The Washington PostDemocracy Dies in Darkness

Trump’s fast-growing obstruction of justice problem

Former president Donald Trump speaks to supporters during a rally at the Iowa State Fairgrounds in Des Moines on Saturday. (Jabin Botsford/The Washington Post)
7 min

No matter how Donald Trump spun it — and continues to spin it — the fact is that special counsel Robert S. Mueller III’s Russia report didn’t exonerate him. In fact, Mueller made it quite clear that he had found extensive evidence of potential obstruction of justice. He compared the evidence to the legal standards for that crime and suggested that those standards might well have been satisfied in at least five instances. He simply decided he couldn’t personally accuse a sitting president of crimes.

Trump apparently didn’t learn from that. Because evidence of possible obstruction in the Mar-a-Lago documents case continues to build — and quickly.

And this time Trump, as a former president, is no longer protected from prosecution.

The latest comes via a scoop from The Washington Post’s Devlin Barrett and Josh Dawsey. They reported late Wednesday that one of Trump’s employees told investigators that Trump personally instructed them to move boxes of documents to his residence at Mar-a-Lago — even after the Justice Department had subpoenaed the classified documents Trump took from the White House. And the moving of the boxes was captured on security cameras.

The revelation would appear to shed light on how the government was able to obtain a warrant to search Mar-a-Lago in August. The government had told the judge who approved the warrant that it had “probable cause to believe that evidence of obstruction will be found.”

And it provides some of the most significant evidence to date of that potential obstruction.

We’ve known that the government at least suspected that the documents were moved. It alluded in an August court filing to Trump’s response to the subpoena being “incomplete.” And it said that “government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

After the two sides met in early June, a top Justice Department official sent a letter instructing the Trump team to protect the documents. Jay Bratt requested that the “room at Mar-a-Lago where the documents had been stored be secured” — with the key words perhaps being “had been” — “and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.”

This new evidence, crucially, points to the boxes having been moved at Trump’s direction.

But it’s hardly the only evidence of possible obstruction to emerge recently from the Mar-a-Lago documents case.

In addition to Trump failing to return all the documents when they were subpoenaed, his team has repeatedly claimed — as it turned out, falsely — that the requested documents had been returned.

In June, Trump lawyer Christina Bobb signed a sworn statement to the Justice Department saying that a “diligent search was conducted” and that “any and all responsive documents accompany this certification.” Bobb’s statement included a caveat that this was “true and correct to the best of my knowledge” — a phrasing that she reportedly insisted upon because she was uncertain and that could insulate her legally. But the Justice Department is surely interested in how Bobb arrived at this conclusion. (Bobb interviewed with the FBI this week.)

And that wasn’t the only example of such false assurances. The evidence suggests Trump and his team repeatedly sought to offer a version of this assurance — sometimes to law enforcement and at other times to other parties.

In September 2021, former deputy Trump White House counsel Pat Philbin said that former Trump chief of staff Mark Meadows had told him that none of the material Trump took was sensitive or classified and that Trump had only 12 boxes of news clippings, The Post reported last month. That turned out not to be true. But the claim was made to the National Archives rather than law enforcement. (Obstruction generally requires that the act have a “nexus” to an official legal proceeding.)

And last week, The Post reported that in February, Trump personally asked former Trump Organization lawyer Alex Cannon to say that all materials sought by the National Archives had been returned. Cannon refused because he, like Bobb, wasn’t sure the statement was true.

This representation, like Philbin’s, was intended for the National Archives, rather than law enforcement. But all of these — when combined with the aides’ reluctance to flatly vouch for Trump — could be used as evidence that Trump and his team were intentionally withholding such documents. Trump also reportedly packed the boxes that were returned to the National Archives in January, suggesting he might well have been familiar with the contents of what he still had when he reportedly asked Cannon to offer the assurance.

And if Trump kept pushing for these kinds of statements after learning that the Justice Department was investigating — such as when Bobb offered her statement — that would probably be even more compelling evidence. (The National Archives referred the case to the Justice Department on Feb. 9, but it’s not clear when Trump would have been aware DOJ was investigating.)

As Quinta Jurecic writes, the situation mirrors the Russia probe. According to the Mueller report, Trump pushed then-White House counsel Donald McGahn to falsely deny that Trump had pushed for Mueller’s firing. Mueller entertained the idea that this might not have been obstruction because the statement would have been intended for public consumption — rather than aimed at the investigation itself. But Mueller added that the evidence indicated Trump was “not focused solely on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it.”

Another recent development that could ultimately be part of an obstruction case arrived last week. The New York Times reported that Bratt in recent weeks has told Trump’s lawyers that the Justice Department believes Trump still hasn’t turned over all the documents. The Justice Department has hinted at this possibility in court filings, but Bratt’s call suggests it has substantial evidence that it is indeed the case. (I wrote at the time about how plausible that was, if past was precedent.)

What’s more, Trump reportedly resisted advice from one of his lawyers to allow for a forensic search for additional documents. It’s not clear which of Trump’s properties the proposed search was for.

And finally, there is Trump’s repeated insistence that the documents are his and he should be able to keep them. That could be understood as political bluster, but there’s evidence that he has also said so privately. (The Times reported this weekend that Trump even floated the idea of trading the documents he had for documents on the Russia investigation.)

To the extent that he believes this and acted on that belief — even as such records are unambiguously not his — it seems plausible that would suggest he would take significant actions to withhold them, even when legally required to turn them over.

It’s no secret that Trump, at the very least, walks a tightrope when it comes to potential obstruction of justice. It’s happened over and over again.

But these kinds of revelations should certainly give some pause to the many Republicans who reflexively vouched for Trump immediately after the Mar-a-Lago search. They did so knowing next to nothing about what Trump actually did. And now the government’s argument that Trump might have obstructed justice is coming into focus.