(The Hill) – The government has delivered the latest dramatic twist in the saga of the FBI, former President Trump and the documents he was holding at Mar-a-Lago.
A new filing released late on Tuesday casts more light on a case that exploded into public view when the former president’s Florida estate was raided on Aug. 8.
The filing came in response to the Trump legal team’s request for the courts to appoint a so-called Special Master to review seized documents.
Trump’s lawyers argue investigators should not have unfettered access to everything that was taken, saying that some items may contain privileged information.
The government hit back hard. What are the main takeaways?
Alleged obstruction moves into sharper focus
It was already known that the Department of Justice believed three crimes might have been committed —potential violations of the Espionage Act, obstruction, and the wrongful destruction of official documents.
The new filing hammered hard on the obstruction element.
It notes that a May 2022 subpoena had required Trump to give up “any and all” documents that bore classified markings. The following month, Trump’s team produced records in supposed compliance with those terms.
But the government asserts in the new filing that “the FBI uncovered multiple sources of evidence” suggesting that cooperation with the earlier subpoena was “incomplete.”
Referring to the main storage room at Mar-a-Lago, the filing adds:
“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.”
In simple terms, investigators are suggesting that documents were moved around at Mar-a-Lago to keep them out of the hands of the government — at a time when Team Trump knew there was a criminal investigation underway.
That, in itself, deepens the seriousness of the whole matter — and makes even more clear why a magistrate permitted the first-ever search of a former president’s home.
The filing also describes how the Aug. 8 search uncovered more than 100 documents marked as classified.
FBI agents, it notes, were able to find such documents “in a matter of hours” — something that it drily adds “calls into serious question” the Trump team’s assertion that it had previously conducted a “diligent search” and given up all such material.
A picture tells a thousand words
The heart of the government’s filing runs to 36 pages, with an additional 18 pages of attachments and appendices.
The most dramatic element comes on the very last page — a photo, described as a “redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ’45 office,’” referring to Trump’s office at Mar-a-Lago.
The photo, which immediately went into heavy circulation on cable news, is dramatic in part because of the messy scene it purports to capture.
It shows at least five folders or cover sheets, bearing bright yellow borders and the heading in bold red letters, “Top Secret/SCI.” That label, the latter half of which stands for “Sensitive Compartmented Information,” denotes one of the highest levels of secrecy.
The documents appear to be spread on a carpet. Beside them is an open cardboard box, in which only a framed, Trump-related Time magazine cover can be seen.
The suggestion is clear: that extraordinarily sensitive documents were kept alongside random mementoes of Trump’s White House days.
Perhaps because the photo is so arresting, and the implication so potent, some Trump allies have reacted with fury to its release.
Ric Grenell, who served as acting Director of National Intelligence under Trump, tweeted: “The staged photo was reckless and unprofessional. Whoever did it and whoever approved it for release should be fired.”
One of the most sensitive issues around the investigation is also one of the most intriguing: Are people within Trump’s circle cooperating with the Feds? And, if so, who?
Intrigue builds about secret sources
The DOJ previously resisted unsealing its affidavit in support of a search warrant, partly on the grounds that this could chill cooperation from current and future witnesses.
When the affidavit was released in redacted form last week under a judge’s orders, everything that could have provided clues in his regard was blacked out.
The new filing deepens the intrigue.
For example, the filing notes that at one point the FBI “developed evidence” that classified information was still at Mar-a-Lago and that the Trump team had not owned up to this fact.
A footnote adds that “of necessity…the government cannot publicly describe the sources of its evidence. particularly while the investigation remains ongoing.”
A later reference alludes to “multiple sources of evidence.”
Of course, such evidence isn’t necessarily coming from known names within Trump’s circle, and media speculation about a big “Mar-a-Lago mole” may prove hyperbolic.
But the Feds are clearly indicating they’re getting cooperation from someone, somewhere close to the president’s home.
Scathing response to claims of privilege
The filing is first and foremost a direct rebuttal to Team Trump’s claims on the need for a Special Master.
In short, the Trump view is that an independent expert should adjudicate whether anything seized was privileged.
But right off the bat, the government asserts that Trump lacks standing to ask for the return of presidential records “because those records do not belong to him.” It quotes the Presidential Records Act as saying that such documents are the property of the government.
Later, it also notes that investigators have their own “Privilege Review Team” — often known as a filter team. This is intended to serve a similar purpose to a Special Master, and it has already completed its work with the Mar-a-Lago docs.
The government is equally scathing of the idea that Trump can claim executive privilege — as opposed to attorney-client privilege — over any of the documents.
Doing so, it argues, would be tantamount to suggesting a former president can “validly assert executive privilege against the Executive Branch itself.”
Summing up its argument, it states that the appointment of a Special Master “would do little or nothing to protect any legitimate interests” Trump may have, while “impeding the government’s ongoing criminal investigation, as well as the Intelligence Community’s review of potential risks to national security.”
Trump fires back but with few specifics
The former president took to his favored social network, Truth Social, to hit out at the investigation, and the FBI generally, early Wednesday.
In one post, he objected to the photograph of classified documents, saying the FBI “threw documents haphazardly all over the floor (perhaps pretending it was me that did it!).”
He also repeated his contentious assertion that he had “declassified!” all the relevant records.
Trump’s claims will of course be amplified by his loyal supporters — but there are now questions about whether his support within the GOP will begin to fray, even as he mulls a 2024 presidential run.