Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

As I’ve written in the past, there are several different theories about how DOJ is applying the obstruction statute, 18 USC 1519, in its investigation into Trump’s stolen documents. Three possibilities have been floated:

  1. DOJ is investigating Trump for obstructing the investigation it opened in February of Trump’s theft of classified documents by moving documents at Mar-a-Lago around to hide them from DOJ and his own lawyers
  2. DOJ is investigating Trump for obstructing prior investigations and current January 6 investigations (both the January 6 Committee and DOJ’s own investigation) by trying to keep incriminating Presidential Records out of the Archives, either by destroying documents or hiding them
  3. DOJ is investigating Trump for obstructing the Archives’ ability to fulfill the requirements of the Presidential Records Act

The differences are subtle, but important for assessing how significant Trump’s legal exposure on this count might be.

Two details revealed yesterday seem to rule out theory 3, that DOJ is investigating Trump for obstructing the Archives’ work.

The search authorization tied to obstruction in the warrant was vague, permitting FBI to collect evidence of the knowing alteration, destruction, or concealment of any Presidential or classified documents.

Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

That left open the possibility DOJ was investigating Trump’s obstruction of the Archives generally.

But the cover page unsealed yesterday described obstruction to apply to a federal investigation.

Also, at the hearing on unsealing the affidavit in Palm Beach, DOJ’s head of counterintelligence Jay Bratt raised Trump’s suspected obstruction to highlight the danger that unsealing the warrant affidavit would pose a risk to witnesses.

A Justice Department lawyer said during the hearing that the probable cause affidavit used to get a warrant described how prosecutors might find “evidence of obstruction” on the grounds of the Florida property — a possible crime that the search warrant itself revealed was under investigation. “In this case, the court has found probable cause there’s a violation of one of the obstruction statutes, and that evidence of obstruction would be found at Mar-a-Lago” said Jay Bratt, who heads the Justice Department’s counterintelligence section. Obstruction of justice was one of the three statutes listed on the search warrant for Mar-a-Lago, which was unsealed last week, and Reinhart said during the hearing Thursday that he “found there is probable cause” that the statutes had been violated. Bratt made the comments about obstruction being investigated while he was trying to highlight DOJ’s fear that future witnesses may not be willing to provide information if too much was to come out about the investigation so far.

Both these details — the description on the warrant cover page and Bratt’s own comments — seem to make it clear that DOJ is investigating obstruction of an investigation, not just the Archives’ ordinary work.

Bratt’s comments strongly suggest that the obstruction prong is about efforts to obstruct this investigation.

Three things still suggest it may be broader than that, though.

First, as I’ve noted, the earliest reporting on the criminal referral described two things that would be criminal: retaining classified documents and ripping, burning, or flushing them.

The National Archives and Records Administration has asked the Justice Department to examine Donald Trump’s handling of White House records, sparking discussions among federal law enforcement officials about whether they should investigate the former president for a possible crime, according to two people familiar with the matter.

The referral from the National Archives came amid recent revelations that officials recovered 15 boxes of materials from the former president’s Mar-a-Lago residence in Florida that were not handed back in to the government as they should have been, and that Trump had turned over other White House records that had been torn up. Archives officials suspected Trump had possibly violated laws concerning the handling of government documents — including those that might be considered classified — and reached out to the Justice Department, the people familiar with the matter said.


Trump’s years-long defiance of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties, has long raised concerns among historians and legal observers. His penchant for ripping up official documents was first reported by Politico in 2018, but it has drawn new scrutiny in recent weeks because of a House select committee’s investigation of the Jan. 6, 2021, attack on the U.S. Capitol.

The Washington Post reported late last month that some of the White House records the National Archives turned over to the committee appeared to have been torn apart and then taped back together. The Post later found — and the Archives confirmed — that officials had recovered 15 boxes of presidential records from Mar-a-Lago. [my emphasis]

This reporting suggests that Trump’s efforts to destroy documents — including documents pertinent to investigations of January 6 that started the day of the attack — were part of the Archives’ referral from the start, before Trump had an opportunity to start obstructing this investigation.

With Trump, he’s always already obstructing.

In that case, the initial referral would have implicated obstruction of other investigations. And it might not be limited to those ripped up documents provided to the January 6 Committee.

As I laid out, there are multiple known examples where Trump or his aides or his lawyers destroyed or withheld evidence from then-ongoing investigations. So if DOJ were investigating under theory 2, it might provide a way to reopen those earlier investigations under extended statutes of limitation tied to his theft of documents.

Then there are the two receipts, just one of which (if you can believe Fox News) is known to record the seizure of attorney-client privileged materials. There are five boxes plus some other documents on that receipt. It may be that the only distinguisher is attorney-client materials, but if it’s more than that, five boxes is far too much material to relate exclusively to this investigation.

Finally, there’s the statute used, 18 USC 1519 instead of 18 USC 1505, which includes obstructing committee proceedings, or 18 USC 1512, which includes witness tampering and (as applied in the January 6 context) otherwise obstructing a proceeding. A recent SCOTUS decision, Yates v. US, limits the application of 1519 (the one named in the warrant) to evidence, not fish. It squarely applies to things like Presidential Records. But because of that recent ruling, DOJ is not going to try to stretch the bounds of 1519 with the former President. If they were ever to charge Trump with witness tampering — the concern Bratt raised — or more amorphous kinds of obstruction, it would be under 18 USC 1512.

And thus far at least, the obstruction of this current investigation that has been publicly reported has been limited to lying and hiding. Hiding the documents by moving them out of the closet DOJ was about to inspect absolutely qualifies as “concealing” Presidential Records and the lying served that purpose as well. But the FBI was authorized to seize documents more broadly than that, including those that were altered or destroyed (as ripping, flushing, burning, or eating would do). The documents we know Trump has ripped, flushed, burned or eaten were evidence in other investigations, not (thus far at least) this one.

That said, the way in which DOJ refers to 18 USC 2071 in this warrant — removing or concealing records — might suggest DOJ is focusing on that, the concealment of records.

It seems increasingly likely DOJ is investigating Trump’s obstruction of investigations (rather than the normal functions of the Archives). It’s just not clear, yet, which investigations are included in the scope.

Update: I realized something as I was revising this post on the likely contents of the Trump search warrant affidavit: Trump originally withheld the SharpieGate map in which he lied about the path of Hurricane Dorian. That in and of itself would be proof Trump altered or concealed evidence in an investigation, because the Commerce Department Inspector General did a report on the pressure to uphold Trump’s false claims.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

75 replies
  1. viget says:

    I’m guessing definitely J6, the current documents investigation, and possibly a pardons-for-favors (not just bribery) investigation. I say that because of the keen interest of the DOJ in the as yet unseen Stone pardon, even marking it as return #1.

    Which makes me think some of the other documents in items 1-9, classified or not, might be other unseen pardons, or draft pardons.

    As such, they would also be presidential records and also subject to 2071 due to being concealed from the Archives.

    If I’m right, that may also implicate the son-in-law as the snitch, since from J6 testimony we know he was mostly interested in working on pardons at that time.

    • Spank Flaps says:

      The identity of the witness/informant is just wild speculation. We may never know for sure, because of the risk of MAGA retaliation.
      I thought it could be the Secret Service or a MAL staffer, genuinely concerned about nation security – because Trump is way over the line, taking the piss.
      However Kushner might have ratted, in an attempt to save his own skin. He was always deeply resentful about his own father going to jail, and worried sick about getting jailed himself.

      • timbo says:

        That definitely seems like a hyperbolic thing to say. Or is the Executive Branch now no longer interested in helping the Congress try to draft good laws based on investigations?

        • Yorkville Kangaroo says:

          bmaz is correct.

          The J6C may be unveiling important facts, particularly in respect of public consumption (read ‘political’), the DoJ probably has most of what they do AND some.

          The only thing the DoJ wants is anything they don;t know about or can assist them in substantiating what they already have.

    • Dutch Louis says:

      IANAL, but is not an other possibility that the FBI had wiretaps on the phones of certain people involved, rattled the cage with the visit in June and then collected in the aftermath the (final) information they needed for the search warrant?

        • Dutch Louis says:

          If it is nonsense, I retract my question right away. I know something about Dutch criminal law, but not about your laws, although I’m learning a lot here with a lot of pleasure. But my idea was that if for instance Patel would be the suspect in a criminal investigation and if his phone were under a wiretap, it might be that he had been talking with one or more people about the visit of the FBI at Mar a Lago and his knowledge about the documents. So yes, a double if, and if it was a dumb question at least I’ve learned something again.

        • bmaz says:

          Fair. My hesitance is that a lot of folks, not as much here as twitter, but still a lot, think FISA involved.

        • Yorkville Kangaroo says:

          My understanding (and I’m sure Dr Maz will clear it up) is that to get a wire tap you ALSO have to have probable cause. If you already have probable cause that The Donald is holding onto documents illegally then you don’t need a wire tap to get more information to prove he does. In fact, getting one might muddy the waters some more as the DoJ would have to weed out other extraneous information they might hear about in the taps whose existence might prove politically difficult (i.e. overreach).

  2. Ravenclaw says:

    It would seem difficult to prove destruction of documents beyond a reasonable doubt (absent the bits and pieces). Crucial evidence relating to 1/6, the Zelensky call and other serious crimes may be gone forever. We’d “know” he stole and ate/flushed them but never convince his followers. But nailing him on stealing and concealing those that remain would be far better than nothing. And I still think there may be reasons why he retained some documents that are themselves evidence of crimes/conspiracies.

    • timbo says:

      On the other hand, that evidence, if any, might not be gone at all. And there might be considerable evidence that Twitler and various Twisslerings conspired to illegally obtain personal things of value by using government positions to do so.

    • Yorkville Kangaroo says:

      Many (most in white collar?) people go to jail not based on their ultimate crimes but on lesser but more easily proven ones.

  3. punaise says:

    Charles P Pierce:

    The Press’s Fealty to Both-Sidesism Means It Can’t Stop Falling for Trump’s B.S.

    They’ve done it again by arguing in support of releasing the FBI’s search affidavit.

    To give credence, even hypothetically, to the lying lies that are habitually told by this crew of lying liars is to give them a victory in the public sphere that they have shown repeatedly that they do not deserve. The former president and his backers should not be trusted as far as I can throw the Mar-A-Lago pool shed, and they certainly should not have their lies and fantasies gussied up as the legitimate other side of the question.

    • zeke says:

      Not an original thought I’m sure, but I’m guessing that the only reason he wants the affidavit released is to figure out who the rat is at MAL. I can’t imagine he cares about the rest.

  4. NeoGeoHa says:

    Meuller Investigation (Meuller stated TFG could be charged with obstruction), Impeachment 1 (call transcript), Fake Electors scheme, J6, Retrieval of Docs, and on and on and on… Pick a winner and go with that!

  5. ernesto1581 says:

    re: Yates v US.

    the ruling seems to hinge on “noscitur a sociis” & “ejusdem generis’ — “known by associates” & “of the same kind” — immediately modifying “tangible object” in sec. 1519. and therefore, hard drives, ledgers, calendars and the like, but not fish.
    I’m curious why you think applying this finding to MAL physical records, foolscap, regurgitated post-its, and stefanik’s fished out of the toilet would be stretching it.

    but where are the fish? there ought to be fish…

    • viget says:

      As a follow on to this, is there no obstruction of justice statute that pertains to the destruction of evidence that isn’t documentary in nature? Such as physical evidence from a drug bust or gun seizure?????

    • Mycotropic says:

      I’m confused by the fish references, “A recent SCOTUS decision, Yates v. US, limits the application of 1519 (the one named in the warrant) to evidence, not fish.”
      Is that fish as in “a fishing expedition”?

        • earlofhuntingdon says:

          Fish are not documents or records. But tossing away undersized fish, physical evidence that they were wrongfully caught, after being told by federal inspectors to retain them, does not amount to destruction of the records contemplated in the statute charged in that case.

          The decision suggests a problem with the charge and/or the investigatory choice not to take photos and/or samples of physical evidence that would prove the illegality, but to leave the evidence under the control of the perp until the boat reached port.

    • emptywheel says:

      I don’t think it’s stretching it at all. “It squarely applies to things like Presidential Records.”

      But DOJ is going to be very cautious about limiting it to Presidential and other records, IMO.

      So if we’re talking witness tampering or some of the other things Trump appears to be doing IN THIS INVESTIGATION, then it would be for more than 1519. It’d get into 1512.

  6. Savage Librarian says:

    Did you recently alter the color of the Stone/French President icon on your graph, Marcy? Or is that my imagination?

    • Savage Librarian says:

      Also, because Rhona Graff and Madeleine Westerhout are on the Tom Barrack witness list, it seems like Trump might have either destroyed or squirreled away information related to that case, as well as obstruction related to several other circumstances that are more familiar to us.

    • emptywheel says:

      I did. I wanted to give it a color of its own bc we don’t really know whether it could be classified, proof of obstruction, or just another record.

  7. wetzel says:

    In that excerpt, the Washington Post uses the word ‘penchant’, as in Trump’s “penchant for ripping up official documents”. This functions as an enthymeme in that it communicates a hidden premise. Trump’s destruction of documents is not motivated by conscious reasoning. He would not be culpable in the same way as you or I would be. It’s a habit he has, like a fetish.

    Maybe the Washington Post has their own anal stage hang-ups about documents in the toilet, and so they aren’t willing to project their own consciousness into Trump’s mind. It’s gross. Maybe they feel that if they were to use phrasing such as ‘pattern of behavior’ instead of ‘penchant’ that would invite the reader to prejudge Trump’s criminal culpability.

    There is a defense mechanism, protective against Trump’s fascist intentionality, I think, which is widespread in the media and among Democrats. It leads to a kind of inverse sublimation, the myth of the animistic Trump beast, operating at the level of base desires. We do not want to stare into the abyss of Trump’s malevalent genius.

    • Tom-1812 says:

      I think it’s more likely someone came across the word “penchant” and wanted to use it in a sentence, just like I’ll be looking for opportunities to drop the words “enthymeme” and “anosmic” (the adjective form of “anosmia”) into my everyday conversation.

    • earlofhuntingdon says:

      “Penchant” is a distraction, meant to characterize outrageous behavior as normal and the writer as savvy. The WaPo should castigate the behavior, not normalize it, but claims to be concerned that doing so might make it appear partisan – a worse sin, apparently, than TFG’s outrageous and illegal conduct.

      The WaPo, like the NYT, is really hiding that its owners and principal backers fundamentally agree with most things Republican, and that backing a former president, no matter how outrageous or illegal his conduct, is what a principled political party should do. The GOP gave up principles decades ago.

      • vvv says:

        FWIW, I take that use of penchant as meaning an amusing eccentricity, often meant sarcastically, as in “she has a penchant for walking out without paying”.

        So yeah, it downplays the act on first glance, but is usually critical of some bad thing.

    • Yorkville Kangaroo says:

      That’s what Mulvaney’s trying to run with:

      “Donald Trump’s ex-aide Mick Mulvaney claimed the former president tore “documents into half” during his time in office, days after the FBI allegedly recovered classified documents at the Republican leader’s Mar-a-Lago residence.

      “I have said this before, yes I saw the president rip documents in half,” the former chief of staff told CNN.

      “Not confidential documents, but just draft documents,” Mr Mulvaney added.

      “You’re not supposed to do that, but there’s a way to fix it. Which is you just find the pieces and you just tape them together.”

      ‘Mr Mulvaney went on to give an example by saying that he used to “rip up documents in the private sector all the time”.

      “It’s not an indication of ill intent,” he stressed.”

      Of course, it IS an indication of illegal activity!

  8. Terrapin says:

    And what about the obstruction during the Mueller investigation? William Barr might have put the kibosh on it, but Trump was still POTUS then. Merrick Garland doesn’t have to follow Barr’s decision, especially since Trump is no longer in office. Mueller seemed convinced Trump obstructed his investigation even if he did not make a prosecution recommendation since Trump as POTUS couldn’t be indicted under DOJ policy.

    • ScottMI says:

      I think Garland is going to stick to cases that haven’t been before DOJ previously. Half the country may view Barr’s announcement that Trump couldn’t be prosecuted as political meddling, but the other half is going to think the same of Garland if he reverses that decision. That’s not actually going to help restore DOJ’s reputation as an apolitical entity. I think it’s more likely that Garland will allow the impending un/less-redacted release of the OLC memo that Barr requested to convict him in the court of public opinion.

    • emptywheel says:

      Billy Barr declined prosecution of Trump for 18 USC 1512c2.

      The obstruction statute at issue here is 18 USC 1519.

      That could or could not be significant, but I’ll reserve my thoughts for now.

      • Yorkville Kangaroo says:

        Whilst I doubt that Garland will choose to relitigate the Mueller investigation since it would immediately tie this into it which would be anathema to the MAGA jugheads out there and toxify this investigation further, I certainly would dearly love to see it concluded in the manner of any other criminal investigation into any other person other than a ‘sitting President’.

  9. Robin says:

    I feel like there is at least one investigation (Macron Leaks) given the itemization of a Roger Stone pardon in the Macron box. The pardon of it was promised to conceal Trump’s involvement could also be obstruction. The other reason to confiscate documents might relate to Tom Barrack’s upcoming trial. Tom is a good buddy and Trump probably had info related to Tom Barracks dealings with Saudis and the sale of nuclear tech. Trump seems the type to hold onto that for leverage. Tom has a lot more money than Donald and TFG would want to find a way to cash in on the Saudi deal. He is the jealous type.

  10. Bay State Librul says:

    Can someone explain the latest on Mueller?
    I read it but can’t understand the convoluted legal language.
    I agree I’m stupid

    • John Colvin says:

      The short version: It appears that the memo was written to advise Barr to announce his conclusion that Trump did not commit obstruction as a method of preemptively responding to potential adverse publicity arising out of the Mueller report. Generally, this type of advice is protected from FOIA disclosure as “pre-decisional.” However, during the FOIA litigation, the DOJ declarations and briefing made it seem like the memo was written to advise Barr whether he should charge Trump with obstruction, despite an explicit statement that there was a Constitutional bar to charging a sitting President which was conveniently redacted from the limited portion of the memo released to the public. While this is only speculation on my part, I would guess that the DOJ might have felt that saying the memo was “pre-decisional as to a charging decision” sounds more noble than “pre-decisional as to a publicity play.”
      It was only after obtaining an unredacted version that the district court judge (Amy Berman Jackson) figured out that there was never any contemplation that Barr might pursue charges against the President. It was only in seeking a stay of the district court order pending appeal that DOJ first indicated that the memo should be withheld as pre-decisional with respect to how to spin the matter to Congress and the public. The district court declined to give the DOJ an opportunity for a “do-over,” and the DC Circuit affirmed. Cases are often lost by litigants who fail to raise potentially winning arguments until too late in the process.
      I am sure EW’s promised write-up will (as always) have angles that I never considered, and make connections that I flat out missed. I look forward to it.

  11. Operandi says:

    How much do we expect the crimes on the warrant to actually match what’s going to make it into a hypothetical indictment?

    I figure that the list of crimes used for the warrant were chosen to:
    1) Be unassailable in their basis for probable cause
    2) Maximize the FBI’s ability to retrieve any-and-all materials from Mar-a-Lago. They don’t want to have to make another trip.
    3) Don’t tip DoJ’s hand on anything that isn’t needed for parts 1 and 2

    But this is where I don’t know enough about evidentiary procedures. If they collect under 1519, but then decide they want to indict on 1512, how hard is it to use evidence from that 1519 search? Is the investigative team allowed to radically change their theory of the crime after seeing the fruits of their warrants? My general sense is there are some barriers to prevent outright fishing expeditions, but that those barriers are fairly weak.

  12. Drew says:

    This just occurred to me. Would obstructing a federal counterintelligence investigation be covered under these statutes?

    asking for a friend of vladimir

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