A federal appeals court has approved the Department of Justice’s request to lift a federal judge’s order barring the DOJ from accessing materials with classified markings that were seized in the FBI raid on Donald Trump’s Mar-a-Lago home. The development allows the FBI to maintain its access to the records it seized from Mar-a-Lago as the special master appointed at Trump’s request continues to review the files. These developments are escalations in the ongoing legal battle between the former president and the DOJ and the Trump-appointed federal judge over the former president’s possession of the documents, some of which contained classified material — reportedly including information about a foreign government’s nuclear capabilities. Below is what we’ve learned about the latest court moves as well as everything we know about the criminal investigation thus far.
What is going on with the special-master ruling?
On September 16, the Justice Department asked a federal appeals court to immediately hold parts of a ruling by Federal judge Aileen Cannon of the Southern District of Florida, which not only appointed an independent arbiter to conduct a third party review of the materials seized at Mar-a-Lago, but barred federal law enforcement officials from having access to the documents until that review was completed.
The DOJ appeal was successful: On September 21, the 11th U.S. Circuit of Appeals overruled Cannon’s decision, thereby allowing the feds to keep their access to the Mar-a-Lago records while the special master reviews them. The DOJ argued that Cannon’s order is legally unsound, endangers national security, and prevents the government from investigating whether additional classified documents are still missing. According to the filing, the court order “hamstrings” the government’s investigation and “places the FBI and Department of Justice (DOJ) under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities.” It also claimed that Cannon’s order “irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to [Trump’s] counsel.” Two of the three judges who issued the ruling in the DOJ’s favor were appointed by Trump.
Judge Cannon has also appointed a veteran New York jurist, Raymond Dearie as the special master who will review the seized documents, after both the DOJ and Trump’s attorneys agreed Dearie would be an acceptable choice.
On September 5, Cannon ordered the appointment of a special master to go through the more than 11,000 documents that federal agents seized for “potentially privileged material subject to claims of attorney-client and/or executive privilege.” In addition, the judge barred the Justice Department from “reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.” (Other parts of the investigation, such as interviewing witnesses, may continue.) However, she did allow the Office of the Director of National Intelligence to review the same materials for a separate, noncriminal assessment of their potential harm to national security, as classified information is by law required to be retained in a secured government location.
Typically, a special master is only appointed to review evidence for material that could be subject to attorney-client privilege, but Cannon has expanded the review’s scope to include executive privilege. The Justice Department has argued executive privilege does not apply in this scenario, since Trump is no longer president.
The Justice Department first sought to overturn the ruling by appealing to Judge Cannon, citing national security interests, and asking her to allow the FBI continued access to the seized documents, arguing that the government could not conduct the intelligence review independently from the criminal probe. “The application of the injunction to classified records would thus frustrate the government’s ability to conduct an effective national security risk assessment and classification review and could preclude the government from taking necessary remedial steps in light of that review — risking irreparable harm to our national security and intelligence interests,” it wrote. The DOJ also argued, citing the discovery of empty folders with classified markings at Mar-a-Lago, that the injunction “could impede efforts to identify the existence of any additional classified records that are not being properly stored.”
Judge Cannon denied that request in her September 15 ruling, though she said that the special master, Dearie, should “consider prompt adjustments to the court’s orders as necessary.”
Legal experts who spoke with the New York Times broadly criticized the unprecedented September 5 ruling, and particularly Judge Cannon’s expansion of the special master’s powers and her apparent reinterpretation of the limits of executive privilege. They also suggested parts of the order were highly vulnerable to being overturned on appeal.
In his analysis of the ruling here for Intelligencer, former federal prosecutor Ankush Khardori called the ruling “a significant victory for Trump that creates real risks and land mines for the Justice Department that are impossible to fully game out.” He commented that, on the core issues, “the judge adopted the most Trump-friendly reading of the law and the facts” and that she “largely ignored” legal and practical difficulties related to the special master’s review, including Trump’s executive-privilege claims. He also wrote that the “quality of the opinion’s analysis on narrower and more discrete points is extremely questionable,” noting that the judge “found that Trump would incur a ‘risk of irreparable injury’ without a special master, but if you took Trump’s status as a former president out of the equation, none of the judge’s conclusions on this point make much sense.” (You can read the rest of Khardori’s thoughts here.)
What did the search find?
The agents who searched Mar-a-Lago found documents in a basement storage area and in Trump’s office closet. According to the Washington Post, one of the documents described a foreign government’s military defenses, including its nuclear-defense readiness.
The receipt of property attached to the search warrant, which lists what the FBI took from the premises, includes dozens of entries. Eleven of those entries refer to classified materials ranging from most to least classified. One entry contains “various classified/TS/SCI documents,” which by law must be kept in a secure government facility akin to a vault. There are four sets of top-secret documents, three of secret documents, and three of confidential documents. Per the Post, “Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them,” as they “require special clearances on a need-to-know basis, not just top-secret clearance.”
On August 11, the Post reported that agents believed some of the documents they went to look for involved nuclear weapons. On September 6, the Post reported that agents did indeed recover a document containing information about a foreign government’s nuclear capabilities, though the Post’s sources, described as “people familiar with the matter,” did not identify the country, nor where the document was found at Mar-a-Lago.
Trump has repeatedly said, on Truth Social and elsewhere, that the “nuclear-weapons issue is a hoax.”
On September 2, the Justice Department made public a detailed inventory of what the FBI agents seized. It indicated that they also found 43 empty folders with classified banners, in addition more than 10,000 government records with no classification markings. It’s not clear what documents were in the empty folders, or what happened to them.
This year, in total, more than 300 documents with classified information have been retrieved from Mar-a-Lago, according to the New York Times. Investigators are reportedly now seeking additional surveillance footage from the resort.
The FBI also recovered an executive grant of clemency for Roger Stone (granted before Trump left office), “info re: President of France,” a handwritten note, a leather-bound box of documents, and binders of photos.
Did the documents’ presence at Mar-a-Lago pose a threat to national security?
That is not yet confirmed. The Office of the Director of National Intelligence is conducting a review of the recovered materials to assess what potential harm the removal of the classified documents from government custody could have caused.
Why did the Feds search Mar-a-Lago?
In January, the National Archives and Records Administration retrieved 15 boxes of documents and items from Mar-a-Lago that agency officials said Trump should have handed over to it when he left the White House. NARA reportedly found 150 classified documents among the materials it retrieved — including over 700 pages of classified material and “special access program materials,” one of the highest designations. The agency alerted the Justice Department, which opened a grand-jury investigation into the matter. The January cache included documents pertaining to national security from the CIA, the National Security Agency, and the FBI. In late 2021, Trump had gone through the boxes himself.
Christina Bobb, a Trump lawyer and onetime OAN anchor, said the former president’s legal team was in contact with the Justice Department about the investigation this spring. John Solomon, a conservative journalist who Trump designated as one of his representatives to NARA, revealed that the former president received a grand-jury subpoena for classified documents in late May. The Trump team appeared to be cooperating, turning over materials and surveillance footage that showed who had access to the area where they were stored. Trump’s attorneys arranged for a DOJ National Security Division prosecutor and three FBI agents to come to Mar-a-Lago on June 3 and pick up the items listed in the subpoena. Here’s the Post’s account of the meeting:
In June, Bobb said, she and Trump lawyer Evan Corcoran met with Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, along with several investigators. Trump stopped by the meeting as it began, to greet the investigators, but was not interviewed. The lawyers showed the federal officials the boxes, and Bratt and the others spent some time looking through the material.
Bobb said the Justice Department officials commented that they did not believe the storage unit was properly secured, so Trump officials added a lock to the facility. When FBI agents searched the property Monday, Bobb added, they broke through the lock that had been added to the door.
Federal prosecutors’ August 30 court filing says that when they produced these documents no one on Trump’s team “asserted that the former President had declassified the documents or asserted any claim of executive privilege.” Instead, the attorneys “handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.” One of Trump’s attorneys, who was serving as the formal “custodian” of the files,” provided a signed certification letter swearing that a “a diligent search was conducted of the boxes that were moved from the White House to Florida,” and “any and all responsive documents accompany this certification.” (The attorney’s name was redacted in official documents, but the New York Times reports it was Bobb.)
Trump associates have claimed that they were shocked when their cordial interactions with the DOJ ended in a raid. But according to The Wall Street Journal, sometime after June 3, a mole in Trump’s orbit told the FBI that the former president’s team was still withholding information:
In the following weeks, however, someone familiar with the stored papers told investigators there may be still more classified documents at the private club after the National Archives retrieved 15 boxes earlier in the year, people familiar with the matter said.
DOJ’s August 30 filing said “the FBI uncovered multiple sources of evidence” indicating that Trump had not fully complied with the subpoena. “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” it continued.
With this new information in hand, the Justice Department filed for a warrant to search the premises for any remaining classified documents and records. According to people familiar with the investigation who spoke with the Journal, the decision to conduct the raid “had been the subject of weeks of meetings between senior Justice Department and FBI officials.”
The filing included a photograph that shows some of the material found by investigators at Mar-a-Lago.
The photo seems to confirm that the files recovered from Trump’s office were extremely sensitive, as the Washington Post explains:
Among the most incriminating details in the government filing is a photograph, showing a number of files labeled “Top Secret” with bright red or yellow cover sheets, spread out over a carpet. Those files were found inside a container in Trump’s office, according to the court filing. A close examination of one of the cover sheets in the photo shows a marking for “HCS,” a government acronym for systems used to protect intelligence gathered from secret human sources.
The filing was made in response to Trump’s request for a special master to review the documents that were seized. The Department of Justice stated that the former president “lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him.”
What happened during the search?
The search of Mar-a-Lago began at 9 a.m. on August 8. The Secret Service was reportedly notified right beforehand and “facilitated access to the Florida Trump property as fellow federal agents but did not take part in investigation or search,” per NBC News’ Kelly O’Donnell. The Feds, who were in plainclothes, reportedly left around 6:30 p.m. Mar-a-Lago is currently closed to members on account of the summer heat in Florida. The White House said it first learned of the search from reports.
While Trump depicted the search as a Watergate-like break-in by the Feds, the scene was pretty subdued, according to the New York Times:
The agents carried out the search in a relatively low-key manner, people with knowledge of the matter said; by some accounts they were not seen donning the conspicuous navy-blue jackets with the agency’s initials emblazoned on the back that are commonly worn when executing search warrants.
Another person familiar with the search said agents began going through a storage unit, where items like beach chairs and umbrellas are kept, in the basement. They progressed to his office, which was built for him on the second floor of the main house, where they cracked a hotel-style safe that was said by two people briefed on the search to contain nothing of consequence to the agents.
Then they moved to Mr. Trump’s residence, the person said.
Former aides tell New York they recall a safe at Mar-a-Lago and another at Trump Tower in Manhattan, where Trump kept tens of thousands of dollars in cash, which he once scooped into a shopping bag before traveling. The FBI reportedly had to break into the hotel-style safe, which is in his office, a former bridal suite above the estate’s ballroom.
Trump was notorious for mishandling and/or destroying documents during his presidency. Some White House records obtained by the House select committee investigating the January 6, 2021, insurrection had been torn up and taped back together. The former president reportedly liked to try to flush documents down the toilet. A senior administration official once told the Washington Post that White House staff members made sure they never left documents containing classified or sensitive information with Trump.
What’s in the affidavit?
On August 26, the Department of Justice released a partially redacted version of the 38-page affidavit it used to obtain a search warrant. The document says 14 out of the 15 boxes retrieved from Mar-a-Lago prior to the raid contained classified records. Twenty-five documents had information on “clandestine human sources” that would have exposed the identities of people working for the U.S. intelligence community if released. FBI agents who reviewed the classified information saw evidence that it was being mishandled: Many classified documents were mixed in with “miscellaneous” papers, including newspapers and magazines.
The affidavit also states “there is also probable cause to believe that evidence of obstruction will be found” at Mar-a-Lago.
Roughly half the document is redacted, either to obscure information on national security, keep details of the investigation under wraps, or to protect the identities of those involved amid concerns about witness intimidation. The Justice Department states that redactions are required to protect “a broad range of civilian witnesses,” suggesting some figures in Trump world
may be communicating with the FBI.
After the affidavit was released, Trump called it a “total public relations subterfuge” and noted that it does not include the word “nuclear.”
What does the warrant say?
The search was related to potential violations of three laws including the Espionage Act: One of the laws concerns the “concealment, removal or mutilation” of classified materials; the second, “gathering, transmitting or losing” materials; and the third, obstructing an investigation into these matters. The Espionage Act, which governs classified information that could harm national security if released, has been used to prosecute both foreign spies and domestic leakers from Daniel Ellsberg to Reality Winner. The warrant, which does not list Trump by name, does not accuse him or any other individual of breaking the law.
The warrant goes on to describe the premises of “FPOTUS” (former president of the U.S.) being searched and what sorts of items federal agents were seeking.
How has Trump responded?
The former president was the first to break the news of the raid on August 8, releasing a written statement that evening in which he attempted to frame the search as an unjustified, politically motivated attack on him by the Biden administration and Democrats. As more details have emerged about the raid, Trump and his allies have made a number of additional claims.
Declassification.
Trump and allies have maintained that none of the documents taken to Mar-a-Lago were classified because Trump, as president, had orally bulk-declassified everything he wanted to take home shortly before leaving office. There was, according to one Trump representative, a “standing order” that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.” As the New York Times’ Charlie Savage has explained, even if that is true and there is some evidence of his having done this, that doesn’t mean it was legal for him to take the documents home and keep them. The argument, Savage notes, is legally irrelevant to the matter at hand.
Trump continues to rely on the declassification defense: In a September 21 interview with Sean Hannity, the former president said he could declassify documents “by thinking about it.”
Targeting the FBI and DOJ.
Trump has repeatedly attacked the FBI and Justice Department, alleging that the search was improperly conducted, insinuating that the FBI agents planted evidence, and complaining that agents made a mess of his wife’s closets. Trump also claimed that the FBI seized his passports.
His allies have followed suit. The night of the raid, House Minority Leader Kevin McCarthy vowed to investigate Garland’s handling of the matter if the GOP regains control of the House next year. One Florida lawmaker, State Representative Anthony Sabatini, went as far as calling for the state to “sever all ties with DOJ immediately” and arrest FBI agents carrying out law-enforcement functions “upon sight.”
Stolen passports.
On August 15, Trump alleged that the FBI “stole my three Passports (one expired), along with everything else.” But according to an email from the Justice Department to Trump’s lawyers, sent shortly before Trump made his allegation, the DOJ had already said it was returning them by that point. “We have learned that the filter agents seized three passports belonging to President Trump, two expired and one being his active diplomatic passport,” a Justice Department official wrote. “We are returning them, and they will be ready for pickup at WFO at 2 pm today,” referring to the Washington Field Office.
Trump implied he learned it from watching Obama.
Trump has also alleged, falsely, that Barack Obama improperly took millions of White House documents to Chicago after his presidency ended. In fact, NARA responded, Obama and his staff followed the rules, and the agency has maintained full control of the records Trump alluded to — which will eventually be stored at Obama’s presidential library.
What was the impact of Trump’s attacks?
The allegations Trump and his allies directed at the FBI and Justice Department have led to a spike in threats against law enforcement. On August 14, the FBI and the Department of Homeland Security issued a joint bulletin warning that they “have observed an increase in threats to federal law enforcement and to a lesser extent other law enforcement and government officials” since the raid. The judge who signed the search warrant for Mar-a-Lago has also reportedly been subject to threats. And on August 11, a gunman who had been a January 6 protester at the U.S. Capitol in 2021 tried to attack the FBI’s office in Cincinnati before being killed by police.
This post has been updated throughout.
