Espionage and Trump part 2: More on the Search Warrant

More on the Search Warrant aka The Nukes


The search Warrant itself: https://www.scribd.com/document/586755726/Search-Warrant-MAL



https://twitter.com/MuellerSheWrote/status/1558148942071828483

BREAKING: THREAD: the WSJ is reporting on the warrant and inventory of what was taken from MAL. Here is what they list: One set of docs marked TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION (TS/SCI) Four sets of docs marked TOP SECRET Three sets of docs marked SECRET 1/


Three sets of docs marked CONFIDENTIAL 20 boxes of other items including binders of photos, a handwritten note, info on the president of France, and the clemency order for Roger Stone 2/


As for the warrant itself: “The search and seizure warrant, signed by U.S. Magistrate Judge Bruce Reinhart, shows that FBI agents sought to search “the 45 Office,” as well as “all storage rooms and all other rooms or areas within the premises… 3/


“…used or available to be used by [the former president] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate.” 4/


Keep in mind, this was likely obtained FOR the WSJ from trump allies or lawyers to get out ahead of the story. The WSJ does NOT provide a copy of the actual documents. We don’t know what wasn’t reported here. END/

https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501?redirect=amp



Also, there are documents that exist that are so sensitive they can’t even BE LISTED on the inventory.

https://www.washingtonpost.com/politics/2022/02/25/trump-oversight-records/



https://twitter.com/cook4beginners/status/1558164316787863555

According to John Brennan, this material is never "lying around" but requires significant process in order to access it. If I understand this correctly, Trump went well out of his way to access much of it and I have to assume at the behest of others extremely interested in it.


Now why weren't the various agencies and authorities not aware of the existence of the material at MAL? Maybe the some of those who needed to know were aware? Trump certainly couldn't have pulled this off on his own. He had no aptitude to do any of this alone.


This is a president who rarely paid much attention to PDB if at all so it would be very unlikely he knew or much cared about the content or understood what it was about. IOW he is very unlikely to have wanted it for himself.



https://twitter.com/RickWhist/status/1558167492090101762

He had acting heads of agencies installed after firing the Senate vetted heads. He knew exactly what he was looking for and wanted for leverage after the election. He took a huge gamble that the DOJ would not act, thinking he had enough pawns in place there to halt inquiries.






https://www.theguardian.com/us-news/2022/aug/12/fbi-agents-trump-search-mar-a-lago-documents


Donald Trump is under criminal investigation for potential violations of the Espionage Act and additional statutes relating to obstruction of justice and destroying federal government records, according to the search warrant executed by FBI agents at the former president’s home on Monday.


The search warrant – the contents of which were confirmed by the Guardian – shows the FBI was seeking evidence about whether the mishandling of classified documents by Trump, including some marked top secret, amounted to a violation of three criminal statutes.


Most notably, the search warrant authorized FBI agents to seize materials from Trump’s Mar-a-Lago residence to investigate crimes in connection with the Espionage Act, which outlaws the unauthorized retention of national security information that could harm the United States or aid an adversary.


The other statutes listed on the warrant include the federal law that makes it a crime to destroy or conceal a document in order to obstruct a government investigation, and the federal law that prohibits the unlawful removal of government documents more generally.


The inclusion of the obstruction statute could be an indication that the justice department is investigating Trump not just over the potentially unlawful retention of records, but also whether he attempted to impede a separate, or wider, criminal inquiry.


The disclosures, which came in an attachment to the search warrant, mark a dramatic escalation in the justice department’s criminal inquiries into Trump. They represent perhaps one of the most treacherous legal and political moments faced to date by the former president.


A conviction for violating any of the detailed laws would be severe: the Espionage Act has a maximum penalty of 10 years in federal prison and the statute for obstruction has a maximum penalty of 20 years, while the statute for destruction of records can also bar anyone convicted from holding future office.


The contents of the search warrant became public days after FBI agents seized 11 boxes worth of materials from Trump’s Mar-a-Lago resort in Palm Beach, Florida, including records considered so sensitive that they could not be individually listed in the “receipt” of what was removed.


The most sensitive set of documents removed from Trump’s post-presidency home in Florida were listed generically as “Various Classified/TS/SCI” – the abbreviation for top secret/sensitive compartmented information – the warrant shows.


FBI agents retrieved a total of 11 sets of classified documents, some of which were marked top secret, the Wall Street Journal first reported. Federal agents also took away four sets of top secret documents, three sets of secret documents, and three sets of confidential documents, the receipt showed.


The search warrant receipt did not provide any further detail about the substance of the classified documents. Other materials removed from Mar-a-Lago included binders of photos, information on the “President of France”, and a grant of clemency for the Trump political operative Roger Stone.


Caught at the center of a rapidly escalating controversy, Trump lashed out at the justice department on Friday, saying in a statement that he had declassified all of the records in question. “It was all declassified,” Trump asserted.


The former president’s claim was met with immediate scepticism, partly because the seized documents appeared to retain their original classified markings, according to a source familiar with the matter who spoke on the condition of anonymity to discuss an open investigation.



Trump has offered no details about how the supposed declassification took place, and a former Trump administration aide, Kash Patel, has said that even though Trump did declassify the records, the White House counsel’s office never provided the required paperwork.


But whether the former president actually declassified the documents may not ultimately matter. The Espionage Act, for instance, does not distinguish between classified and declassified materials – unauthorized retention of any document relevant to the statute remains a crime.


Documents marked as top secret are also meant only to be viewed in secure rooms known as sensitive compartmented information facilities, or SCIFs, and their presence in a basement storage area at Mar-a-Lago appears to satisfy the technical elements of a violation of law.


In a statement, the House intelligence committee chairman, Adam Schiff, said the classified documents found at Mar-a-Lago were a potential security issue. “Every day that information of such a classification sits in an unsecure location is a risk to our national security,” Schiff said.


“The protection of classified information, and particularly the protection of sources and methods, is an issue of the highest priority for the intelligence committee, and as we learn more, we will responsibly discharge our oversight responsibilities,” Schiff said. The committee the California Democrat chairs oversees the FBI as well as other federal law enforcement agencies.


Calls and texts to Trump’s lawyers and aides went unreturned after the contents of the warrant became public on Friday. A spokesperson for the justice department declined to comment.


The disclosure of the contents of the search warrant and the receipt came hours before the deadline for Trump and his legal team, led by Evan Corcoran, to oppose a motion by the justice department to make public both documents, which which are no longer under seal. The motion to unseal, announced by Attorney General Merrick Garland in prepared remarks at the justice department on Thursday, does not currently include the affidavit accompanying the warrant that would give greater detail on the probable cause that led to the approval of the Mar-a-Lago raid.



This thread is about the charges in the search warrant: https://twitter.com/steve_vladeck/status/1558208876239114242

"Pulling a bunch of threads together, the fact that the search warrant was based on §§ 793, 1519, and 2071, but *not* 1924, suggests that DOJ was worried about affirmative *misuse* of materials in President Trump’s possession — and not just that he was wrongfully *retaining* them."



https://twitter.com/steve_vladeck/status/1558176721970597891

Key point: Two sections of the Espionage Act (§ 793(d) & (f)) apply even to those *lawfully* in possession of national security information — and prohibit certain conduct even by those who were entitled to have the underlying material in the first place:

https://www.govinfo.gov/content/pkg/USCODE-2009-title18/pdf/USCODE-2009-title18-partI-chap37-sec793.pdf



https://twitter.com/steve_vladeck/status/1558198773679095808

In 2018, Congress passed, and President Trump signed, a law that increased the penalty for a violation of 18 U.S.C. § 1924. That's a *different* statute than the Espionage Act, and, interestingly, is *not* one of the offenses listed in the search warrant:

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1924&num=0&edition=prelim



https://www.thedailybeast.com/a-trump-indictment-over-mishandling-classified-documents-is-now-a-very-real-possibility


The warrant obtained by the FBI to search former President Donald Trump’s office and residence at Mar-A-Lago has been made public, and it is a shocker. And I’m sure you’ve heard this before, but this could be the big one—the case where Trump can’t escape legal accountability.


Appendix B to the search warrant states that the warrant is to search for evidence of violations of the Espionage Act, 18 U.S.C. Section 793, and two other statutes.


What did former President Trump do that could be considered a violation of the Espionage Act?


It appears that Trump allegedly held on to top secret records that he originally lawfully possessed after their return had been demanded by the National Archives.


Section 793(d) of the Espionage Act states “Whoever, lawfully having possession of…any document…relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it” is guilty.


Does it matter that former President Trump states that he de-classified the materials found at Mar-A-Lago?


No.


Section 793(d) is not restricted to classified materials. Rather, it covers any document “relating to the national defense” that contains information that the possessor has reason to believe would be detrimental to the United States if made public. Here, the search warrant return states that documents seized from Mar-A-Lago include “classified/TS/SCI documents” (meaning Top Secret or Secure Compartmentalized Information), “Top Secret Documents,” “Secret Documents,” and “Confidential Documents.”


Even if former President Trump de-classified these documents before his term ended, the information contained in those documents would still fall squarely within Section 793(d).


How do we know that former President Trump was asked to return these documents to the US government?


In February 2022, the National Archives revealed that former President Trump had brought 15 boxes of materials from the White House to Mar-A-Lago.


David Ferriero, the National Archivist, wrote to Congress that “NARA has asked the representatives of former President Trump to continue to search for any additional Presidential records that have not been transferred to NARA, as required by the Presidential Records Act.”


More recently, it was revealed that a subpoena was issued for return of these documents, but that former President Trump did not return all of the documents demanded.


What penalties does former President Trump face if convicted under the Espionage Act?


If former President Trump were to be indicted, tried, and convicted under the Espionage Act (all huge ifs), he would face a presumptive sentence of between 14-17.5 years imprisonment.


The penalty for each count of violation of Section 793(d) is imprisonment of “not more than ten years.” Each document wrongfully retained by former President Trump would constitute a separate count of conviction, meaning that he could face up to 10 years for each document.


Sentences in the federal system, however, are calculated by reference to the United States Sentencing Guidelines. These guidelines create a presumptive sentence, from which a District Court judge may depart in their discretion, although, ordinarily, the District Court judge will impose a sentence within the range calculated by the Sentencing Guidelines.


Violation of the Espionage Act is governed by Section 2M3.2:

Because Top Secret (and above) information was apparently wrongfully retained by former President Trump, the guideline offense level would be 35. Although there could be upward adjustments for various aggravating factors (such as an abuse of a position of trust), an offense level of 35 and no prior criminal history would expose former President Trump to a presumptive sentence of 168-210 months (14 - 17.5 years).


What happens next and how long will it take?


There is likely to be a long period before the next activity in this case becomes public.


First, because the documents were seized by a search warrant, there is a possibility that some of the documents might be covered by attorney-client privilege. The Department of Justice will use a “taint team” to review the documents for privilege, before handing any of them over to the investigative team of FBI agents and Assistant United States Attorneys. Former President Trump’s attorneys will be able to participate in this process. To the extent that there is any dispute about the privileged status of any of the documents, the decision will be made by a federal judge. This process usually takes weeks or months.


The DOJ follows a tradition (which is not included in any written DOJ policy) of not taking public action in a politically-sensitive case in close proximity to an election. Depending on who you ask, this unwritten policy means that the DOJ will not indict a case (or otherwise make news) within 60 or 90 days of a general election. The search warrant was executed at Mar-A-Lago 91 days before the midterm elections on November 8.


When the DOJ emerges from the quiet period after the November 8 elections, the next logical step would be an indictment, which might include charges other than violations of the Espionage Act.


An indictment of a former President of the United States would be unprecedented. Of course, the actions of former President Trump are likewise unprecedented.


On the release of this news: https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/ People with certain security clearances started to freak out about how bad this was.



https://twitter.com/Angry_Staffer/status/1557880775869095936

Holy shit. Documents on nuclear weapons were some of what the government was trying to recover. https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/



https://twitter.com/Angry_Staffer/status/1557887890306334720

1. If this news article is accurate, and nuclear secrets are among the information that was subpoenaed—and not handed over—we could be looking at an espionage case, and Trump will die in prison.


2. I’m even more interested in Jared’s $2 Billion dollar deal.


3. But seriously, I can’t stress enough how much we do NOT play when it comes CNWDI. If Trump was keeping — or trying to sell/share — this info, it’s hard to articulate how screwed he is.


https://twitter.com/PhotoCassidy/status/1557908475228745728

Critical Nuclear Weapon Design Information - basically the schematics / facts and figures / flight characteristics / the how and why our nuclear weapons work including our GBSD (ground based strategic deterrent) weapons, forward deployed sub based weapons, aircraft bombs, etc


Thread: https://twitter.com/AshaRangappa_/status/1557912596484952069

THREAD. Unpacking the Espionage Act, 18 U.S.C., Chapter 36. We are concerned here with Section 793 — Gathering, Transmitting, or Losing Defense Information. Pardon me while I pour myself a drink


2. Section 793 (and 794, which I briefly note below) of the Espionage Act concern “information related to the national defense.” This is info which the person who has them has reason to believe could a) be used to the injury of the U.S. or b) to the advantage of a foreign gov


3. Importantly, there is no requirement that such information officially be classified. Still, I’m waiting for confirmation from some Navy folks who work on nuclear submarines to clarify whether nuclear info is always TS/SCI (which by definition means it needs to be in a SCIF)


3. In any case, it appears that nuclear secrets cannot be unilaterally declassified…which makes sense, bc you can imagine that we might not want to leave secrets that could involve blowing up the entire planet in the hands of one individual


https://twitter.com/AshaRangappa_/status/1557909459644682241

Just to head off at the pass that Trump could have unilaterally declassified nuclear secrets (which is irrelevant to the Espionage Act), not true. 36 CFR. Ch. 11, Sec. 1260.28 (h/t @LSurteesTdot ) requires Dept. of Energy sign off


5. (#3 above should have been #4) Let’s first turn to Section 793(e), which concerns individuals not authorized to possess the national defense info. I.e., Donald Trump. More detail on that from @petestrzok


https://twitter.com/petestrzok/status/1557427677258293248

Someone not authorized to possess it, in this thread, refers to former President Trump. Presidents to not “get” security clearances. They gain access to classified info by virtue of their election, and are the USG’s ultimate classification (and declassification) authority.


6. But EVEN IF, somehow, Trump were to successfully argue that he *was* legally authorized to possess it, the Espionage Act has an identical subsection for that, too — 793(d)


7. Either way, it is a violation of the Espionage Act to willfully retain such information and fail to turn it over to an official who is lawfully entitled to receive it. Like NARA, when they asked nicely. Or the Counterintelligence and Export Control section of DOJ w subpoena


8. That is, it appears, what Trump has done…AT A MINIMUM. If he affirmatively conveyed it to a foreign government (no evidence of that, just explaining), it would be a violation of Section 794…which is super serious and can carry the death penalty (see, e.g. Rosenbergs)


9. Given the seriousness of all this, keep in mind that NARA and DOJ tried a) to obtain voluntary compliance and b) a subpoena. And yet, he hung on to these. Why??? A former POTUS would surely understand the disastrous potential of having these secrets unsecured


10. DOJ, for its part, has frankly shown a willingness to risk national security, at least temporarily, in order to show some deference and courtesy (and benefit if the doubt) to a former POTUS. I think it’s fair to say that if you or I tried this, we’d be arrested on Day 1


11. But the point here is it is NO WONDER that the FBI executed a warrant. The focus now should be not on the search, but why the Trump hung on to these documents, and why his supporters think that is very legal and very cool /END


P.S. (got misthreaded) Navy nuclear sub officers: “Yes. TS/SCI and a codeword…[these are] Special Access Programs that are uber sensitive and you have to be read into and actively working to have access to.” So.



https://twitter.com/AliceAllonym/status/1557893252086382592

Yeah, the codes are secure. But locations, types, other security, materials sourcing...Trump had access to a bunch of saleable info while in office. He actually did try to sell to the House of Saud, didn't he? Apparently Trump kept the stuff he could sell. ...till yesterday.



https://twitter.com/tmarks11/status/1557892995180990464

1. Nuclear weapons inventory

2. Weapons deployment

3. Target lists

4. Unit readiness and effectiveness stats

5. Weapons component test results

Those sorts of things could have crossed Trump's desks during briefings. And would be a gold mine for our adversaries.



https://twitter.com/Angry_Staffer/status/1557913868764151809

There are sure a lot of folks who have never had a clearance — much less been read in to a special access program — who have some very strong opinions on why what Trump did “isn’t that bad” Spoiler alert: it’s really bad.


For context on special access programs: During operation Neptune Spear, the group of people in the WH who knew about it was in the single digits. Hillary found out a few weeks before. The director of NCTC found out 2 weeks before. AG and FBI and DHS found out the day before.


Not all SAPs are *that* close to the vest, but they’re all closely guarded secrets that could cause “grave harm” to the United States if revealed.



https://twitter.com/PhotoCassidy/status/1557914345140408320

I’ve had very very high clearances for my entire career… I have NEVER had this kind of access. And at literally every turn, multiple times annually I have been reminded that the penalty for mishandling special access documents would cost me my life in prison.



https://twitter.com/Angry_Staffer/status/1557921440271310850

This. When we’re talking about CNWDI and related information, normal declassification rules don’t apply. One more time for all the “POTUS has unilateral declassification authority!!!” folks. No, no he doesn’t.



https://twitter.com/PhotoCassidy/status/1557922002710564864

Even… EVEN FUCKING IF… he was allowed to declassify it, the possession of the documents is still illegal. CNWDI are some of the most closely guarded secrets in the DOD.



https://twitter.com/Angry_Staffer/status/1557922418919985153

“We put a padlock on it” Get the entire fuck out of here.



https://twitter.com/Studio_Michaud/status/1557922717931798529

And that’s the group that was outraged by Hillary’s exceptionally protected “server”. A. Padlock.



Recall what the warrant mentions: https://www.scribd.com/document/586755726/Search-Warrant-MAL






P.S. It was thought for years that the Rosenbergs were innocent but new evidence was declassified back in the 90s and even more has come out recently and Julius definitely did that shit. He was a complete traitor who sold nuclear information to the Soviet Union. Helping to give the Russians the nukes and why to this day we still have Defcon 1 drills over a nuclear war which is why the Rosenbergs were executed.



https://www.history.com/this-day-in-history/rosenbergs-executed

Many Americans, however, believed that the Rosenbergs had been dealt with justly. They agreed with President Dwight D. Eisenhower when he issued a statement declining to invoke executive clemency for the pair. He stated, “I can only say that, by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of millions of innocent people all over the world. The execution of two human beings is a grave matter. But even graver is the thought of the millions of dead whose deaths may be directly attributable to what these spies have done.”


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