Former President Donald Trump’s lawyers rolled into court on Thursday determined to convince a judge to slow down the criminal investigation of Trump’s handling of sensitive presidential records.
In making their case, they painted Trump’s dramatic, monthslong dispute with the feds over highly sensitive intelligence files as a mere tussle with a local librarian.
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It was like a spat about returning an “overdue library book,” Trump attorney Jim Trusty told federal district court Judge Aileen Cannon—in an attempt, evidently, to show that the FBI had overreacted by searching Trump’s Palm Beach club.
Federal investigators and a lot of independent legal and national security experts don’t see it that way. Trump now faces a criminal investigation over potential violations of the Espionage Act, which legal experts say could send him to prison. Some of the documents seized by the FBI from Trump’s Mar-a-Lago club last month bore markings indicating they should stay secret to protect the lives of spies working for the U.S.
Trump has claimed he declassified all the papers, although his own former White House aides have openly mocked that idea as “ludicrous.” His lawyers haven’t raised that argument in court, where it would face scrutiny. And the DOJ has said that some documents were so highly classified that FBI agents needed to get higher levels of clearance just to look at them.
Trusty dismissed all that high drama. Instead, he called the probe a “criminalized investigation” of the disagreement between Trump with the National Archives and Records Administration, and brought up the library analogy to make his point, according to a detailed blow-by-blow account of the hearing published by Lawfare.
Trusty has raised this metaphor before in a FOX News interview. But this was the first time he tried it out on a judge.
Trump and his allies have claimed Trump would have cheerfully handed everything over if the feds had just asked nicely, and that discussions over the files were pretty chill—up until the moment when, from their point of view, the FBI showed up out of nowhere, and for no good reason.
The Department of Justice describes the months preceding the Aug. 8 search very differently.
According to DOJ court filings, federal officials grew alarmed when they received 15 boxes from Mar-a-Lago in January that included sensitive classified documents mixed together with other random junk. When they demanded all the documents via a grand jury subpoena, they got a single accordion-folder envelope containing 38 classified documents—and a signed assurance that a “diligent search” had been conducted and this was everything.
Further investigations raised concerns this might not be true. FBI agents found over 100 classified documents in their Mar-a-Lago search—more than twice as many as were in the accordion envelope.
Trump’s team asked Judge Cannon, a Trump appointee, to freeze the DOJ’s review of the files to provide time for an independent lawyer, known as a special master, to have a look at the documents. On Thursday, Cannon signaled she might be convinced to agree, although she did not deliver an order immediately.
On Friday morning, the court released a more detailed inventory of the items the FBI collected from Mar-a-Lago. The list included government documents marked Secret and Top Secret, along with entries that said simply “article of clothing/gift item,” or “book.” Some entries indicated empty folders labeled Top Secret, with their contents apparently missing.
Independent lawyers, including many former prosecutors, say the probe could send Trump to prison.
Even a former Fox News legal analyst jumped on the bandwagon.
Judge Andrew Napolitano wrote on Thursday that his review of the facts in the case leads him to conclude that Trump “will soon be indicted by a federal grand jury.”
Napolitano concluded Trump seems to have no justification for having all those records at his private club.
“What will Trump say is his defense for taking national defense information? I cannot think of a legally viable one,” Napolitano wrote.
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