Experts say DOJ claim that Trump still hoarding classified docs is a “major step toward indictment”

“Trump is daring the DOJ to charge him," ex-prosecutor says after DOJ demands he return additional classified docs

By Igor Derysh

Senior News Editor

Published October 7, 2022 9:10AM (EDT)

Donald Trump | Mar-a-Lago resort (Photo illustration by Salon/Getty Images)
Donald Trump | Mar-a-Lago resort (Photo illustration by Salon/Getty Images)

The Justice Department believes that former President Donald Trump may still be withholding documents he took from the White House even after the FBI raided his Mar-a-Lago residence in August, according to multiple reports.

DOJ counterintelligence chief Jay Bratt in recent weeks told Trump's lawyers that the department believes he "has not returned all the documents," according to The New York Times, which added that investigators "remain skeptical" that Trump has been fully cooperative with their efforts to recover documents that are legally required to be turned over to the National Archives.

Bratt and other officials have "demanded" that Trump specifically return any outstanding documents marked classified, according to CNN.

Prosecutors have already suggested in court documents that additional documents may be missing. The DOJ last month raised questions about what happened to the contents of 43 empty classified document folders the FBI seized from Mar-a-Lago.

After Trump-appointed Judge Aileen Cannon appointed a special master to review the documents and halted the criminal investigation into the handling of the materials, the DOJ warned that the order would "impede efforts to identify the existence of any additional classified records that are not being properly stored – which itself presents the potential for ongoing risk to national security."

Prosecutors appealed the decision, telling an appeals court that the order prevented the FBI from taking steps that "could lead to identification of other records still missing."

The 11th Circuit Court of Appeals in Atlanta ultimately overturned Cannon's order barring the DOJ from using about 100 seized documents marked classified in their probe, agreeing with the DOJ that Cannon has "abused" her authority. The court is also expected to rule on the DOJ's appeal that could grant them access to all of the documents tied up in the special master review. Trump, meanwhile, has appealed to the Supreme Court to allow the special master to review the 100 documents marked classified first.

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The pressure from the DOJ has caused a "rift" among Trump's legal team, according to the Times. Some members, including attorney Chris Kise, have advocated a "cooperative approach," according to the report, urging the former president to bring in a third-party firm to search for additional documents. Trump initially agreed to go along with Kise's advice to bring in a forensic firm to conduct a search. But other members, who urged a more "combative" approach, "won out," according to the Times. Kise, who was paid a $3 million retainer, has since been sidelined just weeks after joining Trump's team.

It's unclear which of Trump's properties the DOJ believes the former president may still be hoarding documents and it's unknown whether the department plans to take steps to find them. The DOJ could try to obtain a subpoena or another search warrant, or push for Trump to affirm under oath that he returned all of the documents, according to the Times.

"They could say to the court that in lieu of seeking a search warrant we're bringing this to the court," national security attorney Bob Litt told the outlet. "The goal is to get Trump to go on the record because he has a history of saying things out of court that he won't go on the record for."

Former federal prosecutor Renato Mariotti tweeted that a "smart lawyer" would try to negotiate a deal to "avoid charges."

"Holding onto additional classified materials is exactly the opposite of what someone under federal criminal investigation should be doing," he wrote. "Trump is daring the DOJ to charge him."

Ryan Goodman, a New York University law professor, agreed that "this may help force the Justice Department's hand toward an indictment."

Harvard Law Professor Laurence Tribe told CNN that the report suggests that the DOJ is "closing in on indicting Donald Trump" under the Espionage Act and for obstruction of justice in both a national security inquiry and a criminal investigation. Tribe also raised concerns that the DOJ has said that some of the secret documents at Mar-a-Lago could put human sources at risk.

"There are people whose lives are at stake if their identity has been revealed in some of these top-secret documents, which clearly were marked 'human source.' They were marked to indicate that they would reveal the identity or location of, basically, American spies abroad," Tribe said. "They were marked signals intelligence. So this is very serious. And what I take these recent revelations to mean is that shortly after the midterm elections, indictments are likely to start flying."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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