Trump Appears to Admit He Improperly Retained Official Records

In his court declaration regarding the FBI’s seizure of materials from his Florida resort, Donald Trump appeared to admit that he had improperly maintained official government records. The former president contended that some of the documents seized by the FBI could be subject to presidential privilege.
On Monday, the former president’s legal team filed a motion asking the court to appoint a “special master” to sort through and decide which privileged documents can be used as evidence by the Department of Justice.

But Trump’s claim that some of the files are protected by executive privilege suggests they are government materials he is not permitted to keep and should have sent to the National Archives when his term ended.

In that aspect, the motion appeared to admit that Trump violated 18 USC 2071, which prohibits the unauthorized removal of government records, and was cited in the warrant the FBI used to search the former president’s Mar-a-Lago property.

Asha Rangappa, a former FBI agent and associate dean at Yale Law School, said, “If he’s acknowledging that he’s in possession of materials that would have any colorable claim of executive privilege, those are by definition presidential records and belong at the National Archives.”

According to Rangappa, it is unclear whether or not executive privilege is relevant to the crime for which he is being investigated. Nevertheless, in the filing, he “essentially concedes that he is in possession of them,” which the government is attempting to prove.

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Trump can still argue that a special master should be appointed to examine the seized documents, ask for a more comprehensive receipt for what the FBI obtained from Mar-a-Lago, and prevent the justice department from further scrutinizing the materials until the process is complete.

Former US lawyers argue that the Justice Department should be prevented from using any protected communications that were acquired by the FBI but were not used to further an ongoing criminal investigation.

Even though the Justice Department may pursue the privilege claim, a person closely involved in Trump’s legal defense stressed — echoing parts of the filing — that the Presidential Records Act had no enforcement mechanism.
Additional paragraphs in the brief detail the justice department’s months-long battle to obtain some data, describing a pattern of interactions that might be interpreted as obstruction of justice, which could further complicate matters for the former president in light of Trump’s motion.

It was unclear from the search warrant for Mar-a-Lago whether the obstruction referenced in the warrant pertained to the inquiry into the retrieval of government records from Mar-a-Lago or to some other investigation altogether.
The Justice Department’s decision to subpoena security tapes and then later CCTV footage from the area right before the FBI search on August 8 implies they did not believe Trump to be completely candid and forthcoming throughout their meetings with him.

The suspicions were well-founded; the FBI retrieved further boxes of classified information from Mar-a-Lago after Trump’s custodian of records said they had returned items responsive to the subpoena in June.

The brief itself looks to have procedural issues, in addition to the late filing of the motion two weeks after the FBI search.

The warrant was approved in West Palm Beach, Florida, but the motion was not submitted there. Instead, it was filed in Ft. Pierce, where the judge may rule in a way that reveals to Trump whether he or his attorneys are suspects for obstruction because the judge does not have access to the underlying document.