What Trump Lost And Won In His Court Battle Over Mar-a-Lago Records

(Bloomberg) -- Four months after FBI agents seized government records from Donald Trump’s Mar-a-Lago estate, his bitterly fought litigation with the Justice Department appears over. He lost in court. And unlike the last time that happened, he opted not to push for another long-shot US Supreme Court showdown. 

But in the murkier realms of public relations, politics, and defense strategizing, the net result of his failed early challenge to the federal criminal probe is more complicated. 

Trump succeeded in delaying the probe, a common thread through the former president’s past court fights with various investigative bodies seeking his personal and White House records. He got a closer look at the government’s investigation and evidence than a typical search-warrant target would be entitled to before facing charges. He declared his latest run for president in the midst of the litigation and court hearings and briefs offered a regular public stage to press allegations that the probe is politically motivated.

“He created more noise that obfuscates the underlying criminal investigation,” said Sarah Krissoff, a former federal prosecutor in New York. 

Adding another case to the long list of Trump’s legal matters likely makes it harder for the average person to keep up with every development and stay interested, added Krissoff, now a defense attorney in private practice.

The Justice Department is exploring whether government records – including classified information – were mishandled after Trump left the White House and whether anyone attempted to obstruct that probe. Prosecutors have defended seizing dozens of boxes of material from Trump’s estate, explaining to judges that even the mingling of purely personal items and government records is potentially relevant evidence.

Trump’s Mar-a-Lago case ended without resolution of his complaints about the scope of the warrant and how the Federal Bureau of Investigation executed the search. US District Senior Judge Raymond Dearie, the special master selected to go through the contested records, was a few weeks shy of his deadline to produce final recommendations when an appeals court tossed out US District Judge Aileen Cannon’s decision to appoint him and prevent the government from using the materials in a criminal probe until the review ended.

The months of litigation yielded more details about the scope and state of the investigation, though, both to Trump and the public. Cannon ordered the government to produce a detailed breakdown of seized materials that showed how investigators had categorized documents, down to the levels of classified information they found. That log was more specific than the inventory list that Trump’s lawyers were given on the day of the search.

Dearie’s work gave Trump and his lawyers an opportunity to review the bulk of the seized documents; the subject of a warrant normally wouldn’t get back access to that kind of evidence unless they were charged or if the investigation ended without prosecution. The notable exception to that were the materials with classified markings, which were excluded from the special master review after Trump lost an earlier appeal.

In a separate but related case, a coalition of media outlets partially succeeded in arguing for a federal magistrate judge to unseal documents related to the Mar-a-Lago search, including a redacted version of the original affidavit the FBI filed in applying for the warrant. Before the 11th Circuit Court of Appeals dismissed Trump’s special master case, he had been arguing to see the full document. The Justice Department protested that could expose witnesses and jeopardize the investigation.

In a normal case, the subject of a search likely would be aware of anything in their possession that the government takes, so an early chance to review those materials probably wouldn’t make a difference, said Franklin Monsour Jr., a former federal prosecutor in Florida now in private practice. But, he added, it wasn’t clear that was true of Trump and whatever was found in the boxes at Mar-a-Lago. Trump has claimed he wasn’t personally involved in the packing process, which was done at the White House after he lost re-election.

Krissoff said the full spectrum of information Trump walked away with by the end of the case would give him and his lawyers an advantage in crafting strategies for whatever comes next, whether it was trying to convince prosecutors to back off or preparing for an indictment.

“When I would have a client where there’s a search warrant executed at their house or business, they have very little information about what that case is about unless and until the prosecutor decides to share that information,” she said.

Krissoff said that although Trump couldn’t convince the 11th Circuit that Cannon had grounds to bring in a special master and halt investigators’ ability to use the documents, the litigation could have ripple effects in other cases, especially those involving high-profile subjects – other political figures or corporate executives, for instance. She said it might encourage defense lawyers – those outside the 11th Circuit, at least – to think more “creatively” about options for responding to a search warrant early on.

Monsour suggested some of the arguments Trump made in trying to win the court case could backfire in the political arena going forward  – for example, his “novel and incredible arguments” about how a president can deem government records personal property.

“Now that he’s a candidate for office, those arguments are no longer just theoretical,” Monsour said. “At least if he’s going to remain consistent, they’re presumably how he will continue to view national security material if he were to become president again.”

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