This fact sheet contains a correction.
On August 8, the FBI executed a search warrant to retrieve official government records, including sensitive national security documents, from former President Donald Trump’s Mar-a-Lago residence in Florida. The search was conducted after many previous attempts by U.S. agencies to retrieve the documents from Trump. U.S. Magistrate Judge Bruce Reinhart authorized this warrant, concurring with U.S. Attorney Juan Antonio Gonzalez’s argument that there was probable cause that a crime had been committed. In remarks following the search, U.S. Attorney General Merrick Garland stated he had “personally approved the decision to seek a search warrant in this matter.”
Property receipts from the search indicate that at least some of the information confiscated was classified at the highest levels, including top secret/sensitive compartmented information (TS/SCI), intelligence that could reveal how and from whom the United States acquires information from other countries. Media reports also indicate that former President Trump’s lawyers inaccurately told the FBI in June that they had returned all requested classified documents to the government. The property receipts show that the lawyers’ reported declaration was false and that former President Trump put America’s national security at serious risk.
A critical and still open question is why Trump took these sensitive documents, resisted returning them, and concealed their existence long enough to force the U.S. Department of Justice (DOJ) to seek and then execute a search warrant. While in office, then-President Trump demonstrated little to no interest in what the intelligence community had to say, and even went out of his way to disparage and undermine it. Now out of office, there is nearly no substantive reason why former President Trump—or any former president—should retain their own copies of such highly classified information after leaving office. While former presidents typically receive courtesy intelligence briefings once out of office, shortly after taking office, President Joe Biden barred Trump from receiving these briefings. Moreover, under the terms of the Presidential Records Act of 1978, it is illegal for him to do so. These documents belong to the American people and not to any particular president.
This fact sheet provides a timeline of the events leading up to the FBI’s search of Mar-a-Lago, a list of laws that Trump has potentially broken, and possible implications for U.S. national security. While much remains unknown about the particulars of the documents that the search uncovered, enough is known to make clear the alarming implications for U.S. national security.
A timeline of events
Many specific facts about the case remain to be seen, but a basic outline of events is fairly clear:
- January 20, 2021: President Biden is inaugurated, and former President Trump departs the White House without notifying the National Archives and Records Administration (NARA) that he has removed several presidential records, including highly classified material.
- May 2021: NARA informs Trump that a number of official documents have not been transferred to its custody. NARA and Trump’s representatives negotiate the return of some of these documents in the ensuing months.
- January 17, 2022: Trump turns over some 15 boxes of documents to NARA, some of which the agency says “had been torn up by former President Trump” and including some that “had not been reconstructed by the White House.”
- February 2022: NARA alerts the DOJ that some records remain missing and that some of those recovered are highly classified, reportedly including information on need-to-know special access programs. (see below)
- Spring 2022: The DOJ issues a subpoena to Trump for the missing documents.
- June 3, 2022: The DOJ’s top counterintelligence officer travels to Mar-a-Lago to collect documents as part of the subpoena.* Former President Trump’s lawyers turn over additional withheld classified documents. At least one of Trump’s lawyers reportedly signs a written statement that inaccurately asserts that Trump has returned to the government all classified material at the resort.
- June–July 2022: Federal investigators subpoena surveillance camera footage from Mar-a-Lago’s security cameras and receive information from at least one witness that more classified material may still be at the former president’s residence.
- August 8, 2022: The FBI executes the search warrant to retrieve any remaining government documents from Mar-a-Lago. This warrant is based on: 1) the existence of probable cause that a crime has been committed and 2) a strong reason to believe that material evidence is likely to be on the premises. The FBI removes several boxes of classified documents from the resort, again after multiple previous attempts to convince Trump to voluntarily return all presidential records and documents in his possession.
What laws has Trump potentially broken?
The Mar-a-Lago search warrant refers to potential violations of three specific sections of Title 18, which details federal criminal law. These specific sections include:
- Section 793: This provision concerns the handling, control, or misuse of national security information. Based on the Espionage Act of 1917, which has been updated on multiple occasions, the law prohibits the unauthorized holding of “national defense” information that would harm the United States or aid a foreign adversary as well as the withholding of that information from federal officers entitled to receive it. This provision is important in countering specious arguments about whether the documents were declassified. (see below) According to the FBI inventory, agents confiscated 27 boxes of material—some of which contained highly classified documents. As a private citizen, Trump was unauthorized to have these documents. Conviction on this charge carries with it the possibility of 10 years in prison.
- Section 1519: This section concerns obstruction of justice and carries with it the possibility of 20 years in prison for anyone who destroys, conceals, or falsifies any record with the intent to impede or obstruct a federal investigation or administrative action. Trump’s penchant for destroying official documents has been widely reported. His failure to return requested documents and his concealing of presidential records, including highly sensitive documents, from NARA and the DOJ puts him at risk of obstruction charges.
- Section 2071: This section concerns the willful and unlawful removal of government records with the intent to conceal or destroy such records. A violation carries with it the possibility of three years in prison. In addition to the potential prison term, conviction under this provision would disqualify an individual “from holding any office under the United States.” Based on the available information, Trump not only took and carried away official records and documents but also concealed them from NARA and the FBI.
The Espionage Act and the fallacy of declassification
Former President Trump’s claim is correct that the ultimate authority on declassification resides with the president, but his contention that he could and did declassify documents by “standing order” would, if true, break national security norms and put the country’s safety at risk. However, John Bolton, one of Trump’s national security advisers, stated he had never heard or seen record of Trump’s declassification order and called claims of a standing declassification order “almost certainly a lie.”
In any case, the classification of the TS/SCI and other documents seized during the FBI search is not relevant. The warrant referenced provisions of the Espionage Act as a basis for seeking evidence of any unauthorized holding of “national defense” information that would harm the United States or aid a foreign adversary; the law makes no reference to classification of documents. In fact, the Espionage Act predates the creation of the government’s classified information system during President Harry Truman’s administration. Declassified or not, TS/SCI information is, by its nature, “national defense” information whose release or unauthorized holding would harm the United States or aid a foreign adversary.
How and why are documents classified?
Former President Trump’s reported actions clearly endanger U.S. national security. While the exact contents of the classified information found in Trump’s residence remain unknown to the public, what is known from the FBI property receipt is worrying enough.
Media reports and the property receipt itself indicate that Trump retained boxes of documents classified at a variety of levels:
- Confidential: After unclassified information, this is the next level of classification, as defined by executive order, which declares that disclosure of confidential information “could be expected to cause damage” to U.S. national security. The “confidential” category may include information involving foreign governments, such as reports on senior-level meetings or a U.S. embassy’s analysis of a foreign country’s political situation.
- Secret: The next highest level of classification, defined as information whose disclosure “could be expected to cause serious damage” to national security, may include information and analysis drawn from intelligence sources or summaries of sensitive internal U.S. government deliberations. Potential examples of secret documents could include an assessment of country A’s hostile intent toward the United States, a transcript from the president’s phone call with a foreign counterpart, a readout from a National Security Council policy planning meeting, and the like.
- Top secret (TS): The highest level of classification, it is defined as information whose disclosure “reasonably could be expected to cause exceptionally grave damage” to national security. TS content can range from information on U.S. defense capabilities to intelligence reports drawn from highly sensitive sources—clandestine informants, intercepted phone calls, or satellite images. Potential examples of TS information could include an analysis of country X’s military capabilities, intelligence based on country Y’s spying activities in country Z, and similar information.
Three further classification sublevels exist beyond these three main categories, mainly at the TS level:
- Special access program (SAP): SAPs involve information on specific, highly sensitive topics, primarily on military operations and capabilities, which the government has determined requires extraordinary protection, including restricting access to a tightly limited number of officials. The existence of most SAPs is classified, though there are some SAPs whose existence is public but whose substance remains restricted; the Air Force’s new B-21 stealth bomber is one such openly acknowledged SAP.
- Sensitive compartmented information (SCI): This category of intelligence information is derived from sensitive sources and methods and may include details on those sources and/or methods by which the United States gathered that intelligence. There may be sufficient descriptive detail for a reasonably competent adversary to put the pieces together and uncover the sources or methods involved. The TS/SCI system has compartments for specific topics, with access permitted to a limited set of officials meeting a high-threshold need-to-know basis. Potential examples include intelligence regarding country X’s covert weapons program or information on government Y’s internal debate on a U.S. policy proposal.
- Restricted data (RD)/formerly restricted data (FRD): The U.S. nuclear weapons program has its own classification system—one specified by the Atomic Energy Act enacted by Congress, not executive authority. RD includes all information concerning the design, manufacture, and use of nuclear weapons, as well as the production of nuclear material used in both weapons and nuclear power plants. FRD includes all information on the military use of nuclear weapons. No president has the legal authority to declassify this information.
How to—and how not to—protect the country’s most important secrets
Federal officials do not secure TS/SCI information in this way. First, TS/SCI documents are so sensitive that only officials meeting a very high need-to-know bar are allowed to read them. TS/SCI-cleared officials must also follow standard procedures to conduct their TS/SCI “read.” They must do so only in a government-approved sensitive compartmented information facility (SCIF), which is specially constructed and hardened to prevent unauthorized entry and electronic eavesdropping. For certain highly sensitive information, readers must sign their names on the document they read. They may discuss the TS/SCI content while in the SCIF but not when outside a SCIF. They read the TS/SCI documents in the presence of an intelligence officer, who later collects all TS/SCI documents, returns them to a TS/SCI-designated safe located within a SCIF, and logs in their return.
No one may take a TS/SCI document out of the SCIF to their office or their home, even if there is a strong padlock on their office or personal safe. When an official leaves government service, they are “read out” of the TS/SCI program and cut off from further access to TS/SCI material. If an official loses a TS/SCI document, they can lose their TS/SCI clearance—or go to prison if they do something more damaging. These safeguards exist because the sensitivity of TS/SCI information is so grave.
None of the excuses offered by former President Trump and his allies hold up under the slightest scrutiny. Classified or not, under the terms of the Presidential Records Act, these documents belong to the American people—not to former President Trump. Additionally, under the Espionage Act, his withholding and concealment of these documents not only has put the country’s security at risk—it now seems to have put him in serious legal jeopardy.
The more troubling question involves why Trump would take these documents, resist returning them, and then later attempt to conceal them from the government. The declassification discussion is a distraction from the more consequential national security and rule of law implications of this still unanswered question.
Thanks to William Roberts, managing director for Democracy Policy at the Center, for his assistance with this fact sheet.
* Correction, August 22, 2022: This fact sheet has been updated to clarify that the top counterintelligence officer with the DOJ, not the FBI, traveled to Mar-a-Lago to collect documents as part of the subpoena.
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Senior Vice President, National Security and International Policy
Former Senior Policy Analyst