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

Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

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.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

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.


Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

  • One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
  • Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
  • While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
  • I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

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

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

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

Trump’s Stolen Documents

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

[from Peterr] Merrick Garland Preaches to an Overseas Audience

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

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

Merrick Garland Calls Trump’s Bluff

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

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

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

The Likely Content of a Trump Search Affidavit

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

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

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

165 replies
  1. MT Reedør says:

    Can’t help but think that unless chain of custody is solidly established, all of those documents (and more) pulled off I-95 and were all duplicated before they ever got to Florida.

      • Wajim says:

        We wish, and perhaps eventually will have. The speculation, however, goes to motive, as you would well know. That, to me, as a well-read legal layperson, is the essential question, and there doesn’t seem to be a very long list of possible motives. Appreciate any education you may provide on this issue, bmaz

    • rip says:

      Agree. At least there would have been some mass copying being done in the trucks as they sped south. Since the trump family was so friendly with RU, KSA, NORK – I’d think the buyers would be clamoring.

      It sounds like some of the documents might be worth more than a few billion of some currency.

  2. L. Eslinger says:

    There have been reports that security camera recordings, which have been obtained by the government, show people moving materials in and out of the basement storage room – in some cases, shortly after communications with government representatives.

    Hopefully, given what has transpired this past week, one or more of those actors will suddenly feel compelled to share what they know about this activity and whether there are more, as-yet un-recovered documents.

  3. AirportCat says:

    This post addresses exactly what I was wondering at the tail end of the comments on the “two receipts” post: what is it about the SSA documents that apparently has the Trump camp so worried? I expect we will learn in due time, but the thought that the Trump camp seems to think it could be much worse than charges under the Espionage Act certainly gives one pause.

    • emptywheel says:

      We agree. A huge puzzle. I’ll go back and look what you said, but I’d love to hear your thoughts.

      • AirportCat says:

        I really have no clue. I just thought that the sudden bleating on Fox about attorney-client privilege specifically about the SSA docs and NOT the CLASS docs was weird and possibly significant. I come here not because I know anything, but because I don’t and I wish to learn.

    • Badger Robert says:

      That might because the cover-up creates the crime fraud exception and implicates attorneys. And the SSA material may include documents produced by Cipollone and Philbin to expel themselves from the obstruction effort, which documents are incriminating. That would be more likely if the attorneys have already testified that they created the documents and gave them to Trump. The GJ knows the documents existed at one time and the witnesses know what they contain.

  4. dd says:

    It’s the silence of whatever lawyers are left; one suspects none competent to deal with these issues so complex one would need the top tier to deal with the complexities. So far exactly zero top tier lawyers and so it may be near the end. One needs amazing lawyers to deal with these issues and amazing lawyers never like walking into the mess of 4th tier lawyers because there is no path for an accurate plan forward.

      • AirportCat says:

        Would the RNC be picking up the tab for this? From ABC News:
        “The RNC has so far paid three law firms on behalf of Trump, paying $328,000 to NechelesLaw LLP, $200,000 to van der Veen, Hartshorn and Levin, and $172,000 to Fischetti & Malgieri LLP, according to its recent disclosure filings. The Washington Post reported that the RNC has agreed to pay up to $1.6 million of Trump’s legal bills.”
        I assume those amounts are for separate cases? At some point, wouldn’t the RNC just decide to cut their losses?

        • bmaz says:

          I have no idea. Do suspect that that dynamic may be why Trump is delaying formally announcing he is running for 2024, but just do not know.

        • Yorkville Kangaroo says:

          Likely. The RNC have said they won’t spring for anything post-announcement but they’re on the hook until then.

          The Donald will do as little spending of his own money (his own…ha!) as possible.

        • rip says:

          I can’t imagine that $1.6M will cover anywhere close to the legal bills for this particular case. Let alone all the rest of the charges against him and his family.

        • emptywheel says:

          At some point DeSantis and others are going to call a halt, especially with DeSantis on the ballot in FL this year.

      • dd says:

        No they will not do it for enough money. Sure the lower tier maybe but no one at the top will risk reputation. Reputation and integrity is what makes the top tier.

        • bmaz says:

          Yes, they will. You clearly do not know jack about criminal trial defense lawyers. They are not silly people on the internet, they will work for enough money. And they do.

        • TooLoose LeTruck says:

          I was vaguely familiar w/ the name before this and definitely recognized Johnny Spain’s name in the article…

          There’s an obit in today’s Sunday SF Chronicle for him… funny… since I’ve become a regular visitor, and reader, at this site, I find myself starting to know the names of more and more noteworthy lawyers…

          And I recently bought a student copy of ‘Weinstein’s Evidence Manual’, just for my own edification…

        • bmaz says:

          Very cool as to Weinstein’s. You can learn an enormous amount there, but more importantly have it as a constant reference tool. Evidence, and the admissibility, thereof is a huge and important subject. I know you have seen me and Marcy talk about it for a long time, but it really is critical. Exactly why, when people say “we know this!”, I say, sure, but how are you going to get it admitted in a trial? It is not always that easy, and there has to be a foundation laid.

        • TooLoose LeTruck says:

          I have to say, at first glance ‘Weinstein’s’ looks extremely interesting… I’m really impressed with how… exacting… the language and definitions used are… what fine degrees of gradation are called for…

          It’s making me think things thru better and choose my words more carefully…

        • TooLoose LeTruck says:

          “… and there has to be a foundation laid”

          Yes, indeed!

          Reading this site is making my own thinking sharper!

        • bmaz says:

          Weinstein’s Evidence is fantastic. Plow through it. Then if you want something additional, just let me know, be happy to make suggestions.

        • dd says:

          You’re hilarious. Yeah, run of the mill dudes sure; but this top tier stuff; not some carjacking or murder. Anyway whatever.

        • bmaz says:

          Lol. I’ve been doing this for over 30 years at a pretty high level. I know the hitters and how, why and what they work for. You do not seem to know your ass from a hole in the ground. So, “anyway whatever”. Drew Finding just signed on for Atlanta matters. Drew is no “run of the mill” guy. If Trump paid enough Roy Black would sign on. And there are plenty in DC that would too. You seriously do not know shit.

        • dd says:

          Pretty high level sounds great. Have you signed on? Trump should have like 30 second tier dudes by now. So where are they?

        • bmaz says:

          You have been here less than a day, and have contributed nothing. I don’t owe you anything, and neither does anybody else here. You do not know me, and you are not going to, except I may make you gone. Because you are a twatwaffle.

          Hahaha, check that, you have been here about a couple of hours. That is not going to work. Buh bye!

        • Artemis says:

          I really enjoy your use of the word twatwaffle. I feel like I shouldn’t, but I do. Something about the repeating letters/consonants makes it a symmetrical, pretty word in addition to being a creative insult.

      • Rugger9 says:

        Not that I want to give dd too much airplay here, but it certainly seems to me that this client with multiple independent cases including this one may not be set up for up-front flat fee billing. It also seems clear that the client is trying every possible angle to raise Constitutional / A-C privilege / EP / pixie-dust declassification issues which of course are not always clearly defined. That ought to mean the retainer route will have some significant add-on fees for filing those kinds of challenges all the way to SCOTUS if necessary. Add to that the repeated habit of not paying his bills, any defense attorney representing Individual-1 that is capable of getting him out of the espionage rap will not be cheap and will want the money guaranteed up front.

        TFG will have to cover the costs whether he pays them (yeah, right… stop laughing) or his ‘friends’ do (much more likely). If his ‘friends’ do could that create its own problems depending upon the source, not least because there will be (or were already) quids for the pro quos? Are defense funding sources something that can be pulled out by the DoJ as evidence of conspiracy?

    • TooLoose LeTruck says:

      Oddly enough, there’s an article in the August 9th issue of Rolling Stone about exactly this – Trump’s search for a ‘killer criminal defense attorney’, as the article puts it…

      I know, I know… Rolling Stone is hardly a definitive source for information about a topic like this, but just the fact that Trump’s search for a higher grade of lawyer was noticeable enough to draw this degree of attention is… interesting.

      Tim Parlatore’s name got dropped in the article (Eddie Gallagher’s defense attorney for his war crimes trial) and I believe Trump ended up w/ Drew Findling…

      Does this mean Trump is getting nervous?

        • bmaz says:

          That is what criminal defense attys do. They almost uniquely have the ability to do that. Whether an up front flat fee, or an up front non-refundable retainer with excess payments if the giant retainer is exceeded at set hourly rates. Rates vary as to the type of firm time, lead, associates, paralegals and secretaries).

        • gmoke says:

          In my experience, a lawyer’s “set hourly rate” is billed in 15 minute increments. But I could be wrong, especially for the high-end criminal attorneys.

        • bmaz says:

          Most lawyers/firms have default standards, but those can change depending on the case and fee agreement. For instance, phone calls are usually treated differently than other substantive work. My default was usually .2/hour even if a voice message was all that was accomplished. Because it took nearly .1 to log the call. Everybody differs though.

        • PJB says:

          I’d say the lawyers best not have the retainer come from Trump Org. If NYAG seeks to dissolve it and a receiver is Court appointed, the receive may seek to claw it back to the estate for the benefit of all creditors.

        • bmaz says:

          Heh, there are ways to get it and insure it is clean from forfeiture. This is not an issue whatsoever. Trump has enough money if he is willing to use it.

        • PJB says:

          I know there are. He’s probably thought of it but he could just have the fundraising mailers direct the payment to his lawyers’ escrow account! Then, Trump never even touches the money.

        • glenn storey says:

          What would the rate be at this level? I’ll take a wild stab at $5k / hour, but what do I know?

      • emptywheel says:

        No. Rolling Stone is credible. There are other reports as well.

        If Evan Corcoran were conflicted out because of his June representation, then I imagine he’d say, Mr. Trump, this is a whole nother level of legal jeopardy and you better sell a hotel to pay for it.

        Because it is.

        • bmaz says:

          Corcoran is at least a real lawyer, though he couldn’t do it all by himself. Hard to see him not having a conflict from being a fact witness though.

        • Savage Librarian says:

          I’ve read that Jon Sale turned him down. I wonder if Natalia Veselnitskaya is available. /s

        • TooLoose LeTruck says:

          So Rolling Stone is credible? Well dang…

          I was afraid of getting slagged for citing it… and I mentioned it in the first place because of the ongoing discussion about who Trump’s current lawyer is…

          I found it so interesting that the pot was boiling hard enough to attract that degree of attention…

    • DrDoom says:

      I’ve copied this from the post outlining the fruits of the search, because the question is pertinent to Trump’s search for representation. I would expect that his track record as a client would inform the fees he’d be charged for future work. Also, what happens when Trump’s and RNC’s interests diverge, as seems likely will ultimately occur? Does this not presage a popcorn-worthy fight over who will pay?

      “Back in June, Trump’s lawyers signed a statement that all subject documents had been returned, per Maggie Haberman and Glenn Thrush:

      IANAL, but I did look to see what the basic obligations of counsel are regarding candor at LII. My question related to this regards the obligations lawyers have to dishonest clients. Let’s suppose that the lawyers signed in good faith based on lies. Can they withdraw, because even liars are entitled to counsel, and if so what conditions must be met? At what point is a lawyer accountable for a client’s lies, or at risk of responsibility for lying on behalf of a client? Clearly the lawyer has an obligation to report known lies to the court, but there is a vast expanse of potential dishonesty that is not addressed in what is posted on LII.”

    • jeco says:

      I was surprised trump crime team didn’t unleash a barrage of legal actions to try and freeze the investigation.

      But with apparently only 2 lawyers working for him and one of them handcuffed by their false attestation that all sensitive documents had been returned trump’s defense may be overwhelmed. It takes a level of expertise for trump to find and hire competent attys. and he was busy in NY taking the 5th on another case. I’m surprised they haven’t requested a time out to lawyer up (but glad they haven’t).

      Cork seems to have decent credentials but Boob seems to be in over her pretty head. Whoever signed the attestation will be going thru some things and will have to lawyer up for their own account (not sure if this is part of GOP umbrella coverage)

      • bmaz says:

        Exactly what would Trump lawyers, even competent ones, do? There is no case for them to even appear in, at least not yet. And you cannot demand a “time out”. Yet again, people are going out of their minds, chill and let it play out.

  5. Rita says:

    Attorney-Client privileged documents/communications could include, in Trump’s mind, communications with White House Counsel or attorneys from other agencies (like, Clark). Perhaps the absence of any court filing for a protective order might be because the parties are in negotiation. Or, because, Trump is ignoring advice of counsel. It may be in his political interest to remain as vague as possible.

    • Yorkville Kangaroo says:

      ‘In Trump’s mind,’ every utterance he made between November 8, 2016 and today would be classed as Privileged…and not only Attorney-Client. EVERYTHING.

  6. KC Clift says:

    Perhaps the items on CLASS were created by others, merely to be seen by Trump, whereas the items on SSA were *created by* Trump, which would require close scrutiny to determine privilege, obstruction, collusion, etc. That would also help explain why SSA was being handled by a Supervisor, when the TS/SCI docs were only under the care of a SA.

      • emptywheel says:

        Cmon. There’s my hypothetical notes from a conversation with MbS written on a cocktail napkin with a Sharpie.

      • KC Clift says:

        Fair enough. OK, so maybe it’s things relating directly to Trump – calendars, call logs, appointments, drafts, letters from attorneys, love letters from KJU, etc. – i.e., anything that wasn’t prepared by a U.S. gov’t entity. Those would need to be looked at individually to determine if they were useful or not.

      • taluslope says:

        Strictly speaking Trump can at this moment generate classified documents (in the general sense) by summarizing juicy information that he has heard over the years. He doesn’t have to know stuff himself, he just has to be around it.

  7. Spank Flaps says:

    Trump’s alternate reality is that America is Nazi Germany, and he is the self appointed Fuhrer.
    Gotta love the treblethink:
    1. I had no documents, the FBI planted them.
    2. I had the documents, but I magically declassified them.
    3. I demand the immediate return of the planted declassified docs because of exec privilege.

    • Peterr says:

      Consistency is the hobgoblin of little minds.

      And everyone knows that Trump’s mind is bigly yhuge!


      • gmoke says:

        As a native New Yorker familiar with a Queens accent, I always thought that Trmp was right to make fun of the press for hearing his “big league” as “bigly”; but by now, it has become canon, yuge canon for all the youts, as my cousin Vinnie might say.

      • glenn storey says:

        Not quite.
        A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.

    • grennan says:

      As the late, great Molly Ivens used to observe about particularly repulsive talking points, “It sounded better in German”.

  8. dd says:

    I’m thinking Trump’s going to end up with some court appointed attorney competent in these issues as he has nothing but idiots but the judicial system in these complicated cases needs specialized lawyers able to put on a decent defense for the stupid. Even that won’t work out and Trump will end up representing himself as his ego demands. Maybe they’ll offer him Chile or Argentina?

  9. klynn says:

    The list going through my head:

    Costello related?
    Barnett related?
    Durham’s fight over the doctored memcon related?
    Pertaining to a pardon for Assange?
    Pertaining to sanctions relief?

    Honestly, the possibilities are many. But your final statement, “It must be really bad,” does make all your past noted “unanswered” questions by Trump, a good list to start with.

    • emptywheel says:

      Yes, the Memcon is another I had thought of but didn’t take the effort to put into the list. Maybe I’ll add it.

    • Amers says:

      Thank you for using this phrasing “Durham’s fight over the doctored memcon.” I was able to search that directly and am now reading that blog post from Dec5,2020, rather than asking what’s that? All of this is pretty mind bending.

      • Amers says:

        this line

        One of Bossert’s subordinates also called for the problematic portion of Trump’s discussion to be stricken from internal memos and for the full transcript to be limited to a small circle of recipients, efforts to prevent sensitive details from being disseminated further or leaked.

        Would the public ever learn who this detailee was?

  10. hollywood says:

    So have we reached a point yet where Trump is sufficiently cornered that he and whatever lawyers he has are considering which is his least damaging off ramp? Are we going to start hearing about health issues?

    • John Paul Jones says:

      Yeah, that’s what the villain business-guys do in Korean dramas all the time: check into hospital, private room, hot and cold running servants, while they try to make a deal with the prosecutors. Trump’s whole life sometimes strikes me as one long long long K-Drama, and a particularly badly written one. Maybe it’ll be announced as a “stroke,” then a “minor stroke,” finally, “incipient dementia,” meaning “I can’t answer any questions.”

      • bjet says:

        Trump would never be honored by Putin with a polonium dirtnap or even poison of the novichuk sort Navalny & other ‘betrayers’ have been poisoned with. He was never in the category of persons who could be considered capable of betraying Putin.

  11. L. Eslinger says:

    Why would Trump hang onto anything that could hurt him? His actions generally appear to be driven by insecurity and greed, which suggests that what he grabbed and took to MaL is material that could be used for leverage or to generate cash. Hanging on to records of his own criminal activities seems inconsistent with his mentality.

  12. Drew says:

    Trump is scared about something. It’s not clear to me that he has a clear idea of what is illegal, criminal, felonious, misdemeanorish, or creates civil liability however. It’s also not clear to me that he gets or listens to good legal advice. He seemed to have gone about collecting things he didn’t want people to find out–those might have been big federal crimes or they might have been big state crimes, or they might have been just seriously embarrassing–for instance, evidence of his involvement with big Russian oligarchs/money launderers might have been any of the above, but not necessarily the big federal felony we’re looking for–on the other hand, depending on lots of stuff it might be as close to treason as one gets outside of time of war–who knows until it’s unpacked?

    • Drew says:

      Among other things, I suspect he is far more in hock for his golf courses and other lifestyle appurtenances than he wants anyone to know and he’s very fearful that a serious investigation could disrupt his lifestyle & living arrangements–this is not as bad as going to prison, but both are bad enough to panic him.

      • Tom-1812 says:

        Wasn’t Trump the special guest at a comedy roast dinner some years ago before he was President? I seem to recall reading that he told the people hosting the event beforehand that they could joke with him about anything—except how much he was worth. That topic was verboten!

        • MB says:

          Are you thinking of the 2011 National Correspondents dinner where Obama roasted him? He was busy pushing the birther stuff back then but was none too pleased about the roasting he got from the Prez that night…

        • Tom-1812 says:

          It was the Comedy Central Roast of March 15, 2011. I used to know how to create links but that knowledge is now resting in the same mental recesses as the combination to my high school locker. I’ll have to ask one of my kids to show me how to do it the next time they drop by.

      • posaune says:

        Drew @ 10:00
        So now Trump is in trouble with DOJ. I’ve always wondered when some bank or insurance company is going to go after him for fraud. I can’t believe he’s never faced being accused of fraud.

      • Yorkville Kangaroo says:

        I have said, since day 1, that Melania and the kids are going to be sorely disappointed when there’s nothing left of his ‘estate’ to divvy up.

    • DrDoom says:

      Similarly, I know from first hand experience that the rich and famous do not necessarily get the best medical care. Catering to whims and convenience often takes precedence over the medical circumstances. I have no reason that it would be different with legal issues.

  13. Bobster33 says:

    Where’s Alan Dershowitz? Shouldn’t he be joining the team by now? And when he makes his announcement, he can also tell the residents of Martha’s Vineyard that Alan is still available for summer parties.

  14. viget says:

    I think I know what item #4 is, and why it’s likely items #29-33 are the questionably privileged materials.

    Whatever the FBI wanted to make sure they absolutely got from the raid, they already must HAVE KNOWN it was there and likely knew it was in Trump’s office somewhere. That’s what they went after first.

    I have thought for days that the Trump office stuff is related to kompromat, which is why the GOP is going ape over this.

    But how might it relate to obstruction? The clue is item# 1, Stone’s pocket pardon for Macronleaks.

    Such a pardon would be useful to keep Stone in line (ie not to cooperate), esp given the indictment of the Russian officers for conspiracy to violate CFAA unsealed in Oct 2020. Note that while the SoL on Macronleaks would have expired by now, the SoL on the CONSPIRACY would not have, given the GRU officers continued to commit more overt acts until 2019.

    So, then what other leverage might Trump have kept in the same place that would be seen as evidence of obstruction?

    Pocket pardons for J6 co-conspirators. And maybe folks like Barrack and Rudy. Basically anyone he didn’t want to cooperate.

    THAT’S what I think item #4 is. And it’s not classified, so not subject to 793.

    And 29-33 are all the back and forth memos and pardon paperwork he didn’t want NARA to have bc it would basically be evidence of obstruction.

    And I bet Cipellone and Philbin copped to all this already bc they wanted to distance themselves far far away from J6 matters.

      • viget says:

        Specifically? That they advised Trump not to issue such pardons. And that they had nothing to do with issuing them.

        Perhaps another WH staffer testified that Trump actually did issue the pardons.

        It’s not so far-fetched to believe… DOJ already has one such pardon in its custody.

        • viget says:

          If a tree falls in the woods and no one hears it, does it make a sound?

          If issuing a pardon is committing a crime, does the President want that known?

        • Yorkville Kangaroo says:

          Issuing a pardon is not a crime and can never BE a crime. It is an unfettered act (at least that’s the way I understand it). However, if there is some sort of transaction attached to that pardon THAT act could be prosecuted.

          bmaz will tell me if I’m incorrect.

    • emptywheel says:

      FWIW, there’s no reason to believe that’s a pocket pardon.

      It may be a pardon, as I hope to get to…

      • viget says:

        I await this analysis then. Not sure what Stone’s known pardon has to do with Macron, but ok, I guess we’ll see.

        FWIW, I double checked Stone’s pardon with the DOJ seal and it definitely says it’s a pardon only for his convicted offenses.

        • viget says:

          Well, just took a shower, where I do my best thinking, and now I see where you are going. Very very clever.

          I’m guessing this has to do with some FOIA 7(c) exemptions in the Mueller report….?

      • viget says:

        Could be, but then why the specific mention of the French president? Is this like a “including, but not limited to” list?

        If so, would love to see what the other delimited offenses might be.

        Also interesting that the Stone pardon was on the CLASS receipt not the purported obstruction/privileged document receipt. Was there classified material revealed in this pardon? Or was the pardon itself classified?

        • viget says:

          Nevermind, just saw Marcy’s tweet where she found out the case#s were the same. So the 2 receipts were for privileged vs. unprivileged material, prolly.

          Guessing the SSA had to make that call, so maybe that’s why that person signed the second receipt.

  15. Pragmatic Progressive says:

    SSA got all the stuff 45 was actually interested in, whereas 45 hadn’t shown much interest in the other boxes removed by CLASS.

    Naturally, the boxes 45 would be interested in are the ones he would talk to a lawyer about.

    Segregation at collection streamlines the government’s ability to sanitize the material from any privileged information contained therein.

    Recalling the way John Eastman’s phone was seized, I think it is most likely that the government just wanted to secure the information promptly. It may be that the property receipts mirror statutory provisions under investigation, but it could very well be something like the material was found in different areas.

    • jeco says:

      It seems strange to me that no electronic devices were collected. Cell phones with copies of pics of docs but even conventional copiers retain some history/memory of what has been copied. Maybe MAL is large enough to have a server?

      I’d think cell phones of everyone seen darting into the crypt would be seized by now (min of Patel & Solly). Maybe there are additional subpoenas & search warrants. Maybe FISA actions. Given the nature of the items improperly stored at MAL the FBI might want to see the visitor log for the past 18 mos to see if Boris Badenov and Natasha Fatale have been frequent guests

  16. Overshire says:

    The subpoena that keeps being mentioned seems kind of elusive. I’ve seen it mentioned in various media as being for any remaining classified material sometime in May, in June, and as both a subpoena and a request for the surveillance video of the storage room. It’s also being described as either a grand jury subpoena or from DOJ, depending on the source. Was there a subpoena? Two? Do we know who issued it/them? Is there a grand jury investigating DJT? Seems like it might matter at some point.

  17. David F. Snyder says:

    “… because it gave FBI no choice but to come seize this stuff. “. Maybe that was the point: he needed to rile up the base to the point of violence again à la January 6th. A FBI “raid” would do the trick. Once “reinstated” by the brownshirts as “PotUS”, he could then totally obstruct any of these investigations. Trump seems desperate and crazy enough to try it.

  18. arteberry says:

    Since the question has been raised here about Trump’s legal representation going forward, it’s interesting to consider the lawyers he has hired in the recent past. We can start with the two Senate impeachment trials, though they almost don’t count because the outcome was never in doubt, because they started with more than a sufficient number of Republican senators already in the bag. Trump could have hired Moe, Larry, and Curley and easily gotten by with just Larry. Still, on the first impeachment, the Trump team included Pat Cipollone (no introduction needed here), Eric Herschmann (now given something of a white hat by the J6 committee), Kenneth Starr (the perfect gig after being forced out in disgrace as president of Baylor U) Robert Ray (former federal prosecutor and successor to Starr as the independent prosecutor on Whitewater and its many offshoots), Pam Bondi (Florida’s finest legal mind) and, of course, Alan Dershowitz (who lobbied hard for the chance, seeing his client as the perfect cross between Claus von Bulow and O.J.) Counsel on the second impeachment trial—after several others were supposedly retained and then lost—included Bruce Castor (a former Pennsylvania county prosecutor who somehow managed to screw things up so that Bill Cosby’s criminal conviction would, years later, be reversed on appeal), David Schoen (an Alabama civil rights lawyer who left Trump less than impressed but managed the small triumph of almost convincing the Senate to adjourn from sundown Friday to sundown Saturday for the sabbath) and another guy who was a partner in Castor’s small firm (who at least had the honor of having previously sued Trump and Louis DeJoy over steps they took to impair voting rights).

    On the Mueller investigation Trump used John Dowd (of Pete Rose fame) and Ty Cobb. I had no idea Trump was such a student of baseball history, with particular interest in baseball’s most despicable and dishonest s.o.b. s. The White House Counsel’s office of course worked on the Mueller probe as well.

    We could look at Trump’s representation on a bunch of other matters. But a few patterns seem to apply. First, you see no engagement of the national and international, brand name (or, to use the ever-popular anachronism, “white shoe”) law firms. These days Trump puts together, to put it mildly, ad hoc teams, with an emphasis on the hoc. More than a few of his lawyers (though not all) fit into the has-been or never-was categories. Some come from doubtful recent sinecures In government or academia. Many come from small practices. Not necessarily a bad thing but on these high stakes and sprawling matters one might prefer a large, disciplined, highly organized, and already cohesive army. Having a lawyer at the top who has a clear vision and strategy would be good, no matter the size of the army, but that still may not work out well with a client who hates vision and strategy. In particular, I’ll be interested to see if Trump hires anyone with true expertise in national security and espionage cases. The national security bar is relatively small and, naturally, mostly located in the D.C. area.

  19. tinao says:

    Great work Empy!
    but here’s some of mine…

    I Miss Gerry

    Iceburghs a-melting
    I’m going dancing down.
    Big breath.
    More than just one half
    should respect the whole.
    And zillions of more times.
    I raised my flag
    from half mast
    to full sail on Friday.
    Thanks Joe.

    • jeco says:

      trump hiring an OAN fluff to handle a multi felony case? To quote noted legal scholar, John P McEnroe, “You can’t be serious”.

  20. punaise says:

    At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

    And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

    That would be quite something, as it is manifestly not in trump’s DNA to admit any wronging doing at any level.

    • TooLoose LeTruck says:

      A guilty plea wouldn’t surprise me at this point…

      Trump’s problems seem to be compounding almost daily…

      He’s been great at dodging bullets for a long, long time but you can only dodge so many…

      • earlofhuntingdon says:

        I join the chorus that says Trump’s ego could not withstand his voluntarily admitting to a court that he committed a significant crime, not even to avoid greater penalties should he go to trial.

        It’s beyond his comprehension and his self-regard and the posture that allows him to rake in millions from the rubes and the hard right folks with real money.

        • Rayne says:

          The man who said to a crowd of Iowans in 2016, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters”? You think his narcissistic ego wouldn’t find a way to turn an admission of criminality into the shooting he got away with to the applause of his morally- and ethically-challenged base?

          Come on. Just look at the shit he’s done for years including banning Muslims and ripping breast-feeding babies from mothers without any real penalty save for not turning out enough voters in 2020 or insurrectionists in 2021.

        • TooLoose LeTruck says:

          I dunno…

          Your point, as usual, is well taken and here’s my one counter…

          I think it’s safe to say that Trump is a bully and in my experience, almost all bullies are cowards when the shoe is on the other foot. It is one of the few rules of human behavior that is damned near axiomatic… bullies can turn into cowards and vice versa, and damned quickly at that.

          Just the fact that he’s felt a need to upgrade his legal representation of late, at no doubt a substantially greater cost, to me indicates he’s scared now.

          His problems appear to be compounding almost daily… we have no idea what was actually in the locked closets at MAL and lord knows what was discovered in Alex Jones’ phone records that might impinge directly on Trump too…

          If he does find himself hopelessly trapped, I could see him doing a plea deal, and of course, burning the house down on his way out… if he’s given a clear choice between spending his final years wearing an orange jumpsuit in a super max or tennis whites at MAL and being free to rage on endlessly over whatever medium he chooses…

        • grennan says:

          While Drew Findling is a huge step up, he needed to get a Georgia atty for the stuff there and Findling has gone against Willis before.

  21. Badger Robert says:

    The DofJ does not agree with the attorney-client privilege claim probably for two reasons.
    1. The attorneys were not Trump’s personal attorneys, but WH attorneys advising the President not to commit records crimes.
    2. The records are part of a Nixonian cover-up and the crime fraud exception applies.
    If someone is going to request a special master review, someone on the Trump side is going to have specify what they think is privileged. Anybody left with the time and expertise to do that? Does Trump even remember what was in the office and made it to the boxes?

  22. Sarah says:

    I have a question about the attorney/client materials Trump claims belong to him.
    If: the “attorney” is WH counsel; and
    If: the “client” is POTUS (not Trump personally)
    Then: Wouldn’t those be White House attorney/client materials & not Trump’s?

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

  23. Ddub says:

    Considering the volume of material stolen, and the venues:
    1) In and around the WH while selecting, loading and removing. Some material i.e. VZ call printout must have been somehow stored away from prying eyes at the WH itself.
    2) On the road down to MAL, every stop for gas or other. An overnight?
    3) In and around MAL. Unloading, some quick? sorting and initial storage of material. Further movement of select materials over time.
    Given all the people involved, just to physically get the loot from the WH to MAL, and all the insecure environments and moments on their odyssey, are all the people involved on the hook as part of a larger conspiracy case that will made by DoJ, or like Marcy said on a post DoJ will want a private resolution and so treat individually?

    • P J Evans says:

      I think the travel part of the move would have been with professional movers, who would have locked the semi trailer.

      • J R in WV says:

        Ooh, the Mayflower Movers would have locked their trailer — that’s secure.

        When we moved some furniture from my folks condo in FLA when mom could no longer travel south for the winters, Mayflower demanded a certified bank check for the move (IIRC $9k or thereabouts 20+ years ago).

        After the furniture was delivered and carried up the steps into our home and the check was handed over with a receipt for me, a couple of weeks later Mayflower asked me to make that certified bank check good, their driver absconded with the funds. I told them to pound sand, once, and they went away! Good job, Mayflower.

        I dunno which moving company moved Trump and his stolen shit to Mar-a-Lago, but I doubt any of them are any better at security than Mayflower.

        • P J Evans says:

          Some are definitely worse – I’ve heard too many stories about movers intentionally under-estimating the load, and then holding it until the owner of the goods ponies up the several thousands due that they weren’t told about.

  24. BrokenPromises says:

    One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

    DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

    I’m just a concerned citizen learning a lot and keeping informed about these legal criminal issues as best I can. For this I am really grateful for emptywheel and the amazing work Marcy does. I must say I was quite struck by the italicized words in those two statements above. It’s hard for me to view top secret nuclear documents as innocuous. Is it irony or a comment on the cluelessness of Donnie? And a simple stealing of a presidential election is and only can be an oxymoron right?
    Again thanks for all the great work and astoundingly knowledge people here.

  25. Savage Librarian says:

    Marcy, I’ve been thinking about one of the elements listed under your theory of the 1519 charge:

    “The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff.”

    That reminded me that (along with about 20 women and many more men,) Rhona Graff is on the witness list for Tom Barrack. Also, on that list is Madeleine Westerhout who worked for the former president from 1/20/17 – 8/29/19. I’ve read that Graff would call Westerhout to contact Trump.

    But thinking about Barrack, I remembered the post on 5/14/22 – “DOJ Claims a Key Witness against Tom Barrack Was Being Paid $15,000 a Month as Part of His Defense Team”

    So now I wonder if that person is one of the women on Barrack’s witness list. Is it Westerhout? Graff? Or maybe one of the other women listed? Time will tell, hopefully.

    This seems like something Trump might want to keep contained in an off-site location.

  26. dd says:

    Well here we are still waiting for the top tiers to sign on. Silence all round. Ohhh but there’s tons of money just waiting for them! Still waiting for that announcement maybe even just a Dershowitz. It’s coming yeah sure.

    • Yorkville Kangaroo says:

      What’s the obsession with Dershowitz?

      IF Dershowitz EVER gets involved it would only be as a constitutional lawyer so MAYBE at SCOTUS appeal but certainly not before.

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