Ex-agent: FBI has long history of abuse but Trump probe shows a 'more effective' path for the agency

The Justice Department has released a redacted version of the affidavit used by the FBI to raid former President Donald Trump’s Mar-a-Lago estate. The affidavit revealed authorities were concerned Trump still had possession of top-secret documents that could have compromised U.S. intelligence sources and methods, and said there was “probable cause to believe that evidence of obstruction was found.” We speak with former FBI special agent Mike German, who says the FBI investigation of Trump has so far followed “a very cautious, restrained and methodological approach” and deviated greatly from the “militaristic approach” the FBI typically uses to target social justice organizations. He also says the threats against FBI agents from Trump supporters are “serious” and “persistent.”

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Transcript

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

The Justice Department has released a redacted version of the affidavit the FBI used to get a search warrant for former President Donald Trump’s Mar-a-Lago estate. The affidavit revealed authorities were concerned Trump still had possession of top-secret documents that could have compromised U.S. intelligences sources and methods. It also revealed the National Archives had recovered 184 classified documents at Mar-a-Lago in January. Twenty-five of those documents were marked “top secret.” Some included information intercepted under FISA. That’s the Foreign Intelligence Surveillance Act. The affidavit went on to state, quote, “There is also probable cause to believe that evidence of obstruction will be found,” unquote. In related news, a federal judge in Florida, who was appointed by Trump, has indicated she will agree to his request to authorize a special master to review the documents seized by the FBI.

For more, we go to Mike German, former FBI special agent who now serves as a fellow at the Brennan Center for Justice at New York University School of Law. His recent co-authored report for the Brennan Center is “Focusing the FBI.” His book, Disrupt, Discredit, and Divide: How the New FBI Damages Democracy.

Welcome back to Democracy Now!, Mike. Why don’t you first lay out what you felt were the most significant revelations in this heavily redacted affidavit, which was released on Friday?

MIKE GERMAN: Thanks for having me.

And I think that’s the key point. This affidavit is heavily redacted, so there’s still more we don’t know than what we do know.

But I think it was very wise of the judge to demand that there be some release, because what the document shows is that the FBI, in this case, has followed a very cautious, restrained and methodological approach that followed its rules. Right? The FBI has guidelines that instruct its agents how to use their authorities, and it requires the use of the least intrusive means. And what you see in the affidavit is a step-by-step process where first the National Archives negotiated with the former president and his attorneys, attempting to get these documents back. Once they received some documents and recognized that there were classified documents among them, they took the next step and again asked the president’s representatives to provide more documents. And finally, they went to a grand jury subpoena and made very clear that the documents that remained at Mar-a-Lago were not being protected in the way that the law required. So, all of this activity took place over the course of more than a year before the search began.

And even the way the search was conducted was very restrained. And we don’t need to look far. Just earlier, I think a week earlier, in a similar national security investigation in Florida, we saw an armed raid of Black liberation groups as part of what the FBI claims is a national security matter involving Russian interference with the election, but you saw armed agents. You saw people being handcuffed at these locations, where the African People’s Socialist Party were the subjects of those searches, when they’re not actually charged with any crime. And that kind of aggressive approach is what we’ve seen since 9/11, this very militaristic law enforcement approach to these matters. So, seeing that in this — in the case involving former President Trump, the Justice Department and the FBI followed their guidelines, took very restrained steps, increasingly getting closer to what they needed to do, which the primary mission is to protect the documents that remained beyond government control.

AMY GOODMAN: And I want to encourage people to go to democracynow.org to see our interview with Omali Yeshitela, who described exactly what happened to him. He’s actually in St. Louis, though the places in Florida were raided, too, chairman of the U.S.-based Africa People’s Socialist Party. So, Mike German, the issue of revealing — what did The New York Times full banner headline say? “U.S. Feared Trump Files Put Spies at Risk.” Talk about what exactly that means. Did it reveal names?

MIKE GERMAN: Again, we don’t know exactly what’s in it, but we do know that some of the documents had markings indicating that some of the material was coming from human sources. And that’s always the most closely held information. Some of the information had markings indicating that it was the originator control document, which means that the agency that produced this document wanted to make sure that agency had control over how the information was disseminated. So, this is very — some of the most sensitive materials that the government has.

And to be clear, overclassification has been a problem in the government, so it’s not as if the markings are the end of the story. And the primary goal is recovering the documents and protecting them. And then you can do a damage assessment to see how you can try to protect those assets. And to the extent there are prosecutions either for mishandling classified information or, as you suggested in the intro, obstruction in the —

AMY GOODMAN: And —

MIKE GERMAN: — attempts to recover it — go ahead.

AMY GOODMAN: And let’s talk about that obstruction, the significance of obstruction, because people, well, have been jailed for taking classified information, and also people have simply been warned, if it was believed that they didn’t understand what they were doing. But when they are asked to return it — and explain now what was returned and what wasn’t, and the fact that it may well be that Trump’s lawyer lied in June, saying everything classified has been returned.

MIKE GERMAN: Exactly. And what’s always difficult in an espionage investigation is that the government is trying to protect the information, first and foremost. So, to have a trial where that information is in question, of course, risks exposing it. So, often the government will look for other methods, other violations that they can charge. And one of the ones we see most often is false statements. So, all they need is for somebody to have made a false statement during this year-long negotiation, or also mentioned in the affidavit were laws about the retention of federal documents. So, these are the types of statutes that often get charged, even though they’re secondary to the primary concern of espionage, because they’re easier to make a case in court without further exposing the classified records.

AMY GOODMAN: So, can you talk more about your piece “Focusing the FBI,” in which you said the real problem is not that the FBI authorities are too narrow, but rather that they’re overbroad and untethered to evidence of wrongdoing?

MIKE GERMAN: So, unfortunately, the type of restraint and the cautious approach that we see in the case regarding the documents at Mar-a-Lago isn’t how the FBI typically operates, in the national security arena particularly and the counterterrorism arena, where they tend to be very aggressive. And because the FBI’s rules since 9/11 governing their investigations are so broad, they don’t need actual evidence of criminality before they can start these investigations. And what we’ve seen, and, of course, your coverage has demonstrated amply, that they’re often using these authorities not against groups who they have evidence are engaged in violent criminal activities or terrorism, but groups that they disagree with. So, often environmentalists, civil rights organizations and Black liberation organizations, any type of organization seeking social change tends to get targeted, because they have the broad authority to do that.

So, when people wonder how was it that the FBI missed an attack planned in plain sight on January 6th, it’s because they spend so much time targeting these other groups, where it’s not based on evidence, it’s based on bias. So, narrowing their authorities to where they have to focus the way they did in the Mar-a-Lago search, where they actually demonstrate evidence of crimes in order to justify the next step in an investigation, I think, will make them far more effective and reduce the amount of abuse of these authorities.

AMY GOODMAN: And finally, we have 30 seconds. FBI agents reportedly receiving threats from pro-Trump supporters, how serious are these threats? What kind of response is warranted?

MIKE GERMAN: The threats are serious, and they’ve been persistent. I mean, one of the things that’s bothered me as a former agent over the course of the Trump administration is how Trump was able to cultivate a far-right militant movement at the same time he was cultivating a law enforcement audience and bringing them together in a way that there seemed to be some amity between them, when these groups have always attacked law enforcement. I mean, people forget that the Oklahoma City attack was directly against federal law enforcement. So, for law enforcement not to recognize these individuals are a threat to them personally and their colleagues is a mistake. And hopefully, this will direct some of that activity to make sure they’re focusing on these groups.

AMY GOODMAN: Mike German, I want to thank you for being with us, fellow at the Brennan Center for Justice at New York University Law School, former FBI special agent. We’ll link to your report, “Focusing the FBI.” Mike German’s book, Disrupt, Discredit, and Divide: How the New FBI Damages Democracy.

Coming up, farmworkers in California are calling on Gavin Newsom to sign a bill to allow farmworkers to vote to unionize by mail. Newsom is threatening to veto the bill unless amended. Stay with us.

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