Trump's filing opposing Mar-a-Lago raid forced DOJ's hand, experts say
After three weeks of accusations from former President Donald Trump and his allies that the Justice Department and FBI overreached in their unprecedented August 8 search of Mar-a-Lago, the DOJ responded Tuesday with a late-night filing that laid bare the fruitless negotiations that preceded the raid -- and provided ample evidence that in their own legal filing, Trump's attorneys had left out key details and made multiple unfounded or false claims about the circumstances surrounding the DOJ's efforts to retrieve classified documents.
Tuesday's DOJ filing was not just a line-by-line rebuttal of the claims made by Trump and his lawyers that they were fully cooperative all along with department's efforts to retrieve the records, but it put on full display the extent of the evidence collected so far by investigators in their probe of whether concealment of the documents amounts to obstruction of justice.
Included in the filing were paper exhibits showing the full subpoena sent to Trump's lawyers, the sworn statement by a Trump lawyer earlier this summer stating they'd handed over all relevant documents, and a high-resolution photo of a pile of documents that was subsequently collected from Trump's personal office with Top Secret markings.
The filing came in response to Trump’s request that a judge appoint a special master to intervene in investigators' ongoing review of the items seized from Mar-a-Lago -- but some legal experts tell ABC News that Trump's team may have hurt their own cause.
"One of the greatest self-inflicted wounds is the Trump legal team's decision, presumably with strong input from their client, deciding to lace their motion for a special master with several falsehoods," said Ryan Goodman, a professor of law at New York University and former special counsel to the Department of Defense. "Their approach gave the Justice Department a strong reason to publicly set the record straight and issue statements about facts that would otherwise have remained secret due to an ongoing criminal investigation."
"The Justice Department is usually loath to discuss matters that are under investigation," Goodman added. "It is rare for the public to get this much visibility into the evidence that is being developed in an ongoing investigation."
Indeed, Attorney General Merrick Garland has repeatedly said his department will only speak on criminal-related matters through its filings and pleadings in court. Prosecutors, in fact, said in a footnote of the filing that on Monday they had received authorization from D.C. District Court Chief Judge Beryl Howell to disclose evidence from their ongoing grand jury investigation, including the full copy of a May 11 subpoena that demanded Trump's team hand over all remaining documents with classifications markings to the government.
Experts said that demonstrates the extent to which officials were willing to go in order to present the fullest version of facts to Judge Aileen Cannon, who will hear arguments Thursday from the government and Trump's attorneys on the request for a special master.
"I don't think this was like a calculated effort of, 'Oh, wow, we have an opportunity here to push back hard and try to debunk all of what Trump has said,'" said Mary McCord, a former top official in DOJ's National Security Division. "I think it was, you know, we have to respond, we have a court order to respond. The court is obviously going to consider this motion. We're going to have a hearing and the motion we're responding to set forth a factual background that is inaccurate, at least according to the government."
Among other things, the DOJ's filing directly contradicts the Trump legal team's account of an in-person visit to Mar-a-Lago on June 3 by a group of FBI agents led by Jay Bratt, the chief of DOJ's Counterintelligence and Export Control Section.
While Trump's attorneys said that Bratt was permitted to inspect a storage room containing boxes of items from Trump's time in the White House, Bratt said in the filing that Trump's attorneys "explicitly prohibited government personnel from opening or looking inside any of the boxes" to confirm no documents with classified markings remained.
At the end of that visit, the Justice Department said Trump's attorney provided a sworn statement in response to the subpoena, confirming that all relevant materials had been handed over. The name of the lawyer who signed the statement is redacted, but it was said to have been signed by Trump attorney Christina Bobb, according to reporting from The New York Times.
Neither of the filings from Trump's legal team requesting the special master made any mention of that statement.
In addition, the DOJ rebutted arguments that Trump's advisers have been making publicly, including Trump's claim that he declassified the documents before leaving the White House. The filing said that during negotiations, Trump and his representatives never made any mention of the documents being declassified or subject to executive privilege. In fact, the filing said the documents the DOJ retrieved in June were stored inside a Redweld envelope that was "double-wrapped in tape" -- suggesting that the attorney handing them over believed them to be highly sensitive.
The government says that after its June visit, the FBI uncovered "multiple sources of evidence" showing classified documents remained at Mar-a-Lago, and that such documents would also be found outside of the storage room.
"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," the filing states. "This included evidence indicating that boxes formerly in the Storage Room were not returned prior to counsel's review."
While the latest filing did not spell out specifics about that evidence, it was that pattern of facts, in addition to other evidence of probable cause developed in the investigation, that the DOJ says led it to make the unprecedented decision to move forward in seeking a search warrant of the former president's residence.
According to the Justice Department, investigators during the August 8 search found more than one hundred documents bearing classification markings ranging from Confidential to Top Secret, as well as "additional sensitive compartments that signify very limited distribution."
"In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents," the department said, noting the search "cast serious doubt" on the claims from Trump's legal team that "there had been 'a diligent search' for records responsive to the grand jury subpoena."
"That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the 'diligent search' that the former President's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter," the filing states.
