AUGUST 31, 2022
Late Tuesday night, federal prosecutors filed their latest motion in the ongoing legal saga surrounding the criminal investigation into former president Donald Trump and his handling of classified information after he left office.
The searing, 36-page court filing provides the most detailed account of the monthslong interactions between Trump representatives and officials investigating how the top-secret documents came to be stored at his Mar-a-Lago estate in Florida and whether any more remained there.
Unlike the public statements Trump has released blasting the investigation into him as politically motivated, the Department of Justice has instead communicated mostly through court filings. (Attorney General Merrick Garland did deliver one brief statement to the press in the days after the Aug. 8 FBI search of Mar-a-Lago in which he defended the integrity of his investigators and swore the probe was following a “faithful adherence to the rule of law.”)
From prior DOJ filings, we already know that Trump is being investigated for potential violations of the Espionage Act, mishandling government documents, and obstruction of justice
But Tuesday night’s filing, which came in response to a request from Trump to a judge he appointed as president for the investigation to be paused while a special master reviews the seized items, revealed several new things, some comparatively minor and some potentially seismic.
1. At issue are hundreds and hundreds of pages of classified documents.
The FBI affidavit prosecutors filed to another federal judge earlier this month as they sought a warrant to search Mar-a-Lago was released on Friday. It revealed that after months of requests from officials with the National Archives and Records Administration (NARA) that first began in May 2021, Trump’s team finally turned over 15 boxes of documents in January. When the FBI subsequently reviewed these documents in May, they found 184 classified documents in 14 of the boxes, some of which were marked with the most serious form of classification and contained information monitoring foreign governments or derived from undercover spies.
Tuesday’s filing revealed these 184 documents extended way beyond 184 pages. We learned that when NARA first asked the DOJ to investigate, they told them that “among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages.”
And remember, those were only the documents Trump willingly handed over in January.
2. On June 3, Trump’s team turned over a binder containing 38 classified documents — and swore there were no more to be found.
We also learned about another meeting between government investigators and Trump’s team that occurred at Mar-a-Lago on June 3 of this year. That meeting only came after the DOJ sought a grand jury subpoena on May 11 having discovered through the FBI investigation that “dozens of additional boxes” remained there.
On June 3, three FBI agents and a DOJ attorney arrived at Mar-a-Lago and met with a Trump attorney and his custodian of records for his post-presidential office. The pair handed over a single Redweld envelope or binder that was double wrapped in tape.
They also handed over a document, reportedly signed by Trump attorney Christina Bobb in her capacity as custodian (the signature was blacked out in the unsealed court filing), in which the Trump representative certified that in response to the May 11 subpoena, a “diligent search was conducted of the boxes that were moved to the White House to Florida” and that they were handing over everything relevant they had found.
The Trump attorney told the investigators that all the documents they had found were inside a storage room at Mar-a-Lago, and “represented” that there weren’t any other records stored in offices or other rooms at the estate.
But investigators also said that “critically” the Trump attorney “expressly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”
Later, when FBI agents went through the Redweld they found 38 classified documents. Five were marked as confidential, 16 were marked as secret, and 17 were marked as top secret. These three levels of classification refer to documents that could reasonably result in damage to US national security, with the latter two classifications denoting documents that could cause “serious” and “exceptionally grave” damage.
“Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration,” DOJ officials wrote in the court filing.
3. Officials believe Trump’s team was obstructing the investigation by concealing and removing documents
Despite the June 3 handover, the FBI investigation continued and soon “uncovered multiple sources of evidence,” which were not specified in the court filing, that led them to believe there were still more documents at Mar-a-Lago. (The FBI affidavit released last week did confirm there were “multiple civilian witnesses” who had provided evidence, but it did not name these individuals.)
Per their investigation, the FBI came to believe the storage room was not the only place at Mar-a-Lago that the documents were being stored.
“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” officials wrote.
This revelation further emphasizes that investigators are highly focused on potential obstruction of justice charges.
4. The Aug. 8 FBI search uncovered more than 100 classified documents that had not been turned over, including some in Trump’s desk.
After officials convinced a federal judge to approve their search warrant, the FBI search of Mar-a-Lago on Aug. 8 uncovered a trove of additional classified documents around the estate. Agents seized 33 items, most of which were boxes that contained a range of documents and items, from both the storage room and Trump’s private office.
All in all, they found over 100 documents — more than twice the amount Trump’s team turned over on June 3 — ranging in classification from confidential to top secret. Three of the classified documents were even found inside desks in Trump’s office, while 76 were found in the storage room.
5. Some of these documents were very, very classified.
We already knew that agents suspected they would find documents at Mar-a-Lago that contained classified information relating to national defense, but Tuesday’s filing sheds more light on just how top-secret the documents ultimately discovered were.
Some of the documents contained “additional sensitive compartments that signify very limited distribution,” the DOJ wrote. Others were so classified that even the FBI counterintelligence agents and DOJ attorneys who were reviewing them had to wait to get additional clearances before they could even see them.
The DOJ also advised the judge that should she choose to appoint a special master to review the process, that would also result in a delay “because a special master would likely need to obtain a security clearance and specific authorization from relevant entities within the Intelligence Community to review particularly sensitive materials.”
They also contend that if the judge granted an injunction preventing officials from reviewing the documents it would “also thwart entirely an ongoing and sensitive review of risks to national security,” as intelligence officials are also conducting their own review to assess what damage was done.
(For the record, the DOJ contends the need for a special master is moot because they already had a “filter team” go through the items seized and remove any items that might be subject to attorney-client privilege.)
6. Trump’s passports were indeed among the items seized — but they were then returned.
A footnote in one section of the court filing reveals that among the items seized were three passports belonging to Trump. These included one expired personal passport and two official ones, one of which was expired. After the search, Trump subsequently complained on social media that his passports had been taken.
So why did the FBI seize these? It’s to do with where they were found: inside a desk drawer that contained “classified documents and governmental records commingled with other documents.”
Under the search warrant that the federal judge approved, the FBI agents were authorized to seize not only any classified documents or government records, but any boxes in which they were stored, as well as any other contents in these containers.
Despite the passports then being fair game, the DOJ said they subsequently used their discretion to return the passports.
The filing also notes that other “certain personal effects” were seized according to this same process and that they remain in investigators’ custody because of their “evidentiary value.” Other personal items without such value will be returned, per the filing.
It’s not clear what items these might be, but a photograph that investigators shared of some of the items shows a box that appears to contain a series of framed images, at least one of which is a March 4, 2019, Time magazine cover that featured an illustration of Trump and his Democratic rivals.
7. Officials believe Trump’s team misled them and have not been cooperating.
The DOJ makes it crystal clear in the filing that they think they have been lied to — and this is where things get potentially very bad not just for Trump, but also for his team and lawyers.
Prosecutors contend that the location where the FBI agents found the additional documents — in the storage room and Trump’s office — as well as the large number of documents discovered disproves Team Trump’s sworn claim that they had conducted a “diligent search” and were handing over everything.
“The [FBI] search cast serious doubt on the claim in the certification (and now in the [Trump motion for a special master]) that there had been ‘a diligent search’ for records responsive to the grand jury subpoena,” the DOJ officials wrote.
The DOJ even notes that some of the recovered documents, as evidenced in the photograph that was shared, even featured colored cover sheets that clearly indicated they were classified, so they could not have been hard to miss.
“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” the DOJ added.
8. Officials don’t think much of Trump’s claims that he declassified the documents or that they belong to him.
After the FBI search, Trump and his allies began defending himself by saying that he had declassified all the documents when he was president, but in their arguments to the judge the DOJ calls these claims bunk. They note that he never made these claims regarding the documents he turned over in January or June.
They even argue that Trump lacks any legal standing to ask the judge for a special master because under the Presidential Records Act “those records do not belong to him” and instead belong to the United States. Per that law, this even applies to documents Trump created himself while carrying out official duties.
They also reject claims that the documents are subject to executive privilege, noting Supreme Court precedent regarding Richard Nixon that established a former president can’t assert such executive privilege against officials in the executive branch.
9. Trump’s legal team is not the best.
In one particularly comical section of the court filing, the government excoriates the seeming ineptitude of Trump’s legal team in waiting so long — two weeks! — to ask for a special master to be appointed to review the documents and not doing so immediately.
They call this delay “significant” and point out that when the FBI searched properties belonging to former Trump attorney Michael Cohen in 2018, his lawyers asked that very day to review the documents seized to ensure they didn’t include items subject to attorney-client privilege. They note that Trump himself filed a motion to intervene in that case just six days after the search.
“The need for promptness when a party seeks appointment of a special master is obvious: the government may begin reviewing materials as soon as they are seized, and a delay of even two weeks may well mean — as it does here — that the government has reviewed all of the seized materials by the time relief is sought,” the DOJ wrote. “The former President’s delay in filing this motion thus strongly ‘militates against a finding of irreparable harm.’”
