"Biden's the criminal"
A federal judge in Florida on Tuesday unsealed two motions that were filed months ago by Donald Trump in his classified documents case and that she has not yet ruled on — part of a backlog that could delay the case beyond November’s presidential election.
The long-shot motions claim the indictment should be dismissed because the government relied on improper investigatory tactics — an allegation that prosecutors working for special counsel Jack Smith dismissed as having no merit.
“This case has been investigated and prosecuted in full compliance with all applicable constitutional provisions, statutes, rules, regulations, and policies,” said the response from prosecutors, which was also unsealed Tuesday. “There has been no prosecutorial misconduct, and his motion should be denied.”
Trump faces 40 federal charges over allegations that he kept top-secret government documents at Mar-a-Lago, his Florida residence and private club, and then thwarted government efforts to retrieve them.
U.S. District Judge Aileen M. Cannon, who is overseeing the case, had scheduled the trial to begin on May 20. But earlier this month, she indefinitely postponed the trial, saying more time was needed to deal with pretrial motions and complicated issues involving presenting highly classified evidence to a jury.
She scheduled a number of hearings on motions to dismiss the case, including one Wednesday that focuses on filings by one of Trump’s two co-defendants. Legal experts say Cannon has let decisions on these dismissal requests and other motions pile up, delaying the trial, and that her decision to schedule the hearings suggests that she is at least entertaining requests that seem to be without legal merit.
Cannon has not scheduled a hearing so far on Trump’s motions that were unsealed Tuesday, and she is not required to hold a hearing before she rules on them.
Buried in the supporting documentation for one of the motions was a document that contained a new public revelation: Once Trump realized that security cameras at Mar-a-Lago could capture his employees moving classified government information that officials were attempting to retrieve, he allegedly ensured that they would avoid the cameras when moving boxes.
The detail suggests prosecutors have more evidence of alleged obstruction by Trump than they included in their criminal indictment — a situation that is not unusual in criminal cases. It was included in an 87-page opinion issued last year by U.S. District Judge Beryl A. Howell, who oversaw the D.C.-based grand jury in this case.
Howell’s ruling granted part of a request from prosecutors to compel two of Trump’s attorneys to testify to the grand jury. Smith’s office argued that those attorneys could not invoke attorney-client privilege because the information Trump had told them was allegedly given to them in furtherance of a crime.
The newly unsealed filing does not provide many details about Trump’s directives to his employees. It says Trump’s lawyer informed him in a June 2022 call that the government had issued a subpoena seeking surveillance footage at Mar-a-Lago, setting in motion a scramble to ensure that any future movement of boxes would avoid video detection.
“The government has provided sufficient evidence to demonstrate that the June 24, 2022 phone call may have furthered the former president’s efforts to obstruct the government’s investigation,” Howell’s opinion reads.
Trump’s attorneys included the opinion in their motion to dismiss because in at least one instance in the opinion Howell seemed to side with Trump. She said a prosecutor may have acted improperly when trying to elicit protected testimony from Trump’s attorney by asking why Trump wouldn’t waive his privilege if he is being “so cooperative.”
Attorney-client privilege prevents attorneys from testifying about legal work they completed or advice they gave on behalf of a client. But the crime-fraud exception allows lawyers to testify about communications when the lawyer is being used in furtherance of a crime. Howell noted in her opinion that it would be improper to suggest to an attorney that investigators would draw negative inferences if an attorney invokes attorney-client privilege.
The indictment against Trump accuses the former president and two aides, Walt Nauta and Carlos De Oliveira, of trying to keep investigators from reviewing Mar-a-Lago security camera footage.
Prosecutors alleged that Trump’s attorney informed him in that June 2022 call that the government was seeking footage from Mar-a-Lago showing his employees moving boxes out of a storage room.
But the document unsealed Tuesday also alleges that once Trump learned of the subpoena for footage, he realized that the removal of boxes out of the storage room had already been caught on camera. That probably prompted him to instruct his staff to avoid the cameras when moving other boxes, the judge concluded, citing arguments from prosecutors.
Prosecutors told Howell that such a directive would explain why there is no footage showing them return certain boxes to the storage room before officials, acting on a separate search warrant, came to collect them.
The unsealed documents consisted of hundreds of pages of legal arguments and attachments.
Republicans and Trump’s allies — including Trump himself — immediately seized on small snippets of information contained in the hundreds of pages of unsealed documents, often taking sentences out of context to falsely claim that they show a Biden administration exacting revenge on a political rival.
For instance, one of Trump’s filings highlighted Justice Department policy that said the FBI was allowed to use “deadly force” if necessary when executing the search warrant at Mar-a-Lago to retrieve any documents with classified markings — standard language in such cases.
After this circulated on social media, Trump sent out a campaign fundraising email claiming that “BIDEN’S DOJ WAS AUTHORIZED TO SHOOT ME!”
In a statement Tuesday night, the law enforcement agency said it “followed standard protocol in this search as we do for all search warrants, which includes a standard policy statement limiting the use of deadly force. No one ordered additional steps to be taken and there was no departure from the norm in this matter.”
By Perry Stein
Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald.
