Judge Outlines ‘Shell Game’ Played with Classified Docs at Mar-a-Lago
“Strong evidence” of Trump directing the purloined papers scheme.
MAY 23, 2024
THIS WEEK’S MOST IMPORTANT NEWS is barely making headlines: On Tuesday, it was revealed that a federal judge found over a year ago that there is sufficient evidence, if believed by a jury, to find that Donald J. Trump committed numerous federal crimes in connection with his alleged theft of classified documents and obstruction of the FBI’s attempts to get them back.
Meanwhile, a second federal judge is dragging her feet getting that case past “Go,” let alone ready for trial before the November election.
The second judge is Aileen Cannon, who on Wednesday held hearings on two of the many motions sitting on her docket in Florida. The indictment originally came down nearly a year ago, on June 8, 2023, and trial was supposed to start this week, on May 20, 2024, but Cannon has—indefensibly—delayed it indefinitely. This week’s hearings dealt with Trump’s rather silly “Motion to Dismiss the Indictment Based on Selective and Vindictive Prosecution,” which Cannon tabled, again, for now. She also considered co-defendant Waltine Nauta’s motion to dismiss the charges against him on the theory that the government did not specifically allege that Nauta—who was caught on camera moving boxes out of a Mar-a-Lago storage room to Trump’s personal quarters in the days following Trump’s receipt of a federal subpoena—actually “knew that there were classified documents on premises.” The first motion is classic Trumpian bravado, and the second raises a factual question for the jury. Both motions should fail, but that’s not the point. The point for Trump and his co-defendants is to file whatever lawyers can dream up, even if it’s legally garbage, in order to give Cannon more reason to delay the trial further in the hopes that, if Trump wins (or steals) the election in November, he’ll call off the whole prosecution.
The first judge’s decision, which was unveiled this week by Trump’s lawyers in the Mar-a-Lago case, underscores how vital that trial is to the fate of the nation. The judge is U.S. District Judge Beryl A. Howell, who sits in Washington, D.C. and presided over the grand jury investigations, including the special counsel’s probe into the classified documents situation, and related disputes. On Tuesday, when Trump filed his motion seeking to dismiss the Florida case, he attached a March 17, 2023 ruling by Judge Howell that had previously been kept confidential and under seal. That 2023 ruling involved Special Counsel Jack Smith’s request to interview one of Trump’s lawyers—presumably Evan Corcoran—before the grand jury. Corcoran was advising Trump during the time period in which the really bad obstruction allegedly happened—from May 2022, when Trump first got the grand jury subpoena asking for the records back, through the FBI’s raid of Mar-a-Lago in August 2022. In the interim, boxes were moved, closed-circuit television videos were recorded, and a false certification that all the records were returned was signed.
And, it turns out, there’s evidence that Trump was behind all of it.
Normally, of course, such conversations would be protected by attorney-client privilege, but there’s a relatively rare exception: the crime-fraud exception. If the government can make a prima facie (on-its-face) showing that Trump committed a crime or fraud, and that his communications with his lawyer furthered the criminal scheme, the privilege is gone. Howell found the crime-fraud exception was established in this case.
Her 87-page opinion is highly detailed and worth reading in full, but the weightiest parts have to do with the two crimes that, by her reckoning, Trump may well have committed.
Crime 1: Unauthorized retention of national defense information.
Trump received a subpoena on May 11, 2022 for all documents with classified markings in his possession but he turned over “only a small fraction.” Howell summed up the life of the subpoena this way:
Ensuring compliance with the May 2022 Subpoena has been slow-going, prompting the government to seek and execute a search warrant at Mar-a-Lago, additional government motions regarding inadequate compliance, repeat visits to this Court, and new searches conducted and updated certifications filed, with the compliance effort dragging into mid-December 2022, when additional classified documents were recovered from a closet in the [Trump] Office’s designated space at Mar-a-Lago.
Trump knew the FBI’s subsequent search was to be limited to a storage room. From May 22 to June 1, a “witness” moved over sixty boxes to his bedroom. Trump “told [him] to put them in the room” apparently because “Trump wanted to pick from them.” Moreover, “Security camera footage reveals that box movement began on May 22, 2022,” with a witness moving sixty-four boxes from an anteroom into a storage room between May 24 and June 1, 2022, and then moving perhaps thirty boxes into the anteroom on June 2, 2022. After Trump himself “spoke with the government” at Mar-a-Lago on June 3, 2022, someone working for him “led the government officials to the storage room and permitted them to look inside the room but not to look inside any boxes stored inside.” The agents present estimated there were at least fifty boxes in the storage room.
In August, when the FBI executed a warrant based on what they saw in June, the government found another hundred records classified as high as “top secret.” The documents were “potentially damaging to the United States” if disclosed. Take in that last part: A federal judge suggested that Trump put national security at risk. We still don’t know how much risk he wagered and whether the damage was ever contained. Judge Howell concluded that there is “strong evidence that the former president intended to hide boxes from his attorney’s search efforts to comply with the grand jury subpoena, and resultantly, unlawfully to retain any classified documents contained inside any of the boxes purposely removed from the attorney search.”
Mincing no words, Howell also detailed Trump’s jousting—before the involvement of the FBI—with the National Archives and Records Administration (NARA):
Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it. First, even before the issuance of the May 11, 2022 subpoena, he deliberately curtailed his staff’s efforts to comply with NARA’s requests to return missing presidential records. . . . [I]n the months leading up to January 2022, the former president reviewed only fifteen to seventeen of the boxes retrieved from his storage room before telling his staff, “that’s it,” and instructing WITNESS [redacted] to tell one of the former president’s lawyers that no more boxes remained at Mar-a-Lago. The former president knew at the time that he had only reviewed a fraction of the total boxes in the storage room, because his staff had showed him a picture of the floor-to-ceiling stacks numbering over sixty boxes. . . . The former president’s misdirection of NARA was apparently a dress rehearsal for his actions in response to the May 11, 2022 subpoena.
A witness also recounted that the former president “made a funny motion” indicating that “if there’s anything really bad in there, like, you know, pluck it out.”
Crime 2: Obstruction of grand jury investigation.
For this crime, Howell relied on the false June 3, 2022 certification by lawyer Christina Bobb that Trump had turned over all the records when he had not. Howell found that Trump knew that his team “intended to inform the government that the responsive documents located in the storage room provided a comprehensive response to the May 2022 Subpoena—a representation that the former president, for the reasons already detailed, knew to be wrong.” Howell notes that the government called the whole thing a “shell game,” as Trump moved the documents around within Mar-a-Lago based on the schedule of when specific spots would be searched.
IT IS WORTH UNDERSCORING that Judge Howell’s finding is far more damning of Trump’s criminal liability than the grand jury charging document that Smith spearheaded—it is an assessment by a judge of actual evidence sufficient to pierce what is one of the fiercest protections of information known to the law. And what it indicates is a clear pattern showing that Trump did not merely act recklessly but that he knowingly broke the law. The American people deserve to have the full story told and the full case tried in court, as soon as possible.