The FBI searched Donald Trump’s Mar-a-Lago resort in Florida after it obtained evidence there was probably an effort to conceal classified documents in defiance of a grand jury subpoena and despite Trump’s lawyers suggesting otherwise, the Department of Justice said in a court filing late on Tuesday night.
The filing, opposing Trump’s request for an independent review of materials seized, amounted to the most detailed picture of potential obstruction of justice yet outlined by the DoJ.
“Efforts were likely taken to obstruct the government’s investigation,” the filing alleged.
Among new revelations in the 36-page filing were that agents recovered three classified documents from desks in Trump’s office and additional classified files from a storage room, contrary to what Trump’s lawyers indicated.
The DoJ suggested the effort to conceal documents started on 3 June, as Trump’s representatives produced a single legal envelope, double-taped, in response to a subpoena for materials removed from the White House.
The file was given to Jay Bratt, the chief DoJ counter-intelligence official, by a Trump lawyer and his records custodian, who signed a letter certifying a “diligent search” had been conducted and all documents responsive to the subpoena were being returned.
The lawyer also told Bratt all records in the envelope had come from one storage room, that there were no other records elsewhere at Mar-a-Lago, and that all boxes brought from the White House had been searched, the DoJ said.
A copy of the letter reproduced in the filing redacted the custodian’s name. Two sources familiar with the matter identified the custodian as Christina Bobb, a member of Trump’s legal team.
According to the filing, the FBI uncovered evidence through multiple sources that classified documents remained at Mar-a-Lago in defiance of the subpoena, and that other records were “likely” removed from the storage room and concealed.
The DoJ said the evidence – details of which were redacted in an affidavit unsealed last week – allowed it to obtain a warrant to enter Mar-a-Lago, where FBI agents found more classified documents in Trump’s office.
“The government seized 33 items of evidence, mostly boxes,” the filing said. “Three classified documents that were not located in boxes, but rather were located in the desks in the ‘45 Office’ were also seized.”
In an exhibit resembling how the justice department would show the results of a drug bust, the filing included a photo of retrieved documents emblazoned with classification markings including “top secret” and “secret” designations.
The DoJ said the documents collected most recently included “sensitive compartmented information”, while other documents were so sensitive that counter-intelligence agents reviewing them needed additional security clearances.
The filing said: “That the FBI 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 3 June certification.”
Trump responded on Wednesday with a post on his social media platform, alleging without evidence that the photo of documents was staged and that the documents were supposedly declassified.
“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 said. “Thought they wanted them kept Secret? Lucky I Declassified!”
Trump and allies have insisted he issued some sort of a standing order when he was president that any materials he took to Mar-a-Lago were declassified. He has produced no paperwork that might confirm that claim.
In a subsequent post, Trump wrote: “Whatever happened to NUCLEAR, a word that was leaked early on by the FBI/DOJ to the Fake News Media!” – a reference to a news report that the FBI sought materials relating to nuclear weapons.
The justice department appears to have asked Trump representatives in the June subpoena to return documents marked as “S/FRD”, short for “Secret/Formerly Restricted Data”, a control relating to nuclear weapons information designated by the Atomic Energy Act.
Trump has never addressed the central question of why he had classified documents at Mar-a-Lago, why they were in his private office, and why the documents were not surrendered when he was subpoenaed in June.
On Wednesday morning, Liz Cheney, the Wyoming Republican who is vice-chair of the House January 6 committee and a leading Trump critic, tweeted the picture of documents on the floor at Mar-a-Lago and condemned “yet more indefensible conduct by Donald Trump”.
Adam Schiff, the California Democrat who chairs the House intelligence committee, said: “The government’s brief is devastating. The legal arguments are compelling, but what is most striking are the facts outlining how the former president and his team knowingly put our national security at risk.”
In the DoJ filing, after painting an extraordinary portrait of the hurdles the DoJ had to overcome to recover documents that belong to the government, prosecutors argued Trump had no basis to seek the appointment of a so-called special master to review the files.
The request fails, the filing argued, because Trump is attempting to use the potential for executive privilege to withhold documents from the executive branch – which the supreme court decided in Nixon v GSA did not hold.
The DoJ added that even if Trump could successfully assert executive privilege, it would not apply because the documents marked classified were seized as part of a criminal investigation into the handling of the documents themselves.
Trump is expected to press on with his request for a special master and to obtain a more detailed list of materials taken, a source close to his legal team said, also disputing that the DoJ filing raised the likelihood of an obstruction charge.
On Tuesday morning, Trump added a third lawyer, the former Florida solicitor general Christopher Kise, to his legal team, said two sources with direct knowledge of the matter.
