August 30, 2022
On May 25, one of former President Donald Trump’s lawyers sent a letter to a top Justice Department official, laying out the argument that his client had done nothing illegal by holding onto a trove of government materials when he left the White House, reports The New York Times.
The letter, from M. Evan Corcoran, a former federal prosecutor, represented Trump’s initial defense against the investigation into the presence of highly classified documents in unsecured locations at his members-only club and residence, Mar-a-Lago.
According to the Times, “It amounted to a three-page hodgepodge of contested legal theories, including … Corcoran’s assertion that Trump possessed a nearly boundless right as president to declassify materials and an argument that one law governing the handling of classified documents does not apply to a president.”
Corcoran asked the Justice Department to present the letter as “exculpatory” information to the grand jury investigating the case.
Government lawyers found it deeply puzzling. They included it in the affidavit submitted to a federal magistrate in Florida in their request for the search warrant they later used to recover even more classified materials at Mar-a-Lago—to demonstrate their willingness to acknowledge Corcoran’s arguments, a person with knowledge of the decision said.
As the partial release of the search warrant affidavit on May 26—including the May 25 letter—illustrated, Trump is going into the battle over the documents with a hastily assembled team. The lawyers have offered up a variety of arguments on his behalf that have yet to do much to fend off a Justice Department that has adopted a determined, focused, and, so far, largely successful legal approach.
“He needs a quarterback who’s a real lawyer,” said David I. Schoen, a lawyer who defended Trump in his second Senate impeachment trial. Schoen called it “an honor” to represent Trump, but said it was problematic to keep lawyers “rotating in and out.”
Often tinged with Trump’s own bombast and sometimes conflating his powers as president with his role as a private citizen, the legal arguments put forth by his team sometimes strike lawyers not involved in the case as more about setting a political narrative than about dealing with the possibility of a federal prosecution.
“There seems to be a huge disconnect between what’s actually happening—a real live court case surrounding a real live investigation—and what they’re actually doing, which is treating it like they’ve treated everything else, recklessly and thoughtlessly,” Chuck Rosenberg, a former U.S. attorney and FBI official, told the Times regarding Trump’s approach. “And for an average defendant on an average case, that would be a disaster.”
Trump’s team has had a few small procedural wins. On Saturday, a federal judge in Florida signaled that she was inclined to support Trump’s request for a special master to review the material seized by the government in the search of Mar-a-Lago on August 8.
It is not clear how much the appointment of a special master would slow or complicate the government’s review of the material. Trump’s team has suggested that it would be a first step toward challenging the validity of the search warrant; but it also gives the Justice Department, which is expected to respond this week, an opportunity to air new details in public through their legal filings.
Some of the Trump lawyers’ efforts have also appeared ineffective or misdirected. Corcoran, in his May 25 letter, made much of Trump’s powers to declassify material as president, and cited a specific law on the handling of classified material that he said did not apply to a president. The search warrant, however, said federal agents would be seeking evidence of three potential crimes, none of which relied on the classification status of the documents found at Mar-a-Lago; the law on the handling of classified material cited by Corcoran in the letter was not among them.
According to the Times, two lawyers who are working with Trump on the documents case—Corcoran and Jim Trusty—have prosecutorial experience with the federal government. But the team was put together quickly.
Trusty was hired after Trump saw him on television, people close to the former president have said. Corcoran came in during the spring, introduced by another Trump adviser during a conference call in which Corcoran made clear he was willing to take on a case that many of Trump’s other advisers were seeking to avoid, people briefed on the discussion said.
Trump’s allies have reached out to several other lawyers, but have repeatedly been turned down.
Corcoran, in particular, has raised eyebrows within the Justice Department for his statements to federal officials during the documents investigation. People briefed on the investigation say officials are uncertain whether Corcoran was intentionally evasive, or simply unaware of all the material still kept at Mar-a-Lago and found during the August 8 search by the FBI.
Corcoran did not respond to a request for comment. Taylor Budowich, a spokesman for Trump, said only that Trump and his legal team “continue to assert his rights and expose the Biden administration’s misuse of the Presidential Records Act, which governs all pertinent facts, has been complied with and has no enforcement mechanism.”
Even before Corcoran joined the team, Trump’s legal filings in various cases read like campaign rally speeches that he had dictated to his lawyers. The former president has a history of approaching legal proceedings as if they are political conflicts, in which his best defense is the 74 million people who voted for him in the 2020 election.
Trump’s advisers continue to insist that he was cooperating before the search in returning the documents. They also have suggested that they were quick to respond to Justice Department concerns, citing what they described as a request in June that a stronger lock be placed on the door leading to the storage area where several boxes of presidential records had been kept.
Yet the unsealed affidavit showed a portion of a letter from a Justice Department lawyer sent to Trump’s lawyers that did not specify anything about a lock and read less like a request than a warning.
The classified documents taken from the White House “have not been handled in an appropriate manner or stored in an appropriate location,” the letter read. “Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured 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.”
During the August 8 search, the FBI found additional documents in that area and also on the floor of a closet in Trump’s office, people briefed on the matter said.
Trump and a small circle within his group of current advisers maintain that he was entitled to keep documents he took from the White House, or that he had already declassified them, or that they were packed up and moved by the General Services Administration — an assertion flatly denied by that federal agency.
Trump, people familiar with his thinking say, sees the attorney general, Merrick Garland, not as the federal government’s chief law enforcement officer, but merely as a political foe and someone with whom he can haggle with about how much anger exists over the situation.
Shortly before Garland announced that he was seeking to unseal the search warrant, an intermediary for Trump reached out to a Justice Department official to pass along a message that the former president wanted to negotiate, as if he were still a New York developer.
The message Trump wanted conveyed, according to a person familiar with the exchange, was: “The country is on fire. What can I do to reduce the heat?”
A Justice Department spokesman would not say if the message ever made it up to Garland; but the senior leadership was befuddled by the message and had no idea what Trump was trying to accomplish, according to an official.
Research contact: @nytimes
