Trump team may have hidden, moved classified papers, Justice Department says

The Washington Post / Devlin Barrett

15:35 JST, September 1, 2022

Former president Donald Trump and his advisers repeatedly failed to turn over highly classified government documents even after receiving a subpoena and pledging that a “diligent search” had been conducted, leading to an FBI raid of his Florida home that found more than 100 additional classified items, according to a blistering court filing by federal prosecutors late Tuesday.

Trump’s legal team fired back Wednesday night, saying prosecutors “significantly mischaracterized” some of their interactions with Trump’s representatives, without elaborating. In their 19-page filing, Trump’s lawyers argue that special care must be taken by the courts in this matter because it involves a “legally unsupported raid” on someone who is “possibly a candidate against the current chief executive in 2024.”

The Justice Department filing describtraces repeated efforts by government officials to recover sensitive national security papers from Trump’s Mar-a-Lago residence and club. Their quest centered on a storage room where prosecutors came to suspect that “government records were likely concealed and removed . . . and that efforts were likely taken to obstruct the government’s investigation.”

The agents also came to doubt claims by Trump’s team that the storage room was the only place where such documents might be found.

When agents conducted their court-ordered search on Aug. 8, they found material so sensitive that “even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents,” the filing says.

Among the most potentially incriminating details in the government filing is a photograph, showing a number of 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.

The 36-page filing also reveals, for the first time, the text of a written assurance given to the Justice Department by Trump’s “custodian of records” on June 3. It says Trump’s team had done a thorough search for any classified material in response to a subpoena and had turned over any relevant documents.

Trump and his representatives gave the Justice Department 38 classified documents that day, the filing says, in addition to 184 others that were discovered in boxes sent to the National Archives earlier in the year.

The filing says Trump’s lawyer told Justice Department officials that all White House records that remained at Mar-a-Lago nearly 17 months after Trump left office were contained in the storage room, and that all boxes in the room had been searched.

Yet when FBI agents raided the Trump property in August, they found more than 100 additional classified papers, a discovery that “calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” prosecutors wrote.

The filing offers the most detailed account to date of the interactions between Trump’s team and government officials, who over the course of many months became increasingly desperate to find and contain all of the classified material stashed at Mar-a-Lago.

In parts of the filing, using only their job descriptions, prosecutors paint Trump’s lawyer, Evan Corcoran, and custodian of records, Christina Bobb, as so uncooperative that agents suspected the Trump team might be obstructing the investigation.

The filing, for instance, says that when FBI agents and Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, met with Trump’s two representatives in early June, “the former President’s counsel explicitly 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.”

Yet, earlier this month, Bobb told The Washington Post that the lawyers showed the federal officials the boxes and that Bratt and others spent some time looking through the material.

Trump made similar claims on social media after the raid, saying that his lawyers and representatives “were cooperating fully, and very good relationships had been established.” He added, “The government could have had whatever they wanted, if we had it.”

As part of the filing, prosecutors included a copy of the May 11 subpoena issued to Trump. It demanded “all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings,” including a host of different types of secret documents. Among them was S/FRD, a category of information about nuclear weapons. The Washington Post has previously reported that classified documents about nuclear weapons were among the items being sought by FBI agents in the investigation.

Trump has publicly complained that agents confiscated his current and former passports in the search, suggesting those seizures were a sign of the capricious and unfair nature of the raid. But prosecutors noted in the new filing that the passports were found in “a desk drawer that contained classified documents and government records.” In a footnote, prosecutors argued that Trump’s passport being intermingled with classified documents is relevant evidence in their investigation into who may have mishandled national defense information.

The filing does not specify precisely how FBI agents came to suspect there were still classified documents at Mar-a-Lago after Trump’s team responded to the subpoena, but officials previously have indicated they have talked to a significant number of individuals who provided relevant information. One person with knowledge of the process told The Washington Post that FBI agents questioned some Trump advisers this spring, asking where classified documents could be found and how boxes of documents were packed.

In the course of those interviews, the FBI learned there were documents at multiple locations in Mar-a-Lago, this person said, and that Trump advisers were instructed by some on his legal team not to help pack the boxes because doing so could create legal issues for themselves.

The FBI also heard from at least one source that Trump did not hand over all the classified documents in his possession, and that he planned to keep many of them, according to a different person with direct knowledge of the matter. One individual who was questioned by the FBI in recent months said the investigators’ focus appeared to be on “whether or not there was a big coverup here,” though this person added that they did not have specific knowledge of many of the documents or Trump’s intentions.

Another person questioned by the FBI said agents asked if documents had been moved, if they knew of all the rooms where Trump kept them, if they were aware of any documents remaining at Mar-a-Lago, if they knew of any efforts to destroy documents and if they knew of Trump’s procedures for handling them after he left office. This person said at least four of their colleagues were also contacted by the FBI.

The people spoke on the condition of anonymity to discuss sensitive details of the investigation.

The Justice Department filing also takes aim at Trump’s defenders who said he had declassified the seized material while he was still president or who suggested it might somehow be covered by executive privilege. At that same June 3 meeting, the filing states, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.”

The dueling court filings between prosecutors and Trump’s lawyers come ahead of a hearing scheduled Thursday before U.S. District Judge Aileen Cannon on a request by Trump’s lawyers to have a special master appointed to review the files seized by the FBI.

The Justice Department notified the court Monday that a “filter team” of law enforcement officials had already finished its examination of any possibly privileged documents.

In Wednesday night’s reply, Corcoran and fellow Trump lawyers Lindsey Halligan and James Trusty said none of the prosecutors’ claims should prevent the appointment of a special master. They concluded their filing by criticizing Attorney General Merrick Garland’s handling of the case, particularly for public comments he made explaining his rationale for pursuing the classified documents investigation.

Trump’s legal team also criticized the Justice Department for “gratuitously” including the photograph of classified materials, which they described as “pulled from a container and spread across the floor for dramatic effect. The Government pretends these are not historically important moments.”

The defense lawyers insisted Trump had a right to keep presidential documents in his possession. They contended that much of the seized material contained presidential communications and was therefore shielded by executive privilege. Executive privilege is usually invoked to shield communications from Congress or the courts, not another department of the executive government such as the Justice Department.

In their filing Tuesday night, federal prosecutors pushed back against what they called “the wide-ranging meritless accusations leveled against the government” by Trump’s lawyers. The request for a special master was pointless, the government reasoned, because its review of the documents was already complete. The judge should reject Trump’s demands to get the documents back “because those records do not belong to him,” but are rather the property of the government, the filing said.

Although Cannon, who was nominated to the bench by Trump in 2020, said on Saturday that she was inclined to appoint a special master, she also said her order “should not be construed as a final determination on Plaintiff’s Motion.”

FBI agents who conducted the search took 33 items of evidence, most of them boxes, according to the new filing, which said 13 of the boxes contained classified documents, some categorized as top secret. Avril Haines, the director of national intelligence, told lawmakers Friday that U.S. intelligence analysts will conduct a review of the classified materials to determine the potential risk to national security if their contents were disclosed.

According to a partially redacted affidavit unsealed Friday, the agents who conducted the search of Mar-a-Lago were seeking all “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation” of three federal laws, including a part of the Espionage Act outlawing gathering, transmitting or losing national defense information. The warrant also cites laws on destruction of records and concealment or mutilation of government material.

The search is part of a criminal investigation into whether Trump and his aides took secret government papers and did not return all of them, despite demands from senior officials, and whether anyone obstructed government efforts to recover all of the classified material.