Donald Trump, in his lawsuit over the seizure of material from his Florida resort, appeared to admit that he was unlawfully holding official government documents, as the former president argued that some of the documents collected by the FBI may be subject to executive powers.
The motion filed Monday by the former president’s lawyers argued that a court should appoint a so-called special master to separate and determine what materials the Justice Department can consider as evidence due to privilege issues.
But Trump’s argument that some documents are subject to executive protection indicates that those documents are official documents that he is not allowed to keep and should have handed over to the National Archives at the end of the administration.
The motion, in that regard, seemed to admit that Trump violated one of the criminal statutes listed on the warrant the FBI used to search the former president’s Mar-a-Lago resort — 18 USC 2071 — regarding the unlawful removal of government documents.
“If he acknowledges that he is in possession of documents that would have any colorable claim to executive privileges, those are by definition presidential documents and belong to the National Archives,” said Asha Rangappa, a former FBI agent and former associate dean. at Yale Law School.
“And so it is not clear that the administrative law would even be relevant to the specific crime for which he is being investigated and yet he admits in this file that he possesses them, which the government is trying to establish,” Rangappa said. . said.
Trump remains in a position to advocate for the appointment of a special captain to review the seized documents, request a more detailed receipt for what the FBI retrieved from Mar-a-Lago, and request the Justice Department from further evaluating the materials until the process is complete. completely.
The rationale, say former US attorneys, is that there may be communications seized by the FBI that are privileged but not used to promote a crime, and even if the Justice Department wanted to use them in its investigation, it would this should be barred from doing this.
One person directly involved in Trump’s legal defense noted — reiterating parts in the filing — that the Presidential Records Act had no enforcement mechanism, even though they admitted the Justice Department could use the privilege argument as a tacit admission. consider.
But Trump’s motion could pose additional challenges to the former president, with additional passages in the filing setting out a months-long struggle by the Justice Department to restore certain records in a pattern of interactions that could be perceived as impeding the legal process.
The Mar-a-Lago search warrant stated impediment to allegedly violated statutes, although it was not clear whether that impeded the investigation into the Mar-a-Lago retrieval of government documents or some other separate investigation.
But the section in Trump’s motion titled “President Donald J Trump’s Voluntary Assistance” describes the multiple steps the Justice Department took to initially pick up 15 boxes in January, additional material in June, and then 26 boxes when the FBI conducted its search.
The filing discussed how Trump returned the 15 boxes to the National Archives and then — a day after the National Archives told Trump’s lawyers that those boxes contained classified documents — “accepted the service of a grand jury subpoena” for additional documents. with classification marks.
But despite taking documents into custody in response to the subpoena, the Justice Department discovered that additional documents may have been marked as classified, and issued a subpoena on June 22 demanding CCTV footage of the hallway outside where the materials were found. were stored.
That security tape subpoena, as well as a subsequent subpoena for CCTV footage of that area from just prior to the Aug. 8 FBI search, suggests the Justice Department did not think Trump was entirely truthful or candid in his interactions with the investigation.
Those suspicions were well founded: When the government retrieved material from Mar-a-Lago about that second collection in June, the Trump data custodian stated that they had returned documents in response to the subpoena — only for the FBI to send more boxes of classified files. materials.
Aside from the motion’s late filing two weeks after the FBI search took place, the order itself appears procedurally problematic.
The motion was not filed in West Palm Beach, Florida, where the warrant was approved. Instead, it was filed in Fort Pierce, where the judge has no knowledge of the underlying affidavit — and thus could decide to reveal to Trump whether he or his lawyers are suspected of obstruction.