Exclusive: Key Biden DOJ official raised red flags about FBI’s Mar-a-Lago raid, memo shows
A recently disclosed email shows that top Garland associates raised the issue of declassification before the morning raid. Although the memo requested that lawyers check whether Trump had the authority to declassify documents, Garland personally approved the August 2022 raid, which included searching Melania Trump's underwear drawers.
top Biden Justice Department official and key ally of then-Attorney General Merrick Garland raised legal “concerns” about the FBI's raid on Mar-Lago, warning that then-former President Donald Trump may have actually declassified the records seized by agents, a newly-unearthed email obtained by Just the Newsshows.
Patty Stemler, a decades-long DOJ veteran who was reportedly picked by Garland in 2022 to help consult on Trump-related cases, sent an email just two days after the bureau’s Aug. 8, 2022 raid of Trump’s Florida resort home, where Stemler said she had “a few concerns.”
Stemler sent the email to Sophia Brill, a future Biden White Houselawyer and then an attorney inside DOJ’s National Security Division, which played a central role in this anti-Trump inquiry.
The memo was recently discovered by the Justice Department as part of its investigation into the weaponization of federal law enforcement.
“I didn’t know about this search in advance, but I have been worrying about it ever since and worrying more now,” Stemler wrote to Brill on Aug. 10, 2022. “Doesn’t Trump maintain that he had the authority to declassify documents while he was still President?
"Has anyone in NSD or OLC [Office of Legal Counsel] looked at that? I know we have procedures for declassifying, but is the President as Commander in Chief bound by those procedures? We also have procedures for granting pardons, but the President doesn’t have to follow them," she added.
Garland has said he “personally approved the decision to seek a search warrant” for the FBI’s unprecedented raid of Mar-a-Lago back in early August 2022.
Not the first time the raid was second-guessed inside the Biden admin
Her warnings are now the second showing federal law enforcement's unease with the unprecedented raid on Mar-a-Lago. Previously, FBI Director Kash Patel provided Congress evidence that agents did not believe they had not met the legal standard of probable cause required for the raid but proceeded anyway.
Trump's office told Just the News in mid-August 2022 that the materials with classified markings which the FBI seized from his Mar-a-Lago estate had actually been declassified under a "standing order" while he was president that allowed him to take sensitive materials to the White House residence at night to continue his work.
“The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified," the former president's office stated at the time. "As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents, including classified documents from the Oval Office to the residence.
Trump’s office added back in August 2022: "He had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified. The power to classify and declassify documents rests solely with the President of the United States. The idea that some paper-pushing bureaucrat, with classification authority delegated BY THE PRESIDENT, needs to approve of declassification is absurd."
Stemler appeared to be concerned with exactly that scenario, her email states.
“I don’t know if we intend to charge anyone with respect to the classified documents seized yesterday, but if we disclose that we found X classified documents before we seek an indictment, will that trench on any fair trial rights or violate the ethical obligations of a prosecutor?" she wrote.
Prosecutorial ethical limits questioned
"I seem to recall that a prosecutor has some leeway to inform the public that we have arrested the serial killer and seized from his home evidence that ties him to the murders for the purpose of reassuring the public that they are now safe. But aren’t there ethical limits on what a prosecutor can say otherwise? I think this came up when Ashcroft was AG — post 9/11. Liza Collery drafted something to get him out of trouble. Let me see if I can find that.”
John Ashcroft was the attorney general including during the post-9/11 era under now-former President George W. Bush. Elizabeth Collery, like Stemler, was a longtime veteran of DOJ’s Appellate Section inside the Criminal Division.
“Has anyone looked at the privacy limitations on our disclosure of information seized from a residence where the disclosure is for a purpose other than investigation or prosecution (the recapture of government property)?” Stemler also asked Brill. “I seem to recall that a prosecutor has some leeway to inform the public that we have arrested the serial killer and seized from his home evidence that ties him to the murders for the purpose of reassuring the public that they are now safe. But aren’t there ethical limits on what we can say otherwise?”
Brill is now at the Gibson Dunn law firm, where she has posted about her involvement in the firm filing an amicus brief on behalf of the purportedly non-partisan Democracy Defenders Fund in support of Anthropic in its lawsuit against the Trump Administration over the Pentagon designating the AI company a “supply chain risk.”
Stemler’s concerns about the Mar-a-Lago raid are notable, given her reputation inside the DOJ.
It was reported by Law 360 in February 2022 that a DOJ spokesperson had confirmed that Stemler had retired from her position within the DOJ. Bloomberg Law described her as “Justice Fixer Stemler” when reporting on her retirement that month. The article included praise by DOJ colleagues over Stemler’s insights.
DOJ Criminal Division chief Kenneth Polite, Stemler’s boss at the time, reportedly sent an email stating that Stemler would continue working at the DOJ “in a new capacity for several months, perhaps even a year if we are lucky.” A spokesman for the DOJ told the outlet that Stemler’s new title at the time would be senior counsel.
Media praised Stemler as a "discreet and publicity-shy problem solver"
Justice Department prosecutors with a knotty criminal law question or senior officials needing to sort out a high-profile litigation mess, have usually turned to the same fixer for decades,” Bloomberg News reported. “That discreet and publicity-shy problem solver, Patty Stemler, retired Monday from a 30-year reign as DOJ’s top criminal appellate attorney. Colleagues say she’s built the appellate section into an elite unit consulted at every step of critical litigation and wading into some of the DOJ’s most delicate cases.”
The outlet said that Stemler had arrived at the Justice Department in 1976 and that she was promoted to run the appellate section in 1992 by Robert Mueller, who was the DOJ Criminal Division chief at the time before going on to be FBI director and then anti-Trump special counsel.
Bloomberg also said, “Garland already turned to a long-time criminal appellate section leader, Patty Stemler, who retired earlier this year from DOJ, to advise as a consultant on the January 6 investigations throughout this year.” The outlet added that “others from Stemler’s former unit and other sections are likely to shepherd cases and policy issues as needed.”
The Federal Bar Association awarded Stemer with the 56th Annual Justice Tom C. Clark Award for Outstanding Government Lawyer in 2023, where Garland and others sung her praises.
DOJ was told by a lawyer before the raid that "Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents"
Trump lawyer Evan Corcoran had sent a May 2022 letter addressed to Jay Bratt, the chief of the counterintelligence and export control section of DOJ’s National Security Division, suggesting that Trump had declassified the documents at Mar-a-Lago being pursued by the Biden DOJ.
Corcoran pointed to “a few bedrock principles” in his letter, including that “A President Has Absolute Authority To Declassify Documents.”
“Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents,” Corcoran told the DOJ official, adding, “Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction. Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President.”
Kash Patel — an intelligence and defense official during the first Trump administration and the current director of the FBI — told Breitbart in May 2022 that “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves.”
“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel told the outlet. “I was there with President Trump when he said ‘We are declassifying this information.' […] This story is just another disinformation campaign designed to break the public trust in a president that lived on transparency. It’s yet another way to attack Trump and say he took classified information when he did not.”
“Nothing approaching an order that foolish was ever given,” John Kelly, who worked as Trump’s chief of staff from 2017 to 2019 and emerged as a significant Trump critic, told CNN in 2022. “And I can’t imagine anyone that worked at the White House after me that would have simply shrugged their shoulders and allowed that order to go forward without dying in the ditch trying to stop it.”
“Number one, it was all declassified,” Trump also contended on Truth Social in mid-August 2022. “Number two, they didn’t need to ‘seize’ anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request.”
Patel also joined a podcast hosted by Clay Travis and Buck Sexton in mid-August 2022, where the future FBI director emphasized that “the president of the United States has universal declassification authority” and that “if he says it or writes it anywhere about documents or sets of documents, they become immediately declassified.”
“Now, in October of 2020, the president wrote a statement that’s now publicly available that said, ‘I declassify every Russiagate document and every Hillary Clinton email investigation document.’ That’s it. That’s what it takes,” Patel said. “And then out — as he was leaving the presidency in December or January — he issued further sweeping declassification orders at the White House over whole sets of documents. So, those documents should have been immediately declassified.”
Trump and his allies condemned a late August 2022 Biden DOJ court filing featuring a photo showing documents seized from Mar-a-Lago arranged on the ground for a photo to be distributed to the press. “Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see,” Trump said on his Truth Social account. “Thought they wanted them kept Secret? Lucky I Declassified!”
Then-President Biden claimed he wouldn’t weigh in on the case, but then scoffed and stumbled at Trump’s legal defense when speaking with reporters. “I just want you to know I’ve declassified everything in the world. I’m president, I can do — c’mon,” Biden said.
President Barack Obama’s executive order 13526, issued in 2009, laid out the stringent process all federal officials and agencies needed to follow for declassification, but explicitly exempted the sitting president and vice president from having to follow those procedures.
Trump's legal authority previously recognized by Obama
The Obama-era order — which was still in effect during Trump’s first term — laid out the rules for “Mandatory Declassification Review” but said that “information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions” of that section.
Trump lawyer Christopher Kise emphasized the president’s declassification authority in a federal court filing in September 2022.
“President Obama enacted the current Executive Order prescribing the parameters for controlling classified information in 2009,” Kise wrote. “That Executive Order, which controlled during President Trump’s term in office, designates the President as an original classification authority, and grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors — necessarily including the President. Thus, assuming the Executive Order could even apply to constrain a President, the President has absolute authority to declassify any information.”
Trump’s lawyer added: “There is no legitimate contention that the President's declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, ‘willfully’ retained classified information in violation of the law. Moreover, the Government seeks to preclude any opportunity for consideration of this issue.”
“Plaintiff has never disputed that the government’s search recovered records bearing classification markings. Instead, the district court cited portions of Plaintiff’s filings in which he suggested that he could have declassified those documents or purported to designate them as 'personal' records under the PRA [Presidential Records Act] before leaving office,” the Biden DOJ said. “But despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps—much less supported such a representation with competent evidence.”
The Biden DOJ also insisted that, even if Trump had indeed declassified the documents, federal investigators still would have scrutinized the former president’s actions, telling the court that “if the records had actually been declassified, the government would have an additional compelling need to understand what had been declassified and why (and who has seen it) to protect intelligence sources and methods.”
Judge Aileen Cannon granted the Trump defense team’s request for a special master, and the Trump appointee also temporarily blocked the DOJ from using the seized documents in their criminal inquiry into Trump — which was soon overruled by a federal appeals court.
“The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” Judge Cannon ruled in early September 2022. "Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”
Judge Raymond Dearie, a former federal judge and member of the FISA Court, was selected as the special master in the classified documents case later that month. “If I'm going to verify the classification, what am I looking at? Is there a claim that the document is classified that should not have been classified?” Dearie asked in a September 2022 court hearing.
“The reason I ask is if the government essentially gives me prima facie evidence that these are classified documents and you, for whatever reason, decide not to advance any claims of declassification, which I understand is your prerogative, I'm left with a prima facie case of classified documents,” the special master told Trump’s defense team. “And as far as I'm concerned, that's the end of it.”
Trump’s lawyers attempted to push back in court.
“It's not about being kind of gamesman-like, I just can't do that without seeing the actual documents,” Trump defense attorney Jim Trusty said, adding, “We have not been in a position, nor should we be at this juncture, to fully disclose a substantive defense relating to declassification until we see the documents and have an opportunity to explore our options.”
Dearie replied, “My view of it is: You can’t have your cake and eat it.”
Dearie, as a former member of the Foreign Intelligence Surveillance Court, had previously approved the third and deeply-flawed FISA warrant renewal targeting former Trump campaign associate Carter Page.
“I completely understand people who don’t know Judge Dearie being highly suspicious of anyone who Trump wants. I would be too. But this is actually a Trump team (unsurprising) screw up: having their own Special Master choice rule against them will be fun to watch. Dearie is a model judge.”
A trio of judges at the U.S. Court of Appeals for the Eleventh Circuit critiqued the Trump defense team’s declassification arguments in a late September ruling.
“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
Trump referred to “Jack Smith and his group of thugs” during a CNN town hall in May 2023, where the president defended his decision to take documents with classification markings on them from the White House to Mar-a-Lago.
“I had every right to under the Presidential Records Act. You have the Presidential Records Act. I was there and I took what I took and it gets declassified,” Trump said, adding that “I have no classified documents. And, by the way, they become automatically declassified when I took them.”
Smith and the Biden DOJ charged Trump in June 2023 over allegations related to the improper retention of classified documents, followed by a superseding indictment the next month. The charging documents alleged that “the unauthorized disclosure of these classified documents could put at risk the national security of the United States.”
Judge Cannon dismissed Smith’s classified documents case against Trump in July 2024, ruling that Smith had been “unlawfully appointed” as special counsel. Smith attempted to appeal the ruling but soon dropped it after Trump won the 2024 election against then-Vice President Kamala Harris.
Cannon dismissed Smith’s classified documents case against Trump in July 2024, ruling that Smith had been unlawfully appointed as special counsel. Smith attempted to appeal the ruling but soon dropped it after Trump won the 2024 election against then-Vice President Kamala Harris.
Judge Tanya Chutkan dismissed the January 6-related case against Trump in November 2024 after Trump’s win, pointing to the Office of Legal Counsel’s position that a sitting president could not be prosecutedby his own DOJ. Smith released his report in January 2025, a couple of weeks before Trump’s second inauguration.
DOJ Anti-Trump prosecutor charged with stealing classified documents, hiding them in her computer as "cake recipes."
A federal prosecutor in the DOJ office that assisted in Smith’s classified documents case was charged last week for allegedly illegally emailing herself a copy of the materials disguised as cake recipes.
The DOJ identified the indicted prosecutor as Carmen Mercedes Lineberger, a managing assistant U.S. attorney of the Fort Pierce branch of the U.S. Attorney’s Office for the Southern District of Florida, who has been charged with two counts of theft of government money or property; with the destruction, alteration, or falsification of records in federal investigations; and with the concealment, removal, or mutilation of public records.
She has pleaded not guilty.
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