In the two weeks since the FBI searched former President Donald Trump’s private club in Florida to retrieve classified documents, Trump and his team have trumpeted each move as further evidence of his victimization. The federal agents—with a court order—”broke into” his home, he insisted. They may have planted evidence, he alleged. They were a “political weaponization of law enforcement.”
The strategy is similar to how Trump handled the two investigations that led to his being impeached twice. Whereas Trump was able to count on the support of Republicans in the Senate to ensure his acquittal during his impeachment trials, he faces no such protection in the current investigation. The legal system has ways to punish misrepresentations and lies, actions that have often brought Trump rewards in the political arena. And as each new fact is made public on the court docket, Trump may be digging himself into deeper legal jeopardy.
In the run-up to his first impeachment, over Trump’s decision to withhold arms shipments to pressure Ukraine’s President Volodymyr Zelensky to help advance his personal political aims, Trump himself released notes from his July 2019 phone call with Zelensky. Trump called it a “perfect” call even though the Trump White House summary showed Trump pressuring Zelensky to launch an investigation into Joe Biden and his son Hunter in advance of the 2020 election. Sitting in the Oval Office with a foreign leader in December 2019, Trump said he felt the effort to impeach him was “a very sad thing for our country but it seems to be very good for me politically.”
And just over a year later, after the House impeached him for a second time for inciting the Capitol riot on Jan. 6, 2021, he derided it as “a continuation of the greatest witch hunt in the history of politics.”
Now in the wake of an advancing investigation into Trump’s handling of classified documents, a similar defiance from the former President is on display.
Trump’s court filings in response to the latest investigation may be giving prosecutors more ammunition to go after him. They have contained blatant misrepresentations to the court, contradictions of his earlier statements, and seeming admissions that he withheld government documents when asked repeatedly by the federal government to return them.
“He’s just digging a deeper hole for himself—he’s absolutely not helping himself,” says Randall Eliason, a former federal prosecutor who teaches white-collar criminal law at George Washington University Law School. “A lot of his statements have basically confirmed that he had government documents at Mar-a-Lago, and it doesn’t really matter whether they’re classified or not, because the statutes in question don’t require that they be classified, just that they be official government records.”
As Trump and his lawyers have battled in the press and in courts, more details of the federal government’s efforts to retrieve hundreds of sensitive documents from the home of a former President have come into view. The National Archives spent more than a year requesting missing presidential records from Trump. In January, after months of back and forth, Trump allowed 15 boxes of records to be delivered to the National Archives. Archivists found that they included more than 700 pages of classified documents, some labeled “Top Secret” and containing “Sensitive Compartmented Information” and “Special Access Program” materials, the nation’s most tightly protected national security secrets, according to a letter Debra Steidel Wall, the acting archivist of the United States, sent to Trump’s lawyer.
Alarmed, the archivists urged Trump to request that the FBI and intelligence officials examine the boxes he had held in order to determine what steps were needed to protect American spies and covert programs. Trump’s lawyers asked for more time, and after being given several more weeks, exerted the unfounded claim that the records, which belong to the federal government, were protected by Trump’s claim of executive privilege, even though he was no longer in office.
The FBI executed its search warrant on Mar-a-Lago on Aug. 8. Trump himself made the search public, confirming that it happened and decrying it in a public statement later that day. Two weeks later, Trump filed a motion in federal court to stop the FBI from reviewing the documents collected in the search, demanding a special master to review them to filter out information that may fall under executive privilege. In the motion, Trump said he was “strongly asserting my rights, including under the Fourth Amendment of our Constitution, regarding the unnecessary, unwarranted, and unAmerican Break-In by dozens of FBI agents, and others, of my home, Mar-a-Lago, in Palm Beach, Florida.”
But that motion was riddled with misstatements, as well as admissions that the National Archives had been requesting the materials for several months, and that Trump refused to fully comply.
While Trump was President, the Justice Department asserted that its policy was that it could not indict a sitting president. That protection does not extend to a former President.
The more Trump thrashes in court, the more heightened the conflict becomes, making it harder for Attorney General Merrick Garland to sidestep bringing charges against the former President if they decide they have evidence of a crime.
That dynamic hasn’t stopped Trump from blasting out fundraising emails off the search, and painting the investigation as a gross overreach by a politically motivated Biden administration. “The American people will not be fooled again by a politically charged DOJ and Biden White House as they attempt to curate [yet another] witch hunt against President Trump,” David Bossie, a Trump ally and President of Citizens United, said in a statement.
The White House has insisted it has no involvement in the mechanics of the investigation. One point of contact between the White House and the National Archives on the issue came in April, when the White House counsel’s office affirmed a request from the Department of Justice to let national security officials examine the initial 15 boxes of records removed from Mar-a-Lago in order to assess any the security risks created by their having been improperly stored for a year and identify steps to protect intelligence programs, according to Steidel Wall’s letter. On Wednesday, Biden responded to a reporter’s question about the FBI’s search of Mar a Lago, saying he was not told in advance about the search. “I didn’t have any advance notice. None. Zero. Not one single bit,” Biden said.
The legal maneuvering was raised another notch when Trump’s team moved for the release of the search warrant’s underlying affidavit, which contains information the FBI provided to Judge Bruce Reinhart in U.S. District Court for the Southern District of Florida, when requesting permission to search Mar-a-Lago. Reinhart already rejected prosecutors’ argument that the entire affidavit should be kept under seal to protect sources in the investigation.
Instead, the judge ordered the Department of Justice to make public on Friday a version of the affidavit that blacks out identities of witnesses, law enforcement agents, and the names of parties that haven’t been charged with a crime, as well as grand jury information and details that would show the investigation’s scope, strategy and sources.
The 32-page affidavit posted online Friday had large sections covered in black bars to protect information about the ongoing criminal investigation. The document said that the FBI’s review of the 15 boxes removed from Mar a Lago in January contained 184 documents with classified markings, including 25 documents marked “Top Secret” and 92 items labeled “Secret.”
The affidavit confirmed that prosecutors are “conducting a criminal investigation concerning the unlawful removal and storage of classified information in unlawful spaces, as well as the unlawful concealment or removal of government records.” It also says that before the search, investigators had “probable cause to believe that evidence of obstruction will be found” at Mar a Lago.
Trump’s camp believes that convincing Reinhart to release the FBI’s affidavit amounts to a political victory over the Biden administration. But, even before it became public, there was concern that the released version will be so heavily redacted that it obscures just how much the FBI knew before the search.
“It would absolutely be a win for Donald Trump,” says Hogan Gidley, Trump’s former White House deputy press secretary who still speaks with him. “Unless of course when it’s released the affidavit looks like turn four at Talladega.”
A heavily blacked out version of the affidavit “only paints a partial story,” Gidley says.
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