When the Justice Department filed its opposition to a Special Master, there were a number of elements that immediately stood out. The first that I noted was the most important: the allegation that the FBI believed that Trump or his associates “likely” acted to obstruct their investigation. Such public statements are always serious in a criminal case because they can commit investigators to the path of prosecution. I also later noted the curious inclusion of the now widely known photo of classified files that has been widely published. I warned that the photo could leave a misleading impression that this was how the documents were found by the FBI, which has occurred. I then asked why it was included as Attachment F. At best, it seems superfluous. At worst, it could be staging. That debate is now raging on cable programs and the Internet. Update: the photo came up in the hearing after the Trump counsel called it “perfectly staged” but there was no ruling on the Special Master.
As I mentioned earlier, the photo was entirely unnecessary. The attachment is referenced only once in noting that documents had covers with classified markings. That point has not been disputed and the court hardly needs a picture of these documents to establish the point.
Then there is the picture itself. I immediately flagged the danger of people misreading the photo because the photo did not state whether this was a picture of how the documents were found as opposed to placed by agents. That fear was quickly proved valid as various people assumed that Trump or his staff had left classified material strewn across the floor.
Putting aside that anticipated confusion, there remains the motive in the inclusion of the photo. Since I fail to see the need for this single photo, I have said that it appeared included for public consumption. Some on the left have insisted that it is “ludicrous” to suggest such a motive despite a series of leaks from the government as the Justice Department was in court demanding absolute secrecy.
The only textual reference is found on page 13 and simply says
“Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).”
Other basic facts in the filing did not seem to warrant such photo support. Yet, the reason for the concern is not simply because the photo was superfluous. It was also the photo itself. The documents were laid out for the photo and evidence marker with a box that prominently featured Trump’s collection of framed Time magazine covers. (Trump was previously ridiculed for his hanging of faux Time covers in his resort).
It is possible that the FBI was showing that these files were intermixed in that box with the framed Time covers. If so, that is an appropriate combination if it is being used not to show the covers as cited in the text but to show the commingling of documents raised in other parts of the filing. We simply do not know.
It is, also, entirely possible that the placement of the documents next to these Time covers was not intentional. However, a great number of photos were taken of the scene from individual documents to boxes to the storage room. Of all of those documents, the Justice Department selected this photo even though some of the covers had to be redacted. This was the only photo that the Justice Department wanted released into the public docket.
When combined with the leaks from the government, there is a reasonable concern that the photo was included not for the court but for public consumption to help frame the public debate. It is striking to see so many pundits on the left expressing shock that we should doubt that claims or representations of the government, particularly after the documented history of bias and false statements by Department officials in related Trump investigations.
In the end, this is not nearly as important as the affirmative statement that agents believed that obstructive conduct had occurred. Yet, with the objections to the leaks from the government, such concerns are magnified when the Justice Department is resisting the release of any information from its prior filings. That control of the framing of the public record is a huge advantage that the government has used in prior cases.