Mar-a-Lago Affidavit Shows Trump Kept Some of America's Top Secrets, Is in Huge Trouble

Fred Kaplan / Slate
Mar-a-Lago Affidavit Shows Trump Kept Some of America's Top Secrets, Is in Huge Trouble Donald Trump. (photo: Erin Schaff/NYT/Redux)

Even with about half of its 38 pages blacked out for security reasons, the Justice Department’s affidavit to get a warrant to search Donald Trump’s residency at Mal-a-Largo is more damning than many of the former president’s critics expected.

The affidavit, written on Aug. 5 and released by a judge on Friday, reported that 15 boxes of documents, which had already been retrieved from the Florida estate early in 2022, contained 184 documents, including 25 marked Top Secret—and that some of those were marked HCS, SI, FISA, ORCON, NOFORN.

In these acronyms lies a scandalous, perhaps literally incriminating story.

HCS means HUMINT Control System, and HUMINT means Human Intelligence—in other words, intelligence gathered from spies. Documents marked HUMINT may contain the identities of spies, as well as information obtained from them.

SI means Special intelligence and concerns intercepts of foreign communications, including information about the technology and operations used by foreign governments to transmit or collect information.

FISA means information, also concerning communications intercepts, processed through the Foreign Intelligence Surveillance Act court.

ORCON stands for Originator-Controlled, meaning that dissemination—even within the government, even to officials who hold Top Secret clearances—must first be approved by the originator (for instance, the CIA, if the document originated with the CIA).

NOFORN means that the document cannot be released to foreign governments or citizens.

In other words, at least some of the documents in Mar-a-Lago were among the most sensitive in any president’s files. The FBI special agent who filed the affidavit wrote that he had “probable cause” to believe there were more boxes, containing more highly classified documents, still hidden away at Mar-a-Lago, many of them in unsecured locations. The judge who approved the request agreed.

With the court-ordered search of the estate on Aug. 8, the Justice Department has now reportedly retrieved more than 300 classified documents.

The precise contents of these documents are not publicly known—they are probably hidden beneath the black lines of redaction—and may never be. But earlier this week, when release of the affidavit was still pending, an official familiar with the search told the Washington Post that the documents contained “among the most sensitive secrets we hold.” Judging from the security markings alone, this may very well be true.

Of the 184 classified documents in the first 15 boxes, which Trump’s lawyers turned over months ago, 67 were marked Confidential and 92 marked Secret. In my experience, back when I was a congressional aide with a Top Secret clearance, most documents marked Confidential and Secret are not very sensitive. As Barack Obama once quipped, “There’s classified, and there’s classified.” With Top Secret documents, one begins to enter the realm of classified. Once you get into HUMINT, SI, FISA, and OCORN, you get into really, really classified.

It is still a mystery why Trump packed away these documents and had them shipped to Mar-a-Lago—a bigger mystery still why he resisted giving them back for so long.

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

Finally, mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.

There is much that we still don’t know. But one thing is, or at least should be, clear: Trump is in a heap of legal trouble.

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