Did Trump Team Withhold Documents From Investigators? DOJ Says Yes : The NPR Politics Podcast The Justice Department says that Trump's representatives claimed they turned over all remaining classified material at kept at Trump's estate during a June meeting. That turned out to be untrue after investigators returned with a search warrant — and now the Justice Department is alleging it may have been misled.

This episode: congressional correspondent Kelsey Snell, senior political editor and correspondent Domenico Montanaro, and national justice correspondent Carrie Johnson.

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Did Trump Team Withhold Documents From Investigators? DOJ Says Yes

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TAMARA KEITH, BYLINE: Hey there. It's Tamara Keith from the NPR POLITICS PODCAST. And I am so excited because we are getting ready to go back out on the road. And Houston, you're up first. Join Susan Davis, Asma Khalid, Ashley Lopez, Domenico Montanaro and me at Zilkha Hall on Thursday, September 15. You can find more information about tickets, including for students, at nprpresents.org. Thanks to our partners at Houston Public Media. We hope to see you there.

MATT: Hi. This is Matt (ph) from Spring Hill, Fla., where I'm walking out of the gym after hitting a personal best on the chest fly machine while listening to the Friday edition of the NPR POLITICS PODCAST. This podcast was recorded at...

KELSEY SNELL, HOST:

12:16 p.m. on Wednesday, August 31.

MATT: Things may have changed by the time you hear it, but the one thing that hasn't changed is that the NPR POLITICS PODCAST is your source for getting informed and getting swole, brother.

SNELL: (Laughter) Oh, geez.

MATT: Now time for the show.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

SNELL: Maybe we need to bring back the NPR POLITICS Workout playlist.

DOMENICO MONTANARO, BYLINE: You know, as somebody who's walked the line between jock and nerd my whole life, I can appreciate that.

(LAUGHTER)

SNELL: Hey there. It's the NPR POLITICS PODCAST. I'm Kelsey Snell. I cover Congress.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

CARRIE JOHNSON, BYLINE: And I'm Carrie Johnson, national justice correspondent.

SNELL: Prosecutors provided new details about the search of former President Donald Trump's home in Florida. They point to possible obstruction of their efforts to retrieve documents. So, Carrie, let's just jump in right there. Can you explain to us what it is that they are saying right now?

JOHNSON: They're basically saying that after a months-long, over a year-long, tug of war over these materials that involve the National Archives, the Justice Department and representatives for former President Donald Trump, DOJ has developed evidence that seems to suggest that there's possible obstruction of justice in this case, that prosecutors were misled along the way when Trump's representatives attested to them in writing and told them that there were no additional materials of a classified nature at the resort at Mar-a-Lago. And instead, DOJ had to come back with this search warrant, this court-approved search warrant, and found a trove of government secrets, including very highly classified materials.

DOJ also says for the first time it developed evidence that, potentially, records were concealed from these investigators, that they were moved out of a storage room at Mar-a-Lago and that prosecutors were not told about them even after they issued a subpoena for these records. That's extremely serious conduct. Obstruction of justice is a big charge. It carries a maximum of 20 years in federal prison. And this could be the most legal trouble the former president has been in in a long time. But, of course, no charges yet in this case against him or anyone else who may have shipped those documents to Mar-a-Lago or moved them at the resort.

SNELL: Domenico, I mean, this is something that you've been following too. And I'm wondering, what is former President Trump saying about all of this? Has he reacted to this latest filing?

MONTANARO: Well, like usual, he's saying a lot of things about it (laughter), and he's not talking specifically about what the charges here are potentially. What he's talking about is things like, what happened to nuclear, since that was something that had been reported about and talked about as potentially being part of these documents.

SNELL: That's nuclear codes or something, right?

MONTANARO: Or nuclear information related to the materials. It's not going to be nuclear codes that's going to be part of (laughter) any of this because they change on a daily basis. But, you know, he also was critical of how they were laid out. You know, he loves his optics, and he's haphazardly throwing it all over the floor saying that they're maybe trying to blame him for that, which is not what they're doing at all. It's a lot of deflection and not really related to anything specifically to whether, for example, his team lied about what information they had given over and where and why he was keeping these materials.

SNELL: Right. I want to go back to what you were just saying about the imagery of this. Carrie, one of the things that we saw here was a picture that was part of the evidence that they put forward in this filing. Can you just talk a little bit about how they are demonstrating the case you just described?

JOHNSON: Sure. So what you see in the picture is a box which appears to be filled with framed covers of "Time" magazine. We know the former president likes those magazine covers, likes to display them. And then on the carpeting next to that box is a bunch of secret material. And it's labeled; it's labeled different levels of secrecy. And it's clearly marked that way. And there are different colors on the cover sheets. So anyone who wants to say that they didn't understand the material was classified or secret or a government record is going to have a hard time making that case once you look with your own two eyes at that photo. That's quite simply what the Justice Department was trying to demonstrate here.

And this filing overnight really demonstrates an extraordinary runaround the DOJ says it got from the Trump team. You know, it tried nicely. It tried nicely again. The DOJ dispatched FBI and a prosecutor down to Mar-a-Lago in June to try to get this stuff. DOJ says the Trump lawyers would not let them look inside the boxes at that time. Custodian of the records for Trump attested in a sworn statement that they had done a diligent search and there was nothing else there. That's clearly wrong given what the FBI uncovered in the August search. So this is a very bad set of facts for the former president.

SNELL: How did the Justice Department realize that they were being misled in this situation? How did they come to know that there were still things to be found?

JOHNSON: We have hints about that, but no certainty. The hints that we have come from other court filings, where the DOJ talks about needing to protect civilian witnesses that have helped with this investigation, and also a subpoena that the DOJ gave to the Trump people for video footage of footage - images outside that storage room at Mar-a-Lago. And so it seems for now that a combination of witnesses who knew what was going on at that resort in that video footage, that DOJ was able to get a sense that Trump's representatives were not acting in an aboveboard kind of way with the Justice Department on this documents' issue. We still need to find out, of course, what's exactly in these documents and why exactly the former president wanted to keep hold of them so tightly at his residence. None of this makes much sense.

SNELL: Domenico, this investigation isn't just happening in some sort of discrete bubble. You know, this battle over the Department of Justice and their role in presidential politics has been a major storyline for Trump. Can you put that into context?

MONTANARO: You might remember in the 2016 presidential campaign that the handling of classified material was a key issue. You know, former President Trump, when he was a candidate, continued to use that as a political weapon against former Secretary of State Hillary Clinton, who was his Democratic opponent, because of a server that was in her house that he and others alleged that there was classified material on it, potentially. And, you know, this is one area where if you're looking for consistency in Washington, you're not really going to find it. And the former president is no exception to that.

SNELL: Carrie, how are DOJ officials kind of communicating to the public under all of this scrutiny?

JOHNSON: Well, remember, the attorney general, Merrick Garland, went out and gave a very brief public statement earlier this month saying that he personally authorized it and that the DOJ prefers to speak in court and in court papers. Well, DOJ has now spoken quite loudly in court papers, in a series of court papers that have presented more and more damaging facts against the former president and basically has said that these baseless accusations and meritless accusations Trump has been throwing around have no value, and they don't belong in a courtroom. So I expect more of that to come on Thursday in Florida when there's going to be another hearing in this case in front of the judge there. And, you know, if Trump keeps fighting and making arguments about wanting other people to review this stuff, it just gives prosecutors more and more of an opportunity to present more evidence against him.

SNELL: All right. We're going to take a quick break, but we're going to come back to this in just a second.

And we're back. Carrie, I want to go through some of the arguments former President Trump and his lawyers are making about why nothing improper took place in the way these documents were handled. So the main points we've heard so far are that they believe he declassified the documents, that he has executive privilege and that the only way to have an impartial review of this process is to get an outside person to oversee it all. So how do those arguments hold up?

JOHNSON: Where to begin...

(LAUGHTER)

JOHNSON: OK. So let's take this - let's take this in three steps, OK? So Trump says that he has executive privilege, but he's no longer the executive. Joe Biden is the president of the United States. He has not wanted to assert executive privilege over these materials. He thinks that the Justice Department should have access to materials it needs to investigate the January 6 attack and mishandling of documents and other things. And a federal appeals court in Washington, D.C., has already turned back some executive privilege arguments from former President Trump, saying that former presidents do get some say, some consideration, but the views of the sitting president really matter, as does the need for information for a grand jury or a real investigation, which this is.

OK. Now, with respect to declassifying the documents, Trump himself and Kash Patel, one of Trump's top aides in the Trump administration, have said that Trump declassified these papers. There's no paperwork at all we've seen to back that up. Other people involved in the Trump administration, like John Bolton, have said they've seen no evidence that that ever happened. And moreover, the Justice Department in its late-night filing says in all the back-and-forth it had with Trump's lawyers over these papers, in no sense, in no way did the Trump lawyers ever assert that Trump had declassified these documents. So they don't think they are declassified.

And finally, having an impartial, independent person like a special master to review these papers - the Justice Department says there's no need for that. They've already reviewed them. There's a small number of papers that could be related to attorney-client privilege. They have process underway to manage that now. So that is my extended answer to all of the stuff Trump has been throwing on the wall.

SNELL: (Laughter) I mean, this has all been unfolding fairly rapidly for an investigation like this. Domenico, we're not the only ones seeing this become public. A lot of Trump supporters are watching this become public. And have their responses changed? Has there been any kind of evolution in the way they're talking about this situation?

MONTANARO: Or not talking about it?

SNELL: Yeah.

MONTANARO: Right? - because they've grown quieter and quieter as the days have gone on from the beginning of this search becoming public. Of course, when the search became public, you know, there's been tons of fundraising from entities aligned with Trump - the RNC, the Save America PAC, which is the main PAC sort of representing Trump himself. They've raised millions of dollars off of this so far. There have been surveys showing that the former president has consolidated his base once again, which was always potentially likely once Trump, you know, became front and center again, even if he were to run in 2016. But so far, one tweet that I'd seen from the House Judiciary Republican side of the House Judiciary Committee said that "Time" magazine cover was a huge threat to security with the sort of eyeroll emoji in there. I guess, you know...

SNELL: So kind of snarking.

MONTANARO: Snarking on it, yes, but deflecting - right? - because they're not actually addressing any (laughter) of the stuff with any of the markings that are (laughter) quite clear in that photo that they tweeted about. So, you know, this - a lot of deflection and silence is what we're hearing from Republicans. And, you know, they are, though, down this hole deep with Trump. You know, they have made this bargain that they are going to be with him all the way. And that means, you know, pledging complete fealty to maintain his base and believing or pushing out his conspiracy theories over and over again. And this is where they are.

SNELL: We should say that this isn't the only part of, you know, Trump's time in office that the Department of Justice is supposedly looking at. We understand that they are reviewing documents that the January 6 committee has been releasing and has been sharing with them. So this is one part of a broader legal situation for the former president.

JOHNSON: Capital S situation - this is a very serious situation. And the weird thing, the odd thing about this documents' investigation is that none of this had to be this way.

SNELL: Right.

JOHNSON: If he had just returned these papers in a prompt manner when the National Archives asked for them and had not given the runaround to the FBI, the Justice Department and the Archives, he might not be now facing a federal obstruction of justice investigation. You know, when this whole National Archives controversy came to light, I spoke with a former national security prosecutor who told me it would be a gross departure from precedent for DOJ not to investigate this. They've got to look at these documents and get them back. But Trump's response to this has made things so much worse for him. You've got to wonder what he's thinking now about all that.

SNELL: All right. Clearly, we are going to be covering this for many, many weeks to come, but we're going to have to leave it there for today. I'm Kelsey Snell. I cover Congress.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

JOHNSON: And I'm Carrie Johnson. I cover the Justice Department.

SNELL: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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