Déjà Vu? DOJ’s ‘Classified Documents’ Narrative Feels Like A Get-Trump Trick We’ve Seen Before

Margot ClevelandSeptember 2, 2022

Since news first broke of the FBI’s raid on Mar-a-Lago, the Department of Justice has primed Americans to believe that former President Donald Trump hid classified documents at his Florida home in defiance of a grand jury subpoena. But even with leaks pushing claims that the documents seized included potential nuclear secrets, the public remains equally split on whether the Biden administration abused its power in targeting Trump.

With criticism of the raid remaining high nearly a month after the FBI executed the search at the former president’s home, the DOJ on Tuesday escalated its public-relations pitch by releasing several documents that seemingly establish that Trump failed to comply with the subpoena and that his representative lied to the government about the documents retained at Mar-a-Lago. While nothing is impossible, this narrative seems extremely unlikely.

To convince the country of the righteousness of its raid, the DOJ filed three seemingly damning exhibits in the separate lawsuit Trump had filed against the United States seeking the appointment of a special master to oversee the government’s handling of the seized documents. Specifically, the DOJ filed a copy of the subpoena issued to the “Custodian of Records” of “The Office of Donald J. Trump” that directed the custodian to provide “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”

The DOJ attached as another exhibit the “Certification” of the “Custodian of Records,” which noted, “based on the information that has been provided to” the custodian, she was authorized to certify that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “the search was conducted after receipt of the subpoena in order to locate any and all documents responsive to the subpoena.” The certification then noted that “any and all responsive documents accompany this certification.” A third exhibit filed by the DOJ depicted several sets of documents with various cover sheets showing their classification marking, such as “Top Secret.”

Together then, these exhibits seem to conclusively establish that Trump defied the subpoena and that either someone lied to the custodian or the custodian lied to the DOJ. And that is precisely the reason the DOJ included these exhibits — to convict Trump in the court of public opinion — as the exhibits are irrelevant to the question of the propriety of a special master. That fact alone should give the public pause, but there are other reasons to doubt the DOJ’s framing of the situation.

It’d Be Lunacy to Do What DOJ Suggests Trump Did

While the theory the DOJ paints seems simple enough, it just doesn’t pass a sanity test. The deep state and the FBI have been hounding Trump for six years straight. First came Crossfire Hurricane, followed by Special Counsel Robert Mueller’s carryover of that probe, coupled with a second one for obstruction of justice. Next, the Ukrainian impeachment hoax targeted the then-president. The Jan. 6 Committee’s attempt to criminalize Trump’s challenges to the 2020 election remains ongoing, while state prosecutors in New York and Georgia seek to see the former president behind bars. Further, the issuance of the grand jury subpoena and the DOJ’s correspondence with his attorneys establishes that Trump and his legal team know the Biden administration continues to target him.

Yet, knowing all of this, are we to believe Trump hid documents marked as classified, rather than comply with the subpoena, and then caused the signing of a false certification?

Could it have happened? Sure. Maybe Trump was so irate at what the FBI did in 2016 with the Russia-collusion hoax, or with its interference in the 2020 election, that he didn’t care. Or maybe he didn’t think Biden would dare come after him. But logic suggests the more likely scenario is that the DOJ is spinning the story again. And while we may not yet know how, the Russia-collusion hoax taught us there is a how. That history provides another solid reason to doubt the current storyline.

A further reason to suspect the DOJ is playing the American public stems from the misleading leaks that hit soon after news of the raid broke.

“CBS News has learned that weeks before the search, a Trump lawyer signed a document certifying that all classified materials had been removed from Mar-a-Lago, according to two sources familiar with the timeline of events and the decision to seek the search warrant,” the legacy network reported shortly after the Mar-a-Lago raid. “But after the Trump attorney certified that all classified materials had been removed from Mar-a-Lago, investigators gleaned that in fact, there might still be more classified documents at the Florida residence because they had spoken with a handful of individuals familiar with where and how the documents are stored at the compound,” the report continued.

The New York Times made similar claims, writing that “one of former President Donald Trump’s attorneys signed a letter in June asserting that there was no more classified information stored at Trump’s Mar-a-Lago residence, according to two sources familiar with the matter.” “The letter signed by the attorney raises fresh questions about the number of people who may have legal exposure in the ongoing investigation into the handling of classified materials from Trump’s time in the White House,” the Times continued.

This reporting, however, skews the reality that the supposed letter or document signed by Trump’s attorney was really a “certification” signed by the “custodian” of the records, which represents the normal procedure in the case of subpoenaed documents. Further, the leaks presented Trump’s lawyer as attesting that all classified material had been removed, when in fact the custodian’s certification spoke of providing all documents responsive to the subpoena discovered during “a diligent search” of “the boxes that were moved from the White House to Florida.”

Given that the FBI agents who meticulously searched Mar-a-Lago over a nine-hour period inadvertently swept up three of Trump’s passports, those conducting a “diligent search” could likewise have inadvertently missed documents with classified markings. The affidavit filed in support of the search warrant further strengthens this scenario, by noting that the 15 boxes retrieved by the National Archives from Mar-a-Lago contained “newspapers, magazines, print news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records,” and that 14 of the boxes included classified records that “were unfoldered, intermixed with other records, and otherwise improperly identified.”

This detail from the search warrant affidavit raises the question of the locations from which the documents marked classified were recovered. The photograph filed by the DOJ creates the appearance that the documents were clearly marked with cover sheets. Is that how the documents were found? Or did the DOJ provide the cover sheets? Were these documents intermixed with other documents, such that they could easily be overlooked?

The recently filed exhibits also raise several other questions, both of fact and law, such as whether the Mar-a-Lago search inadvertently missed these documents. Also unknown is whether Trump’s team discovered the documents before the search but after the certification was signed. If so, is there a legal duty to provide the grand jury the newly discovered records? Or did Trump’s attorneys conclude the documents were not technically covered by the subpoena? Or is there some other explanation?

Trump’s legal team has yet to address these exhibits, or the questions flowing from them, because they are not relevant to any of the pending litigation. But, as was the case with every previous get-Trump effort, the deep state seeks to convict Trump first in the court of public opinion. So it would be wise for his legal team to counter the DOJ’s spin before it takes hold.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.