McCarthy Distorts Facts About DOJ Search of Mar-a-Lago

In questioning why the FBI “raid[ed] President Trump,” House Speaker Kevin McCarthy falsely claimed that government officials “could have come and taken” classified government documents stored at Donald Trump’s private club and residence in Florida “any time they wanted.”

In fact, FBI agents visited Mar-a-Lago on June 3, but a Trump lawyer refused to allow them to review — let alone take — dozens of boxes from the Trump White House that were being kept in a storage area. That incident was one of several factors that ultimately led the Department of Justice to obtain a court-approved search warrant on Aug. 5 to “raid President Trump” after many months of stonewalling.

McCarthy made his remarks Jan. 15 on Fox News’ “Sunday Morning Futures,” when host Maria Bartiromo asked the California Republican what he will do about the recent discovery of classified documents at President Joe Biden’s private office in Washington, D.C., and home in Wilmington, Delaware. The documents date to when Biden was vice president from Jan. 20, 2009, to Jan. 20, 2017.

As we have written, Biden’s attorneys found “a small number” of documents with classified markings “in a locked closet” on Nov. 2, when the lawyers were packing up the office that Biden “periodically used” at the Penn Biden Center in Washington, D.C., according to Richard Sauber, special counsel to the president. Sauber said the White House immediately notified the National Archives and Records Administration, which retrieved the documents the next day.

That discovery led Biden’s lawyers to search the president’s primary home in Wilmington and vacation home in Rehoboth Beach, Delaware. In Wilmington, the lawyers found more documents, which U.S. Attorney General Merrick Garland said were retrieved by the FBI. That brought the total number of documents with classified markings to about 20, according to CBS News.

In discussing Biden’s mishandling of classified documents, McCarthy accused the FBI of treating Trump differently than Biden.

McCarthy, Jan. 15: What’s real concerning to me is how justice is applied, and is it applied equally? Why do you raid President Trump? His wasn’t just locked. It was padlocked. They knew it was there. They could have come and taken it any time they wanted.

It is not true that “they” could come and take the documents from Mar-a-Lago’s padlocked storage area “any time they wanted.” The FBI tried that on June 3 and its agents were rebuffed by Trump’s attorney.

Let’s recap what happened that day, the events leading up to that visit, and how it resulted in the DOJ’s request for a search warrant.

On May 6, 2021, the National Archives made a request for missing presidential records “and continued to make requests until approximately late December 2021 when NARA was informed twelve boxes were found and ready for retrieval” at Mar-a-Lago, according to the Department of Justice’s affidavit requesting a warrant to search Mar-a-Lago.

Eight months after its initial request, NARA, on Jan. 18, 2022, received 15 boxes of records from Trump that had been taken from the White House to Mar-a-Lago, including “highly classified documents intermingled with other records,” according to DOJ’s affidavit.

After discovering the classified documents, NARA staff referred the matter to the Department of Justice. Trump’s attorney sought to block the Justice Department from getting access to the 15 boxes of records, but the acting national archivist in mid-May denied the request after a review of the facts.

On May 11, Trump’s office received a grand jury subpoena seeking additional documents “bearing classification markings,” according to a court filing by Trump’s attorneys.

In response to the subpoena, a Trump attorney met with Jay Bratt, chief of the counterintelligence and export control section in the DOJ’s National Security Division, and three FBI agents at Mar-a-Lago on June 3.

On that day, Trump’s attorney gave the government officials a single envelope that contained 38 unique classified documents, a court filing said. The Trump representative also gave them a signed certification that said a “diligent search was conducted” at Mar-a-Lago for “any and all documents that are responsive to the subpoena.” The letter also said “any and all responsive documents accompany this letter.”

During their June 3 visit, the government officials also toured a Mar-a-Lago storage room, which DOJ says contained about 50 to 55 boxes.

“Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained,” a DOJ court filing said.

In the court filing, DOJ also said: “Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.”

Shortly after the visit, “the FBI uncovered multiple sources of evidence indicating” that Trump’s “response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3,” the court filing said.

“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,” the DOJ said in court documents.

The June 3 visit — and all that preceded it and followed it — resulted in the DOJ seeking a search warrant for Mar-a-Lago.

“Against that backdrop, and relying on the probable cause that the investigation had developed at that time, on August 5, 2022, the government applied to Magistrate Judge Reinhart for a search and seizure warrant, which cited three statutes: 18 U.S.C. § 793 (Willful retention of national defense information), 18 U.S.C. § 2071 (Concealment or removal of government records), and 18 U.S.C. § 1519 (Obstruction of federal investigation),” a DOJ court document said.

In the Aug. 8 search, FBI agents retrieved 13 boxes that “contained documents with classification markings, and in all, over one hundred unique documents with classification markings — that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena,” according to a DOJ court filing. The materials were retrieved from the storage room and Trump’s office. (For more, read “Timeline of FBI Investigation of Trump’s Handling of Highly Classified Documents.”)

McCarthy may truly believe that justice wasn’t “applied equally” in Trump’s case. We have no way of knowing. But the fact is that the House speaker was wrong when he said government officials could have gone to Mar-a-Lago and retrieved classified documents “any time they wanted.”  

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