In recent days, Justice Department lawyers have asked U.S. District Judge Beryl A. Howell to hold Trump in contempt to describe the sealed court process, according to people familiar with the matter who spoke on condition of anonymity. But a judge has yet to hold a hearing or rule on the request, they said.
For months, the Justice Department has grown frustrated with Trump’s team — frustration after the former president’s lawyers assured that classified documents had been searched diligently at his Mar-a-Lago club and residence Sentiment soared in June. But evidence gathered by the FBI — later confirmed through court-authorized searches — suggested that many more remained.
A key area of disagreement centered on Trump’s legal team’s repeated refusal to appoint a record keeper to sign documents certifying that all classified material had been returned to the federal government, two of them said. The Justice Department has repeatedly demanded express written assurances from the Trump team that all such documents have been returned, and the Trump team has been reluctant to designate record custodians to sign such statements while also giving assurances that they have returned the documents.
The exact wording of the document could not be determined because it is still sealed. Trump is being investigated for three potential crimes: mishandling classified documents, obstruction and destruction of government records.
Trump spokesman Steven Cheung said the former president’s lawyers “continue to be cooperative and transparent.” “This is a political witch hunt unlike anything this country has ever seen,” he added.
A Justice Department spokesman declined to comment.
In response to the Justice Department’s concerns and the judge’s direction, Trump’s team has searched some of his other properties in recent weeks and turned over two classified-marked items to the government. Advisers to Trump told the FBI that the items were found at a storage facility used by the former president in West Palm Beach, Florida. Other Trump properties searched in recent weeks include his Bedminster golf course in New Jersey and his residence and office at Trump Tower in Manhattan. A person familiar with the search by a private company said no classified documents were found at the locations.
Trump, for his part, sees such a request as unreasonable — no lawyer can sign such a blanket certification in good faith or advise any client to do so without proof that a search of a particular location has been done in good faith. Two people familiar with the matter said , some of Trump’s lawyers are also wary of making any claims under oath based solely on Trump’s words.
The government’s demand for contempt of court underscores the fundamental mistrust that exists between an administration that has tried to retrieve sensitive documents since the spring and a former president whose responses have proven discredited. That distrust has led to a legal impasse over what constitutes a full search of classified documents.
When the government first issued a subpoena in May for any document marked as classified, the official recipient of the subpoena was the office of the former president’s custodian of records — a role Trump’s team eventually told the government was assigned by attorney Christina Christina Bobb is in charge.
In June, Bobb signed a certification that a serious search had been conducted for any such material, but convincing evidence gathered by the FBI suggested otherwise. The government received a court-authorized search warrant in August that found 103 classified documents at Mar-a-Lago that had not been turned up in response to the subpoena.
But after months of back and forth, the central question remains unanswered to the Justice Department’s satisfaction: Does the former president have more classified items? Prosecutors, previously burned by empty promises, now want the man in the official role of custodian of records to swear unreservedly that there are no more classified skeletons in any of Trump’s closets.
Prosecutors are asking the judge to find Trump in contempt of court as long as none of his advisers are willing to act as keeper of records charged with answering questions in full, these people said. In recent months, Bob has publicly stated that she is not doing legal work related to the document case, but merely advising Trump’s political action committee on election issues.
If the judge agrees, the most likely scenario is a daily fine until the contempt motion is satisfied. How much the fine will be, or who will be forced to pay, will be determined by a judge.
It is not uncommon for large organizations to appoint record custodians who can assume formal legal responsibility for the company or entity’s documents. In Trump’s case, the subpoena issued in May was duly sent to the custodian of records in his office. No one was named in the request.
After Trump’s lawyers received May’s subpoena, they asked for more time to enforce the subpoena before agreeing to meet on June 3 to turn over the records, prosecutors said in court documents. The night before the scheduled meeting, Bob — a lawyer and former US News anchor — Trump adviser Boris Epshteyn called her and asked her to speak with attorney Evan Corcoran, according to a person familiar with the information she later provided to the FBI. Corcoran for a meeting with Justice Department attorneys. Bob hadn’t met Cochrane before.
At the June 3 meeting, Bobb sent the Justice Department a letter that began by saying she had been designated as the office’s custodian of records to issue the subpoena, according to people familiar with the matter. The title of the certificate was redacted and included in court documents. The letter said Bob was informed that a “serious search” had been conducted on boxes “moved from the White House to Florida” and that all documents in response to the subpoena had been turned over.
She told the FBI she was skeptical of the letter and insisted on adding a disclaimer, saying it was based on information given to her by others, people close to Bob said.
Last month, Attorney General Merrick Garland appointed a special counsel to take over the investigation into classified documents and Trump’s attempt to overturn the 2020 election. Several of Trump’s advisers have appeared before a grand jury hearing evidence in the classified documents case in recent weeks.
Stephen Ryan, a white-collar criminal defense attorney, said it’s usually not hard to figure out who should be the company’s custodian of records. “In the normal course of business, if you’re a real business, you have records, and you have custodians of those records, you can call them,” he said. “This is the person who keeps the records in their day-to-day activities.”
In this case, however, no representative of Trump actually maintained control of the record. “The department is actually asking for something that doesn’t exist,” he said. “It’s an extraordinary problem, relatively unique in fact.”
At this point, he said, “nobody wants to put their head on the custodian’s nose.”