Why Yesterday’s DOJ Filing Suggests a Trump Indictment Is Coming
By ANDREW C. MCCARTHY
August 31, 2022 3:07 PM
Former president Trump is likely to be charged with obstruction of justice and causing false statements to be made to investigators.
Former president Donald Trump is facing the very serious prospect of being indicted for obstruction of justice and causing false statements to be made to the government. That is the upshot of a court submission filed by the Justice Department on Tuesday night, in response to the Trump camp’s belated motion for the appointment of a special master to review materials seized three weeks ago from the former president’s Mar-a-Lago estate.
Last week, when an extensively redacted version of the affidavit supporting the Mar-a-Lago search warrant was released, I opined that “perhaps the most overlooked sentence” in the document was this one: “There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.” The government’s Tuesday night court filing bears that out.
The submission also illustrates that, while the affidavit remains substantially under wraps, we already know the gist of it (as I explained last week). Prosecutors begin with a factual recitation (pp. 2-13) that substantially echoes a letter written by Archivist Debra Seidel Wall to Trump’s counsel — covering events from the time Trump left office on January 20, 2021, through May 10, the date of Wall’s letter.
Moreover, we already knew that after Wall’s letter there followed (a) an initial grand-jury subpoena for classified documents, served on May 11; (b) a meeting at Mar-a-Lago on June 3, which, contrary to Trump’s public depiction of an amicable negotiation session between his lawyers and DOJ officials (into which Trump himself popped in), was actually compliance — or as it turned out, non-compliance — with a grand-jury subpoena in an active criminal investigation; and (c) a second grand-jury subpoena, served on June 22, for Mar-a-Lago surveillance video. These events dovetailed with the FBI’s interviews of Mar-a-Lago employees and Trump’s post-presidency staffers, as well as the bureau’s review of the surveillance video. In combination, these convinced the government of what it already suspected at the time of the June 3 meeting: Trump was lying about how much classified information he was hoarding, and about where he was hoarding it.
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Consequently, even without the new submission, we already knew that the Justice Department believed the unprecedented execution of a court-authorized search warrant at the home of a former American president was fully justified because: (a) the government had exhausted other options, after not just 18 months of trying to reason with Trump but, especially, his flouting of a grand-jury subpoena (i.e., even though he knew things had been elevated to a criminal investigation, he nevertheless engaged in conduct punishable by imprisonment); (b) there was a high likelihood that Trump was continuing to direct the movement, concealment, and perhaps destruction of classified documents which, as the Trump camp’s June 3 machinations showed, the former president had no intention of surrendering to the government; and (c) there was a vital need for U.S. intelligence agencies to re-acquire any highly classified intelligence that had been mishandled (and was still being mishandled), in order to assess the damage that mishandling had done to national security.
Although we already knew all these things, the new Justice Department submission fills in some salient gaps.
1. No Claim of Declassification
In January 2022, when Trump initially surrendered 15 boxes of presidential records — only after months of pleading by the National Archives and Records Administration (NARA), which finally prompted NARA to warn that it would have to involve Congress if Trump persisted in ignoring the Presidential Records Act — a prodigious amount of classified information was included. At the time that this material — 184 distinct documents, containing over 700 pages classified at the highest levels — was handed over to NARA, Trump made no claim that it had been declassified. Furthermore, in subsequent correspondence, even after NARA pointed out that much of the material appeared to be classified, Trump’s counsel never made any claim that Trump had declassified any of it, much less all of it.
2. An Implied Admission that Nothing Was Ever Declassified
The June 3 Mar-a-Lago meeting occurred pursuant to a grand-jury subpoena, which demanded the surrender of “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” The subpoena instructed that, in lieu of a personal appearance by Trump’s records custodian before the grand jury in Washington, D.C., the documents could be surrendered to the FBI “at the place of their location” (presumably, Mar-a-Lago), provided that the custodian executed a “sworn certification that the documents represent all responsive records” that would be transmitted to the grand jury (i.e., the equivalent of the sworn testimony that would have been sought if Trump’s custodian had personally appeared before the grand jury).
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To repeat, contrary to Trump’s public claims, this was not an amicable visit in which a totally cooperative, completely transparent former president hosted some government officials. It was a meeting under duress: a legally mandated response to a subpoena (i.e, a court order, enforceable by criminal law), directly occasioned by the former president’s obdurate lack of cooperation. Indeed, in its submission, the Justice Department drops a footnote (p. 9, n. 4) that pointedly refutes the claim that Trump is the one who “determined a search for the [classified] materials should be conducted.” Instead, the search was conducted because a subpoena demanded that it be conducted.
Beyond that, the Justice Department’s filing offers a significant point about classification: The subpoena required the production of any classified records in Trump’s possession, and Trump (through his representatives) produced documents on the recognition that they were classified documents responsive to the subpoena. Neither Trump nor his representatives ever claimed that he’d declassified any of the documents. They never claimed that he did not need to comply with the subpoena because any documents in his possession were no longer classified. His compliance with the subpoena — though only partial and deceptive — was tantamount to an admission that he’d been retaining classified documents in an unauthorized location, in violation of federal criminal law.
3. The Government Clearly Has Witnesses
Even before its mid May review of the first 15 boxes Trump gave NARA, the FBI already had one or more witnesses who’d informed the bureau that Trump was still hoarding classified documents at Mar-a-Lago.
After being delayed by Trump’s futile attempts to stall and assert privilege, the FBI’s review, which took three days, commenced on May 16. Yet, notice that the grand-jury subpoena demanding all classified documents stored at Mar-a-Lago was issued on May 11 — five days earlier.
The Justice Department’s submission explains that by the time the May 11 subpoena was issued, the FBI had “developed evidence” indicating that “dozens of additional boxes” of records were still being held at the Florida estate. The filing does not say what this evidence was, or how it was developed. The prosecutors omit this information because, they say, they’re worried about intimidation of witnesses and other obstructive conduct. They also emphasize that Magistrate Judge Reinhart found probable cause to believe that criminal obstruction had occurred when he approved the search warrant on August 5; and, in thereafter explaining why he would not order disclosure of the unredacted affidavit, Reinhart concluded that revealing this type of information could “impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation.”
4. False Statements, Including Under Oath, to the FBI and the Grand Jury
At the June 3 Mar-a-Lago meeting, Trump’s representatives provided the sworn statement demanded by the subpoena. It reads:
Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.
I swear or affirm that the above statements are true and correct to the best of my knowledge.
The government’s court filing does not say who signed the sworn statement. Media reports indicate that the signatory was Trump lawyer Christina Bobb (though she has publicly said that Trump lawyer Evan Corcoran oversaw the supposedly “diligent search”). That the statement itself is patently false does not necessarily mean Bobb was lying when she signed it (if, indeed, she was the one who signed it) — we don’t yet know what information she was given and thus cannot assess whether she was willfully misleading investigators. We can safely assume, however, that (a) the lawyers who conducted the “diligent search” and provided the sworn statement for the grand jury (among other statements the lawyers made that day to the FBI) are subjects of the investigation — and likely to become central witnesses; and (b) the government would argue that Trump made false statements to the FBI and to the grand jury, reasoning that his agents’ statements are attributable to him, and he had to know, when he caused his agents to make these statements, that he was not providing all of the classified documents compelled by the subpoena.
We can also safely say that the government had reason to believe, even as the June 3 meeting was taking place, that the representations made on Trump’s behalf by his lawyers were false. Which brings us to the next point.
5. The Government Did Not Agree to Trump’s Retention of Records, Which He Barred Government Officials from Inspecting
Contrary to Trump’s claims, the Justice Department objected to Trump’s continued retention of presidential records (which are by law the property of the government, not the former president) in the Mar-a-Lago storage room. At the June 3 meeting, a request to view the storage area was made by the government officials (three FBI agents and Jay I. Bratt, the chief of the Counterintelligence and Export Control Section of the DOJ’s National Security Division — and the principal author of the government’s submission last night). They were permitted to do so. Here, the DOJ’s court filing relates that:
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.
Obviously, the government did not take at face value the sworn statement signed by Trump’s representatives. The DOJ officials wanted to “confirm” that the statement was accurate, and they were made suspicious by the Trump team’s refusal to allow that. It is also clear that the officials asked other questions on June 3 to probe the representations made in the sworn statement. The court filing states that Trump representatives told the officials that the boxes of records in the storage room were “the remaining repository” of White House records. The filing elaborates: “Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched.”
Plainly, the government did not believe this story. Over two weeks before the June 3 meeting, the FBI had completed its inspection of the first 15 boxes. Agents found that Trump had strewn classified documents, with no apparent rhyme or reason, throughout the boxes. Classified documents were intermingled with items having nothing to do with classified matters. The government thus had reason to believe that (a) there would likely be more classified information strewn through the boxes in the storage area (which was why Trump’s lawyers would not let the contents of the boxes be inspected); and (b) classified documents were likely being kept in areas outside the storage room (the Trump team’s assertions to the contrary notwithstanding).
To be clear, then, the government was not content to allow Trump to keep the boxes in the storage area. The Justice Department fully intended to pursue the boxes, though it was not prepared to escalate matters right there and then on June 3. The DOJ admonished the Trump team to tighten up security and later demanded surveillance video through an additional grand-jury subpoena. But these were interim measures to which the government agreed in deference to Trump’s status as a former president. (In similar circumstances, normal suspects who were withholding subpoenaed government records would have been treated to a view of the FBI’s carrying their boxes away, probably while being charged with obstruction, handcuffed, and taken away themselves.)
6. The Classified Documents Delivered on June 3
The classified documents provided on June 3 were packaged in a Redweld envelope, “double-wrapped in tape” — a detail prosecutors include to emphasize that Trump and his lawyers knew the contents were highly classified and were not claiming they’d been declassified. Included were 38 separate classified documents, 17 of which were classified at very high levels.
7. ‘Obstructive Conduct’ and Fears of Witness Tampering
In its court filing, the government explicitly describes the Trump team’s behavior in response to the grand jury’s June 3 subpoena as “obstructive conduct.” It is also implicit that the FBI has located one or more witnesses with knowledge of Mar-a-Lago’s layout and the former president’s routine. The submission relates:
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.
Relatedly, prosecutors quote Magistrate Judge Reinhart’s observation at the hearing on whether the affidavit should be disclosed in unredacted form: “These concerns are not hypothetical in this case. One of the statutes for which I found probable cause was 18 U.S.C. § 1519, which prohibits obstructing an investigation.”
Again, while we have not seen the relevant portions of the affidavit, we have very good insight into what the witnesses were telling the FBI. In their submission, prosecutors stress that, based on the probable cause showing in the affidavit, Reinhart’s warrant authorized the search of:
the “‘45 Office’ [the former President’s office space at the Premises], all storage rooms, and all other rooms or areas within the premises used or available to be used by [the former President] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate” but not “areas currently (i.e., at the time of the search) being occupied, rented, or used by third parties (such as Mar-a-Largo Members) and not otherwise used or available to be used by [the former President] and his staff, such as private guest suites.”
That is to say: There was reason to believe both that Trump was hoarding classified documents in his office, and that, because he did not exercise care in handling such documents, there could be classified documents kept in other places that he and his staff frequented.
Not only did Trump, through his team, falsely represent on June 3 that all remaining classified documents were in the Redweld envelope they’d turned over; prosecutors stress that the search conducted at Mar-a-Lago on August 8 also “cast serious doubt on the claim in the [June 3] certification (and now in [Trump’s special-master motion]) that there had been a ‘diligent search’ for records responsive to the grand jury subpoena.”
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Reposting this from August 23
The Trump Warrant Had No Legal Basis
A former president’s rights under the Presidential Records Act trump the statutes the FBI cited to justify the Mar-a-Lago raid.
By David B. Rivkin Jr. and Lee A. Casey
Aug. 22, 2022 12:51 pm ET
WSJ
Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.
The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.
The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.
Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.
The PRA dramatically changed the rules regarding ownership and treatment of presidential documents. Presidents from George Washington through Jimmy Carter treated their White House papers as their personal property, and neither Congress nor the courts disputed that. In Nixon v. U.S. (1992), the U.S. Circuit Court of Appeals for the District of Columbia held that Richard Nixon had a right to compensation for his presidential papers, which the government had retained under the Presidential Recordings and Materials Preservation Act of 1974 (which applied only to him). “Custom and usage evidences the kind of mutually explicit understandings that are encompassed within the constitutional notion of ‘property’ protected by the Fifth Amendment,” the judges declared.
The PRA became effective in 1981, at the start of Ronald Reagan’s presidency. It established a unique statutory scheme, balancing the needs of the government, former presidents and history. The law declares presidential records to be public property and provides that “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.”
The PRA lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.
The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.
The only exceptions are for National Archives personnel working on the materials, judicial process, the incumbent president and Congress (in cases of established need) and the former president himself. PRA section 2205(3) specifically commands that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative,” regardless of any of these restrictions.
Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”
Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.
In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.
The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.
