Pat Philbin Knows Why the Bodies Are Buried

Back on August 11, I predicted that Pat Philbin would have been one of the witnesses whom DOJ interviewed in advance of the search of Trump’s golf resort.

Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

Yesterday, Maggie Haberman confirmed that I was correct (and also reported that Pat Cipollone was also interviewed; Cipollone may have been the lawyer the Archives called after Philbin failed to get Trump to return the documents).

Mr. Philbin was interviewed in the spring, according to two of the people familiar with the matter, as investigators reached out to members of Mr. Trump’s circle to find out how 15 boxes of material — some of it marked as classified — made its way to Mar-a-Lago. It was unclear when Mr. Cipollone was interviewed.

Mr. Cipollone and Mr. Philbin were two of Mr. Trump’s representatives to deal with the National Archives; they were named to the positions shortly before the president’s term ended, in January 2021. Another was Mark Meadows, the former White House chief of staff.

At some point after National Archives officials realized they did not have Trump White House documents, which are required to be preserved under the Presidential Records Act, they contacted Mr. Philbin for help returning them.

A spokesperson for Mr. Philbin did not immediately respond to a request for comment.

Mr. Philbin tried to help the National Archives retrieve the material, two of the people familiar with the discussions said. But the former president repeatedly resisted entreaties from his advisers.

“It’s not theirs, it’s mine,” several advisers say Mr. Trump told them.

For the reasons I laid out above, it’s unsurprising that FBI interviewed Philbin (and Cipollone, if he is the other lawyer NARA appealed to). This was a referral from NARA, and they would have explained to FBI what CNN explained in February: that NARA had worked patiently with Philbin, but that Philbin failed to persuade Trump to comply with the Presidential Records Act.

Philbin’s early role in DOJ’s investigation is complicated, however, because the investigation implicates (at least!) three legal relationships Philbin has had with Trump:

  1. As a member of the White House Counsel Office that, among other things, first altered, and then withheld the full transcript of the Perfect Phone Call between Trump and Volodymyr Zelenskyy, provided legal advice about classification issues, and also advised staff as Trump’s team packed up
  2. As a member of Trump’s first impeachment defense team, which might have turned out differently if that full transcript had been shared with Congress
  3. As a liaison with NARA at a time when Trump was no longer President, probably formally within the context of his designation as a Trump representative to NARA

Philbin’s ethical obligations and legal exposure from all three of those relationships are different, but knowledge gained from all three positions would be of acute interest to the FBI.

Plus, Philbin has a deep background in national security law from the George W. Bush Administration. He played a key role in the review of John Yoo’s shoddy OLC memos and the related hospital confrontation between Jim Comey and Dick Cheney. Particularly after NARA referred the issue to FBI, it wouldn’t take long for Philbin to have appreciated the problem posed by all those unprotected files sitting in a closet in a golf resort targeted by foreign intelligence services. Nor would Philbin miss the legal gravity under the Espionage Act — for Trump, as well as for anyone who conspired with the person refusing to return stolen classified documents — implicated by Trump’s refusal to turn over what he had taken. And as a lawyer with at least another decade of private practice before him, I imagine Philbin would want to keep his clearance.

Those factors are important because Philbin knows why the bodies are buried — the decision-making process Trump used to handle classified information and the rationale Trump gave him during the period when Philbin was trying to negotiate the documents’ return.

Philbin may not have recent knowledge of where the bodies are buried: where Trump stored documents at Mar-a-Lago. But because he tried to chase these documents down in 2021, he would have a general understanding of what Trump’s storage practices were until such time as someone else inherited the problem, including whether they complied with CFR rules about minimum standards for storing classified documents (DOJ told Trump in June that they did not).

He would have a general idea of what bodies are buried. Because he tried to negotiate their return over the course of months, he would know the general scope of the documents Trump took with him in 2020 and may well have specific knowledge of individual documents NARA identified to be missing. He may know, for example, about specific documents that Trump was particularly opposed to returning. Speaking just hypothetically, that could even include the full transcript of that Perfect Phone Call that Philbin’s office had helped to keep out of the hands of Congress, potentially a violation of 18 USC 1519. It might also include documents Philbin saw in the lead-up to January 6, documents that would have been responsive to the known January 6 Committee subpoenas to NARA for Trump’s records. That means Philbin is among the people who may have been able to confirm to the FBI that documents excluded from the 15 boxes returned earlier this year were at Mar-a-Lago during the period he was negotiating their return. Such information is the kind of thing that the FBI would have included in the subpoena to search MAL.

But the most important thing that Philbin would know from his various interactions with Trump has to do with motive: Why the bodies got buried. Maggie quotes several advisers, possibly including one or both of the two Pats, that Trump told them, “It’s not theirs, it’s mine.” And it may be that’s the only motivation Trump ever expressed to Philbin. Trump is such a narcissist he really may just verbalize his theft of these documents by claiming ownership. But Philbin had firsthand knowledge of other efforts to withhold materials, as evidenced by the Perfect Phone Call transcript. He likely knows of Trump’s habit of ripping up burning eating or flushing damning documents. Philbin was still trying to get Trump to return documents after the time the January 6 Committee was convened, so Trump may have stated to Philbin what Paul Sperry claimed yesterday: that the reason Trump is withholding documents is because he knows NARA is legally obligated to share those documents with J6C.

Given the complex ethical issues he’d face, Philbin might not have been able or willing to share some of what he knows with the FBI, at least not at first. But the risks of an Espionage Act and obstruction investigation, including 18 USC 793g, which can be used to charge anyone involved in refusing to return classified documents even if they don’t share the motive of refusing to return them, might change Philbin’s ethical calculus. An experienced NatSec lawyer like Philbin would know that the Espionage Act carries an affirmative obligation to give classified documents back, particularly if their lawful owner, NARA, has asked. Once FBI got involved, Philbin would want to avoid any legal liability for his failure to convince Trump to comply, and Trump’s continued failure to comply would be a crime that might give Philbin the ethical leeway to do that.

When NARA asked Philbin to help them get those documents back, Philbin failed. That puts him in situation where he may have real incentive to explain both what Trump said to explain his refusal to comply with the Presidential Records Act, but also what, in Philbin’s personal knowledge gained two years as Deputy WHCO, several months during an impeachment defense, and much of a year as Trump’s NARA representative, Trump did when he took steps to make documents covered by the PRA unavailable to the NARA.

Update: As you consider the import of Philbin’s testimony, consider the significance of this reference in the government opposition to further unsealing of the Trump warrant.

Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.

Philbin has been subpoenaed in other investigations of Trump. But this passage suggests that if the extent and terms of his cooperation are made public, it may lead him and others to hesitate before cooperating in other investigations.

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

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

112 replies
  1. JWMK says:

    “legal liability for his failure to convince Trump to comply” – that doesn’t sound right. Is that really what the statute says?

    • PieIsDamnGood says:

      “18 USC 793g, which can be used to charge anyone involved in refusing to return classified documents even if they don’t share the motive of refusing to return them”

    • Sela says:

      Here is the language of the relevant provision:
      “(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.”

      ANAL, but looks like if he had the knowledge about documents trump refused to return and covers for Trumps, he becomes a co-conspirator.

      • jeco says:

        So if Philbin merely responded to Archives “I couldn’t convince him to return the records” and knowing or suspecting the significance of the records without Whistle Blowing to the FBI then he slides into co-conspirator territory even though he didn’t share trump’s motive.

        You don’t have to be an active conspirator, even a passive conspirator is involved.

        ” ‘Any act’ to effect the object of the conspiracy” could touch a lot of people over 20 months and the penalties could loosen a lot of lips and sphincters.

        • Drew says:

          It’s not the failure to get Trump to comply but his going along with it. If he tells the FBI the efforts he made and what happened when he did those things and how he responded, etc then he avoids the liability.

          • ollie says:

            read the post again. Marcy lays out the whole thing and, and connects it to why Philbin might be more willing to help…he still has many years left to lawyer and doesn’t want to jeopardize it. yeah?

            • Yorkville Kangaroo says:

              I don’t know that this is correct.

              Many lawyers are privvy to information regarding their client’s illegal activities. This does not place them in legal jeopardy unless they become accessories to the illegal activities in question.

              Thus, an imagined and abridged discussion between the two:

              Philbin: What are these boxes full of stuff you’re not supposed to have?
              Trump: They’re mine!
              Philbin: You do know it’s a criminal act to not return these to the Federal givernment?
              Trump: They’re bigly mine!
              Philbin: They’re also not stored correctly.
              Trump: They’re yugely mine!
              Philbin: That’s your funeral!

              Having discharged his duty as legal counsellor and having nothing else to do with the matter I can’t see how Philbin would be in jeopardy though Dr. bmaz could advise us otherwise.

              That’s not to say that Philbin (and Cipollone) won’t know EXACTLY what to say and HOW to say it when asked by the DoJ about this without circumventing attorney-client privilege. We saw this in the J6C hearings. And the DoJ will know HOW to ask.

              • Vicks says:

                The wording on the designee document appears to makes the people Trump named responsible for the “protection and disposition” of the documents.
                Ms Wheeler pointed out that Philbin’s prior relationship with some of the documents and his position as White House Counsel could/should be justification for the pressure being put on him and perhaps some of the others.

                • timbo says:

                  There seems to be a lot of wiggle room there when it gets to arguing intent vis-a-vis Philbin and this current issue with the documents seized this month at MAL, n’est pas? Philbin does have a lot of problems but maybe he doesn’t have as many problems here than elsewhere. On the other hand, if it comes out that he willingly went along with failing to comply with any Congressional Committee subpeonas or gave inaccurate testimony to grand juries, gave misleading statements to counterintelligence investigators, etc… and the proof is in these documents… well, that means getting out of those niggling problem(s) would be Philbin’s main interest. One might think anyways.

  2. Rugger9 says:

    As usual, a well-thought-out post but I do have a minor quibble on item 2 regarding legal relationships. There was zero chance of a conviction in the Senate even if several votes changed because of the full transcript release.

    That’s because the GQP has been fully in the bag for Individual-1 after he secured the nomination in 2016, look to the examples of the Ukraine plank in 2016 and the complete change to ‘whatever he wants’ platform in 2020. In terms of Russian footsie, many GQP leaders are also likely to be implicated if it ever is fully investigated and McConnell et al knew Individual-1 was the only one who would prevent that revelation long enough to bury it as old news.

    • timbo says:

      There’s never a “zero chance” of anything in politics. Believing that is true means that one does not act when one should. Your statement begs when it would be that you would decided to go through with an impeachment hearing. Would you have in this case?

  3. dc says:

    I think back on the days when Philbin was involved in the effort to prevent Gonzalez and others from having comatose Ashcroft sign the warrantless wiretapping reauthorization and hope there is some ethical compass guiding him. The truth may be that it is only self-protection that motivates him, so it’s nice to see you lay out how that could be driving the process that has us here now. I would not hold out much hope for him to go one inch beyond what he needs to do to self-protect in the document inquiry.

  4. Riktol says:

    I wonder if Philbin was offered any of the increasingly desperate defences that Trump and his surrogates are floating (like the declassification by thought, or the standing order to declassify everything)?

    • timbo says:

      More likely he would invoke the 5th if all the other privilege options have run out and he in any way perceived himself in any legal jeopardy. At that point, immunizing him in exchange for testimony becomes very tempting. And that might already have happened by the way. No way to know one way or the other at this point, considering that most of the leaking doesn’t seem to have been coming from the DOJ side.

  5. BobCon says:

    “Philbin may not have recent knowledge of where the bodies are buried: where Trump stored documents at Mar-a-Lago. But because he tried to chase these documents down in 2021, he would have a general understanding of what Trump’s storage practices were until such time as someone else inherited the problem”

    Which would mean there is a good chance he knows who to ask. I think it’s unlikely Trump had more than a few people he trusted with keys and with transporting boxes, and if Philbin doesn’t know where things are, he can probably help cut through smoke screens about who to ask.

  6. Xboxershorts says:

    Matthew Chapman has a story just published saying, and this makes sense knowing what we know about TFG’s narcissistic tendencies, at least some of the documents were retained because they’d provide TFG with some kind of leverage. Business leverage, revenge leverage, what have you. And that’s Trump all the way.

    But another story, this one from Alternet suggests that the FBI was also looking for early Trump admin documents that would have details on “Russiagate” or Hoax or whatever they are calling it today.

    That would tie in with the former story about leverage very nicely as there could also be details on the leverage he may still hold over much of the Republican party.

    As they say in 12 step rooms: “More will be revealed”

    • Rwood says:

      While I’m all in favor of trumps demise I can’t help knowing that his removal is a plus for DeSantis, who I view as an even bigger threat.

      If any of that leverage you mentioned were tied to him it would make my day.

      • Raven Eye says:

        This is indeed a frightening prospect. DeSantis is smarter than Trump, much more educated, and knows how to pervert democratic norms through approaches that don’t just rely on being the loudest person on the podium.

        • ThomasH says:

          De Santis is all of that, of course. But he lacks that razzle-dazzle, wounded ego showman that the MAGAt-sphere seems to love so much. Not that I take any comfort knowing that.

          • MB says:

            Hmmm…(scratches head)

            If DeSantis can’t articulate their grievances in just the perfect emotional fashion that Trump embodies, then maybe (just maybe) that would become the catalyst for the beginning of the dissolution of the cult?

            I mean, if deSantis is merely super-mean-spirited but unable to play the perfect victim to keep those in the base “cemented”, then…

            Also, Adam Kinzinger was interviewed on MSNBC today and he flatly stated that many in Trump’s base believe in and are told by their church leaders that Trump is the embodiment of Jesus Christ. Not kidding. Doubt if the Jesus mantle could be easily conferred on / transferred to deSantis.

            • Ginevra diBenci says:

              Kinzinger is right. If you read comments on a site like Epoch Times, you will soon discover that Trump as God’s imperfect messenger morphs into Trump as Risen Christ with mercurial ease.

            • Rwood says:

              I wouldn’t rule out his appeal to the maga Troup. I live here in Floriduh and I can tell you he’s pulling it off in the numbers needed.

              • MB says:

                Sorry to hear that. I guess that means Floridians are not a real discriminating bunch when it comes to their Jesus-substitutes…

            • CJ-FL says:

              DeSantis did a fine job of turning magas against Disney World! Pedophiles and groomers he called the ceos, for defending civil rights.

          • notjonathon says:

            There was a certain politician, a Governor of Wisconsin, I think, who was a shoo-in for the Republican nomination a while back because of (not in spite of) his utter dismantling of any semblance of good government there. Now I can’t even remember his name.

              • notjonathon says:

                Yes, I remembered the Scott part, because of the name echo to the odious Rick Scott, but what I was trying to imply was that today’s inevitable and unbeatable candidate is tomorrow’s history trivia quiz.

  7. L. Eslinger says:

    So far, it seems that the most reliable way to predict the actions of Trump satellites is to imagine them doing the opposite of what is is right, sensible, and logical. It’s as though they are all moths frantically orbiting a flame that they know can kill them, but inching closer all the same.

    Philbin has demonstrated a willingness to debase himself, which tilts his path in an unfortunate direction.

  8. punaise says:


    Fun Times in TrumpLand

    The Justice Department says [the affidavit] should remain sealed to protect the integrity of the investigation, to safeguard witnesses and keep them talking, etc. None of that is a surprise. But according to the article the Trump team is actually eager to see it because they have no idea what the DOJ’s next move may be and are desperate to find out. Indeed, according to the article, members of the Trump team have been reaching out to reporters trying to get clues about what the DOJ is planning. The choicest claim is that the detail the FBI agents had about what was where, where things were being stored, has sent the Trump legal team into a kind of tailspin of mutual suspicion and recrimination about who the leaker is.

      • wetzel says:

        If you look at it from that framework, it’s almost impossible to see how the prisoners can cooperate here given the wording of 18 USC 793g. In the context of prisoners’ dilemma, the story that Trump had somehow instituted a declassification standing order might have been the fantasy play for Philbin and Cipollone to follow, a desperate hope to free everyone this touches from the jeopardy of the Espionage Act, but if DOJ has already conducted interviews with Philbin and Cipollone, then I guess it’s too late for them to get on board with that ridiculous story.

        • timbo says:

          Unless it was one of those ex-WH lawyers that used insta-declassification as an explanation as to why the documents are at Mar-a-Lago of course. Seems like whoever might have tried that tact, if it ever was tried in direct talks with NARA—I mean crazier things have happened, right?—that DOJ ain’t buying it.

  9. Savage Librarian says:

    For the Taking

    Red is right,
    And right is white,
    And blue is for forsaking,
    An epoch in the making still stands tall.

    What’s yours is mine,
    It’s how I shine,
    Of this there’s no mistaking,
    Evoke my fun speech making,
    heed the call.

    Mine’s not yours,
    Not his, not hers,
    We never had handshaking,
    The history of this fake king tells it all.

    Might makes right,
    It’s in the fight,
    It’s all there for the taking,
    My kismet’s in lawbreaking, it’s a brawl.

    [4/17/22; rev. 8/17/22]

    “Mrs. Mills – Mairzy Doats & Dozy Doats (Mares Eat Oats & Does Eat Oats)”

  10. Flatulus says:

    I sure hope the FBI is planning to exhume Ivana’s coffin to see what besides her corpse resides there.

    • MB says:

      (dark fantasy-speculation): the missing TS/SCI nuclear weapons docs that FBI was searching for but didn’t actually find at MaL ?

    • rip says:

      Bet there’s no body there – takes up too much room.

      Maybe the kids had a roast of mom?

      Still wonder about the strange blunt force injuries to her torso that caused her demise. Usually a fatal fall down a staircase is more head injuries. (Remind me to pad my wooden staircase.)

  11. Cosmo Le Cat says:

    I know of at least 2 words that bmaz does not allow on EmptyWheel without a lashing, RICO and treason. Former deputy assistant attorney general, Harry Litman just used the phrase, “the state version of RICO” speaking on MSNBC in reference to charges Giuliani may face in GA.

    • bmaz says:

      States have far different, and sometimes broader, versions of RICO than Federal. I still think it is stupid to attempt, but Fani Willis is such an ethically dubious publicity hound, she may try it. Littman probably shouldn’t be throwing it around though.

  12. Bay State Librul says:

    While we are on the topic

    Here is another chap who knows where the bodies are buried

    “But Mr. Weisselberg is expected to admit to all 15 felonies he was charged with and will have to testify about his role in a scheme to avoid paying taxes on lavish corporate perks, the people said. That requirement will put the company at a disadvantage and make Mr. Weisselberg a central witness at its trial in October, where it will face many of the same charges.” NY Times

    Sweet deal he might get — 15 felonies and 5 months?

    Can the dead bodies be exhumed?

    • Nick Caraway says:

      Well, the article says that Weisselberg will not have to testify against Trump or any other Trump family members. So… for Weisselberg, “his body, himself? ”

      That said, let’s hope that Bragg will be able to add Weisselberg’s admissions to other evidence that will help make a broader case against the Trump Organization if not against Trump himself.

  13. WilliamOckham says:

    I’ve been thinking about The Two Pats and the first item listed on the warrant receipt:

    1 – Executive Grant of Clemency re: Roger Jason Stone, Jr.
    1A – Info re: President of France

    Compared to the rest of the entries, that seems oddly specific. In wondering about why that is the first item on the list, I’ve come up with a SWAG about it.

    That document is [an important part of] what they were looking for! That is, they specifically knew that a secret pardon for Roger Stone existed and contained information about the President of France.

    My only explanation for this is bureaucratic Fingerspitzengefühl. When trying to understand a government produced document about which we have limited information, I fall back on the mechanistic nature of modern bureaucracies. The individual FBI SA might misspell “Top” in “Top Secret”, but they would never accidentally put Roger Stone’s name on the receipt. It’s there for some bureaucratic necessity. And I have a hard time coming up with an alternative explanation.

    And if a secret pardon of Roger Stone exists, the most likely people to know about it are The Two Pats.

    • WilliamOckham says:

      If I was the paranoid type, I would think that posting that comment caused my main internet connection to fail. However, I took statistics and know that correlation is not causation.
      (Posted from my phone)

      • emptywheel says:

        I hope to lay out my theories about that tomorrow.

        I believe it would date to after they arrived. But I’m not sure they WOULD know about it. In fact I think it violates Cipollone’s rules of pardons.

        • WilliamOckham says:

          I will expand on this a bit. I don’t think The Two Pats notified the government about it. I suspect it went more like this. Somebody at the archives found some evidence of a secret Stone pardon (probably emails). They checked with the pardon attorney. She didn’t know anything about it. Then they asked The Two Pats and they said they never approved another Stone pardon but there was a lot of talk and maybe some had suggested a plan. And the DOJ says, “You mean like this?” and shows them the evidence from NARA that it really happened. The DOJ realized that there was a one-of-a-kind original record with classified information that was nowhere to be found. So, after asking the Trump team for it and getting some sort of run around, they sent the one guy from DOJ who is cleared for everything to Mar-A-Lago. And the Trump team denied it again. Then they got the search warrant.

          At least, that’s how it would go if I was writing this season…

          • earlofhuntingdon says:

            Imagine how bad the dirt must be that Roger Stone must have on TFG for Trump to issue an unprecedented and legally questionable “secret pardon.”

            • bmaz says:

              Still not sure a “secret pardon” or “pocket pardon” would be effective in court. Maybe, but it would take a lot, including Trump himself backing it up under oath in open court.

              • Molly Pitcher says:

                bmaz, just back from Barrio Cafe, and holy Toledo, was it delicious !! Plus the people are super nice.

                Thank you for the recommendation.

                I owe you one, when next you come to the Bay Area.

                • timbo says:

                  That’s untried as yet. However, if an ex-President comes to testify it’s not clear what weight a court and the Federal judicial system might give to the notion. You’d think it would be denied out of hand but if ex-POTUS can and will actually testify under oath in the affirmative… that’s up for the courts to worry out. As was mentioned here in emptywheel earlier, there’s cosplay and then there’s for real when it comes to statements and handwritten notes. Certainly, the Congress should help clarify when and how a Presidential pardon must be issued by passing some laws regarding?

  14. Ginevra diBenci says:

    I heard that Trump rescinded Philbin and Cipollone’s designation as NARA representatives two months ago, replacing them with Kash Patel and John Solomon. This was my reason for first suspecting the Two Pats’ testimony as causally related to the FBI search. But I can’t remember or find where it was mentioned. Does anyone else recall this?

    • emptywheel says:

      That’s not really what happened. Their role is somewhat different. So they’re still the same five people.

    • Geoguy says:

      This is a comment by joberly at the ABC’s post: joberly says:
      August 15, 2022 at 11:46 am

      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.

      • Ginevra diBenci says:

        Thanks, Geoguy. I don’t know how I missed the Joberly post; maybe the information overload confused me into memory-holing it. Nothing Trump did or does makes sense, but at least this seems to refute my understanding that Philbin and Cipollone’s designations had been revoked.

      • timbo says:

        Interesting. So someone is arguing that “insta-declassification” happened in that small window between removal of the three from the PRA responsibilities on Jan 19 2021 and when Trump left office 36hrs later?

        I wonder what those three have said about the “insta-declassification” balloon…

  15. Savage Librarian says:

    Tip of the Speer

    The landfill and the trash bin
    had a meeting in the dark,
    They came across a jar of gin
    as junkyard dogs began to bark.

    The cost of opportunity
    was not wasted on these two,
    They knew that in their unity
    they’d cook up some foul woo woo.

    They found a moldy blueprint
    an architect had tossed,
    smudged roughly with a shoe print
    where a body politic had crossed.

    Just as Goebbels’ propaganda
    was the tip for Albert Speer,
    this trash now had command of
    a message that is clear:

    Put the con in confidence,
    Place the con in fraud,
    Guarantee a providence
    and repeat it, then applaud.

    Lead them down a garden path,
    Promise them the moon,
    Then sling a slimy mud bath,
    And sing another tune.

    It’s time to do the Dersh Walk,
    So, give yourself a pinch,
    Don’t let truth cause you to balk
    because lying is a cinch.


    Confession time: Patrick Philbin was my inspiration for this poem during the 1st impeachment. See the 1st line: Landfill > trash bin. (tee-hee, get it? fill bin.) Then the 3rd line: jar of gin > Ginni (Philbin clerked for Clarence.)

    Cipollone used the phrase “opportunity costs” during the Senate hearing, thus the 2nd stanza. In the 5th stanza, “fraud, Guarantee” alludes to Lev Parnas. Last stanza speaks for itself.

  16. Rugger9 says:

    OT, Mike Pence (R-Bootlicker) said at a ‘Politics and Eggs’ breakfast that he’d give ‘due consideration’ to testifying to the J6SC before also saying it had never happened before. I’m with Digby on this one, since this is a phrase used since time immemorial to bury unpleasant tasks without saying no. She also notes precisely how wrong Pence is to say it’s never happened before for POTUS or VPOTUS to testify before Congress. Pence is gaslighting as usual, and it’s not like he’s not already a universal pariah in GOP/GQP circles. Let’s remember that the guy pulled the plug on his re-election as deep-red IN’s Governor because he’s a sanctimonious phony and he knew he’d lose ‘bigly’.

    • Yorkville Kangaroo says:

      Not necessarily.

      I think that the former VPOTUS sees himself as the great ‘white knight’ (with the emphasis on white) given all the reflected glory imbued upon him from his ‘brave and heroic’ stance against The Donald on J6.

      He possibly believes that the J6C will likely treat him with deference, if not kid gloves, if he appears thus burnishing his image further in what’s left of the GOP rump.

      Pence/Cheney ticket in 2024?

      • Tom-1812 says:

        Mother would have to approve, and I don’t think Pence would go for the idea of having a VP with such an obviously dominant personality. I’m also inclined to think Cheney considers Pence to be damaged goods and to have soiled himself politically by not denouncing Trump more forcefully. Pence is too much the “summer soldier and sunshine patriot” who will shrink from openly antagonizing the MAGA mob.

      • KayInMd says:

        “Pence/Cheney ticket in 2024?”
        Yeah, I’m pretty sure Liz would insist on top billing, if she agreed to run on a ticket with Pence at all.

  17. Ed Walker says:

    I’m going to point this out again. There are a whole lot of boxes. The FBI identifies 70+. You can’t find anything in those boxes without a list.

    Who prepared the list? Who typed up the list. Where’s the list? Which computer is the list on? Who has a copy of the list?

  18. Tom-1812 says:

    In Liz Cheney’s concession speech last night, she referred to the two days of bloody fighting in the Battle of the Wilderness of May 5-6, 1864, and Grant’s determination to keep marching south and continue his Overland campaign against Richmond rather than retire north to regroup and refit as previous Union generals in the East had done after encounters with the Army of Northern Virginia. The best description of this moment I’ve ever read is from Fletcher Pratt’s 1935 book, “Ordeal by Fire”.

    “The Army of the Potomac had suffered frightfully, 17,000 men down, more than twice as many as the rebels had lost. The new general from the West had fared no better than the others against Lee, the war would never end and the Union troops crawled out of their lines and began to head away eastward along the dark roads. ‘Licked again, by crackey!’

    At Chancellorsville House there is a three-corner. The road to the left led back across the Rappahannock, back to the Potomac, out of that grim wood to fortifications, comfort and safety; that on the right led past the rebel front, deeper than ever into the perilous and uncertain Wilderness. As the defeated troops came slogging down to the turn, the dispirited soldiers saw dimly a man in an old blue coat sitting horseback at the crossroads with a cigar in his mouth. He silently motioned the guides of each regiment down the right-hand road. Grant.

    They stared a moment—and then the slanting lines of steel took the road to terror and death, upborne on an uncontrollable wave of cheering. ‘That night the men were happy.’ They could never be beaten now.”

    As she continues her fight against Trump and Trumpism in the days and weeks ahead, I hope Ms. Cheney finds a way to include the declaration, “I propose to fight it out on this line if it takes all summer” into one of her speeches.

  19. Rwood says:

    I wouldn’t rule out his appeal to the maga group. I live here in Floriduh and I can tell you he’s pulling it off in the numbers needed.

      • Epicurus says:

        I assume Rwood is referring to RD. What will be pulled off is the belief that RD is better than any other MAGA alternative because he is manifesting MAGA beliefs incarnate without the DT baggage. Who knows if a Yale/Harvard graduate actually believes such nonsense, but the nonsense serves as a remarkably useful election/power grabbing tool. The numbers needed are 501 out of 1,000. Anyone can visit Florida and take a personal, sample poll.

        Mr. Hofstadter, a former editor of Scientific American, once said if you can believe in God (or a god for that matter) you can believe in anything. Say hello to Ron DeSantis.

        • Rwood says:

          You are correct, sir.

          My comment appeared in two places. What I get for using my phone in a moving vehicle. My apologies to the mods. (I’m not driving!)

  20. bg says:

    I was recalling Wen Ho Lee’s adventures back in the day. I refreshed my memory at Wiki: “the government conducted a separate investigation and was ultimately only able to charge Lee with improper handling of restricted data, one of the original 59 indictment counts, to which he pleaded guilty as part of a plea settlement.”

    He was in held solitary for 278 days, and we are talking only one charge of 59 at the end for “restricted data,” not TS or SCI.

    Of course there are many examples. But for anyone (else) who is in possession of this sort of thing, it’s a BFD.

  21. OldTulsaDude says:

    I keep going back to the beginning of the Mueller investigation and Trump quoted as saying at the time, “I’m fucked.” Makes me wonder what there was to find that wasn’t found and if it was at MaL.

    • Yorkville Kangaroo says:

      It may well have been found. It’s just that DoJ guidelines state that sitting Presidents cannot be charged. Barr would likely have closed the case once his ‘report’ came out.

  22. Alberto the Sublime says:

    I hope to be a judge someday. Would love to hand out sentences to the right wing nut jobs who are engaging in domestic terrorism. I’d give them 10 years for the crime, and another 20 years (to be served consecutively) for being so goddam stupid and incompetent.

    • Yorkville Kangaroo says:

      And THIS post is exactly why you would be deemed to be unsuitable as a judge.

      Perhaps you need to look up the meaning of ‘stupid’ and ‘incompetent’.

      • timbo says:

        Similar to a few of the current Supreme Court justices on the current bench? Seriously, they’re doing victory laps and complaining about the DP openly in public these days…

  23. Maureen A Donnelly says:

    more gushing here: his ethical calculus is the smartest thing i’ve read in awhile. TY

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