Trump And His Team ‘Likely Concealed’ Classified Documents, DOJ Filing Alleges

Topline

The FBI’s search of Donald Trump’s Mar-a-Lago residence was carried out after the Justice Department obtained evidence that classified government documents were hidden or moved by the former president and his aides despite their previous assurances that all such material had been returned, the DOJ disclosed in a court filing on Tuesday night.

This image contained in a court filing by the Department of Justice and redacted by in part by the … [+] FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump’s Mar—A—Lago estate in Florida.

Associated Press

Key Facts

Attorneys for the DOJ were responding to Trump’s lawsuit seeking to assign an independent special master—or a court-appointed third-party—to look for any privileged information in the documents that FBI agents seized from Mar-a-Lago earlier this month, instead of relying on a “filter team” of DOJ investigators.

According to the filing, the Mar-a-Lago search was carried out after its prosecutors suspected that sensitive government materials were “likely concealed or removed” in an possible attempt to “obstruct the government’s investigation.”

The 36-page filing also disclosed that the FBI’s search managed to recover more than 100 documents with “classification markings” including three such document from desks located inside Trump’s office.

The filing notes that the number of documents recovered were “more than twice the amount” returned by the former president’s attorney’s in response to a subpoena in June—who claimed they had done so after conducting a “diligent search.”

The filing came after the DOJ said Monday a filter team had already reviewed all the documents and identified a “limited set of materials” that may be covered by attorney-client privilege.

The DOJ has also released a redacted image showing some of the documents seized from Mar-a-Lago with many of them carrying “Secret” and “Top Secret” markings.

What To Watch For

Trump’s team needs to reply to the DOJ’s filing by Wednesday, and a hearing will take place on Thursday to determine whether a special master should be appointed. U.S. District Judge Aileen M. Cannon, a Trump appointee, said in a court filing over the weekend it is her “preliminary intent” to order a special master. It’s unclear whether her thinking changed after the DOJ said it had already reviewed all of the Mar-a-Lago documents and separated out privileged material itself, though, as that could render the need for a special master moot.

What We Don’t Know

How Trump’s special master request will affect the DOJ’s investigation. The New York Times notes the ex-president could be using the request as a delay tactic to stall the FBI’s efforts to go through the documents, which might work if Cannon sides with him and orders a special master, especially if the DOJ then appeals the case to a higher court and the legal proceedings drag out. Trump is also trying to shield documents that he believes are covered by executive privilege, even though the National Archives has told Trump’s attorneys it determined executive privilege doesn’t apply in this case. If the court sides with Trump and allows documents to be withheld due to executive privilege, it could affect the scope of documents the DOJ reviews, though legal experts told the Times that’s unlikely.

Key Background

Trump’s attorneys asked for a special master on August 22, two weeks after FBI officials searched Mar-a-Lago in connection with an ongoing probe into White House documents Trump brought back with him to his Florida estate. According to a search warrant and affidavit that have been unsealed in the case, federal investigators have recovered hundreds of White House documents from Mar-a-Lago that are the property of the National Archives, including classified and top-secret materials possibly stored in an unauthorized area. The government is investigating whether Trump violated three federal statutes by allegedly mishandling the documents, including the Espionage Act, and the DOJ said Monday the Office of the Director of National Intelligence is reviewing the seized documents to assess the national security risk they pose. The August search at Mar-a-Lago came after Trump gave the National Archives 15 boxes of documents in January, following months of reportedly refusing to do so.

Tangent

Trump’s request for a special master marked the first legal action he and his attorneys took since the FBI search. His attorneys’ initial filing with the court was widely criticized as insufficient by legal experts, however, and the judge made his legal team submit a separate motion last week that more adequately explained their legal reasoning and what relief they were seeking.