Some Trump records taken to Mar-a-Lago clearly marked as classified, including documents at ‘top secret’ level

Some of the White House documents that Donald Trump improperly took to his Mar-a-Lago residence were clearly marked as classified, including documents at the “top secret” level, according to two people familiar with the matter.

The existence of clearly marked classified documents in the trove - which has not previously been reported - is likely to intensify the legal pressure that Trump or his staffers could face, and raises new questions about why the materials were taken out of the White House.

While it was unclear how many classified documents were among those received by the National Archives and Records Administration, some bore markings that the information was extremely sensitive and would be limited to a small group of officials with authority to view such highly classified information, the two people familiar with the matter said.

The markings were discovered by the National Archives, which last month arranged for the collection of 15 boxes of documents from the former president’s Mar-a-Lago residence. Archives officials asked the Justice Department to look into the matter, though as of Thursday afternoon FBI agents had yet to review the materials, according to two people familiar with the request.

It remained unclear whether the Justice Department would launch a full-fledged investigation. The files were being stored in a sensitive compartmented information facility, also known as an SCIF, while Justice Department officials debated how to proceed, the two people familiar with the matter said.

Like others in this story, the people spoke on the condition of anonymity to discuss a politically sensitive matter. A Justice Department spokesman declined to comment.

Trump spokesman Taylor Budowich said: “It is clear that a normal and routine process is being weaponized by anonymous, politically motivated government sources to peddle Fake News. The only entity with the ability to credibly dispute this false reporting, the National Archives, is providing no comment.”

Trump’s years-long defiance of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties, and other unusual record-keeping practices have long drawn scrutiny. In 2018, for example, Politico reported on his penchant for ripping up official documents. But in recent weeks, Trump’s activities have generated new attention - in large part because of the House select committee’s investigation of the Jan. 6, 2021, attack on the U.S. Capitol.

The Washington Post reported late last month that some of the White House records the National Archives turned over to the committee appeared to have been torn apart and then taped back together. The Post later reported that officials had recovered 15 boxes of presidential records from Mar-a-Lago, and that they suspected Trump had possibly violated laws concerning the handling of government documents - including those that might be considered classified.

A “top secret” classification is applied to information where unauthorized disclosure “could be expected to cause exceptionally grave damage to the national security,” according to the Archives’s Information Security Oversight Office.

Officials even keep secret some of the mechanics of how the government categorizes and stores its secrets, but in daily practice often refer to classified systems as “the high side” and unclassified government systems as “the low side.” On the high side, there are different types of classified information within “top secret” that are restricted to smaller groups of officials on a need-to-know basis, including a broad category referred to as Special Access Programs, or SAP.

Even with documents marked classified found where they don’t belong, prosecutors have a high legal bar to get to criminal charges. Prosecutors would have to prove someone intentionally mishandled the material or was grossly negligent in doing so - which can be a steep hurdle in its own right. And Trump, as president, would have had unfettered latitude to declassify material, potentially raising even bigger challenges to bringing a case against him.

Former federal prosecutor Brandon Van Grack said that some of the laws about classified information require someone to act “without authorization, and potentially the president would be able to argue he gave himself that authorization.”

But - regardless of whether a criminal case could be substantiated - Van Grack said that “the FBI would want and need to review the information and conduct an investigation to determine what occurred and whether any sources and methods were compromised.”

It is not precisely clear who packed up the classified materials at Mar-a-Lago, or how they got there in the first place. Trump was very secretive about the packing of boxes that were retrieved from Mar-a-Lago last month, and did not let other aides - including some of his most senior advisers - look at them, according to people close to him.

During his time in the White House, Trump often took official documents with him to his residence to review, accruing piles of records over time, according to people familiar with Trump’s record-keeping practices.

Although that is not in itself necessarily unusual, the documents would pile up. One White House staffer said it became a problem that eventually led records staff to search for materials in classified burn bags, which are used to dispose of documents.

“For all the things written about him that he didn’t read, he often would take things with him to the residence or bring things down with him,” said a second Trump White House official. “But I don’t know that that is out of the ordinary.”

Officials had to scramble to pack up before Joe Biden took office, and one person familiar with the events surmised that some of the documents from the residence likely made their way into boxes destined for Mar-a-Lago rather than being turned over as they should have been. One adviser said Trump began reviewing materials in December after staff received the requests from Gary Stern, a longtime Archives lawyer.

Over the summer, the Archives reached out about high-profile documents that did not seem to be among those turned over, a person familiar with the matter said. Those included correspondence with North Korean leader Kim Jong Un that Trump once described as “love letters,” as well as a letter left for Trump by President Barack Obama, the person said. The National Archives also inquired about a map of Hurricane Dorian that had been altered with a black marker by Trump in a failed attempt to show he had not been wrong about the storm’s path, the person said.

Last month, Archives officials retrieved those and the other boxes, and the Archives said in a statement that Trump representatives were “continuing to search” for additional records that have yet to be turned over.

David Laufman, a former Justice Department counterintelligence official who was involved in prosecutions and investigations over the mishandling of classified information, said Trump being a former president “presents additional litigation risk factors, insofar as he, as president, would have had the authority to declassify documents or potentially even determine where classified documents could be transferred.”

But, he added, “there’s no question that it was improper for classified information to be taken to or to reside at Mar-a-Lago.”

Laufman, who was involved in the investigation of Hillary Clinton’s use of a private email server, said a Justice Department investigation would focus not just on Trump but also on those who packed up the classified materials and moved them to Mar-a-Lago, and whether they knew what they were doing. He said the next step would be for the FBI to go to the secure facility where the documents were being stored, review the markings for themselves, and then “to broaden its investigation to learn how these documents came to be taken from the White House to Mar-a-Lago and whether anybody associated with that bears potential criminal liability.”

Former presidents do sometimes receive and hold on to classified information, according to people familiar with presidential records. For example, former presidents might receive classified briefing documents in advance of a meeting with a foreign leader. But they are supposed to carefully safeguard such documents, keeping them in a safe or other secure facility.

If a record has been labeled “top secret,” federal rules spell out a procedure for their handling and for any effort to declassify them. Often the information does not originate from the White House but from another agency.

In the past, when there has been discussion of declassifying a military or intelligence record, the originating agency is consulted about whether a document should be declassified. The rules also require that declassified documents be marked visibly as “declassified.”

One added wrinkle to the questions swirling around the Trump records is that while he was president, Trump frequently stayed at Mar-a-Lago and handled official documents while there, meaning it could be difficult in some instances to establish the chain of custody of specific classified documents.

The concern that the former president or his inner circle may have brought classified documents to an unsecure location provides a potential line of political attack for critics of Trump, who during the 2016 campaign repeatedly railed against Clinton for her handling of classified material and insisted she should be in jail. The FBI investigated Clinton for possibly mishandling classified information in connection with her use of a private email server while she was secretary of state.

Investigators found 110 emails that contained classified information at the time they were sent or received in the group of 30,000 that Clinton later turned over for review, including eight email chains that contained information that was “top secret” at the time they were sent. But the Justice Department ultimately decided not to charge Clinton, after the FBI determined it could not prove she intended to mishandle sensitive material.

Some analysts said Trump could now find himself in the crosshairs of a similar probe. But others urged caution.

“There are just a ton of unknowns here,” Van Grack said. “So part of this is, people just need to not jump to conclusions.”