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. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.
Documents about such highly classified operations require special clearances on a need-to-know basis, not just top-secret clearance. Some special-access programs can have as few as a couple dozen government personnel authorized to know of an operation’s existence. Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.
But such documents were stored at Mar-a-Lago, with uncertain security, more than 18 months after Trump left the White House.
After months of trying, according to government court filings, the FBI has recovered more than 300 classified documents from Mar-a-Lago this year: 184 in a set of 15 boxes sent to the National Archives and Records Administration in January, 38 more handed over by a Trump lawyer to investigators in June, and more than 100 additional documents unearthed in a court-approved search on Aug. 8.
It was in this last batch of government secrets, the people familiar with the matter said, that the information about a foreign government’s nuclear-defense readiness was found. These people did not identify the foreign government in question, say where at Mar-a-Lago the document was found or offer additional details about one of the Justice Department’s most sensitive national security investigations.
Christopher Kise, a lawyer for Trump, decried leaks about the case, which he said “continue with no respect for the process nor any regard for the real truth. This does not serve well the interests of justice.”
“Moreover, the damage to public confidence in the integrity of the system simply cannot be underestimated. The responsible course of action here would be for someone — anyone — in the Government to exercise leadership and control. The Court has provided a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”
Spokespeople for the Justice Department and FBI declined to comment.
The Office of the Director of National Intelligence is conducting a risk assessment, to determine how much potential harm was posed by the removal from government custody of hundreds of classified documents.
The Washington Post previously reported that FBI agents who searched Trump’s home were looking, in part, for any classified documents relating to nuclear weapons. After that story published, Trump compared it on social media to a host of previous government investigations into his conduct. “Nuclear weapons issue is a Hoax, just like Russia, Russia, Russia was a Hoax, two Impeachments were a Hoax, the Mueller investigation was a Hoax, and much more. Same sleazy people involved,” he wrote, going on to suggest that FBI agents might have planted evidence against him.
A grand jury subpoena issued May 11 demanded the return of “all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings,” including “Top Secret,” and the lesser categories of “Secret” and “Confidential.”
The subpoena, issued to Trump’s custodian of records, then listed more than two dozen sub-classifications of documents, including “S/FRD,” an acronym for “Formerly Restricted Data,” which is reserved for information that relates primarily to the military use of nuclear weapons. Despite the “formerly” in the title, the term does not mean the information is no longer classified.
One person familiar with the Mar-a-Lago search said the goal of the comprehensive list was to ensure recovery of all classified records on the property, and not just those that investigators had reason to believe might be there.
Investigators grew alarmed, according to one person familiar with the search, as they began to review documents retrieved from the club’s storage closet, Trump’s residence and his office in August. The team soon came upon records that are extremely restricted, so much so that even some of the senior-most national security officials in the Biden administration weren’t authorized to review them. One government filing alluded to this information when it noted that counterintelligence FBI agents and prosecutors investigating the Mar-a-Lago documents were not authorized at first to review some of the material seized.
Among the 100-plus classified documents taken in August, some were marked “HCS,” a category of highly classified government information that refers to “HUMINT Control Systems,” which are systems used to protect intelligence gathered from secret human sources, according to a court filing. A partially unsealed affidavit said documents found in the boxes that were sent to the National Archives in January related to the Foreign Intelligence Surveillance Court. There was also material that was never meant to be shared with foreign nations.
The investigation into possible mishandling of classified information, as well as possible hiding, tampering or destruction of government records, grew even more complex Monday when a federal judge in Florida granted Trump’s request to appoint a special master to review the material seized in the Aug. 8 search and weed out documents that may be covered by executive privilege — a legal standard that, as applied to former presidents, is poorly defined.
U.S. District Court Judge Aileen M. Cannon ruled the special master also will sift through all of the nearly 13,000 documents and items the FBI took to identify any that might be protected by attorney-client privilege, even though Justice Department lawyers have said a “filter” team has already completed that task.
Cannon’s ruling could slow down and complicate the government’s criminal probe, particularly if the Justice Department decides to appeal over the unsettled and tricky questions of what executive privilege a former president may have. The judge ruled that investigators cannot “use” the seized material in their investigation until the special master concludes his or her examination.
A special master has yet to be appointed; Cannon has asked Trump and the Justice Department to agree on a list of qualified candidates by Friday. Legal experts noted that the Justice Department can still interview witnesses, use other evidence and present information to a grand jury while the special master examines the seized material.
In her order, Cannon said the appointment of a special master was necessary “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
She also reasoned that a special master could mitigate potential harm to Trump “by way of improper disclosure of sensitive information to the public,” suggesting that knowledge or details of the case were harmful to the former president, and could be lessened by inserting a special master into the document-review process.
Kise, the Trump lawyer, cited that part of the judge’s reasoning Tuesday night, saying “the damage to public confidence in the integrity of the system simply cannot be underestimated.” He said the special master appointment by the court provides “a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”
Cannon wrote that Trump’s position as a former president means “the stigma associated with the subject seizure is in a league of its own,” and that a “future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
While the FBI search has drawn strong condemnation from Trump and his Republican allies, who accuse the Justice Department of acting with political malice against a past president who may seek the office again in 2024, some Republicans have said the action might have been necessary.
In an interview that aired Friday, former Trump attorney general William P. Barr said there is no reason classified documents should have been at Mar-a-Lago after Trump was out of office.
Josh Dawsey contributed to this report.