Trump in increasing legal peril one month on from Mar-a-Lago search

The photo released by the justice department of materials seized at his resort sends a message: the time for frivolity is over

The photo tells it all. There is the overabundance of the carpet in Mar-a-Lago, Donald Trump’s Florida resort, with its elaborate floral design presumably intended to suggest taste and luxury but merely signaling excess.

There is the tackiness of the cheap gilded frames stuck in a box on the right of the picture, an echo of the golden skin plastered all over Trump Tower in Manhattan. In the front frame, the ego of the owner rings out – it is a Time magazine cover from 2019 showing Trump’s Democratic presidential challengers, Joe Biden among them, peering enviously at him as he sits in the Oval Office.

And then there is the stuff that truly matters: the six folders of documents strewn across the floor marked “Secret/SCI” or “Top Secret/SCI”. Immediately, the papers point the viewer in a very different direction: this image is not about excess or tackiness or ego; it is about secrecy, danger, illegality.

The photo is to be found appended to the 36-page court filing released by the Department of Justice (DoJ) on Tuesday in its battle with Trump over classified records. Attachment F displays some of the confidential documents that the FBI discovered during their hotly contested search of Mar-a-Lago earlier this month.

The picture encapsulates not only Trump’s disdain for democratic norms and laws, but also the thickening legal peril that is now closing in on him. It is carefully composed, allowing the viewer just enough legible detail to draw deductions.

Here is a document stamped 9 May 2018 – the day after Trump announced he had pulled the US out of the Iran nuclear deal, as Bloomberg noted. Here’s another White House document marked “Secret, Limited Access”, dated 26 August 2018.

Was that classified because that was the day after Trump’s nemesis, Senator John McCain, died? Or was there some other reason to explain its “NOFORN” designation – not for the eyes of any foreign national?

An undated image released by the justice department of documents allegedly seized at Mar-a-Lago.
An undated image released by the justice department of documents allegedly seized at Mar-a-Lago. Photograph: Jose Romero/US DEPARTMENT OF JUSTICE/AFP/Getty Images

Trump tried to belittle the importance of the photograph. “Terrible the way the FBI threw documents haphazardly all over the floor (perhaps pretending it was me that did it!)” he fulminated on his Truth Social social media network.

But his trademark flippant-dismissive tone might not suffice on this occasion. Not when on Friday the most detailed inventory yet of the materials seized at Mar-a-Lago was unsealed, showing that it included 103 classified documents, including 13 marked “Top Secret”, as well as 90 folders that were classified or marked for return to the White House staff secretary or a military aide but which were mysteriously empty.

And not when another document in the DoJ photo contains the four devastating letters: HCS-P. That signifies that the document contains intelligence gathered from clandestine human sources – often spies or informants working undercover. Such “Humint” must be exceptionally closely guarded for the safety of America’s own people.

That was the message the DoJ wanted to transmit in releasing the photo: the time for frivolity is over.

“We now know that some of the information recovered was labeled in a way that could indicate it was derived from confidential human sources,” Andrew McCabe, the former FBI deputy director under both Barack Obama and Trump, told the Guardian.

“There’s a chance that information was collected from people who are working on behalf of the US overseas, including potentially CIA sources. You are literally talking about people’s lives.”


On 8 August, when dozens of FBI agents fanned through Mar-a-Lago bearing a search warrant issued by a federal judge, Trump lashed out. . “These are dark times for our nation,” he said, describing the legally authorised search as a “raid” and portraying it as a blatantly political attack akin to one of those “broken, Third-World Countries”.

He added: “Nothing like this has ever happened to a President of the United States before.”

Unusually for Trump, that last statement was correct. Never has a US president been subject to an involuntary search of their home by federal agents pursuing evidence in a criminal investigation.

Over the past four weeks a cascade of information has been released that tells the other side of the story. It transpires that the unprecedented nature of the FBI search was posited on the even more unprecedented behavior of the 45th president of the United States.

Trump has been archivally challenged, to coin a phrase, for many years. The roots of his refusal to abide by normal rules relating to documents stretch back at least to his refusal to disclose his own tax returns during the 2016 presidential campaign – a resistance to accepting public access to his personal papers that is the mirror image of his current claim that presidential records from his time in the White House belong to him.

Ruth Ben-Ghiat, a New York University history professor who is author of Strongmen: Mussolini to the Present and publisher of the Lucid newsletter about threats to democracy, says this blurring of public and private is central to his autocratic style of leadership.

“For Trump, records are not just documents. They are a measure of control – leverage over enemies and over his inner circle. This kind of leader doesn’t recognize the division between public and private. They have a proprietary mode of exercising power in which everything is theirs.”

By June 2018 such proprietary behavior was expressing itself in the White House. Politico reported that Trump was routinely tearing up official records rather than filing them for safekeeping in the National Archives as he was legally obliged to do.

White House aides were left desperately attempting to tape the documents back together – a farcical vignette of government in the Trump era. After he was forced out of the White House, many presidential papers were received by the archives in similarly torn-up condition.

Documents that weren’t ripped up were often hoarded. Stephanie Grisham, a senior White House aide, described the pattern to the Washington Post.

At the end of each day boxes would be carried upstairs to the White House residence. “They would get handed off to the residence and just disappear.”

Grisham gave a memorable insight into the chaotic wiring of Trump’s mind, rendered in physical form through the contents of the boxes. “There was no rhyme or reason – it was classified documents on top of newspapers on top of papers people printed out of things they wanted him to read. That was our filing system.”

Since the Mar-a-Lago search Trump has pleaded innocence, acting like the schoolboy who mumbles denials as he sucks brazenly on a stolen lollypop. “They could have had it anytime they wanted – and that includes LONG ago. ALL THEY HAD TO DO IS ASK,” Trump spluttered.

Over the past month, however, it has become abundantly clear that the archivists did ask – over and over and over again. They began asking for boxes of documents, in fact, even before Trump quit the White House, and carried on doing so throughout 2021.

On 18 January this year, Trump finally returned 15 boxes from Mar-a-Lago. Just like the jumbled contents Grisham described, they contained a mishmash of newspaper clippings, handwritten notes, memos, dinner menus, letters, a cocktail napkin, briefing papers – the archival equivalent of a yard sale.

They also contained records that confirmed the archivists’ worst fears. Tucked among the bric-a-brac were 184 classified documents, including 25 marked “Top Secret” and several with the chilling HCS human intelligence stamp indicating that lives were potentially at risk.

It did not end there.

Federal investigators who were brought in to investigate the matter became convinced that Trump was still hiding stuff. A grand jury subpoena was issued in May demanding the return of any classified document, and on 3 June three FBI agents and a DoJ official visited Mar-a-Lago to take possession of a further 38 classified documents, including 17 marked “Top Secret”, that Trump professed to have just discovered.

Authorities stand outside Mar-a-Lago on 9 August.
Authorities stand outside Mar-a-Lago on 9 August. Photograph: Cristóbal Herrera/EPA

During that visit a Trump lawyer signed a sworn certification that stated – on Trump’s personal authorization – that “a diligent search” had been conducted of all boxes brought from the White House. “Any and all” of the documents that were subject to the subpoena had been handed over and there were “no other records stored in any private office space or other location”.

The FBI remained suspicious. Maybe it was because, when the agents were taken to look around the storage room at Mar-a-Lago, they were pointedly forbidden from opening or looking inside any of the White House boxes.

Maybe it was the surveillance footage captured outside the storage room, which the FBI obtained under a separate subpoena, which reportedly showed employees going in and out of the space that was supposed to have been secured.

Or maybe it was because the DoJ has had a rich network of informants operating within Mar-a-Lago. Prosecutors have hinted strongly that they did, referring in the affidavit released last week to “a significant number of civilian witnesses” whose identities needed protecting.

That in turn might help explain why the justice department eventually came to the end of its tether and at the highest level – that of US attorney Merrick Garland – decided to press the button on the Mar-a-Lago search. After all, if the US government could so easily extract insider information from Trump’s sanctuary, what was preventing foreign governments doing the same?

“Mar-a-Lago is not Donald’s home, it’s a social club,” said Michael Cohen who, as Trump’s longtime lawyer until 2018 when he pleaded guilty to tax evasion and other offenses, knows what he is talking about. “There are thousands of people who are members and, along with their guests, come and go from the premises at will. The premises are unsecured and no place for top secret documents.”

McCabe, the former deputy director of the FBI, also knows what he is talking about. “Mar-a-Lago is a spy’s dream. It’s a public place, easy to get into. A determined trained intelligence officer could get themselves in and likely get an audience with the former president who had access to the utmost sensitive secrets that we have.”

The full horror may never publicly be known of what lies inside the more than 320 classified documents that have been recovered from Mar-a-Lago since January. Some of the items listed in the property receipt the FBI compiled after the 8 August search are intriguing: what do the “handwritten notes” contain?

Others are titillating and alarming in equal measure, such as listing 1A – “info re: President of France”. Rolling Stone reported this week that Trump has bragged to associates that he has knowledge, some of it gleaned through US intelligence, of Emmanuel Macron’s illicit love life – though it is not clear whether that has any relevance.

But above all, there were the staggering 55 top secret documents in total that were retrieved from Mar-a-Lago, some with HCS and NOFORN markings. As an unnamed source familiar with the search told the Washington Post, the stash contained “among the most sensitive secrets we hold”.

All of this leaves several burning questions. Could any of this hyper-sensitive material already have found its way into the wrong hands?

Again, we don’t know, other than that the director of national intelligence is reviewing the Mar-a-Lago documents to assess their possible impact on national security. One critically obvious but unstated issue is whether undercover agents will need to be relocated to guard their lives.

Then there is the overriding puzzle: what, if anything, was Trump intending to do with the documents and why has he gone to such tortuous lengths to hold on to them? Cohen, who watched Trump’s antics up close for many years, thinks he knows the answer.

“Donald intended to use the documents to extort the US government and prevent an indictment and conviction. In essence: a get out of jail free card.”

Which brings us to the third pressing question: will Trump be indicted? Certainly, the peril of a criminal prosecution now looms large.

The DoJ has made clear in recent filings that it feels it has evidence of obstruction of a federal investigation. He also faces possible indictment under the Espionage Act, which punishes unauthorized retention or disclosure of national security information, and a third law prohibiting mishandling of sensitive government records.

“There’s no question what he had, there’s no question where he had it,” McCabe said. “We now know there was some reason to believe the Trump team was potentially misrepresenting things and lying to the FBI, so this is very serious.”

McCabe says the investigation into such a prominent political figure who has indicated he might stand in the 2024 presidential election is fraught with peril. “You could appear as though you were conducting some sort of political retaliation, and we are absolutely not that kind of nation.”

Donald Trump in Nashville, Tennessee, in June.
Donald Trump in Nashville, Tennessee, in June. Photograph: Mark Humphrey/AP

But, then again, there are perils the other way too. McCabe looks back on his own interactions with Trump and is struck by the high price of inaction.

In March 2018 he was fired from the FBI two days before he was due to retire, having been the target of Trump’s constant attacks. McCabe had incurred the president’s wrath by approving an FBI investigation into possible obstruction of justice relating to Trump’s earlier dismissal of FBI director James Comey.

McCabe, who has since had his dismissal rescinded, told the Guardian that “it’s clear from the decisions that I made, or was part of, when I was in government, that I believe very strongly that the decision not to investigate can be as impactful and as political as the decision to investigate.”

If prosecutors are staved off because the subject is a politician who might be running for office, McCabe said, “or because they’ve said nasty things about us – then we actually have given in to politicization. And we’ve begun to create a class of citizens in this country who are above the law.”


Ed Pilkington

The GuardianTramp

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