The FBI’s Mar-a-Lago Seizure Could Pose Trump’s Biggest Legal Problem Yet
Even Georgia’s investigation into election interference could take a back seat to Trump’s mishandling of sensitive government documents
This post has been updated to include information regarding Top Secret/Sensitive Compartmented Information.
Mission: Impossible, the 1996 spy thriller starring Tom Cruise, is among my favorite movies. One of the film’s most memorable moments is “the vault scene.”
Ethan Hunt, Cruise’s character, and his team of covert operatives break into a secure room inside CIA headquarters. Their mission is to copy computer files containing secret government information called a “NOC” list.
After seeing the film the first time, I was surprised to learn that, while the vault scene may be over-the-top, a NOC list isn’t a Hollywood fantasy but a real thing.
Information of this nature is among our government’s most closely guarded secrets. The term “NOC” (pronounced: knock) is an acronym for “non-official cover.” This 2019 piece in Just Security explains the different types of covert intelligence operatives:
There are two primary forms of cover for intelligence officers or employees — the case officers who “run” the actual spies, known as “agents.” Intelligence officers under “non-official cover,” known as NOCs, are the most vulnerable and often pose under sophisticated cover stories with no connection to the U.S. government. Their identities are closely guarded by the government because, if they get caught, they cannot invoke diplomatic immunity and could be subject to prosecution, imprisonment, or even execution under the laws of the country in which they are posted.
The majority of overseas officers serve under “official” cover, posing either as diplomats or military attachés. These officers, unlike NOCs, have diplomatic immunity and may be able to avoid legal trouble if their identity as an intelligence officer is disclosed. That said, they may face similar physical dangers when posted overseas.
Notable breaches of classified information
According to Military.com, one of the country’s most damaging breaches of classified government information was in the case of Jonathan Pollard, an intelligence analyst for the United States government:
When Jonathan Pollard was convicted of espionage in 1987, he became the first American to go to jail for life for passing secrets to a U.S. ally. The top-secret information Pollard passed on to Israel is so vast and damaging, the complete list of files is itself top secret. He was sentenced to life in prison with the possibility of parole after 30 years.
There are few things both liberals and conservatives agree on these days, but keeping Pollard in prison for the rest of his life was one of them. Yet, he was released in 2015 and quickly made his way to Israel -- where he received a hero’s welcome.
Aviem Sella, a retired officer in the Israeli Air Force, was Pollard’s recruiter and handler. Sella was charged in absentia on three counts of espionage but not extradited to the United States. On January 20, 2021, in the final hours of his presidency, Trump granted Sella a full pardon.
One of the most high-profile breaches of a non-official cover operative’s identity was that of Valerie Plame, an undercover CIA officer. She was outed in print by the late syndicated columnist Robert Novak in 2003.
The person responsible for leaking Plame’s status to Novak and other journalists, including The New York Times’s Judith Miller, was “Scooter” Libby, who at the time held several positions in the George W. Bush administration including that of the chief of staff to Dick Cheney.
Libby was indicted and later convicted concerning Plame’s classified information leak. President Bush later commuted Libby’s 30-month sentence, allowing him to avoid ever going to prison.
Libby received a full pardon in 2018 from then-president Trump, who said he issued the pardon because Libby was “treated unfairly.” Most observers viewed the pardon as a signal to Trump’s allies that if they remained loyal (read: uncooperative), he would use the presidency’s pardon power to shield them from incarceration.
Since the Mar-a-Lago document seizure, we’ve had a crash course in how disinformation works.
Unless you live on another planet, you’ve heard about the FBI’s court-authorized search and seizure of sensitive government information at Mar-a-Lago, Trump’s home, and private resort. The short version of the events leading up to this unprecedented event is as follows:
Upon leaving the White House in 2021, the ex-president absconded with a hoard of government documents ranging from unclassified papers to classifications most Americans never knew existed. Since he left the White House, numerous government authorities have attempted to retrieve the sensitive materials.
For the last 18 months, government materials, many of which belong in the real-life equivalent of a Mission: Impossible vault, have sat in the basement of the former president’s home.
As if making off with government documents wasn’t enough of a break from protocol, Trump stonewalled the government’s efforts to retrieve the material for months, even after receiving a subpoena ordering him to hand them over. According to The New York Times, Team Trump misled federal agents for months regarding their continued possession of government documents:
At least one lawyer for former President Donald J. Trump signed a written statement in June asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government, four people with knowledge of the document said.
The written declaration was made after a visit on June 3 to Mar-a-Lago by Jay I. Bratt, the top counterintelligence official in the Justice Department’s national security division.
[The signed declaration] is a possible indication that Mr. Trump or his team were not fully forthcoming with federal investigators about the material.
It is important to note that a president does not go through the standard vetting process to receive security clearance. The clearance comes by virtue of holding the office. But once their term expires, so does that authority.
Also of note is Mar-a-Lago’s notoriously porous setting. Who can forget the time when a guest at the private club posted a photo on Facebook showing the late Japanese Prime Minister Shinzo Abe huddled up with Trump and his White House staffers after a North Korean missile launch? Or the time a Chinese “businesswoman” was arrested for trespassing on the resort’s grounds — with a purse filled with electronic devices?
It’s no wonder Politico dubbed the venue “heaven for spies.”
As a courtesy, incumbent presidents typically allow former presidents to receive national security briefings. But in Trump’s case, President Biden declined to grant this courtesy. This prophetic decision marked the first exclusion of a former president from the tradition of receiving continued access to national security briefings:
The US has a tradition of allowing former presidents to be briefed on the nation's security issues - as a courtesy extended by the incumbent.
"I don't think there's any need for him to have an intelligence briefing," Mr. Biden said in his first sit-down interview since becoming president.
But when asked by CBS News if Mr. Trump would receive the same courtesy, President Biden said: "I think not.” He cited Mr. Trump's "erratic behaviour" as his reason for refusing access.
…[H]e declined to speculate on what his worst fears would be if Mr. Trump were allowed to see classified reports, but he suggested the former president could not be trusted to keep confidential information to himself.
"What value is giving him an intelligence briefing? What impact does he have at all, other than the fact he might slip and say something?" Mr Biden said.
After months of kid glove treatment, Attorney General Merrick Garland signed off on the FBI’s search of the resort’s premises. Taken off guard by Garland’s surprise hammer drop, Trump and his Republican allies responded by deflecting the issue.
Republicans began their effort to excuse the inexcusable by disparaging both the Justice Department and FBI. The former law and order party compared federal agents to the Gestapo, going so far as to accuse agents of planting classified documents at Mar-a-Lago. They also took the opportunity to use the event to raise money in their fundraising emails. In the days following the FBI search, Republicans —including Trump — demanded the release of the search warrant, a copy of which Trump already possessed and could’ve released at any time.
Predictably, the highly charged rhetoric resulted in threats of violence. Within days, the situation became so out of hand that the federal judge who authorized the warrant needed increased security, and his synagogue canceled its Shabbat service. By the following Thursday, an angry Trump supporter died after attempting to breach an FBI field office in Cincinnati.
Despite their attempts to spin the situation, neither Trump nor his allies have seen fit to address these rather obvious questions:
Why were boxes of sensitive government documents in Mar-a-Lago’s basement in the first place?
Who has had access to these documents in the 18 months since he left the White House?
Since he no longer holds any level of security clearance, what exactly did Trump plan to do with these documents?
Merrick Garland’s unexpected chess move
During the Mueller investigation, Trump gamed the system, taking advantage of the DOJ’s practice (James Comey notwithstanding) of declining to comment on active investigations, allowing Trump to win the information battle by spreading mis-and-disinformation regarding the probe.
Then-Attorney General Bill Barr supplied the coup de grâce, distributing a false “exoneration” narrative ahead of the release of the final Mueller report. By the time the Mueller report was distributed, the die was already cast.
It seems Garland learned from Mueller’s missteps. In a brief press conference, Merrick Garland called Trump and the far-right’s bluff, announcing that the Justice Department requested that the court unseal several documents surrounding Monday’s search of Mar-a-Lago. According to the Receipt for Property released with the warrant, the FBI seized 27 boxes of government records, including eleven sets of classified material.
In addition to classified and top secret documents, the cache included materials labeled TS/SCI — Top Secret / Sensitive Compartmented Information:
“…Sensitive Compartmented Information (SCI) is information about certain intelligence sources and methods.” SCI may involve details or other data about “sensitive collection systems, analytical processing, and targeting, or which is derived from it.”
Access to TS/SCI information is permitted on a need-to-know basis for those who have been awarded the appropriate security clearance level. For example, those with a need to know AND a Top Secret clearance may be authorized to view TS/SCI rated material, but someone with only a Secret or Confidential clearance would not.
There are instances of Secret-level classified SCI, those with the appropriate clearance would be authorized to view such material but those without approved clearance levels would be required to obtain them prior to being given access to SCI.
Access To TS/SCI and related material may require the completion of a separate non-disclosure agreement. The agreement on file from the initial security clearance investigation may not be sufficient.
TS/SCI Access is always determined by the need to know. Those who hold high clearances (such as Top Secret) are not automatically authorized to handle or view SCI, they must be granted access first.
Some seized materials fall into the “Special Access Programs” category. This designation is so sensitive that access is limited to a tiny group of top military and intelligence officials, hence the concern that some Mar-a-Lago documents could be related to nuclear weapons or human sources, according to The New York Times:
Historically, special access programs have been reserved for extremely sensitive operations carried out by the United States, or for closely held technologies and capabilities. That could include covert programs against adversaries, or the development of special surveillance and weapons technologies, such as new kinds of stealth aircraft and hypersonic missiles.
But SAPs — as the programs are often called — do not indicate a higher level of classification. Instead, they are intended to limit the number of people who have access to secret or top secret materials. They are created when the sharing of specific information represents a heightened threat of damaging disclosures, or when a “secret” or “top secret” classification is not deemed sufficiently protective.
As Robert Hutten, a retired director at the Defense Information Systems Agency, pointed out in a recent opinion piece, Trump’s multiple business failures and enormous debt, his status as an unindicted conspirator in Michael Cohen’s conviction, his close association with convicted felons, and his financial connection to foreign entities would most likely disqualify him from ever receiving the necessary clearance to view TS/SCI documents outside of his presidency.
Trump’s latest narrative is that at some point yet to be revealed, he declassified all the documents found at Mar-a-Lago. But although presidents have the authority to declassify almost anything, one exception is nuclear secrets.
According to Bradley Moss, a lawyer specializing in national security issues, this classification area falls under the Atomic Energy Act and has its classification system requiring more than a president alone for declassification. To the extent that the seized documents fall into that category, Trump’s mass declassification defense falls apart.
It could be some time, if ever before we know the full impact of Trump’s mishandling of the documents seized by the FBI. That said, the items marked Top Secret/Secure Compartmented Information or TS/SCI could legally pose the most concern for Trump.
To put Trump’s legal exposure into perspective, consider that Reality Winner, who in 2017 leaked classified intelligence, received more than five years in prison. All for leaking one document.
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