Last week’s raid on Trump’s Mar-a-Lago home represented the culmination of a criminal investigation pushed by a partisan bureaucrat who called January 6, 2021, the “absolute worst” day of his life. And while since last Monday, the country has focused on the FBI’s raid of Trump’s personal residence, seeing that as the crossing of the Rubicon, the die was cast this spring when the DOJ went to the grand jury about Trump’s presidential records.
Reporting by the New York Times and Washington Post — some from months ago — when pieced together and considered in tandem with past practices related to presidential and other governmental records, reveals this reality. The relevant reporting started no later than February of this year, when the Washington Post broke the news that the National Archives and Records Administration (NARA) confirmed in a statement, issued by the then-archivist of the United States David S. Ferriero, that in January of 2022 NARA had retrieved from Mar-a-Lago 15 boxes of presidential records, which according to sources included items such as mementos, gifts, and letters. NARA added that Trump representatives were “continuing to search” for additional records.
Months later, in interviewing the then-recently retired Ferriero, the Washington Post detailed the origins of the retrieval of the 15 boxes. At the conclusion of Trump’s presidency, the Post reported, Ferriero “was told by the White House Office of Records Management about a group of boxes in the White House residence that should go to the Archives.”
“As we were moving materials from the White House just before the inauguration, those boxes hadn’t shown up yet,” Ferriero said. The retired archivist then explained how he remembered “watching the Trumps leave the White House and getting off in the helicopter that day, and someone carrying a white banker box, and saying to myself, ‘What the hell’s in that box?’” According to Ferriero, “that began a whole process of trying to determine whether any records had not been turned over to the Archives.”
During the spring of 2021, NARA reportedly “discovered some high-profile documents missing, such as correspondence with North Korean’s leader Kim Jong Un, that Trump once described as ‘love letters,’” the letter President Barack Obama had left for Trump, and a map of Hurricane Dorian that had been altered with a black marker by Trump. And according to Ferriero’s congressional testimony, NARA “began talking with Trump’s people right after they left office” about “presidential records.”
Here, an aside is necessary to understand the concept of “presidential records” and NARA’s involvement.
The Presidential Records Act Provides the Backstory
The Presidential Records Act provides that documents created or received by the president or his immediate staff, such as memos, letters, notes, emails, and other written communications, related to a president’s official duties, constitute “presidential records” and must be preserved. The act further declares that the United States shall “retain complete ownership, possession, and control of Presidential records.” And at the conclusion of a president’s term in office, the “Archivist of the United States” “assumes responsibility for the custody, control, and preservation of, and access to, the Presidential records.”
In contrast, “personal records” remain the property of the outgoing president and include diaries, journals, or personal notes “not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.” Likewise, “materials relating to private political associations” or “relating exclusively to the President’s own election to the office of the Presidency” and not related to the duties of the president, qualify as personal records and not “Presidential Records.”
NARA maintained that letters with North Korean leader Kim Jong Un and other documents qualified as “presidential records” that the United States owned. And by working with Trump representatives, NARA arranged to retrieve from Mar-a-Lago 15 boxes of presidential papers in January of 2022.
The Leaks Begin — And So Does the Witch Hunt
As noted above, Ferriero confirmed for the press in February 2022 that the 15 boxes of material had been retrieved by the NARA. Then in a February 10, 2022, article, the Post reported two significant leaks: first, that within the material returned to NARA were documents marked as classified, and second, that “archives officials asked the Justice Department to look into the matter…”
By March 2022, NARA was reportedly in “‘consultation’ with the Justice Department,” and by April 7, 2022, according to leaks to the Post, the DOJ had launched an investigation into Trump related to the 15 boxes of material retrieved by NARA. Another DOJ leaker reportedly told Newsweek that in late April 2022, “a federal grand jury began deliberating whether there was a violation of the Presidential Records Act or whether President Trump unlawfully possessed national security information,” and that “the grand jury concluded that there had been a violation of the law.”
Further leaks revealed that the DOJ by springtime had issued a subpoena to Trump purporting to seek “additional documents that it believed may have been in his possession.” The grand jury reportedly also issued subpoenas to obtain “surveillance footage from Mar-a-Lago, including views from outside the storage room” where Trump has stored documents from his presidency.
According to the New York Times, in response to the grand jury subpoena, a top counterintelligence official for the Justice Department met with Trump’s lawyers on June 3 at Mar-a-Largo and reportedly “left with additional material marked classified.” Leakers also claimed, in the latest of the ever-changing justifications for the raid, that around the same time as the visit to Trump’s Florida home, one of his lawyers provided a declaration “attesting that all the material marked classified in the boxes had been turned over.” Then, after a “confidential human source” reportedly told the FBI that Trump continued to hide classified documents, even providing “the location of those documents,” according to “two senior government officials,” the DOJ moved to obtain the search warrant.
‘Classified’ Is a Red Herring
Shortly after news broke of the raid, and as the public backlash to the apparent political targeting of a former president of the United States began to swell, DOJ leakers took to their PR teams at the New York Times and Washington Post to spin the search as a drastic response to a dire problem: Trump’s supposed possession of documents about nuclear secrets.
“Classified documents relating to nuclear weapons were among the items FBI agents sought in a search of former president Donald Trump’s Florida residence on Monday, according to people familiar with the investigation,” ran the Washington Post’s lead in its coverage of the developing story. The New York Times repeated the storyline, claiming Trump was seeking to “deflect attention from reports that the classified documents he had kept in his Florida home might have contained materials related to nuclear weapons…”
Rather than prompt the public’s concern, however, the country, whose memory of the Times and Post’s peddling of the Russia-collusion hoax remained fresh, ridiculed the posited justification — that Trump had stolen nuclear secrets — for the raid. The focus of coverage, nonetheless, remained on the supposed “classified” nature of the materials stored at Mar-a-Lago, especially after the release of the inventory list that documented the seizing of classified documents.
Trump and his defenders countered these claims by stressing that as president, he had declassified all of the documents he had removed from the White House — something within his constitutional authority as the commander-in-chief. However, a close look at the search warrant reveals the “classification” question is a red herring: None of the three criminal statutes relied upon by the DOJ to justify the search required the material sought to be classified.
The Criminal Codes in the Search Warrant Don’t Care About Classification Status
Specifically, the search warrant specified that the “property to be seized” included “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2017, or 1591.” Material need not be classified to fall within any of those criminal code provisions.
Rather, for instance, under Section 793, also called the Espionage Act, it is a crime for a person with “unauthorized possession of” documents or information “relating to the national defense,” that the possessor “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” to “willfully retain the same and fail to deliver it to the officer or employee of the United States entitled to receive it.” Documents and information could be “related to the national defense” without being “classified,” and an intelligence community desperate to convict Trump of something could easily frame the material as providing an “advantage” to a foreign nation. Further, given the Presidential Records Act, Trump arguably has “unauthorized possession” of the material, although if it is a copy the issue is dicier.
The second statute cited, Section 2017, criminalizes the removal, destruction, or concealing of government records, which would include presidential papers, and again that provision of the criminal code does not require the documents to be classified. And the third statute, Section 1591, addresses “Obstruction of Justice,” but before moving there, the warrant’s reference to Section 2017, read in light of the leakers’ comments, proves informative to understand the latest targeting of Trump.
Newsweek’s “exclusive” report on the supposed confidential human source that prompted the search of Mar-a-Lago claimed that “the road to the raid began a year-and-a-half ago, when in the transition from the Trump administration to that of President Joe Biden, there were immediate questions raised by the National Archives and Records Administration (NARA) as to whether the presidential records turned over to the federal agency for historical preservation were complete or not.”
Leakers Gave Away the Game
The DOJ leaker reportedly told Newsweek that NARA “believe[ed] that the former White House was stonewalling and continued to possess unauthorized material” and that the National Archive then, earlier this year, “asked the Justice Department to investigate.” The same leaker claimed a grand jury had “concluded that there had been a violation of the law.” Further, according to Newsweek and its “intelligence source,” “the affidavit to obtain the search warrant” “contained abundant and persuasive detail that Trump continued to possess the relevant records in violation of federal law, and that investigators had sufficient information to prove that those records were located at Mar-a-Lago — including the detail that they were contained in a specific safe in a specific room.”
Putting aside for a moment the DOJ’s reliance on “Obstruction of Justice,” this leak reveals the raid of Mar-a-Lago resulted from the criminal investigation into Trump’s compliance with the Presidential Records Act, prompted by NARA under the leadership of then-Archivist Ferriero. And for three reasons, Americans can safely conclude the DOJ’s launching of a criminal investigation — and its use of a grand jury — to target former president Trump was a political witch hunt.
First, NARA handled its discovery of Hillary Clinton’s violation of the equivalent “Federal Records Act” vastly differently. In September of 2015, in response to questions from Sen. Chuck Grassley, R-Iowa, about the former secretary of state’s use of a non-governmental email account, Ferriero informed Grassley of NARA’s normal response to allegations of “unauthorized destruction or removal of federal records.” “NARA will write a letter to the agency asking it to report back to NARA within 30 days and open a case file on the matter.” At that point, NARA and the agency would work together to recover any missing documents or to reconstruct them if needed.
NARA then explained that upon learning of Clinton’s use of a non-governmental email account in March 2015, it “immediately acted In accordance with our regulations by sending a letter to the State Department, setting off the process described above.” Significantly, while noting that the use of the non-government email may result in a separate DOJ investigation, in the case of Clinton, “NARA has not Initiated an ‘Investigation’ of Secretary Clinton’s email practices; rather, as noted above, we have been communicating with the State Department on this matter, and are deferring to the State Department’s review (and any other agencies conducting Investigations).”
In contrast, in the case of Trump, NARA referred the matter of documents stamped “classified” to the DOJ, which promptly opened an investigation into Trump and used a grand jury to subpoena Trump and others.
Numerous public statements by Ferriero, who at the time of the referral to the DOJ served as the country’s archivist, suggest a partisan goal underlying the referral. First was Ferriero’s bizarre overreaction to “watching the Trumps leaving the White House and getting off in the helicopter” while someone was “carrying a white banker box.” “What the hell’s in that box?,” Ferriero claimed he asked himself.
Then there was Ferriero’s admission that he decided to retire at the end of April 2020 “because he is worried about the political future.” “It’s important to me, that this administration replace me,” Ferriero said, adding, “I’m concerned about what’s going to happen in 2024. I don’t want it left to … the unknowns of the presidential election.”
That’s quite a strange statement for an archivist to make, suggesting as it does that politics matter in the performance of his role.
Third, Ferriero’s comments during a post-retirement interview discussing Jan. 6, suggest he holds an anti-Trump bias. “On his office television, David S. Ferriero, the archivist of the United States, had watched outgoing President Donald Trump whip up the right-wing crowd near the White House,” the Post reported. Ferriero said he recalled watching “this angry mob … really angry, angry people” and thinking to himself, “if these people realize what’s in this building they’re passing, we’re at risk here.” The former archivist called January 6, 2021, “the worst day of his tenure as the keeper of the nation’s collective memory,” and “the worst day of my life” — “the absolute worst.”
It is not merely NARA’s referral to the DOJ and Ferriero’s apparent bias that suggests a political motive, however: It is the reality that even if the documents were classified, Trump has the right to access them and NARA could have worked with the former president to set up a secure location for his presidential papers, which is precisely what Ferriero and the NARA did with Barack Obama.
In 2016, before President Obama left office, he rented a private facility in Hoffman Estates to serve as a storage place for his presidential papers, and by October of 2016, while he was still in office, shipments of artifacts from his presidency began arriving at the suburban Chicago storage facility. A year later, the Chicago Tribune reported that after the National Archives and Records Administration had worked with the former Democrat president to ship his documents to the Chicago suburb, where they were stored and kept secured, Obama decided not to retain a paper archive at his presidential museum, “meaning they would be shipped back to Washington once a decision [was] made on where to keep them permanently.”
The Obama documents — both classified and unclassified — remained in Hoffman Estates well into 2018, as evidenced by a letter of intent executed between Ferriero on behalf of the National Archives Trust Fund and the Obama Foundation. Among other things, the letter of intent memorialized the Obama Foundation’s agreement to “transfer up to three million three hundred thousand dollars ($3,300,000) to the National Archives Trust Fund (NATF) to support the move of classified and unclassified Obama Presidential records and artifacts from Hoffman Estates to NARA-controlled facilities that conform to the agency’s archival storage standards for such records and artifacts.”
The only difference between the Hoffman Estates’ storage of the Obama presidential records that began in 2016 and the Mar-a-Lago storage of Trump’s presidential records was that the documents were technically within the possession of NARA. But even though the documents were legally the property of NARA, Obama still had the right to access the records, including the classified documents.
So if upon receiving the 15 boxes of documents back from Trump, NARA had legitimate concerns about the security of Mar-a-Lago — a strange worry to hold given that the Secret Service must safeguard the location to protect Trump and his family — a bureaucracy committed to the country and safeguarding her artifacts would have worked to arrange for the documents to be preserved under the auspices of NARA control in a location chosen by Trump, as it had done with Obama.
It’s the Grand Jury, Stupid
But the presidential records were never the concern; nor were the documents with classified markings, which remained secured along with the Trump family. The goal was always to get Trump, which is why NARA referred the matter to the DOJ, which then used a grand jury to investigate the former president of the United States. And once the grand jury began the case, under the apparent auspices of a violation of the Presidential Records Act — if the sources are believed — the DOJ teed up the possibility of an “Obstruction of Justice” charge for anything less than full cooperation in the mind of the FBI.
Whether Trump’s lawyer signed a declaration that inaccurately claimed Trump had no documents marked as classified is unknown. If so, it would appear an obstruction charge will be forthcoming, but then so will a fight over whether Trump’s lawyer meant Trump had not retained any “classified” documents since they had all been declassified and the marking just not fixed. Or maybe that’s all the declaration stated — that Trump did not possess any classified documents.
An Espionage Act charge would likewise face a high hurdle given the DOJ would need to establish that Trump had “reason to believe” the national defense information “could be used to the injury of the United States or to the advantage of any foreign nation.” Further, to the extent the Biden administration would seek to charge Trump with mishandling classified material, that theory would fail given Trump’s absolute declassification authority.
That leaves (at least at this point — the creativity of the deep state remains untapped) Section 2017, which criminalizes the removal, destruction, or concealing of government records. But Trump did not remove the records and likely did not designate the records for shipment by GSA. And even if he did, Section 2017 seeks to protect government property, and if what Trump possessed consisted of mere copies of government records, there should be no violation of this criminal provision.
Given these problems with the underlying legal theories, targeting a political enemy and former president of the United States with a search warrant represents an unforgivable lapse in judgment. And as for the claim that the DOJ needed to recover these vital national security documents, the shifting stories spread by leakers suggest this rationale is simply a pretext.
After all, within the course of one week, the justification for the search went from “nuclear secrets” to classified documents, to videos suggesting the documents were not secure, to videos suggesting the Trump team was serendipitously moving the documents, to a confidential human source claiming Trump continued to possess presidential records, to a supposed lie by Trump’s attorney that there were no documents present at Mar-a-Lago marked classified.
No matter the excuse provided for the raid, however, the reality remains that the Biden administration launched an unnecessary grand jury criminal investigation into Trump based on a referral from a partisan archivist. And all Americans of goodwill see the obvious difference in the government’s treatment of Clinton, Obama, and Trump, proving the purpose of the investigation was “to get” Trump and not the documents.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.
Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.
As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.