‘All they had to do was ask,’ said Trump: A timeline of efforts to retrieve presidential records

Editor’s note,  Aug. 26, 2022: This article has been updated to include additional details made available by the court’s Aug. 26 release of the Justice Department’s affidavit requesting a warrant to search Mar-a-Lago.

Former President Donald Trump took to Truth Social on Aug. 12 to complain about the FBI’s unannounced search at his Mar-a-Lago home in Palm Beach, Florida, days earlier. The agents had come to retrieve boxes of presidential documents taken from the White House that the National Archives had sought to retrieve for well over a year.

"All they had to do was ask," wrote Trump, who added they could have had all the documents they wanted "long ago."

That sentiment has been shared by some of Trump’s Republican allies, who have criticized the Justice Department’s decision to conduct the Aug. 8 search. The move to seek a search warrant was approved by Attorney General Merrick Garland and the warrant was granted by a Florida judge.

"I still haven’t seen any evidence that … Trump was even asked to give these documents back," Rep. Dan Crenshaw, R-Texas, told CNN’s Jake Tapper in an interview on "State of the Union" on Aug. 21.

"He’s been cooperating with them on these issues for a while now, for months. So why take it to this extreme extent," said Crenshaw, who criticized the raid as "hard to justify" and "automatically political" because it involved a former president who may run again.

Crenshaw, in a back-and-forth with Tapper, acknowledged that the government had been trying for more than a year to get Trump to return the documents. He said the Justice Department should have asked yet again — or issued a new subpoena — to get the documents it thought Trump still had. 

Justin Discigil, Crenshaw’s chief of staff said that the congressman was referring to the fact that the FBI had a cordial visit with Trump at his home in June, retrieved additional documents then and later asked for and received security footage from Mar-a-Lago. Since then, there were no additional requests for documents or subpoenas issued before the Aug. 8 search, Discigil said.

"Instead, they took the unprecedented step of issuing and executing a search warrant on a former president’s home," Discigil said.

But legal experts we spoke with say the Justice Department — even when dealing with a high-profile political figure — is under no obligation to issue multiple subpoenas. 

Nor must they repeatedly ask a subject to comply with the law, especially if there are concerns about classified documents.

"That (the FBI) then went forward with a search warrant shows the level of concern they had that anything less than a search would not result in the complete retrieval of all remaining classified records," said Bradley Moss, a Washington-based lawyer who works on national security cases.

Trump was given far more leeway than most Americans, experts told us, and could have avoided the search with full cooperation.

"There's no legal requirement for the FBI to proceed via subpoena or to ask nicely. It's well within their rights to go to a judge and get a search warrant," said Neama Rahmani, a former prosecutor and president of West Coast Trial Lawyers in California, who described Trump as "partially cooperative at best" with the government.

"Trump and his associates have not been cooperative," said Michael Gerhardt, a law professor at the University of North Carolina, who said the argument made by Trump and Crenshaw "makes no legal sense" because items the government was seeking were ultimately found in Trump’s possession.

A federal judge on Aug. 26 released a heavily redacted affidavit that explained the Justice Department’s request for the search warrant.

But the National Archives, or NARA, has been seeking documents that Trump removed from the White House and took to his Florida home after he left office in January 2021.

Here’s what we know so far from public records and news reports about how often Trump was asked to return the documents in the 18 months leading up to the court-ordered Mar-a-Lago search and what Trump’s level of cooperation was in response. 

Jan. 20: Trump leaves the White House. The Presidential Records Act requires that all documents be returned to the archives upon his departure.

May 6: Chief counsel for the National Archives emails Trump’s representatives, according to later reporting by the New York Times and the Washington Post. The Post quoted the email as reading, in part, "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." Cipollone had been Trump’s White House counsel.

Mid-January: The National Archives retrieves 15 boxes of records from Trump’s Mar-a-Lago home. The records were transported to the National Archives "following discussions with President Trump’s representatives in 2021," the National Archives wrote in a press release it made available on its website on Feb. 7. "As required by the Presidential Records Act, these records should have been transferred to NARA from the White House at the end of the Trump administration in January 2021."

Jan. 31: The National Archives issues a statement saying that some of the presidential records it received from Trump before he left office "had been torn up by former President Trump."

Feb. 18: National archivist David Ferriero says in a letter to Congress that the agency had been communicating with Trump representatives about the return of documents throughout most of 2021. National Archives officials determined that those 15 boxes contained some classified information, so they contacted the Justice Department, Ferreiro’s letter said.

May 10: Acting archivist Debra Steidel Wall writes a letter to Trump attorney Evan Corcoran. In it, Wall denies a request from Corcoran to delay providing the FBI access to the 15 boxes that were retrieved. Wall writes that the National Archives had discovered in those boxes "over 100 documents with classified markings, comprising 700 pages." (The National Archives made this letter public on its website on Aug. 23, a day after it was disclosed on Just the News, a conservative website run by Trump ally John Solomon.)  (See the Aug. 26 entry: The FBI found 25 documents marked Top Secret.)

May 11: Trump accepts a grand jury subpoena addressed to the custodian of records for Trump, seeking documents marked as classified. Multiple news reports would later report this happened in the spring, citing unnamed sources. Trump’s attorneys confirmed the May 11 date in an Aug. 22 court filing.

May 16-18: FBI agents conduct a preliminary review of the 15 boxes that had been provided to the National Archives. They find classified documents in all but one box. They identify "184 unique documents bearing classification markings including 67 documents marked as confidential, 92 documents marked as secret, and 25 documents marked as top secret," according to information later made public in the court’s Aug. 26 release of the Justice Department’s search warrant affidavit.

The boxes also include documents with markings for intelligence derived from monitoring foreign communications or from "clandestine human sources." Documents with such classification markings typically contain national defense information.

Several of the documents also contain what appear to be Trump’s handwritten notes.

June 3: Justice Department officials travel to Mar-a-Lago, where they briefly meet with Trump, and retrieve more documents marked classified, according to The New York Times. A Trump lawyer signs a declaration indicating that all the materials marked classified were turned over, the Times and others reported. Trump’s attorneys later confirmed the June 3 visit and document retrieval.

At some point after the June 3 visit, investigators had learned that there could still be more classified documents at Mar-a-Lago, according to reporting in the New York Times and The Wall Street Journal that cited unnamed sources.

June 22: Trump is served with another subpoena, this time for surveillance footage from Mar-a-Lago. Trump’s attorneys would later acknowledge receipt of the June 22 subpoena, writing in a court filing: "At President Trump's direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the government."

Aug. 8: The FBI, with a search warrant in hand, searches Mar-a-Lago, removing another 25 boxes of documents. According to a receipt released by the Justice Department, the documents include "various classified/TS/SCI documents." TS/SCI stands for top-secret/sensitive compartmented information. There are also four sets of documents described as "Miscellaneous Top Secret" and three others listed as "Miscellaneous Secret."

Aug. 11: Attorney General Merrick Garland says in a public address that the Justice Department had exhausted efforts to retrieve the material in other ways. "The department does not take such a decision lightly," Garland said. "Where possible, it is standard practice to seek less intrusive means as an alternative to a search, and to narrowly scope any search that is undertaken."

Aug. 26: A federal judge releases a heavily redacted affidavit in support of the government’s application for a warrant to search Mar-a-Lago.  "The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records," the affidavit said. The federal government said it sought to redact information to protect witnesses, the FBI and details of the Justice Department’s strategy.

PolitiFact researcher Caryn Baird and staff writers Amy Sherman and Jon Greenberg contributed to this article. 

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