UPDATE (Aug. 26, 2022, 12:44 p.m. ET): The Justice Department on Friday unsealed a partially redacted copy of the FBI affidavit used to obtain a search warrant for former President Donald Trump's Mar-a-Lago estate earlier this month.
Former President Donald Trump has reportedly had trouble recruiting seasoned lawyers in the aftermath of the FBI’s search of Mar-a-Lago this month. The lack of experience of the attorneys he does have was clear this week. In a span of less than 24 hours, Trump’s team finally launched a defense in court and appear to have leaked a document meant to show the Biden administration’s malfeasance.
On Monday evening, Trump filed a motion in a Florida federal court that called the warrant executed against him “overbroad” and demanded that the government stop reviewing any documents seized until a “special master” could be appointed to review them. Many experts quickly assessed, though, that the filing is not to be taken seriously. Instead, it’s mostly Trumpian gibberish doing an unconvincing impression of legalese.
The result has been a net negative for Trump, both in terms of crafting a media narrative and presenting an actual legal defense.
Later that evening, the website of a journalist close to Trump released a May letter from National Archivist Debra Wall to Trump’s attorney. The goal appears to have been to demonstrate that the Biden White House had meddled in the decision to investigate Trump. In actuality, the letter shows that, for months, the National Archives and Records Administration and the FBI treated Trump with the patience of a saint despite the former president’s stubbornness and the magnitude of risk he’d ignored in taking the documents in the first place.
In both instances, the result has been a net negative for Trump, both in terms of crafting a media narrative and presenting an actual legal defense. Normally, a special master is appointed when documents obtained may possibly be beyond what prosecutors are allowed to review, mostly those that fall under attorney-client privilege. But in this case Trump’s lawyers argue that it would be necessary to “preserve the sanctity of executive communications and other privileged material.” It’s an interesting assertion to make, but it doesn’t track with what we know about the series of events that led us here.
Notably, the warrant was only executed after NARA negotiated with Trump for months to recover federal property that Trump had taken to Mar-a-Lago. Trump half-assed his cooperation at every juncture, only returning some documents and not others. “It’s not theirs; it’s mine,” several advisers said he told them during the process, according to The New York Times.
Meanwhile, Trump’s team knew well before the FBI’s search how seriously the government was taking the missing documents. Wall wrote that among the records that were recovered from Mar-a-Lago in January were 700 pages of classified material. That included not just documents marked “Top Secret/Sensitive Compartmented Information” but those labeled “Special Access Program,” which together are some of the government’s most closely held secrets. More than 300 documents with classified markings have been recovered from Trump in total, The New York Times reported Monday, including tranches handed over in January and June and those seized in August.
Wall patiently explained in her letter to Trump attorney Evan Corcoran that despite Trump’s assertions, the documents that were seized belong to the executive branch. It also laid out months ago why Trump’s attempt to invoke executive privilege on Monday makes no sense. Wall wrote that there is “no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records,” especially ones that President Joe Biden and his administration can’t get from anywhere else.
Trump is once again treating a legal problem as a political one.
The May 10 letter also noted that the archivist had at Trump’s request held off on granting the FBI access to the documents reclaimed in January for counterintelligence review. But after months of delay, NARA had finally had enough and would be handing them over ASAP. If Trump really wanted to ensure that there were no privileged materials seized, May would have been the time to file for a special master to be appointed. Instead, he waited until not just the three months between Wall’s letter and the FBI’s search; he waited till Monday, two weeks after the Aug. 8 search, and thus two weeks after we can assume the FBI began reviewing the documents seized from Mar-a-Lago.
The archivist’s letter was first published Monday by the website of John Solomon, a conservative reporter who worked closely with a web of people connected to Trumpworld to launder false allegations about the Bidens’ corruption in Ukraine in 2019. It’s unclear why Trump's team would feed Solomon that letter, as it appears to have done, given that it undercuts the few actual legal claims — namely that all the materials seized should be presumed privileged — Trump’s lawyers packed into their filing.
The judge assigned to the case was likewise unimpressed with said filing, despite being known as a far-right Trump appointee. Judge Aileen Cannon gave Trump's lawyers until Friday to file a supplemental motion answering such basic questions as "Why do you think I have jurisdiction here," "What about the other court case that's going on regarding the criminal investigation," and "What exactly do you want me to do here?"
I argued on Aug. 12 that Trump’s team had only recently grasped the trouble their boss is in this time. Now I’m less sure that they’ve really got their arms around the scope of the mess that he’s created for himself. The response certainly doesn’t suggest as much, reflecting a “see-what-sticks” strategy instead of a coherent legal argument.
Trump is once again treating a legal problem as a political one. That’s worked out well for him in the past as he’s blustered and bluffed and stalled for time. This time, though, the stumbles that Trump and his team are making have left him dangerously exposed, facing possible federal indictment and bolstering the already serious case against him.
