Trump search puts FBI in jam between secrecy and calls for public scrutiny
Bloomberg August 22, 2022
The FBI is combing through boxes of classified records seized at Mar-a-Lago, a monthslong process that may leave the government with a disappointing response to public calls for proof that searching a former president's home was justified: Take our word for it.
The intensive operation by the Justice Department, its Federal Bureau of Investigation and other agencies to determine if criminal laws were broken or national security was damaged is complicated. Some items removed from former President Donald Trump's Florida estate are classified as top secret, meaning their public release may jeopardize US interests. But if a prosecution goes forward, the documents may have to be revealed.
It will be a delicate dance between law enforcement and intelligence interests that might never result in the type of public reckoning that critics are demanding, according to current and former national security officials.
Attorney General Merrick Garland, FBI Director Christopher Wray and other top officials may decide that just getting the material back under government control is sufficient, they said.
"You don't want people to be confused or surprised or suspicious of the way the government acts," said Seth DuCharme, a former senior federal prosecutor and acting US attorney. "There's always a tension between the government's interest and, ultimately, the public's interest when it comes to disclosing information about an investigation."
The Aug. 8 search at Mar-a-Lago has thrust the Justice Department and FBI into one of the most tumultuous periods they've faced since the investigation into Trump by Special Counsel Robert Mueller and the probe into how former Secretary of State Hillary Clinton handled classified information through a private email server.
The FBI is confronting verbal and physical threats, including an armed man who attacked the bureau's Cincinnati field office Aug. 11. Republican Representative Marjorie Taylor Greene, among other Trump supporters, is selling T-shirts emblazoned with "Defund the FBI."
The Justice Department, FBI and Office of the Director of National Intelligence declined to comment for this story. The process they are using was described by a range of current and former national security officials, some of whom asked not to be identified because they weren't authorized to speak publicly.
The department said in a court filing last week that releasing details of the investigation could jeopardize "highly sensitive information about witnesses" and "specific investigative techniques." Garland has said the only pressure he feels is to do what's right for the investigation.
Filter or taint teams have been at work sorting through the two dozen boxes of seized material and separating it into categories, including whether materials are classified or if they involve attorney-client privilege or are simply irrelevant, such as three passports the department returned to Trump last week.
The investigation is on two parallel tracks.
A team led by Justice officials is examining records to determine whether criminal laws were broken and if charges should be brought, the officials said. Separately, a counterintelligence assessment will try to determine if damage has been done to intelligence assets or methods or could be done in the course of a prosecution.
Documents taken from Mar-a-Lago included some with the U.S. government's highest secrecy rating of "top secret/sensitive compartmented information," according to a search warrant inventory unsealed Aug. 12. That's the sort of information the government normally requires be read only in a protected room by people with high-level security clearances.
An important step in assessing the materials is to make sure the security labels, such as top secret, are still correct. This determination is likely to involve an interagency intelligence review, possibly including the Central Intelligence Agency, the Defense Department and the National Security Agency.
"Those agencies would inform the Department of Justice about what is actually classified in those documents to inform DOJ's next steps in their investigation," said Alex Iftimie, a former Justice official who is now a partner with the law firm Morrison & Foerster.
At these levels, the reviews are likely to be conducted by career officials as opposed to political appointees, he said.
"My expectation is that the individuals who are going to be leading this effort are civil servants and career professionals and that these agencies would take steps to insulate the individuals who are participating in this kind of damage review from any political influence — both to protect the individuals and to protect this process from being seen as politicized," Iftimie said.
Former Justice officials with national security experience said an official damage assessment is likely. This will look at how the documents were safeguarded at the former president's residence and any resulting national security breaches.
"They have to figure out if they've had any leaks, or if the systems are failing, in which case a lot of the fixes are administrative, bureaucratic," said Chris Ott, a former attorney with the department's national security division and now a partner at Rothwell Figg.
Individuals who accessed the documents "could face anything from internal censure to, in theory, potential criminal liability," he added.
For instance, if investigators learned that while the materials were stored at Mar-a-Lago, someone took the documents home, that person could face criminal espionage charges. But an intelligence agency may prefer to start watching the person's actions.
Decision to charge
The most politically fraught step in the process will be deciding if crimes were committed and charges should be filed — particularly against the former president. The search of Mar-a-Lago alone galvanized Trump's Republican supporters in their campaigns for November's election and could have bolstered Trump for a possible 2024 White House run.
Lawmakers from both parties have been demanding more information about the search, contents of the documents and an intelligence damage assessment.
Former FBI Director James Comey came under enormous criticism for publicly discussing an investigation into Clinton's use of the private email server on the eve of the 2016 presidential election while ultimately declining to bring any charges. After Trump won, he fired Comey and replaced him with Wray, who this month reached the halfway point of his 10-year term.
Garland, normally cautious in his approach to handling or talking about the department's most sensitive investigations, took the unusual step of making brief public comments and calling for the release of the Trump search warrant. He declined to answer any questions.
In that document, prosecutors said they were searching for evidence of violations of three specific federal criminal laws, including part of the Espionage Act, over the handling of government records and in relation to obstruction or interfering with a federal investigation. An Aug. 5 document unsealed Thursday said the government was concerned that "evidence might be destroyed" and that one of the potential crimes may be "willful retention of national defense information."
Wray has avoided speaking publicly about the FBI's search. But he did send bureau employees a memo Aug. 11 saying that he was concerned about the criticisms and extolled their courage and sacrifices.
"We don't cut corners," Wray said. "We ask the tough questions — including of ourselves, making sure among other things that the investigative steps we take are measured and scrupulously consistent with our national security obligations and our role upholding the Constitution."
Those who've worked with Wray say he understands "that when you're in law enforcement, often there will be those who are unhappy with the steps that you take," said Paul Murphy, Wray's former chief of staff at the FBI, now a partner at King & Spalding. "That's one reason that it's important to always follow your established processes and to do things by the book, which are designed to inject objectivity and impartiality into the process."
Ultimately, administration officials have to "ignore the noise outside the building," follow the policies and evidence and make decisions in the interest of justice and US national security, consistent with the law, said DuCharme, now a partner at Bracewell.
"People will criticize the Justice Department no matter what they do," DuCharme said. "This isn't a spectator sport."