Trump's lawyers

The negotiations between the National Archives and Records Administration and Trump’s representatives throughout 2021 should have prompted lawyers to step in and manage the situation. Unlike the Justice Department, NARA doesn’t have criminal enforcement powers and was trying to work with Trump’s team to facilitate the return of what turned out to be thousands of pages of government records. The time to seek accommodations from the government was when NARA was the counterparty, not the DOJ.

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[E]ven if Trump wanted to take a more aggressive approach, or even wanted to keep some of the records, it would have been important for his lawyers to figure out up front what exactly he wanted and then to negotiate with NARA.

  Renato Mariotti @ Politico

They're attorneys, not miracle workers.

They should have been aware that they were producing classified materials, raised that issue to NARA before producing, and produced them in a secure manner.

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No competent attorney would have approved the production of documents to the government without reviewing and cataloguing the documents provided. You have to know what it is that you’re producing and what, if anything, is still being held back.

OK, I didn't say they were COMPETENT attorneys.

DOJ likely wouldn’t have done anything more if Trump’s team had been honest, forthright and went out of its way to ensure the government that its property was safely back in its possession.

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I would have considered seeking “act of production” immunity for handing over the documents. Such immunity would ensure the government can’t use the very act of producing classified documents to prove my client broke the law by possessing them. I suspect DOJ wouldn’t have pursued the matter further if all of the classified material had been returned, but obtaining immunity when there is potential criminal liability is usually a prudent step.

Prudence is not a mark of team Trump.

It might be unprecedented to charge a former president, but as I have explained, concealing government documents is a very simple case to prosecute and Trump’s attorneys should have appreciated that risk.

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One of Trump’s attorneys, reportedly Christina Bobb, signed a certification that a “diligent search” was conducted and that “any and all” documents were produced to the government. Unfortunately for her, that turned out to be false.

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A smart attorney would never have signed that document.

I also never said they were smart.

One of Trump’s attorneys also made some false verbal statements to the DOJ and FBI agents who came to retrieve the documents, stating that all the records from the White House were stored in a single storage room, that the “remaining repository” of records was that storage room, that there were “no other records” stored anywhere else at Trump’s residence, and that all available boxes were searched. All of those statements appear to be lies.

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Once a grand jury subpoena was issued, it would have been prudent for Trump’s counsel to talk directly with DOJ attorneys about exactly what they wanted, whether they intended to investigate further once they had the material, and about “act of production” immunity. The goal of those discussions and negotiations would have been to obtain an agreement with the government not to pursue a criminal investigation in exchange for voluntary access to the Mar-a-Lago estate and production of all relevant documents.

If a deal along those lines had been struck, there would have been no search warrant or certification at all. The FBI could have come in quietly, with Trump’s permission, and conducted their own search and taken all classified material. If there were legitimate disputes over records, it would have been better to do so after the documents were already in the government’s hands and there was a deal in place to keep this as a civil dispute rather than a criminal investigation.

Obviously, that’s not how this turned out.

Obviously.

...but hey, do what you want...you will anyway.