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Resources for the Trump Records Drama, NSArchive Pays Tribute to Mikhail Gorbachev, and More: FRINFORMSUM 9/1/2022

September 1, 2022

Resources for the Trump Mar-a-Lago Records Saga 

The extraordinary saga of former President Trump’s mishandling of government records, including classified national security information, continues to evolve. 

The Washington Post’s report on the Justice Department’s August 30th court filing notes that Trump and his team failed to return sensitive documents after both receiving a subpoena for them, and pledging that they’d conducted a “diligent search” for the records. The court filing itself states, “The classification levels ranged from CONFIDENTIAL to TOP SECRET information, and certain documents included additional sensitive compartments that signify very limited distribution. In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.” 

Here are some of the most important developments and resources from the last two weeks of the evolving story:

DOJ August 30 court filing highlights

One of the highlights of the DOJ’s 36-page court filing can be found on page 9, wherein Trump’s custodian of records, Christina Bobb, provided the DOJ a signed, certified letter stating the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

 I swear or affirm that the above statements are true and correct to the best of my knowledge. 

Another startling development appears on page 10. DOJ lawyers argue, “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

Yet another important takeaway is a redacted photograph of documents recovered, including those with Top Secret and Sensitive Compartmented Information markings. Observers also spotted an “HCS” marking, indicating the system used to protect information gathered from human sources. For a recent example of why human sources are so valuable and vulnerable, see the October 2021 New York Times story, “Captured, Killed or Compromised: C.I.A. Admits to Losing Dozens of Informants”.

Trump took issue with the photo on Truth Social, seemingly most concerned that it made him look messy. He stated, “There seems to be confusion as to the ‘picture’ where documents were sloppily thrown on the floor and then released photographically for the world to see, as if that’s what the FBI found when they broke into my home. Wrong! They took them out of cartons and spread them around on the carpet, making it look like a big ‘find’ for them. They dropped them, not me – Very deceiving.”

The filing also opposes the appointment of a special master (an independent third party) to review the records, requested by President Trump, arguing it is an unnecessary delay tactic.

Trump has previously claimed that he had a verbal “standing order” to declassify the documents. The DOJ filing explicitly states, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.” (emphasis added) 

Trump Team August 31 Response

Trump’s legal team’s 19-page reply takes incredulous aim at the Presidential Records Act (even though the PRA is clear that presidential records belong to the public, not the president, and many of the documents at issue are clearly agency records). The court-filing states, “But the Government reads into the Presidential Records Act an enforcement provision that does not exist; the law exhorts a former President to interface with the Archivist to ensure the preservation of Presidential records, but it does not oblige the former President to take any particular steps with respect to those records.”

The reply has an Alice-in-Wonderland feel to it, but the National Security Archive has long-argued the PRA needs more teeth, including eliminating the disposal provisions of the statute, instituting certain reporting requirements, and requiring the president to issue a records preservation policy at the beginning of each term that is reviewed by the Archivist of the United States. 

Additional Resources

  •  The search warrant and related memo, both released last week, can be read here and here, respectively. 
  •  The Washington Post’s Rosalind Helderman has a terrific timeline of the Mar-a-Lago records fiasco, read it here
  • Acting Archivist of the United States, Deborah Steidel Wall, recently published a NARA notice to all employees, Update on Trump Administration Presidential Records, in the agency’s FOIA reading room. She states that NARA found “more than 700 pages of records marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials” among the 15 boxes recovered from Mar-a-Lago this January. This does not include the materials recovered by the FBI this August from the Palm Beach property.
  • Director of National Intelligence Avril Haines told House Democrats in a letter last week that intelligence analysts were working with the Justice Department on a classification review of the materials taken from Mar-a-Lago, which will include an “assessment of the potential risk to national security that would result from the disclosure of the relevant documents.”
  • For an excellent overview of Sensitive Compartmented Information (SCI) and Special Access Programs (SAP) place in the classification universe, and the “unique fragility” of their associated sources and methods, read George Croner’s “A Damage Assessment of Trump’s ‘Declassification Defense’” in Just Security. Croner is the former principal litigation counsel at the National Security Agency, and his most important point is that any verbal standing declassification order would simply not suffice for these types of documents retrieved from Mar-a-Lago. Of course, the DOJ court filing above explicitly states that no such verbal order was made. This is a very worthwhile read, although I take issue with the hypothesis that if a verbal order had been given, that these documents would likely to be released in response to a FOIA request (after all, the sex of Conan the Dog was Glomared), so take any concerns that FOIA will reveal our top secrets with a grain of salt. 

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Is A New EO on Classified National Security Information in the Works?

Bryan Bender’s recent Politico piece, “White House launches new war on secrecy,” reveals that there is a new effort at the National Security Council to determine how to rein in the nation’s sprawling classification regime, focusing specifically on revising the current Executive Order on Classified National Security Information, EO 13526. John Powers, an NSC veteran who serves as the Associate Director for Classification Management for the Information Security Oversight Office (ISOO), will advise the effort – a good sign for transparency advocates. 

Specific steps that a coalition of open government advocates, including the National Security Archive, advise the NSC to take include: mandating the production of unclassified summaries of the President’s Daily Brief, and releasing all unclassified portions of Office of Legal Counsel opinions.  

While DNI Haines has testified publicly that overclassification is a national security concern, Powers and the NSC will have their work cut out for them. The intelligence community, led by the CIA and the FBI, will likely push back any attempt to cut down on overclassification.

In Memoriam: Mikhail Gorbachev 1931-2022

The National Security Archive mourns the passing of Mikhail Sergeyevich Gorbachev, 1931-2022, first and last president of the Soviet Union, who ended the Cold War and enabled through his “glasnost” our work to open archives around the world.

Mr. Gorbachev deserves the credit, according to observers as disparate as Ronald Reagan and Helmut Kohl, for the revolutionary changes in the 1980s that transformed the Soviet Union, brought down the Iron Curtain, reunited Germany, enabled Eastern Europeans to reclaim their countries, abolished an entire class of nuclear weapons, ended the Soviet war in Afghanistan, settled regional conflicts, and put forward a model of international politics that denounced violence as any real solution to political problems.

Mr. Gorbachev personally helped the National Security Archive open the primary sources on all this tumultuous history, even when the documents did him no favors.  He also generously met with us on multiple occasions, answering our questions and contributing his recollections and retrospective analysis in a variety of international forums.

Read more, including our seminal Gorbachev documents, on our website.

Truth Commission Launches Declassified Database on Colombia’s Conflict and U.S. Role

As the U.S. contemplated a more aggressive drug war strategy in Colombia in the 1980s, top intelligence officials said success there would require “a bloody, expensive, and prolonged coercive effort” that, even then, was not likely to have an impact on the U.S. drug market, according to a declassified report recently published by the Colombia’s Truth Commission and the National Security Archive.

The 1983 Special National Intelligence Estimate, featured in the Washington Post, is among a massive trove of declassified U.S. records gathered and organized for the Commission by the Archive that was the focus of a special event in Bogotá to introduce the Truth Commission’s digital library to the academic community. Archive senior analyst Michael Evans joined Truth Commissioner Alejandro Valencia Villa and other distinguished panelists at Colombia’s National University to celebrate the launch of the platform and to share highlights from more than 15,000 previously classified documents on Colombia’s conflict.

In Brief

– Acting Archivist of the United States, Deborah Steidel Wall, has announced the appointment of the newest 20-member FOIA Federal Advisory Committee. Alex Howard from Demand Progress and Adam Marshall from the Reporters Committee for Freedom of the Press are among the new non-government representatives. Ginger Quintero-McCall may have (she can correct me if I’m wrong!) the enviable distinction of being the first member to be appointed both as a government member (2016-2018) and as a non-government member (2022-2024).

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