As Dearie oversees document review, FBI appears to be building obstruction case, experts say



The FBI’s unprecedented criminal investigation into a former president has had two tracks in the 11 weeks since officers searched Donald Trump’s Florida residence and club – one mostly public , the other mainly behind closed doors.

In the most public part, the dispute over the appointment of a special master to sift through thousands of seized documents reverberated through all levels of the federal court system, with the special master — essentially an outside expert — expressing his skepticism of Trump’s claims that some of the material must be shielded from the FBI.

By contrast, the bureau’s investigative activity is harder to track, though some details are slowly coming to light. Officers interviewed several witnesses about the handling of government documents at Mar-a-Lago. The Washington Post reported last week that a Trump employee told federal agents he had moved boxes of documents to Mar-a-Lago at the former president’s specific direction, and that the FBI had video surveillance to back it up.

Experts say this evidence — combined with repeated indications in court records that prosecutors suspect Trump’s team deliberately failed to comply with a subpoena requesting all documents marked classified — suggest that the government could constitute criminal cases alleging obstruction and destruction of government property.

Even as the investigation moves forward, Trump is facing legal scrutiny on several other fronts. Among them: The House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol has subpoenaed testimony and documents from the former president, and the Justice Department is conducting a sprawling criminal investigation into the how Trump and his advisers have handled the post-election period.

The status of the main investigations involving Donald Trump

No significant public developments are expected in Mar-a-Lago’s investigation ahead of the Nov. 8 midterm elections — in part because of a long-standing Justice Department practice of avoiding making anything that could be seen as helping one party or another in the election. , and in part because the special master is still sorting through the less sensitive material seized from the Florida property. At the same time, Trump and his supporters have openly talked about him launching a presidential campaign in 2024, a move that would instantly reshape the political landscape.

“You know how just before a storm hits, there’s a quiet time?” said Paul Rosenzweig, a national security consultant. “We are kind of over there. It’s the calm before the storm.

At Trump’s request, Brooklyn federal judge Raymond J. Dearie was appointed to sift through the 13,000 seized documents and set aside those that should be shielded from investigators due to attorney-client or executive privileges. An appeals court has ruled that the Captain Special’s review should not include the 103 classified documents seized in that search.

This review is ongoing. Trump’s attorneys and prosecutors have agreed on a vendor to upload the more than 20,000 pages of seized unclassified documents so both sides can review them digitally. Trump’s team reviews the documents first, marking those they deem potentially privileged. The government then reviews these documents, with Dearie stepping in to settle any disputes.

During a progress hearing on Tuesday, Dearie appeared frustrated on both sides. He faulted Trump’s lawyers for claiming privileges in an early batch of documents without providing any evidence to back up their claim.

“‘Where’s the beef?’ I need beef,” the 78-year-old judge said.

Even though Dearie goes ahead with the review, the Justice Department is still fighting against appointing a special master in court. Florida federal judge Aileen M. Cannon originally ordered the appointment of a special master in August, barring criminal investigators from using any of the documents seized, including those marked as classified, until the exam is complete.

The Justice Department’s successful appeal of part of Cannon’s decision allowed prosecutors and FBI agents to immediately regain access to classified documents. Trump’s team filed a motion with the Supreme Court to overturn part of the 11th Circuit Court of Appeals decision, but the justices denied it.

Anyone can submit court documents to a docket. The Mar-a-Lago probe proves it.

Every legal filing in the case has been closely watched by reporters and the public, with Trump supporters applauding Cannon’s initial decision to appoint a special counsel, and the former president’s critics heralding the skepticism Dearie expressed at regarding Trump’s legal claims.

Now the Justice Department is appealing the entirety of the special master’s appointment to the 11th Circuit, hoping to relieve Dearie of his duties and regain access to the 13,000 documents seized.

“If the appeals court agrees with the government, then the whole referral to the special master will be over,” said Mary McCord, who served as the acting assistant attorney general for national security during President Barack’s administration. Barack Obama. “He has the potential to be a very minimal part of the investigation.”

“National Security Matters”

The center of any criminal case would most likely be the classified documents found by the FBI, some of which contained highly sensitive government secrets, including about a foreign country’s nuclear capabilities. On Friday, The Post reported that some of the documents seized contained highly classified information about Iranian missile systems and intelligence work targeting China.

But Jim Walden, a former federal prosecutor, said the 13,000 unclassified documents could also be key for prosecutors because they could shed light on why and how classified material was brought to Mar-a-Lago and who saw them once they left the White Loger.

Exclusive: Mar-a-Lago documents contained secrets about Iranian missiles and Chinese intelligence

The Justice Department “wouldn’t be pushing as hard” to appeal the appointment of a special master “if there weren’t serious national security questions that remain unanswered,” Walden said. “Those [13,000] the documents are very critical.

Attorney General Merrick Garland and the Justice Department have repeatedly declined to comment on their efforts, citing the ongoing criminal investigation.

Trump spokesman Taylor Budowich denounced the investigation and accused the Biden administration of arming law enforcement and fabricating “a documentary hoax in a desperate attempt to retain political power.”

If her nomination is upheld, Dearie has until early December to complete the review of documents and resolve any disputes over privileges Trump may claim. But the appeals court will hear arguments from both sides next month, with a decision on whether to stop the special main review expected shortly thereafter.

In the meantime, the FBI will likely continue to seek witnesses who can provide information about the handling of documents at Mar-a-Lago, including whether Trump or his representatives deliberately withheld documents from the Justice Department or falsely claimed handed over all classified documents. while the restricted material remained on the premises.

Among the questions they will try to answer, legal experts said, are what the former president knew of the documents and whether his possession of the documents at Mar-a-Lago may have endangered national security.

House committee issues subpoena to Trump demanding documents and interview

There’s also the question — raised by National Archives and Records Administration officials — whether all government records in Trump’s possession after he left office have been turned over to government custody, as required by the law. presidential documents law, and whether certain documents may have been hidden elsewhere than at Mar-a-Lago.

“It’s all the work going on behind the scenes that may never be revealed,” said Javed Ali, a senior National Security Council official in the Trump administration who now teaches at the University of Michigan. “Who could have had access to these documents? And what information can they have gleaned? And what could have resulted from the fact that he had these documents? »

McCord said building a case requires more than just interviewing witnesses and reviewing documents. She suspects that at this stage of the investigation, the government is reviewing legal precedent and strategizing how prosecutors would react to potential defense arguments in court.

For example, the Department of Justice has already explained in a recent court filing that even if Trump formally claims and provides evidence that he declassified the documents he kept, this would not compromise a possible obstruction case. . That’s because the subpoena instructed his team to return all documents “marked as classified” – not those that were classified.

“There are other things besides fact-gathering that take place at this point. There are legal searches,” McCord said. “All of this work can just go on, and it’s a huge amount of work. It’s not just that you go out and gather evidence and file a complaint the next day.


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