People familiar with the matter told NBC News on Friday that the Department of Justice suspects that former President Donald Trump still has documents he took from the White House.
The top counterintelligence official, Jay Bratt, recently communicated that concern to Trump's lawyers, the sources said.
The New York Times reported Thursday that the department believed that Trump had not returned all of the documents he took from the White House. This was confirmed by The Wall Street Journal.
The revelation leaves key questions unanswered, including whether the department has concrete evidence that Trump still holds classified material or just a suspicion based on inferences such as the empty envelopes with classified markings that were seized at Mar-a-Lago or information from the National Archives that it is still missing documents from Trump's presidency.
Various court filings from the department suggest that some presidential records are still missing.
In a September filing opposing U.S. District Judge Aileen Cannon's decision to bar the Justice Department from accessing documents seized at Mar-a-Lago, the department complained that her ruling barring the FBI and DOJ from further reviewing the records to determine any patterns in the types of records that were retained, which could lead to identification of other records that are still missing. The Justice Department pointed out empty envelopes marked as classified that the FBI seized at Mar-a-Lago as evidence that some of the docents could be missing.
The Times reported that Trump's lawyers were split over how to respond to the Justice Department's questions about any further records in the former president's possession, with one faction, led by attorney Chris Kise, suggesting they hire a forensic accounting firm to search for additional documents. The Times reported that other lawyers talked about Trump out of that idea. The reported disagreement hasn't been confirmed by NBC News.
The Justice Department didn't want to say anything. NBC reached out to Kise for comment.
Trump filed an emergency request Tuesday asking the Supreme Court to intervene in the case and allow a special master to review classified documents that federal agents seized from Trump's Florida estate. The request came in response to a ruling by the 11th U.S. The Circuit Court of Appeals held a Sept. 21 decision by the Circuit Court of Appeals that the Justice Department could resume using classified documents taken from Mar-a-Lago in its criminal investigation, but barred the special master from reviewing them.
The part of the federal appeals court's decision impairs the ongoing, time-sensitive work of the special master, according to Trump's lawyers. Any limits on the comprehensive and transparent review of materials seized in the extraordinary raid of a president's home erodes public confidence in our system of justice. The National Archives told a House Oversight and Reform Committee last week that some records from the Trump White House had not been turned over in compliance with the Presidential Records Act.
Several days after the FBI searched Trump's Florida property, a receipt of recovered items showed that agents found a trove of top-secret and other highly classified documents. 11 sets of classified documents were removed by federal agents, some of which were labeled secret and top secret.