A late-night court filing from the Department of Justice revealed yet more of the evidence the government could bring in a case against former president Donald Trump for taking hundreds of documents containing sensitive national defence information home with him and keeping them more than a year after his time in the White House had ended.
In the 36-page filing submitted just before midnight on Tuesday in response to Mr Trump’s demand for the appointment of a third-party special master to review documents seized during the 8 August search of his Palm Beach, Florida home and office, prosecutors argued that Mr Trump “lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him”.
Prosecutors also argued that a decision to require a special master to review the evidence seized would be unnecessary and would also “significantly harm important governmental interests,” including US national security.
They also said an FBI “filter team” has already reviewed the evidence seized during the search of Mr Trump’s property for any material that is attorney-client privileged while dismissing any claim that records could be shielded from review under executive privilege because Mr Trump is no longer president and the FBI and DOJ are entitled to access such records because they are part of the executive branch.
“Appointment of a special master would impede the government’s ongoing criminal investigation and—if the special master were tasked with reviewing classified documents—would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused,” they said.
But the department’s filing supplemented their legal arguments with new, previously hidden details of what has been a more than a year-long investigation into whether highly classified documents were being kept by Mr Trump — whose authority to possess them expired when President Joe Biden was sworn in on 20 January 2021 — and whether the ex-president and his associates obstructed that investigation.
Here are some top takeaways from the Department of Justice filing:
The 8 August search turned up more than twice as many documents as Mr Trump’s lawyers previously returned
According to the department’s late Tuesday filing, the 8 August search of Mr Trump’s property resulted in the recovery of 33 separate “boxes, containers, or items of evidence” containing “Thirty-Three Boxes, Containers, or Items of Evidence, Which Contained over a Hundred Classified Records, Including Information Classified at the Highest Levels”.
Prosecutors said FBI agents also found three classified documents in desks located in Mr Trump’s post-presidential office space known as the “45 Office” and 76 classified documents in Mr Trump’s storage room.
They also said that 13 of the 33 “boxes or containers” seized during the search contained documents bearing classification markings, with the total number of classified documents recovered on 8 August coming to more than twice what Mr Trump’s lawyers gave investigators when they swore that none remained there on 3 June.
Some documents were so sensitive that the Department of Justice personnel tasked with reviewing them had to wait for special security clearances
A photograph of some documents found at Mr Trump’s property which was included with the court filing revealed that some documents were hidden behind cover sheets denoting them as classified at the top secret level and containing “secure compartmented information” — a level of secrecy generally reserved for intelligence sources and methods.
Prosecutors also said a number of seized documents were so highly classified that “even the FBI counterintelligence personnel and DOJ attorneys conducting the review” had to be issued special security clearances before they could look at the documents without themselves running afoul of US law.
Trump lawyers refused to let investigators examine boxes in a storage room they showed them during a June visit to Mar-a-Lago
Mr Trump and his allies have repeatedly claimed the ex-president cooperated wholeheartedly with the Department of Justice in its efforts to recover records from his former administration that are by law considered property of the US government.
In public statements and court filings, the Trump team has argued that Mr Trump was glad to assist the government he once led, and pointed to the placement of a padlock on the storage room — and the decision to show FBI agents and the head of the department’s export control and counterintelligence section — as evidence that he was not working to frustrate the government’s aims.
But prosecutors have now said the statements offered by Mr Trump and his legal team don’t accurately reflect what actually happened when investigators visited the ex-president’s private club in June.
They wrote that Mr Trump’s attorneys provided them with a folder containing several documents and an affidavit in which one Trump lawyer and official records custodian — ex-One America News anchor Christina Bobb — swore under penalty of perjury that no more classified documents were stored at Mar-a-Lago, and that the basement storage room the investigators were shown was “the remaining repository” of White House records.
But prosecutors said Mr Trump’s team did not allow them to verify what Ms Bobb had sworn to in the affidavit.
“Critically, however, 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,” they wrote.
They also noted that the folder provided during that June meeting contained 38 separate documents which had been marked as classified at levels up to top secret, and added that Mr Trump’s lawyers “offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises … nearly one-and-a-half years after the end of the Administration”.
The government ‘developed evidence’ showing that Trump’s lawyers lied
Prosecutors said the FBI “uncovered multiple sources of evidence” indicating that Mr Trump’s representatives had not been truthful when they said all classified documents once held at Mar-a-Lago had been turned over to the government.
Investigators also “developed evidence” which showed that searching Mr Trump’s storage room would not have let the FBI discover all classified documents that remained at his property despite his attorney’s sworn declaration that no more were in his possession.
Agents also found evidence showing that records “were likely concealed and removed from the Storage Room” in what they said was “likely” an effort 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,” they said.
