The Biden Department of Justice alleged in a court filing Tuesday that former president Trump and his staff concealed and moved classified material in violation of a grand jury subpoena, and that the Department had no choice but to search the entire premises at Mar-a-Lago. The filing includes a now viral photo that shows classified documents strewn all over the floor.
The filing was the Justice Department’s response to former President Trump’s motion for the Court to appoint a “special master” to review documents seized from from Trump’s estate. The Justice Department claimed that it found three classified documents in Trump’s desk, although it did not indicate the level of classification.
The filing claims that the documents were likely “concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”
Trump’s lawyers had previously claimed that all of the remaining White House records were stored in a secure room in the basement.
The warrant was obtained after “the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises.”
The filing states 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 government has previously leaked that there were classified documents pertaining to nuclear weapons being sought, although the raid affidavit did not confirm this.
Trump has repeatedly insisted that he declassified all the materials he took home with him.
After finding five documents marked as CONFIDENTIAL, 16 marked as SECRET and 17 documents marked as TOP SECRET at Mar-a-Lago, the filing said, “Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.”
Fifteen boxes were returned to National Archives and Records Administration in January of this year.
The filing further stated that Trump’s personal effects are not subject to return for several reasons, including that the evidence of “commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.”
The viral photo of classified material—which some online are calling “staged”—could leave a misleading impression on the public, wrote lawyer and legal scholar Jonathan Turley on his blog, Wednesday.
Notably, this filing includes this picture which is being widely distributed. It can, however, leave an obviously misleading impression that secret documents were strewn over the floor when this appears to be the work of the FBI agents… https://t.co/3P4HZv5wBd
— Jonathan Turley (@JonathanTurley) August 31, 2022
“The picture could be seen by many that secret documents were strewn over the floor when this appears the method used by the FBI to isolate classified documents, wrote Turley. “It also seems entirely superfluous in releasing this one picture,” added the George Washington University law professor.
The picture is Attachment F and the textual reference on page 13 simply says:
“Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).”
Turley said he found it “curious” that the DOJ would release this picture because it was unnecessary, and it suggested that Trump left classified material laying around on the floor.
The point is to state a fact that hardly needs an optical confirmation: the possession of documents with classified cover sheets. Indeed, the top of roughly half of the documents are redacted in photo. The government could simply affirmatively state the fact of the covered pages and would not likely be challenged on that point without the inclusion of this one photo.
For critics, the photo may appear another effort (with prior leaks) to help frame the public optics and discussion. Clearly the court did not need the visual aid of a picture of documents with covers. It seems clearly intended for public consumption.
The Washington Examiner’s Byron York noted on Twitter that the photo was “doing its job.”
“Idea is to visually convey Trump alleged mis-handling of classified documents,” he wrote in response to a Daily Beast reporter’s tweet. “Doesn’t really matter if that is how they were found or not…”
FBI photo doing its job. Idea is to visually convey Trump alleged mis-handling of classified documents. Doesn't really matter if that is how they were found or not…https://t.co/Xf6EGzNml9
— Byron York (@ByronYork) August 31, 2022
York said that the DOJ won the “daily PR battle” by putting out the misleading photo.
Is that the way the documents were found? Many on Twitter believe so. Representative tweet: 'This is how Trump stored Top Secret material he stole.' 2/11 pic.twitter.com/PThhyppTow
— Byron York (@ByronYork) August 31, 2022
The department argued in the filing that Trump’s request for a special master “fails for multiple, independent reasons,” arguing that it’s both “unnecessary” and would “harm national security interests.” Furthermore, according to the Biden DOJ, Trump “lacks standing” for a special master because the records in question belong to the United States, not him. The filing stated that Trump won’t suffer any injury without an injunction “and the harms to the government and the public would far outweigh any benefit” to him.
According to Turley, those arguments are “transparently weak.”
The government argues that Trump lacks standing because the records belong to the United States, not him. However, that is the point. The court is trying to determine who has a right to these documents. The Justice Department itself recognizes that it may have gathered some attorney-client privileged documents in this ridiculously broad search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency.
The filing also shot down Trump’s claim to attorney-client privilege as those materials were already separated by the government’s filter team.
“Furthermore, appointment of a special master would impede the government’s ongoing criminal investigation and—if the special master were tasked with reviewing classified documents—would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused,” the filing said. “Lastly, this case does not involve any of the types of circumstances that have warranted appointment of a special master to review materials potentially subject to attorney-client privilege.”
“During the August 8 Execution of the Search Warrant at the Premises, the Government Seized Thirty-Three Boxes, Containers, or Items of Evidence, Which Contained over a Hundred Classified Records, Including Information Classified at the Highest Levels,” the filing said.
Aileen M. Cannon, the Florida federal judge overseeing the case, indicated on Saturday her “preliminary intent” to grant Trump’s request for a special master.
Cannon notably has not yet granted another request from Trump – that she block the government from reviewing the materials it has seized from Trump’s estate until a special master is appointed. That means the DOJ is able to continue to review the documents in the meantime, which it said it is doing in a separate filing Monday.
The hearing on the motion is scheduled for Thursday.
Trump reiterated that he had already declassified all the documents in a comment on the FBI photo on his Truth Social social media platform, Wednesday.
“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,” Trump wrote. “Thought they wanted them kept Secret? Lucky I Declassified!”