[House Report 117-491]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-491
======================================================================
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT AND DIRECTING ATTORNEY
GENERAL MERRICK B. GARLAND TO TRANSMIT, RESPECTIVELY, A COPY OF THE
AFFIDAVIT TO THE HOUSE OF REPRESENTATIVES RELATED TO THE RAID ON THE
FORMER PRESIDENT
_______
September 22, 2022.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
MINORITY VIEWS
[To accompany H. Res. 1325]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 1325) of inquiry requesting the President
and directing Attorney General Merrick B. Garland to transmit,
respectively, a copy of the affidavit to the House of
Representatives related to the raid on the former President,
having considered the same, reports unfavorably thereon with
amendments and recommends that the resolution as amended not be
agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
Committee Estimate of Budgetary Effects.......................... 7
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 7
Duplication of Federal Programs.................................. 7
Performance Goals and Objectives................................. 7
Advisory on Earmarks............................................. 7
Section-by-Section Analysis...................................... 7
Minority Views................................................... 7
The amendments are as follows:
Strike all after the resolving clause and insert the
following:
That President Joseph R. Biden is requested, and the Attorney General
Merrick B. Garland is directed, to transmit to the House of
Representatives, not later than 14 days after the date of adoption of
this resolution, a copy of the affidavit submitted for the warrant on
former President Donald J. Trump to the extent that any such affidavit
is within the possession of the President or the Department of Justice,
respectively.
Amend the title so as to read: Resolution of inquiry
requesting President Joseph R. Biden and directing Attorney
General Merrick B. Garland to transmit a copy of the affidavit
to the House of Representatives related to the raid on former
President Donald J. Trump.
Purpose and Summary
H. Res. 1325 is a non-binding resolution of inquiry that
requests President Joe Biden and directs Attorney General
Merrick Garland to transmit to the House of Representatives a
copy of the affidavit related to the raid on former President
Donald J. Trump.
Background and Need for the Legislation
Resolutions of inquiry, if properly drafted, are given
privileged parliamentary status in the House. This means that,
under certain circumstances, a resolution of inquiry can be
considered on the House floor even if the committee to which it
was referred has not ordered the resolution reported and the
majority party's leadership has not scheduled it for
consideration. Clause 7 of House rule XIII requires the
committee to which the resolution is referred to act on the
resolution within 14 legislative days, or a motion to discharge
the committee from consideration is considered privileged on
the floor of the House. In calculating the days available for
committee consideration, the day of introduction and the day of
discharge are not counted.\1\ The 117th Congress operated under
temporary procedures ``that effectively `turned off' the 14-day
deadline'' for resolutions of inquiry until July 19, 2022.\2\
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\1\Wm. Holmes Brown, et al., House Practice: A Guide to the Rules,
Precedents, and Procedures of the House ch. 49, Sec. 6, p. 834 (2011).
\2\Christopher M. Davis, Resolutions of Inquiry in the House, Cong.
Rsch. Serv. 1 (Jul. 21, 2022), https://crsreports.congress.gov/product/
pdf/IN/IN10661/4.
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Under the Rules and precedents of the House, a resolution
of inquiry is a means by which the House requests information
from the President of the United States or the head of one of
the executive departments. According to Deschler's Precedents,
it is a ``simple resolution making a direct request or demand
of the President or the head of an executive department to
furnish the House of Representatives with specific factual
information in the possession of the executive branch.''\3\
Such resolutions must ask for facts, documents, or specific
information; they may not be used to request an opinion or
require an investigation.\4\ Resolutions of inquiry are not
akin to subpoenas; they have no legal force and thus compliance
by the Executive Branch with the House's request for
information is purely voluntary.
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\3\7 Deschler's Precedents of the United States House of
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., ch. 24,
Sec. 8.
\4\A resolution that seeks more than factual information does not
enjoy privileged status. Brown, supra note 1, at 833-34.
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According to a study conducted by the Congressional
Research Service (CRS), between 1947 and 2017, 313 resolutions
of inquiry were introduced in the House.\5\ Within this period,
CRS found that ``two periods in particular, 1971-1975 and 2003-
2006, saw the highest levels of activity on resolutions of
inquiry'' and that ``the Committees on Armed Services, Foreign
Affairs, and the Judiciary have received the largest share of
references.''\6\ CRS further found that ``in recent Congresses,
such resolutions have overwhelmingly become a tool of the
minority party in the House.''\7\
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\5\Christopher M. Davis, Resolutions of Inquiry: An Analysis of
Their Use in the House, 1947-2017, Cong. Rsch. Serv. R40879, at i (Nov.
9, 2017), https://sgp.fas.org/crs/secrecy/R40879.pdf.
\6\Id.
\7\Id.
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A committee has a number of choices after a resolution of
inquiry is referred to it. It may vote on the resolution up or
down as introduced or it may amend it, and it may report the
resolution favorably, unfavorably, or with no recommendation.
The fact that a committee reports a resolution of inquiry
adversely does not necessarily mean that the committee opposes
looking into the matter. In the past, resolutions of inquiry
have frequently been reported adversely for several reasons.
The two most common reasons are substantial compliance and
competing investigations.
House Resolution 1325 was introduced by Representative Paul
Gosar (R-AZ) on August 23, 2022. It requests a copy of the
affidavit submitted for the warrant on former President Trump
from President Biden and Attorney General Garland no later than
14 days after the date of adoption of the resolution.
The affidavit requested by this resolution was already
released by the Department of Justice (DOJ) on August 26, 2022,
three days after H. Res. 1325 was introduced. In it, the
Federal Bureau of Investigation (FBI) stated that it ``is
conducting a criminal investigation concerning the improper
removal and storage of classified information in unauthorized
spaces, as well as the unlawful concealment and removal of
government records,'' concluding that, ``Probable cause exists
to believe that evidence, contraband, fruits of crime, or other
items illegally possessed'' were on the premises of former
President Trump's Mar-a-Lago resort.\8\
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\8\``Over 180 classified docs removed by National Archives from
Mar-a-Lago, affidavit says,'' NPR. Aug. 26, 2022.
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Former President Trump, is alleged to have left office with
hundreds of classified documents, including some related to
nuclear weapons programs, files with significantly limited
access, and information from protected human intelligence
sources.\9\ The National Archives and Records Administration
engaged with former President Trump's team beginning in early
2021 and asked DOJ to investigate in early 2022 after it
received classified materials, found files that had been torn
up, and realized that other important documents were
missing.\10\ Before the FBI search on August 8, 2022, attorneys
for President Trump claimed in writing that all classified
documents had been removed from the Mar-a-Lago resort. This
assertion was disproven after the FBI found over 100 classified
documents in Donald Trump's offices and personal quarters at
Mar-a-Lago.\11\
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\9\Devlin Barrett, et al., ``FBI searched Trump's home to look for
nuclear documents and other items, sources say,'' The Wash. Post. Aug.
12, 2022.
\10\Marshall Cohen, et al., ``Timeline: The Justice Department
criminal inquiry into Trump taking classified documents to Mar-a-
Lago,'' CNN. Sep. 20, 2022.
\11\Id.
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Keeping the classified documents pertaining to the United
States' national security in an unsecured office at a resort is
dangerous to our national security. The state secrets Donald
Trump took from the White House included information from human
sources--the same individuals who are disappearing at a rapid
rate for unknown reasons. In 2021, a top-secret CIA memo warned
about troubling numbers of informants being captured or killed,
including networks of human intelligence sources in China,
Iran, and Pakistan.\12\ The precarious state of our national
intelligence apparatus warrants increased security, which was
not possible while these documents were stored at the Mar-a-
Lago Resort.
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\12\Julian E. Barnes and Adam Goldman, ``Captured, Killed or
Compromised: C.I.A. Admits to Losing Dozens of Informants,'' N.Y.
Times. Oct. 5, 2021.
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In spite of Donald Trump's multiple alleged violations of
United States law, refusal to cooperate with DOJ investigators,
and potential endangerment of American national security,
conservatives in politics, on social media, and on cable news
have viciously attacked FBI personnel. Florida Governor Ron
DeSantis recently called the FBI investigation ``another
escalation in the weaponization of federal agencies against the
Regime's political opponents.''\13\ The sponsor of this
resolution, Congressman Paul Gosar, tweeted, ``Failure is not
an option. We must destroy the FBI.''\14\ Finally, members of
the House Judiciary Committee have gone so far as to accuse the
FBI and DOJ of weaponizing ``their powers against Americans who
disagree with them politically''\15\ and ``acting as the
political enforcers of the Democrat Party.''\16\
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\13\Ron DeSantis (@RonDeSantisFL), Twitter (Aug. 8, 2022, 8:43 PM),
https://twitter.com/RonDeSantisFL/status/
1556803433939755010?s=20&t=J5GO3C2WHo7A_Op9U1RWDg.
\14\Paul Gosar (@PaulGosar), Twitter (Aug. 8, 2022, 9:57 PM),
https://twitter.com/RepGosar/status/1556821907726630915.
\15\Andy Biggs (@RepAndyBiggsAZ), Twitter (Aug. 9, 2022, 10:38 AM),
https://twitter.com/RepAndyBiggsAZ/status/1557013466694778880.
\16\Dan Bishop (@RepDanBishop), Twitter (Aug. 8, 2022, 8:51 PM),
https://twitter.com/RepDanBishop/status/1556805300681940992.
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Far right extremists on the internet have made increasingly
violent threats against federal law enforcement since the FBI
search of Mar-a-Lago on August 8, 2022. References on social
media to terms like ``armed rebellion,'' ``revolution,'' ``lock
and load,'' and ``civil war'' went up 106 percent in the month
following the Mar-a-Lago search.\17\ These threats have
included calls to ``take out'' specific FBI personnel and
threats to the children of FBI agents, among other
violence.\18\ These threats have also resulted in physical
attacks. Three days after the FBI searched Mar-a-Lago, a right-
wing extremist Trump supporter attacked the FBI's Cincinnati
field office with an AR 15-style rifle, and five days after the
FBI search, armed protesters gathered outside the FBI field
office in Phoenix, Arizona.\19\
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\17\Elwood Watson, ``Violent threats increase in wake of Mar-A-Lago
search,'' Midland Daily News. Sep. 7, 2022.
\18\Jacob Rosen and Nicole Sgagna, ``Online violent extremist
rhetoric soars after Mar-a-Lago search,'' CBS News. Aug. 12, 2022.
\19\Joshua Zitser, ``Armed Trump supporters protest outside FBI
office in Phoenix following Mar-a-Lago raid: reports,'' Business
Insider. Aug. 14, 2022.
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Because of these threats and attacks, on August 12th, FBI
and DHS released a joint bulletin warning of an increase in
domestic terror threats against the FBI since the search of
Donald Trump's offices at Mar-a-Lago, including ``an increase
in violent threats posted on social media against federal
officials and facilities, including a threat to place a so-
called dirty bomb in front of FBI Headquarters and issuing
general calls for `civil war' and `armed rebellion.''\20\
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\20\Olafimihan Oshin, ``FBI, DHS warn of increase in threats to
federal law enforcement officials after Mar-a-Lago search: reports,''
The Hill. Aug. 14, 2022.
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The Judiciary Committee and the House should not needlessly
request information that is already available to the public.
Moreover, resolutions of inquiry should not be used to
undermine ongoing investigations of wrongdoing, even when the
person being investigated is the former President.
Hearings
The Committee on the Judiciary held no hearings on H. Res.
1325.
Committee Consideration
On September 21, 2022, the Committee met in open session
and ordered the resolution, H. Res. 1325 unfavorably reported
with an amendment by a rollcall vote of 20 to 14, a quorum
being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following rollcall vote occurred during the Committee's
consideration of H. Res. 1325:
1. A motion to report H. Res. 1325 unfavorably passed by a
rollcall vote of 20 to 14. The vote was as follows:
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d) of House rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause 3(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
by not received from the Director of the Congressional Budget
Office a budgetary analysis and a cost estimate of this
resolution.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H. Res. 1325 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H. Res. 1325 requests President Joe Biden and
directs Attorney General Merrick Garland to transmit to the
House of Representatives a copy of the affidavit related to the
raid on former President Trump.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H. Res. 1325
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(e),
9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the resolution as
reported by the Committee.
H. Res. 1325, a non-binding resolution of inquiry, requests
President Biden and directs Attorney General Garland to
transmit to the House of Representatives a copy of the
affidavit related to the raid on former President Trump.
Minority Views
H. Res. 1325 requests that President Biden, and directs
Attorney General Merrick Garland to, provide a copy of the
affidavit to the House of Representatives related to the FBI's
raid of President Trump's private residence. This resolution
will assist the Committee's oversight of the FBI's
unprecedented raid of President Trump's residence--a shocking
escalation of the Biden Administration's weaponization of law-
enforcement resources against its political opponents.
On August 15, 2022, Committee Republicans wrote Attorney
General Garland, FBI Director Christopher A. Wray, and White
House Chief of Staff Ronald Klain requesting documents and
communications related to the FBI's raid of President Trump's
residence.\1\ The Department, FBI, and White House have all
failed to comply with this request to date. During the
Committee's business meeting to consider H. Res. 1325, Chairman
Nadler misleadingly argued that ``the affidavit has now been
made public,''\2\ ignoring that large portions of the publicly
available affidavit remain heavily redacted. The unredacted
affidavit is necessary to fully understand the basis for the
FBI's unprecedented action and to conduct effective oversight
of the federal law enforcement apparatus. The Committee should
not have reported H. Res. 1325 unfavorably.
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\1\See Letter from Rep. Jim Jordan et al, Ranking Member, H. Comm.
on the Judiciary, to Hon. Merrick Garland, Atty Gen., U.S. Dep't of
Justice (Aug. 15, 2022); Letter from Rep. Jim Jordan et al, Ranking
Member, H. Comm. on the Judiciary, to Dir. Christopher Wray, Fed.
Bureau of Investigation (Aug. 15, 2022); and Letter from Rep. Jim
Jordan et al, Ranking Member, H. Comm. on the Judiciary, to Ronald
Klain, Chief of Staff, White House (Aug. 15, 2022).
\2\H. Res. 1238 et al., markup before the S. Comm. on Judiciary,
117th Cong. (Sept. 14, 2022) (statement of the Hon. Jerrold Nadler,
Chairman, H. Comm. on the Judiciary).
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THE FBI'S UNPRECEDENTED RAID
On August 8, 2022, the FBI raided President Trump's Mar-a-
Lago residence in Palm Beach, Florida, purportedly to seize
government and presidential records.\3\ In the process, the FBI
seized numerous other materials such as books, magazines,
newspapers, clothing and gifts, and privileged documents.\4\
This unprecedented raid occurred after months of ongoing
discussions and negotiations between President Trump's
representatives and the National Archives and Records
Administration (NARA) about material from his time office.\5\
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\3\Stephanie Pagones et al, FBI raids Trump's Mar-a-Lago:
`Unprecedented' for agency to execute search warrant against former
president, Fox News (AUG. 8, 2022); Deepa Shivram, Trump says FBI
agents searched his Mar-a-Lago home in Florida, NPR (Aug. 8, 2022).
\4\Sadie Gurman et al, Court Releases Detailed FBI Inventory of
Material Seized at Trump's Mar-a-Lago, Wall St. J. (Sept. 2, 2022).
\5\Order, Donald J. Trump v. U.S., No. 22-81294-CIV-CANNON at 2
(S.D. Fla. Sept. 5, 2022); Motion for Judicial Oversight and Additional
Relief, In the Matter of the Search of Mar-a-Lago, No. 22-cv-81294-AMC
(S.D. Fla. Aug. 22, 2022).
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The Biden Department of Justice has provided limited
justification for this unprecedented action through a heavily
redacted warrant affidavit and selective leaks to favored media
outlets.\6\ The affidavit alleged probable cause to suspect
evidence of violations of three federal crimes relating to
federal records--misuse of national defense information;
obstruction of justice by destroying, altering, or falsifying
records related to a federal probe; and concealing, removing,
or destroying protected federal documents.\7\ The affidavit
also alleged probable cause to suspect of evidence of
obstruction.\8\ However, the unredacted portions of the
affidavit provide little context for these allegations and are
wholly insufficient to support for the FBI's unprecedented
action.
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\6\See Devlin Barrett, Josh Dawsey, Perry Stein, & Shane Harris,
FBI searched Trump's home to look for nuclear documents and other
items, sources say, Wash. Post (Aug. 11, 2022); Maggie Haberman, Jodi
Kantor, Adam Goldman, & Ben Protess, Trump Had More Than 300 Classified
Documents at Mar-a-Lago, New York Times (Aug. 22, 2022).
\7\Affidavit in support of an application under Rule 41 for a
warrant to search and seize, In the Matter of the Search of: Locations
Within the Premises to be Searched in Attachment A, p. 7-8 (S.D. Fla.)
(unsealed Aug. 26, 2022, Sept. 13, 2022); see also 18 U.S.C. Sec. Sec.
793, 2071, and 1519.
\8\Id.; see also Editorial Board, The Mar-a-Lago Affidavit: Is That
All There Is?, Wall St. J. (Sept. 12, 2022).
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The Biden Department of Justice has hidden behind a formal
policy of not commenting on the investigation, while it has
simultaneously engaged in selective leaks of salacious
accusations. On August 11, 2022, Attorney General Garland
addressed the search for the first time, stating, ``I have made
clear that the Department of Justice will speak through its
court filings and its work.''\9\ On the same day, however, the
Washington Post reported that FBI agents were seeking
``classified documents relating to nuclear weapons,''\10\
according to leaks from ``people familiar with the
investigation.'' The New York Times later reported that
President Trump ``had more than 300 classified documents at
Mar-a-Lago,'' according to leaks from ``people briefed on the
matter.''\11\
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\9\Press Release, Attorney General Merrick Garland Delivers
Remarks, U.S. Department of Justice (Aug. 11, 2022).
\10\Devlin Barrett, Josh Dawsey, Perry Stein, & Shane Harris, FBI
searched Trump's home to look for nuclear documents and other items,
sources say, Wash. Post (Aug. 11, 2022).
\11\Maggie Haberman, Jodi Kantor, Adam Goldman, & Ben Protess,
Trump Had More Than 300 Classified Documents at Mar-a-Lago, New York
Times (Aug. 22, 2022).
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The Department's affidavit and subsequent media leaks do
not explain why a raid was necessary in light of ample evidence
of cooperation. In January 2022, President Trump transferred 15
boxes of documents from Mar-a-Lago to NARA.\12\ In February
2022, NARA issued a public statement noting the cooperation of
President Trump in the identification and submission of certain
documents.\13\ In fact, his submission of material was over
inclusive. According to NARA, this submission included personal
and post-presidential records, along with presidential
correspondence and documents with classification markings.\14\
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\12\Id.
\13\Press Release, Attorney General Merrick Garland Delivers
Remarks, U.S. Department of Justice (Aug. 11, 2022).
\14\Id. at 7-8.
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Subsequently, in May 2022, President Trump voluntarily
accepted service of a grand jury subpoena that sought documents
bearing classification markings.\15\ Throughout June 2022, the
Department and President Trump's lawyers engaged in discussions
about the matter.\16\ On June 3, the FBI visited Mar-a-largo
and President Trump allowed them to inspect his storage
room.\17\ President Trump also provided responsive documents
during the visit.\18\ On June 8, the FBI requested that
President Trump further secure the storage room, which he
did.\19\ President Trump also made his staff available for
voluntarily interviews.\20\ On June 22, the FBI subpoenaed
surveillance footage from cameras at Mar-a-Largo.\21\ The Trump
Organization voluntarily accepted the subpoena and provided the
footage.\22\ On September 13, a federal judge unsealed a some
more portions of the affidavit--although still largely
redacted--that showed President Trump had returned even more
documents to the Department than previously known.\23\
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\15\Id. at 3; see also Motion for Judicial Oversight and Additional
Relief at 5, In the Matter of the Search of Mar-a-Lago, No. 22-cv-
81294-AMC (S.D. Fla. Aug. 22, 2022).
\16\See generally, Motion for Judicial Oversight and Additional
Relief at 5, In the Matter of the Search of Mar-a-Lago, No. 22-cv-
81294-AMC (S.D. Fla. Aug. 22, 2022).
\17\Id. at 5.
\18\Id.
\19\Id. at 6.
\20\Id.
\21\Id.
\22\Id.
\23\Affidavit in support of an application under Rule 41 for a
warrant to search and seize, In the Matter of the Search of: Locations
Within the Premises to be Searched in Attachment A, p. 7-8 (S.D. Fla.)
(unsealed Aug. 26, 2022, Sept. 13, 2022. (``Since the fifteen boxes
were provided to [National Archives], documents bearing classifications
markings, which appear to contain [national defense information] and
were stored at the premises in an unauthorized location, have been
produced to the government in response to a grand jury subpoena....''
``On July 6, 2022, in response to the subpoena [served on June 24,
2022], representatives of the Trump Organization provided a hard drive
to FBI agents.''). Id. at 2, 23.
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Despite this cooperation, Attorney General Garland
personally approved the decision to escalate the matter by
seeking a warrant for excessive and unprecedented access to
President Trump's private residence.\ 24\ FBI agents spent
approximately nine hours rummaging through President Trump's
personal belongings.\25\ They collected more than 11,000
documents, more than 1,600 press articles and printed
materials, 19 items of clothing or gifts, and 33 books.\26\
They also collected about 100 documents with classification
markings.\27\
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\24\Press Release, Attorney General Merrick Garland Delivers
Remarks, U.S. Department of Justice (Aug. 11, 2022). During Garland's
confirmation hearing, he vowed not to weaponize the Justice Department
to target the Biden Administration's political opponents. Garland
promised that the Justice Department (``will be under my protection for
the purpose of preventing any kind of partisan or other improper motive
in making any kind of investigation or prosecution. That's my vow.
That's the only reason I'm willing to do this job.''). Jeremy Herb,
Garland vows at confirmation hearing to keep politics out of DOJ while
drawing bipartisan praise, CNN (Feb. 22, 2021).
\25\Motion for Judicial Oversight and Additional Relief, In the
Matter of the Search of Mar-a-Lago, No. 22-cv-81294-AMC at 8 (S.D. Fla.
Aug. 22, 2022).
\26\Samuel Chamberlain and Emily Crane, Detailed inventory of Trump
Mar-a-Lago FBI raid released, N.Y. Post (Sept. 2, 2022).
\27\Phillip Bump, Trump's classified Mar-a-Lago documents,
catalogued, Wash. Post (Sept. 2, 2022).
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THE PRESIDENTIAL RECORDS ACT
The FBI's unprecedented raid of President Trump's residence
bears on the Presidential Records Act (PRA). Congress passed
the PRA in 1981 at the beginning of President Ronald Reagan's
first term.\28\ The PRA ``governs the collection and retention
of records'' that were ``created or received by the President,
the President's immediate staff, or a unit or individual of the
Executive Office of the President,'' while conducting
activities related to ``the constitutional, statutory, or other
official or ceremonial duties of the President.''\29\ The
statute considers these records property of the United States,
not the relevant President.\30\ The PRA does not extend to a
President's personal records, defined by the statute as
``purely private or nonpublic'' records which include diaries,
journals, materials directly related to the President's
election or election of another individual, and ``materials
relating to private political associations.''\31\
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\28\David B. Rivkin Jr. & Lee A. Casey, The Trump warrant had no
legal basis, Wall St. J. (Aug. 22, 2022).
\29\See 44 U.S.C. Sec. 2201 (2014); Meghan M. Stuessy, Cong.
Research Serv., IN12056, Presidential Records Management: Preservation
and Disposal (2022).
\30\Id.
\31\Id.
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During a presidency, the President has the exclusive
authority over presidential records.\32\ Following a
presidency, the Archivist gains responsibility for the
``custody, control, preservation, and access to presidential
records.''\33\ The PRA gives a former president the right to
access records from his presidency.\34\
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\32\Meghan M. Stuessy, Cong. Research Serv., IN12056, Presidential
Records Management: Preservation and Disposal (2022).
\33\Id.
\34\44 U.S.C. Sec. 2205(3) (2014).
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Former Department of Justice and White House Counsel
officials David Rivkin and Lee Casey argue that the PRA
``guarantees a former president continuing access to his
papers.''\35\ Rivkin and Casey note that the PRA does not
address how presidential records are to be physically turned
over to the Archivist ``leaving this matter to be negotiated
between the archivist and the former president.''\36\ According
to Rivkin and Casey, when making records available to the
former president, the PRA does not distinguish between
classified and unclassified material.\37\ They conclude that
``the bureau could and should have sought a less intrusive
judicial remedy than a search warrant--a restraining order
allowing the materials to be moved to a location with the
proper storage facilities, but also ensuring Mr. Trump
continuing access.''\38\
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\35\ David B. Rivkin Jr. & Lee A. Casey, The Trump warrant had no
legal basis, Wall St. J. (Aug. 22, 2022).
\36\Id.
\37\Id.
\38\Id.
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THE APPOINTMENT OF A SPECIAL MASTER
During the raid, ``privileged and/or potentially privileged
documents were among the items taken from [President Trump's]
home.''\39\ President Trump's lawyers subsequently filed a
motion requesting the appointment of a special master, an
independent third party often appointed to assist a court in
complex litigation, to conduct the review to determine which
documents were privileged. The filing raised Fourth Amendment
concerns with the search, characterized the warrant as
``overbroad,'' and requested a special master to ``protect the
integrity of privileged documents.''\40\
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\39\Motion for Judicial Oversight & Additional Review, In the
Matter of the Search of Mar-a-Lago, No. 22-cv-81294-AMC (S.D. Fla. Aug.
22, 2022). Id. at 3.
\40\Id. at 10, 11, & 9.
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The Department argued against the appointment of a special
master, essentially arguing that the Biden Administration would
adequately protect President Trump's right to protect
privileged documents. The Department stated that ``the
government's filter team has already completed its work of
segregating any seized materials that are potentially subject
to attorney-client privilege, and the government's
investigative team has already reviewed all of the remaining
materials, including any that are potentially subject to claims
of executive privilege.''\41\
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\41\United States' Response to Motion for Judicial Oversight &
Additional Relief, Donald J. Trump v. U.S., No. 22-CV-81294-CANNON at 3
(S.D. Fla. Aug. 30, 2022).
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On September 5, Judge Aileen Cannon ordered the appointment
of a special master.\42\ Judge Cannon requested the Department
and President Trump's lawyers submit a joint filing with a list
of proposed candidates.\43\ The order rejected the Department's
assurances that its Privilege Review Team caught all privileged
material. Judge Cannon wrote that ``without drawing inferences,
there is a basis on this record to question how materials
passed through the screening process, further underscoring the
importance of procedural safeguards and an additional layer of
review.''\44\ In addition, Judge Cannon ordered the Department
to halt the use of all documents seized in the raid.\45\
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\42\Order, Donald J. Trump v. U.S., No. 22-81294-CIV-CANNON (S.D.
Fla. Aug. 27, 2022)
\43\Id.
\44\Id. at 15, n. 13.
\45\Id.
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Commenting on the appointment of the Special master,
Professor Jonathan Turley stated that:
While it is admittedly less common to use a special
master in a criminal case, it is not ``unprecedented''
for a court to conduct in camera reviews of seized
material. In this case, the court wants to use a
special master to perform that function. Moreover,
special masters are commonly appointed in the federal
courts in an array of cases where judges need
assistance in creating a record for a ruling on
motions.\46\
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\46\Jonathan Turley, Federal judge orders appointment of special
master and halts use of seized Mar-a-Lago material by prosecutors, Res
IPSA Loquitur Blog (Sept. 6, 2022).
While the Department is prohibited from using the documents
at this time, the order ``does not halt the criminal
investigation.''\47\ Professor Turley stated that Judge
Cannon's ruling ``will not necessarily change the ultimate
trajectory of the case but it will force critical reviews and
rulings on issues from attorney-client privilege to executive
privilege.''\48\
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\47\Id.
\48\Id.
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CONCLUSION
Throughout the business meeting, Democrats failed to join
Republicans in the Committee's constitutional duty to conduct
oversight of the Executive Branch and obtain access to the
unredacted affidavit. Rather than receive more facts and
information about the FBI's unprecedented raid of President
Trump's former residence, the Democrats wrongly voted to report
H. Res. 1325 unfavorably to the House of Representatives. We
strongly disagree with this action.
Jim Jordan,
Ranking Member.
[all]