The Mar-a-Lago affidavit should have Trump sweating, says former prosecutor
‘The amount of perspiration on his brow is probably increasing each week,’ says Gene Rossi
Donald Trump should be feeling very nervous about the investigation into the classified documents he kept at his estate in Florida, says a former federal prosecutor.
The U.S. Justice Department on Friday released a heavily redacted copy of the FBI affidavit used to obtain a search warrant for the former president's Mar-a-Lago estate earlier this month.
In the affidavit, prosecutors wrote that there was "probable cause to believe that evidence of obstruction will be found."
The warrant was issued after investigators pored through 15 boxes of White House documents from Mar-a-Lago that Trump turned over to the National Archives and Records Administration earlier this year. According to the affidavit, 14 of those boxes contained classified documents, many of them top secret.
Trump says he's co-operated fully with investigators, and painted the search as a politically motivated witch hunt intended to damage his re-election prospects.
Gene Rossi, a former U.S. federal prosecutor and former Democratic candidate for lieutenant governor of Virginia, spoke to As It Happens guest host Susan Bonner about the affidavit. Here is part of their conversation.
Mr. Rossi, what do these documents tell you about the investigation that is underway around the former president, Donald Trump?
It tells me, as a former federal prosecutor, that this investigation has gone to a very high level. To get a search warrant against the [former] president of the United States' home is a monumental ask on the part of the Justice Department. And they went through an incredibly meticulous process to develop probable cause for the following:
When president Trump left office, left the White House, he committed at least two crimes, arguably, by the Department of Justice affidavit. One, he violated the [Presidential] Records Act. No. 2, he violated the Espionage Act when he left.
Because why? He wilfully and knowingly, allegedly, took documents that were top secret SCI [sensitive compartmented information]. That is the gold standard of classified documents. They should never leave a secure facility. He brought them to his summer home, if you will, and kept them in an unsecured location. That is a violation of the law. Period. End of story. So this is a very serious investigation.
He does not dispute that he had the documents. Clearly, the box-loads of them have been taken out on two separate occasions — once with the search warrant, and 15 boxes before that. So that is not in doubt. But the former president says [he] didn't do anything wrong because [he] declassified these documents before [he] left office. What is your response to that?
My response to this is if you're a drug dealer and you're caught with five kilos of cocaine, you're going to say, "Yes, I possess them, but I didn't have the intent to distribute it."
Donald Trump has to admit he possessed them, and it wasn't by mistake. The whole issue was intent. Did he wilfully, with intent, violate the laws regarding protecting documents ... and the Espionage Act? His intent is disproven because his own legal counsel and other individuals said: You cannot do this. You cannot take top secret documents, willy nilly, out of the White House when you leave. And if you do, you have to keep it in a secured facility, which he does not.
So the argument that he declassified by waving a magic wand, by this talisman that gets rid of all the problems, that's not an argument that's ever been used in court successfully.
In this affidavit, the Department of Justice makes the case that investigators ... will find evidence of obstruction. What is the significance of that?
The [potential violations of the Presidential Records] Act [and] the espionage, those are what I call substantive crimes. What prosecutors love, and what I used to love, is when a potential defendant — potential — obstructs, hinders, impedes, bolsters, conceals [or] destroys evidence that is the subject of the investigation. In other words, the obstruction becomes a separate crime in itself. And when it's added to substantive crimes, that is a prosecutor's dream.
The Democratic Senator, Mark Warner, who heads the intelligence committee, said .... that "among the classified documents at Mar-a Lago were some of our most sensitive intelligence." What kinds of documents might we be talking about?
OK, I'm speculating and I'm using the word "might."
What would be the most disturbing is if he had information or files on confidential human sources — individuals that are being used as agents, secret agents, spies for the United States, or are individuals who want to be double-agents, want to leave their country or provide information against our adversaries, whether it's our spy or a potential spy trying to help us and there's an adversary. Those files, that information, can lead to people dying.
That information has to be guarded like the jewels of the crown. And Donald Trump treated it like it was People magazine.
This affidavit also reveals that investigators were talking to many people as they investigated what was going on with these documents. There are references to a significant number of civilian witnesses, a broad range of witnesses. What does that tell you?
What's important about that is this affidavit is not just relying on one co-operator. It's not relying on one person helping out, one inside informant. It, to me, as you just stated, includes a whole swath of individuals who are corroborating the allegations in the affidavit.
Now, it is just a probable cause document. That's a low burden. But it suggests to me that they have a lot of witnesses in the bullpen, if you will.
And the affidavit, and also memorandum of law that was also released today, warns about the danger of providing too much information on what they refer to as a "road map" for their investigation. How concerned are you that today's release might undermine this investigation?
I'm very concerned, and I'll tell you why. Before someone is charged [and] indicted, it is extremely rare — I've never seen it — where an affidavit of this ilk is unsealed. Usually, after someone is charged and awaiting trial, it is unsealed because the defendant is entitled to this under federal discovery rules.
But before someone is charged — and last I looked, president Trump has not been charged yet — it's extremely rare. And the reason is this: It does have the potential effect of hindering investigations, impeding investigations.
And even though names are redacted, people can kind of figure out some inferences — who's co-operating and when — and it could lead to witness intimidation.
Can I ask you, as you read through this document, did you see anything to suggest a motive for these alleged crimes?
In the document itself? Not really, because everything's redacted. But I can speculate.
There's only one reason I can think of for why president Trump was so intent on taking these documents, wilfully and intentionally ... and that's that he wanted to share this somehow for some potential benefit, either financial, political or whatever.
There is no reason for him to have these documents other than for nefarious purposes. And I'm speculating on that. There's nothing in the affidavit that suggests that, because it's almost all redacted. But there's no reason I can think of for him to have that.
And how concerned do you believe the former president should be after seeing this document?
I think the amount of perspiration on his brow is probably increasing each week. I didn't think he'd be indicted for the first impeachment trial. The jury's still out on whether [the] Jan. 6 [Capitol Hill riots] will lead to trial.
This one is at another level. I predict there is probably a 60-per-cent chance, maybe 70, that by May of next year, he will be facing charges involving this search warrant.
Written by Sheena Goodyear with files from The Associated Press. Interview produced by Kevin Robertson. Q&A has been edited for length and clarity.
