I was up before dawn today. It’s my favorite time of the day for writing. I love watching the sun come up; I always have. But today, I wan’t watching the sun. I was reading the latest drama around the FBI’s espionage case against Trump. Hours before I was up, a trio of Wall Street Journal reporters filed a report about how Trump tried to hide and retain the stolen documents. On Tuesday the DOJ “laid out the government’s most detailed timeline yet of the events that led to the unprecedented search of the premises, in which investigators said they found records in places other than the storage room where Mr. Trump’s lawyers had assured them all were held.” The FBI’s filing to the court is so strongly accusatory that there is no doubt they absolutely intend to indict.
An hour later, the NY Times had a quartet of reporters filing a report with the latest twist in the sordid affair laid out. The DOJ had evidence that Trump was concealing highly classified stolen documents after his lawyers— who are also likely going to prison— “had falsely claimed all sensitive material had been returned.” Trump probably wishes he had never filed that gratuitous request for a special master, since yesterday’s bombshell filing was in response to that and then went on to paint “the clearest picture yet of the department’s efforts to retrieve the documents before taking the extraordinary step of searching a former president’s private property on Aug. 8. Among the disclosures in the 36-page filing were that the search yielded three classified documents in desks inside Trump’s office, with more than 100 documents in 13 boxes or containers with classification markings in the residence, including some at the most restrictive levels. That was twice the number of classified documents the former president’s lawyers turned over voluntarily while swearing an oath that they had returned all the material demanded by the government.”
Bradley Moss’ twitter thread was more informative and clear than either The Journal or The Times. He read the whole government filing and shared the highlights. Here’s the gist of in narrative form:
NARA negotiated in 2021 for the missing records. They finally got 15 boxes. After going through them and finding all kinds of classified records (not organized at all), they raised the alarm. They wanted to make a referral to the FBI but had to first consult with Trump's team, per the PRA procedure. Trump's team delayed for weeks and weeks, and never substantively responded. Finally, NARA told Trump's team they were making the referral and rejected the "protective" assertion of Executive Privilege.
At no time did Trump's legal team file an action *at that point* to prevent the referral to FBI.
The FBI reviewed the records and the criminal inquiry was opened. A grand jury subpoena was issued to Trump's team. Again, they delayed and delayed in complying. Finally, in early June they agreed to a meeting at MAL to comply. They turned over more classified records, and swore out a statement that they had done a diligent search, they had not found any more classified records, and any records that remained were in the storage room. They refused to let the FBI agents look at the boxes in the storage room.
The FBI gathered new evidence that there were in fact more classified records at MAL, including in locations outside of the storage room. They got the search warrant and found approximately 100 additional classified records, some located in Trump's own office.
That is straight up obstruction and concealment of classified records, and willfully retaining them in an unauthorized location.
Now come the legal arguments. First, DOJ says Trump lacks standing. The records are not his: they are the property of the US. Even if he wanted to claim them as personal records, he never did so. He did not do so in 2021, he did not do so when subpoenaed, he never did it. He has no possessory interest in the records.
Second, they argue Trump is not entitled to any injunctive relief. Again, these are not his records, he waited way too long to even try to stop the FBI from getting the records, he's not entitled to relief given Executive Privilege would not apply, and even if it did the criminal investigative need outweighs it.
Third, the Special Master is moot. The A/C privilege records were already separated and are set to be evaluated by the magistrate. The records Trump claims are covered by EP are not his anyway, and the Nixon precedents make clear he cannot invoke it to override the need to conduct a criminal investigation.
To sum it up, Trump took PLAINLY MARKED classified records to MAL, he delayed, obstructed and resisted Government efforts to recover them, he (or his staff) concealed the records from investigators, and they got caught doing so.
So… lots of evidence of obstruction of Justice. Trump will be charged with crimes that carry sentences that would mean he would spend the rest of his life behind bars— just on the obstruction part, without even getting into the espionage aspects of the crimes.
As for Trump’s crooked and incompetent lawyers (Evan Corcoran and Christina Bobb)… “Andrew Weissmann said if he were advising Trump's attorneys, he'd tell them to ”stop talking" and "get the best defense counsel you can possibly get.” This was 4 days ago!
This was his suggestion to the Trump lawyers late last night. Click on the image to hear about the likely perjury and obstruction charges that are going to come down on the lawyers