March 29, 2024 / by 

 

The Full-Fitton: Trump’s Funny Math with the Federal Records Act

As I laid out here, you really don’t need to get further than the second paragraph of Trump’s response to DOJ’s bid for a stay on Judge Aileen Cannon’s injunction against using seized evidence of obstruction and Espionage Act violations to find evidence of a crime. In that paragraph, Trump confesses that the FBI did seize documents marked as classified — and therefore documents responsive to a May 11 subpoena — from Mar-a-Lago on August 8; that’s tantamount to a confession to obstruction.

I want to look at another funny thing he does, before I move to the subject of his gaslighting (whether these documents are genuinely classified or not, which is irrelevant to the crimes under investigation).

Trump is trying to stall the Espionage and obstruction investigation into him. But he’s also attempting to either claw back documents into his own possession, or to bottle them up at the Archives under separate legal challenges. As such, he’s adopting Tom Fitton’s argument — based on a very different set of Bill Clinton records that weren’t seized from his home via a lawful warrant but were instead FOIAed — that he designated many of these documents as personal records while still President, so they don’t even have to be in the Archives.

Critical to that argument is that documents are either Presidential Records or personal records, and the latter don’t have to be in the Archives, and so (he makes several huge logical jumps) they can’t be used in a criminal prosecution against him.

The PRA further distinguishes records as either Presidential or personal. 44 U.S.C. § 2201. Presidential records are defined as: documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. 44 U.S.C. § 2201(2).

The PRA expressly excludes personal records from the definition of Presidential records. See id. § 2201(2)(B). Personal records are defined as “documentary materials, or any reasonably segregable portion therof, [sic] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” Id. § 2201(3). The PRA thus “distinguishes Presidential records from ‘personal records’” and “requires that all materials produced or received by the President, ‘to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.’” Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 291 (D.D.C. 2012) (quoting 44 U.S.C. § § 2203(b)). “The categorization of the records during the Presidency controls what happens next . . . . The statute assigns the Archivist no role with respect to personal records once the Presidency concludes.” Id. (emphasis added). “The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.” Id. (quoting 44 U.S.C. § 2203(f)(1)). “[T]he PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.” Id. at 301 (describing categorization decision by former President Clinton as not within the discretion of the Archivist as the subject materials “were not provided to the Archives at” the end of the Clinton presidency).

Critically, the former President has sole discretion to classify a record as personal or Presidential. See Jud. Watch, Inc., 845 F. Supp. 2d at 301 (“Under the statute, this responsibility is left solely to the President.”). The power of the Archivist is not greater than that of the President. Specifically, the PRA states “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. § 2203(f)(1). This section should not be interpreted as weakening a President’s authority under the Act. See Jud. Watch, Inc., 845 F. Supp. 2d at 300 (“[T]he plain language of section 2203(f) of the PRA does not say . . . that the Archivist must assume custody and control of all materials that fall within the definition of Presidential records.”).

Accordingly, all of the records at issue in the Government’s motion fall into two categories: (1) Presidential records, governed exclusively by the Presidential Records Act; and (2) personal records, the determination of which was in President Trump’s discretion. See id. To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the PRA and cannot possibly form the basis for any criminal prosecution. [my emphasis]

He’s not wrong about the Presidential Records Act reserving personal records. The category of personal records might even exempt documents pertaining to his coup attempt from storage at the Archives (though if Trump had made that designation, then he could not exempt them from subpoena under a claim of Executive Privilege, nor could he later claim those records memorialized his official acts).

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof,2 of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and

(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

If these documents hadn’t been seized via a lawful warrant authorizing the seizure of everything stored with documents bearing classification marks, the government might have a tough fight to get them.

This is also the reason why Trump wants the Archivist excluded from any Special Master proceeding — so Trump can persuade someone, in secret, that he actually designated such records personal and such a claim would stand up under the PRA, without leaving a record for such time as FBI subpoenaed the very same documents as personal documents.

But Trump chose to hoard classified records and as a result, the FBI was forced to get a warrant and seize records more broadly.

Still, as far as it goes, the Fitton argument is that everything is either a Presidential Record or a personal record, and the latter don’t belong in the Archives, and that should trump (heh) their seizure with a lawful warrant that authorized the seizure of everything stored with or in the same place as documents marked as classified.

Except in the paragraph immediately before the Fitton argument, Trump concedes that’s not right. Before you split things into Presidential and personal records, you need to split them into Presidential and Federal Records.

All government records (classified or otherwise) fall into two basic categories, either under the PRA or the Federal Records Act (“FRA”). “The FRA defines a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different, less rigorous regime. In other words, no individual record can be subject to both statutes because their provisions are inconsistent.” Armstrong v. Exec. Office of the President, 1 F. 3d 1274, 1293 (D.C. Cir. 1993).

That is, he admits his two-category sorting is false.

And then he just drops the FRA, never to mention it again.

Even setting aside the example of Mike Ellis — who on January 8, 2021, was discovered to have brought a compartmented NSA document to the White House and, at first, “refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program” — there would be a number of other documents, classified and not, that were brought to the White House but which remained agency records. Another category of agency documents, for example, are those pertaining to the Russian investigation, which should never have been at the White House in the first place, but which Trump wants to own for all time by simultaneously claiming he declassified and then made personal records of them.

None of those records would fit into Trump’s neat binary.

So he just ignores that and goes full-Fitton and hopes Aileen Cannon will ignore that bit.

Go to emptywheel resource page on Trump Espionage Investigation.


In Bid to Keep Executive from Accessing Executive Branch Documents, Trump Confesses to Obstruction

In his 21-page response to Judge Aileen Cannon informing her they want her to reject the government’s request for a stay of her injunction prohibiting the government taking investigative steps using 103 documents marked classified, Trump confesses to obstruction of justice.

Trump admits, over and over, that when the FBI showed up with a warrant authorizing the seizure (in part) of any documents with classification markings, it found such documents on the premises.

[I]t appears such “classified records,” along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service.

Mind you, there’s a lie here, as there is in the passage where Trump describes “complying with a subpoena” as “voluntary” production.

Likewise, there was no similar sense of urgency or imminent threat associated with the “classified records” President Trump’s counsel voluntarily turned over on June 3, 2022.

The lie is that these documents weren’t all stored in storage boxes in a room that didn’t comply with the rules set by the Executive Order that still governs classified records. The most sensitive documents — along with most of the empty classification cover folders — were in Trump’s office, an office in which he routinely entertained people (including foreign citizens) not cleared to view classified records.

But even when Trump introduces the crux of his argument that the Presidential Records Act would guarantee him access to documents that are actually found to be Presidential (as opposed to Federal) Records, he doesn’t contest that the government seized documents marked as classified at his property.

Moreover, the ultimate disposition of all the “classified records,” and likely most of the seized materials, is indisputably governed exclusively by the provisions of the Presidential Records Act (“PRA”). See 44 U.S.C. §§ 2201, et seq. The PRA accords any President extraordinary discretion to categorize all his or her records as either Presidential or personal records, and established case law provides for very limited judicial oversight over such categorization. The PRA further contains no provision authorizing or allowing for any criminal enforcement. Rather, disputes regarding the disposition of any Presidential record are to be resolved between such President and the National Archives and Records Administration (“NARA”). Thus, at best, the Government might ultimately be able to establish certain Presidential records should be returned to NARA. What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice.

The likely reason why Trump lies about Evan Corcoran responding to a subpoena is because absent that lie, Trump would have to explain to Judge Cannon that every single one of those 103 documents with classification marks was proof that Trump had refused to comply with a subpoena and — via his lawyers, including one who signed this filing — lied to do so.

Nevertheless, the entire 21-page argument about classification (which also concedes that neither he nor Judge Cannon has any authority to review these documents for classification status) is not just gaslighting, but also a serial confession that, Yes, Donald Trump obstructed this investigation.

And that confession is — irrespective of the actual classification status of those documents — an admission that because each of those 103 documents is evidence that Trump obstructed an investigation, they belong in the hands of the FBI to continue their investigation of why Trump obstructed their investigation.

Go to emptywheel resource page on Trump Espionage Investigation.


18 USC 793(g): Aileen Cannon’s Order Would Not Forestall Flipping Trump’s Custodian of Records

Donald Trump’s lawyers (including the one who failed to understand Trump was exposed to 18 USC 793 and who subsequently made himself a witness in the investigation) are cultivating the belief that they’ve succeeded in stalling the investigation into their client’s efforts to keep highly classified documents in his office and storage closet.

Perhaps they have. I don’t know what will happen. Though I know their track record of predicting what DOJ will do, thus far, has been piss-poor.

What I do know is that nothing would prevent DOJ from interviewing — or even flipping — the Custodian of Records who used to be one of Trump’s lawyers in this matter.

DOJ’s motion for a stay explicitly states that Judge Aileen Cannon’s injunction against using the classified documents seized from Donald Trump for investigative purposes would not shut down the investigation. It lays out several things her injunction would not prohibit.

To be sure, the Court did not enjoin the criminal investigation altogether. For example, the government does not understand the Court’s injunction against the government’s review and use of seized materials for criminal investigative purposes to prevent it from questioning witnesses and obtaining evidence about issues such as how classified records in general were moved from the White House, how they were subsequently stored, and what steps Plaintiff and his representatives took in response to the May 11, 2022 grand jury subpoena. The government also does not understand the Order to bar it from asking witnesses about any recollections they may have of classified records, so long as the government does not use the content of seized classified records to question witnesses (which the Order appears to prohibit).

DOJ maintains that Cannon’s order does not prevent them from questioning witnesses or otherwise obtaining evidence about:

  • How classified records were moved from the White House to Trump properties
  • How classified records were stored after they were removed from the White House
  • What steps Trump and others took in response to the May 11, 2022 grand jury subpoena
  • Recollections about classified records not relying on those seized on August 8

One person who would know a good deal about these matters, and might have an interest in being rather forthcoming about them if she were interested in minimizing her potential legal exposure, is Trump’s Custodian of Records.

By title, at least, that person would know how classified documents were stored — in Mar-a-Lago and any other Trump properties — after they were removed from the White House. And few people would know more about what steps Trump “and his representatives took in response to the May 11, 2022 grand jury subpoena” than one of those two representatives, the one who signed a declaration certifying that:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge.

In fact, that Custodian of Records might have real concern she faced legal exposure for one or more crime tied to lying to the FBI:

And all that’s assuming the Custodian of Records isn’t one of the people who shows up on video surveillance moving boxes in and out of the storage room before the “diligent search was conducted” of those boxes.

If the Custodian of Records does show up on that video surveillance, than she might face legal exposure to:

If the Custodian of Records conspired to withhold 103 classified documents, of which 18 were classified Top Secret or above, that Custodian of Records might decide she really wanted to limit her liability in that potentially draconian obstruction-plus-Espionage legal exposure.

All the more so if the Custodian of Records believed she might also have exposure to charges under 18 USC 1512(c)(2) and 18 USC 1512(k) — each of which carries up to a twenty year sentence — for involvement in an attempt to prevent the January 6 2021 vote certification and recognized that information about such activities was of value to other ongoing criminal investigations.

NYT, in an otherwise bizarre story claiming the following in its lead paragraph…

A dark joke has begun circulating among lawyers following the many legal travails of former President Donald J. Trump: MAGA actually stands for “making attorneys get attorneys.”

… revealed this piece of news:

Ms. [Christina] Bobb recently retained a lawyer, according to a person familiar with the situation.

Being Trump’s lawyer — being Trump’s associate generally — seems to be a non-stop game of prisoner’s dilemma, a constant weighing of whether he’ll sell you out or provide means to loot the country with impunity.

Years ago, when Trump was President, that prisoner’s dilemma turned out to be pretty easy. He would pardon anyone who lied to keep him out of trouble. So no matter how grave your legal exposure, your real criminal exposure was just a few years (and that’s before Billy Barr started selectively freeing Trump associates under COVID release programs).

But Trump is not President anymore, and short of successful civil war, even in the rosiest possible scenario would not become President again until 2025. In fact, Trump’s own legal problems and his success shutting down women’s access to abortion even makes more immediate potential relief — in the form of a House majority that could undermine DOJ’s ongoing investigations — far less of a sure thing.

Trump’s success at stalling access to classified documents seized on August 8 — and his current lawyers’ rosy prediction they’ve delayed such access until Republicans might win one house of Congress — certainly would be part of that prisoner’s dilemma. After all, until such time as DOJ were able to use 18 Top Secret documents in an Espionage Act indictment, the Custodian of Records probably couldn’t be charged for 18 USC 793(g).

But as I’ve noted before, the Espionage Act was written to dramatically alter these kinds of prisoner’s dilemmas, both because affirmative knowledge of stolen classified documents is enough to reach criminal exposure, and because the conspiracy prong of the statute exposes co-conspirators — even ones who don’t share the same motive as the person who actually possesses a cache of stolen classified documents — to the same stiff punishment as the people who actually possess those documents.

So a smart student of prisoner’s dilemmas might understand that it doesn’t pay to wait to see how Trump’s current efforts at delay work out.

One thing’s clear though: DOJ doesn’t intend to entirely halt the investigation into violations of the Espionage Act and obstruction. Indeed, they have a fair amount of leeway to pursue obstruction charges while Aileen Cannon delays the other part of the investigation. And they have described next steps to include obtaining information uniquely available to Trump’s Custodian of Records.

Go here for emptywheel’s other coverage of Trump’s stolen documents and related resources. 


What Family Rifts at Funerals can Teach Us About Pardoning Presidents

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

 


DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.


Trump Proposes a New Plan to Steal Classified Documents

In the Trump stolen document case, the two sides have presented their plans for what they call a Special Master.

The government’s plan is a Special Master plan, one that would be finished by mid-October.

Trump’s plan is a plan to steal documents from intelligence agencies and to stall until close to the time — it seems to hope — Jim Jordan gets a gavel in Congress and so can muck up the criminal investigation into Trump’s theft and retheft.

The key differences between the two plans are as follows:

Trump proposes a plan to steal classified documents

Trump argues that even classified documents should go to the Special Master (and before that, his lawyers, including the one who is a witness in this investigation, Evan Corcoran) and effectively lets the Special Master override the decision of the Executive Branch over classification.

Plaintiff believes the Government’s objection to the Special Master reviewing documents they deem classified is misplaced. First, the Government’s position incorrectly presumes the outcome—that their separation of these documents is inviolable. Second, their stance wrongly assumes that if a document has a classification marking, it remains classified in perpetuity. Third, the Government continues to ignore the significance of the Presidential Records Act (“PRA”). If any seized document is a Presidential record, Plaintiff has an absolute right of access to it while access by others, including those in the executive branch, has specified limitations. Thus, President Trump (and/or his designee) cannot be denied access to those documents, which in this matter gives legal authorization to the Special Master to engage in first-hand review.3

Plaintiff anticipates filing a deeper analysis of these issues in upcoming filings.

There are a lot of problems with this claim, including that it treats Trump as the President still and utterly upends the precedent on classification that Trump himself is relying on for his claim to be able to declassify things, Navy v. Egan, not to mention the Obama-era Executive Order that remains the basis for authority over classification (and so was the basis for any claim Trump ever had to classify and declassify things). There is absolutely no basis, anywhere, for a private citizen to override the classification determinations of the Executive Branch, yet that is what Trump is proposing.

Crazier still, Trump envisions government documents with classification marks that his Special Master decides aren’t classified to be Presidential records. That’s not necessarily true! Many of these documents — and certainly the secrets they tell — belong to agencies, not any President. Effectively, this is a plan to convert secret CIA and NSA documents into the private playthings of Donald J. Trump, which he can access in perpetuity.

Under the government’s plan, the Special Master would never receive anything currently marked as classified. The government does note that some of the unmarked documents may be determined by the government to be classified.

As this process moves forward, if the government identifies any potentially classified information within the contents of any of the Seized Materials without Classification Markings, the government will so advise the Court and propose actions to ensure that any such material is handled appropriately.

Trump creates busy work and delay

The government proposes that Trump conduct an initial review and make claims on categorization; anything on which the two sides agree will bypass the Special Master process. Trump says the Special Master should look at everything not in the current potentially privileged bucket.

The government sets as a deadline October 17 for the entire review (implicitly setting a deadline on Trump’s own review too). It places a deadline of September 26 for Trump’s initial review. Trump envisions the process will take 90 days or more (and sets no deadlines for himself).

Trump wants to split the cost for the Special Master, whereas the government proposes Trump paying everything, which would disincent him from stalling indefinitely.

Trump envisions removing documents from investigators’ hands

Under the government plan, non-personal documents will either end up in investigators’ hands (if the Special Master doesn’t deem them to be Executive Privileged) or at NARA (if the Special Master does).

v. For any documents identified as Presidential records – not claimed by Plaintiff as subject to Executive Privilege, those documents shall remain in custody of the government, with copies sent to the Archivist of the United States, and may be used by the government forthwith for any lawful purpose, including in the government’s criminal investigation;

vi. For any documents identified as Presidential records – claimed by Plaintiff as subject to Executive Privilege, copies of those documents will be sent to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2201 et seq., may thereafter be followed.

Trump envisions Presidential Records to go to NARA, whether or not he succeeds in making an Executive Privilege claim, basically assuming that documents lawfully seized under a warrant should be taken out of the hands of the investigators.

e. Once the Special Master has completed the review process set forth in this Order and any dispute has been fully adjudicated, any documents identified as Presidential records will be returned to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2204, will be followed to determine the assertion of any restriction on access.

In either case, FBI can obtain a subpoena for documents if they have the need. Trump’s plan just introduces another way to muck up the process.

Trump wants the lawful owner of these documents excluded

The government plan requires the Special Master to consult with NARA before making final decisions about whether something is a Presidential Record or not.

c. In categorizing Seized Materials without Classification Markings as personal items or documents, on the one hand, or Presidential records, on the other hand, the Special Master will consult with the National Archives and Records Administration (“NARA”); the government will facilitate the Special Master’s consultations with NARA; and

Trump wants no involvement from NARA, the lawful owner of anything that is a Presidential Record.

Trump wants no paper trail

Trump wants to do this entire process without leaving a paper trail that the government (or a government appeal) can access. His ostensible logic — purportedly, that the Special Master must review things that even Trump and the government agree upon, which will add to the delay — is transparent bullshit. He says DOJ has already logged the materials (though the categories in question have changed), and so doesn’t need to see Trump’s logs before they get shared with the Special Master.

The principal difference in the parties’ workflow is that Plaintiff sends materials categorized by his counsel directly to the Special Master, while the Government proposes that it review Plaintiff’s categorization by logs to determine if it agrees or disagrees with the categorization. The Government anticipates that it may agree on many of the categorizations and thus minimize the workload of the Special Master and expedite the review. The Plaintiff contends that a full review of all seized documents remains an important part of the Special Master‘s duties, even if the parties ultimately agree as to the return of various seized items. As the Government has already reviewed and categorized the seized materials, the Plaintiff believes a review by the Plaintiff, and submission to the Special Master, is the appropriate process.

And since Trump doesn’t intend to share logs of his attorneys’ determinations with the government, much of the determinations will be made via ex parte discussions with the Special Master.

Because its workflow transmits all categories of documents to the Special Master without logs, Plaintiff proposes authorization for regular ex parte communications on categorization with only the Special Master’s final report and recommendation disclosed to the Government.

This will not only delay the entire process, but will prevent the government from obtaining some materials before determinations on all the documents are done. It will also hide what would surely be outrageous claims of declassification from the government and, ultimately, the public.

And by refusing to share a log with the government, Trump keeps the involvement of an attorney who is already a witness in the criminal investigation out of the hands of the government. And, as noted, this keeps any paper trail out of the hands of any appellate ruling.

Update: Section on logging and ex parte communication added.


Perfect Specimen: Government Records about the Mazars Lawsuit and Trump’s COVID Treatment Would Be Government Records

In her opinion appointing a Special Master in the Trump stolen document case, Judge Aileen Cannon yoked a description of still-sealed information that appears in the privilege review status report to two unrelated mentions about personal effects.

The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. [my emphasis]

As I laid out here, this passage was shamelessly dishonest. That’s because she treated a subjunctive description of what the government would do if they found “personal effects without evidentiary value” as a concession that they had found such personal effects (in the government’s response she was mangling, they explained why the passports they had already returned to Trump did have evidentiary value). And she double counted materials: she treated the 520 pages of potentially privileged material as a separate item from the references to “medical documents, correspondence related to taxes, and accounting information,” even though those medical and tax documents were in the potentially privileged bucket.

Nowhere in this otherwise dishonest passage, though, did Aileen Cannon claim that the, “medical documents, correspondence related to taxes, and accounting information” were Trump’s own personal documents.

Even Trump, when he tweeted about this, stopped short of claiming these were all documents he owned (though he did claim they had taken “personal Tax Records”).

 

 

Nevertheless Cannon’s dishonest reference, yoked as it is to two unrelated references to personal effects, has led people to believe that the medical and tax records on which Cannon based her entire decision to butt into this matter are the personal possessions of Donald Trump.

There is no evidence that’s the case, and lots of reason to believe it’s not.

That’s true, first of all, because unlike the description of the contents of boxes sent to NARA in January (which were described to include “personal records [and] post-presidential records,” the detailed inventory of boxes taken on August 8 doesn’t include such a description.

To be sure: The FBI did seize personal documents. The government’s motion for a stay — written by people who have not seen the materials that Cannon describes as medical and tax records — acknowledges personal records.

Among other things, the government’s upcoming filing will confirm that it plans to make available to Plaintiff copies of all unclassified documents recovered during the search—both personal records and government records—and that the government will return Plaintiff’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value.

There are personal records: for example, the FBI seized 1,673 press clippings, with a bunch — dated 1995, 2008, 2015, and 2016 — pre-dating Trump’s Presidency, though five of the boxes with some clippings that pre-date Trump’s presidency include documents marked as classified, including one box (A-15) with 32 Secret and Confidential documents, and another (A-14) with a Top Secret document. But when it discusses returning things, it discusses “items.” Those personal items likely include the 19 pieces of clothing or gifts on the inventory (though some of the gifts, if they’re from foreign entities, belong to the US). They also likely include the 33 books that were seized, with 23 seized in one box that contained no documents marked as classified.

The government may be generously agreeing to return a carton of Donny Jr’s shitty books!

And there will be Trump notes. Some of the notes likely will count as personal records under the Presidential Records Act, which include:

A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and

(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

But some will be presidential records (those may be some of the most interesting fights going forward and it’s the logic Tom Fitton used to push Trump to challenge the seizure of his records). Some of the notes will also be shown to include information otherwise treated as classified.

But the medical and tax records cannot be included among the items referred to here, because Jay Bratt, who wrote the government motion, has not seen the records that include medical and tax records, because they are in the potentially privileged bucket. And among those materials, there’s likely to be fewer such personal records (aside from clippings).

Here are the six inventory items that, based on this Fox report and reading the two inventories together, were initially treated as potentially privileged (two sets of documents have since been added).

Of those, Item 4 on the inventory, described only as “documents” and elsewhere sourced to desk(s) in Trump’s office, makes up over half the records seized in the potentially privileged bucket (leaving aside clippings). It primarily consists of 357 government documents without classification marks.

Notwithstanding that this set of documents originally included Trump’s passports (which are legally government documents), it makes sense that even if there were other boxes that included the stray personal correspondence, this one did not. That’s because these were items taken out of Trump’s desk, not a box taken with all its contents. This set of documents, of which just a fraction could have since been deemed potentially privileged (because there are only 64 sets of potentially privileged documents), is also the set on which the privilege team would have focused most attention on the day of the search.

The privilege team was there, in Trump’s office, to weed out really obviously sensitive documents.

Plus, there are ready explanations for what kinds of government documents might include, “medical documents, correspondence related to taxes, and accounting information.”

First, as President, Trump had a White House physician. White House physician Ronny Jackson’s records of his ties to Trump would amount to government records. Even the paperwork behind this famously batshit press conference would be government records — and it might explain why Trump proclaimed (in his Tweet) that these records would prove he was a “Perfect Specimen.”

 

 

But there are other medical records that Trump might be more likely to stash in his desk drawer, which might also involve lawyers: his COVID diagnosis (and the reckless decision to attend a presidential debate, exposing Joe Biden to the disease), any assumption of Presidential duties by Mike Pence, the infection of numerous people with COVID at the Amy Coney Barrett roll-out, the Secret Service fly-by when Trump returned to the White House, and the decision to seek FDA approval for his access to Regeneron. The records relating to Trump’s bout with COVID by itself could fill a box. And they’re the kind of records that he would — indeed, already has — fought hard to keep from public dissemination.

Similarly, there are known documents that generated reams of government records pertaining to, “correspondence related to taxes, and accounting information.” Two involve the various efforts to obtain Trump’s tax returns from his accounting firm, Mazars, and extended efforts to investigate Trump Organization’s violation of the emoluments clause with Trump International Hotel.

This OLC memo ruling that the Treasury Department should blow off the House Ways and Means Committee request for Trump’s tax returns relates to taxes. This DOJ amicus brief weighing in on the same fight is a government document about taxes and accounting information. All correspondence generating the documents, too, would relate to taxes and accounting information. All would be government documents. Lawyers would have been involved in all parts of the process. All are the kinds of records Trump might stash in his desk drawer and refuse to turn over.

Similarly, this IG Report describes how the General Services Administration ignored how the Emoluments Clause should impact concerns about management of the Old Post Office. The Report itself references both lease (that is, accounting) information and redacted discussions among GSA and other lawyers. It discusses inadequate efforts after the inauguration to shield Trump from management of the hotel, including several discussions of lawyers for Trump Org and his spawn. It’s a government document. It — and all the legal correspondence and lease information it references — would become government documents. It’s another example of the kind of thing that would be a government record addressing accounting records that nevertheless might trigger privilege concerns.

I’m not saying these are the records at issue. I’m saying there’s a long list of known squabbles that would 1) consist of government records 2) involve tons of lawyering 3) would be the kind of thing Trump would want to hoard, and 4) would fit the low standard of potentially privileged as described by the filter lawyers.

There’s one more reason — besides her false treatment of a subjunctive consideration as a concession and her double counting — to suspect that Cannon created a deliberate misunderstanding that these were documents belonging to the former President: The emphasis with which filter attorney Anthony Lacosta focus on her unilateral treatment of still-sealed information in their motion to unseal their status report. The motion describes two ways in which details from the still-sealed filter team report were made public: First, after asking permission to do so and getting the assent of Trump lawyer Jim Trusty, filter attorney Benjamin Hawk described the filter process. Then, without unsealing the report, Cannon’s several references to the still-sealed report in her own opinion. With two of those references (page 15 and footnote 13 on the same page), Cannon described investigative agents finding something that might be privileged and turning it over immediately to the filter team.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

As Hawk explained (and she ignored) in the hearing, one of these instances involved nothing more than seeing the name of a law firm. The second he struggled to explain, but it was clear he really doesn’t think it’s privileged.

In the second instance, Your Honor, again, I think this is being personally over inclusive in an abundance of caution recognizing the circumstances that we find ourselves in, the second instance was again an item generally speaking — Your Honor, if you can give me a moment just to think on how to frame this.

The second instance was an item where a case team attorney saw that there might be — saw that there might be — saw that there were — bottom line is, Your Honor, I do not believe this information is privileged, but I still want to be respectful, and I want respect the process and Counsel’s opportunity to assert, but it was an instance where, I believe in my view, the case team attorney was exercising extreme caution in identifying a document that could potentially include privileged information and so, exercising that caution, gave it to the case team — or gave it to privilege review team to review, and that Your Honor, as counsel —

And while Hawk doesn’t directly address it, another place where Aileen Cannon unilaterally used information from the privilege review team report is in her claim that there were medical and tax records in the seized materials (see the bolded attribution, above).

Lacosta points to Judge Cannon’s asymmetrical reliance on this information in his motion to unseal the report.

Here, there is no compelling interest in maintaining the sealed status of the Filter Notice in this case, particularly in light of the Court’s reference to it in the Court’s Order appointing a special master. (DE:64 at 6, 15, & n.13.) Moreover, the United States has an interest in the Filter Notice being a part of the public record in this case and thereby equally available to all of the litigants in this matter.

This is a very subtle way of saying that for Bratt to litigate this issue, he needs to have the same information that both Trusty and Cannon are exploiting in their arguments. And, frankly, the public does too, because Cannon is quite clearly flipping normal investigative procedure on its head (again), granting the former President privileges that no criminal suspect in the United States gets.

Judge Cannon has, explicitly, turned the diligence of the investigative team into proof of harm. And because she has engaged in that kind of dishonesty, and because her reference to medical and tax records not only doesn’t deny these are government records, but also accompanies two other dishonest claims (the double counting and the treatment of a subjunctive statement as a concession), we should be very wary to read this claim as anything other than the public record suggests: that these are government records that involve some legal dispute.

Trump chose to use the levers of government to gain financial advantage and because of that there are years and years of government documents that involve legal disputes about his own personal and corporate finances. It should not surprise anyone that some of those materials were in boxes at Mar-a-Lago or stashed in his desk drawer. They are among the secrets he has most jealously guarded.

And unless and until Judge Cannon unseals that report about which she and Trump made asymmetric claims, we should not assume good faith on her part.

Update: Given Peterr’s question about my comment about notes, I elaborated on what I meant and the standard for personal notes under the Presidential Records Act.


A Likely Looming Battle in the Stolen Document Case: Classified White House Counsel Documents

In this post, I argued that DOJ hopes to use a motion to stay Judge Aileen Cannon’s injunction against using materials seized from Donald Trump in any criminal investigation tactically — basically, to highlight she’s just stalling the investigation.

But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.

In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.

But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

[snip]

The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. [my emphasis]

DOJ is right that any classified documents obviously belong to the government.

But Trump’s lawyers don’t even want to cede that point. They refused the motion for a stay with respect to classified documents (which is not surprising, because in the hearing Jim Trusty said they could just make copies of all the classified records).

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.

The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.

As I have noted, there are three known classified documents that were put in the potentially privileged bucket, at least at the start.

There’s one document marked Confidential and another marked Secret seized from drawer(s) in Trump’s office.

And there’s a Top Secret document stashed along with clippings dating back to 1995 in box 29.

Plus, the packet involving clemency for Roger Stone — while it was not treated as potentially privileged — does include information marked as Secret.

If that involved communications with DOJ or the White House Counsel, I could see Trump trying to claw it back as well.

DOJ says that none of these involve Trump’s personal lawyers. But they’re not ruling out that they involve lawyers you and I paid for, the White House Counsel. And those documents are among the ones I can imagine Trump might care the most about.


The Tactics of DOJ’s Request for a Partial Stay of Judge Cannon’s Order

I was out when DOJ submitted a series of documents in Trump’s demand for a Special Master. As I’m sure you’ve heard, the government has informed Judge Cannon they will appeal at least some of her decision, but at this point are asking only for a partial stay of her injunction against using the seized classified records for further criminal investigation.

I take this to be a tactical effort, one designed to make Cannon and Trump’s position less tenable going forward, without any guarantee that Cannon will accede to this request (and I think the request faces even odds at best).

DOJ submitted the following documents.

In this post, I’ll attempt to explain why, while the motion for a partial stay may not work, it likely will improve DOJ’s tactical position going forward. There are other parts of this that, I think, are tactical as well. But the main point seems to be to force her to heighten her already egregious stance before DOJ is forced to appeal this.

As I said above, I think DOJ intends the motion for a partial stay to be tactical. I think there’s at least an even chance that Judge Cannon will reject it. If she does, DOJ has told her they will appeal a week from today. As I understand it, that will be a motion for a stay which is separate from the appeal of her ruling more generally, but the 11th Circuit would see the substance of it first. And however batshit the 11th Circuit and SCOTUS judges were who might review it, its substance would be something really modest: That the Executive Branch owns the country’s secrets and needs to protect them.

Plus, SCOTUS has already — in Trump v. Thompson — upheld Executive Privilege assertions less modest than the substance of the stay pending appeal. DOJ might not succeed at the 11th, but they have a good chance of succeeding at SCOTUS, and doing so on accelerated timeframe (in significant part because they are making a credible claim of urgent injury). They’ve narrowed the issue to one they need to reach to be able to investigate stolen classified documents.

The only principle DOJ is asserting in this motion for a stay is that the Executive Branch owns classified information. As I laid out here, Cannon based her decision to butt in on a (largely specious) claim that Trump had personal items included in the seized records. By asking only for a stay for all classified records, the government narrows its Richey argument, noting that Trump cannot own any documents marked as classified.

The second and third factors likewise counsel against exercising equitable jurisdiction with respect to the classified records. Those factors apply only to “the material whose return [the plaintiff] seeks” and to injury resulting from “denial of the return of his property.” Richey, 515 F.2d at 1243. Plaintiff, however, has no right to the “return” of classified records, which are not “his” property. Id. Classified records also are not “personal” to Plaintiff and would not reveal any sensitive personal information. D.E. 64 at 9, 21. Accordingly, Plaintiff has no cognizable “individual” interest in any classified records (or in having a special master review those records), and he cannot be “irreparably injured” if such records are not returned to him. Richey, 515 F.2d at 1243. The Court’s determination that the second and third Richey factors favored the exercise of equitable jurisdiction relied on its finding that Plaintiff had an interest in “at least a portion” of the seized records, including “medical documents, correspondence related to taxes,” “accounting information,” and “material potentially subject to attorney-client privilege,” and that identification of such materials “cannot reasonably be determined at this time.” D.E. 64 at 9.2 But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

Cannon may still not budge! But if she doesn’t, it’ll make the outrageousness of her decision all the more evident, and indefensible.

But even this modest request will cause Trump — and therefore Judge Cannon — a good deal of concern.

Trump has already opposed this motion. (Zoe Tillman emphasized this on Twitter.)

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

Most notably, it does not concede the import of timely criminal investigation. Without addressing Cannon’s claims to the contrary, the government argued that the single possible injury Trump might face with the sharing of classified records he doesn’t own is in the continuation of the investigation itself.

Plaintiff’s only possible “injury” relates to the government’s investigation itself, but that injury is not legally cognizable. As the Supreme Court has made clear, “the cost, anxiety, and inconvenience of having to defend against” potential criminal prosecution cannot “by themselves be considered ‘irreparable’ in the special legal sense of that term.” Younger v. Harris, 401 U.S. 37, 46 (1971); cf. Cobbledick, 309 U.S. at 325 (“Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”). That is why courts have exercised great caution before interfering through civil actions with criminal investigations or pending cases. See also Deaver v. Seymour, 822 F.2d 66, 69-71 (D.C. Cir. 1987) (applying Younger’s principles with regard to potential federal charges); Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993) (“The mere threat of prosecution is not sufficient to constitute irreparable harm.”). And those fundamental principles strongly support the limited stay the government seeks here.

It noted that it cannot investigate 18 USC 793 (or obstruction of an investigation into that crime) without the classified documents in question.

This case does not involve a pending trial, but the need for the classified records is even more clearly demonstrated and specific here: The government is investigating potential violations of 18 U.S.C. § 793(e), which prohibits unauthorized retention of national defense information. The classified records are not merely relevant evidence; they are the very objects of the relevant criminal statute. Similarly, the government is investigating the adequacy of the response to a grand jury subpoena for all documents in Plaintiff’s possession “bearing classification markings.” D.E. 48 Attachment C. Again, the seized classified records at issue here—each of which the subpoena plainly encompassed—are central to that investigation.

It also talked about FBI’s central role in investigating those 90 empty folders for classified or staff secretary information.

The same is true of the empty folders with “‘classified’ banners” that were among the seized materials here, see D.E. 39-1: The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation.

The government also pointed out the illogic of Cannon’s concession that the Executive has urgent need to conduct its damage review, while unilaterally deciding that they cannot conduct a criminal investigation.

The Court appeared to recognize that a sufficient showing of need can overcome potential assertions of executive privilege by specifying that the government may continue to review and use the classified records in its classification review and national security risk assessment. D.E. 64 at 22-24. That aspect of the order reflects an implicit determination that no potential assertion of executive privilege by Plaintiff could justify preventing the Executive Branch from conducting that review and assessment of the classified records. But under United States v. Nixon, the same is true of the review and use of the information by the government in an ongoing criminal investigation. And it would be especially unwarranted to prohibit that review and use while authorizing other personnel in the Executive Branch to review and use the same information:

All these things are likely to cause her heartburn — and Trump even more! In her opinion last week, Cannon at first denied she was minimizing the import of an ongoing criminal investigation — but then dismissed precedent on the problems with doing that.

None of this should be read to minimize the importance of investigating criminal activity or to indicate anything about the merits of any future court proceeding.

[snip]

The Court is mindful that restraints on criminal prosecutions are disfavored21 but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.

21 See Younger v. Harris, 401 U.S. 37, 43–44 (1971) (“[C]ourts of equity should not . . . act to restrain a criminal prosecution[] when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.”); Stefanelli v. Minard, 342 U.S. 117, 120 (1951) (explaining that “[t]he maxim that equity will not enjoin a criminal prosecution” applies with greatest force in the context of the federal government interfering with state prosecutions).

If she refuses to let DOJ continue its investigation, which I think is quite possible, it’ll make her intent in objecting — halting any criminal investigation, into Trump or anyone else — all the more clear.

And this motion affirms that the investigation will continue regardless of what Cannon decides (though establishes how much her order is impeding it).

For example, the government does not understand the Court’s injunction against the government’s review and use of seized materials for criminal investigative purposes to prevent it from questioning witnesses and obtaining evidence about issues such as how classified records in general were moved from the White House, how they were subsequently stored, and what steps Plaintiff and his representatives took in response to the May 11, 2022 grand jury subpoena. The government also does not understand the Order to bar it from asking witnesses about any recollections they may have of classified records, so long as the government does not use the content of seized classified records to question witnesses (which the Order appears to prohibit).5 Even so, the prohibition on the review and use of the classified records is uniquely harmful here, where the criminal investigation concerns the retention and handling of those very records, with the concomitant national-security concerns raised by that conduct.

She’s on notice now that she has not succeeded in killing the investigation. She may take further steps to do so, but those, too, would be all the more outrageous if she did.

Finally, and perhaps most effectively, DOJ implies they intend to brief Congress on what Trump stole.

The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

All the Republican members of the Gang of Eight have demanded such briefing, so it’d be hard for them to refuse to receive it. But my guess is this would badly discredit Cannon’s effort to thwart the investigation into Donald Trump.

To refuse this order, Aileen Cannon is going to have to assert that the Federal Government doesn’t own its secrets. I don’t rule out that she’ll do so. But if she does, it’ll make an appeal far more modest, and her malign intent far more obvious.

Update: Attempted to correct the relationship between the appeal of a stay and the appeal proper.


Hatchet Speed Arrested on a Small Part of his $50,000 “Panic Buying” Arsenal

Last month, I reminded readers that every single one of the 5,000 people in whom the FBI might still have an investigative interest relating to January 6 — even just the trespassers — could be the next Ricky Shiffer: a Trump supporter mobilized by Trump’s false claims of victimhood who attempted to breach an FBI office, only to be killed in a shootout with police.

That’s because there are 5,000 more like him out there.

I don’t mean, there’s a shit-ton of Trump supporters who could go postal at any moment. There are far more than 5,000 of them.

I mean, there are 5,000 people who participated in January 6 that the FBI might have predicated investigative interest in, but has not yet arrested.

That’s a fairly conservative number. In recent days, DOJ passed the 850 arrest mark for January 6 defendants. There are probably 1,500 to 2,000 more people who entered the Capitol on January 6 whose arrest would be comparatively easy (because their trespass is fairly easy to prove) who have not yet been arrested. There are probably 250 identified suspected assailants still at large (over 530 people, including those who’ve been arrested, are listed on the FBI site). And there were probably 10,000 people who breached the external barricades but did not enter the building that DOJ would only arrest if there were something extra — the political profile of Ryan Kelley or Couy Griffin, the pre-existing Deferred Prosecution Agreement of Owen Shroyer, conspiracy ties like Stewart Rhodes — to justify the arrest. Sure, the people who attended the January 5 rally, as Shiffer did, were more likely to participate in more radicalized online networks; those people weren’t in DC just to hear the loser of an election speak.

But at every moment that DOJ has been investigating the leaders that orchestrated January 6 (which provably started within weeks of the attack) and at every moment that DOJ has been investigating Trump’s other criminal acts, DOJ and FBI have been trying to deal with the growth of political violence that Trump has deliberately fostered. DOJ spent the weeks after January 6 doing triage, trying to arrest enough people to get visibility on the very real plans for follow-on attacks before or at the Inauguration. DOJ spent the year after January 6 trying to incapacitate the militia networks that served as an organizing structure for the attack. And DOJ has spent the last six months, as it turned more overtly to investigate several sets of crimes by the former President, trying to anticipate which of those 5,000 veterans of January 6 would, alone or in concert, attempt to reignite a civil war.

I hope that, given the Shiffer example, impatient people who’ve never bothered to understand the crime scene itself will remember that everyone they’ve dismissed for a year as low-level January 6 trespassers may be the next Ricky Shiffer. It’s easy to imagine that if you just arrest Trump all that political violence will dissipate. But that wouldn’t even have been true in 2019, if Mueller had indicted, and it sure as hell isn’t true now. And every step DOJ takes to get closer to arresting Trump, or even just hold the butchers like Fitzsimons who took up arms on January 6 accountable, the mob of people that Trump radicalized on January 6 remains an urgent threat.

In that post, I referenced an earlier one focused on January 6 misdemeanants where I explained why a similar misdemeanor arrest, that of Hatchet Speed, might be among the trespassing arrests that carried far greater significance.

One reason I said that is because a cleared defense contractor with ties to the Proud Boys — who in his arrest affidavit was described as just another face in the crowd — poses a particularly urgent concern.

This is the kind of guy — a cleared defense contractor who went to the insurrection with some Proud Boys “with whom he keeps in contact” — whose cooperation DOJ has used fruitfully in the past. He’s also the kind of guy who presents the ongoing urgent concern about our Deep State being riddled with militia sympathizers.

It turns out that, by the time the FBI arrested him for the DC crime, they already knew he spent the months after Joe Biden’s inauguration “panic buying” an arsenal of weapons and speaking approvingly of a whole ideological swath of terrorists.

That was disclosed yesterday in an affidavit unsealed along with an indictment for three unregistered silencers in Virginia (Seamus Hughes first found the arrest).

5. The FBI has obtained evidence that, in the months following January 6, 2021, SPEED purchased numerous firearms and firearm parts. In a meeting with an FBI undercover employee (UCE-1), SPEED made comments suggesting that he was “panic buying” during this time.

6. As reflected in ATF Form 4473s completed at the time of sale, SPEED purchased at least twelve firearms between February 11, 2021, and May 26, 2021 :

a. On February 11,2021, SPEED purchased an FN 509 (9mm pistol) from Vienna Arsenal;

b. On February 15,2021, SPEED purchased a Smith & Wesson Mod 10-6 (.38 SPL revolver) from Herndon Arms;

c. On March 12,2021, SPEED purchased a Glock 27 (.40 pistol), Mossberg 590 Shockwave (12-gauge shotgun), and Tikka T3X (6.5 Creedmoor rifle) from Vienna Arsenal;

d. On March 30, 2021, SPEED purchased a Sig Sauer MCX (.300 Blackout pistol) and a Benelli Supernova (12-gauge shotgun) from Vienna Arsenal;

e. On April 30, 2021, SPEED purchased a Sig Sauer Virtus (multiple caliber rifle) and Walther P22 (.22 pistol) from Vienna Arsenal;

f. On May 21, 2021, SPEED purchased an S&W Mod 60 (.38 SPL revolver) and S&W Mod 36 (.38 SPL revolver) from Vienna Arsenal;

g. On May 26, 2021, SPEED purchased a Sig Sauer MCX Virtus (5.56 pistol) from Vienna Arsenal.

7. Financial statements and other evidence collected in the course of the investigation reveal that SPEED purchased more than $50,000 at firearm and/or firearm part retailers, including the purchase of the twelve firearms described above, in the months after January 6, 2021. For example, financial statements from one of SPEED’s credit cards show that, just in the one-month period between February 15, 2021, and March 16, 2021, SPEED made the following purchases at firearms and/or firearm part retailers:

a. February 16,2021 – $4,109.00 at Silencer Shop in Texas;

b. February 16,2021 – $980.41 at Alamo Ammo in Texas;

c. February 16,2021 – $207.00 at Trex Arms in Tennessee;

d. March 3, 2021 – $668.99 at Reeds Family Outdoors in Minnesota;

e. March 8, 2021 – $194.90 at Greenacres Sporting Goods in Florida;

f. March 8, 2021 – $5,389.97 at OpticsPlanet, Inc., in Illinois;

g. March 8, 2021 – $100.42 at OutdoorLimited.com in North Carolina;

h. March 8, 2021- $215.31 at SGAmmo LLC in Oklahoma;

i. March 9,2021 – $1,137.29 at Ammo Freedom in Texas;

j. March 10,2021 – $1,919.99 at Guns Dot Com in Minnesota;

k. March 11,2021 – $80 in MidwayUSA in Missouri; 1

l. March 11, 2021 – $4,207.13 at SP & G Shooting Range in Virginia;

m. March 12,2021 – $660.99 at OutdoorLimited.com;

n. March 12,2021 – $290.74 at Armageddon Gear LLC in Georgia;

o. March 12,2021 – $297.80 at Freedom Munitions in Idaho;

p. March 12,2021 – $189.46 at EuroOptic Ltd Online in Pennsylvania;

q. March 12, 2021 – $695.00 at ESAD Arms LLC in Texas;

r. March 14,2021 – $568.00 at MidwayUSA in Missouri;

s. March 14,2021 – $374.12 at Silencer Shop in Texas;

t. March 15,2021 – $328.95 at Peak Case in Utah

At a meeting in March, Speed described to an undercover FBI officer how he liked to read Eric Rudolph and Ted Kaczynski so he could figure out how to improve on their game plans.

13. At the meeting on March 1, 2022, SPEED stated that he thought what Rudolph did was a mistake and that the bombing did not accomplish anything. But SPEED noted that Rudolph “was a right winger that got tired of what was happening and he wrote a book over his several year[ s] running from the FBI.” SPEED said that he “thought that was cool and … lover d] the fact that [Rudolph] can say what he did because he ha[ d] nothing to lose by writing [the book].” SPEED noted that he was “trying to find more books like that because [he] love[d] reading about people that are like ok, yeah, you’re assassinating bad guys, that’s cool, but if it’s approved then you’re always killing the small fry, you’re never actually going after the people who actually … ,” and then trailing off.

14. During the same meeting, SPEED also stated that he “like[ d] to read more stuff like that, like Ted Kaczynski,” who is commonly known as the “Unabomber.” SPEED stated the following (with my emphasis added):

Kaczynski wrote a manifesto and once again, like the stuff he did was not effective, but I can commiserate with where he was coming from. Because I think as people who can see their country fall deeper and deeper into wherever we’re going, we all know we have to do something so it’s useful to see what worked and what didn’t work. So, it’s useful to get into these people’s heads and you know, try and come up with a better game plan than they had.

15. During a meeting with UCE-l on March 15,2022, SPEED discussed Eric Rudolph again. In doing so, SPEED suggested Rudolph went wrong because he targeted rich people, when it is not about the money. SPEED said that instead it is “about power.” [emphasis FBI’s]

Speed spoke approvingly of kidnappings and talked about how he might pick victims.

27. In this conversation, SPEED continued by describing how kidnappings would be more effective than killing people. SPEED stated the following:

[K]idnappings are harder than killing people but they’re more effective. What I would love to see is you take somebody out, and they simply disappear. Nobody knows what happened to them. That means we can’t report on it, the media doesn’t know how to spin it. … And all of those people who were left behind have … no way to close that bridge, no way to know if they’re in danger. … We need to foster distrust within the opposite side, just like they do for us…. If you leave nothing behind, they never find the body.

This affidavit was submitted in conjunction with his arrest in June (and was the basis for putting him on house arrest with it). Since then, though, he has been permitted to attend weekend drill exercises as a member of the Navy Reserve at (!!!) Andrews Air Force Base.

Yesterday’s indictment feels like a stub for something else. It’s based on his possession, when he was arrested in June, of those three silencers. And while the government submitted his bond conditions in that docket, it’s not even clear whether he remained in possession of the three silencers after he was released after his June arrest.

EDVA started the paperwork to arrest him last Wednesday, September 2. That was two days after he requested to travel to Tampa Bay, ostensibly for a medical appointment, on September 11.

A number of militia members charged in January 6 are from the area. And Sarasota is where a lot of Trump’s — and Mike Flynn’s — post January 6 plotting has taken place.

This arrest presumably also derails any attempt Trevor McFadden would make (as he suggested he might back in July), at a scheduled status hearing on September 30, to accept a plea from Speed and release him with a hand-slap.

This is a man with a highly trained skillset and an arsenal who has been thinking a lot about terrorism in recent months. But before June, he was just another January 6 trespasser in the crowd.

Copyright © 2024 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/2020-presidential-election/page/58/