The former president exhibited a pattern of dissembling about the material he took from the White House, creating legal risk not just for himself but also some of his lawyers.
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Former President Donald J. Trump spent a year and a half deflecting demands from the federal government to return documents.
Late last year, as the National Archives ratcheted up the pressure on former President Donald J. Trump to return boxes of records he had taken from the White House to his Mar-a-Lago club, he came up with an idea to resolve the looming showdown: cut a deal.
Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.
In exchange for those documents, Mr. Trump told advisers, he would return to the National Archives the boxes of material he had taken to Mar-a-Lago, in Palm Beach, Fla.
Mr. Trump’s aides never pursued the idea. But the episode is one in a series that demonstrates how Mr. Trump spent a year and a half deflecting, delaying and sometimes leading aides to dissemble when it came to demands from the National Archives and ultimately the Justice Department to return the material he had taken, interviews and documents show.
That pattern was strikingly similar to how Mr. Trump confronted inquiries into his conduct while in office: entertain or promote outlandish ideas, eschew the advice of lawyers and mislead them, then push lawyers and aides to impede investigators.
In the process, some of his lawyers have increased their own legal exposure and had to hire lawyers themselves. And Mr. Trump has ended up in the middle of an investigation into his handling of the documents that has led the Justice Department to seek evidence of obstruction.
The path began well before Mr. Trump left office.
Concern about Mr. Trump’s habit of bringing documents to his White House bedroom began not long after he took office. By the second year of his administration, tracking the material he had in the residence had become a familiar obstacle, according to people familiar with his practices, and by the third year, there were specific documents that West Wing officials knew were not where they should be.
In the closing weeks of his presidency, the White House counsel, Pat A. Cipollone, flagged the need for Mr. Trump to return documents that had piled up in boxes in the White House residence, according to archives officials.
“It is also our understanding that roughly two dozen boxes of original presidential records were kept in the residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the administration that they need to be,” Gary M. Stern, the top lawyer for the National Archives, told Mr. Trump’s representatives in a 2021 letter, using an abbreviation for the agency’s name.
Mr. Stern added that he had raised his concerns about the issue with another top White House lawyer in the final weeks of the administration.
More on the Trump Documents Inquiry
- Supreme Court Request: Former President Donald J. Trump asked the justices to intervene in the litigation over sensitive documents that the F.B.I. seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.
- Dueling Judges: The moves and countermoves by a federal judge and the special master she appointed reflect a larger struggle over who should control the rules of the review of the documents seized from Mar-a-Lago.
- Declining to Convey a Message: After returning 15 boxes of documents in January, Mr. Trump asked one of his lawyers to tell the National Archives that he had no more. The lawyer declined to do so because he was not sure whether that was true.
- ‘Giant Backfire’: Mr. Trump’s demand for a special master hasn’t derailed the investigation into his hoarding of sensitive documents. Now he is stuck paying for a costly process that threatens to undermine his public claims.
Mr. Stern acknowledged to Mr. Trump’s representatives the complications that had come with the abrupt end of Mr. Trump’s term. “We know things were very chaotic, as they always are in the course of a one-term transition,” he wrote. “This is why the transfer of the Trump electronic records is still ongoing and won’t be complete for several more months. But it is absolutely necessary that we obtain and account for all original presidential records.”
Throughout 2021, Mr. Stern doggedly pressed Mr. Trump’s representatives to have him hand over the boxes.
Mr. Stern went back and forth about the issue with the people Mr. Trump had originally designated to represent him in dealing with the archives — among them Mark Meadows, the former White House chief of staff, and three lawyers who had worked in the White House Counsel’s Office.
In September 2021, as Mr. Stern upped the pressure on Mr. Trump to return the boxes, Mr. Trump told Mr. Meadows that there were about a dozen boxes that had been taken from the White House but that they only contained newspaper clippings and personal effects, according to three people briefed on the matter. (To some aides, Mr. Trump claimed that the contents of the boxes included dirty laundry.)
Mr. Meadows shared Mr. Trump’s characterization of the contents of the boxes with Patrick Philbin, another of Mr. Trump’s representatives to the archives and a former White House lawyer. Mr. Philbin in turn relayed the message — which months later would prove to be false — to Mr. Stern.
But archives officials made clear that even newspaper clippings and printouts of articles seen by Mr. Trump in office were considered presidential records. The archives often found personal effects among the materials presidents turned in, and the archives would send them back to Mr. Trump if they ever found any.
Still, Mr. Trump returned no boxes.
By the fall, Mr. Stern was growing increasingly frustrated and by then was dealing with Alex Cannon, a lawyer who had worked for the Trump Organization, the 2020 campaign and then Mr. Trump’s political action committee. Mr. Cannon had also been involved in responding to requests for documents from the congressional committee investigating the Jan. 6, 2021, attack on the Capitol.
In a conversation in late October or early November of last year, Mr. Stern told Mr. Cannon that he had tried other avenues for retrieving the documents and failed. He acknowledged that the Presidential Records Act did not contain an enforcement mechanism but suggested that the archives had options, including the ability to ask the attorney general to assist in retrieving the documents, according to people briefed on the discussions.
Mr. Cannon told Mr. Stern that the documents would be returned by the end of the year, the people said.
Around that time, Mr. Cannon, who told others he worried the boxes might contain documents that were being sought in the Jan. 6 inquiry, called Mr. Trump, who insisted that the boxes contained nothing of consequence.
Nonetheless, Mr. Cannon told associates that the boxes needed to be shipped back as they were, so the professional archivists could be the ones to sift through the material and set aside what they believed belonged to Mr. Trump. What is more, Mr. Cannon believed there was the possibility that the boxes could contain classified material, according to two people briefed on the discussions, and none of the staff members in Mr. Trump’s presidential office at Mar-a-Lago had proper security clearances .
It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.
Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.
A spokesman for Mr. Trump did not respond to a request for comment. A representative for the archives did not respond to a request for comment. Mr. Cannon declined a request for comment.
By the end of last year, a former adviser to Mr. Trump in the White House, a lawyer named Eric Herschmann, warned him that he could face serious legal ramifications if he did not return government materials he had taken with him when he left office. Mr. Herschmann told Mr. Trump that the consequences could be greater if some of the documents were classified.
Finally, after telling advisers repeatedly that the boxes were “mine,” Mr. Trump consented to go through them, which his associates said he did in December. Mr. Stern was alerted that the boxes were ready for retrieval.
But neither Mr. Trump nor any of his representatives informed Mr. Stern that they contained classified information. In January, the agency arranged for a contractor with a truck to go to Mar-a-Lago to pick up the boxes — which totaled 15, three more than the agency thought Mr. Trump had taken from the White House — and drive them to the Washington area.
Not knowing that the boxes contained classified information, agency personnel began opening the boxes in a room that did not meet government standards for handling secret materials. When they realized the sensitivity of the material, they quickly moved the boxes to specially secured areas, where their contents could be more closely examined.
ImageMr. Trump’s White House counsel had flagged the need to return documents before the end of his presidency, according to archives officials.Credit…Anna Moneymaker for The New York Times
Shortly thereafter, the National Archives alerted the Justice Department that classified materials may have been mishandled, leading federal authorities to open an investigation.
Around the time the archives retrieved the boxes, officials at the archives became skeptical that Mr. Trump had returned everything and made clear they believed there was more in his possession.
Mr. Trump told Mr. Cannon last winter to tell the archivists that he had returned everything. Mr. Cannon, concerned about making such a definitive statement to federal officials, refused to do so.
Their relationship ultimately became strained over the issue. Mr. Trump has told several advisers that he blames Mr. Cannon for the entire situation because the lawyer told him to give records back, while informal advisers like Tom Fitton, who runs the conservative group Judicial Watch but is not a lawyer, suggested Mr. Trump could claim the documents were personal records and hang on to them.
By the spring, a grand jury investigation had begun, and by June, the Justice Department was moving full steam ahead with the investigation, having issued a subpoena for any remaining classified material.
In a face-to-face meeting at Mar-a-Lago on June 3 between one of Mr. Trump’s lawyers and a top Justice Department official overseeing the investigation, Jay I. Bratt, the lawyer, Evan Corcoran, returned another set of documents in response to the subpoena.
At the same time, another one of Mr. Trump’s lawyers, Christina Bobb, signed a statement on behalf of Mr. Trump saying that “based upon the information that has been provided to me,” all documents responsive to the subpoena were being returned after a “diligent” search.
ImageMr. Trump has at times privately blamed the fallout of the documents case on Alex Cannon, a lawyer who advised him to return the records.Credit…Kenny Holston for The New York Times
Yet two months later, during the Aug. 8 search of Mar-a-Lago, the F.B.I. found more than twice as many documents marked as classified as had been turned over in June, including some in Mr. Trump’s office. The F.B.I. also found dozens of empty folders marked as having contained classified information. Among the crimes that the search warrant said the authorities might find evidence of was obstruction.
Ms. Bobb has hired a criminal defense lawyer and signaled a willingness to answer questions from the Justice Department.
In the aftermath of the search, investigators remained skeptical that they had retrieved all the documents and, in recent weeks, a top Justice Department official told Mr. Trump’s lawyers that the department believed he had still not returned all the documents he took when he left the White House, according to people familiar with the discussions.
Source: nytimes.com
