Just before the midnight August 30 deadline, the DOJ filed its Response To Motion For Judicial Oversight.
Despite the media frothing à la Russia Collusion, the filing did not reveal a lot new. We already knew from court filings and FBI/DOJ leaks to the media that Trump had documents marked with varying levels of classification at Mar-a-Lago. The legal issue is whether it was a crime for Trump to have those documents.
I’ve been careful not to opine on the criminal law regarding the possession of such documents because, as I’ve explained, it’s not an area I’m familiar with and it’s not the easiest field to come up to speed on. A number of knowledgeable commentators, including Mike Davis and David Rivkin, argue that Trump had the absolute right to remove and retain those records. Others and the entirety of the mainstream corporate media and #TheResistance Twitter Lawyers say otherwise. I don’t know who’s right, but the DOJ filing didn’t shed any new factual light on the subject.
The DOJ filing hints that what they will argue in a potential criminal process is obstruction of justice. But that’s a typical ploy by the feds — if they can’t get you for a crime, they get you for lying about the non-crime. The argument is that team Trump lied when they said all subpoenaed documents had been returned. If that’s all they have, are they really going to indict the former president and future candidate over lying about a non-crime?
But the most inflammatory part of the filing was the wholly unnecessary inclusion of a photograph of envelopes marked with various classifications that was included as an exhibit.
What was the purpose of including the photo? That such documents were found at Mar-a-Lago was already known. We also don’t know what they are about, are they the Crossfire Hurricane documents Trump expressly declassified? We don’t know.
But more important, are the feds saying the documents were spread on the floor when they were found as depicted in the photo? That’s not claimed in the court filing, it’s only claimed that the documents were found.
Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).
If this is a staged photo it may have given the feds a minor news cycle win, but it didn’t help FBI/DOJ credibility. It makes them seem like they are playing to the media, but in fact they played into Trump’s argument that the FBI/DOJ can’t be trusted:
There seems to be confusion as to the “picture” where documents were sloppily thrown on the floor and then released photographically for the world to see, as if that’s what the FBI found when they broke into my home. Wrong! They took them out of cartons and spread them around on the carpet, making it look like a big “find” for them. They dropped them, not me – Very deceiving…And remember, we could have NO representative, including lawyers, present during the Raid. They were told to wait outside.
It has fairly level-headed people like Byron York questioning why a likely staged photo was used:
Tonight, Trump filed his Reply In Support of Motion For Judicial Oversight and addressed the photo:
Even yesterday, the Government’s Response gratuitously included a photograph of allegedly classified materials, pulled from a container and spread across the floor for dramatic effect.
The hearing is tomorrow, September 1.
What the FBI/DOJ filings do not shed much light on was what the emergency was. What event was about to happen to expose these documents to hostile powers? Their mere presence at Mar-a-Lago had been known for weeks, what was it that on August 5th, 2022, drove the feds to get a search warrant? We still don’t know, and the staged photo doesn’t lend credibility to whatever explanation the FBI/DOJ eventually announces.
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