Former U.S. Attorney Barbara McQuade believes she may have identified the equivalent of "smoking gun" evidence after analyzing DOJ's late-night court filing which included 18-pages of exhibits.
"In a 36-page brief responding to Trump’s motion to appoint a special master to review the material seized by the FBI, the Justice Department explained that three of the classified documents were recovered from Trump’s private office, known as 'the 45 Office.' According to DOJ’s recent brief, classified documents in that office were 'commingled' in a desk drawer with three passports," McQuade wrote for The Daily Beast. "While the government did not disclose the name on the passports, Trump himself has complained that during the search, the FBI “stole” his three passports. It seems a safe bet that the passports DOJ recovered were Trump’s."
McQuade noted footnote six, which said, "The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless."
"In other words, the presence of the passports in the same drawer as the classified records tends to tie the unauthorized possession of these documents to Trump himself," she wrote. "A photo included with the filing shows the items that were recovered from his office. Among the classification markings on the documents are 'Top Secret,' meaning that the disclosure of the material could cause exceptionally grave damage to the national security of the United States."
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McQuade wasn't the only expert to focus on the wording in the footnote.
Berkeley Law Prof. Orin Kerr wrote, "In a footnote, DOJ explains that while they returned the passports voluntary, legally they could have kept them as evidence: They were in a desk drawer mixed together with illegally mishandled classified documents, so they could help prove who had mishandled the documents."
Attorney Ryan Goodman agreed the location is important.
"Active passports in same drawer as classified docs. Prosecutors could even note that at trial," Goodman wrote.
McQuade concluded that the location of the documents could suggest a "willful" violation of law.
"To the extent Trump may be inclined to pin all blame on his lawyer who signed a document in June attesting that all of the classified documents had been returned, the documents in his personal desk drawer are a problem for him. The former president would need to explain away the notion that he himself possessed these documents long after the government asked for their return, and despite personal assurances from Trump when Counterintelligence Section Chief Jay Bratt visited Mar-a-Lago in June to inspect the storage of documents," McQuade wrote. "The former president’s continued retention of the documents, even after the repeated requests to return them, suggests a willful violation of the law."
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