Former President Donald Trump was warned by the National Archives months ahead of the FBI raid of his Florida home that some of the records that had been turned over from Mar-a-Lago consisted of “classified national security” and “top secret” information.
A new report reveals acting Archivist Debra Wall sent a letter to Trump lawyer Evan Corcoran in May, informing him that the National Archives and Records Administration came into possession of 15 boxes of records transferred from Mar-a-Lago in January. The letter added that an initial review of the records “identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.”
Those are among the highest classification levels.
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“NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them,” Wall wrote in a May 10 letter published by Just The News. “On April 11, 2022, the White House Counsel’s Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.”
This May letter was soon followed by a Justice Department subpoena, an early June visit to Mar-a-Lago by DOJ investigators, and, finally, the early August raid.
“It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews,” she said in May.
Wall revealed the Biden White House Counsel’s Office “acquiesced in an extension of the production date to April 29” in response to a request from Trump, so the National Archives had continued to refrain from providing FBI access up through the time the letter was sent May 10. That would soon change.
The archivist noted that Trump’s late April letter asked for extra time to review the records handed over to the National Archives so that Trump “may personally make any decision to assert a claim of constitutionally based privilege.” Wall noted that Trump’s legal team had asked the National Archives to consider the April letter from Trump to be “a protective assertion of executive privilege made by counsel for the former President.”
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Wall said the Biden White House counsel had informed her that “President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold” Trump’s assertion of executive privilege.
“The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where such records contain information that is needed for the conduct of current business of the incumbent President’s office,” Wall said, adding that “the only end that would be served by upholding the ‘protective’ assertion here would be to delay those very important reviews.”
The archivist said she “therefore decided not to honor the former President’s ‘protective’ claim of privilege.”
Wall also stressed to Trump’s lawyer in May that DOJ’s National Security Division had given the former president’s team insight into its investigation in late April.
“There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages,” the DOJ had told Trump, adding, “Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.”
The Biden White House has said the president did not know about the August raid of Mar-a-Lago in advance, and these revelations would not seem to contradict that. Attorney General Merrick Garland said this month he “personally approved the decision to seek a search warrant in this matter.”
The latest report comes after Trump filed a motion on Monday seeking an order from a judge to appoint a special master and stop the Justice Department from further review of the information they had seized from his Florida home until the special master is appointed.
The items seized by the FBI earlier this month reportedly included “various classified/[top secret]/[sensitive compartmented information] documents,” four “miscellaneous top secret documents,” three “miscellaneous secret documents,” two “miscellaneous confidential documents,” and one “confidential document.”
Magistrate Judge Bruce Reinhart suggested Monday that he may allow the Justice Department to keep the FBI affidavit behind its Mar-a-Lago raid mostly sealed, though he rejected the DOJ’s arguments that the justification underpinning the “unprecedented search” should be kept fully hidden.
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The search warrant application cover sheet, unsealed last week, provided more details on what the Justice Department was looking for.
The records show Trump was being investigated under 18 U.S.C. 793, part of the Espionage Act, and said it was related to “willful retention of national defense information.” The unsealed cover sheet pointed to 18 U.S.C. 2071, specifically the “concealment or removal of government records,” as well as 18 U.S.C. 1519, specifically related to “obstruction of federal investigation.”
