Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

At 12:49ET yesterday, the head of DOJ’s espionage section, Jay Bratt, informed Trump’s lawyers that the Agents who conducted the search of Mar-a-Lago had seized two expired passports and his still-active diplomatic passport; he invited someone to come get them after 2.

Later in the day, the former President went on his shitty website and claimed that the FBI, which attempted to return the passports within a week, had “stole” them.

Not long after, Norah O’Donnell tweeted that DOJ was not in possession of Trump’s passports.

In response, Trump’s spox Taylor Budowich accused O’Donnell of Fake News. He screencapped the Bratt letter to Trump’s lawyers showing that when the FBI discovered the passport, they made efforts to return them, effectively confirming O’Donnell’s statement that by the time of Trump’s tweet, the passports had been retrieved.

Given the way the warrant was written, there’s an easy explanation for how the FBI could have seized the passports. As I laid out in more detail here, the search worked from classified documents outward. The FBI was permitted to take any box that had a classified document in it, and any boxes stored where boxes storing classified documents were stashed.

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

So if Trump stored his diplo passport in the leather-bound box where he stored the TS/SCI documents he stole, the FBI would have taken it under the search protocols. The same would happen if his expired passports were in a box in the storage closet where he stored his other stolen classified documents.

As the FBI explained in a statement, this is how it works.

In executing search warrants, the FBI follows search and seizure procedures ordered by courts, then returns items that do not need to be retained for law enforcement purposes.

And because Trump is a privileged white collar criminal suspect, he was lucky enough to get things that are out of scope immediately, rather than months later.

Unsurprisingly, then, Trump took an example of the FBI being diligent and used it to gin up outrage.

Worse for him, he is wasting his time.

As I noted Sunday, in response to similar searches implicating Donald Trump, lawyers filed for a Temporary Restraining Order within days.

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.)

There’s no sign of that happening here yet.

As of now, there are at most two unexplained sealed filings on the warrant docket.

Except they’re probably all accounted for: According to the government’s opposition to unsealing the warrant affidavit, Docket 57 contains all the other releasable materials (such DOJ’s own motion to seal), and the two prior entries are likely a motion to seal that filing and permission to do so. Each initially sealed docket entry in this docket has included two other sealed entries before it.

And time is running out for the Donald.

Contrary to what certain journalists have concluded from an email from Bratt that said, “the filter agents seized three passports belonging to President Trump,” that doesn’t mean a filter team currently working found the passports (though I assume a filter team may review materials seized under the SSA receipt a second time). It means that filter agents were used to do the search, as was reported contemporaneously. And now case agents — the people who determine which items are within scope of the investigation and which “items [] do not need to be retained for law enforcement purposes” — appear to be making scope determinations.

DOJ only needs to identify a single classified document to charge the former President under the Espionage Act. And given the way that Trump is ginning up outrage and attacks on FBI agents (which the government cited in explaining the need to keep the affidavit sealed), charging him with a single count indictment describing (hypothetically) the nuclear codes might be a good way to shut everyone up. They could use that to offer Trump a plea deal to lesser charges while they catalog other documents that each could bear a separate 10-year sentence.

If they’ve already singled out Trump’s passports, they surely are processing the stolen classified documents that could expose Trump to years in prison.

And Trump’s still at the manufactured outrage stage of his defense.

Update: Corrected time of Bratt’s email, which was shown with MDT.

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

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

79 replies
  1. notjonathon says:

    “Years in prison”–we can dream, can’t we?
    It’s nice to pretend that they returned his passport(s) in the perhaps vain hope that he flee the country and spare them the hassle of prosecution.

    • Mister Sterling says:

      I have seen more than one person today speculate that if this were the 1960s, and Trump was just some guy in an intelligence bureau, the CIA would just quietly kill him for doing what he did. That’s why this is way (way way way way way) more serious than the Sandy Berger case.

      So yeah, at least 5 years in prison. I think we can count on it at this stage. The GOP establishment is already shifting to DeSantis for 2024. They have finally had enough Trump.

  2. Kevin says:

    Isn’t this Trump going out of his way to confirm that the seized docs were among his own personal items, when he could have claimed they were thrown together with other junk, possibly other people’s stuff?

  3. punaise says:

    The walls are closing in, from all directions it would seem. Rudy now a target, and Lindsey obliged to take the midnight train to Georgia.

    • ExpatR&RDino-sour says:

      I certainly hope and pray, metaphorically at least, that you are right that the walls keep closing and the train keeps running. I’m sure you are right, actually. My worry is that TFG is ginning up a Jan 6 type response on a much wider and more violent level and that a lot of people are ready and more than willing to fall in line with him. He is unique in having the ability to start it all off with a rally. Perilous times.

          • punaise says:

            Life During Wartime

            The sound of gunfire, off in the distance,
            I’m getting used to it now
            Lived in a brownstone, lived in a ghetto,
            I’ve lived all over this town

            This ain’t no party, this ain’t no disco,
            This ain’t no fooling around
            No time for dancing, or lovey dovey,
            I ain’t got time for that now

            Transmit the message, to the receiver,
            Hope for an answer some day
            I got three passports, a couple of visas,
            You don’t even know my real name

              • punaise says:

                Indeed it is. For my money I would choose Remain in Light as a desert island classic, for its polyrhythms and Eno-inflected musical layerings.

                • bmaz says:

                  Eno? The long ago Roxy guy? What he did was not even music, just noise. Belew and Palmer were good sides though.

                  • punaise says:

                    Well, he did do all that pre-emo ambient stuff like Music for Airports, and he did have a penchant for electronics and borrowed sounds, and then African influences – the apotheosis of which might be the pretty “out there” album My Life in the Bush of Ghosts with David Byrne.

                    • punaise says:

                      OK, you made me go there. from Wikipedia:

                      He worked with Bowie as a writer and musician on Bowie’s influential 1977–79 ‘Berlin Trilogy’ of albums, Low, “Heroes” and Lodger, on Bowie’s later album Outside, and on the song “I’m Afraid of Americans”

                    • anaphoristand says:

                      Remain in Light and Fear of Music are indeed my two favorite Talking Heads albums, and I may make over-frequent use of Mea Culpa from My Life in the Bush of Ghosts as social media dunk. I dare say a bit more ambient Eno might find bmaz a (mildly) more mild mannered fellow ;)

                    • John Paul Jones says:

                      My fave was always Harold Budd & Eno’s The Pearl (my copy of which vanished in a long-ago move). But if you want music music, Palmer’s Woke Up Laughing CD has nice rhythms.

                    • Knox Bronson says:

                      Not able to reply to the estimable bmaz, no reply button, it seems.
                      If you don’t understand what Eno did, you simply don’t understand. Eno himself always has said he’s not a musician. I would suggest you try listening to his albums “Another Green World” and “Before And After Science,” (side two).
                      Many consider Bowie’s work with Eno, the Berlin Trilogy, to be his finest (I’m not one of them, but they are great). Eno and Daniel Lanois basically created the sound of the marketing machine known as U2. The list of great artists who have sought out Eno goes on and on. The best tracks on “Remain In Light” are basically Eno songs.
                      You don’t like him? Fine, but show some respect, please.

                  • ExpatR&RDino-sour says:

                    I have to respect a guy that invented an entire genre of whatever it is, but I don’t have to listen to it. I never met a Glam Band that I cared for and Roxy Music was one of those. I can tell you that Eno is highly respected among the English rock star set and affiliates and worked with most of them at some point but, like I said, I don’t have to listen to it. Bryan was/is all right.

                    Met Fripp a few times and he’s a good enough guy. Crimson was ground breaking, and he is a brilliant guitarist. I just don’t like the style… trying through technique to challenge you to figure out what’s going on in the music and making it as complicated as possible. Not for me.

                    • grennan says:

                      Can’t believe nobody mentioned Eno’s most widespread “accomplishment”:

                      he wrote the “Windows Sound (TM)” , the dedummm that played when opening Windows XP and maybe later. It’s instantly recognizable unless you were uni-mac or linux and he’s even credited on one of the properties tabs.

                      (For me that would be plenty to agree with bmaz.)

                • pH unbalanced says:

                  Saw Belew in concert a couple of weeks ago, and he mentioned that they were trying to put together another Remain in Light tour…keep an eye out for it.

                • elcajon64 says:

                  Marc Maron had a great WTF interview with Jerry Harrison. WTF Podcast. Episode 1351, July 25, 2022.

                  • Yorkville Kangaroo says:

                    As a former and now currently musician (I got a haircut and real job in between) I got a bunch of tutelage from one of the musicians attached to Tangerine Dream in respect to electronic music.

                    One always needs to place any sort of use of electronics in music into the contemporaneous period, especially in respect to what sounds could and could not be created and just how difficult it was to create ANY sound electronically especially using analog synthesizers.

                    Try using an EMS VCS-3, a non-polyphonic Moog as a trigger and 1/4″ reel-to-reel tapes!

                    For those that would like to see how hard it was (but what could be achieved) I strongly recommend listening to anything by Tomita.

        • FL Resister says:

          They like to flash the guns around, but did either of the two MAGAs who attempted assault on the FBI exist in human form twelve hours after their attempts?

      • fm says:

        Is it possible that the FBI or such group could be monitoring Trump and his other (likely to be indicted” cronies phones, emails, etc for this given Jan6 and now this on Trump?

    • Mister Sterling says:

      The old men in charge of the justice system have finally said “enough.” They couldn’t ignore Trump any longer. (Scary they thought they could). Sadly, the destruction of the nation has already been completed. American women are now less free than Irish women. Marcy is a damn genius.

      • bmaz says:

        “The old men in charge of the justice system have finally said “enough.”

        What? What were they supposed to do, operate off of internet grievance?

      • BobCon says:

        What happened is that in 2020 the US elected a president who backed a strong, professional DOJ led by Garland, as opposed to the previous guy who installed Sessions, Whitaker and Barr in order to run DOJ into the mud.

        Reducing these events to mysterious forces is the kind of helplessness-inducing nihilistic narrative that helped get Trump elected in the first place. 2016 Russian disinfo, current antivaxxers, right wing social media — they all share a similar message of despair and talk of nebulous controlling forces. It’s dumb to add to that.

        • AgainBrain says:

          Trump’s “MAGA mayhem” threats are as empty as all his other boasts and lies. His MAGA chest-puffing Les Deplorables won’t hold versus a well-trained, heavily-armed military/LEO response in force. Trump wasn’t holding off LEO/military response on Jan 6th because he cared about the military folks, or even cared about his MAGA folks. He did so because once his “MAGA Military” bluff is finally called, it’s basically all over for him.

          ALWAYS call Trump’s bluff.

    • Alan Charbonneau says:

      Lady Lindsey is takin’ the Midnight Train to Georgia — takin’ it for Donald J. Trump, singing on that ride: “I’d rather live in his world Than live without him in mine”

  4. jeco says:

    The response is addressed to Evan/Jim. Evan is Corcoran, the competent trump lawyer possibly hung up by issues relating to his attestation that all docs were returned. Any idea who Jim is? (I heard from among the hundreds of talking heads, that Boob was the lawyer who signed the assurance)

  5. greenbird says:

    reading the gov response, DE 59, i’m left with loud reverberations from repeated references to “preindictment stages” as a lovely sound of hope … and i love timpani.
    even more, the opening to ‘Eroica.’

      • greenbird says:

        well, yes.
        but it seems to me that this motion uses lots and lots of similar terms in the manner of Olympic ping-pong champs, or a murmuration of variants of ‘pre-indictment stage’.
        i’ll go count, just for my record.

    • DBrooks says:

      +1 for the Eroica reference. Not just the two heavy blows, but the angry scratching out of the name of a hero who turned out to be a tyrant.

      • obsessed says:

        The passage beginning here ( uses the same rhythm (XoX oXX oXo XoX) that underlies a massive amount of West African music, or at least the Afro-Cuban folkloric music into which it evolved. It states the rhythm, then turns it inside out and states it again. It’s pure genius. How old Ludwig arrived at that particular figure is endless fascinating to me. He was as unhealthily obsessed with the tiny details of motives as we all are with the tiny details of political scandals.

  6. Chuck says:

    Former US Attorney and current Michigan lawprof Barb McQuade has commented on Twitter that perhaps the collection and then release of the Trump passport(s) was not incidental or accidental; that it may have been part of routine practice to deliberately collect personal identification documents in close proximity to documents and things subjected to the warrant. For reasons of foreclosing arguments that the subject was unaware of or unconnected to the seized documents.
    In any event, “mission accomplished.”

    • jhinx says:

      Oops, here’re your passports back. We didn’t mean to take them, but they were in amongst all the secret stuff you stole.

    • Drew says:

      I read that as seizing ID documents when found in relation to other documents -not so much going out of their way to get them, but making sure to document where the ID was found to show that the other things seized weren’t just in the janitor’s closet, where the janitor had stashed stuff prior to taking it out to sell on the black market, or whatever.

  7. punaise says:

    Stolen from the funny guy at DKos:

    President Biden secretly reclassified everything Trump stole at 12:01 on January 20, 2021.
    — I Smoked Trump’s Passports (@BlackKnight10k) August 14, 2022

  8. markover 2066 says:

    Thanks, Marcy. I doubt that DOJ will follow your suggestion, though, for at least two reasons: 1) Trump and his sycophants would crow “see, the FBI overreached. There was only one measly document and the seized more than twenty boxes. 2) They are investigating something much bigger, including who else had access to the documents, and for what purpose, and what else did Trump do, or intend to do, with them.

  9. Spencer Dawkins says:

    From the post: “Later in the day, the former President went on his shitty website and claimed that the FBI, which attempted to return the passports within a week, had “stole” them.”

    Am I the only person who strongly suspects that Trump didn’t know the FBI had his passports until the FBI contacted his lawyers to return them?

    • skua says:

      Nice catch. Sounds like the basis for a Fawlty Towers episode.
      Now Basil are you quite sure you’ve got everything?
      Yes dear, everything is taken care of.
      Have you got the xxxxx?
      Of course dear, I’ve already told you that everything …
      [2 minutes later]
      Petunia please stop going on about the FBI taking the xxxxx along with the NDI and classified documents I stole. It’s really not a problem dear. I’ve got Manuel spraying accelerant in all the unoccupied rooms.

    • P J Evans says:

      That sounds like his speed. He didn’t know they were missing until he wanted to look at them (and gloat over that diplo passport). Which implies he didn’t know that they were in a container that the FBI got.

      • FLwolverine says:

        And I would still like to know why he left the passports in Florida when he’s spending the summer in Maryland? It seems like the kind of personal document one would want to have readily available – suppose he wants to go to an LIV tournament in Bangkok or Jeddah?

        Maybe he has another passport at Bedminster?

        • BobCon says:

          These were two expired passports and one diplomatic passport, which he would only use if he was on official US business. But there’s no chance he would be called on as an official representative like Obama, Bush or Clinton might be for something like attending a state funeral. He knew these were all useless as passports.

          • Raven Eye says:

            Former Presidents are issued new diplomatic passports as a matter of routine.

            What probably galled Trump is that it identifies the bearer as a “Former President of the United States”.

            If it is allowable to use that passport on a non-official foreign visit there may or may not be a requirement for a visa, and he might not (most likely not?) have diplomatic immunity — both of those are treaty or bilateral agreement things.

            The “bonus” part is his security detail. In a former job, when our Service Chief made international trips (often to the UK) our office was “Info’d” the advance message. Among the other details, any member of his security detail was identified by name, their firearms were identified by make / model / serial number, as were the number of rounds carried. A former president would be carrying quite a tail.

  10. Doctor My Eyes says:

    I went from catching up on Ukraine to catching up on Trump’s espionage (the term seems a bit sophisticated for the kinds of crude criminality Trump engages in). There has been this feeling for a couple of months now that the walls are closing in on Putin’s imperialism at the same time that the walls are closing in on Trump’s destruction tour. It does seem as though we’re slouching toward an inflection point.

    In my humble opinion, there is no space to be wishing and hoping that everything gets taken care of cleanly and legally with no untoward behavior from the perp and minions. This is a war on both fronts engaged without hesitation by the enemy. Trump’s threats and the behavior of his terrorist lackeys are part of the battle and they will do what they will do. The task is to defeat Russia in Ukraine and to neutralize Trump in the US. The USG will come after Trump using the full force of the law grounded in the constitution–it is known that Trump will respond with illegal means and threat of force. In the end, things will come down to force but the force applied by the USG will have the sanction of law. I wish there were less reacting to Trump’s threats and ridiculous defenses and much more of the kind of focus EW brings, which is on facts and the effective application of the law. It shouldn’t be news that Trump hopes to protect himself with thugs so that he can bully his way out of difficulty. I wish I felt more people had an appetite for the challenges ahead. Appeasing bullies never works. This is a fight worth having. I hope there is an appetite for it.

  11. Legonaut says:

    IANAA (I Am Not An Archivist), but I would expect that Trump (or, more likely, one of his abettors) would have created some kind of an index of his document trove.

    Two possibilities leap to mind:
    1) No index exists. Trump is Smaug, pulling out the shiniest-to-him pretties to wave around for entertainment value (or more nefarious purposes), but otherwise content to just rest on his piled-up hoard of treasure. He doesn’t know the hoard’s overall value because he’s never counted it, identified items with a limited shelf life, etc. — especially in the likely event he didn’t pack the boxes himself. He’d have to trust/co-opt/coerce someone to be his “search engine” and paw through it all if he wanted something specific; he’s not likely to spend any time handling paper himself.
    2) The index exists. Trump wants to be able to use the documents later for whatever (un)foreseeable reasons, and needs to retrieve things on demand. With rudimentary sorting, even a simple list like the FBI receipts would be better than nothing. For Trump, the index itself would almost certainly be on paper at Mar-a-Lago, possibly in a distinctive leather binder/box, and would hold clues to the possibility of yet more unrecovered materials (perhaps in other locations).

    Of course, a smart criminal would’ve scanned everything into a searchable document store (since it’s about the data, not the paper per se) and surrendered the vast bulk of it to NARA back in January 2021, avoiding this entire kerfuffle.

    • P J Evans says:

      Remember that the former guy doesn’t like computers (other than his phone, which he may not realize is a computer).

    • grennan says:

      No way. When would such an index have been generated? And by whom?

      In addition to P J Evans’s great point about him and computers, he didn’t like sensitive (to him) stuff written down, including his attorneys taking notes; the stuff was packed at least somewhat chaotically; and wherever his motivation, intent and schemes fell on the spectrum from terrible to less terrible, he wouldn’t need or want an index.

      Vague and disorganized allows the possibility of making excuses later, always a priority. Specific and written removes that option.

      I could see others thinking there should be a list but not being allowed to sit down and make it. It would have impossible to do it anywhere near accurately during the 12 – 14 days they were packing, and less likely as time went on in Florida

  12. Sela says:

    It’s probably not the nuclear codes. My understanding is that nuclear codes change very frequently, and a document that describes old (i.e. expired) nuclear code is probably worthless. Other kinds of nuclear weapon info could be much more damaging.

    • grennan says:

      Not the codes, per se, but possibly brief instructions to Trump: “The codes change daily at xxxx….while in shower, do xxxxx…..hit red button to reset….”

      Some early speculation mentioned the algorithm to generate the codes but it seems unlikely that it would have gone to, or been of interest to, any president.

    • Yorkville Kangaroo says:

      I wish people would stop following the non-existant breadcrumb trails from Box 2A (which merely says TS/SCI) to the nuclear codes.

      POTUS does not SEE the codes until he NEEDS TO KNOW them. That’s what the football is for. The information is entirely compartmentalized.

      • Einlalaland says:

        I’ve been wondering if the nuclear info. may not be about nuclear intel from a country other than the US.

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