Espionage, affidavits, passports: What’s new in US probe of Trump

The United States Department of Justice has said it opposes releasing an affidavit – or sworn legal document – that would reveal its justification for raiding former US President Donald Trump’s Mar-a-Lago estate.

The federal law enforcement agency’s response comes as details of the investigation – which centres on the removal of documents from the White House and has kicked off a political maelstrom – continue to emerge. US media has reported FBI agents sought classified documents related to nuclear weapons, among other items, in last Monday’s search.

Trump has claimed any removed documents were declassified beforehand.

The investigation is already transforming the political landscape ahead of November’s upcoming midterm elections, while kicking off debate over the laws the former president may have violated and whether a conviction would bar him from running in 2024.

Here are some key questions answered:

Why is the ‘affidavit’ related to the Mar-a-Lago search in the news?

The Department of Justice has said little officially on the investigation, with Attorney General Merrick Garland instead moving to unseal several documents related to the probe.

What has not been unsealed is the document federal prosecutors provided to a judge to attain a search warrant to enter Trump’s property. That affidavit would have laid out the evidence the DOJ had collected to show the extraordinary search of a former US president’s home was justified.

Both Republican legislators and news agencies have called for the affidavit to be unsealed, with the former calling for the document to be shown to Congress in classified briefings. Trump has also called for the release of the “unredacted” affidavit.

For their part, Justice Department lawyers have said the release would “cause significant and irreparable damage to this ongoing criminal investigation” by providing a “road map” to how investigators are approaching the probe. They have said the document contains “highly sensitive information about witnesses” and other evidence in the case.

What has been revealed about the investigation?

The DOJ has unsealed the search warrant and several accompanying legal documents related to the investigation, which showed the FBI seized 11 sets of classified documents from Mar-a-Lago, including some not only marked top secret but also “sensitive compartmented information” – a special category meant to protect the nation’s most important secrets that if revealed publicly could cause “exceptionally grave” damage to US interests.

The warrant also revealed exactly the possible violations Trump is being investigated for: A law banning the unauthorised removal or destruction of records from a federal office; a law prohibiting the falsification or destruction of records in a federal investigation; and the so-called Espionage Act, which bans “gathering, transmitting or losing” information related to defence with the intent the information could be used to harm US national security or interests.

Breaking any of the laws could result in a fine or jail time, with the combined offences carrying a maximum of 33 years in prison.

Why is there so much focus on the Espionage Act?

The Espionage Act, which was passed in 1917, has garnered particular attention in the wake of the investigation, with Republican Senator Rand Paul renewing perennial criticism of the law, which he called an “affront to the first amendment”.

Passed just weeks after the US’s entry into World War I, the law was used to stifle opposition to the conflict, according to the Free Speech Center at Middle Tennessee State University, notably through a provision that created criminal penalties for “anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval force”.

In the following decades, some high-profile cases have been prosecuted under the act, including those of Robert Hanssen and Aldrich Ames, who were both convicted of working as double agents for the KGB while infiltrating the FBI and CIA, respectively.

The law has in modern times more commonly been used to target individuals accused of leaking classified information, including former National Security Agency employee Edward Snowden, as well as Reality Winner, the woman who allegedly leaked classified information showing Russia interfered in the 2016 US election.

Can Trump run again for president amid the investigation?

The investigation has the potential to be a boon or bust for Trump’s possible 2024 presidential ambitions, with the former president and his supporters already touting the probe as further evidence that he is being unfairly targeted in an establishment “witch hunt”.

But what a conviction could mean for Trump’s possible candidacy remains unclear, a charge or conviction of a crime cannot, on its own, disqualify an individual from running for president in the US.

The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics.👇 pic.twitter.com/3BdI9NA9Az

— Marc E. Elias (@marceelias) August 9, 2022

Marc Elias, a Democratic Party elections lawyer, has noted that one of the violations for which Trump is being investigated, for the unauthorised removal or destroying of records from a public office, states someone convicted of the crime “shall forfeit his office and be disqualified from holding any office under the United States”.

However, Elias and other legal scholars have noted that the law would likely be overridden by the US constitution, which says the only requirement for a presidential candidate is that the individual is a natural-born citizen of the US, a resident for 14 years, and 35 years of age or older. However, Elias noted the situation could set Trump up for a lengthy legal battle amid a campaign.

Other legal scholars have noted that Trump’s alleged role in inciting the January 6, 2021 riot at the US Capitol, while not related to the FBI investigation in question, could be grounds for any election victory to be challenged, with Rick Hasen, a UCLA law professor, noting the 14th amendment of the US constitution bars from presidency anyone who has “previously taken an oath … as an officer of the United States … to support the Constitution of the United States” who then is “engaged in insurrection … against the same”.

What’s the deal with Trump’s passports?

Trump raised eyebrows this week when he said the FBI had “seized his three passports” during the Mar-a-Lago raid, noting one was expired.

Trump is not known to hold dual citizenship with any other country. At least one of the passports referenced possibly refers to the diplomatic passport issued to US presidents.

The passports had reportedly been returned to Trump as of Monday.