- The DOJ said it has evidence of "likely" efforts to obstruct its investigation into Trump.
- It's the clearest sign to date that prosecutors are eyeing charging Trump with a crime.
- Evidence of the concealment of sensitive documents and other obstructive measures are "aggravating factors" that "usually lead to criminal prosecution," one DOJ veteran said.
The Justice Department filed court documents Tuesday that revealed the extent to which former President Donald Trump or his associates may have "concealed and removed" sensitive government documents that US officials tried for months to retrieve.
The filing also marks the clearest sign to date, according to legal experts, that the Justice Department is eyeing charging Trump with a crime.
On August 8, the FBI executed a search warrant at Trump's Mar-a-Lago estate in Florida and recovered more than two dozen boxes of government records, some of which were highly classified and marked top secret. The warrant indicated that the department is investigating if Trump broke three federal laws, including the Espionage Act, that govern the handling of national security information.
In the days after the search, former federal prosecutors said it was possible Trump wouldn't be charged with any crime and that the government's main priority may have been retrieving the documents that had been improperly stored at his Florida residence because of their sensitivity.
But in Tuesday's filing, the Justice Department said it had obtained evidence of "likely" efforts to obstruct its investigation into Trump's handling of government records.
That detail, legal experts said, could change prosecutors' calculus as they weigh taking the unprecedented step of indicting a former US president.
In addition to the Espionage Act, investigators are examining if Trump broke 18 USC Section 2071, which bars the concealment, removal, or mutilation of government records, and 18 USC Section 1519, which prohibits the destruction, alteration, or falsification of records "with the intent to obstruct, or influence the investigation" of any matter within the jurisdiction of federal agencies or departments.
Barbara McQuade, the former US attorney for the Eastern District of Michigan, told Insider that assessing Trump's intent will be a key priority for the Justice Department, and that the warrant's inclusion of the obstruction statute — Section 1519 — "suggests that Trump may have tried to conceal from the government what he had."
"If so, that factor would tend to favor prosecution," she added.
David Laufman, the former head of the department's counterintelligence division, also noted that the DOJ's suspicion that Trump's associates concealed classified documents, as well as other evidence of obstruction, are "aggravating factors" in a document retention case that "usually lead to criminal prosecution."
The DOJ's filing on Tuesday was the most detailed account to date of investigators' suspicions that Trump and his associates misled them about how many sensitive documents remained at Mar-a-Lago, even after one of Trump's lawyers signed a letter in June stating that, to the best of their knowledge, all classified records had been turned over pursuant to a grand jury subpoena.
Trump's lawyer also told investigators that the documents were only located in a storage room at Mar-a-Lago, but when the FBI searched the premises on August 8, it discovered classified documents in Trump's office as well, according to the filing.
"That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the 'diligent search' that the former President's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter," the filing said.
It also said the feds seized some of Trump's personal items that were mixed in with classified materials because they were evidence of criminal activity. Renato Mariotti, a longtime federal prosecutor, said that detail, specifically, points to "Trump's willful possession" of classified material.
"Based on its response, I think DOJ and FBI were shocked by the volume and sensitivity of material seized at Mar-a-Lago," wrote Brandon Van Grack, the former chief of the DOJ's Foreign Agents Registration Act (FARA) unit who later worked with the special counsel Robert Mueller.
Indeed, the department's filing said that in some cases, the documents that were recovered were so sensitive that FBI agents needed special clearance to view them.
Tuesday's filing was the DOJ's response to a lawsuit Trump filed last week seeking a court-appointed "special master" to sift out materials seized in the Mar-a-Lago search that might be privileged.
The former president isn't entitled to a special master, the department said, because the records in question "do not belong to him."
Trump has repeatedly claimed that he had broadly declassified all the records that were recovered from Mar-a-Lago, and he's asserted executive privilege over some of the materials.
In addition to the fact that the laws he's being investigated for breaking have nothing to do with classification level, the Justice Department also noted in its filing that Trump did not assert privilege over any of the records or say they had been declassified in communications leading up to the Mar-a-Lago search.
"Not only does Plaintiff lack standing to raise these claims at this juncture, but even if his claims were properly raised, Plaintiff would not be entitled to the relief he seeks," the filing said.
The former president, for his part, spent much of Wednesday recycling claims of political bias and prosecutorial misconduct on his Truth Social account.
"Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see," he wrote in one post. "Thought they wanted them kept Secret? Lucky I Declassified!"