the Interpersonal Bitter Turf Battle Over Mar-a-Lago Between The FBI and DOJ

 

This article is adapted from the book “Where Tyranny Begins: The Justice Department, the FBI, and the War on Democracy,” by NBC News national security editor. 

On Aug. 1, 2022, senior Justice Department and FBI officials gathered on the seventh floor of the FBI headquarters in Washington, D.C., for a historic meeting. 

They exchanged pleasantries, shook hands, and took seats in Room 7427, the FBI general counsel’s conference room, a nondescript gathering place with a long rectangular table surrounded by no-frills office chairs. Each official wore a suit, mandatory attire on the storied floor that houses the office of the FBI director and his top advisers.

The senior DOJ officials had left their headquarters, an elegant mix of Classical and Art Deco architecture, and met their bureau colleagues across Pennsylvania Avenue in the FBI headquarters, a Brutalist structure considered one of the ugliest buildings in Washington. Their goal was to have what one participant later called a “come to Jesus” meeting.

For months, prosecutors from the DOJ’s national security division and the leaders of the FBI’s Washington field office had disagreed over an ongoing criminal probe. Tension and debate between prosecutors and agents during an investigation are routine, and often welcomed. 

But this case had taken on an extraordinary level of intensity, pressure, and acrimony due to the potential defendant: former President Donald Trump. 

Career officials from the FBI Washington field office eventually took an unusual step. They privately questioned a career DOJ prosecutor's political donations to Democrats and what they saw as his aggressive stance toward Trump. 

In both the FBI and DOJ, career officials, unlike political appointees, are expected to act in a strictly non-partisan manner. But the hyperpatisanship of contemporary American politics had seeped into the Mar-a-Lago investigation and threatened to slow it.

The stakes were high for all of those in the room — potentially career-ending — and for the country. The DOJ and FBI officials were deadlocked over how to retrieve what were believed to be dozens of top-secret documents that Trump had taken from the White House to Mar-a-Lago and declined to return.

Mar-A-Lago, former President Donald Trump's residence in Palm Beach, Fla., on Aug. 9, 2022.Giorgio Viera / AFP-Getty Images

No good options

The DOJ and FBI officials shared the same feeling about the case: dread. After the National Archives repeatedly requested that Trump return the documents, some officials assumed Trump would simply hand over the materials. When he didn’t, all of them saw no good options. 

“You know what the reaction was in the department?” recalled a former FBI official involved in the case who asked not to be named. “We were like, ‘Oh shit, we don’t want any part of this. The real enemies are Russia and China.’”

Steven D’Antuono, then the head of the bureau’s Washington field office and who has since retired, feared that the documents dispute would further erode public faith in the FBI. 

“I was worried about it increasing distrust in us,” D’Antuono told NBC News in his first on-the-record media interview about the Mar-a-Lago dispute, which was first reported by The Washington Post. 

Inside the FBI, bipartisan criticism of its Hillary Clinton email investigation, Trump’s firing of James Comey, and special counsel John Durham’s probe of the FBI’s Trump-Russia investigation had taken a toll.

“We all thought this posed a risk to us both professionally and personally,” the former senior FBI official said. “I can’t impress upon you the pressure.” 

He added, “We’re try­ing to make the best decisions we can with all the emotions swirling.”

The intense pressure also fueled distrust. Several FBI agents in the Washington field office were concerned about the aggressive tactics and political donations of Jay Bratt, one of the Justice Department prosecutors. 

According to public records, Bratt, who now works for special counsel Jack Smith, had donated $600 to a former DOJ colleague’s unsuccessful Democratic primary campaign for the U.S. Senate in Oregon in 2007, $150 to the Oregon Senate Democratic Campaign Committee that same year, and a total of $500 to the Democratic National Committee in 1993 and 1994.

Bratt, through the Justice Department press office, declined an interview request. DOJ officials flatly dismissed any claim that Bratt was biased against the former president. 

They said that Bratt pursued all cases aggressively, noting that he had a long history of investigating the handling of classified documents by Democrats, including Hillary Clinton. In the Trump case, they added, Bratt had tried for months to seek a resolution with the former president that would not involve a search of Mar-a-Lago.

A senior DOJ official with knowledge of Bratt’s work said in an interview that he had never seen him show political bias. “It would be hard for me to overstate how much I disagree with that characterization,” said the official, who asked not to be named. “He is one of the finest career prosecutors I’ve worked with. I’ve never seen a hint of bias.”

Donald Trump leaves the stage in Mar-a-Lago after announcing he was seeking another term as president on Nov. 15, 2022. Joe Raedle / Getty Images

D’Antuono, though, was concerned about the approach of the DOJ team investigating Trump, which Bratt led. “Jay was being a little overly aggressive,” D’Antuono recalled. “The aggressiveness that was there, from day one.”

D’Antuono said that Bratt’s behavior may have been fueled by the extraordinarily high-profile nature of the case. “This is a huge case. It’s the former president,” D’Antuono said. “Was some of it due to ambition? Jay has been an attorney for a long time. This is the case of the century.”

In a less divisive era in American politics, personal political donations might have drawn less attention. It was generally accepted that career DOJ and FBI officials could put their personal politics aside and investigate any elected official, Republican or Democrat, in a fair and fact-based manner. 

But 50 years after Watergate, American politics, culture, and news coverage had changed. Partisanship had steadily risen and been rewarded in Washington. Some politicians had grown tired of the independence of the DOJ and suspicious of career public servants. And the internet had created a powerful new way for politicians to circumvent the press and express their own unfiltered views directly to the public. 

Trump had deftly taken advantage of all of these dynamics and been elected to the country’s highest office. In the Trump era, bias was assumed, encouraged, and expected by many. Nonpartisan public service was increasingly dismissed as naive. And now, division and distrust threatened to delay the Mar-a-Lago investigation.

FBI Director J. Edgar Hoover in his Washington office on May 20, 1963. William J. Smith / AP

A history of idealism and abuse

The relationship between the DOJ and the FBI, the country’s two most powerful federal law enforcement agencies, had ebbed and flowed in their century-long joint existence. 

Located a few blocks from the White House, the Justice Department, led by the attorney general, oversees the FBI. The department’s mission is to apply the law equally, without fear or favor, to all Americans. 

But that has not always been true. During the Cold War, FBI Director J. Edgar Hoover had repeatedly bypassed the attorney general and unilaterally conducted law enforcement operations designed to infiltrate, disrupt, and discredit political leaders and organizations that Hoover deemed subversive. 

Hoover’s perceived enemies ranged from Martin Luther King Jr., who the FBI director viewed as a communist, to the right-wing John Birch Society. Hoover also secretly provided the eight presidents he served — four Republicans and four Democrats — with dirt on their political rivals.

Justice Department officials committed abuses, as well. In the early 1970s, John Mitchell, Richard Nixon’s attorney general, used the Justice Department to target Nixon’s perceived political enemies, from opponents of the Vietnam War to Black nationalist groups to officials suspected of leaking politically damaging information about the president.

After the Watergate scandal, sweeping reforms were enacted in the late 1970s to prevent presidents, attorneys general, and FBI directors from using the DOJ and FBI for improper political or personal gain.

Those reforms also reinforced the dual, and contradictory, duties of the attorney general and the FBI director. Both leaders were expected to enact the broad policies of the president, such as crack­ing down on crime or strictly enforcing environmental laws. 

At the same time, they were expected to investigate, in a fair and nonpartisan manner, potential crimes or corruption by presidents and their aides. The tension between those two missions — serving a president and investigating one — exploded during the Trump and Biden years.

Hyperpartisanship, conspiracy theories, and distrust

The disagreement between the DOJ and FBI officials over Mar-a-Lago was a microcosm of the hyperpartisanship and conspiracy theories undermining public trust in government institutions. It also fueled divisions between and within the organizations.

When Matthew Olsen, the head of the DOJ's National Security Division, which investigates leaks of classified information, arrived at the Aug. 2 meeting at the FBI he brought a draft search warrant with him. 

DOJ officials feared that foreign adversaries might try to gain access to the classified documents in Mar-a-Lago. If DOJ prosecutors could persuade a federal judge to sign off on the warrant, they argued, FBI agents could immediately enter Mar-a-Lago without Trump’s permission and secure the documents.

D’Antuono and other FBI agents were determined to recover the classified documents, but not in a way that they saw as needlessly provocative. D’Antuono worried that am FBI search of Mar-a-Lago would bolster years of exaggerated claims from Trump that the bureau was politically persecuting him. 

At the outset of the meeting at the FBI, Bratt argued that Trump’s defiance was clear. After months of requests from the National Archives, the former president had returned 15 boxes of material that included 197 documents with classification markings in January 2022, a year after leaving office. Other documents from his time in the White House, though, appeared to be missing. 

A photo of documents seized during the Aug. 8, 2022 FBI search of former President Donald Trump's Mar-a-Lago estate.Department of Justice via AP

In May, Justice Department lawyers had obtained a subpoena that legally required Trump to return all of the classified material. 

On June 3, Bratt and two FBI agents had visited Mar-a-Lago and met in person with Trump’s lawyers. The former president’s attorneys handed over another 38 documents that contained classification markings and gave them a signed certification stating that “any and all” documents responsive to the subpoena had been provided. 

Trump him­self had greeted Bratt and the FBI agents and promised to cooperate, saying he was “an open book.”

After Bratt and the FBI agents left Mar-a-Lago, they received a tip that prompted them to subpoena surveillance camera footage from Mar-a-Lago. What it showed stunned many of them. 

The day before Bratt and the FBI agents arrived, employees had moved dozens of boxes of documents out of a storage room. Whoever had told them to move the boxes could be charged with obstructing a federal investigation.

The surveillance videos prompted two senior FBI officials, who initially opposed the FBI search of Mar-a-Lago, to support one. The FBI had investigated hundreds of cases of classified information being reportedly mishandled since 2017. During that period, the bureau conducted more than 80 searches to recover classified documents.

But D’Antuono and several of his subordinates in the FBI’s Washington field office still didn’t think that the search needed to be done immediately. D’Antuono felt that the documents were secure, noting that Secret Service agents were present at the resort.

As the meeting dragged on, the discussion grew increasingly heated. Bratt raised his voice several times. When D’Antuono asked if prosecutors now considered Trump the subject of the investigation, Bratt shot back, “What does that matter?” but didn’t answer the question.

FBI officials from the Washington field office were in open conflict with Bratt and other DOJ prosecutors.

D’Antuono, convinced that a consensual search could end the standoff, stood his ground. He believed that they could negotiate with Trump’s lawyer, Evan Corcoran, a former federal prosecutor, and reach an agreement for a voluntary search. 

DOJ officials and senior FBI officials rejected the idea. They said that Trump and Corcoran had already received a subpoena and been repeatedly asked to return the documents. 

D’Antuono dug in and said he would only have his agents search Mar-a-Lago if ordered to do so by his FBI superiors. 

“I was trying to be a different voice in the room. Why do we have to be aggressive? We have an attorney in this case,” D’Antuono recalled. “If it didn’t work with Corcoran then fine. We would serve the search warrant and go in. No harm no foul.”

The FBI also had a plan in place for how to respond if it appeared that documents were being removed from the property. “In my opinion, there was no harm in doing it that way,” D’Antuono said.

Steven D'Antuono, the head of the FBI's Washington, D.C. field office, speaks at a press conference in Washington, D.C., on Jan. 12, 2021.Sarah Silbige / AFP-Getty Images

Divergent perceptions of Trump

At the center of the disagreement were starkly different perceptions of Trump. The investigators, like the country, were deeply divided over the former president. D’Antuono saw Trump as most likely motivated by a desire to show off the classified documents. 

But Justice Department officials and some FBI officials believed that Trump’s continued possession of the documents was a direct threat to national security. They worried that China, Russia, or another foreign rival could infiltrate Mar-a-Lago and gain access to the documents. Not acting quickly could expose U.S. secrets, spies, or spying methods.

After roughly an hour, the meeting ended in deadlock. Senior FBI officials were unable to change the views of D’Antuono and other agents in the Washington field office. D’Antuono would have to be ordered to conduct the search by FBI Director Chris Wray or Deputy FBI Director Paul Abbate.

After the DOJ officials left, the FBI officials spoke alone. D’Antuono and others from the Washington field office expressed a new concern. They noted that the draft search warrant included a potential criminal charge against Trump that they did not recall seeing before Section 2071 of Title 18. 

The law made it illegal for an individual who possesses government documents to “willfully and unlawfully” conceal, remove, mutilate, obliterate, falsify, or destroy them. If a person is convicted of the charge, they shall “be disqualified from holding” any federal office.

“The barring from office charge,” D’Antuono recalled. “People saw that charge as ‘Aha, is that DOJ’s effort to get Trump?’”

Other FBI officials did not consider Bratt to be politically biased. Instead, they feared that Trump’s years of attacks were now impacting the decision-making of current FBI agents.

“They had a lot of co-workers who were impacted by Crossfire Hurricane,” said the former senior FBI official, referring to agents who were fired for their work on the Trump-Russia investigation. “The lesson some in the FBI took away was: stay away from politically charged cases — they can ruin your career.”

The following day, tensions between DOJ and FBI officials flared again. George Toscas, a DOJ official who had attended the combative meeting by phone, scolded D’Antuono in an email for resisting the search. 

“You are way out of line on substance and form,” Toscas wrote. “You and your leadership seem to have gone from cautious to fearful.”

D’Antuono, who felt he had been called a coward, was irate. He believed he was simply being logical and methodical. “I take it to heart to do the right thing in the right way for the right reasons,” he said. “They put such urgency into getting into Mar-a-Lago, for the circumstances, it just didn’t smell right, it didn’t feel right.”

FBI Deputy Director Paul Abbate testifies at a congressional hearing on July 30.Allison Bailey / AFP-Getty Images

The following day, an official known to few Americans ended the debate over searching Mar-a-Lago. FBI Deputy Director Paul Abbate, who outranked D’Antuono, agreed that the bureau had taken the steps it needed to execute the search. 

On Aug. 8, agents dressed in polo shirts and khakis — not jackets emblazoned with “FBI” — entered Mar-a-Lago and recovered 102 documents with classification markings that Trump had retained. 

After the FBI agents left Mar-a-Lago, D’Antuono, who had requested the polo shirts and khakis and been monitoring the search from Washington, was relieved. The agents’ arrival and departure from the resort had not immediately leaked to the press.

That ended just before 7 p.m. In a statement, Trump lambasted the search, declared it illegal and made numerous false claims, including that his home was "currently under siege" and "occupied by a large group of FBI agents.”

Boxes of records stored in a bathroom and shower in the Lake Room at Trump's Mar-a-Lago estate in Palm Beach, Fla.Justice Department via AP

What is Trump's goal?

One former senior DOJ official said that Trump’s goal regarding the DOJ and FBI has been clear during and after his presidency. 

“I think he is intentionally trying to weaken public confidence in the Justice Department and federal law enforcement in order to keep himself from going to jail,” the official said. “He tries to degrade any institution that acts as a check on his power. He degrades them systematically. It’s all part of a whole, lead­ing him to try to be able to get away with whatever he wants.”

Trump supporters denied this and said the former president has been unfairly charged by DOJ and FBI officials in the classified documents case and in the January 6th attack on the U.S. Capitol. Current and former DOJ and FBI officials dismissed those claims. They said Trump has been treated fairly by the DOJ and FBI and, if anything, received more deference than other defendants.

Experts said that Trump, to a greater extent than any other president in U.S. history, has successfully discredited the DOJ and FBI in the eyes of large groups of American voters. In an age of hyperpartisanship, it has proved impossible for the country’s most powerful federal law enforcement agencies to criminally investigate Trump or Joe Biden — and maintain broad public support.

In private, exasperated current and former DOJ and FBI officials complained that law enforcement institutions are being asked to settle the country’s political disputes, a task normally reserved for voters, elections, and Congress. They said law the DOJ and FBI were not created for, nor equipped to ease, the country’s polarization.

In his four years as president and three years as an ex-president Trump successfully used conspiracy theories, co-option, and threats to bend DOJ and FBI officials to his will. Those who dared to defy him had their reputations damaged and their careers derailed.

FBI agents have come to politically charged cases as no-win situations that can result in public vilification, the loss of their pensions, and, given Trump’s vows of revenge, potential criminal prosecution.

The former FBI senior official said he worries that young Americans may eventually not want to work in the DOJ or FBI. The country’s hyperpartisanship could erode their interest in serving as nonpartisan public servants. The result, he warned, will be politicized federal law enforcement agencies, cycles of political retribution, and, potentially, political violence.

“The cultural maelstrom, we were all part of it,” recalled the former senior FBI official. “You know that whatever decision you make you’re going to be crucified. You either do the search and get crucified by the Republicans; if you don’t do it, the Democrats crucify you.”

A week after the search, Fox News host Tucker Carlson suggested that D’Antuono, a skeptic of the search, was part of an FBI plot to get Trump. D’Antuono, who spent his career working as a public corruption investigator, lamented the public attack. 

“God and country for twenty-seven years and then you get blasted by Tucker Carlson and Jesse Watters and called corrupt,” D’Antuono said. “And my parents have been forced to see that. And my kids. That’s not right.” 

D’Antuono saw his work at the FBI as akin to that of a baseball umpire trying to call balls and strikes. Throughout his career in the bureau, D'Antuono said, he had always tried to be fair and treat people equally. 

“All I was trying to do was call a good game,” he said.

(Originally posted  at NBC and Adamfoxie was able to obtain From The good Folks at NBC)