Two of Trump’s post-FBI search defenses collapse


HR King
May 29, 2001
The way it worked with the Mar-a-Lago search is the way it worked with everything else in the preceding seven years.
Donald Trump’s immediate reaction was that he had been unfairly targeted by politically biased investigators, and the subsequent three weeks have been centered on proving that assertion. Make claim; cobble together the evidence later. Sort of a bizarro version of what the investigators are doing.

As the weeks passed, two particular lines of argument emerged. One suggested that the timing was suspicious: Why now, so close to the midterm elections? The other held that the search itself was unnecessary, given that Trump was complying with the federal government’s inquiry.

After the Justice Department’s legal filing submitted Tuesday night, both of those defenses seem to have collapsed entirely.
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We should start with a critical caveat: Just because the Justice Department said something happened does not necessarily mean that it happened. Skepticism is warranted in the Justice Department’s presentation of the events that preceded the search for the simple reason that it is trying to present a particular case against Trump and therefore disinclined to offer exculpatory arguments. But, then, there’s a legal weight to the court filing that doesn’t apply to, say, a former president making assertions on a social media site.


With that in mind, let’s consider what the Justice Department claims.

The search conducted by the FBI at Mar-a-Lago took place on Aug. 8, slightly more than 90 days before the midterm elections. The Justice Department has an informal rule that it avoids “overt law enforcement and prosecutorial activities” (as its inspector general has put it in the past) within a window of 60 to 90 days before a federal election. In other words, the FBI may have timed the raid in part to avoid any effect on the midterms.
One question raised, then, is: How far from the election would have been considered acceptable by Trump’s allies? The Justice Department’s rule of thumb is two or three months. Is there some better standard to be applied? Or might we assume that the issue is less concern about how the search affects the midterms than the realization that citing the midterms might be useful in undermining the search?

What the court filing articulates in detail is why it took so long for the government to act at all. In short: because Trump and his team were dragging out the process.

The Washington Post’s Rosalind Helderman has a timeline of the effort to obtain the documents, but a few key dates serve to make the point.
  • May 2021: The National Archives notices that some documents it expected to have (like the letters from North Korean leader Kim Jong Un) are not included in the Trump administration records. It sends a letter to Trump’s attorneys requesting pertinent material.
  • December: After months of back-and-forth, Trump’s team cops to having documents that it agrees to turn over.
  • January 2022: Fifteen boxes of material are transferred from Trump to the government. The Post reports that Trump was actively involved in selecting the material — and secretive about doing so.
Note that here, 10 months before the election, Trump could have turned over all of the pertinent material. At this point, he was expected to have done so. By late spring, though, the government became confident that he hadn’t.
  • April and May: From interviews, the FBI determines that classified material is likely still to be at Mar-a-Lago.
  • May 11: Trump receives a subpoena for any “documents bearing classification markings” — meaning even documents that might conceivably have been declassified. The deadline for compliance is May 24.
  • June 3: Justice Department officials go to Mar-a-Lago and are given a packet of material that a Trump attorney attests to being the entirety of what was found in an extensive search for compliant documents.
  • Later in June: The FBI interviews Mar-a-Lago staffers.
  • June 22: After asking that Trump’s team secure a room where documents were being stored, the government issues a subpoena for surveillance footage from the area around the room.
  • Friday, Aug. 5: A judge grants a search warrant that is executed on the following Monday.
According to this timeline, there was a period of about a month between the government’s request for surveillance video and its request for a search warrant. Could this period have been narrowed? Potentially. The Wall Street Journal reported that Attorney General Merrick Garland spent “weeks” considering whether to seek the search warrant. We don’t know if additional evidence emerged in that period to help convince him.

Regardless, consider it in the context of the overarching argument. Is an early July search significantly less intrusive than an early August one?
Of course, the timeline above also speaks to the idea that the Trump team was complying with investigators. In its filing, the Justice Department contradicts the Trump team’s claim that investigators had been allowed to see inside storage boxes during the June visit. The filing further asserts that “efforts were likely taken to obstruct the government’s investigation.” This comports with the timeline — including that request for surveillance video. If you’re concerned about material being moved out of sight, being able to see who has entered that room is useful.
We return to the initial caveat: The government’s representations may omit salient facts that would recast the situation. But this doesn’t mean that we should grant the attestations of Trump and his allies equal credibility. Were Trump and his lawyers to dispute these details under oath, we might, for example, justifiably assume that Trump’s team was acting in what it believed to be good faith.
How the timeline might be undercut, however, isn’t clear. And with that timeline in place, the argument that the government waited until a few months ahead of the election to go after Trump is hard to defend. After all, Trump could simply have returned everything in January or when subpoenaed in June.
He didn’t.