The Department of Justice now finds itself in just such a can’t-miss scenario in its legal battle with Donald Trump over documents he took with him to Mar-a-Lago. Given the delicate political calculation, any error could strengthen the former president, weaken the rule of law, and imperil the Constitution. But so far, the federal government has been a step ahead of Trump at every turn.
The latest demonstration came in a filing late last night, in which prosecutors dramatically swept away the most recent excuses from Trump and his allies, who have insisted that the former president cooperated with the government and acted in good faith. The filing provides evidence that Trump and his team not only didn’t hand over all classified materials, but actively sought to conceal them by misleading the FBI. And a striking photograph, showing cover sheets with bold red block letters reading TOP SECRET // SCI, preempts any claim that Trump might simply not have realized the documents were classified.
This has been the pattern of the story of Trump’s mishandling of presidential records from the start. In January, the National Archives and Records Administration retrieved 15 boxes of documents from Mar-a-Lago. By February, NARA had already told DOJ about classified documents, according to a letter from the agency’s head to Representative Carolyn Maloney. Although a lawyer for Trump requested that NARA not disclose the contents of the boxes to the FBI, government lawyers were already a step ahead, pointing out that “there are important national security interests in the FBI and others in the Intelligence Community getting access to these materials … Some include the highest levels of classification, including Special Access Program (SAP) materials.”
Meanwhile, DOJ had concluded that the 15 boxes were not all of the documents Trump had improperly removed. In early May, prosecutors subpoenaed Trump to turn over documents. This was an important milestone in the investigation, because Trump has claimed that he would have been happy to hand over any documents: “They could have had it anytime they wanted—and that includes LONG ago. ALL THEY HAD TO DO WAS ASK,” he wrote on his struggling website Truth Social.
In fact, they did ask—and with the force of law behind the request. A representative for Trump swore that the president’s aides had performed “a diligent search” of the boxes removed from the White House and produced all documents covered by the subpoena. The representative also said that all of the relevant documents had been stored in one particular room.
Neither of these claims was true. The Justice Department obtained evidence that suggested that Trump had not turned over all the documents, and that other ones were stored in other locations at Mar-a-Lago. Using that information, DOJ asked a judge to approve a search warrant, and on August 8, FBI agents arrived at the club and seized more documents, including some stored in desks in Trump’s office there.
Using the dry language of legal filings, DOJ’s filing yesterday effectively calls Trump’s aides a passel of bald-faced liars: “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.”
Since the search, Trump has cycled through a series of excuses. First, he insisted that the search was politically motivated and questioned whether there were really serious classified materials present, but then filings showed there were.
He claimed to have cooperated with the government, but filings show that he repeatedly did not. His defenders have complained about the FBI search warrant at Mar-a-Lago, noting that the agency never raided Hillary Clinton during its investigation of her mishandling of classified info, but the difference is that Clinton cooperated with a subpoena.
Trump has also claimed that he had declassified the relevant documents by standing order or said they are subject to executive privilege, but DOJ was once again a step ahead, pointing out that when they handed the documents over on June 3, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.” (Beyond that, DOJ argues that Trump can’t invoke executive privilege to prevent circulation of documents within the executive branch.)
The Justice Department’s success so far doesn’t guarantee future success, and it doesn’t offer any definitive signs about whether prosecutors might charge Trump with crimes or whether they will be content to have recovered documents.
But the government’s ability to firmly and consistently turn away Trump’s defenses explains why so many of his regular defenders have tried to remain on the sidelines. It is not that they are abandoning him; it’s that they would prefer to wait rather than adopt talking points that might be made ridiculous by the next filing in the case. (Trump, who has no shame, has no such hesitations.)
But the photograph of the classified materials is prosecutors’ deftest maneuver thus far. The image is attached as the final exhibit and 54th page in a 54-page filing, but it might as well be the front cover of the filing. Trump has long grasped the power of a striking visual to make an impression, and were he not on the receiving end, he might even appreciate the artfulness. Not only has the Justice Department been prepared for Trump at each turn so far, but it has even coopted his methods.