A search warrant made public on Friday reveals the FBI is investigating former President Donald Trump for three federal crimes, including violating the Espionage Act, obstruction of justice and criminal handling of government records, after removing top-secret documents when they raided former President Donald Trump’s Mar-a-Lago estate last week. Meanwhile, Trump is calling the investigation a hoax, and Republican threats are growing against the FBI. We speak with Karen Greenberg, director of the Center on National Security at Fordham University School of Law, who calls Trump’s reaction to the FBI search a “call to violence,” setting the stage for a “replay” of January 6. “We really need to try to understand what former President Trump intended to do with this material” despite the backlash, says Greenberg.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
A search warrant made public Friday confirms federal agents removed top-secret documents when they searched former President Donald Trump’s Mar-a-Lago estate last week. The top Democrat and Republican on the Senate Intelligence Committee had made a joint request for lawmakers to be allowed to review the classified documents seized by the FBI. Democrat Mark Warner and Republican Marco Rubio made the request Sunday to the Justice Department and the Office of the Director of National Intelligence.
On Friday, the U.S. District Court for the Southern District of Florida unsealed and released the warrant signed by the federal magistrate judge who approved the raid. The warrant revealed Trump is being investigated for three federal crimes: violating the Espionage Act, obstruction of justice and criminal handling of government records. The FBI reportedly seized 11 sets of classified documents during its search, including documents marked as “top secret/SCI” — which stands for “sensitive compartmented information” — one of the highest levels of classification. Last week The Washington Post reported part of the FBI search focused on classified documents related to nuclear weapons. House Speaker Nancy Pelosi addressed the raid Friday.
SPEAKER NANCY PELOSI: There are laws against the improper handling of this material. There are laws against that. And we have to recognize that. This information, as it is coming across — and we don’t, we’ll know more later — is highly classified, well above top secret. It is, again, higher than top secret. It’s top secret/SCI. It’s about our national security, as we are told, and we’ll see.
AMY GOODMAN: Donald Trump’s response to the FBI search of his Mar-a-Lago estate has shifted day by day as more information comes to light. He has called the probe a hoax. He has claimed to have declassified all the documents at Mar-a-Lago. And he has demanded the FBI return some documents, claiming they’re protected by attorney-client and executive privileges.
Meanwhile, backlash against the FBI, especially online, is growing across the country following the search. CNN reports the FBI is investigating an “unprecedented” number of threats against FBI agents and property over the past week. The FBI and Department of Homeland Security has also issued a joint intelligence bulletin warning of violent threats against federal agents, court officials and government facilities. Last week, the Cincinnati FBI office was attacked.
Republican Senator Rand Paul of Kentucky tweeted, quote, “The espionage act was abused from the beginning to jail dissidents of WWI. It is long past time to repeal this egregious affront to the 1st Amendment.” Again, those the words of Rand Paul.
For more, we’re joined by Karen Greenberg, director of the Center on National Security at Fordham University School of Law, author of the book Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump and Rogue Justice: The Making of the Security State.
Welcome back to Democracy Now! It’s great to have you with us, Karen. If you could start off by talking about this charge, the investigation of espionage against former President Trump and how significant it is?
KAREN GREENBERG: Well, I think it’s very significant, I think, symbolically, as well as legally. Now, the Espionage Act actually raises the specter of crimes against the country’s national defense. This part of the Espionage Act that’s referred to in the warrant is not the part that’s about spying, but about the handling of national defense information — in their words, gathering, transmitting or losing defense information. It’s illegal to remove documents related to national security from their proper place, which, as we know, is the National Archives, if they could pose a threat to national security. So that’s the big charge that gets all the headlines that was leveled against president. But there are also — that is suspected against the president.
But then, there are also two other issues here, and they carry higher charges, and they’re very important. One is the criminal handling of government records, the destruction, alteration or falsification of government records or documents in investigations. And it’s a prison sentence that could be up to 20 years. This is the obstruction of justice charge that is referred to. And finally, there’s the potential charge of making illegal the destruction of, theft of any government document. And we’ve seen in the recent past use of this, for example, with Petraeus and sort of allegations of this with others, but Petraeus is the name that comes to mind by this. And this is punishable by three years.
So, these are incredibly serious charges, not just in the espionage front, but in other possible charges. Now, he hasn’t been charged. This is what’s just said in the warrant could be what they are looking for. It justifies the search legally. And we’ll see what happens. So, again, he hasn’t been charged, but this is what they’re looking for in the documents that they took away. And remember that some of the documents they took away were reported to be classified. So, we’ll see what happens.
AMY GOODMAN: So, let’s talk about the Espionage Act. We’ve seen it evoked against Edward Snowden, Julian Assange, Thomas Drake, Reality Winner. Under the Obama administration, the Espionage Act seemed to be used to squelch dissent by whistleblowers. And now you see those on the right raising these issues.
KAREN GREENBERG: Right. This is one of — this is sort of history turning itself on its head. Yes, Obama used the Espionage Act to go against whistleblowers, successfully, more than any other president in U.S. history in that way. But the Espionage Act, you know, started in World War I and was used primarily at the time to prosecute, successfully, those who opposed the war, World War I, and enlistment in the war. And it’s been used during the McCarthy era. It’s been used — was tried to be used against Daniel Ellsberg with the Pentagon Papers. It has a long history of not really being about what it’s being used for now, which is the abuse of power — this is the suspicion — the abuse of power at the absolute highest level of government to harm the country, as opposed to these prior instances we’ve referred to, which were people who were trying to leak information in order to bring to light some things that they thought, and others thought, were things that the government shouldn’t be doing.
And so, the difference between dissent, and the use of the espionage to prosecute dissent, and the abuse of power in a way that potentially harms national security, I would argue, are two very different things. And again, I think the country needs to have a discussion about this, but right now we need to handle what happened, what those documents were about — if we can find out — and what the president was intending, the former president was intending, by holding onto these documents.
AMY GOODMAN: And the issue that they might be connected to nuclear secrets, what that means?
KAREN GREENBERG: Well, that means a number of things. One, it obviously is the sort of — one of the scarier things that you could be worried about in terms of holding onto classified information. It also means, though, going to the guilt of the president and what — former president and what he did, is that the president has claimed he can declassify information — and we think this is going to be part of what is said by his defense team — and that he could sort of take a magic wand and just declassify things.
When it comes to nuclear issues and nuclear weapons, that is not — first of all, it’s not necessarily the case anyway, without going through a series of procedures and conversations and document-by-document removal of these from a large cache that you’re going to turn over to the National Archives. But when it comes to nuclear issues, it’s actually a different standard, and the president does not have the right to do this just the way he’s claiming, and this is regulated by the Atomic Energy Act. So, I think it’s rather significant that they mentioned — that it’s been mentioned and reported that this may pertain to some nuclear issues.
AMY GOODMAN: So, let’s go to what Trump and his supporters are claiming, that Trump used his presidential authority to declassify all the documents in question before leaving office. This is Republican Senator Mike Rounds of South Dakota speaking on Meet the Press.
SEN. MIKE ROUNDS: I think, constitutionally, back, I believe it was in 1988, there was a Supreme Court decision, U.S. Navy v. Egan, in which they actually talked about whether or not a former president — a president could classify and declassify. And it’s never really been litigated, but it appears that a president can classify or perhaps declassify information. And if that’s the case, then the question would be — and I think it will be litigated as this moves forward — whether or not that was completed while the president was in the White House at that time.
AMY GOODMAN: So, this is very interesting. And John Bolton, the national security adviser, said when he was national security adviser, he was never told that things were just blanketedly declassified. But this issue that the president having them just meant they were declassified, taking them to Mar-a-Lago?
KAREN GREENBERG: Well, you can sort of understand, from the former president’s point of view, why he would want to say that, because it gets him out of the more serious charges about mishandling classified documents, which brings — you know, which brings very high charges. And so, I think I understand it from the point of view of the defense. But it’s not accurate. When you declassify a document, if you want to declassify a document and you are president, there are procedures, there are rules, there are conversations. There should be a record of that, getting to the point about this willful misuse of records within this presidency.
And we don’t know whether there will be something in what they took from Mar-a-Lago last week, whether there will be something that shows documents that he went through procedures to declassify. But it’s not just a carte blanche on declassifying a whole set of information. This is a scrutinized, articulable distinction about what should be classified and what wasn’t. And so, we’d have to see what those conversations were, if they took place, whether there’s a record. And to this point, we haven’t seen that.
AMY GOODMAN: Can you talk about the verbal attacks on the FBI and the Justice Department, on Trump and his allies? The attorney, who represents whistleblowers, Mark Zaid, tweeted, quote, “Trump, via Breitbart, released unredacted copy of property receipt containing names of FBI agents. Based on his history, this can only be interpreted as intentional to cause these Special Agents (one of whom I know) & their families grief & subject them to possible threats,” Mark Zaid said. Your response, Karen Greenberg?
KAREN GREENBERG: You know, my response is that this is just a replay, on a different level, in a different arena, of January 6th. This is the call to violence on behalf of the former president and his treatment this time under the law. And it’s a convergence of many things that have been going on in this country for a long time. So, we now know the narrative. We now see how it plays out. And it is very serious, and it is very dangerous.
And this is a pivotal moment. Either, as a country, we know how to handle such threats, or we don’t. And that includes how we apply the Espionage Act, how we use our courts, how we protect our law enforcement. And this is a pivotal moment, and it matters how this is resolved. It just can’t keep going on that the use of the courts, the use of the law, the reliance on the rule of law is countered by violence that refuses to accept it.
AMY GOODMAN: And what about The New York Times reporting this weekend that a Trump lawyer had written to the Justice Department saying that all classified documents had been handed over, when in fact it’s clear they hadn’t?
KAREN GREENBERG: Right. So, again, this goes to something that we’ve been seeing throughout the January 6th investigation and elsewhere, which is sort of a willful use of, you want to call it, disinformation, of lying, of distorting the record. And it’s going to take a long time to put together this story of what actually went on with these documents that were kept at Mar-a-Lago. It’s all part of a larger story, which is what went on inside the Trump administration, what’s fact and what’s fiction, and what that means.
And this is one of the most important things about these records, that we sort of minimize because we’re thinking about the guilt or innocence of the former president, which is that we preserve records for a reason. We preserve them, yes, so that we can understand guilt or innocence, but we also preserve them so that we know what happened in our country, so that we have the historical record, so that we know how to go forward should we decide to take steps toward legislation that will prevent any of this from happening again in the future. So, it’s not a minor point, and we’re going to need to pay attention to this.
AMY GOODMAN: And what about many commentators noting that the laws in the warrant, like the Espionage Act, don’t deal with classification? This would be — would sort of undercut Trump’s arguments around classification or whether they were declassified.
KAREN GREENBERG: Yes and no, because the classification issue is going to come up, we think, in any kind of investigation going forward. So, yes, you could try to separate it out, but when you’re talking about national defense information, whether or not it was classified is going to make a difference. And the fact that they’re classified documents, whether or not they go after it on that specific point — which I think they will — is what is involved with the issue of: Did he do things that could have potentially harmed national security? So the classification issue just sheds a brighter light on that basic issue, fundamental issue in this case.
AMY GOODMAN: As we wrap up, Karen Greenberg, what are you most interested in finding out? And are you concerned about an overall backlash?
KAREN GREENBERG: I’m always concerned about an overall backlash. I don’t think we can worry about it. I think we have to go forward and really find out what happened.
When you ask about what’s the most concern, we need to know what these documents were — and we aren’t going to know all of it; some of it’s going to have to be classified — but, essentially, what these documents were, what countries, if any other countries were involved or named in these documents, what these documents addressed.
And we really need to understand what — try to understand what former President Trump intended to do with this material. Why did he keep it? Was it to cover up crimes from the past or worries about being — allegations that address the past, or was it information that could have been weaponized for other purposes? We have no idea. But this is what we need to know in coming days.
AMY GOODMAN: Well, Karen Greenberg, I want to thank you for being with us, director of the Center on National Security at Fordham University School of Law. Her most recent book, Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump.
This is Democracy Now! When we come back, one year ago today the Taliban returned to power in Afghanistan, promising to bring stability after two decades of war and occupation. We’ll get an update from Afghan journalist Zahra Nader, editor-in-chief of Zan Times, running a new women-led news outlet documenting human rights issues in Afghanistan. Stay with us.