I have never seen a case with so many irregularities, with such manifest political motivation.
will stay imprinted in my memory like no other day. Donald Trump had retained me as his lawyer a few months earlier, and I was still getting to know the players who formed his legal team as well as the many others who offered advice or service to the former president. I knew there was a slow-burning issue about his retention of potentially sensitive documents. I had told my chief counterpart, Evan Corcoran, that on Monday the 8th I would participate in a charity golf tournament and would be unavailable for any work issues.
The fire drill for us lawyers began in earnest that day. I knew some core factsâthat Mr. Trump had returned numerous boxes to the custody of the archivist (the head of the National Archives and Records Administration) earlier that year; that Evan had been talking about documents with Jay Bratt of the Justice Departmentâs National Security Division; that Evan had searched through a bunch of disorganized documents to pull potentially classified ones and give them to Mr. Bratt.
My phone started ringing repeatedly at 10 a.m., just as the tournament was starting. After ignoring it a couple of times, I answered and angrily reminded Evan that I was off for the day. He responded: âThe FBI is at Mar-a-Lago.â So much for my game.
I learned around the same time that three months earlier Mr. Bratt had issued a grand-jury subpoena for âany and allâ documents bearing classification markings. He was engaging in the typical back-and-forth that occurs on document subpoenas when he suddenly reversed course on his pledge to give Evan more time. And I knew that after Mr. Trump allowed Federal Bureau of Investigation agents and Mr. Bratt to walk around the premises at Mar-a-Lago and see where any of these documents were housed, he graciously let them know that they should just âlet me know about anything they need,â or words to that effect. The first and only response to that invitation was to ask him to put a padlock on the door to the storage room full of boxed documents. Mr. Trump immediately complied with that request.
I later learned more about the irregularities that accompanied this case as well as the Jan. 6 investigation. The Biden White House decided that the concept of executive privilege didnât apply to Mr. Trump. Federal prosecutors, aided by a friendly judge in the District of Columbia, invoked the rarely employed âcrime fraud exceptionâ to obliterate attorney-client privilege in the case of Mr. Trump and Evan. Prosecutors harangued theoretical witnesses at Mar-a-Lagoâdown to maids and gardenersâdemanding multiple interviews, scoffing at their testimony and threatening to summon them to Washington to testify before a grand jury.
The worst government misconduct was alleged by a lawyer representing Walt Nauta, a personal aide to Mr. Trump. The lawyer had applied to be a judge on the D.C. Superior Court, and he said under oath that Mr. Bratt had implied that the lawyerâs prospects would improve if âhe would do the right thingâ and flip Mr. Nauta against Mr. Trump. In an August 2023 court filing, special counsel Jack Smith described the allegation as âimplausible, if not ludicrous.â But Mr. Bratt retired from the Justice Department this January, which likely ended whatever tepid effort the Office of Professional Responsibility was willing to make at uncovering the truth.
I caught some CNN criticism for referring to the documents case as a dispute about an overdue library book, but it was an apt parallel. The Presidential Records Act does a few thingsâit urges the archivist and former presidents to work together on deciding which documents would be deemed presidential records (sent to the National Archives) and which are personal (and kept by the former president). There is no criminal penalty for a violation of the Presidential Records Act, and a senior executive of the archives eventually testified that every modern president from Ronald Reagan on had turned over classified materials after leaving office. None, until Mr. Bratt had the reins, were subject to a âcriminal referralâ from a politicized archivist, and none were enforced by criminal investigative tools like grand-jury subpoenas and search warrants.
If you doubt this was all singular treatment, read the opinion in Judicial Watchâs 2012 lawsuit against the National Archives. The judge ruled that Bill Clintonâs 79 audiotapes of candid discussions about his presidency with a historian were considered personal by Mr. Clinton and thus protected from forced disclosure to the archives. It helped Mr. Clintonâs characterization that he kept all the tapes in a sock drawer, and the judge pointed out that the Presidential Records Act gives former presidents great power to make these personal and presidential determinations.
Which brings us to the resurfacing accusationsâborne out by newly disclosed emailsâthat the Justice Department was insistent on criminal escalation while the FBI was balking. The FBI, which is ultimately subordinate to the attorney general and Justice Department, apparently pushed back against Mr. Bratt, telling him that there was no probable cause for a crime (the requirement for a search warrant) and that since Evan was cooperating with them in good faith, they should continue to gather these documents through the typical process of cooperation, even with some give and take on deadlines or particular documents.
The FBI was pushed into escalation by a hell-bent prosecutor who saw his chance for gloryâa chance to prosecute a former president who was about to run again. (Mr. Bratt invoked his Fifth Amendment right against self-incrimination when deposed by a House committee in May 2025, and his lawyer audaciously accused the Trump administration of seeking âto weaponize the machinery of government against those they perceive as political enemies.â)
Even after Mr. Smith took control of the two investigations, the drumbeat of win-at-all-costs continued. The Justice Department fought the idea of a special master to manage the discovery process in the Mar-a-Lago case. I remember approaching Mr. Bratt after a hearing in which the jointly approved special master began to engage in the process (before the Justice Department appealed and shut it down with the 11th U.S. Circuit Court of Appeals) and asking what Mr. Trump and his team could do to satisfy the governmentâs need for documents and end the investigation. All I got was a smirk from an emboldened prosecutor, supported by a packed courtroom of friendly media and kindred spirit Andrew Weissmann of Mueller probe fame.
Some questions remain unanswered:
In the meeting at which Mr. Bratt allegedly threatened Mr. Nautaâs attorney over the judgeship, other prosecutors were in the room. Has anyone reviewed all of their internal communications to see what they had to say before, during and after that meeting?
Did Mr. Smithâs team shift the grand jury to Florida at the last minute solely because of a venue issue with the documents being retained in Florida or because his troops had regularly engaged in questionable conduct in the District of Columbia? Why, for instance, did one of his prosecutors ask Trump lawyer Tim Parlatore 48 questions she should have known would require him to invoke attorney-client privilege, and why did she suggest to the grand jury that the former president was ânot cooperatingâ by invoking the privilege?
What internal communications took place within the Justice Department before Mr. Smith demanded a speedy trial on the eve of the election, surely aware that thorny issues under the Classified Information Protection Act would typically slow the trial of a nonincarcerated defendant by a year or more? Did any voice of reason chime in to urge that Mr. Smith tell the court that prosecutors arenât on a political clock, are fully transparent with their discovery, and will try the case whenever the court wants them to?
As a special counsel, Mr. Smith answered to Attorney General Merrick Garland, who answered to President Biden. Mr. Garland has always insisted that Mr. Smith was unfettered by supervision. Did the attorney general really abrogate his duty to supervise Mr. Smithâs work?
In 27 years as a prosecutor and more than eight in private practice, I have never seen a case with so many irregularities, with such manifest political motivation, with so many open questions about singular treatment and poor judgment.
âThe truth will out,â Shakespeare observed in âThe Merchant of Venice.â If he was right, the recently disclosed battles over criminalizing noncriminal conduct may be the beginning of the process. Only once it is complete can the Justice Department regain its honor, and the FBI return to its crime-fighting roots.
Mr. Trusty is a partner at Ifrah Law and a former chief of the Justice Departmentâs Organized Crime and Gang Section.
