Justice Department filing on Mar-a-Lago documents puts Trump's lawyers in focus

Carrie Johnson

August 31, 2022 / 12:06 pm

caption: Security officers guard the entrance to the Paul G. Rogers Federal Building & Courthouse as the court holds a hearing to determine if the affidavit used by the FBI as justification for last week's search of Trump's Mar-a-Lago estate should be unsealed, at the U.S. District Courthouse for the Southern District of Florida in West Palm Beach on Aug. 18.

If recent history is a guide, one of the more dangerous places for a lawyer to be is by the side of former President Donald Trump.

Trump's longtime fixer Michael Cohen went to prison for tax evasion and false statements. His friend and personal lawyer Rudy Giuliani has been suspended from legal practice in New York for making "demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump."

Now, with more details emerging about the Justice Department probe of how top secret documents came to be stored at Trump's Florida resort, his legal representatives are once again under scrutiny.

"If you're a lawyer representing Donald Trump, the chances of you getting in trouble always seem to be present," said Stephen Saltzburg, a law professor at George Washington University and a former Justice Department official. "I think that all of the lawyers who have been involved or interacting with the archivist and the DOJ are at risk here."

What Trump's lawyers did and didn't do will be the focus of sustained attention from investigators and reporters as the investigation into obstruction of justice and mishandling of government secrets unfolds in the months to come.

Federal prosecutors said in court papers this week that a person acting as a custodian of records at the Mar-a-Lago resort signed a letter attesting that they had conducted a "diligent search" for documents and had not retained any copies in June 2022.

Only weeks later, prosecutors wrote, the FBI recovered "twice as many documents with classification markings as the 'diligent search' that the former President's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter."

In a passage of the new court filing that describes likely attempts to conceal documents and obstruct justice, the Justice Department seemed to lift some of the blame from one Trump attorney. Boxes of material had been moved out of a storage room at Mar-a-Lago, authorities wrote, but those boxes "formerly in the Storage Room were not returned prior to counsel's review" of the materials.

Former prosecutors who now defend white-collar criminal cases said it would be aggressive if the Justice Department were to prosecute Trump for lying to his attorneys, but that it's happened before.

They point to a 2004 case involving the New York company Computer Associates. Executives there misled lawyers conducting an internal investigation into fraud at the business, knowing those statements would be passed along to the Securities and Exchange Commission and the Justice Department.

"The lie does not need to be made to the government," wrote former Florida-based U.S. attorney Wilfredo Ferrer in a 2017 note to clients of his law firm, Holland & Knight.

"It really takes a highly unusual fact pattern to get a judge to tell a lawyer that he has to be a witness against his own client," said Kirby Behre, a partner at Miller Chevalier and a former federal prosecutor.

"The issue in these cases is always, did the client tell the lawyer the truth?" Behre added.

Behre said the situation could arise in a slightly different way — that if Trump winds up being prosecuted, he will need to disavow the letter his representatives provided the Justice Department in June 2022.