Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

NYT published a 1,700-word story on the investigation into Donald Trump that didn’t include the word “obstruction” once. It implied (though the reporting wasn’t entirely clear) that the government has already found about a hundred additional classified documents among the boxes seized on August 8, on top of around 200 already identified from the boxes turned over in January and the meeting with Jay Bratt on June 3.

WaPo published a 2,100-word story on the investigation that likewise failed to mention that “obstruction” was one of the crimes for which DOJ believed they’d find evidence at Mar-a-Lago. The WaPo story treated the ridiculous filing Trump’s attorneys, including Evan Corcoran, submitted yesterday as if it were a serious legal endeavor.

You cannot understand several of the things that appear in these stories without considering the legal import of the fact that after Corcoran and Christina Bobb (who is described alternately in Trump’s filing as, on page 5, the custodian of records and, on page 8, as one of “three attorneys in the general area” who showed up to observe the search) jointly signed a declaration stating that there were no more classified documents at Mar-a-Lago, the FBI found 100 more classified documents at Mar-a-Lago.

Here’s how the NYT story described it.

On June 3, Jay Bratt, the chief of the counterespionage section of the national security division of the Justice Department, went to Mar-a-Lago to meet with two of Mr. Trump’s lawyers, Evan Corcoran and Christina Bobb, and retrieve any remaining classified material to satisfy the subpoena. Mr. Corcoran went through the boxes himself to identify classified material beforehand, according to two people familiar with his efforts.

Mr. Corcoran showed Mr. Bratt the basement storage room where, he said, the remaining material had been kept.

Mr. Trump briefly came to see the investigators during the visit.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Since Corcoran and Bobb created that declaration, and particularly since FBI seized evidence proving it was not true, they became likely witnesses or co-conspirators in this investigation, both in the obstruction side of the investigation (because they might know whether classified documents were deliberately hidden for Bratt’s visit and who knew that declaration to be a lie) and the Espionage Act side (because 18 USC 793 has a conspiracy provision).

So when Bobb arrived during the search on August 8 and “requested the ability to enter the mansion in order to observe what the FBI agents were doing,” the FBI would have viewed her as a potential co-conspirator in obstruction of an Espionage Act investigation.

And when Corcoran signed a filing demanding that the Court (a different court than the one that approved the warrant) appoint a Special Master who will work with lawyers from both sides to review the documents and also demanding that he and Trump’s other lawyers get a detailed list of what was seized, the FBI would view him as a potential co-conspirator in obstruction of an Espionage Act investigation.

Movant requests that this Court appoint a Special Master pursuant to Rule 53(a)(1)(B) of the Federal Rules of Civil Procedure and this Court’s inherent equitable powers and authority. This step — which the Government itself has requested in cases involving the seizure of privileged and/or potentially privileged materials — is needed to preserve the sanctity of executive communications and otherprivileged materials. Furthermore, Movant requests that this Court issue a protective order enjoining the United States from any further review of the items seized until this Court can rule on the present Motion. See Fed.R.Civ.P.26(b)(5)& (c) (1); S.D.Fla.L.R.26.l(g).

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed.R.Crim.P.41(f). The Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

Indeed, one likely goal of this filing is to get a different judge — one who doesn’t know whether Corcoran is named as a suspect on the affidavit — to force DOJ to tell everyone whether he is or not.

One reason the FBI asked for more surveillance footage — which the NYT story that doesn’t mention obstruction says is part of the hunt for more classified documents — is because they need to understand who caused that false filing to be filed in June and what happened in the storage area between Bratt’s visit and the search.

Even after the extraordinary decision by the F.B.I. to execute a search warrant at Mar-a-Lago on Aug. 8, investigators have sought additional surveillance footage from the club, people familiar with the matter said.

It was the second such demand for the club’s security tapes, said the people familiar with the matter, and underscored that authorities are still scrutinizing how the classified documents were handled by Mr. Trump and his staff before the search.

It remains true that we have no idea how narrowly or broadly the FBI scoped the probable cause of obstruction in the warrant affidavit. But what is clear is that DOJ will view both Bobb and Corcoran — the latter of whom remains one of the lawyers in closest contact with Bratt and who is the person who issued what has been viewed as a veiled threat to Merrick Garland — as either witnesses or subjects in this investigation.

And you really can’t explain the significance of that without using the word “obstruction.”

emptywheel Trump Espionage coverage

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

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

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


111 replies
  1. Drew says:

    Kyle Cheney pointed out that John Solomon published the text of a letter from the Archivist to Corcoran in May. (It was clearly drafted by the legal staff at the Archives in consultation with the Office of Legal Counsel). Two things struck me. One is that the FBI didn’t get to look at the first 15 boxes of documents until mid-May, so that Bratt’s June 2 visit to Mar a Lago was VERY quick and urgent.

    The other, is particularly relevant to this post. It appears that the only real claim that Trump and Corcoran were making was that some of the retained documents might have been covered by Executive Privilege (not lawyer client privilege) and Corcoran was looking to have a protective order to limit access based on EP. This is really the only thing they are looking for in their motion for a special master. It certainly appears that this is not the way that the law really works, but the judge ruling on this is one of the Trump judges most likely to first ask WWCTD (What would Clarence Thomas do?) so it will be interesting to see how this moves forward.

        • gimcrack says:

          According to Forbes… On June 22 a Texas district court judge denied Powell’s motion to dismiss. A trial is set to begin October 17. The state bar has asked for “an appropriate sanction” if she’s found guilty of professional misconduct. Under their rules, that could range from disbarment to suspension to public reprimand.

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; I know it’s been a while but the last time you commented your username was “gimcrackers.” Thanks. /~Rayne]

          • gimcrackers says:

            Will do. Seems a frequent occurrence here—it’d be nifty if the “Name” field showed me my prior submission info, but if that’s not feasible for five to seven cookie-related reasons, let’s pretend I never mentioned. Jim

      • Silly but True says:

        OLC was likely serving its broad role in representing Executuve Branch agencies.

        I’d have to believe that once NARA starting thinking things were going off the rails it would’ve started seeking OLC guidance in addition to NARA own counsel?

      • Drew says:

        The archivist refers to OLC correspondence & advice. This was because Corcoran had earlier made this Executive Privilege claim (a protective demand or some such) and in the process of following up, the archives counsel reached out to OLC. (The notice of intent to share the boxes with the FBI had already been sent, and one delay had already been granted at Corcoran’s request-the 30 days was now up)

    • earlofhuntingdon says:

      Trump’s view of executive privilege is as broad as his girth, and as wrong as most of his public statements.

  2. Peterr says:

    Indeed, one likely goal of this filing is to get a different judge — one who doesn’t know whether Corcoran is named as a suspect on the affidavit — to force DOJ to tell everyone whether he is or not.

    Indeed. Beyond this and beyond all the well-founded criticisms of the quality of Trump’s filing, I’ve got a question about legal procedure.

    How can Trump’s lawyers go to a judge other than the one to whom the case is assigned with their request for a special master? Wouldn’t that second judge automatically say “Go to the judge overseeing that case”?

    • bmaz says:

      They don’t go to a judge. I presume they filed a new cause and the court assigned it off the wheel. Was that appropriate? I dunno. But Magistrates are not Article III judges.

      • Peterr says:

        But how is it a new cause? It is part of an existing ongoing proceeding, presided over by the judge who reviewed the warrant application and approved the search. What’s “new” about it, other than Trump wants to judge shop?

      • Drew says:

        Steve Vladek posted an observation which he then retracted, that they had gone to Fort Pierce (70 miles away) rather than West Palm Beach (right across the causeway from MAL) in order to get this judge. It then came out that it was assigned “randomly”. Is it possible to game the “wheel”-i.e. wait until the judge you want is the likely one to catch the case, or something like that?
        I mean it took an extraordinarily long time to file this crappy filing & I can’t think of why this timing would be better than any other day in the past two weeks.

  3. Bugboy says:

    “Mr. Trump briefly came to see the investigators during the visit.”

    Is there some significance to this act? I’ve seen it in various forms from different reporting: “he popped in”, “said hello”, “offered to autograph breasts” (I just made that last one up, in case anyone was wondering).

    It seems like someone wants to make sure everyone knows he was personally involved in some way, when his presence wasn’t legally required.

    • John Paul Jones says:

      I would interpret it as the Chief publicly exhibiting his magnanimity and generosity towards the Little People, a form of noblesse oblige. As Anthony Quinn says in Lawrence of Arabia, “The Turks pay me a golden treasure and yet I am poor, because – I am a river to my people.”

      • Bugboy says:

        “As Anthony Quinn says in Lawrence of Arabia…”

        Ah, yes, “Lawrence of Arabia”. What a classic. A Mexican-American with an Irish father, playing an Arab. VIVA LA HOLLYWOOD!

        Your theory sounds plausible, though.

        • John Paul Jones says:

          Almost spit out my coffee when I read that. Still one of my fave movies, and one of my fave directors. Saw Lean’s Oliver Twist when I was about 8 or 9 and was absolutely astounded, especially the scene where is Oliver is chased by a howling mob.

        • Alan Charbonneau says:

          “A Mexican-American with an Irish father, playing an Arab”. Is this a great country or what?

          My brother and I saw that movie when it came on. It was Thanksgiving Day, 1962 and I was 8. I didn’t understand all of the back story, but I liked it. It had an intermission it was such a long movie, but that gave mom time to bake the bird w/o kids pestering her 😁

      • earlofhuntingdon says:

        Fitting, as Lawrence also knew how much more Auda abu Tayi kept for himself from the bribes the Turks paid him.

        • Tom-1812 says:

          Lawrence also knew that Auda and other leaders of the Arab Revolt kept in touch with the Ottoman authorities they were fighting against, out of the entirely reasonable concern that once the German spring offensive of 1918 began the British would send their Middle East troops to the Western Front, leaving the Arabs in the lurch to fight the Turks alone.

            • Bruce Olsen says:

              As I understand it from my Sri Lankan friends, The minority Tamil were favored in the civil service to make them more loyal to the colonizers. More perfidy that certainly contributed to their subsequent civil war.

    • skua says:

      I glanced in at Breitbart comments yesterday and got the following understanding:
      Someone devoted to Trump would claim to see “just popped in” as DJT showing his understanding of the vital role law enforcement plays in American society and his genuine and heart-felt respect for the law.
      They’d also claim to see it as an action of an innocent man who had done nothing wrong, had nothing to hide and hence had no guilty mind.

      • Tom-1812 says:

        “And if there was a problem with the documents, why didn’t they tell me to my face? I mean, i was right there!” — imagined Trump explanation.

      • Bugboy says:

        I hope you thoroughly disinfected after your dive into the cesspools at Beitbart. I guess the rats there would know, right?

      • Doctor Biobrain says:

        What’s funny about conservatives is that if it were the other way around and it was reported that Crooked Hillary popped in they’d see that as immediate proof of her guilt and rant that the DOJ was corrupt because she wasn’t already locked up at Gitmo.

        Just like how it was a crime for Bill to chitchat with Obama’s Attorney General at an airport while the FBI investigated Hillary, but totally fine for Trump to meet with the head of the FBI to discuss his personal loyalty to Trump and eventually fire him in order to end an investigation. Even after that happened I’d still see Trumpers mentioning the airport meeting as proven corruption and I’d bring up Trump meeting with Comey before firing him as significantly worse; but they just couldn’t see the connection.

        • timbo says:

          Indeed. This is where you write a fake (or even true!) story about HRC and the email server and then when all the rats jump aboard you basically say “My bad—I meant Trump was doing the following…” and watch how many of the rats scramble onto their own sinking ship…because they like drowning if that’s what their King Rat tells them to do.

        • Alan Charbonneau says:

          “… Bill to chitchat with Obama’s Attorney General at an airport while the FBI investigated Hillary,”

          I think Bill went over to Lynch’s plane and talked about grandkids. But I think he knew in advance that doing so would cause a huge stir and the RWNJ would be screaming “Fix!”. That would give Lynch the cover to recuse (she didn’t recuse, but she said she’d let Comey make the call). I think Clinton was trying to give her an out so she would not be caught in the middle—put the choice into Comey’s hand to help Lynch.

      • Tom-1812 says:

        Or did Trump drop by as a reminder to his own people to stick to the story about how many documents were at Mar-a-Lago and how they had agreed to handle this June 3rd visit by the investigators. I’m assuming there would have been some discussion among Trump and his lawyers as to how cooperative they were going to be.

        • timbo says:

          Twitler dropped by because he’s obsequious and a politician. He wants to see who is there and what they are about. And, if they’re also amenable to being corrupted of course.

          • Yorkville Kangaroo says:

            I wouldn’t put it past him to do it as a sort of ‘thumbing (small) of the nose’ as well.

    • rip says:

      It’s all about the messaging and influencing targets – and not the message.

      If the PR firms/lobbyists are hired to represent died-in-the-wool communists they’ll do it (with money up front.) If they are hired to do the same for repugs, Democrats, neo-NAZIs, libertarians, anarchists – they’ll do it ($ up front.) They don’t care about the message – just the money. They may have ways to massage that message to get more bangs for the buck, but they don’t have any heart in the game.

  4. BobCon says:

    “It implied (though the reporting wasn’t entirely clear) that the government has already found about a hundred additional classified documents among the boxes seized on August 8, on top of around 200 already identified from the boxes turned over in January and the meeting with Jay Bratt on June 3.”

    I can’t help but notice how specifically the Times article (with the usual probablity of being based on Trump team leaks, not DOJ) keeps basing that count on documents *marked* as classified.

    As noted here before, a lot of documents such as notes or handwritten letters, may not be directly *marked* as classified because it wouldn’t be practical to do that the way you would mark a regular memo or report as classified. Instead they would be placed inside some kind of archival envelope, folder or box that was marked as containing classified material. But who knows if Trump hadn’t yanked some or many of these?

    Likewise, some or many classified regular documents may have had all markings redacted, either with markers or by photocopying them with markings covered, similar to the way Barr’s DOJ was playing games with Post-its.

    These documents would of course still be classified, and US officials would be on the lookout for them — they had lists of memos and reports believed to be taken. I can’t help but wonder if part of the process of witholding documents involved doctoring marked documents so that attorneys could technically claim they returned what they saw was *marked* as classified. Or, Trump’s team may have kept unmarked copies of documents but returned the marked originals in an attempt to wriggle around demands, not that US officials would be easily fooled.

    • Silly but True says:

      The lynchpin is the reverse may also be true: a document marked (say on prior occasion) classified, may actually be declassified. In fact, this is the very basis of defense of POTUS’ through his surrogates. It’s a situation that has plagued the US for decades, especially as number of classified records has exploded.

      _If_ they are right, the whole issue boils down to instance of “if tree falls in forest and no one is around to hear it, does it make a sound,” except the argument is that POTUS declassified them before leaving while still POTUS.

      We can use a hypothetical example:

      1. The “Perfect Ukraine Call” transcript at heart of impeachment #1.

      (The “transcript” is not actually a transcript, but a composite narrative written electronically on NSC document server in real time and/or in near-real-time and edited by the listeners to a call that then gets edited and revised on that system until there’s general agreement by the contributors as to the nature of the conversation.) The resulting record is then a composite of what listeners to the call thought they heard or important aspects to be memorialized that resides in NSC’s system. This particular record was then moved around the NSC protected spaces from its normal protected space to a far more protected space; it went from being merely classified to very highly classified, and in fact one of the impeachment arguments was that its move to even more limited space was an obstructive act.

      Now, copies of that record would also be classified, whether they were a printout from WH printer, a cellphone screenshot of the NSC viewing portal, a transcription of the document by someone reading it and then writing on notepad, etc. In fact, if a government worker with access was doing some of those things, they very likely broke the law in making that copy. If a government employee with access to it turned around and gave any of those copies to your next door neighbor, they’d be breaking the law. In fact, just accessing that record in unauthorized manner would be breaking the law.

      Trump’s surrogates’ argument is that he had a paper copy of the record, and declassified it. Then he brought that declassified copy with him to Mara-Largo.

      In this, his surrogates’ defense is twofold: his Mara-Largo copy is not classified in any case, as POTUS has the ability to declassify it, and did. His copy is also not NARA-able and not property of US because the government has its record; the original NSC call readout that has always resided on NSC document server.

      POTUS himself has finally introduced a third defense: that this was Presidentially privileged, and so agencies like FBI or DoJ can’t just go rifling through such things.

      Now, whether POTUS actually declassified the record has become a question; his lawyers have generally holding to this defense in certifying themselves Trump held no classified documents at Mara-Lago. If he did, there’s no issue here. If he didn’t, there is. Likely the only witness(es) to such an act are either Trump himself without witnesses, or Trump plus some other partisans interested in furthering this defense. If this tree fell in the forest, did it make a sound?

      In tweeting, well whatever Devin Nunez’s service is, that the document is his — Trump is also holding to idea that this is not the government’s record, because he didn’t take the government’s record and the government still has its record; he’s only got his copy which he is entitled to.

      That’s what will ultimately be fought in court if he gets charged with national security crime or government record crime.

      • earlofhuntingdon says:

        There’s no “lynchpin” here. Neither of these arguments, for example, holds water:

        His copy is also not NARA-able and not property of US because the government has its record; the original NSC call readout that has always resided on NSC document server.

        POTUS himself has finally introduced a third defense: that this was Presidentially privileged, and so agencies like FBI or DoJ can’t just go rifling through such things.

        Government and presidential records are not limited to a single final version. Drafts are included. And if he wrote notes on a standard version, for example, he created a different presidential record. Trump cannot exert a claim of executive privilege. Only the current president has that authority. Nor can the executive branch assert privilege against itself.

        • BobCon says:

          No kidding, dealing with classified info is not some abstract exercise that can be waved away with appeals to it being declassified by a verbal command.

          The feds will treat this stuff as seriously as a heart attack. They will be going to everyone involved and Trump has to keep everything under close wraps to avoid defections. He can’t seem to even tie his shoes now.

          • Silly but True says:

            For POTUS, it essentially is, though. The entirety of the US government’s “classification” regulations originate as Executive power through Executive Order, currently 13526.

            The classification regulations propagated from that via 32 USC 2001 apply to Executive Branch agencies, of which POTUS is neither such an animal, but also is the only entity having the broad plenary Executive power to modify it through executive action.

            We like orderly processes, and much of the classification EOs that replace prior ones do so typically to introduce more order into the chaos. Obama’s 2009 major change from previous was the establishment of a more orderly declassification process through a new declassification center. But these don’t apply to POTUS.

            32 USC 2001 as with all regulatory provisions establishes its scope its first provision:
            “2001.1 Purpose and scope.
            (a) This part is issued under Executive Order. (E.O.) 13526, Classified National Security Information (the Order). Section 5 of the Order provides that the Director of the Information Security Oversight Office (ISOO) shall develop and issue such directives as are necessary to implement the Order.

            (b) The Order provides that these directives are binding on agencies. Section 6.1(a) of the Order defines “agency” to mean any “Executive agency” as defined in 5 U.S.C. 105…”

            POTUS is not an “agency” in the regulations’ plain meanings, and if he were in any case, he alone in Executive branch is vested with broad power to consider it as an “abstract exercise that can be waved away with appeals to it being declassified.”

        • Silly but True says:

          Copies of a record simply aren’t required to be turned over; NARA makes this very clear in its guidance. If NSC printed 7 hard copies of Ukraine call for meeting of POTUS, WH CoS, VP, VP CoS, ODNI, SoS, Dpty SoS, none of those seven copies are required to be archived as that record.

          If this all boils down to Trump handwriting “the Perfect Call” on his copy, and that comment snippet not being archived, such revelations will likely favor Trump.

  5. Balifar says:

    A similar thing keeps occurring to me about this same story in general – and that is that Trump keeps making wild claims about how he’s going to do this or that or whatever in the courts – however he has a long ,long history of repeatedly of lying about this exact matter – and then when the day comes the lawyers do nothing of the sort. …
    e.g. He claims he will sue the moon for disturbing his sleep , but when his lawyers show up in court they file for a protection order or some other crazy nonsense.

    And for some reason the press in general just keeps repeating his obvious lies without fact check or reference to history.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; your previous comments have been published under “Balifarthelost.” Thanks. /~Rayne]

  6. L. Eslinger says:

    Maybe district judge Cannon, who has been assigned this case (I need to confirm this), will be sympathetic to the argument that the government is being mean and unfair to DJT.

    For the sake of the U.S., it is hoped that being appointed (though probably not personally picked from the mass of available candidates) by Trump does not automatically mean being tainted or unworthy.

  7. earthworm says:

    wonder what dr emptywheel ‘s thoughts are re:
    the sentencing (12 years in prison) of Malaysia’s former prime minister for corruption, theft on a grand scale.
    it is being stoked as *unprecedented,* *egregious* — for a former president of the U.S even to be investigated for unlawful acts such as obstruction and violating the espionage act.
    leads me to think that former president trump led the U.S to resemble the kind of nation where *unprecedented,* *egregious* acts by its leader occur.
    can’t we make some parallels?

  8. WilliamOckham says:

    AFAIK, the letter from the acting Archivist is the first indication that we’ve had that Trump was trying to prevent the FBI, DOJ, and more broadly, the entire IC from gaining access to the classified documents that were returned to NARA. I think this substantially increases the likelihood that the obstruction investigation is broader than just the obstruction of NARA. Trump steals documents; Trump returns some documents and keeps others; Trump tries to prevent law enforcement from accessing the documents he returned; FBI gets access to the returned documents; FBI gets a search warrant (mentioning an obstruction investigation) for the retained documents that is broader than necessary if their only goal was to gain control of classified material.

    • earlofhuntingdon says:

      Not that it would be unusual for Trump, but it’s quite a stretch to ask the archivist to restrict an agency’s access to documents that it originally created, and to documents being reviewed by law enforcement for criminal violations of federal law.

      I agree that it seems probable that the crimes being investigated here are broad and almost certainly include conspiracies. Too many hands on those boxes and documents, too many people – especially Kash Patel – with knowledge of what was in those documents, implying they knew why Trump illegally kept them and/or helped him do it.

    • Peterr says:

      You can bet that the DOJ and associated agencies will be looking at the materials seized with the search warrant, and contrasting them with those returned in January and those returned in June, to see what links those retained items with each other, and distinguishes them from those returned earlier. By looking at what Trump was trying to hide/retain, they will begin to glean why he was doing this.

      • BobCon says:

        They may also be looking for signs of alteration.

        They may be trying to figure out if they’re getting back originals or copies. They may be looking for signs that Trump or his people were doing things like yanking staples from reports or messing with bindings, which may facilitate copying or scanning, or messing with classification markings.

        • Bruce Olsen says:

          Of course, he’d claim his copy was the real one and the other copies scattered around the government, all with no signs of alteration, were fake news.

  9. earlofhuntingdon says:

    Describing Christina Bobb as the “custodian of records” Trump unlawfully retained is probably not the good thing Trump’s attorneys think it is. It reads more like Trump throwing her under a bus.

    I like the “three attorneys in the general area” description – as if Trump found them by sticking a pudgy finger at a phone book page, or randomly corralled three members having breakfast at his club.

    • Tom-1812 says:

      The idea of Ms. Bobb being given some sort of pseudo job title as “custodian” seems like an attempt to normalize the situation of the stolen documents. As if to say, for example, when an ex-President leaves the White House and decides to cut Charles Willson Peale’s 1776 portrait of George Washington out of its frame, roll it up and stash it in his golf bag, he has to appoint a custodian to be responsible for it.

      And why would anyone in their right mind want to be “custodian” of all those sensitive documents? Another example of how the mentality of the MAGA mob ‘passeth all understanding’.

    • Savage Librarian says:

      “three attorneys in the general area”:
      reminiscent of Trump’s 3 amigos (Sondland, Volker and Rick Perry) or 3 grifters on a couch (Parnas, Giuliani, Fruman.)

      • xbronx says:

        “3 attorneys in the general area” sounds like the worst negotiated movie credit, reminiscent in a weird way of the credit in some Italian sword-and-sandal movies featuring Maciste, the Son of Hercules where there was always a “with the extraordinary participation of Wandisa Guida”, the credit that all Cinecitta starlets were hoping for.

    • emptywheel says:

      I think he’s trying to excuse the disjunct between Corcoran and Bobb, to excuse why Bobb signed and not Corcoran.

      Is it transparently stupid? Yup. But it’s all they’ve got.

  10. Tom-1812 says:

    Trump’s request for a Special Master to examine the documents is like Willie Sutton asking a judge to have someone go through the stolen money the bank recovered from his last heist just in case some of his bus tokens and taxi chits got mixed up in it.

  11. earlofhuntingdon says:

    Kyle Cheney notes that two of Trump’s attorneys, Trusty and Corcoran, who co-filed the so-called Motion in the SD Florida, failed to properly submit their requests for admission pro hac vice. The court gave them a do over. A quick read of the Florida requirements suggests it’s dead easy to properly file. Another needless fuck-up by Trump attorneys.

  12. Overshire says:

    Am I alone in thinking the letter from Corcoran asserting executive privilege reads as a confession to a felony on his client’s behalf, since any materials that would be qualified for such privilege are by definition Presidential records subject to the PRA, and therefore government property from the moment of creation?

  13. Bruce Olsen says:

    I worked at a company that sold software used to manage Federal assets (more along the lines of encrypted communicators and boxes of weapons than desks and chairs). Basically it supported the US Federal Acquisition Regulations (called the FAR).

    In the FAR, the role of “custodian” is specifically defined, and has various legal responsibilities.

    I have to believe there’s an analogous definition of “custodian” in the context of handling secure documents but I haven’t seen it mentioned anywhere.

    Does anyone know if that’s the case?

    • earlofhuntingdon says:

      The designation in full is apparently “custodian of records for the Office of Donald J. Trump,” though I expect the title to shift in apparent scope as needed.

      The rules cited above apply specifically to classified records. They don’t define the work of Trump’s custodian, except indirectly and incompletely.

      • Bruce Olsen says:

        Thanks for the Cornell reference, TC.
        A property custodian has some fairly heavy responsibilities. Here’s a link to a summary PDF

        My guess is that Trump conferred the title in one of his many attempts to deflect responsibility because he knew none of the position’s enumerated duties had been carried out. He would have known who the custodians at the WH would have been as well as what they did, because from what we now know he must have been pushing back on them all the time.

        From 18 CFR § 3a.61:
        A custodian and one or more alternate custodians will be assigned responsibility for the security of each container under his jurisdiction in which classified information is stored. Such assignment will be made a matter of record by executing GSA Optional Form 63, Classified Container Registration, and affixing it to the container concerned. Custodians will be responsible for assuring that combinations are changed as required and that locking and checking functions are accomplished daily in compliance with paragraphs (g) and (h) of this section.

  14. earlofhuntingdon says:

    Trump’s so-called Motion – more of a Kash Patel press release for Tucker Carlson – is up to Trump’s usual standard of lawyering. Here’s a taste:

    “[A] search warrant violates a person’s Fourth Amendment rights and is invalid if the affiant either makes material misstatements or makes a material omission in the affidavit….Did the DoJ mischaracterize or omit from its Affidavit the true extent of the [former] President’s cooperation? Press reports by anonymous Government sources raise this question”

    Sounds serious, except they left out, “Enquiring minds want to know.” Actually, this paragraph would not pass Legal Writing 101. The former president’s lawyers provide no facts and make no allegations themselves. They only claim, based on unspecified press reports, that anonymous, supposedly government sources have questions. That’s not a sufficient foundation for a court to act on. It’s more Trump bullshit.

    • Peterr says:

      Ken White ([email protected]) was on a roll taking this apart yesterday on Twitter, which ended with these four summaries.


      I mean this is shitty on every level. It’s shitty strategy, shitty lawyering, shitty writing, shitty organization. It’s even shitty as propaganda. It’s just incompetent.
      5:34 PM · Aug 22, 2022


      Seriously tho if an associate drafted this motion I wouldn’t fire them. That would be cruel. I would kill them and then dump their body in that service elevator lobby where we leave boxes sometimes
      7:08 PM · Aug 22, 2022


      One thing about Trump’s document is that it’s filed as a separate action without complying with most of the rules for a separate complaint, but styled as a motion, without following most of the rules for motions. To be fair there is no rule governing a Youtube comment.
      8:13 PM · Aug 22, 2022

      and finally

      I know I am kind of obsessing about this but this is my area and this is historically and flamboyantly incompetent and surreal. Like imagine you love football and it’s the Super Bowl and it’s kickoff and the kicker whips out a javelin and kills the mascot and yells FOOT FAULT
      8:17 PM · Aug 22, 2022

      I can only imagine what Ken is like in court. I’m sure there is more decorum, but the ability to pour scorn on incompetence like this that he displays on Twitter ought to scare the pants off of any lawyer opposing him. “I better get this right, or I am toast . . .”

        • Peterr says:

          I’m sure he is more than fine in court. I was simply noting that tweets like these, taking apart piss poor lawyering, might possibly perhaps make some of his opposing counsel spend lots of sleepless nights rethinking the motions they filed earlier that day. “Did I cite the right cases? Did I use the right arguments? Am I going to look like a fool once Ken has politely finished making his reply?”

  15. M Smith says:

    Thanks for the interesting analysis, it’s great as always. One small edit: “The Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.” It should say “from Trump’s home” or their should be a [sic]. (7th paragraph from end.)

  16. rip says:

    “Dunning-Kruger goes to court” via Digsby

    I have read Trump’s, um, motion I guess? It is the most ridiculous, incompetent legal filing I have ever read. I’ll get into things like using civil law to set criminal law standards, misrepresenting the nature of the primary precedent they cite (did they read it first?) &…
    — Kurt Eichenwald (@kurteichenwald) August 22, 2022

    • rip says:

      Another quote from the selection:

      Skipping over a question about venue that Eichenwald later in the thread believes he got wrong, he continues:

      Trump clearly wrote huge portions of this, even though three lawyers signed it. There are repeated sections with “my” and “I” in it (like “my house”)…5

      …now let’s get to the meat. The kinds of things that Trump provides without affidavit – in other words, something more like a tweet than serious legal filing – are like this: “One of the FBIagents said, ‘Thank you. You did not need to show us the storage room. I get it now”…6

      …this, of course, has all the earmarks of one of Trump’s “they came up to me crying and said ‘Sir…’” tweets. It is meaningless garbage without an affidavit, and all of the statements of fact are like this. Now, their argument becomes utter nonsense. By the standard…7

      …they invoke, there will no longer be confidential informants, evidence withheld prior to indictment – it will be a criminal free-for-all. Trump wants to argue for special rules based on the “But I’m Donald Trump!” standard (Malignant v. Narcissist, 2016).

      • rip says:

        Parenthetically (isn’t everything?)

        – I wish this site had decent logins so people wouldn’t be berated for forgetting their username.
        – I wish we could get notified when a topic/posting we made was further commented upon. I’m guessing the sysadmins have great tools that the rest of us don’t know about.
        – I wish that the text-entry boxes used some form of modern UI so we could see what our utterances would look like before hitting “Post Comment”.

        • Rayne says:

          1) Your username is three letters. What the actual fuck. If you can’t remember that, you have bigger problems than our site’s development. That said, the trade-off is a commercial comment system off the shelf which will harvest your data and sell it, combined with incredibly shitty moderation tools AND the bonus demand that moderators use not one but two interfaces (ex: Disqus). No. When WordPress comes up with something more fully integrated it will be considered. In the meantime you as a user here agree to be responsible for knowing your username and email address even if you have to write it on a bloody Post-It Note for yourself in exchange for data privacy.

          2) Bookmark the last posts you commented on, add them to your browser toolbar. Check them when you visit. When comments are closed on those posts, remove the bookmarks. Again, self-monitored comments are the price for your data privacy.

          3) Users will have extremely limited HTML formatting options for security reasons. You want a sandbox? Go to — type in your comment text between the Body tags, then click on Run to validate in the righthand pane. Fix text if broken, copy-paste if not. Cheap. Easy. And wholly on you, the user, because we’re running on a shoestring here.

          Literally, I am all you have between daily chaos and readable comments when it comes to HTML in threads and security, with my trusty partner bmaz to dole out the daily shakedown to keep out trolls. I’m here as a volunteer when my time permits.

          For the price charged you can put on your big person panties and do a little bit more to participate here. As I’ve had to explain to another commenter recently, this site isn’t for neophytes. You’d think after your 446 comments to date you’d have figured that out.

          • bmaz says:

            Lol, Rayne is the nice one here. I am not, and will go back to show us a huge donation of money or shut the fuck up. No time for dancing, or lovey dovey; I ain’t got time for that now.

            • Rayne says:

              Huge amount of money won’t fix the data privacy concerns some of the wish-list entail.

              Ex. To keep track of the last place a user commented and any new replies, a user’s identity has to be validated along with the last time they visited. Welcome to cookies because you and I can’t be here 7/24/365 to check every user’s identity and tell them which comment was their last on the most recent half dozen posts.

                • Rayne says:

                  That’s right, you said you’d be amenable to defending FPOTUS if the price was right and the money was upfront – first you look at the purse.

                  LOL You weren’t the disciplinarian at home, were you. Sometimes the answer is just plain no.

                    • blueedredcounty says:

                      LOL – this is really directed to earlofhuntingdon’s comment about a Lincoln Continental, because I almost did a spit-take when I read it because it made me think of SNL and the Rabbi doing a bris in the back of a Mercury (a brilliant parody of one of Ford’s then ads).

            • vvv says:

              What good are notebooks?

              FWIW, I keep an open text file with a copy of the link of every page I comment on or otherwise want to be sure to check up on, deleting same when the comments are closed.

          • John Paul Jones says:

            The moderating here is literally out of this world: sharp, true and welcoming – if you bring your best game (I try). And it’s the moderating which is largely responsible for the feeling of a real community of participants. Rayne and bmaz are the best.

            • posaune says:

              Agree. completely.
              responsible for real community and my sanity.
              Very appreciative for everyone here, esp Rayne and bmaz and Dr ew.

    • earlofhuntingdon says:

      The lack of uncertainty about things he can’t possibly know – “Trump clearly wrote huge portions of this” – is not a good look, even for a former NYT reporter.

  17. earlofhuntingdon says:

    Trump’s “Motion” is what a bad attorney and a worse client write when the law is against you, the facts are against you, the process is against you, your own appointed judges are against you, public opinion is turning against you, and you’re running out of ideas about how to continue fleecing the rubes. But it’s not lawyering.

  18. notjonathon says:

    Maybe it’s my browser doing the work for me, but when I click on Name*, my commentator name magically pops up underneath, forcing me to the agonizing chore of clicking a second time; the same process holds for my email address.

    • vvv says:

      That’s autofill being enabled, a great thing except like when I recently sent a non-retainer letter in a divorce case to the wrong “John Doe”, same name as the prospective client (gmail vs. yahoo), but this guy happened to be an opposing atty who told me he nearly messed his pants.

      Funny, coulda been serious.

  19. grennan says:

    I want to put together two lists/charts/tables (unless they already exist here or elsewhere).

    The first is the cast of attorneys, which would fall into these tentative categories:
    currently retained by Trump
    formerly retained
    kracken attys
    ?? white house counsel
    ?? justice department
    ?? people in white house with law degrees (Jared)

    Don’t know if this is too few or too many categories.

    The second would be the universe of federal laws that could apply from hot to cold (warrant to Hatch Act Schmatch Act, as Kellyann Conway so respectfully referred to it). Sort of like the matrices in road atlases for state/national parks and their amenities. Big red x’s maybe if unlikely.

    Other possibilities for lists include fake electors.

    I could link and index those or anything else…

Comments are closed.