Exclusive: Special Counsel has questioned several officials about Donald Trump's handling of Russia probe papers.

Trump's conduct in that regard likely will play a role in any decision by prosecutors to charge Trump, say people close to the investigation.

Photo Credit... the Department of Justice.

On the eve of Donald Trump’s last day in office as President, Trump sent a memo to his attorney general, and also the directors of National Intelligence and the CIA, directing them to declassify thousands of pages of highly classified government papers pertaining to the FBI’s investigation into the Russian Federation’s covert intervention into the 2016 US presidential election to help elect Trump and defeat Hillary Clinton.

But Trump was stymied in his efforts to make the records public, leading the outgoing president to rage to aides that the documents would never see the light of day.

Now, sources close to Special Counsel Jack Smith’s investigation tell me that prosecutors have questioned at least three people about whether Trump’s frustrations may have been a motive in Trump taking away thousands of pages of presidential papers, a significant number of them classified, from the White House to Mar-A-Largo, in potential violation of federal law. One of these people was compelled to testify before a federal grand jury, the sources say.

The sources say that prosecutors appear to believe the episode may be central to determining Trump’s intent for his unauthorized removal from the White House of the papers.  Insight into the president’s frame of mind—his intent and motivation, are likely to be the foundational building blocks of any case that the special counsel considers seeking against Trump.

Towards that end, the Special Counsel has zeroed in on conversations and communications between the Justice Department, the White House counsel, then-White House Chief of Staff Mark Meadows, other then-senior White House aides, and Trump, in the final days—and even the final hours of his presidency.

In his January 19, 2021. memo, entitled “Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation”, Trump ordered these records “be declassified to the maximum extent possible.”

Trump and his allies had promised that these documents would decisively and conclusively corroborate his thus-far baseless claims and conspiracy theories that the FBI and U.S. intelligence agencies had spied on his 2016 presidential campaign with the intent to thwart his election, and failing that, to drive him from office on false evidence.

John Solomon, the conservative journalist close to Trump, claimed to have read all of the classified records, which he said were “a foot, a foot and a half stack tall of documents from the FBI and Justice Department”, the disclosure of which, Solomon promised, would include “bombshell allegations.”

But now in the final hours of Trump’s presidency, the FBI and Justice Department were dragging their feet. The FBI cited concerns about how compromising the identities of FBI informants could dissuade witnesses and human intelligence sources from cooperating with US law enforcement and intelligence agencies in the future. The Justice Department informed the White House that portions of the records violated the Privacy Act.

An irate Trump complained to top aides that once out of office, he would no longer have any power to make sure the secrets contained within the thousands of pages of records would ever be known.

The sources familiar with some aspects of the special counsel’s investigation further disclosed to me that prosecutors sought information regarding the following issues:   the witnesses were asked about any conversations they personally had with then-president Trump or any of their White House colleagues about the Russia papers; they were asked about conversations between senior Justice Department officials and attorneys with the White House counsel’s office, including two former senior lawyers in the office, John Eisenberg and Pat Philbin, regarding Trump’s presidential order to declassify the Russia papers; and they also were asked about the circumstances surrounding a memo written by Trump’s then Chief of Staff, Mark Meadows, the day following Trump’s declassification order, in which Meadows appeared to reverse course and related that the papers would not be released before the concerns of other agencies regarding the Privacy Act were fully assuaged.

“It was very clear from what they asked that their emphasis was on Trump and Meadows,” one person said.

Miriam Baer, a former prosecutor for the Southern District of New York, who in present day, is a professor and Vice Dean of Brooklyn Law School, told me that it would be logical for the special counsel to focus his attention on Meadows:

 “It’s no surprise they are looking at Meadows. They are probably looking to him as a potential cooperator for the same reason that when you pursue a corporate prosecution, you would want to have a company’s CFO [chief financial officer] as a cooperator.  A CFO, in charge of a company’s finances, has a front row seat to what the people in charge have said and done.” Meadows, as a presidential chief of staff, Baer points out, played a similar role for Trump:  “That’s why you want Mark Meadows – as information flows inside and out of the White House, he is one of the major choke-points, and if you need someone to explain what happened and who knew what, that’s exactly the person you want to sign up as a cooperating witness, assuming they also are willing to admit their own role in the wrongdoing.”

Paul Pelletier, a former Acting Chief of the Justice Department's Criminal Division's Fraud Section, told me that the new information in this story-- that prosecutors appear to be focusing on  "the intent and purpose of Trump removing documents" from the White House to take Mar-A-Largo, and that Trump may have been engaging in an "extraction of what he calls Russia hoax documents", appears to indicate that prosecutors are likely moving closer to making charging decisions regarding Trump and others.

The federal criminal investigation of Trump is the result of the discovery by the National Archives last year that Trump had taken fifteen boxes of records, many of them containing heavily classified papers, to Mara-A-Largo after he left the White House, without authorization to do so.  When Trump continued to refuse to relinquish the records to the Archives, the Justice Department became involved as well in seeking their return.  As a result of Trump’s continued recalcitrance, on August 8 of last year, the FBI executed a search warrant on Mar-a-Largo. FBI agents seized thousands of pages of records, a significant number of which were highly classified, including some bearing markings of classifications as high as TS/SCI, or top secret/sensitive compartmentalized information. The Justice Department’s ongoing investigation is not just investigating Trump’s unauthorized removal of the papers, but also whether the ex-president obstructed justice by lying to investigators about the records, or encouraging other individuals to do the same.

On Nov. 18, Attorney General Merrick Garland appointed a special counsel, Jack Smith, to take over two separate criminal investigations of Trump: one examining the role by Trump in the run-up to the Jan. 6th attack on the Capitol, the other a probe of Trump’s handling of classified records.

The importance to Trump of the Russian document issue is underscored in that on Jan. 20, 2021—Trump’s last day in office and the day Joseph Biden was inaugurated as President- Trump and his then-chief of staff, Mark Meadows, were still working to secure the public release of the papers.

According to a memo written by Meadows, referring to the earlier White House memo from just the day prior, Trump had already “declassified certain materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation.”

But Meadows then also noted the objection of other agencies to the release of some records citing concerns over their potential to violate the Privacy Act.

Meadows claimed that the president still had the right to make public the records, noting: “We understand that the Office of Legal Counsel has advised that the Privacy Act does not apply to the White House and thus would not apply to the White House and thus would not apply to any disclosure of the documents by the White House.”

Despite that being the case, Meadows wrote that the White House would strictly adhere to the Privacy Act anyway:  “Accordingly I am returning the bulk of the... declassified documents to the Department of Justice  (including all that appear to have the potential to raise privacy concerns) with the instruction that the Department must expeditiously conduct a privacy act review, under the standards that the Department of Justice would normally apply, redact material appropriately, and release the remaining material with redactions applied.”

But the president’s former aide, Kash Patel (who has served Trump in a variety of capacities, the last of which was chief of staff to Trump’s Acting Secretary of Defense) is, like John Solomon, one of the few people who have read in their entirety the set of the files Trump wanted made public. In an interview with Breitbart last May 5, Patel said he did not want to discuss the contents of any specific documents, citing concerns that  people on “the left” would seize any opportunity to claim he had disclosed “classified” material. 

But Patel then volunteered: “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance—anything the president felt [the public] had a right to know is in there and more.”

That Patel was granted access to the Russia papers is confirmed in a June 19, 2022 letter that Trump sent to the then Acting Archivist of the United States, Debra Steidel Wall, to “designate two individuals - Kash Patel and John Solomon - as my representatives for access to Presidential records of my administration, pursuant to the Presidential Records Act.”

Patel was subpoenaed late last year by a federal grand jury to testify about Trump’s removal of other classified documents from the White House to Mar-A-Largo—an investigation recently taken over by the special counsel. Yet, Patel opted repeatedly to invoke the Fifth Amendment during his initial grand jury appearance. The Justice Department then granted immunity to Patel to compel his testimony.  Under so called “limited-use” immunity, Patel was thus required to answer all questions put to him by prosecutors and grand jurors. In exchange, prosecutors would forego charging him for any potential crime based on what they learned from his testimony, as long as it was truthful.

Patel’s testimony was considered crucial by to their understanding of why Trump took so many classified documents to his estate, and whether Trump obstructed justice by concealing having done so, even past the point when the National Archives, the FBI, and Justice Department began a criminal investigation into his conduct.

Aside from Patel’s comments that Trump took records about Russia from the White House, is of course, the confusing and elliptical language in Meadows’ memo, in which he didn’t say that all of the DOJ and FBI papers then in Trump’s possession weren’t returned to the Justice Department, but rather only the “bulk” of the records were returned.

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Muray Waas is an independent journalist whose investigative reporting about the Trump presidency and its aftermath, and other subjects has appeared in the New York Review of Books, the New York Times, the New Yorker, the Guardian, New York magazine, and other publications. His journalism on national security issues and covert U.S. foreign policy has been both a finalist for the Pulitzer Prize and winner of the Goldsmith Prize. His investigation of the U.S. health insurance industry won the Barlett & Steele Prize for Business Investigative Reporting.

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