IN THE WEEKS after the FBI’s Mar-a-Lago raid, former President Donald Trump repeatedly made a simple-sounding but extraordinary ask: he wanted his lawyers to get “my documents” back from federal law enforcement.
Trump wasn’t merely referring to the alleged trove of attorney-client material that he insists was scooped up by the feds during the raid, two people familiar with the matter tell Rolling Stone. The ex-president has been demanding that his team find a way to recover “all” of the official documents that Trump has long referred to as “mine” — including the highly sensitive and top secret ones.
Sources close to Trump agree with outside legal experts that such a sweeping legal maneuver would be a long-shot, at best. “I hate to break it to the [former] president, but I do not think he is going to get all [the] top-secret documents back,” says one Trump adviser. “That ship has probably sailed.”
Further, several longtime Trump advisers say they want absolutely nothing to do with the now-infamous boxes of documents, fearing that any knowledge of them could invite an unwanted knock on the door from the feds. “Who would want any of that back? … If it is what they say it is, keep them the hell away,” a second adviser says.
Still, the former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.
This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.
“The motion he already filed is so absolutely terrible, that it’s hard to contemplate him filing something even more aggressive and even more unlikely to succeed,” says Ken White, a criminal defense attorney and former federal prosecutor.
“However,” White added, Trump is “basically trying to litigate the ultimate issue in the case, which is whether he had the right to possess and keep those things, even after he was asked to return them. It’s very unlikely that the court would accept that invitation to litigate that…He would have to prove that those things were illegally taken, and — based on what we know — that is going to be very difficult to prove…He’s going to have to make some very unusual legal arguments, which, if they’re anything like the motion that was just filed, is going to be a very uphill climb.”
In the suit filed on Monday seeking the appointment of a special master, Trump’s attorneys signaled that a 41(g) motion could be forthcoming. A special master should, they argued, should provide Trump’s attorneys with a more detailed inventory of the items taken from Mar-a-Lago so that “the President can properly evaluate and avail himself of the important protections of Rule 41.”
The Trump legal team also asked Judge Aileen Cannon to appoint a special master with a “fair-minded approach to providing defense counsel with information needed to support any Rule 41(g) filing.”
Judge Cannon has yet to rule on those requests but suggested she had some questions about it. In an order posted Tuesday afternoon, Cannon instructed Trump’s attorneys to respond to questions about whether she even had jurisdiction to offer the kind of relief they seek and whether granting their demands would affect Trump’s ongoing litigation in another case seeking to unseal the Justice Department’s evidence supporting the search warrant application.
The potential Rule 41(g) motion comes amidst a series of odd and, at times, seemingly self-defeating moves by Trump allies seeking to defend the former president’s conduct.
The former president’s office claimed recently that Trump had issued a so-called “standing order” to automatically declassify any materials taken from the West Wing in order to facilitate a flexible work schedule for the then-president. Thus far, no Trump administration veterans have come forward to attest to the existence of the legally questionable order. But it has prompted, as Rolling Stone reported last week, FBI agents to begin questioning former members of the Trump National Security Council about whether they have any recollection of such an order.
And in a May 10 letter, Justice Department officials revealed that Trump took 15 boxes of classified materials to his Mar-a-Lago residence with documents classified “up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program,” in addition to those documents seized by the FBI. Special Access Programs are among the most closely-held secrets in the federal government covering sensitive intelligence, operations, and technologies and are strictly limited to smaller numbers of individuals on a “need to know” basis.
The letter, posted by MAGA reporter John Solomon, appeared in an article by Solomon insinuating that President Biden had intervened in the efforts to retrieve the documents. But the correspondence — sent to Solomon, who Trump designated as his liaison with the National Archives — confirmed that Trump had taken Special Access Program materials — among the most sensitive secrets held by the government — to his private residence after leaving office.