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

When Donald Trump wrote the Acting Archivist to give Kash Patel and John Solomon access to what they have since claimed were his Presidential Archives, he made a point of emphasizing that neither had been convicted of the crime that would disqualify them from accessing the records archived in official government archives at 700 Pennsylvania Avenue and elsewhere: “a crime that involves reviewing, retaining, removing, or destroying NARA records.”

Both individuals meet the requirements for access to records under 36 C.F.R. § 1270.44(a)(4).

That is, as far as we know, true. Neither has been convicted of a crime specifically involving access to the Archives.

But Solomon has long been publicly implicated in an investigation into a Dmitry Firtash-linked attempt to funnel Trump Russian-provided dirt. And The Hill’s review of his work included many details that might allow DOJ to treat him as something other than a journalist in that investigation.

As for Kash, at least in April 2021, he was reportedly under investigation for leaking classified information, something that might have led the government to strip his clearance if they hadn’t already.

Both would be wildly inappropriate people to give preferential access to Trump’s Presidential archives. But they nevertheless would qualify under statute.

But Trump wasn’t writing to give Kash and Solomon access to his Archives. His letter explicitly stated he was giving them access to, “Presidential records of my administration.” A week ago, the FBI carted away 27 boxes of “Presidential records of [Trump’s] administration” that had not been properly turned over to the custody of the Archives for safe keeping.

Those details from Trump’s letter, plus new reporting on the events of June, adds to the possibly that this letter was an attempt to retroactively justify access to classified records that, in addition to documents pertaining to the Russian investigation, also likely included even more sensitive documents.

In a largely insipid storyline of the search, Christina Bobb described the WaPo about DOJ’s request after touring the storage closet in which Trump was hoarding classified documents differently than previous, anonymous explanations that likely also come from her.

Bobb told The Post that the group toured the storage facility, opening boxes and flipping through the records inside. She said Justice Department officials indicated they did not believe the storage unit was properly secured, so Trump officials added a lock to the facility.

By description, that’s not (as earlier reported) a request that Trump buy a bigger lock. It almost certainly was a reminder that classified information must be stored according to certain guidelines. DOJ’s letter probably even included a citation to 20 CFR § 2001.43, which describes (among other things) the standard of lock that must be used to store classified documents (italicized below).

(a) General. Classified information shall be stored only under conditions designed to deter and detect unauthorized access to the information. Storage at overseas locations shall be at U.S. Government-controlled facilities unless otherwise stipulated in treaties or international agreements. Overseas storage standards for facilities under a Chief of Mission are promulgated under the authority of the Overseas Security Policy Board.

(b) Requirements for physical protection–

(1) Top Secret. Top Secret information shall be stored in a GSA-approved security container, a vault built to Federal Standard (FED STD) 832, or an open storage area constructed in accordance with Sec. 2001.53. In addition, supplemental controls are required as follows:

(i) For GSA-approved containers, one of the following supplemental controls:

(A) Inspection of the container every two hours by an employee cleared at least to the Secret level;

(B) An Intrusion Detection System (IDS) with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation. Acceptability of Intrusion Detection Equipment (IDE): All IDE must be in accordance with standards approved by ISOO. Government and proprietary installed, maintained, or furnished systems are subject to approval only by the agency head; or

(C) Security-In-Depth coverage of the area in which the container is located, provided the container is equipped with a lock meeting Federal Specification FF-L-2740.

(ii) For open storage areas covered by Security-In-Depth, an IDS with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation.

(iii) For open storage areas not covered by Security-In-Depth, personnel responding to the alarm shall arrive within five minutes of the alarm annunciation.

(2) Secret. Secret information shall be stored in the same manner as Top Secret information or, until October 1, 2012, in a non-GSA-approved container having a built-in combination lock or in a non-GSA-approved container secured with a rigid metal lockbar and an agency head approved padlock. Security-In-Depth is required in areas in which a non-GSA-approved container or open storage area is located. Except for storage in a GSA-approved container or a vault built to FED STD 832, one of the following supplemental controls is required:

(i) Inspection of the container or open storage area every four hours by an employee cleared at least to the Secret level; or

(ii) An IDS with the personnel responding to the alarm arriving within 30 minutes of the alarm annunciation.

(3) Confidential. Confidential information shall be stored in the same manner as prescribed for Top Secret or Secret information except that supplemental controls are not required.

(c) Combinations. Use and maintenance of dial-type locks and other changeable combination locks.

(1) Equipment in service. Combinations to dial-type locks shall be changed only by persons authorized access to the level of information protected unless other sufficient controls exist to prevent access to the lock or knowledge of the combination. Combinations shall be changed
under the following conditions:

(i) Whenever such equipment is placed into use;

(ii) Whenever a person knowing the combination no longer requires access to it unless other sufficient controls exist to prevent access to the lock; or

(iii) Whenever a combination has been subject to possible unauthorized disclosure.

(2) Equipment out of service. When security equipment is taken out of service, it shall be inspected to ensure that no classified information remains and the combination lock should be reset to a standard combination of 50-25-50 for built-in combination locks or 10- 20-30 for combination padlocks.

(d) Key operated locks. When special circumstances exist, an agency head may approve the use of key operated locks for the storage of Secret and Confidential information. Whenever such locks are used, administrative procedures for the control and accounting of keys and locks shall be included in implementing regulations required under section 5.4(d)(2) of the Order. [my emphasis]

This section of 32 CFR Parts 2001 and 2003 gets cited in search warrant affidavits for 18 USC 793e; here’s how it appeared, for example, in Reality Winner’s search warrant:

32 C.F.R. Parts 2001 and 2003 regulate the handling of classified information. Specifically, 32 C.F.R. § 2001.43, titled “Storage,” regulates the physical protection of classified information. This section prescribes that Secret and Top Secret information “shall be stored in a GSA-approved security container, a vault built to Federal Standard (FMD STD) 832, or an open storage area constructed in accordance with § 2001.53.” It also requires periodic inspection of the container and the use of an Intrusion Detection System, among other things.

In Trump’s search warrant, a similar paragraph or one following it would include language about how, when the head of DOJ’s Espionage division, Jay Bratt, went and inspected Trump’s storage facility storing documents classified at least at the Secret level on June 3, he found some easily picked lock from WalMart or whatever it was on the door.

Given that the email Bratt sent Trump on June 8 did not say, buy a new lock but instead said, you’re not complying with the requirements for storing classified information, it may also have made a request for proof that someone with clearance at the Secret level was coming to check his stash of documents every 4 hours (see the language bolded above). A refusal to provide that proof voluntarily (because Trump wasn’t complying) may explain why DOJ subpoenaed Trump for such information, reportedly on June 22. Or they may have had other reason to worry, such as Kash Patel’s claims, made on May 4, to have specific knowledge of which documents Trump had returned (which, if Kash’s clearance got stripped when he was under investigation for leaking, he would have no legal basis to know).

But DOJ did subpoena Trump for two months of security footage. And it turned out to show people moving documents in and out of the closet seemingly in conjunction of requests for DOJ.

The Justice Department also subpoenaed surveillance footage from Mar-a-Lago recorded over a 60-day period, including views from outside the storage room. According to a person briefed on the matter, the 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.

Given that Trump had no reason to expect that DOJ would ask to see this storage closet on June 3, the moving of boxes may reflect an effort to hide the classified documents from the lawyer who affirmed there were no classified documents there, rather than an effort to hide them from DOJ (in which case the lawyer in question, possibly the suddenly-silent Evan Corcoran, would be in a legal conflict with Trump and might be forced to testify against him).

Which brings us to what is still a chicken-and-egg moment, which might be any of the following:

  • Trump refused to provide surveillance video voluntarily knowing it wouldn’t show compliance with the CFR but would show damning information, which led DOJ to subpoena it, which led to the discovery of uncleared people accessing classified materials (a violation of 18 USC 793f or g, in addition to the violation of 793e)
  • A Trump lawyer realizing the email about CFR compliance meant Trump was in trouble and needed to cover his tracks
  • DOJ finding other reason to be concerned, such as the Kash comments from May seeming to reflect personal knowledge of Trump’s classified documents or Trump’s letter to the Archives reflecting plans to give two people about whom DOJ would have particularized security concerns access to “Presidential records of my administration”

Like I said, thus far it’s a chicken-and-egg thing, but all these things came to a head in late June.

Ultimately, on June 19, Trump filed paperwork that provides the appearance of official access for Kash and Solomon, and (reportedly on June 22), DOJ served a subpoena asking for records showing who had entered and exited the closet. On June 22, so by reports, the same day that Trump got the subpoena but three days after Trump gave Kash the access, Kash went public with his claim to be accessing Trump’s records at the Archive, which is not what the letter asks for.

The problem, though, is that Trump was no longer an original classification authority after January 20 — even his own clearance would be limited! So while he could give Kash and Solomon monitored, privileged access at the Archives (because, while they were both security concerns, they had never been convicted of stealing records from the Archives), Trump had no authority to give them access to the Presidential records at his golf resort, because they included classified records that neither had clearance to access much less a need to know.

Here are all the ways that 18 USC 793 of the Espionage Act add to someone’s liability if they share classified information with people not entitled to receive it,

(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

(e)Whoever having unauthorized possession of, access to, or control over 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 to the officer or employee of the United States entitled to receive it; or

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy. [my emphasis]

Note, I included 18 USC 793d, but I think that under the Presidential Records Act, Trump no longer had authorization to store those documents. I included it because, if Trump pushed the point, he could be charged under that statute instead of 793e.

Both before and, especially, since this has blown up, Kash Patel and John Solomon have been the loudest purveyors of false claims that this is about classified information. Both were insisting in July, for example, that they knew that all the Russian-related documents Trump tried to declassify in the last minutes during which he still had authority had in fact been declassified and remained declassified. Kash, especially, knows that the Espionage Act is not about classified information anyway, but instead National Defense Information.

I still don’t think that these events are primarily about Kash and Solomon. But I think Trump’s efforts to have them continue to purvey false claims that he had not actually been implicated with improper ties to Russia may have led him to do stupid things that expanded his own (and their) liability under the Espionage Act.

DOJ could have written the warrant to convey that Trump was only under investigation for 18 USC 793e, the most obvious clause covering his refusal to give documents back. They did not. And all the people around Trump should be more worried about their own legal liability right now than spreading false claims that any attempt by Trump to declassify National Defense Information could change his legal exposure.

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

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

133 replies
  1. Peterr says:

    it may also have made a request for proof that someone with clearance at the Secret level was coming to check his stash of documents every 4 hours (see the language bolded above).

    The security requirements you cited lay out three possible ways of storing classified items – in an approved container, in a vault, or in a properly constructed storage room. The requirement you highlighted applies to container storage, not room storage. If they are kept in a separate storage room, that room has to have a particular kind of lock and a particular kind of alarm system with security staff in place who can respond to an alarm within a certain time period, but there is no physical inspection requirement.

    Also, above that language you put in bold are the stronger requirements for storing Top Secret materials. If you have them in containers, these containers need to be physically inspected every 2 hours rather than the 4 hour requirement for Secret materials.

    But that italicized language comes from the section describing how to handle material at the Confidential level — the lowest level of classification. Given the number of Secret and Top Secret documents that were removed by the FBI under their search warrant, storing them in a room secured with the kind of lock required for Confidential material storage is manifestly insufficient.

    • earlofhuntingdon says:

      It seems improbable that the miserly, resentful, and eternally authority-defiant Trump would have instituted and paid for anything like the security protocols required for the proper retention and storage of confidential government documents. Among other reasons, they would document other non-compliant aspects of his handling of them.

      As another wag put it, it would be like a ghastly version of a Christopher Robin character, hanging a misprinted sign on his door that says, “Sekrits Buried Here! Keep Out!”

      • grennan says:

        Just yesterday in Marcy’s “18 USC 793 in the Time of…” post, she recapped that Weldon Marshall actually did that:

        “classified documents, including other highly sensitive documents classified at the Secret level, were downloaded onto a compact disc labeled “My Secret TACAMO Stuff.”

  2. Spank Flaps says:

    I noticed that Trump, and many online trolls started randomly rebutting RussiaGate, following the testimony of Cassidy Hutchinson in the J6 hearing at the end of June.
    I wondered why they suddenly brought up RussiaGate when it wasn’t mentioned in the hearing, it hadn’t been in the news for quite a while, and hadn’t been part of the RW talking points agenda for ages?
    The continual deluge of RW propaganda can be challenging to decode, but this was a red flag.
    They do have certain ‘tells’.

  3. BROUX says:

    You show clearly that just the fact of having those documents at MAL was an infraction that clearly justified the action of DOJ. The question that remains is what was the purpose of keeping these documents at MAL? Was it to destroy specific incriminating evidence, or was it to be used in on-going or future transactions (selling, blackmail, etc). Because the TFG is demented, some have suggested that the motivation may have been completely irrational and narcissistic. Still, I am skeptical of that. I feel there must have been a stronger reason. Do you think we will find out?

    • Yorkville Kangaroo says:

      Are you kidding? The Donald’s whole MO is irrational and narcissistic! Has been since the late ’70s when I started to follow the dude!

      If he hadn’t have had killer lawyers he would have been in jail long ago.

      But now he’s running out of killer lawyers.

      • Boris says:

        Lawyers. Cause eventually there will be a trial, n’est-ce pas?

        Can you imagine the utter hell picking a jury will be? Is it even possible?

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

        • bmaz says:

          Of course a jury empaneling is possible. It always is. And he still has enough money to hire competent lawyers. But you gots to pay for them, and he is not known or trusted for that on the come line.

        • Drew says:

          This is true. But another aspect of his difficulty, besides his renowned resistance to honoring commitments to pay, is the way he treats everyone in his employ, including lawyers. He won’t trust anyone who won’t do corrupt things for him, and he really only trusts those who anticipate his corrupt wishes.

          Good attorneys live in the real world and know that clients sometimes lie and occasionally crime, etc. They take necessary measures to insure that they themselves won’t get caught in ethical or criminal problems as a result. But Trump isn’t even as reasonable as a mob boss, who will let his criminal defense lawyers be good & ethical lawyers even if he also employs goons with law licenses to execute his corruption.

          Trump wants everybody to be corrupt so he can control them–so attorneys who wouldn’t mind working in messy cases for bad people find they can’t come to terms with Trump or, if they do, they find they have to leave early on because of things he tries to require them to do.

        • bmaz says:

          Yeah, but that is just not how criminal defense attorneys work. Pay them enough, and they will work for you on a designated case until they think they cannot. Trump gives me a non-refundable retainer of $10 million, plus add ons if it is exceeded, I will go represent him. That is never going to happen, because I am not the right guy, with the right clearances, but I would. Have literally represented more disgusting people than Trump.

        • Drew says:

          But at the point he wants you to … I don’t know… destroy a bag of incriminating documents or sign an attestation in your own name that you know to be false, you bail, right?
          I’m saying that that happens early on with Trump with great regularity.

        • grennan says:

          How careful would a defense atty have to be about the source of any Trump payment and whether it came from so-called “legitimate” proceeds?

        • timbo says:

          And hopefully the cash is legit. Government could seize if it was ill-gotten cash, particularly if there’s an easily followed trail. That’s something I wouldn’t put past Trump to try to corrupt a good lawyer btw. Allegedly.

      • BROUX says:

        Kangaroo, why would one be so sure that his reason for taking top TS/SCI documents was done for no particular reason other than he is irrational and narcissistic?

        • Fran of the North says:

          I don’t think YK’s response indicates the reason for the documents at MAL was irrational and/or narcissistic. They were referring to those as personality drivers.

          There are many potential reasons and uses that Trump may have for those documents. At present, we don’t know why he might have kept them, and commenters at this site primarily deal in facts rather than conjecture.

        • Paulka says:

          Correct me if I am wrong, but is motive actually necessary for prosecution? I bring this up because with Trump, it may be impossible to truly understand his motivation. His singular motivation in life is so corrupt, so separate from normal conceptions of ethics, morality, etc. that ascribing a motivation to him may be impossible. Take his lying, I honestly don’t think he believes he is lying, despite him contradicting himself within a sentence or two. His perception of reality is so delusional that he has no concept of objective reality. That is often a trait of dictators-think Hitler’s concept of “will”. Trump has a preconceived idea of what he wants in the moment and attempts to enforce his will to create that reality. And given his childish motivations, what he wants in the moment changes dramatically and constantly.
          Think of conversations/dialogues you have seen him participate in (I think of the dialogue with pharma execs about the Covid vaccine which he put out). He had a timeframe he wanted the vaccine to come out and kept asking the various pharma execs questions trying to get them to meet that deadline, cherry picking their responses and reaching the foregone conclusion he had when he started the meeting. Point being is trying to rationalize Trump’s motivations in keeping sensitive material is a moot point as he likely had varied contradictory, transitory, illogical motivations.

        • timbo says:

          All current evidence points there being some one or multiple folks at MAL towards not returning some of these PRA/TS/SCI/NDI records for as long as possible…

          So…if the intent was to keep some documents he wasn’t supposed to have that’s good enough? One can argue the motive side fairly easily, make it seem “psychologically innocuous” I would think. In this case, is the intent part to retain documents that one is not entitled to, keeping hypothetical motives out of the equation?

          I guess what I’m asking is: at what point does a motive move into intent—at the point one takes a physical action of some sort, right? Motive is speculative but intent is evidentially factual?

        • Yorkville Kangaroo says:

          It’s not his ONLY rationale.

          As I posted previously there are four rationales for his actions:

          1) His ego
          2) Cash
          3) Power
          4) CYA

          They apply in that order specifically.

          Thus, even if something is incredibly incriminating The Donald will hold onto it if it strokes his massive ego enough or if there’s a payday at the end of it.

          So he’s very likely to have kept items such as his (probably) incriminating discussion with Putin if Putin fawned over him enough (and I’m sure he did!) or if he and MbS discussed a juicy quid pro quo.

    • Drew says:

      The problem with Trump’s being narcissistic is that it may be very hard and mixed up to follow his logic. He’s not a careful planner, but he is motivated by big fears and knowledge of things that could get him into trouble. Sometimes there are more than one of these going on in ways that aren’t directly related to each other-for instance their were at least 3 different sets of coup plotters he was dealing with in December 2020 and they were in conflict with one another.

      His hardcore resistance to giving back this huge load of documents, even when DoJ sent their top CI official down to MAL to put the fear of God into his lawyers, etc indicates to me a bigger concern than his usual stubbornness. I’m not sure what it is though. It’s not the documents qua documents. He WOULD take big risks if he thought the existence of his financial empire was seriously threatened and also if he thought revelation of a pattern in those documents of something that would land him in jail, despite his general cockiness about being able to beat the legal system. Somehow all roads lead back to Russia Russia Russia, but until the contents are parsed out & he’s actually prosecuted, I doubt we’ll know.
      (I think he thinks he can get out of all the charges relating to document possession/abuse somehow and it’s less likely that this is directly J6/coup related, since there’s lots of stuff that has to predate the election, etc)

      • Yorkville Kangaroo says:

        I have always seriously doubted the whole ‘collusion’ thing in respect to the Russian state, The Donald and 2016. His mind doesn’t work like that and neither do the Russians’ though people like Flynn and Stone do.

        If you want to get a deep insight into how his mind has ALWAYS worked you should start here:

        It includes the original article from 1979 as well as a link to Part 2.

        Also, ‘collusion’ is a legal nonsense.

        But there is NO doubt that much of The Donald’s ‘working capital’ has come via both the Brighton Beach based Russian mob and later the Russian oligarchs especially after his other legitimate sources of income dried up (30 years ago?). Deutsche Bank was the last credible bank that gave him anything and that was under extremely compromised circumstances:

        Russia was not so much concerned with partnering with The Donald to get him elected (though they clearly assisted in that endeavour). Putin was waiting for a MUCH bigger payoff IF he actually got elected!

        There’s also always been a question in my mind as to why, after virtually 30 years of playing ‘I’m gonna run’ to keep his name in the papers, that he ACTUALLY decided to run when he did. My guess (and it’s only a guess) is that Putin may have told him it’s time to repay some of your debts to my friends. He would have failed to mention that he’d some knocking on The Donald’s door on January 20.

      • timbo says:

        Just because someone is always taking big risks does not mean that they haven’t gamed out how to mitigate those risks if they fail. This is where someone like Trump, someone who has honed the removal of responsibility from irresponsible decisions comes in. He’s a master at this. Does it take long term planning to pull off? It depends on your definition of long-term planning. Certainly someone like Trump didn’t get to being good at the misdirection and confusion that surrounds him legally all the time by accident.

        • Yorkville Kangaroo says:

          Trump only has one risk mitigation strategy; litigation.

          He’s not a master at anything he touches.

        • timbo says:

          Actually, it remains to be seen if some of the strong-arming that folks around Twitler have engaged in will come out. It’s been going on though, rest assured. Just look at a few of the incidents around things like the pay off to Stormy Daniels et al. There’s allegations there that are likely not unusual in Twitler’s bag of tricks. That is, intimidation of a threat to physical safety is certainly not beyond the pale for him. And, in fact, if you look at the J6 insurrection itself, instigating actual violence didn’t seem to bother him much either. That’s been the case in the past if you follow his life arc in fact. He’s willing to foment violence for political and financial gain when necessary. If it’s to scare off investigators, folks suing him or threatening to sue him, if it’s anything to distract from his own fraudulent undertakings, etc, he’ll use it to his advantage when and as necessary to help propel his “brand” along.

    • bidrec says:

      Possibly he was taking direction from a “handler” after the fashion of Jonathan Pollard:

      “The damage assessment includes new details on the specific subjects and documents sought by Pollard’s Israeli handlers … , such as Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses. The Israelis specifically asked for a signals intelligence manual that they needed to listen in on Soviet advisers in Syria. The document describes how Pollard’s handler, Joseph Yagur, told him to ignore a request, from Yagur’s boss, for U.S. “dirt” on senior Israeli officials and told Pollard that gathering such information would terminate the operation ….”

      Donald Trump has a pack animal mentality and might take direction from someone he thought was farther up the hierarchy like Putin, Duterte, Erdoğan, Orbán, etc.

  4. WilliamOckham says:

    I still like my novel theory that Trump violated (d) by taking the documents. That is, President Trump had lawful access and control of the documents, but by sending them to former President Trump, he knowingly caused them to be delivered to someone who didn’t have access. I can’t imagine DOJ would charge it that way. I think they should because it captures exactly what’s wrong with what he did.

    • bmaz says:

      I don’t think that is novel at all! I still maintain that, to the extent any of these offenses are to be charged, that they were legally completed when the boxes of material were loaded up and driven off the WH grounds. The rest is just a continuation of the crimes. Trump had them, he should not have had them (and that applies as to non-classified too), and that is mostly that.

      • klynn says:

        “Trump had them, he should not have had them, and that is mostly that.”

        Thank you for this comment! I really appreciate the last part.

      • emptywheel says:

        They would have an awful time proving intent though.

        Whereas post February, it’s not only easy, but then you are undoubtedly dealing with someone who is not the President, but is instead a disgruntled former employee without clearance who has been told over the course of a year that his continued possession of those materials was illegal.

        • bmaz says:

          Meh, facts in the continuation of the crime still gravitate to the original crime. Chapo Guzman transports a ton of cocaine into the US. That is the original crime. His organizational network then distributes and sells it. The latter may be separate crimes, but they are a continuation of the original. I do not see anywhere near the issue with this you do.

        • klynn says:

          EW, I assume NARA must have some kind of debrief/meeting explaining the records preservation process for an outgoing president? Even one who refused to concede?

        • WilliamOckham says:

          Why would proving intent be difficult? I think that’s the easiest part of it. Trump had been told repeatedly about his obligations under the PRA. The two Pats will testify to that. And the hurricane map makes an ideal exhibit.

        • bmaz says:

          Proving intent as a necessary element of a crime can always become sticky. Usually not that much on common criminal charges, but on something like this, it absolutely is. But my point is the continuation facts can get brought in, so whatever happened later counts toward the “completion of the story”.

        • Rayne says:

          I don’t know that intent is a difficult hurdle when Trump must have been told almost from the beginning of his administration that presidential records required specific handling and were not the property of the person but the office.

          Ex. The amount of documentation recording exchanges between NARA and WH about PRA – see Jason Leopold’s FOIA dox at – there are surely more.

        • bmaz says:

          Yeah, that is mistaken. First you have to get it all admitted into evidence, then you have to argue it convincingly. In the face of an actual adverse lawyer and court that don’t give a flying shit about what people think is known on the internet. Trust me, this is no layup. Some day maybe a case will get there. Until then it is all speculation and mostly bullshit.

        • Rayne says:

          So you think that Don McGahn would resist a subpoena and/or testify that he never instructed Trump on PRA and classified information before or after Trump’s inauguration?

          That Cipollone and Philbin would do likewise along with White House counselors to the president Johnny DeStefano and Derek Lyons, the latter of which also might have coached Trump as White House staff secretary along with Rob Porter before him? That’s a lot attorneys willing to fry what remains of their careers.

        • bmaz says:

          I think they will resist until they cannot. Which is what they should do. But YOU STILL HAVE TO GET THEM TO LAY THE FOUNDATION. Court is not the internet.

        • grennan says:

          In the Post’s update today about Lindsey Graham having to appear in Georgia, it noted that he’s being represented by McGann.

        • timbo says:

          Would this fry their careers because they’d been hiding behind executive and attorney-client privilege to avoid providing any testimony in this area? Or would just knowing that Twitler and gang were making off with compartmentalized government records be enough?

        • Yorkville Kangaroo says:

          I’m sure his learned counsellors will make outrageous attempts to claim such things. It is a favorite talking point of the commentariat (that of mens rea) but my understanding is that there are four states of mind outlined in the Model Penal Code (I’m not sure what FL and DC use):

          1) acting purposely – the defendant had an underlying conscious object to act
          2) acting knowingly – the defendant is practically certain that the conduct will cause a particular result
          3) acting recklessly – The defendant consciously disregarded a substantial and unjustified risk
          4) acting negligently – The defendant was not aware of the risk, but should have been aware of the risk

          While these criteria can be used to determine an individual’s final sentence I’m pretty certain that the Donald will fall into at least one of these categories but bmaz could correct me I’m sure.

        • nord dakota says:

          Haven’t there been people saying the mens is so warped the man with the mens doesn’t land in any of these categories?

        • Yorkville Kangaroo says:

          Do you not think that his defense, at some point, won’t deploy a version of that as a strategy? Might you, theoretically?

      • TooLoose LeTruck says:

        “I still maintain that, to the extent any of these offenses are to be charged, that they were legally completed when the boxes of material were loaded up and driven off the WH grounds.”

        Ha! This was a question that I had, that I never got around to put up here…

        “Didn’t the original crime occur the minute Trump took the records?”

        If he wasn’t supposed to have certain items in his possession, the issue isn’t that he kept them at MAL for a year and a half after leaving office, it’s that he took them in the first place upon leaving office, right?

        • timbo says:

          I think it really gets back to whoever might have provided legal advice to POTUS prior to him becoming ex-POTUS. However, even advice from non-lawyers might also be considered if there’s some evidence that it was an intent to coverup anything substantial from government investigators in a narrow or broad sense, etc. Or, if someone was planning on leveraging this information for personal gain in some other capacity. Clearly, in my mind, “things of value” was involved here with the illegal taking of these records. What those things might be though is perhaps a rainbow of vice and corruption, and involving well more than one individual.

    • BobCon says:

      To the extent that the things they’ve just seized were all part of the boxing up at the end of transition.

      Trump may be on the hook as well for things he had legally moved to Mar a Lago during his term in office, or were given to him during briefings while he stayed there, and then were combined with boxes from the White House.

      I don’t think it’s clear from the receipts if these were all White House materials.

      • bmaz says:

        They are all government records belonging to the people of the United States. To any extent it happened while Trump was still in office, that is still arguably a DC offense as to locus. If it is me, I charge all of it as such in DC, and make Trump fight it and try to sever. I don’t think that will work, but it would be on him to try.

        • rip says:

          If the crime is one against the US, then how does the US locus make any difference? Do we try foreign agents that we think have committed a crime in some localized USA district? Don’t Trump’s potential crimes fall within the definition of treason “is specifically limited to levying war against the U.S., or adhering to their enemies, giving them aid and comfort.”

          I’m trying to walk softly knowing this is paper-wasp territory.

        • Rayne says:

          For the umpteenth time, treason has a specific legal definition which is based on traditional kinetic warfare and a declared state of war with an identified enemy.

          The discussion is where the crime(s) occurred and which jurisdiction(s) will prosecute. If you’ve read Marcy’s posts you already know the most likely charges are those on the warrant: 18 USC 2071, 18 USC 793(d, e, f, g, or some combination), and 18 USC 1519 — none of which are goddamned 18 USC 2381 Treason.

        • Yorkville Kangaroo says:

          Collusion and treason are words spread around the Interwebs with no actual meaning or relevance in respect to The Donald and ought to be expunged from your vocabulary until you understand what they ACTUALLY mean.

          The correct words are conspiracy and insurrection.

      • P J Evans says:

        If they were materials for briefings and meetings, then they’re still covered as presidential records, and he shouldn’t have still had them.

        (I’m getting the impression he’s one of those people who would take as much as possible from hotel rooms as “mementos”/”souvenirs”.)

        • BobCon says:

          Right, they’d still be covered like any other record.

          I don’t think we in the general public have a good idea at all about intelligence community concerns, though, and I’d want to be open to the possibility that they want to know a lot more about what went straight to Florida over the years and how it’s been handled.

          This isn’t disputing that records from the White House were mishandled and wrongly transferred, just that the early focus on the White House records may grow to encompass a lot at Mar a Lago and over a longer period than his move after his defeat.

        • P J Evans says:

          I’m very very sure that they want to know exactly what he had (and may still have) in his personal archives. I don’t think that the anonymous sources talking about what he had really know anything more than the rest of us.

    • Raven Eye says:

      That “someone who didn’t have access” concept is a nice way of expressing it.

      When I retired I had to have two separate security debriefs, one of which specifically reminded me that an NDA I had signed (with a witness) was still in effect, along with certain other continuing obligations/responsibilities. My clearances ceased when I walked out the door and I became “someone who didn’t have access”, nor a “need to know”.

      While Trump didn’t need an actual clearance whilst in office, at noon on inauguration day he certainly would require both an appropriate clearance and a need to know — in addition to having appropriate storage facilities if he retained any classified information that he had been granted access to in his new life.

      (When Office Depot sends me some offer and the email has “Top Secret” in the subject line, I still frown.)

      • earlofhuntingdon says:

        Government and corporate employers get a lot of mileage in labor disputes, when they trot out their favorite characterization: “disgruntled former employee,” especially when buttressed by “without a security clearance” to handle the materials in question. Works like a charm, especially after the phrase, “going postal” became popular.

        • grennan says:

          The Washington Post has started (since Friday) to use that very term in stories about why he’s a security threat:

          “disgruntled former employee with a grudge…”

        • TooLoose LeTruck says:

          It is indeed a spectacular f’in mess, is it not?

          Brings to mind the question, what sort of postage stamp, or monument, will Trump end up on some day?

        • blueedredcounty says:

          Your question and Rugger’s comment made me think of a David Letterman gag about alternatives for an Elvis commemorative stamp. The most inappropriate/in-bad-taste suggestion was the picture of a body sprawled on the floor of the bathroom next to the toilet.

      • Yorkville Kangaroo says:

        I wonder how this plays out with departing POTUS. Is he, like most individuals losing Classification status, advised of his responsibilities or is he allowed to just walk out the door? Given the INTEL community’s known concern surrounding The Donald’s trustworthiness I would have thought someone would have made it a point to do so.

  5. Lawnboy says:

    IAGNAL( I am a gardener not a lawyer). What are the chances that Trump might, in desperation, be holding these records hostage Ala-Wiki-leaks. “Dont make me do it, I will reveal the top secrets, now let’s talk pardon”.

    Lets call the horde Vault 7-11.


  6. Sabine Farm says:

    The larcenous Trump stole the documents with the crime beginning with the asportation from the White House.If indictment, hoping this is enough for DC jury.

  7. Rugger9 says:

    Pardon my ignorance if I missed it somehow, but as the ‘official representatives to the Presidential Records Archive’ what exactly were Kash Patel’s and John Solomon’s expected duties? We can expect their real purpose was to act as moles and commissars but what do the other presidential reps do? Are they publicists or something?

    The reason I ask is that the job description itself may not permit the access to classified information at the level these two are demanding. As a side question, it seems curious these two in particular were selected instead of lawyers who may not have the baggage these two have and would have had a better chance of working through the legal requirements.

    • NeoGeoHa says:

      Its all after-the-fact/action window dressing to attempt to explain why these folks have their fingerprints all over the docs the DOJ now has in their possession and will be asking that very question. Likely that explanation will not satisfy the DOJ. Everything he does is to make himself looks better and live for just one more day.

      One of the most interesting parts of this is the evolution of explanations for the docs themselves from TFG. We don’t have any because we turned them all over, they came in and planted them, I declassified them, they they are just “Presidential Records”, these 2 guys are my reps so they can have access to them. It would be hilarious if it wasn’t so terribly horrifying.

    • joberly says:

      It’s a good question, Rugger9, about the job duties of Patel and Solomon. Soon after taking office in 2017, Trump appointed Don McGahn, Stefan Passantino, and Ann Donaldson as his presidential records custodians. Trump also invoked a 12-year restriction on public access to his presidential records, the same choice that Bush41-Quayle made when they left office in January of 1993. That’s different from the standard 5-year embargo on public access to presidential records spelled out in the PRA of 1978 at 44 USC Section 2205(3)]. The day before his term ended, Jan 19, 2021, Trump wrote the archivist revoking the status of McGahn, Passantino and Donaldson, and instead appointed seven new designated representatives: Mark Meadows, Pat Cippolone, Pat Philbin, John Eisenberg, Scott Gast, Michael Purpura, and Steven Engel. Trump’s June 19, 2022 letter did not rescind the designated rep status of the seven, so there are now nine reps.

      • Rugger9 says:

        I was not aware of the predecessors, and that seems like an awful lot of them. Maybe the idea is to somehow indemnify these players from investigations about the documents on a quasi-attorney-client privilege claim.

      • vicks says:

        The 3 letters naming/changing/adding Trump’s designee’s are included with these other interesting and related documents that have been released
        Here is the first letter (the second uses similar language but removes designees names and adds others)

        The third letter appears to give Patel and Solomon “access” to his records, but then ends by underlining “thank you” in trump sharpie and calling it a “request”

        #1 Am I wrong in thinking the wording in the first two designation letters
        implies that Trump is aware that he and his designees have some responsibility in protecting these documents?
        #2 If there is any truth to that, why in holy hell have these people allowed themselves to remain named as designees?

    • earlofhuntingdon says:

      I don’t think the designation carries a job description; that would be dealt with separately between Trump and his designees. The designation would give Trump’s agent access to Trump’s presidential records controlled by NARA, in the manner, and with the limitations that would apply to Trump himself. Those agents would independently need to have the requisite clearance, etc., to legally carry out that work.

      As Marcy points out, the language Trump’s drafter used in crafting that authorization used expansive language that would include records beyond those under NARA’s control. That opens a can of worms, though, because, except for records already in the public domain, there shouldn’t be any.

  8. John Paul Jones says:

    The link to the story on the video goes back to the Patel claims about declassification, i.e., the same link is repeated twice, with the link to the video story missing.

  9. Tom-1812 says:

    “I would like you to do us a favour, though.” Perhaps the first time Donald Trump ever heard those words was from the lips of Vladimir Putin. The Helsinki summit of July 2018 comes to mind as an occasion when that might have happened and could explain why Putin appeared so jaunty and Trump looked so deflated when they were photographed together just before their joint press conference (see the photo near the end of the comments section in Rayne’s “Other Possible Classified Material in Trump’s Safe” of August 13th.) I wonder whether that might be at least part of the explanation for why Trump took those classified documents with him when he left the White House; i.e., because he owed something to the Russian President.

  10. Bay State Librul says:

    Listen to Countdown daily by Keith on his podcast.
    It will take “months and months” for the latest iteration to play out.
    We need a volcano ala the “Last Days of Pompeii” to end the constant Trump Melodies.
    In the meantime, Rome burns.

  11. Pedro P says:

    Has anyone else verified the WP’s nuclear doc leak?
    I’ve read about the Kim Jong Un love letters, the Obama letter and the Hurrican Dorian map being part of the docs retrieved but not much else.
    If the nuclear leak was fake, you have to wonder, where is the juicy leak about what is in these top secret docs. If one doesn’t come soon, it makes the contents of the affidavit even more interesting.

    • P J Evans says:

      DOJ isn’t saying what the docs are, so anyone talking about the contents is in need of questions about how *they* know.

      • Yorkville Kangaroo says:

        The (incorrect) inference is The Donald held SCI material hence it’s nuclear secrets, specifically Boxes 2A (especially), 10A, 11A, 13A (wonder where 12A is), 15A, 23A, 26A and 28A. There is no indication that ANY document pertains to ‘nuclear’ anything.

  12. KP says:

    I hope I haven’t mentioned this at EW; I have said similar on FB, when sharing articles and reports re the NARA. My first professional job was as the most jr archivist at Ike’s PL. Presidential Libraries are THE totl places for federal archivists, historians, and librarians to work at. Most facilities are very basic, cavernous shells, with miles of open shelving. The old-fashioned documents, it was ~40+ years ago — were stored as appropriate in standardized, acid-free boxes, and though actual page counts were approx, the stuff was measured in linear feet. I was tasked to work on the still vast amount of wartime materials, most unseen until one of the archivists went to the shelves, and loaded a cart, and began the process of reviewing, little things like removing all staples, all the detail for preservation, and then the reading, to then describe for the finding aid, what each box contained. One day I went to the library, which also contained, yeppers, a huge vault, just like any bank’s vault. The vault door was open, I called out a ‘hello,’ and when no one replied, nope, didn’t go in, wasn’t authorized then. I did go to the desk, and called the sr archivist, who, with another staffer at the PL, one with a particular bulge in under his sport coat, arrived within the minute. That was for documents from the Eisenhower Administration. The NARA people are professionals, they are archivists, they are librarians, and historians, but all trained for their jobs, and it is not just a job, they are passionate about what they do, and that, of course, is to preserve, protect, and most of all, provide access to that ‘data’ for we the people, especially the scholars who share our very continuing story of our nation for all of us.

      • KP says:

        Yeppers. Dad ended up at the local state college in town. But a Great Plains lifetime, 5 years in central Missouri, then 20+ years in Lincoln. Retired, wife had a home near Purdue U, great place, some really ugly people though, Pence was elected gov when I was there. no one gets happy ever after, that’s simple physics, and the great, late Prof Wheeler, shortly after he won the Nobel, in answer to a question, simply replied, ‘it’s all pointless,’ Which does not mean we don’t have agency, we do imbue life and our lives with meaning. I recommend a very slim memoir/monograph, by the eminent scholar and death camp survivor, Viktor Frankl: Man’s search for meaning. My old paperback copy is very worn and tattered now, but one I have, too many times, pulled from the shelf to read as for the first time. Thanks, kiddos, I actually almost smiled.

        • TooLoose LeTruck says:


          What you’re describing, ‘a huge vault’, sounds like the final scene from Citizen Kane…

          Was there by any chance a lone child’s sled leaned up in a corner somewhere?

        • John Lehman says:

          Great iconic movie…to bad Orson Welles was black listed and his career ruined because of it.

        • TooLoose LeTruck says:


          He did do some good work after that, but nothing much on the level of Kane… I saw The Third Man on my local PBS outlet last week… what an amazing looking film… he didn’t direct it but he was good in it.

          I believe Bogdanovich took Welles in, late in Welles’ life, and gave him a place to stay… I recall reading Welles described one time as ‘that great drifting shipwreck of human being’ one time, or something very close to that…

          Apologies for drifting away from the topic at hand, all…

        • John Lehman says:

          “ Apologies for drifting away from the topic at hand..”
          No need for apologizing. We are living through the most decadent times (20th/21st centuries) since the fall of Rome . The movie “Citizen Kane” exposed the journalistic decay and EW is exposing the political decay. EW deserves a Pulitzer and a Nobel prize.

  13. Cosmo Le Cat says:

    I am once again astounded by the knowledge and brilliance exhibited by this article’s author.

    Q: Does it make a difference that MAL is owned by a corporation and not technically DJT’s personal residence? Also, the store room appears to be separate from DJT’s (and Melania’s) personal quarters.

    WilliamOckham, do these facts reinforce your theory that then-President Trump violated 793(d) by causing the documents to be removed from the WH premises with intent to deliver them to a private corporation, which was not authorized to have access? Emptywheel questioned whether there would be an issue with intent if the President sent the documents to himself, but if the intent was to deliver them to a private corporation, does that change the calculus?

    WilliamOckham’s theory seems important because it makes DC the locus of the original crime.

  14. matt fischer says:

    Nit: “In Trump’s search warrant [affidavit], a similar paragraph or one following it would include language about…”

  15. newbroom says:

    (I’m getting the impression he’s one of those people who would take as much as possible from hotel rooms as “mementos”/”souvenirs”.)
    He probably rode in the Rolls once in awhile when Mom went to the laundromats to collect quarters. Scottish?

    • John Lehman says:

      “Scottish?” TFG’s ancestry? Mother’s side yes.
      Father’s side Swabian…sadly shared (in this case) ancestry of myself as well as half of Germany and Switzerland. Swiss have a reputation shared with the Scotts for being tight fisted with money. Might have something to do with both being mountain people.

      • P J Evans says:

        Mother was from one of the Isles, so not part of the usual Scots stereotype, which is more the Lowland and Border people.

        • grennan says:

          Lewis, one of the more remote, poor, and desolate Isles. She came to the U.S. to be a domestic worker.

          I always thought it would be great “polite” disruption to send a squad of bagpipers to one of his rallies, piping the McLeod Lament, Banshee Girl of Lewis, etc., as a “tribute”.

      • grennan says:

        Somewhere on You Tube is the Donald Trump laundry detergent commercial in which a much younger Trump says his mother uses it to wash his clothes.

  16. klynn says:

    I have a boatload of questions on the TRO under these circumstances.

    If some documents relate to national security and may be part of an imminent threat, can those items still be held under a TRO?

    If a witness has come forward with significant evidence, can the TRO still hold against document evidence that outside testimony and evidence confirm?

    If DOJ processed most of the documents between the time of the search and the filing of TRO, are those still subject to the TRO or is it a “had your chance, muffed it moment?”


  17. P J Evans says:

    Apparently the latest claim from the Whinger-in-Chief is that they took three of his passports, one expired. Which if true, I’d expect them to show up on the receipts, if not the warrant. And wouldn’t the State Department be involved? (His diplomatic passport should have been cancelled when he left office.)

  18. TXphysicist says:

    Trump’s new claim that the feds seized his passports rings true to me. I know he’s keen to drive his “MOST PERSECUTED, BUT BEST BOY EVER” narrative, but surely he realizes it’s also like saying “DOJ KNOWS I’M A FLIGHT RISK”.

    Anyone offering betting odds on the likelihood a) they did indeed seize his passports, and b) the likelihood that they plan to indict if he did?

        • Rayne says:

          LOL your wish granted only as a teaser, though – long enough for Trump to rile up his base again.

          Sure would like to know why he’s so eager to show off his refurbished 757, though. Like that makes a big difference to the crowds he expects at his campaigns.

        • TXphysicist says:

          Thanks for the link, Rayne, that’s an illuminating Twitter thread.

          I should have known not to get my hopes up.

          Hopefully you all never tire of hearing praise for what you do around here, because…

          I really appreciate what you fine folks do around here. :)

        • P J Evans says:

          I thought that was still waiting for a new engine, plus all the other maintenance it hasn’t been getting while sitting on the tarmac at wherever-the-heck.
          I would have thought his diplomatic passport expired with his term of office.

  19. Ddub says:

    This historical legal saga being played out before our eyes, and a site like emptywheel to help make sense of it. It’s goosebump inducing for me as a lover of history.
    NAL obviously so my thinking moves to try to visualize those last chaotic days in the WH. To start, the idea that Trump physically shifted anything is laughable. The idea that he himself personally chose what TS/SCI material to snatch is also difficult to believe. So was it more or less whatever was available to him at the WH those last days, or did he and others think up a list of the most valuable sensitive docs and then request them in order to steal them, Or, did he have a shopping list from Vlad? Other incriminating material must have been still in the WH waiting to shift.
    Then there is security at the WH. Was any search done to the departing trucks? In deference they just let them roll out of Dodge I guess. Or, did some others also help in that?

  20. vicks says:

    My apologies if I missed the discussion, but where were the people resposible for returning top secret documents to thier secure locations once Trump was briefed on thier contents?

    Even if Trump took the documents to the his residence to “work” on, isn’t there a system that tracked the details of when documents leave secure storage locations, and send up a red flag if/when they aren’t returned?

    • timbo says:

      That’s a great question…and one the CI (Counterintelligence) investigative folks are no doubt keenly interested in at this point. If you look at the folks who are reputedly authorized to access Twitler’s NARA official records then my guess is that CI has started with them and is working their way through the list. Note that refusing to answer CI investigator questions might be immediate cause for removal of any access to classified/compartimentalized marked USG documents. That begs the question of who in the ex-WH thought they had that clearance until very recently.

Comments are closed.