The Truth Will Out – Even About Mar-a-Lago

By: James Trusty

The Truth Will Out is a fairly obscure phrase that was popularized in Shakespeare’s “The Merchant of Venice.” It suggests that even against the most active obstruction and obfuscation, the Truth seemingly has an invisible hand behind it that relentlessly—if slowly—pushes it into plain view. Nearly 2 ½ years after the FBI’s raid on Mar-a-Lago, the Truth may be emerging into the daylight.

August 8, 2022 will stay imprinted in my memories like no other day. Then Former-President Trump had retained me a couple of months earlier. I was still getting to know the various players that formed his legal team as well as the many others who offered advice or service to the President, and I knew there was a slow-burning issue about his retention of potentially sensitive documents. I had told my chief counterpart, Evan Corcoran, that on Monday the 8^th I was going to be participating in a charity golf tournament and would be unavailable for any work issues. My firm paid something like $5,000 for a charity associated with helping high-risk children in D.C. The worthy cause made it easy to overlook that I am a terrible golfer, and that day’s score helped confirm that sad fact to a lot of people.

My phone started ringing repeatedly right at 10 a.m., just as the tournament was starting. After ignoring it a couple of times, I angrily picked it up to remind Evan that I was off for the day. That’s when Evan told me, “The FBI is at Mar-a-Lago.” So much for my game.

The fire drill for us lawyers began in earnest that day. I knew some core facts – that President Trump had returned numerous boxes to the custody of the Archivist (the head of the National Archives and Records Administration, or “NARA”) earlier in the year; and that Evan had been talking about documents with Jay Bratt, from the National Security Division of DOJ, that Evan had searched through a bunch of disorganized documents to pull potentially classified ones and give them to Jay.

I learned around the same time that Jay had issued a Grand Jury subpoena for “any and all” documents bearing classification markings and that he was engaging in the typical back-and-forth that occurs on document subpoenas before he suddenly reversed course on his pledge to give Evan more time. And I knew that after President Trump allowed FBI agents and Jay to walk around the premises at Mar-a-Lago and see where any of these documents were housed, he graciously let them know that they should just “let [him] know about anything they need,” or words to that effect. The first and only response to that invitation was to ask him to put a padlock on the door to the storage room full of boxed documents, and President Trump immediately complied with that request.

I would later learn more and more about the irregularities that accompanied this whole “case” as well as the January 6 investigation. The White House would decide that the concept of Executive Privilege did not apply to President Trump. Federal prosecutors, aided by a particularly friendly judge in Washington, DC, would invoke the rarely employed  “crime fraud exception” to obliterate attorney-client privilege in the case of President Trump and Evan. Prosecutors would harangue theoretical witnesses at Mar-a-Lago – down to maids and gardeners – demanding multiple interviews, scoffing at their testimony, and threatening to force them to come to a Washington, DC grand jury with very little notice.

To me, the high point of government misconduct came in the form of an accusation from Walt Nauta’s attorney, a highly respected D.C. lawyer, who alleged under oath that Jay Bratt had literally threatened or dangled a pending Superior Court judgeship in front of the stunned lawyer, saying something akin to “I would hate for you to lose that opportunity – you need to have Nauta cooperate with our investigation.” Jack Smith would later deny the accusation, and Bratt scurried away from DOJ, which likely buried whatever tepid effort the Office of Professional Responsibility was willing to make at uncovering the truth.

I caught some CNN criticism for referring to the documents case as a dispute about an overdue library book, but it was an apt parallel. The Presidential Records Act (“PRA”) does a few things – it urges the Archivist and former Presidents to work together on deciding which documents would be deemed presidential records (and thus sent to Archives) and which are merely personal (and kept by the former President). The law provides no criminal penalty for a violation of the PRA, and a NARA senior executive eventually testified that every modern President from Reagon on had turned over classified materials after leaving office. None, until Jay Bratt had the reins, were subject to a “criminal referral” from a politicized Archivist, and none were enforced by criminal investigative tools like grand jury subpoenas and search warrants.

If you doubt this was all singular treatment, feel free to read the opinion in Judicial Watch’s lawsuit against NARA in 2012. The judge ruled that Clinton’s 79 audiotapes of candid discussions about his presidency with a historian were considered personal by President Clinton and thus protected from forced disclosure to NARA. It helped Clinton’s characterization that he kept all the tapes in a sock drawer, and the important aspect of the case is that a D.C. federal judge pointed out that the PRA gave former presidents great power to make these personal/presidential determinations.

Which brings us to the resurfacing accusations – borne out by newly disclosed emails—that DOJ was insistent on criminal escalation while the FBI was balking. The FBI, which is ultimately subordinate to the Attorney General and DOJ, apparently pushed back against Jay Bratt, telling him that there was not probable cause for a crime (needed to pursue a search warrant) and that since Evan was cooperating with them in good faith, they should continue to gather these documents through the typical process of cooperation, even with some give and take on deadlines or particular documents. The Truth Will Out. The FBI was pushed into escalation by a hell-bent prosecutor who saw his chance for glory – a chance to prosecute a former President who was about to run again.

Even after Jack Smith took control of the two investigations, sadly, the drumbeat of win-at-all costs continued. DOJ fought the idea of a Special Master to manage the discovery process in the Mar-a-Lago case. I remember approaching Jay after a hearing in Brooklyn, where the jointly approved Special Master began to engage in the process (before DOJ appealed and shut it down with the 11^th Circuit Court of Appeals) and saying to him something like “what is it that would make you walk back from this investigation, Jay? If we could retrieve and return particular documents that you care about, could we make this all end?” All I got was a smirk from an emboldened prosecutor, supported by a packed courtroom of media members and kindred spirit Andrew Weissman, from the Mueller probe. It was worth asking, because most prosecutors are guided by their consciences, not their hunting of a big political trophy.

The Truth may still Out some important things, for example:

• When Bratt reportedly threatened/bribed Nauta’s attorney over a judgeship, there were a number of other prosecutors in the room. Has anyone reviewed all of their internal communications to see what they had to say before, during and after the shocking meeting?
• Did Jack Smith’s team shift the grand jury to Florida at the last moment solely because of a venue issue with the documents being retained in Florida or because his troops had regularly engaged in misconduct in DC? For instance, why did one of his prosecutors repeatedly ask Tim Parlatore questions that she knew would make him invoke attorney-client privilege and why did she unethically suggest to the Grand Jury that the President was “not cooperating” by invoking the privilege?
• What internal communications took place within DOJ before Jack Smith demanded a speedy trial on election’s eve, fully knowing that thorny issues under the Classified Information Protection Act would typically slow the trial of a non-incarcerated defendant’s trial by a year or more? Did any voice of reason chime in with a more ethical position, such as “why don’t we tell the court we are not on a political clock, that we’re fully transparent with our discovery, and that we will try the case whenever the court wants us to do so?”

Jack Smith was a Special Counsel, which means he answered to the Attorney General, who answered to President Biden.  The former Attorney General has always tried to hide from Smith’s decisionmaking, insisting that Jack was unfettered by supervision. That communication and supervisory chain is worthy of being Outed as well, in my opinion.

I was a prosecutor for 27 years. I’ve been in private practice over 8 years now. I have never seen a case so infected with irregularities, with treating a political figure and people aligned with him as presumptive criminals on account of their politics, with so many open questions as to why such an important, historical investigation was riddled with singular treatment and poor judgment.

If Shakespeare was right, the recently disclosed battles over criminalizing the non-criminal may just be the earliest evidence that the inexorable process of Truth Will Out has begun. Only once it is complete can the DOJ truly seek to regain its honor and the FBI return to its crime fighting roots.

Editor’s Note: This article is an expanded version of an opinion essay originally published in The Wall Street Journal.