Scrutiny builds over FBI’s discovery of empty folders at Mar-a-Lago

Among the material allegedly seized from former President Trump’s home were numerous empty folders that once contained classified information or intel designated to be returned to the military, renewing questions over fallout from the potential mishandling of records and if they have since been recovered.

In an inventory from the Justice Department unsealed by a judge Friday, the government detailed that interspersed with Trump’s personal belongings were 48 empty folders with classified banners as well as another 42 empty folders that were labeled “return to staff secretary/military aide,” according to the filing.

The majority were found in Trump’s office, rather than the storage room at Mar-a-Lago. 

It’s not clear if the materials the folders once housed are elsewhere in the boxes of recovered evidence, but experts say the suite of questions the detail raises argues in favor of allowing the Justice Department to continue its investigation, even as Trump seeks to stall its progress.

“The ideal scenario that would describe this is that the empty folders are actually for the records that are somewhere else in the boxes — that someone just didn’t keep them in the folder in the way they were supposed to, so they’re not actually out there in the wild somewhere,” said Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law.

“The least optimistic scenario is that they are nowhere to be found because they are already with someone else.” 

The inventory list was given to U.S. District Judge Aileen Cannon shortly before she heard arguments from Trump’s legal team asking to stall the FBI investigation so that a third-party special master could review the evidence to protect what they claim could be privileged material. The DOJ has argued such a move is unnecessary as its own team of staff not assigned to the case has already reviewed the evidence for privileged material.

Beyond the empty folders, the Friday inventory details in broad strokes the other types of documents that were found within Trump’s office among the tranche of more than 100 recovered classified records: three documents marked confidential, 17 documents marked secret and seven documents marked top-secret.

Larry Pfeiffer, who previously served as senior director of the White House Situation Room and was chief of staff at the CIA, said the system for tracking classified documents should allow investigators to account for what information should be in the folders and determine if it is still on site. 

But he expressed concern that the fact that they even ended up at Mar-a-Lago could mean proper record-keeping — even with career national security staffers on hand at the White House — may not have been taken seriously.

“To me, it sounds like there was either a horrific systemic breakdown in those processes, No. 1., or those people just felt completely intimidated by Trump and the people around him. Or there were people who were completely operating around the system — that documents were flowing in and out of the Oval and up into the residence without ever going through this tracking process,” Pfeiffer told The Hill. 

“I think it’s possible it was a mistake. I think it’s possible they were folders that were holding the documents that were already found. But I worry it could have been folders that had other documents in them and now the mystery is where are the other documents? And that’s the scary part.” 

That includes the materials that expressly directed they be returned to the military.

“Anything that was in the folder should have been returned. The folder being there suggests it wasn’t,” Pfeiffer said.

The inventory list notes that the records were found mixed with clothes, books and other personal effects as well as some 10,000 presidential records that likely should be maintained by the National Archives. 

That they were kept with Trump’s belongings — and in some cases, in his office — could be an important detail for the DOJ, one they alluded to in their filing. The department noted that “all evidence — including the nature and manner in which they were stored” — will inform their investigation.

“The co-mingling of all this stuff shows that there was no care taken with these records at a few different points in the process because at least one of two things happened to lead to this scenario,” McClanahan, the national security lawyer, said.

“No 1., while he was in office he or his staff haphazardly mixed all this classified and unclassified material together in boxes, showing that they weren’t handling it properly in the office. Or two, after he got home, he started rooting through the boxes and putting things in and taking things out, which would show that there was clear awareness and involvement of the classified nature of this material. I think that it’s probably going to be a mix of the two,” he added.

The confusion around the documents also adds another dimension to the special master case. Cannon noted she would weigh whether to allow the intelligence community to continue its review of the potential national security implications tied to the mishandling of material, including how to protect sources and methods. The review is being led by the Office of the Director of National Intelligence (ODNI).  

“I don’t think finding empty folders gives it any more urgency than it already deserves. The fact that some of the most sensitive documents in our government were sitting around in storage rooms at a golf resort in Florida, intermingled with a bunch of other stuff, that clearly people [without clearances] could have physical access to … is frightening,” Pfeiffer said.

“The urgency is there regardless of whether there were empty folders found or not. And so therefore, having a special master now potentially put a halt to the damage assessment/risk assessment that the ODNI is doing, that would be further delay that we shouldn’t have to put up with.”

Others warn there’s no good way to block the Justice Department’s work while allowing the intelligence community to conduct its own assessment about the potential fallout.

“The FBI’s investigation and the Intelligence Community (IC) assessments are inextricably intertwined from a counterintelligence perspective,” Brian Greer, a former CIA attorney, told The Hill by email. 

“To assess the risks, it’s important for the IC to know who accessed a given document, and they can only get that from the FBI. But if the court prohibits the FBI from accessing certain classified documents because they might be subject to an executive privilege claim, that process will break down.” 

Cannon declined to make an immediate ruling on the matter when each side presented their arguments Thursday, but McClanahan said if she grants Trump’s request it could ultimately backfire for a former president who often insists he has been treated unfairly.

He noted a special master could easily decide the FBI did not obtain any materials that should be protected by either attorney-client or executive privileges, as Trump is asserting.

“He won’t be able to say, ‘the DOJ privilege review team wrongfully decided it,’ he’s going to have to say, ‘the DOJ privilege review team, and the subject matter expert that I asked for, and a federal judge wrongfully decided it,’” McClanahan said.

“And in an area like this where there’s not a whole lot of room for him to be right — that’s a very risky move.”