Going into yesterday’s arraignment, I believed the release conditions would be the only thing of note.

I was wrong. Alleged Trump co-conspirator Walt Nauta wasn’t even arraigned! It seems he may be having difficulty finding local counsel to add to his Trump-funded lawyer, Stan Woodward.

Still, the release conditions were newsworthy, but it took until Anna Bower wrote up her 27-hour wait for the 30-minute hearing before what happened became fully clear: on the summons, the government asked for no release conditions besides the order that neither man commit any more crimes (!!!), something Trump attorney Todd Blanche optimistically assured his client could do.

But then magistrate judge Jonathan Goodman imposed an additional one: a limited restriction on talking to witnesses.

Goodman had attempted to impose a no-contact rule, as well as prohibiting Trump from speaking to Nauta about the case. But Trump attorney Todd Blanche objected, noting that some of the witnesses are members of Trump’s personal detail.

[Prosecutor David] Harbach continues, the prosecution is not seeking a restriction requiring Trump to avoid contact with his co-defendant, witnesses, or victims.

Now Goodman is ready to make a ruling. As to Trump’s release, he agrees with the government’s recommendation: “I’m going to authorize a personal surety bond with no financial component,” he announces.

But Goodman isn’t willing to be as lenient as the government is with respect to the special conditions of that release. “Despite the parties recommendations,” he says, “I’m going to impose special conditions.” Specifically, Goodman wants Trump to avoid contact with witnesses and victims in the case except through counsel. He asks the government to submit a list of witnesses and victims so that Trump would know whom to avoid by way of abiding by the restriction.

Continuing to enumerate the special conditions of Trump’s release, Goodman further says that Trump should avoid talking to Nauta about the case. He emphasizes that he customarily would require no contact whatsoever between co-defendants. But here he recognizes that Nauta works for Trump, and it would thus be “impossible” for the usual condition to apply in this case. For that reason, Goodman says the restriction will only apply to Trump and Nauta’s communications about the case itself.

Blanche successfully attempted to narrow the contact order still further, allowing contact but not discussion about the case.

Here Blanche interjects: “Your honor,” he asks, “may I be heard on the special conditions?”

After receiving permission to continue, Blanche says that the “problem” with the conditions enumerated by the judge is that many of the likely witnesses in the case are part of Trump’s protective detail or long-time employees. “For him not to be allowed to have contact with them would in our view be inappropriate,” he stresses. To emphasize this point, he notes that the same challenges that exist in restricting Trump’s communications with Nauta similarly apply to Trump’s communications with his security detail and employees. “As one example,” he continues, a “key witness” is the President’s lawyer. For those reasons, Blanche urges the court to reconsider its restriction on communications with witnesses.

Then Harbach, rising at the judge’s request for a response, offers the government’s view. Noting that the government is “cognizant” of the issues raised by Blanche, Harbach suggests that the prosecution come up with a non-exhaustive, narrowed list of witnesses that could “accommodate” Blanche’s concerns. After producing the list, he advises, the government could confer with Trump’s legal team to work through any practical difficulties. Further, he says, the government would suggest that—as with Nauta—the restriction could be limited to communications with these witnesses about the case.

Responding to these representations, Judge Goodman momentarily toys with the idea of requiring the government to make up a two-category list of witnesses: a category of witnesses with whom there should be no contact at all, and a category of witnesses with whom there should be no contact about the case. For example, he says, members of Trump’s protective detail would fall within the second category.

Blanche, however, remains unsatisfied with this proposed arrangement. He suggests that it would be “unfair” to people who rely on Trump for their livelihoods if the government were to place them on the “no contact” list. Moreover, he says, these restrictions on communications with witnesses are not necessary because “all of these witnesses” have their own counsel, which Blanche seems to consider sufficient to guard against any improper communications with Trump.

Harbach, whom I suspect is keen to let the court impose this restriction now that it has been proffered by someone other than him, jumps in. He wants to “reiterate,” he says, that the magistrate’s special conditions are “workable.”

Judge Goodman agrees. Discarding the idea of the two-tiered list of no-contact witnesses that he had considered moments ago, he decides on a simpler course of action: The government should produce of list of witnesses, but the “no contact” restriction will be limited to no communications “about the facts of the case other than through counsel.”

“So that will be a special condition,” he declares with an air of finality.

This decision is what it is — and I have every expectation that Trump will violate the restriction on talking about the case. But this is a testament that Trump was charged based on the testimony of his closest aides. These people practically live with Trump. And their testimony could put him in prison.

A lot of people are upset that Trump and his alleged co-conspirator didn’t receive stronger conditions.

With respect to Nauta, of course, he’s got no record and he’s just charged with obstruction, so a personal recognizance bond is not that surprising.

With respect to Trump, most Espionage Act defendants are jailed pre-trial.

But there are recent examples where Espionage Act suspects remained out on pretrial release after their compromises were discovered. Both Robert Birchum and Kendra Kingsbury, for example, who like Trump collected hundreds of documents over years and took them home, remained at large (and according to the government sentencing memo filed just this week in Kingsbury’s case, she was less than helpful during the investigation). If the government hopes to find a way to get Trump to plead out of this charge, the comparison is not inapt.

More importantly, Trump has a full-time security detail, so he will be in immediate reach of Federal law enforcement at all times. Plus, there’s a strong preference for pre-trial defendants to be permitted to continue to work. His job is lying to rubes and running for President.

More generally, though, everything the government has done thus far — both by filing the case in Florida, and by doing nothing to impede Trump’s campaign (to say nothing of giving him an ankle bracelet to show off) — undercuts Trump’s claims that this is a political prosecution.

That won’t — and hasn’t — stopped him from claiming it is one.

But already, there are a number of Republicans who, once they’ve read the indictment, have started coming around to the gravity of Trump’s crime. There are a number of Republicans who agree that the decision to prosecute Trump was not political.

And that’s as important a part of this prosecution as anything else: to get a majority of the country to understand that the charges are merited.

In this post, I laid out how DOJ really really really tries to plead out 18 USC 793(e) cases if it can do so, to avoid doing any more damage to national security, on top of the original compromise. That’s true even with a garden variety Green Beret who brought classified documents about a gripe home from work. All the more so if it’s the former President who compromised hundreds of highly sensitive documents.

But as we’ve seen over the ten months since the search of his beach resort, Trump is highly unlikely to do that.

What would it take — Jack Smith’s team may have brainstormed before they filed this — to get Trump to enter into a plea agreement?

So I want to return to my argument that the Mar-a-Lago case is tactical — a tactical nuke, I called it. Partly, I think it is designed to give Walt Nauta very good reason to plead and cooperate, to what end and import I only have guesses.

Partly, I think charging 31 incredibly sensitive documents is a different kind of threat to Trump than it is to most people, because of his narcissism.

Those 31 charged documents are, taken together, a bunch of stories that prosecutors can tell about why Trump stole classified documents. The reason prosecutors included some are pretty easy to guess. Document 19, which concerns US nukes, is classified Formerly Restricted. Under the Atomic Energy Act it could not be declassified by the President alone, so that document will be legally easier to prove to be National Defense Information covered by the Espionage Act than others might, even if jurors don’t get the import of protecting information on America’s nuclear weapons. Some, like document 11, an unmarked document that captures military contingency planning of the United States, seem to be another example of stuff that is obviously NDI, information that is closely held precisely because doing so is necessary to protect US security, regardless of classification level (and may have been selected because it doesn’t include classification marks). Others, like document 3 and document 23, appear to have Sharpie notes, which may provide some hints about why Trump stole them. Matt Tait thinks document 7, memorializing October  28, 2018 communications with a foreign leader, might record a call with Putin or Mohammed bin Salman, post Khashoggi execution, both of which could be highly embarrassing for Trump. Based on its date, Tait argues that the other document pertaining to nukes in Trump’s stash, document 5, likely pertains to Russia. Brian Greer thinks the charged documents turned over on June 3, most of which are from the fall 2019 period during impeachment, could be a coherent set. Whatever else document 8 is — it is described as an October 4, 2019 Five Eyes document — the spillage picture from the storage closet would amount to proof that by storing it insecurely, Trump made it accessible to at least two people who no longer had clearances.

Whatever these documents are, his closest aides considered him to be obsessed with them. Employee 2 — according to WaPo, this is Trump’s then-Executive Assistant, Molly Michael — described the boxes as Trump’s “beautiful mind paper boxes” as she debated with a colleague about where to stash them. Trump went to great lengths to curate and keep these documents; they became tied to his self-imagination of power, it seems. He told Evan Corcoran, “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” As bad as it is for Trump that the government seized these documents from him, it might pose a far greater injury to his ego if they were shared in court for all the world to see who he really was. We’re all going to get to look at Trump’s boxes if this goes to trial. All of us.

And while the timing of this prosecution cannot be predicted (aside from that the CIPA process will take a lot of time), such an injury to Trump’s ego might be greater if “his” boxes were to become public in the middle of the general election, which is about the earliest that might happen.

So, bizarrely, as hard as it would be for the spooks to declassify these for trial, it might do as much damage to Trump’s psyche to have the contents of “his” “beautiful mind paper boxes” shared for the entire world to see. It would shred the sense of power that he derived from them (and in many cases, would show that many of his public claims about what — say — Mark Milley had really said were false). And so keeping them secret might be something about which Trump and DOJ could come to some kind of agreement.

But that’s not the only point of leverage that Smith has.

Because Trump decided to announce his Presidential run early in a bid to stave off criminal charges, Merrick Garland appointed Jack Smith to oversee both criminal investigations into Trump, the stolen documents case and the January 6 case. At the very least, that means that in the not-too-distant future, Smith will file additional charges against Trump and his close associates, in DC. Since Trump will be dealing with the same prosecutor, Smith, in both, if he wanted to settle one case — say to stave off having his “beautiful mind paper boxes” exposed in Florida — Smith could attempt to include a settlement in a second case in any negotiation.

You still have to get Trump to a position where he wants to settle, but having the same prosecutor oversee both cases simply gives him more flexibility, flexibility that might be able to find a just result for the country.

And the way in which these cases intersect may provide Smith additional tools. Several witnesses in the stolen documents case also have exposure in one or another aspect of the January 6 case. Trump Representative 1 is — again, per the WaPo — Alex Cannon. The January 6 Committee documents showed Cannon to be a key player in (not) vetting fundraising pitches for false claims; but he was also involved in attempts to limit the damage of Cassidy Hutchinson’s testimony.

No one has yet identified Trump Attorney 2, but it may be Boris Epshteyn, who had his phone seized last September and already sat for two days of interviews with Smith’s prosecutors. Trump will go to court today represented by Todd Blanche, who also represents Boris. And Boris’ close associate and partner in crypto-corruption, Steve Bannon, received a subpoena from the Special Counsel last month.

Perhaps the most important of these players common to both criminal investigations, however, is Michael, and that enigmatic comment, “Oh no oh no … I’m sorry potus had my phone” is one of the reasons why. Michael was one of Trump’s most important gatekeepers leading up to January 6, and the logs of his calls from that period were mysteriously not kept. When the January 6 Committee questioned her about events, Michael professed not to remember a lot of things from that period. When the January 6 Committee asked her about her phone — the phone that Trump would sometimes use — she explained that her lawyer had pulled off any texts relevant to the event, but did not provide more. Because Trump made Michael a central player in his effort to steal classified documents, Jack Smith appears to have obtained her phone, a phone that would show some of Trump’s communications, as well as her own.

Indeed, that reference to Trump having her phone on December 7, 2021, may be as much about what he was doing with it as what she said to Nauta once she got it back.

More importantly, these overlapping players have witness testimony about more than the attack. Most if not all of them, as well as most if not all of their known attorneys, are the beneficiaries of the suspected campaign finance fraud that has become a second prong of Jack Smith’s investigation — the investigation into how Trump raised money from small donors promising to use it on election integrity and instead used it on paying lawyers for other criminal exposure (and, as noted, that’s the area where Cannon’s known legal exposure is greatest). We may learn more about how DOJ feels about that today, if DOJ asks for a conflict review of Stan Woodward’s representation of Walt Nauta.

The indictment charged Nauta. But it is very coy about the degree to which the other named witnesses, especially Michael and Epshteyn, have cooperated or might be exposed elsewhere.

And that’s important because of the other elements that don’t show up in this indictment. Michael is the one who ordered Chamberlain Harris to make copies of Trump’s schedules, for example, which in the process resulted in the dissemination of classified information. Michael is the most likely candidate to be the person who compiled one Secret and one Confidential document into one with messages from a pollster, a faith leader, and a book author. One uncharged crime in Trump’s existing indictment describes him sharing classified information with a representative of his PAC (and the paragraph immediately following that one hints that the information may have subsequently been shared with the press). The last thing Jay Bratt did before obtaining this indictment was to interview Taylor Budowich about shared knowledge of Trump’s employees that he was hoarding documents.

As far as we know, Trump appears to have kept the most spectacular of these documents for himself. “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes,” Trump told the attorney he had hired to search them. But the more mundane documents — such as the Iran document that disappeared forever after it was publicly aired at Bedminster in July 2021 — appear to have been exploited by the same Political Action Committee that was already the subject of Smith’s increasingly interlocking inquiries.

Trump lied to his small donors about how he was going to use their money. But he also appears to have taken documents when he left the White House — documents that belong to you and me — that he has since put to his own personal and political benefit. Some of those documents are classified.

And so — especially given the suggestion that Smith needed his indictment to go back to a grand jury still working in DC — Jack Smith may have more points of leverage over Trump and his closest associates, including points of leverage that remain almost entirely hidden.

Update: As I was writing this, Lawfare published a similar piece on shoes yet to drop.

WaPo has a 28-paragraph article on Trump’s scramble to find lawyers to appear at his arraignment today that doesn’t mention several things that are undoubtedly making the search harder.

First, there are all the details in the indictment that reveal how much information Trump withheld from his lawyers: not just the location of the files Evan Corcoran needed to search on June 3, 2022 (and Tim Parlatore tried to search in November and December, only to find none of the documents that remain unaccounted for), but also the sensitivity of the documents he had them claiming before Courts were merely personal records.

Several prominent Florida attorneys declined to take Trump on as a client after two of the key lawyers handling the documents matter — Jim Trusty and John Rowley — resigned last week, according to people familiar with the matter.

Trusty and Rowley’s departure was sudden and unexpected, leaving Trump jockeying to identify a lawyer ahead of his Tuesday appearance in federal court in Miami, where rules require practicing attorneys to be a member in good standing of the Florida bar or to be sponsored by one before appearing.

All three lawyers who quit — plus Lindsey Halligan, whose status remains uncertain — signed a letter to Congress claiming that the organization of the boxes returned in January 2022 merely reflect the result of haste and sloppiness by White House staff.

This organization of materials (i.e., schedule of calls for the day, insert page for briefing sheet to prepare for the call, newspapers from the same day) indicates that the White House staff simply [having] swept all documents from the President’s desk and other areas into boxes, where they have resided ever since

[snip]

We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws. Rather, all indications are that the presence of marked documents at Mara-a-Largo was the result of haphazard records keeping and packing by White House staff and GSA.

The claim is wildly inconsistent with the evidence in the indictment showing how Trump carefully curated these documents over the course of months. That’s the kind of misrepresentation that carries a great deal of personal and professional risk, something that was obvious at the time.

The haste with which Trusty and Rowley abandoned ship, coming shortly after Parlatore’s loud departure, will raise real alarm bells for any attorneys considering the case.

Especially given another detail WaPo doesn’t mention: Lawyers who show up at his table today could get stuck seeing this criminal prosecution through, with far less ability to quit after Trump inevitably fails to disclose other key details in the future. Once a lawyer files a notice of appearance in a criminal case, they often can’t leave until a replacement is found. If, for example, Trump neglected to mention to incoming attorneys that in addition to hoarding documents, he also was disposing of them for personal gain, those attorneys couldn’t quit until a replacement showed up or Trump stopped paying them or Trump fired them.

Finally, there’s the other key thing that WaPo doesn’t mention: Trump needs cleared attorneys, and he should (finally) have the lawyers with Espionage Act experience that might have minimized some of the risk he currently faces.

When courts deal with classified documents like this one will, the judge does not need clearance. (This is a separation of powers issue; members of Congress similarly don’t need clearance.) But the lawyers do. At least one and preferably three of Trump’s lawyers will need to be cleared at the elevated levels the FBI Agents who did the search of Mar-a-Lago had to be read into to even conduct the search. As it was, Trusty was Trump’s only attorney with clearance, and he just split.

Not all lawyers want to go through the trouble of getting clearance. Some — possibly including Chris Kise, was a registered agent for Venezuela in recent years — may not be able to get cleared at that level.

Donald Trump’s trouble finding legal representation is no longer simply the comedy of self-destructiveness it has been for years. Starting today (or shortly thereafter), there will be new obligations and exposures for lawyers representing him.

Trump’s search for a lawyer is not just about finding people who are members of the bar in SDFL. He also needs to find lawyers who are willing to put their security clearance and their reputations at risk on a case where Trump has already been wildly misleading his attorneys.

Update: Without mentioning Kise’s potential unwillingness or inability to try to get cleared, Hugo Lowell describes that Kise will sponsor Todd Blanche and appear just for today. There’s still no hint of Lindsey Halligan’s status — she could also sponsor in Blanche.

After interviewing a slate of potential lawyers at his Trump Doral resort, the former president settled on having Kise appearing as the local counsel admitted to the southern district of Florida as a one-off, with Blanche being sponsored by him to appear pro hac vice, one of the people said.

[snip]

Blanche is expected to take the lead role in the Mar-a-Lago documents case in addition to leading the team defending Trump against state charges in New York for paying hush money to an adult film star in 2016.

Though Kise is expected to appear alongside Blanche in federal district court in Miami, he has primarily handled civil litigation for Trump since he came off the documents case last October and is not expected to be on the trial team proper, a person familiar with the matter said.

Update: Kise filed what appears to be a permanent notice of appearance, with Todd Blanche filing as well.

If and when former President Trump goes on trial, the Classified Information Procedures Act will govern what information gets submitted at trial and in what form. I wrote about CIPA in conjunction with the Igor Danchenko case here. Former National Security Division prosecutor David Aaron wrote about it the other day.

I’d like to give three examples of what documents that have gone through the CIPA process look like.

First, here’s one of the many CIA cables introduced at Jeffrey Sterling’s trial (here’s a larger set). Sterling was convicted of leaking details about a scheme to use a former Russian nuclear scientist to deal fake blueprints to Iran in an attempt to bollox their nuclear program. The cables would include substitutions for all the organizational details of how CIA works, as well as for the names of the Russian — Merlin — and all the covert CIA officers involved. Entire paragraphs that weren’t crucial to the meaning of the document were redacted.

This particular document was 15 years old when it was used at trial. Most if not all of the Sterling exhibits were classified Secret.

This exhibit includes the parts of Josh Schulte’s prison notebook introduced at trial. This was tied to the allegation that he was launching an Information War from jail, planning to leak further classified information to damage the CIA.

The government was able to substitute the name of a cybersecurity company that had IDed one of the CIA’s hacking tools, so as to avoid confirming that the tool referred to as Bartender in the WikiLeaks release was the malware discussed in the vendor report. But several other things were entirely redacted — such as details of the role that Schulte played at the CIA.

Some of these redactions cover other information — such as his privileged material or stuff that’s particularly inflammatory.

Schulte wrote these notes in 2018; they were first introduced for his 2020 trial, then again for his trial last year.

The case that may present the most analogous challenges to a trial against Trump is the Scooter Libby case, which — like the documents charged against Trump — involved a lot of classified communications to the White House. Here are the exhibits used in his 2nd Grand Jury appearance, at which he lied to cover up the orders Dick Cheney gave him.

Many of these are CIA documents from which the classification markings and entire sentenced were redacted. Like two of the exhibits charged against Trump, these have hand-written notes — sometimes Libby’s, sometimes Cheney’s — which were important to the case. One HUMINT report involving Joe Wilson redacted all the front-matter, including the classification marks (in this case, the notation of Wilson’s name was the important bit).

Even still, the vast majority of the documents introduced at trial were still just classified Secret, not Top Secret with compartments like most of the documents charged against Trump.

The exceptions were often Libby’s notes of Daily Briefings (including PDBs), which he used as part of a gray-mail campaign to try to make the case impossible to try. Though they didn’t have any classification marks (as is true of a document charged against Trump), they were treated as TS/SCI.

Here’s one example of from Libby’s own notes:

The vast majority of this had to be declassified because it was central to the defense Libby was mounting. Just the Foreign Leader and the US official were masked.

The Libby documents are similar to those charged against Trump in another way. These were just 4 years old when presented at trial. If Trump were to go to trial next year, the most recent documents, from 2020, would be four years old.

These cases are all in different circuits than Trump would be prosecuted in. Nevertheless, given the scant number of CIPA cases, it’s possible that the case of Josh Schulte — about whose case was one of the first times Trump shared classified information — and Scooter Libby, whom Trump pardoned, will serve as precedents for his prosecution.

In days ahead, there’ll be a heated discussion of what kind of sentence Espionage Act defendant Donald Trump might face. But even among the really experienced people — who correctly point out that Trump’s sentence would be a tiny fraction of the total 400 max he faces — I think the discussions are wrongly conceived. To explain why, I plan to return to my argument that the Mar-a-Lago indictment is tactical.

But first, I want to emphasize the magnitude of the fact DOJ charged Trump with hoarding 31 documents, each charged as an individual count and described, with classification markings, in the indictment. Virtually all of these documents are the type that the government is normally loathe to include at trial, and yet DOJ piled them on, compartmented document on top of compartmented document. The decision to commit to presenting all of them at trial is really remarkable, and must be (and is not being) accounted for in discussions of potential sentencing.

As background I’d like to review five similar prosecutions.

Daniel Hale

First consider two recent prosecutions (Chelsea Manning’s court martial, after which she was sentenced 35 years, is a third) where the indictments listed a long catalog of stolen documents like DOJ did with Trump: Hal Martin and Daniel Hale.

In Hale’s case, the indictment first listed all 23 documents he printed out from his job at a defense contractor, only four of which were as sensitive as most of the documents Trump was charged for hoarding.

DOJ only described the 11 documents that were published by The Intercept (document H, the fourth TS document, was not published by The Intercept and so not included in the charged documents). It then charged five counts:

• 18 USC 793(c) for taking the 11 documents ultimately published
• 18 USC 793(e) for taking and sharing the files with Jeremy Scahill
• 18 USC 793(e) for causing to be published the files
• 18 USC 798(a)(3) for sharing 4 SIGINT documents (documents A, D, E, and K, above)
• 18 USC 641 for taking the files, charged to include the 11 that got published and a few other unclassified documents that they had proof he had taken

Hale pled guilty to one count without a plea agreement immediately before trial and got a 45 month sentence. He is due to be released in July 2024.

Had Hale gone to trial, the government wouldn’t have had to expose any new information (though it would need to declassify it), because every charged document had been published already. So DOJ really risked very little by charging all 11 documents published by The Intercept. Any damage was already done.

Hal Martin

The way DOJ charged Hal Martin, though, is more akin to how DOJ has charged Trump.

Martin, remember, was arrested, guns-a-blazing, immediately after Shadow Brokers pegged him as the source of the documents being released in 2016. When the FBI searched his home, they found stacks and stacks of documents, including in his car. It took six months to charge Martin, presumably because DOJ had to do an investigation into what and why he had taken — including whether he was Shadow Brokers or had wilfully leaked the documents to Shadow Brokers. Unlike Trump, he was in pre-trial custody that whole time.

In the end, there were no dissemination charges (ultimately, the public record in his case is inconclusive whether he wilfully leaked these documents or not, but if he did, DOJ either couldn’t prove it or chose not to try). As DOJ did with Trump, each of a bunch of documents, a total of 20, were charged as separate counts.

There are descriptions of each of these 20 documents in the indictment, but not classification markers. The indictment describes that they were a mix of Secret, Top Secret, and SCI.

DOJ presumably got sign-off from the agencies to present these documents at trial, but after a very long pre-trial process, Martin ultimately pled guilty in March 2019 to one count of 18 USC 793(e) as part of a plea agreement, with an agreed on sentence of 9 years, one year short of the 10-year max. He’s scheduled for release in May 2024.

Nghia Pho

By comparison, Nghia Pho — the other presumed source of Shadow Brokers, from whom hackers stole a bunch of NSA files loaded onto his home computer — entered into a plea agreement from the start. His Information didn’t describe any of the documents he took home, though suggested many were TS/SCI. Pho was sentenced to 66 months. Pho, who was in his 60s when he was sentenced and is now 72, is due for release in September.

This is the way DOJ normally prefers to treat those responsible for leaks and other compromises, because the prosecution does little additional damage. Of course, there was never a chance in hell such an approach would work for Trump.

Note that Thomas Windom, who is one of the lead January 6 prosecutors, was on the Pho prosecution team.

Jeremy Brown

Two other relevant cases involve Floridians prosecuted in the last year. With Oath Keeper Jeremy Brown, the government did list and present the five documents, all classified Secret, he was accused of hoarding. They used the Silent Witness rule to present the classified documents at trial, all of which were far more dated and less sensitive than the ones Trump is accused of stealing. Here’s how they described that process in the pre-trial process.

First, the government would provide each juror, the Court, and the defense with a binder of unredacted copies of the Classified Documents. The same process was followed in Mallory, 40 F.4th at 173, and it would enable the jurors to examine the Classified Documents while the government elicits unclassified testimony about the same from its expert witness. As in Mallory, the defense would be permitted to follow the same procedures during cross examination and/or with its own cleared expert, should the defense choose to retain one. Id. This procedure ensures that the jury has full access to the information it needs to fulfill its obligations. Id. at 178 (“But a review of the record reveals that the silent witness rule denied the jury none of the information on which Mallory based his defense.” (emphasis in original)). Second, the government will have Bates and line numbers added to the Classified Documents to enable the witness, the government, and the defense to direct the jurors to specific portions of the material.

Brown was only convicted of one of five Espionage Act counts, but nevertheless was sentenced to 87 months for the document as well as the illegal weapons he was convicted of hoarding.

Robert Birchum

Finally, there’s Robert Birchum, a retired Lieutenant Colonel who was just sentenced to 36 months a few weeks ago. Birchum was found hoarding over 300 documents he had collected before 2008, in 2017, six years ago. The Air Force declined to court martial him, and he was honorably discharged (it sounds like the Air Force really valued the counterinsurgency work he did). The first his case was made public was in January, when he was charged by Information with one count of 793(e). That Information did describe two documents he was charged with:

two documents classified at the TOP SECRET/SCI level from the National Security Agency (NSA) relating to the national defense that discuss the NSA’s capabilities and methods of collection of information.

The government asked for a bottom of guidelines sentence of 78 months, emphasizing Birchum’s abuse of a position of trust and the sensitivity of the documents he took. Among other things Birchum raised at sentencing is that he was so important to the Air Force, they sent him back to Afghanistan even after diagnosing him with PTSD. He also invoked all the high ranking people, including Trump, who had brought classified records home.

Among others, Mr. Birchum’s case now shares a stage with the current President of the United States, the former President and Vice-President of the United States, and a former Secretary of State. Looking a bit further back in time, one can see examples of other high-level government executives involved in the same type of offenses, including a former national security adviser who pled guilty to knowingly removing classified documents from the National Archives and a former CIA director and retired four-star general who pled guilty to sharing classified documents with his biographer and mistress. Both the former national security adviser and the former CIA director were sentenced to pay a fine and probation. No charges have been bought against any of the other individuals noted above. Similar cases involving lower-level government employees that did result in prison sentences typically involved attempts to obstruct the investigation or actual dissemination of the information or both.

He was sentenced to 36 months.

The reason I laid all this out is to suggest how remarkable it was that DOJ listed 31 documents Trump allegedly stole. Of the cases above, they did so with less sensitive, dated records that Brown was charged with, with the 11 documents already published in Hale’s case, and then the catalog of documents charged against Martin, some of which may also have been compromised as part of the Shadow Brokers release. If Martin’s charged documents were already compromised as part of the Shadow Brokers case, it means that among these cases, there is no precedent for the government choosing to charge a catalog of incredibly sensitive documents like they have with Trump.

That’s one reason I keep harping on the footnote in a DOJ filing in the Trump case from last September, invoking the Pho case (where we know the documents were badly compromised) to suggest that sometimes the Intelligence Community has to operate on the assumption that programs have been compromised and shut them down.

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.

We know one of the 31 documents charged against Trump — the document described in Count 8 that fell out of a box in the storage closet — would be treated as compromised, particularly if someone knocked the box over or is believed to have found it (remember that there are no cameras inside the storage room).

I can’t emphasize this point enough: One possible explanation for the catalog of charges against Trump is that the IC knows, or made a decision last September to assume, that all of these documents have been compromised. It’s one of the most likely ways to explain DOJ’s willingness to include all of them in charges, just like they did with the documents charged against Hale.

That possibility is not being factored into any of the discussions about sentencing, and it should be. The IC likely has to assume that the many intelligence services that targeted Mar-a-Lago, including two known Chinese infiltrators, found some of these documents, or maybe just the musicians and partygoers who could have had access while they were taking a shit.

Importantly, all the documents charged remained in an unsecured storage room after it became public that there were classified documents among the ones that Trump had delivered to NARA in January 2022. (Note, among the really sensitive documents that weren’t included in Trump’s charges are ones classified HCS-O, describing HUMINT operations.)

The Pho and Birchum examples show that DOJ would far prefer negotiating a plea agreement in advance, to minimize further damage to national security. But Trump made quite clear after the search last year, he was unwilling to go quietly.

The only one of these five who went to trial was Brown, and DOJ used the Silent Witness rule for him. That rule is rightly controversial even with disfavored shithole defendants like Brown (or Kevin Mallory, who was convicted of spying for China using it). I simply can’t imagine using the Silent Witness rule in a trial with a former President. The issues of legitimacy are too great. And so, if this thing goes to trial, I assume redacted copies of all these documents would be introduced as evidence that would get shared with the public.

Which is why I point to the Martin case as the one most similar to Trump. My read of that case is that DOJ charged so many documents — just 20, though, rather than 31 — as part of the coercion process to get Martin to plead.

The problem, in Donald Trump’s case, is that he has more incentive to start a civil war than plead guilty to these charges.

Those are some of the assumptions — not to mention that by charging this in West Palm Beach, where Aileen Cannon was likely to and did get the assignment — that Jack Smith must have had in mind when he charged the MAL case like he did.

With every other similarly situated defendant, DOJ has pursued strategies to get the defendant to plead before exacerbating the damage of the compromise at trial. But with Donald Trump, they’re facing a uniquely intransigent defendant. And that is what Jack Smith was facing when he decided to charge this case this way.

The indictment against Trump and Walt Nauta reflects many of the public reports based off what witnesses or their lawyers have shared with journalists. For example:

• ¶12 describes that the Secret Service had no knowledge of or responsibility for protecting Trump’s boxes of stolen classified documents, which is likely based in part on interviews of past and current Secret Service Agents
• ¶24 describes that Nauta helped Trump pack up in January 2021, something based on interviews of others who helped as well
• ¶34 provides a transcript of the meeting at which Trump boasted about an Iran document in an attempt to attack Mark Milley, about which Margo Martin was interviewed in March
• ¶35 describes how Trump showed someone from his PAC a classified map, another topic of interviews that got reported to the press

Details of all these interviews have made press reports, and we can now understand some of why DOJ needed those interviews (though that doesn’t explain why Trump wasn’t charged for disseminating classified information in Bedminster).

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

For key days, there aren’t gaps, at least not for the storage room. These descriptions of movement into and out of the storage room, which come with time stamps, likely come from surveillance footage:

• May 22, 2022: After spending 34 minutes in the storage room, Nauta moves one box out
• May 24, 2022: Nauta moves three boxes out
• May 30, 2022: Nauta moves 50 boxes out
• June 1, 2022: Nauta moves 11 boxes out
• June 2, 2022: Nauta moves 30 boxes back
• June 2, 2022: Evan Corcoran conducts his review

These are the videos that led Nauta to revise his testimony last November. After that revised testimony, though, he refused further cooperation. Since Nauta got a target letter, the Trump camp has released a revised story about why Nauta refused to cooperate, a story that Maggie and others dutifully parroted today without notice that it is a revised story, and therefore suspect.

So we still can’t be sure whether those gaps were put there intentionally and if so what they serve to hide.

One potential gap is outside Trump’s residence. The search warrant affidavit has a redaction that might obscure a request for a second location (or a more detailed description of the storage room). The only description in the indictment of boxes moving from Trump’s residence is the June 2 move, which reportedly involved the maintenance guy, and so is based on witness testimony. Other descriptions of his residence were obtained from texts. We know the boxes were in there, for example, because a female family member texted Nauta about them on May 30 last year, but there are no time stamp descriptions of the boxes arriving.

If DOJ tried, and failed, to obtain surveillance footage from outside Trump’s residence, it would have prevented them from learning how many boxes went with Trump to Bedminster that same day, which the indictment describes to be “several.”

There’s also no description of how and when the remainder of the boxes were moved back to the storage closet, even though the subpoena compliance should have gone through June 24. Again, that footage might help identify how many boxes went to Bedminster, only to disappear forever.

Just 12 of the boxes seized from the storage closet on August 8, 2022, had classified records in them, though, so Trump may have pulled any classified records from the remaining 22 boxes that were in his residence.

There’s another gap, though, that I find more interesting.

As I have noted, the first subpoena for surveillance footage requested footage starting on January 10, 7 days before Nauta and another employee loaded his personal car up with 15 boxes, 14 of which included classified records, to turn them over to a standard shipping company to return to NARA.

On January 13 and 15, Nauta and Employee 2 were still actively engaged in the two month process of helping Trump personally sort through upwards of 80 boxes to curate a set of 15 he was willing to send back.

44. On January 13, 2022, NAUTA texted Trump Employee 2 about TRUMP’s “tracking” of boxes, stating, “He’s tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow.” Trump Employee 2 replied, “Thank you!”

45. On January 15, 2022, NAUTA sent Trump Employee 2 four successive text messages:

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 Trump Employee 2 replied, “Yes, I will get that!”

If Nauta or Employee 2 were in the storage closet at all on those days, it should have shown up on surveillance footage.

Maybe it did and it just wasn’t that interesting. Maybe MAL doesn’t keep surveillance footage that long.

But that’s why I’m interested in how DOJ did learn about that curation process (which, after all, is what the lie Nauta is charged with covered up — that first post-presidential curation process). Indeed, that first curation process is critical to ten of the Espionage Act charges, documents 22 through 31, the ones that were turned over in response to the May 11 subpoena. The former spooks who’ve done the most work trying to reverse engineer these documents have suggested this set of documents (all but one of which are from fall 2019, amidst impeachment) might be related; Matt Tait has speculated that three of them pertain to Turkey’s invasion of Syria and Trump’s decision to withdraw from most of Syria. You couldn’t charge those documents without solid proof that Trump affirmatively chose to hold onto them after he returned a first set in January 2022. So this sorting process is key to doing so.

In addition to interviews, the information about how the boxes moved around Mar-a-Lago came from text messages between Nauta, Employee 1, and Employee 2. A picture taken on June 24, 2021 shows how the boxes looked that day, when any boxes that weren’t spending the summer at Bedminster got moved there. Employee 2 took a picture on November 12, 2021 to show Trump how many boxes were there, then sent the picture to Nauta five days later, which seems to have been the beginning of their mutual effort to facilitate Trump’s personal sort of these documents.

It’s the picture taken on December 7, 2021 that I find particularly interesting — especially since Trump raised it yesterday at one of his rallies:

Somehow somebody turned over one of the boxes. Did you see that? I said, I wonder who did that. Did the FBI do that?

The FBI didn’t do it.

Walt Nauta discovered the box overturned with this document sticking out, which now makes up one of the 31 documents charged, long before the FBI had gotten involved.

Document dated October 4, 2019, concerning military capabilities of a foreign country (SECRET//REL TO USA, FVEY)

He took two pictures and sent them to Employee 2, the other person involved in facilitating this curation process.

On December 7, 2021, NAUTA found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked “SECRET//REL TO USA, FVEY,” which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, “I opened the door and found this…” NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, “Oh no oh no,” and “I’m sorry potus had my phone.” One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted. TRUMP’s unlawful retention of this document is charged in Count 8 of this Indictment. [my emphasis]

That person’s phone at first said, “Oh no oh no.” But then explained that “potus had my phone.”

I’m not sure what to make of either of those comments.

Though the indictment said the boxes fell, of their own accord, Trump, in front of his mob, seems to think someone knocked them over. In fact he made a point of blaming others, the FBI.

Because the indictment puts the picture in the initial section about how the boxes got placed in this storage room, before things like the guitar and coat rack visible in the December 7 picture got added, and not the section describing how Nauta and Employee 2 were moving boxes back and forth from the storage room to Trump’s residence so he could sort them, it obscures that Nauta would have discovered the spill during the time when he and Employee 2 were already starting this sorting process. All this movement had to have attracted a good deal of attention. And as I noted, as part of helping Trump sort through these documents, Nauta took notes on the boxes, which necessitated swapping out lids for those that ultimately did get sent back to NARA. So if anyone was in that storage closet to put a guitar there, or if someone wanted to use this item that was in the room in June 2021, or if someone decided to go in to see what all the fuss was about, then the boxes with the good stuff might be easily found.

This is the kind of thing the FBI would have wanted to check with surveillance footage — whether someone was in that closet and either inadvertently knocked over the boxes with a guitar or something else, or dug into the boxes themselves.

Those are the kinds of gaps that might lead Trump to preemptively blame the FBI.

“There is no dispute in this case that Pence lacked the authority to reject certified electoral votes, [redacted].”

That’s the foundational principle of the opinion DC Chief Judge James Boasberg wrote on March 27, finding that just a limited number of topics about which DOJ wanted to question Mike Pence were covered by Speech and Debate.

Boasberg unsealed the ruling on Friday.

Trump had no standing in this dispute — his ability to prevent Pence’s testimony was limited to Executive Privilege claims, which had already decided months earlier with Pat Cipollone and others. So on the matter of whether Pence had any authority to reject the certifications, the two parties before Boasberg were always in agreement.

From that agreement, then, Boasberg treated Trump’s pressure on Pence to do so anyway as akin to the bribe at issue in US v. Brewster, a 1972 ruling that held that a conversation in which a Senator accepted a bribe was not protected under Speech and Debate Clause.

Brewster reflects the commonsense proposition that the Clause does not protect conversations whose principal purpose is to convince a Member to do something the Member cannot lawfully do.

[snip]

The bottom line is that conversations exhorting Pence to reject electors on January 6th are not protected. They fall under Brewster‘s rule that communications urging a legislator to act unlawfully or ultra vires are not preparatory — or at most are only incidentally so — to a legislative function.

That thinking is in no way controversial (unless you adhere to John Eastman’s unmoored theories about the Electoral College Act).

But the means by which Boasberg came to this decision are important for another reason.

That’s because “otherwise unlawful act” is a key part of the debate — currently before the DC Circuit — about the meaning of “corrupt purpose” in 18 USC 1512(c)(2), particularly as it applies to January 6. Conservatives on the court want to adopt a rule saying that an act is only “corrupt” if someone is seeking a personal benefit — a definition that would apply to Trump far more easily than the hundreds of other January 6 suspects charged with obstruction. Liberals want to adopt a rule saying something is corrupt more broadly. But the happy middle, a stance first adopted by Trump appointee Dabney Friedrich in December 2021, would hold that an action to obstruct the vote certification is “corrupt” if it is otherwise illegal, one of two decisions on which Boasberg built his own decision upholding the obstruction statute for January 6.

And Boasberg’s decision builds off the premise that Trump’s demands asked Pence to do something he couldn’t lawfully do.

Akin to bribe.

It’s just a small part of the many pieces that will go into a potential Trump charge. But an important one.

The DC Chief Judge has treated Trump’s demands that Pence reject the vote certifications as an otherwise illegal act.

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.

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.

Donald Trump has repeatedly called for lengthy jail sentences for those who he claimed mishandled classified information. My report tonight on @OutFrontCNN, pic.twitter.com/D4P3EGhzj9

— andrew kaczynski (@KFILE) June 10, 2023

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.

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: