About 30 minutes before last night’s deadline, the Department of Justice filed a nearly 40-page report further laying out their case against Donald Trump and justifying the raid at Mar-a-Lago.
In the long document, the DOJ presents its most damning evidence that Donald Trump committed a crime, citing a clearer sequence of events, including photographs in the document, and refuting Trump’s argument that a “special master” is necessary for document review.
Most of the media’s reaction to the filing is, of course, on the DOJ’s evidence. They are largely devoted to the idea that Trump is guilty of all things, and as such, they need to focus on the evidence. As my colleague Bonchie discussed earlier, legal experts like Jonathan Turley have laid out the case that the DOJ’s argument is weak. Others are particularly interested in the arguments that the former president can’t claim privilege to avoid criminal prosecution, that he didn’t claim privilege in his original conversations with the National Archives, and that he does not own the documents because they are property of the United States government.
And, to be honest, there may be some validity in some of those arguments, particularly the last two. If Trump did not initially claim privilege as alleged in the DOJ filing, does he as a private citizen have the ability to do so retroactively? There is debate over how legal the “standing order” of declassification was, and if it wasn’t classified in the traditional sense there is doubt that it could have been legally classified retroactively.
Likewise, even declassified documents don’t belong to a private citizen (or shouldn’t, anyway). They are still property of the U.S. government, and the sheer volume of documents with various high-level classifications the DOJ says they have is problematic if you take the supposed improper storage into consideration. It can very well be an issue if someone breaks into Mar-a-Lago and get ahold of any of it.
Piled onto that is the obstruction claim. If Trump moved things around when the FBI searched the storage room so that they would not see some of the things they were looking for, that is a much more serious matter.
All of this is a problem for Trump, and his legal team, and Trump has until midnight for his legal team to file a response. It’s likely that the judge will rule on the matter of the appointment of a special master by the end of the week.
But Trump’s claim that there needs to be transparency is not off-base. In this one massive filing, we have more information now than we ever had before, and some of it undermines the previous reporting on the matter between the FBI and Trump.
Earlier this month, when the raid was fresh on our minds and when the DOJ was apparently just flooding the zone with leaks to the media, I got frustrated with how much confusing information was out there. Now, not only is it confusing, but some of it is contradicted by this filing. Originally, the leaks said this was about stuff that needed to be turned over to the National Archives. Then, it was about nuclear secrets. Then it was obstruction of justice.
The media reporting on the raid and the FBI’s justification changed numerous times. Some of it is upheld in last night’s filing. Some of it is contradicted or scaled back a bit. But still, some of it is just wrong.
That is where the need for transparency that Trump called for needs to come in. Had the DOJ been more forthcoming (yes, I know it was about preserving the integrity of the investigation but you’re raiding the home of a former president and quite possibly a future candidate for president) then those reports would not have been needed, and anonymous leakers from the DOJ would not have needed to drop salacious information to reporters. Had Merrick Garland not waited five days and had a statement ready to go, explaining what happened and what they were looking for, this would have become a much less confusing news story.
But because the DOJ withheld so much, and because they weren’t doing anything to stop the internal leaks to the media, what we got was a winding road of this and that and a lot of angry people shouting talking points that are no longer valid.
This is the type of transparency that is desperately needed, and it goes beyond Trump.