Initial Analysis Of Yesterday’s DOJ Filing In Trump Document Investigation
It appears that the DOJ has enough evidence to indict someone.
Last night the Department of Justice responded to the Trump legal team’s petition to have a Judicial Special Master appointed to review the documents it recovered in the August Search on Mar-A-Lago. Having scanned the filing and read analysis from a variety of experts (I highly recommend these two Twitter threads from Gabriel Malor and Renato Mariotti), here are my current takeaways from the document.
#1. Not a lot new in it, but what is new is significant.
Thanks to the release of various documents about the lead-up to and the search, the filing largely confirms and expands on things we already knew. It confirms what was taken in the search and the nature of the documents while providing some additional details (over 100 documents marked classified were recovered during the August search). The statement also confirms that classified documents were found outside of the “storage room” (more on that below). It also verifies the timeline laid out by the National Archive and again documents the stonewalling from the Trump legal team. For the sake of brevity, the rest of this post will focus on the new details and what they could mean.
#2. The document confirms that in May former President Trump was served with a grand jury subpoena seeking documents bearing classification markings.
This is an important reminder that while the specific charges listed on the Search Warrant were NOT directly tied to the topic of classification, this issue still remains at the heart of this case (more on that below). This is what led to the June turnover of documents. This grand jury was convened by the Justice Department based on a referral from the National Archives. The key takeaway: Trump’s legal team has had time to prepare for this since May.
#3. The Trump legal team knowingly or unknowingly misled the Government over where documents were stored and the existence of remaining documents
After the June removal of the classified documents, one of Trump’s attorney’s signed the following statement:
Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.
I swear or affirm that the above statements are true and correct to the best of my knowledge.https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.48.0_1.pdf
The filing notes that over 100 documents marked classified were recovered in the August search (double the amount turned over in June).
Even worse for that attorney, they said the following to the government agents:
[C]ounsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched.ibid.
Additionally, on that day the attorney in question “explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room.”
Taken with what we have learned since then, I would say this attorney is in a LOT of trouble (and most likely going to be “Fall Guy” (or “Fall Gal”) #1). All of this taken together should establish adequate mens rae for a “lying to the FBI” charge if not full-out obstruction.
Additionally, including this in the filing can be taken as implying to the Federal District judge reviewing the order that Trump’s legal team has a history of not acting in good faith. In fact, they hang a lampshade on this fact:
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.ibid.
For more on the topics of Trump’s attorneys and what they have said to have taken responsibility for, see this analysis at Empty-Wheel.
#4. It turns out Trump’s Passports matter after all.
Shortly after the search, it was revealed that the FBI had taken Trump’s passports along with other evidence. There was a lot of speculation as to why. Then the passports were quickly returned. The filing provides more detail and points to the implication of why the seizure of the passports was so important.
Consistent with Attachment B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion.ibid.
The passports were seized because they were found, outside of the storage room, in the draw of a desk located within Trump’s personal “45 Office” that contained documents marked classified and other government records. This is really important for two reasons. First, it demonstrates that after the June document handover, classified documents (none of which were supposed to be there based on the attorney’s statement) were being intermingled with the former President’s personal effects outside of the Storage Room. And because this was in the former President’s office, it makes it even harder to indicate that he had no knowledge of the presence of the documents (and note from the picture at the top of the post that the markings on said document’s cover pages are not exactly subtle).
Ironically, the GOP House Judiciary committee tried to joke about how the box containing the classified documents pictured at the top of this post also contained a framed picture of Time Magazine. However, all that does is demonstrate how intermingled these documents were with personal items. Again, that is not a great look–especially if these were not declassified, which gets us to…
#5. Despite advancing the claim the documents were declassified in the media, the Trump team has yet to make that argument in filings
Again, I realize that some people consider the classified issue to be a distraction, but the DOJ clearly has other feelings. They confirm something I observed a few days ago–that the Trump legal team has never assertedly made the argument that the former President actually used his power to declassify these documents.
The filing actually takes this point a step further and argues that if anything, the actions of the President’s attorney’s in June suggest they still believed the documents to be classified:
On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.ibid
This is a bit of reading the tea leaves, but it appears that the DOJ is building a case to defend against claims of blanket declassification.
Additionally, they note that at no time did Trump’s attorney directly invoke executive privilege (they only suggested it as a possibility).
So what does this all mean?
First, despite Trump and his supporter’s protestations, the fact this document exists is proof of how much deference the former President has gotten through this process. The request for a Special Master in this case (coming weeks after the search) is absurd (in addition to the DOJ’s reasoning see also this amicus brief filed today). If this was any other person, it’s doubtful that a Federal Judge would have let it get this far. And more importantly, the DOJ would never respond to such an absurd request.
Second, the DOJ is taking this very, very, seriously. This level of detail (they had to get the court’s permission to submit a filing that was 15 pages over the allowed limit) is very usual for one of these responses. I think a strong argument can be made that they are using this as a way to demonstrate the strength of their case and the underlying evidence (or at least what has been shared with the public). I (and my live-in legal expert) read as them engaging in a PR game, not to mention communicating to the Trump legal team the level of jeopardy that are in.
Finally, as the subhead suggests, what has already been made public is significant enough to indict on. At a minimum, I hope the Trump lawyer who was referenced in the filing has a good lawyer. And, based on all of this, and in particular the discovery of documents marked classified in the draw of a desk in the former President’s office, comingled with personal documents, they most likely have enough to indict the former President.
Of course, having the evidence and choosing to act are two different things entirely. And while indicting Trump remains a possibility, it’s still, in my mind, a low probability. However, I will also admit that with each new document release, the probability will get higher and higher.
And, who knows what might happen if the DOJ decided to go hard after a Trump attorney who they most likely have dead to rights? Thanks to the new laws signed by President Trump, they are potentially facing a felony conviction with a not insignificant amount of prison time associated with it.
Two quick addendums:
- The Trump legal team has until midnight tonight to respond to this filing. That document will be one to watch for (and in particular if they finally affirmatively assert that the former President believes he declassified these documents).
- No, I don’t think any of this will sway any of the former President’s core supporters. I do think it’s going to eat into some support at the margins. I think Lindsey Graham is one to watch.
One more addendum that I should have thought of earlier…. Like the Republican House Judiciary Account, we’re about to see a lot of people publicly demonstrate how either deeply and willfully ignorant they are or that they have absolutely no defense for what has been revealed. Here is one example of that from a Trump 2020 campaign strategist desperately trying to throw up covering flack.
This fails to “understand” that (1) this was evidence documenting the contents of box A2 from the search in August, (2) the fact that all it shows are the cover sheets (which are enough to demonstrate what the documents were marked as), and (3) that at least some of those documents contents were concealed–Andy, I’m curious if you could speak to why those were handled in that way (I’m guessing no cover sheet).
I do welcome any of the former President’s supporters who are most likely reading this article to offer any alternative explanations or defenses that they think excuse what we are seeing.