How Trump Already Duped The Judge In The MAL Case

TPM Illustration/United States District Court for the Southern District of Florida/Getty Images
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The judge overseeing the Mar-a-Lago documents prosecution of former President Donald Trump heard a dramatically different version of events last year — from Trump himself.

In a related case filed in August 2022, Trump made a series of representations to U.S. District Judge Aileen Cannon for the Southern District of Florida about the events leading up to the FBI raid on Mar-a-Lago. But Special Counsel Jack Smith in his June 2023 indictment of Trump directly contradicted substantial aspects of what Trump said in last year’s lawsuit.

In Trump’s 2022 case — a Hail Mary of a civil lawsuit which sought to halt the Justice Department’s investigation following the Mar-a-Lago search — Trump portrayed himself as a victim of law enforcement run amok and overzealous prosecutors trying to knock him out of the 2024 presidential race with a preemptive strike. In Cannon, Trump found a remarkably sympathetic ear.

Cannon did exactly what Trump asked in the lawsuit: freeze the federal criminal investigation and appoint a special master to review the records seized by the FBI. The ruling was literally unprecedented, and earned Cannon both a name for herself and widespread opprobrium.

TPM reviewed the filings and transcripts from the earlier civil suit and compared the representations Trump made to Cannon then with the evidence prosecutors laid out this month in the indictment charging Trump with willful retention of national defense information and obstruction of justice.

What emerges are three categories of claims Trump originally made to Cannon which begin to fall apart in light of the evidence Smith has included in the indictment:

  • Trump’s purported cooperation with the federal investigation
  • The supposed location of records within Mar-a-Lago
  • What the records themselves allegedly consisted of

The representations Trump made to the court stand apart from his many shifting, contradictory, and often damaging public statements about the Mar-a-Lago case. The in-court statements and filings, when contrasted with the evidence prosecutors have made public, are in a different category. In making claims to the judge who will now preside over his criminal trial that prosecutors can show were not just false but over-the-top, hyperbolic, and the exact opposite of what was happening, Trump has risked souring the one thing he has going for him: a judge who seemed favorably disposed to his disdain for the prosecution.

Todd Blanche, an attorney for Trump, didn’t return TPM’s request for comment.

It’s not clear what impact the divergences may have on Cannon; if questions about the accuracy of last year’s lawsuit are not formally introduced into the criminal case, she and jurors won’t be able to consider the issue.

But it may present her with discrepancies that are hard to ignore.

“Judges are also human,” John Jones III, a retired federal judge appointed by President George W. Bush to the Middle District of Pennsylvania, told TPM. “And I think [Trump] has put himself in a position where his credibility is called into question with [Judge Cannon] — that doesn’t mean she’s going to rule against him, but she may be more reluctant to take things at face value.”

‘Fully cooperative’

In multiple court filings and arguments made in front of Cannon, Trump claimed that he had not just fully cooperated with the feds, but had bent over backwards to accommodate their needs.

“Why raid my home with a platoon of federal agents when I have voluntarily cooperated with your every request?” reads one particularly evocative line in the civil suit.

Elsewhere, the former President said that he had been “fully cooperative,” while claiming that he himself chose to order his attorney Evan Corcoran to conduct “a diligent search of the boxes that had been moved from the White House to Florida.”

But federal prosecutors painted a starkly different picture of his degree of cooperation in their indictment. In the months leading up to the searches, prosecutors said, Trump had played a kind of shell game with the records. Per the indictment, Trump was misleading the feds, his own attorneys and, by extension, Judge Cannon.

When a grand jury issued a subpoena for classified-marked documents, he allegedly directed his valet Walt Nauta to remove 30 boxes of records. When his attorney Evan Corcoran, who also filed the 2022 civil suit, tried to comply with the subpoena, Trump directed Nauta to hide records from him.

Corcoran himself purportedly recalled one interaction in which Trump made a “funny” motion with his hands during a conversation about returning a batch of the records to the government, which Corcoran understood to be a suggestion that he “pluck” a record out of the batch. After Corcoran handed the records to the DOJ, agents kept investigating.

Prosecutors soon obtained warrants for footage from Mar-a-Lago, and continued to suspect that more records were outstanding.

In Trump’s telling to Cannon, it was all part of his continued cooperation.

“In the days that followed, President Trump continued to assist the Government,” the 2022 civil suit reads.

In retrospect, some of Trump’s filings in the civil case sound more hedged with the benefit of hindsight than they did at the time. At one point, attorneys for Trump appear to stop short of claiming full cooperation. In describing the response to a May 2022 subpoena for classified records, Trump attorneys wrote only: “Responsive documents were turned over.” Note the hedge: not all responsive documents.

‘Storage boxes in a locked room’

Smith lodged meticulous allegations in the indictment about how the boxes of documents were kept once they made it to Florida: some of the nation’s most sensitive secrets, the Special Counsel said, sat in the open in a club that regularly opened its doors to visitors.

For a while, he said, the records lived in stacked boxes on the stage of a Mar-a-Lago ballroom; after that, they resided in a bathroom-shower combo within the Florida club.

Eventually, amid scrutiny from the National Archives and the FBI, they made it to a storage room within Mar-a-Lago.

But in another filing in the 2022 lawsuit, Trump’s attorneys tried to downplay the severity of questions at the heart of the investigation: had the documents been disclosed to anyone else? And were they being kept in a safe location?

“Indeed, it appears such ‘classified records,’ along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago,” the filing reads.

In the indictment, prosecutors famously included photographs purportedly showing the records in a Mar-a-Lago bathroom, and on the stage in the Mar-a-Lago ballroom.

In the Trump lawsuit, his attorneys also described Mar-a-Lago itself as “a secure setting,” suggesting to Cannon that the documents had been kept safely in the location.

To Jeremy Fogel, a former federal judge for the Northern District of California, the contradictions themselves are notable, even if Jack Smith decides not to bring them to Judge Cannon’s attention.

“The judge’s job isn’t to go looking for things like that — it’s up to the parties to raise these issues,” he said. “But if you see it, you can’t unsee it. If you handle both cases, you know that the person said something in the first case, and if it’s irreconcilable with what’s presented in the second case, you know that, and that affects your understanding.”

It’s not clear that any of the contradictions will formally make it into the criminal matter.

Paul Grimm, a retired U.S. District judge for the District of Maryland who now directs the the Bolch Judicial Institute at Duke Law School, told TPM that misrepresentations in the civil case may end up being “apples and oranges” compared to the criminal matter.

“I don’t think the judge is going to have to reconcile these two things,” he said.

Personal or public?

Trump has returned to one argument even post-indictment: that the records did not belong to the government, but to him.

A version of that claim appears in last year’s civil lawsuit, where attorneys for Trump described the DOJ investigation as “criminalizing a former President’s possession of personal and Presidential records in a secure setting.”

“His decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal,” his attorneys wrote to a special master that Cannon appointed in the matter.

The core of the case — and the scandal around it — is that Trump retained records, including classified documents, that belonged to the public.

That was the same when the case went before Cannon; what’s changed because of the indictment is, potentially, Trump’s own account of what took place. And the attorneys who are representing him.

Trump was represented in the civil suit by three attorneys: Lindsey Halligan, Jim Trusty, and Evan Corcoran.

Of the three, only Halligan appears to still be working for Trump. Trusty resigned the morning after a Miami federal grand jury voted to charge the former President; Corcoran kept notes throughout his representation of Trump, while federal prosecutors portrayed him in the indictment as potentially being misled by his own client.

“Anyone who represents the former President knows there are a number of things that could happen to them, none of them good,” Jones, the Bush appointee, remarked. “He’s now become radioactive to lawyers.”

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Notable Replies

  1. “Christ, what an asshole.” — Lucy van Pelt

  2. In order for the “she was duped” thing to work, Judge Cannon would have to have been asleep for the past 8 years…

  3. Does anyone know if Judge Cannon has read the Presidential Records Act?

  4. Why bother? Trump has already proclaimed what it says (and who would argue with such a big-brained stable genius?).

Continue the discussion at forums.talkingpointsmemo.com

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