When Secret Servers Bump Up against Prosecutorial Independence and Following the Evidence

CNN has a story reporting that President-Elect Biden will be granted access to the secret server where Trump has stashed the transcripts of his sensitive discussions with world leaders. It frames the story around the question of whether or not Biden will release those records, reporting that he probably will respect their sensitivity.

A person close to the Biden transition team told CNN that no decisions have been made about how these sensitive materials will be handled when the President-elect takes office on January 20, and that it’s likely they will maintain the Trump administration’s close hold on such information, at least at first, until they are settled in and Jake Sullivan, Biden’s pick for national security adviser, can assess their information security needs.

A senior US official said that the Biden team will be given access to a secret server containing sensitive information related to President Donald Trump’s more controversial conversations with foreign leaders on a need-to-know basis and the Trump administration is prepared to share any information that they deem to be relevant to their future decision-making process.

The story seems to be sourced to one Biden transition official, serving as a source for what the Biden administration will do, and a Trump official, serving as a source for how Trump White House will deal with this information during the Transition. In context, describing what to do about known conversations that got buried on Trump’s secret server, this comment is from the latter.

There are fast moving issues where policies or military technologies have changed in the four years since Biden’s political team left government, in particular, in relation to China and Turkey, something the current US official said will be a priority in discussions with the Biden landing teams.

The official said that basic details pertaining to Trump’s conversations with foreign leaders like Russian President Vladimir Putin and Saudi Arabia’s Crown Prince Mohammed Bin Salman, will only be shared if they are relevant to a pending policy or national security matter.

“There’s a lot to cover,” the senior US official said. “We are going to share anything that’s relevant for them to come to grips with reality when the keys are theirs. If there was something like that that’s actually of note… things on the covert side, for example, we will highlight them very quickly.”

That is, Biden will get news of Trump’s current plans involving Turkey and China, but will not get the details of what Trump promised away to Putin or whether he shared information on Jamal Khashoggi with MbS.

This particular frame comes from the sources, and while useful to know, doesn’t answer the question for the Biden administration. After all, Biden has answered questions about whether he would prosecute Trump or those close to him appropriately, by saying he plans to pick a good Attorney General and stay the fuck out of DOJ investigations. That means he might face difficult questions about what to do with these transcripts if a Congressional committee (they’ve already demanded the Putin transcripts) or prosecutors asked for known and/or relevant transcripts.

Just as an example, when the whistleblower revealed that President Trump had extorted the President of Ukraine to provide him election help, any normally functioning DOJ would have immediately identified the related case involving Rudy Giuliani’s associates Igor Fruman and Lev Parnas. That would have given SDNY jurisdiction over the fate of Trump’s extortionist call.

As of now, though, the Fruman and Parnas case remains ongoing (it will present one of the more difficult pardon decisions for Trump), and SDNY got David Correia to plead just before the election, while obscuring whether he will cooperate with prosecutors. If the case is not in some way entirely killed, then Trump’s call transcript, along with a lot of other evidence from the White House would become material to that prosecution. If Biden truly were taking a hands-off approach to prosecutions of Trump, he would not make the decision of whether to turn over this transcript (other stuff would not be covered by privilege and presumably would be handed over, including from State).

These will be the truly difficult decisions, not whether Biden gets notice now or in three months of what promises Trump made to Putin.

33 replies
  1. Rugger9 says:

    The usefulness of the server described here assumes that the US transcripts exist. Recall that DJT in many of his conversations did not have a US translator or anyone taking notes from our side, especially on the politically sensitive ones like with Vlad. So, if there are transcripts of those conversations, they would be what Vlad wants to be remembered, not what was actually said and DJT doesn’t have the memory or the leverage to contradict Vlad.

    • Buford says:

      I was under the impression that the phone calls were recorded and stashed on this server as a way to thwart these folks from providing written transcripts…

    • Spencer Dawkins says:

      The day after American Thanksgiving is not the day I review four years of Trump’s bootlicking in conversations with Putin in detail, but I am remembering that some in-person conversations were reported as “Trump was completely unsupervised on the US side”, some conversations were reported as “Trump demanding the notes from his translator”, and some were reported as “Trump instructing his translator not to tell anyone what was said”.

      In all of this, there’s a perfect opportunity for Putin to “helpfully” provide notes from the Russian side.

      It will be interesting to find out what *the Russians say* Trump agreed to …

    • bt says:

      I think that is exactly right, there will not be documents for some of what Trump did.*

      Stories abound that he does not write anything down, he does not keep written records. He does not sign things, he berates people who take notes in meetings with him. He tears papers up into little pieces rather than let them be filed**. It’s not a nervous affectation, it’s an affirmative legal strategy that he’s used throughout his career.

      *But not all of it will be missing. There will be records that will be embarrassing. Maybe even things honestly documented by people who were “not on board with the program”.

      **There are stories of Trump eating papers from a meeting. Perhaps made up stories, but the best propaganda is something false that sounds so true that it believable.

  2. Bay State Librul says:

    Can Trump destroy the files before leaving office through a fire, a shredder, or a cyber warfare maneuver?

    • Raven Eye says:

      Maybe, but what is in the White House is a collection of drops controlled by the IC. This is what Trump fears, and one of the reasons for his hatred of the IC. Hopefully the “Deep State” (professionals) in the IC will have enough backups and cutouts to frustrate the efforts of Trump and his toadies.

    • earlofhuntingdon says:

      He could order someone to erase the drives or relevant parts, and other records, but that would be an illegal order.

    • Dave_MB says:

      I don’t know for certain. But I think there are protocols from erasing files on those kind of servers. I know the FBI once evidence has been logged into the computer can’t be erased. And I believe on classified servers there are quite a few safeguards against just ‘deleting’ them.

      Whether those safeguards can be worked around, I don’t know.

  3. Raven Eye says:

    So, depending on your point of view — or greater or lesser fears — this could be setting up (a) triage or (b) a firewall.

    I tend to think (hope) more of a triage scenario and don’t envy any of the incoming team. Wading into Trump’s swamp and undorking it enough just to figure out what is there — and then undorking that enough to figure out what gets sorted and stacked onto the green, yellow, red, and black tarps — will be massive. Going to work every day will be like walking into a beat-down.

    • BobCon says:

      Prosecutors would probably be easier than the Hill. The GOP will probably go through crazy schemes like accusing Biden of selectively releasing only the worst info while keeping classified info favorable to Trump, and demanding the release of files they know Biden has powerful reasons to keep classified.

      I expect the kinds of deference to norms that Hill Democrats showed will be gone — Schiff’s careful approach to Trump and Ukraine will be thrown out in an effort to muddy the waters as much as possible, and worse.

    • Chris.EL says:

      a little off topic, this Twitter account feed from @saletan, Will Saletan with slate .com has some interesting perspectives.

      Plus, it led to this: the best visibility vests for dogs (and humans too!) “The One Thing Every Dog Owner and Runner Should Buy on Black Friday” …

  4. earlofhuntingdon says:

    One custom Joe Biden should not continue is giving Trump, like other past presidents, continued access to classified information. The risk to national security is inherently different with him than with any other modern president.

    Trump’s finances are probably a mess, with more debt and fewer assets than he admits – a lifelong habit. His prospects of refinancing his debt are probably disappearing faster than his prospects of earning substantial new revenue. The risk that he will be subject to persistent civil and criminal claims is unique to his presidency.

    Trump would treat any info Biden sends him like a trip to the food bank. He would flog anything he could and dare Biden to make a criminal referral. Biden would be reckless to assume Trump is capable of acting in good faith or in the public interest: he never has before.

    • P J Evans says:

      I’d say sending him the exact same briefings that Biden will get would be worth it – we know that Trmp can’t deal with them, as they’re long, complex docs in small print and don’t mention him enough.

      • earlofhuntingdon says:

        Trump will always have staff and hangers on who would have ideas about what intel is marketable, for what purposes. Giving the intel to Trump would be like shooting yourself in the foot while on the battlefield. WTF would you do that?

      • Marinela says:

        Don’t underestimate the enablers around Trump.
        He has qualified people he uses for his grift, he is not interested to use qualified people to govern for the good of the country.
        When it counted for his own purpose, he was able to survive an impeachment, to discredit Mueller, to destroy institutions, to grab GOP support, to control the media narratives, and so much more.

        I would say he should not be allowed to get classified intel after January 20th, unless he can pass a security clearance background test.
        If he wants it so bad, he should submit all the info that is required for such clearance.

        • P J Evans says:

          That would be good.
          Plus do the tracking stuff, where different copies have slightly different wording, so leaks can be found.

        • readerOfTeaLeaves says:

          It should be a very easy lift for all politicians to point out that Trump was impeached by the House. No president who has been impeached should be allowed anywhere near intelligence reports.

          In Trump’s case, I’d guess that Kushner is the person who reads and acts on the PDB. And if Kushner gets the goods, then he probably passes them along lickety-split.
          It’s tempting to wonder whether some clever intel people didn’t deliberately insert bogus info so that, like breadcrumbs, they could see where Jared had been flitting about.

  5. GKJames says:

    This reads as if the server belongs to Trump rather than USG. Does Trump really get to decide what information his successor will have access to?

    • Chris.EL says:

      well, Trump hires these folks and directs them to do his bidding; when they don’t comply, he fires them. What’s a poor taxpayer to do?
      I was thinking any woman who accepts a job with Trump should know by now that he’s setting her up as a patsy, a fall guy. Every woman – save his daughter – has met that fate!
      Best quote ever!!!
      Harrison Lansing:

      “Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.” – Judge Bibas in the concluding statement beginning on Page 20.

      All that should need to be said.”

      ~~~~~~~ and

      “The Honorable Kangaroo Lover:
      …I read the whole thing. That was brutal. Donald is not a happy camper today. Tweet-storm is coming.”


      Maybe that’s why they hid Trump’s exiting the White House with secret service SUVs: to obstruct photos of Trump et al. carrying lots of suitcases!

      So? Christmas in Russia with General Misha?

  6. biff murphy says:

    When Biden finally gets a clear picture of how bad Spanks and his minions handled information related to national security and screwed over our agency’s, allies, and the country, these facts will get leaked to the press because everybody hates Trump.
    The GOP may have put up with him for their judges and tax cuts but I think secretly they loathe him.
    I expect/hope/pray the orange one is charged.

    • Chris.EL says:

      Perhaps the call to the military personnel was conducted in a room other than the oval office because it was being scrubbed to remove Trump’s DNA: ** E. Jean Carroll’s lawsuit ** so there is no evidence to compare to her coatdress.

      Another outlet reported Trump could see Biden’s inaugural stand being built outside his bedroom.

      THAT would be waayy too much for Trump’s ego!!

      Has Trump and family left the WH? Hmmm.

    • bmaz says:

      Who the fuck is “Spanks”? If you are talking about Trump, say Trump. This cutie pie bullshit is unacceptable. Even I am not sure who in the world you are referring to. Stop.

      • Dopey-o says:

        When i refer to the president by a demeaning nickname, i like to phase it like this:
        Preznit Spanky McPutinSlut (Trump), for the uninitiated.
        But point well taken. I get irritated at all the careless references to Treason, as do you. Treacherous, seditious, anti-American, brazenly reckless, there are many words available if we take about 3 seconds to choose carefully. People, there are many fine rhyming dictionaries available.
        To read the word Treason flung with abandon tells me that poster is not to be taken seriously.

        • bmaz says:

          The thing is, we are read by all kinds of people, some important to what we all want accomplished. Semantics matter.

          And, yes, exactly right about “treason”.

            • Rayne says:

              We’re not going to discuss site operations here. Trust bmaz to have a relatively good idea who is reading us just as we know you’ve left 679 comments under the username configuration you’re using.

              May I also suggest checking your system for security updates as well as rebooting your PC and router occasionally? ~eye roll~

        • Earthworm says:

          Snarkiness is a deliciously fun temptation, and there are some genius witty posters here at EW.
          Personally, I dislike the cutsy or disparaging nicknames though, because, really, they are unnecessary; posters at this site already know DJT’s “spots.” The most perfect delicious irony sometimes seems to be calling him Pres Trump.

  7. bacchys says:

    Biden and his people need to quit making noises suggesting they aren’t going to uncover the corruption and stink that is the Trump Administration.

    Ceterum autem censeo Trump esse delendam

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