(The Hill) — Former President Donald Trump’s resistance to turning over what now appears to be a much larger tranche of documents than previously known could strengthen a potential case from the Justice Department against him and renews questions over whether the delay harmed national security.
A letter released by the National Archives on Tuesday indicates that an initial batch of 15 boxes of documents taken from Mar-a-Lago in January included 100 classified documents totaling 700 pages.
And reporting from The New York Times late Monday indicates that the government has recovered at least 300 classified documents from Trump since he left office.
Both offer insight into the volume of documents Trump took with him as he left office.
But the letter from the National Archives also shows the resistance Trump’s team had to any members of the intelligence community reviewing the documents so they could begin to assess whether there was damage done to any national security partners or methods.
“The volume of the documents and the length of the dispute, I think, makes the case stronger for the government that Donald Trump’s retention of these documents was willful,” said Barbara McQuade, a former U.S. attorney, noting that the charges being weighed by the government require showing intent.
“When you have 300 of them, and you retain them for over a year after repeated requests, and they come down a few times, and you still have them — it seems that the case has become much stronger. And I think it becomes much more difficult for the Justice Department to simply say, ‘We’ve got documents back. We’re going to declare victory and go home,’” she added.
“And charging him is not an easy decision. But man, at some point, how do you decline to charge him when his conduct has been so egregious?”
The letter from the National Archives indicates that Trump’s legal team was aware as early as April that the FBI was eager to obtain the documents so that they could do a damage assessment to determine whether there was any fallout related to their mishandling.
“Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also 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,” Debra Steidel Wall, acting archivist of the United States, wrote in relaying a message from the Justice Department’s National Security Division.
The exchange revealed that among the materials were those at “the highest levels of classification, including Special Access Program (SAP) materials.” That can include documents that may only be viewed by those with a need to know.
Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School of Law, said those details could also be of use if the Justice Department decides to proceed with charges under the Espionage Act, one of the statutes listed on the initial warrant to search Trump’s property.
“It very significantly adds to the espionage charge because one of the elements of proving that crime is that the individual has reason to know that it’s the type of material that could injure the United States if released. And the Department of Justice’s National Security Division is clearly informing Trump that it is the kind of material that could have exceptional damage to U.S. national security,” he said.
“It absolutely goes to his knowledge and willfulness.”
There are practical reasons the FBI and the broader intelligence community would want to review the documents.
“It isn’t just that we’re worried that something’s going to happen to these documents, but if they have been disclosed to people who shouldn’t have them, you need to do a damage assessment,” said McQuade, the former U.S. attorney.
“You do a damage assessment to find out have sources been compromised, if people’s lives could be in danger. If we’ve got a source in Russia who’s sharing information with the U.S. government, that person’s life could be in danger. So you have to assess who’s had access to this, and then you go and look on channels and find out has his information dried up,” she said.
The National Archives ultimately waited a month before distributing the documents to the FBI to disseminate to other intelligence agencies.
Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law, said the delay shows a federal government seeking to carefully balance protecting the intelligence community with the sensitivities of dealing with a former president.
“The accepted viewpoint in the intelligence community is that every day that classified information remains in the wild, there’s an incrementally greater chance that it will be used by someone to hurt the United States,” he said.
Several experts were surprised that Archives and the Justice Department had moved so slowly in recovering the documents and sharing them with the appropriate agencies.
“This is really sensitive stuff. And the idea that they’re sitting around in the basement of a club, with civilians who are walking around – nongovernment employees – with access to them is really disturbing,” McQuade said. “And then it wasn’t until August that they finally used the search warrant. If anything, I would like to have seen them be a little more assertive in getting these government secrets back months ago.”
“It’s a truly remarkable picture of two agencies who desperately wanted to peacefully resolve this hostage situation without pulling the trigger on the nuclear option and a person who just said, ‘Go to hell,’” McClanahan said.
The Trump team has since filed a motion that would once again delay the FBI from accessing the materials collected from Mar-a-Lago, this time asking a judge to assign a special master to the case who would review the evidence to determine whether it contains any privileged information.
A filter team at the Justice Department composed of prosecutors not associated with the case is currently doing a similar undertaking to determine whether any of Trump’s personal belongings were taken during the search.
Goodman said the filing makes weak claims, asserting that some of the documents taken may be protected by executive privilege.
“[That] makes no sense under law, because if it is, in fact, subject to executive privilege, that means it’s a government document, and hence, should be held by the government in the Archives. So that’s why it’s a very, very bad legal argument with no validity to it,” he said.
“The motion is a confession to having material you should not have in your house.”
The judge assigned to the case on Tuesday also seemed to question their legal argument, issuing an order directing Trump’s team to file an additional brief expanding on its legal rationale for the request.
Meanwhile, the letter from Archives came into the public domain after John Solomon, one of Trump’s representatives to the National Archives and a former columnist with The Hill, released it on his conservative news site, Just The News. Archives confirmed its authenticity Tuesday afternoon.
Observers have questioned the decision to publish a letter that shows not only the breadth of classified information held by Trump but also publicizes the extent the Trump team sought to block the FBI’s work.
“This letter was a truly remarkable self-own by a team known by self-owns,” McClanahan said.
“Every single piece of evidence that shows that DOJ tried literally everything they could to get these records back short of the search warrant punctures another hole in the theory that they were just on a witch hunt. They went above and beyond to accommodate an unreasonable individual.”