Obstruction: The Two-Receipt Search of the Former President’s Golf Resort

There are two separate receipts for the search of Mar-a-Lago signed, in the same minute, by Trump lawyer Christina Bobb.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

Bobb signed them both at 6:19PM, so unless she’s a shitty lawyer, these receipts were presented to her together as one running receipt.

Whatever else the FBI is, their searches are methodical. They come in, secure the location, serially take pictures of the rooms being searched (so the criminal suspects don’t claim evidence was planted, as criminal suspects are wont to do), label the things to be searched, start sorting through items according to a search protocol to see if they’re covered by the warrant, then inventory the things being seized. In this case, there would have been another part of the process to make sure no attorney-client privileged materials were seized.

In the search of Trump’s house, at least 73 boxes appear to have been labeled (based on the highest box label number), but just 26 boxes were seized.

By all appearances, these two receipts stem from the same methodical search. For example, the documents listed as item 4 on SSA receipt are in the same overall inventory as everything else, but appear out of sequence. They likely bear some proximal relation to low-item numbers in the CLASS receipt — things like the Roger Stone clemency and the binders of photos. Perhaps they were all found in Trump’s office or residence. But they are on the SSA receipt.

The series of box labels crosses both receipts. For example, it appears that boxes A-14 and A-13, which appear in the SSA receipt, were labeled in close proximity and time as boxes A-12 and A-15, which are among the lowest numbered boxes on the CLASS receipt. But they got listed on the SSA receipt, where all boxes appear together as the final five items on the combined inventory, items 29 through 33.

I’d like to talk more about the search, but first let me spoil the punchline: One likely (though not the only) explanation for the two receipts has to do with the venue in which Trump’s suspected crimes were committed and therefore the ultimate destination of the seized materials, with the SSA receipt materials being sent to DC as evidence of 18 USC 1519 and the CLASS receipt materials being kept in Miami as evidence of multiple violations of the Espionage Act that occurred at Mar-a-Lago.

But let’s go back.

I believe this warrant is the totality of the search on Trump’s mansion. While File411 suspects there’s another warrant (or two), I don’t believe those authorize a search of Trump’s house, not least because Judicial Watch has only asked to unseal one, and Trump’s people will have told them what they wanted unsealed. Merrick Garland referred to unsealing the documents relating to Trump’s house, and I’d be surprised if he played word games to hide further search materials when Trump would literally have receipts to call out any such obfuscation. That doesn’t rule out that the other warrants identified by File411 were related searches, perhaps of locations where Trump’s stolen documents may have been moved, but I believe we’re looking at the totality of the physical search at Mar-a-Lago. Update, August 15: DOJ has now confirmed that this is an entirely separate ongoing investigation. Remember that lots of January 6 suspects live in Florida, so it could be something like that or an entirely different type of crime.

The warrant authorizes the FBI to search Trump’s office (the narcissist appears to have renamed it the 45 Office but it has been referred to as the bridal suite), all storage rooms (the one that Trump’s lawyers showed Jay Bratt when he visited in June is not identified by name), and anywhere else Trump or his staff might have stashed boxes or documents. We know from reports that that included Trump’s personal residence, but the FBI didn’t call it out by name. Curiously, the FBI made clear that when it said the search did not include spaces occupied by guests or other residents, they mean “currently,” as if there’s a room someone recently vacated that is of interest.

Attachment B, which describes the items to be searched for, is one of the things that may explain the two receipts. It starts by listing three crimes: 18 USC 793 (Gathering, transmitting or losing defense information, which is part of the Espionage Act), 18 USC 2071 (Concealment, removal, or mutilation [of official records] generally), and 18 USC 1519 (Destruction, alteration, or falsification of records in Federal investigations).

Despite the fact that every single leak to the press about the scope of the warrant claimed that two crimes were listed, “mishandling classified information” and the Presidential Records Act, those leaks were all false. The former was a transparent attempt to avoid saying the word “Espionage” and the latter is not listed on the warrant as a crime being investigated at all (though I would bet a great deal of money that it features prominently in the affidavit). 18 USC 2071, in this context, may serve as a proxy, criminalizing the removal of records covered by PRA. And one of the four bullets describing materials that can be seized, bullet c,  stems from PRA: “Any government and/or Presidential Record created between January 20, 2017, and January 20, 2021.” Because it would cover items implicated in the two other crimes, National Defense Information and evidence from Federal investigations, that bullet point serves as a larger umbrella in this search. If Trump tries to claim he declassified the items seized in the Espionage Act investigation, for example, the government will be able to say they still seized them lawfully given that bullet point and the inclusion of 18 USC 2071, because to still be at Mar-a-Lago at this point, they would have had to have been removed improperly from government control.

There are two bullet points scoping out materials relating to the Espionage count. Bullet point b authorizes the seizure of information about the storage of NDI or classified information.

Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material.

If Trump or his flunkies are charged under the Espionage Act, DOJ will have to rebut the claims being floated by Kash Patel and John Solomon that Trump declassified this material. One way to do that is to show that Trump or his lawyers instructed staffers to treat certain materials as if it was classified. If, for example, Trump put up post-it notes on his storage room saying “Danger: Sekrits. Keep Out,” it would prove that he was telling others to treat the documents with care. I’m only partly joking. We know there were efforts to prevent uncleared staffers from looking at classified information. Obtaining written proof of such instructions is one of the ways DOJ would prove that Trump did know this stuff remained classified. Even if those efforts were only enforced by his lawyers — the same lawyers who failed to turn over these materials in response to subpoena — it will be powerful evidence that those documents were being treated as if they remained classified.

The other bullet point authorizing evidence covered by the Espionage Act reminds me of Borges’s writings on classification.

Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes.

Effectively, this allows the FBI to seize documents with classification markings and then work out from there, seizing the box containing the document marked as classified, as well as the contents of the closet that a box containing a classified document was in. It’s fairly easy to understand why the FBI wrote it this way (and it may be tailored to overcome the justifications Trump made over the course of 18 months to try to retain certain materials). The President looks at — and in many cases, generates — a whole slew of things that are considered highly classified, but in a form that wouldn’t have classification marks on it, especially if he never shared it with a staffer. If Trump took notes with his Sharpie on a cocktail napkin during a phone call directly with Mohammed bin Salman, for example, it would not include classification marks, but it might be highly classified. So this bullet point allows FBI to seize stuff being treated the same way as documents that do have formal classification markings, which government classification experts can then apply the appropriate classification to.

How this might have worked in practice appears on the CLASS receipt. The second-most interesting item on the list (after the Roger Stone clemency that seems to have some tie to the French President) is the leather box in which the only documents inventoried as TS/SCI were stored.

Not all of these documents are TS/SCI; the inventory even notes that some are just classified. But given the way the warrant is written, the FBI was permitted to seize the entire box, which appears to contain Donald’s precious treasures, even if some of the documents in there are not labeled as classified. It may be that witnesses told the FBI of the existence of this box so the FBI knew to look for it. By seizing the entire box, the FBI would get things that might be even more sensitive than the TS/SCI stuff, but that don’t bear markings, like that hypothetical cocktail napkin with notes of Trump’s secret calls with MbS.

The thing is, these categories overlap. There may have led to some triage onsite about how to classify seized documents. I suggested that item 4 — documents — may have been stored with items 1 through 7 in Trump’s office or residence. If so, they could have been seized by proximal location. But they’re inventoried on the other receipt for some reason, potentially even taken out of a box or that leather case and seized separately as individual documents.

Similarly, boxes A-13 and A-14 were likely stored in close proximity to box A-15, which includes at least some Secret Documents, and box A-16, which includes at least some Top Secret Documents. So they could have been seized under the logic of proximity. But like item 4, they’re on a different receipt.

Which brings me to the final bullet describing the scope of the search (and back to my working hypothesis for the two different receipts, that the SSA receipt covers evidence of obstructive acts committed in DC). It authorizes the seizure of evidence of the destruction of records.

Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

This language comes right out of the obstruction statute, though leaves out the reference to “investigation[s] or proper administration:”

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

This part of the warrant, not the reference to the Espionage Act, was the biggest secret of the week. I was not surprised that anonymous sources from the Trump camp soft-pedaled the word “Espionage.” It’s why I was pushing for pressure on Trump to release the warrant. It’s what I believed Trump most wanted to hide.

But remarkably, Trump’s leakers were hiding this part of the warrant even more aggressively. In the entire week of post-search coverage, there was never a hint that obstruction was on the warrant, too. The “Expert Explainers” gaming out what crimes might be on the warrant completely missed obstruction. I did too.

We shouldn’t have. The coverage of the Archives’ referral of Trump to DOJ described his destruction of evidence even more prominently than it did his theft of classified documents.

The National Archives and Records Administration has asked the Justice Department to examine Donald Trump’s handling of White House records, sparking discussions among federal law enforcement officials about whether they should investigate the former president for a possible crime, according to two people familiar with the matter.

The referral from the National Archives came amid recent revelations that officials recovered 15 boxes of materials from the former president’s Mar-a-Lago residence in Florida that were not handed back in to the government as they should have been, and that Trump had turned over other White House records that had been torn up. Archives officials suspected Trump had possibly violated laws concerning the handling of government documents — including those that might be considered classified — and reached out to the Justice Department, the people familiar with the matter said.


Trump’s years-long defiance of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties, has long raised concerns among historians and legal observers. His penchant for ripping up official documents was first reported by Politico in 2018, but it has drawn new scrutiny in recent weeks because of a House select committee’s investigation of the Jan. 6, 2021, attack on the U.S. Capitol.

The Washington Post reported late last month that some of the White House records the National Archives turned over to the committee appeared to have been torn apart and then taped back together. The Post later found — and the Archives confirmed — that officials had recovered 15 boxes of presidential records from Mar-a-Lago.

As described, by the time of its criminal referral, the Archives had already found that documents that were responsive to the January 6 Committee’s investigation (and so, derivatively, DOJ’s investigation of Trump personally) had been “altered, destroyed, or mutilated.” DOJ would have started this investigation knowing that Trump had attempted to destroy evidence implicating him in January 6 (though we actually have evidence of him attempting to destroy or alter evidence pertinent to other criminal investigations, too).

By description, when Trump tried to destroy evidence, he did so immediately, in the heat of the moment, in the White House. For that reason, and because the known federal investigations — his attempted coup on January 6, but also his ties to Russia, his coercion of Ukraine, even his inauguration graft — were all predicated in DC, the investigation into Trump’s obstruction of those investigations would be in DC too. That’s why I hypothesize that FBI may have inventoried everything and then, when compiling a final inventory to share with Trump, they distinguished between the suspected crimes that would have been committed in Florida, by storing classified information improperly and refusing to return it to the Federal government, and the suspected crimes that would have been committed in DC when — on January 20 or before, including between January 6 and January 20 — Trump ripped up, flushed, burned, or tried to eat incriminating evidence.

Unless Trump were to waive venue (which he would never do), any prosecution of Trump under the Espionage Act would happen in SDFL, because that’s where he illegally retained classified information after the government asked him to give it back. But any prosecution of Trump for obstruction would happen where the investigations he obstructed were and where he ripped up evidence, in DC.

Item 4, documents, might just be documents that bore visible signs of destruction that had some identifiable tie to January 6 or some other known investigation. They could even be classified! The obstruction bullet point includes classified documents! But they would have been seized, first and foremost, because they were evidence that Trump was trying to impede an investigation or some other government function by destroying evidence.

That has one more big implication, which may be why Trump’s team tried so hard to hide that FBI was looking for evidence of obstruction. There were also leaks (including leaks from the government side) that nothing on this search warrant pertains to January 6. Technically that’s true. Obstruction of the vote certification and conspiracy to defraud the government, the most obvious crimes covering Trump’s conduct leading up to and on January 6, aren’t on the warrant. But as that coverage of the original referral we all forgot to read makes clear, January 6 is at least one of the investigations that Trump is being investigated for obstructing. If the evidence of obstruction is being boxed up and sent back to DC where such an investigation would be predicated, then the evidence would thereby become available to investigators, both for evidence of Trump’s obstruction of an investigation, but also for evidence of Trump’s conduct as well.

Oh. And if Trump were found to have obstructed an investigation into conspiracy by destroying evidence, it might extend the statute of limitations on that conspiracy.

I wrote a long thread yesterday about how Trump epically fucked up by giving DOJ grave reasons to come search his home. DOJ would never have searched Mar-a-Lago for materials Trump withheld in violation of the PRA. They probably would never have searched MAL for evidence he withheld regarding January 6. But Trump kept refusing to turn over classified information DOJ knew he had, some of it reportedly incredibly sensitive. Trump dared Merrick Garland to come get those classified documents. And in so doing, Donald J. Trump gave the FBI urgent reason to come into his home to seize — along with at least 11 boxes containing classified documents — the evidence about January 6 and other investigations that is so sensitive Trump tried to destroy it before refusing to turn it over to the Archives.

199 replies
  1. punaise says:

    Probably more of a sidebar matter, but from my particular vantage point I’m curious about the stuff re Macron. The Elysée declined to comment on the news:

    La police fédérale a également saisi des documents concernant le « président de la France ». Contacté par l’agence Reuters, l’Elysée n’a pas souhaité faire de commentaire sur ces « informations » qui auraient été en possession de Donald Trump.

    • Sparkedcat says:

      There is only one name in the receipt of items taken from Mar-a- Lago. Roger Stone. Then listed are items regarding the President of France. Macron is not named. I think this is the DOJ’s way of telling Trump and Stone that the DOJ knows what Stone did in 2017 in an attempt to influence the French presidential election in favor of Le Pen by leaking Macron’s hacked emails. I think the Russians did the hacking and gave the emails to Stone. This was an unsuccessful replay of what was a success during the 2016 American Presidential election when the Russians hacked the DNC.

      • nord dakota says:

        I thought it was kind of delightful that the Roger stone pardon was #1 on the second receipt. Doesn’t that indicate it was kept in a prominent or convenient location, to be indicated or waved around as an occasion may call for?

        • obsessed says:

          Does this mean that the seized Stone-related documents pertain to clemency-and-then-pardon of Stone that has already occurred, as opposed to an issued-but-not-yet-publicized pardon for Jan. 6 or the French email hack or something else?

      • punaise says:

        There were just a few months of overlap of the beginning of the Trump’s term with the tail end of François Hollande’s term (until mid-May 2017). And Macron has been president since then.

    • flounder_MA says:

      It doesn’t specifically say the current French President does it? My semi serious theory is it’s Sarcozy, because Trump has obsessed over his wife, Carla Bruni, to the point that he made up rumors they were dating at one point and Melania got plastic surgery early on in their relationship that made her look more like Bruni.

  2. Ravenclaw says:

    Brilliant. And you’re probably the first to spot this implication. I had blithely assumed the two sets of boxes were from different rooms, not processing the numbering system – or considering that third charge.

    One question, though. Documents showing visible signs of attempted destruction in the service of obstruction. If I have documents that would help to incriminate me and aim to destroy them, don’t I normally succeed? I mean, there are fires and shredders and cesspools galore. Unless I know that they have been catalogued and proven to be in my possession, but this stuff was all stolen before the archivists had a chance, right? There is something strange here – besides the perpetrator.

    • emptywheel says:

      Trump’s staffers would try to recover documents when he ripped them up. That’s how the docs known to have been sent to the Archives and then shared back with J6C were preserved: by someone taping the pieces back together or sending the fragments to the Archives.

      That said, the law covers stuff he tried to hide, too.

    • BobCon says:

      Sometimes alteration may have preceded distribution. People who know the legal risks of mishandling classified info may have refused to take anything clearly marked as classified info, and Trump may well have been in the habit of ripping off cover sheets and blacking out stamps prior to handing them to someone like Kash Patel.

  3. A C says:

    What was Mark Meadows burning in the fireplace, allegedly?

    “As described, by the time of its criminal referral, the Archives had already found that documents that were responsive to the January 6 Committee’s investigation (and so, derivatively, DOJ’s investigation of Trump personally) had been “altered, destroyed, or mutilated.” DOJ would have started this investigation knowing that Trump had attempted to destroy evidence implicating him in January 6 (though we actually have evidence of him attempting to destroy or alter evidence pertinent to other criminal investigations, too).”

      • Peterr says:

        quiet nature documentary narrator voice: See how Marcy lays out the bait, waiting for the bmaz to approach . . .

        Here he comes . . .

        closer . . .

        closer . . .

        and he pounces!

        • jhinx says:

          Perkins: As we approach the savana, the zebras seem nervous while lionesses circle. We’ll land the helicopter and Jim will venture out for a closer look.

          Jim: WHAT?

          • Mycotropic says:

            I lived and breathed Wild Kingdom as a kid and always thought that Jim must be a superhero or something because he just DID those things! I met Marlin Perkins once as a little kid in the 70’s, anyway; perfect reference!

          • P J Evans says:

            Marlin Perkins, as they enter a boat on Loch Ness: We’ll motor quietly, while towing Jim to attract the creature.

            (Friend wanted to use me to troll for the creature, when we were at Loch Ness. Water was cold and very brown from peat. About the end of August.)

            • I Never Lie and am Always Right says:

              I went swimming in Loch Ness once and ran into a huge block of cheese. Upon close inspection it turned out to be muenster. That’s when I knew the Loch Ness muenster really existed.

      • Marika says:

        Once he realizes he is really in trouble, then, and only then, he will pull out his checkbook and pay for a competent attorney. There are plenty around and they are very expensive. I doubt he is even paying the right wing TV personality/lawyers who have been speaking for him and representing him in cases he doesn’t think are worth spending money on like the defamation suit by E Jean Carrol. I still think he has not officially declared his candidacy because the RNC has reportedly told him they will stop paying any of his legal fees when he does. I wonder if the RNC forked over the retainer for his newest high powered attorney? It had to be substantial.

    • WilliamOckham says:

      If the clips I saw on Twitter are anything to go by, Bobb is merely a spokesperson (possibly with attorney-client privilege).

        • WilliamOckham says:

          Someone on MSNBC last night said that Trump has the worst lawyers in the country. My immediate thought was, you would think that, but I bet Alex Jones would beg to differ.

          • emptywheel says:

            Before Jan 6 is done Trump is likely to share a lawyer with Jones, hopefully Norm Pattis, who caused that error, who also reps Joe Biggs.

            • Ginevra diBenci says:

              Pattis (local star here in CT) did indeed sabotage Alex Jones. He’s a showboat, middle-aged-with-ponytail sort–not the type Trump usually goes for.

              Hiring Pattis would be a sign of true desperation.

      • grennan says:

        She may need an attorney of her own soon. She told Fox, “We returned everything we thought belonged to the government.”

        (Your honor, we returned the money that we estimated was the bank’s…)

  4. Sabine Farm says:

    Thank you Professor Wheeler for this brilliant analysis. Will prosecution of Espionage Act crimes require Grand Jury in Florida? My concern is delay. Thank you for your work.

  5. Peterr says:

    Curiously, the FBI made clear that when it said the search did not include spaces occupied by guests or other residents, they mean “currently,” as if there’s a room someone recently vacated that is of interest.

    I don’t know what the law has to say about search warrants on hotels, but it struck me as the FBI saying “we didn’t search the things belonging to guests.” That could be a simple polite word to reassure those guests that no one went through their things, or it could be a legal statement that the warrant didn’t cover guests, so they didn’t go there.

    • J R in WV says:

      Mar-a-Lago is closed for the summer slow season. The only people there would be either maintenance staff or Trump staff. There are no “guests” at a closed for the season resort, except perhaps someone Eric picked up at a local dance bar. /s

    • posaune says:

      I’m wondering if there is any significance wrt the warrant regarding the zoning and land use of MAL. It is NOT a residential property, but a commercial use property (and that was court-tested in FL, I believe — at the very least it was approved as such by the planning commission and historic preservation authority). I think that the planning approval denied permanent residency to DJT and limited him to a 60 day-stay per year, or some such formula. Bmaz, is there any difference in warrant production and service between residential and commercial properties?

    • Diviz says:

      Or a guest room they took off of revenue use to stash boxes away from the main storage room. Ugh, this simile is gross, but like putting military materiel in civilian spaces. “Oh, they wouldn’t rough up our guest areas. Let’s put it there.”

    • pdaly says:

      What if one of those guests, hypothetically speaking, was a visitor from a foreign country?
      Does the Secret Service have rooms in Mar-a-Lago?
      If, again hypothetically speaking, a rogue SS agent wanted to protect Trump’s stashed stolen documents from discovery and moved documents into their own chambers prior to the FBI search, then not searching the entire premises might mean boxes were missed.

      I thought I heard that Mar-a-Lago was currently closed due to hurricane season. Would there still be guests staying there in any case?

  6. TimB says:

    Thank you for this. Penetrating as always. And I note that tweets and analysis went on late into the Irish night, so thanks for hard work as well as tough minded work.

  7. Kevin Egan says:

    Sherlock Holmes lives! The most amazingly copious, convincing deduction from one tiny detail: a time-stamped signature on two receipts. Incredible and invaluable–thank you!

  8. jeco says:

    Fascinating insights Marcy,

    If the investigation is bifurcated with obstruction in DC and Espionage in FL would this mean separate trial locs or could they be consolidated?

    If MAL is being established as a separate crime location (espionage) I think that puts civil seizure more clearly in play. (Not that it’s needed but civil seizure section even specifies trafficking in nuclear technology).

    I think a legal light weight like Bobb could have strayed into becoming an active participant in obstruction and a handy trump fall-guy, “she assured me all required documents had been returned”.

    • emptywheel says:

      Yes, that’s the entire premise of this post. The investigation into Trump’s retention crimes is being conducted by the Washington Field Office (that part of the case number is visible on the warrant). But to actually charge Trump, DOJ would have to get an indictment in the jurisdiction where the crime occurred. And because a prosecution under 793(e) would prosecute him for retention — and, importantly in Trump’s case, refusing to give stuff back after he moved to Mar-a-Lago full time — it’d have to be charged in SDFL. That makes finding a jury unlikely to acquit the former harder, which is why Trump would never waive that venue.

      • klynn says:

        Why isn’t DC where the crime originally happened? Didn’t some of the crimes originally happen in DC once the truck was loaded and left the WH grounds? Or once documents were taken from a scif and never returned?

      • bmaz says:

        Maybe. But I would argue the unlawful retention was committed the second they loaded up the truck, which was in DC. The fact that an offense was continued in another jurisdiction happens all the time, but does not necessarily obviate the original jurisdiction.

        • emptywheel says:

          I hope I’m wrong!

          But I think charging Donny for retaining classified information AFTER handing over 15 boxes based on what was seized Monday is a far cleaner case, in part bc it eliminates any presidential prerogatives and post-dates the time when Biden chose not to extend briefings for Trump, effectively stripping him of clearance.

          • bmaz says:

            I don’t really know! But think that argument could be made.

            Adding, think I would file it all in DC and make Trump move to sever and move to SDFL under Rule 21. And then argue that if he did so move.

          • Rayne says:

            As the obstruction happened in Florida, not DC, I’m led to wonder if there’s at least one hidden 18 USC 1001 False Statements charge as well which also would be in Florida.

            • emptywheel says:

              This obstruction is limited to destroying evidence. DOJ would be VERY diligent about this bc of a recent SCOTUS decision. It’s not simple lying obstruction.

              • Rayne says:

                Agreed; wrt False Statements, I was thinking of the statement(s) which must have been made in person and in writing about the status of PRA and classified documents in June when Bratt was at Mar-a-Lago.

                • Ginevra diBenci says:

                  There’s also the Mar-a-Lago surveillance footage that got subpoenaed in June after Bratt’s visit. Whatever monkey business that revealed, it definitely happened in Florida.

                  • bmaz says:

                    To an extent that removes jurisdiction from that of the original crime and continuation thereof? How in the world do you think things are prosecuted across multiple jurisdictions? Y^ou are making this determination on what?

          • Gina B says:

            Does the fact that this was a continuing crime, a sequence of acts that started in DC and continued after the move to S.Florida, mean jurisdiction could also be properly in DC?

  9. gerontar says:

    A naive question from a long time lurker. How does TS/SCI information get to the president in the first place? And once viewed, how is it allowed to stay unsecured? It is seems to me there must be additional people who were aware that the information had not been returned.

    • Peterr says:

      Not a naive question in the least. I’ve heard at least two folks from previous administrations ask this very question in interviews and approach the same conclusion you did. They did caveat their remarks with “Here’s how it happened in the XX administration . . . but we all know that the Trump administration did things their own way, so my experience may not apply.”

    • phred says:


      EW, forgive me for reposting this from the previous post, but I showed up late last night to ask the following:

      “EW, here’s what I would like to know… there is supposed to be a chain of custody for classified information. So those responsible for maintaining that custody (presumably at the WH, but perhaps other agencies as well) should have noticed immediately when the documents disappeared. Who were those custodians? How did they let tfg waltz off with the docs? And how long did it take them to report the theft?

      Ordinary government employees would get in an enormous amount of trouble for not immediately reporting the loss (even briefly) of control of classified information. If those who lost the information in their custody to tfg didn’t get in trouble immediately, why not? And why did it take so long to get it back?”

      So now this morning I woke up wondering whether the post-election moves that Trump made in Nov. 20 at the Pentagon and other agencies (e.g., Kash Patel) might have been done specifically to put people in place who had custody of classified information and would be able to pass them to Trump, not reporting the removal of those docs, and having no one the wiser until the NARA started to notice.

      • emptywheel says:

        I think the incident with Mike Ellis, whether or not it’s related, is instructive. The document owners DID ID him taking numbered docs and went into a panic to try to get the docs back. Maybe they succeeded (because they were numbered). But at a time of great chaos, while people were packing boxes, they had to beg to get it back.


        • phred says:

          Thanks : )

          Ellis got caught, but one wonders whether Kash (maybe others?) did not. And if they were copying hard copy notebooks, who would know if the originals went back and continued to appear properly controlled?

          • emptywheel says:

            One thing that Maggie NYT seems to be pursuing is why a particular lawyer who quit on 12/18/20 quit was interviewed as part of this investigation. My guess is that’s one thing DOJ understands.

            • phred says:

              I’m sure DOJ is all over this. Once they have the markings, they will know exactly who the custodian(s) of the docs was/were. The custodian(s) will be in a world of hurt if they did not promptly report the loss or if they were careless in keeping track of others they gave access to who may have copied the material.

      • Spank Flaps says:

        The main reason Trump put Chris Miller, Kash Patel and Ezra Cohen in the Pentagon in Nov 2020, was to withhold the National Guard on J6.
        In DC only the President or the Secretary of Defense can deploy the NG, because DC is not a state.
        Also there was rumblings of declaring martial law, having the military seize voting machines etc.
        In a recent interview Jamie Raskin said if J6 was successful, Trump would have ordered the NG to ‘put down’ the MAGAs, and then Trump would have pretended they were Antifa (rather than admit he slaughtered his own people).
        All this is why Mark Esper was booted, he wouldn’t have gone along with any of this.

              • Yorkville Kangaroo says:

                Indeed, he should not.

                When I joined this illustrious group/blog/reportage site a few days ago I went over some of the recent articles. I noted that bmaz has excoriated Spank Flaps previously and, I thought, perhaps harshly.

                However, this post is exactly the sort of speculative nonsense that pollutes the main cesspools of the internet.

                I’m sure that I’ll fall foul of this from time to time but bmaz’s comment seem to be about making posters back up their claims with facts not spurious fever dreams.

                IF/THEN statements only hold when the IF portion is actually True.

                • bmaz says:

                  Raskin’s office was very helpful and nice the one time I talked to them. Very approachable. But not going to waste their time on this baloney.

        • greengiant says:

          Thanks for the Mark Esper node. Wondering if Esper has any more receipts? The wikipedia Trump quote, “Can’t you just shoot them?” regarding protestors …

    • WilliamOckham says:

      One, perhaps the most common, way is through the Presidential Daily Brief. There’s a great description in a chapter of a CIA monograph by John Helgerson which was published in October 2021. Trump received his PDBs in hard copy:

      …the PDB was sometimes created—whether in hard copy or on an iPad tablet—in multiple versions in order to limit dissemination of the most sensitive information and analysis. Trump was interested in these details. He elected to receive a printed version.


      The chapter on Trump is well worth reading as background for what’s going on now. Helgerson, former CIA IG, is a very careful writer and often is most eloquent in what he doesn’t say.

      • harpie says:

        Here’s an informative thread about that:

        9:46 PM · Nov 28, 2021

        THREAD: A wealth of new information about the intelligence briefings for Donald Trump and those around him as a presidential candidate in 2016, as president-elect in 2016-17, and as president has just hit the CIA’s public website. // Here are the most newsworthy details: [THREAD]

    • Drew says:

      In addition to these other comments, I would note that Trump takes his ideas of how to be President from Henry VIII (or maybe Henry II-“who will rid me of this turbulent…”). His sycophants wouldn’t disabuse him of that-and push back from somebody like John Kelly was of no avail.

      While previous presidents normally complied with rules, and used SCIFs, etc., extraordinary & emergency situations could lead to any of them ordering some variance from them to get essential work done. The President was the ultimate classification authority and all the decision making of the Executive ultimately rests in the President. For Trump the extraordinary situation was that HE was President and the emergency was any time he wanted something, no matter how fleeting the whim.

      I would expect the professional staff to push back on this, but their objections would be overruled and their choice was to resign their positions or get fired if they didn’t acquiesce. Alexander Vindman is the type I have in mind, others who didn’t leave the White House probably just gave in.

      So bringing SCI to the Oval Office at the command of the President might have been highly unusual, but the President could make that order. It wouldn’t have occurred to Barack Obama to question when a staff member said, “Mr. President, this document has to be viewed in the SCIF” but Trump would insist on it being brought to him, if he wanted to be eating his Big Mac & watching Fox at the same time.

  10. Bobby Gladd says:

    Trump #MAGApox World has the poignant GOP toadies.

    WE have Marcy Wheeler and crew.

    Were you Thinking in Bets Annie Duke, where would you put YOUR money?

  11. DavidO says:

    If the obstruction action continues a conspiracy, and extends the statute of limitations, then does the obstruction allow Garland to reconsider Billy Barr’s declinations?

  12. WilliamOckham says:

    The Case Id listed is WF-[REDACTED]. If I recall correctly, that means the case started in the FBI’s Washington D.C. field office. Which makes sense, given the referral from the National Archives.

    • Peterr says:

      Building on that WF prefix you note, I have a hunch that the more extended WTF was repeatedly uttered as the search unfolded, as in “WTF is this doing here?”

  13. John Paul Jones says:

    One of the talking heads on CNN yesterday said that both receipts had a case number (redacted) that began with “WF” meaning that the investigations were being run not out of Florida but out of the Washington field office, rather than out of South Florida. Was he wrong?

    • bmaz says:

      Not necessarily wrong at all, we just don’t really know yet. Easy to understand getting the warrant issued down there, but who knows past that. If it were up to me, I’d try to do any potential charges all in DC.

      • emptywheel says:

        They would have needed an exception to bypass SDFL for the warrant, one that even if they used it, would create another cause for challenge of the warrant.

        This was litigated closely in the Jeremy Brown Oath Keeper case for the terrorism related search of his home.

        But with Stone, they got the warrant in SDFL.

    • emptywheel says:

      That’s correct. They are run out of DC.

      But where an investigation is run and where a crime is prosecuted aren’t necessarily the same things.

      Plus, there’s good reason to believe the prosecutors for this are working out of Main DOJ and/or NSD

  14. SteveB says:

    Thanks for your illuminating work.

    I have a couple of questions re 793

    You have focused on 793(e), quite understandably because TFG has no colourable authority re the documents etc subject to MAL search and seizure after leaving office.

    But isn’t 793(d) also applicable to him and them? In that his unlawful retention of them, commenced by docs being made ready for transport from WH to MAL?
    If that is a viable analysis, then this offence commenced in DC, and the 793(e) offences subsequently committed were continuations of the offences originating there.

    Of course there may be reasons why it would be undesirable to complicate a case by introducing the legal elements re
    “lawfully having possession of, access to, control over, or being entrusted with any document,” to the mix of charges
    (And I also accept that my theory of culpability might be legally or evidentially flawed in many respects)

    But it occurs to me that there may be some advantages in considering 793(d) charges.

  15. Ddub says:

    It’d be really interesting to see (don’t know if the public will ever find out) when the docs were purloined. Was it a long term methodical theft, and/or a smash and grab in the chaos of the post J6 WH?
    I can hear the TV lawyers saying these cases are easier to prove and I’m thinking they don’t involve mens rea (at last!).
    Seems that also it would be a lot easier to get cooperating witnesses in essentially a chain of custody situation.

    • bmaz says:

      Oh no, two of the three statutes we are aware of arguably do require intent. I know it frustrates people, but most crimes do require intent, and they should.

  16. Vireo says:

    Following the release of the warrant, do we have any more clarity about the possibility that some of the documents pertained to nuclear secrets? After all the times he’s evaded accountability, I’m hoping, like so many others, that this time he’s done something so egregious that he cannot escape prison, or at a minimum, that his candidacy in 2024 is blown to smithereens…

    • Peterr says:

      Nothing direct.

      But if the documents seized included only unclassified or confidential documents, that would lessen or eliminate the possibility that documents that posed truly dangerous secrets were included. The fact that there were TS/SCI docs seized, while not confirming that they are nuclear-related, is something one would expect to see if they are nuclear-related.

  17. PeterS says:

    All the “A” items in the receipt follow a Box, so that e.g. 10A documents are in box 10. Except for 1 and 1A. I just assumed these were found in the same place (drawer, safe, cupboard or whatever), with no other connection between them. The FBI would take a box, but not I guess a piece of furniture. 

    • MattyG says:

      Interesting point. Maybe where 1/1A were found *was* important. If they were taped to the back of a painting or hidden n a secret desk drawer compartment – they may well have taken the furniture, or part of it, as well.

    • Drew says:

      I read those “A” items as bullet point descriptors of some of the contents of the container in question.
      Although there are ALSO boxes labeled “A-16” etc, which I take to be existing labels, perhaps put on at the time of moving from the White House. That sort of label is used to mark either the location where the material started, or, more likely in this case, where they were headed-i.e. Trump’s office & environs as opposed to offsite storage or Bedminster.

      The number order on the index is very likely the order in which they searched the premises and it looks like they started in Trump’s personal office.

  18. Jamie Jobb says:

    No documents were found at FPOTUS golf club in West Palm Beach, which is on the mainland.
    Not on the ocean, as is the club where the documents were found but no golf holes exist.
    Also know I am flooding GOP with this:
    They still make rope: https://www.history.com/this-day-in-history/rosenbergs-executed
    also this obvious one:
    The FBI has much expertise at this forensic science:

    • Rayne says:

      First, Mar-a-Lago *is* a golf resort. That’s how it’s marketed: https :// www. maralagoclub .com/golf (remove blank spaces)

      Second, point taken about the physical location of golf course buildings versus Mar-a-Lago, the site originally owned by Marjorie Merriweather Post. Trump’s residential space is at Mar-a-Lago, though.

    • bmaz says:

      Eh, the golf course versus residence is irrelevant; the place to be searched was identified in the warrant attachment. As to the breathless DKos thing, I find that hard to believe as extensive fingerprinting documents might tend to damage them, and you would not know when the prints were deposited anyway.

    • P J Evans says:

      If they aren’t DKos staff, they’re just people talking. DKos is only responsible for its own staff people.

    • Peterr says:

      Note to newcomers at Emptywheel:

      All posts should be presumed to have material that may be dangerous to your keyboard, screen, or your electronic device as a whole. Put down all beverages and swallow anything in your mouth before reading. Neither Emptywheel, its authors, or its commenters are responsible for failure to heed this warning.

    • Savage Librarian says:

      MAGA Groupies: Sekrits

      General Public: Secrets!

      Legal Community: Seek writs.

      Donald J. Trump: Seek Ritz!

      • KP says:

        As a historian, archivist, and ultimately a librarian …….. ^5
        (did a bit of everything, primarily a “Head Cataloger,” but absolutely LOVED Reference, and ugh Admin just takes one away from the fun stuff. But when asked …… *sighs* … we do what we think best for the institution, and how best we might mentor, and provide the tools for staff to then better help others. Well, that’s how I saw things. Long retired now, so of course i’m half as smart as i was … but i was older then, i’m so much younger than then, now :D

  19. klynn says:


    Will there be a need/requirement to share the French election notated docs with French authorities now that there is public awareness?

    I’ve read in French publications today the response by French Police is, “No comment.”

  20. jeco says:

    Could FBI be running FISA actions concurrent to what we know about with the subpoenas and search warrant. If FBI were truly concerned about nuke info & national security etc. FISA site shows 1000 or more actions each year, I’d expect something like this would make that cut!

    No mention of any electronics devices in the inventory, wouldn’t there be concern about electronic copies of these docs?

  21. Frank Probst says:

    It looks like part of the defense here will be, “If it was at Mar-a-Lago, then I Insta-declassified it before it left the White House, and my staff/attorneys/wife just forget to cross the markings off of the papers.” The warrant certainly covers documents that he wasn’t fully-empowered to Insta-declassify, but it doesn’t say whether or not any were recovered, so we won’t know until/if something comes out that concerns those.

    So how much of this would he be able to wriggle out of with this defense?

    And then throw in the totally contradictory defense of: “I didn’t turn over those documents, because they were SO Top Secret that only I was allowed to have them.”

    Bobb will obviously be the first one under the bus here. There’s probably a lot of cannon-fodder that will come after her. (Apologies for the mixed metaphors.)

    Given all of that, do you have a guesstimate as to whether or not there’s likely to be something that a prosecutor would potentially charge here? PRA violations won’t be charged if that’s all they’ve got. I doubt that PRA violations plus obstruction would be charged alone, either. So what’s left?

      • Drew says:

        Isn’t Trump’s alleged declassification pretty irrelevant if a)there’s no record of it being done or parties with need to know being notified and/or b) The appropriate agencies notified Trump and his attorneys (via DoJ) that specific items were classified and said classification had been affirmed by the appropriate classification authorities?
        Can’t documents be classified retrospectively and clawed back?

          • Yorkville Kangaroo says:

            Firstly, there is no ‘insta-declassification’. There is a very strict procedure that needs to be followed to declassify a document or article and that would include POTUS. And, as mentioned, it was (hopefully) re-Classified by Biden upon signing any particular EO (did he?).

            Secondly, simply doing a physical thing (such as taking off the cover sheet) to effect the appearance of a change of status of a Classified document would, in and of itself, be falsification of a document, no?

            Lastly, for bmaz, if The Donald attempts to shield any of his personal malfeasance under the guise of Trump Inc. would he then fall foul of Sarbanes-Oxley?

      • earlofhuntingdon says:

        Bobb might now have time to reflect on what “due diligence” and “know your client” requirements are about.

        Lawyers are among the first people Trump throws under the bus and refuses to pay, and to whom he refuses to tell the truth, the whole truth, and nothing but the truth – a standard Trump has never adopted and which he considers a sucker’s game.

  22. Jeff says:

    I am convinced the Saudis rewarded Donald for secrets he gave them by helping him destroy the PGA Tour because they pulled out of Doral when he became President.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Jeff” and “Jeffrey.” Thanks. /~Rayne]

    • Yorkville Kangaroo says:

      While I agree that The Donald certainly has skin in the game vis a vis LIV and is doing it in part as a rebuke to the PGA you don’t need nuclear secrets to effect that transaction. Merely making Bedminster available at ‘attractive terms’ completes the transaction.

      • Rose says:

        Yep, hotel cash is king (and Trump’s preference, I would guess, the sort of basic transaction he likes).

  23. Max Debord says:

    Not forgetting “those that from a long way off look like flies” from JLB”s classification.

    [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 last as “KAJ.” Thanks. /~Rayne]

  24. Crying Havoc says:

    is any thought being given to searching for missing documents in Trump’s New York residential properties?

    • Drew says:

      I’m sure that investigators think about such things (by the way, Bedminster, which is in New Jersey, not New York, is the most likely venue) but they would need evidence that documents were in those locations AND that their contents was worth the massive trouble involved. I’m personally hoping that the State of New York will padlock Trump Tower over the various civil and criminal troubles of the Trump Organization, but I’m not holding my breath.

  25. Randy Baker says:

    Does this provision of the espionage act require the matter not returned on request be classified?
    (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

    • pedro says:

      “But Trump kept refusing to turn over classified information DOJ knew he had,”

      Perhaps I missed it, but were is the reporting that trump was refusing to turn over classified information?

      [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 and it’s inadequately differentiated. You have 10 previous approved comments here as “Pedro P”; please revert to that username. Thanks. /~Rayne]

        • Pedro P says:

          Yes, but is there any reporting that Trump or his lawyers were refusing to give material back? Trump is saying they gave everything that was asked for in January and June. Has there been anything out in the public sphere to prove this wrong?

            • Pedro P says:

              So the June subpoena and the August search warrant were executed because Trump and his lawyers were refusing to return classified material. I didn’t realize that. Consider my angle closed.

  26. Steve S says:

    My assumption, based solely on SSA vs SA, was that the items on the CLASS receipt were seized as evidence of potential prior criminal activity, while the SSA items were seized due to ongoing national security concerns. That is, if there were “nuclear documents” they were in the boxes the SSA took.

    • emptywheel says:

      That’s my alternative hypothesis. They took everything covered by Atomic Energy Act on a separate receipt so they could skedaddle it back to its owner.

      • Steve S says:

        Your observations about the significance of an SSA are what led me to that assumption. I’d bet the leatherbound box contains “memorabilia” about some military operation, stuff he isn’t allowed to keep but maybe not a national security risk. Not so secure that an FBI agent wouldn’t be authorized to inventory it, unlike the stuff that’s alleged to have been there…

        • timbo says:

          There would be FBI agents with sufficient security clearances conducting the raid on Mar-a-Lago in all likelihood.

      • cmarlowe says:

        My knowledge on this is imperfect, but wouldn’t anything nuclear related under the Atomic Enregy Act be referred to as RD (restricted data)? This is a type of classification the president cannot undo.

        • Yorkville Kangaroo says:

          Descriptions on legal seizure documents (and others) tend to be as vague as possible so as to be able to effect the most broad interpretation of the search. If the FBI could have gotten it past a judge to state ‘Documents’ they would have run with that. Calling something Classified is more restrictive but not as restrictive as saying RD allowing them to pick up anything listed higher than that.

    • Puriya says:

      In support of this idea, could it be that the SSA items are all those that are sensitive but not explicitly classified as such? And hence the ones that he could not have declassified? (I think I read on this blog that “National Defense Information” need not be explicitly classified; I promise I will find the link if bmaz insists; I’ve read Charlie Savage say stuff like this at the NYT too.)

  27. Badger Robert says:

    Ms.Wheeler’s paragraph that begins: “That has one more big implication…” seems to be the key. This search is part of the overall effort. The documents sought may include 01/06 documents as I suggested from the beginning.
    The DofJ was allowing the former President, and his bad lawyers to entrap themselves. One defense after another was dismantled.
    The inclusion of 18 USC 1519 charges gives the warrant an appearance of an investigation that will lead to an indictment, as opposed to a mere effort to recover documents.

    • bmaz says:

      There is absolutely nothing to suggest this was January 6 related. And, no, the warrant does not imply there will be an indictment forthcoming. There may be, and there may not be. Warrants are executed all the time on people that end up not getting indicted. As usual, people are getting WAY ahead of themselves.

      • David F. Snyder says:

        You think they’d learn by now. Trump clearly has some skill in casting reasonable doubt as to his culpability. That said, I think he severely underestimated Merrick Garland’s skill set.

  28. Brooklyn Joe says:

    This is a tempest is a teapot. Despite breaking several laws I cannot imagine a unanimous jury convicting Trump of anything. Trump is reckless, and in a way his recklessness is likely to get him off. At least one juror will find it charming. I can’t stand Trump, but this potential prosecution is ripe for jury nullification. I pray that Garland’s warrant finds a smoking gun, but so far it smells like lox, fishy. A simpler and more effective procedure would have been for the National Archives to have made a press release release: Dear Mr President, please return this secret stuff locked up in your basement. That would have put Trump on the defensive without the drama surrounding a raid. But to be clear, I know serious laws were broken, but I’d like a dollar for every misuse of classified stuff. No matter how serious, if the stuff did not get away the defense will be no harm no foul. This prosecution has the potential for prosecutorial over reach and I hope they don’t take the bait. Trump would relish the opportunity to defend himself. The Georgia investigation has much more promise. There you have intent. In the basement not so much.

    • bmaz says:

      This is complete nonsense. A jury could easily convict Trump, especially one in DC. And, no, NARA would never have “made a press release” over heavily classified material, that is beyond ludicrous. No, Trump would not “relish” charges, that is also ludicrous. The “Georgia investigation” is far from promising, and it is being run by a political hack trying to climb the political ladder. You clearly do not know jack about what does, and does not, constitute criminal intent.

      This appears to be your first comment here. We demand better than that. Be better.

      • grennan says:

        “…especially in D.C.”

        Right wing asstercasters have long implied, with pretty overt racism, that (perceived) high minority populations are what would taint a Washington jury pool for them and for Trump.

        But now that specific charges might involve classifications, security clearances, etc. the Washington jury pool would have a very high percentage of folks who’ve either encountered clearances first hand (even janitors in federal buildings need at least a minimal clearance depending on the area they clean) or they know someone who has.

    • earlofhuntingdon says:

      Simple negligence, stupidity, willful ignorance, laziness, and brazen openness are not much in the way of defenses to criminal wrongdoing. Certainly not for the crimes being investigated here. Nor do they account for Trump’s daily diet of viciousness, vindictiveness, and greed. But they are the sort of thing Faux Noise would tout to its uninformed audience as a winning strategy.

    • Drew says:

      We librarians and archivists don’t operate like that. We ask politely and directly. We document things and write them down. If there’s a problem we take action like cancelling someone’s library card, or referring them to prosecutors. Maintaining the confidentiality of our users is so important that we would never try to use publicity to get our way.

      N.B. Around the time that the Patriot Act was adopted, librarians were so concerned for patron confidentiality, that most library circulation systems were tweaked so that, once books had been returned, it was impossible to retrieve a history of what an individual patron had checked out. This was an intentional modification, not a lack of fanciness in the technology available.

    • cmarlowe says:

      >> but this potential prosecution is ripe for jury nullification.

      Guy Reffitt, Matthew Bledsoe, Dustin Thompson, Thomas Robertson…

    • Yorkville Kangaroo says:

      I have to concur with bmaz.

      I get that we have all become somewhat jaded as we watched the Teflon Don waltz away from every malignant act he ever perpetrated relatively scot-free but this is hardly ‘tempest in a tea pot’ stuff. In fact, to my way of thinking, this is exactly the sort of unforeseen stuff that gets criminals trapped constantly. Remember that most organised crime gang members are skewered by the IRS and not the FBI.

      I’m not at all sure what the you mean by ‘ripe for jury nullification’ and why, exactly, does the warrant smell fishy to you? Of ALL the warrants issued by the DoJ THIS one would have to be the tightest one they EVER wrote, unless you think they’re just plain stupid.

      As for The Doanld ‘relishing’ the opportunity to defend himself the guy would do anything and everything, including selling out his ‘very attractve’ daughter, to keep his orange ass out of a courtroom.

  29. retired railroad switchperson says:

    How are top secret materials handled as evidence to a grand jury, or at trial? Do I need to reread all the Josh Schulte posts or is there a simple answer?

  30. Jharp says:

    So then.

    Is it correct that since Trump stored the stolen loot at Mar a Lago threat the feds can seize the resort because it was used to commit a crime?

    And it seems to me that some folks have their shit confiscated even if never convicted of a crime.

    Thanks in advance.

    • Joe S. says:

      There is no general federal law of civil forfeiture. Each forfeiture authority is linked to a specific crime, or a specific set of crimes. The nature of the linkage is not standard, either. Sometimes, the property has to be proceeds of crime; sometimes an instrumentality; sometimes whatever Congress decided one day. IANA(forfeiture)L, so I won’t try to tie the crimes Trump is suspected of with forfeiture authority.

  31. punaise says:

    via TPM, I doubt this cuts the mustard:

    Some interesting and absurd but still noteworthy events overnight. Trump’s representatives, at least for the moment, have settled on a story which is that he had a “standing order” that any and all classified material he took home with him to the White House residence was “deemed” declassified. So in fact, none of the materials in question are classified and none of it matters.

    The best I can draw from this is that the ex-President and his entourage are in a state of implosive panic over the events of the last 72 hours. There was certainly no such “standing order” which will become clear in short order. This also isn’t the way classification works.

    These sound like panicked claims of someone improvising without the benefit of legal counsel. What I draw from this is the real facts of the case are likely worse than they appear.

    • Frank Probst says:

      Has Trump himself come out and said this? Or has he gone dark for now? I haven’t seen anything since the warrant and attachments were released, but I may easily have missed it, and I don’t have a Truth-whatever account. I think this is what they’re going to end up running with, but so far, it looks like a desperate trial balloon.

      • Frank Probst says:

        It can lead you to a very bizarre conclusion about criminal intent, though, which goes something like: “I didn’t think any of this was sensitive material, because I knew it was being Insta-declassified as soon as I touched it.”

      • earlofhuntingdon says:

        That ignores the frequent briefings all these people would have received regarding how to handle USG property and documents.

        Not even Trumpian levels of willful ignorance would compensate. It would require a credulousness similar to that needed to believe the fantasy that Trump took work home with him at night that he wanted to finish before the next morning, er, midday. LOL.

      • Yorkville Kangaroo says:

        Nothing much coming out of any of The Donald’s legal ‘team’ cuts mustard. Cheese perhaps?

  32. Frank Probst says:

    There’s probably a very good legal reason for this, and I just don’t know what it is:

    Why didn’t they seize all of the surveillance video, too? It’s clear that the government has had access to SOME of it in the past. Why not take everything that’s left?

    • Drew says:

      I’m not sure they would want that much useless information. Our building has ~12 security cameras that are loosely monitored by the front desk 24 hours a day. Most of it shows people going in and out of doors punctuated by hours of empty hallways. I’m sure Mar-a-Lago has lots of that. Most of what they were looking to see was who entered a specific room that had little traffic. But 25 or 30 cameras with people going everywhere? Think of how vast the discovery over the Capitol riot has been-that’s just one day.

      • David F. Snyder says:

        Makes total sense, especially given Patel’s public statements after he was given access to the official archives — he seemed to admit that he had been in that unofficial archive. It will be interesting to me to find out if he entered the locked basement before the granting of access. We’ll see.

        • Pacific says:

          According to NYT:
          The Justice Department subpoena was for surveillance footage
          from Mar-a-Lago recorded over a 60-day period, including
          views from outside the storage room. [T}he footage showed
          that, after one instance in which Justice Department officials
          were in contact with Mr. Trump’s team, boxes were moved in
          and out of the room.

          That activity prompted concern among investigators about the
          handling of the material. It is not clear when precisely the
          footage was from during the lengthy back-and-forth between
          Justice Department officials and Mr. Trump’s advisers, or
          whether the subpoena to Mr. Trump seeking additional
          documents had already been issued.

  33. bawiggans says:

    I’ve been trying to imagine the process by which the documents Trump stole were selected and by whom. I can’t see him personally spending time near the end choosing this document or that to go into a box. There must be others who were running the process for him.
    • Who are they and what was their charge?
    • Are they still working for him?

    Is there any overall coherence to the recovered material? I do understand that the documents are subpoenaed in response to demonstrated probable cause that specific laws were violated and the material will be evaluated for its relevance to those laws regardless of whether its totality has some kind of “shape”. I suspect courts will be most interested in the “trees” but as a citizen I am also interested in the “forest” and I hope that we will get at least a glimpse of it if it exists.
    • Was this all just random stuff Trump had been squirreling away for a rainy day?
    • What were the selection criteria given to the document pullers in the White House?
    • Is this an organizational documentary infrastructure for supporting a constellation ongoing and future grifts?
    • If taking the documents was meant primarily to hide incriminating evidence, why didn’t he just have it torched?

    • Drew says:

      Somewhere I read that Cassidy Hutchinson testified that Trump was frequently seen with a cardboard box that he’d put stuff in taking it to the residence.

      Trump is sloppy, slovenly and chaotic-there’s no reason to think he had a coherent plan–or that he assigned anyone to make and execute such a plan. It seems more like he kept certain things that he regarded as trophies and really wanted to have with him and that he also grabbed stuff that he wanted to keep hidden from others. Probably over 4 years that became quite a lot of stuff.

      As Dr. Wheeler points out, the description of him destroying stuff is always in the moment, ripping something up in a fit of pique and disposing of it. Otherwise he just took it and hid it–likely indecisive about whether he or someone else might need to look at it again. That’s how stuff piles up on people’s desks. We had to move our library into storage. A temporary cataloger was sorting through piles of junk in the attic and discovered a very important 19th century letter that should have been cataloged into the archives 20 years before. However, it wasn’t straightforward how to do that and it had been put on a problem pile and when that cataloger left the library the contents of the top of their desk was cleared off and moved to the attic. I’m not putting this forward as best practices, but of what often actually happens.

      I think the organization and selection of these items is likely to approach randomness for anyone who is not immersed in the logic of Trump’s mind. (Though it might include entire organized binders or file folders or top secret reports)

  34. Lorenz David says:

    Thank you to Marcy and this whole community for the work you are doing. I gain a lot of knowledge and insight here.

    A question for the lawyers: Does the signed letter from Trump’s lawyer attesting that all classified documents had been returned (prior to the warrant) create for the lawyer any criminal exposure?

  35. morganism says:

    I would be very curious if he had taken an FBI internal briefing about who had changed the dates on the Flynn case….and those blue sticky tabs were being done by an insider, in multiple cases, right?

  36. Fancy Chicken says:

    Dearest, and may I presume, slightly exhausted, Dr. Wheeler,

    I’ve just had the luxury of spending about 3.5 hours reading your most recent posts, links and comments. Bravo, you constantly provide the analysis that is lacking in MSM and “prestige” media.

    Please expect another donation through the Cash ap. I hope that your coffers are filled to the brim for the work you are sharing with us. Thank you.

  37. IANAL on UWS says:

    Continued profuse thanks to Dr. Wheeler et al for the educational value provided. This is one fantastic community.

    For the IANAL types: As noted above, the possibility exists for charges in FL and DC. In the event of multiple trials for the same defendant(s) in multiple courts, how is sequence determined?

    Those above criminal cases would involve DoJ. Is a similar sequencing procedure involved in the event of criminal and civic cases?

    [PS bmaz: this is educational, not wishful thinking.]

    • bmaz says:

      Honestly, it is just too early to know. But, if they are bifurcated into two jurisdictions, I would expect DC to go first.

  38. Joseph says:

    I read that very differently. I assume the labels (A-1 through at least A-73) were ALREADY on those boxes, and so the FBI described them using their existing labeling. The FBI found and seized only 25 of the boxes so labeled. The warrant extended to boxes and documents kept with or near documents specifically described in the warrant, so if the other boxes had been around, they would also have been taken. Reportedly about 15 boxes were returned to the archives earlier in the year. That leave at least 33 boxes from the A-1 to A-73 series still unaccounted for. Where the hell are the rest of those boxes???

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Joseph” or “Joe.” Thanks. /~Rayne]

  39. foggycoast says:

    based on his his notorious disinterest in reading documents, i’m still finding it difficult to believe that trump personally reviewed and selected the stolen items to be boxed and transported. he may very well have agreed to store them but what if he did not even actually know what was in there? does that change the charging scenario? i’m highly suspicious of kushner because because of his ties to saudi arabia and the possible interest and value of if the was weaponry, technology and other information such as relating to kashoggi. they would be would worth say $2 billion?

    • Pragmatic Progressive says:

      It is unfathomable that 45 actually looked at everything he took before he took it.

      We know Kash Patel said that Govt Svcs Admn personnel packed up 45’s things, and claimed, thus “it’s not on him,” but in reality it probably looked more like 45 pointing at a room or in a direction and telling the movers to “pack up everything over there.”

      But to be clear, the acts of (perhaps removing,) storing, retaining, mishandling, etc. the material would still be chargable.

      It is entirely possibile that the government actually managed to claw back material 45 had not yet ingested. If that happened, it would explain the howling about evidence planting.

      None of that however impacts what crimes were actually committed or what can be proven. You might think of it like running into a bank with a pillow case and a weapon drawn. Once you go that far, it doesn’t matter if you demand 100 crisp 1 dollar bills and you have every intent to repay the bank plus interest, whether the teller puts hundreds, pennies, pesos, or euros in the sack, you still just robbed a bank.

  40. Badger Robert says:

    Its all one investigation. The actual violence of 01/06, the renewed mob style threats of more stochastic violence, the epidemic of stochastic murders, and the very real threat faced by LE and prosecutors in dealing with criminality, its a continuous stream. In some ways Trump is forcing Garland’s hand. Its becoming more like mob prosecution and less like a political dispute every day. For Trump, the politics is just cover for his threats of violence. Arguing about some documents is a distraction from the violence. And the documents cannot be separated from the attempt to cover up who was involved in 01/06.
    Its about violence now. And the Republicans have adopted a reinvigorated Lost Cause mythology to hide from that.

  41. viget says:

    Sorry if this has been answered before, but even *if* Trump declassed the docs on Jan 19th 2021 or whatever, couldn’t the Biden admin have subsequently reclassified them?

    And maybe the DOJ sent a letter to that regard?

    I just don’t think the declassification story, insta or otherwise really matters with such sensitive documents…..

    • Legonaut says:

      Agreed. If I’m reading the cited statutes correctly, they don’t depend on the documents’ classification, or whether Trump knew their sensitivity, or anything like that. The bottom line is it’s Trump’s facility where the documents were found; he had control/ownership, and thus the responsibility. The rest is just noise.

      Bravo to FBI for the patient exhaustion of all avenues short of a search; whether it was reluctance or otherwise, Trump is effectively boxed in. (!) Hence Marcy’s Twitter thread about Trump’s fucking himself over by forcing them to search his property.

      If the law is to be equally applied, Trump’s goose should be well and truly cooked. So much the better if a few abettors are underbussed along the way…

  42. viget says:

    So…looking at the receipts, there are likely 2 different case#s at WFO.

    One, likely the class receipt, is almost certainly for the NARA-referral predicated investigation, which as Marcy says is probably for 793 violations. But I bet that’s all it is for.

    I think the other investigation likely has nothing to do with NARA, but rather with Trump’s penchant to destroy documents, hence 2071 and 1519. In fact, since 1519 deals specifically with gov’t documents as part of an investigation, perhaps these were DOJ/FBI files that were inappropriately stored there? And maybe some he tried to destroy?

  43. BNA says:

    If they searched a room which had been recently occupied, could it be that boxes had been stored in a closet in that room…..where anybody who occupied the room might find them?

  44. AirportCat says:

    Apologies if this has come up elsewhere and I missed it, but I see that Trump’s team is now claiming (story is on Fox, sorry, will not link) that some of the documents seized are protected by attorney-client privilege and/or executive privilege. The story lists the items allegedly so protected and it appears to be coincident with the SSA list. I would be very interested in what the smart folks on this site make of this claim.

    • AirportCat says:

      Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

      • AirportCat says:

        Thanks. It did seem like more misdirection and nonsense from the Trump camp, but I thought it was possibly telling that they specified the documents on the SSA list, perhaps because what is in there is worse. If I understand the implications from this post correctly, these documents may be relevant to the possible obstruction charges?

  45. Douglasss says:

    Thank you so much for all the analysis and writing on this topic. It’s been very helpful. You made the point above that the PRA statute and the Espionage Act statute could both be about the government’s interest in recovering federal documents. Do you believe the obstruction-related statute puts this search firmly into the “we are considering criminally charging 45” frame as opposed to “we just wanted our records back”?

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