Donald Trump has a history of using questionable lawyers to his advantage. From the disbarred Roy Cohn to fixer (and felon) Michael Cohen, Trump used lawyers as a tool to expand his empire. As president, he used unethical lawyers like Rudy Giuliani and John Eastman to carry forward schemes to hold onto power. Even when those lawyers got into trouble, Trump has managed to avoid serious consequences.
But now Trump’s attorneys have managed to help him get into a legal jam the likes of which he has never faced. Whether out of incompetence or a desire to please their notoriously rules-averse client, they have committed a series of unconscionable errors that turned the government’s document recovery effort into an ongoing criminal investigation of the former president that could result in an unprecedented criminal indictment. Monday’s ruling by a judge agreeing with Trump’s request to appoint a third party to review the documents might look like a win, but it is a limited response to a catastrophe that they could have avoided.
What is almost as shocking as the jeopardy Trump now faces is how easily it could have been avoided with even a modest amount of competent legal advice. Obviously, a lot of this is Trump’s own doing. He is ultimately responsible for the decision to bring tens of thousands of government documents — many of them highly classified — to his country club home in Palm Beach. But one reason lawyers have jobs is because their clients have already made poor decisions. A good attorney quarterbacking this situation for Trump would have prevented those bad decisions from compounding by ensuring his residence wasn’t searched and negotiating a deal to avoid any risk of criminal charges.
Trump’s lawyers’ performance here is a case study in poor defense. Instead of cooperating with the government to negotiate the return of its records when this was a civil matter, Trump’s team produced boxes of haphazard records that contained classified documents that were not organized and appear not to have been reviewed or catalogued prior to production. Once a criminal investigation was open, instead of negotiating a deal with DOJ, Trump’s lawyers lied to the Feds and made themselves witnesses (and potentially subjects) in the criminal investigation, making criminal charges against Trump more likely.
The negotiations between the National Archives and Records Administration and Trump’s representatives throughout 2021 should have prompted lawyers to step in and manage the situation. Unlike the Justice Department, NARA doesn’t have criminal enforcement powers and was trying to work with Trump’s team to facilitate the return of what turned out to be thousands of pages of government records. The time to seek accommodations from the government was when NARA was the counterparty, not the DOJ.
Before Trump, presidents worked cooperatively with NARA with respect to their presidential records, which are owned by the federal government. But even if Trump wanted to take a more aggressive approach, or even wanted to keep some of the records, it would have been important for his lawyers to figure out up front what exactly he wanted and then to negotiate with NARA. We know the negotiations with NARA weren’t managed properly because of how and what was ultimately produced to NARA. According to NARA’s referral to the Justice Department on Feb. 9, the 15 boxes of documents received from Trump’s team included “newspapers, magazines, printed news articles, photos” and other documents mixed in with “a lot of classified records.” NARA told DOJ that a “significant concern” was that “highly classified records” were mixed in with other records and were unidentified and unfoldered.
No competent attorney would have approved the production of documents to the government without reviewing and cataloguing the documents provided. You have to know what it is that you’re producing and what, if anything, is still being held back. While attorneys may not have been able to review certain classified documents, the existence of those documents should not have been a surprise to Trump’s team. They should have been aware that they were producing classified materials, raised that issue to NARA before producing, and produced them in a secure manner.
Because willfully possessing classified material without authorization is a crime, a prudent lawyer — even at that initial stage — would have spoken with Trump to determine whether he had any other classified documents and would have considered initiating a conversation with DOJ at that point. I would have considered seeking “act of production” immunity for handing over the documents. Such immunity would ensure the government can’t use the very act of producing classified documents to prove my client broke the law by possessing them. I suspect DOJ wouldn’t have pursued the matter further if all of the classified material had been returned, but obtaining immunity when there is potential criminal liability is usually a prudent step.
What was important, at that point, was to be honest with the federal government and to return all the classified material that was in Trump’s possession. Unlike a typical government employee, Trump had some excuses he could have offered for keeping classified material, and DOJ likely wouldn’t have done anything more if Trump’s team had been honest, forthright and went out of its way to ensure the government that its property was safely back in its possession.
Of course, that didn’t happen, and according to DOJ, the “FBI developed evidence indicating that even after the 15 boxes were provided to NARA, dozens of additional boxes remained at the premises that were also likely to contain classified information.” As a result, the DOJ issued a subpoena to Trump’s attorneys on May 11.
It’s hard to overstate how significant the issuance of a grand jury subpoena is in this circumstance. If I were Trump’s lawyer on May 11, I would have told him this means that he is now dealing with DOJ — not NARA — and that DOJ is indicating that it would use its much more substantial powers — a court-approved search warrant, for example — to get classified material back.
When I receive a call from an alarmed potential client who has just received a grand jury subpoena, I advise them to follow my advice to the letter and they usually do. Trump is not the typical client. He has a history of opposing the DOJ, dating back to the 1970s when the department charged his family’s real estate company with racial discrimination. As president, he bridled against the department’s independence, especially when then-Attorney General Jeff Sessions appointed a special counsel to investigate whether Trump had colluded with the Russians in the 2016 election. But a good attorney would have tried hard to manage him, aggressively telling him that if he did not follow legal advice, he could face criminal charges. It might be unprecedented to charge a former president, but as I have explained, concealing government documents is a very simple case to prosecute and Trump’s attorneys should have appreciated that risk.
Even after the subpoena in May, a good attorney who took charge of the situation could have avoided the execution of a search warrant. DOJ indicated to Trump’s attorneys that they could comply by “providing any responsive documents to the FBI at the place of their location” and providing a “sworn certification that the documents represent all responsive records.”
Essentially, the Justice Department was trying to help Trump’s attorneys do what they should have been doing in the first place. But they managed to completely screw that up. One of Trump’s attorneys, reportedly Christina Bobb, signed a certification that a “diligent search” was conducted and that “any and all” documents were produced to the government. Unfortunately for her, that turned out to be false.
One of Trump’s attorneys also made some false verbal statements to the DOJ and FBI agents who came to retrieve the documents, stating that all the records from the White House were stored in a single storage room, that the “remaining repository” of records was that storage room, that there were “no other records” stored anywhere else at Trump’s residence, and that all available boxes were searched. All of those statements appear to be lies. The attorney also prevented the government from looking at the storage room where the attorney said the documents came from, which suggested to the government the attorney knew it wasn’t true.
Trump’s attorney managed to create criminal liability for herself by making false statements to the DOJ and FBI, because knowingly and willfully lying to the DOJ or FBI in the course of a federal investigation is a felony. She also made herself a witness in this case, particularly given her subsequent statements — and the statements of other Trump lawyers — regarding her first-hand observations of Trump’s office, where documents were found. If one of Trump’s lawyers is a witness against him, she can’t act as a lawyer on his behalf in that case and she puts herself in the difficult position of potentially testifying against her own client. A smart attorney would never have signed that document. I would have hired someone — ideally someone with clearance to review top secret documents — to conduct a thorough search. Then, I would have had that person sign the certification or I would have had a lawyer who wasn’t representing Trump in this matter sign the certification based upon the third party’s search.
The certification would have only been part of our communication with DOJ. Once a grand jury subpoena was issued, it would have been prudent for Trump’s counsel to talk directly with DOJ attorneys about exactly what they wanted, whether they intended to investigate further once they had the material, and about “act of production” immunity. The goal of those discussions and negotiations would have been to obtain an agreement with the government not to pursue a criminal investigation in exchange for voluntary access to the Mar-a-Lago estate and production of all relevant documents.
If a deal along those lines had been struck, there would have been no search warrant or certification at all. The FBI could have come in quietly, with Trump’s permission, and conducted their own search and taken all classified material. If there were legitimate disputes over records, it would have been better to do so after the documents were already in the government’s hands and there was a deal in place to keep this as a civil dispute rather than a criminal investigation.
Obviously, that’s not how this turned out.
For some reason, even though Trump had agreed to turn over 15 boxes of material initially, he and his team balked at complying with requests for the remainder of the records. The defenses for this inexplicable behavior have been as numerous as they are flimsy. The FBI’s search was unnecessary — all they had to do was ask, they claim. Then the evidence was planted by the FBI. Then it was improper because the documents had been declassified by Trump. Then they were covered by executive privilege. Last week, his attorneys claimed they amounted to nothing more than “an overdue library book.” That was before the DOJ released an inventory of everything seized during the Aug. 8 search. That was a lot of “library books.”
Trump might not care that he contradicts himself in his efforts to swing public opinion. But no competent attorney would conduct themselves this way. The consequences might be severe. The DOJ is weighing potential criminal charges against Trump, and it is apparent that a key “plus factor” considered by DOJ is the obstruction of its investigation by Trump and his team. Until now, Trump has found his way out of or around legal problems by relying on questionable attorneys and their aggressive tactics. But that was completely counterproductive here and Trump may pay a very significant price for not seeking the advice of competent lawyers who understood how to manage a complex federal criminal defense case like this one.
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