11th Circuit Showdown: The Fight to Get the Documents to Charge against Trump

A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:

Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.

For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).

Two documents that are likely to be charged also include unclassified information:

  • The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
  • The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.

Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.

That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).

The Curiosity of Norm Pattis’ Third January 6 Client’s Delayed Arrest

On Wednesday (the time on the screen cap is Irish time), Norm Pattis — the Connecticut lawyer who fucked up and sent texts from his client Alex Jones, along with highly personal discovery from the CT Sandy Hook plaintiffs, to the TX Sandy Hook plaintiffs — tweeted that a head lawyer in CT wants him to serve a six month suspension for that ethical violation.

On Thursday, for a second straight time, the pre-trial hearing in the Proud Boy Leader case, in which Pattis represents Joe Biggs, was sealed to the public. One thing that has been a pressing discussion in that case that might merit sealing is the potential conflict of Biggs’ other lawyer, Daniel Hull, because he briefly represented co-defendant Enrique Tarrio in one of the civil suits against the Proud Boys.

If both Biggs’ lawyers had conflict problems, it might seriously roil the schedule of the trial, which is currently due to start next month. When Jonathan Moseley’s license was suspended, for example, the prosecution of his then-client, Oath Keeper Kelly Meggs, was halted until Meggs found a new attorney.

Meanwhile, Pattis’ other January 6 client, Jones sidekick Owen Shroyer, is supposed to decide by the end of the month whether he’ll take a plea or take his chances with getting superseded with others.

All of which makes it weird that Pattis took on a third January 6 defendant last week. Or perhaps we only learned that Pattis has long been representing one: The defendant is a guy named Douglas Wyatt, who was arrested for assault, civil disorder, and trespassing on the same day as his stepson, Jacob Therres.

It turns out Wyatt has been lawyered up and waiting for arrest since shortly after the attack. As his arrest affidavit describes, there were tips streaming in to the FBI about him starting the day after the attack, with a tip received on January 7, two tips on January 8, and two more tips on January 12, based in part on his social media postings.

The FBI interviewed him at his home in a suburb of Baltimore on January 29, 2021; while he admitted he was at the attack, he managed to get rid of the FBI before he said much more.

By April 2021, Wyatt was represented by some lawyer — Attorney-1 — who basically did DOJ the favor of calling a prosecutor to confirm that his client was the guy identified in one of the FBI’s wanted posters, BOLO 277.

On January 29, 2021, the FBI interviewed WYATT at his residence in Fallston, MD. WYATT admitted he had been present on January 6, 2021 at the U.S. Capitol, which he referred to as “the People’s House,” and felt he had the right to protest. However, WYATT claimed he did not have time to talk but took a business card and agreed to call the FBI in the future. WYATT later retained counsel (“Attorney-1”) and was not interviewed further. On or about April 6, 2021, Attorney-1 sent an email to an Assistant United States Attorney for the District of Columbia. The email stated in relevant part (with emphasis added):

“Mr. Wyatt did not go into the Capital building on January 6, did not assault a law enforcement officer, nor anyone else that day, and was not engaged in the destruction of any property. . . He had no intention nor desire to, nor caused any trouble and is not a member of any group which was involved in causing trouble on January 6. I am sending you this email because I noticed yesterday that my client’s picture is one of the several hundred pictures on the FBI website. That came as a surprise because the FBI has known who he is since early February.” [emphasis original]

The posting of pictures of Wyatt on FBI’s BOLO site, on March 26, 2021, could not have been a surprise, to Attorney-1 or to Wyatt. By February 2021, shortly after the interview, Wyatt had started searching the FBI’s site full of January 6 BOLO posters.

WYATT conducted several searches on Facebook in February 2021 regarding “fbi most wanted capitol riots.”

Wyatt may have been searching FBI’s most wanted Capitol Riot site in February because, on February 2, 2021, FBI had posted pictures of Wyatt’s stepson, Therres, BOLO 180. Therres is alleged to have thrown a plank that hit a cop in the head and did real injury.

So Wyatt was monitoring whether the FBI was onto him in February 2021. Yet it wasn’t until November 14, 2022 when these two men were arrested.

You’ve got to wonder why the government took 21 months to arrest these guys, living an hour away in Maryland, after almost immediately confirming Wyatt’s ID. Especially given Therres’ recent arrest record (Therres’ own detention response says this may not be entirely accurate).

In this case, at least as described by the timeline laid out in the arrest affidavit (which I’ve laid out below), FBI got immediate notice of Wyatt’s participation. But they may not have looked too closely — they may have believed Attorney-1’s denials — until they first started confirming Therres’ identity, with his familial tie to Wyatt, starting in August 2021.

That still doesn’t explain the delay since April, when the FBI had solid IDs on both father and stepson.

Which brings me to a few of the reasons I started looking at this arrest more closely.

His arrest affidavit describes how Wyatt successfully wrestled the Gadsden flag of another rioter away from a cop.

WYATT also helped pull away a protestor’s flag, shouting “get the fuck off that” as an officer attempted to grab the flag away from the protestor:

It also describes how, after the cops on the West Terrace are first overwhelmed he filmed that. That’s interesting because for an hour of the insurrection, he parked himself on an enormous Trump flag (see the significance here) and at times appears to make hand signals.

It’s almost like he was providing others feedback, though Therres’ detention memo says, “there is currently a lack of evidence concerning coordination with others before January 6,” at least regarding Therres. If FBI delayed the arrest to try to see if Wyatt had coordinated with others — besides handing Therres the plank he threw — they may yet to have found evidence before searches done with their arrest.

Which brings me back to Norm Pattis.

When the Sedition Hunters first started focusing on Wyatt’s activities months and months ago, they gave him a hashtag like they do everyone else.

They named him #InfoSprayer, based on his use of spray against cops, and his hat: An InfoWars hat. (Therres was dubbed #NelsonPostThrower.)

I’ve emailed Pattis to see if he would say whether he was the Lawyer-1 described in the affidavit; I have yet to get a response. If he was, though, it would mean around the time Wyatt was given an InfoWars moniker, Wyatt was lawyering up with Alex Jones’ lawyer, a Maryland guy counterintuitively hiring a Connecticut lawyer for legal troubles in DC.

It’s weird enough that Norm Pattis filed as Wyatt’s lawyer last week.

It would be more interesting still if Wyatt hired Pattis back when the FBI first started investigating him.

Update: Hmmm. DOJ charged Therres by himself. Wyatt has, separately waived the preliminary hearing.

Timeline

January 7, 2021: First tip on Wyatt submitted: “Check out his Facebook, too. He has posted videos as well.”

January 7: Wyatt comments on Facebook that “I was there.”

January 8: Wyatt comments on Facebook that Ashli Babbit “was in the wrong for breaking the window” … “I did not enter the capital or engage the police.”

January 8: Second tip on Wyatt: “Pictures of Douglas Wyatt at/in the Capitol on the day in question.”

January 8: Third tip on Wyatt: “I’m simply reporting a former FB friend for his part in the terrorist acts in Washington D.C. on January 6th.”

January 12: Fourth tip on Wyatt: “Saw Suspicious FB comment and checked his page. These were associated with a ‘profile’ attached. Douglas Wyatt lives in Fallston, MD…”

January 12: Fifth tip on Wyatt: “Made suspicious comments on FB post which led me to snoop his profile. Found this and wanted to share. FB pick is from previous ‘protest’ but comments he will be there on Wednesday.”

January 29: FBI interview of Wyatt.

February 2: Therres’ picture posted as BOLO 180.

February: Wyatt searches for “fbi most wanted capitol riots.”

March 26: Wyatt’s photo posted as BOLO 277.

April 6: Attorney contacts DOJ about Wyatt.

August 5: First tip on Therres.

September 20: FBI matches Therres BOLO to Maryland ID.

Late October: FBI searches for now-deleted Facebook content of Wyatt.

October 29: FBI accesses Facebook account for Wyatt’s spouse, matches gloves used at attack.

November 5: Therres’ probation officers confirm BOLO ID.

November 23: FBI reviews video of Therres throwing plank.

November 29: FBI reviews video of Therres’ alleged assaults (this may have been the first that FBI realized Wyatt’s interactions with Therres at the attack, including that he handed Therres the plank with which Therres allegedly injured an officer; thus far Wyatt is not charged with abetting the assault causing injury charged against his stepson.

December 14: Second tip on Therres, reporting he tasered 4 police officers.

April 5, 2022: Close contact of Therres IDs his BOLO, relays that Therres was “very vocal” in social circle about “inflicting violence on police officers, with potentially a taser.”

April 6: FBI access previously obtained Wyatt’s Meta content showing contemporaneous posts about his participation.

April 19: FBI agent who interviewed Wyatt confirms ID.

What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

Merrick Garland Names War Crimes Prosecutor Jack Smith to Oversee Trump Investigations

To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible date for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.

The jurisdictional boundary is of interest: Anyone who crimed at the Capitol will be prosecuted by DC US Attorney Matthew Graves. Anyone who was not physically present at the Capitol would fall under Smith’s investigation.

It’s unclear where Alex Jones would fit in that schema. Roger Stone, though, would be moved under Smith.

My favorite part of the order appointing Smith is this part:

The language authorizing a Special Counsel to investigate anything that “might arise directly from this investigation” is standard Special Counsel language. It generally covers efforts to obstruct the investigation.

Only, usually, it only appears in the subjunctive, covering matters that might arise, in the future.

This authorizes Smith to investigate things that already have. Which would only be necessary if such matters had already arisen.

The order also authorizes Smith to spin off prosecutions.

Again, that’s not boilerplate. It may suggest Garland has already seen evidence of criminality that could and should be spun off.

Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain advantages, two of those named Ginni and Jim.

But otherwise, the investigation continues with — as Garland said — urgency.

Update: Overnight I thought of this: Garland said there were recent developments, plural, that led to this decision. One could be the GOP taking over control of Congress. After all, Scott Perry, head of the Freedom Caucus, must be a subject of this investigation. But it’s not outside the realm of possibility that the incoming House Judiciary Committee Chair is too. And depending on the final split in Congress, it’s also not outside the realm of possibility that enough members are under investigation — with Perry, Jim Jordan, Marjorie Taylor Greene, Andy Biggs, Paul Gosar, and Matt Gaetz — that it could, briefly anyway, alter the majority in Congress.

Aileen Cannon’s Special Master Review Helped DOJ Prepare for a Key Witness Interview

My impression of DOJ’s reply brief in their 11th Circuit appeal of Judge Aileen Cannon’s decision to appoint a Special Master to review the files seized from Mar-a-Lago is that they’ve gotten whatever benefit they could get from the Special Master review and now that the election pause has passed, they’re really impatient for the injunction on their investigation to be lifted so they can interview the last few witnesses. That probably includes Trump assistant Molly Michael.

The reply repeats the arguments DOJ made in their opening brief: Judge Cannon abused her authority by getting involved in a case where there was no evidence of callous disregard for Trump’s rights.

But even before that, it calls out Trump for totally changing his tack, no longer arguing that some privilege merits withholding documents from the government, but instead the Tom Fitton theory that Trump could simply convert Presidential Records into his own property by packing it in a box and shipping it to Mar-a-Lago. Since this is a new argument, it’s not proper.

None of those three filings cited Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012), upon which Plaintiff now relies (incorrectly) in claiming authority to convert Presidential records into “personal” records by removing them from the White House. And nowhere in those filings did Plaintiff suggest that he had exercised that purported authority with regard to the seized records—much less why that would warrant an injunction and special-master review. Rather, Plaintiff asserted that the case “center[s] around [Plaintiff’s] possession . . . of his own Presidential records,” DE.58:2 (emphasis added); see also DE.127:8 (transcript) (“What we are talking about here, in the main, are Presidential records in the hands of the 45th President of the United States.”); DE.127:9 (similar). Unsurprisingly, the district court did not rely on this novel PRA theory in issuing its injunction and appointing a special master.1 Because this argument has been “raised for the first time on appeal,” In re Dukes, 909 F.3d at 1322, it need not be considered here.

Importantly, even if the Fitton theory were true, it’d be irrelevant. DOJ had a warrant to obtain these records. Warrants authorize the seizure of personal records all the time. If Trump is lucky, DOJ suggests, he might be able to get some of these records back after DOJ closes the investigation.

Even if Plaintiff could have designated the seized records as “personal” records, that would provide no basis for an injunction or special-master review. A document’s categorization as a “personal” record does not preclude the government from obtaining it through a search warrant or using it in a criminal investigation. Law enforcement officials routinely conduct judicially authorized searches to seize evidence of crimes, see Fed. R. Crim. P. 41(c)(1), and that evidence routinely consists of personal effects, including personal papers. Nothing in the law prohibits the government from using documents recovered in a search if they are “personal,” and the search warrant here authorized the government to seize materials stored collectively with records bearing classification markings regardless of their status as “personal” or Presidential records.

[snip]

Simply put, the government can review and use materials obtained in its judicially authorized search regardless of whether they are Presidential or “personal” records. At most, a record’s categorization under the PRA speaks to whether that record would be provided to NARA or returned to Plaintiff after the government’s investigation concludes.

DOJ also talks about all the ways that the Special Master process has already mooted any legitimate demand Trump might have had. DOJ returned to Trump any legitimately privileged documents, as they tried to do before Judge Cannon prevented them from doing so as to create a harm she needed to fix.

The government’s filter team has also now returned to Plaintiff a limited set of documents segregated by the filter team—as it sought to do at the very outset, see U.S. Br. 25—thus mooting any hypothetical disputes about attorney-client privilege as to those documents. See DE.138:2.

He has copies of all the non-classified documents, which would be the outcome of any successful Rule 41(g) fight.

Moreover, Plaintiff has now had an opportunity to review all of the seized records except those bearing classification markings, and the government has no objection to Plaintiff retaining copies.

Trump has conceded three potentially privileged documents found during the initial scoping were not privileged. (See this post where I explained how DOJ got Raymond Dearie to put this detail into the public record.)

The government’s opening brief noted three instances in which the investigative team, following the filter protocol and applying broad criteria, subsequently ceased review of a document and provided it to the filter team for further review. U.S. Br. 39-40. The filter team concluded that none of the three documents is privileged; and—as the public record now reflects—Plaintiff agrees. See DE.138:2 (Plaintiff not asserting privilege as to document referred to as B076); DE.158-1:1 and DE 162 (same, as to “Document 21” and “Document 22”); see also DE.148 (sealed filter team filing describing these documents).

That leaves just one fragment of a document over which Trump has claimed attorney-client privilege.

The sole remaining dispute pertains to one portion of a one-page document, see DE.182-1:1, 7 and the filter protocols originally directed by the magistrate judge provide a mechanism to resolve such disputes, see MJDE.125:31-32

[snip]

Finally, Plaintiff states that after the special-master review, he “will be entitled to return of some of the seized items,” including “not only [the] privileged materials but also [] the seized materials (i.e., personal records) unrelated to the investigation.” Br. 61. That assertion is wholly unsupported. At most, Plaintiff is entitled to a single page of a single document if he prevails on a disputed claim of attorney-client privilege.

7 That document was identified by the investigative team during the special-master review and, consistent with the filter protocol, it was referred to the filter team. The filter team has filed a sealed letter to the Special Master regarding its position. DE.186.

Effectively, the Special Master process has mooted any legal claim of injury Trump might have so even if Cannon had properly intervened, there’d be no point in continuing.

Which brings us to DOJ’s response to Trump’s claim that DOJ has presented no proof that the injunction on using the unclassified documents is causing harm. In its original brief, DOJ talked about the significance of the unclassified documents that are “intermingled” or “comingled” with classified documents to establish possession or timeline. This reply repeats the emphasis on “comingled” documents, but also discusses the import of when materials were “compiled.”

Second, although this Court’s stay mitigated the injunction’s most severe harms to the government and the public, the rest of the injunction has impeded the government’s investigation in other ways. The sole purpose for which the government has been permitted to review the seized unclassified records is to participate in a prolonged dispute with Plaintiff about their categorization. The government has been enjoined from using unclassified records comingled with records bearing classification markings to (for example) piece together timelines related to when these materials might have been compiled or accessed, or to question witnesses who may be familiar with these documents’ contents. Beyond that, the government cannot be expected to disclose to Plaintiff specific investigative steps that it would take absent the injunction. [my emphasis]

Which brings me to my suspicion that DOJ is anxious to interview Molly Michael with these unclassified documents.

Molly Michael was, at the end of Trump’s Administration, his Executive Assistant; she moved with him to Mar-a-Lago. Here she is, being interviewed by the January 6 Committee.

As Maggie Haberman noted days after the search, the FBI had reached out to Michael for an interview.

It’s highly likely that Michael either used or had access to the drawer in Trump’s office from which 144 items, for a total of 989 pages, were seized. All of those documents went through the privilege review and it’s likely that many of the 60-some potentially privileged documents were from that desk. Indeed, these two documents, treated as potentially privileged, are most likely from a desk that was in active use.

These two documents are ones over which Trump is making some of the most remarkable claims. According to an October 20 filing, DOJ had agreed with Trump that these were personal documents (even in spite of their reference to “POTUS), yet Trump was claiming Executive Privilege over them.

Given the Presidential Record Act rules that if a document has been shown to the President, it becomes a Presidential Record, by far the best explanation for the agreement these are personal documents over which Trump is trying to claim privilege — as I noted here — is that they reflect the Mar-a-Lago office running like his White House office used to, with his assistant, Molly, providing meeting requests and questions for Trump to review. The reference to “POTUS” cannot be a reflection of his position if and when he did review them, because if he were still POTUS, they would be Presidential Records. Rather, the moniker likely reflects that all the sycophants at Mar-a-Lago still call him POTUS.

Over the course of the privilege dispute, then, Trump provided compelling evidence that these two documents were created after he left office. He probably also confirmed that Molly Michael was the one accessing these documents.

Thanks Don!

That’s important for the document I’ve called a mini smoking gun: the document that includes a Secret document, a Confidential document, messages from a pollster, a religious leader, and a book author, as well as one page (SM_MAL_00001190) over which Trump is claiming attorney-client privilege.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

This document as a whole is the one other one that Trump is trying to withhold entirely under an Executive Privilege claim over what he says is a personal document.

This is obviously a document Trump would badly like to claw back from the government — and for good reason: it is evidence that he was accessing classified records in conjunction with his business after leaving the White House.

Note the government calls it a “compilation,” the same word included in the Reply brief. The government wants to show unclassified documents to witnesses to find out when they might have been compiled.

If I’m right that this document comes from the same drawer as the Molly’s Questions for POTUS Approval documents, then she is likely the witness who can say when it was compiled. She would be the witness who could explain why Trump integrated a Secret document into his ongoing personal business. She might even testify that she saw the entire compilation, including the page over which Trump is claiming privilege, which would vitiate that privilege claim.

If I’m right, then the government is probably pretty anxious to put Molly Michael in front of a grand jury with these unclassified documents. They just need the 11th Circuit to proclaim all these Trump claims bullshit, as they’re likely to do after next week’s Tuesday hearing.

This would be a priority for another reason.

If the government is going to charge Trump, they need to find documents that are sufficiently damning to persuade the jury (and the public) that what Trump did was corrupt, but not so sensitive that agencies would refuse to declassify the documents for trial. This document, along with the Roger Stone clemency, is the sweet spot: They both include a Secret document. They both were stored in a readily accessible desk drawer. And they both reflect more personal business.

Indeed, the other most heated fight over designations, after this compilation document, pertains to a series of other clemency grants. Trump is trying to claim that documents that — by definition — could only exist in the context of his role as the President, are personal.

Filter Log Document 8 (portion) (A-023 to A-024) and

Filter Log Document 10 (A-031 to A-032)

Filter Log Document 12 (portion) (A-034 to A-035)

Filter Log Document 13 (portion) (A-041 to A-042)

The four bullet-pointed commutation analyses are Presidential records because they relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. The four analyses were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity. Plaintiff relies on Judicial Watch to “deem” the Presidential records to be personal records, but the dicta in that non-binding district court decision provide no authority to automagically recharacterize documents that are “Presidential records” within the meaning of the Presidential Records Act, 44 U.S.C. § 2201(2). See ECF 173, at 4-6 (global issues brief).

The four commutation analyses cannot be withheld from the Executive Branch on a claim of executive privilege because, among other reasons, Plaintiff may not assert the Executive Branch’s privilege to withhold documents from itself. See ECF 173, at 12-13 (global issues brief).

These are parts of the clemency packages for Ted Suhl, Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner. While it’s certainly possible Trump may have had corrupt purpose to hide the internal deliberations over these pardons from prosecutors, meaning they’d be evidence of a crime — albeit a different crime — themselves, this fight may also be a proxy for a fight over the Stone clemency which, unlike these four documents, includes a document classified Secret.

Trump’s lawyers may have next to no experience on Espionage Act cases. But they’re not dummies. They can figure out which documents are most likely to get Trump charged. And the ones they’re fighting hardest to claw back are the clemency packages and the “compilation.”

In fact, they’ve just spent the last two months emphasizing to the government that they believe these are the most damning documents (at least thus far), going so far as confirming that several of them post-date the time when Trump (and maybe Molly Michael) would have legal access to classified documents.

When this Special Master process started, there was the possibility that Trump might confirm things that helped DOJ prosecute him, most notably by confirming the inventory (though DOJ has made another bid to get Dearie to force this issue or deem accuracy claims to be waived).

But they did get something: They got Trump to confirm certain details, including dates, about records that were likely in his desk drawer. Which means they’ve helped prepare DOJ to interview whoever had control of that desk drawer.

Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

Spy Versus Spy Amid the Proud Boys, Again

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

Devlin Barrett’s “People Familiar with the Matter”

As Devlin Barrett’s sources would have it, a man whose business ties to the Saudis include a $2 billion investment in his son-in-law, a golf partnership of undisclosed value, and a new hotel development in Oman would have no business interest in stealing highly sensitive documents describing Iran’s missile systems.

I’ll let you decide whether the claim, made in Barrett’s latest report on the stolen documents case, means the FBI is considering the issue very narrowly or Barrett’s sources are bullshitting him.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

Barrett has a history of credulously repeating what right wing FBI agents feed him for their own political goals, which means it’s unclear how seriously to take this report. Particularly given several critical details Barrett’s story does not mention:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

To be sure: I think a good many of the documents Trump stole — including the most sensitive ones — were stolen as trophies. We know that’s why Trump stole his love letters with Kim Jong Un. And the visible contents of the FBI’s search photograph show that the most highly classified documents were stored along with Time Magazine covers.

But this report, from sources described as “people familiar with the matter,” bespeaks a partial view of the investigation, one Barrett hasn’t bothered to supplement (or challenge) with public records.

That description, “people familiar with the matter,” is the same one Barrett uses to remind readers that he got the scoop on the Iranian missile documents that his sources don’t think the Saudis would have any interest in, and his scoop that Trump stole documents about some country’s defense system (which, if the country is Iran, Saudi Arabia, or Israel, would be of acute interest to Trump’s golf partners, too).

The Washington Post has previously reported that among the most sensitive classified documents recovered by the FBI from Mar-a-Lago were documents about Iran and China, according to people familiar with the matter.

At least one of the documents seized by the FBI at Mar-a-Lago on Aug. 8 describes Iran’s missile program, according to these people, who spoke on the condition of anonymity to describe an ongoing investigation. Other documents described highly sensitive intelligence work aimed at China, they said. The Post has also reported that some of the material focuses on the defense systems of a foreign country, including its nuclear capabilities.

There’s no guarantee that these “people familiar with the matter” are the same sources for both the information about the most sensitive documents Trump stole and the current understanding about Trump’s motive. It could be that Barrett is using the same vague description to protect his source(s).

But they could be the same sources. Indeed, the blind spots in Barrett’s reporting may stem from having sources familiar with the national security review of the documents, but not necessarily the ongoing investigation into it. Some of the WaPo’s past reporting on this story seems to come from people who’ve seen the unredacted affidavit, but not necessarily the investigative files.

And that’s interesting, among other reasons, because the leak to Barrett about the most sensitive documents has formed the primary harm claimed by Trump’s lawyers in filing after filing after filing, starting literally the day after Judge Aileen Cannon cited leaks in her original order enjoining the criminal investigation.

The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported “classified records,” see, e.g., Devlin Barrett and Carol D. Leonnig, Material on foreign nation’s nuclear capabilities seized at Trump’s Mara-Lago, WASH. POST (Sept. 6, 2022), https://www.washingtonpost.com/nationalsecurity/2022/09/06/trump-nuclear-documents/, and would presumably be prepared to share all such records publicly in any future jury trial. However, the Government advances the untenable position in its Motion that the secure review by a Court appointed and supervised special master under controlled access conditions is somehow problematic and poses a risk to national security.

Trump cites Barrett’s work right alongside EO 13526 as “Other Authorities” central to Trump’s argument:

In any case, given the precedent of Nghia Pho (which may still be the only 18 USC 793 case cited by DOJ in this proceeding), it may not matter if Trump stole all or only some of these documents because he’s a narcissist. Trump brought a stack of classified documents to a foreign intelligence target and left them unprotected as multiple suspect foreigners infiltrated his resort. He continued to hoard such documents even after it was publicly reported that he had brought classified documents home.

During Trump’s Administration two men were sent to prison because, by bringing highly classified documents home for motives that had nothing to do with leaking, they made the documents accessible to Russian-linked sources, actions that ultimately led to a devastating compromise of US intelligence resources. Under Donald Trump’s DOJ, Pho and Hal Martin were not given a pass because they were serving their own ego.

So there’s no reason Trump’s narcissism, alone, should be a basis not to charge him.

Government Asks Raymond Dearie to Recommend Judge Cannon Lift Injunction on 2,794 Documents

The global issues briefs from DOJ and Trump in the Special Master proceeding have been unsealed (DOJ, Trump).

The focus of both filings address what DOJ calls Trump’s gamesmanship but which is basically the kind of Calvinball that Judge Aileen Cannon appears to love. For many, if not most, of the 2,916 documents at issue, Trump’s argument appears to be:

  • If valuable then Tom Fitton (meaning, the misapplied argument that the President can designate anything “personal” and therefore effectively take possession of Presidential Records merely by sticking it in a box)
  • If not Tom Fitton, then Executive Privilege (meaning, if Raymond Dearie is not impressed by misapplied Tom Fitton logic, then he should allow Trump to withhold documents under a privilege claim)

DOJ provides a lot of reasons that’s nonsense, including that if Trump thinks something is personal then it obviously can’t be privileged.

A key part of the argument, however, is that even if Trump were able to invoke Executive Privilege against the government, DOJ would overcome that here because of the criminal investigation.

Plaintiff’s assertions of executive privilege fail under United States v. Nixon, because the government has a “demonstrated, specific need” for the seized records in its ongoing criminal investigation. 4

4 Because the government satisfies United States v. Nixon’s “demonstrated, specific need” test, which applies to a sitting President, the Court need not consider Plaintiff’s status as a former President for purposes of this analysis. [citations omitted]

Trump dodges addressing the Nixon standard by complaining that he hasn’t seen the unsealed affidavit that authorized the search, and so the government has failed to reach the Nixon standard.

Although crucial to the executive branch’s decision-making processes, executive privilege is neither absolute nor unqualified. Nixon, 418 U.S. at 706. Rather, the Supreme Court has recognized that the privilege must “yield to the demonstrated, specific needs for evidence in a pending criminal trial.” Id. at 713. In providing this standard, the Supreme Court clarified that in order to overcome an assertion of executive privilege, the party seeking the privileged material must “clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.” Nixon, 418 U.S. at 700. The Supreme Court again affirmed this standard in Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004).

Currently, the affidavit in support of the search warrant which authorized the search of Mar-a-Lago is under seal, and, therefore, inaccessible to Plaintiff. Plaintiff is therefore unaware of the specific arguments relied upon by the Magistrate in issuing the warrant authorizing seizure of the documents at issue. Given that, Plaintiff must take the position that the Government has failed to clear the three hurdles articulated by the Court in Nixon.

In other words, in a civil challenge to a lawful warrant, Trump is saying he should be able to retain stuff by default until he has seen the warrant against him.

Which is one reason why something else the government does is so interesting. It asks Dearie to recommend that Judge Cannon lift the injunction on all the documents — 2,794 out of 2,916 — over which Trump has not invoked either Executive and/or Attorney-Client privilege.

Finally, as the government has noted previously, the categorization of the records at issue as Presidential or personal does not ultimately affect the government’s ability to use and review them for criminal investigative purposes. See D.E. 150 at 4 n.*. Plaintiff has asserted attorney-client privilege only as to one document out of 2,916 documents at issue here, and Plaintiff has asserted executive privilege as to only 121 documents. As to the remaining 2,794 documents, Plaintiff does not assert any privilege that would bar the government’s further review and use of these materials for purposes of the ongoing criminal investigation. Although Plaintiff and the government disagree as to the proper categorization of numerous records as “personal” or “Presidential” for the purposes of PRA, neither categorization would supply a basis to restrict the government’s review and use of those records. Indeed, personal records that are not Presidential records or government property are seized every day for use in criminal investigations. Thus, absent any specific justification from Plaintiff for continuing to restrict the government’s review and use of the 2,794 records for which Plaintiff has not asserted any privilege, there is no reason to maintain the Court’s injunction as those those records.

This takes Judge Cannon’s premise on its face, as if this is just a normal Special Master review to ensure that the government doesn’t access any privileged documents for an investigation. If that were the case, she would easily approve the sharing of all documents over which the plaintiff had not made any privilege claim.

It may or may not work. But if Dearie were to act on this request immediately, then Cannon would either have to override it or grant it before the 11th Circuit makes its final decision on the appeal. Judge Cannon’s intervention is inappropriate on its face. But if she refuses to release non-privileged documents to the government, it will become clear that she is doing nothing more than attempting to thwart the criminal investigation of Trump.

Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.

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