It is rare for a Trump emissary to be an addendum to, and not the focus of, a high-profile proceeding. And Bobb’s decision to watch rather than participate ended up earning her a cricket from the typically affable Fox News host Laura Ingraham, who wondered if she had forfeited Trump’s right to the process behind the eventual release of the FBI’s affidavit to help shape
“We really just decided to see how it would play out,” Bobb replied.
The moment underscored an increasingly obvious truth about Donald Trump’s legal strategy in the week since the FBI raided his Mar-a-Lago home: He and his team haven’t committed to a single approach and are groping in the dark about what’s next could. Trump has often used litigation to delay but has been reluctant to go on the offensive, especially when he’s likely to lose. His vow on Friday to make a “big proposal” appeared consistent with that approach.
While it’s unclear whether the former president or one of his key allies is at imminent risk of criminal charges, they have outlined competing and sometimes conflicting positions that could come into play if the investigation — now in its “early stages” — accelerates.
Here’s a look at the Trump team’s early, shifting strategies and how they might fare:
Calls for transparency that don’t show up in court
Bobb’s calm approach to Thursday’s Florida hearing was markedly different from Trump’s, who has been vocal in insisting that the DOJ release the unedited affidavit underlying the search warrant executed at Mar-a-Lago. See the article : Freshfields, Skadden guide Google’s $1 bln deal with Chicago exchange. Several media organizations and the conservative Judicial Watch submitted motions to a federal judge to do just that.
But Trump never authorized his legal team to make that formal request.
His request for the release of the affidavit was itself a postponement. He and his team initially resisted the public release of the search warrant itself, which they had access to on August 8th. It was only after Attorney General Merrick Garland took the unusual step of declassifying the warrant that Trump began calling for transparency.
The public noise avoiding actual litigation suggests Trump is proceeding cautiously – lest his legal team embark on a course of action he cannot later reverse.
When Trump received his publicly stated desire to release the search warrant, Americans learned about dozens of boxes of classified materials he dumped on his property and that the DOJ was investigating potential crimes, including misappropriation of classified materials and obstruction of justice .
Presidential vs. Personal
Trump’s team came up with a new defense Thursday through media partner John Solomon – one of the former president’s authorized representatives at the National Archives: Trump told people he considers the materials he hid in his home as “personal” items, that belonged to him. This may interest you : Fox News Asks Delaware Court to Dismiss Dominion Defamation Lawsuit.
It’s unclear if and how Trump actually made such a designation, and his team has yet to come up with evidence to back it up. But it’s not a trivial topic. A hodgepodge of past court rulings has suggested that presidents have tremendous control over their own materials, including the ability to designate some as “personal,” exempting them from the strict requirements of the Presidential Records Act.
Although the laws governing these designations have made it clear that documents deemed “personal” should also have no inherent value in the business of government, there is no mechanism to challenge a President’s decision in this regard – unless the archive decides to challenge them.
But there’s a problem for Trump with this defense: The power to consider records “personal” ended the moment his presidency did. So if he had not named the records brought to Mar-a-Lago at that point, then the choice was no longer his.
Given that several of Trump’s allies and aides have indicated that he didn’t know what was packed in the boxes shipped to his estate, it would be hard to argue that he labeled them as personal items.
Going after the judge
Ever since the FBI invaded Mar-a-Lago, Trump and his lawyers have argued that the search warrant itself was flawed — too broad and approved by a biased judge. To see also : Minnesota Supreme Court delivers blow to Line 3 opponents.
Your evidence of Judge Bruce Reinhart’s bias? He donated to Barack Obama. Some Trump supporters have also pointed to his work more than a decade ago for Jeffrey Epstein’s associates and associates. However, it is unclear how this will conflict with Trump-related issues. And Reinhart also gave donations to Jeb Bush.
Trump’s team has also indicated that Reinhart’s refraining from a sweeping lawsuit filed by Trump against Hillary Clinton and dozens of current and former DOJ officials is evidence of bias. But Reinhart, one of six judges retiring from the case, never gave the reason for his decision. In fact, it’s far more likely that he resigned for a more mundane reason: a previous working relationship with one of the dozens of defendants in the case or their attorneys.
But dealing with Reinhart was also mixed. After a week of calling the judge biased, Trump’s team welcomed his opposition to keeping the affidavit fully sealed.
An important side note: while Trump asked that Reinhart walk away from “this case,” there really isn’t a case to back out of right now, just a search warrant that was requested and granted, followed by an argument about it , how much of these records should be public. If Trump or anyone else faces criminal charges related to the missing records, a judge would be randomly assigned.
Claiming the FBI overstepped
Even if the search warrant passes the legal scrutiny, Trump’s allies say the FBI has blown its restrictions, randomly seizing boxes and simply stockpiling as much as possible. Despite strong evidence to the contrary, days after the search, Trump hammered away at this point, focusing on alleged passports stolen from his estate.
What Trump didn’t mention at the time was what DOJ officials had told him: The passports were flagged by a team of investigators who were specifically tasked with weeding out any improper or privileged information that an FBI search might uncover . The involvement of a so-called filter team signals that the DOJ was careful that investigators did not see any evidence that they should not see.
Still, Trump’s legal team announced late Friday that it was ready to make a more concerted push on that front. Attorney Jim Trusty joined pro-Trump radio host Mark Levin to outline Trump’s intent to seek a “special supervisor” to review materials seized by the FBI and ensure the FBI cannot see privileged information.
Trusty didn’t elaborate on why it took the legal team 11 days to agree on this strategy after a year or more of dialogue with archivists and government attorneys. But he said a special master could review “large swaths” of material Trump’s team believes are the subject of claims of privilege, arguing a DOJ-led filter team could not be trusted.
Trump promised in a social media post on Friday that a legal motion would be filed on the matter, but as of Sunday morning it still hadn’t arrived.
Trump was similarly lax when his former attorney, John Eastman, fended off efforts by the Jan. 6 special committee to obtain thousands of emails that Eastman had claimed were protected by attorney-client privilege — with Trump as the client.
For months, a federal judge has been probing Eastman’s legal relationship with Trump, asking the former law professor to produce documentation proving when he became Trump’s attorney. But the ex-president never sided with the lawsuit, leaving Eastman with only an unsigned advance payment agreement. The result? Eastman lost at almost every turn, and the judge issued a damaging ruling that he and Trump likely joined in a criminal conspiracy to overthrow the 2020 election.
Arguing DOJ didn’t exhaust all other options
Trump’s lawyers have also claimed that the FBI resorted to its most aggressive tactic — an unannounced search and seizure of a former president’s home — before exhausting less intrusive means. Bobb and other Trump allies noted that DOJ officials paid a cordial visit to Mar-a-Lago on June 3. A few days later, the DOJ called Trump’s attorneys and asked them to padlock a storage room in the basement where some of the target files were housed. Then there was radio silence for two months, Trump allies say, until the FBI executed the warrant.
What’s missing from this timeline has leaked out in later reports: The Justice Department’s interactions with Trump’s team only began after the archives had been trying for more than a year to obtain the full list of records kept at Mar-a-Lago. The Archives asked the DOJ to participate after discovering tranches of classified records on site.
In the spring, the DOJ used a grand jury subpoena to attempt to obtain files kept at Mar-a-Lago. Then, shortly after officers visited Trump’s home in June, the department issued a new subpoena for surveillance footage that could show important files being moved. Bobb told Ingraham that she believes the Trump team is ready to release some of this surveillance footage. But they didn’t release that or the subpoenas.
Delay is Trump’s friend
The best Trump can probably hope for right now is that the search warrant was primarily a mechanism to recover records the government was entitled to and doesn’t say much about whether he or anyone else will be prosecuted.
Several former senior DOJ officials have offered a similar view. But much remains unknown.
DOJ Counterintelligence Officer Jay Bratt told Reinhart during Thursday’s hearing that the investigation is “at an early stage,” suggesting the matter has not yet been resolved, but also that indictment decisions are still in progress far away.
Most cases of intentional or unintentional misuse of classified information do not result in criminal charges. The government’s primary goal is typically to end the so-called “spill” of material as quickly and completely as possible, with consequences for those responsible later.
That means there’s a remote likelihood of upcoming developments as dramatic as the Aug. 8 search at Mar-a-Lago.
But Trump’s lawyers will stay busy. Other legal threats he faces include investigations by the DOJ into the attempted overthrow of the 2020 presidential election; Civil lawsuits over the violence that took place in the Capitol on January 6, 2021; a criminal voter fraud investigation in Georgia; and two New York investigations into the tax and accounting practices of his real estate empire and the marketing of the Trump brand.