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Rh Observing that the Fifteen Boxes Contained “Highly Classified Records,” NARA Sent a Referral to the Department of Justice

“In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery.” Wall Letter at 1. Specifically, on February 9, 2022, the Special Agent in Charge of NARA’s Office of the Inspector General sent a referral via email to the Department of Justice (“DOJ”) (hereinafter, the “NARA Referral”). MJ Docket D.E. 102-1 at ¶ 24. The NARA Referral stated that a preliminary review of the Fifteen Boxes indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records. Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.” Id. (internal quotations omitted). The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.

The Former President Delayed the FBI’s Access to the Fifteen Boxes

As the NARA Referral stated, the Fifteen Boxes contained “highly classified records.” Upon learning this, DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” Wall Letter at 1. DOJ followed the steps outlined in the Presidential Records Act to obtain access to the Fifteen Boxes. On April 12, 2022, NARA advised counsel for the former President that it intended to provide the FBI with the records the following week (i.e., the week of April 18). Id. at 2. That access was not