Why the DOJ's photo of top secret documents held by Trump matters

The photo hit the internet like a mic drop.

When the Justice Department rejected former President Donald Trump's call for a special master in his records dispute, it included a photo of top secret documents splayed across a carpeted floor in Mar-a-Lago — two months after Trump's team certified all such documents had been turned over.

The photo, which many observers called unprecedented, immediately drove discussions about Trump's legal problems into overdrive.

To Orin Kerr, a law professor at the University of California, Berkeley, the jaw-drop-inducing photo and filing are the latest steps in an extraordinary sequence, with the U.S. government arguing about national secrets with its former chief executive.

"This is an unusual response, but that's to be expected," Kerr said. "It was filed in reply to an unusual request by a judge to respond to a very unusual filing by Trump."

The photo was staged for dramatic effect, Trump's team says

In their own response filed late Wednesday, Trump's legal team called the Justice Department's filing "extraordinary."

They accuse the government of "criminalizing a former President's possession of personal and Presidential records in a secure setting."

Trump's team also homed in on the image of the documents, with attorney Lindsey Halligan writing that the Justice Department "gratuitously included a photograph of allegedly classified materials, pulled from a container and spread across the floor for dramatic effect."

As photographs go, the FBI image doesn't look particularly well-composed, with papers scattered across the carpet. But those papers' bright yellow and red markings, their "TOP SECRET" coversheets, make the randomness of the scene more striking: here is hard-won information that's highly compartmentalized by the government, lying on the floor of a private office in Florida.

"In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances" before they could examine some folders' contents, the Justice Department said.

What about those abbreviations?

The photo quickly sparked intense interest into the arcane abbreviations that label America's national secrets.

One of the most scrutinized markings states that several folders' contents are marked "TOP SECRET//SCI" and restricted "UP TO HCS-P/SI/TK." Here's a quick breakdown of those terms:

HCS-P - HUMINT Control System Product, using the acronym for human intelligence. According to the office of the Director of National Intelligence's classification manual, "HCS protects the most sensitive HUMINT operations and information acquired from clandestine and/or uniquely sensitive HUMINT sources, methods, and certain technical collection capabilities, technologies, and methods linked to or supportive of HUMINT."

SCI - Sensitive Compartmented Information, a broad term for intelligence information that requires a formal system to control its distribution.

SI - Special Intelligence, or more specifically, "technical and intelligence information derived from the monitoring of foreign communications signals by other than the intended recipients" — the type of work done by the National Security Agency, for instance.

TK - Talent Keyhole, a long-held designation that refers to classified spy satellite data.

Those terms are merely on the cover sheets. The internal documents themselves were redacted, along with their detailed compartmentalized designations.

Which case is this again?

While Trump's legal embroilments are extensive, this particular case dates to Aug. 22, when the former president asked a federal district judge in Florida to appoint a special master to review all the materials taken from his home.

Trump is the plaintiff in the case; the defendant is the United States of America.

"Politics cannot be allowed to impact the administration of justice," Trump's team said in its initial filing, calling him "the clear frontrunner" in the 2024 presidential race, "should he decide to run."

In that filing, Trump sought to block the Justice Department from reviewing the materials until a special master is appointed. He also asked the judge to make the government provide a "sufficiently detailed receipt" of seized items, and "promptly return anything taken that is outside of the search warrant's scope.

The judge in the case is Aileen M. Cannon, whom Trump appointed in 2020. She is herself a veteran of the U.S. Attorney's Office in Southern Florida, which is now contesting the case.

"In a normal case, a judge would find DOJ's response persuasive and would be done with it," Kerr said. "It's possible that this particular judge will try to give more to Trump, but my guess is that it won't matter much: Whether a special master is appointed probably doesn't make much difference to the case."

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