Aug 29, 2022

The Mar-a-Lago affidavit.

The Mar-a-Lago affidavit.
Photo by History in HD / Unsplash

What did we learn from the latest court document?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 14 minutes.

We go deep on the Mar-a-Lago affidavit (and what it means). Plus, a question about PPP forgiveness vs. student loan forgiveness.

President Donald Trump and VP Mike Pence
Photo by History in HD / Unsplash

Morning Brew shoutout.

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In our subscribers-only Friday edition, I interviewed economist and opinion writer Noah Smith about inflation, Biden's student debt cancellation, and what he thinks the government should be doing to get the economy on the right track going forward. You can read the interview here or listen to it here.

Quick hits.

  1. Two Florida residents were convicted in a plot to steal the diary of Joe Biden's daughter and sell it to the conservative group Project Veritas for $40,000. (The plea)
  2. Abbott will resume producing Similac, its most popular baby formula, at a Michigan plant after a six month pause. (The formula)
  3. The U.S. Navy sailed two warships through the Taiwan Strait on Sunday despite Chinese warnings not to. (The movement)
  4. Fed Chair Jerome Powell said the central bank will continue to raise interest rates until inflation is under control. (The comments)
  5. California regulators approved a plan to phase out sales of new gas-only vehicles by 2035. The rules do not apply to the used car market. (The ban)
  6. BREAKING: Due to a fuel leak, NASA has postponed the launch of its Artemis mission, which was supposed to send an unmanned rocket to the moon this morning. (The decision)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.

Today's topic.

The Mar-a-Lago affidavit. On Friday, the government released a 38-page affidavit related to the search of Donald Trump’s Mar-a-Lago residence. Reminder: An affidavit is not an indictment and does not indicate any guilt, but is the primary document used to establish probable cause to justify a search warrant.

In this case, the affidavit contained the Federal Bureau of Investigation’s justification for its search of the former president’s home. The Justice Department argued in court to keep the affidavit sealed, but several news outlets and Trump’s legal team called for a release of the affidavit.

In the unusual release of such a document, which follows the extraordinarily unusual search of a former president’s home, a federal judge approved heavy redactions, including identities of witnesses and agents who signed the affidavit and conducted the search, as well as the “strategy, direction, scope, sources and methods” of the investigation. 24 of the 38 pages were fully or partially redacted, leaving many questions unanswered about the reasons for the search.

However, the affidavit — along with bits of news we’ve learned since the last time we covered the search — has shed some new light on the investigation.

The search of Trump’s home came after a dispute with the National Archives about boxes of documents he had taken to the residence after leaving the White House. Earlier this year, when the National Archives finally took the boxes and reviewed them, 14 of the 15 boxes contained documents that had been classified, including “184 unique documents bearing classification markings, 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET,” the government’s most sensitive ranking. Some of those documents could contain sensitive information about intelligence agents or foreign nationals who spy for the U.S., the affidavit indicates.

That discovery led the National Archives to make a criminal referral to the Justice Department. In the affidavit, it is noted that those boxes contained benign material like newspaper and magazine clippings mixed in with “a lot of classified records” and other miscellaneous records. The haphazard handling and mixing of the materials prompted the FBI to believe there were more classified documents in Trump’s possession, and was cited as further justification for their search.

Trump has filed a lawsuit alleging the FBI took items that were not authorized in the search warrant, including photos and his passports. The Justice Department has already returned his passports. On Saturday, a Florida judge said she had “preliminary intent” to approve Trump’s request for a “special master”, an independent third party to review the material taken from his home and remove items that are privileged. The U.S. government has to reply by Tuesday to litigation calling for the special master, and the judge, U.S. district judge Aileen Cannon, said she’ll hear arguments on Thursday. The government is also mandated to submit a receipt of the materials they collected by Tuesday.

The affidavit also revealed that the FBI believes the search would likely find evidence of obstruction in addition to other classified material, though the section on their cause for said belief was mostly redacted.

Trump’s team also offers an explanation in the affidavit, which states that the president has the “absolute authority to declassify documents.” Trump’s lawyers point to a January 19, 2021, memo in which he declassified documents related to the Russia investigation. However, it’s unclear if materials related to that investigation are what the FBI seized.

While it’s true Trump can declassify documents as president, there is a specific process for doing so, and so far there is no documentary evidence that Trump declassified the documents in question through that process. Some of the charges Trump could be facing also do not necessitate that the documents in question still have their classification status, making it difficult to parse how the declassification would change his defense.

Today, we’re going to take a look at some arguments from the right and left about what we learned from the affidavit, then my take.

What the left is saying.

  • The left argues that the evidence appears damning, and Trump could be facing an indictment.
  • Many say it’s clear the Justice Department was justified in its search of Mar-a-Lago.
  • Others argue Trump's supporters may regret calling for the affidavit’s release.

The Washington Post editorial board said it is more tantalizing than it is revealing.

"But what is visible, despite pages of blacked-out text, makes the Justice Department appear thoughtful and deliberate — and the former president quite the opposite," the board said. "The National Archives initially asked for the documents allegedly in Mr. Trump’s possession, which needed to be archived per the Presidential Records Act, in May of last year — and continued asking for more than seven months, at which point the Trump team provided 15 boxes. Next, when the archives discovered classified markings on some documents, Mr. Trump resisted the FBI’s efforts to review the material, The Post has reported, and refused to hand over any additional classified information despite a grand jury subpoena.

"Trump defenders have slammed the FBI’s search as aggressive and unwarranted. What has come out since, including on Friday, suggests the search was hardly capricious," they wrote. "Instead, all available evidence suggests it was a thoughtful choice made after other options had been exhausted. Along the way, the affidavit showed that the Justice Department considered the dubious defense from Mr. Trump’s allies that all the documents were declassified and that keeping them at Mar-a-Lago was therefore legal. Read together, these facts should help assuage concerns that Attorney General Merrick Garland embarked on an ill-considered prosecutorial frolic when he sought to search Mar-a-Lago — though this reality is unlikely to stop the flow of reckless rhetoric from Trump acolytes. Meanwhile, those taking a more levelheaded approach should continue to do what they’ve done so far: wait. There was much we didn’t know before this affidavit was unsealed. There’s much we still don’t know now."

In The New York Times, Andrew Weissmann said the affidavit confirms the Justice Department was righteous in its decision to search Mar-a-Lago.

"Mr. Trump knows the answers to the most important unanswered questions: What material did he take from the White House, why did he take it, what had he done with it, and what was he planning to do with it? There is nothing that prevented him for over a year from publicly answering those questions; he surely has not remained silent because the answers are exculpatory. Above all, the redacted affidavit (and an accompanying brief explaining the redactions), which was released on Friday, reveals more evidence of a righteous criminal case related to protecting information vital to our nation’s security," Weissmann wrote. "I can assure you, based on my experience as the general counsel of the F.B.I., that although there may be too much information deemed sensitive at the lowest level of classification, that was never the case with top-secret material.

"The markings for top-secret and sensitive compartmented information indicate the highest level of security we have. Those levels protect what is rightly described as the crown jewel of the national security community. Especially with information classified at that level, the government doesn’t get to pick and choose to defend the nation’s top secrets based on politics — it doesn’t matter if the person in question is a Democrat or Republican, a former president, a secretary of state or Edward Snowden. These documents belong to the government, and their having been taken away posed a clear risk to our national security," Weissmann said. "The release of the redacted affidavit provides further clarity on why Attorney General Merrick Garland took the extraordinary step of approving the search of certain locations at Mar-a-Lago. The short version is that nothing else had worked and top-secret information was at stake."

In CNN, Norman Eisen and Shan Wu said Trump supporters should be careful what they wish for.

"The affidavit specifies three possible crimes: prohibiting the concealment or removal of government records, which is punishable by up to three years in prison; prohibiting the deliberate retention or transmission of national defense information in line with the Espionage Act, and is punishable by up to 10 years in prison; and obstructing a federal investigation, which is punishable by up to 20 years in prison," they said. "The affidavit, by specifically citing Section (e) of the [Espionage Act] statute, reveals the government's theory of the case here, at least so far. That section pertains to the unauthorized possession of national defense information, knowledge that it could be harmful to the United States or benefit a foreign nation and willfully passing it on to people who weren't entitled to have it or refusing to give it back to those who were.

"All that certainly is probable cause (and beyond) of a crime under the Section 793(e) theory that we learned about for the first time in the affidavit," they said. "But of course, that was only the beginning of the alleged misconduct because it's clear from the affidavit that wrangling continued over additional documents that were retained. It was much uglier than Trump's legal team's characterization of a 'cooperative' relationship. Their pushback appears to have been based on the nonsensical argument that the president has a magic wand of automatic declassification authority. That of course is not the law -- but it is also beside the point. That is another important revelation in the affidavit. The second footnote in the document expressly states that the mishandling of national defense information is what is here under investigation. Classification often applies when national defense information is involved, but the government does not need to prove that a single line was classified to prosecute or convict Trump."

What the right is saying.

  • Many on the right are asking if the only crime really is the mishandling of classified documents.
  • Others suggest the affidavit shows there is little there besides a documents dispute.
  • Some believe the affidavit contains signs Trump won't be indicted.

The Wall Street Journal editorial board said we can't help but wonder — is that it?

"This is why agents descended on a former President’s residence like they would a mob boss? It’s possible the redactions in the 38-page document release contain some undisclosed bombshell. But given the contours of what the affidavit and attachments reveal, this really does seem to boil down to a fight over the handling of classified documents," the board said. "The affidavit’s long introduction and other unredacted paragraphs all point to concern by the FBI and the National Archives with the documents Mr. Trump retained at Mar-a-Lago and his lack of cooperation in not returning all that the feds wanted. A separate filing making the case for the redactions, also released Friday, focused on the need for witness and agent protection from being publicly identified. That filing also contains no suggestion of any greater charges or a larger investigation than the dispute over his handling of the documents.

"As always with Mr. Trump, he seems to have been his own worst enemy in this dispute. He and his staff appear to have been sloppy, even cavalier, in storing the documents. Classified records found in boxes were mixed in with “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes,” and presidential correspondence, the affidavit says. This fanned suspicion that important documents were still floating around the house, where bad actors hanging around the Mar-a-Lago resort might pilfer them," the board said. "But that didn’t mean the FBI and Justice Department had to resort to a warrant and federal-agent search that they knew would be redolent of criminal behavior. They had to suggest probable cause of criminal acts to get their extravagant warrant, which they knew would create a political firestorm."

In The Hill, Kevin Brock said it's clear the government has no case against Trump.

"First, the affidavit confirmed that the FBI’s investigation was triggered in January 2022 at the request of the National Archives, which wanted certain documents, especially classified documents, that it considered to be presidential records to be turned over to it by Trump. Second, from what I have seen, I don’t believe the affidavit articulates how a federal law was or is being broken. For those who hold out hope that the affidavit’s redacted sections fill that gap, there is almost no chance that they do," he wrote. "As to the first point, this matter is, as suspected, nothing more than a document dispute that was chugging along, appropriately, as a negotiation behind the scenes and apparently making some progress. I don’t see anything in the affidavit asserting a refusal by Trump to cooperate.

"Any clinging hope — in certain quarters — that the affidavit possessed 'pulverizing' cause to believe Trump was engaged in a truly serious federal violation can — I think — be considered dashed. The pipe dream that Trump was engaged in espionage, actively providing secrets to an enemy I think is as fanciful as the Steele dossier’s Moscow hotel bed reverie. And, no, I don’t believe a smoking gun of espionage or something equally shocking will be in the redacted sections. If the FBI had that, it would have fronted that in the unredacted portions," he said. "The affidavit does a reasonable job of establishing cause to believe Trump possessed a range of classified materials — or at least once-classified materials — and that those materials were located in his residence. But that’s not all that’s needed — in this case in particular. A criminal violation of those statutes only exists if it can be established that the person being investigated was not authorized to possess, store, transfer or copy those documents. This is an easy element to establish against anyone in America. Except one person."

In The New York Post, Andrew McCarthy said the affidavit was so thoroughly redacted the exercise was pointless.

"DOJ has given us nothing about the monumental decision to execute a search warrant at the home of a former American president — unprecedented in US history. In the absence of information, we are left with speculation," he said. "It makes little sense that Justice Department officials would be fighting so hard against revealing the sensitive information in the affidavit if they intended to prosecute. If the department indicted Trump, the affidavit would be disclosed to the defense and become public in short order. And if DOJ officials intended to prosecute, they could have charged Trump already. After all, if they had probable cause of crimes justifying a search, then they had probable cause of crimes justifying charges — and the case only got stronger after the search of Mar-a-Lago, which yielded more classified documents.

"To the contrary, the ardor to keep the affidavit largely redacted, to protect witness identities and to shield the substance of the sensitive information that was seized at Mar-a-Lago, makes perfect sense if the Justice Department does not plan to indict the former president," he wrote. "In the nonindictment scenario, the government accomplishes the goals of (a) getting its top-secret information back; (b) assessing the damage that may have been caused by the mishandling of that intelligence (you really need to have the classified documents to do that); (c) collecting the rest of the presidential records Trump has been hoarding at Mar-a-Lago that, by law, are property of the government and should be maintained by the National Archives; and (d) continuing to conceal the now-redacted portions of the warrant affidavit that, if revealed, could expose witnesses, reveal methods of collecting intelligence and signal to hostile governments the kinds of sensitive US defense secrets that may have been exposed to untrustworthy people who might be willing to sell them."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

  • Nothing that has happened since the search looks particularly good for Trump.
  • It seems very likely that he is, at minimum, guilty of mishandling classified documents.
  • That alone is probably not enough to indict a former president, especially not without serious political blowback.

In our first two newsletters about the search of Mar-a-Lago, I made a few broad points: 1) If it's just a matter of mishandling classified documents, an indictment would blow up in the government's face. 2) There appears to be good cause for the search, based on the evidence available. 3) We still know very little and need to wait for more details.

The affidavit adds some of those important details. My most confident takeaways are that Trump mishandled classified documents and that his team was not nearly as cooperative as he made them out to be. As I wrote a few weeks ago, Trump has not denied inappropriately holding classified documents. Instead, his evolving responses went from "unjustified search" to "they planted evidence" to "everything was declassified" to "privileged material" to "other people mishandled classified evidence, too." That's not the consistent and convincing response of someone confident of their innocence. Add to that the fact that so many highly sensitive materials were already recovered in January and were so haphazardly put together when agents found them, and it's hard to believe Trump was prioritizing security.

Still, the question is: What happens now? One plausible theory is that there is no pending indictment of the former president, and this was really just a matter of getting documents back. Based on what we know, if that's where this ends, I'm not sure the Justice Department and the FBI have much more explaining to do. The fact that Trump was holding hundreds of sensitive documents and made it so difficult for the government to recover the rest of them is a reasonable cause for the search. As we explained before, Trump does have broad latitude to declassify documents, but that doesn't mean he can skip the official process for doing so and simply declare anything he wants as declassified. That process is never just a command during any presidency.

Even if that were true, some of the alleged crimes here would still be crimes, even if the documents had been declassified.

All this is to say, my early inclinations are that the search and recovery of documents was justified. However, if the Justice Department is actually planning to indict Trump, they're going to need a lot more. They'll have to clearly distinguish how his mishandling of classified documents was more serious than, say, Hillary Clinton's. Clinton paid the price for her private email server — she faced a decade of media scrutiny, during which she was investigated and cleared by the FBI and the Justice Department inspector general, faced numerous congressional committee investigations, and was investigated by the State Department. But she was never indicted.

In this case, in order to warrant an indictment of Trump, the redacted material would probably need to make it clear that he was intending to misuse the documents and understood he was breaking the law. Or, perhaps most likely (given the signs of a potential obstruction charge), they'll need to show clearly that Trump was attempting to conceal or destroy government records. They may very well do one or all of those things, but they haven't yet.

From the 30,000 foot view, here's the reality since the search happened: Nothing that has come out looks good for Trump. All signs, at a minimum, point to his guilt in mishandling highly classified documents. However, as much we want the law to apply equally to all citizens, it doesn't and never has. Specifically in the case of handling classified documents, we have seen a huge disparity in how people are charged. In this case, the actual law is even more complex when the person in question has the highest possible authority to manage those documents, as Trump did. Charging a former president over what we know about right now would be unprecedented — and the political blowback monumental.

So, if there really is an indictment coming for Trump (which I'm not confident there is), the government is going to need a lot more than what we have now to convince the public that criminal charges are justified. If there is no indictment coming, and the true purpose was to get these documents back and assess the damage of Trump's mishandling of them, then it's possible this saga is closer to an end than we all thought.

Your questions, answered.

Q: Since your take here is disagreeing with the student loan forgiveness, I'm curious how you feel about those comparing it to all of the PPP loans that were forgiven? Student loan forgiveness is less money, more direct, and helps those with lower incomes way more than those did. For the "I don't want my taxes funding it since I don't benefit" crowd, not sure I see how giving millions to Kushner, Kardashians, Jay-Z, etc. helps most people. The inflation argument did not appear to be happening then...

— Jeff, Fairfax, Virginia

Tangle: I think it's a silly comparison, and I'm surprised so many people (including the White House) are making it. For starters: The PPP program did a tremendous amount of good for working class and lower-income people. Yes, there was a ton of fraud and waste, and many examples of rich people getting money they didn't need. But it also saved millions of jobs. Assessing precisely how many and at what cost has proven very difficult, but the most recent lower end estimates have the PPP program saving about 2 million jobs. Even economists who are broadly critical about PPP estimate it saved 1.4 million to 3.2 million jobs.

My wife, for instance, kept her job at a production company that lost all of its business during Covid restrictions thanks to PPP loans. So the PPP loans were designed to be one-time life support for our economy and were successful as such, but may have been overly large and, yes, resulted in massive amounts of fraud.

The primary criticisms of student debt forgiveness, however, are much different. Those are a) it may end up increasing the cost of tuition and the amount of money students borrow; b) it could increase inflationary pressures; c) it does nothing to fix the broken system for funding higher education. None of these criticisms can be directed to PPP. The PPP mostly did what it was supposed to do, and you didn’t see the inflation argument because it didn’t come at a time when we were battling historically high inflation.

That being said, PPP loans did face a lot of criticism for being too broad and wasting funds — which is a kind of criticism that student debt cancellation is also facing. So I also don't think it's accurate (at all) to pretend PPP was simply rubber stamped and beloved while student debt cancellation is getting criticism. Both faced pushback on how the relief was given, though the criticisms over their justifications differ greatly.

Finally, the cost comparison may be closer than we initially thought. PPP came in at about $800 billion, a huge amount which will mostly not be recouped since most of those loans have been forgiven. Without getting into future changes to borrower caps or Pell Grants, student debt cancellation could cost up to $519 billion, according to Penn Wharton's latest budget model.

But that’s not the whole picture. Unlike the pandemic, the conditions causing student debt won’t go away, and debt forgiveness could exceed $1 trillion over ten years, depending on behavioral changes of borrowers and colleges — likely resulting in even higher costs/worse conditions for the next generation of students.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.

Under the radar.

Increasingly, anxious and depressed teens are being prescribed multiple powerful psychiatric drugs, many of them untested for use in tandem. Many of the drugs prescribed have never been approved in people under the age of 18, and prescriptions of antidepressants for teenagers rose 38% from 2015 to 2019, compared to a 12% rise in adults. "Psychiatrists and other clinicians emphasize that psychiatric drugs, properly prescribed, can be vital in stabilizing adolescents and saving the lives of suicidal teens," The New York Times reports. "But, these experts caution, such medications are too readily doled out, often as an easy alternative to therapy that families cannot afford or find, or aren’t interested in." The Times has the story on this worrisome phenomenon.


  • -18. Trump's net favorability rating, according to NBC News.
  • -8. Biden's net favorability rating, according to NBC News.
  • -10. Trump's net favorability rating in the swing state of Wisconsin, according to Fox News.
  • -6. Biden's net favorability rating in the swing state of Wisconsin, according to Fox News.
  • 16%. The percentage of Americans who said they had smoked marijuana in the past week, according to Gallup.
  • 11%. The percentage of Americans who said they had smoked a cigarette in the past week, the first time that number has been lower than marijuana.

Have a nice day.

Last week, the White House updated its policy on federally funded research, making the results of such studies free to the public right away. Up until now, federally funded research has been  available exclusively in academic journals for a year after publication, which effectively paywalls current work. But since taxpayers fund that research, this has been an ongoing point of contention. Now, the White House is dropping the restriction, saying it hopes the move will give the public faster access to scientific information more quickly. Engadget has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.