Jack Smith Knows his Justice Robert Jackson

Justice Robert H. Jackson, lead US prosecutor at Nuremberg

Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.

The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.

Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.

But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:

We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.

[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]

As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.

Books and records . . .

Vanity and photographs . . .

“You will see their own conduct and hear their own voices . . .”

What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.

It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:

From 2008 to 2010, Smith worked as Investigation Coordinator for the Office of the Prosecutor of the International Criminal Court in The Hague.[11][10] In that position, he oversaw cases against government officials and militia members accused of war crimes and genocide.[3][9] 

[snip]

On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]

You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.

In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:

The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.

“Men of station and rank . . .”

“men who knew how to use lesser folk as tools . . .”

“reach the planners and designers, inciters and leaders . . .”

Marcy called the Trump indictment a “tactical nuke” and she explored how it ramps up pressure on Walt Nauta to come clean. But more than that, I see it as Jack Smith channeling his inner Justice Jackson.

Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.

Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.

Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information

According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.

That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.

A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.

Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.

From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.

By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.

I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).

Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.

But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

Andrew Kaczynski put together all the instances of it.

In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.

Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.

23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:

As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.

The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.

Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.

But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.

And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.

Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.

To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.

34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:

TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.

WRITER: Wow.

TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.

STAFFER: Mm.

TRUMP: Wait a minute, let’s see here.

STAFFER: [Laughter] Yeah.

TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.

STAFFER: Mm-hm.

TRUMP: Except it is like, highly confidential.

STAFFER: Yeah. [Laughter]

TRUMP: Secret. This is secret information. Look, look at this. You attack, and—

Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.

This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.

Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.

In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.

Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.

Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.

I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.

But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.

I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.

But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.

Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.

The Mar-a-Lago Indictment Is a Tactical Nuke

I’ve become convinced that what I will call the Mar-a-Lago indictment — because I doubt this will be the only stolen documents one — is a tactical nuke: A massive tool, but simply a tactical one.

As I’ve laid out, it charges 31 counts of Espionage Act violations, each carrying a 10-year sentence and most sure to get enhancements for how sensitive the stolen documents are, as well as seven obstruction-related charges, four of which carry 20-year sentences. The obstruction-related charges would group at sentencing (meaning they’d really carry 20 year sentence total), but Espionage Act charges often don’t and could draw consecutive sentences: meaning Trump could be facing a max sentence of 330 years. Walt Nauta is really facing 20 years max — though probably around three or four years.

Obviously, Trump won’t serve a 330 year sentence, not least because Trump is mortal, already 76, and has eaten far too many burgers in his life.

For his part, Nauta should look on the bright side! He has not, yet, been charged with 18 USC 793(g), conspiring with Trump to hoard all those classified documents, though the overt acts in count 32, the conspiracy to obstruct count, would certainly fulfill the elements of offense of a conspiracy to hoard classified documents. If Nauta were to be charged under 793(g), he too would be facing a veritable life sentence, all for helping his boss steal the nation’s secrets. And for Nauta, who is in his 40s and healthy enough to lug dozens of boxes around Trump’s beach resort, that life sentence would last a lot longer than it would for Trump.

And that’s something to help understand how this is tactical.

I first started thinking that might be true when I saw Jack Smith’s statement.

He emphasized:

  • A grand jury in Florida voted out the indictment
  • The gravity of the crimes
  • The talent and ethics of his prosecutors
  • That Trump and Walt Nauta are presumed innocent
  • He will seek a Speedy Trial
  • A Florida jury will hear this case
  • The dedication of FBI Agents

He packed a lot in fewer than three minutes, but the thing that surprised me was his promise for a Speedy Trial. He effectively said he wants to try this case, charging 31 counts of the Espionage Act, within 70 days.

That means the trial would start around August 20, and last — per one of the filings in the docket — 21 days, through mid-September. While all the other GOP candidates were on a debate stage, Trump would be in South Florida, watching as his closest aides described how he venally refused to give boxes and boxes of the nation’s secrets back.

There’s not a chance in hell that will happen, certainly not for Trump. Even if Trump already had at least three cleared attorneys with experience defending Espionage Act cases, that wouldn’t happen, because the CIPA process for this case, the fight over what classified evidence would be available and how it would be presented at trial, would last at least six months. And as of yesterday, he has just one lawyer on this case, Todd Blanche, who is also defending Trump in the New York State case.

In fact, even though I understand how CIPA works, I’m not convinced this case can be tried. Before the indictment was unsealed, I imagined that Smith would charge about six documents, classified Secret, each of which demonstrated that Trump was exploiting the nation’s secrets, and just nod to the sensitivity of all the more sensitive secrets he was storing in an unlocked bathroom. Boy howdy was I wrong! Peter Strzok does the math to show that DOJ actually charged all but 13 of the Top Secret documents obtained either with the May 11, 2022 subpoena or in the August 8, 2022 search. And these are not just Top Secret. Of those documents whose compartments themselves are not classified, the documents include satellite intelligence, human intelligence, nuclear intelligence. Brandon Van Grack, one of the few other people who has been interested in the CIPA aspect of this case, seemed to struggle to describe the documents charged in this case.

One of the only ways I can imagine taking this to trial easily would be if the government had simply burned all the collection involved (including on the two Five Eyes documents), meaning presenting the documents he stole at trial would consist of one after another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho. That letter described how, after discovering that Pho had compromised a bunch of NSA programs, the NSA had had to abandon much of it.

Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.

For the moment, then, consider the possibility that this indictment is, as far as it involves Trump, simply a messaging document to alert Republicans who can still be reasoned with that Trump left the most sensitive secrets on a stage at Mar-a-Lago while weddings were going on and as a result, the IC simply shut down all the programs he had compromised.

My comment about the difficulty of taking this to trial is not, however, true for Nauta. Because he wasn’t (yet) charged with conspiring to steal these secrets, you could make it all the way to sentencing without having to expose the secrets Trump destroyed.

So let’s talk about Nauta.

As the indictment describes, he was interviewed on May 26, 2022. As ¶53 through ¶62 show, that interview happened in the middle of the scheme to fool Evan Corcoran into submitting a false verification that Trump had returned everything (Corcoran, in turn, fooled Christina Bobb into signing it). Nauta moved boxes on the following days before and after his first interview:

  • May 22: One box out of storage
  • May 24: 3 boxes out of storage
  • May 26: Interview
  • May 30: 50 boxes out of storage
  • June 1: 11 boxes out of storage
  • June 2: 30 boxes from Trump’s residence to storage

As the indictment describes, Nauta moved 64 boxes out of storage and 30 back. This had the effect of ensuring that at least 34 boxes of classified documents were not reviewed by Corcoran.

There’s also this paragraph, one of the most important in the indictment:

72. Earlier that same day, NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.

That paragraph makes it clear that some of those 34 boxes went to Bedminster, never to be seen again. I’ll count later and figure how many it was.

So in the middle of this scheme to keep 34 boxes of classified documents away from Corcoran, Nauta was interviewed by the FBI and asked about the last time Trump personally asked Nauta to sort through boxes of classified documents so he could hoard some. Several things in this indictment establish that Nauta knew this involved classified documents, including this picture from when Nauta arrived in the supposedly locked storage room to find one of the boxes had been knocked over by who knows what force and spilled open.

One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:

One thing he asked

Was for new covers for the boxes, for Monday m.

Morning

*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much

When whatever force was in the storage room to knock over that box, they were labeled with their contents, because Nauta had sorted and labeled them.

With all that in mind, go back to Count 38 and read about the answers Nauta gave in an interview in the middle of a second effort to sort classified documents so some of them could be taken to Bedminster, never to be seen again. He was asked about the first time that happened. And days after he had moved boxes to Trump’s residence again, he claimed he was unaware of bringing them to the suite in the first place.

Question: Does any – are you aware of any boxes being brought to his home – his suite?

Answer: No.

The alleged lies go on — but they were enormous.

With all that in mind, I’d like to return to a story that was floating in the press until a few weeks ago about the second time Nauta was interviewed. As parroted by the NYT on May 4 (and not for the first time), DOJ made a mistake last fall because, when Nauta refused to cooperate, they didn’t choose to immunize him. They were simply helpless to get the information Nauta could share via any other means!

Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.

Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.

The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.

The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.

More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.

The story was always obvious bullshit. As I noted on May 23,

If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny  of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).

The very next day, May 24, Nauta got a target letter.

Since Nauta got a target letter, the story has dramatically changed. It changed into a story in which Jay Bratt said something that Stan Woodward — the guy paid by Trump’s PAC whose legal advice to Nauta has left him facing obstruction charges — said something that seemed like coercion to Woodward.

At issue is an incident that took place last year, around November, when prosecutors were trying to gain the cooperation of valet Walt Nauta, who has been under scrutiny because prosecutors suspected he helped the former president conceal classified documents that had been subpoenaed.

Nauta had already spoken to prosecutors in the investigation when they called his lawyer Stanley Woodward and summoned him to a meeting at justice department headquarters for an urgent matter that they were reluctant to discuss over the phone, the letter said.

When Woodward arrived at the conference room, he was seated across from several prosecutors working on the investigation, including the chief of the counterintelligence section, Jay Bratt, who explained that they wanted Nauta to cooperate with the government against Trump, the letter said.

Nauta should cooperate with the government because he had given potentially conflicting testimony that could result in a false statements charge, the prosecutors said according to the letter. Woodward is said to have demurred, disputing that Nauta had made false statements.

Bratt then turned to Woodward and remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing”, before noting that he knew Woodward had submitted an application to be a judge at the superior court in Washington DC that was currently pending, the letter said.

The allegation, in essence, is that Bratt suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump. The letter was filed after Trump’s lawyers submitted a motion on Monday seeking grand jury transcripts, because of what they viewed as potential misconduct.

Significantly, that story changed on June 5, the same day as Trump’s lawyers, at least two of whom have subsequently left the team, met with Jack Smith.

When Nauta wasn’t going to get charged, Jay Bratt’s decision to play hardball was stupid, a mistake. A missed opportunity to get cooperation. When he was going to get charged, Bratt’s efforts to help Nauta avoid 20 or 330 year legal exposure became an ethical issue.

When Smith noted the integrity of his investigative team yesterday, he was signaling that he thinks this story is bullshit.

He may not be the only one, either. Jim Trusty made a really big deal about this new story on Thursday, when he had seen the summons but not the indictment. After he saw the indictment, he quit.

Which brings me to one other detail that I can’t get out of my head, given the uncharged examples of Trump disseminating classified information at Bedminster and the two instances when classified documents went to New Jersey never to be seen again.

One other reason Jack Smith gave to unseal the indictment was so he could share it to, among other entities, “sealed entities” and the grand jury in DC.

To the United States District Court of the District of Columbia, under seal, in relation to grand jury and sealed matters in that jurisdiction.

Among those sealed entities are the complaint that Woodward belatedly filed, after learning that Nauta got a target letter. Jack Smith needs to show Chief Judge James Boasberg that when Bratt strongly encouraged Woodward to advise his client to cooperate last November, DOJ already had really damning information showing he conspired to hoard these documents.

But the sealed entities aren’t the only entity that needs to see this indictment. So does a grand jury.

The investigation didn’t move, entirely, to Florida. Part of it was presented to a grand jury in Florida. But there are other parts that remain in DC, and those parts that remain in DC had to be told this indictment was coming.

This indictment is, in very significant part, a renewed invitation to Walt Nauta to cooperate in an ongoing grand jury investigation into what happens to documents when they go to Bedminster and disappear forever.

A very persuasive invitation.

Update: Fixed Stan Woodward’s last name.

Update: NYT has now done a piece covering these issues. They do not mention that just weeks ago, they were telling another story about this, fail to note that Trump routinely claims to believe things that he clearly does not, and treats the allegation itself as a set of “facts” that Trump got wrong, rather than an allegation only belatedly made months after the incident.

Around the same time, according to two people familiar with the matter, Mr. Woodward had a meeting about Mr. Nauta with prosecutors in the documents investigation, including Jay Bratt, from the Justice Department’s national security division, who was running the inquiry at the time.

During the meeting, the people said, Mr. Bratt tried to persuade Mr. Woodward to get Mr. Nauta to cooperate and then brought up the fact that he knew Mr. Woodward had a pending application to be a judge in the superior court in Washington. Mr. Trump’s lawyers and advisers believe that Mr. Bratt was effectively trying to cajole, even threaten, Mr. Woodward to counsel his client to help the government — an allegation that Mr. Trump later made himself on social media, albeit with his facts slightly wrong.

Trump’s own press secretary couldn’t have written a more favorable spin.

Update: I forgot I promised to go back and try to figure out how many boxes went to Bedminster to disappear forever. We can’t know because the universe of boxes was in flux throughout this process. But here’s what we do know:

 

The Flavors of Trump’s Obstruction

As I noted here, Trump was charged with 31 counts of stealing highly classified documents. Each of those charges carries a 10 year max sentence, and because they are Top Secret and beyond, they will draw draconian sentences.

I’d like to talk about the seven kinds of obstruction with which Jack Smith has charged Trump and Walt Nauta.

Effectively, in addition to the stolen documents, DOJ charges Trump and Nauta jointly with six different crimes involved in withholding classified documents. The obstruction charges all carry a 20 year sentence. But if convicted, they would likely group as the same scheme.

The false statements charges carry a 5 year sentence. Because they’re less serious than the obstruction, the obstruction would set the sentence.

In most of these, Nauta is either charged as a co-conspirator or included in an abetting theory (all the 2s in the indictment). While the obstruction charges backstop the classified documents charges for Trump, much of this is directed at inducing Nauta to flip.

Honest, it could get worse for him!

Count 32: 18 USC 1512(k)

This charges Trump and Nauta with conspiring to evade the May 11 subpoena by moving the boxes and getting Evan Corcoran to claim he had done a diligent search.

20 year max.

Count 33: 18 USC 1512(b)(2)(a) and abetting

This charges Trump and Nauta with withholding documents from the subpoena.

20 year max.

Count 34: 18 USC 1512(c)(1) and abetting

This charges Trump and Nauta with withholding documents from Evan Corcoran so he would submit a false subpoena response.

20 year max.

Count 35: 18 USC 1519 and abetting

This charges Trump and Nauta with withholding the documents from the FBI investigation.

20 year max.

Count 36: 18 USC 1001(a)(1) and abetting

This charges Trump and Nauta with scheming to conceal things from a Federal investigation.

5 year max.

Count 37: 18 USC 1001(a)(2) and abetting

This charges Trump with causing Christina Bobb to make false statements to the FBI.

5 year max.

Count 38: 18 USC 1001(a)(2)

This charges Nauta, by himself, for making false claims in an interview to the FBI on May 26, 2022.

5 year max.

Defendant-1’s 38 Count Indictment

Here’s a link. I’ll update in a bit.

There are 31 counts for withholding documents, each holding a 10 year sentencing, on top of the obstruction charges. I’ll summarize them:

  1. May 3, 2018 White House intelligence briefing (TS/NOFORN/SPECIALHANDLING)
  2. May 9, 2018 White House intelligence briefing (TS/SI/NOFORN/SPECIAL HANDLING)
  3. Undated military capabilities of foreign country with Sharpie annotation
  4. May 6, 2019 White House intelligence briefing (TS/SPECIALHANDLING)
  5. June 2020 concerning nuclear capabilities of foreign country (TS/XX/XX/ORCON/NOFORN)
  6. June 4, 2020 White House intelligence briefing (TS/SPECIAL HANDLING)
  7. October 21, 2018 communications with leader of foreign country (S/NOFORN)
  8. October 4, 2019 military capabilities of foreign country (S/REL TO USA FVY)
  9. Undated document concerning military attacks by foreign country (TS/XX/XX/ORCON/NOFORN/FISA)
  10. November 2017 document concerning military capabilities of foreign country (TS/TK/NOFORN)
  11. Undated document concerning military contingency planning of US (no marking)
  12. Undated document concerning projected regional military capabilities of foreign country S/REL to USA/FVEY)
  13. Undated document concerning military capabilities of foreign country and United States (TS/SI/TK/NOFORN)
  14. January 2020 concerning military options of a foreign country (S/ORCON/NOFORN)
  15. February 2020 concerning policies in a foreign country (S/ORCON/NOFORN)
  16. December 2019 concerning foreign country support of terrorist attacks against US interests (S/ORCON/NOFORN)
  17. January 2020 concerning military capabilities of foreign country (TS/XX/TK/ORCON/IMCON/NOFORN)
  18. March 2020 concerning military operations against US forces (S/NOFORN)
  19. Undated document concerning nuclear weaponry of US (S/FR)
  20. Undated document concerning timeline and details of attack in foreign country (TS/XX/ORCON/NOFORN)
  21. Undated doc concerning military capabilities of foreign countries (S/NOFORN)

  22. August 2019 concerning regional military activity of a foreign country  (TS/XX/RSEN/ORCON/NOFORN)
  23. August 30, 2019 White House intelligence briefing with Sharpie (TS/SPECIAL HANDLING)
  24. Undated doc concerning military activity of a foreign country (TS/HCS-P/SI/ORCON-USGOV/NOFORN)
  25. October 24, 2019 military activity of foreign countries and US (TS/HCS-P/SI-ORCON-USGOV/NOFORN)
  26. November 7, 2019 military activity (TS/XX/ORCON/NOFORN/FISA)
  27. November 2019 military activity of foreign countries (TS/SI/TK/NOFORN)
  28. October 18, 2019 White House intelligence briefing (TS/SPECIAL HANDLING)
  29. October 18, 2019 military capabilities (TS/XX/SI/TK/ORCON/NOFORN)
  30. October 15, 2019 concerning military activity (TS/XX/ORCON/NOFORN/FISA)
  31. February 2017 concerning military activity of foreign country (TS/SI/TK/NOFORN)

Those below the line were returned in June 2021.

Update: Here’s the best explanation of the classification marks and possible content I’ve seen so far, from Matt Tait.

Prosecutors Interviewing Witnesses Who Knew Trump Was Hoarding Documents

This article claiming that a grand jury in DC might vote on Espionage Act charges against Trump as soon as today, from a reporter who hasn’t focused closely on the stolen documents case, has gotten far more attention than this WaPo story, saying that the bulk of charges will be filed against Trump in Florida.

The preference for the former over the latter likely stems from the fact that it tells people what they want to hear.

But you should treat the WaPo story, from Spencer Hsu and three others, including Mar-a-Lago scribe Josh Dawsey, as more reliable. Hsu is a very cautious journalist; he’s highly unlikely to get ahead of himself on the report that the bulk of charges will be in Florida, which conflicts with the Indy claim. Plus, WaPo uses none of the caveats that Feinberg uses. WaPo’s story also matches what we know about venue for the suspected crimes.

You should treat the WaPo story as more credible, most of all, because WaPo’s description of Taylor Budowich’s testimony yesterday that makes it clear the grand jury in Florida is considering Espionage Act charges.

As it describes, Budowich withheld a statement Trump wanted to release last year, claiming he had returned all documents.

Prosecutors were at least partially interested in Budowich because of his role in an episode involving Trump in early 2022, according to people familiar with the matter who spoke on the condition of anonymity because grand jury proceedings are secret. After sending boxes of materials from his Mar-a-Lago home and private club to the National Archives and Records Administration, which catalogues and preserves presidential records, Trump drafted a lengthy statement saying he had given “everything” back to the federal government, The Washington Post has reported.

But Budowich did not release Trump’s statement after consulting with lawyers and advisers for the former president, people familiar with the episode said, speaking on the condition of anonymity to discuss internal conversations. At least some of Trump’s advisers did not believe he had returned “everything” at the time, the people said, even though the archives had been asking for months for Trump to give back any government material in his possession, as required by federal law.

Several days later, Trump issued a different statement that did not include the claim that everything had been returned.

Around the same time, a Trump lawyer rebuffed the former president’s request to tell the archives he had returned everything, The Post has reported, because the lawyer was not sure such an assertion was true.

Prosecutors have reviewed a draft of Trump’s statement, which contains at least one tangent about Germany and an overseas oil pipeline, the people familiar with the matter said. Multiple witnesses have been questioned by prosecutors about the statement, the people said, and asked whether Trump ever asked them to lie or mislead anyone about whether he continued to maintain classified information in his possession. [my emphasis]

The discussion over the statement — which WaPo suggests, with their link to their earlier report, included Alex Cannon — suggests multiple people at Mar-a-Lago believed he was hoarding documents. WaPo focuses on the way Trump’s people edited out his claim that he had returned all the documents. That statement wouldn’t present the same legal jeopardy as his later claim, issued via Evan Corcoran and Christina Bobb, to have complied with a subpoena. But it would have ceded NARA’s claim to any remaining documents.

The process of having this discussion left a paper trail for prosecutors to show a more generalized awareness that Trump retained documents — one that may fill in gaps if there is surveillance footage from the “dress rehearsal” missing.

All those people (many of whom would also be key witnesses in Jack Smith’s investigation of Trump’s fundraising fraud) are now on the hook to come clean about their knowledge or go down with Trump. Given the target notice, they may be especially motivated to do so in coming weeks.

I’m interested, though, in WaPo’s mention of the reference to what sounds like the Nord Stream pipeline. In what was likely the statement that Trump did release, he raised the imminent invasion of Russia and claimed credit for preventing any such invasion while he was President.

Because Trump doesn’t have a filter, and because Trump had just sorted through which documents he wanted to retain, any mention of something specific like the Nord Stream may match documents that he held onto. And that would, in addition, tie to some pretty interesting motives, which prosecutors could use at a hypothetical trial.

This Indictment Will Likely Come Too Early for Trump to Consolidate the Party

After Trump propagandaist John Solomon published that Trump had been told he was a target of the Espionage Act investigation that has targeted him since last August, Trump did a post on his failing social media site. I’ve edited it down to the key bits:

Trump’s first response to the first public confirmation that he will soon be charged was not, as it turned out, to bellow, “Lock him up!” or even reconsider his past obstruction, but instead demand that the insurrectionists in Congress do something.

His first response was to demand that Republicans turn their focus — as they have for much of the last five years — on defending him at all costs, to the detriment of anything that better serves their interests (to say nothing of the interests of their constituents).

I’m not surprised. At some point, I will finally write a post describing how brilliantly Trump used the Russian investigation — assisted by a great deal of Russian disinformation — to successfully demand GOP loyalty to him over country. In the end, the Russian investigation was a tremendous tool Trump used to accrue power, all the while doing grave damage to the US.

His response to the public report he’ll soon be indicted was to attempt to do the same thing: make his own legal woes those of the entire GOP.

But this indictment — if it indeed gets filed in the next two weeks or so — may come too early for Trump.

That’s because, as I laid out here, there’s still plenty of time in the GOP primary for other Republicans to take advantage of Trump’s legal woes. Republicans seem to be sensing this opportunity. Chris Christie kicked off his undoubtedly doomed presidential race by focusing on Trump’s epic corruption. Mike Pence kicked off his equally doomed presidential run by emphasizing that he did his duty on January 6, unlike Trump (the presence of his brother Greg at the event undermined that message, because even after Trump almost got both he and the Vice President killed, Greg still challenged the election and voted against impeaching Trump). Asa Hutchinson called on Trump to step aside, noting he may be charged with Espionage [Act violations].

The point is not that these men will win the election. It’s that they’re using their candidacy to oppose Trump at a time when Christie and Pence and Hutchinson can anticipate that Jack Smith will soon give each a lot of material to work with. Many — not most, but many — Republicans are looking for permission to break with Trump and the timing of a potential indictment and the primary may give a way to do it.

Meanwhile, Joe Biden’s success at giving Kevin McCarthy a way out of the hostage situation he was forced to create just before the US credit rating was affected is having a remarkable effect on the House GOP.

Insurrectionists in Congress, who briefly considered trying to replace McCarthy, seem to have realized they don’t have the votes, and so have been trying to do something — anything — to look like they are tough. But it has only made them, and Republicans, look more ridiculous.

There are increasing reports that less radical Republicans want nothing to do with this chaos.

Greg Sargent wrote up what he describes as Biden’s deliberate attempt to marginalize the MAGAts, which is a good way of understanding it.

[I]n promising to restore “the soul of the nation” in the face of this threat, Biden has continually distinguished between MAGA Republicans and more conventional ones. This approach has been criticized by those of us who see much of the GOP as extreme and dangerous — after all, many elected Republicans helped whitewash Trump’s insurrection — and think Biden’s characterization of non-MAGA Republicans plays down that broader threat.

But Biden’s reading served him well in the debt limit standoff. Contrary to much criticism, Bidenworld believes that refusing to negotiate at the outset was key: It forced Republicans to offer their own budget, which created an opening to attack the savage spending cuts in it.

Notably, Biden and other Democrats relentlessly characterized those cuts as destructive and dangerous in the MAGA vein. Bidenworld did believe that some MAGA Republicans were willing to default and force global economic cataclysm to harm the president’s reelection, a senior Biden adviser tells me, but also that many non-MAGA Republicans ultimately could be induced not to go that far.

There’s no guarantee it’ll work. There’s no way to prevent some of the damage that Marjorie Taylor Greene, Matt Gaetz, Jim Jordan, and James Comer intend to do.

But there’s always the threat that if ten Republicans decide they’ve had enough of this chaos, it creates the opportunity for a Fred Upton or similar to come in to lead a House that will function as a legislative body again.

If Trump weren’t indicted until September or October — still a realistic timeline for January 6, particularly if interim charges must occur first — Trump might have had an opportunity to seal the GOP primary and force the GOP to defend whatever crimes he gets charged with, to own and normalize those crimes as their own, as the GOP has chosen to do for the past six years.

But at the moment, there are hints of a mood change, one in which at least a critical handful of Republicans will choose against the chaos they’ve been gripped by for six years.

Update: Added the Hutchinson tweet. h/t.

Dry Run: The Filing Room Came to Trump

Given the reports that former Trump spox Taylor Budowich was questioned by the head of counterintelligence Jay Bratt before a Florida grand jury today, it’s worth revisiting the public statement included in the August 2022 search affidavit to search Mar-a-Lago (my emphasis).

He released this statement after NARA’s discovery of classified documents was made public.

He specifically denied that “the President of the United States, was working in a filing room.”

This earlier response to the NARA appears to be the “dry run” that Beryl Howell invoked in her opinion finding a crime-fraud exception for Evan Corcoran’s interactions with Trump in advance of Trump’s defiance of the May 11 subpoena.

When the chief US judge Beryl Howell forced Corcoran to testify to a grand jury, she opined in a 86-page legal memo that she believed when Trump went through boxes to give materials back to the National Archives last year, it was “apparently a dress rehearsal” for the subpoena.

The Post attributed the “dress rehearsal” line to officials, though it was in Howell’s legal opinion that was reported in March.

We also know that DOJ obtained 5 months of surveillance footage, going back to 8 days before Trump returned these classified documents.

So it may well be that much of what has happened since has involved an attempt to hide that, yes, Trump really was working in a filing room (or at the very least, a filing room came to him).

Update: Hugo Lowell is the first major person covering this stuff to confirm that Trump was told he’s a target. This will all solidify in days ahead. For the moment I’m interested in the timing. He would have been told last week he was a target, and then NYT published their rebuttal of his work, and then Trump’s lawyers either went and did a standard pitch or spewed a conspiracy theory (which John Solomon is pushing).

In other words, what we say in the last 4 days is a response to the target notification.

NYT’s Pre-DOJ Meeting Attempted Rebuttal

According to multiple outlets, the Trump’s lawyers met with DOJ the other day in part to lodge claims about prosecutorial abuses.

Robert Costa, who first broke this meeting, reported that Trump’s lawyers complained that Jack Smith “overstepped” in the way he dealt with attorney-client privilege.

The NYT didn’t describe what their complaint at the meeting was, but did describe a more detailed version of the letter, asking for a meeting with Merrick Garland, that Trump released as a PR stunt. It talked about strong-arming defense attorneys.

The letter to Mr. Garland was an abbreviated version of a longer one that contained a more detailed account of the concerns by Mr. Trump’s lawyers, according to two people familiar with the matter. Those included the ways in which grand juries have been used in the special counsel’s investigations and attempts to strong-arm defense lawyers involved in the cases, the people said.

Hugo Lowell described that Trump’s lawyers raised concerns about prosecutorial misconduct and mentioned a particular incident that Trump’s lawyers had been complaining about for weeks.

Trump’s lawyers made a general case as to why Trump should not be charged in the Mar-a-Lago documents case and suggested that some prosecutors working under special counsel Jack Smith engaged in what they considered prosecutorial misconduct, the people said.

The exact allegations are not clear but Trump’s lawyers for weeks have complained privately that Jay Bratt, the chief of the counterintelligence and espionage section at the justice department, once sought to induce a witness into confirming something they declined to, one of the people said. [my emphasis]

That’s why I’m interested in this story the NYT published last week, which provided dramatic details of a recording Evan Corcoran made memorializing the advice he had given Trump.

In complete sentences and a narrative tone that sounded as if it had been ripped from a novel, Mr. Corcoran recounted in detail a nearly monthlong period of the documents investigation, according to two people familiar with the matter.

CNN first reported on how detailed these notes were on May 22.

One source described Corcoran’s notes as “overly detailed.” Another source close to Trump’s legal team said that some of them were surprised about the level of detail in Corcoran’s notes. That source said multiple sets of notes were handed over to prosecutors and that they were significantly redacted to shield Corcoran’s legal opinions in the notes from investigators.

On May 30, more than a week after CNN’s original scoop, in a story that also discussed the notes, Hugo Lowell reported that Evan Corcoran had been “waved off” searching anywhere besides the storage room.

Donald Trump’s lawyer tasked with searching for classified documents at Mar-a-Lago after the justice department issued a subpoena told associates that he was waved off from searching the former president’s office, where the FBI later found the most sensitive materials anywhere on the property.

The lawyer, Evan Corcoran, recounted that several Trump aides had told him to search the storage room because that was where all the materials that had been brought from the White House at the end of Trump’s presidency ended up being deposited.

[snip]

Corcoran also memorialized how he told Trump he could not retain any classified documents at Mar-a-Lago when Trump asked what he was allowed to keep, as well as when he took breaks during the search by walking out to the pool deck nearby, and therefore leaving the storage room unattended. [my emphasis]

Then, on June 3, the weekend before this DOJ meeting (though presumably after it was scheduled), NYT published the dramatization of Corcoran’s notes, what with the description of his full sentences.

Here’s how they rationalize not giving credit to CNN or Lowell for their earlier coverage.

Mr. Corcoran’s notes, which have not been previously described in such detail, will likely play a central role as Mr. Smith and his team move toward concluding their investigation and turn to the question of whether to bring charges against Mr. Trump.

That the NYT didn’t credit another reporter is par the course. What’s novel, here, is how clearly they (or, presumably, their sources) seem to be attempting to rebut Lowell’s report that Corcoran was waved off.

The notes in the recording do not suggest that Mr. Corcoran was waved away from searching anywhere other than the storage room, the people familiar with them said. But they also indicate that no one at Mar-a-Lago — including Mr. Trump — spoke up to tell him that he should look elsewhere. [my emphasis]

Only, NYT didn’t rebut Lowell’s reporting. He was reporting on what Corcoran told other people, not what he recorded in his voice memo. Given how thoroughly Jack Smith has blanketed Mar-a-Lago with subpoenas, those other people are likely to have been subpoenaed as well.

Obtaining witness testimony that conflicts with a written record is the kind of thing that might lead a prosecutor like Jay Bratt to challenge a witness — especially if he were trying to preserve the sterling value of a lawyer testifying against his client. If a prosecutor has witnesses on the record regarding such a topic, it’d be a perfectly justifiable challenge.

Corcoran is not the only attorney witness whose testimony seems to differ from what he later told others. Tim Parlatore, after all, seems to believe that Boris Ephsteyn was less cooperative on searches than he told the grand jury.

If I were a Trump lawyer, I’d worry more about how such discrepancies might put me at risk of being charged right along with Trump than claiming it’s a sign of prosecutorial abuse.

The Dog Drained My Pool to Try to Destroy Surveillance Video

CNN has a hilarious story about how Trump’s head of maintenance, whom NYT identified as Carlos Deoliveira, drained the pool at Mar-a-Lago in October and in the process flooded the room where surveillance footage is kept.

An employee at Donald Trump’s Mar-a-Lago residence drained the resort’s swimming pool last October and ended up flooding a room where computer servers containing surveillance video logs were kept, sources familiar with the matter told CNN.

[snip]

Prosecutors have heard testimony that the IT equipment in the room was not damaged in the flood, according to one source.

In addition to an interview, DOJ has seized his phone.

The maintenance worker more recently spoke to investigators in an interview, and his phone has been seized, some of the sources now tell CNN.

The initial story about Deoliveira, a story led by Devlin Barrett and Josh Dawsey, featured on-the-record comments from his Trump-paid lawyer and describes that he just offered to help without knowing what Nauta was moving.

John Irving, a lawyer representing one of the two employees who moved the boxes, said the worker did not know what was in them and was only trying to help Trump valet Walt Nauta, who was using a dolly or hand truck to move a number of boxes.

“He was seen on Mar-a-Lago security video helping Walt Nauta move boxes into a storage area on June 2, 2022. My client saw Mr. Nauta moving the boxes and volunteered to help him,” Irving said. The next day, he added, the employee helped Nauta pack an SUV “when former president Trump left for Bedminster for the summer.”

At first, NYT simply matched that story, with the same exculpatory explanation for Deoliveira’s involvement. But their follow-up includes details that explain why the flooded server room would be so suspect: Deoliveira reportedly called the IT consultant who manages surveillance footage at Mar-a-Lago after DOJ sent a subpoena for the surveillance footage.

Two weeks ago, the latest of these employees, an information technology worker named Yuscil Taveras, appeared before a grand jury in Washington, according to two people familiar with the matter.

Mr. Taveras was asked questions about his dealings with two other Trump employees: Walt Nauta, a longtime aide to Mr. Trump who served as one of his valets in the White House, and Carlos Deoliveira, described by one person familiar with the events as the head of maintenance at Mar-a-Lago.

Phone records show that Mr. Deoliveira called Mr. Taveras last summer, and prosecutors wanted to know why. The call caught the government’s attention because it was placed shortly after prosecutors issued a subpoena to Mr. Trump’s company, the Trump Organization, demanding the footage from the surveillance camera near the storage room.

The call also occurred just weeks after Mr. Deoliveira helped Mr. Nauta move boxes of documents into the storage room — the same room that Mr. Deoliveira at one point fitted with a lock.

[snip]

They asked Mr. Taveras an open-ended question about if anyone had queried him about whether footage from the surveillance system could be deleted.

The NYT follow-up describes that all three of these men — the valet, the maintenance guy, and the IT consultant — are being represented by Trump paid lawyers. The latter two are long-term Trump employees. So there’s a temptation to imagine that if there are cahoots to be had, they’re all in it together.

But if surveillance footage got altered via one means to hide stuff that happened before June 3, one would assume that same means would be available after June 3. So if the attempt to flood the server room were an attempt to destroy surveillance footage, it may be an attempt to hide something else.

That’s one of a number of potential explanations for the reports of a Florida grand jury: that there’s a separate suspected crime the venue of which is entirely there.

Alternately, DOJ could have decided that to charge Espionage Act crimes, it is best to do it in Florida — as I laid out here.

But there’s another question that may be just as important as the evidence to support the charges, and may elicit quite a debate within DOJ: venue. The easiest way to overcome all the difficulties with charging a former President with 793 would be to charge his retention of documents after the time when:

  1. The Archives had explained that retaining them was unlawful under the Presidential Records Act
  2. Both the Archives and DOJ had asked for them back
  3. Jay Bratt had informed him (through Evan Corcoran) that they were being stored improperly

That is, if he were to charge 793, Smith would likely charge for actions trump took between May and August of last year, at Mar-a-Lago. So (while some smart lawyers disagree) there would be at least a fair argument that it would have to be charged in SDFL.

Ideally any charges against a former President would be strong enough to convince a South Florida jury, but the possibility of Aileen Cannon presiding over such a trial would be daunting. Plus, judges in DC have far more experience dealing with cases involving classified information than most other districts other than EDVA.

Though that wouldn’t necessarily take new witnesses in Florida. It could require no more than an FBI agent to present the evidence obtained in DC.

Hopefully, we’ll learn soon enough.

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