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Did the Mar-a-Lago breach damage national security? Spy agencies have yet to determine

Current and former officials told NBC News they found the apparent lack of a damage assessment puzzling.
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The country’s top intelligence officials do not appear to have launched a formal damage assessment relating to classified documents found at Mar-a-Lago, even though the government has known since January that highly sensitive material had been improperly stored in former President Donald Trump’s golf club and residential compound, four current U.S. officials told NBC News.

The Office of the Director of National Intelligence, or DNI, which oversees the CIA, the National Security Agency and 16 other agencies, has a policy that says a damage assessment “shall be conducted when there is an actual or suspected unauthorized disclosure or compromise of classified national intelligence that may cause damage to U.S. national security.” The 2014 policy says damage assessments “may also be conducted when there is an actual or suspected loss, misuse, or unauthorized access to or modification of classified national intelligence that could adversely affect national security.”

Representatives of the DNI, the CIA and other intelligence agencies declined to comment, as did representatives of the FBI and the Justice Department.

Current and former officials said they found the apparent lack of a damage assessment puzzling. They spoke on condition of anonymity because of the sensitive nature of the topic. Some said it suggests that the Biden administration is concerned about the appearance of involvement beyond the Justice Department in the highly charged investigation that led to the FBI search of Trump’s home

“I suspect that the Biden administration is being super careful right now not to appear to be involved beyond the independent FBI and Justice Department,” a former senior intelligence official said.

Elizabeth Goitein, an expert on intelligence policy at the Brennan Center for Justice at New York University School of Law, said she believes highly classified material found at Mar-a-Lago — so sensitive it normally must be viewed inside a special facility — would make a damage assessment mandatory under DNI rules.

“It’s a foregone conclusion that the Intelligence community would assess a compromise of SAP (special access programs) or Top Secret TS/SCI information as to whether it compromised national security,” she said.

Officials added that members of the intelligence community beyond the FBI have probably reviewed classified documents found at Mar-a-Lago and that it is likely that an informal survey of possible damage had occurred. The CIA would need to know whether it needed to be concerned about the safety of any human source, for example, and the NSA would seek to understand whether any program to intercept communications had been compromised.

“It is inconceivable that DNI is not doing an assessment to determine if classified information was compromised,” a current U.S. official with knowledge of intelligence issues said. “That being said, I’m not aware of one.”

On Wednesday, when White House spokesman John Kirby was asked if the National Security Council is conducting an investigation into the information in the documents or a damage assessment, he told reporters, "I know of no such investigatory efforts here at the National Security Council and [refer] you to the DOJ on this."

Two congressional officials briefed on intelligence matters said they had not been notified that any damage assessment had been undertaken. Both the House and the Senate intelligence committees have formally asked for one, but neither has received a formal response, officials said.

According to a letter to Trump lawyers in May posted Tuesday by the National Archives and Records Administration, archivists found more than 100 examples of material with classified markings — 700 pages in all — in documents Trump turned over to the National Archives in January. The New York Times reported Monday that the total has grown to 300 documents with classified markings, including the haul from the Aug. 8 Mar-a-Lago search. NBC News has not confirmed that reporting. 

Hewing to government policy, the archives had been seeking permission from Trump to turn the initial tranche of sensitive documents over to the FBI, according to the May letter. The May letter, from acting National Archivist Debra Wall, quotes the Justice Department’s National Security Division as telling Trump lawyers in April that “there are important national security interests in the FBI and others in the Intelligence Community getting access” to the classified materials to conduct a damage assessment.

The letter quotes the Justice Department as saying some materials in the boxes were marked with the highest levels of classification, “including Special Access Program (SAP) materials.” That designation is given to secret programs that are known only to a small number of cleared people within the government.

The Justice Department added that “access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.”

“Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch,” it said.

A former national security official said the spy agencies would want to know immediately whether any sources or methods had been compromised.

“Any time any classified information is compromised there is an assessment or investigation,” the official said. “It determines where the source material came from and whether anything was exposed that could impact human sources or expose sources and methods. And whoever is responsible for the disclosure is held accountable, everything from being re-trained in handling classified material to losing clearance to even being charged. The facility where the information came from can even be shut down during an investigation.” 

A second former senior intelligence official added that while some damage assessments take years, “with something like this, it’s likely the IC [intelligence community] would try to do a triage, so they’d conduct a preliminary damage assessment.”

The first former senior intelligence official said intelligence agencies will be on the lookout “for evidence this information shows up in foreign reporting,” including in communications intercepts. 

“Even if there is no allegation or assumption of loss, they are going to start looking,” the official said.