Justice filing points to new legal trouble for Trump and lawyers, experts say

The Washington Post / Perry Stein, Jacqueline Alemany, Josh Dawsey

14:48 JST, September 1, 2022

Newly public details from the Justice Department’s extraordinary criminal probe of documents taken to Mar-a-Lago suggest enormous legal peril for two of Donald Trump’s attorneys – and considerable uncertainty for Trump himself, intelligence and legal experts said.

There’s no way to predict whether the Justice Department will ultimately pursue charges against the former president or his associates. But in a lengthy court filing Tuesday night, government lawyers recounted numerous instances in which Trump’s lawyers allegedly misled government officials during the investigation and Trump or his team appear to have haphazardly handled materials that contained national security secrets.

The evidence laid out in the filing, experts said, could build a

legal case that Trump attorneys Evan Corcoran and Christina Bobb obstructed the government’s investigation, allegedly telling FBI agents and prosecutors that they had handed over all classified documents when in fact many remained in Trump’s possession.

Left unanswered were key questions that could determine Trump’s legal fate: Did he direct Corcoran and Bobb to mislead the government, either before or after the FBI raid of his Florida home and club? And, if so, why did he want to keep reams of top-secret classified documents there?

“It’s bad,” said Peter Lapp, a former FBI agent who worked on espionage cases and is now a private consultant. “It’s all pretty damning.”

The filing landed shortly after Trump hired a new lawyer, after struggling for weeks to find experienced attorneys willing to represent him. Chris Kise, a former solicitor general in Florida who served as an adviser on Florida Gov. Ron DeSantis’s transition team, signed a multimillion-dollar deal to represent the former president, according to people familiar with the hire. They said he was given assurances that he would be taking a “lead” role in the case.

“Evan is in a jam, but the question is what Evan actually believed,” one person involved in Trump’s orbit said of Corcoran. “The president needs another lawyer than Evan right now.”

Kise was highly recommended by multiple Trump allies in Florida, people with knowledge of the situation said. Like several others interviewed for this story, they spoke on the condition of anonymity to discuss sensitive aspects of Trump’s legal case.

The new lawyer’s role could be on display as soon as Thursday, when U.S. District Judge Aileen M. Cannon will hold a hearing in Florida on Trump’s request that a special master review files seized during the FBI’s search.

The Justice Department filing argued against the request, and laid out its justification for the search and for the government’s right to both classified and unclassified White House documents.

The filing states that when officials visited Mar-a-Lago in June, Trump’s lawyers did not let them search boxes in a storage room where the documents had been kept. Trump’s custodian of records, who was not identified by name in the filing but previous reporting has shown is Bobb, signed a sworn statement in June pledging to officials that a “diligent search” for classified materials had been conducted at Mar-a-Lago. Another Trump lawyer, Evan Corcoran, allegedly told investigators at that time that all classified documents had been returned.

Two months after the sworn statement by the custodian of records, FBI agents searched Mar-a-Lago and recovered more than 100 additional classified papers, some with labels that suggest they involve highly sensitive intelligence information. At a minimum, experts said, the seizure could lay the groundwork to charge Bobb and Corcoran with obstruction-related crimes.

“They swore they had provided a diligent search and had provided all the classified documents in their possession, which they had weeks to provide,” Elizabeth Goitein, a national security lawyer at the Brennan Center for Justice, said Wednesday. “These kinds of details provide significant support for the obstruction charges.”

Three people close to Trump acknowledged that Bobb and Corcoran could be in trouble and said Bobb is no longer expected to play a role in Trump’s legal defense. “Christina is not going to be on the motions going forward,” one of the people said.

Bobb and Corcoran did not respond to requests for comment. One top Trump adviser said the former president’s legal team planned to argue that there was “wiggle room” in the sworn attestation.

When agents searched Mar-a-Lago, they sought documents that were “illegally possessed” in violation of three federal laws, according to the warrant, including a part of the Espionage Act that prohibits gathering, transmitting or losing national defense information.

The warrant, unsealed in August, also said agents were seeking evidence of potential destruction of records and concealment or mutilation of government material, two criminal statutes designed to prevent the obstruction of investigations.

Trump and his team have claimed that the former president was allowed to have the documents that were found in his possession and had declassified them before leaving office. But experts said that is probably not a strong defense, particularly if the information in those materials could pose a serious threat to national security if released.

Among the most explosive details in the Justice Department response on Tuesday was a photograph showing files labeled “Top Secret” with bright red or yellow cover sheets, spread out over a carpet. Those files were found inside a container in Trump’s office, according to the court filing. A close examination of one of the cover sheets in the photo shows a marking for “HCS,” a government abbreviation for systems used to protect intelligence gathered from secret human sources.

Lapp, the former FBI agent, called the photo “striking” and said the cover sheets on those documents suggest that they were probably still considered classified.

And while Trump’s team could claim that it did not know it was still in possession of those documents, Goitein said the fact that the filing said that agents found so many documents at Mar-a-Lago so quickly during the search could complicate that argument.

“Trump and his lawyers had months to find these documents,” she said. “The FBI was able to find them easily. It was in a desk, for goodness sake.”

Still, despite the mounting evidence found at Mar-a-Lago, there is no precedent for prosecuting a former president. That’s one of the questions investigators are probably grappling with as they proceed with their probe: What does it take to charge someone who once served as the commander in chief?

The evidence would need to meet a higher threshold than is necessary in a typical case, according to Chuck Rosenberg, a former U.S. attorney and senior FBI official.

Rosenberg said there would need to be compelling evidence that a crime had been committed and that the alleged crime would have to be serious – far more serious than what is needed to compel prosecutors to pursue charges against an ordinary citizen. “One or the other is not sufficient,” he added.

“I don’t imagine you would charge any former president with a relatively minor crime,” Rosenberg said, referencing one of the statutes cited in the search warrant, 18 USC 2071, which criminalizes the mutilation of documents.

Rosenberg said that while that statute is a “perfectly lawful and valid basis” to get into someone’s home on a warrant, it’s probably not a serious enough stand-alone charge to bring against a former president.

“On the other hand, there are some statues – like the espionage statute – that are extraordinarily serious,” he continued. “For instance, and hypothetically, if you find that [a former president] is passing information to a foreign government, or trying to monetize that information, that absolutely succeeds on the magnitude of the crime axis. But you still need the other axis – sufficiently compelling evidence to prove that very serious crime.”

Mary McCord, who served as acting assistant attorney general for national security during the Obama administration, warned that if the documents in Trump’s possession pose a serious risk to national security, prosecutors would have to weigh whether it makes sense to use those materials as evidence in a trial, potentially posing a further national security risk.

“There is an inverse relationship whereby the more highly sensitive the information is, the less likely there will be a case,” McCord said. “There can be a situation in which – separate and apart from the merits of the case – the case is not prosecuted because the national defense information is too sensitive to be brought to a jury.”