Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.
Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.
The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
While Trump continued to publicly tout his cooperation with the Archives, privately the former President began obsessing over Fitton’s arguments, complaining to aides about the 15 boxes that were handed over and becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago, according to people with knowledge of his behavior at the time.
Trump even asked Fitton at one point to brief his attorneys, said a person familiar with the matter.
“The moment Tom got in the boss’ ear, it was downhill from there,” said a person close to the former President, who spoke on the condition of anonymity to discuss internal matters.
In a phone interview with CNN, Fitton would neither confirm nor deny conversations he’s had with Trump, but noted that he has been vocal on social media and television that Trump had the right to keep the documents he took with him at the end of his presidency because they inherently were personal.
A similar dissonance has emerged between Trump’s private and public response to the FBI’s search of his Mar-a-Lago resort.
Publicly, Trump and his allies have celebrated the surge in enthusiasm and fundraising among Republicans — with the former President painting himself as a victim of the “deep state.” Some in Trump’s orbit have even gone so far as to indicate that a potential indictment would give Trump a political boost as he mulls another presidential run.
But privately, the former President and his allies have become increasingly concerned. One source close to the former President told CNN that Trump has posed questions about a potential indictment to members of his inner circle. Another adviser acknowledged that while Trump has certainly been in legal peril before, including while he was president, this seems different and potentially more dangerous, particularly because the former President no longer has the legal protections afforded to the executive office.
A spokesperson for Trump did not respond to multiple requests for comment.
Trump’s team seems to be primarily concerned with the public relations fight — and Trump’s political prospects. While Trump has publicly called for the release of the affidavit justifying the search of his residence, his lawyers have yet to take any legal action to seek its disclosure.
FedExing Kim Jong Un’s letters
When federal agents arrived at Trump’s oceanfront estate on August 8, more than a year had passed since Archives officials first began asking representatives of the former President to return various materials that were removed from the White House and taken to Mar-a-Lago.
Among them had been Trump’s correspondence with North Korean leader Kim Jong Un.
At one point during the protracted negotiations, a senior Archives official instructed Scott Gast, a former lawyer in Trump’s White House counsel’s office who had been appointed to coordinate with the National Archives, to send the letters using FedEx’s overnight service.
“Please let me know before you mail it and then pass along the tracking code once it has been sent. I need to make sure I have staff on this end to receive the package,” the official wrote to Gast and others in a June 2021 email obtained by CNN.
In the end, it took seven months for the Archives to finally receive the Kim letters. They were contained in the 15 boxes that Trump aides allowed Archives officials to arrange for pick up from Mar-a-Lago earlier this year, which contained 700 pages of classified documents, according to the Archives.
Sources close to the former President said his willingness to cooperate with Archives and, eventually, federal investigators broke down further once Fitton became a familiar voice inside his orbit.
Fitton told Trump that he had case law on his side due to Fitton’s own failed effort a decade ago to gain access to certain records from former President Bill Clinton’s time in office. In 2012, Judicial Watch sued to require the Archives to designate as presidential records audio recordings then-President Clinton made with a historian named Taylor Branch. Doing so would make them subject to Freedom of Information Act requests.
The suit was eventually dismissed by a judge, who wrote that NARA “does not have the authority to designate materials as ‘presidential records'” and “lacks any right, duty or means to seize control of them.”
Even though the Clinton case did not involve classified records, Fitton, nevertheless, believes his case proves Trump has the right to keep his records.
“I have been quite clear that President Trump is being abused here and the Justice Department has changed its position that they had in the Clinton case,” Fitton told CNN. After the 15 boxes were returned, “I noted at the time that it was at odds with the position of the Justice Department in the Clinton-Taylor Branch case.”
Even people close to the former President have begun to privately question the competence of the legal team around him, particularly Christina Bobb, the former One America News Network TV host who has become one of the faces of Trump’s legal team in the aftermath of the Mar-a-Lago search.
In her recent appearances across conservative media, Bobb has propagated a litany of conspiracy theories about the Mar-a-Lago search, including the baseless allegation that the FBI planted evidence while on Trump’s property.
Bobb previously assisted Rudy Giuliani’s behind-the-scenes efforts to overturn the 2020 election results. She signed the warrant receipts after the FBI searched Mar-a-Lago.
Bobb did not respond to a request for comment.
Last week, Fox News host Laura Ingraham, who has been a vocal supporter of Trump on her program, pushed back on Bobb over the decision by Trump’s legal team not to file or join any motions related to the release of the federal affidavit filed to justify the search warrant.
“Are you not concerned that because you didn’t join any of these motions for the full release of this affidavit that you are then waiving possible objections to the way redactions are being done by the Justice Department later on?” Ingraham asked Bobb.
Bobb replied that the team was going to wait and see what happened with the unsealing of the affidavit.
It took two weeks before Trump’s lawyers formally waded into the legal fight over the search warrant. And when they finally did on Monday, their motion had numerous legal flaws and drew criticism from legal experts on both sides of the aisle. The motion was filed in a separate case, putting it before a different judge than Florida Magistrate Judge Bruce Reinhart, who approved the search warrant. That judge, District Court Judge Aileen Cannon, gave Trump’s legal team until Friday to refine its legal arguments as part of its request for a “special master” — a third party attorney — to oversee the review of evidence obtained during the search.
While Trump’s legal team has not filed any motions to unseal the affidavit, Trump and his legal team have argued publicly that it should be released.
Another lawyer representing Trump, Alina Habba, suggested in a TV appearance Tuesday that the former President wants the DOJ to release the names of the witnesses who helped secure the search warrant for Mar-a-Lago, which would be contained in the affidavit and which government attorneys have argued could chill future witness cooperation.
“The president’s position is the same as what I would advise him, which is to ask (the DOJ) to uncover everything so we can see what’s going on. I understand the witness protection issue, but at the same time, these witnesses are truly not going to be concealed for very long,” Habba said on conservative network Newsmax. “That’s just not the nature of the DOJ and the FBI, and unfortunately in our country there’s always leaks.”
In addition to Bobb and Habba, Trump is being represented by Evan Corcoran, an attorney who has also represented former Trump aide Steven Bannon, and Florida-based attorney Lindsey Halligan, whose background is in insurance litigation. Trump has also retained Jim Trusty, a former assistant US attorney and Justice Department prosecutor, who is widely seen in his orbit as the most capable among his team.
As they’ve sought to undercut the federal probe, Trump’s team and his allies have put forward additional theories that quickly wilted under scrutiny.
The GSA said the responsibility for what is moved when a president leaves office rests entirely with the outgoing president and staff.
Trump wants political fight not a legal one
Trump’s advisers have made it clear they want this fight to be a political not legal battle.
The letter stated clearly that the Archives had retrieved more than 100 classified documents totaling more than 700 pages, including some with the highest levels of classification.
“It shows that Donald Trump and his team knew…they were in possession of large amounts of highly classified information,” said Elie Honig, a former Assistant US Attorney for the Southern District of New York and a CNN legal analyst. “This letter makes clear [Trump’s team] was delaying.”
While many legal experts shared this sentiment and said the letter was damning to Trump, the former President seemed to believe the letter showcased a political win — claiming it proved that he was the victim of a “witch hunt.” Trump has pointed to the letter’s mention of the communications the Archives had with the Biden White House over privilege issues, after the White House counsel’s office was consulted over granting the FBI access to the boxes the Archives took from Mar-a-Lago. That was unrelated to the search warrant, however.
Trump’s allies in conservative media have picked up on the narrative and amplified it. “The letter revealed that Joe Biden empowered the National Archives to waive any claims to executive privilege Trump might assert to block the DOJ from gaining access to the documents,” conservative personality Dan Bongino said on his program.
Trump and his allies, however, have conflated the executive privilege questions over the documents Trump had handed over to the Archives with the FBI’s search warrant, which the Biden White House says it had no knowledge of.
The White House’s counsel’s office deferred the decision to the archivist, declining to weigh-in on whether the FBI should have been allowed to access the documents the Archives retrieved from Mar-a-Lago “given the political implications and optics,” said Bradley Moss, a Washington-based national security lawyer.
“If anything, the Biden White House went out of its way to not get involved in whether or not this became a truly criminal matter,” Moss said.
Some of Trump’s allies believe the former President is more secure than ever, at least politically speaking. In the days following the FBI search, Trump raised millions of dollars and saw an outpouring of support — including from his potential GOP rivals in a 2024 presidential primary.
“Republican voters are looking at this [search] and saying if they can do this to him, they can do this to anyone,” one source close to Trump said. “It’s exactly where we want them to be.”