Six Days: Trump’s Second Whack Filing Is Too Late

According to the Trump affidavit, between May 16 and May 18, the FBI conducted a preliminary review of the 15 boxes of materials he returned to NARA in January.

47. From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Fm1her, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes.

We know from the letter from Acting Archivist Debra Steidel Wall that the FBI first got access to those records no earlier than May 12.

I have therefore decided not to honor the former President’s “protective” claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President “uphold[s]” the claim asserted by the former President, “the Archivist discloses the Presidential record”). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question , as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.

One … two … three … four … five … six.

That’s how many days it took the FBI to process 15 boxes of material and then find 184 unique pieces of evidence that the former President violated the Espionage Act.

Six days.

Now consider a detail included in the affidavit. As I’ve pointed out repeatedly, there was a filter team onsite. The affidavit helpfully explains that the primary job of the filter team was to do the search of Trump’s office.

82. The Case Team will be responsible for searching the TARGET PREMISES. However, the Privilege Review Team will search the “45 Office” and conduct a review of the seized materials from the “45 Office” to identify and segregate documents or data containing potentially attorney-client privileged information.

Probably, the case team brought the privilege review team five other boxes to review. That’s because Fox News told us already that all the items on what I call the SSA receipt include privileged materials, but the numbers for five of those boxes suggest they were found in the proximity of all the rest, likely the storage closet.

So five boxes (and a stash of documents) were identified to include privileged information. The remainder, a total of 22 boxes (one of which is the leatherbound box with the TS/SCI documents), would presumably be subjected to a similar process as that used in May.

Probably, that initial search was done with a limited team, because the investigation was not overt yet (though Trump obviously knew about it). Now, this time around, FBI was undoubtedly assuming that Trump could run to the court to get a Temporary Restraining Order at any time, so they may have thrown additional bodies at the problem. But let’s assume the process took the same amount of time. There are approximately 50% more boxes on the CLASS receipt than FBI first accessed in May. 50% more days would be nine days.

August 8 … August 9 … August 10 … August 11 … August 12 … August 15 … August 16 … August 17 … August 18. Nine days.

Even assuming that the FBI didn’t throw extra bodies at the problem, even assuming they took weekends off — both completely ridiculous assumptions when you’re trying to beat a notoriously litigious suspect trying to hide stuff — they would have been done with that same preliminary review around August 18. Nine days ago.

They could have gone through the entire process twice in the time elapsed since the search of Mar-a-Lago!!!

That timeline is consistent, in fact, with NYT having gotten a leak that the FBI had found maybe 100 more documents with classified markings, just from the 27 (or maybe just 22 of the) boxes seized on August 8, by August 22.

The initial batch of documents retrieved by the National Archives from former President Donald J. Trump in January included more than 150 marked as classified, a number that ignited intense concern at the Justice Department and helped trigger the criminal investigation that led F.B.I. agents to swoop into Mar-a-Lago this month seeking to recover more, multiple people briefed on the matter said.

In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, the people said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.

Every single document with classified markings seized on August 8 is another piece of evidence that the former President took classified documents the Presidential Records Act says must be in the Archives or the agency that generated the documents and refused to give them back. And then refused again. And again. And again. If the DOJ were ever to charge Trump, they might focus on just twenty documents, like they did with Hal Martin.

They’ve got 15 times that to choose from already.

Now let’s go back to the privileged documents — 5 boxes and a pile of other documents, presumably obtained from Trump’s office. For some reason — perhaps because they’re also government records or include classified information — even after identifying them as privileged, FBI still got to seize them.

Five boxes, a third the number as the original batch from Mar-a-Lago. Once you got into those boxes, it might take just two days to do an initial review of them.

Now, we don’t know what DOJ is doing with them (though they did decide to take them). But here’s what, per the affidavit, they were permitted to do:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

They can hold off entirely (option b), they can engage in a sort of a Special Master review (option c), or (option a), they can secretly go to the judge and ask him to decide whether they’re privileged. The way this is written suggests that DOJ imagined that Bruce Reinhart might look at documents the privilege team identified as privileged and decide they weren’t privileged, possibly because they were crime-fraud excepted.

Remember that Fox News report relaying Trump’s complaints that the FBI had taken attorney-client privileged documents? That was published on August 13, six days after the search.

To be sure, Judge Reinhart probably can’t sort through boxes of documents at the pace the FBI can (though, what else was he going to do, given that he was hiding out from Trump’s mob?). Still, by the time Trump learned that the SSA receipt reflecting 5 boxes and some other documents from his office had privileged material in them, DOJ had had five days to do their own filter search and go back to Reinhart and ask him to confirm they could access those materials.

And that was something like fourteen days ago.

Yesterday, five days after their first attempt to submit a whack filing asking for (among other things) a Special Master to review the seized documents — but not for attorney-client privilege, but for Executive Privilege (documents that, by definition, belong at the Archives) — and after some polite prodding from an wildly pro-Trump Judge, Aileen Cannon, they submitted their second attempt.

I’m not going to go through it in depth this time (here’s a typically hilarious thread from Mike Dunford on it). But here are two key details. First, in response to one of the really helpful prods from Judge Cannon, Trump’s lawyers confessed that, no, they hadn’t thought to formally inform DOJ about this lawsuit before she reminded them that’s necessary.

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.

But, two days after she nudged them to do so, Trump’s lawyers decided to call Jay Bratt, and asked him if he’d really like formal notice that they want to sue him to prevent him from doing his job.

He did.

So sometime on Monday, maybe — that’ll be 21 days after the FBI seized 27 boxes from Trump’s hotel, more than three times as long as it took for FBI to find 184 unique pieces of evidence that Trump violated the Espionage Act back in May — DOJ will have formal notice that this is going on, which would be the earliest that Judge Cannon could conceivably say, “Stop what you’re doing!!”

But she won’t, because first she’s going to give DOJ a chance to weigh in, even if on accelerated schedule.

With that in mind, here’s the second point. On their second attempt, Trump’s lawyers managed to ask for the thing they needed to do if they really wanted a Special Master: to ask for an injunction.

Movant requests two categories of relief in the present proceeding. First, Movant seeks an order directing the appointment of a Special Master to oversee the review of materials seized from Mar-a-Lago on August 8, 2022 and enjoining the Government from engaging in any further review of those materials.


The present Motion seeks injunctive relief in the form of an order barring the Government from engaging in any further review of materials seized on August 8, 2022.

I’m not sure they’ve made this ask properly. At this point, 18 days after the search, it’s probably not even worth the effort figuring it out. The point, though, is how this will work. 21 days after the search of Trump’s house, 17 days after DOJ told Trump they’re going to pursue some other option to access the stuff already identified as attorney-client privileged (one of which might be asking Reinhart to allow them to access it), and 14 days after Trump started getting stuff — his passports — that was out of scope of the investigation, is the first moment that they will have formally told a judge, “Emergency!!! We need a Special Master!!!”

Update: Two significant developments. First, Judge Cannon has issued an order to the government — which has not yet been served — to respond to Trump’s motion by Tuesday.

 On or before August 30, 2022, Defendant shall publicly file a Response to the Motion and Supplement, including Plaintiff’s request for the appointment of a special master.

In addition to the Response, on or before August 30, 2022, Defendant shall file under seal the following materials:

i. A more detailed Receipt for Property specifying all property seized pursuant to the search warrant executed on August 8, 2022.

ii. A particularized notice indicating the status of Defendant’s review of the seized property, including any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team.

Meanwhile, Director of National Intelligence Avril Haines has told various Committee Chairs and Ranking Members that the IC is conducting a classification review and what sounds like a preliminary damage assessment. That suggests the stolen documents are already out to the agencies.

Update: In DOJ’s initial response, they’ve noted that the privilege review is already done.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any. Additionally, the Department of Justice and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of materials recovered pursuant to the search. As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.


194 replies
  1. klynn says:

    Is Trump pursuing a “Stop what you are doing,” when the documents sorted and examined to date may indicate obstruction, then become another act of obstruction?

    • Ken Muldrew says:

      Not a lawyer either, but I’m pretty sure this is just a normal part of the adversarial justice system. Like pleading not guilty when there’s evidence against you.

    • earlofhuntingdon says:

      No. They are asking a federal court, albeit in a fumbling, bumbling way, to temporarily stop a federal law enforcement agency from processing records obtained through the execution of a valid warrant.

      Their reasoning is poorly expressed: Overreach! Rule 41(g)! Fourth Amendment! To convince the court, they would typically need a better description of the facts and laws that support their argument. It will be interesting to see how sharp the scissors are in the government’s response.

      • Drew says:

        Are they still asking for the Special Master PRIMARILY to review Executive Privilege documents? At least in the first filing that seemed a much bigger part of what they were asking than attorney client privilege. A TRO & Special Master might be something a judge could grant for attorney-client privileged documents, but I don’t see even a very Trumpy judge doing so for EP. And as EW is pointing out here, the taint team has already gone thru the attorney client materials and they are segregated from the bulk of the evidence.

        • Rena says:

          That was my thought exactly, given your recitation of where they probably are in their review. You snooze, you lose!

          [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 six comments were published under username “RMS.” Thanks. /~Rayne]

      • klynn says:

        IANAL. I understand he has a right to pursue this, despite bumbled efforts. If I were on a jury, it would be difficult to not see his attempted filing(s) as delay tactics to obstruct the obstruction.

        • earlofhuntingdon says:

          On the other hand, the bumbling from Trump’s three lawyers, all of whom claim to be sthpecial, has delayed to the point of making this motion/complaint moot. The FBI will have completed its work, reviewed the documents, and offered to return non-compliant records to Trump.

          It’s almost scary, though, how poorly prepared and incompetent Trump and his lawyers are in dealing with such a massively obvious legal problem. To say that’s what you do when you have neither the law nor facts doesn’t cover it.

          It’s also a warning against electing another Floridian to the presidency: an Ivy League workaholic who tries to prepare for and abuse everything.

      • Peterr says:

        Their reasoning is poorly expressed in large part due to the fact that they are poorly reasoning that they have an argument to make.

        • harold hecuba says:

          This is what happens when the grownups aren’t allowed to control their screaming toddler.

          When Trump was president, there were a few adults who tried to reign him in, and control him to some extent. We can argue how effective those bumper rails were in his particular bowling lane (“OVER THE LINE!”), but they were up and they were there.

          Now that he’s out of office, the bumper rails are gone and there’s no real compelling reason to keep him from throwing his bowling ball all over the fucking place. There’s no “we’re doing this for our country” mentality from people trying to keep Trump in check. So he’s got lawyers on his team who don’t seem to be a step above the commercials I see telling me to call them if I’ve been injured on the job or that “they mean business”. (“Mark it zero, Dude.”)

          I wonder if he would’ve imploded much earlier in his presidency if people around him said, “Fuck it. Let him do what he wants.”

          (on the other hand, if that actually happened, we’d be most likely foraging for food in a radioactive wasteland. oh, well. a man can dream.)

  2. DrFunguy says:

    “For some reason — perhaps because they’re also government records or include classified information — even after identifying them as privileged, FBI still got to seize them.”

    Dare one speculate: one reason being evidence of obstruction?
    I also note since you pointed out repeatedly its lack in MSM reporting, for the past several days AP has included ‘obstruction’ in all of its articles about the MAL search warrant, affidavit, etc..
    Maybe you are getting through, a little!

    • emptywheel says:

      Yup. That’s what I think. But if that were the case, it would mean the obstruction investigation is far broader than it seems. Because that would be five boxes of documents of obstruction.

      Charlie Savage also did a story on obstruction. So yeah, finally getting through.

      • quickbread says:

        Five boxes of documents of obstruction. Banker boxes, right? When you put it that way, Marcy, that’s just a mind-boggling amount of both obstruction and documentation of it. I wonder if it’s not only material he moved from the WH in January 2021 but also paperwork he’d been stashing in FL for “safekeeping”/nefarious use throughout his term.

        • punaise says:

          Six drops of essence of terror…
          Five boxes of sinister docs…
          When the searching’s done, may I lick the subpoena?
          Of course, aha!, of course.

          • Peterr says:

            Three boxes of Russiagate, from the FBI,
            Seven from the Generals in their halls of stone,
            Nine from secret spies doomed to die,
            All for the Orange Lord on his orange throne
            At his Mar-a-Lago, where the Shadows lie.
            One box to rule them all, One box to find them,
            One box to bring them all, and in the darkness bind them,
            At his Mar-a-Lago, where the Shadows lie

              • Yorkville Kangaroo says:

                Need to be careful in case he gets back in:

                Fifteen Million Plastic Bags
                Adrian Mitchell

                I was walking in a government warehouse
                Where the daylight never goes.
                I saw fifteen million plastic bags
                Hanging in a thousand rows.

                Five million bags were six feet long
                Five million bags were five foot five
                Five million were stamped with Mickey Mouse
                And they came in a smaller size.

                Were they for guns or uniforms
                Or a kinky kind of party game?
                Then I saw each bag had a number
                And every bag bore a name.

                And five million bags were six feet long
                Five million were five foot five
                Five million were stamped with Mickey Mouse
                And they came in a smaller size.

                So I’ve taken my bag from the hanger
                And I’ve pulled it over my head
                And I’ll wait for the priest to zip it
                So the radiation won’t spread.

                Now five million bags are six feet long
                Five million bags were five foot five
                Five million were stamped with Mickey Mouse
                And they came in a smaller size.

          • John Lehman says:

            “ Round about the cauldron go;
            In the poison’d entrails throw.
            Toad, that under cold stone
            Days and nights hast thirty one
            Swelter’d venom sleeping got,
            Boil thou first i’ the charmed pot.

            Double, double toil and trouble;
            Fire burn and cauldron bubble.

        • Ravenclaw says:

          Not all of the boxes are necessarily full, or even close to full. In some cases, materials found in one place are likely to have been segregated into a box even if there were only a few folders full of documents there. Still, the volume of confiscated material is large and seemingly diverse in its baleful implications for TFG.

      • Drew says:

        Certainly obstruction is a big part of this. But I wonder if the main thing Trump’s lawyers are hoping to get out of their incompetent rhetorical motion filed with a v. Trumpy judge (& which they might get) is a relatively detailed listing of the privilege reviewed documents seized. Because correspondence with ANY lawyer, including Rudy, John Eastman, maybe even various levels of government lawyers would need to be reviewed for privilege, even if the review quickly showed they weren’t privileged. So a “detailed inventory” would give far more information of Trump’s exposure than they know about now (& Trump likely doesn’t even remember all the stuff he stuck in these boxes & how he’s implicated – I mean he’s a two crimes before breakfast kind of guy, how can you keep track?)

  3. Yogarhythms says:

    Justice delayed is justice denied. Or as tfg’s legal counsel will //FO filling delayed is filling denied.

  4. earlofhuntingdon says:

    The supplemental filing has the aroma of a dog’s breakfast, written by someone in well over their head, with few good facts or law to work with.

    Faux Noise might have been screaming, for example, about “privileged” documents, but the supplemental filing just assumes their existence, without providing a foundation or specifying what type of privilege is at issue. It doesn’t assert facts about why what the FBI was doing or had finished doing was or would be insufficient or improper. That seems unusual when you’re asking a district court to exercise its equitable jurisdiction.

    A Special Master seems to be the wrong person to weigh in on what documents would be covered by EP. As you have pointed before, that’s Joe Biden’s privilege to assert and he has routinely chosen not to assert it regarding records related to this investigation.

    There may be missing pleadings, but neither the original nor supplemental filing seem to comply with the requirements of a civil complaint, normally required to commence a civil action. This district judge seems to have given them a pass on that, despite Trump being represented by local counsel and at least two foreign counsel (who may have finally properly filed their requests for admission in Florida PHV).

    • arteberry says:

      From last Monday, I’ve been astonished by (among many things) the absence in Trump’s filing of a civil complaint. As errors go, it doesn’t get much more basic than trying to start a civil action without a complaint. As I understand it, Trump’s filing was not done electronically but over the counter (another error, in all likelihood). In person, at the courthouse, Trump’s team somehow got the deputy clerk to accept the filing without including anything that is called or resembles a complaint. I wonder if the clerk was overawed by the name “Trump.” Returning to the basic point here, Trump’s new action, for lack of a better word, is necessarily a civil case. The court clerk denominated Trump’s filing as a civil matter. The sine qua non and required starting point of any civil case is a complaint. See Rule 3, F.R.Civ.Pro. So, though Judge Cannon did not clearly say so, she seems to be treating Trump’s “motion” as the complaint. But that begs the question: where, then, is Trump’s separate motion for interim or equitable relief, such as for a temporary restraining order or a special master? That separate motion may have been what the judge was asking for, in so many words. But why the hell did she not just say any motion for any kind of relief has to comply with all applicable federal and local rules? Notably, the rules require the application for such relief to be made separately from (though in reference to) the “complaint” and to be supported by adequate declarations and points and authorities. I disagree with Marcy, however, when she says that notice must be given to the defendant—here the government—at the time of any application for relief. The rules for temporary restraining orders (as distinct from preliminary injunctions) expressly contemplate circumstances in which very short term relief may be ordered before the defendant has any notice of the summons, complaint, or motion. But in this case, Trump has in myriad ways blown the chance for a TRO or any kind of ex parte relief. And, for the reasons stated in the post, even a properly noticed motion for a special master will likely prove to be moot.

      • njbill says:

        The judge should not have stepped in to help out Trump’s lawyers. It is virtually unheard of for a federal judge to help out a litigant represented by counsel at this very early point in a proceeding. Can you imagine Roarin’ Oren doing that?

        Rather, she should have waited for an appropriate TRO motion to be filed or for the complaint to be properly served and the defendant to file a preliminary motion or an answer. This is a civil case which should be treated like any other civil case.

      • Rena says:

        “. But why the hell did she not just say any motion for any kind of relief has to comply with all applicable federal and local rules? ” Perhaps the judge, trumpy though she might be, didn’t think that TFG’s current lawyers would be able to figure out the applicable rules.

  5. Drew says:

    Thanks for the detailed work. It just struck me that it would make sense for the filter team to initially make as broad a definition as possible of attorney-client privileged material and after all the possible material in that category is found then return to decide the uncertain cases. So correspondence with Rudy, John Eastman, even Sydney Powell might be separated out at first, even though some may ultimately be decided not to be lawyer client communications at all, or not covered because non-parties were in the conversation or subject to crime-fraud exception.

  6. WilliamOckham says:

    [Taking a break from my obsessing over a certain PDF]
    About those potentially privileged documents (ppd):

    1. We’re only talking about attorney-client privilege. The acting archivist already axed any alleged executive privilege.
    2. The feds expected to find ppd relevant to the investigation in the “45 Office” and Trump’s living quarters, not in the storage room. We know that because that’s where they sent the filter team.
    3. Instead, what they found was one set of ppd where they expected and four boxes with ppd in the storage area.

    My first reaction was “the boxes in the storage room were shipped from the White House before Jan 20, 021, so any ppd must relate to some other (i.e. Jan 6) investigations”. But wait, maybe not. Even the first 15 boxes returned from Mar-a-Lago contained “post-presidential records” which indicates that stuff was moving into (and presumably out of) those boxes while they were at Mar-a-Lago (and that had to set a lot of people’s hair on fire). So maybe those boxes on the SSA receipt contained post-presidential ppd relating to obstruction of the current investigation. Or, you know, all of the above is an option.

    Whatever all that means, I’m convinced the FBI has some list of specific documents that are unaccounted for. Did they find what they were looking for or if like U2, they still haven’t found what they’re looking for. That’s a cue for our resident lyric writers…

    • P J Evans says:

      I think that NARA knows what records they should have, but don’t, and that would be the list they’d give DOJ.

      • WilliamOckham says:

        That’s part of it. However, I think the universe of things that NARA didn’t know existed as presidential records is much larger. Most of the classified stuff wasn’t a presidential record until Trump saw it and NARA wouldn’t know it had ever existed if Trump kept his copy.

        • Peterr says:

          I’m not sure that is right. In a normal WH, there is a log of damn near every document that crosses the President’s desk. The WH Staff Secretary manages the flow of documents, and one of the assistants who reports to the WHSS is the head of the Office of Records Management.

          Wiki has a nice description of the White House Office of the Staff Secretary, and I can’t help but notice one significant item in their list of Staff Secretaries: between Dec 19, 2020 when Derek Lyons resigned and Jan 20, 2021 when Jessica Hertz took the job, there was no Staff Secretary — not even an acting one.

          The Guardian noted this absence toward the end of a story about Trump’s Jan 6 phone call to Senator Mike Lee, which was not entered in the presidential phone log as is required (emphasis added):

          The presidential daily diary is a retrospective record of the president’s day produced by aides in the Oval Office, who have some sway to determine whether a particular event was significant enough to warrant its inclusion, the officials said.

          But the presidential call log, typically generated from data recorded when calls are placed by the White House operators, is supposed to be a comprehensive record of all incoming and outgoing calls involving the president through White House channels, the officials said.


          The absence of Trump’s call to Lee suggests a serious breach in protocol and possible manipulation, the officials said.

          It was not immediately clear how a Trump White House official might obfuscate or tamper with the presidential call log, or who might have the authority to make such manipulations.

          Trump’s calls on January 6 might not have been recorded in the presidential call log if he used his personal phone or the cellphones of aides, the officials said, and Trump sometimes called people with the cellphone of his then White House deputy chief of staff, Dan Scavino.

          But multiple current and former White House officials have noted that a copy of the call log – alongside the president’s daily schedule and the presidential line-by-line document – might be provided to Oval Office operations to help compile the presidential daily diary.

          That could lead to a situation where records are vulnerable to tampering, since the presidential daily diary and call log needs approval by a senior White House official before they can be sent to the White House office of records management, the officials said.

          And by the time of January 6, two former Trump White House officials said, there was scope for political interference in records preservation, with no White House staff secretary formally appointed after Derek Lyons’ departure on 18 December.


          The presidential daily diary and presidential call log were turned over to the select committee by the National Archives after the supreme court refused a last-ditch request from Trump to block the release of White House documents to the panel.

          After reading the Guardian’s piece, Bill Kristol speculated “Lyons’ departure was very unusual, a month before Jan. 20. Had he refused to tamper with records?”

          • SmokeyedJo says:

            Any relationship between WH staff secretary leaving on Dec 18 and the meeting of crazies resulting in trumps come to DC will be wild tweet early on 12/19?

            • Peterr says:

              Possibly, but I doubt it. Trump was wild with his tweets while the WH SS was there, and that was simply the next tweet he sent.

              But it is the kind of thing that makes you go “Hmmmmm . . .”

          • Yorkville Kangaroo says:

            I’m confused about the timeline.

            Didn’t Lyons leave to become Counselor to the President in MAY 2020? Who replaced him then? Is the gap even bigger?

            I also note that he was appointed Counselor alongside such other luminaries as Kellyanne Conway and Hope Hicks.

    • Raven Eye says:

      “Whatever all that means, I’m convinced the FBI has some list of specific documents that are unaccounted for. Did they find what they were looking for or if like U2, they still haven’t found what they’re looking for.”

      A least as regards the TS and TS/SCI documents that went to the White House; every one of those should have been logged out by classified material custodian and logged back in when returned (or a record of destruction sent to the originator). In some cases the exact number of printed documents is known and marked on the document and their movements are logged individually.

  7. Scott Rose says:

    To state the obvious, Trump is handling this as though it were a political, not a legal issue, and as if he were never going to be indicted. Note that Representatives Mike Turner and Elise Stefanik are behaving as though that were the case, too.

    • emptywheel says:

      With the added benefit of fundraising and an attempt to discredit whatever is coming, no matter what.

      • Peterr says:

        I have to disagree here, Marcy.

        I’m sure the fundraising bit was not an added benefit, but the primary concern. That it might have political or legal merits is the added benefit from Trump’s POV.

  8. L. Eslinger says:

    The DOJ has a demonstrated ability to keep information in-house, so the leak relating to finding more classified documents during the August 8th search may have been a strategy to deflate some of the overheated rhetoric from Trump and his apologists.

  9. Dave Lewis says:

    I suspect donnie wants his notes n other identifying mag/news articles back cuz they, interspersed w the classified docs demonstrate his state of mind with the relevant docs…he won’t get them cuz the case he cited to do so failed too

  10. Einlalaland says:

    Apologies if this has been touched on previously. I’m trying to understand how FPOTUS got these documents? I understand that he would get a daily briefing, but wouldn’t he have to review those documents at a SCIF?. Wouldn’t whoever brought him the documents make sure they had all the documents when they left? Did FPOTUS just bully them into leaving the dox behind? Or are the documents given to POTUS and left there? Wouldn’t the person who brought the documents tell someone from whatever agency gave them the documents that the president kept some of them? Even if they didn’t say anything, wouldn’t it be obvious when a file is returned with missing information?

    I have zero insight as to how this would work, appreciate any insight if anyone has any to offer.


    • matt fischer says:

      While still president FPOTUS effectively had unlimited authority to access any classified documents under Article II of the Constitution, and by all accounts the way he handled them was truly a shit show.

    • chum'sfriend says:

      For what it’s worth… On another website, this question was asked; and a commenter replied that John Bolton in his book said that at the end of briefings, Trump regularly retained possession of sensitive documents, claiming that he intended to study them later. Then Trump never returned the documents. Who was going to stop him? He was the Commander In Chief.

      • Phil in KC says:

        Perhaps the Secret Service could have stopped him, although they are not charged specifically for the task. But Trump’s man Ornato was in charge. If you will recall, though, the SS refused Trump’s express command to take to the Capitol on January 6th.

        • timbo says:

          The USSS security details for POTUS are not in the habit of second guessing CiC when it comes to policy issues. The extraordinary nature of the Jan 6 coup forced many to define where their actual loyalties lay with regard to the Constitution and oaths taken. Its good that some took the Constitution as the overarching structure to cling to during this crisis in DC. However, we should not assume that everyone who seems to have been on the side of the Constitution really was… leading up to the point where the seditious plot failed.

          It seems that, as in many politically chaotic situations, there were some who sat watching to see what might happen, while there were others who definitely were concerned with making sure that the Congress and our current form of government survived through the end of Twitler’s reign in DC, and still others sought to keep Twitler in power by any means that they could. Those who sat and watched things unfold without taking any actions to help bolster the Congress and the Constitution are unlikely to be in more than CYA mode. Similarly, anyone who was an active participant in the coup attempt but hasn’t come to light just yet publicly is likely to be trying to put their actions in as best a legal light as possible…possibly to the point of lying to investigators about what they personally did and did not do during the conspiracy, etc.

        • chum'sfriend says:

          Yes, it was the SS’s job to keep Trump alive. Protecting documents, not so much. But allowing him to mingle with a violent mob armed to the teeth, could be life threatening.

  11. Badger Robert says:

    The paragraph 84 cited by Ms. Wheeler contained 3 options anticipated by the government. But in practice I think a fourth option would be for the government and the court to make the claimant identify what they think is privileged material. I don’t know why the government would be required to help the claimant develop a privilege log if the claimant doesn’t have an inventory and doesn’t know what to claim.
    The government could not anticipate the claimant’s incompetence, but now its obviously part of the facts.
    I think we now agree that there were 01/06 documents at Mar-a-Largo and the government needed those documents before they were destroyed.

    • rip says:

      I like that approach – make the claimant give an inventory of documents he removed and reasons for why they should be returned.

      Perhaps he could just say “I left ketchup on all of my important documents.”

  12. Charles Wolf says:

    Before any of this becomes a matter for the District Court to consider, don’t orangeface’s lawyers have to establish they are in the right court? … as requested by the judge.
    On this question, their Friday filing seems to lack substance.

  13. Gatorbaiter says:

    Imagine being the wildly pro-trump judge, eager to do your part for “the cause” and his incompetent representation dumps this mess on your doorstep.

    • P J Evans says:

      When it belongs before the district magistrate who signed the warrant, because it’s part of that matter.

      • Gatorbaiter says:

        Yes sir it does, but apparently this judge is determined to involve herself in the fray as she now says she will hold a hearing and is leaning towards a special master. As the intrepid Mrs Wheeler points out this effort is a day late and a dollar short.

      • BrokenPromises says:

        From my reading of this article and these comments I come to the question (IANAL); Can DOJ now file for injunctive relief due to the failing of legal procedure and lack of jurisdiction?

        • bmaz says:

          What is the “lack of jurisdiction” you claim? Aileen Cannon is a confirmed Article III District Court Judge in the Southern District of Florida (SDFL). Reinhart is a Magistrate Judge in SDFL. Are people here suggesting that a full District Judge in SDFL does not have “jurisdiction” over an issue in front of a pissant MJ in SDFL? Have the typically shitty Trump lawyers approached the court well? No, of course not. But “jurisdiction” is not the real issue.

          • Frank Probst says:

            One of the MSNBC lawyers said this morning that this kind of filing (and I have no idea what makes it “this kind of filing”) has to be filed in DC. I obviously have no idea whether or not she’s right, but I think that’s the “news” source that this is coming from.

            • bmaz says:

              I was in Mexico yesterday, and barely on the US side this morning, and now finally back. I missed a lot of that kind of coverage, so not sure who it was, or what he/she said. I agree any such crimes have better locus in DC District. But you execute searches in the jurisdiction they are to be executed in. That is okay and not newfangled in the least.

  14. Bay State Librul says:

    High Scams and Misdemeanors


    This just about sums up the past six years without an indictment yet

    “Well you can try to rationalize it all you want, you can invent all kinds of noble-sounding pretexts, but in end a scam is a scam.” Tango in Haruki Murakami’s novel 1Q84

  15. Cosmo Le Cat says:

    As I recall the court rules (it’s been years, may only be a state rule), before a judge makes his/her first ruling or adjudication, a motion for recusal can be made. Trump appointed the judge, then appears to be aiding the plaintiff (Trump) by accepting a filing that does not meet requirements. As I also recall, certain filings, such as a motion with affidavits and a proposed order must be included to hear a motion on an expedited basis. As far as I know, there’s nothing to establish that this judge has jurisdiction, and a court that has jurisdiction already has the case. Further, I thought a motion for a special master of presidential records may have to be filed in the DC circuit. Hopefully, a real attorney will chime in.

  16. earlofhuntingdon says:

    Hard to see how the feds could comply with the expedited order to provide a particularized list of documents by Wednesday, if they haven’t already finished their privilege review and catalogued all the documents before then. They probably have.

    If I were the feds, I wouldn’t want to file that list until I clarified whether “under seal” also included “ex parte.” This court is unlikely to help there, though, because a principal reason it seems to be bending over backwards to help Trump is to get him that particularized list – of documents neither he nor his attorneys have clearance to have, see, or read.

    • Badger Robert says:

      They may produce a better list, but they aren’t going to disclose classified information even in this setting. But didn’t the court just give them 4 more days to finish and disperse and make the issue moot? She’s constructing a way to make the government the bad guy and for her to dismiss the whole thing,

      • Rugger9 says:

        Either at the trial level or the appellate levels it’s going to be argued. However, as EW has laid out the arguments don’t work, it took three weeks to raise the issue after the on-site representatives didn’t object in any detectable way, and the government was not served with the motion. Any one of these are solid grounds for denial of the motion.

        However, this claim will also serve notice to the voters about just how politicized the GQP / FedSoc judiciary is which the Ds need to hammer home over and over..

        • Badger Robert says:

          My post was inexact. If the court decides the privilege review is complete, and the prosecutors have the documents, her part in this fiasco becomes moot, and she can bail out. She didn’t issue an ex parte injunction, and she is making the Trump side think they are going to get relief.
          So she’s holding their pleading and giving Justice more time.
          By Thursday she may rule that there is nothing she can do.

          • Rugger9 says:

            Fair enough, but why is Judge Cannon getting involved at all? It was Judge Reinhart’s warrant and he had already been issuing rulings regarding the affidavit, so why switch to Cannon and what documented process was used to do that? I haven’t seen anything yet.

            At the very least Cannon needs to justify the intervention into a case already active in another courtroom.

            As for Cannon, perhaps the RWNM playbook could be useful, by POLITELY flooding her office with reminders abut what the law actually says and diplomatically explaining that she’s being a political hack here. Then, share the conversations with the news outlets.

            • Badger Robert says:

              Truthful questions. Perhaps this is a good stage for DofJ to see these tactics, and observe the cost of caution of even the few days described by Ms. Wheeler.

    • John Paul Jones says:

      “More particularized” might be satisfied by the kind of list already released, that is, a total number (137), followed by 22 TS documents, 73 NOFORM documents, etc., etc.

  17. bbleh says:

    And what happens when said Special Master — appointed by what appears to be an overtly pro-Trump judge — proclaims that s/he has found “arguably privileged material” in the files ALREADY REVIEWED by the FBI investigative team and thus now “inextricably” part of the investigation, and hence that the ENTIRE investigation is irreversibly tainted by Fruit of the Poisoned Tree and should be terminated because any resulting charges would have to be presumptively dismissed.

    This is setting up not just for Monday-morning quarterbacking but fkin next-Friday-afternoon quarterbacking.

    • Vicks says:

      What are the odds classified documents were deliberately placed within boxes already packed with “memorabilia” and the haphazard appearances of these boxes was part of a cover that allowed unknowing coffee boys/girls to move stolen goods in broad daylight?
      What are the odds that the first whistle blower was among those who learned what was in the boxes they helped move and the seriousness of their crime?
      What if the comings and goings said to have been caught on video showed images of the people who orchestrated the theft, for now, just for grins let’s say Kash Patel or John Solomon.
      What if they were going in and out to retrieve and then return specific treasures while leaving everything else intact to minimize what they were in possession of if caught, or once they knew the DOJ was aware of the documents what, at any given moment could be declared missing if Mar-a-lago was “raided”?
      To pile onto bblh’s point, what if once they knew they were caught and things got serious they would have, as Trump described/projected “planted” documents in the boxes that potentially could trigger political outrage (who the hell puts all of their passports in a random moving box?) or justify a demand for a special master or anything else that could slow roll or obstruct the investigation?

      • Rwood says:

        “Your Honor, I fully expected my coup to work, and when it didn’t we had to pack up in hurry. The two youts, who I’ve never heard of in my life, who were supposed to do it screwed it all up and now we’ve got a bigly mess. It’s their fault, not mine. Sad. Oh, and witch hunt, political agenda, something-something.”

  18. MattyG says:

    A few questions…
    Would a special master review Top Secret and other classified marked documents or just stuff already triaged as potentially client attorney priviledged? Can the DOJ object that there are documents too sensitive for a Special Master to review? Is there a conflict of interest with the DT appointed judge?

    • Peterr says:

      In any case involving classified material, anyone selected to be a Special Master would be someone who would have an appropriate security clearance. If you don’t have the clearance, you won’t be selected.

      • MattyG says:

        I guess my question was more general. In assigning a Special Master has the judge basically required that all recovered documents be reviewed? Or just a certain category? Or do we not know at this point?

        For instance can the case involving the Espionage Act proceed or does it need to wait on the SM?

        • earlofhuntingdon says:

          Judge Cannon has not yet assigned a SM, she’s only indicated she is inclined to do so. If she assigns one, she and the parties would have to agree on her authority and the scope of her work. It might be a week or longer before that happens.

      • Ravenclaw says:

        An interesting implication of which is that if the judge selects an egregiously inappropriate, partisan Special Master, that person’s security clearance could be revoked. Though such a move would generate a derecho on right-wing media.

  19. Yogarhythms says:

    I want to thank you for your hope honesty and courage reporting truth to power with evidence lots and lots of evidence. Possible fever dream; New Trump judge wants to compel defendant to provide list of items seized including all classified and NDI. TFG fired WH staff Dec 18 2020 allowing documents to fill WH banker boxes without documentation. Said boxes moved to MAL. Fast forward 8/8/2022 contents of 27 banker boxes move to FBI. TFG says yo judge giv me a list. Judge-u betcha. 8/31/2022 Defendant must present list to aggrieved plaintiff because said plaintiff fired WH staff secretary. Fever dream from Covid-19?

  20. Rugger9 says:

    As noted above Cannon’s ruling was premature as well as bonkers on many legal levels. I do have a relevant question though: exactly how did Reinhard’s case surrounding the search become Cannon’s? I’ve seen no motion to change venues or judges, or any other indication that the Presiding Judge for the district or its appellate circuit directed the change to have Cannon run things. There is also the appearance of a conflict of interest given who appointed Cannon. Perhaps the DoJ will address that in the response to this dreck whether to Cannon or to the appellate level.

    The law only works when the rules are followed, but Individual-1’s minions including the ones in robes are bound and determined to muddy the clear rules to get their lord and master off.

    • Yorkville Kangaroo says:

      Clearly this should be on Reinhart’s docket. I can understand if a Clerk screwed up and accepted the ‘whatever the hell THIS is’ but, surely, the judge was duty bound to bounce it back to Reinhart immediately upon reading it.

      FL Rules of Civil Procedures state that:

      (a) Transfers of Courts. If it should appear at any time that an
      action is pending in the wrong court of any county, it may be transferred to
      the proper court within said county by the same method as provided in rule

      (j) Demand Exceeding Jurisdiction; Transfer of Action. If the
      demand of any counterclaim or crossclaim exceeds the jurisdiction of the
      court in which the action is pending, the action must be transferred immediately to the court of the same county having jurisdiction of the
      demand in the counterclaim or crossclaim with only such alterations in the
      pleadings as are essential.

      To the lawyers, wouldn’t you argue this with Justice Cannon?

  21. eskimo says:

    This pattern looks planned but not by TFG. His role is Pavlovian, not strategic, or even tactical. All the fuck ups are obvious enough by now to appear intentional. Disordering strategic records and mingling them with scrapbook banalities, like every other rope-a-dope prank these assholes try … measures of reflexive control. Ghetto, mobster shit, only quantum, at this point.

  22. chum'sfriend says:

    During this time period in question, would the FBI have recorded the fingerprints found on critical documents before they could be mishandled?

  23. I Never Lie and am Always Right says:

    Who will be appointed the Special Master of Disaster? Trump seems lost in space, and his legal team is certainly no land of the giants. I’m sure he wishes he had created a towering inferno of documents months ago.

  24. Lem says:

    I can’t believe he got his passport back. Any case I’ve worked on re FISA warrants and potential unlawful dissemination, the passports STAY with the FBI…

      • Ravenclaw says:

        Right. Nor has he been indicted. No justification for taking away a citizen’s passport just because they might be accused of a crime on some future date.

    • LizzyMom says:

      Two of the passports were expired and the third one (IIRC)was a “diplomatic” passport, presumably from his time as POTUS. Not sure if he could still travel under that one either.

      • Yorkville Kangaroo says:

        I presume (crazy I know!) that his POTUS passport was collected upon departure. What he SHOULD have is one issued to all FPOTUS.

    • notjonathon says:

      Or if he were to flee to someplace with no extradition treaty (think Dubai, where Cheney moved Halliburton headquarters), the government couldn’t try him, thus ridding themselves of a major headache.

  25. hollywood says:

    Don’t magistrate judges like Reinhart work for/with particular district court judges? Who does Reinhart work for? I get the feeling he does not work for Cannon. This smacks of delayed forum shopping by the Trump team and in the end likely to be a waste of everyone’s time.

    • bmaz says:

      Sometimes. Not specifically work fo per se so much as work with, and often more than one Article III District judge. MJs do real and important work, but are a step down from District judges.

      • Savage Librarian says:

        For reasons I have never understood, by the time I had my days in court, the case had switched over from a local MJ to a senior District Judge from a different state (OK.) It seemed unusual to me, but I have no idea if it was.

      • bmaz says:

        Don’t know about SDFL, but in AZ and CA, I have never seen true one on one pairings. There are far more District judges than MJs. For starters, there are both current and senior status District judges. A MJ may work proximately with several.

        • Njbill says:

          I’m not familiar with Florida either, just reading from the website. Yes, my experience is the same: one MJ is usually assigned to multiple District Court judges, which seems to be the case in Florida as well. According to the website, Reinhart is “paired” with a number of District Court judges. Perhaps they ought to use a different word than “paired.”

          • Rugger9 says:

            So, who selected Cannon from the ‘pairings’ and why? Reinhart hadn’t finished his work on the search as far as the public records show (perhaps something behind the scenes?) but at the very least there has to be a rules of court procedure for moving Reinhart’s case to Cannon. FWIW, DoJ should then push it beyond Cannon to the circuit.

            In the interim, I would expect that the taint team has identified all boxes and items so when the Special Master (who will be a MAGA hack, because Individual-1 will not agree to anyone else) decides what’s ‘privileged’ those will be excised from the evidence file and there will be enough left to prosecute Individual-1. As Doctor Marcy and others here have laid out, there is probably enough documentation that can never be subject to privilege to prove the charges.

            • timbo says:

              If your assumption holds true then it also makes it harder for a Special Master or hostile judge not get in trouble for obstruction if their future rulings are bonkers when compared to the documents at hand. Basically, any judge worth their salt involved here is going to want to know specifically what is in these so-called “privileged” documents before they rule that anything here is privileged. If Cannon gets a Special Master to do this so as to keep things at arms length, you can bet the Special Master is going to be careful too… FBI and DOJ has already filtered these documents so it’s not like any wonky rulings about admissibility won’t be looked at with a stern eye from DOJ. Heck, they’ve already gotten a Warrant issued on MAL, and conducted that search…so you know there’s some serious concern at DOJ and counterintelligence folks who are to be taken seriously in this matter.

              • bbleh says:

                Were all this being done in the interests of justice, perhaps taking a little extra care to be solicitous of Trump’s interests (even to the point of coaching his lawyers) in the larger interest of maximizing the transparency and hence the legitimacy of the proceedings, I wouldn’t be as nervous.

                What makes me nervous is the bad faith manifested by SO many Trump-affiliated and Trump-supporting actors throughout the government, unfortunately including the federal judiciary (thank you Federalist Society). It’s obvious that the Trump camp’s strategy is to make this as much as possible a POLITICAL issue, and to delay and obfuscate legal proceedings to that end (as well as perhaps to avoid legal consequences entirely), and I can see a Trump-supporting Special Master, the selection of whom will depend on 3 parties of whom 1 is Trump and another is an apparently Trump-friendly judge, cooperating at least tacitly in that strategy. Heck, even actions that ultimately are found to be indefensible can delay proceedings substantially, set up ancillary courtroom food-fights and lengthy appeals, and generate so much media smoke that the political legitimacy of the entire investigation is smothered.

                I hope to dog DOJ fights this tooth and nail, if indeed a SM is appointed and his/her integrity AND remit are not entirely above reproach, up to and including a request for recusal of the judge, vacating the order, and reassignment of the matter.

                • wistlo says:

                  This, exactly. I’m devouring this discussion in the wee hours despite having work in the morning (and not law, but database engineering).

                  I step back from this fascinating discussion on procedure and find that I, too, have diminished faith in our current Federalist-seeded judiciary.

                  In 2000, the sloppy foolishness that was Florida ballot counting was accepted quickly and unexpectedly by SCOTUS as Bush v. Gore. We all remember the party-line vote on that issue. Imagine how *this* SCOTUS would rule on whatever Special Master Rudy (or Rudy-equivalent) types up on 8 1/2 x 14.

                  It would not even need to get that far, though. The media already responds to any accusation against Individual-1 like a cat to laser spot. Find a Rudy Guiliani/Saul Goodman to push the narrative, sign on a couple of members of Congress for credibility—and there are so many aching to stay in good graces with FPOTUS, at least for now—and whatever the Special Master says will get airtime and credibility with the public, regardless of legal standing. That tarball will start rolling north, picking up support from Senators and everyone on camera at Fox, until it oozes up the steps of SCOTUS. What happens then? See above: Consider Bush v. Gore is a model.

                  This is my overarching worry, but all it would take is a single domino in that chain to balk, remain standing, and allow the DOJ proceed with FPOTUS as they did with Reality Winner, the Toebbes, the Rosenbergs, et al.

                  [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You are receiving this message because your address has been used previously by another username. Thanks. /~Rayne]

                • timbo says:

                  It basically gets down to how corrupt the federal judiciary has become. Hopefully they’re still interested in the self-preservation that comes from not coddling tyrants in the early stages of authoritarian dictatorship.

  26. Nick Caraway says:

    A Times article today discussed the threat to people spying for the US in hostile countries, that Trump posed by stealing top secret/ HCS documents. One money quote:

    “It is a principle of counterintelligence that when you believe a code or classified material has been possibly compromised you have to assume the worst,” Mr. Gerstell said. “It is a powerful reason to know what is in the documents and who had access.”

    One can only imagine the fearful reaction of our assets in hostile countries after the MAL news broke, and their desire to get exfiltrated ASAP. They have to assume the worst after a leak like this, that they are in danger of exposure, arrest, and whatever police states do to suspected spies thereafter.

    Some things our hypothetical agent might worry about that the Times did not discuss. It’s not clear (to me, anyway) that the FBI found every piece of NDI that might have sat in MAL. The FBI conducted a 9 hour search of a 38 acre property, cursory at best. Going along with this, while the search warrant necessarily specified the areas to be searched/ articles to be seized based on probable cause, that standard may not cut it in a counterintelligence context. Might other contraband have been/ could still be at MAL, that the warrant did NOT specify? For example, could some foreign agent have planted surveillance devices there, for example? I have no reason to suppose this (or not); most likely we will never know. But until we know otherwise, at least in a counterintelligence context, we have to assume the worst.

    The FBI did its best to specify in the warrant all contraband they knew of, but one can’t assume that the FBI’s informant(s) at MAL knew everything there was to know about MAL. Which goes to show why, from what I have read, a serious counterintelligence search of a suspect’s home is a comprehensive fishing expedition. Every floorboard, shower drain, and appliance is taken apart, as are additional items we civilians would not dream of examining. Only then do the authorities have any confidence that they have done their job.

    Then there is the matter of all the other Trump properties that were not searched. The matter of Trump’s cellphones not seized, the possibility that Trump might have said the wrong thing on the wrong phone, which, say, Russia’s SVR or China’s MSS could have intercepted. The possibility that he might commit some other indiscretion in the future (ya think?!). Again, these omissions were all necessary under the rule of law but likely inadequate for counterintelligence purposes.

    So on the one hand the Bureau searched MAL by the book as it absolutely had to do. On the other, one can only assume that our spies are scared to death while our adversaries’ intelligence services are laughing their heads off. As perhaps they have since Trump’s first campaign became a thing in 2016. And as EW has ably discussed on this site.

    Yet another demonstration that the rule of law is terrific until the President decides not to bother taking care that the laws be faithfully executed.

    • jeco says:

      I’m amazed electronic devices at MAL not seized, at least copiers which maintain history of copies.

      I think I heard that there were still sec docs at MAL even after the raid, a talking head said 11 important docs were still missing. If trump continues to withhold docs -or has lost (or sold) docs then everything escalates – and additional searches become justified. Everyone in and out of the crypt (per videos) can expect to be served.

    • P J Evans says:

      They didn’t need to search most of that 38 acres, because it’s grass/pool/parking. They intentionally didn’t search rooms occupied by guests. They did have a good idea of where the former guy would have had docs: the rooms he spends time in, and that storage area.

      • Nick Caraway says:

        As you say, the Bureau may –may– not have needed to search other parts of the estate for docs. But as EW and others have pointed out, MAL is a soft target, a Disneyland for spies of hostile intelligence services, and no one knows with certainty what else might be at MAL that was not specified in the warrant. At least if you are a properly paranoid counterintelligence officer.

        • timbo says:

          I am very curious about what the backup plan was for the warrant crew if it became immediately obvious that the whole place, the entire grounds of MAL was a den of spies and thieves and that everything and everyone there would have to be immediately contained. I should imagine that there was some serious counterintelligence muscle present as backup if that needed to be the case. I should also imagine that the counterintelligence folks would have been watching MAL and other locations before the raid took place. And by “watching”, one might imagine the use of drones and possible other methods even more clandestine…

          • Yorkville Kangaroo says:

            UInless counter-intelligence at the CIA and DHS are both naive AND stupid the you would have thought that they had some sort of contingency planning in place. Being a private residence/club they may have also had many eavesdropping devices installed as you posit though they MAY have avoided the 45 Office or somewhere that official business was usually undertaken. But a basement seems to me fair game.

    • rip says:

      And why do we think that documents affecting national security weren’t carried abroad on AF-1 and shared with hostiles?

      Given how Individual-1 seemed to run his handling of any item of interest, it was stowed for later use and possibly transferred outside of any chain-of-custody.

    • obsessed says:

      Wouldn’t CIA, or the appropriate agency or agencies, have been proactively all over this from the first inkling that Trump might have taken sensitive materials to MaL, monitoring to see if anything was getting out or even trying to take advantage of the situation? I keep thinking of Better Call Saul, where Mike & Gus plant false info in Nacho’s safe for the Cartel guys to find. How hard (and/or achievable) would it have been for our intelligence agencies to track foreign intelligence assets attempting to take advantage of the lax security, essentially using Trump as our own useful idiot? Or would that be so forbidden as to preclude being considered? From both the pessimistic and optimistic standpoints, what do we think the chances are –during the long negotiations with Trump–that either crucial data got compromised, or that our own counter-intelligence may have taken advantage of the situation?

  27. Traveller says:

    Astonished! And I feel sorry for Marci and all the good legal minds that have lent their thought and bent their backs to this seemingly simple case…they are all correct, there is no possible way we are on the road that we are on. And yet, here we are. A motion without an underlying Complaint, a Motion without a supporting affidavit, improper service…and sudden Orders, or more properly said, Tentative Rulings…but none of this is possible…and yet here we are. Any of these errors would draw the sharpest rebuke against me were I to commit them…but this is me and that is them.

    AG Garland says the law applies equally to everyone…pifft. We see it not true here, we know it is not true. It is a lovely fiction much as the Roman saying:

    “Fīat jūstitia ruat cælum is a Latin legal phrase, meaning “Let justice be done though the heavens fall.” The maxim signifies the belief that justice must be realized regardless of consequences.”

    But this is really the way The Law often behaves…normal people see the law like a laser cutting perfect lines of truth…and usually it does some vague approximation, but also at times…law is cruel, it is capacious, it is wrong. Again, not often, but often enough to be noticeable: , Juries come in with seemingly inexplicable verdicts, Judges make impossibly incorrect rulings…Judge Connor is a life time appointee…it is her courtroom, right or wrong. We do what the Judge Orders, because…as officers of the Court ourselves, this is what we must do.

    People will say, well there is always the the Right to Appeal…yes and no…there is the time factor, Justice delayed (especially here in the matter before us), is Justice denied, and there is the cost factor…who can afford an appeal, the delay….Oh, this is a hard business!

    This ship may right itself…or we may stumble along…people telling us it is all okay, when of course it is not. Depressingly, if any of us had done 1/100th of what Mr Trump has done…even on just this recent stuff, we would be on a no bail hold right now. So justice is not equal, it is not equally applied.

    Yet…“Hope” is the thing with feathers –
    That perches in the soul –
    And sings the tune without the words –
    And never stops – at all –

    Best Wishes, Traveller

      • timbo says:

        Indeed. If I may… ;D

        via #badbmaztranslatorengine “Your horse apples are preciously close to not floating.”

    • Paulka says:

      Well said, and I would add one thing, the one-man crime wave is or will be continuing to commit crimes. And given the highly sensitive documents at play there is real life danger to our national security and real-life people. For most people that danger would be enough to justify a no bail situation, but not him.

      • obsessed says:

        IANAL, but to me, the justice system’s handling of Donald Trump is like someone being filmed committing murder, the judge granting him bail, the person killing two people, the judge granting him bail, then 20 people, then 40. Does anyone think Trump will ever feel relieved that he has escaped accountability and stop committing ever-escalating crimes? I don’t see that happening with Trump or with the GOP in general.

      • Traveller says:

        Dear Timbo:

        I am not saying at all that law should not be equally applied…but it is, Aspirational as an ideal. The rich are treated better than the poor and the rich and connected are treated often the best of all. We are not children here, this is simply true. And yet, bravely, we, meaning most of us, do seek the sunlight of a better world….it is getting there that is the conundrum.

        Take AG Garland, if he does indict, but does not convict, he may be bringing about the end of our American Experiment. On the other hand, there is the maximum’s I cited above.

        Worse, maybe Mr Trump is in fact different…and not subject to the same rules and norms as the rest of us. heaven knows he certainly seems to have written his own (successful!) playbook. How does Mr Garland weigh this?

        Further, the law does, over time and even often over a very bumpy road…does work out.
        Further, maybe, maybe even very likely, Judge Cannon does have the best interests of the country at heart….kind of, rather than let these questions linger out there…:Let’s do this!! (in order to put it to rest).

        I don’t know, none of us can know…when I have a perplexing problem I generally call around and get lots of others opinions…Maybe Judge Cannon is doing this right now…we don’t know, we don’t know what the DOJ will file in this matter this week, or, how the Hearing is going to go….

        What I am trying to share in regards to the law, though someone else might chose to share something entirely different, is the confusion, the move and counter move, the glossing over of this in favor of that and how to bring attention back onto…that.

        I think a lot of lay people miss this aspect of Law.

        Then, sometimes, you just have to spit on the ground and softly say a curse under your breath.

        Best Wishes, Traveller

        • Rayne says:

          Take AG Garland, if he does indict, but does not convict,

          This is a fundamental misunderstanding of how the US justice system is supposed to work. Garland does not indict anyone alone, nor does the AG ever convict. I suggest you back up and read the US Constitution, Article III Sect. 2, and the 5th, 6th, and 7th Amendments. Look for the word “jury.”

          Salutations and closings are also unnecessary and chew up a lot of space in comment threads. Omit them here forward.

        • timbo says:

          I maintain that it would be better for DOJ to file and fail to convict than it would be for them to do zero. At least they appear to not be doing zero. And there seems to be plenty of things to indict on here, so maybe only one of many charges might stick…but someone has to try to stick some to this wannabe dictator before it’s too late.

  28. Tom-1812 says:

    I’ve been reading the Diary of Samuel Pepys. He would say Trump’s legal team are a bunch of Buffleheads who have done their work in a slubberingly fashion.

    • BirdGardener says:

      (Sam Pepys died years before Carl Linneas described the bufflehead duck; Wikipedia credits the common name to a perceived similarity to a buffalo’s head [which I for one don’t see]. Any chance the common name actually came from 18thC slang? If such an aside is inappropriate on this site, I apologize.)

      • Tom-1812 says:

        The edition of the Diary I’m reading is the 1893 publication edited by Henry B. Wheatley, which was the most compleat version in print up until the full text of Pepys’ Diary became available in 1976. Even so, Wheatley omits the passages where Pepys discusses his … or describes his wife’s problems with her … or relates how Mrs. Bagwell, the pretty wife of the ship’s carpenter at the Deptford dockyard, will give him liberty to … .

        In any case, Pepys’ entry for March 17, 1663 describes his first meeting with the Lord Mayor of London, whom Pepys found to be “… a talking, bragging Bufflehead”. A footnote explains that a bufflehead is “A fool, or heavy stupid fellow … ‘Buffle-headed’ was also used to signify stupid.” Nothing about ducks or bison.

  29. harpie says:

    Former CIA Attorney @secretsandlaws responds to one of Marcy’s questions, here:
    10:32 PM · Aug 27, 2022

    Just elaborating on this question from @emptywheel: there’s a zero percent chance that DOJ voluntary brings classified information before this judge, whether it be in the more detailed property receipt she ordered, or in any other filing. /1 [THREAD]

      • Troutwaxer says:

        Now I gotta cut loose, Trump-loose
        Piss on Merrick Garland’s shoes
        Please, Donny, let me go down on my knees
        Judge, get back, come on before Kash cracks
        Blues, should lose, everybody cut Trump-loose

  30. Paulka says:

    I realize that these are basic questions, but the SM is to do what? Review each individual document to determine whether EP or A-C privilege applies to that particular document? I have read that the motion is only arguing for a SM to review for EP, which I believe has been pointed out as a non-starter since Trump is no longer president. If that is the case, my read of Trump’s filings is that he is arguing he is either still president (forwarding The Big Lie) or his position retains some EP authority and wants to push that to the SC. The A-C privilege review argument seems to me to have some validity to it, since even if the document has been reviewed, if it truly is A-C privilege material it wouldn’t be able to be used by the government, correct?

  31. Charles R. Conway says:

    Marcy, is your description of one of the Government’s options with materials initially identified as possibly privileged after the search as “secretly going to MJ Reinhart” correct only in the sense that no one will know right now. There is a record, albeit a sealed record, for now. Ex Parte is not the same as “secret”.

  32. L. Eslinger says:

    My guess is that Judge Cannon is engaging in theater intended for an audience of people who will be useful in developing her career.

    She is deepening her Federalist Society bona fides, and shilling for Trump demonstrates her willingness to act in furtherance of their ambitions.

  33. hollywood says:

    If there is any sense to the appointment of a special master, wouldn’t that individual have to have the highest level security clearance, not just be some member of the Federalist Society?

  34. Cosmo Le Cat says:

    Q: Does a Florida district judge have jurisdiction?

    US Code, title 44 § 2204 (e): “The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.”

  35. Atomic Shadow says:

    There was plenty of time for Patel and and Solomon (or whoever) to scan every single one of these documents. Maybe the boxes that were returned initially were just the ones they had already copied? How do we know that Trump doesn’t have a thumb drive with this stuff on it? In that case, how do we know that he hasn’t already sold some of the info contained in these docs?

    Everybody seems to be acting like the government got the docs back = problem solved. I’m not sure that is true. It seems like it took a very long time to get this far. Who knows what they have been up to in that time?

    • earlofhuntingdon says:

      It’s not at all true. As Ed Walker and, more recently, I have been writing, every intelligence agent and op referred to in those documents has to be considered compromised, which means recalled, shut down or drastically changed. The out-of-pocket costs and probable collateral damage for that alone are considerable, as are the costs of mounting replacement ops. The loss of credibility could be priceless. The public will never know, except indirectly.

      • Peterr says:

        It’s actually worse than that.

        Suppose you are a frustrated govt employee in a country unfriendly to the US, and you’ve been thinking that maybe you’d rather help the US get rid of the idiot running your country by sharing some compromising information.

        Then you see this mess at Mar-a-Lago.

        If your faith in the CIA to keep your identity secret is shaken, you are *not* going to go to the CIA with your compromising information.

        Yes, the people and programs implicated in these documents are in serious trouble. But the next generation of sources the CIA would like to recruit are going to be much harder to recruit than the last generation, and that will damage the US intelligence services for years to come.

    • Rayne says:

      Everybody seems to be acting like the government got the docs back = problem solved.

      Uh, no, not everybody is acting like that. Fortunately the people who should be responding most vigorously to the import of this situation aren’t in the public eye — which is exactly how it’s supposed to be.

    • Stephen Calhoun says:

      Reading here on EW about this whole ‘affair of papers’ I cannot help but muse about what used to be called “hard copies” and also muse about how in the workaday world hard copies are by definition print outs of computer documents.

      One can read all sorts of reporting and discussion about this lawbreaking and never are the terms, Word document, word processing document, or pdf, mentioned.

      So, a bit of a throw-back. . . !

  36. The Old Redneck says:

    In civil cases, magistrates handle “nondispositive” motions and matters for the district court judges. If a magistrate rules in a way you don’t like, you essentially have to appeal that ruling to the district judge sitting over them (see Rule 72). So if Reinhart works for Cannon, everything he does could be reviewed by her anyway.
    That might be why she’s not concerned about the procedural niceties of jurisdiction here. Practically speaking, the warrant case which resulted in the trip to Mar a Lago was in the hands of her direct subordinate.
    That’s a very preliminary take based on very preliminary information.

    • Yorkville Kangaroo says:

      My understanding (and bmaz will correct me if I’m wrong) is that Magistrate Judges don’t ‘work for’ other judges specifically so they are not subordinate in any way.

      They are appointed by a majority of federal judges in their District. They are then assigned cases from the pool of cases Title !!! judges send down to the Magistrates.

      This fact might be complicated by some sort of arrangement whereby Magistrates are ‘paired’ with Title III judges for the purposes of clarifying issues, etc. and, in this case, it might be Cannon.

      But my take is that Reinhart, ostensibly, is unencumbered and rules as such. Anything people don’t like gets bumped up past the Title III ponies and up to Appeals.

  37. Vicks says:

    What would it take for those responsible national security to get the approval to install some sort of surveillance device at Mar-a-lago so they could keep their own eyes on those documents?

      • Peterr says:

        Based on the docs returned in January, I would not be surprised if one of the three letter agencies did not get a warrant. The alarm bells that the NARA referral to DOJ set off would have been crazy.

        • bmaz says:

          Maybe. And maybe I am nuts, but I think there is no way that is a dreaded FISA warrant, but would have to be a Title III warrant. If so, could that still be properly sealed? Sure. But would it have gone unmentioned in the instant affidavit? That is hard to see. But who knows?

        • skua says:

          With hindsight, I now expect (very much hope?) that the three letter agencies were driven to action years before the NARA referral.
          On the brand new list of expectations are things like a complete log of what sensitive info / documents Trump and henchmen have had access to, and other legally permitted security measures that I won’t guess at.

          • vicks says:

            Believing countersurveillance has been going on behind the scenes even if it’s just this one time, would make a lot of people sleep better at night.
            I was listening to Hugo Lowell describe Pine Hall and opining on how close to Trump someone would have to be to know about the documents hidden there; the first image that came to my mind is that the good guys have someone imbedded with Trump’s secret service detail.
            I have to keep reminding myself that wishful thinking can be just a whacky thought or two away from a self soothing conspiracy.

            • skua says:

              Yes to your important warnlng.

              When COVID-19 arrived I expected the federal and state health departments to have the basics for addressing a deadly pandemic in place and to have wargamed the scenario repeatedly..
              PPE supplies, quarrantine facilities, border control, roadblocks, interagency communication, migrant health communication, general population vaccine education.


              • Yorkville Kangaroo says:

                When you do risk managemant appraisals you can only factor in things that are reasonably likely to happen in reality. If something is REALLY critical you might factor in certain cataclysmic events like an earthquake or war.

                So, at Fukushima, you make sure the nuclear power plant can withstand an earthquake of a certain magnitude (7.0 likely, 8.0 less likely, 9.0 pretty unlikely) or being hit by a tidal wave (heights diminishing in likelihood) but it’s unlikely you’ll give much weight to both a 9.0 earthquake and a 14 metre tidal wave happening at the same time despite having a 5 metre sea wall and a building 10 metres above sea level.

                But these are all reasonably measurable and probability able to be worked out.

                It’s hard to factor in a third of the American people being:

                1) willfully ignorant
                2) seditionists or
                3) batshit crazy

                • timbo says:

                  OT: Actually, it’s incredibly hard to predict the odds that a magnitude 9 earthquake will occur within a given span of time, in this case the life of a nuclear power plant. It’s like predicting where a meteor will hit the earth pretty much. Heck, if it’s a really small meteor, maybe the odds are better that that’ll occur randomly? So, do you design your power plant to withstand a meteor impact? Of course you do…if the resource costs aren’t prohibitively high AND especially if you can leverage the mitigation engineering design so that it helps ward off systemic failure in case of other types of more probable catastrophes of moderate to much greater degree.

      • punaise says:

        Interstingly: (via Wikipedia):

        Three Days of the Condor is a 1975 American political thriller film directed by Sydney Pollack and starring Robert Redford, Faye Dunaway, Cliff Robertson, and Max von Sydow.[3] The screenplay by Lorenzo Semple Jr. and David Rayfiel was based on the 1974 novel Six Days of the Condor by James Grady.[3]

  38. dadidoc1 says:

    If I were the former President, I would avoid taking the stairs for the near future. He’s surrounded with co-conspirators who don’t relish the thought of being thrown under the bus.

    • skua says:

      The continued physical health of DJT may be critical to the security of the nation.
      Depends on if DJT has set up data releases that will be triggered if Trump-negative events occur.

  39. Atomic Shadow says:

    When I said “everybody” I didn’t mean everybody here. I meant more like the Congress Droids and MSM. My thinking is a bit foggy today due to a case of the Covid. So far I like Covid better than Lymphoma.

    Still, can’t be a good thing that it took so long to get this stuff back from The Manchurian Cantaloupe. There are people here who know this national security stuff. Does the government have a way to keep tabs on who has been in and out of Mar-A-Lago? Or monitor electronic communications? Yeah, I guess that means a FISA warrant?

    I still think they probably scanned all of that stuff.

    • P J Evans says:

      Sending you good wishes on both the COVID and the lymphoma! (Had breast cancer. Not fun, but it’s gone.)

      • Yorkville Kangaroo says:

        Hair Furore?
        The Man of Steal?
        Killer Klown fom Outer Space?
        Money Diaper McStupid?
        The Boychurian Candidate? (should appeal to Punaise)
        Genghis Can’t?

  40. Tim L. says:

    I hope the DOJ’s response will include a challenge to Judge Cannon’s jurisdiction in this case. If she refuses, they have to appeal, because that is some corrupt shit.

    • hollywood says:

      A jurisdictional challenge seems like a wasted step at this point. Just see what Cannon does with the Master issue and if you don’t like it appeal to the Eleventh District Court of Appeals. If you want, you can raise the issue of jurisdiction there.

      • wistlo says:

        The Eleventh with a majority of judges appointed by the same guy who put Judge Cannon on the bench?

        Should that be a cause for at least mild concern?

        I suppose the case could go up to SCOTUS and …oh, wait….nevermind.

  41. Cosmo Le Cat says:

    Congratulations Marcy for a spot-on article. Your prescience has, once again, been confirmed by the DoJ’s filing today. You called it. You’re the best.

  42. Tim L. says:

    Yes, but the point is that FPOTUS will claim the DOJ’s privilege review was biased or political. That’s why he wants Cannon to appoint a SM who will be biased in his favor, or at least delay everything. The headline should be that the petition to Cannon’s court was completely improper, and the fact that she didn’t throw it out without a second thought was *completely* improper, if not corrupt. She’s another Fed Society minion who’ve infiltrated and poisoned our judicial system.

Comments are closed.