Trump’s direct handling of records could strengthen DOJ case

The revelation that Donald Trump himself reportedly packed the initial 15 boxes returned to the National Archives that ignited a criminal Justice Department probe could strengthen the government’s case should it choose to prosecute the former president, legal experts said Tuesday.

The detail was included in Monday reporting from The Washington Post on how one of Trump’s attorneys, Alex Cannon, refused to comply with a request from Trump that he certify that all the government documents stored at Mar-a-Lago had been returned. 

Cannon also reportedly advised other staff to not rummage through the boxes as they might contain classified documents. 

Beyond indicating Trump’s staff did not believe all the government documents had been returned, Trump’s direct handling of the records would indicate he may have had greater awareness of what was stored in his home and was actively involved in determining what to retain despite government orders.

The concern among staff over the documents’ classification status also runs counter to Trump’s claims that he declassified all the records stored in his home — an argument his attorneys have failed to fully assert in court as Trump fights to keep the Justice Department from gaining access to the records. 

“The fact that he packed them is very significant because I imagine the Justice Department is trying to resolve how much evidence they have that Trump personally knew and personally was involved in hiding the documents,” said Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School of Law.

The warrant used to search Trump’s property indicated the Justice Department believed the mishandling of the records violated statutes barring willful concealment of government records and the Espionage Act, which bars knowingly removing national defense information. The government recovered more than 100 classified records during the August search.

“The greatest legal significance is it goes to key elements of the criminal offenses which include proving that Trump had knowledge and intent to retain these documents and not fully return them to the Archives. So by personally going through the documents, that’s direct evidence that he had the requisite knowledge and intent,” Goodman told The Hill. 

The Post had previously reported that Trump had directly overseen the packing, but Monday’s story — citing people familiar with the matter — was the first to indicate the former president actually packed the boxes.

Barbara McQuade, a former U.S. attorney, said, if true, Trump packing the boxes would be a “critically important fact” for the case.

“If Donald Trump himself packed the boxes, it will be very difficult for him to use a defense of lack of knowledge. ‘I had no idea what was in them. I don’t pack my own boxes; I have aides who do that sort of thing. I never knew what was in any of these and what we retained and what we didn’t.’ Especially because in January of 2021, that’s when they sent back 15 boxes, but held back, it turns out, more than 27 boxes. So if he’s the one who packed the boxes, then it seems a fair inference that he knew what was in and what was out and what they were falsely retaining,” she said.

A spokesman for Trump did not deny specific elements of the story, but pushed back on the reporting by saying “Biden’s weaponized DOJ has no greater ally than the fake news media, which seems to only serve as the partisan microphone of leakers and liars buried deep within the bowels of America’s government.”

For his part, Trump spent much of Tuesday on his social media platform insinuating Archives cannot be trusted to manage records. 

“There is no security at NARA,” he wrote, using an abbreviation for Archives. “I want my documents back.”

The new details about his involvement could also help flesh out an obstruction of justice case.

“The fact that he is personally packing the boxes makes it hard to believe that he could have missed seeing 11,000 other government documents and nearly 150 other classified documents including with their brightly colored front covers,” Goodman noted, all of which were items Archives and later the Justice Department asked to be returned.

“It really does suggest he knows exactly what he’s doing at the time in terms of keeping the rest of the classified materials from the Archives.”

That knowledge also comes into play as Trump asked Cannon to comply with a request from the Archives attorney Gary Stern in February to attest that all records had been returned.

But Cannon reportedly declined, as he was unsure the statement was true. 

“This means one of two things is the case, right?” said Renato Mariotti, a former federal prosecutor. “It either means that the attorney believed that Trump was asking him or her to lie to the government, which would be a crime. Or alternatively, that the attorney believed that Trump was lying to him or her … Either way that’s problematic,” 

Mariotti said Cannon could potentially be used as a witness against Trump.

“There will be an ability to pierce attorney-client privilege because asking an attorney to commit a crime with you is not privileged. That’s not subject to attorney-client privilege,” he said. 

“There’s more than enough evidence to charge the former president at this point,” he added.

Cannon’s account could also flesh out another aspect of the saga. In June, a different slate of attorneys produced a sworn statement that to the best of their knowledge, all classified records had been returned. The declaration was drafted by Trump attorney Evan Corcoran, but signed by another attorney, Christina Bobb, according to reporting from The New York Times.

“The false statements that were given by his lawyers in June that he had returned everything — it’s difficult to know whether or not they were told to make those statements by Trump,” Goodman said.

“Now, we have evidence that he previously told another lawyer earlier to make a false statement. So I think it significantly adds to the case. Everybody’s been talking about the false certification as strong evidence of obstruction. And that’s true. But the missing link is whether Trump told his attorney to make that false certification. Lo and behold, we have evidence that he now did try to tell another of his attorneys to make a false statement to the Archives.”

Cannon also apparently expressed reservations about opening any of the boxes, as he did not have a security clearance and was unsure whether they contained classified records. He also warned other staff against doing so, indicating it could get them in trouble.

It’s “a strong indication that Trump’s lawyers and other aides were well aware that the documents had not been declassified because the lawyer warned other Trump staff not to look into the boxes for fear they would be in legal jeopardy if they did read classified material … It was a lawyer who said it. Not just any old aide but someone giving legal advice trying to stress to the other staff not to look at the material,” Goodman said.

McQuade said it’s another detail that punctures Trump’s claims he declassified the documents in his home.

The argument is a red herring, she said, as none of the crimes weighed by the Justice Department hinge on retaining classified documents. But Cannon’s concern “suggests a knowledge the boxes contained classified information” and that Trump’s excuse was offered after the fact.

“The more recent the emergence of this theory, the less likely it is to be true,” she said.