DOJ Brief Is Devastating To Trump And His Incompetent Attorneys – They Are Facing Indictment For Obstruction Of Justice (Updated)

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Donald Trump’s incompetent lawyers made a critical mistake: they asked a judge to make the Department of Justice explain why they executed a search warrant at the failed Coup leader’s home in exile at Mar-a-Lago.

The Trump-friendly judge whom they went forum shopping for agreed to the request (Judge Aileen Cannon is not the magistrate judge who issued the search warrant, the proper judge with jurisdiction to hear Trump’s motion). Judge Aileen Cannon is way outside her lane.

The Department of Justice speaks through its pleadings, so Trump’s incompetent lawyers opened the door for the DOJ to lay out its case in greater detail to this rogue judge and to the public to respond to the lies emanating from team Trump. What’s the old adage about “be careful what you wish for”?

The DOJ filed a motion to exceed page limitations, asking for 40 pages to respond – Ruh-Roh. That alone shoud have made Trump’s incompetent lawyers’ butts pucker.

Late Tuesday night, the DOJ filed its 40 page brief. Some quick takeaways: the search warrant was not just about recovering the highly classified douments, this is a criminal investigation with Donald Trump as the target; it is primarily an obstruction of justice investigation; both Donald Trump and his lawyers lied to the FBI about having turned over the highly classified documents to the FBI in June; both Donald Trump and his lawyers will be indicted for obstruction of justice; Trump’s lawyers will be compelled to testify because the crime-fraud exception eviscerates the attorney-client privilege. Trump’s imcompetent lawyers should be looking to plea bargain today. This is an open and shut case.

CNN reports, Justice Department says classified documents at Mar-a-Lago were likely ‘concealed and removed’ to block investigation:

US government documents were “likely concealed and removed” from a storage room at Mar-a-Lago as part of an effort to “obstruct” the FBI’s investigation into former President Donald Trump’s potential mishandling of classified materials, the Justice Department said in a blockbuster court filing Tuesday night.

More than 320 classified documents have now been recovered from Mar-a-Lago, the Justice Department said, including more than 100 in the FBI search earlier this month.

Tuesday’s filing represents the Justice Department’s strongest case to date that Trump concealed classified material he was keeping at Mar-a-Lago in an attempt to obstruct the FBI’s investigation into the potential mishandling of classified material.

The Justice Department revealed the startling new details as part of its move to oppose Trump’s effort to intervene in the federal investigation that led to the search of his Florida resort and his desire for a “special master” to be appointed to the case.

Trump has pushed an “incomplete and inaccurate narrative” in his recent court filings about the Mar-a-Lago search, the Justice Department said.

“The government provides below a detailed recitation of the relevant facts, many of which are provided to correct the incomplete and inaccurate narrative set forth in Plaintiff’s filings,” prosecutors wrote.

It presents a strong rebuttal of the criticisms of the FBI’s unprecedented search of a former President’s residence, laying out clearly how Trump had failed to return dozens of classified documents even after his lawyer attested that he had provided all classified material in his possession.

A picture on the final page of the filing showing classified documents arrayed on the floor of Trump’s office — full of highly classified markings like “HCS,” meaning human intelligence sources — hammered home how sensitive the material Trump had taken was.

At issue is Trump’s compliance with a grand jury subpoena, issued in May, demanding that he turn over classified documents from Mar-a-Lago. Prosecutors said Tuesday that some documents were likely removed from a storage room before Trump’s lawyers examined the area, while they were trying to comply with the subpoena. The timeline is essential, because Trump’s lawyers later told investigators that they searched the storage area and that all classified documents were accounted for.

CBS News: Timeline: The government’s efforts to get sensitive documents back from Trump’s Mar-a-Lago.

“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,” prosecutors wrote. “This included evidence indicating that boxes formerly in the Storage Room were not returned prior to counsel’s review.”

The allegations came after the DOJ’s filing went into specific detail about actions from Trump’s team that the department implies were obstructive to its probe.

In the filing opposing Trump’s request, DOJ argues that the former president lacks standing over presidential records “because those records do not belong to him,” as presidential records are considered property of the government.

The Presidential Records Act makes clear that “[t]he United States” has “complete ownership, possession, and control of them,” the DOJ filing states.

Trump has argued that his constitutional rights have been violated and that some of the documents seized earlier this month contain material covered by privilege — particularly executive privilege.

First, an ex-president does not have executive privilege, it belongs to the incumbent president. Secondly, there is no executive privilege in an Espionage Act case for the mishandling of national defense documents, not only classified sensitive documents. And there’s the Nixon precedent.

The Justice Department was ordered to submit the filing by Judge Aileen Cannon, who has already indicated she is inclined to grant Trump’s request for third party oversight of documents the FBI seized Mar-a-Lago.

The role of a special master is to filter out any materials seized in a search that don’t belong in the hands of investigators because of a privilege. Special masters have been used in high-profile cases before, but usually in cases where the FBI has searched an attorney’s office or home and there is a need to filter out materials concerning attorney-client privilege. Trump’s request has centered on the need to protect documents concerning executive privilege from his conduct as president.

Signals from Cannon, a Trump appointee, that she is leaning toward appointing a special master in the Mar-a-Lago search have raised eyebrows among legal observers. For one, Trump filed his request for the appointment two weeks after the search of his Florida home, risking the potential that the Justice Department is already done with the bulk of its review.

In fact, DOJ says review of seized Trump documents is already done, suggests request for watchdog came too late.

Secondly, Trump and the judge alike have pointed to civil rules concerning special master appointments, when the search warrant is arising in a criminal context.

So Trump’s lawyers and this rogue judge are both incompetent.

Since the August 8 search, a number of previously secret court filings the DOJ submitted to obtain the warrant have been made partially public in part because of a bid for transparency filed in court by several media organizations, including CNN.

Those redacted documents have revealed that the search was connected to a DOJ investigation into alleged violations of the Espionage Act, criminal mishandling of government documents and obstruction of justice. According to an FBI affidavit that was released last week, an FBI review of 15 boxes retrieved by the National Archives from Mar-a-Lago in January found 184 documents bearing classification markings — some of them identified as particularly sensitive government documents.

Trump, in seeking the special master, has stressed in court filings the lack of criminal enforcement in the Presidential Records Act, a Watergate-era law laying out the process for preserving presidential records. He did not mention the three criminal statutes the DOJ cited in its warrant documents. Trump’s lawyers have also emphasized his supposedly unfettered ability when he was president to declassify documents, though the statutes in question don’t require that the materials be classified.

Trump’s attorney limited what DOJ could look at during June visit

A top Justice Department official contends that federal investigators were limited in what they could look through when visiting the resort in June — contrary to the Trump team’s narrative of total cooperation.

Trump’s lawyer requested that the FBI come to the resort to pick up the documents after the Trump team had received a grand jury subpoena in May seeking any materials marked classified, according to the Justice Department.

DOJ’s account also undermined claims by Trump and his allies that the former President had declassified the materials in question.

“When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege,” the filing said.

“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 document.”

In the DOJ’s account, Trump’s lawyer said that all the remaining documents from Trump’s White House were being kept in the storage at Mar-a-Lago. “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,” the filing said.

Prosecutors confirmed Trump’s assertion that the visiting DOJ and FBI officials were then allowed to visit the storage area.

“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,” the DOJ said.

DOJ reveals grand jury proceedings related to Mar-a-Lago search happening in DC

The Justice Department confirmed that grand jury subpoenas had been issued in its probe, and that the grand jury that issued them had been empaneled in DC. The department included a copy of a May 11 subpoena for government records at Mar-a-Lago marked as classified that indicated the existence of the DC federal grand jury. Before making the subpoena public, the department on Monday got permission to do so from Chief Judge Beryl Howell in the DC District Court, according to a footnote in its brief.

The reference to Howell suggests that in addition to Magistrate Judge Bruce Reinhart and Cannon in Florida, a third judge is now involved in the DOJ’s probe.

Phillip Bump at the Washington Post adds, Two of Trump’s post-FBI search defenses collapse (excerpt):

[T]wo particular lines of argument emerged. One suggested that the timing was suspicious: Why now, so close to the midterm elections? The other held that the search itself was unnecessary, given that Trump was complying with the federal government’s inquiry.

After the Justice Department’s legal filing submitted Tuesday night, both of those defenses seem to have collapsed entirely.

[T]he search conducted by the FBI at Mar-a-Lago took place on Aug. 8, slightly more than 90 days before the midterm elections. The Justice Department has an informal rule that it avoids “overt law enforcement and prosecutorial activities” (as its inspector general has put it in the past) within a window of 60 to 90 days before a federal election. In other words, the FBI may have timed the raid in part to avoid any effect on the midterms.

One question raised, then, is: How far from the election would have been considered acceptable by Trump’s allies? The Justice Department’s rule of thumb is two or three months. Is there some better standard to be applied? Or might we assume that the issue is less concern about how the search affects the midterms than the realization that citing the midterms might be useful in undermining the search?

What the court filing articulates in detail is why it took so long for the government to act at all. In short: because Trump and his team were dragging out the process.

The Washington Post’s Rosalind Helderman has a timeline of the effort to obtain the documents, but a few key dates serve to make the point.

      • May 2021: The National Archives notices that some documents it expected to have (like the letters from North Korean leader Kim Jong Un) are not included in the Trump administration records. It sends a letter to Trump’s attorneys requesting pertinent material.
      • December: After months of back-and-forth, Trump’s team cops to having documents that it agrees to turn over.
      • January 2022: Fifteen boxes of material are transferred from Trump to the government. The Post reports that Trump was actively involved in selecting the material — and secretive about doing so.

Note that here, 10 months before the election Trump could have turned over all of the pertinent material. At this point, he was expected to have done so. By late spring, though, the government became confident that he hadn’t.

      • April and May: From interviews, the FBI determines that classified material is likely still to be at Mar-a-Lago.
      • May 11: Trump receives a subpoena for any “documents bearing classification markings” — meaning even documents that might conceivably have been declassified. The deadline for compliance is May 24.
      • June 3: Justice Department officials go to Mar-a-Lago and are given a packet of material that a Trump attorney attests to being the entirety of what was found in an extensive search for compliant documents.
      • Later in June: The FBI interviews Mar-a-Lago staffers.
      • June 22: After asking that Trump’s team secure a room where documents were being stored, the government issues a subpoena for surveillance footage from the area around the room.
      • Friday, Aug. 5: A judge grants a search warrant that is executed on the following Monday.

According to this timeline, there was a period of about a month between the government’s request for surveillance video and its request for a search warrant. Could this period have been narrowed? Potentially. The Wall Street Journal reported that Attorney General Merrick Garland spent “weeks” considering whether to seek the search warrant. We don’t know if additional evidence emerged in that period to help convince him.

Regardless, consider it in the context of the overarching argument. Is an early July search significantly less intrusive than an early August one?

Of course, the timeline above also speaks to the idea that the Trump team was complying with investigators. In its filing, the Justice Department contradicts the Trump team’s claim that investigators had been allowed to see inside storage boxes during the June visit. The filing further asserts that “efforts were likely taken to obstruct the government’s investigation.” This comports with the timeline — including that request for surveillance video. If you’re concerned about material being moved out of sight, being able to see who has entered that room is useful.

[A]nd with that timeline in place, the argument that the government waited until a few months ahead of the election to go after Trump is hard to defend. After all, Trump could simply have returned everything in January or when subpoenaed in June.

He didn’t.





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1 thought on “DOJ Brief Is Devastating To Trump And His Incompetent Attorneys – They Are Facing Indictment For Obstruction Of Justice (Updated)”

  1. Adam Serwer writes at The Atlantic, “If It Were Anyone Else, They’d Be Prosecuted”, https://www.theatlantic.com/ideas/archive/2022/08/mar-lago-photo-trumps-impunity-classified-documents/671307/

    Retaining classified documents is not even close to the worst thing Trump has done. We are, after all, speaking of a man who twice tried to subvert the democratic process, first by using foreign aid in an attempt to blackmail Ukrainian President Volodymyr Zelensky into falsely implicating then–Democratic rival Joe Biden in a crime, and later by attempting to use a mob to seize power by force after bureaucratic means failed. But those were both overtly political acts, subject to distortions of perception and emphasis, and this one is rather more straightforward. It is illegal to “knowingly” remove “such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” The photograph of documents emblazoned secret removes any ambiguity as to whether Trump was in possession of classified documents. If it were anyone else, they would be prosecuted.

    [N]otably, Trump’s decision to retain classified information in the infamously insecure Mar-a-Lago resort, even after the National Archives asked for it back, meets a plain-English standard of “clearly intentional and willful mishandling,” exposing information in such a way as to support an inference of intentional misconduct, and efforts to obstruct the investigation.

    [A]s president, Donald Trump signed a law removing any ambiguity about intent when mishandling classified information. It is not simply that Trump’s behavior here was worse than Clinton’s; it’s that he rewrote the law to make the standard higher and then violated both the one described by James Comey and the higher standard he set himself.

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