THE TIGHTENING NOOSE:

The next step in the story involves the FBI's discovery, while pursuing the referral from the Archives, of "evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information." In other words, Trump's team didn't hand over everything to the Archives when the agency came looking. Perhaps there's an innocent explanation here--an honest mistake made by Trump and his team about how much material was held at Mar-a-Lago and where it was stored. But it's clear that the department has its doubts.

Indeed, this discovery by the FBI set off a chain of events in which the Mar-a-Lago camp seems to have repeatedly been less than forthcoming in its interactions with the government. The filing describes so many instances of apparent misrepresentations by Trump's team to the federal government that it's difficult to describe them all. 

Following the FBI's discovery of additional classified material possibly held at Mar-a-Lago, the Justice Department obtained and delivered a grand jury subpoena for "[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings [list of classification markings]." When the bureau arrived to pick up those documents on June 3, Trump's "custodian of records"--unnamed in the filing, but reported by the New York Times to have been Trump lawyer Christina Bobb--provided a signed letter stating that

a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

All of these statements appear to be at least partly false.

Counsel for Trump also informed the bureau that all of the records transported to Mar-a-Lago from the White House had been kept in one particular storage room at the resort and that "there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched."

This also appears to be false. As the filing states, the FBI later "uncovered multiple sources of evidence indicating that the response to the ... grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3." 

During the bureau's August search, agents found additional documents with classification markings--meaning that the letter signed by the custodian of records was incorrect in stating that "any and all responsive documents" had been turned over to the FBI. What's more, the FBI found additional documents in an area of Mar-a-Lago called the "45 office," described in the search warrant as "the former President's office space"--that is, outside the storage area where Trump's counsel said all material from the White House had been kept. 

The Justice Department also casts doubt on the signed assertion that "a diligent search was conducted of the boxes that were moved from the White House to Florida," stating, 

In the storage room alone, FBI agents found 76 documents bearing classification markings ... 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."

Again, perhaps these were good-faith mistakes by Trump's team rather than intentional efforts to hold on to sensitive documents or obstruct the FBI's investigation. But the Justice Department also includes details that look a great deal less innocent, and could go some way toward proving intent under the relevant statutes. 

When the FBI first arrived to obtain the boxes in the storage room after serving the initial subpoena, for example, "the former President's counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained." (This account differs from the version of events put forward by Trump's legal team, which has portrayed Trump as obliging to investigators and described the FBI as having conducted an exhaustive search of the storage room.) This would be consistent with Trump's team trying to keep the bureau from discovering additional responsive material. What's more, "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 Justice Department also notes conduct by Trump's team indicating some level of knowledge that the material in question was classified. The department describes how, when handing over documents in response to the initial subpoena, 

neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents." 

That's potentially significant, given Trump's later assertions that he had unilaterally declassified the information in the relevant documents during his time in the White House. (That said, it's not clear that it would be necessary for the documents to be classified in order for the department to bring criminal charges.)

What about Trump's own conduct? Reporting has indicated some level of knowledge and involvement by Trump in holding onto the documents in the first place when the National Archives came looking for them. According to the New York Times, "Mr. Trump went through the boxes himself in late 2021"--that is, before the Archives collected some of the material--"according to multiple people briefed on his efforts, before turning them over." The Times also wrote that Trump "resisted" calls to return material to the Archives in 2021, "describing the boxes of documents as 'mine.'" CNN has reported that after the Archives took the first tranche of material--which contained classified information--Trump began "obsessing" over arguments that he should not have turned over the documents and "becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago."

The Justice Department's filing is strikingly quiet on the question of how much, as the phrase goes, the former president himself knew and when he knew it. Indeed, it seems careful to avoid discussing Trump's conduct at all. 

But there are indications nonetheless that Trump may have had some degree of personal involvement in holding onto the documents. Most obviously, the department states that the FBI seized material in "the former President's office." In a footnote, the department also describes "the contents of a desk drawer that contained classified documents and governmental records commingled with other documents"--including three expired passports belonging to Trump--and notes that, "The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information." One way to read this might be that classified documents weren't just in a desk in Trump's office; they were in a desk in Trump's office along with other personal documents belonging to him. That doesn't prove knowledge or intent on Trump's part, but it's certainly suggestive of his own personal involvement in the mishandling of the material. 

The first conclusion from this extraordinary recitation is that the former president is in serious legal jeopardy. The department could have made all of the legal arguments that follow its factual account with a much more minimal factual presentation. It chose to tell this story. It chose to tell it in an open filing. It chose to make a series of serious imputations about the manner in which the former president and his team had behaved. It chose to include specific facts that suggest that Trump himself had engaged in misconduct. And it chose to lay all this out in a fashion that will make the department look very foolish indeed if the investigation now comes to nothing. The Justice Department does not do bravado, as a general rule. For it to so confidently detail the history of its investigation and the interactions that have driven it suggests a high degree of confidence on where this is heading.

As former Mueller investigation prosecutor Andrew Weissman put it on Twitter: "DOJ BIG PICTURE: you don't make a filing this strong, bold, and factually accusatory if you don't have every intention to indict."

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