Trump Seeks to Have Intelligence Agencies Take Over Documents Inquiry
Lawyers for former President Donald J. Trump asked lawmakers on Wednesday to place the intelligence community in charge of assessing Mr. Trump’s handling of the classified documents found in his possession after leaving office, saying Congress should strip the Justice Department of authority to run the investigation.
The 10-page letter to members of the House Permanent Select Committee on Intelligence has little chance of leading to enactment of the legislation it seeks given that Democrats are in control of the Senate and the White House. But it seemed to serve a second function as well: It read like a trial brief of arguments that Mr. Trump could raise in his defense should the inquiry into his handling of classified materials being conducted by the special counsel Jack Smith result in criminal charges.
“A legislative solution by Congress is required to prevent the D.O.J. from continuing to conduct ham-handed criminal investigations of matters that are inherently not criminal,” said the letter, written by Timothy C. Parlatore, one of Mr. Trump’s lawyers.
The letter proposed that the Justice Department “should be ordered to stand down,” allowing the intelligence community to “conduct an appropriate investigation and provide a full report to this committee.”
Neither Representative Michael R. Turner, Republican of Ohio and the chairman of the Intelligence Committee, to whom the letter was addressed, nor Representative Jim Himes of Connecticut, the top Democrat on the panel, immediately responded to a request for comment.
The move was the second time in recent weeks lawyers for the former president have turned to Congress to press their agenda.
In February, another of Mr. Trump’s lawyers, Joseph Tacopina, wrote to Representative Jim Jordan, Republican of Ohio and the chairman of the Judiciary Committee, calling on Congress to investigate Alvin L. Bragg, the Manhattan district attorney who was preparing to charge Mr. Trump with falsifying business records. Mr. Tacopina accused Mr. Bragg of what he called an “egregious abuse of power,” according to a copy of the letter obtained by The New York Times.
Mr. Jordan and other Republican committee chairmen promptly began an investigation, demanded documents and testimony from Mr. Bragg, issued a subpoena to one of his former top prosecutors and held a hearing in New York to accuse Mr. Bragg of turning a blind eye to street crime in New York.
The oversight actions have not prevented Mr. Bragg from charging Mr. Trump, but his supporters in Congress rallied to the former president’s side to conduct a pressure campaign against the Manhattan prosecutor.
The investigation into Mr. Trump’s handling of sensitive materials began last year and has resulted in both a grand jury subpoena being issued for the return of all classified materials in his possession and a highly publicized search of Mar-a-Lago, his private club and residence in Florida.
More recently, a federal judge in Washington set aside attorney-client privilege and ordered one of Mr. Trump’s lawyers to testify in front of a grand jury in the documents case, finding that “the government had made a prima facie showing that the former president committed criminal violations.”
Lawyers for President Biden alerted the Justice Department early this year that they had found classified documents both at his residence in Delaware and at an office he maintained after his term as vice president. That prompted Attorney General Merrick B. Garland to appoint another special counsel, Robert K. Hur, to look into the matter.
Around the same time, aides to former Vice President Mike Pence told the F.B.I. that they had discovered a “small number of documents” with classified markings at his home in Indiana.
The proposal by Mr. Trump’s lawyers calls for having each of those inquiries taken from the hands of prosecutors and placed in those of intelligence professionals. It was framed in the letter as a way to standardize the handling of classified materials for high elected officials and to avoid what they described as “politically infected” investigations.
But were it to be accepted, the proposal would also have the more immediate and personally advantageous effect of removing the threat of an indictment against Mr. Trump at a moment when the special counsel’s office appears to be moving toward making a decision about whether to bring charges.
Previewing what sounded like a defense case, Mr. Trump’s lawyers claimed in the letter that “institutional processes, rather than intentional decisions by President Trump,” resulted in classified material leaving the White House.
“The White House staff simply swept all documents from the president’s desk and other areas into boxes, where they have resided ever since,” Mr. Parlatore wrote.
Last winter, after extended negotiations with the National Archives, Mr. Trump finally returned an initial trove of 15 boxes of documents, which were later found to contain classified material. That discovery prompted the archives to alert the Justice Department, which in May issued a subpoena for all classified material in Mr. Trump’s possession.
In their letter, Mr. Trump’s lawyers said the 15 boxes contained “all manner of documents from the White House,” including newspapers, magazines, notes, letters and daily schedules. The lawyers wrote that they believed the “vast majority” of classified documents were “briefings for phone calls with foreign leaders that were located near the schedule for those calls.”
The account provided by Mr. Parlatore in his letter differs in a number of respects from other accounts of how the case unfolded.
While the letter at times suggests there was not a review by intelligence officials, the Office of the Director of National Intelligence did conduct a classification review, although that review was done in coordination with Justice Department lawyers.
Last August, in a letter to members of Congress, Avril D. Haines, the director of national intelligence, announced that her office was working with the Justice Department to conduct a review of the documents. Over the subsequent months, intelligence officials pored over the materials to determine their classification and level of sensitivity. By the start of the year, the initial review was largely complete, though an assessment of the potential damage done by the removal of the documents to Mar-a-Lago had not been completed, officials said.
In June, other lawyers for Mr. Trump drafted a sworn statement saying that a “diligent search” had been conducted and that to the best of their understanding, they had turned over “any and all” remaining classified material from the White House.
In his letter, Mr. Parlatore characterized the sworn statement differently, saying that “all responsive documents” found during that search had been returned to the government — not that the search had “turned up all possible materials.”
Two months after the sworn statement, when the F.B.I. showed up at Mar-a-Lago with a search warrant, agents discovered another trove of about 100 classified documents, some bearing highly sensitive designations.
At least two more classified documents were discovered around Thanksgiving last year at a federally run storage site in West Palm Beach, Fla. The search for those documents was conducted during sealed court proceedings by experts under Mr. Parlatore’s supervision.
Legislation of the sort proposed by Mr. Trump’s lawyers is already the subject of discussions on Capitol Hill.
Representative James R. Comer, Republican of Kentucky and the chairman of the House Oversight Committee, has said that he is considering a law to change procedures about document retention for presidents and vice presidents. Mr. Comer has said he would take up the issue after he completes an investigation into Mr. Biden’s handling of classified documents when he was vice president.
Julian E. Barnes contributed reporting.
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