“Somewhat Convoluted:” Debunking the Judge Cannon Claims

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Before I went to sleep last night, I suggested there was some suspense about whether journalists would accurately report the power grab Judge Aileen Cannon made yesterday. Who was I kidding? Rather than report what happened, virtually all news coverage simply quoted what Cannon claimed she had done. Not only didn’t the press call out Cannon’s own misrepresentations, but they introduced some of their own.

First, some outlets had suggested that Raymond Dearie had set really aggressive deadlines and Cannon simply altered them. That’s not really accurate. Cannon definitely tweaked with how Dearie would deal with the disputes (mandating a single report from Trump rather than cascading productions, a decision that Trump will cite next month when they ask for an extension). But her original order didn’t mandate any interim deadlines on the review itself (meaning, she can’t say the delay in hiring a vendor changed her own timeline); she just gave Raymond Dearie deadlines and timeframes during which the parties could challenge his decisions. The new interim deadlines she provided are premised on when Trump first receives the materials, so the delay Trump introduced by stalling on a vendor may not affect the process all that much. Dearie’s own deadlines were timed to meet Cannon’s deadline. So effectively, Cannon has simply arbitrarily extended her own deadline by 17 days, from November 30 to December 16.

Finally, in light of delays in securing an appropriate vendor to scan and make available the Seized Materials to Plaintiff and the Special Master, and recognizing the more precise quantification of the implicated pages of material [ECF No. 123 p. 1 (describing that the 11,000 documents approximate 200,000 pages of materials)], the Court hereby extends the end date for completion of the Special Master’s review and classifications from the prior date of November 30, 2022 [ECF No. 91 p. 5], to December 16, 2022. This modest enlargement is necessary to permit adequate time for the Special Master’s review and recommendations given the circumstances as they have evolved since entry of the Appointment Order.

As I note below, that happens to delay the end of Dearie’s work until after such time as the appeal will be fully briefed.

Cannon bases her timeline on three things. First, there’s the delay Trump introduced in getting a vendor (a delay Jim Trusty telegraphed at the hearing before Dearie). Cannon currently envisions the two sides having to agree on a vendor, so Trump may be able to delay the process further still.

Cannon also bought Trump’s claim there are 200,000 pages of materials. As I’ll show in a follow-up, she timed her order in such a way as to prevent DOJ from correcting this claim. I suspect it comes from a draft work order DOJ gave to Trump, but we shall see if and when DOJ explains that it’s impossible for there to be 200,000 documents in the 27 seized boxes plus Trump’s desk drawers.

Cannon also has decided that it will take three weeks to do the review based off her claim that it took DOJ three weeks to do a preliminary review of the seized material.

For context, it took Defendant’s Investigative Team approximately three weeks to complete its preliminary review of the Seized Material [ECF No. 39 p. 1].

She bases that off the interim status report from DOJ, which doesn’t say how long the review took. Rather, it says,

As of the date of this filing, the investigative team has completed a preliminary review of the materials seized pursuant to the search warrant executed on August 8, 2022, with the exception of any potentially attorney-client privileged materials that, pursuant to the filter protocols set forth in the search warrant affidavit, have not been provided to the investigative team.

DOJ would have said the same thing whether they finished their review minutes before filing this status report or two weeks earlier. Cannon simply invented the claim that DOJ had only just finished the review on August 30, three weeks after the seizure.

Cannon likewise misrepresents the nature of Trump’s objection to the inventory review and what the inventory review would have been (and reporters made her misrepresentation worse).

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

[snip]

Plaintiff objects to the pre-review Inventory objection requirement, citing the Court’s Order Appointing Special Master [ECF No. 91] and the current inability to access the Seized Materials [ECF No. 123-1 p. 1].

[snip]

There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents.

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Here’s what Trump’s objection actually said:

To help find facts, the appointing order authorized a declaration or affidavit by a Government official regarding the accuracy of the Detailed Property Inventory [ECF 39-1] as to whether it represents a full and accurate accounting of the property seized from Mara-Lago. Appointing Order ¶ 2(a). The Appointing Order contemplated no corresponding declaration or affidavit by Plaintiff, and because the Special Master’s case management plan exceeds the grant of authority from the District Court on this issue, Plaintiff must object. Additionally, the Plaintiff currently has no means of accessing the documents bearing classification markings, which would be necessary to complete any such certification by September 30, the currently proposed date of completion. [my emphasis]

The material he couldn’t review was limited to documents with classification markings, not the documents as a whole. And as Cannon notes in a footnote (there’s a reason it’s in the footnote, which I’ll come back to in a follow-up), Dearie had given Trump the same four days after receiving the materials to review the inventory after he adjusted the deadlines. In spite of the fact that Dearie’s most recent order only envisioned this verification to happen after Trump got the material, Cannon calls it a “pre-review” and “ex ante” process, suggesting Trump would have had to verify the inventory blind.

Perhaps Cannon’s most cynical move, however, came in her order dismissing Dearie’s suggestion that the two sides might have to brief whether Trump should file a Rule 41(g) in this court or before Bruce Reinhart.

As explained in the Court’s previous Order, Plaintiff properly brought this action in the district where Plaintiff’s property was seized [see ECF No. 64 p. 7 n.7 (citing Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012))].

The 11th Circuit has already ruled that intervening absent any evidence of callous disregard for Trump’s rights was an abuse of discretion.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406

Even ignoring that two Trump appointees have already told Cannon she was wrong, the sentence before the one Cannon cites here notes the absurdity of filing for a Special Master and a Rule 41(g) motion in the same effort, calling it “somewhat convoluted.”

As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity.

Yet even after straining to approve this in her first review and then getting smacked down by the 11th, Cannon still persists in envisioning that she’ll be able to take government property and give it to Trump.

I suspect Cannon’s wrong about at least one more thing — whether Trump has complied with his deadline to mark privileged material. These issues, however, all exhibit the same dishonesty we’ve seen in the past.

Yet the very same press that Judge Cannon is blowing off nevertheless failed to identify any of these problems.

Current Schedule

September 26: Trump provides designations on potentially privileged materials

October 3: Both sides identify areas of dispute on potentially privileged designations

October 5: Finalize a vendor (Cannon fashions this as a common agreement, giving Trump ability to delay some more)

October 13: DOJ provides materials to Trump (Cannon does not note this does not include classified documents)

By October 14: DOJ provides notice of completion that Trump has received all seized documents

October 19: Deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

30 days after DOJ appeal (November 18): Trump reply to 11th Circuit

21 days after Trump reply (December 9): DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

Aileen Cannon Is Stiff-Arming the Press

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I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

Aileen Cannon Stomps on the Scales of Trumpy Injustice

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Aileen Cannon, without explaining why she was intervening, just rewrote Judge Raymond Dearie’s work plans regarding the Special Master review. This was effectively a de novo review before Dearie issued his final decision in the matter.

With no justification (particularly given the way Dearie has ceded to multiple issues Trump has raised), and after having been scolded by the 11th Circuit for her improper claims of jurisdiction, she effectively just eliminated any claim that the Special Master Trump picked and she appointed is a neutral observer.

Altogether she:

  • Excused Trump from having to lodge challenges to the inventory (while misrepresenting the current deadlines for doing so)
  • Accepted Trump’s claims about the timing of vendors even though DOJ assumed that part of the task
  • Bought Trump’s dodgy claim there are 200,000 pages of documents before DOJ could lodge a correction
  • Ignored Trump’s own hints they missed the one deadline they’ve faced so far
  • Invented claims about how long it took DOJ to conduct an initial review
  • Extended her own deadlines to make sure that nothing would happen until after midterms
  • Claimed (even after the 11th Circuit said differently) that there was no jurisdictional dispute over Rule 41(g) motions

I’ll further substantiate these details tomorrow.

It’s an obvious power grab to ensure her own intervention doesn’t backfire on Trump.

Nothing is surprising about this. It’s not even surprising how shamelessly she has intervened.

The only matter of suspense is how honestly reporters will report this naked power grab.

Oleg Deripaska Indicted for His Anchor Baby and Flowers for a TV Host

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SDNY just unsealed an indictment against Oleg Deripaska and three others for sanctions violations. Just one person — naturalized US Citizen Olga Shikri — was in the US to be arrested. The other main consequences from this indictment will be the forfeiture of property related to the sanctions violations. The indictment lists the three properties that were searched last year.

The central allegations in the indictment pertain to efforts — successful with a first child, and unsuccessful with a second — to set up Deripaska’s girlfriend to give birth in the US and via that process, obtain US citizenship for the child.

Then, in or about 2020, SHRIKI and BARDAKOVA helped DERIPASKA’s girlfriend, VORONINA, travel from Russia to the United States so she could give birth to DERIPASKA’s and VORONINA’s child in the United States.  Despite DERIPASKA’s ongoing support for the Russian regime, he funded hundreds of thousands of dollars of transactions so that his child could take advantage of the U.S. healthcare system and U.S. birthright.  SHRIKI orchestrated the payment of approximately $300,000 worth of U.S. medical care, housing, childcare, and other logistics to aid VORONINA and DERIPASKA’s efforts to help VORONINA give birth in the United States, which resulted in the child receiving U.S. citizenship.  DERIPASKA counseled VORONINA on obtaining a visa to travel to the United States, including by telling her to be “careful” ahead of an interview by U.S. immigration authorities.  VORONINA thereafter applied for and obtained a U.S. visa for a purported ten-day tourism visit without disclosing her intent to travel and stay in the United States for approximately six months to give birth to DERIPASKA’s child.  Following the birth, SHRIKI, BARDAKOVA, and VORONINA conspired to conceal the name of the child’s true father, DERIPASKA, going so far as to change, slightly, the spelling of the child’s last name.

Later, in or about 2022, at DERIPASKA’s further behest and for his further benefit, SHRIKI and BARDAKOVA attempted to facilitate VORONINA’s return to the United States to give birth to DERIPASKA’s and VORONINA’s second child.  This second attempt included BARDAKOVA and VORONINA’s attempt to use false statements to conceal DERIPASKA’s funding and secure VORONINA’s entry into the United States – an attempt that was thwarted, and VORONINA was denied entry and returned immediately to Istanbul, through which she had flown from Russia to the United States.

In addition to a music studio sold in 2019, the indictment refers to other purchases in the US, including Easter flowers for a US TV host.

BARDAKOVA – largely based in Russia – directed SHRIKI to engage in particular illegal transactions on DERIPASKA’s behalf.  These instructions included directing SHRIKI to obtain U.S. goods and technology for DERIPASKA.  Moreover, between in or about May 2018 and in or about 2020, BARDAKOVA instructed SHRIKI to purchase and send flower and gift deliveries on behalf of DERIPASKA to DERIPASKA’s social contacts in the United States and Canada.  The deliveries included, among others, Easter gift deliveries to a U.S. television host, two flower deliveries to a then-former Canadian Parliament member, and two flower deliveries in 2020 to VORONINA while she was in the United States in 2020 to give birth to DERIPASKA’s child.

Perhaps most interesting to me is that the investigation was active in 2020, in the wake of Geoffrey Berman’s firing. Shriki is accused of destroying records in advance of a September 23 grand jury appearance. This was the period when Barr was furiously cleaning up all remaining traces of the Russian investigation (and it was the same month when Yevgeniy Prigozhin’s Interpol red notice was withdrawn, even though the indictment against him in the US remains).

In Berman’s book (which I’ll write about one of these days), he makes it quite clear Barr was protecting Rudy in this period. Was he also protecting Deripaska?

Update: Interesting timing! Andy Beshear announced he has recouped the $15 Million Matt Bevin dumped in Deripaska’s aluminum venture in KY.

The Claimed 200,000 Pages Trump Stole Include Press Clippings

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Yesterday, Trump filed the complaints he had originally filed under seal as well as another bid to delay the Special Master process.

I’ll return to both. But I want to look at the basis Trump offers to request a delay: that the documents seized from Trump amount to 200,000 pages.

At the status conference before the Special Master, the Plaintiff suggested that the dates put forth in the Draft Case Management Plan were unlikely to prove feasible in terms of both the likely start of the document flow and the man-hours necessary to review more than 11,000 pages or documents. Indeed, the Plaintiff suggested that a rough rule of thumb in document reviews is 50 pages per hour. Building into his calculations the review and categorization of the filter team documents; the successful recruitment, retention, and start-up operation of a data vendor; and the requisite review and categorization of that many documents led the Plaintiff to suggest mid-October as a completion date. Government counsel assured Your Honor that a minimal adjustment of “a couple of days” was all that was needed, but that otherwise the Plan was perfectly acceptable.

Trump has, so far, never shied away from spinning the facts. And this is the first filing made without Chris Kise’s signature, increasing the likelihood of shenanigans.

This universe of documents reflects the contents of 27 boxes plus the contents of Trump’s desk drawer (ignoring the 520 pages of potentially privileged documents, some of which came from the desk drawers, and all but one email of which Trump has had for 13 days). If the 200,000 number were accurate, every box and the drawer would have, on average, over 7,000 pages of documents, which is far more than even a large case of paper would include (10 reams of paper at 500 pages each, or 5,000). And some of these boxes include books (33 altogether) and clothing or gifts (19 total), which would fill space really quickly.

But even assuming that someone in government told him that the 27 boxes of documents plus the contents of Trump’s desk drawer amount to 200,000 pages of material, even assuming Trump would need to review every page of every government document he stole, this is still misleading.

That’s because the boxes also include clippings, up to 121 in a box, for 1,671 total. A typical news article printed out can run 10 pages or more (recall that Trump’s White House cut his NYT subscription). One “clipping” — in box 27 — spans over four years, July 2016 to September 2020.

This is not a single newspaper article. It might well be an entire blog or website, printed out.

And if these boxes resemble the ones delivered to NARA at all, they are largely clippings, with documents interspersed.

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.”

In other words, there’s a lot of fluff in these boxes. Fluff that will not need extensive review, because they’ve been seized because they help investigators understand the other items in those boxes.

And Trump is using that fluff to draw out the Special Master process.

The Gaslighter’s Psychiatrist: My Response to Dan Drezner

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I wasn’t going to weigh in on the latest kerfuffle over Maggie Haberman. She wrote a book. It reveals things that would have been useful to know years ago. On several key points (such as what Trump did with the Strzok and Page texts), she seems unaware of related details that undermine her claims to exclusive smarts. The kerfuffle is not that interesting to me.

But Dan Drezner said two things in defense of her that are so fascinating, I couldn’t resist.

His most substantive defense of Maggie, bullet point 1, halfway into his post, is that most other politicians would not have remained standing after her stories.

Haberman is a pretty great reporter! Her stories on Trump were chock-full of tidbits that would have destroyed the standing of most other politicians. That Trump remained standing (sort of) after every one of her bombshell stories is a source of frustration to many, but Haberman is hardly to blame for this.

Drezner, who is a news-savvy political science professor with a column, not a journalist, spends much of the rest of his post lecturing about how journalism works.

For all the lecturing, he doesn’t note the most curious journalistic fact about Maggie’s book tour, at least to me: not that she delayed stories for the book, not necessarily that she’s telling stories she could have told in 2016 or 2018 or 2020 but did not, but that none of the teaser exclusives are being published at the NYT. The Atlantic, CNN, Axios, WaPo’s own Trump-whisperer — they’re the ones getting traffic from Maggie’s tidbits this week, not the NYT. After I started this, Joe Klein — better known as Joke Line!! — did a fawning review of the book in the NYT, but that’s not news or even, given that it was written by Joke Line, marginally reliable (though it may nevertheless be the most unintentionally insightful piece on the book).

When James Risen’s book about George Bush’s war on terror abuses was shunned by the NYT, it was a symptom of far more significant problems at the newspaper, problems that had to do with that outlet’s relationship to the Presidency (or perhaps Vice Presidency). Who knows whether that’s the case here. But it does raise questions about whether something is going on that explains NYT’s choice to let their star Trump-whisperer scoop them in virtually all the competing outlets — or whether they even had a choice in the matter.

Like I said, Drezner is a political science professor, so perhaps it was no surprise he missed what I find to be a more interesting curiosity about Maggie’s book blitz.

But he’s a political science professor, and so I would have welcomed some reflection about why he believes most other politicians, but not Trump, would have been destroyed by Maggie’s tidbits. Do Maggie’s strengths and weaknesses as a journalist offer any insight into Trump’s unique resilience? Is she a symptom of it? Or one of the causes? Those seem like utterly critical questions for political science professors as we try to stave off fascism in the United States.

As an access journalist, Maggie rises and falls with the subjects of her access. And this book — the payoff for years of access — is not just a story about Trump. It’s a story of her access, the transactional relationship it entailed, what Trump does with those he has selected to be witnesses to his power.

In the Atlantic excerpt of her book, Maggie famously described Trump likening her to his psychiatrist. She used that as a cue to close the piece with her wisdom about Trump — written in the first person but often, not always, quoting Trump’s direct speech, heightening both her own status as omniscient narrator but also the degree to which she is a manufactured character in her own book.

Then he turned to the two aides he had sitting in on our interview, gestured toward me with his hand, and said, “I love being with her; she’s like my psychiatrist.”

It was a meaningless line, almost certainly intended to flatter, the kind of thing he has said about the power of release he got from his Twitter feed or other interviews he has given over the years. The reality is that he treats everyone like they are his psychiatrists—reporters, government aides, and members of Congress, friends and pseudo-friends and rally attendees and White House staff and customers. All present a chance for him to vent or test reactions or gauge how his statements are playing or discover how he is feeling. He works things out in real time in front of all of us. Along the way, he reoriented an entire country to react to his moods and emotions.

I spent the four years of his presidency getting asked by people to decipher why he was doing what he was doing, but the truth is, ultimately, almost no one really knows him. Some know him better than others, but he is often simply, purely opaque, permitting people to read meaning and depth into every action, no matter how empty they might be.

We’re all like Maggie, omniscient narrator Maggie explains, all just bit players serving as a sounding board to witness him ramble for 20 minutes, all the while cutting us off so he can find the precise word he wants. But maybe not. In the next paragraph, first person Maggie reminds us that everyone else asks her, the sounding board Trump likens to his shrink, to “decipher” him. And this woman who stages herself as a participant in three interviews in this piece, concludes not that she’s got no insight, but that he’s simply opaque, something that we — including Maggie the character portrayed interviewing Trump — project our interpretations of depth onto.

Maggie sells herself as the false promise that you might get to know Trump through his quoted lies and not through his means or his deeds, not through understanding how those lies and the way they are circulated wielded power.

And that, Drezner observes, didn’t end up sticking to Trump the way it would other politicians. That seems like a really important insight.

Which brings me to the other thing Drezner set me off with.

The best explanation of Maggie’s work he offers — and it’s a frightfully good explanation — is the way he starts his post:

When I was curating the Toddler-in-Chief thread on Twitter and adapting it into The Toddler in Chief, I leaned pretty hard on Maggie Haberman’s reporting for the New York Times. I literally said, “Maggie Haberman’s reportage… is all over that thread.”

Drezner was talking about his interminable chronicle of Trump’s tantrums. Each tweet screen capped an example of Trump’s closest aides bitching to someone — and yes, that someone was often Maggie — about how they had to coddle Trump, how they built the entire Administration to cater to Trump’s every mood or emotion. In each tweet, Drezner the political science professor would categorize this report as yet more proof that Trump was not “growing into the presidency.” I took the observation as shorthand for false expectations of normality after Trump’s election, a hope that it wouldn’t be so bad after Trump came to understand the gravity of the office. Drezner contines to cling to that observation, even after Trump’s failed coup attempt.

I found the series funny and occasionally baited Drezner on it. It was a worthy observation about false reassurances certain pundits made about Trump. But it ended up being an inadequate rubric for understanding the damage Trump could do as we all laughed at his ineptitude.

In retrospect there were probably better ways to try to convey the danger posed by Trump than to serially mock him on Twitter, reinforcing the editorial decisions that treated his tantrums but not his actions as the news, even while exacerbating the polarization between those who identified with Trump’s tantrums and those who with their fancy PhDs knew better.

And Drezner’s first impulse, when defending Maggie’s journalism, was to point to the sheer number of times she obtained a hilarious quote that served as another artifact in a never-ending string of news stories that treated Trump’s tantrums as the news, rather than the actions Trump pulled off by training people to accommodate his tantrums.

Those stories, individually and as a corpus, revealed Trump to be a skilled bully. But those stories of Trump’s bullying commanded our attention, just like his reality TV show did, and reassured him that continued bullying would continue to dominate press coverage.

That press coverage, I’m convinced, not only was complicit in the bullying, but also served as a distraction from things that really mattered or levers that we might have used to neutralize the bullying.

It was power by reality TV. And Maggie Haberman was and remains a key producer of that power.

Update: Drezner did a really thoughtful response here. I totally agree with this point:

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

His discussion of how great stories reporting on scandal barely blip in the coverage, however, goes right to my biggest gripe with Maggie. Drezner denies that Maggie’s reporting serves to distract from real crimes.

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

But Maggie’s access and the way Trump’s associates exploit her — gleefully — makes it really easy to play her to kill a story. Her limited hangouts then become the breaking news, rather than the real details disclosed by an investigation.

Both on specific parts of the Russian investigation — such as Paul Manafort’s sharing of campaign strategy in the same meeting where he talked about $19 million in financial benefits to him — and more generally — such as Maggie and Mike Schmidt’s demonstrably false claim that Trump was only investigated for obstruction — stories involving Maggie helped Trump and his associates cover up his criminal exposure.

Under Seal, Trump Accuses Hand-Picked Special Master of Not Following Orders

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Trump appears to be accusing his hand-picked Special Master, Raymond Dearie, of violating Judge Aileen Cannon’s rules under seal.

In a government request for an extension of deadlines that appears to be necessitated because document review vendors either refuse to work with Trump, or Trump has made himself impossible to work with, it lays out three objections Trump made to Dearie’s September 22 case management plan under seal (such objections were due Tuesday). At least one of the complaints appears to accuse Dearie of violating Judge Cannon’s September 15 appointment order.

Below, I’ve shown passages from Cannon’s order, Dearie’s implementation of that order, and DOJ’s response to Trump’s objection; that helps to show what Trump’s complaints must be.

Cannon order:

Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;

Dearie order:

No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

Sealed Trump objection?

DOJ response:

First, contrary to Plaintiff’s objection, the verification required by Plaintiff of the Detailed Property Inventory is a condition precedent to the document categorization and privilege review. The Special Master needs to know that that he is reviewing all of the materials seized from Mara-Lago on August 8, 2022 – and no additional materials – before he categorizes the seized documents and adjudicates privilege claims.

Cannon order:

Plaintiff’s counsel shall review the materials, allocate each of them to one of four mutually exclusive categories listed below, and prepare and provide to the Special Master a log stating, for each item or document, the particular category claimed and on what basis.

The four categories are as follows:

aa. Personal items and documents not claimed to be privileged;

bb. Personal documents claimed to be privileged;

cc. Presidential Records not claimed to be privileged; and

dd. Presidential Records claimed to be privileged.

Dearie Order:

Plaintiff shall provide the Special Master and the government with an annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege

c. Executive privilege that prohibits review of the document within the executive branch;

d. Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e. The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

Sealed Trump objection?

DOJ response:

Second, that the Amended Case Management Plan has six categories (ECF 112, at 3) and the Appointment Order four (ECF 91, at 1) is entirely a function of the fact that the four categories in the Appointment Order speak of “privilege” in general and do not (as the Amended Case Management Plan does) differentiate between attorney-client and Executive privilege. The Amended Case Management Plan is entirely consistent with the Appointment Order. Plaintiff’s objection has no logical basis.

Cannon order:

Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;

Dearie order:

Once the Court has reviewed the Special Master’s recommendations and ruled on any objections thereto, the Special Master will, if necessary, consider Plaintiff’s motion for the return of property under Federal Rule of Criminal Procedure 41(g). Plaintiff shall submit a brief in support of the motion no later than seven calendar days after the Court’s ruling on the Special Master’s recommendations. In addition to addressing the merits of the Rule 41(g) motion, Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued, 9:22-MJ-08332-BER.

Sealed Trump objection?

DOJ response:

Third, the Special Master’s request for briefing on a particular point of law is similarly consistent with the Appointment Order. The government will brief that point of law. It behooves Plaintiff to brief that point as well.

It’s fairly clear why Trump has leveled these objections, and equally clear why he filed them under seal.

If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

With regards the designations, labeling documents with six non-exclusive labels effectively amounts to declaring the basis underlying Cannon’s four “mutually exclusive” designations, but it also requires Trump to lay out where he disputes the law as it actually exists. Adhering to the meanings of “personal” and “Presidential” records as laid out in the Presidential Records Act would accept the legal guidelines imposed by that. Requiring Trump to label something as both Presidential and Executive Privileged requires him to accept that personal items cannot be the latter. Making claims of Executive Privilege — which must be made to treat such things as privileged — would make any appeal easier. Distinguishing between Executive Privileged documents that can and cannot be shared within the Executive branch will similarly make DOJ’s appeal easier and help prove that Trump withheld the latter to obstruct the function of the Archives. And to distinguish between Attorney-Client and Executive privilege would be to concede that government lawyers didn’t work for Trump. To be sure: Cannon did say Dearie should use four mutually exclusive categories, but these six are the ones that Dearie would have to adjudicate and (as noted) Trump would always need to affirmatively claim both attorney-client and Executive Privilege. Dearie can’t do his job if Trump won’t specify what kind of privilege he is claiming here. But by suggesting Dearie’s order is inconsistent with Cannon’s order (as DOJ’s response suggests Trump is doing), Trump may be trying to hasten to the point where Cannon fires Dearie and replaces him with someone who’ll hold Trump to a standard other than that required by a Special Master review, not to mention the Presidential Records Act.

Briefing the 41(g) issue will make it easier for DOJ to show, on appeal, that Judge Cannon overstepped by asserting jurisdiction.

By keeping all these objections under seal, Trump makes it harder for the press to call him (and Cannon) out for — as Dearie noted in the hearing — “having his cake [of a civil suit] and eating it too,” demanding relief without being willing to put in writing what claims he himself is making. His objections, whatever they are, must be written forms of the same complaint that Jim Trusty made in the hearing.

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”

By attempting to do this under seal, then, Trump is also attempting to hide the nature of his complaints in case Cannon decides to respond by firing Dearie. If she fires Dearie with this public (and she might!), it’ll make it all the easier for the 11th Circuit to reverse the entire appointment as an abuse of civil procedure.

Cannon is still hiding the filter team status report that would show that she made false claims about its contents to even claim jurisdiction, and she may well hide Trump’s objections for the same reason: because they make her own actions all the more improper.

DOJ repeated the same point Dearie made in the hearing: as the plaintiff before Cannon, Trump bears the burden of proof, not DOJ.

Plaintiff brought this civil, equitable proceeding. He bears the burden of proof. If he wants the Special Master to make recommendations as to whether he is entitled to the relief he seeks, Plaintiff will need to participate in the process by categorizing documents and providing sworn declarations as the Amended Case Management Plan contemplates.

But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him.

Update: Trump has now released his objections, which he stated he didn’t want to release. He submitted it with this letter, which claims the government seized 200,000 pages of documents from his home.

Trump’s Shaky Privilege to Hide His Pence Pressure

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CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

Three Questions at the Start of an Intelligence Review

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Why? Why? Why not?

There’s been a lot of focus on the narrow legal battles over the documents seized at Mar-a-Lago, but sometimes stepping back to look at the big picture helps bring the conflict into focus. As a legal matter and a political matter, Trump, his lawyers, and his apologists are trying to make the claim that this is just a dispute about documents, like overdue library books. The passion with which the DOJ went after them since receiving the referral from NARA last February, especially the ferocity of the legal arguments and filings over the last two weeks, demonstrates how wrong the DOJ believes that framing to be.

I agree with the DOJ.

The documents are not really what is being fought over — the battle is over the damage  (hypothetical or actual) done to our intelligence services, our national defense, and our broader foreign policy by Trump’s possession of these documents at Mar-a-Lago. The documents are the first puzzle pieces the intelligence community [IC] has to put together, to fill in the whole picture and plan a way forward.

To understand why, let’s parse out what an intelligence review might look like. What follows is not based on any insider sources at the DOJ, ODNI, or any other federal agencies, but on my own experience (long ago) with classified materials and the general experiences of others I know with deeper and more recent work in classified matters, as well as analyzing other cases where classified materials were stolen from the government and passed along to foreign governments.

An intelligence review is designed to look at three things: what got exposed, to whom, and what dangers does that pose to intelligence sources, methods, and broader foreign policy objectives? These are all backwards-looking questions, to understand how this could have happened in the first place. They also serve as the starting point for forward-looking actions, as we and our allies pivot our overt and covert foreign policy approaches in a new context. Think of Klaus Fuchs, a German-born British scientist who passed US and British nuclear secrets to the USSR in the 1940s. A backwards looking intelligence review ultimately identified him as the spy and spotted the flaws in our security procedures, and a forward looking review pivoted the US and British policy toward a world with nuclear powers who opposed each other.

In the current case, the IC review begins with three interrelated questions:

  1. Why did Trump take government documents to Mar-a-Lago in the first place?
  2. Why these documents?
  3. Why not those other documents?

The second and third questions begin to move toward an answer to the first question, so let’s start there. Broadly speaking, I see five possible answers, each of which poses different dangers.

1: Vanity

If this is the answer to that first question, we would expect to find that Trump took documents that made him look good, that pointed to actions that he believed he could claim credit for, or that simply let him feel powerful because he knows stuff very few others know. Think of these as Extreme Presidential Souvenirs. These would be documents that shout to the world, “Look at how great Trump is . . .”

Danger: Simply having documents like this in his possession would likely not be enough for Trump’s ego. Trump’s ego would demand that he show them to others, so that they would know how great Trump is. The level and kind of danger depends on who the “others” are, and who they might have spoken to about what Trump showed them.

2: Fear

In this scenario, the IC review would see that Trump took documents that would help cover up his failures and/or possible crimes, such as a full transcript of the “Perfect Phone Call” with Zelenskyy. These would be documents that whisper in Trump’s ear, “This could get you into trouble. You better hide this . . .”

Danger: These are the documents least likely to be shared by Trump, so in that respect they are safe. On the other hand, they become prime material for blackmail if unfriendly parties realize he has them. Trump’s nightmare is getting a phone call about these documents, threatening to expose the documents to the “wrong” people. “I’d like you to do me a favor, though . . .”

3: Greed

Given Trump’s proclivity to monetize anything he can for his own personal gain, it is hard to imagine that Trump would not be looking at anything that crossed his desk to see how he might make money on it. (“Hmmm . . . I’m doing some traveling? OK, which of my properties are closest, and how much can I charge the Secret Service for staying there?”) Documents that showed him something that would let him make money would be particularly tempting to Trump. Think of this as corporate espionage, or a twisted form of insider trading. Perhaps he received knowledge of foreign government’s as yet unannounced plans to develop certain properties overseas, and figured he could jump in, buy the property first, and then get bought out for a profit. Or maybe he would buy the property next to the future development and cash in when the government project became public and went forward, driving up the value of what he purchased. Perhaps these were not projects led by foreign governments, but by US corporations acting abroad whose plans were picked up as part of a signals intelligence surveillance program aimed at less-than-friendly nations. Documents like this would be calling out to his wallet, telling him “Hey, you can really use this . . .”

Danger: Suppose Trump acts on this information in some way, and the foreign government in question starts wondering “Did Trump merely get lucky in choosing to invest right where our project was going in, or did US spies give him the information?” Questions like that might lead to the exposure of human assets (sources) and signals intelligence capabilities (methods), which in turn could lead to those sources being shut down/arrested/killed, those signals intelligence methods being countered, or either the sources or methods being turned and used to feed false information to the US.

4: Corruption

As bad as #3 is, this scenario is the IC nightmare: Trump took documents that he knows other foreign governments, perhaps some of our greatest enemies, would love to have, and then deliberately passed them along to those governments. It might be to get revenge on Biden and the Dems for beating him in 2020. It might be to sabotage the work of the current administration and cause great public political problems for the Dems, to enable his return to the White House in 2024. It might be that some foreign adversary has compromising information about Trump or holds a private loan to Trump, his family, or his Trump Organization, and that country demanded classified information from Trump in exchange for not revealing the compromising information they hold or for not calling in the loan he could not immediately repay.

Danger: Beyond the damage done to sources, methods, and US foreign policy objectives created by disclosing the classified information in these documents, this scenario is worse. It weakens our relationships with our allies and harms our position in the world, simply by indicating we can’t keep secrets and by making us weaker through whatever is revealed. Should Trump have provided classified intelligence deliberately, it only gives those folks more leverage over Trump, which they would use to push for more information and more favors. Once you’ve turned over classified information to a hostile power, those folks own you forever. “Nice resort you’ve got here. It’d be a shame if anything were to happen to it.”

And it is not beyond the realm of possibility that foreign governments might lean on Trump to use his family to further their goals. “You need to have Jared talk to his friends in the Middle East, and convince them to . . . “

5: Some/all of the above

Trump might have taken some documents to feed his ego, others to hide them, and still others to try to monetize their contents. He might have taken some for his own reasons, and others because he was pressured to do so by hostile powers. The permutations are . . . troubling.

Danger: some/all of the above.

HOW BAD IS ALL THIS? DON’T ANSWER YET . . .

On top of these five possible explanations of Trump’s motives, one other thing is absolutely certain. Documents like those that were seized by the DOJ would have been catnip for the intelligence agencies of other nations. Once word got out that Trump had taken highly classified documents out of the WH (or once folks even suspected he had done so), all manner of foreign spies no doubt became very interested in Mar-a-Lago – much more than they had been during the Trump administration itself. It’s hard as hell to get into the WH and take classified materials, or to plant electronic surveillance devices inside the WH. Mar-a-Lago, on the other hand, is a relative sieve, especially after Trump left office and the security around Trump was much more directed to protecting his person rather than protecting all the stuff around a sitting president. At Mar-a-Lago these days, you pay your membership fee, and walk right in for a grand tour. Whatever the reason Trump chose to take these documents, even if he simply wanted to hold onto them as presidential souvenirs and he does nothing with them otherwise, should foreign agents copy them or steal them from Mar-a-Lago, that’s almost as bad it as it gets for the US.

Danger: Exposing whatever classified information to the prying eyes of our adversaries not only exposes sources and methods of our intelligence services, but provides our adversaries with insight into our strengths and weaknesses, depending on what the intelligence said. It also opens Trump to blackmail, as noted above in scenarios #2 and 4. “Well look what we found at your home. It sure would be terrible if the FBI were to discover that you were so sloppy with security that we were able to waltz right in and take them.”

To sort out the likelihood of each of these scenarios and the specific dangers posed, those conducting the IC review will do a couple of things. First, the leaders of the intelligence agencies are likely going back to the original creators of these documents, to tell them they were found in unsecured locations at Mar-a-Lago, and therefore (a) the creators need to assess what the specific danger would be if this particular document were to be exposed, and (b) the creators should look around to see if they have any signs that these documents had been shared already. The former is to measure the hypothetical damage, while the latter is to assess the likelihood that this is not hypothetical. Did spies suddenly go quiet, or did the quality of their information suddenly become different? Did satellites that used to provide good, regular photos of intelligence targets begin to provide much less good intelligence? All the while, the IC reviewers know that this is likely even worse.

EVEN WORSE? HOW CAN THIS BE EVEN WORSE?

If any of this information came to the US IC through our partnerships with other friendly nations (like Five Eyes or NATO), that means going to the intelligence folks in those countries who trusted us with their secrets and telling them that their trust was misplaced, at least while Trump was in office. They are the folks who need to assess the danger that exposure of this information would create, and who would have to see if there were signs that this information had already been shared. Of course we would promise to do whatever we could to assist them in that analysis, but that’s like telling a shopkeeper that you will help sweep up the shards of all the broken crystal after your kid threw a bowling ball into the display case.

Danger: It’s bad enough if our secrets get exposed, but if we let their secrets get exposed, that’s going to make them less likely to trust us in the future. As I said before, this is why having career diplomat William Burns as head of the CIA was a stroke of genius by Biden, and why Burns and the rest of the IC is no doubt bending over backwards to help Garland get this right, and bending farther over backwards to help our allies get this fixed.

SO HOW MIGHT THIS REVIEW WORK?

This is why the analysis of what was taken and trying to determine Trump’s motive(s) is the starting place. It leads to other critical questions like these:

  • What does Trump’s selection of documents — classified and unclassified — tell us about what is going on?
  • Were the documents tucked away by Trump over a long period of time, or did they all get tucked away in a specific, relatively short time period?
  • And what else was tucked in the drawers, file folders, and boxes next to these classified documents? Are there notes or letters that appear to have been written based on the content of the classified materials?

Depending on what this initial analysis reveals, the reviewers will begin to talk to the counterintelligence people in their agencies, especially if there is some concentration of subject matters or particular time frames involved.

  • Have you noticed any unusual behavior in known foreign agents around those time frames?
  • Was there any unusual signals traffic between foreign agents here and their bosses back home?
  • Were there any new agents who arrived here, who have a particular focus to their work that meshes with the subject matters of the documents Trump took? What actions have they taken?

To dig into all this, the analysts will be looking at other information and also be in contact with the folks in the field who are managing the human sources or electronic surveillance methods, to see what insights they might have. They know that decisions will need to be made about protecting or extracting sources who might be in danger, shutting down electronic surveillance already in place (pull out/relocate bugs and cameras if possible, re-direct satellite orbits, change communications frequencies, reprogramming software, etc.), and otherwise working to replace these sources and methods in some way to avoid further exposure. They hope to restore secrecy to the people and programs, and restore quality to the intelligence that might have been harmed through exposure.

While all this covert review work is going on, the FBI will no doubt be doing an ordinary shoe-leather investigation into the folks who have been going in and out of Mar-a-Lago over the last 18 months after the security of the resort was scaled back to simply protect the former president. They will be looking at guests and staff alike, trying to see what can be learned from videos, logs of visits, work schedules, and in some cases interviews. They will be looking at the White House document handling, especially after December 18, 2020 when the head of the White House Office of the Staff Secretary resigned and no one was named to take his place — even in an acting capacity — until January 20, 2021. They will be doing deeper domestic investigations of any new foreign agents that were identifies by the IC analysts.

And then there’s the investigation that NARA is probably already trying to complete: what other documents from the Trump White House were not turned over?

This is all very time consuming and expensive. You don’t want to do this if it isn’t necessary, but you absolutely have to do it if these sources and methods are likely to have been (or actually were) blown. Only when the Why?, Why?, and Why not? questions have been answered can the forward looking work really begin in earnest.

There’s a lot more that can be inferred about what an intelligence review would contain, but one thing is certain. The panel of judges from the 11th Circuit Court of Appeals and Special Master Raymond Dearie are focused on what Judge Cannon does not want to recognize: this is not a case about misfiled documents, but a national security case in which documents hold the key to assessing the dangers posed and actual damage done to our nation, so that the current government can begin to address it.

Just Following Orders: Raymond Dearie’s Strict Compliance with Aileen Cannon’s Orders

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Yesterday, two different filings were added to the Trump v. America docket. The first was an order from Judge Aileen Cannon, stripping the language pertaining to classified documents from her order appointing Raymond Dearie to be Special Master. The second, posted shortly thereafter, was Judge Raymond Dearie’s draft order for work flow.

Dearie’s order has rightly attracted attention for the lengthy instructions on how Trump must make any challenges the detailed inventory FBI released in the next week. (Note, according to the current schedule, Trump will have 4 days after receiving the documents to make such challenges.)

I. VERIFICATION OF THE DETAILED PROPERTY INVENTORY

No later than September 26, 2022, a government official with sufficient knowledge of the matter shall submit a declaration or affidavit as to whether the Detailed Property Inventory, ECF 39-1, represents the full and accurate extent of the property seized from the premises located at 1100 S. Ocean Boulevard, Palm Beach, Florida 33480 (the “Premises”) on August 8, 2022, excluding documents bearing classification markings (the “Seized Materials”). See Appointing Order ¶ 2(a); Order Following Stay ¶

1. No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.

No later than October 14, 2022, the government shall submit a declaration or affidavit from a person with sufficient knowledge of the matter responding to any factual disputes as to the completeness and accuracy of the Detailed Property Inventory raised in Plaintiff’s submissions. Upon reviewing the parties’ submissions, the undersigned will schedule further proceedings as needed to resolve any such disputes including, if necessary, an evidentiary hearing at which witnesses with knowledge of the relevant facts will provide testimony. To the extent that the resolution of any such factual disputes identifies additional materials that should be reviewed, the undersigned will set further proceedings as needed.

The identification and resolution of any factual disputes as to the completeness and accuracy of the Detailed Property Inventory will proceed concurrently with the substantive review procedures described below

From reports of the hearing the other day, it seemed that Dearie asked if this was really necessary. Jim Trusty admitted Trump doesn’t know what’s in the boxes. So this seems like a concession to Trump’s team, an extended focus on whether the FBI accurately cataloged the items taken from Trump’s house. But in practice it ends up being a very strict requirement on Trump that he substantiate things — such as his claim to Hannity, the other day, that the FBI agents took his will — that he has said publicly. Trump also admitted to Hannity that his video of the search doesn’t show the actual rooms from which items were seized, something I predicted (because there’s no way Trump would take video of his office accessible from New York). So while this is precisely what Trump had asked for, it ends up locking Trump in in ways that may limit any criminal defense strategies in the future.

As Dearie said the other day, Trump chose to make himself a plaintiff, and in that posture, he may be forced to make affirmative claims he would never be forced to make as a defendant.

Dearie also required that Trump differentiate the documents he claims are Executive Privileged that can be accessed by the Executive from those that cannot.

Plaintiff shall provide the Special Master and the government with an annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege

c. Executive privilege that prohibits review of the document within the executive branch;

d. Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e. The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

This takes Trump’s claims of (and Cannon’s unilateral reimagination of) Executive Privilege literally. But it also requires Trump to make a claim that will be easier to defeat on appeal. It effectively requires Trump to create a new category of documents that will make DOJ’s appeal easier.

Dearie’s order requires Trump to pay his bills or face sanction.

No later than seven calendar days after the undersigned has resolved any such disputes (or seven calendar days after receiving an invoice as to which Plaintiff raises no objections), Plaintiff will submit payment in full as directed on the invoice. Failure to make timely payment will be deemed a violation of the Special Master’s order subject to sanction pursuant to Federal Rule of Civil Procedure 53(c)(2).

Finally, Dearie revealed that retired Magistrate Judge James Orenstein will assist him in the review — and that only Orenstein will be getting paid, and that at a rate below what other Special Masters make — Trump got off easy on this front!

The undersigned has determined that the efficient administration of the Special Master’s duties requires the assistance of the Honorable James Orenstein (Ret.), a former United States Magistrate Judge for the Eastern District of New York, who has experience with complex case management, privilege review, warrant procedures, and other matters that may arise in the course of the Special Master’s duties. Judge Orenstein has served as an appointed amicus curiae in the Foreign Intelligence Surveillance Court pursuant to 50 U.S.C. § 1803(i)(2) and currently holds Top Secret clearance.

[snip]

As a United States District Judge in active service, the undersigned will seek no additional compensation for performing the duties of Special Master in this action. The undersigned proposes that Judge Orenstein be compensated at the hourly rate of $500.

As a Magistrate, Orenstein has repeatedly pushed back on governmental surveillance, first on “combined orders” as part of what was called the “Magistrate’s Revolt” in the 00s, and then refusing an All Writs Act order on Apple to break into an Apple phone.  Dearie’s revelation that Orenstein served as an appointed amicus on the FISC was news to me and other close FISC watchers, but I’ve got a few guesses about what role he may have played. In short, this is further evidence of the seriousness of this review.

Meanwhile, no one really knows what effect Cannon’s order will have. Along with the orders pertaining to classified information, her order takes out this paragraph, requiring interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.

But it leaves these two passages in.

The Special Master shall make ex parte reports to the Court on an ongoing basis concerning the progress of resolving the issues above.

[snip]

The Special Master may communicate ex parte with the Court or either party to facilitate the review; provided, however, that all final decisions will be served simultaneously on both parties to allow either party to seek the Court’s review.

I had thought this might be an attempt to narrow the scope of DOJ’s appeal, taking the classified records off the table. There’s some dispute whether she’s even permitted to do this given the pending appeal before the 11th Circuit. But, the actual injunction, now stayed, remains in place, as does the original September 5 order, so that will still be within the scope of DOJ’s appeal. This change was about the order to Dearie, not Cannon’s usurpation of authority she doesn’t have.

But I find the order interesting given how literally Dearie took Cannon’s order to test the inventory and let Trump make Executive Privilege claims that will be easier to defeat on appeal.

In the hearing the other day, Trump lawyer Jim Trusty suggested that Dearie had overstepped his mandate by asking Trump to provide proof he had declassified anything. Dearie responded by saying that he was doing exactly what he had been told.

The judge, a veteran of the Foreign Intelligence Surveillance Court, expressed puzzlement about what his role would be if the government says certain documents are classified and Trump’s side disagrees but doesn’t offer proof to challenge that.

”What am I looking for?….As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?”

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”

Cannon revised her order to Dearie so that, in ignoring the classified documents, he can continue to do “what he’s told.”

Dearie (and Orenstein) likely saw precisely what I did: Cannon edited the standard boilerplate on Special Masters to allow herself the authority to remove Dearie for reasons beyond the timeliness of the review.

So it’s possible Dearie made sure Cannon’s order to him was revised so he can continue to strictly follow her orders, with all the pain that will cause Trump.

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