Top national-security prosecutor joins Trump Mar-a-Lago investigation

The Washington Post · Devlin Barrett, Perry Stein, Josh Dawsey

12:50 JST, October 30, 2022

One of the Justice Department’s most experienced national security prosecutors has joined the team overseeing the intensifying investigation of classified documents at Donald Trump’s Mar-a-Lago home and private club, people familiar with the matter said.

National security law experts interviewed by The Washington Post say prosecutors appear to have amassed evidence in the case that would meet some of the criteria for bringing charges against the former president – an unprecedented action that they said likely would only happen if the Justice Department believes it has an extremely strong case.

David Raskin,who served for many years as a senior federal prosecutor in New York City, and more recently has worked as a prosecutor in Kansas City, Missouri, has been quietly assisting in the investigation into Trump and his aides, according to the people familiar with the matter, who like others interviewed for this article spoke on the condition of anonymity to describe an ongoing investigation.

Raskin is considered one of the most accomplished terrorism prosecutors of his generation, having worked on the case of Zacarias Moussaoui, who was tried in Virginia as a co-conspirator in the 9/11 terrorist attacks that killed nearly 3,000 people. Raskin was also part of the team that prosecuted Ahmed Ghailani in federal court in Manhattan in connection with the 1998 bombings of U.S. embassies in East Africa. Ghailani was acquitted of most counts but found guilty of conspiracy to destroy government buildings and property. He is the only Guantánamo Bay detainee to be brought to a U.S. court and tried and convicted. Both Moussaoui and Ghailani received life sentences.

Justice Department officials initially contacted Raskin to consult on the criminal investigation into the Jan. 6, 2021, assault on the U.S. Capitol. But his role has shifted over time to focus more on the investigation involving the former president’s possession and potential mishandling of classified documents, the people familiar with the matter said.

The addition of Raskin to the team handling the Mar-a-Lago probe is another indication of the seriousness with which Justice Department officials view the case and underscores the high stakes for both Trump and those tasked with investigating him.

Raskin did not respond to messages from The Post. A Justice Department spokesman declined to comment. A spokesman for Trump did not respond to requests for comment Friday.

Just two weeks ago, Raskin won a guilty plea in a case with parallels to the Trump case – a former FBI analyst in Kansas City who authorities say took more than 300 classified files or documents to her home, including highly sensitive material about al-Qaeda and an associate of Osama bin Laden.

In court papers, federal prosecutors say they have recovered a similar number of documents with a variety of classified markings from Mar-a-Lago, all apparently taken from the White House. The Post has previously reported that some of that classified material was highly sensitive and restricted intelligence that included at least one document about Iran’s missile program and others about intelligence-gathering work aimed at China, according to people familiar with the matter who spoke on the condition of anonymity to discuss an ongoing investigation.

Eyeing Trump’s intent

When deciding whether to file charges in an investigation, Justice Department officials often use past cases as a guide. In 2015, authorities won a misdemeanor guilty plea from retired general and former CIA director David Petraeus. Ten years earlier, former national security adviser Samuel “Sandy” Berger pleaded guilty to a misdemeanor for removing classified documents from the National Archives and Records Administration.

But past cases only count for so much when investigating Trump.

“There is no other case in history like this,” said Mary McCord, who served as acting assistant attorney general for national security during the Obama administration. “This is the former president of the United States. This is someone who was the commander in chief, someone who spent four years being briefed every single day on national security issues. It isn’t like any other case, so the steps prosecutors take aren’t going to look the same as any other case.”

Government employees with security clearances have to sign documents acknowledging they know the rules of how to handle such secrets, and follow them. When they leave the government, they also sign paperwork saying they do not possess any classified material, and prosecutors often use that paperwork as evidence that the defendants understood what they did was illegal.

Presidents, however, do not have security clearances and do not sign such paperwork.

For that reason and others, any potential criminal charge would rely heavily on prosecutors’ ability to show Trump’s intent – that he didn’t just unwittingly take classified materials from the White House and store them at his residence at the private club in Florida without knowing it was a crime.

McCord said the timeline of events – from requests for documents from the National Archives, to subpoena demands by the Justice Department, to a court-authorized search of the property on Aug. 8 – could be critical to meeting that requirement.

“The evidence of the many months long back and forth between the president and his lawyers with the National Archives about documents that were believed to be classified that they wanted returned” suggest that Trump was aware of the legal ramifications of the situation, she said.

Aggravating factors

Since the Aug. 8 search, many key pieces of evidence have been described by people close to the matter, and they offer a rough sense of how prosecutors may weigh the “aggravating factors” in Trump’s case – circumstances surrounding an alleged crime that could increase its severity and convince prosecutors to seek charges.

“Classic aggravating factors in a case involving the willful retention of classified documents would include the number of classified documents kept in a place they are not authorized to be,” said David Laufman, a former senior Justice Department national security official. Like the FBI analyst in Kansas City, Trump allegedly had a large volume of classified documents on his property – though 184 of the more than 300 were turned over voluntarily in January in boxes given to Archives officials.

Other potential aggravating factors include whether there was an effort to conceal documents from investigators, or obstruct the probe. People familiar with the investigation have said a Trump aide told the FBI the former president instructed him to remove boxes from a storage room where classified documents were kept – and that was done after Trump received a subpoena in May for any classified material in his possession. That witness account, from former White House valet Walt Nauta, is buttressed by security-camera footage from Mar-a-Lago that shows boxes being moved after the subpoena, according to these people, who spoke on the condition of anonymity to describe an ongoing investigation.

Witness credibility

Federal investigators have interviewed a range of low-level Trump aides in the probe to understand how the boxes got to Mar-a-Lago, how they were packed at the White House and why they were moved, according to two people familiar with the matter.

In addition to Nauta, those questioned include Molly Michael, Trump’s longtime personal assistant, who sat just outside his office and handled all his calls and appointments in both Florida and at his residence and golf course in Bedminster, N.J., these people said. Michael, who also worked in the same role in the Trump White House, departed her job late this summer after being questioned by federal authorities, but she and Trump remain on good terms, these people said. It is unclear what Michael has told investigators.

Nauta still works for Trump and recently traveled with him to a rally, two Trump advisers said. People close to Nauta said his lawyers have conveyed to others that he is likely to face difficult choices in the weeks ahead because of the investigation. He has conveyed to others that he did not seek to be interviewed by the FBI but had to answer their questions, these people said.

Prosecutors have also asked Trump advisers and Archives officials about all the chances Trump was given to return the documents, and why he expressed anger at being asked to do so, according to a person who has heard accounts from some of those who have been questioned.

The credibility of such witnesses will likely be a major factor in any charging decision regarding Trump. When first questioned by the FBI, Nauta denied handling sensitive documents or the boxes that might contain such documents, according to people familiar with the matter, before his account shifted significantly in a second interview. Justice Department officials are trying to arrange a third interview, and possible grand jury testimony, but have yet to reach an agreement, these people said.

To prosecutors, evidence of possible obstruction of an investigation “is sort of a red cape in front of a bull,” said Laufman, who described the known evidence as “sound evidentiary footing” to pursue a case.

“From the public facing information thus far, it would seem to me that the Justice Department already has a bevy of aggravating factors and if it otherwise can meet its burden of proof beyond a reasonable doubt that Mr. Trump unlawfully retained classified information, it would be on a sound evidentiary footing to criminally charge him,” Laufman said. “That’s not to say whether ultimately the attorney general in his judgment will find it in the net interests of the department to criminally charge a former president of the United States for the first time in history.”

There are important questions that have to be answered before prosecutors can make such a determination, such as whether key witnesses’ accounts of what happened at Mar-a-Lago are credible. Prosecutors are also trying to determine whether claims made by one Trump ally and adviser, a former federal prosecutor named Kash Patel, could provide Trump a defense that the documents were no longer classified.

Patel has publicly claimed that Trump declassified material. While Trump has made similar claims in public interviews, his lawyers have yet to argue in court papers that he did declassify the documents. In recent weeks, prosecutors called Patel to answer questions before a grand jury about any alleged declassification decisions by Trump, according to people familiar with the matter who spoke on the condition of anonymity. Patel has asserted his Fifth Amendment right to refuse to answer questions, and the two sides appear to be at a stalemate. Patel’s grand jury appearance was first reported by CNN.

Prosecutors have also asked Trump aides if they ever saw or heard Trump give any kind of blanket declassification order, according to a person with direct knowledge of the matter.

Moving quickly

Brandon Van Grack, a lawyer in private practice who previously worked classified-mishandling cases as a federal prosecutor, said investigators typically don’t interview key witnesses until they have collected significant amounts of evidence.

“The fact that there is reporting that they are talking to individuals who appear to have directly communicated with the former president is a high sign that there has been an evolution in the case,” Van Grack said. “Before you talk to key witnesses, you typically want to have most of the facts already nailed down so that you are focused on what holes you need to fill and can better assess whether the witness is telling a complete and true story.”

It is still likely to be months before a charging decision is made, according to Van Grack, who said he expects prosecutors won’t make any big decisions in the case until after a court-appointed special master completes his review of the 13,000 nonclassified documents seized in the FBI search. Criminal investigators are barred from using these nonclassified documents until after the review is completed, now expected in December.

The Justice Department could get access to the nonclassified material earlier if prosecutors win a pending appeal that would overturn the appointment of the special master, but the appeals court judges are not expected to make their decision until late November at the earliest.

Javed Ali, a senior official at the National Security Council during the Trump administration who now teaches at the University of Michigan, said the threshold to potentially charge the former president would be extremely high, leaving prosecutors little room for error. Even if prosecutors could feasibly file multiple charges against Trump, he expects they will only bring charges if they have an ironclad case.

“Because this is so unprecedented, they are going to take it slow,” Ali said. “It’s going to be so explosive. And the last thing you want to do is bring a case to trial that is weak or has holes because then what would be the point?”