continued ...
The F.B.I. “uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the premises, notwithstanding the sworn certification made to the government on June 3,” the Justice Department filing said. “In particular, the government developed evidence that a search limited to the storage room would not have uncovered all the classified documents at the premises.”
The Justice Department obtained further subpoenas for surveillance videos of Mar-a-Lago, and the search warrant affidavit revealed that it had been working with multiple civilian witnesses. The result was the search warrant executed on August 8.
The filing noted “the F.B.I., 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,” a fact that it said “calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.”
Mr. Trump and his allies have claimed that, as president, he had virtually limitless power to declassify documents. But prosecutors said that Mr. Trump’s lawyers never “asserted that the former president had declassified the documents or asserted any claim of executive privilege.”
Tuesday’s filing, which was released minutes before a midnight deadline imposed by a federal judge, accompanied a sealed list of the documents, many of them highly classified, that Mr. Trump retained at Mar-a-Lago. That inventory, filed earlier in the day, is likely to be far more detailed than the brief list included in the search warrant unsealed at the request of Attorney General Merrick B. Garland.
The department, inundated by the torrent of misinformation and vitriol unleashed on federal law enforcement officials by Mr. Trump and his supporters, has been using legal filings, rather than social media or public comments, to disclose the evidence and legal reasoning behind their actions. On Monday, prosecutors sought permission to extend the length of their response, which was quickly granted.
Mr. Trump’s legal team, which has been slow to respond to the government’s actions since the search, is requesting the appointment of an independent arbiter known as a special master to review the trove of materials seized by the F.B.I. The president’s lawyers waited weeks to even file the special master request, which was intended to halt the examination of the documents, allowing the government to complete its initial assessment — potentially rendering the request moot.
On Tuesday, the Justice Department argued that a special master was “unnecessary and would significantly harm important governmental interests, including national security interests.”
It also argued that the judge lacked jurisdiction over the matter and that Mr. Trump “lacks standing to seek judicial relief or oversight as to presidential records because those records do not belong to him.”
Yet, over the years the former president has frequently taken legal steps simply to delay and disrupt the opposition, and the court could temporarily block investigators’ access to the evidence, to hinder the separate effort to determine the national security risks posed by his possession of the documents.
The Trump appointee overseeing the request, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida, had already signaled that she was inclined to appoint a special master but wanted to first hear from the Justice Department.
On Monday, the government said it had set aside materials that could potentially be covered by attorney-client privilege, although Mr. Trump’s lawsuit had raised executive privilege, a different issue. A hearing on the matter is scheduled for Thursday in West Palm Beach, Fla.
The department’s decision to use a court filing as a vehicle to provide a more extensive explanation of the government’s actions — and a rebuke of Mr. Trump’s rotating roster of legal representatives — evolved over the last few days and lawyers wrangled over small details until moments before it was filed, according to people familiar with the situation.
Mr. Garland, they said, remains deeply wary of speaking too much, cautioned by the example of James B. Comey, the former director of the F.B.I. whose high-profile pronouncements during investigations into Mr. Trump and Hillary Clinton were regarded as an egregious violation of departmental policy norms.
But after the Mar-a-Lago search, the department’s senior leaders quickly realized that Mr. Trump would otherwise seize on their silence with distorted claims.
So, they have chosen the traditional path, using public filings to make their case — leavening the dense legal passages with explanations aimed at being more accessible to the public, officials said.
On Tuesday, Mr. Garland took another step geared at emphasizing his impartiality and fairness, imposing new restrictions on partisan activity by political appointees at the Justice Department, a policy change that comes ahead of the midterm elections. The
new rulesprohibit employees who are appointed to serve for the duration of a presidential administration from attending rallies for candidates or fund-raising events, even as passive observers.
Mr. Trump, for his part,
has dismissed concerns about the performance of his legal team, and told associates that he will ultimately prevail over the Justice Department, just as he “won” impeachment and the investigation into his ties with Russia conducted by the special counsel Robert S. Mueller III.
On Tuesday, hours before the government filed its paperwork, Mr. Trump
added a member to his legal team to focus on the trouble brewing in Florida, Christopher M. Kise, Florida’s former solicitor general and an associate of Gov. Ron DeSantis, according to two people familiar with the situation.
View attachment 43116
Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, the New York Daily News, the Birmingham Post-Herald and City Limits.
@GlennThrush
Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is
“Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage •
Facebook
Alan Feuer covers extremism and political violence. He joined The Times in 1999.
@alanfeuer
Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia.
@maggieNYT