For over 18 months the National Archives and the Justice Department tried to get back the documents that Donald Trump took from the White House upon leaving on Jan. 20.
Previous reports explained that his White House Counsel Pat Cipollone and his deputy Patrick Philbin were appointed to handle the transition of documents from the Trump administration to the incoming Joe Biden administration and ensure things got sent over to the National Archives to be cataloged. The lawyers impressed on then-chief of staff Mark Meadows that Trump must hand over the documents.
Both Cipollone and Philbin have spoken to the FBI about the scandal.
Last month, an email was revealed from the National Archives to Trump's representatives in May 2021 about the missing information.
“It is also our understanding that roughly two dozen boxes of original presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the administration that they need to be,” wrote Gary Stern, NARA's chief counsel.
Former White House lawyer Eric Herschmann, known for his colorful language during the House Select Committee hearings on Jan. 6, made it clear to Trump and his allies that they simply must hand over the information or it would result in more unwanted investigations and legal battles.
"I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” former Trump White House lawyer Eric Herschmann said in an email to Trump’s personal lawyers Evan Corcoran and John Rowley about Trump’s advisor turned “in-house counsel” Boris Epshteyn.
Epshteyn became subject to a search warrant last week and the FBI took his cell phone in relation to another matter involving fake electors. That case is already before a grand jury, according to witnesses that have been called.
After Herschmann's comments, Trump handed over 15 boxes of documents to the NARA, but left out many others, including classified information.
Herschmann was no longer working for Trump.
"The meeting between Mr. Herschmann and Mr. Trump has not been previously reported, and it adds to the picture of Mr. Trump’s interactions with several people about returning the documents in the months before the National Archives retrieved 15 boxes of material in January of this year," wrote Haberman. "When they went through the boxes, officials at the archives discovered that they contained nearly 200 individual classified documents."
The report also cited those briefed on discussions that right-wing Judicial Watch staffer Tom Fitton falsely told Trump that he could hang onto the documents as personal records.
The National Archives catalogs everything from the presidency and allows the president access to it for up to 12 years. It is typically then held in the former president's library managed by the National Archives. Trump never handed anything over to be cataloged in the first place.
Trump's lawyers will appear Tuesday in front of the appointed special master, Judge Raymond Dearie. They had hoped that Dearie's history with the FISA court in which he had two of his warrants overturned would have soured him on the entire FBI. CNN legal analyst Paul Callan noted that he was shocked Trump's lawyers were willing to go along with Dearie.