Feds expand probe of Trump’s alleged mishandling of classified records to obstruction of grand jury

Department of Justice/PACER

The Department of Justice is expanding a criminal case against Donald Trump that alleges the former president obstructed a grand jury investigation by failing to turn over classified national security documents located in his office and a storage area at his Palm Beach home that were later found during an FBI search this month, according to a new court filing.

Prosecutors said Trump and his lawyers did not comply with a subpoena in May after a representative of the former president swore in an affidavit that they had conducted a “diligent search” of dozens of boxes that had been removed from the White House to his Mar-a-Lago estate after he left office.

The custodian of Trump’s records asserted the former president had returned all “responsive documents” to the Washington, D.C., federal grand jury subpoena in June, which prosecutors said was not true in their filing. The subpoena, which normally would be kept under seal from public view, was released late Tuesday night along with the prosecutors’ new filing. It requested “any and all documents or writings ... bearing classification markings,” including numerous references to “Top Secret, Secret and Confidential” records involving matters of national defense and nuclear weapons.

New details of the federal probe of Trump’s removal of hundreds of classified materials from the White House were disclosed in the Justice Department’s filing in opposition to his request for a special master to examine potential executive- and attorney-client privileged documents that might be part of the trove of records that FBI agents hauled away from his estate at Mar-a-Lago on Aug. 8.

U.S. District Judge Aileen Cannon, who was nominated by Trump to the federal bench in South Florida, has already indicated her “preliminary intent” to grant his lawyers’ request for a special master and plans to hold a hearing on the sensitive matter on Thursday at the federal court in West Palm Beach. Such a move may be uncommon in the federal courts in Florida, but not in New York, where special masters were appointed to review potentially privileged attorney-client materials in the FBI searches of the offices of Trump’s private lawyers, Rudy Giuliani and Michael Cohen, the latter of whom was convicted.

Federal prosecutors in Miami and Washington expressed their opposition in the 36-page filing with 18 pages of exhibits, saying there is no legal basis for a special master to be appointed — including that Trump has no “standing” to make such a request because the presidential, government and classified documents that he took to his home all belong to the National Archives and Records Administration.

Moreover, the prosecutors asserted that there is a “limited subset” of potentially privileged documents that had already been put aside by “filter” teams with the FBI who are not part of the investigative squad probing Trump’s alleged mishandling of classified records. Lastly, they argued that even Cannon, the judge, doesn’t have the authority to suppress or return evidence to Trump, as his lawyers requested in a civil lawsuit — concluding that if she appoints a special master, it “would impede the government’s ongoing criminal investigation.”

A ‘big mess’

Legal observers said Trump’s lawyers are blurring the lines over the “privileged” documents, pointing out that there is no “executive” privilege because his records as president belong to the U.S. government while those potentially involving correspondence with his attorneys are a legitimate concern. Still, they said the request for a special master would require a national security clearance — a strategy that could delay the Justice Department’s probe of Trump beyond the November midterm elections.

“They want to push this back as far as possible,” said longtime criminal defense attorney Mark Schnapp, a former senior federal prosecutor in Miami.

He added that, ironically, Trump’s push for the appointment of a special master has opened up the feds’ probe to the public, creating a “big mess” for him because the Justice Department has been compelled to release incriminating evidence about the former president’s removal of classified records from the White House. “As the saying goes, be careful what you wish for,” Schnapp said.

In their latest filing, prosecutors put forth far more than legal arguments, asserting that Trump and his team of lawyers flouted initial U.S. government requests and a grand jury subpoena in May to turn over all of his records at Mar-a-Lago. They noted that several highly “sensitive” classified records were found in the 45th president’s office and a storage area at his Palm Beach home during the FBI search earlier this month.

“Notwithstanding [Trump] counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room [at Mar-a-Lago], classified documents were found in both the Storage Room and in the former President’s office,” the prosecutors’ filing said.

“Moreover, the search cast serious doubt on the claim in the certification ... that there had been ‘a diligent search’ for records responsive to the grand jury subpoena,” the filing noted.

During the Aug. 8 search of Trump’s home, FBI agents seized 33 boxes, containers or other items of evidence containing more than 100 classified records, including “classified information at the highest levels.” In the storage room alone, FBI agents found 76 documents bearing “classification markings.” But in addition, three classified documents located in the desks of the president’s home office were also seized, the filing said.

“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” prosecutors said in their filing.

Boxes of documents

In response to the grand jury subpoena, Trump and his lawyers turned over the following: “38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET,” according to the prosecutors’ filing.

Prosecutors further said that the former president and his lawyers “offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at [Mar-a-Lago] nearly five months” after they had initially turned over 15 boxes with classified documents to the National Archives in January following months of inquiries about returning them.

The expanding criminal probe of Trump took a dramatic turn on Aug. 5 when FBI agents obtained permission from a federal magistrate judge to search his home after finding that the former president had unlawfully removed 184 classified documents from the White House and stored them in “unauthorized” places at his Palm Beach residence. Many of the classified documents were related to “national defense information,” according to a redacted affidavit released last week.

Trump himself had voluntarily turned over those classified documents — mixed among magazines, newspapers, photos, letters, notes and other miscellaneous material — in the 15 boxes sent to the National Archives in January after the federal agency responsible for holding presidential and government documents demanded that the former president return his records to Washington.

The discovery of those classified documents — including 67 marked as “CONFIDENTIAL,” 92 as “SECRET” and 25 as “TOP SECRET” — formed the body of evidence that the Justice Department cited in the FBI’s search warrant that was approved by the magistrate judge three days before the FBI raid on Trump’s home at Mar-a-Lago. “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records,” an unidentified FBI agent wrote in the 32-page affidavit supporting the bureau’s search warrant.

“Further, there is probable cause to believe that additional documents that contained classified NDI [national defense information] or that are Presidential records subject to record retention requirements currently remain at” Trump’s residence, the agent wrote in the affidavit, noting he has received training in counterintelligence and espionage investigations. “There is also probable cause to believe that evidence of obstruction will be found” at his home.

The FBI agent noted that the investigation began as a result of a “referral” from the United States National Archives and Records Administration to the Justice Department on Feb. 9. That referral, along with material found in May when agents examined the 15 boxes Trump had returned as well as information from several witnesses, led to the FBI search of Mar-a-Lago on Aug. 8.

Trump, who claims he had declassified all of those sensitive documents before leaving office, has railed against the FBI and Justice Department for carrying out what he has described as another “witch-hunt” against him. The FBI search warrant, which was previously released by Magistrate Judge Reinhart after news organizations petitioned him to unseal it, indicated that the Justice Department is building a potential criminal case against Trump based on allegations of unlawfully removing classified materials, committing acts of espionage and obstructing justice, including destruction of records.

On Wednesday, Trump scoffed at the Justice Department’s release of a photograph as part of its court filing that displayed a variety of classified documents spread out on a floor at Mar-a-Lago during the FBI’s Aug. 8 search.

“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see,” Trump wrote on his social media platform, Truth Social. “Thought they wanted them kept Secret? Lucky I Declassified!”