The affidavit behind the warrant for the FBI raid on Mar-a-Lago is out, sort of, and it appears to fulfill expectations. The statute citations are absurd, the prior cooperation of former President Trump with federal agencies is clear, a huge question remains unanswered, and the issue of declassification is dealt with in a series of rimshots that never land in a pocket (which alone should have been a red flag to magistrate Judge Bruce Reinhart).
And that’s just the part we can see. The real question – not really a question, I think – is what’s invisible behind the massive redactions.
I say it’s not really a question, because one thing it has to be is excuses for the statute citations, which include language implying Trump is suspected of conspiring to hand sensitive national defense material to unauthorized persons, and has unknown confederates in such an enterprise.
That this is mind-bogglingly ridiculous ought to be evident. But for those with an impenetrable hatred of Trump, a pertinent point is that, if Trump has been under investigation for such suspicions, finding material marked classified at Mar-a-Lago is just about the last form of evidence that would ring bells or constitute a smoking gun.
Big things wrong with the “Espionage Act!” theory of skullduggery (cf. the 18 U.S.C. § 793 citations in the affidavit) are that (a) raiding Mar-a-Lago, on the pretext of inventoried presidential records, is not an effective form of investigation, absent some supported theory of the crime that hard-copy handoffs are being handled through Mar-a-Lago; and (b) the raid has been run in so unconstitutional a manner that there’s no way its product can be used in court. (Don’t forget the exclusion of Trump’s lawyers from the 8 August search, and the demand that Mar-a-Lago turn the security cameras off.)
Indeed, (b) is a hinge-point across the board. It’s one of the key aspects of this drama that inform us none of it is really about investigating under a criminal statute with the possibility of bringing charges. Ultimately, boiled down to its essence, it’s just another chapter in the saga of using law enforcement to spy on Trump.
Another key aspect is the huge, unanswered question referred to in the opening paragraph above. The question, which I‘ve posed many times now, is why – if an FBI agent is certain that documents containing “national defense information” were being improperly and dangerously stored at Mar-a-Lago – the material wasn’t seized during the FBI visit in June 2022.
It could have been. And that’s if seizing it had actually been necessary. Trump might well have simply agreed to have the material removed at that time.
Regarding the huge question about not seizing the files in June, that’s another thing we could expect to be excused in the redacted portions. It’s hard to imagine a judge not asking why the files weren’t simply seized in June, if it was so dangerous for them to remain at Mar-a-Lago with Trump doing who knows what with them.
Two additional points for now.
One, the redactions give us just enough to impugn Trump – for those so inclined – with intimations of potential espionage. But they don’t give us any basis for evaluating what is essentially innuendo to that effect. That’s what the redaction process was for: to leave drive-by impressions we can’t judge against a full analysis of the facts.
If the FBI had anything to indicate Trump was engaged in espionage, we’d already know it. The FBI didn’t need those Mar-a-Lago documents to build such a case. “Espionage” is a red herring: if the building blocks for an espionage case actually existed, there’d be a case.
Fudging “classification” and “defense information”
The other point is more esoteric, and more interesting. I won’t go into it in depth, but it’s salient because of the ambiguity about “classified information” that it allows DOJ to make use of.
The clue to it is found in Footnote 2 on page 22 of the affidavit. We can’t see what that footnote relates to in the base text, because the whole passage is redacted. But the footnote is enough to preview the Swiss cheese nature of criminal adjudications on “classified information,” as the issue would have to be treated in any case brought against a former president.
The opening sentences are the key. First the footnote says: “18 U.S.C. § 793(e) [a paragraph of the Espionage Act, cited in the affidavit] does not use the term ‘classified information,’ but rather criminalizes the unlawful retention of ‘information relating to the national defense.’”
So right away, it’s clear why the FBI special agent lodging the affidavit was at pains to state on pp. 2-3 (paragraphs 3 and 4) that in his judgment, the documents with classification markings contained “national defense information” (NDI).
The short answer to that point is, “Thank you for your input, Special Agent. Let us know when you get elected president.”
There’s a good reason for that short answer. The footnote then lets fly: “The statute does not define ‘information related to the national defense’ but courts have construed it broadly.”
There’s the rub. First, the Espionage Act doesn’t define “information related to the national defense.” Therefore, a special agent with expertise in NDI can’t have attained his expertise by using criteria for NDI in the Espionage Act. There aren’t any.
Meanwhile, defining “information related to the national defense,” as it pertains to classification of documents and other record material, is a policy area under the authority of the POTUS. (The classification system in use today, in its basic form – Top Secret, Secret, Confidential – developed in a series of executive orders during World War II. Truman comprehensively codified handling requirements in E.O. 10290 of September 1951, which has been superseded by more recent orders, and the current controlling E.O. is Obama’s 13526 of 2009, which we have visited before.)
Moreover, determining the level of damage to national security is, and has always been, inherently an authority of the president, due to his constitutionally-defined duties. If Congress wants to weigh in on a related topic, it can do so as it does with any other foreign or security policy topic – with varying degrees of effectiveness. But the incumbent POTUS’s authority to make such judgments at all times overrides the opinions of his subordinates.
POTUS’s responsibility intersects with, but does not exactly overlap, the need of the Espionage Act statute to identify “information relating to the national defense” so as to perceive such information, gain evidence for criminal activity with it, and punish people for such activity. The two sources of authority – POTUS and the Espionage Act – have different purposes, and deal with national security information sliced at different angles.
In fact, for information or materials to be considered “related to the national defense,” for purposes of the Espionage Act, they need not be classified at all under the formal system. A good, very brief primer on what that has meant for Espionage Act jurisprudence is here.
This discussion should help illuminate how the affidavit skirts the issue of what POTUS has the authority to do, and fudges the relationship of that issue to investigating Trump under the Espionage Act. It’s a little bait and switch: talk about classification markings, but then slip in the reference to NDI, and elide the two as if they naturally go together.
It’s a major problem created by the Espionage Act that they don’t go together. The meaning of the POTUS’s authority has never been in doubt: if he declassifies something, it’s not for an FBI special agent to come along afterward and say, “But that’s national defense information so the POTUS’s handling of it is a danger to America.”
This will be endlessly chattered about as long as it seems to impugn Trump. The inclusion of Footnote 2, with a paper-thin treatment of the issue, shows the affidavit wants to emphasize that the judiciary has been applied to for rulings on what “NDI” is when the Espionage Act has been invoked. But that’s not the controlling source of authority for whether documents are declassified when POTUS says they are. Not does the Act itself say what NDI is.
The courts have generally been clear that the existence of the Espionage Act doesn’t give the judiciary a wedge to rule definitively on what NDI is; the courts’ role is to determine whether what a president or executive agency wants to do is allowable under the Act, in light of what’s being advanced as NDI in the situation at hand.
It’s a messy area of law, and this is one of the reasons legal experts routinely refer to the Espionage Act as problematic.
There are, and should be, remedies for presidential NDI handling that Congress or the people find improper. I’ve never been unable to see the point that Trump’s informal declassifications would cause administrative problems.
But the remedies don’t include FBI special agents slipping an NDI-expert’s reflections into a discussion of classification markings, without really clarifying what the distinction means, and trusting that a misleading impression for the court will ensue.
Same book, next chapter
Bottom line: the affidavit, like the warrant it bolstered, can be shredded six ways to Sunday – and again, that’s just the portion we can see.
A general search authorization was clearly the object of the affidavit and warrant application. No move against Trump based on “classified material” is justified by anything we can see in the affidavit. Nor could the fruit of the 8 August raid be used in court.
As Lee Smith, author of The Plot Against the President, observed in a tweet on Saturday, the profile of the operation that’s emerging is classic Russiagate.
The timing continues to point at Trump’s RICO lawsuit, suggesting a fishing expedition as a preemptive move.
The basic dynamic – Trump may have damaging material to bring to bear, so Trump will be targeted and kneecapped with a fresh round of accusations – is also the same as with the impeachments and rig-fortifying of 2020. The minute it looked like Trump might have some of the reams of damaging information on Hunter Biden, in mid-2019, the process kicked off of tying Impeachment I to accusations about collusion against the Bidens, and of flogging a media theme throughout 2020 that Trump may be cooperating with Russia in anti-Biden disinformation.
The entire time Impeachment I and the 2020 “collusion” theme were in progress, the FBI knew of, and then had in hand, the Hunter Biden laptop. We know now that the FBI not only suppressed its information throughout the campaign, but warned Facebook in effect that the New York Post’s reporting on the laptop could likely be Russian disinformation – which caused Facebook to rigorously censor it.
Russiagate rides again
The latter days of this past week brought a now-familiar move in the game of attack-investigating Trump. The Pittsburgh Post-Gazette and the Organized Crime and Corruption Reporting Project (OCCRP), the journalist consortium with major funding from the Open Society Foundations and USAID, put out an article on a woman who is alleged to have masqueraded as a Rothschild and gained access to Mar-a-Lago in May 2021 in that guise.
The person in question appears to be a Ukrainian immigrant, Inna Yashchyshyn, who reportedly had some five forms of ID identifying her as “Anna de Rothschild,” a woman of whom there is no extant record. She seems to be the daughter of a Ukrainian immigrant truck driver, Oleksandr Yaschyshyn, who lives quietly in Illinois. Inna Yaschyshyn’s career in the U.S. seemed to begin around 2010, when she was apparently about 21 or 22 years old, with participation in a Miami-based charity, United Hearts of Mercy.
I’ll let you read up on the story at the OCCRP link, as well as here and here. We can all guess where the bait is supposed to lead us. This story may well be in the redacted passages of the affidavit, which is a good enough reason from DOJ’s point of view to redact so much. As told to the scribes in the media, it’s silly, unparsable stuff, and would be very unlikely to hold up in court. The way to use it is to obtain a warrant with references to it, and put it out in the media the day the redacted affidavit is to be released, to get a media chorus going and Trump’s opponents repeating it on social media.
But I expect this observation I made on Twitter on Saturday to hold up pretty well.
It’s worth noting that initial research on a Brit named Elchanan Adamker, the individual who introduced Inna Yaschyshyn to Mar-a-Lago as “Anna de Rothschild,” has returned dubious results. The articles describe him as the founder of a New York financial services firm, but they don’t clarify that it’s a small-lending “merchant cash advance” (MCA) company, basically a payday lender for small businesses. Its estimated revenue is less than $1 million a year. (The company, In Advance Capital, appears to have been incorporated in Delaware in April 2017. There’s no New York company registered under that name; the Delaware company is the only one that’s a match.)
How Adamker – also young, from his photo, with a LinkedIn work history that started in 2013 – is now running tame at Mar-a-Lago “introducing” people is anyone’s guess. He doesn’t fit the profile of a deep-pocketed club member. He’s said to be a Trump supporter, but if he’s supporting Trump with political donations, the money probably isn’t coming from his business. It’s also a mystery how he would happen to come in contact with Ms. Yaschyshyn in the ordinary course of things.
But so it goes, as Joe Friday used to say, in the repetitive scenarios of Russiagate. Daniel Greenfield had a prescient op-ed at Israel National News on 27 August, in which he predicted this: “There’s never going to be a trial [of Trump] because those require evidence. … there can’t be an actual trial. There will only be the perpetual investigation. Interlocking teams of Democrats at the federal and state levels will generate and juggle investigations.”
And his closing argument begins as follows: “[T]he investigations are now permanent. They begin before a candidate even runs, follow him through his time in office, and hound him after he leaves. Trump was the first target of the permanent investigation. He won’t be the last. The permanent investigation is government opposition research. It interlocks directly with political campaigns, whether those of Hillary or Biden, and feeds material back and forth between government investigators and campaign hacks. It takes out their allies and aides to weaken them.”
Feature image: The Eisenhower Executive Office Building. Wikipedia