[The DOJs blistering response to Trumps request for a Special
Master shows a high level of confidence about the law being on the
government’s side and the damning nature of the evidence. It also
shows that there’s work yet to be done. ]
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A JUSTICE DEPARTMENT SHOW OF FORCE IN THE MAR-A-LAGO CASE  
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Scott R. Anderson, Quinta Jurecic and Benjamin Wittes
September 28, 2022
Lawfareblog
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_ The DOJ's blistering response to Trump's request for a Special
Master shows a high level of confidence about the law being on the
government’s side and the damning nature of the evidence. It also
shows that there’s work yet to be done. _

Attachment F from the Justice Department's Aug. 30 filing, showing
documents seized during the FBI's search of Mar-a-Lago, credit:
Department of Justice

 

The Justice Department’s filing Tuesday evening
[[link removed]]
in former President Trump’s federal court effort to slow the
Mar-a-Lago investigation presents a remarkable show of strength and
confidence in the ongoing probe. 

The document’s legal arguments are not particularly engaging, as
they respond to uninteresting, meritless legal challenges from the
former president. Its factual summary, by contrast, is a rip-roaringly
great read, one in which the department tells the story of its
investigation in some detail. Some of this story it has told before,
but some it has not. There are a lot of new details in here, and
nearly all of them are bad for the former president.

Some of these flesh out the volume and nature of the classified
material Trump hoarded at Mar-a-Lago. But other details, more
importantly in our view, flesh out questions of intent and mens rea
that are key to all of the statutes at issue in the warrant
[[link removed]].
While the document goes out of its way not to discuss Trump’s
personal behavior, it also includes material specifically suggestive
of the degree to which the department has collected material
incriminating Trump personally.

All of which suggests some preliminary answers to key questions: How
big a problem is the Mar-a-Lago investigation for Trump? How long is
this going to take? Specifically, as we shall explain, it suggests
that the investigation is a very big problem for Trump, one in which
he appears to have a great deal of exposure. But it also suggests that
the investigation is going to take a while—a point on which a
careful reading of the filing leaves little doubt.

The release of this damaging material by the Justice Department is
almost entirely a result of Trump’s own actions—or at least those
of his legal team. At each stage of this investigation, including the
search itself, the Justice Department has been careful to resist
releasing additional information about the probe—only for Trump to
open the door for the department to weigh in by complaining about the
investigation. This one is no exception.

Trump’s original motion
[[link removed]]
seeking the appointment of a special master was not subtle in framing
the FBI’s search of Mar-a-Lago as an abuse of power on the part of
the Biden administration: It opened with the solemn invocation that
“[p]olitics cannot be allowed to impact the administration of
justice,” portrayed Trump as “ask[ing] the Government the
questions any American citizen would ask under the circumstances[,]”
accused the FBI of pursuing “a raid [on] my home with a platoon of
federal agents when I have voluntarily cooperated with your every
request[,]” and condemned the government for “declin[ing] to
provide even the most basic information about what was taken, or
why.” Arguably, the Justice Department’s detailed account of its
investigation only seeks to answer these questions—but it does so
with a level of detail that is incredibly damning for Trump.

The new filing contains a great deal of evidence of classified
material held improperly at Mar-a-Lago. The Justice Department quotes
a letter sent from the department to Trump’s counsel on April 29
stating that, according to the National Archives, the documents at
Trump’s estate included “over 100 documents with classification
markings, comprising more than 700 pages,” among them material with
“the highest levels of classification, including Special Access
Program (SAP) materials.” In May, after the FBI’s first visit to
Mar-a-Lago, the bureau received “184 unique documents bearing
classification markings, including 67 documents marked as
CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked
as TOP SECRET.” 

The material seized during the August search included some documents
so sensitive that “even the FBI counterintelligence personnel and
DOJ attorneys conducting the review required additional clearances
before they were permitted to review” them. The filing states that
“[t]he classification levels ranged from CONFIDENTIAL to TOP SECRET
information, and certain documents included additional sensitive
compartments that signify very limited distribution.” For visual
learners, the Justice Department has also included a striking
photograph
[[link removed]]
of documents labeled SECRET/SCI and TOP SECRET/SCI, including some
with markings indicating
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information obtained from human sources.  

Yet the story the department tells in the filing is not just about the
highly sensitive nature of the documents. The document spends a great
deal of time on the question of intent, which is key to all three
statutes listed in the original search warrant
[[link removed]].
The first of these, 18 U.S.C. § 1519
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states that “[w]hoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false entry in any record,
document, or tangible object with the intent to impede, obstruct, or
influence the investigation or proper administration of any matter
within the jurisdiction of any department or agency of the United
States” commits a crime (emphasis added). 

The second, 18 U.S.C. § 2071
[[link removed]], states that
“[w]hoever willfully and unlawfully conceals, removes, mutilates,
obliterates, or destroys, or attempts to do so, or, with intent to do
so takes and carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited with any clerk or officer
of any court of the United States, or in any public office” commits
a crime (emphasis added). 

The third statute, 18 U.S.C. § 793
[[link removed]], prohibits
“willfully retain[ing]” information “relating to the national
defense which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any
foreign nation” and “fails to deliver it on demand to the officer
or employee of the United States entitled to receive it” (emphasis
added). 

In other words, all three statutes require something more than
accidental mishandling of material. 

Throughout the filing, the department takes pains to set out evidence
that could speak to the intent of Trump and the people around
him—beginning with its description of the referral from the National
Archives and Records Administration (NARA). The referral, the Justice
Department writes, “was made on two bases: evidence that classified
records had been stored at the Premises until mid January 2022, and
evidence that certain pages of Presidential records had been torn
up.” The latter evidence could well speak to intent, if someone were
trying to destroy those documents—and, indeed, the referral
“included a citation to 18 U.S.C. § 2071” on that point.

The next step in the story involves the FBI’s discovery, while
pursuing the referral from the Archives, of “evidence indicating
that even after the Fifteen Boxes were provided to NARA, dozens of
additional boxes remained at the Premises that were also likely to
contain classified information.” In other words, Trump’s team
didn’t hand over everything to the Archives when the agency came
looking. Perhaps there’s an innocent explanation here—an honest
mistake made by Trump and his team about how much material was held at
Mar-a-Lago and where it was stored. But it’s clear that the
department has its doubts.

Indeed, this discovery by the FBI set off a chain of events in which
the Mar-a-Lago camp seems to have repeatedly been less than
forthcoming in its interactions with the government. The filing
describes so many instances of apparent misrepresentations by
Trump’s team to the federal government that it’s difficult to
describe them all. 

Following the FBI’s discovery of additional classified material
possibly held at Mar-a-Lago, the Justice Department obtained and
delivered a grand jury subpoena for “[a]ny 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 [list of
classification markings].” When the bureau arrived to pick up those
documents on June 3, Trump’s “custodian of records”—unnamed in
the filing, but reported by the New York Times
[[link removed]]
to have been Trump lawyer Christina Bobb—provided a signed letter
stating that

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.

All of these statements appear to be at least partly false.

Counsel for Trump also informed the bureau that all of the records
transported to Mar-a-Lago from the White House had been kept in one
particular storage room at the resort and 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.”

This also appears to be false. As the filing states, the FBI later
“uncovered multiple sources of evidence indicating that the response
to the … grand jury subpoena was incomplete and that classified
documents remained at the Premises, notwithstanding the sworn
certification made to the government on June 3.” 

During the bureau’s August search, agents found additional documents
with classification markings—meaning that the letter signed by the
custodian of records was incorrect in stating that “any and all
responsive documents” had been turned over to the FBI. What’s
more, the FBI found additional documents in an area of Mar-a-Lago
called the “45 office,” described in the search warrant as “the
former President’s office space”—that is, outside the storage
area where Trump’s counsel said all material from the White House
had been kept. 

The Justice Department also casts doubt on the signed assertion that
“a diligent search was conducted of the boxes that were moved from
the White House to Florida,” stating, 

In the storage room alone, FBI agents found 76 documents bearing
classification markings. … 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.”

Again, perhaps these were good-faith mistakes by Trump’s team rather
than intentional efforts to hold on to sensitive documents or obstruct
the FBI’s investigation. But the Justice Department also includes
details that look a great deal less innocent, and could go some way
toward proving intent under the relevant statutes. 

When the FBI first arrived to obtain the boxes in the storage room
after serving the initial subpoena, for example, “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.” (This account
differs from the version of events put forward by Trump’s legal
team, which has portrayed
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Trump as obliging to investigators and described the FBI as having
conducted an exhaustive
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search of the storage room.) This would be consistent with Trump’s
team trying to keep the bureau from discovering additional responsive
material. What’s more, “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.”

The Justice Department also notes conduct by Trump’s team indicating
some level of knowledge that the material in question was classified.
The department describes how, when handing over documents in response
to the initial subpoena, 

neither counsel nor the custodian asserted that the former President
had declassified the documents or asserted any claim of executive
privilege. Instead, counsel handled them in a manner that suggested
counsel believed that the documents were classified: the production
included a single Redweld envelope, double-wrapped in tape, containing
the documents.” 

That’s potentially significant, given Trump’s later assertions
that he had unilaterally declassified the information in the relevant
documents during his time in the White House. (That said, it’s not
clear
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that it would be necessary for the documents to be classified in order
for the department to bring criminal charges.)

What about Trump’s own conduct? Reporting has indicated some level
of knowledge and involvement by Trump in holding onto the documents in
the first place when the National Archives came looking for them.
According to the New York Times
[[link removed]],
“Mr. Trump went through the boxes himself in late 2021”—that is,
before the Archives collected some of the material—“according to
multiple people briefed on his efforts, before turning them over.”
The Times also wrote that Trump “resisted” calls to return
material to the Archives in 2021, “describing the boxes of documents
as ‘mine.’” CNN has reported
[[link removed]]
that after the Archives took the first tranche of material—which
contained classified information—Trump began “obsessing” over
arguments that he should not have turned over the documents and became
“increasingly convinced that he should have full control over
records that remained at Mar-a-Lago.”

The Justice Department’s filing is strikingly quiet on the question
of how much, as the phrase goes, the former president himself knew and
when he knew it. Indeed, it seems careful to avoid discussing
Trump’s conduct at all. 

But there are indications nonetheless that Trump may have had some
degree of personal involvement in holding onto the documents. Most
obviously, the department states that the FBI seized material in
“the former President’s office.” In a footnote, the department
also describes “the contents of a desk drawer that contained
classified documents and governmental records commingled with other
documents”—including three expired passports belonging to
Trump—and notes that “[t]he location of the passports is relevant
evidence in an investigation of unauthorized retention and mishandling
of national defense information.” One way to read this might be that
classified documents weren’t just in a desk in Trump’s office;
they were in a desk in Trump’s office along with other personal
documents belonging to him. That doesn’t prove knowledge or intent
on Trump’s part, but it’s certainly suggestive of his own personal
involvement in the mishandling of the material. 

The first conclusion from this extraordinary recitation is that the
former president is in serious legal jeopardy. The department could
have made all of the legal arguments that follow its factual account
with a much more minimal factual presentation. It chose to tell this
story. It chose to tell it in an open filing. It chose to make a
series of serious imputations about the manner in which the former
president and his team had behaved. It chose to include specific facts
that suggest that Trump himself had engaged in misconduct. And it
chose to lay all this out in a fashion that will make the department
look very foolish indeed if the investigation now comes to nothing.
The Justice Department does not do bravado, as a general rule. For it
to so confidently detail the history of its investigation and the
interactions that have driven it suggests a high degree of confidence
on where this is heading.

As former Mueller investigation prosecutor Andrew Weissmann put it on
Twitter
[[link removed]]:
“DOJ BIG PICTURE: you don’t make a filing this strong, bold, and
factually accusatory if you don’t have every intention to indict.”

That said, don’t expect things to move quickly from here. Part of
the reason for this involves the forthcoming midterm elections.
Reporting has suggested that Attorney General Merrick Garland is
“deeply wary
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of any public statements that may be perceived as impacting their
outcome. Hence the department may well wait until those elections are
complete before taking any further major steps, if it can. But the
department’s own story in this filing suggests that the
investigation is going to take some time. The reason for this
conclusion is that the filing identifies a lot of investigative
threads that a serious probe will need to address before the
department begins making prosecution decisions.

The department, for example, refers to its having “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.” Before it brings a case against
anyone—Trump or anyone else involved in the withholding of
classified documents—the department is going to want to forensically
reconstruct the movement of every document it can from the storage
room. That means interviewing every single person involved. It means
reviewing all camera footage, to the extent that hasn’t already been
done. It means figuring out why some documents were returned to the
government early on, others only later in response to a subpoena, and
still others not at all—until the FBI showed up with a search
warrant. 

With respect to the material found in Trump’s office and his desk,
the investigation is likely going to try to figure out how it got to
those places. Did “a desk drawer [contain] classified documents and
governmental records commingled with other documents” because Trump
himself stashed them there with his own stuff, or for some less
personally incriminating reason? 

Perhaps most importantly, the department is going to want to
understand, in as much detail as humanly possible, who precisely is
responsible for what. Did Trump’s lawyers file a false certification
as to the completeness of their response to the subpoena and the
supposed diligence of their search because they were lying, or because
they were misled by others at Mar-a-Lago—and if the latter, who
precisely misled them? When the “government ... developed evidence
that government records were likely concealed and removed from the
Storage Room,” who precisely concealed and removed what specific
documents, and at whose direction did they do so?

Many of these questions come back to the same big unknown: To what
extent was former President Trump personally and knowingly involved?
To be certain, the Justice Department has already described a certain
amount of circumstantial evidence that he was, ranging from the
documents found in his personal office to the fact that they were
intermingled with his expired passports and other personal effects.
And the press, as quoted above, has gone significantly further.
What’s more, the fact that Trump’s employees accepted subpoenas
and issued sworn statements in the name of his personal office does
not help his case either. But before it takes a step as controversial
as indicting a former president, the Justice Department is likely
going to need the sort of clear and inconvertible evidence of
Trump’s involvement that is only likely to come from witness
testimony.

Perhaps some of the multiple witnesses that the FBI referenced in its
search warrant affidavit have already provided such testimony. It’s
impossible to know, as both the Justice Department and the magistrate
judge remain assiduously committed to withholding any details that
might give a hint as to the witnesses’ identities, in order to
prevent their identification and intimidation by Trump’s supporters.
If not, however, the department is likely to turn to those with such
knowledge who have not yet come forward but may prove willing if
provided the correct incentive: those members of Trump’s staff who
may have received and executed his instructions and thus are now
facing potential criminal charges themselves. For this reason, the
first wave of criminal indictments, if and when they come, may not
focus on Trump himself but those around him, which may in turn
encourage them to point toward others who are even more culpable. 

In other words, while the FBI may already know the answers to some of
these extant questions, others are just as certainly the subject of
active investigation following the execution of the warrant. The
Justice Department will likely not proceed until it has satisfied
itself that it has addressed them all to the maximum extent
possible. 

In sharp contrast to the factual recitation that precedes it, the
legal arguments in the Justice Department’s brief are largely
predictable and uninteresting. Nonetheless, the manner in which the
Justice Department dismantles Trump’s arguments seeking the
appointment of a special master warrants some brief discussion.

In many ways, the arguments that Trump lays out in his Aug. 22 motion
[[link removed]]
seeking the appointment of a special master are tied up with his
efforts to frame the FBI’s search as a partisan abuse of power. He
argues that the search warrant was overbroad in allowing the seizure
of personal effects located alongside presidential records, boldly
accuses the government of violating the Presidential Records Act by
ignoring his statutory rights to control his own presidential records,
suggests that these deficiencies warrant suppression of any seized
evidence under the Fourth Amendment, and closes with the telling
assertion that “the government has long treated President Donald J.
Trump unfairly.” On these grounds, he demands a more detailed
accounting of what was seized, argues that a special master should be
appointed to ensure that any documents seized are not subject to
relevant privileges, motions for a “protective order” directing
the Justice Department to cease any review of the seized materials,
and insists that the various evidence taken beyond the scope of the
search warrant be returned to him.

In responding to these arguments, the Justice Department does not
mince words. It begins by rejecting the proposition that Trump has any
standing to challenge the seizure of Trump’s presidential records,
as the Presidential Records Act states unequivocally
[[link removed]]
that “[t]he United States”—not the former president—“shall
reserve and retain complete ownership, possession, and control of
Presidential records.” As for Trump’s arguments that the search
was overbroad in that it also resulted in the seizure of some his
personal effects, the Justice Department notes that this was expressly
authorized by the search warrant—which permitted the seizure of
containers and boxes in which presidential records and classified
documents were found—and reflects well-accepted investigatory
practice, as such associated effects have evidentiary value in that
they may reveal how documents were mishandled or who had unauthorized
access to them. The Justice Department similarly rejects Trump’s
contention that a former president may somehow invoke executive
privilege against executive branch officials, and cites the Supreme
Court’s 1976 holding in Nixon v. GSA
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as having rejected a similar argument by former President Nixon in
relation to NARA’s predecessor agency on the logic that it was an
“assertion of a privilege against the very Executive Branch in whose
name the privilege is invoked.” Given these deficiencies, the
department concludes that Trump’s request for a protective order is
similarly without legal basis. Moreover, as Trump did not file his
legal motion until two weeks after the search took place, the harm was
already done, as the investigative team had already reviewed the
records; instead, such an order would only inhibit the government’s
ability to conduct a damage assessment in regard to what classified
information might have been compromised, an interest that outweighed
whatever marginal interest Trump could put forward.

The department saved its most reserved arguments for rebutting
Trump’s assertion that the appointment of a special master would be
warranted to help ensure that any documents covered by attorney-client
privilege were not improperly divulged. The Justice Department
acknowledged that some attorney-client privileged documents might have
been taken up in the search but argued that this was the case in
almost any criminal investigation and asserted that the “taint
team” procedure it had laid out in the search warrant—in which a
separate team of FBI agents would review any documents recovered from
Trump’s personal “45 office” and remove any covered by such
privilege before handing them over to the investigatory team—was
more than sufficient. Moreover, it noted that other cases in which a
special master had been installed for this purpose were usually
reserved for searches of law offices or involved far more voluminous
material, in which attorney-client privilege was a greater risk. Doing
so here would simply be overkill and would delay the investigation
unnecessarily. That said, the department seemed to acknowledge that it
could not state decisively that no attorney-client privilege was at
risk, and that this factor may prove persuasive to a judge intent on
providing Trump with every possible benefit of the doubt. On this
apparent logic, the Justice Department proposed what a special
master’s role should look like if the court does side with
Trump—noting most importantly that his or her ambit should be
limited entirely to attorney-client privilege, not executive
privilege. For this reason, it’s not entirely unimaginable that the
Justice Department may ultimately concede to the appointment of a
special master, whose work will only further ensure any investigation
is not compromised by privilege concerns. The real question then will
not be whether a special master is appointed, but what such a person
is tasked to do.

The one concession that the Justice Department does seem to make is to
Trump’s demand for a more detailed receipt of seized material, which
it indicates in a footnote that it has prepared, filed under seal
along with its response, and is willing to provide to Trump upon
request. Of course, the existence of a (presumably unclassified) more
detailed inventory is likely to lead to efforts by the media to secure
its release. And Trump himself may feel pressured to back such
demands, given his past calls for greater transparency. This in turn
may set up another round of Trump’s own actions coming back to bite
him, as we suspect the inventory is likely to only further
underscore—in clear, undeniable detail—the substantial amounts and
types of information Trump put at risk with his actions.

In short, the department has stressed that the investigation is in its
early stages
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and this document—despite its strength—offers a window on why.
While it shows a high level of confidence about the integrity of the
probe, about the manner in which it was conducted, about the law being
on the government’s side, and about the quality and damning nature
of the evidence it has already unveiled, it also shows that there’s
work yet to be done. 

_Scott R. Anderson is a fellow in Governance Studies at the Brookings
Institution and a Senior Fellow in the National Security Law Program
at Columbia Law School. He previously served as an Attorney-Adviser in
the Office of the Legal Adviser at the U.S. Department of State and as
the legal advisor for the U.S. Embassy in Baghdad, Iraq._

* _S_R_Anders [[link removed]]_

_MORE ARTICLES [[link removed]]_

_Quinta Jurecic is a fellow in Governance Studies at the Brookings
Institution and a senior editor at Lawfare. She previously served
as Lawfare's managing editor and as an editorial writer for the
Washington Post._

* _@qjurecic [[link removed]]_

_MORE ARTICLES [[link removed]]_

_Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in
Governance Studies at the Brookings Institution. He is the author of
several books._

* _@benjaminwittes [[link removed]]_

_MORE ARTICLES [[link removed]]_

Published by the Lawfare Institute in Cooperation With Brookings.

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