WASHINGTON (AP) — Former FBI employees involved in the criminal investigation into President Donald Trump's retention of classified documents have been subpoenaed to appear before a grand jury in a broad Florida-based conspiracy probe, their lawyers revealed Thursday as they asked a judge to clarify whether they can testify without violating an order restricting the release of information.
The subpoenas require the former FBI employees to testify in Fort Pierce, Florida, as the Justice Department pursues an ill-defined theory of a “deep state” conspiracy to deprive Trump of his civil rights and keep him from power.
The investigation so far has been focused largely on former government officials who examined ties between Russia and Trump's 2016 presidential campaign, but the subpoenas disclosed Thursday hint at the far-reaching nature of an investigation that is also scrutinizing the FBI's 2022 search of Trump's Mar-a-Lago estate in Florida for classified documents. That search formed the basis of one of four criminal cases Trump faced between his first and second terms.
Justice Department officials are pressing ahead with the investigation after the resignation this month of Joseph diGenova, a Trump ally who had been brought in to help lead the probe that has animated right-wing commentators who have long alleged former law enforcement and intelligence officials conspired against the Republican president.
The filing on behalf of the subpoenaed employees tees up a fresh legal question for U.S. District Judge Aileen Cannon, the Trump-appointed judge who not only dismissed the classified documents prosecution of Trump but also sits in the Fort Pierce courthouse where the Justice Department has centered its yearlong conspiracy probe of Trump's perceived foes.
Cannon last February issued an order blocking the release of a report on the classified documents investigation prepared by special counsel Jack Smith, whose team in 2023 brought dozens of felony charges against the then-Republican candidate, and barring the release of information about the case to non-Justice Department employees.
Now, lawyers for the subpoenaed former employees are asking Cannon to clarify whether that order precludes their clients from being able to testify before the grand jury since they'll be asked about the investigation.
Without clarity, they say, they may be forced to decide between being in contempt of the order if they testify, “not providing full, unconstrained testimony" in order to comply with the order or invoking their constitutional rights against self-incrimination — an option they say “creates unnecessary negative options for innocent former civil servants.”
“Specifically, clients seek to confirm that they can freely discuss non-public information related to their work on the investigation with individuals outside the DOJ, including but not limited to the grand jury and client's own counsel, without running afoul of the terms of the order,” the lawyers wrote.
The attorneys observed that the Justice Department has already taken the position that testimony about the Mar-a-Lago investigation would violate Cannon's order, noting that government lawyers emailed attorneys for Smith before he testified before Congress that he was not permitted to reveal non-public information. But they say officials in the current conspiracy investigation in Florida have declined to articulate a position or seek clarity from the court.
The lawyers say their clients are happy to testify about the investigation if legally cleared to do so.
“If allowed by the court to testify unconstrained by the order, clients will readily provide to the grand jury a detailed account of the investigation, reasoning, decision-making, and other ‘non-public’ information spanning from the time the classified documents investigation was first referred to the FBI up through and including execution of the warrant," the filing says. “Clients will each detail their firsthand memories of investigating a properly predicated allegation that then-citizen Trump had unlawfully retained hundreds of highly classified documents at his Mar-a-Lago residence.”
The filing reveals new details about the scope of the investigations and negotiations with the government.
Submitted on behalf of a group of current and former agents and analysts who participated in the Mar-a-Lago investigation, the filing says that the FBI in July and August reached out to request voluntary interviews and told the attorneys that grand jury testimony would follow those interviews.
The lawyers say two of their clients received subpoenas on Monday. One individual was subpoenaed to testify next week and two others, including one represented by separate lawyers, have been subpoenaed to appear the following week, according to the filing.
They say the Justice Department has broached the possibility of giving immunity to the witnesses but has not formally offered that yet. But they say immunity wouldn't resolve the issues, in part because their clients don't believe they or anyone else involved in the Mar-a-Lago investigation broke any laws.
