The Department of Justice (DOJ) affidavit seeking a search warrant for former President Donald Trump’s home at Mar-a-Lago earlier this month was uncertain whether there were documents with “defense information,” or merely ordinary presidential records.
In the affidavit, submitted by an FBI special agent, the DOJ argued that based on 15 boxes of materials voluntarily submitted by Trump, which were disorganized and allegedly included documents that had some classified markings, there was probable cause to believe that there were other such documents on the premises, and that they were not being properly, securely stored.
In addition, the DOJ stated that “there is probable cause to believe that additional documents that contain classified NDI [National Defense Information] or that are Presidential records subject to record retention requirements currently remain at the PREMISES.” The key word is “or”; the DOJ did not know exactly what it was looking for. (It added that it might find “evidence of obstruction” — that is, of deliberate refusal to comply with past requests for documents from the White House.)
Thus the DOJ could not state with certainty whether it was seeking to enforce the criminal law against mishandling defense information, or whether it was seeking to enforce the Presidential Records Act, which does not have criminal enforcement.