A newly surfaced Department of Defense memo from the Obama era suggests that the federal government might have already possessed original copies of the documents seized at former President Trump’s Mar-a-Lago residence in 2022, raising significant questions about the basis for the raid.
America First Legal (AFL), a conservative legal group, released what it claims is a newly discovered memo from the Obama administration’s Department of Defense. This memo, titled “Memorandum of Understanding Entered into by Presidential Information Technology Community Entities,” dates back to 2015. It followed an October 2014 Russian breach of the Executive Office of the President’s network. In response, then-President Barack Obama established the Presidential Information Technology Community (PITC) to bolster the executive branch’s cybersecurity. The PITC included representatives from federal agencies like the Department of Defense and Homeland Security, effectively granting the president control over information received through the PITC network. This executive action was made public at the time.
AFL claims that it has obtained a previously unseen memo confirming that the Department of Defense has been “operating and maintaining the information resources and information systems provided to the President, Vice President, and Executive Office of the President.” According to AFL, this memo implies that the federal government might have stored and retained Executive Office of the President documents, including “a substantial amount, if not all, of President Trump’s classified documents.”
In a press release, America First Legal Vice President Dan Epstein commented on the findings: “What America First Legal has uncovered after months of investigative work paints an unfortunate picture of the rule of law in Washington. A former President of the United States — the most democratically accountable officer under our Constitution — was subject to a politicized referral concocted by the Biden White House that led to an armed FBI raid of his home — where his wife and youngest child live — and is now subject to prosecution. And to now realize that the Biden Administration could have avoided an illegal referral process to recover records the government already possessed, that it could have used normal means to ensure that records the former president believed should be housed in his presidential library (not yet built because of the hordes of investigations aimed at silencing him) were subject to a temporary hold for purposes of Archives’ review, yet didn’t, speaks loudly to America: the law protects only those who follow the norms of one party.”
AFL obtained the documents through litigation against the Department of Defense. DOD said it had “nothing to offer” for a comment about the memo. Neither the White House nor the DOJ responded immediately to requests for comment.
The FBI seized 33 boxes of documents in August 2022 from Trump’s Mar-a-Lago estate in Florida, triggering another legal battle. Special prosecutor Jack Smith, appointed by Attorney General Merrick Garland, charged Trump with 40 felony counts, including allegedly violating the Espionage Act, making false statements to investigators, and conspiracy to obstruct justice. At the time, the FBI told a judge there was “probable cause to believe” that classified documents at Mar-a-Lago were being improperly stored and that investigators would find “evidence of obstruction.” Trump has pleaded not guilty to the charges, dismissing the case as an “Election Inference Scam” driven by the Biden administration and “Deranged Jack Smith.”
The newly disclosed memo, however, does not absolve Trump of any potential wrongdoing in the case. Still, it raises questions about the initial justification for the raid. This memo is the latest revelation casting doubt on the government’s actions and motivations before the raid.
Recently, Judge Aileen Cannon unredacted more than 300 pages of evidence in the case, including emails and conversations related to the Biden administration’s interactions with the National Archives and Records Administration (NARA) the year before the documents were seized from Trump’s home. While President Biden has publicly stated he was not involved in the case, the filings indicate that other White House officials were engaged in the early stages of the investigation.
The documents unredacted by Cannon suggest that shortly after Trump left office in 2021, the White House Office of Records Management under the Biden administration began collaborating with NARA on what Trump’s attorney described in a court filing as “exaggerated claims related to records handling under the Presidential Records Act.” In May 2021, the Archives’ general counsel sent a letter to Trump’s Presidential Records Act representatives inquiring about the whereabouts of “roughly two dozen boxes of original Presidential records [that] have not been transferred to NARA.” The general counsel explained that he had several discussions with White House Office of Records Management officials about their “concerns” regarding Trump’s possession of the documents.
NARA’s insistence on Trump turning over the records seemed partly driven by its mission to “properly” preserve “a complete set of Presidential records,” as outlined in a February 7, 2022 statement. However, if the government already had access to the documents through the Obama-era program, the documents in question might already be preserved.
The case was scheduled to go to trial on May 20 but has been delayed until Judge Cannon sets a new date. This week, Judge Cannon held hearings to address the defense team’s motion for dismissal.