Quick Take
There’s no evidence the White House aided or had prior knowledge of the FBI’s search of Mar-a-Lago in August 2022. By law, the White House requested access for the FBI to review the classified documents that former President Donald Trump turned over seven months earlier. That doesn’t mean the White House was “involved” in the “raid” that came later and “lied” about it, as a conservative commentator claimed.
Full Story
The National Archives and Records Administration negotiated with representatives for former President Donald Trump throughout 2021 for the return of presidential records that should have been given to NARA when Trump left office. NARA was finally able to get back 15 boxes of materials from Trump’s team in January 2022.
When NARA noticed hundreds of pages of classified documents in the boxes, NARA’s Office of the Inspector General on Feb. 9, 2022, referred the matter to the Department of Justice. The DOJ then launched its criminal investigation into Trump’s handling of the documents, which were taken to Mar-a-Lago – his private club and residence in Palm Beach, Florida — when Trump’s presidency ended.
So that the FBI and other intelligence officials could review the boxes of documents that were transferred to NARA’s custody, the DOJ, as authorized by federal law, asked the White House to submit a “special access request” to NARA, the official custodian of presidential records. NARA said the White House submitted the request in April 2022 and access was subsequently granted to the FBI by NARA’s acting archivist.
The request for access to those particular documents doesn’t have anything to do with other classified documents that were later seized from Trump’s Florida estate on Aug. 8, 2022, when the FBI executed a search warrant that was obtained from a federal judge. FBI officials sought the warrant after Trump and his representatives failed to return additional classified documents and presidential records that were still at Mar-a-Lago.
However, some conservative commentators and groups have falsely claimed or suggested that recently obtained communications discussing the access request from last spring show that the White House was directly involved in, or had prior knowledge of, the FBI search of Mar-a-Lago last summer.
“It appears the White House used this special access request, where the White House says, ‘Hey, we need to get access to the prior administration’s stuff to make a decision now.’ They pulled that stunt to get this Mar-a-Lago raid … so that they could go in there,” Dan Bongino, a conservative political commentator, said in a video posted to his website’s Facebook page on April 12.
Bongino, whose Facebook video had received roughly 99,000 views as of April 18, based his claim on information obtained by the conservative group America First Legal. He said the information “reveals that the Biden White House was involved with the Mar-a-Lago raid, and that the NARA, the National Archives, misled Congress” about its own participation.
America First Legal, which was started by former Trump White House advisers, made the same claim in the headline of an April 10 press release about emails and other records it recently procured from NARA through a request under the Freedom of Information Act.
But the FOIA documents do not show that the White House was behind the FBI’s search of Mar-a-Lago last year, or that President Joe Biden and other White House officials were “lying” about not having advance notice that Trump’s home would be searched, as Bongino and others also claimed.
The Press Release
America First Legal’s press release highlighted an Aug. 23, 2022, email it obtained from NARA. In the email, NARA’s general counsel, Gary Stern, informed his NARA colleagues that the Washington Post had published a story mentioning an email he sent to Trump’s representatives about a “special access request for the 15 Trump boxes” months earlier.
“On April 12, an Archives official emailed [former White House deputy counsel Pat] Philbin and John Eisenberg, another former deputy White House counsel, to tell them the Justice Department, via the Biden White House, had made the request,” the Post’s Aug. 23 story said. “The email offered the lawyers the opportunity to view the documents as well, but said the documents were too sensitive to be removed from the agency’s secure facility.”
In its press release, America First Legal went on to say, “It appears that the Biden White House and DOJ coordinated to obtain the Trump records and perhaps create a pretext for the law enforcement raid by way of a ‘special access request.’”
But as we said, the White House’s request for access was about allowing the FBI to review the 15 boxes of documents that NARA took possession of in January 2022 – not any classified documents that would later be recovered from Mar-a-Lago.
The ‘Special Access Request’
Once NARA discovered the boxes contained classified national security information, its Office of the Inspector General notified the Justice Department, which launched a criminal investigation.
The DOJ then asked the Biden White House to request that NARA provide the FBI with access to the boxes. That’s because, under the Presidential Records Act of 1978, executive branch departments and agencies, under certain conditions, can request special access to records in NARA custody through the sitting president, not through NARA.
The Presidential Records Act is the same federal law that says presidential records are the property of the government and requires the archivist of the U.S. to take custody of all such records when a president leaves office.
The White House, through its counsel’s office, formally asked NARA on April 11, 2022, to “provide the FBI access to the 15 boxes” that came from Mar-a-Lago, according to Debra Steidel Wall, the acting archivist. The following day, NARA informed Trump’s representatives that the agency would be making the documents available during the week of April 18, 2022.
But Trump’s team then proceeded to block the FBI from gaining access by requesting extensions to review the documents to determine if any were covered by executive privilege.
On April 29, 2022, the DOJ’s national security division explained to Trump’s representatives why it needed access to the documents.
“There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials,” the DOJ’s national security division told the Trump team.
The national security division added: “According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.”
Finally, on May 10, Steidel Wall wrote to Evan Corcoran, one of Trump’s representatives, and said that Biden, given Trump’s executive privilege claims, had deferred a final ruling on the matter to her. Steidel Wall then explained that, after consulting with the assistant attorney general for the Office of Legal Counsel, she determined there was no reason to further delay granting access to the FBI, rejecting the former president’s assertion of executive privilege.
She informed Corcoran that the FBI would be able to review the boxes within days.
America First Legal has argued that the special access request may have been used illegally in this case.
“The special access statute authorizes special access requests to an incumbent president only when the records in question are needed for ‘the conduct of current business’ of the White House,” its press release said. “Providing documents to the DOJ for purposes of a criminal investigation is not the ‘current business’ of the White House.”
In addition, Bongino’s video featured a clip of Jeff Clark, director of litigation for the conservative Center for Renewing America, who argued that the DOJ should have requested access to the documents via a subpoena, which is another option for gaining special access to presidential records.
However, in her letter, Steidel Wall said that the conditions for granting access via a request from the White House were “satisfied here” because, as the DOJ’s security division explained to Trump’s team, access also was necessary to “conduct an assessment of the potential damage” to national security “and take any necessary remedial steps.”
When they examined the contents in mid-May, FBI agents identified “184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET.”
Steidel Wall’s letter detailing the access request is not new information, as some have suggested. For example, the Bongino Report’s Facebook post had the headline: “EXPLOSIVE FOIA Request Exposes Biden Lie About Mar-a-Lago Raid.”
The request for FBI access has been public information for more than seven months.
John Solomon, a conservative writer and another one of Trump’s representatives to NARA, obtained the text of Steidel Wall’s letter and published it on his Just The News website on Aug. 22, 2022. NARA published the letter on its own website the next day, and the letter received press coverage at the time — including the Washington Post story mentioned in the email that America First Legal featured in its press release.
The Search of Mar-a-Lago
Furthermore, the White House’s request also was not the reason the Justice Department launched its investigation of Trump that led to the FBI searching Mar-a-Lago.
“Until the White House did this, this was an administrative dispute between the Archives and Trump,” Tom Fitton, president of Judicial Watch, a conservative nonprofit organization, said in an April 12 interview with Glenn Beck. A clip of the exchange between Fitton and Beck has been viewed about 32,000 times on Facebook and over 49,000 times on Twitter.
“The Biden White House intervened to allow a criminal investigation of Trump by the Justice Department. It wouldn’t have happened but for White House intervention,” Fitton said.
But the access request came after the DOJ’s investigation had already begun.
That was made clear in the affidavit that the FBI filed to convince a federal judge to issue the warrant that allowed agents to search Trump’s property. A redacted version of the affidavit, which was unsealed weeks after the search, says:
FBI affidavit, Aug. 5, 2022: After an initial review of the NARA Referral, the Federal Bureau of Investigation (FBI) opened a criminal investigation to, among other things, determine how the documents with classification markings and records were removed from the White House (or any other authorized location(s) for the storage of classified materials) and came to be stored at the PREMISES; determine whether the storage location(s) at the PREMISES were authorized locations for the storage of classified information; determine whether any additional classified documents or records may have been stored in an unauthorized location at the PREMISES or another unknown location, and whether they remain at any such location; and identify any person(s) who may have removed or retained classified information without authorization and/or in an unauthorized space.
In fact, on May 11, 2022, as part of the FBI’s investigation, Trump’s office received a separate grand jury subpoena for additional classified records that the government believed were still stored at Trump’s Florida residence. That happened before the FBI was finally able to review the first 15 boxes of documents about a week later.
After requesting and being granted additional time to comply with the subpoena, a lawyer for Trump met with a DOJ lawyer and FBI agents who traveled to Mar-a-Lago on June 3. Trump’s representatives gave the officials an envelope containing dozens of additional classified documents that were found by Trump’s team in a storage room.
According to a DOJ court filing, Trump’s representatives, in a certification letter, told the agents that a “diligent search was conducted” for “all documents that are responsive to the subpoena.” Counsel for Trump also told the agents “there were no other records stored in any private office space or other location” inside Mar-a-Lago, the DOJ recounted in the court filing.
Following the meeting, however, government authorities “developed evidence” that more classified documents remained at the Florida property, according to a subsequent DOJ court filing. The FBI eventually requested the warrant to conduct its own search, and the search warrant was signed and approved by a federal judge in Florida on Aug. 5.
According to the redacted affidavit, the FBI argued there was probable cause to believe classified documents and other presidential records remained at Mar-a-Lago, and that a search would yield evidence of multiple crimes, including obstruction.
FBI agents executed the search warrant on Aug. 8, seizing 13 additional boxes that “contained documents with classification markings, and in all, over one hundred unique documents with classification markings … more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena,” according to another DOJ court filing.
White House Denials
On Aug. 9, the day after the FBI’s search, White House Press Secretary Karine Jean-Pierre said in a press briefing that White House officials learned of the search from news reports and that “no one at the White House was given a heads up,” including the president. “No, that did not happen,” she said.
Biden later said himself that he did not have advance notice of the FBI’s plans. “None. Zero. Not one single bit,” he said while taking questions from White House reporters on Aug. 25.
But in the video from his show, Bongino said the information America First Legal got through a FOIA request showed that Jean-Pierre and the White House were caught “lying” about being “stunned by the “Mar-a-Lago raid.”
That information is not evidence that the White House knew the FBI search was going to happen.
As Jean-Pierre said in an Aug. 29, 2022, press briefing, the access request for the FBI, which was mentioned in Steidel Wall’s letter and Stern’s email, is “completely different” from the search that happened later.
The request was for the review of a separate set of documents than those recovered from Mar-a-Lago by FBI agents in August, and the request came after the Justice Department had already opened its criminal investigation into Trump’s handling of presidential records after leaving office.
None of that means the White House used the special access request “to get this Mar-a-Lago raid,” as Bongino said, or that the FBI search “wouldn’t have happened” otherwise, as Fitton claimed. The FBI was merely following the law when it requested special access to records in NARA custody through the White House.
Other fact-checkers have previously written about similar false social media claims.
Editor’s note: FactCheck.org is one of several organizations working with Facebook to debunk misinformation shared on social media. Our previous stories can be found here. Facebook has no control over our editorial content.
Sources
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