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.

Later in the affidavit, the FBI special agent admitted that he (or she) did not actually know whether documents with alleged classified markings actually had defense information; however, he (or she) merely asserted that “[b]ased on my training and experience, I know that documents classified at these levels typically contain NDI.” Much of the affidavit was redacted.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.