The intelligence community and all sane citizens and allies of the United States are rightly freaking out about the implications of the just executed search warrant for Donald Trump’s Mar-a-Lago properties and the surprises it has yielded.
To judge from the warrant, someone who resides at the Trump resort, presumably the ex-president, is being investigated for violating the espionage statute, obstructing justice and destroying and/or retaining Presidential records whose rightful owner is the American public and whose only proper home is the National Archives.
The official inventory of what the FBI seized includes highly restricted national defense information stretching into the classification stratosphere.
Sources have told The Washington Post and other outlets that among the materials sought under the warrant were nuclear-related data, the most sensitive of all government secrets, and information about “sources and methods” (electronic intercepts, etc.) called “special compartmented information” (SCI), another ultra-sensitive category.
As any Deep State junky knows, the sensitivity and classification of such files and the controls imposed on them are determined by the projected damage their release could do to the national security. Much of the material that figured in the warranted search tips deep into the Red Zone. That clearly is why the Justice Department was so hot to retrieve it.
If there is such a thing as high-stakes poker in the national security arena, this is it.
But an equally profound security interest intrinsic to this story remains under-reported and decidedly under-appreciated.
Years ago, in early 1980, the U.S. Supreme Court decided that a certain breach of CIA security regulations, involving no secrets whatsoever, had done “irreparable harm” to the nation’s defenses simply by creating the impression of a breakdown in official security controls. By the Court’s reckoning the resulting uncertainty about CIA security procedures had caused US allies to become wary of sharing their own secrets with us and had led to them to cut back on defense cooperation.
The trigger for all this was publication of a memoir by a former CIA officer without official CIA approval. The government stipulated under oath that the case involved no breach of secrecy, not even the exposure of any non-public information about government operations. For litigation purposes the memoir was secrets-free, as substantively harmless as a Disney fairy tale.
The problem, as government prosecutors defined it, was that the author’s very act of publishing the book without the CIA’s okay had made it appear to our allies that the intelligence community could not police its information or employees.
The Supreme Court swallowed this argument, hook, line and sinker.
“The government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service,” the Court declared in its ruling.
A CIA affidavit, cited by the Court, decried the author’s alleged flouting of the rules and warned that “if he is able to get away with this it will appear to all those other people [allies around the world] that we have no control, we have no way of enforcing the guarantee which we attempt to give them when we go to work with them.”
I know something about this case because I was the defendant. My offense: publishing a memoir about my CIA experiences in Vietnam, Decent Interval, without running it past the Agency’s censors. Despite the absence of any breach-of-secrecy charges, I got creamed by the Supreme Court, enjoined for life from speaking out without approval and stripped of every cent I earned from my offense, now and forever. The Court also dinned me for violating an invisible duty of trust to the government, a sacred “fiduciary obligation,” which, it reasoned, would have existed as a function of my access to classified intelligence, even without any written rules.
I thus became the Court’s excuse, and the Justice Department’s pretext, for establishing a brand-new standard for judging the severity of an alleged breakdown of government security regulations.
The case against me played out in civil court and did not implicate criminal statutes. But if the unapproved publication of a secrets-free memoir by an obscure ex-CIA officer was sufficient to cast doubt on the efficacy of government security practices and thus unsettle our allies, how much greater the negative impact of ex-president Trump’s apparent serial violations of rules against misuse of the most extreme government secrets.
The Court was so impressed by the Justice Department’s arguments against me that it decided my case summarily, without allowing my lawyers or the government’s to file any written or oral briefs. A few weeks ago, the current Justices declined to take up a case that would have overturned U.S. v Snepp. So, the precedent and the liabilities it confers remain emphatically the law of the land.
In a just world, under the standards applied against me, Trump would be facing a life-time restraining order against future violations – tantamount to disqualification from holding a sensitive position again – and forfeiture of all income and derivative income he made while abusing his “fiduciary obligations” as president and ex-president.
In fact, the fundamental case against him has been already proven many times over. Bashing intelligence safeguards and fomenting uncertainty among our allies about the reliability of our commitments to them and the sanctity of shared secrets have long been Trump staples.
He betrayed a top-secret Israeli intelligence operation to two senior Russian officials in the Oval Office. He tweeted to the world a highly classified satellite image of a targeted Iran missile pad, championed Russian intelligence over our own in the Trump-Russia scandal, and abandoned Kurdish allies in Syria, leaving behind operational secrets we had developed with them.
According to Bob Woodward’s book, Rage, Trump revealed to him in a 2019 interview a newly created ultra-secret US nuclear weapons program.
“I have built a nuclear — a weapons system that nobody’s ever had in this country before,” Trump boasted. “We have stuff that Putin and Xi have never heard about before. There’s nobody — what we have is incredible.”
Other sources confirmed to Woodward that the program existed but expressed surprise that Trump had acknowledged it.
Further proof of how little Trump and his minions cared about nuclear secrets came to light in 2019 when Congress learned of a long-running plan by the President’s former National Security Advisor Michael Flynn to transfer nuclear technology to Saudi Arabia without the proper policy reviews.
Shane Harris, who has been covering the Mar-a-Lago search story for The Washington Post suspects that indifference to security concerns is endemic to Trump World. “I have been interviewing former officials from his administration who said it was routine that classified information was in the hands of government employees and political appointees who had no reason to have it and didn’t have proper security clearances to read it,” Harris commented on a recent Post podcast. “There is a kind of sloppiness and recklessness, I would argue, in the way the former president handled classified information and some of that happened in plain view of the public.”
That Trump chose to make the notoriously insecure Mar-a-Lago a post-presidential secrets repository should be enough to make our most forgiving allies tremble in their boots.
“The perils of securing the facility were… made clear in 2019 when a Chinese national, carrying a telephone and other electronic devices was arrested after getting past a reception area by saying she was headed to the pool,” The Washington Post has reported.
In view of all this, it’s not just US allies who should be worried about the recent discoveries at Mar-a-Lago, but every American who cares about national security.
Nor is Republican gaslighting about Trump’s culpability any excuse for being confused or ambivalent about what took place. Numerous media stalwarts, principally The Post, The New York Times, The Wall Street Journal and Newsweek magazine, have done an impressive job of reducing the Mar-a-Lago story to a precise timeline of treachery and double-dealing on Trump’s part.
To sum up the reporting to date:
The court-approved search of Trump’s Florida compound on August 8 arose out of an extended effort by the National Archives and the Justice Department to secure the return of sensitive materials heisted by Trump when he left the presidency.
He and his defenders are now claiming that his departure from the White House was so frenetic that mistakes were made in separating what belonged to him and what was government property rightfully due to the National Archives under the Presidential Records Act.
They also argue that during his last hours as president, Trump issued blanket declassification orders for his favorite secrets so he could justify keeping them as a private citizen, though the necessary documentation for such an order is nowhere to be found.
If such a blanket clearance has occurred, everything it touches is now accessible to the public, and to our enemies, under the Freedom of Information Act.
Think about that.
The simplest explanation for Trump’s legally questionable packrat behavior is his continuing refusal to concede his election loss. Maintaining the pretense of being president would logically militate against surrendering presidential secrets.
But far darker interpretations can be put on the documents matter, and there are plenty of Trump haters ready to do it. Hardened cynics speculate, for instance, that Trump has been laying in government secrets to sell off to top bidders abroad, possibly for election help in 2024. In this regard, his curious affinity for Vladimir Putin remains unexplained and a major counterintelligence concern. And the megabucks handouts that Trump family members have received from Saudi Arabia in recent months reek of potential hidden tradeoffs.
There are also those of a truly paranoid streak who believe that the boxes of classified material at Mar-a-Lago represented potential bargaining chips to be used by Trump in some crazy, still undiscovered scheme to blackmail his way back into power.
Too far-fetched? Maybe. But brutal gamesmanship has never been outside his moral or political compass.
Whatever Trump’s objectives, he made only desultory efforts during his first year out of office to account for the government documents he had hauled off to Mar-a-Lago. Officials at the National Archives, upon examining what he had left behind, quickly discovered that sensitive materials he had enthusiastically publicized during his presidency, like his “love letter” from North Korea’s madman, were missing from what they had in hand.
In January of this year, Trump, under increasing pressure to fess up, allowed the Archives to send a truck to Mar-a-Lago to pick up suspected leftovers. Among the Presidential materials uncovered in this outing, according to The Post, The Times and other outlets, was highly classified signals intelligence, whose very presence in the bundle only highlighted the stakes involved and the danger of Trump’s possible continued hoarding.
The Justice Department was alerted, and sometime last Spring obtained a subpoena for any remaining materials. More foot-dragging ensued on Trump’s end and in early June a counterintelligence expert from the Department traveled to Mar-a-Lago to press for a definitive resolution of the issue. Trump and his lawyers promised to cooperate, identified a storage room allegedly containing still orphan materials and resumed the hand-back process. Afterwards one of the Trump attorneys signed an affidavit pledging that all of what had been left in the storage room had been returned.
But security video of the area, later subpoenaed by Justice officials showed what look like a shell game effort to keep some of the material hidden. Moreover, according to press speculation, a Trump insider confirmed to the Justice Department that the ex-president was still playing coy.
Hence, the politically fraught decision by Attorney General Merrick Garland to seek a search warrant to scour Mar-a-Lago for errant secrets
At the time of the FBI raid, legal sages like Laurence Tribe ventured publicly that the search was probably a documents retrieval operation and not a prelude to prosecution, especially given all the other potential Trump crimes the Justice Department was investigating.
But once the warrant was unsealed (at Garland’s request), it became apparent that this was a strike at Trump’s jugular. The warrant made clear that the FBI was looking for evidence of serious crimes, and the statutes cited in it would seem to put the Justice Department in an aggressive litigation posture.
By invoking the obstruction of justice statute, the Department is clearly positioning itself to hold Trump accountable for destroying or hiding documents relevant to an on-going investigation. And the statutory citation chosen to enforce the Presidential Records Act would punish the destruction and/or manipulation of pertinent materials, not just their illicit retention.
By tacking on the Espionage statute, the third citation, Garland is saddling himself with tough evidentiary requirements whose very severity suggests he has some powerful ammunition hidden in his pocket.
In assessing Trump’s legal exposure under the warrant statutes, Andrew Weissmann, former chief prosecutor for the Mueller team, told MSNBC that an obstruction charge might be the easiest one to prosecute since the record suggests Trump has been willfully deceptive in avoiding compliance with the Presidential Records Act. The Trump lawyer who pledged last June that no relevant documentation remained in the ex-president’s hands could be in significant legal jeopardy as well.
“I think the shortest distance between Donald Trump and an orange jumpsuit is this investigation with the documents,” conservative lawyer and columnist George Conway told CNN.
Meanwhile, if the Supreme Court’s perspective in U.S. v Snepp is to be credited, Trump has already inflicted “irreparable harm” on the nation’s security by making a mockery of official secrecy in the eyes of our allies and everybody else.
(This piece was first published at Spytalk.co.)