The former chief of the Justice Department’s national security division said Tuesday that the FBI warrant for the search of Donald Trump’s Mar-a-Lago home in Palm Beach, Fla., suggests prosecutors believe they have probable cause that there may have been violations of the World War I-era Espionage Act.
That law has traditionally been used to target government leakers, such as former NSA contractor Edward Snowden. But it also “actually has provisions that apply to essentially the mishandling [of classified material] through gross negligence, permitting documents to be removed from their proper place, or to be lost, stolen or destroyed,” Mary McCord, a veteran federal prosecutor who headed DOJ’s national security division in the closing years of the Obama administration, told the Yahoo News “Skullduggery” podcast.
McCord said that the Espionage Act is one of two federal crimes that prosecutors may be focusing on in their warrant to search Trump’s home. The other, she said, is another federal statute that targets anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys public records.”
McCord noted that the decision to search Trump’s home could only have been conducted with the approval of a federal judge based on an affidavit from the FBI that there was evidence of a crime at Mar-a-Lago at the time of the search.
“So it couldn’t be, ‘We thought the stuff was there a year ago, but not now.’ It would have to be probable cause to believe that evidence of a crime exists in that location at that time,” McCord said. “And that means that the Department of Justice, probably at the highest levels, probably all the way up to the attorney general, agreed that this was a step that was not only legally supportable, but also important to take.”
One factor that McCord suggested would be on the minds of DOJ national security lawyers is what Trump might have done with the highly classified material that was still believed to be at Mar-a-Lago. “Are we worried that some of this information would actually be shared outside of Mar-a-Lago, potentially with foreign adversaries? I’d be really concerned about that,” she said.
What follows is an edited conversation of the interview with McCord conducted by “Skullduggery” co-hosts Michael Isikoff, Daniel Klaidman and Victoria Bassetti.
Isikoff: So rather striking news last night that the FBI has raided the home of the former president of the United States. And according to Trump, broke into his safe. What do you make of this?
McCord: First, I would quarrel with two terms you just used. "Raid" and "broke into his safe."
Isikoff: I said, "according to Trump."
McCord: OK, fair enough. Because this was of course a court-authorized search warrant that would've had to have included the safe within the terms of the search warrant. It's a very overt step for the FBI to actually execute a search warrant that signals to the whole world that they had probable cause — that a federal judge agreed with — to believe that the evidence of a crime would be located in the premises to be searched at the time it was searched. So it couldn't be, "We thought the stuff was there a year ago, but not now." It would have to be probable cause to believe that evidence of a crime exists in that location at that time. And that means that the Department of Justice, probably at the highest levels, probably all the way up to the attorney general, agreed that this was a step that was not only legally supportable, but also important to take.
Isikoff: What are the potential crimes here?
McCord: There's a variety of different possible crimes, but I think the two that are probably worth focusing the most on are 18 USC 2071. This really applies to any federal government employee who, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys public records, right? Records that are public records. Another potential crime is actually under the Espionage Act, which is 18 USC 793. And that actually has provisions that apply to essentially the mishandling through gross negligence, permitting documents to be removed from their proper place, or to be lost, stolen, or destroyed. There's also conspiracy provisions within that 18 USC 793. But certainly gross negligence could be proved by willfulness, because that would be even beyond gross negligence.
Klaidman: Does that suggest possibly that they had information that there was some kind of obstruction going on?
McCord: I think one of the things that is significant here to me is the fact that after it was revealed, however many months ago, that documents had been taken, presidential records had been taken to Mar-a-Lago, 15 boxes were returned [to the National Archives], right? This is a result of consultations with the archivist. Because even if [the removal of the documents] was all an accident, it's been called to the president's attention. It’s been called to the president's lawyers' attention. There was an actual collaborative effort to round up the documents, the presidential records that had been mistakenly taken, and then return them. But this idea that, "Oh, it was a mistake." He [Trump] doesn't really have that anymore. I think that's significant because it shows, "OK. You had your chance. You argue mistake. The department obviously has probable cause to believe you still have documents." And so, the question is why. Right?
Bassetti: The New York Times is reporting that in June, multiple officials from the Department of Justice, including the chief of counter-intelligence and export control [Jay Bratt] visited Mar-a-Lago to check the documents, and see where some of them were being stored. What does it tell you that someone at that rank, and in that position, went to Mar-a-Lago?
McCord: So I do think it's significant. I mean, that's the litigating division within Department of Justice that investigates mishandling of classified information. And the fact that we have a national security division lawyer such as Jay Bratt, the head of counterintelligence and export control, does mean that we're talking about national security implications, not simply presidential records that aren't classified.
Bassetti: When you were the head of the national security division, what sort of evidence would you have wanted to see before you would have signed off on a search warrant of a potential suspect?
McCord: So I think what you're really asking is what prudential concerns would go into it, particularly in a sensitive case like this, where we're talking about a former president. And there's also prudential concerns about danger to national security. I would also be thinking down the line, am I going to be able to make a case in court? Because is the national defense information so sensitive that the equity holder, the national security agency whose information it is, is never going to let me put it in court, is never going to say to me, "It's OK, prosecutor, to prove up that this is national defense information." The very nature of which means it would cause substantial damage to U.S. national security, if it were disclosed. Admitting that is actually admitting to things that sometimes our national security agencies don't want to admit to. So there's all kinds of prudential things you'd be looking at in terms of the former president. That's what's unprecedented here. And so it would be more than just you have probable cause. It would be, "Where are we going from here? If we find the things we're going to find, are we going to be seeking an indictment from this? What are the different things to weigh?" To me, that would depend on how significant are the documents, right? How sensitive is the national security information? Are we worried that some of this information would actually be shared outside of Mar-a-Lago, potentially with foreign adversaries? I'd be really concerned about that.
Isikoff: I asked you before about Justice Department precedents for cases such as this, and the one that leaps to mind is Sandy Berger, who was Bill Clinton's national security adviser, and then after he leaves office, he goes into the National Archives while he was preparing for his testimony before the 9/11 commission, and outright helps himself to classified documents, stuffs them in his socks and his pants, and gets caught red-handed. He gets prosecuted. He doesn't get prison time, he gets fined and community service, gives up his law license. And there's some other cases of just outright theft by people who just take bucketloads of old Civil War documents from the archives, and try to use them for financial purposes. Those are cases that clearly meet the willfulness standard that you're talking about. But it's hard for me to see a set of circumstances involving Trump that meets that kind of standard here.
McCord: This is where I pointed out the whole background history here, right? Of being put on notice that there were documents missing from the archives. His own attorneys, and his own consultants, packaging up 15 boxes, in coordination with the archivist about the missing records, and sending them back. I'm sure his own attorneys advised him of what the laws are, and it was widely reported — many, many lawyers and others talking about what the laws are that prohibit the taking of presidential records, and certainly prohibit them as handling of classified information. So you know, I can tell a tale here that wouldn't sound that much different than stuffing [classified documents] into your pockets. You're put on notice that you may have classified information that needs to be returned, and then you make some decisions about what to keep and not return. I don't know that that's so much different than going into the archives and walking out with [documents]. You have now taken what you've been told is not yours to take.