The Elements of the Offense for an 18 USC 793e Prosecution

Back on August 10, I did a post laying out the elements of the offense from some pattern jury instructions for 18 USC 793e, which is what a judge would instruct a jury to consider if the Trump document theft ever went to trial.

I want to update with contents of the affidavit that so that others understand how things like the June 3 meeting at Mar-a-Lago were not only an attempt to get the stolen classified documents back, but were, short of doing so, a way to establish probable cause in the event that Trump would not cooperate. These efforts would overcome the real challenges — laid out in this WaPo article — of holding a former President accountable.

Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the Presidential Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.

Here’s what jurors would be asked to decide:

Did the defendant, without authorization, have possession of, access to, or control over a document that was National Defense Information?

Yes. As of January 20, 2021, Donald Trump (FPOTUS) had an affirmative obligation to return all Presidential Records to the National Archives, whether or not those records had National Defense Information.

From May 6, 2021 until late December 2021, NARA informed FPOTUS of missing documents and attempted to negotiate their return. Upon retrieval of those documents, NARA sent a referral to DOJ regarding the classified documents. Inventories and witness testimony confirmed FPOTUS retained further Presidential Records, including classified records. On May 12, the FBI subpoenaed the remaining classified documents at Mar-a-Lago, but when Jay Bratt arrived to retrieve them on June 3, he discovered FPOTUS continued to withhold classified documents.

From January 20, 2021 until August 8, 2022, FPOTUS retained 100s of documents including NDI in defiance of the Presidential Records Act, as well as other documents.

Did the document in question relate to the national defense?

From January 20, 2021 until January 2022, FPOTUS retained the following documents containing NDI:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Others marked HCS, FISA, ORCON, NOFORN, and SI
  • Some documents with Trump’s handwritten notes

From January 2022 until June 3, 2022, FPOTUS retained [description of the documents turned over]. On that day, representatives showed Jay Bratt–but refused to turn over–identifiable documents containing NDI.

From January 20, 2021 until August 8, 2022, FPOTUS had unauthorized possession of 11 boxes including NDI documents, including documents classified TS/SCI.

All of these documents were closely held, related to national defense, would do grave damage if released.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?

Trump is such a psychopath that the answer to this might normally be in question. After all, he routinely treated top secret intelligence like it was toilet paper or party favors for visiting Russians. But because of that June meeting, they will likely be able to reach that, as well.

On June 3, 2022, DOJ’s head of Counterintelligence traveled to Mar-a-Lago to discuss the unlawfully retained documents. FPOTUS acknowledged Mr. Bratt’s goal and acceded to the goal of securing the documents. After Mr. Bratt sent attorney for FPOTUS a communication on June 8, 2022, directing him to secure all NDI material according to the terms of 32 CFR Parts 2001 and 2003. Attorney for FPOTUS acknowledged receipt and took action in response. However, on August 8, 2022, both the storage closet containing 10 boxes of documents including NDI information and one box, including TS/SCI documents, stored in a hotel safe, remained insecure.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it?

From May 2021 until January 2022, NARA informed FPOTUS of the requirements to comply with the Presidential Records Act. On May 12, 2022, the FBI subpoenaed remaining classified information.

Nevertheless, FPOTUS refused to comply, even with a lawful subpoena, and remained in possession of 11 boxes including NDI information on August 8, 2022.

Did he keep this document willfully?

In addition to refusing NARA’s legal requests to return the documents and a lawful subpoena, FPOTUS took efforts to conceal NDI information from his representatives to prevent them from returning documents. Multiple witnesses have testified that FPOTUS responded to consultations about the importance of returning NDI information by insisting they were, “Mine!”

All of the above, aside from the witness testimony declaring Presidential Records including classified NDI, “Mine,” would be backed by multiple exchanges of paperwork.

164 replies
  1. Peterr says:

    Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?

    Trump is such a psychopath that the answer to this might normally be in question. After all, he routinely treated top secret intelligence like it was toilet paper or party favors for visiting Russians. But because of that June meeting, they will likely be able to reach that, as well.

    This is where the reference in paragraph 47 to some documents having additional notes in what appears to be Trump’s handwriting could come into play as well. If those notes indicate that Trump understood the gravity of the documents — “Can’t let the Chinese see this!” or “This spy could be killed if this got out!” — then the notes themselves may hang Trump out to dry on this question.

    • Donald Brunsten says:

      Many commentators have not understood the exact text and meaning of this element of the offense. This element under §793(e) does not involve the defendant knowing or subjectively believing that the material is National Defense Information. For this element, there is an objective rather than subjective standard of “belief.” The statutory words, “reason to believe,” ask the jury to decide whether a reasonable person exposed to the material would believe that the material is NDI, as NDI is defined under the statute. The scienter or intent or knowledge element in the majority of other criminal statutes is expressed differently … and in those statutes the end result may well turn on proof of the defendant’s subjective understanding. Not that proof is lacking that Trump personally understood the materials he retained contained NDI. Many here have pointed to salient evidence from the various communications, in addition to the markings on the documents. But, again, for this element of §763(e), the government only has to worry about convincing a jury that a reasonable person would consider the material to be NDI. Trump’s sociopathy doesn’t count.

    • Dutch Louis says:

      And even more so, I guess, if one or more of those handwritten notes qualify as a ‘postpresidential record’, mentioned in paragraph 24.

    • Riktol says:

      Another angle to consider is that Trumps handwritten notes might contain or reference classified info, or NDI.
      I’m not a lawyer, but I think that would expose him to more counts, via the improper handling parts of the statues, maybe 793 (b).

      (b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense

  2. Rich says:

    Question: Can Trump just say “I had a standing order that anything I removed from the White House was deemed not to be ‘defense information’ in the same way he argues that the documents were deemed declassified? Doesn’t the president have the power to decide whether something is related to defense?

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

      • Owlmirror says:

        Probably a fatuous question (but so much about Trump invites fatuousness): Assuming, counterfactually, that there had been some standing declassification order… Can the President of the United States declare documents to be classified, as well as to be declassified? Because if “All these documents are hereby now declassified” is Trump’s magical incantation, couldn’t Joe Biden incant, just as easily, “Everything that Donald J. Trump may have declared to be declassified, I, President Joseph R. Biden, Jr., declare to now be classified, and in fact, I declare them to have been retroactively classified as of the moment of my investiture as President”? Maybe make it an actual written executive order, with an official signing event and everything for good measure?

        • Rayne says:

          There was no declassification of any of the documents once they left the White House, and it remains to be proven that any were declassified while they were still in the White House.

          I’m not going to entertain a hypothetical because that’s *EXACTLY* what Kash Patel wants, plausible deniability posited through debate when he has done nothing to prove declassification of any documents in spite of being one of Trump’s reps to the archives. Questions about classification status should be posed to Patel. He is in jeopardy and he knows it.

          You want to know details about classification process? Read 32 C.F.R. § 2001 Title 32 National Defense, Subtitle B Other Regulations Relating to National Defense, Chapter XX Information Security Oversight Office, National Archives and Records Administration, Part 2001 Classified National Security Information LINK:

        • Patrick Carty says:

          Additionally, one cannot mentally declassify a document. If one page in a document is marked as Classified, the entire document is Classified until the derivative changes. I doubt FPOTUS spent his final days in the White House and labored over 11 boxes page by page to physically change them,

        • Tom R. says:

          It does not matter for the following reason:
          The statute pertains to NDI, whether classified or not.
          — Normally processes are in place to ensure that something is classified if and only if it is sensitive NDI.
          — However, in a case where the perp brags that he has broken the process, he loses the benefit of the process. The NDI remains NDI even after any such thaumaturgic declassification.
          — This is the sort of thing that gives pettifoggery a bad name. Prosecutors and juries can see right through it.

      • Brian Dodge says:

        Trump’s claim was a fatal mistake. His use of the term “order” demonstrates that he (barely) understood that he can’t just take his sharpie and write DECLASSIFIED on it, but that he can order or authorize the process by which things are declassified. There are notifications, backup copies, and other things which have to be dealt with which leave a paper trail and physical traces – declassified documents aren’t left mixed in to clutter up secure storage. The card catalog for the library of classified documents has to be changed, the originator of classification has to be notified, foreign governments may have to be notified per treaty. Its not like changing the predicted path of a hurricane by drawing a tit on a chart with a sharpie…

        • Troutwaxer says:

          Exactly, and I’ll build on what you’re saying; there would have to be some kind of written order, and that would probably be done according to a particular format, with written acknowledgements, and so forth, and there would be records.

    • Joe says:

      I don’t see how he can do that, for something that is obviously related to defense. He can’t change reality. This reminds me of a famous riddle Lincoln used to tell:

      Abraham Lincoln once asked an audience how many legs a dog has if you count the tail as a leg. When they answered ‘five,’ Lincoln told them that the answer was four. The fact that you called the tail a leg did not make it a leg.

      [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Joe” “Jo” or “Joseph.” You published your last known comment as “Joe Buck” which is differentiated enough. Thanks. /~Rayne]

    • Doug Kane says:

      A president has no authority to deem something that is National Defense Information not National Defense Information, the way that he or she would have the authority to declassify something (if he or she actually took affirmative steps to do so rather than just claim that they had). Any more than a president can simply say “I won the election” and make it true. Facts are facts.

    • earlofhuntingdon says:

      The argument is Trump appealing to the rubes for followership and money. His assertion is bonkers.

      Among the reasons for that is that there’s no evidence Trump ever issued such a directive during his presidency. (He would have no authority to do it afterwards.) In the unlikely even Trump’s assertion were valid, it would not be sufficient to declassify several types of documents. Moreover, his claim is not a defense against several of the crimes being investigated.

      • SteveB says:

        Indeed: in a previous iteration of explanation of jury directions on charge under s793 e MW put it this way

        “Did the document in question relate to the national defense?

        We don’t know what the documents in question are, but given WaPo’s description in February, then absolutely.

        Bonus fact: The jury decides if something was NDI, not the former Original Classification Authority (the fancy term for, “the President gets to decide whether something is classified or not”). So if the agency whose document Trump stole is still trying to protect it from hostile powers, if that agency still believes it is classified, if it remains secret, then a jury is likely to find that it’s NDI.”

        • Yirkville Kangaroo says:

          Marcy’s ‘question’, “Did the document in question relate to the national defense?” is only important insofar as it describes what statute has been broken.

          The nature of the material is irrelevant; (national defense, nuclear, etc.) as to whether or not an action (mishandling of protected documents) has taken place.

          I’m sure Marcy will take me to task if I’m incorrect.

        • Yorkville Kangaroo says:

          Marcy’s ‘question’, “Did the document in question relate to the national defense?” is only important insofar as it describes what statute has been broken.

          The nature of the material is irrelevant; (national defense, nuclear, etc.) as to whether or not an action (mishandling of protected documents) has taken place.

    • Daniel A. says:

      No. Whether something is NDI isn’t something that’s decided by the executive. It’s an element under the statute, and the jury decides whether the information is NDI. It’s a fact question in the case. — I’m not a subject-matter expert here, but this is my understanding of the statute.

      • SMF88011 says:

        As someone that has dealt with classified information for over 30 years, I can tell you that you can question multiple Authorized Derivative Classifiers from each of the Classifying Agencies (DOD, DOE, CIA, etc) if something is still being protected as classified. If they say it is, it is. That is a way to get around the classification/declassification of documents for a jury. If you have 3 ADCs from the DOD say that something is still classified, it still is classified and no steps were taken to declassify it. Then you ask them how many of the documents retrieved from MAL are classified, they can then just say “there were X # of TS-SCI, X # of Secret, etc.”

        • Former AFPD says:

          Thank you, SMF88011. Each confidential/secret, etc. document, those that are protected under this statute and others, could constitute a count of an indictment; thus, a multi-count indictment might be at play here. If one of my former clients possessed a single top secret document, I’d be fighting a losing battle against pre-trial detention right now.

        • Peterr says:

          I am imagining a DC jury pool where each potential juror is asked if they hold a security clearance, and if so, (a) what level, (b) issued by which department/agency/organization, (c) how long they have held it, and (d) if they have ever had their clearance suspended. In DC, there are a whole lot of folks who have clearances of one sort or another.

          I would also imagine that Trump’s lawyers might want to strike anyone who holds a clearance, as such people would have a much clearer understanding of how one is supposed to handle classified materials. I can’t see a judge allowing them to strike such jurors “for cause” if the cause is that they know how to handle classified documents, which would leave only a finite number of peremptory strikes.

    • W_jibbs says:

      Couldn’t the FPOTUS just shift the blame to his staff for not following proper protocol for removing and transporting classified documents? Yes, he would have to answer for why he didn’t report it or return it when the Archives requested, but a competent attorney can craft a usable defense for that. It seems to me, thus far, there is just enough distance that could help the FPOTUS.

      • earlofhuntingdon says:

        There’s no doubt Trump keeps an assembly line running between his misdeeds and a fleet of rapidly moving buses. But no, Trump seems personally implicated here. He claims they’re his documents. Anything his staff does with them is his responsibility. He’s the one who serially refused to return the documents to the Archives, and has even asked for the return of “his” documents.

        A competent attorney, if Trump were ever to hire one, might be able to offer a litany of defenses. But I suspect few of them would be effective, except possibly as attempts to mitigate and reduce his sentence. We only get there, though, if DoJ concludes it has enough to indict and prosecute.

        • W_jibbs says:

          Personally implicated? Where, how? Kind of a stretch considering what we know right now. Claiming something is his, to my knowledge is not a criminal act. It seems to a layman like me, the criminal exposure (at this stage) is the folks that actually directly coordinated the removal of the classified material and all of the actions between. Not sure how effective, “the president told me to” will be as a defense in a trial.

        • Rayne says:

          LOL Wait, let me pop some popcorn and grab an adult beverage. I haven’t watched a circus complete with a high wire act and clowns in kiddie cars in a while.

        • Yorkville Kangaroo says:

          *a clown enters juggling ideas and yells out, “Possession is nine-tenths of the law!”*

        • earlofhuntingdon says:

          See what you did? It’s early Friday evening and Rayne has already moved on to the adult beverage section of the likker cabinet. She isn’t likely to rest until all three rings under the tent are busy with acts you can’t afford, which might explain the lack of a net under the high wire act.

          I’ll pick at random here. Trump is claiming ownership over presidential records, which, by statute, belong to the USG. He claims ownership over other USG records, dozens of which are highly confidential, whose misuse might significantly damage US national interests. Whether Trump effectively declassified any of them is irrelevant to the unlawfulness of their retention, maintenance, and/or use by Trump.

          “The [former] president told me to,” is not a get-out-of-jail-free card for his staff. Of more concern to Trump, it doesn’t absolve the guy who did the telling – Trump – if he did so in violation of the law. The buck for that stops with him. Not that any of that seems to matter to a “layman” like you.

        • bowtiejack says:

          If you’re a private in the army and you are mustered out, you do not get to take your rifle home with you. if you do try, it’s called stealing.
          If you are president and your term ends, you do not get to take with you anything that is not nailed down. If you do try, it’s called stealing.

        • earlofhuntingdon says:

          Trump’s probable rationale is that he thinks he’s still president, so it’s all good. In the alternative, he’s preparing to return to the presidency. But he isn’t president, and he’s never prepared for anything in his life.

        • Leu2500 says:

          That meeting in early Jun 22 where Trump ‘just popped in’

          I’m sure Bratt didn’t attend alone, so it’s 2 v 1 on what was said

          Also, there were 1 or more officers of the court on Trump’s side in attendance. More witnesses (or coconspirators)

        • Troutwaxer says:

          We’re dealing with adults here, most of whom have been very carefully taught, with signatures on the relevant documents, about the various classification systems – I’d guess this is something you must do if you want to work at the White House in any role, even janitorial, and it would also apply to any job Kash Patel or Christine Robb had while working for Trump

          I’ve never been involved with classified documents, and if for some reason such a thing were to show up at my doorstep I would take great care not to touch it, and I’d probably use a spatula or something to push it into a plastic bag, which I would then carry to my file cabinet with tongs and I’d lock it up and call the FBI.

          The simple truth of the matter is that a classified document is similar to a glowing case of radioactive material – EVERYONE knows better than to touch it. The idea that anyone who worked closely with a POTUS is innocent or ignorant with regard to a classified document is purest, complete nonsense.

      • Brian Dodge says:

        He’s already on record that the FBI “broke into MY safe,” thereby asserting ownership and responsibility for the (illegal) contents.

      • Fourcats says:

        He has zero right to remove the documents and store them at MAL. There is no “proper protocol” for stealing government property when you leave office.

    • BABob says:

      Trump can no more do that than he could proclaim that documents about the U.S. electrical grid were not about the electrical grid. It’s not up to him to determine if the subject matter is or isn’t about national defense. That scenario is more unreasonable (no offense) than supposing he had a bulk declassification order.

    • Riktol says:

      Trump can say that if he wants, but IMO it doesn’t survive contact with reality.

      To quote from the (draft) jury instructions in the Josh Schulte case (link 1) “The term “national defense” is a broad term that refers to United States military establishments, intelligence, and to all related activities of national preparedness.”
      Even if Trump says that some things in general or something specific are no longer national defence information, that doesn’t change the reality that the military or intelligence services are using that information as part of national defence.

      For example, assume Trump gets real performance data about the F-35 (we know he likes stealth planes). Assume also that he forces everyone involved to go through the full declassification procedure so that the markings are removed and whatever else is required (for simplicity ignore that half the Pentagon would quit in protest). That information still relates to national defence and preparedness while the USAF uses those planes. Reality defeats mere words.

      Now the government also needs to prove that the NDI was “closely held”, and maybe the process of declassifying it would persuade a jury that it was no longer closely held. But I’d rather not have to make that argument (hence why I’m not a lawyer).

      The quote is on page 28 of link 1, the discussion starts on page 27. (I didn’t read the full thing, I got distracted reading from the transcript in link 2). The draft and transcript were linked by Marcy in link 3, if there is a final version I didn’t notice it.

    • HEW says:

      I don’t think so. The affidavit describes National Defense Information briefly in a footnote:

      Footnote 2 at page 22:

      18 U.S.C. § 793(e) does not use the term “classified information,” but rather criminalizes the unlawful retention of “information relating to the national defense.” The statute does not define “information related to the national defense,” but courts have construed it broadly. See Gorin v. United States. 312 U.S. 19, 28 (1941) (holding that the phrase “information relating to the national defense” as used in the Espionage Act is a “generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness”). In addition. the information must be “closely held” by the U.S. government. See United States v. Squillacote, 221 F.3d 542, 579 (4th Cir. 2000) (”[I]nformation made public by the government as well as information never protected by the govemment is not national defense information.”); United States v. Morison. 844 F.2d 1057, 1071-72 (4th Cir. 1988). Certain courts have also held that the disclosure of the documents must be potentially damaging to the United States. See Morison, 844 F.2d at 1071-72.”

      So, something qualifies as NDI based on the facts and circumstances as assessed by the applicable legal standard applied by the courts. Trump cannot alter the facts, legal precedents, or any factual and legal analyses based on same with some reality bending pronouncement.

  3. hollywood says:

    Andrew Weissmann says, “The key questions that remain include what precisely is the full scope of what Mr. Trump took from the White House, why he took the documents and did not return them all, and what he was doing with them all this time.
    “The redacted affidavit does not answer those questions, and the usually loquacious Mr. Trump has not addressed them. But we do now know that the Justice Department is one step closer to being able to hold Mr. Trump to account for his actions, if it so chooses.”

    So how many more steps are needed?

    • Yorkville Kangaroo says:

      My guess (and hope):

      1) Further investigation by the FBI
      2) Questioning of The Donald by a more than fun G-Man
      3) Indictment of Donald John Trump on multiple felony counts
      4) Conduct of Proceedings United States vs. Donald John Trump
      5) Conviction by 12 Angry Men (though not like in the film)
      6) The Donald being manacled and shackled and sent to United States Penitentiary, Coleman

      Hopefully he’ll be placed in the same cell formerly tenanted by Whitey Bulger.

      • Thomasa says:

        Perhaps the British Crown could convince the French foreign ministry to make room for him at Longwood house on Saint Helena Island. Napoleon’s ghost could help out.

  4. Tom-1812 says:

    Would there be any role for “the reasonable person test” in this case? That is, what a reasonable person–not “a very stable genius”– would be expected to do in Trump’s situation. Couldn’t it be argued that a reasonable person would not take documents that they knew, or should have known, did not belong to them after leaving a job, especially a job such as U.S. President? And wouldn’t a reasonable person know that an unsecured basement storage room in a resort/golf club was no place to store classified documents? There would seem to be no reasonable defense for such actions, especially given the written requests Trump received from the federal gov’t to return their documents, but IANAL.

    • earlofhuntingdon says:

      Yes, everybody knows that, and can imagine what would happen to someone who stole the recipe for Coke’s formula or the designs for a new car from Detroit.

      Anyone employed in America has been inundated with statements by their employer that its information belongs to the employer. They even consider your pay-rate confidential. Anyone who has worked for a large corporation has received training in how to protect their employer’s information. Anyone working for a high-tech firm has had that training in spades, and has seen what happens to those who ignore it.

      Anyone, let alone a former CEO, working at a high level in any of those corporations would damn well know how insane it would be to consider their employer’s secrets, “Mine!” And that’s before you get to large USG contractors.

      One example will do. In the late 1990s, GM vehemently pursued a former high-flying senior executive named Jose Ignacio Lopez de Arriortura, because it believed he had left the company in 1993, to work for VW – and took with him secret files relating to a new car. In 1997, VW agreed to pay GM US$100 million and agreed to buy US$1.0 billion worth of parts over seven years to settle the matter. Lopez himself was indicted in Detroit in 2000 and the DoJ sought his extradition from Spain. He was saved from trial by Spain’s highest court in 2001, eight years into the affair, which denied his extradition. None of those secrets implicated US, German or Spanish national security.

      Trump, too, knows all that. Look at how he has used NDAs for decades, even as president. Yeah, Trump’s in trouble, any way you look at it.

      • timbo says:

        Excellent point about NDAs that Trump requires being analogous to national security documents. The thing is, the President didn’t sign any contract when he became President, although clearly Biden revoked his clearances (if any) once Biden became President. The difference here is there is no explicit signed contract involving these documents which Trump signed either as President or thereafter. However, if it turns out that Trump did declassify some documents prior to his last minute in office, and there’s paperwork proving that point (or enough reliable witnesses to back such a story up?) then that means that 1) he was aware these documents were classified at one point and 2) aware that Biden could just reclassify them at any time and therefore Trump would be obligated to honor that (if Biden is in fact President…which, legally, Biden is… so there it is.)

        • Yorkville Kangaroo says:

          “The difference here is there is no explicit signed contract…”

          You don’t need to have a contract in place to be found guilty of mishandling documents.

        • Drew says:

          That might explain some of Trump’s perspective on this, esp since he listens to anyone who will tell him what he wants to hear, regardless of how unqualified the person is, or implausible their argument.

          HOWEVER the multiple official notifications from the DoJ, including the in person visit from the head of counterintelligence of the DoJ and subpoenas counts more than any signed contract, at least in the case of the Espionage Act.

        • timbo says:

          This isn’t just Twitler’s perspective, it is how he’s always tried to do business. The less paperwork with his signature on it the better for him… as long as money keep rolling in. The less things you write down about your business, the less likely you’ll be held accountable for breaking any contracts or laws that would be more easily enforceable. This is why he has lawyers sign things for him. Can always claim he was unaware that they’d signed things, can lie about having been aware, etc, etc. He’s a grifter and a conman, so this sort of thing would be second nature to him. Surround himself with folks who “anticipate what he needs and do it without being asked”. It’s how hard to touch organized crime syndicates works to a large extent… bosses are protected from being close to evidence that cause them to go to jail…

        • BirdGardener says:

          @timbo: you said Trump “didn’t sign any contract when he became President.”

          He took the oath of office.

          “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

          Does that oath carry less legal weight than an NDA?

        • timbo says:

          In the case of an ex-President, you’d think it might carry some weight but, legally, it’s not ever been adjudicated. There’s this strange thing invented out of whole cloth called “Executive Privilege”. What next will be invented out of the minds of those who seek to protect themselves from scrutiny when in or out of office?

      • Leu2500 says:

        BTW, thanks to Trump suing Omarosa for breaking the 2016 campaign NDA & it being found too broad to be enforceable, all of the 2016 campaign have been released from the NDA

  5. obsessed says:

    Curious what y’all experts think: of Frank Figliuzzi in general; and specifically of his idea that:

    1. He thinks this could well be like various cases that he wasn’t able to bring because the sensitivity of the stolen secret documents outweighed the deterrence/punishment value of prosecuting the perps.
    2. He thinks that it might be possible to proven obstruction in this case without revealing the details that would make the other prosecutions too dangerous.

    • earlofhuntingdon says:

      Figliuzzi is sometimes too far over his skis. Here, he is hypothesizing without knowing the range of documents the FBI recovered and how sensitive the secrets they implicate are. He also qualified his comments by limiting then to certain charges, not every charge.

      We don’t know the range of secrets these documents implicate. There might be charges the DoJ could bring, if possibly not those relating to the most sensitive documents. It’s still early days.

    • Cosmo Le Cat says:

      Another superb article and excellent comments.
      I was tired of anguished table-pounding comments proclaiming that the release of a redacted affidavit would be the end of civilization. Apparently, the highest levels of the DOJ and a magistrate held a different opinion, and the world did not end.

    • Tom R. says:

      Figliuzzi’s general idea is not crazy, but it’s not significant in this case, because of the vast number and variety of purloined documents.

      Prosecutors may have to settle for convicting him on “only” 50 counts instead of 100 counts, after setting aside the most super-sensitive documents. The sentence is the same either way.

    • emptywheel says:

      Lucky for those who are trying to survive Donny Trump, Donny Trump’s DOJ moved that marker significantly to the side of prosecution.

  6. Pedro P says:

    It’s easy to think and expect the worst of Don and alot of times he doesn’t let you down.

    I wouldn’t just yet be so far over my skis though. So much is unknown and much that is out there is from anonymous leaks in the media.
    We don’t who these civilian witnesses are and what exactly they said and if they found what they said was there.
    Maybe this is finally it, but it sure feels like more of the same.

    • Rayne says:

      Thanks for the apologia for Trump. We don’t need it here. Add something constructive or take a back seat.

      • Pedro P says:

        I wasn’t defending Trump, thought I was adding to the conversation. Just saying, you might want to pump the brakes on the impending indictment.

        • Rayne says:

          Dude. Who among the principals of this site have alluded to impending indictments? Marcy even used the word “if” in the first graf of this post as to whether Trump ever goes to trial.

          You might do well to pump your own damned brakes because the principals here know the amount and types of classified information involved deeply affects what lies ahead.

        • Pedro P says:

          Come on .. I was more speaking to the peeps not the principles and the impending indictment phrase wasn’t literal.

    • EH says:

      “Sure the cops cut his tongue out, but we don’t know what happened before the video was recording.”

  7. viget says:

    What are the odds that some of this NDI had anything to do with security protocols at US military institutions in Afghanistan? And possibly evacuation plans?

    Since we are now out of Afghanistan, if such info was recovered during the search, could it be declassified per CIPA?

    • Rayne says:

      What does it matter what this NDI is if it’s classified? It’s material the general public shouldn’t see, whatever it is. For all we know some of it is about alien technology. Or other national security challenges the public knows nothing about.

      The current executive will declassify what he feels is appropriate to the best interests of the nation to be declassified. I doubt anything which is currently classified about Afghanistan will be declassified in the next 2-3 years given the ongoing challenges in that country and with Russia which co-opted Afghanistan to attack US troops.

      • SMF88011 says:

        I just thought of a way to explain NDI to someone without breaking the law myself (I have a security clearance).

        It is in the public domain that a ship has X number of personnel. You know that they have a security force. The # of men in the security force, what they are armed with, and their patrol areas would be NDI. The actual schedule and methodology of their patrols would be classified.

        • Rayne says:

          Perfect. We the public can see the ship, we may know personnel on the ship, but more detailed information than that may be NDI and not information the general public needs but may be mission critical.

        • Raven Eye says:

          You couldn’t miss it. It was over 300 feet long, painted white, had a big red stripe, and the name of the owning agency in bold black letters on each side.

          But the UNITREP, which had to be transmitted at every change of materiel or physical status, was classified.

    • SMF88011 says:

      Security protocols and such of US military installations are classified and for good reason. NDI is things that are declassified by are still protected under statute. I cannot give an example without breaking the law, sorry!

  8. d4v1d says:

    It seems to me, from a meta perspective, we have Trump himself clearly and precisely exposed as the perpetrator. No capos, goons, or fall guys to take the rap, no event horizon of plausible deniability with a singularity of bullshit within is Schwarzschild radius. It took a long time and careful quiet planning for the DOJ to reach this point – as this website has made clear it would. And the they didn’t come this far to stop now.

  9. Cosmo Le Cat says:

    Another superb article and excellent comments.
    I was tired of anguished table-pounding comments proclaiming that the release of a redacted affidavit would be the end of civilization. Apparently, the highest levels of the DOJ and a magistrate held a different opinion, and the world did not end.

    • earlofhuntingdon says:

      As with Bush v. Gore, Dobbs, and the ripples from butterfly wings, one never knows where the effects of a precedent – or broken precedent – will end.

      • LeeNLP says:

        Some reasonable predictions might be made, however, e.g. that broken precedents will likely lead to more broken precedents.

    • bmaz says:

      Hi there Cosmo. That is blithely easy for you to say because you are jawing in a comments section on the internet and clearly do not know your ass from a hole in the ground about criminal law, procedure, rules and precedents.

      Others of us actually do that for a living. I can flat out guarantee you that this thing you blithely think is not big deal is a HUGE FUCKING DEAL. It is already sending out ripples, and will continue to. It is a new benchmark that almost certainly will affect future cases, and in a manner that will get CIs, witnesses, concerned citizens, spouses and children and other people identified in future affidavits killed. So, you just sit there and chortle at your keyboard all you want. But that is out of pure ignorance on your part.

  10. Hychka says:

    No word from GOP defending their hero. No word from McConnell. No word from senate candidates endorsed by the FPOTUS.
    Can’t wait to hear their reaction to all this given their initial screams of abuse of powers.
    Can’t wait.

    • Rayne says:

      It’s almost as if the GOP are glad to have tuition debt relief to bitch about to prevent them from having to address Trump’s deepening legal exposures.

      • Fran of the North says:

        Agreed. Right now, smart GOP powder is staying dry. Focus on the non-Trump news items.

        If this seems like a tempest-in-a-tea-cup, the chorus will rise in defense of FPOTUS.

        But, IMO, the events of the past two weeks have gotten the more rational GOP’ers (is that even a thing??) to think twice before blindly professing the innocence of former, or the illegality of the actions of the Feds.

        Something about professing support for someone involved in domestic espionage that could be career ending if your constituents decide you are playing the wrong side of the fence.

  11. MattyG says:

    Of course the 800-pound gorilla in the room is if DT peddled, was peddling, or intended to peddle any of his purloined intel. Is there anything in the affidavit to suggest the FBI search was predicated in any part on DT actually leveraging the stuff? For instance would the referenced Espionage Act cover this sort of thing. Or does DT not being in custody suggest the FBI didn’t have cause to believe he was peddling?

    • skua says:

      There is also the possible leveraging by Trump towards being treated as untouchable by the DoJ. Specifically Michael Cohen’s guess that Trump is (implicitly or explicitly?) threatening to release vital security and defence data to USA’s enemies if he is charged. This suggests a different but still transactional interpretation of his retention of the documents at MAL – they’re receipts, examples of what he has set up to be released if he gets indicted.

      • Doctor Jay says:

        This. Absolutely this. This has been my speculation all along. It was his “protection”. Which has been yoinked from him expertly. He’s not getting that stuff back, regardless of political or legal maneuvering.

  12. BobCon says:

    How does this work when there are dozens if not hundreds of documents?

    Is each document a separate offense? Or is he potentially at risk for multiple charges? Is this more like robbing ten banks? Or is it like cleaning out ten cash drawers from a single bank? Or is bank robbery not a good way of thinking of it?

    • NeoGeoHa says:

      That is an excellent question. Clarification from a knowledgeable party would be greatly appreciated.

      • Yorkville Kangaroo says:

        I stand to be corrected but each indictment would state which statute was broken and how many counts were involved. So it may be the DoJ would prosecute all the documents or they might just go for the major ones.

    • Drew says:

      IANAL but it seems like the analogy would be more like robbing the safety deposit vault of a bank–each box that was robbed would have separate contents and victims. The prosecutors would choose to charge as many counts as they thought effective to get the conviction–the overall robbery plus each box. But part of the consideration of what to charge would have to do with what they could prove and what evidence the owners of the individual boxes were willing to have entered into evidence in court.

  13. TooLoose LeTruck says:

    I see ‘FPOTUS’ is becoming the go to acronym to describe Trump…

    Could I suggest a slight variation on that… ‘FKUPOTUS’?

    Appropriate, no?

    Or perhaps the shorter, and more succinct ‘IMPOTUS’?

  14. matt fischer says:

    Thank you for addressing the WP article, which appeared to insinuate that because FPOTUS didn’t get “read in” or “read out” on the proper handling of classified materials that he should somehow get a pass for mishandling DNI. In any case, ignorance of the law is no excuse for breaking the law.

    • skua says:

      Is true for speeding and parking (liability) offenses.
      But (all?) criminal offenses require evidence of “guilty mind”.
      “A mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. See, e.g. Staples v. United States, 511 US 600 (1994). Establishing the mens rea of an offender is usually necessary to prove guilt in a criminal trial.”

      • matt fischer says:

        … a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

        • skua says:

          Thanks matt fischer.
          So it’s not so much “guilty mind” as it is “sufficiently aware-of-the-facts mind”.
          Looks easier to achieve.

        • matt fischer says:

          Setting aside what WH Counsel and others repeatedly informed FPOTUS of during his term and after, the very nature of NDI is likely important in the question of mens rea. By definition NDI’s unauthorized exposure could cause grave harm to the US. It follows that one would hardly be surprised to learn that there are laws regulating its handling.

          Thus, to my understanding, if you are able to show that FPOTUS was aware that even one of the documents he absconded with was of such a sensitive nature then you will have already gone a long way toward establishing the requisite mens rea for 18 USC 793e (barring the “Trump is such a psychopath” or “Trump is still president” exemptions).

    • Yirkville Kangaroo says:

      I think that this is a useless line of defense though The Donalld’s useless lawyers will probably try to run with it.

      The Donald would have been made FULLY aware of what his responsibilities were in respect to classified information and that would have been done multiple times and with witnesses in the room.

      It MIGHT mitigate a sentence but I highly doubt it especially once Bratt visited the scene.

    • RedApe says:

      Here’s what I suspect that is the very early redacted sections following the mention of Kash Patel’s Brietbarf article about “instant declassification” in the DOJ Affadavit. They seem to go into a considerable response to it.

      I suspect it’s an in-depth analysis of the last actual declassification process that took place under Trump… his last minute declassification of the Crossfire Hurricane documents…and contemporaneous to the removal of the materials from the White House.

      That declassification was NOT a “wave my hand say “Shamalazambam, thank you ma’am” but rather went through the White House Counsel, a required ITERATIVE review, a request by the President (not an order), ti declassify, further review and redaction by the DOJ, a request by the FBI not to release, and finally a declassification of a redacted version by the President. Specific documents were named, and even constraints on the President were stated.

      ” the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.”

      “Portions of the documents in the binder have remained classified and have not been released to the Congress or the public.”

      TRUMP is therefore fully aware of the process of declassification and any act that violated that would be knowing and wilful. He knew the President was bound by a process of declassification and had other legal constraints.

      “My decision to declassify materials within the binder is subject to the limits identified above and does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court and does not require the disclosure of certain personally identifiable information or any other materials that must be protected from disclosure under applicable law. ”

      “Accordingly, at my direction, the Attorney General has conducted an appropriate review to ensure that materials provided in the binder may be disclosed by the White House in accordance with applicable law.”

      “(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
      (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”

      So if Kash Patel or other Trumpets assert that Trump had the power to declassify the materials found at Mar-A-Lago then one must ask why he specifically followed the law, and stated he was constrained by the laws, in the case of the CROSSFIRE HURRICANE materials!!!

      There was no “instant declassification. And Trump knew he couldn’t do it. So any defense that he declassified the materials that he took to Mar-A-Lago simply demonstrates his wilful violation of the Espionage Act.

      Obviously the partial declassification of Crossfire Hurricane was a quite targeted political act, and people should look at what Trumps other requests were submitted re. declassification before he left…that’ll give clues regarding what he took to his Florida Golf Club.

  15. earlofhuntingdon says:

    Setting aside Trump’s troubles for a moment, what do you do if you find out a former USG employee took home dozens of boxes of sensitive government information, without any apparent authority or rationale? You then find out that that former employee had documents on half a dozen of your ops, and he kept them in an unlocked closet at a Florida beach club for eighteen months?

    For starters, you would have to assume that every one of your ops had been compromised. It would be fatal to assume otherwise. You also have to assume that, apart from those immediately involved with your own ops, Trump’s favorite people in Russia and elsewhere have some of your data.

    So, you wind them up. OK, then. Pull your own people. Invent a plausible cover story that your opposite number won’t laugh at. Insulate their contacts. If you cut them loose, it gives them an incentive to talk. Try to hide the target or purpose of the ops. Good luck with that. Deny the op, deny that you’re winding it up. Defend your choices internally, with oversight figures, with those who grant your budget.

    Wash down the drain your credibility, maybe your career, and the budget for those ops, and the budget for winding them up and lying about it. Find a budget for replacement ops. Eat the damage to your network – foreign governments, private actors, collateral damage, etc. All because some shit former gubmint employee stole a bunch of records.

    I don’t even know where you put the decimal point on the costs Donald Trump has imposed on this country and its government, just from the activities implicated in this finite set of stolen documents.

    • TooLoose LeTruck says:

      I’ve wondered what sort of deliberate motives Trump could have had for dragging this farce out as long as he did… and by deliberate, I mean perhaps he just wasn’t being the careless buffoon he affects so often in public, but really did have truly nefarious, specific intent here…

      Was he trying to give the parties he had slipped really sensitive information to time to act on that information, before the US found out what he had done and could act to mitigate the damage, perhaps even protect confidential sources?

      And given how sensitive some of this appears to be, I suspect we, the public, will never learn the whole story, what sources might have been lost and what damage was done.

      This is all speculation on my part and just seems like what we’re learning is getting worse by the day. Where’s the bottom to this hole?

      • PeterS says:

        I hesitate to add to the WAGs, but for me the most likely explanation is Trump kept stuff that makes him look bad or foolish. He thinks that when the information got to any part of the current administration then Biden would leak at least the gist of it – because that’s what he, Trump, would do. 

      • Tom Marney says:

        To me, the answer is obvious: he’s done it in order to incite his base into anger and eventually violence. He’s certainly done it before, and without expressing any remorse or facing any consequences. Why would anyone think he wouldn’t do it again?

      • dude says:

        I believe it is a mixed bag–vanity keepsakes, embarrassing evidence of mistakes and transgressions, red meat for his Storm Trumpers. But the man has never let go the idea he remains President or will again occupy the White House—it is who he is. So, I imagine he sought out stuff he thinks he can use in a second term either to line his pockets, to use as future political blackmail, and stuff that could make him look influential over other countries. I don’t think this is all about looking backward for Trump. He thinks he’s going to live forever and he’s always looking for an edge. Whatever he kept, I am afraid he mostly kept it to use.

      • Drew says:

        It seems essential to me to factor into this how shambolic, self-centered and stubborn Trump is. He doesn’t make clear plans, but operates out of aggrieved intuition and world-historical levels of selfishness.

        The reports are that he was gathering stuff throughout his administration, he was intensely interested & secretive in its packing and that he spent a lot of time in December 2021 reviewing the boxes that were returned to the archives.

        We don’t know what the exact mix of motives he had for collecting this stuff, but from his behavior & character as we have come to know it, some would be to attack enemies, others to protect associates & others who might damage him if they were pressed by arrest or investigation, and some would be things that he could look at and comfort himself by showing that he’s great–since his ego is so fragile that it threatens to collapse into a black hole if he’s seriously humiliated.

        For Trump there is little or no difference between investors, mobsters, oligarchs or governments. And there’s also little difference between getting future payments and protecting past payments or current assets. Keeping money laundering or shady financing of the purchase of golf clubs from being investigated is just as big a deal as being a player on the world political stage.

        I’ve worked with people trying to go thru their papers, and they can get pretty obsessive and ineffectual-that’s part of what the May letter from the archivist reflects–Trump being obsessive & controlling about this stuff and not actually working through it–but I also think that a big part of the reasons for his extreme resistance is that he was aware of all the criming that he was concealing by his hoarding–but he couldn’t necessarily find or even remember all of the pieces involved.

        With regard to NDI etc–Trump DOES NOT GIVE A SHIT ABOUT THE SECURITY OF THE UNITED STATES! So he just took the stuff and kept it, knowing it was against the law.

    • goose says:

      I was explaining to my son an hour ago how this resonated with Cheney+Scooter and Wilson+Plame, that the consequences of maliciously outing one agent with a network to run were really bad for the sources, and really bad for future operations. What Trump has been allowed to do is unconscionably dangerous, and may have already cost lives and further damage to US HUMINT programs. As someone seems to want us to remember:

    • Peterr says:

      Eat the damage to your network – foreign governments, private actors, collateral damage, etc. All because some shit former gubmint employee stole a bunch of records.

      This is exactly the nightmare I had in mind when I wrote my post about William Burns and Merrick Garland. Even these minimal redactions make his job of rebuilding trust with his counterparts that much more difficult. “Why should we trust you, if you can’t keep secrets?”

      That’s a damn good question that every foreign intelligence partner will be asking, as well as every person the CIA has recruited or tries to recruit to do espionage work on our behalf.

      Burns, Avril Haines, and Biden need a damn good answer to that damn good question.

      • Troutwaxer says:

        The best answer to this question is for the U.S. to arrest and prosecute anyone who’s so much as walked past Mar A Lago. Ideally, Trump, anyone who helped Trump, anyone who watched a friend help Trump, etc., should get smashed by the U.S. Justice system.

        Whether it will go down this way is another matter, of course, but if I was a U.S. ally that’s what I’d want to see.

  16. NVG says:

    Seeing boxes of documents being gathered up and returned to their rightful locations by the FBI, seems to ignore the possibility that Trump, and his associates, haven’t used their eg. iphone camera app to capture the most secret of documents, while he WAS the President of the United States, and sent the images around the world, and been compensated already for his efforts.

    • TooLoose LeTrump says:

      I notice he keeps referring to himself as ‘President Trump’ throughout…

      That alone s/b good for some laughs…

    • P J Evans says:

      They want a special master appointed to go through all those papers the FBI has already seen and an injunction to keep them from looking at them.
      They’re also relying on the PRA and claiming it has no enforcement mechanisms, as if the warrant doesn’t tell them what sections the FBI was relying on. And as if he still had the same privileges as when he was in office.

      • earlofhuntingdon says:

        A quick scan suggests this revision, styled as a “supplemental” filing, is not a new and improved version of Trump’s earlier filing. It does as little as possible to facially comply with the court’s “do-over” instructions. It has the earmarks of being obtuse and filed in bad faith.

        For starters, it takes the position that the PRA is the only statute relied upon by the search warrant, which is obviously false. It then characterizes the search as a “pretense,” because the PRA lacks any criminal enforcement mechanism.

        Trump’s arguments are like a game of connect-the-dots, but with no dots, no lines, and no picture. This purported filing would be more accurately described as red meat for the base, and an attempt to delay and to obscure the importance of the facts and laws the DoJ is really investigating.

        • Peterr says:

          And they *still* can’t figure out how to properly serve the DOJ:

          Finally, the Court has directed Movant to address the status of service of process on the Government. Dkt. 10. Movant served the Motion to United States Attorney Juan Antonio Gonzalez and Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, on the date of filing, August 22, 2022, via electronic mail. Counsel for Movant spoke with Mr. Bratt on August 25, 2022, and inquired as to the Government’s position on acceptance of service. Mr. Bratt consulted the U.S. Attorney’s Office for the Southern District of Florida (“SDFL”), and informed counsel for Movant that, consistent with DOJ practice, SDFL adheres to the requirements of Rule 4(i) of the Federal Rules of Civil Procedure for service of process in a civil matter against the United States. Accordingly, counsel for Movant sought an executed copy of a Summons, which has been issued by the Clerk. See Dkt. 26. Movant will promptly serve it, and a copy of the pleadings, on the U.S. Attorney’s Office for SDFL and will promptly file proof of service thereafter.

          I’d love to have listened in on Bratt’s call to SDFL. I don’t think it was consulting in the sense of asking whether to accept service or not, but rather a “You wouldn’t believe what these idiots are doing. Have they never read the FRCP?” bit of laughter between colleagues.

      • PeterS says:

        I think a major failing is that it’s pretty vague about what the special master would be looking for and what harm occurs if there isn’t one. MAL isn’t an attorney’s office, rather a resort with a “bar” that only calls failed lawyers.

    • earlofhuntingdon says:

      The supplemental filing has many of the drawbacks of the original one. To call it inconsistent is an understatement.

      It’s theme is please give me a special master, so I can delay government review of what my client stole. It devotes a few, junior associate-written paragraphs about why the court has jurisdiction to do that, but devotes none about why it should do that. It says nothing about any claimed inadequacies of the current procedure, the initial stages of which are almost complete.

      It says nothing about what a special master would do, other than to throw out the word “privilege.” Nothing about what sort of privilege. Nothing about the probability that the search might find privileged documents. The precedent it cites concerns the seizure of electronic devices from a lawyer (Giuliani!), which entails a greater likelihood of finding privileged documents. This filing just assumes there must be some privileged documents somewhere, however improbably filed among the magazines, general business receipts, family photos, and presidential records.

      It wants to stop the government’s review, then demands action that only a review would permit: cataloguing the documents taken in detail, determining which documents are responsive, which are not, and returning the non-responsive ones, something the government is already doing. It shrieks about overreach, but gives the court no foundation to determine whether any exists.

      As for the return, it repeatedly mentions rule 41(g) of the federal rules of criminal procedure, as if some associate just found it under a rock. But it makes no argument for why it might apply. Nor does it say why this court can and should do more than the government is already doing – Trump’s passports were already returned, for example. Other, non-responsive documents presumably will follow.

      And as for wanting the government to catalogue the documents it took, that appears to be because Trump has no directory or record of his own concerning what he stored in his closet. Contrary to this filing, that would support the immediate return of all presidential and other government records. Apart from Trump not being entitled to have them in the first place, it demonstrates that he is incapable of storing them properly.

        • Carole says:


          [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Carole” “Carol” or “Karol/e.” Very sorry not to have noticed this in your previous comments. Thanks. /~Rayne]

      • Yorkville Kangaroo says:

        They’re doing it for two reasons:

        1) To take as much out of the hands of the FBI as possible (won;t be much)
        2) To be able to use it as propaganda; “See? They took all this stuff that theye weren’t entitled to.

        Of course they had a filter team going through it so once it actually gets to court I doubt they can make much of a case of evidence being tainted.

  17. gerontar says:

    I am a physician so way out of my lane, but one question continues to nag me. Given the sheer number of sensitive documents from multiple intelligence agencies and departments, I would assume there are multiple “librarians” looking for their missing records. Who are the custodians of these records and what exposure (if any) do they have for not sounding an alarm earlier? Does the responsibility default to the Archives?

    • dude says:

      I am not a lawyer, and I have difficulty like you. Best I can imagine: the documents that went to the White House are originals. The sender may have a copy, but no original— or perhaps (in a crude analogy) the sender may have the digital “Word document” that printed the hardcopy that went to the White House. The sender would also have a transmittal & receipt indicating what was sent, but the original never comes back unless or until it is requested, and that return is customarily when the President leaves office and Archives gets everything back. Under this simplistic scenario, the sender doesn’t know if anything is missing at the receiver’s end unless the receiver says, “hey, I need page 5 of 12–it’s missing from the package you sent me.” If all the agencies transmitting secure info to the President worked like this, they might not ever know what was being misfiled, stolen or abused by the White House for a long time. Everyone is presumed to be acting in good faith—a bad move when the guy in charge is Trump.

  18. Patrick Carty says:

    It is my understanding that many quiet requests were made for the return of the documents before escalating to a subpoena and then a search warrant. So no, the librarians are not to blame.

  19. OuthouseCounsel says:

    What happens now to Christina Bobb? I expect any claims of attorney client privilege are undermined by the crime. Should we expect the FBI to turn her 180 degrees into a witness against Trump or is it more subtle than that? Same question for Corcoran but he didn’t sign the declaration.

  20. punaise says:

    Trump: Super-Mole?

    “The New York Times Drops A 100 Megaton Print Bomb On One Donald J. Trump.

    Last year, intelligence officials learned something alarming, and alerted their stations globally: Assets, or in this case, foreign nationals recruited globabally to collect intel for the United States, were being pulled off the chess board by being captured or killed at unusual rates.

    That article is from October 7th, 2021 and outlines a disturbing trend that began only after one Donald Trump became President. In fact, it had been known for some time that there was a problem. It also was not unknown across the pond. There, a reporter is a bit more direct in their angle, questioning is a “super-mole” was betraying our spies.

    • punaise says:

      Gotcha. For future reference and good blog hygiene, what triggered moderation? One of those tracking things in the URL?

      • Rayne says:

        I didn’t see what you saw at your end. After poking around the only thing I can figure kicked the comment into moderation was broken HTML — a reference tag without a reference inside the tag.

  21. Cosmo Le Cat says:

    bmaz, you might be surprised to learn that prior to the decision to release the affidavit, you convinced me that its release would be wrong. Although I felt there was public interest favoring release, you pointed out that it would violate prior precedent in the relevant circuit court. In my mind, your point of law prevailed. You convinced me that withholding the affidavit was best, despite my desire to see it.

    Although I did not express a prior opinion, I did state some counterpoint to the prevailing opinion here, and I (mistakenly) stated that the defendant had made the warrant public and had called for the affidavit’s release. You corrected me, pointing out that there was no defendant, as the warrant was for the search of a location. I appreciated the correction. I come here to learn and often ask questions. I highly respect your knowledge and greatly appreciate everyone here who shares theirs.

    So, when the highest levels of the DOJ decided to release of the affidavit, I feel we must trust that they weighed all factors carefully.

    I would not characterize my prior comment as chortling. Rather, I was stating what has been a constant theme of the principals of this site, that we should trust the process, trust this DOJ and trust Merrick Garland.

    • timbo says:

      Moi aussi. If it wasn’t for this site, I’d be no doubt demanding release of the affidavit too.

      What we need to support this legal framework, that we feel is better than most, is by understanding what it really stands for, how some of the nuts and bolts make it work well enough to hopefully maintain that support, and how it might or might not deserve to be supported by our society at large. This site has helped me appreciate aspects of our society and its legal institutions and legacy greatly. It’s not perfect, but it’s a damn sight better than most, particularly the presumed innocent part!

      What is moral certainty and ideological mumbo-jumbo so much of the time needs to take a back-seat to the nuts-and-bolters if one is to truly appreciate the good and the bad of our legal system. Thank heavens there are people here who have some good knowledge of that. Kudos to their patience (if any ;D) with the rest of us!

  22. Jack Wagner says:

    The Courts will eventually decide if the probable indictment is warranted.

    Trump’s team will certainly challenge the indictment on numerous grounds based on authority bestowed on a POTUS.

    It might even make it to SCOTUS. Wonder how that goes?

  23. Susan D. Einbinder says:

    What happens if Trump leaves the USA (before he is indicted)? He can run in the 2024 election from prison, but can he run from another country? Say, maybe, Russia?

    • Yorkville Kangaroo says:

      I’d love to see that. Federal Marshalls and the FBI arresting him at the airport when he arrives back to be crowned king.

      Would there be Lindsay’s riots? Most certainly. Would they be crushed by the National Guard? Also, most certainly. Unlike The Donald Biden would have no qualms about calling on the military to put down an uprising.

  24. Thomas says:

    I have written, in the past, that Hillary Clinton could not be prosecuted for “mishandling classified information” because the information in question was within her power to classify or declassify. Some of that material was classified after the fact of her handling it on a private server.

    I still maintain that position, and let me tell you why that case is different from the case of Trump.

    First, all of that material was turned over to the government when Hillary left office, and the DOJ conducted a filtering operation to identify 33,000 emails that were personal emails.

    Those were deleted, and THAT is the source of the Buttery Males whining and Lock Her Up chants. She never violated any laws.

    Trump, on the other hand, secretively squirreled away a couple hundred documents relating to nuclear weapons, spy operations, and intelligence capabilities, with no authorized purpose for him to have those, and then he refused to give them up.

    Yes, Trump COULD have declassified those documents and he COULD have signed an Executive Order authorizing himself to retain them (which would have been rescinded by his successor), but he didn’t.

    The reason that he didn’t, I guess, is because that would have created a paper trail telling his successor what documents he intended to use as an ex-president.

    Since an ex-president has NO AUTHORITY to use classified information for his own, personal purposes (and what would those be??!), and since he concealed his retention of the documents, and made no effort to store the documents in a way proscribed by law,


    • Troutwaxer says:

      I can tell you that as an IT person there’s nothing to be happy with in terms of how Hillary handled security. This is also true of Colin Powell* (who gave Hillary the advice to use a private server.) Whether this rose to a level of criminality is, of course, separate from the information security issues, but unless Hillary hired a really good security person and avoided Windows servers like the plague, had a properly-configured router and at least one firewall appliance, she probably didn’t come close to what the government can do where security is concerned.

      Even with a Linux or Unix mail server and properly professional routing/switching/firewall gear like Cisco or Juniper, someone would have had to be reading logs and patching something just about daily. As for the contention that her server was in the cloud, that’s very possible, but I’d want to know who her cloud-provider was and how they handled security, and what level of security she was paying for, but someone still would have needed to read logs daily and patch software daily.

      It would not surprise me to learn that one of the reasons she wasn’t prosecuted is due to whatever the intelligence community of 2015-2016 knew about Trump – there’s no doubt that despite whatever security issues she might have, she was the superior candidate from the standpoint of any three-letter-agency (or anyone else who was vaguely sane.)

      In short, I wouldn’t crow over Hillary. She, Colin Powell, and Donald Trump all should have known better. That Trump is definitely the worst of the lot, and probably the only one who’s a Russian puppet and hideously damaged narcissist (rather than being a little too spoiled to make security their first concern) doesn’t excuse either Hillary or Powell.

      * There’s a lot of ugly stuff to unpack about the Bush White House and the use of private emails, but I’ll let someone else go there – I’ve ranted long-enough.

      • Yorkville Kangaroo says:

        You’re right of course.

        The problems always start when someone who thinks that rules don’t apply to them (Powell, HRC, many others over time) try to skirt them or just plain ignore them (The Donald). This applies to the other organs of the (Deep, so called) state. J. Edgar Hoover has a lot to answer for!

        Each of these mis- and malfesant actors and actions have accumulated to the point that we see what we have now before us.

        Lock them ALL up!

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