New court filing contains troubling legal news for Donald Trump
One sentence in a court filing about Donald Trump’s latest legal drama suggests he may be in more trouble than we thought.
Donald Trump could be in genuine legal jeopardy over his alleged illegal retention of sensitive government documents after leaving office, a court filing submitted by the United States Justice Department on Wednesday suggests.
The FBI executed a search warrant at Mr Trump’s Florida residence, the Mar-a-Lago resort, in early August, and retrieved a number of documents it said belonged to the government.
Mr Trump has since pushed for a “special master” to be appointed to oversee law enforcement’s review of the seized material, the idea being to ensure any private documents are returned to him.
In response to that push, the Department of Justice (DOJ) on Wednesday submitted an illuminating court filing.
Key detail missing in evidence photo
The element that received the most attention from that filing was an evidence photo showing one of the tranches of documents seized during the Mar-a-Lago raid.
These documents, classified as item 2A in the property receipt given to Mr Trump’s legal team afterwards, were described as “various classified/TS/SCI documents”.
The acronyms there stand for “Top Secret” and “Sensitive Compartmentalised Information”, the latter of which is restricted to a small number of individuals with top security clearance, and is usually stored in specially designed, secure facilities.
More secure, that is, than a private citizen’s luxury resort.
The photo gave us a touch more detail on the documents in question, because their cover sheets – which contain the relevant classification markings – were visible.
The markings involved here include “HCS-P”, which indicates material obtained from human sources (i.e. spies); “SI”, which usually refers to information gleaned from the surveillance of people’s communications; and “TK”, which generally means surveillance information obtained via satellites.
There are also ORCON markings, which mean distribution of the documents is controlled by the agency from which they originated (for example, the CIA), and NOFORN markings, which mean the information within cannot be shared with foreign powers.
Of particular note, however, was something completely absent from the image: any indication that the documents had been declassified.
In the wake of the FBI raid, Mr Trump and his allies took to claiming that all the documents seized from Mar-a-Lago had been subject to a “standing order”, issued while he was president, that they be declassified.
The US president does, in most cases, have the power to unilaterally declassify documents. However, the process involved would normally leave a paper trail; in particular, one would expect the markings on the documents to be updated to reflect their new status.
Clearly, that did not happen here.
“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,” Mr Trump wrote on his Truth Social platform after the evidence photo became public.
“Thought they wanted them kept secret? Lucky I declassified!”
In a separate post, the former president again accused the FBI of arranging the documents on the floor to make him look bad.
“There seems to be confusion as to the ‘picture’ where documents were sloppily thrown on the floor and then released photographically for the world to see, as if that’s what the FBI found when they broke into my home,” he wrote.
“Wrong! They took them out of cartons and spread them around on the carpet, making it look like a big ‘find’ for them. They dropped them, not me – very deceiving.”
It was a somewhat strange focus from Mr Trump – law enforcement is not claiming it found the documents on the floor, merely that they were being stored improperly at Mar-a-Lago. It is standard for the FBI to take photos documenting the evidence retrieved during a search.
As a former president, Mr Trump is now a private citizen. The documents in question, even if they were produced during his tenure in the White House, are property of the government, not him. He has as much right to keep them in his house as any regular citizen.
Which is to say, no right.
Whether they were technically classified or not is largely immaterial. The point is, he allegedly remained in possession of sensitive documents that did not belong to him.
That said, the lack of any declassification markings in the photo may still have serious legal ramifications for Mr Trump.
The Trump timeline
Some quick background: the FBI’s raid of Mar-a-Lago did not come out of nowhere. It followed months of more polite efforts to convince him to return the documents. We got more detail about those efforts in the DOJ’s court filing.
Of particular relevance is a subpoena served on Mr Trump in May, which compelled him to turn over “any 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”.
On June 3, Mr Trump’s team handed over some documents. His custodian – believed to be one of his lawyers – signed a certification saying a “diligent” search had been undertaken, and “any and all” documents responsive to the subpoena had been returned.
“Counsel further represented that there were no other records stored in any private office space or other location at (Mar-a-Lago) and that all available boxes were searched,” the DOJ’s filing states.
Which brings us to the lead-up to the raid.
“Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the premises, notwithstanding the sworn certification made to the government on June 3,” says the filing.
“In particular, the government developed evidence that a search limited to the storage room would not have uncovered all the classified documents at the premises. 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.
“Against that backdrop, and relying on the probable cause that the investigation had developed at that time, on August 5 the government applied for a search and seizure warrant.”
The subsequent search allegedly uncovered documents with classification markings, such as those that can be seen in the photo.
So the theory of the case, according to the government’s version of events, goes like this: Mr Trump illegally took government documents and stored them at his residence. The government asked him to give back all documents bearing classification markings. He, via his legal team, claimed he had done so, when in fact a great many such documents remained in his possession, and were then found in the search.
Speaking to Fox News on Wednesday night, Mr Trump’s lawyer Ali Habba once again focused on the layout of the FBI’s evidence photo.
“I’m somebody that has been in his office. This is not the way his office looks. They give you this appearance that you walk in and there’s these top secret documents just strewn about,” Ms Habba said.
She added that she had “first-hand knowledge” of the office.
“That is not the way his office looks. Anybody that knows President Trump’s office – he has guests frequently there. It’s just a joke.
“They literally must have gone in and taken out documents they wanted or cover letters, as it is, and put it about so that the public believes this is top secret documents that were on his floor. It’s ridiculous.”
Again, the issue here is not whether the documents were strewn on the floor of Mr Trump’s office – no one is claiming that. The issue is whether they were in his possession at all.
Another detail worth noting: Mr Trump previously complained that the FBI had taken possession of his passports during the raid, and said this was proof they had strayed beyond the scope of their search warrant. The DOJ’s filing offers an explanation.
It claims his passports were found inside “a desk drawer that contained classified documents and governmental records commingled with other documents”.
“The other documents included two official passports, one of which was expired, and one personal passport, which was expired,” the filing states.
“The location of the passports is relevant evidence in an investigation of unauthorised retention and mishandling of national defence information; nonetheless, the government decided to return those passports in its discretion.”
If this is correct, Mr Trump was keeping sensitive documents not only in storage boxes, but in a desk drawer, possibly located in an office frequented by guests.
A couple of weeks ago, it was unclear whether the FBI raid was part of a broader investigation that could lead to Mr Trump being indicted, or whether investigators were merely seeking to retrieve the documents in question, and would leave the matter there.
With this latest filing, the former theory seems much more plausible.
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