Merrick Garland Calls Trump’s Bluff

Merrick Garland just announced that the government has moved to unseal limited parts of the search warrant application used to search Mar-a-Lago, pending giving Trump an opportunity to object.

Garland cited the public interest, but also Trump’s disclosure of the search himself.

Although the government initially asked, and this Court agreed, to file the warrant and Attachments A and B under seal, releasing those documents at this time would not “impair court functions,” including the government’s ability to execute the warrant, given that the warrant has already been executed. See Romero, 480 F.3d at 1246. Furthermore, on the day that the search was executed, former President Trump issued a public statement that provided the first public confirmation that the search had occurred. Subsequently, the former President’s representatives have given additional statements to the press concerning the search, including public characterizations of the materials sought.

But he’s not asking to unseal the whole warrant application.

On the contrary. He’s only unsealing precisely the documents that Trump already has in his possession: the warrant itself and Appendices A (describing this house) and B (describing what can be seized). Indeed, the motion notes that the FBI gave Trump these documents.

In these circumstances involving a search of the residence of a former President, the government hereby requests that the Court unseal the Notice of Filing and its attachment (Docket Entry 17), absent objection by former President Trump. The attachment to that Notice consists of:

  • The search warrant signed and approved by the Court on August 5, 2022, including Attachments A and B; and
  • The redacted Property Receipt listing items seized pursuant to the search, filed with the Court on August 11, 2022.

The government will respond to the direction of the Court to provide further briefing as to additional entries on the docket, pursuant to the schedule set by the Court.

Consistent with standard practice in this Court, the search warrant and attachments were each filed under seal in Case No. 22-mj-8332-BER prior to the search; the Property Receipt was filed under seal today. Former President Trump, through counsel, was provided copies of each of these documents on August 8, 2022, as part of the execution of the search.

These documents are precisely the ones that Trump could have released all by himself, but chose not to. He could object now. But if he did, it would make clear — as if all the refusals to release it to journalists hasn’t already — that it’s really damning.

And now — in a short announcement where he took no questions, but where Garland made a fierce defense of DOJ and the FBI — Garland is calling Trump’s bluff.

Update: I’ve annotated this warrant from the Roger Stone search warrant to show what Garland wants released. The warrant itself (which will show what crimes Trump is being investigated for), Attachment A (which will describe Mar-a-Lago and possibly the specific locations of interest), and Attachment B (which will describe the things being searched for, written generically). They would also release the warrant return, which would list what the FBI took; NYT says that document is 2 pages (I’m trying to think of an example to share).

This post shows the likely content in the warrant, including in the affidavit, which we won’t get.

Update: Surly Duff corrected my vocabulary, which was sloppy. The warrant is what I’ve been calling the cover sheet. The Appendices are the descriptions of what can be searched. The application as a whole, though, would include the affidavit, which is the thing people are really interested.

244 replies
    • Peterr says:

      Listening to a reply of Garland’s remarks, I can’t help but laugh every time he says “receipt.”

      Yes, he’s bringing the receipts.

    • ApacheTrout says:

      I think that MG’s identification of the serious and unique situation as reason to speak now should have been applied to the investigation from the start. This was a forceful, broad declaration without going into the specific details of a case, and it would have taken the air from the sails of so many TV and Twitter lawyers who were convinced the DOJ was doing nothing.

      • bmaz says:

        Why? That is ridiculous. DOJ should shut up and stand mute about ongoing criminal investigations, especially very sensitive ones. It does not just make sense, it is supposedly their ethos. Why should it be different because howlers are howling?

        • ApacheTrout says:

          Because J6 was the most direct attack on the the Constitution and the investigation should have a public component different than a standard investigation. Not about specific cases, individuals, or details, but broadly here is our philosophy, here is what we have accomplished, we have more work to do.

        • GAP1456 says:

          BMAZ, for this investigation, do you see any circumstances where not standing mute would be in the public interest?

  1. CG says:

    Notably they are not releasing the affidavit.

    Also any classified document titles will be redacted, but we may learn the titles of any unclassified ones.

        • WilliamOckham says:

          Can confirm that is an excellent resource. As a someone who is not a lawyer, I have found it to be the best place to start when I want to dig into a legal concept or a particular law.

        • bmaz says:

          The Cornell statute site has been the gold standard for a long time. Even accepted into court evidence.

      • CG says:

        I used the word “may”. Rule 6 uses the word “may,” does it not?

        Spoiler Alert: It does.

        “(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:”

        If you know from experience (as IANAL) that the unclassified document titles will be redacted should (a) the tRump not object the government’s motion to unseal and (b) the court agrees to unseal the warrant & receipt, now that would be interesting and I would happily be better educated.

        And, yes, I already know that if the unclassified material is NDI or pertains to “matters of foreign policy”, the titles would/should still be redacted. *edit: (Assuming there is any unclassified material listed in the receipt; we don’t know yet.)

        • bmaz says:

          Oh swell, you have accessed the internet’s Google, but thanks for the spiffy clarification. There are a LOT of things the court “may” do. But here, in a very sensitive investigation, that is still in the GJ stage, the chances of doing so because jackals like Judicial watch and some press clamor for it approach nil. I’d be happy to be wrong.

        • CG says:

          Actually, you were so helpful in providing that link (not that I needed you to or even to Google it), that I enjoyed “hoisting you by your own petard,” my friend and ally who probably should read some H.P. Grice.

          Anyway, we’ll see soon (hopefully). Personally, I happen to be incredibly interested in what kind(s) of documents they took. Not all PRA documents would be classified. Not all NDI is classified.

          This is in no small part because I am curious whether there might be anything in any unredacted unclassified document titles that might be relevant to learning about any of the other TFG/J6 investigations. EW and other reports have me thinking now that I should probably just expect redacted titles of classified docs and a 793 charge… I wasn’t so convinced at first, but I endeavour to keep an open mind.

          But–if you were in fact responding to my first sentence about the affidavit, I was sloppy and maybe you were right to call me out. I simply meant what Surly Duff pointed out–they weren’t moving to unseal all of the interesting material, which would include the affidavit. I thought my point followed from EWs article but I could have been clearer.

        • emptywheel says:

          bmaz notwithstanding–I agree. The PRA stuff might be just as interesting long term as the TS/SCI.

          Trump probably could have kept it if he hadn’t been caught w/TS/SCI material too.

        • CG says:

          Thank you. That was 8:45 min of pure delight.

          And while I came for the intelligent discussion parts, I’m staying for the obscure Monk jokes.

        • MB says:

          Nothing like watching Monk shuffling around while the sax solos and then sitting down at the last possible moment to do his solo…

          Some other great Monk song titles:

          Bright Mississippi
          Green Chimneys
          Stuffy Turkey
          Ugly Beauty
          Worry Later

        • punaise says:

          I know it’s a slippery slap, but just to bring this back to the Wizard of Oz can I get a shoutout for “Ruby, My Dear?”

        • earlofhuntingdon says:

          Your quote implies a broader power than the court possesses. That’s because you quote only part of Fed. R. Crim. Procedure 6(e)(3)(E), which lists exceptions to Grand Jury secrecy rules. You left out the colon and the circumstances that follow, which limit the court’s discretion to authorize disclosure.

          You also used a made-up last name for Donald Trump.

  2. Surly Duff says:

    Yes, DOJ *is* asking to unseal the whole warrant.

    They are *not* asking to unseal the warrant *application*, which would include the affidavit.

  3. Fran of the North says:

    My guess is that the RWNJ response, including the armed shooter convinced Merrick Garland that a strong offense was was preferable to suffering in silence. As they say in chess: ‘Check’.

    Wonder how many congress and senate roaches will be scuttling off to dark corners if and when the warrant is released.

  4. Ddub says:

    This is how you fight misinformation. Just like Biden in the lead up to the Ukraine War. Early days it looks like Garland’s team has thought very hard about how to prosecute the most dangerous man in the world.

    • bmaz says:

      Counterpoint: DOJ is actually following their guidelines and the law, and it is not really just about Trump.

      • Ichabod Crane says:

        Can’t it be both? The DOJ guidelines have been honed from decades of experience, but most of their suspects either don’t have a platform to respond or (more likely) are not willing to respond. Here we see the DOJ both working within their guidelines and working to clarify those steps as they are taken.

        I would think (normal caveat, IANAL, I am an engineer), that under most circumstances, the second effort is not normally needed, but it is appropriate here given the interest in the individual and the level of conclusion jumping associated with the recent events.

        Is there a concern that the amount speculation and inflammatory statements by various media and politicians may poison any potential jury pool?

        [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you commented two days ago as “John from CT.” Pick a name and stick with it. Thanks. /~Rayne]

    • Manwen says:

      “This is how your fight disinformation.” Spot on. Biden did handle the Russian disinformation preemptively and brilliantly. And, observing the DOJ since Garland took over leads me to believe that his team studied their person of interest/subject/target very thoroughly. Taking the time to line it up and get it right is essential to avoid creating your own sand traps for the purveyors of disinformation. The slightest misstatement, error, or hint of “political” bias gives fodder to the manipulators. The DOJ approach, reflected in the work of Lisa Monaco and the words of Garland, indicate awareness that the legal arena is no longer the sole arena in which they operate. They watched disinformation sabotage Mueller; they appear determined to avoid the same fate.
      It also seems to me as though the disinformants have place the whole Republican party in a squeeze this time. The first 48 hours they raced for the title of “Trump’s Greatest Defender” Spewing grievance and using rhetoric of violence, might actually lead to violence if Trump fans feel he is really under threat from law enforcement. As the Trumpets call forth the deluded into the “civil war” many say has begun, the public as a whole is likely to blame any ensuing violence on Republican extremism. Isn’t that a flip from the 1960s?

  5. Terry Salad says:

    So Trump and his enablers are no longer able to make such false accusations about the nature of the search warrant (DOJ political targeting; FBI planting evidence) that have been made over the past few days. That’s a very good and necessary move. Trump cannot be allowed to frame the narrative about this investigation. While I am waiting for the outcome of all this (a Trump indictment would be Christmas in August), with great excitement, if it really was just about some “overdue library books” then Trump should not contest this. I just wonder… how damning?

    • Peterr says:

      Oh, I don’t think the release of the warrant (if approved by the judge) would keep Trump and his enablers from lying through their teeth about this, any more than they were shut down by rulings by judges across the country tossing out allegations of voter fraud, or by study after study by medical professionals not only knocking down claims about ivermectin’s ability to prevent COVID but affirmatively declaring it to be hazardous to human health at the doses people were talking about.

      These folks are really good at making false accusations when it suits them, and the release of one pesky little warrant won’t slow them down for a minute.

      Why let facts get in the way of their beliefs?

      • Fraud Guy says:

        Gateway Pundit is already claiming this is proof nothing was found. Despite being wrong, others will take this as proof there’s no proof.

        • person1597 says:

          Except Christina Bobb admits they [fbi] found the smoking gun but that “they don’t have it”… It’s a way of admitting that some sought items were not recovered.

      • Sandwichman says:

        The motion to unseal specified “absent objection from the former President.” So I would take that as a no.

        • Peterr says:

          The DOJ is making a motion to the judge, and the judge properly is asking the other side to weigh in before ruling on the motion. But make no mistake: it is the judge’s decision, and neither the DOJ nor Trump can veto that decision.

    • Dopey-o says:

      If the search warrant is unsealed, can Trump appeal that decision? Knowing his common tactic is to delay, counter-sue and throw sand in the works, could Trump delay the release until the SCOTUS weighs in?
      (Whom I don’t trust to do the right thing.)

  6. John DAlessandro says:

    My concern was that Trump was playing coy and plotting that the release be timed so as to meet with mass disappointment, once properly ‘spun’, a la the ‘minor’ obstruction of justice charges in the Mueller report. Given the DOJ motion, can this fear be put to rest? And should we have a high level of confidence that the reticence on the part of some of the GOP in joining in the defense, and the immediate resort to a ‘planting evidence’ defense, is an indication that they have been warned that something big is coming? Please god, I want it to be the Putin conference notes. I’ll settle for whatever works, though.

  7. DougKane says:

    Can anyone provide an educated guess as to when it might be likely that the warrant would be unsealed? Not until next week some time?

      • DougKane says:

        Judge Reinhart has now issued an order requiring the DoJ to meet and confer with Trump’s attorneys and report back by tomorrow at 3:00 p.m. EDT whether Trump objects to the unsealing. If the answer is no, I presume the court will immediately unseal.

        • P J Evans says:

          He’s saying he doesn’t object. But he hasn’t released it, either, and is still whinging about the “raid”.

        • timbo says:

          It’s difficult to say which way Trump and his attorneys will turn on this issue. If I had to guess, the judge will be looking at the possibility of prejudicial information reaching the public as this is a highly politicized situation. It appears to the casual observer that Garland is ahead here…when it comes to attempting to stop the conspiracy theorists on the right from having many more days of hay at the expense of the DOJ. The pressure on the judge over the next 48 hours is going to be even more intense than the past week I think. I await the judge’s ruling. IMO, it’s almost certain that if Trump opposes release of the warrant, it won’t be released.

    • CG says:

      Even if tRump and his lawyers do not oppose the motion to unseal, one thing to keep in mind is that they will likely need to redact portions of at least the receipt.

      They have a long history of goofing that up (usually technically but sometimes in the decision-making process), and I expect it will take some time and they will be extra careful.

      • bmaz says:

        I am not sure where you came from to act like you know what you claim, but, when you say this:

        “Even if tRump and his lawyers do not oppose the motion to unseal”

        Where is the world do you get that Trump does not oppose? Trump has up to nearly 24 hours yet to decide that. Can you point us to a formal acknowledgement, on the docket, where Team Trump said that?

        And, does it make you feel brilliant to use such chickenshit nomenclature like tRump? What, are you a clown? That remains some of the dumbest and most useless shit in history.But, congrats, you are really cute.

        “They” if you are talking about Trump do not get to decide squat about redactions. If not, and talking about the DOJ your point is obtuse.

        • CG says:

          Sigh. Again you work so hard to deliberately misunderstand me. There is now only a gov’t motion to unseal before the court. I think we can agree on that much.

          I wrote “Even if” as tRump and his lawyers may yet oppose it in the conferral with the govt by the Judge’s 3 pm deadline tomorrow. Presumably if they oppose, they would then also file a response to the motion for the judge to consider.

          I never pretended to know tRump’s thinking in the matter… don’t know where you got that from. It is a standard English hypothetical, and I was interested in responding to the OP question about any additional delays that might happen AFTER the decision is made.

          So should tRump and his lawyers not oppose, they (the govt, meaning the DOJ, any relevant agencies like DoD if there any unclassified NDI & the court) will probably want to be very careful about how and what is redacted in what they release to publicly. That may take extra time.

          Are you not aware that in many cases court documents provided in pdf form have been and can often be easily unredacted by journalists?

        • bmaz says:

          “Sigh”, you are full of it. For starters, it is really hard to take seriously anyone that thinks it is cute or helpful to use “tRump”. That is the epitome of childish. I do not misunderstand you in the least, I just think you are blowing shit out of your ass. And I have reviewed every comment you have made here before I say that. Spare me.

        • CG says:

          Not nearly as childish as quickly resorting to epithets rather than engaging in reasoned argument.

          Or deliberately trying to misunderstand other people–and it’s not just mine, you have a habit of this (when I review your comments). I get that you like to play resident curmudgeon, and that you have had a long career and are knowledgeable. You are even sometimes helpful. But you could stand to read HP Grice.

          So are you unaware that court documents have been un-redacted in the past? Do you know how to do this? How to prevent this?

        • bmaz says:

          I do, I actually do this for a living. I am not going to waste any more time with you. You are trolling and can run along.

        • bmaz says:

          Lol, Not nearly as childish as you spewing garbage and thinking you will be making your bones on our backs.

          Nobody is “deliberately trying to misunderstand other people” other than you, and you are lying about the relevant discussion. I am quite aware of what I am “talking about”.

          And I have no idea in the world what “you” think “HP Grice” has to with anything. You are trolling and you are done with that.

        • earthworm says:

          i wish all could leave off with the cute epithets and agree to call him by his name, “FORMER president trump,” or donald trump (although rayne has come up with some exquisite ones).

        • timbo says:

          I’m sticking with ‘Twitler’. Or just “Trump”. There are plenty of folks here who use obnoxious epithets for Trump so I’m not sure why folks get so bent out when someone tries another one on for size. If you don’t like it, you don’t like it. I don’t like “tRump” myself. So what?

          It’s easy to act self-righteous on the Internet, that’s for sure. For instance, I find the use of all the tiny hand memes about Trump offensive and unnecessary. Do you? Or are you on board with that? Should that be a huge or a tiny bone of contention here? Why?

        • Village idiot says:

          I prefer to think of his as a poorly-performing former Government employee that was let go for cause – but that’s just me.

        • vvv says:

          When I see any such nicknames (other than Rayne’s, because I know she knows what she’s talkin’ ’bout, and she can be funny) I ignore the post.

          Saves time, as most using such nicknames are not worth reading, IMNSFHO.

        • grennan says:

          Yes, and they’re counterproductive, as well.

          One of the whole points serious people have been making for five years or six years is that objecting to or investigation of Trump is not politically based…not mud slung by “his enemies”.

          Alternate names sure work against that idea.

          Has anyone ever taken seriously any right wing posts/comments calling Obama “Barry”?

  8. JohnForde says:

    Will the search warrant list the specific crimes including 793 or is that only available in the affidavit? And how soon can this all happen?

    • Peterr says:

      In Marcy’s post the other day about the documents involved in a search, she says this about Attachment B:

      Attachment B would authorize seizure of all documents relating to violations of the statutes in question, so probably 40 USC 2201 and 18 USC 793, with bullet points stemming from what is covered under the PRA and what is covered — defense information — under the Espionage Act.

      That is, we will see the citations of the specific sections of the law that the DOJ is investigating with regard to the materials seized.

    • DougKane says:

      The Attachment B to the warrant should begin by saying something like “The items to be seized are fruits, evidence, information relating to, contraband, or instrumentalities of violation of [relevant statute or statutes].

      • bbleh says:

        Please pleasepleaseplease let it list 18 USC 793.

        But no, the baby Jesus does not love me that much…

  9. MB says:

    (This is in response to a post that seems to have just disappeared): Spinmeister Bill Barr is not available for this assignment. He can’t do it himself – incapable. I don’t think he’s got anybody that can do a smooth spin here. (He needs to pull Devin Nunes out of the mothballs…?)

  10. Michael Scott says:

    I seriously think Trump looked at all this stolen intel loot as future “blackmail currency” — against individuals, and maybe against the government itself.

    And then, of course, there’s value in embarrassing tidbits to be leaked, periodically, down the Rightwing Puke Funnel . . .

    • Peterr says:

      So has the NYT and a bunch of other media organizations (not sure if it was a separate filing or if they were on the same filing with Judicial Watch), and they all did this prior to the motion filed today.

    • earlofhuntingdon says:

      I don’t think it would be “contradictory,” but it would tell Trump a lot about precisely who and what the FBI is investigating that he (and any possible co-defendants) don’t know now. In other words, it would reveal details about an ongoing investigation that neither Trump nor the pressi is entitled to now. Which is why “Judicial Watch” is doing it.

      • Ravenclaw says:

        Absolutely. Just makes it hard for the right hand to say “seal” when the left hand is saying “open.”

    • timbo says:

      Under the current grand jury rules spelled out in rule 6 at the cornell site, they don’t have any ground to stand on at this time. So don’t expect anything from something like that. If anything comes of it, it’ll be incredibly surprising.

  11. WilliamOckham says:

    We’ll know by tomorrow at 3pm Eastern whether or not Trump is going to object.

    PAPERLESS ORDER taking under advisement 18 Motion as to Sealed Search Warrant (l). The United States shall immediately serve a copy of its Motion on counsel for former President Trump. On or before 3:00 p.m. Eastern time on August 12, 2022, the United States shall file a certificate of conferral advising whether former President Trump opposes the Government’s motion to unseal.
    Signed by Magistrate Judge Bruce E. Reinhart (BER) (Entered: 08/11/2022)

      • timbo says:


        I think that Twitler’s lawyers will, over the next few hours, in private, make incredible difficult demands of the DOJ for information they’re likely never ever going to get and then, publicly, turn around and say, “If it’s no dice on our demands, then it’s no dice on releasing the warrant!” That’ll frame it as a brokered deal that wasn’t good enough for Twitler’s side.

        In general, a federal judge is likely going to be inclined to side with Twitler’s counsel if they even hint that releasing the warrant docs as being potentially prejudicial later. Also, generally, it’s not the job of the judge to please the public’s curiosity about a sealed warrant. That’s another thing to remember.

        The burden is on the DOJ to explain to the judge why the status quo isn’t sufficient basically. If they get buy-in to release from defense counsel then that’s another matter. I doubt they’ll get it.

        • timbo says:

          I was wrong in my speculation. Guess if there was a deal reached it was acceptable to Twitler for whatever reason.

  12. earlofhuntingdon says:

    I agree with bmaz that Andrew Weissman and Chuck Rosenberg did not do well in their tv legal expert role today for MSNBC. The explanation for the level of proof required to obtain a search warrant, for example, was mostly word salad.

    Chuck talked at length, rather than sucinctly, about two standards of evidence: one for criminal conviction and the other to conduct a search under warrant during an investigation. Conviction requires proof beyond a reasonable doubt, “the highest standard.” He left it that. A search warrant requires “probable cause,” which Chuck calls a “low” or the “lowest” standard. I think that’s wrong. He then proceeded to bury his point in salad greens.

    Yes, probable cause is a lower standard than that required for conviction, but it’s a helluva lot higher than a hunch, a suspicion, a possibility or good possibility, or simply that a target had pissed off some senior politician named Donald Trump. Probable cause means a preponderance of the evidence. Other phrases commonly used are more than half, fifty percent plus one, more likely than not, etc. I’d buy a lot of lottery tickets with those odds.

    But probable cause also means that the FBI identified precise federal statutes it believed had been violated, identified the elements required for each, and summarized the factual evidence that it has that reaches or exceeds that standard. It also identified the location to be searched and where at that location the FBI suspected it would find further evidence that those specific crimes had been committed.

    MSNBC needs to do a better job at this, because more is sure to follow – and it will have to overcome the mountain of disinformation Trump and the GOP will throw its way.

    • bmaz says:

      The lowest in the criminal setting is “reasonable suspicion”, but that is inapplicable to getting a warrant, much less charging or convicting.

    • P J Evans says:

      I had some Haberman tweets cross my timeline today, and got ticked enough to reply:

      [source citations needed] otherwise it’s just someone running their mouth.

  13. Peterr says:

    Oh, this is good. From Garland’s remarks, with emphasis added:

    The search warrant was authorized by a federal court upon the required finding of probable cause. The property receipt is a document that federal law requires law enforcement agents to leave with the property owner. The department filed the motion to make public the warrant and receipt in light of the former president’s public confirmation of the search, the surrounding circumstances, and the substantial public interest in this matter.

    Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy. Upholding the rule of law means applying the law evenly, without fear or favor. Under my watch that is precisely what the Justice Department is doing. All Americans are entitled to the evenhanded application of the law, to due process of the law, and to the presumption of innocence.

    Unsaid: “unlike the Justice Department under the watch of Jeff Sessions, BDTS, Bill Barr, or the other recent acting folks.”

  14. ExpatR&RDino-sour says:

    Merrick Garland (cometh the hour, cometh the man) appears to me to be exactly the sort of person TFG can’t handle. The more I see of AG Garland the more I think we were robbed of a great Supreme Court Justice, but perhaps there was a bigger role for which he is now going to be needed.

  15. Douglas Erhard says:

    This just in, from FoxNews:

    “How DARE Merrick Garland force Donald Trump to release the warrant!1!!!!!11”

    • person1597 says:

      Ozzy knows what evil lurks…
      “Is this the end of the beginning?
      Or the beginning of the end?
      Losing control or are you winning?
      Is your life real or just pretend?
      Reanimation of the sequence
      Rewind the future to the past”
      To find the source of the solution
      The system has to be recast”

  16. Silly but True says:

    I searched and searched for this and I am loathe to have to point to this, but it seems to be the only place where Kash Patel gave some insight in May 2022 as to Trump’s likely defense — so here “Clay and Buck” is notable I suppose only in that they’re not Diamond and Silk which would really have been the icing on the cake. In any case, here it is (with link broken): https://www.clay

    Yes. Kash is being Kash, and the whole point of his appearance there is disinfo, but the key part he notes is:
    “…and while President Trump was still president of the United States, he was going through reams of volumes of information with his team and said, “This is what the American people should see,” and he literally said, “All of this is declassified.”

    That is, Trump waved his hands over the boxes he was going to take, yelled out a “Hooba dooba shabooba, I declassify thee” and magically through his POTUS powers declassified everything he was going to take.

    Regardless of whether Kash is lying or not, or whether that account actually occurred or not, Trump’s defense is going to be two-fold:

    1. You silly FBI, nothing was classified (“Deepstate tryin’ to keep me down”) — ask Kash, and he’ll confirm he witnessed it.

    2. I only took my signed hard copy versions for posterity as electronic scans reside on government computers / these were copies and so don’t foul PRA requirements in any way.

    This will cause fine look at classification requirements for POTUS (effectively none; he’s not bound by any internal Exec. Branch process on this, and could modify it for himself on his own whim in any case), and minutiae of PRA requirements relative to need to maintain multiple copies of records (or not) under PRA.

    • earlofhuntingdon says:

      It might be news to Kash, but the PRA applies to presidential records, not just the ones marked “classified.”

      BTW, if Trump meant documents to be seen by the American people, an unlikely objective, why was he hiding them in the Florida basement of a private club, whose zoning restrictions prohibit permanent residents?And I am not going to continue this useless conversation.

      • Silly but True says:

        Right. There’s a different defense going for (2), just today even.

        Mulvaney was just on CNN New Day today, and laid ground work that the “torn up” and taken documents were copies, and all proper records were preserved.

        PRA doesn’t require every version of a record.

        If Trump signed one in ink, scanned it in, and that scan resides on WH computer in national archivist’s possession, then the hard copy is not necessarily even an archivable record any more.

        I’m not suggesting anything about the quality of these arguments, but rather that Trump surrogates are out there laying that groundwork.

        What was notable in May that Kash needed to start owning his narrative? That’s when the DoJ opened the classified record investigation.

        Patel wanted to blow up the “classified” angle, devolving everything to just PRA. That’s still bad, but this is where Mulvaney is going to take over.

        _IF_ Trump declassified them, and what Trump took was a copy of a record that exists in governments hands — and these are their defenses — then Trump will seek to use this all to his advantage.

      • wetzel says:

        Maybe it is too dismissive to say this is a useless conversation. Even though Patel’s line is obvious bullshit, I think the claim ‘Trump declassified everything before he left’ just may be the defense, at least outside of court, if Trump is accused of espionage.

        Even though Patel’s claims aren’t an effective defense against violations of the Presidential Records Act, which is a law of Congress, President Trump actually did possess “virtual plenary authority” over classification procedures at the time he took possession of the documents before he left office. I don’t see how Trump’s powers would stop or start or stop at “. . . if Trump meant documents to be seen by the American people” because they are Constitutional powers through his role as Commander in Chief. I don’t see how this or that Obama Executive Order regarding the conditions for “instant declassification” supersedes even something as ridiculous as Trump waving a “declassification wand” over the boxes.

        Maybe there is a counter-argument in the pardon power. Even though his pardon power is also plenary, I assume Trump couldn’t go public now and say, for example, if Guiliani were on trial, “But I pardoned Rudy on my last day!” There must be some credible standard in precedent to judge whether a power is lawfully exercised even if it is plenary.

        Anyway, I couldn’t find any good counter-argument for the talking heads to take to MSNBC in these reports compiled by the the Congressional Research Service in 2017: “Presidential Authority to Permit Access to National Security Information” ( and “Protection of Classified Information – The Legal Framework” (

      • BobCon says:

        Nothing stops unclassified documents from later being classified. It doesn’t matter if Trump said he declassified, say, every CIA briefing memo before he took them in January 2021. If Biden or the appropriate agency process reclassifies them, there is a process for establishing that Trump had them in his posession and notifying him of the change in status.

        He theoretically could be off the hook for what he did immediately after declassification, but once he is notified he is back on the hook.

    • Paulka says:

      As an aside, didn’t Trump declassify all of the intelligence in the Russia investigation by tweet?

        • Paulka says:

          You don’t remember this:?

          I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!

          — Donald J. Trump (@realDonaldTrump) October 7, 2020

          His lawyers had to go to court saying he was joking IIRC

        • timbo says:

          The DOJ immediately went about disabusing those seeking FOIA records about these supposedly “declassified” records had, in fact, been declassified. They remained classified.

      • Village idiot says:

        Trump said he would do all sorts of things – like initiate declassification of those records. Seems like he didn’t as the announcement itself got him what he wanted – a presumption that, because he would release the records, there couldn’t possibly be anything incriminating in them. We were naïve back then :)

        Even if Trump was the sort of person to follow through on his promises, there’s an still important point here – it isn’t declassified until the paperwork is done. Trump, or any other ex-president, flapping his gums doesn’t count for much and, in that case, it didn’t even count enough to declassify anything.

        Same here – he can go on national TV and SAY he declassified anything he likes – president, ex president, whatever. Doesn’t mean a thing unless they actually got declassified, and I’ll bet he didn’t follow through with the declassification of these docs either.

  17. Badger Robert says:

    I personally approved the warrant, Garland stated. His whole department is going to fight like heck for him now. It used to be called moral courage, and AG Garland has it,
    Now go after the Pennsylvania plotters and get them.

    • Village idiot says:

      It’s times like this I wish I had an upvote to give, and the EW site had a way to give it!

  18. Barry says:

    It’d be a nice surprise if the inventory includes evidence beyond the PRA/Espionage stuff–Like something about January 6,

        • bmaz says:

          Oh, it is huge! But the Grand Canyon it is not. The nearby Walnut Canyon is, to my eye, far more interesting.

        • notjonathon says:

          Well, I was on a plane flight once, in a Lockheed Electra, which had a habit of self-destructing in flight, when the pilot pointed out the the town of Buffalo, Texas. Buffalo was the site of an Electra crash just weeks before. I had enplaned at Dallas, from Gate 13. There was only one other passenger, a foreigner of unknown origin, who nervously asked the flight attendant what time the plane would arrive in Houston. She replied, that all depends on whether we get there.

        • ThomasH says:

          I can hear Reagan saying something like “When you’ve seen one hole in the ground, you’ve seen them all!” Greetings from another large, albeit man made one, hole in the ground, Bisbee.

        • bmaz says:

          There was no deep pit mining at meteor crater, but yep. And I still love Bisbee, and very much hope to come have a beer with you there.

        • bmaz says:

          I swear, I want at least one night at the Shady Dell. Has been a thing for a long time with me. Mrs. bmaz interested, but not quite as much. Very much look forward to being down there again though.

        • grennan says:

          Maybe if you can get bisbeite there. Red emeralds. For mineral and gem enthusiasts, Bisbee rocks. (Sorry…)

    • bbleh says:

      WaPo just now reporting that “sources” say it included info re nuclear weapons, perhaps ours perhaps others’ but regardless considered very sensitive.

  19. Badger Robert says:

    I am surprised that the people who participate on this forum with federal court experience have not yet suggested that making an impulsive accusation of law enforcement misconduct, without evidence, is not a good idea. Even though the attorney walked back the sound bite, adding Trumpian qualifiers, the sound bite went out, with possible tragic consequences. Both AG Garland’s response, and I believe the motion, raise this issue. I will defer to the federal practitioners.

    • timbo says:

      Maybe it’s not as big a deal as you imagine? Seems to me that there’s plenty of folks shooting their mouths off all the time, and that is their right under the Bill of Rights except in very specific, specialized circumstances.

  20. cmarlowe says:

    What is the law on this? What is the test for unseal or not?

    OK – having asked the question, I am adding an edit noting that I found Garland’s motion. Will it help me? We’ll see.

  21. JohnForde says:

    Indulge me in my hypothetical to entertain a question: Trump is arrested tomorrow for espionage. How much protection does Ginni Thomas lose?

  22. pdaly says:

    I noticed Jay Bratt cosigned the motion to unseal the search warrant.

    Does this imply, akin to ‘original classification authority’ rules about declassification, that Jay Bratt signed the original motion to seal? Or even that he co-signed the original search warrant?

    • bmaz says:

      I don’t know, Marcy might. But I do not think so. Bratt “may” have been part and parcel of the OCA, but he is not is, so no.

      • pdaly says:

        Thanks, bmaz.
        I am marveling at the mantra-like last part “he is not is, so no.”

        Just checking whether one of the “is” is an acronym for intelligence service?
        (off topic, wondering if there is a plural for “is”: is’s, isses, ises)

  23. WilliamOckham says:

    As the Trump camp seems determined to leak all the details about the search warrant and inventory in the next 18 hours, I want to put this out there. If there is a document on the search warrant that the FBI DIDN’T find, that’s not good for Trump. At this point, it’s more likely that a document in that category was under Trump’s control and is now unaccounted for than it is that Trump didn’t take the document. The best case scenario is that the FBI found everything they were looking for.

    • cmarlowe says:

      FWIW, declassification of nuclear related stuff may be beyond the sole authority of a president. I saw one talking head claim that. I researched it a bit. This has a special designation for classification purposes called restricted data (RD). Declassification authority appears to only lie with Department of Energy (DOE) personnel. Be advised that I can do math, but reading complex federal regulations is not my strong suit. If anyone knows more or better, so be it.

    • Eureka says:

      Recall Trump’s constant references to his Uncle John and Trump’s “plans” to broker nuclear world peace all the way back in 1984/1985 (cf. Jared and his “plans” for peace in the ME).

      • Eureka says:

        Here’s a good overview with links to primary 1984/1985 sources about his preoccupation with preventing “nuclear holocaust”:

        Three decades of President Trump saying he could easily avoid nuclear war
        By Jason Silverstein NEW YORK DAILY NEWS Aug 09, 2017 at 5:07 pm

        Recall too in this (temporal) context his first wife and their Czech [Soviet- (intelligence) satellite] travels/surveillance:

        In other words, this (generally and his “nuclear” fixation) is all a long time coming.

      • Eureka says:

        ^^ liberally sprinkle the additional scarequotes. The “idea” — of whatever true origins and nurturing — was he’d get access to nuclear secrets (and much to our peril, 30+ years on, he did) and “make deals” like he was brokering in art, RE, tv, steaks […]. From NYT 1984, Trump comes off like the idealist businessman [cf. trope as applied more recently to Elon Musk]:

        Asked to explain, he adds: What does it all mean when some wacko over in Syria can end the world with nuclear weapons?

        He says that his concern for nuclear holocaust is not one that popped into his mind during any recent made-of-television movie. He says that it has been troubling him since his uncle, a nuclear physicist, began talking to him about it 15 years ago.

        His greatest dream is to personally do something about the problem and, characteristically, Donald Trump thinks he has an answer to nuclear armament: Let him negotiate arms agreements – he who can talk people into selling $100 million properties to him for $13 million. Negotiations is an art, he says and I have a gift for it.

        The idea that he would ever be allowed to got into a room alone and negotiate for the United States, let alone be successful in disarming the world, seems the naive musing of an optimistic, deluded young man who has never lost at anything he has tried. But he believes that through years of making his views known and through supporting candidates who share his views, it could someday happen.
        [sic throughout, repaired a few obvious OCR errors: NYT archival glitches]

        As I recall, POTUS Trump’s attempt at a New New Start with Russia failed.

        • Eureka says:

          I did a timeline thread interweaving his tv and political ambitions with this nuclear fixation a few years back but can’t locate it.

          Suffice to say he was setting bait to manifest both in these mid-late ’80s. Potential-candidate-wise, in 1987 he took out full-page ads touting his political views (to include brokering nuclear peace with the Soviets and not paying for the defense of other countries who could afford it themselves), telling the NYT he would not comment on the presidency while ruling out other offices ahead of his GOP-er-invited trip to the NH primaries. Meanwhile the dems in 1987 asked him to host the Dem Congressional dinner for the following spring. In 1988 Trump apparently asked Lee Atwater to suggest him as Bush’s VP (cited to Jon Meacham’s book on HW). See wikis “Donald Trump” and “Political career of Donald Trump” and primary sources linked therein.

    • cmarlowe says:

      Yeah, JK lied on his SF86 which would normally be the end of the clearance story (and could result in prosecution).

  24. mainsailset says:

    So the guy who we were told for 4 years couldn’t stand to read the PDB and handed them over to Jared, who couldn’t get the clearance to read them until Trump waved his magic wand, who poured over them every chance he got, somehow got highly classified docs out of the hands of their guardians and into cardboard boxes whereupon he stored them in his basement not under lock and key? Methinks these were Trump’s retirement docs where he could sell them to the highest bidders one and all to fund all his various crimes, or just pay legal bills (and perhaps FBI got him talking to a buyer that they were wiretapping, hence the urgency). That said, now I’m wondering on what basis can Trump’s lawyers come up with any kind of excuse to deny the DoJ docs from being unsealed?

    • Mister Sterling says:

      This makes is doubly bonkers. Trump probably has sold some documents already. It’s been 18 months. But why did he and his people take documents related to nuclear weapons? What the hell is going on? Did he think Kim or Putin was going to give him cash for those? What The Hell? That more than justifies using a warrant rather than letting Trump fight a subpoena for years. This was an urgent matter.

      • timbo says:

        Which secrets in the US arsenal of secrets are worth the most to extra-nationals? Certainly some US nuclear secrets would be high up on the list…

      • fm says:

        Maybe Saudi’s are interested in the nuclear documents. Is it coincidental that Kushner got $2 billion from them for his brand new “investment” company, in which he has no experience and that the Saudi’s created and paid for the LIV tournaments that take place exclusively at Trump’s golf courses after the PGA tour cancelled all their games at his courses after the Jan6 insurrection. Who knows..

  25. Marinela says:

    If the search warrant uncovered crimes, who has jurisdiction? Hypothetically speaking, would the trial happen in Florida?

    • Andrew says:

      Good question!

      The docs were stolen in DC, so that could be the jurisdiction.

      But the crime of keeping them occurred in Florida, so maybe a federal court there.

      I wonder if DeSantis will try to pardon trump.

      [Welcome back to emptywheel. FIFTH REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Andrew” or “Andy.” PLEASE MAKE A HABIT OF CHECKING YOUR LAST COMMENT TO SEE IF THERE ARE ANY REPLIES FROM COMMUNITY MEMBERS INCLUDING MODERATORS. /~Rayne]

      • grennan says:

        a) Desantis could do that only for state crimes. These would be federal charges.
        b) weird scenario to do that for opponent
        c) but if there’s anything to ‘nuclear’, Desantis would be one of the first to slough Trump off. In response to the WA Post article tonight with the word ‘nuclear’ its site has gotten almost 22k comments, virtually all outraged. in less than three hours.

  26. ccinmfd says:

    David Brooks in the NYTimes (“Did the F.B.I. Just Re-Elect Donald Trump?”) and George Will in WaPo (“Garland has a political duty to explain the circus perpetrated at Mar-a-Lago”) both wrote way-off-the-mark stinkers today, each rightfully being torched in the comments. Picture AG Garland as Sylvester the cat – except this time the bird doesn’t get away.

  27. skyscraper says:

    As a longtime lurker and relatively recent donor, a few things:

    If you’re reading this (and you are able) SIGN UP TO GIVE THIS SITE $$$ EVERY MONTH. You know that posts here are hugely and uniquely informative and you should feel bad if you are not helping to keep them happening.

    Comments have a decent signal to noise ratio and are definitely worth reading.

    As a multi-decade denizen of a communal blog that has struggled, mostly successfully, with how to moderate comments and deal with bad actors, I am simultaneously impressed, amused and horrified with bmaz (please forgive me).

    Oh, and I am familiar with the term “shill” and I am not that.

    • bmaz says:

      I did not ask, nor sign up, to moderate anything. When we started, we were part of the FDL collective, and FDL had paid (though not nearly enough) moderators, several of which are still here in this community as commenters. All I had to do was answer an occasional question from them. But since we left there, it is basically me and Rayne. I still have a semblance of a day job too. If I am a blunt object, sorry about that.

  28. Dave_MB says:

    Conjecture only, but this is not materials where you would get henchman from around the world to bid on it, you have one buyer and sell to them. Or trade the document for a Trump Tower Moscow or Trump Tower Beijing.

      • Valerie Klyman-Clark says:

        Apropos of just these jewels, I love this one, “Harsh words butter no parsnips.” Got it in a fortune cookie not once, but twice and discovered it’s an old turn of phrase.

        • grennan says:

          Or the British expression we should use re AG Merrick and DOJ:

          …(accomplished by) eating the artichoke leaf by leaf.

          I first encountered it in a description of how King Alfred and his son Edward drove out the Vikings over a period of years– methodically, carefully, and focused on the long goal.

    • Rugger9 says:

      TBF, it was on ‘Truth Social’ that nobody reads but I saw the report too. Individual-1 can release the warrant now and what was taken by the Feebs. However, that’s not what TFG wants, he wants the affidavit to figure out whole the moles were. I think there is more than one, and Lincoln Project already has a post about it.

      Nuclear secrets and SIGINT (i.e. sources and methods) and perhaps Khashoggi communications as well to leverage MBS would be my guess for the contents of the boxes. However, we shall see fairly soon given how the RWNM freaked out. Clearly there is some important things there perhaps implicating the GQP ‘leadership’. I don’t think the Feebs will wait too long to charge Individual-1, et al, if my speculation is right and the affidavit will be part of the court record even if redacted.

      FWIW, Charlie Kirk (among others) needs to be charged with incitement to riot, if for no other reasons including that he did incite the MAGA militia and after the Cincinnati FBI office was attacked today blamed the Feebs for bringing it on themselves. Blue Lives Matter my arse.

      • timbo says:

        Why not some of the stuff that Twitler’s regime refused to turn over to the Congress in the first impeachment trial, stuff about Ukraine, arms, and energy policies and extortion?

      • TooLoose LeTruck says:

        ‘Nuclear secrets and SIGINT (i.e. sources and methods) and perhaps Khashoggi communications as well to leverage MBS would be my guess for the contents of the boxes.’

        That’s pretty much my guess, too…

  29. Vicks says:

    If these really are top secret documents, I can’t imagine too many people, even in Trump’s circle being impressed with him stealing them; it seems like a pretty short list of potential informants.
    It also seems odd that anyone who knew anything about Trump would expect the documents to still be sitting there untouched months later.
    On a related note, what does a lawyer “negotiating” on behalf of someone who doesn’t want to give back items he obviously stole even look like?

  30. benfdc says:

    The most interesting thing about DoJ’s motion to unseal, which very few folks have noted, is that it was signed by Jay Bratt.

  31. grennan says:

    As Dana Milbank wrote a couple of years ago, the worst day of the Trump administration is always tomorrow.

    I wanted bmaz’s thoughts about Drew Findling, the Atlanta criminal defense attorney Trump hired Wednesday but that’s a sideshow for now.

    • bmaz says:

      Don’t know him personally, but have known of him forever because he is big in the NACDL, and I used to be fairly active in it. He is a real criminal defense attorney, not the usual schlub Trump hires. He knows what he is doing. Wonder what kind of up front retainer he got, because he should have required a huge one.

      • TooLoose LeTruck says:

        If Trump did indeed hire a real criminal defense attorney for a change, instead of the usual schlub, perhaps that’s an implicit signal that this time he’s feeling a need to take this more seriously than with some of the other cases he’s fighting…

        • bmaz says:

          I don’t know. But if I were Findling, the first thing I would do is start attacking Fani Willis. And she deserves it.

        • timbo says:

          I get the impression that Findling’s client(s) may have possible bigger fires to worry about at the moment?

        • TooLoose LeTruck says:

          I dunno…

          It just feels like a tell, like in poker…

          When he typically lowballs every last thing he does, why would he spring for a much pricier lawyer now?

        • grennan says:

          Maybe he finally started believing the advice my late mom gave students, colleagues, her kids, tenants, etc.:

          The most expensive thing in the world is using a cheap lawyer.

  32. taluslope says:

    Reports on twitter suggest that the FBI found TS/SCI (Top Secret/Sensitive Compartmented Information) [] although I suppose everything you read on twitter isn’t gospel.

    You can’t imagine how tightly this information is held. Each document has a cover sheet with many specialized markings, such as, who did the original classification and when; also date of declassification (if declassified). I can’t speak to an executive order but blanket declassification is just not going to happen.

    Yet, that said, I also can’t understand how TS/SCI documents get out of the “vault-like rooms” where they are stored. Plus no way is ex-pres Trump going to actually read a document. So … um … my guess is that Trump jots down some juicy notes with his sharpie and deposits them, not in his toilet, but in his special “burn” box to be delivered to Florida.

    Note that his sharpie notes are every bit as classified as the ones with the special TS/TCI covers (just not marked as such yet and filed away in special places; it is the subject matter that makes them classified). Did someone just say lock her up?

  33. earlofhuntingdon says:

    I wonder how much of Trump’s decision not to contest unsealing the MAL search warrant had to do with not having the services of a lawyer competent to do it. The bimbo lawyer on Faux News last night was not one of them.

    • earlofhuntingdon says:

      Hope the DoJ and the federal magistrate in Florida will accept a press release, then, because it might take quite a while for someone on team Trump to respond more formally.

  34. FLwolverine says:

    I have a question about the Property Receipt. The motion to unseal as quoted above refers to the “redacted Property Receipt “ as one of the items to be unsealed. It also states that a copy of the Property Receipt was given to Trump’s lawyers (with other docs) on August 8. So did the lawyers receive a redacted or unredacted copy of the Receipt? If redacted, would the lawyers be able to sufficiently identify what was recovered? If unredacted, wouldn’t DOJ be worried about Trump releasing the Receipt along with the rest of the warrant?

  35. grennan says:

    Trump’s “they planted evidence!” has been nicely offset by attorney Bobb’s quote that he and his family watched the whole thing on CCTV in NY — “they had a better view than I did” she told Fox.

Comments are closed.