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Biden Justice Department’s Response to Trump’s Demand for Special Master Includes Staged Photo of ‘Classified’ Documents on Carpet at Mar-a-Lago

The Biden Justice Department submitted its opposition to President Trump’s suit demanding a special master be appointed to review documents taken in the FBI raid on his Palm Beach, Florida home, Mar-a-Lago, on August 8. Included in the response was a staged photo of ‘classified’ documents laid out on a carpet next to a storage box with a framed Time Magazine cover.

The documents are spread out on the carpet all facing the same way to the camera. Several documents have been whited out, while others have classified markings including Secret//SCI, HCS and Top Secret//SCI. The HCS marking stands for ‘HUMINT Control System’, indicating human-sourced intelligence.

Internet sleuths have observed that several dates on redacted documents are left exposed in the photo.

Politico’s Kyle Cheney discerns these dates: “-May 9, 201(8?) -Aug. 26, 2018 -Aug. 2(8?), 2018”

The DOJ filing, which can be read at this link, trashes Trump’s claim of executive privilege and makes an accusation of obstruction, “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

In addition to opposing the appointment of a special master, the filing also rejects Trump’s demands for the return of seized documents and an injunction barring further review of the documents by DOJ.

Excerpts:

On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept
receipt of the materials. In addition to counsel for the former President, another individual
was also present as the custodian of records for the former President’s post-presidential office.
When producing the documents, neither counsel nor the custodian asserted that the former
President had declassified the documents or asserted any claim of executive privilege. Instead,
counsel handled them in a manner that suggested counsel believed that the documents were
lassified: the production included a single Redweld envelope, double-wrapped in tape,
containing the documents. The individual present as the custodian of records produced and
provided a signed certification letter, which stated in part the following:
Based upon the information that has been provided to me, I am authorized to
certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent
search was conducted of the boxes that were moved from the White House to
Florida; b. This search was conducted after receipt of the subpoena, in order to
locate any and all documents that are responsive to the subpoena; c. Any and
all responsive documents accompany this certification; and d. No copy, written
notation, or reproduction of any kind was retained as to any responsive
document.
I swear or affirm that the above statements are true and correct to the best of
my knowledge.
See Attachment E.4

After producing the Redweld, counsel for the former President represented 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. 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 were searched. As the former President’s filing
indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E.
1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government
personnel from opening or looking inside any of the boxes that remained in the storage room,
giving no opportunity for the government to confirm that no documents with classification
markings remained.

Once in a secure government setting, the FBI conducted a preliminary review of the
documents contained in the Redweld envelope. That preliminary document review revealed
the following: 38 unique documents bearing classification markings, including 5 documents
marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked
as TOP SECRET. Further, the FBI agents observed markings reflecting sensitive
compartments and dissemination controls. Counsel for the former President offered no
explanation as to why boxes of government records, including 38 documents with
classification markings, remained at the Premises nearly five months after the production of
the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.

Break.

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, notwithstanding the sworn certification made
to the government on June 3. In particular, the government developed evidence that a search
limited to the Storage Room would not have uncovered all the classified documents at the
Premises. The government also developed evidence that government records were likely
concealed and removed from the Storage Room and that efforts were likely taken to obstruct
the government’s investigation. See also MJ Docket D.E. 80 at 8 (“As the Government aptly
noted at the hearing, these concerns are not hypothetical in this case. One of the statutes for
which I found probable cause was 18 U.S.C. § 1519, which prohibits obstructing an
investigation.”). This included evidence indicating that boxes formerly in the Storage Room
were not returned prior to counsel’s review.

Break.

…Of the Seized Evidence, thirteen boxes or containers contained documents with classification markings,
and in all, over one hundred unique documents with classification markings—that is, more than
twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were
seized. 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”). The classification levels ranged
from CONFIDENTIAL to TOP SECRET information, and certain documents included
additional sensitive compartments that signify very limited distribution. In some instances,
even the FBI counterintelligence personnel and DOJ attorneys conducting the review
required additional clearances before they were permitted to review certain documents.

Notwithstanding counsel’s representation on June 3, 2022, that materials from the
White House were only located in the Storage Room, classified documents were found in
both the Storage Room and in the former President’s office. Moreover, the search cast serious
doubt on the claim in the certification (and now in the Motion) that there had been “a diligent
search” for records responsive to the grand jury subpoena. In the storage room alone, FBI
agents found 76 documents bearing classification markings. All of the classified documents
seized in the August 8 search have been segregated from the rest of the seized documents and
are being separately maintained and stored in accordance with appropriate procedures for
handling and storing classified information. 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.

Break.

Although Plaintiff does not specify what material he contends was
seized in excess of the search warrant, certain personal effects were commingled with
classified material in the Seized Evidence, and they remain in the custody of the United States
because of their evidentiary value. Personal effects without evidentiary value will be returned.

Again, the complete 36 page filing can be read at this link.

Also a group of never-Trumpers who served as federal prosecutors asked to file an amicus brief in opposition to Trump. The filing lists the group as comprised of: Donald B. Ayer, Gregory A. Brower, John J. Farmer Jr., Stuart M. Gerson, Peter D. Keisler, William F. Weld, and former New Jersey Governor Christine Todd Whitman.

Amici all served in Republican administrations and collectively have decades of
experience prosecuting cases involving sensitive materials or advising on matters
regarding the proper scope of executive power and executive privilege. They also have
substantial personal experience with the structure and process of law enforcement
investigations, including investigations involving public officials.

Given their decades of public service, their personal familiarity with the law
enforcement and constitutional issues at issue here, and their commitment to the integrity
of our democratic system, Amici maintain an active interest in the proper resolution of the
important questions raised by former President Donald J. Trump’s pending motion.

That 23 page filing can be read at this link.

The case is being handled by U.S. District Judge Aileen Cannon (a Trump appointee) in the Southern District of Florida. Cannon earlier indicated she is leaning toward appointing a special master.

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