Former President Trump’s lawyers appeared in a Florida federal court Thursday to argue for the appointment of a special master to review the documents seized by the FBI from his Mar-a-Lago resort and residence.
U.S. District Judge Aileen Cannon indicated she may grant that request , but legal experts say the decision will be less relevant than the evidence presented by the government in its argument against the appointment, because it shows the U.S. Justice Department may already have enough evidence to indict the former president.
“Former president Donald Trump is facing the very serious prospect of being indicted for obstruction of justice and causing false statements to be made to the government,” wrote Andrew McCarthy, a Republican former assistant U.S. attorney, i n the National Review Wednesday .
McCarthy argues that the DOJ’s late Tuesday filing shows that the government obtained a subpoena that required Trump and his lawyers to hand over all documents in his possession bearing classified markings, and that at no point did Trump or his representatives claim to investigators that he had declassified them.
While Trump has said that he cooperated with FBI requests to hand over documents that belong to the government, McCarthy wrote that the FBI had shown that the Trump team only met with the FBI after it was forced to by a grand jury subpoena.
It was a “a legally mandated response to a subpoena (i.e, a court order, enforceable by criminal law), directly occasioned by the former president’s obdurate lack of cooperation,” he wrote.
In June, when the FBI came to Mar-a-Lago to enforce the subpoena, Trump’s representatives provided a sworn statement on behalf of Trump saying that a diligent search of the property was conducted and that all relevant documents were returned to the government.
But the government had information, likely from as-yet-unnamed witnesses, that all the documents were not turned over, and the DOJ said the subsequent raid on Mar-a-Lago proved this suspicion correct.
“I believe former president Trump is likely to be charged with obstruction of justice and causing false statements to be made to investigators,” McCarthy wrote. “It does not appear that those charges would be difficult to prove…they involve conduct that would be very easy for the public to understand, and for which the average person would be indicted.”
Former Fox News legal analyst and New Jersey Superior Court Judge Andrew Napolitano agreed with McCarthy in a Thursday op-ed for the USA Today Network.
“It gives me no joy to write this piece,” Napolitano wrote.
“Even a cursory review of the redacted version of the affidavit submitted in support of the government’s application for a search warrant at the home of former President Donald Trump reveals that he will soon be indicted by a federal grand jury for three crimes: Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it.”
He added that whether or not the documents were classified or not is irrelevant, as “it is simply and always criminal to have NDI in a non-federal facility, to have those without security clearances move it from one place to another, and to keep it from the feds when they are seeking it.”
Scott Anderson, Brookings Institution fellow and former State Department attorney wrote in the Lawfare that the filing also shows that the government has evidence that Trump intended to illegally mishandle these documents and to mislead government investigators.
“The first conclusion from this extraordinary recitation is that the former president is in serious legal jeopardy,” he wrote.
“The department could have made all of the legal arguments that follow its factual account with a much more minimal factual presentation. It chose to tell this story. It chose to tell it in an open filing. It chose to make a series of serious imputations about the manner in which the former president and his team had behaved.”
Andrew Weissmann, a 20-year veteran of the Justice Department and former investigator for special counsel Robert Mueller, put in more succinctly on Twitter: