Government Filing Reveals Trump Concealed Classified Material And Obstructed The Investigation

Late Tuesday night the Department of Justice filed its response to a bizarre and poorly supported motion by Donald Trump to appoint a special master to review documents seized during the warrant authorized search of Trump’s Mar-a-Lago home. The motion, filed two weeks after the search, was so nonsensical that the judge (a late Trump appointee) asked for it to be supplemented making more clear what Trump was seeking. Trump’s attorneys filed the supplement that only marginally improved the original version. Even so, the judge set the matter for briefing and the Department of Justice was required file its brief in response last night.

As the DOJ prepared to respond many (to include myself) focused on possible hints on the nature of classified documents seized. Such revelations mostly did not happen. We heard, again, that they were highly sensitive documents, often Top Secret, with additional codes for restricting or compartmentalizing the information (see above picture). So called “Special Access Program” information that represents America’s most guarded secrets.

That is not to say that nothing happened in the brief. It most definitely did. The facts portion of the brief gave a much more detailed timeline of government efforts to retrieve the documents, and more importantly, Trump’s active efforts to conceal them and obstruct the investigation.

The blockbuster news in the government brief is evidence of what appear to be deliberate efforts (by Trump personally) to conceal the classified materials seized by warrant during the search this month. Whatever those things were, he wanted them in a big way. I’ll lay out that timeline.

  • 2021: NARA negotiates with Trump attorneys for return of Presidential Records Act documents.
  • January 2022: NARA receives the 15 boxes from Mar-a-Lago.
  • Late January/Early February 2022: NARA review finds numerous of the returned records were classified (see my prior article for a breakdown of that). NARA also finds that some documents were destroyed (torn up).
  • February 9, 2022: NARA refers the classified/destroyed records issue to the DOJ/FBI.
  • March through mid-May 2022: Trump counsel’s invoking claims of executive privilege under Presidential Records Act delays FBI review of the records.
  • May 10, 2022: In a previously disclosed letter, NARA rejects Trump counsel request for an additional extension before allowing FBI review. NARA tells Trump’s attorney executive privilege cannot apply to review of records within the executive branch. NARA stated that this call was not even a close one.
  • May 11, 2022: Based on NARA’s claim of classified documents the FBI secures a grand jury subpoena for any documents marked as classified at Mar-a-Lago.
  • May 16, 2022: FBI finally begins to review the records associated with the 15 boxes from January. The FBI discovers the hundreds of documents with the various security classifications. You can see the breakdown of security classifications from this trove HERE.
  • June 3, 2022: At invitation of Trump counsel FBI agents and DOJ attorney visit Mar-a-Lago. They are given some materials, a few of which are classified. They are given a certification from Trump’s attorney, that says it is on behalf of Trump, that a “diligent search” was conducted and there are no more classified documents at Mar-a-Lago. The brief provides the full statement by Trump’s attorneys below:

You have to believe that since the attorney expressly said this statement was “on behalf of” Trump that he asked Trump to review it before the attorney signed it. This fact alone makes the attorney a fact witness in the case, more on that below.

The brief also makes clear that while the agents were shown the storage closet they are NOT permitted to open the boxes and see what was inside. The brief states, “former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes.”

  • June/July 2022: Now is where things get interesting. Per the brief:

“the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. 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 . . . This included evidence indicating that boxes formerly in the Storage Room were not returned prior to counsel’s review.”

The brief is suggesting that Trump’s attorneys may have acted in good faith, but that Trump hid many more classified documents from them when those attorneys reviewed what was in the storage room. The government makes clear that some classified documents were found in Trump’s office, to include his desk. The brief also, again, suggests that there may have been some effort at witness tampering.

Quite obviously the government cannot yet state what (or who) those “multiple sources” are without compromising the investigation

  • August 5, 2022: Affidavit for warrant sworn and search warrant issued.
  • August 8, 2022: Search warrant executed. In a few hours it finds more than twice as many classified documents as those turned over in response to the subpoena in June.

The brief repudiates many of the narratives advanced by Trump and representatives. I’ll walk through some of those.

“We Were Fully Cooperating”

The most common of the Trump narratives is that the search warrant was unnecessary, Trump and his attorneys were fully cooperating, and the DOJ only needed to ask. There have even been claims the agents were free to go through any boxes and take whatever they wanted when they visited on June 3d.

The DOJ brief effectively asserts this narrative is a lie. Rather, the brief makes clear evidence was deliberately moved to conceal it, so that it would not be found the basement closet at Mar-a-Lago. The brief makes clear this case is not about merely retaining records that should not have been there. This case is about malicious concealment and obstruction of the investigation. In the words of the brief:

“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.”

Trumpers have claimed the FBI was free to go through the boxes in the storage closet on June 3d. The brief makes clear they were expressly forbidden to do so. The brief also makes clear that had they done so many of the secret documents had been removed from that room and hidden elsewhere.

The core of the case is concealment and obstruction, the opposite of cooperation.

“Why Did They Wait So Long?”

Another refrain from the Trump defenders has been to argue that the documents could not have been that big of a deal if the DOJ waited a year and a half to get them. However, the timeline above puts that allegation to rest.

NARA did not know of the classified documents issue until this January when it received the 15 boxes from Mar-a-Lago. Trump’s own legal maneuvering kept the documents from the FBI until this May and the grand jury quickly subpoenaed any documents marked as classified.

On June 3d some classified documents were provided and Trump’s attorneys represented in writing, on behalf of Trump, that was all of them. Only later, through multiple sources not yet identified, did the DOJ learn that representation was false.

“Trump Declassified Them”

The Trump defense here is that as President Trump declassified all these documents and as President he had an absolute unhindered right to do so. While arguing Trump had such authority, Trump’s attorneys have so far avoided claiming he actually did so. The DOJ brief repeatedly points out that neither Trump nor his attorneys asserted the documents marked as classified were actually declassified when they were turned over in January and June.

The criminal statutes cited in the warrant would make any sweeping Trump declassification irrelevant as they are not based on classification status. More to the point, the obstruction and concealment nature of this case makes it irrelevant as the May subpoena demanded any documents merely marked as classified.

The “he declassified them” argument also ignores perhaps the most important point of all. A sweeping declassification, done not in the interest of national security but simply to cover Trump’s ass, does nothing to mitigate the harm to the nation if the documents fall into the wrong hands.

“They Took Trump’s Passports”

Trump’s attorneys have argued that the taking of his passports proves the search was illegal and over broad. They claim the government giving back the passports is an admission the the government was wrong to take them. The government makes clear that is not the case.

The passports were found a drawer of Trump’s desk along with classified documents. The passports were taken because they were (and remain) legitimate evidence. The passports being colocated with the classified documents ties Trump to those documents. The brief says the DOJ returned those passports at its “discretion,” even though they were legit evidence.

“The Documents Belong To Trump”

Going further even than the sweeping declassification argument, this one claims that as President Trump was free to take any documents he wanted.

This is simply wrong. The law is clear that: “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” 44 U.S.C. § 2202

The Problem For Trump’s Attorneys

Many have suggested that the “multiple sources” the DOJ has relied on may include some of Trump’s attorneys. If so, they should have ended their representation when they started talking to the government.

The brief makes quite clear that some in the thin line of Trump’s attorneys are likely witness to this case. Rule 3.7 of the Model Rules for Professional Conduct make clear that an attorney shall not represent a client in a case where the lawyer is a witness.

Not only are all the lawyers who inventoried that storeroom, and had any role in the preparation of the letter certifying all documents marked as classified had been turned in, almost certainly witnesses, they would almost certainly be witnesses against Trump. They have a compelling conflict of interest demanding they terminate their representation.

That problem means they should not be working on the brief the Trump lawyers have to file by 8 pm Wednesday night. It also means they should not appear in court to argue the matter at a hearing the judge has scheduled for Friday.

What Should Trump’s Attorneys Do

Trump had his attorneys file this incompetent motion more as a public relations stunt than as a legitimate legal gambit. The motion provided talking points for the conservative media to munch on.

However, now the motion is a legal albatross and Trump’s attorneys should voluntarily dismiss it rather than risk a hearing before the judge on Friday that could compel Trump attorneys to answer (or refuse to answer) questions in a way that would damage their client.

The judge could ask Trump’s attorneys directly whether Trump actually did declassify all the documents. What truthful answer could they provide?

The judge could ask the attorneys to explain the obviously false representations under oath in the June letter denying any more documents marked as classified remained at Mar-a-Lago. What truthful answer can the attorneys give that does not damage their client?

The judge could even ask if the attorneys are conflicted out of even appearing before her on this matter because of the conflict discussed above.

No good to their client can come from that hearing. The smart move is to moot the hearing by withdrawing the motion.

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Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80