Update, Thursday Sept. 8, at 5 p.m.: On Thursday, the Department of Justice filed a motion for Judge Aileen Cannon to stay the portion of her ruling blocking DOJ from using classified documents seized last month from Donald Trump’s residence in Mar-a-Lago for the purposes of a criminal investigation, arguing that it jeopardized the intelligence assessment that Cannon had ruled could proceed.
Original post: Judge Aileen Cannon’s court order on Monday, temporarily halting the Justice Department’s investigation of Donald Trump’s stash of documents at Mar-a-Lago, may also be impeding the intelligence community’s assessment of whether national security has been damaged.
I say it “may” be impeding the intelligence review because Cannon’s ruling is so sloppily reasoned—ripe with contradictions and confusions—that legal scholars, former intelligence officials, and former government lawyers are unclear of its full implications.
On first reading, the ruling barred Department of Justice officials from pursuing criminal investigation, pending a special master’s review of possibly privileged materials among the documents confiscated by the FBI. However, the order also stated: “The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessment.”
Avril Haines, director of national intelligence, informed the House Oversight and Intelligence committees on Aug. 26 that she would lead an “assessment of the potential risk to national security that would result from the disclosure of the relevant documents” confiscated during the FBI’s court-ordered search last month at Mar-a-Lago. Haines said in the same letter that DNI and DOJ were “working together to facilitate a classification review of relevant materials.”
The problem is that certain senior DOJ officials working on the criminal investigation are also likely to be working on the damage assessment. “Under Judge Cannon’s ruling, they may have to recuse themselves from one investigation or the other,” a former Defense Department counsel told me. Otherwise, they could risk a contempt charge or a mistrial down the road.
Even FBI field agents might find their positions compromised. It would be routine in such investigations for an intelligence official to ask them for the chain-of-custody analyses that they’d performed to determine who had handled some of the documents. If the agents cooperated with such a request, would they be working on a national-security assessment (which the court order allows) or would that count as work on the criminal investigation (which the court order prohibits)? It’s not clear.
This is one reason, among several, why many lawyers believe DOJ will appeal Cannon’s ruling, perhaps as soon as this week. Apart from its flimsiness on legal grounds, the ruling doesn’t provide clear guidance to law-enforcement and intelligence officials who are involved in the case.
Cannon released her court order 10 days after Haines wrote her letter. Politico reported, and quoted from, the letter just one day after Haines signed it, and the review was mentioned in the DOJ’s filings, so Cannon would have known about its existence. She had plenty of time to think through how to draw the lines clearly. Yet she seems not to have done so.
Even without Haines’ letter, Cannon would have known the ambiguities that any order needed to resolve. “DOJ and FBI are almost always involved in espionage-related damage assessments,” a former senior intelligence officer who was involved in damage-assessment cases told me on Wednesday.
In some cases, the CIA can do much of the work without assistance. According to the former official, counterintelligence analysts “determine if their networks have been lost or compromised and, if so, what foreign intelligence may have been tainted or manipulated by foreign adversaries.” Those sorts of inquiries—which take place whenever sources or vital secrets have been blown—involve tapping foreign intelligence sources, which the FBI steers clear of.
It is not yet known whether, or to what extent, the classified documents at Trump’s Palm Beach resort and residence leaked out to foreign spies. The documents were boxed in rooms with little or no security. Footage from security cameras, which the FBI confiscated (and which are not subject to Judge Cannon’s order), reportedly show people—as yet unidentified, at least to the public—moving (and, in some cases, moving boxes) in and out of the room.
When he was president, Trump referred to Mar-a-Lago as “the Florida White House,” and he was known to discuss secret matters in the dining room, where dozens of uncleared people were in earshot. It is a near-certainty that foreign governments recruited spies to become members of the resort—the $200,000 entrance fee would be a pittance in a spy agency’s budget—in hopes of gathering gossip or intel of a more solid sort. In 2019, a 32-year-old Chinese woman was caught trying to enter Mar-a-Lago with four cellphones and a malware-loaded thumb drive. She’d made it through two Secret Service checkpoints, saying she was there to attend an event sponsored by the United Nations Chinese-American Association. Her plot, whatever it might have been, was derailed when a clerk at the reception desk saw no such event on the calendar that day and noticed that the woman had no bathing suit, even though she said she’d arrived early in order to see the pool.
The question isn’t how she got that far; it’s how many others got in farther still.
The New York Times reported in October 2021 that top counterintelligence officials sent out a Top Secret cable warning every CIA station in the world that a troubling number of informants, recruited from foreign countries to spy for the U.S., had recently been captured or killed. More recently, two former U.S. operatives—Sue Gordon, former deputy director of national intelligence, and Tracy Walder, a former CIA and FBI agent—speculated that the spurt may be related to the loose storage of documents at Mar-a-Lago. Some of those documents were classified far beyond Top Secret; some of them were marked HCS, an abbreviation for HUMINT or “Human Intelligence,” meaning they contained information obtained from—and possibly about—spies.
There is no evidence that the looseness of the documents is at all related to the rise in captured and killed spies. Director Haines’ letter noted that she was leading an assessment of the risk that “would result from the disclosure” of the Mar-a-Lago documents—but it would be standard practice for the intel agencies to investigate the consequences of any actual disclosures.
That would be an area where criminal and national-security investigations would intensely overlap.