It Sure Feels Like Obstruction

Former President Trump faces scrutiny from Special Counsel Jack Smith. Photos: Joe Raedle, Jerry Lampen, Pool / AFP

Special Counsel Jack Smith’s continuing investigation into the Mar-a-Lago documents case—what I call “NARA-Lago” as a hat tip to the National Archives and Records Administration—is starting to feel like a whodunnit mystery.

Video footage with suspicious gaps. Boxes being moved in secret out of storage. Witnesses unwilling to talk. Shady foreign business dealings with piles of money at stake. Lawyers hauled before the grand jury.

To indict Trump on obstruction is no small matter, and Special Counsel Smith will have to present an airtight case with all the missing pieces of the story filled in. The grand jury (and then later, a federal criminal jury) will likely consider two important questions:

1. Did Trump instruct anyone to move documents out of the Mar-a-Lago storage room before his lawyers conducted their search?

2. What reason would Trump have to lie about whether he still held onto classified and other top secret material?

Two big developments, reported yesterday, help shed light on where Smith is focused. Before we get to those, and because it’s been a while since we discussed the NARA-Lago matter, a quick recap.

How we got here

The National Archives was the first to discover that Trump had taken classified documents with him to Mar-a-Lago. The back-and-forths with Trump’s lawyers finally resulted in the return of many boxes of documents in early 2022. The fact that there were classified documents mixed in with other documents was a huge red flag, so NARA referred the matter to the Justice Department, which convened a federal grand jury to look into the matter.

After the jury subpoenaed all remaining classified and other confidential documents, that should have been the end of the matter. By force of the subpoena, and of existing law, Trump was required to turn over what he had. 

At first it seemed like he had. His lawyers met with a Justice Department official in June of 2022, handed him a Redweld folder that supposedly had all the rest of the subpoenaed documents, and then gave a sworn statement that, to the best of their knowledge, that was it.

It wasn’t it. 

Investigators had reason to believe Trump was still holding on to classified and top secret material and that the sworn statement provided was untrue. This was backed up by video footage, subpoenaed by the Department from the Trump Organization, that showed suspicious movement of boxes out of the storage area where they had been held. 

In August of 2022, the Department convinced a judge that there was probable cause to believe that crimes had been committed and that evidence of those crimes was at Mar-a-Lago. Among the crimes cited was obstruction of justice. It’s helpful to review what that statute, 18 U.S.C. Section 1519, says:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States…shall be fined under this title, imprisoned not more than 20 years, or both.

That’s right, up to 20 years prison. Obstruction is a big deal.

Smith’s investigation heats up

After being appointed Special Counsel in late 2022 to oversee the NARA-Lago and January 6 matters, Smith quickly went to work. His office issued multiple subpoenas and began interviewing witnesses—pretty much everyone who worked at Mar-a-Lago, sources say. It also began looking into those gaps in video footage.

Smith focused a great deal of attention on the lawyers who had supposedly conducted the “diligent search” that turned up only the single Redweld of documents. The affidavit attesting there were no more documents to be turned over was signed by Christina Bobb, one of Trump’s attorneys. But Bobb had been instructed to do so by another Trump lawyer, Evan Corcoran, who had drafted the statement. Corcoran was the one who had actually conducted the search of the storage room.

Let’s return to our two important questions.

A first question is whether Trump somehow misled Corcoran into issuing that statement. One theory is, Trump could have told Corcoran to search the storage room—but only after removing the documents Trump wanted to keep. That might dupe Corcoran into becoming an unwitting participant in a scheme to hide certain missing documents.

A second key question is why Trump would go through all this trouble in the first place. What was so important to him about those documents that he allegedly worked so hard to hide them, even turning his own lawyer into an accomplice? More on that below.

The piercing of the attorney-client veil

Smith scored a huge win in March when he convinced a judge, backed up by an appellate panel of the D.C. Circuit, that he should be able to ask Corcoran about what Trump told him about the missing docs and where to search. That effort required Smith to prove that a “crime-fraud” exception to the attorney-client privilege applied—a very tall order. In a nutshell, Smith had to prove that it was likely that Trump and Corcoran had committed a crime (here, the crime of obstruction) and that therefore their communications relating to that crime should be discoverable by Smith.

Let me underscore this. A federal judge, affirmed by an appellate panel, agreed that Trump likely had committed the crime of obstruction and that therefore Corcoran’s communications with him were fair game. This fact alone leads me to believe it is likely Trump ultimately will be charged with obstruction. If you have enough goods on Trump to convince four judges that a crime likely occurred, you can probably move forward with your grand jury.

Lordy, there are notes

It wasn’t just Corcoran’s testimony about oral communications that Smith obtained. In an exclusive scoop on Monday, The Guardian reported that Corcoran took copious notes of his interactions with Trump, comprising some 50 pages. Those notes are very detailed, and they include things like Trump’s facial expressions in response to their discussion about the subpoena. Trump, who notoriously keeps no paper trail of anything, was apparently very displeased at how thoroughly Corcoran was recording their interactions.

These notes are a gold mine for prosecutors and very dangerous to the former president. Along with Corcoran’s testimony before the grand jury, they could serve as a window into the Trump’s state of mind and his knowledge surrounding the missing documents.

For example, the notes reportedly show that Corcoran told Trump that he could not legally retain classified documents after the May 11, 2022 subpoena. That ought to have been clear to anyone, but the fact that Trump’s own lawyer expressly reminded him of that is crucial to Trump’s intent in trying to circumvent the subpoena. He cannot now claim he didn’t know what his obligations were.

The notes further reveal where Corcoran did and did not search for classified documents, along with the time periods when he conducted his search. The notes show that Trump’s valet, Walt Nauta, knew about the subpoena because Corcoran had Nauta unlock the storage room in order to conduct the search. This is important because it may have been Nauta whom Trump instructed to move the documents before Corcoran got to them, or perhaps when Corcoran took breaks from his search. (Nauta, who gave prosecutors conflicting accounts of his actions, is staying mum for now.)

Foreign deals under scrutiny

Adding to the stakes was a report on Monday by the New York Times that Smith, as part of his wider investigation into money trails, has subpoenaed more records from the Trump organization. Smith has demanded all documents relating to information on Trump’s business dealings with seven foreign countries since he took office in 2017. Those include China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman.

It was already known that Smith was looking into the lucrative Saudi-backed LIV Golf tournaments at Trump’s golf clubs in New Jersey and Florida. And late last year, Trump inked a deal to build a Trump hotel in Oman as part of a Saudi-backed real estate development worth $4 billion. 

Now it’s clear that Smith is leaving few stones unturned as he explores whether there may have been any financial ties between Trump and foreign countries that relate in any way to his alleged crimes.

I want to be careful here. There is sometimes a tendency to assume that a subpoena relating to dealings with a foreign country implies that Smith believes there was a nefarious deal struck—for example, selling state secrets to that country. But it is likely that Smith is simply being thorough in his investigation and wants to get the story very clear. 

If, for example, there is no evidence that Trump gained financially from showing or handing over state secrets to foreign countries, then Smith would want to confirm that. But this still leaves the question of why Trump worked so hard to hide the missing documents—something so far only Trump knows for certain.

So why do it, if not for money?

I’m personally a bit dubious that Trump would outright sell state secrets for cash or deals. He just doesn’t seem smart enough to know what is truly valuable, and in any event, why take that risk when he already can ink multi-billion dollar deals with his Arab friends, simply because he is so powerful and connected?

If it turns out Trump didn’t sell access to the documents, then what could be his motive for obstructing justice? I’ll go out a bit on a limb here, sure.

Trump has shown us what kind of person he is for decades. He covets things. He’s a show off. He’s petty. He wants leverage over people. We don’t know what the missing documents contained, but they were valuable enough to Trump personally that he was willing to break the law to hold on to them, and in some way the top secret and highly classified documents checked all of these boxes for him. 

Now he claims, predictably, that he had every right to keep them, that they were “his” all along, even that he could have declassified them by thought alone. He’s wrong on that, and that’s a different legal question. But Smith understands that Trump’s efforts to obstruct their return is something a jury would view quite critically. People don’t lie, hide and manipulate when they’re in the right. They do it because they know they did something wrong.

The cover up is always worse than the crime.