08.29.2022 0

FBI did not disclose Trump’s Jan. 19, 2021 declassification order of Russiagate documents to the federal magistrate judge in warrant affidavit

By Robert Romano

The federal warrant affidavit the Federal Bureau of Investigation (FBI) relied on to search former President Donald Trump’s residence in Palm Beach, Fla., Mar-a-Lago — at least its redacted version — bears no mention of a Jan. 19, 2021 declassification order by Trump of documents related to the Justice Department’s investigation of Trump that falsely accused him and his 2016 presidential campaign of being Russian agents.

This key omission — along with several pages of redactions — raises significant questions about whether the FBI fully disclosed all information relevant to the search warrant to the federal magistrate judge, Bruce Reinhart, before the FBI raided Mar-a-Lago on Aug. 8, including any relevant exculpatory information, especially any and all information that Trump had declassified these materials before ever he left office that almost certainly would have leaned against issuing the warrant.

Either that, or there is the unlikely event Reinhart let the FBI redact information about Trump’s Jan. 19, 2021 declassification order, even though it is public information available on Archives.gov and should have been disclosed in the public interest.  

In the declassification memorandum, entitled, “Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation,” Trump outlined what materials he had requested for declassification from the Crossfire Hurricane investigation: “At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation.  Portions of the documents in the binder have remained classified and have not been released to the Congress or the public.  I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form. I determined that the materials in that binder should be declassified to the maximum extent possible.”

There were a lot of responsive documents, but the FBI wanted redactions, which Trump granted in the declassification order: “In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure.  I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.”

And Trump clearly declassified whatever wasn’t to be redacted, stating, “I hereby declassify the remaining materials in the binder.  This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”

But redacted versions of the documents were never returned to the White House by the FBI by the time Trump was ready to leave office, nor have they been published since then, even though they should have been shortly after the declassification order.

In fact, Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) and Sen. Ron Johnson (R-Wis.) have been trying to obtain these documents for more than a year, in a Feb. 15, 2022 letter and an Oct. 2021 letter to Attorney General Merrick Garland, demanding to know why they have not been disclosed.

Grassley and Johnson wrote in the Feb. 2022 letter, “We remain concerned that over one year from the date then-President Trump directed the Justice Department to declassify certain Crossfire Hurricane records the Justice Department has not only failed to declassify a single page, the Department has failed to identify for Congress records that it knows with certainty to be covered by the declassification directive.”

Appearing on Fox Business with Dagen McDowell on Aug. 15, Sen. Johnson said that not a single page of the documents had been published by the Justice Department, stating, “I know President Trump was trying to declassify or had declassified information the tail end of his administration. We have not seen one page of that.”

Johnson added, “To me, this is looking more and more like a dispute over the President’s declassification authority.”

Johnson is right, and sure enough, the affidavit does include a short letter from one of Trump’s attorneys to the Justice Department in May, outlining the Article II Presidency’s broad authority under the Constitution over classified information.

One of the cases cited by Trump’s attorney is Department of Navy v. Egan, wherein the U.S. Supreme Court confirmed the President’s of classification of sensitive national security documents derive from his Article II constitutional vesting of executive powers, not from any Congressional statute: “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” 

The affidavit also included a phone interview on Breitbart.com quoting former Department of Defense chief of staff Kash Patel, who said he personally witnessed the declassification himself, but that the documents remained unaltered and had retained their classified markings: “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified. I was there with President Trump when he said ‘We are declassifying this information.’”

This is all relevant information, not only for Judge Reinhart, but the entire nation. Former President Trump appears to be planning to run for President again in 2024, and yet, he could be about to be imprisoned for what appears to have been a lawful exercise of presidential powers while still in office, threatening our very constitutional system in perhaps its greatest crisis since 1860.

Fortunately, Trump’s legal team is also fighting to get a special master appointed to consider which documents seized by the FBI were privileged, including those that might have been shielded by executive privilege and/or attorney-client privilege, and overall is mounting a Fourth Amendment case against the unprecedented raid itself.

Ultimately, there needs to be some accounting for why the Jan. 19, 2021 memorandum — perhaps the best evidence that Trump was declassifying troves of documents before he left office and that the Justice Department was not cooperating with those orders — was apparently not disclosed to Judge Reinhart in the affidavit, or if it was, why Reinhart is letting the FBI hide it from the American people.

Either, the FBI hid Trump’s Jan. 19, 2021 declassification order from Reinhart, or Reinhart let the FBI redact information about it when it’s public information. Both would serve the ends of keeping the documents Trump clearly declassified out of public view.  

The real question is: Where the heck are the American people’s declassified documents? They should be released immediately, and this witch hunt brought to a prompt end by federal courts acting in the best interests of the Constitution by pouring ice cold water on this catastrophe before it really gets out of hand.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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