Fact check: Trump’s latest baseless claims about the documents investigation

By Daniel Dale, CNN

Former President Donald Trump made a variety of false or unsupported claims in his initial response to the FBI search of his Mar-a-Lago residence and resort in August. Five months later, Trump is now trying to use President Joe Biden’s newly revealed document-handling controversy to bolster his public defense — but he is still littering his commentary with baseless assertions.

Here is a fact check of three of the claims Trump has made in the last week.

The claim: The FBI might be wrongly describing empty folders as actual documents

Trump put forward a new claim in two posts on his social media platform on Wednesday. He suggested that the FBI may have inaccurately described empty folders it seized at Mar-a-Lago — folders he had kept as a “‘cool’ keepsake” — as actual documents.

Trump wrote that, as president, he was presented with documents in folders labeled with words like “Classified” or “Confidential.” He wrote that although he would promptly hand back these documents, he saved “hundreds” of the empty folders as keepsakes. He wrote that while Democrats and the media keep saying he had a “large” quantity of documents, “perhaps” the FBI — which he described as “the Gestapo,” the Nazi secret police — wrongly described some of these empty folders “as a document.”

Facts First: There is no evidence that the FBI is wrongly describing empty folders. In fact, the Justice Department’s detailed inventory of the items seized at Mar-a-Lago in August — an inventory submitted in court by a senior FBI agent under penalty of perjury — explicitly lists “empty folders” separately, distinguishing them from the government documents that were recovered. The inventory lists 103 government documents with classification markings, hundreds of government documents without classification markings, and 88 empty folders — including 46 empty folders that had “CLASSIFIED” banners on them. None of the government documents is just an empty folder, according to the inventory.

Trump’s claim that the empty folders in his possession were mere keepsakes from documents he quickly returned when he was president has not been proven or disproven. Even after the search of Mar-a-Lago, the Justice Department continued to make clear that it was not confident that Trump had returned all of the government documents he possessed in his post-presidency — and that it viewed the presence of empty folders with classified banners at Mar-a-Lago as a serious issue in need of investigation. In any US case where empty folders with classified banners were located, “the FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised,” the Justice Department said in a court filing in September.

The official inventory explains specifically how the empty folders found at Mar-a-Lago were labeled. For example, the inventory says that a particular “box/container” taken from Trump’s office included “43 Empty Folders with ‘CLASSIFIED’ Banners” and “28 Empty Folders Labeled ‘Return to Staff Secretary/Military Aide.'” Even the empty folders that were labeled “CLASSIFIED” were not lumped in with the government documents that had classified markings.

It is theoretically possible that there are errors in the inventory; the Justice Department filed a revised version in September that made minor changes to the original inventory that was filed in August, which the government explained it had needed to complete in a single business day. But the revised version and the original version listed the same number of government documents with classification markings, 103, and made only a small revision to the number of empty folders with classified banners, putting it at 46 instead of the original claim of 48. It is entirely clear that empty folders are not the reason that the number of documents found in Trump’s possession has been widely described as “large.”

The claim: Trump was simply following the Presidential Records Act

Trump has claimed that he was simply abiding by the relevant law, the Presidential Records Act, by engaging in a post-presidency negotiation with the National Archives and Records Administration about returning documents. He said in an interview with right-wing commentator Mark Levin last week that “the Presidential Records Act is — I’m supposed to negotiate, I’m supposed to deal. I gave them a lot of stuff. I was ready to give them the stuff that they raided.”

In a social media post on Saturday, Trump wrote, “I was President of the U.S. and covered and protected by the Presidential Records Act, which is not criminal and allows and encourages you to talk to the NARA, which we were, very nicely,” until the FBI search in August.

Facts First: Nothing in the Presidential Records Act suggests that there should be a negotiation between a former president and the National Archives and Records Administration over what presidential records should be turned over to NARA and when — much less that there should have been a months-long battle after NARA first sought the return of records from Trump in 2021. The law simply says that, when a president leaves office, NARA assumes control of all presidential records.

Jason R. Baron, former director of litigation at NARA and now a professor at the University of Maryland, said in an email: “Under the Presidential Records Act, at noon on January 20, 2021, all presidential records of the Trump White House by operation of law came into the legal custody of the Archivist of the United States. The Act does not provide for or contemplate that a former President can ‘negotiate’ the terms of surrendering physical custody of records that are properly owned by the American people.”

Timothy Naftali, a CNN presidential historian, New York University professor and former director of the Richard Nixon presidential library, said in an email: “The determination of what is a presidential document, and therefore public property, in the PRA isn’t subject to negotiation. Congress determined the definitions in 1978. I do not understand what the former president is referring to when he mentions a process of negotiation with NARA. Perhaps he meant negotiations regarding how materials in the White House would be handed over at the end of an administration. But there isn’t a negotiation over what gets turned over.”

Trump’s contention that he was dealing “very nicely” with NARA, which he repeated in the interview with Levin last week, is subjective but it’s obvious that this was not some sort of harmonious working relationship. The FBI search in August came more than a year after NARA first started trying to get all presidential records back from Trump, and months after NARA had notified the Justice Department of the presence of items marked as classified national security information in the boxes of materials Trump had returned to NARA last January.

The claim: The feds might have planted evidence

Trump continues to float the idea that the FBI or Justice Department might have planted evidence or might proceed to plant evidence.

Trump suggested on his social media platform in August that it was suspicious that the FBI would not allow witnesses, such as his lawyers, to be in the rooms being searched and “see what they were doing, taking or, hopefully not, ‘planting.'” In September, Trump said in a television interview on Fox: “Did they drop anything into those files, or did they do it later?”

And in a post on his social media platform on Wednesday, after outlining his theory about the empty folders, Trump wrote, “It’s also possible that the Trump Hating Marxist Thugs in charge will ‘plant’ documents while they’re in possession of the material.”

Facts First: There is no evidence that anyone has planted anything at Mar-a-Lago or amid the items seized at Mar-a-Lago. Despite Trump’s own claims, Trump’s legal team has never argued in a court filing that the FBI or Justice Department planted evidence — even when it was given an explicit opportunity to do so. It is routine, not suspicious, for searches to be conducted without witnesses such as lawyers being in the room; lawyers don’t have a right to watch. And there is no sign that anyone involved in running the investigation is a “Marxist.”

The claim about items possibly having been planted is impossible to definitively debunk at this point, and it is obviously impossible to debunk a claim about what might happen in the future. But Trump and his team have provided zero evidence to support their insinuations on this subject. Before an appeals court stopped a special master review of the seized items, Trump’s lawyers resisted an effort by the special master to have them say in a sworn court declaration whether they believed the official inventory included items that were not actually seized from Mar-a-Lago — in other words, if they believed phony items were inserted into the evidence. A judge then ruled that they didn’t have to make this declaration.

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