WASHINGTON — The Justice Department said Tuesday night that it had evidence classified documents at former President Donald Trump's Mar-a-Lago estate were "likely concealed and removed" before the FBI search to retrieve them.
In its late-night court filing, the Justice Department said that Trump's request to appoint a special master to review the documents “is unnecessary and would significantly harm important governmental interests, including national security interests.”
Some of the documents were so sensitive and classified that FBI agents and Justice Department attorneys needed additional security clearances to review them after the raid earlier this month.
The department also argues that it gathered evidence “that efforts were likely taken to obstruct the government’s investigation,” with government records “likely concealed and removed” in the months leading up to the search.
The Justice Department attempted to bolster its case to the court by including an FBI photo showing documents and "classified cover sheets recovered from a container" in Trump's "45 office," a reference to his being the 45th president. The photo shows documents marked “secret,” “top secret” and “SCI” — which stands for highly classified “sensitive compartmented information.”
Justice officials said the appointment of a special master would impede the government’s criminal investigation.
Such a review of classified documents “would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused,” the Justice Department document states.
The Justice Department said it could not trust information that came from Trump's orbit ahead of the Florida search and that a representative for the former president falsely asserted that classified documents had been turned over to the government. The fact that so many documents were found "casts serious doubt" on the Trump team's claim that there had been "a diligent search" for documents responsive to the grand jury subpoena in May.
"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," the Justice Department said in the filing.
U.S. District Judge Aileen Cannon, a Trump appointee, signaled over the weekend that she was inclined to grant the former president's request and appoint a third party to review the documents to ensure they don't include information protected by attorney-client privilege. The Justice Department has said a government filter team that's separate from the investigation had already identified "a limited set of materials" potentially containing privileged information.
In Tuesday night’s filing, the Justice Department argued a special master is unnecessary because government review teams have already finished their work. “It would do little or nothing to protect any legitimate interests that Plaintiff may have while impeding the government’s ongoing criminal investigation,” the filing says.
The FBI searched Mar-a-Lago on Aug. 8 after extensive discussions with the National Archives and Justice Department officials over nearly 18 months.
A redacted copy of the affidavit that laid out probable cause for the search revealed that the National Archives referred the matter to the FBI after it found "a lot of classified records" in 15 boxes that Trump turned over to the National Archives earlier this year. A subsequent FBI review of the boxes in May showed that 14 of the 15 boxes contained documents with classification markings. A total of 184 unique documents bearing classification markings were found, including 25 marked "TOP SECRET."
The FBI was authorized to seize any documents with classified markings, the containers the classified documents were found in, any government or presidential records created during Trump's time in office and any "evidence of knowing alteration, destruction, or concealment of any government and/or Presidential Records, or any documents with classification markings."
What to know about the criminal probe into classified documents at Mar-a-Lago
- FBI found 184 classified documents in boxes returned by Trump, redacted affidavit says, prompting search
- Docs received from Mar-a-Lago in January were marked with most sensitive classification, National Archives says
- ‘It worried people all the time': How Trump’s handling of secret documents led to the FBI’s Mar-a-Lago search
- Trump hires former Florida solicitor general in criminal probe of Mar-a-Lago documents
In Tuesday night’s filing, the Justice Department stated that more than 100 unique classified documents were seized from Mar-a-Lago this month.
“Three classified documents that were not located in boxes, but rather were located in the desks in the '45 Office,' were also seized,” the Justice Department wrote.
The DOJ took the dramatic step of seeking a search warrant after obtaining evidence that classified information remained at Mar-a-Lago, despite the assurances of Trump’s team that all classified documents had been turned over pursuant to a May 11 grand jury subpoena, according to Tuesday’s filing.
"The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation," the DOJ filing says.
Among the documents retrieved from Mar-a-Lago were Roger Stone's clemency paperwork, information about the president of France and a trove of confidential and classified documents, along with presidential records. FBI agents seized 26 boxes, as well as a leather-bound box of documents containing Top Secret/Sensitive Compartmented Information, according to the property receipt of items recovered which was previously filed.
The Justice Department also argued in Tuesday’s filing that Trump has no standing over presidential records, “because those records do not belong to him.” Under the Presidential Records Act, the records belong to the United States, the filing states.
Should the judge appoint a special master, the Justice Department sought to limit the duties to claims of attorney-client privilege among the materials already identified by the government’s review. It asked for final decisions on disputed materials to be made by Sept. 30.
In a separate filing Tuesday, several former federal prosecutors who served during Republican administrations — Donald B. Ayer, Gregory A. Brower, John J. Farmer Jr., Stuart M. Gerson, Peter D. Keisler, William F. Weld and Christine Todd Whitman — wrote that "regardless of one’s political views, it is clear that there is no legal support for the relief requested by the former President."