARA? And given that the DOJ obtained the subpoena the day after the NARA told Trump’s lawyer 'the incumbent President' had requested the archive provide the documents to the FBI, one must ask: Did Biden direct the DOJ to obtain the grand jury subpoena?"
Mill added: "The get-Trump figures have argued that Trump lacked the authority to convert these documents into his own property because they were the property of the U.S. government. But that is a matter of civil adjudication, not a crime. And it has nothing to do with Trump’s power to modify the classified nature of these documents consistent with his post-presidency status. If Trump took the documents with the intent to keep them, it’s absurd to argue that, while still president, he did not intend to modify the classified nature of the documents consistent with that intent.
"Now the FBI and the Justice Department want to overrule that presidential decision to move the documents to Mar-a-Lago and criminalize their political opponent, the former president. By removing the documents from Mar-a-Lago without presidential approval, the FBI seized executive power away from the elected leadership of this country."
In a Monday post to Truth Social, Trump noted:
"Now that the FBI and DOJ have been caught in a massive and determinative Election Rigging Scam, are they going to change the results of the 2020 Presidential Election? They should!!!
"Remember, it takes courage and “guts” to fight a totally corrupt Department of “Justice” and the FBI. They are being pushed to do the wrong things by many sinister and evil outside sources. Until impartiality, wisdom, fairness, and courage are shown by them, our Country can never come back or recover — it will be reduced to being a Third World Nation!"
Action . . . . Intelligence . . . . Publish
