The Department of Justice filing against former President Donald Trump was stark, saying someone at his Mar-a-Lago club in Florida may have tried to conceal or remove classified documents before an FBI search last month, constituting potential obstruction of justice.
It was a damaging accusation, revealed in a late Tuesday court filing -- but the photo included in the filing spoke even louder.
"TOP SECRET/SCI" blazed out on cover sheets for at least five sets of papers laid out on the carpeting. Another cover sheet at the fore of the government photo said "SECRET/SCI" and "Contains sensitive compartmented information" -- a marking for documents that include references to source and methods, which intelligence agencies go to great lengths to protect.
For supporters and critics of the former president, it was the first time the sensitive national security papers at the center of the latest controversy were visible, even if their contents remained classified.
The photograph did not clearly display any details of the subject matter of the documents, which were conspicuously bordered in red when labeled secret and in yellow for top secret.
One of the documents is dated May 9, 2018. The contents are obscured, but that's a day after Trump announced the U.S. withdrawal from the Iran nuclear deal.
Altogether, they are the types of documents normally found in highly secure facilities. And they are the sort of paperwork the government argued Trump had no right or authority to take with him when his presidency ended.
During the investigation, normally stalwart backers have stayed quiet or tried to deflect criticism after initially protesting the FBI search as an overreach by the Justice Department.
Trump criticized the fact that authorities displayed the documents on the floor for pictures and suggested it was done to incriminate him.
"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," he wrote on his Truth Social platform. "Thought they wanted them kept Secret? Lucky I Declassified!"
One noteworthy element of the photograph, however, as the Justice Department pointed out in its filing, is that none of the folders bears a label or stamp indicating that Trump declassified them, as he has periodically claimed when asked about his retention of government materials requested by the National Archives. Documents that have been declassified typically contain explicit markings indicating the change.
Trump has denied wrongdoing but offered no credible explanation for why he had the documents or didn't return them earlier, as his lawyers claimed. Some of his supporters have suggested without offering any proof that the FBI somehow planted evidence at Trump's club.
In the Justice Department photo, the documents were strewn out alongside letters or memos with White House letterhead that appeared redacted by government investigators, as well as a bankers box containing a framed copy of the cover of Time magazine's March 4, 2019, issue, featuring Trump in the Oval Office and a slew of potential Democratic rivals looking in through the window -- including eventual President Joe Biden.
STANDARD PROCEDURE
The genesis of the photograph appears to be in keeping with standard protocols for how federal agents handle evidence they come across in a search.
The folders were arrayed by agents at Mar-a-Lago after being removed from what the filing indicated was Trump's office; they were not discovered scattered on the floor, according to two federal law enforcement officials.
The Justice Department would not comment on the specifics of the photograph. But it is standard practice for the FBI to take evidentiary pictures of materials recovered in a search to ensure that items are properly cataloged and accounted for.
Files or documents are not tossed around randomly, even though they might appear that way; they are usually splayed out so they can be separately identified by their markings. The ruler seen in the image is to give a sense of their size in relation to other objects.
FOCUS ON OBSTRUCTION
The FBI investigation is zeroing in on the question of whether Trump's team criminally obstructed the probe.
The allegation does not necessarily mean that Trump or anyone else will ultimately face charges. But it could pose the most direct legal threat to Trump and those in his orbit, in part because the Justice Department has historically regarded obstruction as an aggravating factor that tilts in favor of bringing criminal charges involving the mishandling of classified information.
"It goes to the heart of trying to suborn the very integrity of our criminal justice system," said David Laufman, who once oversaw the Justice Department counterintelligence section responsible for the current investigation.
The latest Justice Department motion in the case is focused less on the removal last year of classified information from the White House to Mar-a-Lago and more on the events of this past spring and summer. That's when law enforcement officials tried to get all documents back and were assured that everything had been accounted for after a "diligent search."
The Justice Department issued a subpoena for the records in May, and officials visited Mar-a-Lago on June 3 to collect them. When they got there, Tuesday's document says, they were handed by a Trump lawyer a "single Redweld [expanding] envelope, double-wrapped in tape" containing documents.
A custodian for the records presented a sworn certification saying that "any and all responsive documents" to the subpoena had been located. A Trump lawyer said all records from the White House had been held in one location -- a storage room -- and there were none in any private space or other spot at the house.
But the FBI came to doubt the truth of those statements and obtained a search warrant to return Aug. 8.
Officials had "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," the Justice Department filing says.
In their August search, agents found classified documents not only in the storage room but also in the former president's office -- including three classified documents found not in boxes but in office desks, according to the Justice Department. In some instances, the agents and attorneys conducting the review of seized documents required additional clearances since the material was so highly classified.
"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 document states.
The Justice Department has stated in court filings that, besides investigating crimes related to the mishandling of national defense information and other documents, it is also looking into whether anyone committed obstruction. It is not clear from the filing how much of that inquiry might center on Trump, who has repeatedly insisted that his team was cooperative with the FBI, versus any of his lawyers or representatives involved in making the representations to the department.
Obstruction matters because it's one of the factors investigators look for in weighing whether to bring charges -- and it's not the first time that an obstruction investigation has surfaced in connection with Trump. Special Counsel Robert Mueller investigated whether Trump had obstructed an inquiry into whether his 2016 presidential campaign had colluded with Russia, and though Mueller did not recommend charges against the then-sitting president, he also declined to exonerate him.
In the current case, federal investigators are likely evaluating why Trump representatives provided statements about the status of classified information at Mar-a-Lago that proved easily contradicted by the evidence, as well as which individuals were involved in removing boxes. and why.
Sarah Krissoff, a New York lawyer and former federal prosecutor, said the detailed information in this week's filing tells its own tale.
"Reading between the lines of what they were saying here, it suggests that they had very direct information from a source regarding the location of classified documents within Mar-a-Lago and essentially the concealment of, or lack of cooperation with, the prior efforts to recover those documents," she said.
The purpose of the Tuesday night filing was to oppose a request from the Trump legal team for a special master to review the documents seized during last month's search and to return to him certain seized property. U.S. District Judge Aileen Cannon is to hear arguments on that matter today.
LAWYERS IN SPOTLIGHT
Meanwhile, two lawyers for Trump are likely to become witnesses or targets in the investigation, legal specialists said.
The lawyers, M. Evan Corcoran and Christina Bobb, handled Trump's interactions with the government over the May subpoena. In its court filing Tuesday, the Justice Department strongly suggested that people in Trump's circle concealed documents in defiance of that subpoena, putting a spotlight on the lawyers' actions.
"They are potentially witnesses -- if not defendants," Barbara McQuade, a University of Michigan law professor and a U.S. attorney for the Eastern District of Michigan from 2010 to 2017, said of the two lawyers.
The filing did not identify which lawyers took the key actions. But The New York Times has reported that after receiving the subpoena, Corcoran searched through boxes kept in a storage area in Mar-a-Lago's basement for files with classified markings.
The Times has also reported that on June 3, after Trump's lawyers met with Jay Bratt, the head of the Justice Department's counterespionage section, and FBI agents, Bobb signed a statement attesting that all the sensitive material had been returned.
During that visit, Trump's representatives turned over 38 documents with classified markings and indicated that all the records had been kept in a storage room, that no other records were stored elsewhere and that all available boxes had been searched, prosecutors said.
According to the statement Bobb signed on behalf of Trump, "based upon the information that has been provided to me," all documents responsive to the subpoena were being returned after a "diligent" search. The Times has reported that she was the designated "custodian of records" for Trump.
Yet on Aug. 8, the FBI found more than twice as many documents marked classified than had been turned over in June, including some in Trump's office. That fact, the Justice Department wrote, "calls into serious question the representations made in the June 3 certification" -- which also included a claim that no copies had been made of any files -- "and casts doubt on the extent of cooperation in this matter."
Corcoran and Bobb did not respond to requests for comment.
Information for this article was contributed by Bill Faries of Bloomberg News (WPNS); by Glenn Thrush, Adam Goldman, Charlie Savage and Maggie Haberman of The New York Times; and by Eric Tucker, Jill Colvin and Michael Balsamo of The Associated Press.