Justice Department alleges Trump attempted to obstruct federal probe of documents

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• Judy Woodruff:

  A court filing from the Justice Department late last night offers the clearest picture yet of the steps that led to the FBI's search of former President Donald Trump's Florida home earlier this month.

  In its 36-page filing, the DOJ writes that the classified documents were at one point — quote — "likely concealed and removed" and that efforts were likely taken to obstruct the government's investigation.

  The FBI's search was the culmination of a months-long effort that began in May of last year, when the National Archives first requested missing records from the Trump team. The first batch of 15 boxes was sent to Washington in January and included 184 classified documents. Four months later, a grand jury subpoena was given to the Trump team requesting all other classified materials.

  In June, the FBI went to Mar-a-Lago and was given 38 additional classified documents. Trump's lawyer said there were no other documents stored on site, but would not allow FBI investigators to verify that.

  When the FBI executed a search warrant earlier this month, they found 76 classified documents in the storage room that they were not allowed into in June and an additional three documents in Trump's desk drawer.

  To help explain the new court filing, I'm joined by Chuck Rosenberg. He is a former federal prosecutor and an FBI official.

  Chuck Rosenberg, welcome back to the "NewsHour."

  So, what does the release of this FBI filing and what they're saying here tell us about what the former president did with these documents?

• Chuck Rosenberg, Former U.S. Attorney:

  Well, it tells us more about the documents than what the former president necessarily did with them.

  Search warrants are executed to recover evidence. And it was done lawfully with the authorization of a federal judge. But it doesn't necessarily tell you who did what, who packed the documents, who understood that there were classified materials within those boxes, and who may have obstructed justice.

  It could have been the former president. It could have been people who work for him. They could have been doing that at his direction. If you recall, Judy, a large portion of the FBI is affidavit was redacted. And lots of the good answers to those good questions are probably in those redactions.

• Judy Woodruff:

  And on the content question, on what was in here, will we ever know what what's here?

• Chuck Rosenberg:

  Again, maybe. And I know that's a frustrating answer.

  But if charges are brought against the former president or someone else, then very likely you will see the details made public in a court filing or educed as evidence at a trial. But if the investigation closes without charges being brought, then probably not.

• Judy Woodruff:

  When we see — and we have a picture that the FBI released of the documents spread out on the floor.

  I mean, we're looking at top secret. I mean, clearly this is sensitive materials here.

• Chuck Rosenberg:

  Highly sensitive material.

  And those cover sheets, which were on your screen just a moment ago, are easily detected, right? There's no mistake, Judy, when you have a classified document in your hand, because you have a classified document cover sheet marked secret or top secret, as the case may be.

  And, as you turn each page, there are markings at the top and bottom of each page. And there are even paragraph markings. So, there wouldn't be a mistake about the nature of the document.

• Judy Woodruff:

  The DOJ — and, again, this is what we were quoting a moment ago.

  Among other things, they're saying efforts were likely taken — and you just referred to this — to obstruct the government's investigation. If that's proven, is that breaking a law?

• Chuck Rosenberg:

  If it was done intentionally. So, let me explain.

  For instance, we know that Mr. Trump's lawyers had represented to the Department of Justice that they had done a thorough search and there were no more classified documents behind. That turned out not to be true. Was it intentionally false? In other words, were they just bad lawyers? Did they fail in their due diligence? Being a bad lawyer is not a crime.

  Or were they misled by someone else? Were they told perhaps by their client that the search was thorough, and they passed on bad information? Or did they know that there were documents there, but misrepresented it to the Department of Justice?

  So the first two scenarios, bad lawyering, a failure of due diligence, let me add as well, being misled by your client, is not a crime. But the last one, joining in a conspiracy to hide documents and making a misrepresentation to the Department of Justice, that would be.

• Judy Woodruff:

  Deciding whether to try to get answers to those questions that you just described, who makes that decision?

• Chuck Rosenberg:

  So, deciding to try and get answers would be the prosecutors and the agents. And that's why they do lots of interviews.

  For instance, they wanted to see surveillance footage from Mar-a-Lago. Why? It would tell you who's coming and going and who's coming and going with what and their hands. And those are people you want to talk to. And by talking to people and getting their best recollection, and, hopefully — hopefully their truthful best recollection, you can begin to understand whether these things were done intentionally or negligently.

  Intention is what's required to prove a crime.

• Judy Woodruff:

  The early reporting seems to be, Chuck Rosenberg, that DOJ is not expected to file charges.

  How should we read that? I mean, we are — I know you're not inside the Justice Department right now. But what do you think we should — could expect here?

• Chuck Rosenberg:

  Well, to your point, there may not be charges before the midterm elections.

• Judy Woodruff:

  Right.

• Chuck Rosenberg:

  But there's an ongoing investigation. The attorney general of the United States has told us that. And he said that they're going to follow the facts wherever they lead.

  There is a longstanding Department of Justice policy not to bring charges or to take overt investigative steps near the time of an election. It's not 60 or 90 days — there's no number in the policy — for the purpose of — and this is really important language — for the purpose of interfering in an election.

  So they may go quiet for a time, but that doesn't mean the investigation has stopped. You can still do things covertly, quietly, secretly to further your investigation while you're in this pre-election quiet period.

• Judy Woodruff:

  Do you think we can expect that, for now, the FBI has found whatever there is to be found among the former president's possessions, the things that he took with him when he left office?

• Chuck Rosenberg:

  It sounds logical and likely. They executed a search warrant, and they had authority to look in places where documents might be found.

• Judy Woodruff:

  And they spent hours.

• Chuck Rosenberg:

  And they spent hours.

• Judy Woodruff:

  Yes.

• Chuck Rosenberg:

  By the way, that's one reason why they go in with a lot of people. If they only went in with one person, it would take a lot longer. So you bring a lot of agents. You do a thorough search.

  It's pursuant to a lawfully authorized warrant signed by a federal judge. And that becomes part of the investigation. But that doesn't mean the investigation is over. It doesn't mean that they could not or would not execute another search warrant somewhere else. You follow the facts, and you follow the leads, and you go where they go.

• Judy Woodruff:

  And what do you look for at this point next here?

• Chuck Rosenberg:

  Well, I'm biased, Judy. I come from the Department of Justice. I have great faith in their work and their ability to do that work.

  I don't know when we will hear again from Merrick Garland. But, typically, the Department of Justice speaks in court or through pleadings, like the one that was released last night, through motions, through written documents.

  And I'm looking for those.

• Judy Woodruff:

  Chuck Rosenberg, we are grateful to you. Thank you.

• Chuck Rosenberg:

  My pleasure.