Timeline: Trump’s Stolen Documents Case (the Espionage Act and Obstruction)

Timeline

[My commentary in red]

Overview: The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.

We know from the Search Warrant that the following crimes are being investigated:

18 USC 2071 — Concealment, removal or mutilation

Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

From the Justice Department Criminal Resource Manual, § 2071 requires specific intent: the defendant must “willfully” violate the law.

18 USC 793 — Gathering, transmitting or losing defense information (part of the Espionage Act)

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.

[I highlighted the “national defense” part because this is what matters for the Espionage Act, not classification markings.]

18 U.S.C. § 1519— Destruction, alteration or falsification of records in Federal investigations

(Obstruction of Justice) provides that “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both

The agents retrieved, among other things, info regarding the President of France (??!!), various classified TS/SCI docs, and miscellaneous top secret documents.

Three other statutes Turmp potentially violated:

• • • • • Criminal Contempt (18 U.S.C. § 402)
        • False Statements to Federal Investigators (18 U.S.C. § 1001

In other words, the crimes being investigated go beyond mere theft.

Phase 1: NARA (National Archives and Record Administration) tries to get the documents back

May 6, 2021: An NARA official emailed Trump’s lawyers to say that Trump’s original correspondence with Kim Jong-un, the North Korean leader, was missing, as was a letter that President Barack Obama had left for Mr. Trump at the White House upon leaving office.

Summer, 2021: Trump showed off the Kim Jong-un letters, waving them at people in his office.

Fall 2021: After several months of conversations, the NARA grew frustrated with the slow pace of document turnover.

At some point, NARA threatened to alert Congress and the DOJ if Trump didn’t turn over the documents.

Phase 2: Trump returned 15 boxes of documents, including highly sensitive defense secrets, thus prompting an investigation into whether the materials had been mishandled and whether remedial steps needed to be taken to protect national security.

January 2022: Trump returned 15 boxes of documents. Trump reportedly packed these boxes himself. The boxes arrived at the National Archives without any kind of log or inventory and contained “a hodgepodge of documents” including some that didn’t even come from Trump’s time in the White House. A preliminary review revealed the following:

• • The boxes contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records.”  
  • Of “most significant concern” was that “highly classified records were unfoldered, intermixed with other records” and not properly identified.
  • 184 unique classified documents, including 67 marked confidential, 92 marked secret, and 25 marked “top secret.” These included Sensitive Compartmented Information, Special Access Program materials, and classified national security information.  Also included: Sensitive signals intelligence — intercepted electronic communications such as emails and phone calls of foreign leaders
  • FBI agents (when they reviewed the boxes) observed markings reflecting that the documents were subject to sensitive compartments and dissemination controls used to restrict access to material in the interest of national security.
  • There was also evidence that certain pages of presidential records had been torn up.

[Trump not only took documents that didn’t belong to him, he also tore some up.]

• • Some of the NDI (National Defense Information) documents contained Trump’s handwritten notes.
    • [The fact that Trump’s handwritten notes are on these documents is important–how important we won’t know until we know what he wrote.] 

“It could not be determined who was involved with packing the boxes at Mar-a-Lago or why some White House documents were not sent to the Archives,” though people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides.

[If true this takes away Trump’s ability to blame someone else]

The archives identified items still missing, including the map of Hurricane Dorian that Trump infamously altered with a sharpie pen.

February 9, 2022: The NARA asked the DOJ to investigate Trump’s handling of White House records. Initially, the issues were:

• • How these classified documents ended up being taken from the White House to Mar-a-Lago
  • Whether they were properly stored
  • Whether any other government docs remained at Mar-a-Lago, and
  • Who was involved.

February, 2022: Trump wanted to release a public statement saying he’d returned everything, but people around him persuaded him not to do that. (They kept him from releasing a lie.)

February – March, 2022: As part of its investigation, the FBI interviewed several Archives officials about the returned classified documents and their interactions with Trump’s team.

April 7, 2022: The public learned there was an investigation when NARA publicly acknowledges that the Justice Department was involved.

April 11, 2022: The White House counsel’s office responded to the DOJ’s earlier request and said it would allow the FBI access to the boxes. [Essentially the Biden White House waived any claims of executive privilege and said the FBI could have access. This means the documents are not protected by executive privilege under the Presidential Records Act and case law, including the ruling in the lawsuit Trump brought against NARA asserting executive privilege.]

April 12, 2022: The NARA informed Trump’s lawyers by email that the FBI would examine the sensitive documents that Trump had returned in February. In light of the “urgency,” they would allow the FBI access the week of April 18. Trump was allowed to have a representative also view the documents, but the representative needed security clearance. Both Pat Philbin and John Eisenberg had the necessary clearance, but excused themselves: Neither had been involved in packing the boxes and neither knew what was in them. [Smart move to extract themselves]

After Philbin and Eisenberg were no longer involved, Trump was represented by Corcoran (a former assistant US attorney who was representing Steve Bannon in a separate criminal case.) Reportedly other lawyers had declined the job, and Trump hired Corcoran during a conference call without vetting.

Soon afterward: Philbin was interviewed by FBI agents (they considered him a witness) about how 15 boxes of material — some of it marked as classified — made their way to his Mar-a-Lago resort in Palm Beach, Fla. (Mr. Cipollone was also interviewed at some point.)

Agents also interviewed others in Trump’s orbit, including valets and former White House staffers, who told agents that Trump was a pack rat who had been personally overseeing his collection of White House records since even before leaving Washington and had been reluctant to return anything.

PHASE 3: TRUMP DELAYED THE FBI FROM ACCESSING THE DOCUMENTS

Undated: In response to a request for delay from Trump’s lawyers, NARA said it would delay disclosure of the documents to the FBI until April 29.

Undated: The New York Times reported that in the spring, Trump “dug in his heels, insisting to his advisers that he has returned everything and is unwilling to discuss the matter further.“

April 29, 2022: Corcoran wrote to the NARA asking to delay the disclosure of the documents to the FBI so he could review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then consult with Trump “so that he may personally make any decision to assert a claim of constitutionally based privilege.” In the event he wasn’t given time to review the records, he wanted his letter to be considered “a protective assertion of executive privilege made by counsel for the former President.”

[Now, for the first time in the process that has been going on for more than a year, Trump is trying to assert executive privilege. Corcoran made the same arguments that Trump had made in court and lost when he tried to keep records from being sent from the National Archives to Congress.]

April 29: The DOJ National Security Division explained to Trump that there are national security interests in the FBI and others in the Intelligence Community getting access to these materials. It informed Trump’s lawyer that access was necessary:

• • For the ongoing criminal investigation and
  • Because the Executive Branch must conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.

[So Trump was warned that retaining these documents obstructed an investigation and endangered national security]

May 1, 2022: Corcoran asked for another delay.

May 5, 2022: This detail was included in the redacted search warrant: Kash Patel, writing for Breitbart, said that reporting that Trump had possessed classified documents was misleading because the president has the unilateral power to declassify any document.

[First, this isn’t true. Second, prior May 5, Trump never tried to claim that he’d declassified everything. In other words, he made up the defense after Breitbart published this article.]

May 10, 2022: The NARA wrote a lengthy explanation to Corcoran explaining that a former president does not have the right to assert executive privilege under these circumstances. Acting archivist Debra Steidel told Corcoran that the Biden White House deferred the privilege question to her, and she has found Trump’s privilege claims unconvincing.

The DOJ “developed evidence” that additional classified documents remained at Mar-a-Lago and thus obtained a grand jury subpoena for additional classified documents: The subpoena was directed to the custodian of records for the Office of Donald J. Trump, and it requested “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”  The return date was May 24.

May 11, 2022: Trump’s lawyer accepted a grand jury subpoena. The subpoena sought “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”

[In other words, the subpoena sought all records in his custody regardless of how and where they were stored, and regardless of whether Trump purportedly declassified them.]

May 12, 2022: The FBI could begin reviewing the material it had already obtained. [Prior to May 12 would have been the time for Trump to challenge the FBI’s access to these documents under the procedures given in the Presidential Records Act.]

May 16 – May 18, 2022: the FBI conducted a preliminary review of the material already obtained and realized how sensitive these documents were.

May 24, 2022: Corcoran asked for an extension in complying with the May 11th subpoena. Initially, the DOJ refused, but then granted an extension until June 7.

May 25, 2022: Trump’s lawyer, Corcoran, sent the DOJ a letter claiming that Mr. Trump had the absolute authority to declassify the documents.

This happened prior to the evening of June 2. 

• • Evan Corcoran searched for additional documents. During his search, he was “waved away” from searching Trump’s office. Corcoran appeared to have been “misled” by someone in Trump’s orbit who told him that all the records were stored in the Storage Room.” (Source: The Guardian.)
  • Corcoran drafted an affidavit stating that “after a diligent search” all responsive documents had been returned to the government. (Source: The Guardian)
  • He gave this affidavit to Christina Bobb to sign. (Source: The Guardian)
  • She signed the certification at Corcoran’s direction, “only after adding caveats to make the declaration less ironclad since she had not conducted the search herself.” (Source: The Guardian)

June 2 (evening), 2022: Trump’s lawyer asked FBI agents to meet him the next day to retrieve responsive documents.

• • Counsel for the former President told the FBI agents and DOJ lawyer that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. (Source: Search Warrant. The lawyer appears to be Evan Corcoran.)
  • Counsel further represented that there were no other records stored in any private office space or other location at the premises and that all available boxes had been searched. (Source: The Search Warrant)

June 8, 2022: Jay Bratt (Chief at Counterintelligence and Export Control Section, National Security Division, DOJ) sent Trump’s lawyer a communication directing him to secure all National Defense Information material according to law. He asked Trump to secure “the room at Mar-a-Lago where the documents had been stored and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.”

The padlock: Trump’s story is that investigators told him that the room where documents were being stored needed to be secured better, so he added a padlock and thought that would take care of the problem. The story made no sense.

What really happened was that the FBI told Trump that these spaces were not authorized for classified information and the documents were not being stored according to law. In other words, he was warned that he was not complying with the law.

 Trump’s idea that a padlock would cure the deficiencies in how these items had been stored is absurd.

June 22, 2022: Federal investigators served a subpoena to the Trump Organization (which owns Mar-a-Lago), demanding surveillance video from Mar-a-Lago. The footage showed that, after one instance in which officials were in contact with Trump’s team, boxes were moved in and out of the room.

[Oops: See why lawyers like Philbin and Eisenberg were smart to extract themselves? Trump doesn’t want lawyers to give him advice. He wants lawyers to do his bidding and this tends to get them into trouble.]

Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises.

[OMG they are still retaining and refusing to return classified documents !!]

The investigators also learned that documents were stored elsewhere (not just in the storage room).

[Another lie!!!]

August 5, 2022: Based on evidence that Trump still concealed government records at Mar-a-Lago, a federal judge approved a search warrant for Mar-a-Lago allowing the investigators to search areas other than the storage room. From the redacted affidavit and request unsealed on August 26, we learned the following:

• • • Probable cause was based on “a broad range of civilian witnesses” — and DOJ noted the court itself has previously concluded concerns about those witnesses’ safety and privacy are not “just hypothetical.” [In other words, there were real concerns that Trump would attempt to intimidate these witnesses.]
    • The affidavit confirms that the documents were stored in various locations around Mar-a-Lago and that none of these locations was an approved storage facility for classified material. [Question: Who told the FBI where this stuff was stored?]
    • The affidavit states that there is probable cause to believe evidence of obstruction will be found at Mar-a-Lago.

August 8, 2022: The FBI executed the search of Mar-a-Lago and seized: 33 boxes, containers, or items of evidence which contained over 100 classified records, including classified at the highest levels. In the storage room alone, FBI agents found 76 documents bearing classification markings (This is more than twice what was turned over to FBI agents in May.)

During the search, the FBI found documents in Trump’s bedroom, office, a first-floor storage room at Mar-a-Lago and a “container in a closet” in Trump’s office.

Two people familiar with the search said the information is “among the most sensitive secrets we hold.”

From a leak, which could only have come from Team Trump, we learned that the FBI was searching for (among other things) documents related to nuclear weapons.

Despite warnings that classified documents needed to be secured according to law, both the storage closet containing 10 boxes of documents including NDI information and one box, including TS/SCI documents, stored in a hotel safe, remained insecure.

Despite all of this, Republican leaders rallied around Trump and demanded that Garland speak and release the search warrant and related documents. They attacked the DOJ as engaging in political intimidation and motivated by partisan animosity, unnecessarily “raiding” the home of a former president. Senator Lindsay Graham “insisted” that the FBI “lay their cards on the table as to why this course of action was necessary.” Sen. Ted Cruz Tweeted, “RELEASE THE WARRANT. The American people deserve to see it. NOW.” Etc.

PHASE 4: THE AFTERMATH

GARLAND MAKES A PUBLIC ANNOUNCEMENT AND THE SEARCH WARRANT IS RELEASED

August 11, 2022, in the morning, just before Garland made his announcement: a person close to Trump reached out to a DOJ official to pass along a mafia-style threat from the former president to Merrick Garland: The person wanted Garland to know that Trump had been checking in with people around the country, and people were “enraged” by the search. Trump said “the country is on fire” and wanted to “reduce the heat.”