'Lawyers are giggling': Legal experts scratch their heads at Trump’s 'very strange' new DOJ lawsuit

Former President Donald Trump on Monday filed a lawsuit demanding the return of documents seized by the FBI from Mar-a-Lago, arguing that the feds did not have sufficient reason for the raid even though they found 300 classified documents at Trump's home, according to The New York Times.

The FBI recovered more than 300 classified documents from Mar-a-Lago in three batches over the last eight months, according to the report. Trump only turned over 150 of the documents to the National Archives in January, prompting the Justice Department to investigate whether he withheld some materials. The boxes included documents from the CIA, National Security Agency, and FBI across a "variety of topics of national security interest," according to the report.

Trump rifled through the boxes of documents late last year as officials were attempting to recover them, sources told the outlet. Surveillance footage obtained by the DOJ also showed people "moving boxes in and other, and in some cases, appearing to change the containers some documents were held in," according to the report. Trump resisted demands to return the documents, describing them as "mine," sources told the Times. Earlier this year, Trump attorney Christina Bobb signed a declaration that all classified material had been returned, which ultimately led to the FBI's unprecedented raid on Trump's residence to recover documents that he withheld after the first three recovery attempts.

Andrew Weissmann, a former federal prosecutor who served on special counsel Bob Mueller's team, called the report "incredibly damning" for Trump, noting that the report suggests the former president personally reviewed the documents to decide what to return.

"If you are a prosecutor, you really look for evidence of what the former president did personally," he told MSNBC. "If the DOJ either knows about or is soon to interview those people who were sources for the New York Times, they're going to have a substantial criminal case."

Despite the mounting evidence that Trump's actions may have run afoul of federal laws governing classified materials and document preservation, Trump filed a lawsuit on Monday arguing that the feds have "failed to legitimize its historic decision" to raid his home. The lawsuit called for a court to appoint a special master, a third party that is typically a former judge, to review whether some materials may be protected by attorney-client privilege or other guidelines. The lawsuit seeks the return of documents the FBI seized in the raid.

"This Mar-a-Lago Break-In, Search, and Seizure was illegal and unconstitutional, and we are taking all actions necessary to get the documents back, which we would have given to them without the necessity of the despicable raid of my home, so that I can give them to the National Archives until they are required for the future Donald J. Trump Presidential Library and Museum," Trump said in a statement on Monday.

The lawsuit argues that the raid was politically motivated, claiming that Trump is the "clear frontrunner" in the 2024 election "should he decide to run." The lawsuit accuses the feds of violating Trump's Fourth Amendment rights against unreasonable search and seizure and asks that the court block "further review of seized material" until they are reviewed by a special master.

The DOJ said it would file a response in court.

"The Aug. 8 search warrant at Mar-a-Lago was authorized by a federal court upon the required finding of probable cause," DOJ spokesman Anthony Coley told CNBC.

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Weissmann, the former federal prosecutor, said Trump's filing has a "fatal flaw" because it doesn't reckon with the fact that the documents legally belong to the National Archives, not the president.

"Nothing needs to be sifted because none of the documents are actually the former president's. These all belong, whether classified or not classified, to the national archives," he told MSNBC. He went on to describe the court filing as a "press release masquerading (tenuously) as a legal brief."

Orin Kerr, a conservative law professor at UC Berkeley, noted that "lawyers are giggling at Trump's motion, and how poorly it was done."

"Reading Trump legal filings you imagine a lawyer who doesn't quite know what he's doing and then Trump taking a Sharpie to the draft and insisting on passages that read like tweets," he tweeted.

Harvard Law Professor Laurence Tribe described the filing as "very strange," questioning why it took Trump two weeks to call for the intervention.

"It's sort of too late to ask for some new special master," he told MSNBC.

Tribe argued that any other citizen who took classified documents home "would be prosecuted under the Espionage Act."

"So he is sort of asking Merrick Garland to prosecute him," Tribe said. "If he's being treated not as president but as a citizen, he's got to be indicted," he added. "Otherwise, the rule of law just doesn't mean anything."

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