National Archives identified over 100 documents with classified markings in first 15 boxes collected from Trump
The National Archives identified over 100 documents with classification markings — including some identified as Top Secret and belonging to sensitive Special Access Programs — following its initial review of the 15 boxes of White House records first collected from Donald Trump's Florida residence in January 2022, according to a letter sent by the archives' acting archivist to an attorney for the former president.
A person familiar with the letter confirmed its authenticity to CBS News' Robert Costa. The letter was first reported on Just the News by an investigative reporter now best known as a conservative commentator, John Solomon. In June, Trump named Solomon and a former administration official, Kash Patel, to be "representatives for access to Presidential records of my administration."
On Tuesday afternoon, the National Archives posted the letter without comment.
The May 10 letter from National Archives Acting Archivist Debra Wall to Trump lawyer Evan Corcoran includes new details about what concerned the National Archives about the White House documents Trump was keeping at his Florida estate and what federal investigators might have been seeking when they executed a search warrant at his Mar-a-Lago resort earlier this month.
According to the letter, which was sent almost a month before federal investigators traveled to Trump's home in June to look for more classified material, Archives officials were preparing to grant the FBI access to the records, despite attempts by the former president's legal team to claim executive privilege and shield them from scrutiny. At the time the letter was written, the Archives had not yet granted the FBI access to Trump's records.
"The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself," the letter to Trump's legal team stated, suggesting that the documents did not belong to the former president as he has been claiming.
And the Justice Department's National Security Division wanted access to the documents to "conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps," according to the correspondence.
The National Security Division is now spearheading the investigation into Trump's handling of classified documents. One of its top prosecutors directly engaged with the former president's legal team both before and during the FBI's Aug. 8 search of Mar-a-Lago, according to court records and a lawsuit that Trump filed Monday.
According to the Archives letter, Trump's legal team was trying to delay investigators from probing the more than 700 pages of records, based on a "protective assertion of executive privilege," but as the letter further states, President Biden's White House counsel's office formally asked that the FBI have access and left the question of whether executive privilege applied to these documents to Archives and Justice Department lawyers.
The White House declined to comment and the National Archives did not respond to CBS News' request for comment.
The letter contends that Justice Department prosecutors had contacted Trump's team in April to explain the urgent need for access to the documents, explaining they were part of an "ongoing criminal investigation," but Trump apparently continued to resist turning over the documents. His lawyers asked the Archives to delay transferring the records to the FBI for investigation "'in order to ascertain whether any specific document is subject to privilege,' and then to consult with the former President 'so that he may personally make any decision to assert a claim of constitutionally based privilege,'" the National Archives' letter said, quoting correspondence from Trump's team.
Wall also noted that there were other concerns about the records, too. Quoting from correspondence between Justice Department officials and Trump attorneys, she reminded Trump's lawyers that the Justice Department had told them, "There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials."
And in light of those interests and legal precedent, as articulated by the Justice Department, Wall concluded the former president's claim of privilege was not "viable."
"The question in this case is not a close one," Wall said in the letter.
"Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to 'receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends'."
Since the FBI searched Trump's residence earlier this month, his lawyers filed a lawsuit asking that a special master be appointed to review the additional material seized at Mar-a-Lago for any potential privilege violations and for exceeding the terms of the search warrant. But if the conclusion of the National Archives and Justice Department is correct, the success of Trump's lawsuit may be in doubt.
The search of Trump's residence yielded even more boxes of potentially classified information than the January seizure at issue in the letter. CBS News has learned that investigators continue to catalog his documents together with a "filter team" to see if anything should be returned to Trump.
Court documents unsealed last week revealed more about the laws investigators say Trump may have violated in his handling of classified information, including "[w]illful retention of national defense information" and "[o]bstruction of a federal investigation."
The May letter from the National Archives to Trump's team demonstrates that investigators had been probing the matter for months before the execution of the August search warrant at Mar-a-Lago.
Trump's lawsuit, filed Monday in federal court, stated that on May 11, a federal grand jury issued a subpoena "seeking documents bearing classification markings." By June 3, at the invitation of Trump's legal team, Bratt and three FBI agents traveled to Mar-a-Lago where they retrieved some responsive documents and examined the room in which they were stored. Weeks later, on June 22, investigators subpoenaed footage from Mar-a-Lago's security cameras.
Federal investigators are now looking closely at video evidence they've obtained, which shows people at Mar-a-Lago accessing storage areas where some of Trump's papers were being held — including some classified documents, according to a U.S. official.
The former president responded to the public revelation of the letter by calling the probe a "political Witch Hunt" in a post on his social media platform Truth Social and alleging political interference by the White House.
