What the government’s former top classified records overseer sees in the Mar-a-Lago search

In a dramatic step, agents from the Federal Bureau of Investigation executed a sealed search warrant on Monday at Mar-a-Lago, the Florida property and residence of former president Donald Trump.

Initial reports indicated the search targeted classified records that were allegedly housed at Mar-a-Lago. More details have been slow to emerge, so questions have filled the void. What prompted the search? Wasn’t it an extreme measure? Can’t a president declassify documents?

To tackle these questions and more, Grid spoke with Bill Leonard, who served from 2002 to 2008 as the director of the National Archives and Records Administration’s Information Security Oversight Office, providing policy oversight of the government’s security classification system.

This interview has been edited for length and clarity.

Grid: What are the main unanswered questions in your view about this search that was executed?

Bill Leonard: What precipitated such drastic action? It appears that the government knew that additional information was there. The former president’s associates knew that the government knew that the material was there. I assume there were discussions back and forth and — again, just an assumption on my part — [there were] discussions back and forth in terms of recouping it.

For some reason, what would have been normal lawyer-to-lawyer type of discussions apparently broke down and resulted in an FBI raid — which, either it was a total boneheaded move by the FBI or there was something extraordinarily sensitive at play here that precipitated such a drastic action. That’s what’s intriguing.

An assumption on my part: There has to be some sort of basis in which the former president’s attorneys believe that there was some legal basis for the former president to continue to possess those documents. And it’d be interesting to see what they assert [as] legal precedent. Every president writes his memoirs and things along those lines. Those types of situations are routinely handled by the National Archives in terms of providing access — not just the former president, but to the former president’s associates, assistants who are helping in the writing of the memoirs, to access that material. I would assume that there’s some assertion of a legal basis for the president to continue to possess those records. What that would be, I have a hard time imagining.

G: Is there any precedent in your mind as to what we just saw at Mar-a-Lago?

BL: It is not uncommon for the government to execute search warrants in instances where they believe current or former government officials have information in their possession.

As a matter of fact, a number of years ago, I served as an expert witness for the defense in the Thomas Drake case where the government did, in fact, execute a search warrant and confiscated information that they represented or asserted was classified. But in that case, I was prepared to testify in court that the information was, in fact, not classified. And of course, those charges were eventually dismissed. But that’s just one example where it’s not unusual for the government to exercise search warrants to obtain repossession of information that they believe is classified.

But for the case of this to happen with a former president is clearly unprecedented.

The closest precedent would be Sandy Berger, the former national security adviser, who pleaded guilty to secreting a highly classified document out of the National Archives, out of the presidential records office. The irony of that is, I was in my office in the National Archives building. Based upon news reports, he literally stood under my window and inserted the document into his sock. If I had just glanced out the window at that precise moment, I could have seen my former national security adviser stealing [the records].

G: Why do you think a search warrant was issued in this case, as opposed to a subpoena in trying to obtain these documents?

BL: That has been the one thing that I find so very troubling, trying to understand a rationale for that. The most logical approach, in my mind, especially involving any senior former government official — let alone the former president, would be to pursue civil action.

It would be pure speculation on my part. But two reasons I could imagine is that either the government has reason to believe that unless they acted swiftly, the information will be destroyed or conveyed to unauthorized individuals. Or, likewise, the government had reason to believe that the information was so sensitive and that they could not continue to endure the risk that it would become compromised — even inadvertently — due to the fact that it was not being securely stored.

G: What responsibilities do former presidents have with regard to handling of classified presidential records upon leaving office?

BL: Ever since the time of Nixon, the records from the Office of the President do not belong to the president, they are federal records, protected by law, and they remain in the possession of the United States government.

Typically, they are required to be turned over to the custody of the National Archives and Records Administration [NARA]. NARA serves as custodians of those records, and eventually tradition has been that those records eventually become accessible to researchers and other members of the public, usually through a presidential library.

G: What is the importance of abiding by these laws governing the proper handling of classified documents when the president leaves office?

BL: The Presidential Records Act does not make a distinction between classified or unclassified records. All records, regardless of their classification status, are important in that they give a historical accounting of exactly what transpired during the course of a particular administration and allow individuals and successive generations to learn from those experiences of the prior administration.

The importance of classified records is twofold. No. 1, especially for more recent administrations, classified records, by their very nature, would still require protection in the interest of national security because they could cause a harm to our nation’s security if accessed by individuals who are intent on using them from harm. But also, eventually classified records need to go through a process to officially declassify them, so they can likewise become accessible to researchers and other members of the public to have a more full understanding of what transpired during the course of a particular administration.

G: Just to clarify, because there seems to be some confusion about this: Can a former president declassify records after leaving office?

BL: Quite frankly, there’s a little bit of confusion even as to what authority an incumbent president has. I’ve seen it referenced in some quarters that presidents have unilateral authority to declassify information at will or even at whim. That’s not even accurate.

There is some classified information that is classified not necessarily pursuant to the President’s Article Two constitutional authority as commander in chief and chief official responsible for foreign relations. And the most notable example of that would be information relating to nuclear weapons, atomic energy — that information is protected by virtue of statute. There is other information that’s protected by virtue of statute, for example, the identity of covert U.S. intelligence operatives. That sort of information and other sensitive intelligence sources and methods are protected pursuant to law, not necessarily protected pursuant to the president’s unilateral classification authority. And likewise, there’s some information that we receive from foreign governments that is protected pursuant to international treaty or bilateral treaties, that likewise carry the force of law.

So even an incumbent president does not have total, unfettered authority to declare information unclassified at will. Certainly, a former president has no authority to declassify any sort of information.

Thanks to Lillian Barkley and Alicia Benjamin for copy editing this article.