Donald Trump has complained that FBI agents' seizure of his passports showed that investigators ran amok as they searched his Florida resort, but new information about how and where the documents were found could spell major trouble for the former president, legal experts told NBC News.
In a footnote in Tuesday's court filing pushing back against Trump's demand for a special master to sort through the evidence that was seized at his Mar-a-Lago property, Justice Department officials countered his contention that it was an overreach to take three passports that were later returned.
Consistent with the terms of the search warrant, the Justice Department said in the filing that "the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents."
"The other documents included two official passports, one of which was expired, and one personal passport, which was expired," it said. "The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information."
NBC News legal analyst Barbara McQuade, a former U.S. attorney, said the reason the passports are "relevant evidence" is clear — they point directly to Trump.
“In most searches you look for identity documents to tie a suspect to the evidence you’re looking for — photographs, IDs, utility bills. If you find the contraband in the same room as the identity documents, there’s a fair inference that person had dominion and control over the documents,” said McQuade, a professor at the University of Michigan Law School.
According to the Justice Department, the drawer with the classified documents and the passports was in Trump's "45 office" in Mar-a-Lago.
"Finding the passports side by side with the classified documents suggests he himself was the one who handled" them, McQuade said.
It also makes it difficult for Trump to argue that movers or aides mishandled the documents or that he was unaware of their presence, McQuade said, arguing, "That's pretty damning evidence."
NBC News legal analyst Glenn Kirschner, a former federal prosecutor, agreed.
"The two things we always take when we're executing search warrants is evidence of crime and evidence of ownership or possessory information," Kirschner said. "If there are utility bills at the scene, you seize the bills, not because they're evidence of a crime but because they're evidence of possession and ownership."
Trump complained a week after the Aug. 8 search that FBI agents “stole my three passports” — just after a Justice Department official emailed Trump’s lawyers to say the Justice Department had the passports and was returning them.
In his filing calling for a special master, Trump’s attorneys argued that in returning the passports, investigators acknowledged they "were not validly seized." His legal team responded to the Justice Department's filing Wednesday night, with arguments over the special master request set for Thursday.
Trump lawyer Christina Bobb told Fox News last month that the agents' seizure of the passports “goes to show the level of audacity that they have.”
“I think it goes to show how aggressive they were, how overreaching they were, that they were willing to go past the four corners of the warrant and take whatever they felt was appropriate or they felt that they could take,” Bobb said.
The government's filing Tuesday noted that the search warrant expressly allowed agents to take items that were mixed in with "documents with classification markings," and McQuade and Kirschner agreed that there was most likely no reason for the government to hang on to the passports, which they said would have been photographed and copied before they were returned to Trump's lawyers. "You just need to be able to document that the passport was found next to the contraband," Kirschner said.
McQuade said investigators returned the passports "because they got what they needed out of them."