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Justice Dept. alleges "obstructive conduct" occurred at Mar-a-Lago after request for classified documents

New details emerge in DOJ filing
New details emerge about photo of documents at Mar-a-Lago 01:35

Washington — The Justice Department filed a 36-page response late Tuesday night to former President Donald Trump's request for a federal judge to appoint a third party to sift through the records seized at his Florida residence. The government alleges that "obstructive conduct" occurred at Mar-a-Lago after Trump's legal team allegedly tried to conceal or remove certain records from investigators in the months leading up to the Aug. 8 search.

In the filing, federal prosecutors argued that Trump's request for a special master to review the records seized in the search "fails for multiple, independent reasons," and they accused the former president of leveling "wide-ranging meritless accusations" against the U.S. government in the motion he filed last week.  

The appointment of a special master, they said, "is unnecessary and would significantly harm important governmental interests, including national security interests."

Among the filings submitted to the court is a redacted FBI photo — taken during the Aug. 8 search of Mar-a-Lago, the Justice Department said — of records recovered from a container in Trump's office that include cover sheets for classified information with the markings "SECRET//SCI" and "TOP SECRET//SCI." The documents are positioned next to a container with a framed Time magazine cover, among other items.

Visible on the cover sheets is the message "Contains sensitive compartmented information up to HCS-P/SI/TK."

Photo submitted in Aug. 30 Justice Department filing that appears to have been taken during the Aug. 8 search of Mar-a-Lago, showing records scattered on a floor that include cover sheets for classified information with the markings "SECRET//SCI" and "TOP SECRET//SCI." U.S. government photo

Federal prosecutors told the court that in some instances, "even the FBI counterintelligence personnel and DOJ attorneys conducting the review" of the records seized in this month's search required additional clearances before they could review certain documents, suggesting that they found the records to be extremely sensitive. 

In a post to his social media platform Truth Social, Trump claimed he declassified the records visible in the photo from the FBI. However, the Justice Department said Trump's representatives never "asserted that the former president had declassified the documents or asserted any claim of executive privilege."

"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 wrote Wednesday. "Thought they wanted them kept Secret? Lucky I Declassified!"

His legal team also has until 8 p.m. Wednesday to submit its own response with the court.

Investigators are probing Trump's alleged mishandling of classified documents, specifically records that he took from the White House to his Mar-a-Lago residence when he left office in January 2021, as well as possible obstruction of the investigation. 

The Justice Department revealed Friday that earlier this year, investigators found 184 unique documents bearing classification markings — including 67 documents marked confidential, 92 documents marked secret and 25 documents marked top secret — in material the National Archives and Records Administration initially collected from Trump in mid-January. The Archives later referred the matter to the Justice Department for further examination. 

In their latest filing, federal prosecutors said that during the course of its investigation, the FBI "developed evidence" indicating that in addition to the 15 boxes retrieved by the Archives in mid-January, "dozens of additional boxes" likely containing classified information remained at Mar-a-Lago.

To retrieve those additional classified records, the Justice Department obtained a grand jury subpoena and on June 3, three FBI agents and a Justice Department attorney visited Mar-a-Lago to get the materials, according to Tuesday's filing. The officials received from Trump's representatives a "single Redweld envelope double-wrapped in tape," prosecutors said. Trump had previously claimed that he "voluntarily" accepted the subpoena and later invited investigators to Florida for the June 3 meeting. 

According to the Justice Department's response, an unidentified individual characterized as the "custodian of records" for Trump's post-presidential office provided federal law enforcement with a signed certification letter on June 3 that stated a "diligent search" was conducted of boxes brought from the White House to Mar-a-Lago and that "any and all" documents responsive to the grand jury subpoena were turned over.

Records taken from the White House to Mar-a-Lago were stored in a single location, a lawyer for Trump present on June 3 told federal officials: a storage room on the property, the Justice Department said in its response. A preliminary review of the documents conducted by the FBI revealed the envelope contained "38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET."

"Counsel for the former president offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the administration," Justice Department lawyers told the court. 

But after the June 3 meeting at Mar-a-Lago, the FBI, according to the response, claims it uncovered "multiple sources of evidence" that indicated more classified documents remained at the property and that a search of the storage room "would not have uncovered all the classified documents at the premises." Prosecutors added, "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."

It was against that backdrop that the Justice Department sought the search warrant from a federal magistrate judge earlier this month, prosecutors said. During the Aug. 8 search of Mar-a-Lago, federal agents seized 33 boxes, containers or "items of evidence" that contained more than 100 classified records, including information classified at the "highest levels," according to the filing. Three classified documents were allegedly found in desks in Trump's "45 Office" and also taken by the FBI.

Of the items seized by federal agents, 13 boxes or containers had documents with classification markings, some of which contained colored cover sheets indicating their classification status — the photo of which was submitted to the court in a supplemental filing.

"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 filing asserts.

Following the execution of a search warrant at Trump's Mar-a-Lago resort earlier this month, the former president filed a lawsuit asking a federal judge to appoint a special master to examine the materials and filter out any privileged or unrelated documents that were not within the scope of the court-authorized warrant.

Last week, Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida asked the Justice Department to explain its view of Trump's request, setting a deadline of Tuesday for the government's response. She also ordered the department to submit a more detailed list specifying all property seized during its execution of the search warrant at Mar-a-Lago, though that document, also due Tuesday, was to be filed under seal.

In an order issued Saturday, before the Justice Department responded to Trump's motion, Cannon gave notice of her "preliminary intent" to appoint a special master, though her decision was not final. A hearing on Trump's request is set for Thursday afternoon.

On Monday, prosecutors said in a separate court filing that investigators had already completed their search for potentially privileged information and found a "limited" set of documents that might be considered protected under attorney-client privilege.

For his part, the former president has denied wrongdoing and claimed without evidence that the investigation is a politically motivated attack as he prepares for a possible presidential run in 2024.

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