Trump or consequences

He is now the target of a DOJ grand jury, and an indictment may be on the way

Credit: Mother Jones

This is my bi-weekly Salon Column. It is free to all subscribers.

The last week in August is usually a sleepy time in America, news-wise. A gigantic blanket of heat settles over the country, driving everyone inside, or to beaches and lakeside retreats. Congress is in recess with the president typically vacationing somewhere that features refreshing breezes if not cool temperatures; cable news anchors have retreated to their second homes in the mountains or by the seaside; even newspapers tend to take the slow-news days to run culture features on trendsetters and hip designers who have set the looks everyone will be sporting in the fall.

But none of that holds true when the disrupter in chief is facing investigations in multiple states and by the federal government itself that could land him in criminal court, and maybe even in jail. The former president, who throughout the past week had his lawyers refer to him as “President Trump” and “the President” in legal papers filed on his behalf in Florida, is facing a lawsuit in New York that could disassemble and fine out of existence his business, the Trump Organization; an investigation by prosecutors in Georgia for attempting to overturn the 2020 election results in that state (which he lost); and an investigation by the Department of Justice into his handling of official documents and national defense information that he spirited away to Mar-a-Lago when he left the White House and then refused to return to the National Archives over a period of almost 18 months.

It's not a pretty picture for a man who would rather be on one of his golf courses than hiring new lawyers and holding Zoom meetings with them, especially when it became known this week, according to a report in Politico, “the Republican National Committee is not paying for Trump’s legal fees related to the FBI’s investigation and retrieval of documents at Mar-a-Lago.”

It's not going to be cheap. The former president had four lawyers in a Florida courtroom on Thursday to argue his motion that a so-called special master should be appointed to go through the documents seized by the FBI in its search of Mar-a-Lago early in August. Trump had ordered his lawyers to file a motion requesting the outside arbiter to review the seized materials for documents that might fall under either attorney-client privilege or executive privilege, the second of which is accorded to presidents while in office to protect their communications with top aides and other senior government officials. (It’s unlikely to apply in this case, both because ex-presidents have limited recourse to executive privilege and because the FBI and the Justice Department are themselves part of the executive branch.)

That was on Aug. 22. That same day, Trump issued a statement calling the FBI search of Mar a Lago a “raid” and a “break in” and accused the FBI of “planting” materials in his Palm Beach residence. The search warrant, issued by Judge Bruce Reinhart, authorized the FBI to seize all physical documents and records constituting “evidence, contraband, fruits of crime” or other items illegally possessed in violation of three criminal statutes: 18 U.S. Code § 793, a subsection of the Espionage Act related to gathering, transmitting or losing defense information; 18 U.S. Code § 2071, relating to concealment, removal or mutilation of government records; and 18 U.S. Code § 1519, which relates to destruction, alteration or falsification of records in federal investigations and bankruptcy.

Whew. No wonder Trump went judge shopping and had his lawyers file the motion for the special master with a different federal judge, Aileen Cannon, whom Trump had appointed in 2020 and who did not assume her position until Nov. 13 of that year, less than a week after it became clear that Trump had lost the election.. Cannon, 40, is a conservative lawyer who has been a member of the Federalist Society since 2005.

Trump made a couple of notable errors when he ordered his lawyer to file the motion for a special master. First, he waited two weeks after the FBI search of his home to file the motion. That meant the Department of Justice had all the documents seized from his home and office in its possession long enough to have gone through and cataloged them, and as it turned out, to have its own “privilege team” review the documents for any communications between Trump and his lawyers that would be privileged and segregate them.

That’s what the DOJ told Judge Cannon in an initial response to the Trump motion last week. The judge, however, realizing that she was under the biggest microscope in her life, ordered the DOJ to file a more detailed response to Trump’s motion, and ordered Trump’s lawyers to file a response to the DOJ’s filing.

All of which amounted to the second error Trump made in his initial filing. His motion opened the door for the DOJ to go beyond what it had already been ordered to do, which was to release the search warrant, a redacted inventory of what it had seized and a redacted copy of the affidavit establishing probable cause, which had provided Judge Reinhart with the evidence he needed to issue the search warrant in the first place. The release of the search warrant and affidavit was not unprecedented, but it was unusual, and Reinhart ordered the release in response both to public demands from Trump on Truth Social and to a lawsuit filed by media organizations.

The materials Reinhart released were not helpful to Trump. The warrant laid out the laws he was suspected of violating (listed above) and the affidavit provided a window into the reasons the DOJ had obtained the warrant. The National Archives had sought the return of the documents Trump took from the White House for months in a back-and-forth with Trump’s lawyers, and Trump had responded to a subpoena from the DOJ only after a visit by Jay Bratt, the chief of the counterintelligence section of the DOJ National Security Division. 

If Trump had used a shovel to dig the hole he was in before, he used a backhoe to respond to the subpoena, ordering one of his lawyers, Christina Bobb — a former host on the far-right One America Network who also worked with Rudy Giuliani and Jenna Ellis in their efforts to overturn the results of the 2020 election — to sign a document certifying that a search of Mar-a-Lago had been conducted and all documents Trump had taken with him from the White House had been returned to the National Archives.

This turned out to be, to use a common legal term when describing matters Donald Trump, bullhockey. Bobb did not appear in court on behalf of Trump in Florida on Thursday, possibly because she is consulting criminal defense lawyers of her own, since she may face charges of lying on an official document and obstruction of justice.

Trump moved from a backhoe to an excavator to dig his hole even deeper when he filed his motion for a special master. The DOJ response to the Trump motion filed on Tuesday reads like a “target letter,” a notification by a federal prosecutor to a suspect that he has been under investigation for violating one or more federal statutes. In Trump’s case, there are three laws the DOJ believes he has broken, and in its filing on Tuesday, Bratt and Juan Antonio Gonzalez, the U.S. attorney for the Southern District of Florida, laid out its case in spades.

In addition to revealing that the FBI had recovered more than twice the number of secret and top-secret documents that Trump’s lawyer Bobb had turned over to the DOJ in June in response to the subpoena, the filing revealed that many of those documents had security classifications so high that several DOJ prosecutors had to receive higher levels of security clearance just to process the documents. The documents seized on Aug. 8, we would learn, included some with “sensitive compartmented information” designations that marked them as having come from HUMINT, or human intelligence, and SI, or signals intelligence, and potentially containing the most closely held kinds of government secrets — the identities of some of its agents and sources of intelligence information.

All of that was shocking to learn from the DOJ filing, but more important was the fact that federal prosecutors have found a way to get around charging Trump with possession of classified documents. The laws Trump is suspected of having broken involve “national defense information,” which does not require that a document be classified. It is a crime to simply have so-called NDI outside of a secure federal facility, or to use persons who lack the proper security clearances to move it around, and it is an even bigger crime to keep it from federal officials when they demand its return. 

The DOJ evidently has tapes from Mar-a-Lago security cameras that show who moved top secret documents around from room to room and who had access to the places where they were stored. Not to put too fine a point on it, but neither Trump himself nor his staff are cleared to possess or move sensitive NDI materials, and the DOJ filing establishes beyond doubt how Trump delayed, denied and disrupted attempts by the National Archives and the DOJ to get him to give up the documents he took from the White House. The fact that the DOJ had to get a search warrant from a federal judge and deploy some 30 FBI agents, all of whom had at least top-secret security clearances, to search Mar-a-Lago, is all the evidence you need of Trump’s efforts to avoid returning the documents.

There is a kicker in the DOJ filing. Trump is suspected of violating statutes involving obstruction of justice in his handling of the documents he took to Mar-a-Lago. But it’s not the kind of obstruction where you lie to investigators or encourage witnesses to lie or avoid talking to the FBI or prosecutors. It’s an obstruction law passed under George W. Bush in 2002. The only thing the feds have to establish in order to prove Trump obstructed justice under that law is that he failed to return government property, or encouraged others to avoid returning it, when it was demanded by the government. The documents Trump removed to Mar-a-Lago and refused for 18 months to give back to the National Archives, where they belonged, all fall under that category.

Then there is the matter, revealed in the DOJ filing, of the national security analysis underway by the director of national intelligence to determine what damage may have been done to the nation’s security by the disclosure of any of the secrets Trump stole. The documents that appeared in the now-famous photo accompanying the DOJ filing showing Top Secret/SCI and Secret/SCI documents displayed on the floor of Trump’s Mar-a-Lago study are clear evidence that the documents were not secured as required by federal law. Three of the documents were found in an unlocked drawer in Trump’s desk alongside three of his passports, and the others were discovered in a leather-bound box kept in his study. Trump’s study is located just off the main ballroom at Mar-a-Lago, effectively a public space, and was used in the past as a bridal changing room for weddings. One of Trump’s lawyers did him a further disservice on Wednesday night when she went on Fox News and said that she had been in Trump’s study on an unrelated legal matter and that Trump frequently has guests in that office. 

Under the laws regarding national defense information, those guests would be required to have the highest security clearance the government issues just to be in the same room with the documents seen in the FBI evidence photo taken in Trump’s office. In fact, Trump himself would need the same security clearances to be in the same room with those documents. He may be a former president, and he may have had the right to review top secret information while he was in office. But he’s a civilian now, and in 2021 President Biden ended the previous practice of providing former presidents with intelligence briefings because it was known that Trump had a habit of revealing secrets, even to foreign officials, and then bragging about it. So he’s not allowed to possess or even be in the immediate vicinity of the stuff he was keeping in his office, or in the Mar-a-Lago storeroom that was not adequately secured until the DOJ demanded in June that he put a lock on the door.

Here’s the upshot of all this, folks. There are consequences when you willy-nilly have your lawyers file motions in federal court demanding stuff like special masters. One of those consequences is that you allow the government to reveal to the public all sorts of damaging information about you. Judge Cannon said in court on Thursday that she will probably order the government to provide Trump’s lawyers, and the public, with a more detailed list of the materials seized in the FBI search of Mar-a-Lago. Trump’s lawyers demanded the expanded inventory of the seized materials, (which was in fact released by the court on Friday) and even demanded the return of the documents the FBI took from Trump.

In a word, notgonnahappen.

What will happen, however, in all probability, is an indictment of Donald Trump for violating the laws discussed here. Legal experts and former DOJ officials predict that the department will wait until after the midterm elections in November, to observe that somewhat-famous DOJ policy about not interfering with politics during an election season.

We all learn as little kids that it’s wrong to take stuff that isn’t yours and it’s wrong to lie about it when you get caught. All of us, it seems, except spoiled brats who have gotten away with not paying their bills, welching on their debts and lying practically every time they open their mouths. The Republican Party enabled Donald Trump to beat two impeachments for crimes that would have driven any other president from office. But he is about to learn, rather late in life, that there are consequences when you take something that isn’t yours and refuse to give it back. 

This time, there will be no one in the White House to pardon him.