Three people with knowledge of the situation said that late last year, a former White House counsel for President Donald J. Trump cautioned him that he would be held liable if he did not return official documents he had taken with him when he left office.
According to the sources, Mr. Trump was made aware of the gravity of the situation and the possibility of legal and investigative action if the documents—particularly any classified information—were not returned.
The account of the conversation is the most recent proof that Mr. Trump was made aware of the risks of holding onto documents that are currently the focus of a criminal investigation by the Justice Department into his handling of the documents and the potential for obstruction of his part or that of his advisers.
Mr. Trump gave over 15 boxes of records he had taken with him from the White House to the National Archives in January, not long after the conversation with Mr. Herschmann. 184 classified papers were found in the crates, according to the Justice Department.
However, Mr. Trump continued to keep a sizable collection of additional documents, some of which had the highest security classification, up until the point at which he had to turn over some of them in response to a subpoena in June and had more taken by the F.B.I. during a court-ordered search of his Mar-a-Lago home and the private club last month.
The unknown is the exact time and date of the meeting between Mr. Herschmann and Mr. Trump in late 2021. It was also unclear if Mr. Herschmann was aware of what was in the boxes, if at all.
However, at that point, Mr. Trump’s aides had been informed by the National Archives that some records, including the original copies of his letters to North Korean leader Kim Jong-un and the letter that former president Barack Obama had left for him, were missing. Officials from the archives claimed that at the time they received the information, there were around twenty boxes of records that had been in the White House but had never been transported to the archives but qualified as presidential records.
The National Archives had spent months attempting to get missing material from Mr. Trump, who was represented by Mr. Herschmann, a former prosecutor, at the time of the meeting.
According to the persons who overheard the meeting, Mr. Trump thanked Mr. Herschmann for the chat but was evasive when asked about his intentions to return the documents.
Mr. Herschmann declined to comment. He had defended Mr. Trump during his first impeachment hearing but worked to thwart various attempts by outside advisors to maintain him in office after he lost the 2020 election. Requests for a response from Mr. Trump’s spokesperson were not immediately fulfilled.
The encounter between Mr. Herschmann and Mr. Trump, which has not previously been documented, adds to the image of Mr. Trump’s meetings with a number of persons over the return of the papers in the months before the National Archives’ removal of 15 boxes of data in January of this year. Officials from the archives opened the boxes and found that they contained roughly 200 unique classified documents.
According to sources informed on their conversations, several of Mr. Trump’s advisors, even informal ones like Tom Fitton of the conservative legal advocacy group Judicial Watch, convinced the former president that he could keep the materials as personal records.
In addition to the investigation into possible improper handling of government records, Mr. Trump is also under investigation for a number of other matters. These include a thorough Justice Department investigation into the circumstances surrounding the attack on the Capitol on January 6, 2021, and a state investigation in Georgia into attempts to rescind the results of the 2020 election.
In June, Mr. Trump’s attorneys provided another tranche of confidential materials. On August 8, the F.B.I. executed a search warrant at Mar-a-Lago and recovered over 100 more distinct papers with classified markings.
The Justice Department is now prohibited from utilizing the information found during the search to further its criminal probe by a federal court in Florida. In order to continue its investigation and evaluate the threats to national security posed by Mr. Trump maintaining those roughly 100 sensitive papers in an unprotected place, the department petitioned a federal appeals court on Friday to grant the F.B.I. access to those records once again.
On Tuesday, Mr. Trump’s attorneys and representatives from the Justice Department are expected to meet with the special master, who has been charged with determining whether any information acquired during the search is protected by executive privilege or the attorney-client privilege.
Originally published on PalmNewsDaily, this article says: Trump Was Warned Late Last Year of Potential Legal Peril Over Documents