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Opinion: Trump supporters who clamored for the release of the affidavit should be careful what they wish for

The Justice Department released a redacted version of the affidavit on Friday and even with its heavy redactions, it worsens the former President’s circumstances in multiple regards.

First, just a reminder of what this document is. In order to obtain a warrant to search Mar-a-Lago, the DOJ, under the US Constitution, had to demonstrate “probable cause” — that is, sufficient evidence for a reasonable person to conclude the search was justified. According to the affidavit, “there is probable cause to believe that the locations to be searched….contain evidence, contraband, fruits of crime, or other items illegally possessed…”
One of the most interesting revelations of the affidavit comes with respect to the Espionage Act offense. That is a sprawling statute and one of us had written about all of the different possible theories. The affidavit, by specifically citing Section (e) of the statute, reveals the government’s theory of the case here, at least so far. That section pertains to the unauthorized possession of national defense information, knowledge that it could be harmful to the United States or benefit a foreign nation and willfully passing it on to people who weren’t entitled to have it or refusing to give it back to those who were.

Even with redactions, the affidavit adds to our understanding not just of the legal theory but of its factual basis. In the style of the 1950s TV series “Dragnet,” which was credited with but never precisely included the saying, “just the facts ma’am,” we learned what was in the 15 boxes that were ultimately returned in January 2022 after a year of back and forth. They included “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”

FBI search warrant affidavit says there could be 'evidence of obstruction' at Mar-a-Lago

We know that the documents also included some marked as “derived from the monitoring of foreign communications signals by other than the intended recipients”; “human intelligence-derived information”; “derived from the collection of information authorized under the Foreign Intelligence Surveillance Act”; “not releasable to foreign nationals/US citizens”; and “originator controlled,” meaning that the document is so sensitive that only its originator can authorize additional dissemination — even to those who already have the highest security clearance.

All that certainly is probable cause (and beyond) of a crime under the Section 793(e) theory that we learned about for the first time in the affidavit. But of course, that was only the beginning of the alleged misconduct because it’s clear from the affidavit that wrangling continued over additional documents that were retained. It was much uglier than Trump’s legal team’s characterization of a “cooperative” relationship. Their pushback appears to have been based on the nonsensical argument that the president has a magic wand of automatic declassification authority.

That of course is not the law — but it is also beside the point. That is another important revelation in the affidavit. The second footnote in the document expressly states that the mishandling of national defense information is what is here under investigation. Classification often applies when national defense information is involved, but the government does not need to prove that a single line was classified to prosecute or convict Trump.

We get the flavor of that misconceived defense theory (along with a whiff of panic) in another new revelation from the affidavit: an attached May 25, 2022, letter from Trump’s lawyer Evan Corcoran to Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department. Corcoran focused on the argument that Trump’s conduct cannot be a violation of the classification statutes, but the DOJ out-maneuvered him by not claiming that those statutes are violated by the conduct addressed in the affidavit.

And then the DOJ counterpunched — again with new details — in paragraph 61 of the affidavit, warning that additional documents at Mar-a-Lago “have not been handled in an appropriate manner or stored in an appropriate location” and demanded that they be secured. We now know from the August 8 search that an additional 11 document sets, possibly including national defense information, were recovered from Mar-a-Lago.

That brings us to the other principal impact of the affidavit: on the obstruction of justice claim under 18 U.S.C. 1519. These details show why the affidavit establishes probable cause to believe there was obstruction of a government investigation. The DOJ was investigating these Espionage Act violations and others, and Trump and his allies were fighting it without any legal basis at all.

By the way, there could still be additional details of the types of obstruction contained in the affidavit that are among the many redactions. Or there could be an obstruction theory simply based on long running nonsensical pushback from Trump’s team to demands for the documents.

These new revelations relating to probable cause of obstruction put not only Trump but also his lawyers at risk. That includes Corcoran, who signed this ridiculous letter, but also Christina Bobb, another Trump attorney, who the New York Times reported signed a statement saying that there was no more classified information at Mar-a-Lago in June.

Certainly, lawyers make aggressive arguments for their clients all the time. Both of us are practicing attorneys who are well familiar with that concept. But when you cross a line and facilitate possible criminal activity by your client, including by making possible false statements of facts or law, you risk turning from an attorney into a co-conspirator.

To be clear, nothing has come to light indicating that Trump’s lawyers were aware that the assurances provided to the Justice Department were untrue, and lawyers regularly get misled by their clients. But if we were counseling Corcoran and Bobb, we would advise them to get lawyers of their own after seeing this affidavit. Of course, we are not prejudging whether they will come under investigation, but the signs are concerning.

We support releasing the affidavit, but we also respect the careful redactions, especially those protecting witnesses. The threat of setting Trump and his supporters on a witness and allowing them to engage in more possible obstruction is just too great.

If acting in good faith, those who so vociferously called for the release of the affidavit before should now accept this damning showing as the evidence they were asking for. Yes, there is probable cause that Trump committed multiple crimes in his handling of US government documents. That acceptance is probably too much to hope for from the former president and the most outspoken members of his inner circle, but perhaps some more respectable members of his party’s mainstream will now see the light.

An earlier version of this article mistakenly stated that “just the facts ma’am” was a quote from “Dragnet.”



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