Two documents that Donald Trump’s legal team returned to the justice department last year after retrieving them from a private storage unit in Florida as part of an additional search for materials were marked classified at the secret level, according to sources familiar with the matter.
The materials included one document marked as secret on the cover page, and a second document marked as secret with its classified attachment removed, one of the sources said – which Trump’s lawyers told the department was an indication of that document no longer being classified.
The two documents were found inside sealed boxes that appeared to have been unopened from when they were shipped down to the storage unit in Florida, near Trump’s Mar-a-Lago resort, from the White House at the end of the Trump administration, the lawyers also told the justice department.
Since the two documents were returned as soon as the lawyers were informed of the discovery, the department is not expected to include them as part of the wider criminal investigation into Trump’s retention of national security information and obstruction of justice.
The discovery of additional classified-marked documents, though, frustrated the department as federal prosecutors under the recently-appointed special counsel Jack Smith have adopted an increasingly aggressive posture against Trump at every turn in the investigation.
“The justice department is so desperate, they are now leaking information that actually proves President Trump did everything right,” a Trump spokesman said in response. A justice department spokesman declined to comment.
In October last year, the justice department told Trump’s legal team that it suspected the former president was still in possession of classified-marked documents even after the FBI seized around a hundred highly-sensitive materials when agents searched his Mar-a-Lago property in Florida on 8 August.
Trump eventually agreed around Thanksgiving to let one of his lawyers assemble a team with experience handling classified materials to search Trump Tower in New York, Trump Bedminster golf club in New Jersey, and Mar-a-Lago.
The team also searched through the Florida storage unit that held boxes sent from the White House that were stacked in the bridal suite at Mar-a-Lago before they were relocated to the government-controlled facility – where they found the two documents bearing secret classification markings.
Federal prosecutors were alarmed at the discovery of the additional classified-marked documents, the sources said, and sought a certification from Trump’s legal team that those were the very last documents, and that no further sensitive government materials were in Trump’s possession.
The justice department also asked Trump’s lawyers for the identities of the contractors who carried out the search with the intention of questioning them about their work, the Guardian previously reported.
But the Trump legal team demurred on the request and disputed that the department needed to know their names, the sources said, before later offering to make them available – but only under a protective order because they worried it would leak to the news media.
The justice department rejected that arrangement and instead filed a motion to compel their identities in a sealed hearing this month before the chief US district court judge for the District of Columbia Beryl Howell, who agreed with federal prosecutors and ruled against Trump.
That order was issued by Howell on 5 January, the sources said. It was not clear whether the department has interviewed or since issued subpoenas for testimony from the people who carried out the search before the grand jury hearing evidence in the Mar-a-Lago documents case.
The closed-door proceedings before Howell occurred as the special counsel weighs next steps specifically for the documents case, including whether to either immunize witnesses to force their testimony or threaten charges to pressure them into cooperating with prosecutors.
The developments in the criminal investigation examining Trump’s mishandling of classified-marked documents comes as Mike Pence and Joe Biden have both also been found to have improperly retained sensitive government documents in their residences and private properties.
The justice department has typically pursued cases of mishandled classified documents criminally when they involve aggravating factors: willful mishandling of classified information, vast quantities of materials to suggest misconduct, disloyalty to the United States and obstruction.
The investigation into Trump touches on at least two of those elements. The obstruction applies particularly to Trump because of his reluctance to return classified-marked documents, including when he only partially complied with a grand jury subpoena issued in May demanding any classified items.