Did Kash Patel Already Confess to Illegally Disseminating Carter Page FISA Information?

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I’m pretty proud of how closely my two posts (first, second) predicted what the likely and known contents of the Trump affidavit would be. I pretty accurately described the structure, the contents, and many of the known details of what we’ve seen of the application so far.

That’s especially true of the statutory section. I not only predicted that — “Particularly given the novel legal issues implicating a search of the former President” — there would be a substantial statutory background section, but that, “If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing.”

Which they did.

And, to a significant extent, I predicted what would be in that statutory section. Here is that section of my post, with the paragraphs of the Trump affidavit where that language appears in bold and linked.

Everything I expected to be in there, was in there. The details I didn’t anticipate, though, are pretty noteworthy.

That’s particularly true of the section describing special designations. These designations all stem from what the FBI found in the 15 boxes Trump returned in January.

From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes.

If the FBI found a document of a particular type in May, it included that designation in this statutory section.

The Atomic Energy Act was not included, which means (as some knowledgable people predicted in advance), if Trump had nuke documents, they’re not about our nukes, they’re about someone else’s. Trump’s affidavit also includes a description of HCS and SI, Human and Signals Intelligence, designations which have appropriately sobered the response of at least some Republicans, because they mean Trump could get someone killed.

The mention of ORCON — Originator Controlled material — would mostly matter if the FBI found that one of NSA documents that Mike Ellis was sharing with unauthorized people and places during the period Trump was packing up were among the things in the boxes. Those documents were both described as relating to (a or some), “controlled, compartmented NSA program,” in the Inspector General Report on Ellis and the designation ORCON would matter more if documents were retained after the Originator made a sustained effort to get them back, as NSA did in this case.

It’s the mention of FISA, though, that I should have anticipated, and which could present heightened legal problems for Trump — and Kash Patel, and others.

14. Foreign Intelligence Surveillance Act, or “FISA,” is a dissemination control designed to protect intelligence information derived from the collection of information authorized under the Foreign Intelligence Surveillance Act by the Foreign Intelligence Surveillance Court, or “FISC.”

That’s because both Kash and John Solomon have been attempting to create an alibi for information that may include the final Carter Page application. And, as that preliminary review determined, there was at least one FISA document in the boxes returned in January.

On top of any violations of the Espionage Act, if Trump took a copy of that with him after he was fired, it might constitute unlawful dissemination under FISA.

Between them, Kash and Solomon — whom Trump made his representatives to NARA on June 19 — have described that materials relating to the Russian investigation were among those NARA found in the returned boxes and that they might include a Carter Page FISA warrant (which I assume must mean the application).

There’s the May 5 column in which Kash claimed that everything that had been returned in the 15 boxes had been declassified.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

In that column, Kash exhibited knowledge that the materials included documents from “Russiagate” [sic] and Impeachment 1.0.

“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

That’s the column cited in the Trump affidavit — though there’s at least one sentence of that paragraph that remains redacted.

I am aware of an article published in Breitbart on May 5, 2022, available at https://www.breitbart.com/politicsi2022i05/05/documents-mar-a-lago-marked-classified-wereah-eadv-declassifi.ed-kash-patel-savs/, which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ”misleading” reports in other news organizations that NARA had found classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue. [redacted]

Kash has issued a statement complaining, even though he had no complaint when information about Michael Isikoff was unsealed in the Carter Page FISA application for a similar published statement.

More interesting still, on July 20, John Solomon (who did a podcast on January 14, 2021 bragging of detailed knowledge of what Russian investigation materials would be released in the coming days) described having newly obtained a January 20, 2021 Mark Meadows memo to DOJ instructing them to declassify documents from the Russian investigation.

Even though the Meadows memo cites from Trump’s own January 19, 2021 order stating that the declassification, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court,” Solomon described that the declassified information did include both transcripts of “intercepts made by the FBI of Trump aides,” (which may have included the intercepts of Mike Flynn obtained by targeting Sergey Kislyak which, because the intercepts took place in the US, may have been conducted under FISA) and “a declassified copy of the final FISA warrant approved by an intelligence court.”

The declassified documents included transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

In the end, multiple investigations found there was no such collusion and that the FBI violated rules and misled the FISA court in an effort to keep the probe going.

The documents that Trump declassified never saw the light of day, even though they were lawfully declassified by Trump and the DOJ was instructed by the president though Meadows to expeditiously release them after redacting private information as necessary. [my emphasis]

Curiously, the PDF of the Mark Meadows memo Solomon linked (my link) — which includes a staple mark and other oddities for an original document preserved by NARA — shows a September 27, 2021 creation date, with a modification date just days after Trump designated Solomon as his representative at NARA. (h/t @z3dster for the observation)

Back to Solomon’s implication that the documents in question — documents that Kash had suggested were among those boxed and sent back to NARA — included the final Carter Page warrant.

If the former President’s stash included an unredacted copy of the final FISA application targeting Carter Page, it could mean additional trouble for him and anyone else involved.

Even a Kislyak intercept would, because it would impact Mike Flynn’s privacy.

Similarly, even if, after three years of effort led largely by Kash Patel, an Inspector General hadn’t deemed the Carter Page FISA applications problematic, Trump took the Carter Page warrant application home after he left office, it would be an egregious violation of FISA’s minimization procedures, which strictly limit how such material can be disseminated. A disgruntled former government’s employee’s desire to spread propaganda about his tenure is not among the approved dissemination purposes.

But Carter Page, almost uniquely of any American surveilled under FISA, has special protections against such things happening.

That’s because in the wake of the IG Report on Carter Page, and in the wake of Bill Barr’s DOJ withdrawing its claim of probable cause for the last two Page warrants, James Boasberg required the government to ensure that materials for which there might not have been probable cause were no longer disseminated. In issuing that order, Boasberg cited 50 USC 1809(a)(2), the part of FISA that makes it a crime, punishable by a five year sentence, to disseminate improperly collected material from a targeted person. As a result, in June 2020, Boasberg issued an order sequestering the material collected from the Carter Page FISA except for five designated purposes.

Indulging the former President’s tantrum is not one of those five purposes.

And Trump and Kash, especially, have reason to know about this sequester. That’s because in October 2020 — at a time when Kash was still babysitting John Ratcliffe at DNI — DOJ violated the sequester by sharing information on Page with the Jeffrey Jensen and John Durham inquiries. As far as we know, that violation of the sequester order didn’t result in surveillance records on Carter Page being stored in a poorly secured storage closet in a resort hotel, but it still involved a hearing before the FISC and a public scolding.

If there’s an unredacted copy of the Page application, it would mean sections like this and this would be unsealed. There’s even a description of the emails that Page sent to the campaign bragging about his access to top Russian officials that, because of how it came to be in the application, would be subject to Boasberg’s sequestration order. There might even be contacts that Page had with Steve Bannon, whose privacy would also be implicated. Disseminating any of that stuff in unredacted form is, by itself, a crime, one the FISC has warned Trump and Kash’s bosses about repeatedly.

In his January 2021 podcast, Solomon claimed that the material Trump wanted to release would prove he was spied on. To show that from materials relating to Carter Page would require sharing information specifically covered by the sequestration order. Shipping that from the White House to Mar-a-Lago would be a crime. Sharing it from there would definitely be a crime. And any authorization would have to involve the FISA Court. No President — not Trump and not Biden — can lawfully ignore that order.

Since at least May, both Kash and Solomon seem frantic to help Trump develop a cover story. And their frantic efforts seem to explicitly include materials pertaining to Carter Page.

And that’s why the confirmation that Trump had FISA materials in his stolen boxes could present additional headaches for the former President and his flunkies.

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The Elements of the Offense for an 18 USC 793e Prosecution

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Back on August 10, I did a post laying out the elements of the offense from some pattern jury instructions for 18 USC 793e, which is what a judge would instruct a jury to consider if the Trump document theft ever went to trial.

I want to update with contents of the affidavit that so that others understand how things like the June 3 meeting at Mar-a-Lago were not only an attempt to get the stolen classified documents back, but were, short of doing so, a way to establish probable cause in the event that Trump would not cooperate. These efforts would overcome the real challenges — laid out in this WaPo article — of holding a former President accountable.

Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the Presidential Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.

Here’s what jurors would be asked to decide:

Did the defendant, without authorization, have possession of, access to, or control over a document that was National Defense Information?

Yes. As of January 20, 2021, Donald Trump (FPOTUS) had an affirmative obligation to return all Presidential Records to the National Archives, whether or not those records had National Defense Information.

From May 6, 2021 until late December 2021, NARA informed FPOTUS of missing documents and attempted to negotiate their return. Upon retrieval of those documents, NARA sent a referral to DOJ regarding the classified documents. Inventories and witness testimony confirmed FPOTUS retained further Presidential Records, including classified records. On May 12, the FBI subpoenaed the remaining classified documents at Mar-a-Lago, but when Jay Bratt arrived to retrieve them on June 3, he discovered FPOTUS continued to withhold classified documents.

From January 20, 2021 until August 8, 2022, FPOTUS retained 100s of documents including NDI in defiance of the Presidential Records Act, as well as other documents.

Did the document in question relate to the national defense?

From January 20, 2021 until January 2022, FPOTUS retained the following documents containing NDI:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Others marked HCS, FISA, ORCON, NOFORN, and SI
  • Some documents with Trump’s handwritten notes

From January 2022 until June 3, 2022, FPOTUS retained [description of the documents turned over]. On that day, representatives showed Jay Bratt–but refused to turn over–identifiable documents containing NDI.

From January 20, 2021 until August 8, 2022, FPOTUS had unauthorized possession of 11 boxes including NDI documents, including documents classified TS/SCI.

All of these documents were closely held, related to national defense, would do grave damage if released.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?

Trump is such a psychopath that the answer to this might normally be in question. After all, he routinely treated top secret intelligence like it was toilet paper or party favors for visiting Russians. But because of that June meeting, they will likely be able to reach that, as well.

On June 3, 2022, DOJ’s head of Counterintelligence traveled to Mar-a-Lago to discuss the unlawfully retained documents. FPOTUS acknowledged Mr. Bratt’s goal and acceded to the goal of securing the documents. After Mr. Bratt sent attorney for FPOTUS a communication on June 8, 2022, directing him to secure all NDI material according to the terms of 32 CFR Parts 2001 and 2003. Attorney for FPOTUS acknowledged receipt and took action in response. However, on August 8, 2022, both the storage closet containing 10 boxes of documents including NDI information and one box, including TS/SCI documents, stored in a hotel safe, remained insecure.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it?

From May 2021 until January 2022, NARA informed FPOTUS of the requirements to comply with the Presidential Records Act. On May 12, 2022, the FBI subpoenaed remaining classified information.

Nevertheless, FPOTUS refused to comply, even with a lawful subpoena, and remained in possession of 11 boxes including NDI information on August 8, 2022.

Did he keep this document willfully?

In addition to refusing NARA’s legal requests to return the documents and a lawful subpoena, FPOTUS took efforts to conceal NDI information from his representatives to prevent them from returning documents. Multiple witnesses have testified that FPOTUS responded to consultations about the importance of returning NDI information by insisting they were, “Mine!”

All of the above, aside from the witness testimony declaring Presidential Records including classified NDI, “Mine,” would be backed by multiple exchanges of paperwork.

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Trump Had Human, Signals, and FISA Intelligence in an Insecure Room at Mar-a-Lago for a Year

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Here’s the affidavit used to search the home and resort of the 45th President of the United States for classified documents he refused to return. My live tweet is here. I’ll do running updates in this thread. Here’s my earlier post on what the affidavit would include which accurately predicated a great deal of what was in here.

The investigation

The affidavit spends three paragraphs describing how, after NARA made a referral on February 9, 2022, the FBI opened an investigation to learn:

  • How classified documents were removed from the White House
  • Whether the storage facilities at Mar-a-Lago were suitable for storing classified materials
  • Whether there were anymore classified documents at Mar-a-Lago or elsewhere
  • Who had removed and retained the documents in unauthorized spaces

In a probable cause paragraph, it explains that there were 15 boxes with classified information at Mar-a-Lago and there was probable cause to believe there were more.

There’s a redacted paragraph that may describe the basis for suspecting obstruction. A later sentence in the probable cause paragraph describes that there likely will be evidence of obstruction at MAL.

The affidavit explains that this is an investigation into (among other things) 18 USC 793e — which I was among the first people to predict. This means that DOJ maintains that Trump was not authorized to have these documents.

Statutory authorities

As I predicted, there is a series of paragraphs that lay out the statutory authorities implicated. This tells us how sensitive the documents in question are.

It does not list the Atomic Energy Act.

It does have paragraphs defining:

  • 18 USC 793(e), the Espionage Act
  • EO 13526, the Executive Order governing classified information
  • Confidential, Secret, and Top Secret classifications
  • Secure Compartmented Information
  • Special Intelligence, which is SIGINT
  • HCS, which refers to clandestine human spying
  •  FISA
  • NOFORN, material not permissible to share with foreign governments
  • Originator Controlled, meaning whoever created controls it
  • Need to know
  • 32 CFR Parts 2001 and 2003 which describes the Storage requirements for classified information
  • 18 USC 1519, obstruction
  • 18 USC 2071, willfully removing information
  • 44 USC 2201, the Presidential Records Act
  • 44 USC 3301(a), the Federal Records Act

NARA Referral

Two paragraphs describe the NARA referral.

First, it describes the February 9, 2022 message to DOJ describing how Trump had “classified records [that were] unfoldered,” meaning their protective cover sheets were gone, “intermixed with other records, and otherwise unproperly [sic] identified.

Former Watergate prosecutor Elizabeth de la Vega described that this sounds like an old white collar crime technique.

There’s also a description, first, of the notice NARA gave to Carolyn Maloney as the Chair of the House Oversight Committee, and Trump’s response. It also included Trump’s statement in response falsely claiming he was raided.

Redacted pack-up description

There are four paragraphs that appear before the description of Trump’s move out of the White House. Those must include details about what was known of his pack-up.

Boxes containing documents were transported from the White House to Mar-a-Lago

There are eight paragraphs that start with a description of how he moved at least two trucks of stuff to Mar-a-Lago.

It’s unclear what the rest of this section describes (though it may include witness testimony about how things were unpacked). It also seems to quote from correspondence.

Provision of the fifteen boxes to NARA

Nine paragraphs (and one footnote) describe the effort to retrieve the boxes. It describes the effort lasting from May 6, 2021 to “approximately late December 2021,” when NARA was informed there were 12 — not 15 — boxes ready to be retrieved.

That section ends with a redaction, possibly a Trump Text.

The FIFTEEN BOXES provided to NARA contain classified information

What may be just two paragraphs describes what was found in the original 15 boxes: 184 documents bearing classification marks, including:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Others marked HCS, FISA, ORCON, NOFORN, and SI
  • Some documents with Trump’s handwritten notes

Two redacted documents

Paragraphs 49 and 50 are a separate section. They may describe evidence of obstruction.

A description of Trump’s refusal to return materials [redacted title]

Paragraphs 51 through 61 describe DOJ’s efforts to get Trump to return the rest. Most are redacted. The unredacted passages include:

  • A May 25 letter from Evan Corcoran purporting to lay out “principles” covering the the President’s authority to declassify, asking NARA to share that letter with “any judicial officer who is asked to rule on any motion pertaining to this investigation.”
  • A link to the Kash Patel post where he claimed Trump had declassified documents. (I accurately predicted these were related.)
  • A description of the June 8 letter from Jay Bratt to Corcoran, informing him that the facilities were not authorized for classified information.

A footnote to the paragraph leading into that section distinguishes NDI from classified information. Clearly, Trump was claiming he had declassified everything, and DOJ was saying that didn’t matter.

Seven redacted paragraphs

This may explain the declaration Christina Bobb signed and reason DOJ believed it was false.

There is probable cause to believe that documents containing classified NDI and Presidential Records remain at the premises

Seven paragraphs in this section are classified.

The eighth explains that the classified documents are likely to be in the STORAGE ROOM, FPOTUS’ residential suite (which is called Pine Hall), and the “45 Office.”

A mostly redacted paragraph describes where this stuff has been stored. After a redaction, it explains that the club is closed for the summer, and explains that rooms that are not currently occupied may be searched.

Conclusion

This is summary asking for proof of all three crimes.

Sealing

This is a standard sealing paragraph.

Search procedures for handling potential attorney-client privileged information

Four paragraphs describe that a taint team will conduct the search of Trump’s office. If it finds stuff that is privileged that DOJ wants to search, it provides three further ways to get it:

  • An ex-parte determination of whether they are privileged
  • Simple deferral of accessing the information
  • Cooperation with Trump

This must be the stuff on the SSA receipt.

Update: Corrected something I thought was a heading but which was not.

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Magistrate Judge Bruce Reinhart Accepts DOJ’s Proposed Redactions

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Magistrate Judge Bruce Reinhart just accepted DOJ’s proposed redactions in the Donald Trump affidavit and ordered them to post it by noon ET tomorrow.

According to his order, DOJ will redact:

(1) the identities of witnesses, law enforcement agents, and uncharged parties,

(2) the investigation’s strategy, direction, scope, sources, and methods,

(3) grand jury information protected by Federal Rule of Criminal Procedure 6(e).

This likely means even Trump’s name will be redacted. But the parts of the investigation that have become public — such as the Archives’ referral and possibly some of the statutes involved — may be unsealed.

One of the biggest pieces of suspense, for me, is whether Trump attempts to take action overnight to prevent this from coming out.

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Two People Plead Guilty in Conspiracy to Transport Ashley Biden Diary

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Aimee Harris and Robert Kurlander pled guilty today to a conspiracy to transfer personal items that Ashley Biden had stored in Florida to Project Veritas in New York.

Kurlander entered into a cooperation agreement.

Among other things, Harris stole Ms. Biden’s diary from a period when she was in rehab, one that ended up getting published around the same time the “Hunter Biden” “laptop” story broke. In addition, Harris stole a thumb drive with private pictures of the Biden family, and tax records. At one point during the negotiations with Project Veritas, Kurlander acknowledged what a shitty thing they were doing to Ms. Biden.

I’m expecting that they’re gonna pay up to $100,000 each maybe more . . . I made it so that the 10,000 is NOT your only payment as it was written and if this does turn into something good or blockbusting then I’ll get us more money. They of course come I across as the nicest people in the world but their job is to pay the least and they aren’t your or my best friends. They are in a sketchy business and here they are taking what’s literally a stolen diary and info . . . and trying to make a story that will ruin [the Victim’s] life and try and effect the election. [The Victim] can easily be thinking all her stuff is there and not concerned about it. .  . we have to tread even more carefully and that stuff needs to be gone through by us and if anything worthwhile it needs to be turned over and MUST be out of that house.

Given that this is a conspiracy and that the Special Master in this case was finalizing her report to share information from (among others) James O’Keefe’s phone in July, the people described as potential co-conspirators in the document — including two Executives of Project Veritas (probably their Office Manager, as well as O’Keefe) and one Employee who had been involved in moving the materials across state lines — may be in a good deal of trouble.

To the credit of Trump’s campaign, they told Kurlander and Harris to bring the materials to the FBI.

“[Candidate-2] campaign can’t use it. They want it to go to the FBI. There is NO WAY [Candidate-2] can use this. It has to be done a different way . . .”

emptywheel coverage of Project Veritas scandal

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

Sting Ray: Project Veritas’ Schrodinger’s Proxy

In Their Bid for Special Master, Project Veritas Provided Evidence of Possible Extortion

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

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Christina Bobb, Custodian of Records and Coup Conspirator

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According to Donald Trump’s whack-ass filing the other day, he personally has yet to receive a subpoena in the investigation of his  suspected theft of classified documents and obstruction of one or more investigations by hiding, ripping, or flushing documents. Instead, his hospitality company and Christina Bobb have.

DOJ sent the June 22 subpoena for surveillance footage at Mar-a-Lago to the Custodian of Records at the Trump Organization.

On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government.

The WaPo explained that it was sent to Trump Organization, not Trump, because that’s who actually owns Mar-a-Lago.

By the way, that means that Trump Organization could have, but thus far has not, intervened in the August 8 search as well as Donald. Indeed, that may have been what Magistrate Judge Bruce Reinhart, who has read the search warrant affidavit, was alluding to when he memorialized his order asking DOJ to provide more justification for its review. He noted that neither Trump nor any other “purported owner” of Mar-a-Lago had intervened.

Neither Former President Trump nor anyone else purporting to be the owner of the Premises has filed a pleading taking a position on the Intervenors’ Motions to Unseal.

In fact, when Trump intervened in the Michael Cohen search in 2018 — and did so after just four days — he did so in the persons of Trump Organization lawyer Alan Futerfas and Futerfas’ partner Ellen Resnick. Having Trump Organization ask for a Temporary Restraining Order would have been another way to intervene in more timely and competent way than Trump has done so far — but Trump Organization has been rather distracted preparing for depositions in Tish James’ investigation and the October trial testimony of their former CFO in a New York City trial.

In any case, it is totally normal for a grand jury to subpoena the “Custodian of Records” of a corporation from which it wants records. In the case of the surveillance video (and presumably a renewed subpoena after the search), that just happened to place the legal obligation to respond on an entity that has a whole heap of other legal problems right now.

In Trump’s whack filing, though, the hero of our story Donald J. Trump magnanimously instructed Trump Organization to accept service and provide the video (it appears that Eric or the failson would have been the ones legally to give that order), otherwise known as “complying with a subpoena.”

It’s the other subpoena I find more interesting.

On May 11, 2022, Movant voluntarily accepted service of a grand jury subpoena addressed to the custodian of records for the Office of Donald J. Trump, seeking documents bearing any classification markings. President Trump determined that a search for documents bearing classification markings should be conducted — even if the marked documents had been declassified — and his staff conducted a diligent search of the boxes that had been moved from the White House to Florida. On June 2, 2022, President Trump, through counsel, invited the FBI to come to Mar-a-Lago to retrieve responsive documents. [italics Trump’s, bold mine]

There’s a lot going on in this passage. Whereas the earlier passage described the government sending the subpoena, here Trump’s team only describes that service for it was accepted, “voluntarily,” it notes in italics, which is not a thing.

It’s a subpoena, you don’t get a choice.

The passage dates that acceptance to May 11 — the day after, we now know, that the Acting Archivist Debra Steidel Wall had informed Evan Corcoran, acting as Trump’s attorney, that she would not respect Trump’s “protective assertion of executive privilege.” The dates are almost certainly related, but we can’t be sure how, because we can’t be sure when DOJ subpoenaed Trump for the rest of the classified documents he was hoarding.

More interesting, to me, is the way this passage introduces a second role (and third) it will rely on heavily to describe what must be a core focus of the obstruction investigation, that Custodian of Records of the Office of Donald J. Trump. The Custodian of Records accepted the subpoena (and so would be on the legal hook for it), “his staff conducted a diligent search,” and then his counsel — Corcoran — “invited” Jay Bratt to come get the additional classified documents that would constitute proof Trump had violated the Espionage Act. Trump doesn’t reveal who did the search (though other reports have said Corcoran did it). But as presented, this process implicated three different roles, at least one role performed by a guy who signed this very whack filing that works so hard to obscure all this.

All that is set-up for the meeting on June 3, which will carry a great deal of legal import going forward, not least in an inevitable Fourth Amendment suppression motion. Here’s the tale the whack filing, written in part by Evan Corcoran, tells:

The next day, on June 3, 2022, Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, came to Mar-a-Lago, accompanied by three FBI agents. President Trump greeted them in the dining room at Mar-a-Lago. There were two other attendees: the person designated as the custodian of records for the Office of Donald J. Trump, and counsel for President Trump. Before leaving the group, President Trump’s last words to Mr. Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”

Responsive documents were provided to the FBI agents. Mr. Bratt asked to inspect a storage room. Counsel for President Trump advised the group that President Trump had authorized him to take the group to that room. The group proceeded to the storage room, escorted by two Secret Service agents. The storage room contained boxes, many containing the clothing and personal items of President Trump and the First Lady. When their inspection was completed, the group left the area.

Once back in the dining room, one of the FBI agents said, “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.” Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter.

This passage is designed to portray Trump’s response as completely cooperative, which is set up for a claim the warrant was not necessary. As such, it describes an FBI comment undoubtedly designed, legally, to reiterate that a consensual search — of the storage room — was indeed consensual, as if it means something else, that the FBI had had all its questions answered. But when Trump eventually receives the affidavit that relies on this FBI agent’s first-hand observations during a consensual search to show probable cause for a warrant to come back and search the storage room further, Trump will have ceded the consensual nature of it and therefore his ability to suppress the August 8 search.

Evan Corcoran will one day be underbussed for agreeing (and in this filing, attesting) to this consensual search; given the way he’s portrayed in this WaPo story, the underbussing may have already begun. But for now, it is the stated version Trump wants to tell.

What I’m interested in, though, is that according to this version — a version that makes absolutely no mention of the declaration Jay Bratt required Trump’s team provide after that consensual search of the storage room — the roles that Corcoran and Christina Bobb played were different, and different in a way that holds legal weight. They don’t name names, but because Corcoran is known to have done the things attributed to “counsel” in this whack filing, he must be the counsel in the meeting and Bobb, by process of elimination, was the Custodian of Records. So Bobb was the person on the hook for the subpoena response.

As a reminder, here’s the most complete description of the declaration that Corcoran neglected to mention in the whack filing, from an NYT article that studiously avoids mentioning that obstruction is one of the crimes under investigation.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Bobb, performing the role as the Custodian of Records and so the person on the legal hook for the search, is the one who signed the declaration, based off a search that unnamed Trump “staff” members — described as a third role separate from that of Custodian of Records Christina Bobb and counsel Evan Corcoran — conducted.

Who knows whether Bobb really played the legal function of Custodian of Records at the Office of Donald J. Trump? I’ll come back to that in a bit.

Whatever Bobb really is, though, three pages later, Trump’s Custodian of Records gets a dizzying demotion to one of “three attorneys in the general area” who showed up to observe the search. That demotion may serve the legal function of justifying a claim, made another 11 pages later, that the search warrant receipts Bobb signed do not meet the standards required by Rule 41.

Among other actions taken after being notified of this unprecedented event, counsel for President Trump contacted three attorneys in the general area who agreed to go to Mar-a-Lago. Once they arrived, they requested the ability to enter the mansion in order to observe what the FBI agents were doing, which the Government declined to permit.

After approximately nine hours, the FBI concluded its search. An FBI agent provided one of the attorneys who had been waiting outside for nearly the full nine hours with a copy of the Search Warrant. TheFBI also provided a three-page Receipt for Property. Receipt for Property

[Case 9:22-mj-08332-BER, ECF 17 at 5-7 of 7]. That list provided almost no information that would allow a reader to understand what was seized or the precise location of the items.

[snip]

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed. R. Crim. P. 41(f). The “Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

[snip]

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Government should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

Rolling Stone has a piece explaining that this whack filing is not actually the significant Fourth Amendment filing we were promised. That one, a bid to demand that Trump get these files back, is still coming.

[T]he former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows  “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

But this whack filing is meant to lay the groundwork for the future promised significant Fourth Amendment whack filing.

And the success of both depends on a claim that poor Christina Bobb, who in her role as the Custodian of Records is either a witness or suspect in the obstruction side of this investigation, was on the day of the search just a pretty little lawyer who happened to be walking her dog in the neighborhood, and who asked the nice FBI agents to let her watch the search but wasn’t allowed to, which is why she signed off on the receipt without asking for more details on the front end. This entire scheme will fail when the FBI points out that a suspected co-conspirator didn’t do the due diligence Trump is now claiming (falsely) is legally required according to the standards of Rule 41.

It would almost certainly fail anyway, but it will especially fail when DOJ points out that Bobb is not just some lady walking her dog in the neighborhood, but played the role of the Custodian of Records, and so had the competence to demand a more complete receipt on the day of the search, but did not. The Office of Donald J. Trump has effectively already waived the issue of the receipts.

But consider the import of the claim that Christina Bobb functioned at the Custodian of Records for the Office of Donald J. Trump, particularly given Paul Sperry’s claim (h/t Ron Filipkowski) that Trump withheld these documents because he knew that if he turned them over, the Archives would in turn provide them to the January 6 Committee (and now, DOJ’s January 6 investigation).

Christina Bobb is not only not just a lady walking her dog in the neighborhood of Mar-a-Lago, she also played a key role in the coup attempt.

She was the first author of the draft Executive Order attempting to seize the voting machines.

That document is nearly identical to a draft executive order the National Archives has shared with the Jan. 6 committee, and that POLITICO published last month. Metadata on the document says it was created by a user named Christina Bobb, and later updated by an unnamed person. A One America News anchor by that name was involved in Giuliani’s work for Trump, and previously worked in the Department of Homeland Security during the Trump administration.

The Washington Post reported that Bobb was on at least one conference call about setting up alternate slates of electors for the Jan. 6 certification vote, and that she was at the Willard hotel “command center” that Trump’s allies used as a home base to coordinate efforts to overturn the election. The emails did not cast light on Bobb’s ties to the draft executive order beyond her name’s appearance in the metadata, and she did not respond to requests for comment.

And as Seth Abramson first confirmed, after leaving the Cannon Office Building at 1PM on January 6, Bobb spent the rest of the day in the Willard right alongside Rudy.

While the Archives spent a year trying to get Trump to return identified documents, some reports say things came to a head in December.

WaPo reports that Trump personally oversaw the packing of boxes to be returned to the Archives, and they were retrieved on January 17.

What followed was a tortured standoff among Trump; some of his own advisers, who urged the return of documents; and the bureaucrats charged by the law with maintaining and protecting presidential records. Trump only agreed to return some of the documents after a National Archives official asked a Trump adviser for help, saying they may have to soon refer the matter to Congress or the Justice Department.

Nearly a year later, on Jan. 17, 2022, Trump returned 15 boxes of newspaper clips, presidential briefing papers, handwritten notes and assorted mementos to the National Archives. That was supposed to settle the issue.

[snip]

It could not be determined who was involved with packing the boxes at Mar-a-Lago or why some White House documents were not sent to the Archives, though people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides. Philbin and another adviser who was contacted by the Archives in April have told others that they had not been involved with the process and were surprised by the discovery of classified records.

What’s clear is that effort to pack up boxes, an effort Trump personally oversaw, was happening during the same period when Trump was trying to prevent the Archives from handing over records to the January 6 Committee.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

Any tampering with already packed boxes may have happened after the DC Circuit ruled in favor of the Committee, but in any case, in courts in DC, such tampering happened during a period when Trump was legally fighting to hide records that would implicate him … and Christina Bobb.

I’m still not convinced that the January 6 investigation(s) are the primary thing that Trump was trying to retain, though I think there’s a decent chance they’re included among the investigation(s) that Trump is suspected of obstructing by hiding, ripping, and flushing documents.

But to the extent that Trump was attempting to obstruct parallel investigations of his efforts to steal the 2020 election, Bobb’s role as both a co-conspirator in the coup plan and as Custodian of Records would raise additional concerns for the FBI.

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The Day After Paul Sperry Claimed Trump Had Been Hiding January 6 Documents, DOJ Subpoenaed the Archives Again

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CNN reported today that Thomas Windom, the lead AUSA on January 6 investigations targeting Trump and his cronies, sent a second subpoena to NARA.

The Justice Department has issued a new grand jury subpoena to the National Archives for more documents as part of its investigation into the January 6, 2021, attack on the US Capitol, two sources familiar with the investigation tell CNN.

This latest subpoena, issued on August 17, is in addition to a subpoena the Department of Justice sent to the Archives earlier this year, requesting the same documents and information that the Archives had previously handed over to the House select committee investigating January 6.

This new subpoena, which has not been previously reported, is understood to request additional documents and data from the Archives, pertaining to a period of time both before and after January 6.

Thomas Windom, an Assistant US Attorney, who is leading the criminal probe into the effort to impede the transfer of power after the 2020 election, including the potential role played by former President Donald Trump and allies to organize a group of fake electors who could keep Trump in power despite losing the election.

As a reminder, NYT reported that Windom subpoeaned all the stuff that the Archives had turned over to the January 6 Committee, for which the J6C had gone through the tedious process of getting an Executive Privilege waiver.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

There are, to be sure, a number of possible explanations for this: Perhaps Windom believes he’ll get information on the Secret Service or DHS that eluded the deletion effort shortly after Joe Biden’s inauguration. Perhaps Windom knows of someone else covered by the Archives that the January 6 Committee hasn’t yet identified, one not covered by Executive Privilege.

But I can’t help but notice that Windom obtained the subpoena the day after Paul Sperry claimed the Trump had been hoarding documents at Mar-a-Lago with the intent of thwarting the January 6 Committee. (h/t Ron Filipkowski)

Anything seized in the raid would, by definition, be evidence of a crime (the obstruction already under investigation). And Windom might have been able to craft the subpoena to obtain everything January 6 related that Trump had withheld, without the privilege waiver from Biden.

And if Windom issued this subpoena in response to Sperry’s comment, then it’ll increase the likelihood that responsive materials will be turned over before any further legal stalling happens.

In other words, by hoarding the documents he most wanted to withhold from the Committee, he may have made it easier for prosecutors to get the materials.

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A Roger Stone Pardon for MacronLeaks Isn’t As Crazy as It Sounds

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In April 2020, DOJ released the warrants from the Roger Stone investigation. With six of those, DOJ redacted broad swaths of the justifications behind the warrants, none of which were shared with him as part of his obstruction prosecution.

September 26, 2018: Mystery Twitter Account

September 27, 2018: Mystery Facebook and Instagram Accounts

September 27, 2018: Mystery Microsoft include Skype

September 27, 2018: Mystery Google

September 27, 2018: Mystery Twitter Accounts 2

October 5, 2018: Mystery Multiple Googles

All six were obtained by Patrick Myers, an FBI agent located in Pittsburgh, whereas almost all the warrants obtained before that were signed by agents located in DC (in earlier weeks, Myers had also obtained a warrant targeting a second account used by the GRU persona, Guccifer 2.0).

In his order releasing the warrants, Judge Christopher Cooper explained that all the redacted information (and so the information justifying these warrants) was redacted to protect, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.”

One of those warrants explicitly said that the government requested a gag on the provider involved (in that case, Twitter) because Roger Stone seemed not to understand the full extent of the investigation into him.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

In addition to the crimes for which Mueller declined to charge Stone (foreign donations) or of which he was convicted (witness tampering and obstructing an investigation), the warrant sought evidence of conspiracy (18 USC 371), two foreign agent laws (18 USC 951 and 22 USC 611), and computer hacking (18 USC 1030).

These warrants strongly suggest that in April 2020, as Bill Barr was making unprecedented efforts to limit Stone’s punishment for the crimes of which he had been convicted, DOJ continued to investigate whether Stone conspired with foreign entities — and given that a Guccifer 2.0 warrant is among this series, Russia would be that foreign entity — to engage in computer hacking.

That’s important background to the seizure from Trump’s office of document reflecting Executive Clemency for Stone that appears to have a link to a French President, possibly Emmanuel Macron.

If Stone were involved with the MacronLeaks operation on which the GRU teamed up with alt-Right figures in Stone’s orbit, it’s conceivable Trump secretly pardoned him to prevent him from being included in the indictment covering that operation.

Based on the FOIA exemptions in various versions of the Mueller Report released, the Stone investigation that continued after Mueller closed up shop appears to have been closed between September 18, 2020 and November 2, 2020. On the latter date — literally the day before the 2020 election — DOJ provided Jason Leopold a version of the Mueller Report with newly-unsealed passages. It revealed for the first time that, on page 178, a footnote modified the discussion in the body of the Report about whether Stone could be prosecuted for conspiring with Russia on computer hacking by explaining that Mueller had referred the issue to DC US Attorney’s Office for further investigation.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A version of the report released to Leopold on June 3, 2019 redacted that footnote because of an ongoing investigation. And a spreadsheet justifying all continued redactions released on September 18, 2020 seems to have redacted it too. The unredacted publication of it on November 2, 2020 suggests whatever investigation in Stone DOJ had been pursuing had been closed.

Stone’s wasn’t the only investigation that got shut down in the months before Donald Trump would lose the presidency. In that period, previously redacted references to investigations into two of Paul Manafort’s businesses, and an investigation into a suspected $10 million cash infusion during the 2016 election from an Egyptian state-owned bank were unsealed — though both were unsealed by the time of that September filing. There was even reference to a warrant for Erik Prince’s phone, suggesting any investigation into him had similarly been shut down.

What made Stone’s case different, however, is that DOJ never told us what the investigation was about (indeed, two referrals that likely pertain to Stone were redacted in that November 2020 release, which they shouldn’t have been if the cases were really closed).

The most important referral from the Mueller investigation, then — the one that Billy Barr was hired to make go away — simply got deep-sixed sometime in the months when it looked like Trump would lose the election, with no explanation as to what the investigation even was. And, again, it appears to have happened between September 18 and November 2, 2020.

As it happens, DOJ rolled out an indictment against GRU on October 19, just 15 days before the election (and just 14 days before DOJ released the language pertaining to Stone). It covered six GRU attacks, though focused especially on the 2018 Olympic Destroyer attack on the Pyeongchang Olympics.

But it included, almost as a throwaway, GRU’s role in the 2017 MacronLeaks campaign. By description, it held just one of the charged individuals accountable for the spearphishing part of the MacronLeaks campaign: Anatoliy Kovalev, the one guy (as noted) also charged in the DNC hack.

Defendant ANATOLIY SERGEYEVICH KOVALEV was a Russian military intelligence officer assigned to Military Unit 74455. KOVALEV sent spearphishing emails targeting a wide variety of entities and individuals, including those associated with French local government entities, political parties, and campaigns; the 2018 Winter Olympics; the DSTL; and a Georgian media entity. KOVALEV also engaged in spearphishing campaigns for apparent personal profit, including campaigns targeting large Russian real estate companies, auto dealers, and cryptocurrency miners, as well as cryptocurrency exchanges located outside of Russia. KOVALEV is a charged defendant in federal indictment number 18-CR-215 in the District of Columbia. [my emphasis]

In the Mueller indictment of the GRU, Kovalev is described as the guy responsible for the hacking that targeted voting infrastructure — the kind of stuff that really could have affected the outcome, especially in North Carolina.

72. In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers.

[snip]

75. In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

76. In or around November 2016 and prior to the 2016 U.S. presidential election, KOVALEV and his co-conspirators used an email account designed to look like a Vendor 1 email address to send over 100 spearphishing emails to organizations and personnel involved in administering elections in numerous Florida counties. The spearphishing emails contained malware that the Conspirators embedded into Word documents bearing Vendor 1’s logo.

The Olympic Destroyer indictment obtained weeks before the election held Kovalev (and the GRU) accountable for the spearphish and communications with some French participants.

27. From on or about April 3, 2017, through on or about May 3, 2017 (during the days leading up to the May 7, 201 7, presidential election in France), the Conspirators conducted seven spearphishing campaigns targeting more than 100 individuals who were members of now-President Macron’s “La Republique En Marche!” (“En Marche!”) political party, other French politicians and high-profile individuals, and several email addresses associated with local French governments. The topics of these campaigns included public security announcements regarding terrorist attacks, email account lockouts, software updates for voting machines, journalist scoops on political scandals, En Marche! press relationships, and En Marchel internal cybersecurity recommendations.

28. KOVALEV participated in some of these campaigns. For example, on or about April 21, 2017, KOVALEV developed and tested a technique for sending spearphishing emails themed around file sharing through Google Docs. KOVALEV then crafted a malware-laced document entitled “Qui_peut_parler_ aux journalists.docx” (which translates to “Who can talk to journalists”) that purported to list nine En Marche! staff members who could talk to journalists about the previous day’s terrorist attack on the Champs-Elysees in Paris. Later that day, the Conspirators used an email account that mimicked the name of then-candidate Macron’s press secretary to send a Google Docs-themed spearphishing email to approximately 30 En Marche! staff members or advisors, which purported to share this document.

29. From on or about April 12, 2017, until on or about April 26, 2017, a GRU-controlled social media account communicated with various French individuals offering to provide them with internal documents from En Marche! that the user(s) of the account claimed to possess.

But it professed utter and complete ignorance about how the stolen documents started to get leaked.

30. On or about May 3 and May 5, 2017, unidentified individuals began to leak documents purporting to be from the En Marche! campaign’s email accounts.

But they weren’t unidentified, at least not all of them! As a DFIR report released 15-months before this indictment laid out, while there was a Latvian IP address that hadn’t been publicly identified at that point (one the FBI surely had some ability to unpack), the American alt-right, including Stone associate Jack Posobiec, made the campaign go viral, all in conjunction with WikiLeaks.

First there was a rumor spread from that Latvian IP to 4Chan to William Craddick to Jack Posobiec.

Last but not least came the “#MacronGate” rumor. Two hours before the final televised debate between Macron and Le Pen, on Wednesday, May 3, at 7:00 p.m.,41 a user with a Latvian IP address posted two fake documents on 4chan. The documents suggested that Macron had a company registered in Nevis, a small Caribbean island, and a secret offshore bank account at the First Caribbean Bank, based in the Cayman Islands. Again, the rumor itself was not entirely new. Macron himself had seen it coming. More than two weeks earlier on TV he warned that this type of rumor was likely to appear: “This week, you will hear ‘Mr. Macron has a hidden account in a tax haven, he has money hidden at this or that place.’ This is totally false, I always paid all my taxes in France and I always had my accounts in France.”42 What was new this time, however, was the release of two documents supposedly proving this rumor. The user who posted the two documents on 4chan did it purposefully on the evening on the final televised debate to attract more attention, and even suggested a French hashtag: “If we can get #MacronCacheCash trending in France for the debates tonight, it might discourage French voters from voting Macron”43.

Then the rumor spread on Twitter. The 4chan link was first posted by Nathan Damigo, founder of the American neo-Nazi and white-supremacist group Identity Evropa, and was further circulated by William Craddick, founder of Disobedient Media and notorious for his contribution to the Pizzagate conspiracy theory that targeted the US Democratic Party during the 2016 American presidential campaign. The first real amplifier was Jack Posobiec—an American alt-right and pro-Trump activist with 111,000 followers at the time: his tweet was retweeted almost 3,000 times. Only after 10:00 p.m. did the rumor begin to spread in French, mostly through far-right accounts using the #MacronCacheCash hashtag. The first tweets in French seemed to have been automatically translated from English.44

[snip]

The same user with the Latvian IP address who posted the fake documents on Wednesday announced on Friday morning that more were coming, promising, “We will soon have swiftnet logs going back months and will eventually decode Macron’s web of corruption.”49 Those responsible for #MacronGate thereby provided evidence that they were the same people responsible for the #MacronLeaks that were released later that day.

Then there were the leaked files themselves, which followed the same pattern: an anonymous leak to Craddick to Posobiec to WikiLeaks.

The files were initially posted on Archive.org, an online library site, supposedly in the morning63 (the time of first release on the website cannot be determined, as these original threads have since been deleted). At 7:59 p.m., the links to the threads were posted on PasteBin, a file-sharing site, under the name “EMLEAKS.” At 8:35 p.m., they were shared on 4chan. Then came their appearance on Twitter: Craddick was again the first to share the link to the PasteBin dump at 8:47 p.m., quickly followed by Jack Posobiec at 8:49 p.m., who provided a link to the 4chan thread with, for the first time, the hashtag #MacronLeaks.64 Contrary to what would later become a widespread misconception, Posobiec was not the first to tweet, Craddick was. However, Posobiec was the first to use the hashtag that would lend its name to the entire operation, hence the confusion. Posobiec’s tweet and hashtag was retweeted eighty-seven times within five minutes. He later said he had been alerted to the incoming dump by the user with a Latvian IP address who had posted the #MacronGate fake documents two days prior: “The same poster of the financial documents said to stay tuned tomorrow for a bigger story–so I pretty much spent the next 24 hours hitting refresh on the site.”65

So far, this conversation was exclusively Anglophone. This makes it clear that the hashtag #MacronLeaks was launched and spread in the United States, by the American alt-right. It was WikiLeaks that internationalized the spread, at 9:31 p.m., by tweeting: “#MacronLeaks: A significant leak. It is not economically feasible to fabricate the whole. We are now checking parts,” with a link to the files on PasteBin. Only then came the first French amplifiers, who happened to be Le Pen supporters

MacronLeaks was, openly and proudly, a joint venture between the GRU, far right influencers in Stone’s immediate orbit, and WikiLeaks. It was an attempt to repeat the 2016 miracle that elected Donald Trump, by supporting the Russian-supporting Marine Le Pen by damaging Macron.

There’s something unusual about the indictment, too. Alone among the indictments obtained by the Pittsburgh US Attorney’s office that month (October 2020), it was the single one signed in wet blue ink by the US Attorney, Scott Brady. Both the copy released by DOJ and the one docketed in PACER also lacked a jury foreperson’s signature.

Admittedly, most of the indictments WDPA obtained that month were fairly podunk crimes that wouldn’t need heightened security: a fentanyl dealer, a cocaine dealer, two unhoused men charged with theft, an aggravated assault, manufacturing a controlled substance, Social Security fraud, VA benefit fraud, all were signed in black ink, at least some of them electronically. But a child sexual trafficking indictment and a CSAM possession indictment, both originally filed under seal, also bear the foreperson’s signature and that black ink signature. Even a ransomware indictment rolled out nationally on October 15 — which would have the same kind of international sensitivities and national coordination as the GRU indictment — had a normal jury foreperson’s signature.

While Brady was not a surprising choice for US Attorney in Pittsburgh (he had previously been an AUSA), he was perhaps the most politicized of Trump’s US Attorneys. He’s the guy whom Barr put in charge of ingesting the dirt on Hunter Biden that Rudy Giuliani was getting from suspected Russian agents.

To be clear: There’s no public allegation that Stone had anything to do with MacronLeaks, though HateWatch places him at a Milo Yiannopoulos party where MacronLeaks appears to have come up, after the leaks but before the French election. I’m not saying that Stone was involved in the MacronLeaks operation.

But the response to the Stone reference in the subpoena receipt has assumed that the Stone reference cannot be related to the French President reference, all assumptions made by journalists that never covered the ongoing aspects into whether Stone conspired with Russia on a hack. If Trump did issue his rat-fucker a secret pardon for follow-on cooperation with Russian hackers, though, it would explain a number of things about the aftermath of the Mueller investigation, including what happened to the investigation into whether Stone conspired with Russia on hacking campaigns.

For his part, Trump included a bit of a tirade about the Stone reference in his motion for a Special Master last night.

In addition, did the affiant to the warrant fairly disclose any pretextual “dual” purpose at work in obtaining the warrant? For example, the Receipt for Property largely fails to identify seized documents with particularity, but it does refer to the seizure of an item labelled “Executive Grant of Clemency re: Roger Jason Stone, Jr.” Aside from demonstrating that this was an unlawful general search, it also suggests that DOJ simply wanted the camel’s nose under the tent so they could rummage for either politically helpful documents or support other efforts to thwart President Trump from running again, such as the January 6 investigation.

This is legally and politically nonsensical. If the pardon is the known pardon, then it’s not politically damaging at all. If it’s a real pardon of any kind — as a pardon written on a cocktail napkin arguably would be — then it’s a Presidential Record and squarely within the scope of the warrant (which permits seizure of any Presidential record created during Trump’s term). If the information about the French President is part of the document and appears to be sensitive, then it would qualify as a likely classified document. If the pardon were found in Trump’s safe next to his leatherbound box of TS/SCI documents, then it would be covered by the proximal search protocol laid out in the warrant. The pardon was legally seized.

Trump’s claims are nonsensical. But they’re also the the kind of squealing that invites further attention to what the clemency document really is.

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Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

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NYT published a 1,700-word story on the investigation into Donald Trump that didn’t include the word “obstruction” once. It implied (though the reporting wasn’t entirely clear) that the government has already found about a hundred additional classified documents among the boxes seized on August 8, on top of around 200 already identified from the boxes turned over in January and the meeting with Jay Bratt on June 3.

WaPo published a 2,100-word story on the investigation that likewise failed to mention that “obstruction” was one of the crimes for which DOJ believed they’d find evidence at Mar-a-Lago. The WaPo story treated the ridiculous filing Trump’s attorneys, including Evan Corcoran, submitted yesterday as if it were a serious legal endeavor.

You cannot understand several of the things that appear in these stories without considering the legal import of the fact that after Corcoran and Christina Bobb (who is described alternately in Trump’s filing as, on page 5, the custodian of records and, on page 8, as one of “three attorneys in the general area” who showed up to observe the search) jointly signed a declaration stating that there were no more classified documents at Mar-a-Lago, the FBI found 100 more classified documents at Mar-a-Lago.

Here’s how the NYT story described it.

On June 3, Jay Bratt, the chief of the counterespionage section of the national security division of the Justice Department, went to Mar-a-Lago to meet with two of Mr. Trump’s lawyers, Evan Corcoran and Christina Bobb, and retrieve any remaining classified material to satisfy the subpoena. Mr. Corcoran went through the boxes himself to identify classified material beforehand, according to two people familiar with his efforts.

Mr. Corcoran showed Mr. Bratt the basement storage room where, he said, the remaining material had been kept.

Mr. Trump briefly came to see the investigators during the visit.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Since Corcoran and Bobb created that declaration, and particularly since FBI seized evidence proving it was not true, they became likely witnesses or co-conspirators in this investigation, both in the obstruction side of the investigation (because they might know whether classified documents were deliberately hidden for Bratt’s visit and who knew that declaration to be a lie) and the Espionage Act side (because 18 USC 793 has a conspiracy provision).

So when Bobb arrived during the search on August 8 and “requested the ability to enter the mansion in order to observe what the FBI agents were doing,” the FBI would have viewed her as a potential co-conspirator in obstruction of an Espionage Act investigation.

And when Corcoran signed a filing demanding that the Court (a different court than the one that approved the warrant) appoint a Special Master who will work with lawyers from both sides to review the documents and also demanding that he and Trump’s other lawyers get a detailed list of what was seized, the FBI would view him as a potential co-conspirator in obstruction of an Espionage Act investigation.

Movant requests that this Court appoint a Special Master pursuant to Rule 53(a)(1)(B) of the Federal Rules of Civil Procedure and this Court’s inherent equitable powers and authority. This step — which the Government itself has requested in cases involving the seizure of privileged and/or potentially privileged materials — is needed to preserve the sanctity of executive communications and otherprivileged materials. Furthermore, Movant requests that this Court issue a protective order enjoining the United States from any further review of the items seized until this Court can rule on the present Motion. See Fed.R.Civ.P.26(b)(5)& (c) (1); S.D.Fla.L.R.26.l(g).

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed.R.Crim.P.41(f). The Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

Indeed, one likely goal of this filing is to get a different judge — one who doesn’t know whether Corcoran is named as a suspect on the affidavit — to force DOJ to tell everyone whether he is or not.

One reason the FBI asked for more surveillance footage — which the NYT story that doesn’t mention obstruction says is part of the hunt for more classified documents — is because they need to understand who caused that false filing to be filed in June and what happened in the storage area between Bratt’s visit and the search.

Even after the extraordinary decision by the F.B.I. to execute a search warrant at Mar-a-Lago on Aug. 8, investigators have sought additional surveillance footage from the club, people familiar with the matter said.

It was the second such demand for the club’s security tapes, said the people familiar with the matter, and underscored that authorities are still scrutinizing how the classified documents were handled by Mr. Trump and his staff before the search.

It remains true that we have no idea how narrowly or broadly the FBI scoped the probable cause of obstruction in the warrant affidavit. But what is clear is that DOJ will view both Bobb and Corcoran — the latter of whom remains one of the lawyers in closest contact with Bratt and who is the person who issued what has been viewed as a veiled threat to Merrick Garland — as either witnesses or subjects in this investigation.

And you really can’t explain the significance of that without using the word “obstruction.”

emptywheel Trump Espionage coverage

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

 

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Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

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Yesterday, propagandist John Solomon posted a letter (NARA link now added) that the Acting Archivist, Debra Steidel Wall, sent Evan Corcoran on May 10. It described a series of communications in which Corcoran asked the Archives to delay giving the FBI access to the documents returned by the former President in January and to treat the files with, “a protective assertion of executive privilege made by counsel for the former President. After letters on April 29 and May 1 asking for delay, on May 5, Corcoran asked to review what had been returned.

Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials. [my emphasis]

The date and Steidel Wall’s response is significant. That’s the date Kash Patel claimed, for the first time, that he had witnessed Trump declassifying broad swaths of material at the White House.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

While Patel declined to say specifically what Trump had declassified, he did describe it to include both “Russiagate” [sic] and the impeachment.

It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.

At one level, this looks more like a belated — and pathetic — attempt to give the President an alibi after he was caught storing Special Access Program documents in a basement room in his heavily-trafficked resort for a year.

But by mentioning two things Trump was investigated for, Patel effectively suggested the point of demanding that FBI hold off its investigation was, in part, an attempt to delay access to such materials.

And then, weeks after Steidel Wall said that those who were representatives could access the files for which he was being investigated, Trump informed her he was making Patel a representative.

I write to designate two individuals – Kash Patel and John Solomon – as my representatives for access to Presidential records of my administration, pursuant to the Presidential Records Act, 44 U.S.C. §§ 2201 – 2207, and 36 C.F.R. § 1270.44(a)(4).

Patel has made all sorts of claims about whether he has been given access to Trump’s documents at all.

But by his own public comments on May 5, the same day Corcoran first floated the idea of having Trump’s people review the documents already in hand, Patel gave the FBI even more reason to be concerned.

emptywheel Trump Espionage coverage

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

 

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