The “Wow, Pictures!” Tabloid Coverage of Trump’s Stolen Documents Is as Bad as Conspiracy Mongering

The other day, I mined the documents and photographs released in the government’s response to Trump’s bid to throw out his indictment based on a complaint that the FBI failed to preserve the order of documents in boxes.

Doing so, I showed that Trump had stored ten of the documents charged against him — including one classified under the Atomic Energy Act — under bubble wrap and a Christmas pillow.

 

I had to do a fair amount of work to figure that out, building on work I did years ago. I had to cross-reference the item number (28, as shown in the picture) with the box number (A-73, which you can find on the warrant return) to determine which box this was. I then cross referenced that with the table of charged documents in the filing.

Then I annotated the picture to describe which charged documents were found in the box myself. You can cross reference that with the indictment to learn what kind of documents are included in the stack in the picture.

All that under the bubble wrap and the Christmas pillow!

But that’s not why DOJ included the picture in its filing. DOJ included this picture, along with the two other pictures in that exhibit and the two in this exhibit, “to provide a sense of the variety of items in the boxes.” And Jack Smith’s team did that to show that FBI agents who conducted the search had no way of knowing that Trump knew (according to the interview of a former White House aide of his) precisely what was stored in which box, and therefore no way of knowing he might cite document order in his own defense.

Furthermore, this is not a case where reams of identically-sized documents were stacked neatly in file folders or redwelds, arrayed perfectly within a box. To anyone other than Trump, the boxes had no apparent organization whatsoever. The boxes contained all manner of items, including, for example, papers of varying sizes, from folded large-format items to tiny notes; clothing; picture frames; shoes; magazines; newspapers; newspaper clippings; correspondence; greeting cards; binders; and Christmas ornaments. The photographs attached as Exhibits 3, 8, and 16 provide a sense of the variety of items in the boxes. The notion that the precise ordering of materials within these boxes possessed any exculpatory value that would be apparent to the Filter Team when they opened the boxes is absurd.

These pictures also corroborate what filter team agents said about their efforts to retain the order of items in these boxes as they searched them for any potentially privileged documents, such as Agent 5’s description that it was impossible to retain the order because of the “[loafers], newspapers, post-it notes, golf balls, etc” she found in the boxes. For the most part, these were not boxes of file folders (like the one found in Joe Biden’s garage, the order of which FBI also disrupted; they were boxes of Christmas pillows and bubble wrap, and that’s one of several reasons why the document order within boxes was not maintained in all boxes.

There was a purpose to these photos, and it went well beyond slob-shaming the former President or just showing how DOJ released these pictures to portray Trump as chaotic. The photos and other exhibits make a specific rebuttal to an argument Trump is making: that FBI willfully mixed up document order to undermine a foreseeable future defense that was radically different to the one — that he knew the documents were there, but had declassified everything — he had been making before the August 8, 2022 search.

There was a purpose to these photos: To rebut a range of conspiracy theories designed to undermine rule of law and truth itself.

The coverage from most mainstream journalists (I excuse those who were stuck in Aileen Cannon’s courtroom who just threw up a post after that tedium) consisted of little more than “ooh, pictures!” which quickly turned into slob-shaming that failed to provide any context about the legal significance of the exhibits or the chain of custody they depicted.

There were several other things the filing and pictures were meant to explain: notably, what and how cover sheets got put into boxes, and — because Julie Kelly is a shameless propagandist — whether the FBI brought cover sheets for the sole purpose of framing Donald Trump.

This conspiracy theory started when Stan Woodward spent 1:50 examining physical document boxes. He took this picture, of Box A-14, which has only around 35 documents in it, all stacked up neatly, but otherwise spent little time examining this box — just 6 minutes.

This box was originally segregated because it had potentially privileged documents in it. Days later, an FBI agent discovered a single document marked with Top Secret markings. That document, dated May 6, 2019 and describing a White House intelligence briefing, is charged in Count 4 of the indictment.

Woodward made no claim that the cover sheet in this box, wherever it is, was out of place.

Woodward spent more time reviewing box A-15: 18 minutes. He didn’t take a picture (but the FBI did). Box A-15 was found with a binder in it, containing 21 Secret documents and 11 Confidential documents.

When Woodward inspected this box, he discovered that the order of the cover sheets marking classified documents reflected in the scan done for the Special Master review conflicted with the order he discovered them when he reviewed the box itself.

For this box, because it was one originally inspected after the FBI ran out of cover sheets they brought with them (they didn’t expect so many classified documents!), there were three sets of cover sheets used with the document. The generic cover sheet marking the highest level of classification mark found in the box, depicted in the picture above, which the FBI took to document its search; hand-written cover sheets they used to mark individual documents after they ran out of the normal cover sheets the day of the search;

And cover sheets marked with each individual document index ID (the “ccc” in the picture) after they indexed everything.

The documents in this box were indexed as “ccc” through “iii” and then “www” through “tttt.”

For this box, each of those three cover sheets served a different purpose. The first played a role in an evidentiary picture, to document the search, and yes, the FBI put that cover sheet there on purpose to both cover up classified information and to mark how sensitive it was.

The second was a place marker for each document taken from the box and kept more securely, and the third was a cover sheet to track each individual classified document.

But this box, in particular, ended up getting particularly jumbled because there were so many classified documents all appearing in a binder.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

I don’t excuse that — the FBI flubbed boxes in both the Biden and Trump investigations. But as noted, in this case, it won’t be relevant to any defense Trump will offer because these documents aren’t charged.

The fact that FBI used cover sheets to mark and cover the contents of classified documents when documenting the search (as in the two pictures above) led propagandist Julie Kelly to imagine that the original photo released in an exhibit back in August 2022 must be a set-up, with the FBI using a bunch of classified cover sheets solely to make Donald Trump look worse than he was.

Julie got way over her skis claiming that Jay Bratt lied when he introduced a reference to the picture by saying that, “Certain of the documents had colored cover sheets indicating their classification status.”

The photo was a stunt, and one that adds more fuel to this dumpster-fire case.

Jay Bratt, who was the lead DOJ prosecutor on the investigation at the time and now is assigned to Smith’s team, described the photo this way in his August 30, 2022 response to Trump’s special master lawsuit:

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court.

The frothy right has been trying to claim this photo was a frame job from the start. But Julie’s theory was a particularly stupid version of the conspiracy theory. If the idea was that cover sheets make the documents look worse than, say, visible classification marks like the ones visible if you look more closely, and the more cover sheets the more useful for framing Donald Trump, why not use cover sheets on all of them? In a piece that otherwise struggled with the difference between [Box] Two and [Box] Ten, Julie counted seven cover sheets in the picture. I think there are at least eight (plus another form of cover sheet) but — another data point that undermines her conspiracy theory — a Secret cover sheet is buried in the middle of the stack, useless for the propaganda value Julie’s conspiracy theory has dreamt up.

While last week’s filing didn’t take on Julie’s conspiracy theory head on (notably, Trump has not adopted her conspiracy theory, which should tell you something), it did include the materials to understand how the initial evidentiary picture got put together.

As noted in the Jay Bratt language Julie quotes, the contents in that picture were found in a container in the “45 Office,” what Mar-a-Lago staffers called Trump’s office. The warrant return described the box holding the most sensitive documents, item 2, as a “leatherbound box of documents.”

That’s one of many ways we can be sure that this picture — which the “ooh pictures! people were very excited about mostly on account of the Diet Coke bottles, which I think short-changes the cult Donald Trump picture in the right side — depicts the same box.

The next picture in that exhibit shows how that same box got labeled Box 2, the box that Julie the Propagandist would one day confuse with Item 10.

Another picture shows what the top of the box looked like (since this is post taint search — the unsigned Sandy Hook letter that some “ooh photos” journalists claimed must be a super sensitive document, on account of hiding the name of the child gunned down at Sandy Hook — may not have been on the top of the stack when the FBI first found it).

The filing even includes the photo log showing how the photographer took pictures first of the closet (Room F), then of the box, then of the contents of the box.

Here’s that evidence photo again, which would have been taken in the foregound of the wide view picture above, with the rolled up paper and the seeming book now appearing at the top of the picture, and the tacky dresser on the left.

The picture was misleading when released, but not for the reason Julie the Propagandist suggests. It was misleading because it suggested that Trump put his Top Secret documents in with his Time Magazine covers. He didn’t. He put them in a different box, a few feet away, also in his office closet with the awful carpeting.

The filing that Julie the Propagandist claimed vindicated her conspiracy theory does the opposite. The government filing reiterates the claim — the claim that Julie the Propagandist claims caught Jay Bratt in a lie — that “Certain of the documents had colored cover sheets indicating their classification status.”

The 45 Office consisted of the “ante room,” where Trump staff members had desks (Room B); Trump’s office (Room C); a closet attached to Trump’s office (Room F); and two bathrooms (Rooms D and E). Ex. 9. Entry photos were taken of the ante room, Trump’s office, and both bathrooms. Id. Filter Team agents then discovered in the closet a blue, covered, leatherbound box full of various papers, including numerous newspapers, newspaper clippings, magazines, note cards of various sizes, presidential correspondence, empty folders, and loose cover sheets for classified information, as well as documents marked classified. Ex. 10. FBI 13 conducted the privilege review of this box, with some brief assistance from FBI 5. ECF No. 612-11 at USA01291471. FBI 13 was careful to return all items to the box after reviewing them, but did not maintain the order of the items. Id. at USA-01291472; Ex. 11 at USA-01291691. FBI 13 found no potentially privileged materials in the box. ECF No. 612-1 at USA-01291485. After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. The Case Team agents seized the documents marked classified (as well as any cover sheets already attached) and segregated them. As they extracted the seized documents, they inserted placeholder sheets where they found them. [my emphasis]

To be sure, there’s still a step of this progression that the government didn’t include in its filing (again, this is not the primary focus of the filing because Trump has not adopted Julie the Propagandist’s conspiracy theory, at least not yet, and — one exhibit included last week also made it clear– Trump’s people had turned on CCTV surveillance before the search started, and investigators knew that).

Trump’s initial MTD included notes and last week’s filing includes a follow-up interview with Agent 13. Agent 13 was the primary person who did the filter search of the closet. The original notes describe the agent, “does recall seeing cover sheets inside box[,] don’t know one way or other if cover sheets in photo came from box.” In the follow-up, the agent described that the lid to the leatherbound box was on the box when they found it (meaning the evidence pictures thereafter reflect what happened after the filter search).

That testimony is utterly consistent with the picture: that at least some of the cover sheets in the picture are the ones Agent 13 found when they did the search. But you’d need to add the testimony of the photographer and the two investigative agents to learn whether all of them were, or learn whether any of the loose cover sheets in the box were also used in the photo.

Nevertheless, it’s a pointless conspiracy theory. Julie the Propagandist has made a big deal out of cover sheets used in the way cover sheets are supposed to be used: to convey that something is classified and prevent any incidental exposure. But the picture doesn’t, primarily, show cover sheets. Indeed, it shows at least ten documents without classified cover sheets (covered instead with blank cover sheets), virtually all with classification markings visible.

More importantly, what the filing and the original photo both show the chain of custody of a box that — no amount of squealing about cover sheets disputes — clearly shows at least 22 of the 24 documents alleged to have been found in the box, most with classification markings visible.

Tracking what these exhibits do explicitly and — with more effort — implicitly takes time. But responding to conspiracy theories with facile reporting squealing, “Ooohh pictures” serves nobody, except media outlets looking for free reporting and conspiracy theorists hoping to turn truth into a both-sides dispute.

Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose

The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.

But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.

I am an expert on the application of 18 USC 1512(c)(2) to January 6, and so can explain the significance of Justice Roberts’ ruling that it must involve making documents unavailable to an official proceeding.

Before the ruling, I had argued the court could do one of four things:

  1. Leave the application in place
  2. Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
  3. Limit its application to paperwork crimes
  4. Address the meaning of “corrupt purpose”

The court opted for option 3:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.

Or it may not.

Or it may not affect those who knew of the purpose of the vote certification.

After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.

If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.

There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.

Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.

It goes back to the DC Circuit to decide.

Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.

Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.

In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.

For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.

Aileen Cannon Confesses She’s Unable to Distinguish between Golf Balls and Nuclear Weapons

Depending on how you count, Aileen Cannon issued three or four decisions yesterday.

The most telling is an order letting Trump have a mulligan on whether his false attacks on the FBI pose a danger to society.

As Jack Smith’s team described in a filing, after a hearing on the matter on June 24, Judge Cannon permitted more evidence of what a menace Trump is, but ordered no additional briefing would be permitted.

During the hearing on June 24, 2024, the Court discussed with the parties (Hearing Transcript 6/24/2024 at 27) the potential need to supplement the evidentiary record regarding the Government’s Motion to Modify Conditions of Release, ECF No. 592. After the conclusion of the hearing, the Court issued a minute order setting the schedule and resolving the issue that the Court and the parties had discussed regarding the need for additional briefing. The minute order states: “Consistent with the instructions provided in open court, the evidentiary record on this Motion will be open until June 26, 2024, for the parties to file any additional evidentiary attachments/exhibits in support of, or in opposition to, the Motion 592. Any attachments/exhibits shall be docketed as a “Notice of Filing” (separated by exhibits) and limited to specific evidentiary submissions only. No additional briefing will be permitted.”

But then on Wednesday, Smith’s team brought out a bazooka, providing all the records showing Trump poses a threat to society (which I’ve linked below).

In advance of that, when Trump submitted a bunch of exhibits that seem totally off point, they requested leave — in two weeks — to say more.

President Trump respectfully requests leave to file a response to the expected Notice to be filed tonight by the Special Counsel’s Office. See 6/24/2024 Tr. at 27 (“If the defense requests an opportunity to file additional briefing, then you should make that very clear in — in any response that you file to the motion for additional evidence.”). The defense conferred with the Special Counsel’s Office today and understands that the Special Counsel intends to file numerous exhibits not previously relied upon in seeking its Motion for Modification of Conditions of Release. President Trump respectfully requests two weeks to file a response to the newly submitted evidence.

So Judge Cannon pinky swore, invented a reason to retract one of the only definitive orders she issued against Trump, and created another five weeks of delay over the question of whether Trump is a menace.

PAPERLESS ORDER: In light of the extensive, newly submitted materials filed by the Special Counsel and Defendant Trump in support of and/or in opposition to the Special Counsel’s Motion to Modify Conditions of Release 592, the Court will permit the parties to file one final supplemental brief in response to those newly submitted materials, not to exceed 10 double-spaced pages, on or before July 5, 2024. The Court takes note of the additional court orders included in composite exhibit 11 to the Special Counsel’s recently filed Notice 652 . Consistent with the Court’s statements during the July 25, 2024, afternoon hearing 649, the Court will consider such orders as cited legal authority on the Motion, not as part of the developed evidentiary record in this proceeding, and not for the factual findings set forth in those separate proceedings. The evidentiary record on the Motion is closed. Absent leave of Court, no further exhibits shall be attached to the authorized final supplemental briefs.

Cmon Aileen. You just gave this man five weeks to declare that his own texts aren’t what his own texts say.

At this point, journalists covering Judge Cannon need to put aside all pretense of normality, all pretense that one or another decision will doom Jack Smith’s case (never mind that what they often say misunderstands the evidence). That’s a category error.

That’s true because, the way things are going, this thing will never go to trial. And it’s also true because puff coverage of the actual substantive filings does nothing to rebut the very intentional propaganda that this effort is designed to generate, but only serves the cause of using this case to discredit rule of law and reality.

Which brings me to the other quasi-decisions Judge Cannon made yesterday.

On paper, she denied Trump a Franks hearing for his claim that the warrant to search his beach resort in any way lacked probable cause, dismissing one after another thing that Trump argued should have been included in the affidavit (and debunking that several were, as Trump claimed, misrepresentations).

Except for the last one. Judge Cannon ruled that a warrant searching a home for documents with classification markings and Presidential Records Act documents didn’t have anything to do with probable cause.

The final cited omission concerns the absence of a definition of “personal records” under the Presidential Records Act (PRA) and related caselaw on a former President’s authority to designate records as “personal” under that Act [ECF No. 566 p. 9 (citing Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 300–304 (D.D.C. 2012))]. According to Defendant Trump, the affidavit offered the reviewing magistrate some guidance on the relevant legal statutes and definitions, including the definition of “Presidential records” under the PRA, but it did not include a definition for “personal records” under the Act, which is “significant” in light of the affiant’s decision “to include caselaw regarding the NDI [national defense information] element [in 18 U.S.C. § 793(e)]” [ECF No. 566 p. 9 (referencing ECF No. 566-2 p. 27 ¶ 60 & n.2)]. As with the earlier items in the Franks request, the Motion fails to explain how inclusion of more legal provisions or supporting caselaw on a contested legal question such as the applicability of the Presidential Records Act would have defeated probable cause given the content of the affidavit. Nor does the Motion offer legal authority to suggest that inclusion of further discussion in the affidavit of a potential affirmative defense was legally required to be included as a matter of the Fourth Amendment.

But it did have to do with whether the particularity of Attachment B of the warrant was sufficient, which question she will hold — you guessed it — a hearing on!

To be sure, the Special Counsel raises compelling arguments that Attachment B satisfies the Fourth Amendment’s particularity requirement given its reference to “classification markings” and “classified material” in certain subparagraphs of that document [see ECF No. 567]. But the Court determines that some of the terms in that document (e.g., “national defense information” and “Presidential Records”), do not carry “generally understood meaning[s]” such that a law enforcement agent, without further clarification, would have known to identify such material as “seizable” property pursuant to Attachment B. Wuagneux, 683 F.2d at 1350; [see ECF Nos. 325, 377, 398, 402, 444 (briefing and argument on the term “national defense information”)].6 This argument also relates to Defendant Trump’s claim that searching agents had impermissible discretion in executing the search because of the ambiguity of “certain terms on the illustrative list in the warrant’s subparagraphs” [ECF No. 566 p. 13]. Under these circumstances, even accepting the need for practical flexibility in weighing particularity challenges, the Court is satisfied that further factual development is warranted related to Defendant Trump’s particularity challenge as to Attachment B. 7

This is yet another attempt, by Cannon, to undermine what really are accepted definitions, because it hurts her feelings that she ruled differently in September 2022 and the 11th Circuit reversed her, soundly.

Put another way, though, Judge Cannon is making the argument that FBI agents can’t distinguish between golf balls and documents about nuclear weapons — a distinction that agents who conducted the search seem to have had no problem with. To prove that this is a problem, you would need to prove that any single box was seized with nothing that was obviously covered by the Presidential Records Act.

The part of this order that got far more attention than it merits, however, is that Judge Cannon also granted Trump another hearing on whether Beryl Howell ruled that Trump’s efforts to get Evan Corcoran to conduct an inadequate search merited a crime-fraud exception.

Much of that part of the decision is whiny insistence from Judge Cannon has the authority to revisit Judge Howell’s decision. She does!

Where it gets hysterical is where, almost a year of time-wasting after the indictment, Cannon tries to deny this is not about resource and time wasting.

This is not to say that the necessary evidentiary suppression hearing will devolve into a “mini trial,” as the Special Counsel suggests. The concern about crime-fraud “mini-trials” has been expressed by courts in the grand jury context, e.g., In re Grand Jury Investigation, 842 F.2d at 1226, and it makes sense that such a concern reasonably would apply in the post-indictment context, too, at least in a general way. But there is a difference between a resource-wasting and delay-producing “mini-trial,” on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress, on the other. More practically, the parties can meaningfully confer beforehand on the scope and timing of the hearing, raising appropriate objections with the Court as necessary; the parties can (and will) file exhibit and witness lists as is customary in federal criminal suppression litigation; and the Special Counsel can request the Court to impose reasonable limitations on the evidence produced to ensure efficiency and control. So too, for example, would it be appropriate to submit as an exhibit to the hearing the transcript of the District of Columbia grand jury proceeding (not yet received by this Court); any attachments already filed in connection with the Motion in this Court or in the grand jury proceeding; and any evidence submitted for review by the court that oversaw the grand jury proceeding (it appears no such exhibits were presented, although the matter is unclear).5 But it is an evidentiary hearing nonetheless, and it is before this Court—in this post-indictment context— to make factual findings on contested questions pertinent to the second prong of the crime-fraud exception.

Again, treating this as a serious legal opinion is a category error.

Aileen Cannon is sitting in her little court room in Fort Pierce denying the danger of Donald Trump — whether it involves storing nuclear documents under a Christmas pillow or whether it involves disseminating false claims about the FBI to people bound to respond with violence — all the while whining that her time-wasting is valuable.


Catalog of all the reasons Donald Trump is a menace

Exhibit No. 1: The Statements Giving Rise to the Motion to Modify Release Conditions— Trump’s Statements Alleging a Plan by the FBI to Kill Him and His Family in Connection with the August 8, 2022 Search of Mar-a-Lago

[link]

A. Trump Truth Social Post (May 21, 2024) [ECF No. 592-1]

B. Trump Fundraising Email (May 23, 2024) [ECF No. 592-2]

C. Trump Truth Social Post (May 23, 2024) [ECF No. 592-3]

D. Trump Truth Social Repost (May 24, 2024) [cited in ECF No. 592 at 7 n.3]

E. Trump Truth Social Post (May 25, 2024) [ECF No. 592-5]

Exhibit No. 2: Examples of Trump’s Surrogates Amplifying His Statements Alleging an FBI Plan to Kill Him

[link]

A. @patriottakes X Post Embedding Stephen Bannon Podcast Excerpt (May 21, 2024) [ECF No. 592-4]

B. @MZHemingway X Post (May 21, 2024)

Exhibit No. 3: Examples of Trump’s Statements Regarding the FBI

[link]

A. Trump Statement Regarding the Execution of the Mar-a-Lago Search Warrant (Aug. 8, 2022) [ECF No. 638-3]

B. Select Trump Truth Social Posts Regarding the FBI (Aug. 9, 2022 to June 9, 2023)

Exhibit No. 4: Examples of Threats Against the FBI Following Trump’s Statements

[link]

A. Select Ricky Shiffer Truth Social Posts (Aug. 9 to Aug. 11, 2022) [ECF No. 638-4]

B. In re: Search of Information Associated with Truth Social Profile with Username @rickywshiffer or Ricky Shiffer That is Stored at Premises Controlled by Truth Social, No. 1:22-mj-481 (S.D. Ohio Aug. 12, 2022; unsealed June 20, 2024) (Search Warrant Application) [ECF No. 638-1]

C. FBI Cincinnati Statement (Aug. 11, 2022; updated Aug. 12, 2022)

D. In re: Sealed Search Warrant, No. 9:22-mj-08332-BER (S.D. Fla. Aug. 22, 2022) (Order on Motions to Unseal) (highlighting added at 8-9)

E. United States v. Timothy Muller, No. 4:24-mj-479 (N.D. Tex. June 14, 2024) (Criminal Complaint) [ECF No. 638-2]

Exhibit No. 5: Examples of Trump’s Statements Regarding Judges and Court Staff

[snip]

A. Trump Truth Social Post (Aug. 4, 2023) [ECF No. 638-5] 1

B. Select Trump Truth Social Posts Regarding a United States District Judge for the District of Columbia Presiding Over a Criminal Case in Which Trump is the Defendant (Aug. 6 to Dec. 8, 2023)

C. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Civil Case Involving Trump (Oct. 28, 2022 to Nov. 29, 2023)

D. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Criminal Case in Which Trump is the Defendant (Mar. 26 to Apr. 30, 2024)

Exhibit No. 6: Examples of Threats Against Judges and Court Staff Following Trump’s Statements

[link]

A. United States v. Abigail Jo Shry, No. 4:23-cr-413 (S.D. Tex. Aug. 11, 2023) (Criminal Complaint)

B. Alan Feuer, Apparent ‘Swatting’ Incidents Target Judge and Prosecutor in Trump Election Case, N.Y. Times (Jan. 8, 2024)

C. Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (Affirmation in Opposition)

1. Ex. A: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (10/3/23 Trial Transcript)

2. Ex. B: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 20, 2023) (Other Order—Non-Motion)

3. Ex. C: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (Other Order—Non-Motion)

4. Ex. D: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Nov. 3, 2023) (Supplemental Limited Gag Order)

5. Ex. E: Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (11/21/23 Affidavit of Charles Hollon)

D. Peter Eisler, et al., Trump Blasts His Trial Judges. Then His Fans Call for Violence, Reuters (May 14, 2024)

Exhibit No. 7: Examples of Trump’s Statements Regarding Prosecutors

[link]

A. Select Trump Truth Social Posts Regarding the New York District Attorney (Jan. 31 to Mar. 24, 2023)

B. Select Trump Truth Social Posts Regarding the Fulton County District Attorney (Mar. 23 to Aug. 24, 2023)

Exhibit No. 8: Examples of Threats Against Prosecutors Following Trump’s Statements

[link]

A. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Feb. 26, 2024) (2/22/24 Affidavit of Nicholas Pistilli)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 21, 2024) (6/20/24 Affidavit of Nicholas Pistilli)

C. United States v. Craig Deleeuw Robertson, No. 2:23-mj-722 (D. Utah Aug. 8, 2023) (Criminal Complaint)

D. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Darin Schierbaum)

E. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Gerald Walsh)

F. United States v. Arthur Ray Hanson, No. 1:23-cr-343 (N.D. Ga. Oct. 25, 2023) (Criminal Indictment) Exhibit

No. 9: Examples of Trump’s Statements Regarding Potential Witnesses in the District of Columbia Case and Threats Following Trump’s Statements

[link]

A. United States v. Trump, No. 1:23-cr-257 (D.D.C. Sept. 15, 2023) (Motion to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings)

B. Trump X Post Regarding a City Election Commissioner (Nov. 20, 2020) and Excerpt of the Commissioner’s Public Testimony Before the House Select Committee to Investigate the January 6th Attack on the United States Capitol (June 13, 2022)2

C. Trump Truth Social Post Regarding a Former Chairman of the Joint Chiefs of Staff (Sept. 22, 2023) [ECF No. 638-5]

Exhibit No. 10: Trump’s Awareness of the Link Between His Statements and His Followers’ Responses

[link]

A. Select Trump Truth Social Posts (Apr. 4, 2024) [ECF No. 642, GX1]

B. Excerpt of Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023)

C. Trump Truth Social Post (Apr. 29, 2023) [ECF No. 642, GX2]

Exhibit No. 11: Relevant Court Orders Not Cited in the Government’s Pleadings

[link]

A. United States v. Trump, No. 1:23-cr-257, ECF No. 124 (D.D.C. Oct. 29, 2023) (Opinion and Order)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Mar. 26, 2024) (Decision and Order on People’s Motion for an Order Restricting Extrajudicial Statements)

C. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Apr. 1, 2024) (Decision and Order on People’s Motion for Clarification or Confirmation of an Order Restricting Extrajudicial Statements)

D. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 25, 2024) (Decision and Order on Defendant’s Motion to Terminate Order Restricting Extrajudicial Statements)

E. United States v. Taranto, No. 1:23-cr-229, ECF No. 27 (D.D.C. Sep. 12, 2023) (Order of Detention) (highlighting added at 4-6)

Sammy Alito Makes a Great Case Trump Censored Fox News’ Accurate 2020 Election Reporting

As Rayne noted, today a 6-Justice majority rejected the right wing conspiracy theory ginned up by Missouri and Louisiana’s since promoted Attorneys General claiming that the Federal government was making social media companies censor right wing speech.

Amy Coney Barrett’s majority opinion is worth reading for her footnotes attacking the Fifth Circuit’s credulous adoption of Judge Terry Doughty’s credulous adoption of conspiracy theories spawned by the likes of Matt Taibbi and Jim Jordan.

4The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.

I may come back to this.

For now, though, what I’m interested in is Sammy Alito’s apparent presumption that he should measure a media outlet — even a social media company!! — based on its apparent subservience to government actors.

To support his indirect argument that one of the plaintiffs, activist Jill Hines, has been injured, Alito first tries to lay out a case whereby Facebook has been cowed by the United States government, so he can later make a correlative argument that the Hines’ injury that, as ACB noted, “started [] before almost all of its communications [between Facebook and] the White House and the CDC,” was instead caused by it.

Alito really really wants to make this argument, because if he doesn’t he’s got nothing to show for this partisan effort! ACB even invokes a 7th Circuit quip about Alito’s efforts to go make this case for Hines: “[j]udges are not like pigs, hunting for truffles buried [in the record].”

Alito attempts this feat, in part, by arguing that social media companies are more susceptible to government pressure than other media companies. He claims that Presidents cannot put particular newspapers that cross him out of business, and then lays out ways that social media companies — Section 230, anti-trust, and (!?!?!) EU regulation — are more susceptible.

Second, internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company.4 And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.

His first examples have merit. This last one?

A matter that may well have been prominent in Facebook’s thinking during the period in question in this case was a dispute between the United States and the European Union over international data transfers. In 2020, the Court of Justice of the European Union invalidated the mechanism for transferring data between the European Union and United States because it did not sufficiently protect EU citizens from Federal Government surveillance. Data Protection Comm’r v. Facebook Ireland Limited, Case C–311/18 (2020). The EU-U. S. conflict over data privacy hindered Facebook’s international operations, but Facebook could not “resolve [the conflict] on its own.” N. Clegg & J. Newstead, Our Response to the Decision on Facebook’s EU-US Data Transfers, Meta (May 22, 2023).23 Rather, the platform relied on the White House to negotiate an agreement that would preserve its ability to maintain its trans-Atlantic operations. K. Mackrael, EU Approves Data-Transfer Deal With U. S., Averting Potential Halt in Flows, Wall Street Journal, July 10, 2023.24

It doesn’t make sense. What he’s talking about is driven by Executive Branch surveillance equities — largely, the Section 702 program made better known by Edward Snowden. In the case of surveillance, Facebook is the one that has leverage over the US, because the government wants to keep its surveillance visibility, and so Facebook can and has demanded that the government set up special provisions for European citizens, so Facebook can keep operating seamlessly.

Having laid out his argument that Facebook, with its service to half the global population base, is more susceptible to pressure than other media companies, Alito then cites individual communications to opine that poor Facebook was bullied into subservience by Executive branch demands.

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. See, e.g., 30 id., at 9361, 9365, 9369, 9385–9388. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” Id., at 9365. When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. Id., at 9371. They pleaded to know how they could “get back to a good place” with the White House. Id., at 9403. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. 9 id., at 2713; 78 id., at 25174. The picture is clear.

[snip]

Internal Facebook emails paint a clear picture of subservience. The platform quickly realized that its “handling of [COVID] misinformation” was “importan[t]” to the White House, so it looked for ways “to be viewed as a trusted, transparent partner” and “avoid . . . public spat[s].” [my emphasis]

Facebook’s efforts to retain good relations with the Biden White House, media critic Sammy Alito says, “were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.”

That’s mighty interesting, because when I read his description depicting Facebook as subservient to a President, all I could think of were the filings Dominion submitted to get Fox News to settle its lawsuit.

I’ve never seen subservience like that depicted in Fox News communications as they faced the possibility that Trump would cut them off for telling the truth about the 2020 election.

Immediately after Fox News called Arizona for Biden, Trump’s team called to complain.

Within minutes of the 11:20 pm Arizona call,FoxNews SVP and ManagingEditorofthe Washington Bureau Bill Sammon received an angry text from a member of Trump’s team claiming itwas WAY too soon to be calling Arizona. Ex.192 Ex.140, Sammon 107:8-108:11. Minutes later Sammon received a similarly angry phone call from White House Chief of Staff Mark Meadows. Ex.140,Sammon 108:12-110:4.

As pressure built in response, top personalities talked about reckless demagogues attacking the network for their factual call.

Carlson wrote his producer Alex Pfeiffer on November 5: We worked really hard to build what we have. Those fuckers are destroying our credibility. It enrages me.” Ex.199 at FNN035_03890623 . He added that he had spoken with Laura and [Sean a minute ago and they are highly upset. at FNN035_03890624. Carlson noted: At this point we’re getting hurt no matter what. Id. at FNN035_03890625 . Pfeiffer responded: It’s a hard needle to thread, but I really think many on our side are being reckless demagogues right now Tucker replied: Of course they are. We’re not going to follow them. And he added: What [Trump]’s good at is destroying things . He’s the undisputed world champion of that. He could easily destroy us if we play it wrong. at FNN035 03890626

Tucker Carlson acknowledged that Trump could destroy Fox news.

And so, in response, Fox started censoring factual news about Joe Biden’s win and instead choosing to report false claims of election fraud.

Sammy Alito may believe that a President can’t take out a newspaper who crosses him.

But Donald Trump responded to Fox News’ accurate call of Arizona for him by demonstrating to Fox that he could take out the cable station, effectively replacing them in the media economy with NewsMax. And that threat from the sitting President of the United States, the threat to replace Fox News with Newsmax, led Fox News to censor themselves, even censoring Jacqui Heinrich specifically.

Meanwhile,later that night of November 12,Ingraham was still texting with Hannity and Carlson . In their group text thread,Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich. Ex.230 at FNN035_03890511 . Heinrich was fact checking atweet by Trump that mentioned Dominion and specifically mentioned Hannity’s and Dobbs broadcasts that evening discussing Dominion . Ex.232; Ex.231. Heinrich correctly fact-checked the tweet, pointing out that top election infrastructure officials said that There is no evidence that any voting system deleted orlostvotes ,changed votes ,or was in any way compromised Id Ex.232 .

Carlson told Hannity : Please get her fired. Seriously What the fuck ? actually shocked It needs to stop immediately , like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.

Sammy Alito got it wrong when he said a President can’t take out a media outlet who crosses him. Donald Trump proved that in 2020, after Fox called Arizona for Biden. And Sammy Alito’s very psyche likely has been altered as a result, as Fox News continues to feed the propaganda Trump demands.

The irony of all this is that Alito repeatedly complains that the Biden White House raised Facebook’s role, as a platform, in fostering Trump’s insurrection.

To emphasize his urgency, Flaherty likened COVID–19 misinformation to misinformation that led to the January 6 attack on the Capitol. Ibid. Facebook, he charged, had helped to “increase skepticism” of the 2020 election, and he claimed that “an insurrection . . . was plotted, in large part, on your platform.”

[snip]

Facebook informed the White House that the video did not “qualify for removal under our policies” and thus would be demoted instead, ibid., but that answer did not please Flaherty. “How was this not violative?” he queried, and “[w]hat exactly is the rule for removal vs demoting?” Id., at 9387. Then, for the second time in a week, he invoked the January 6 attack: “Not for nothing, but last time we did this dance, it ended in an insurrection.” Id., at 9388. When Facebook did not respond promptly, he made his demand more explicit: “These questions weren’t rhetorical.”

But his description of a subservient media outlet far better describes Fox News, which was recruited to help sow insurrection by what, according to Alito’s measure, was Presidential censorship.

Sammy Alito says that if the President demands that a media outlet censor true content to publish favored content, that is impermissible censorship.

He makes a great case that Donald Trump unlawfully dictated Fox News’ coverage during the 2020 transition.

The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

“Nobody ever slept on that side of the bed usually so he would have it all full of boxes”

The government has filed their response to Trump’s argument that, because some of the contents of Trump’s boxes have shifted during the investigation, the entire indictment must be dismissed. I’ll do a long post describing what new details it reveals of Trump’s hoarding and of the investigation.

For now, I wanted to point to a fragment of an interview report (302) from someone who might be one of Trump’s White House valets. The witness repeated a point made by other loyal Trump staffers: They joked about Trump’s obsession being akin to that in My Beautiful Mind.

The witness described that one time, after Derek Lyons instructed the witness to go search Trump’s boxes for something, Trump knew things were out of place.

[Person 81]: There were conversations — like, he knew which ones had what in them. We had conversations with the Staff Secretary for us to, quote, go into the boxes and get things out. So he wanted us to go shuffle through the boxes —

Mr. Raskin: He the Staff —

[Person 81]: The Staff Secretary.

Mr. Raskin: [Person 45] or [Derek Lyons].

[Person 81]: [Lyons] was the one that informed me to do it. Go through, shuffle through, see what we could find about schedules, specific documents that they had, which I can’t remember off hte top of my head exactly what those were, but find specific documents and pull those out and then give them to them so that they could have them —

Mr. Raskin: And did you do that?

[Person 81]: — for tracking purposes.

Mr. Raskin: And you said [Lyons] wanted you to do it; did you do it?

[Person 81]: We only did that — I did that one time and the President realized that it happened and I told [Lyons] that I won’t do that again because I don’t want the President to think that I was snooping through his stuff.

But the more interesting detail is that Person 81 described how there was a cluster of boxes right next to Trump’s bed at the White House.

So if you walk into the room, his bed — there’s a nightstand, his bed, and then there’s, like, a — where another nightstand was but nobody ever slept on that side of the bed usually so he would have it all full of boxes.

Now, I get the impetus. Back in the days when most of my reading was still dead tree books, there’d be a stack of them there, next to my side of the bed, maybe two stacks. There are still four or five in-process books on the bookshelf by the bed.

But Trump’s White House aide was describing boxes and boxes of White House documents, including classified documents.

They were right there by the side of the bed because (usually) no one slept on that side of the bed.

Fridays with Nicole Sandler

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

Garrett Ziegler Done in by His Chateau Marmont Field Trip

Judge Hernán Vera has denied Garrett Ziegler’s motion to dismiss Hunter Biden’s lawsuit against him.

I had thought that Ziegler’s defense against the hacking claims, which argued that because Hunter Biden never owned the hard drive on which Ziegler received all Hunter’s data (including the iPhone protected by a password), might pose some interesting legal arguments.

I’m sure we’ll see the argument return, but for this stage of proceedings, Judge Vera agreed with Hunter’s argument that the relevant hacking laws focus on data, not devices.

Defendants assert that “[n]either the CFAA nor the CCDAFA authorizes a party whose data has been copied to assert a civil action over any computer, device or system not in their possession.” Motion at 5. But Defendants fail to point to language in these statutes that require possession of the physical device. Neither the CFAA nor the CCDAFA contain any requirement that Plaintiff must “own,” “possess,” or “control” the physical device or computer that Defendants accessed. The statute concerns the ownership of the data accessed. Both statutes allow Plaintiff to assert claims based on the facts asserted. See 18 U.S.C. § 1030(g) (extending civil remedy to “any person” who suffers damage or loss); Cal. Pen. Code § 502(e)(1) (extending civil remedy to owners of “data” who suffer damage or loss). In fact, Defendants’ ownership-and-control argument has been rejected by the Ninth Circuit. See Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004) (reversing “district court [that] erred by reading ownership or control requirement into the [CFAA] . . . . Individuals other than the computer’s owner may be proximately harmed by unauthorized access, particularly if they have rights to data stored on it.”).

The next time some tabloid journalist makes big news about Hunter’s spouse calling Ziegler a Nazi, she can state with confidence that this is a lawsuit about hacking, not about merely disseminating data.

The means by which Vera dismissed Ziegler’s claim that there was no personal jurisdiction over his activities in California are a bit more fun.

Among the evidence that Ziegler’s activity included a focus on California cited by Vera was the picture Ziegler posted to Instragram showing himself posing outside the Chateau Marmont in LA, holding a copy of his report.

Vera also noted that Ziegler’s sales of the report rely on Stripe and its CA-based servers.

Defendant Ziegler notes that the report Defendants prepared using Plaintiff’s data is available at the website www.bidenreport.com. Ziegler Decl. ¶ 8 & n.1. On this website, a “Purchase” button is prominently displayed, allowing users to spend $50.00 for a hardcopy of the Biden report. Declaration of Gregory A. Ellis (“Ellis Decl.”) ¶ 6, Ex. A [Dkt. No. 30-2]. Clicking the purchase button then links to a purchase page operated by Stripe.com, a California-based entity whose purchase terms are governed by California law.7

7 See www.stripe.com/legal/consumer, Section 12.

And Vera noted that Ziegler had sent copies of the report to CA residents like Elvis Chan (the FBI Agent at the center of right wing conspiracy theories about Twitter briefings) and Hunter’s criminal defense attorney, Angela Machala.

For example, he sent copies to multiple California residents to verify Plaintiff’s information. Ziegler said in interviews that his team talked with each person named in the report. Ellis Decl. Exs. C at 12 (“I took the time to call each and every person that is in this report”) [Dkt. No. 30-5]; D at 8 (“we’ve sent the dossier to all 4,000 contacts on Hunter’s laptop) [Dkt. No. 30-6]. He even includes a table of alleged Plaintiff family crimes with California area codes, many listing “where (venue)” as C.D. Cal. Ellis Decl. Ex. E at 233–35, 400–01. Other California residents include an FBI agent in the San Francisco field office, Ellis Decl. Ex. E at 22. And Ziegler even sent the Report to the personal residence of one of Plaintiff’s California-based attorneys. Ellis Decl. ¶ 12.

Vera’s ruling opens the way for discovery of the specific means and personnel involved in the exploitation of the hard drive, including the chain of custody via which Ziegler obtained it. Among the issues ripe for discovery cited in Hunter’s response include how Ziegler obtained the data, who funded his efforts, and who helped Ziegler exploit the data.

Defendants will have to explain how many copies of Plaintiff’s data they received and from whom, as well as the precise data they came to possess, during discovery in this case.

[snip]

Ziegler’s assertions about Defendants’ website views and support from California also demonstrate that the Court should exercise its discretion to allow jurisdictional discovery, should it still have questions about jurisdiction even after reviewing Plaintiff’s evidence. See, e.g., Orchid Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 672-73 (S.D. Cal. 2001) (noting that courts have broad discretion in allowing jurisdictional discovery, citing multiple authorities). Here, discovery would be appropriate to address the following issues, at a minimum: the total number of Defendants’ financial supporters based in California; the percentage of their total financial supporters based in California; the total amount of money donated from California; the percentage of Defendants’ monetary donations emanating from California; the total number of unique website viewers from California; the percentage of unique website viewers from California; the number and percentages of website purchases of hardcopies of the Report emanating from California locations; and the number of California residents Ziegler sent hardcopies of the Report to in his “carpet-bombing” campaign, discussed infra.

[snip]

4 It is unclear whether the “team” of individuals who assisted Defendants with their data-related activities includes any California residents. In his declaration, Ziegler attests he has “hired no employees or independent contracts [sic] to conduct business in California, nor do any of Marco Polo’s board members reside in California.” (Ziegler Decl. ¶ 13.) But this careful wording leaves open many potential California connections, including the possibility that some aspects of Defendants’ unlawful data-related activities occurred in California and/or were perpetrated by California residents who were assisting Defendants in a capacity other than as “employees or independent contractors.” The location of Defendants’ “team” members is another appropriate topic for jurisdictional discovery.

The frothy right made a big deal about the fact that Hunter and Robert Costello put the lawsuit against Costello and Rudy Giuliani on hold pending Rudy’s bankruptcy. But discovery on this lawsuit will get to some of the very same issues.

The Document Found with Roger Stone’s Clemency Did Pertain to Emmanuel Macron

Just days before the snap election Emmanuel Macron recklessly called after Marine Le Pen shellacked his party in the EU elections, we are one step closer to showing a tie between the still unexplained grant of executive clemency to Roger Stone found in the search of Mar-a-Lago and the French President.

As I have described in the past, the first thing listed on the non-privileged search warrant return was an executive grant of clemency for Trump’s rat-fucker. Most people have always assumed that it was one of the known grants of clemency — either the commutation or the later pardon — for Stone’s lying to cover up his 2016 ties to Russia.

Except as listed, it is associated with, “Info re: President of France.”

There had been reports that the President of France in question was Macron. Trump’s defense attorneys seem to have confirmed that.

That confirmation comes as part of a Trump bid to dismiss the entire stolen documents prosecution because the FBI jumbled the order in which documents were found during and after the search. Both before and after the problem with the order of the documents first became understood, in March and then May, Jack Smith’s office did some interviews with the Miami-based agents who did the filter process, which Trump included as exhibits.

As described, the agents exercised varying diligence about maintaining the order of documents in each box; as Agent 5 explained, keeping the order intact was made more difficult because of the contents of the boxes, in which Post-It notes and golf balls were stashed in the same boxes with potentially privileged documents (I can’t make out the first word in this series).

As Agent 17 described, he and Agent 5 did the filter search of Trump’s own desk together as another agent found the box in the closet where the most sensitive classified documents were found (note: it’s clear agents were also being asked about the 43 classified cover sheets allegedly found in that box; Trump’s silence on this point suggests others gave clear answers about it).

As Agent 17 described it, Agent 5 found “Macron doc in desk,” though makes no mention of the clemency associated with it.

Note there was a set of “KJU letters” — the love letters from Kim Jon Un to Trump — in a desk then occupied by Molly Michael, identified as Person 34 in other releases. Trump had returned at least some of these in the January 2022 boxes.

It’s not yet clear how the Macron document, classified Secret, relates to the Stone clemency. But as I wrote here, such a tie could be quite significant: when Scott Brady (the MAGAt US Attorney whose claims to have vetted the Alexander Smirnov hoax were just referred to DOJ for potential prosecution as a false claim to Congress) indicted GRU hackers for operations that included the 2017 MacronLeaks that attempted to help Le Pen in her election against Macron, the indictment claimed to be ignorant of the public details tying Roger Stone associates to the dissemination of the stolen documents.

The Macron document does not appear to be among those charged, so we may never learn more about why Trump had a Stone grant of clemency — and possibly a bunch of other pardons — in his desk drawer.

Note, in addition to exhibits documenting the Mar-a-Lago search, Trump’s lawyers helpfully provided this description of the documents found among the boxes Trump returned in January 2022, two of which required especially sensitive treatment.

Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too

Just over a month ago, Judge Maryellen Noreika denied Hunter Biden’s request to compel prosecutors to provide better guidelines about where it had obtained evidence they would use against him. Because Derek Hines had identified the individual messages he used in a filing — including the Keith Ablow picture of sawdust Hines claimed was cocaine — she deemed the request moot.

Defendant closes his motion with a request that the government be ordered to “generally point defense counsel” to where, on a forensic image of Defendant’s “Apple MacBook Pro,” certain text and photographs can be located. (D.I. 83 at 18). That forensic image was produced to Defendant in October 2023 without an index, without any Bates stamps and without any indication of what will be used at trial. (Id. at 17). Although the government produced the laptop in the specific format requested by Defendant (D.I. 86 at 19), he complains that he has been unable to locate on the image certain text and photographs relied upon by the government (D.I. 83 at 17-18). In its opposition, the government provides an exhibit with images and annotations that appears to identify where the information resides on the laptop. (See D.I. 86 at Ex. 1). As best the Court can tell, this response satisfied Defendant, and there are no further outstanding requests with respect to the laptop. (See D.I. 89 at 19-20 (recognizing that the government has no index and expressing appreciation for the government’s disclosure of location of information)). Therefore, Defendant’s request as applied to the Apple MacBook Pro appears moot.

Noreika’s refusal to require a searchable format came up at least twice at trial (probably three times). I’ve already described how prosecutors sprung the 7-Eleven texts on Hunter the morning of closing arguments. Hunter’s team surely looked for communications between Hunter and Naomi Biden before they put the daughter on the stand, but they seem to have been surprised by some texts changed that week (note, those texts were only used to refresh her memory, so did not come in as exhibits).

But even prosecutors complained that they couldn’t find things that had been on the laptop.

Before dropping four pages of new texts on Hunter Biden the last morning of trial, days earlier, Leo Wise complained that Hunter’s team had only identified the location of eight pages of texts they wanted to use to cross-examine Hallie the night before Hallie testified.

MR. WISE: The first issue is globally, we got this at 11:07 last night that actually provided the sources for these messages. We have been asking for it since Monday when they sent it to us. We of course provided our summary chart months ago. The whole point of the rule, 1006 to allow each side to check the accuracy of the statements that are in the summary chart. So we think the whole thing should be kept out because we haven’t had the time and they haven’t followed the rules to give us the time. And it’s eight-pages long.

Lowell responded that they had given the texts earlier; they had just provided the location the night before.

MR. LOWELL: Yes, of course. So as to the first one, Mr. Wise would indicate that the first time he saw these texts was whenever he just said. Actually, over the last few days we have back and forth, they keep asking us for source material and we keep trying to provide it.

THE COURT: What are these sources that they all have exactly the same number?

MR. LOWELL: I would like my colleague to address the source if I could have that happen.

MR. WISE: I didn’t say we saw the text for the first time last night, I said we saw the source.

Judge Noreika suggested that one thing prosecutors were trying to do was challenge the authenticity of the texts. Lowell reminded that he got Agent Jensen to vouch for authenticity on the stand.

THE COURT: I understand, you were trying to check the accuracy and authenticity.

MR. LOWELL: Again, one of the things I asked Agent Jensen was whether or not that material, the Cloud material, and the laptop was in the condition that they got it and whether they provided it to us in discovery and whether it was the same material and she said it was. That is the source, they have it and they sent it to us, we sent it back to them, but I’ll have Mr. Kolansky address the source for it.

MR. WISE: I don’t think they sent it back to us. But again, if you look at our chart, we literally have page 1001, I’m looking at a message 86, page 1412, so that they could go back exactly to where this message comes from and it was provided months ago.

That’s when Hunter attorney David Kolonsky revealed he was working from the hard drive of the laptop prosecutors provided and Hunter’s team used a different extraction tool to work from there.

MR. KOLANSKY: Your Honor, these messages that start on October the 11th, they’re extracted from the hard drive that we received in discovery from the government. It was a single hard drive with essentially, if you think about it —

THE COURT: So was there a way for you to say it’s on page whatever of the hard drive?

MR. KOLANSKY: There is not, Your Honor.

THE COURT: How did they do it?

MR. KOLANSKY: I don’t know how they do it, I don’t know what software they used.

THE COURT: How did you give them a specific place to go and he’s saying you can’t.

MR. WISE: We gave it to them both ways, they asked for the raw data and then we also gave them these extraction reports that reflect all of the messages that we are using with page numbers and all of the messages they’re using, they’re just somewhere in these 18,000 pages and they won’t tell us where.

THE COURT: You’re assuming they’re somewhere in these 18,000 pages, you don’t know?

MR. HINES: They keep saying they’re from the same data, so that means they should be on the extraction reports and the extraction reports are pages that are–

THE COURT: Can you get them that information?

MR. KOLANSKY: We can get them the information based on an extraction report that we created using an extraction software we have. It’s not going to match —

THE COURT: Did they give you an extraction —

MR. WISE: We gave them an extraction report, they did not give us whatever he’s referring to that has page numbers that we can look at.

THE COURT: So you gave them an extraction report, the same extraction report you used to come up with page numbers?

MR. WISE: Exactly.

THE COURT: Can you use that extraction report and give them page numbers?

When Judge Noreika asked why Kolansky didn’t just use the extraction report prosecutors provided, he said he couldn’t find all of them.

MR. KOLANSKY: When I searched these messages last night, Your Honor, for each of the 42 rows, I did not find these messages in the extraction report that they’re referring to.

MR. WISE: So they have discovery, an extraction report that they’re relying on that they haven’t give us which is the underlying material that supports under 1006 the summary report and they should have given it to us.

MR. KOLANSKY: Your Honor, we’re happy to provide the extraction report that we generated.

THE COURT: Why are you doing that today when you expect to use the exhibit today?

MR. KOLANSKY: It’s an extraction report that we used in order to thread the messages so that they’re readable.

THE COURT: Yes, but — what I’m confused about is you’re not giving them the information in the same way that they gave it to you. You’re saying — he’s saying look, tell us where it is, we gave you an extraction report and you’re telling me but it’s not in, it’s something new that wasn’t in the government’s extraction report and you can’t tell us where it is?

MR. KOLANSKY: Let me try to rephrase it, maybe I’m mischaracterizing it. When we —

THE COURT: Was it in the — so the government gave you an extraction report, you’re telling me these messages you want to use were not in there.

MR. KOLANSKY: Correct. They were in something else.

MR. LOWELL: They were in a separate sub-data, the extraction reports were from the iCloud, these messages were derived not from the source file, but from Macintosh HD, Macintosh hard drive, so there is two worlds of discovery, iCloud, and those were the extraction reports, and then material from the hard drive, which we extracted ourselves based on the forensic images they provided.

THE COURT: Did you give them an extraction from the hard drive?

MR. WISE: Yes, from the laptop. There is an extraction– that’s why if you remember when Agent Jensen was testifying, the format changed —

THE COURT: So these are messages that you’re using from the laptop, not from the — not from the iCloud.

MR. KOLANSKY: They’re from the hard drive that we received from the government.

THE COURT: The hard drive image is from the laptop. You guys are talking, I got laptops and hard drives, and I don’t even know what else I got, iClouds, oh my.

MR. KOLANSKY: Yes, that’s right.

THE COURT: So the hard drive, though, is the hard drive that correlates with the laptop.

MR. KOLANSKY: Yes, Your Honor.

THE COURT: So these are messages you want to rely on from the laptop that are not in the iCloud?

MR. KOLANSKY: That’s correct, Your Honor.

THE COURT: Okay. And you’re saying, Mr. Wise, that you gave them extraction files from the hard drive/laptop.

MR. WISE: Exactly.

THE COURT: And why didn’t you give them from that extraction file, the page numbers?

MR. KOLANSKY: I have not seen that extraction report, Your Honor.

MR. WISE: We provided it in discovery. It was — that’s how we made the chart, I mean, which they’ve had for months. So if they looked at that chart and said wait a minute this says laptop, we don’t have an extraction report from the laptop, where are you getting this from, we would have expected to hear that months ago. There is clearly an extraction report, that’s what the 1006 reflects and we reattached it when we provided our expert discovery.

MR. LOWELL: One point on that, by the way, if we’re talking about authenticity, which I think is half the issue, we talked to the government and have the stipulation about it being authentic.

Finally, Wise and Hines started claiming that the reason they can’t find these texts are because maybe they were filtered as privileged.

MR. WISE: There is sort of two things with that. We didn’t get everything that’s on that laptop. It went through a filter review. So we may or may not have. They have the whole set. So first thing —

THE COURT: Filter review from whom?

MR. WISE: A separate team that we have no access, we’re walled off for, it’s in the search warrant, that is the protocol that would be followed. The first thing is whatever they would want to show her, they should give us, we should see it so we know, and we’re not going to be able to sitting here sort of find it on the fly. If the question is authenticity, sure a witness can testify that, you know, this is a text I sent or an e-mail I sent and that gets them through the authenticity gate, but it doesn’t necessarily get them through the admissibility gate and the admissibility gate is often things like is it a business record, that’s how it comes in, is it some other exception —

[snip]

MR. LOWELL: Yes. So we will try to get that done quickly and figure that out. Again, not that I feel like I need to apologize, but we have been going back and forth. The data is incredibly dense and we have gotten it from the government in various ways. And now I’m hearing that they’re saying in their extraction report or what they did, there may be things missing, well we have them from them, so I don’t know how things we put here could be missing because we didn’t invent this, we got it from them.

THE COURT: So anything — maybe I should address this to your colleague. So anything that you have gotten or put on this chart is something you got from the government, not from any other source?

MR. KOLANSKY: That’s correct, Your Honor, and I proffer that and it comes directly from the government and that is why I endeavored to be as precise as possible to the original source file path they can stick it on the hard drive and get exactly to the folder where that message is derived from on the hard drive we received.

MR. LOWELL: Like last night I think, or yesterday afternoon, whenever we were able to go back, we provided them with the media that they can go and do exactly what Mr. Kolansky just said and check it. Now if they chose not to, I’m sorry but we gave it to them because that’s the best you can do with the data they gave us.

THE COURT: All right.

MR. WISE: No, no, we didn’t get any media, I got, 11:07, I saw something on my phone that has this path name that I don’t know what it is.

MR. LOWELL: I’m sorry, we gave them the file path one by one of something they gave us.

MR. WISE: Yeah.

THE COURT: The file path one by one, but the file path is identical.

MR. HINES: It’s filtered, we can’t see that but we can’t — and they know that from the search warrant, it’s in the search warrant.

THE COURT: So you’re limited in what you can do because you’re trying to protect rights using only the information allowed from the search warrant.

MR. WISE: Exactly.

MR. LOWELL: What I’m learning for the first time, understand this, they have provided us in discovery things that they’re saying that the investigative team does not have. So I didn’t realize that, I thought it was a one to one match, you would have assumed that otherwise I don’t know why they would have sent it to me, it’s not attorney/client materials we’re talking about, it’s conversations between Mr. and Ms. Biden, so I don’t understand that.

MR. WISE: It’s Rule 16, it’s his statement, we have to turn it over, if it’s privileged, we don’t get to see it if it goes through a filter, this is not anything new, the search warrant says it went through a filter.

Even Judge Noreika scoffed that the government would have filtered communications between Hunter and Hallie as privileged, which led Wise to channel Donald Rumsfeld invoking known unknowns.

THE COURT: He’s saying this is conversation between Mr. Biden and Ms. Biden, there is no arguable privilege here.

MR. WISE: Again, we don’t know what we don’t know, when they say we got it, we don’t have it

Again, Hunter’s team blew the deadline for exhibits, so part of this was their fault (though these were exhibits for cross-examination).

But ultimately, Hines and Wise’s silly claims that they couldn’t find individual comms either stems from the failure to do an index of the laptop in the first place.

Even prosecutors had a problem with the complexity of the laptop, and in that moment, tried to claim (in part) that they could exclude material from the laptop they had testified was authentic because they couldn’t find it.

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