Key Details about Evan Corcoran that Evan Corcoran Did Not Disclose to Judge Aileen Cannon
Over the weekend, Judge Aileen Cannon ordered DOJ — which had not yet been formally served in Donald Trump’s civil suit to get a Special Master appointed to conduct a review of the materials seized from his home — to take initial steps towards appointing a Special Master.
There are a lot of procedural reasons why that order is crazy.
But Judge Cannon might be excused for believing some grave wrong has been done against the former President. That’s because the two filings his lawyers submitted — neither of which was accompanied by a sworn declaration — were wildly misleading.
I’d like to lay out a few of those details here. (First filing, Supplemental filing)
One of the lawyers who signed the filings is Evan Corcoran.
Some useful background first. In the Steve Bannon case, Corcoran let Bannon’s earlier attorney, Robert Costello, join his defense team even though Costello was a witness in the case against Bannon. He did so even after DOJ warned that might pose a problem. Ultimately, Costello conceded that might pose a conflict and he dropped off the team. So even in the last year, Corcoran has been rather flexible about where the role of defense attorney ends and the role of witness begins.
Now let’s look at the filings that Evan Corcoran signed, with two others.
One thing that Evan Corcoran didn’t bother to tell Aileen Cannon is that Evan Corcoran plays a lead role in the filing. The following are actions described in the two Trump filings that Evan Corcoran is either known, or by consistent reference, must have done, but which are attributed only to Trump’s counsel:
- Communicated with DOJ, the White House, and NARA about the documents
- On June 3, met with Jay Bratt at Mar-a-Lago
- Told Bratt and three FBI agents that Trump consented to a search of a storage room that contributed to the probable cause that Trump was still refusing to return classified documents
- Asked Bratt to communicate with him if they needed anything more
- On June 8, received an email directing Trump to secure the storage room
- Was the person informed of the search on August 8
- Engaged in “heated discussion” after being so informed
- Asked three questions after being informed of the search
- Refused to turn off surveillance video during the search
- Was informed on August 11 that the FBI had seized materials that might include privileged material
- On August 11, stated the following to Jay Bratt:
- President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is “angry.'” The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.
- Was informed that filter agents who searched the Former President’s office had taken three passports
Here are some other details regarding events in which Corcoran was involved that he did not disclose to Judge Cannon:
- After the meeting with Bratt, Trump did not identify and provide all classified documents at Mar-a-Lago to DOJ in response to a subpoena
- In response to a direction to Corcoran to secure the storage room, Trump did nothing more than add a new lock
- Corcoran made the comment about “the heat [] building up” in the wake of an attack by an armed Trump supporter on an FBI office
- After Corcoran was informed on August 11 that DOJ would not use a Special Master, he did nothing for ten days
- DOJ did, in fact, include a Corcoran letter that the first filing suggested they had not, thereby alerting Bruce Reinhart of Corcoran’s claim that Presidents have absolute authority to declassify documents
Perhaps most critically, in the second filing that quotes from the warrant affidavit, Evan Corcoran did not disclose to Judge Cannon that Evan Corcoran’s own actions are described in the unredacted parts of the warrant affidavit. He is mentioned five times in just in the unredacted section (and the fact that the affidavit refers to FPOTUS COUNSEL 1 strongly suggests there’s an FPOTUS COUNSEL 2, Christina Bobb, mentioned in the redacted sections).
[redacted] In the second such letter, which is attached as Exhibit 1, FPOTUS COUNSEL 1 asked DOJ to consider a few “principles,” which include FPOTUS COUNSEL 1’s claim that a President has absolute authority to declassify documents. In this letter, FPOTUS COUNSEL 1 requested, among other things, that “DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.”
[snip]
On June 8, 2022, DOJ COUNSEL sent FPOTUS COUNSEL 1 a letter, which reiterated that the PREMISES are not authorized to store classified information and requested the preservation of the STORAGE ROOM and boxes that had been moved from the White House to the PREMISES. Specifically, the letter stated in relevant part:
As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents [redacted] were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in au appropriate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until farther notice.
On June 9, 2022, FPOTUS COUNSEL 1 sent an email to DOJ COUNSEL stating, ”I write to acknowledge receipt of this letter.”
That makes the other things that Corcoran chose to misrepresent to or conceal from Aileen Cannon far more important:
- That the warrant provided the reason for the search
- That the reason for the search was to find documents Trump had refused to return, which amounted to probable cause for violations of the Espionage Act, 18 USC 2071, and obstruction (Corcoran had falsely affirmed the warrant was about the Presidential Records Act, which was not named on the face of the warrant at all)
- That a quote in the second filing focusing on Presidential Records neglected to mention the evidence of Espionage Act and obstruction in the same paragraph; Corcoran withheld the following bolded language:
- Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
- Trump fought for 8 months before he acceded to send the first 15 boxes back
- Christina Bobb was the custodian of records that accepted service for a subpoena asking for all remaining classified documents
- Trump didn’t return all classified documents in response to a subpoena for them
- That custodian of records, Bobb, not some lawyer who happened to be in the neighborhood, signed off on the property receipt
- Custodian of records Bobb made no objections as to the form of the search warrant receipt — one basis for the claimed action — at the time of the search or since
- No Special Counsel issued a finding that the FBI agents who investigated Trump were biased; the Inspector General issued a finding that there no evidence bias affected the investigation and a Special Counsel attempted to make similar claims that have thus far all failed (Corcoran makes a slew of other false claims about the Horowitz Report as his basis to suggest the FBI has been mean to Trump)
- The Acting Archivist Debra Steidel Wall obtained an Executive Privilege waiver for documents inappropriately withheld under the PRA in May and informed Corcoran of that
- In the ensuing three months after Corcoran was informed of the Executive Privilege waiver, he is not known to have done anything to contest it
- The National Security Division filter team Corcoran describes and the filter process described in the warrant appear to be different (the former seems to be one described to him by the Acting Archivist)
- The filter team process in the warrant approved by Reinhart includes the possibility of a Special Master, something Corcoran claims Reinhart could not approve:
- (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.
- If the storage of classified materials fit the terms of the CFR guiding storage of classified documents, then the surveillance video Corcoran refused to turn off would have shown to Trump what materials were seized from where
- That DOJ acknowledged the passports weren’t validly seized under the warrant (they were, and Corcoran even suggests why they were — because they were in the same safe holding classified documents), when DOJ simply said they weren’t included in the scope of the crimes under investigation
Evan Corcoran, in a filing that failed to disclose his own role in the events under investigation, misrepresented to the judge that this was a search about the Presidential Records Act and not an investigation into violations of the Espionage Act and obstruction.
He didn’t even tell her that he is named in the affidavit showing probable cause of obstruction.
Update: DOJ has acknowledged Cannon’s order. As expected, they’ve completed much of the privilege review already.
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.
That’s quite a list. Of all of them, the two that stand out to me are these:
First:
Second:
Both of these suggest to me that Corcoran may be in danger of sanction, when someone points these out to a judge. The DOJ response to Cannon’s request might do just that.
If he wasn’t before, with these actions and especially the misleading nature of his filing with Cannon, Corcoran has made himself a part of a conspiracy to obstruct.
At the very least, I expect DOJ to say that Corcoran is (at least) a witness and Lindsey Halligan doesn’t have clearance.
The DOJ response is going to be brutal.
And me, running low on popcorn!
Do you really think any of this will matter to Judge Cannon? She knew (or should have known) most or all of it before she issued her “preliminary order,” as well as knowing (or should have known) just how procedurally flawed the “motion” was, that there was not even a case at issue since no service had been perfected, and that based on the claims that they were making she shouldn’t even have jurisdiction. But she went ahead and issued it anyway, a judicial overreach that exceeds anything that I have seen in almost a quarter century of practicing law. She is not going to be swayed by facts or law; she is going to do whatever she can to help fpotus wrangle out of this mess, or at least delay it long enough to be firmly entrenched in his “campaign”.
Could she be giving lip service to the Trumpers and Magats until she can irrefutable deny them. You know these criminals are all about death threats.
In other words, Corcoran’s role appears to violate the rule that one cannot be both a lawyer and a witness in a case and he is therefore precluded from representing TFG in this litigation. A motion to disqualify might be forthcoming from the DOJ. Is that what you are saying?
What is Corcoran’s exposure for legal consequences? Would Cannon be angry enough to sanction Corcoran or worse? Let’s remember that at best she’s been played (whether willingly or not) and catching all sorts of flak from the legal community for doing what she’s done here. Will that realization of being made the patsy / fool / dupe turn into her issuing adverse rulings for Individual-1, starting with the denial of the Special Master motion?
We shall see, but bad behavior unprotected by government service usually gets hammered. Eventually. See: Prenda Law.
It does not appear, based on her odd and wonky ruling preliminary ruling here, that Cannon will be sanctioning any Twisslering lawyers any time soon. And as for Reinhardt, he too seems to be less stern than required to rein these clown lawyers in…although one can hope? Nah, it’s looking like for there to be sanctions, it’s going to have to move a little further up the food chain to someone who doesn’t like having their time, the public’s time, and the government’s dimes wasted by buffoons with law-degrees.
Wow. And I thought I had a passably good understanding of these issues. This is masterful and clear to anyone who isn’t na-na I can’t hear you. Thanks again, Dr. Wheeler.
Wow. So would one be justified in asserting that we will witness a crucial test of Judge Cannon’s integrity sometime this week, as at least some of the facts you outline become clear to her? It would seem that in light of all this, an honest judge would either refer the case back to the original magistrate she’s ‘partnered’ with or toss it out altogether. Probably with an irritated cover letter.
So to the procedural … ah … confusion by the Trump-solicitous judge we can now add misrepresentation that arguably borders on fraud by the Trump attorney. Is anyone surprised?
This whole matter has the stink of purely dilatory mischief to me. I hope DOJ stomps as hard as they can on it before it turns into a real fire.
Ms. Wheeler is setting up the likelihood that Corcoran and Bobb will be converted from lawyers to co-conspirators. But if there were ex parte communications with the judge prior to the filing that would be problematic too, if they come to light.
Amen brother, Boob and Corcoran are players, they have skin in the game, certainly regarding the false assertion that all documents had been returned. Signing that was a life changing event.
Boob isn’t included in the list of lawyers, I think Corcoran is next to go missing with own legal exposures with MAL. The toxicity of trump and MAL makes signing up appropriate lawyers to replace the dropouts all the more difficult.
As his already feeble legal efforts wither trump will have to increasingly rely on threats, intimidation and legal assistance from Boom Boom Cannon. She will have to guide team trump thru legal areas they don’t know and will probably overrule DOJ legal objections in the “interest of ‘justice'”.
team trump goals are to freeze DOJ investigative efforts as long as possible “special master” and get a preview peek at the developing criminal case against trump & confederates.
https://www.youtube.com/watch?v=_G7TYPEawX0
Much of Cannon’s personal exposure would depend on what was said in those ex parte communications (since the DoJ was cut out of them), i.e. a quid pro quo or something like it. Since she’s a sitting federal district judge, Congress has to impeach and remove her (same sequence as for POTUS) because of the ‘good behavior’ clause. There might be some wrist-slapping options within the federal judiciary system otherwise but Cannon stays where she is until she resigns or impeached by the House and removed by the Senate. Even if she were an axe murderer (she’s not) I can’t see enough GQP types voting to remove Cannon to be replaced by a Biden pick. The politics drive GQP choices.
Whether a sitting federal district judge can still be a judge upon conviction in a court I don’t know. Like many other things tied to Individual-1 this is a situation unexpected because no one expected this level of rank disrespect for the Constitutional law and basic civility. It’s the law of the jungle for MAGA.
Absent non-ambivalent proof that Cannon participated in a crime, the exposure she faces would be to be overruled on appeal concerning her orders to date.
As EW elegantly writes, her litany of facts originate in Cannon’s refusal to follow the rules of civil procedure, including not giving the government an opportunity to respond before indicating her position on orders that would be adverse to the government’s interest.
Had the government been properly served and given an opportunity to respond, these facts would be matters of public record, rather than be listed in a journalist’s observations.
The answers remain speculative until the fact questions posed by Rugger are answered.
I don’t know whether that’ll be true. Corcoran is too smart to embroil himself.
Bobb not only isn’t that smart, but she’s already on the hook for Jan6.
But they are both, at a minimum, witnesses.
“Witnesses” is more fitting in these circumstances.
So by now, everyone must be aware that Graham went on tv yesterday and repeated the veiled threat Corcoran made to Bratt regarding street violence erupting in support of dear leader — was it only a week ago? And now that it’s been incorporated into the official GOP line we will hear it ad nauseam over the coming weeks.
(Night of the Leopards redux, courtesy the Dept of Redundancy Department.)
OT: does anyone have an idea who took the photo of Stefanik’s name in sharpie on a peice of foolscap in the MAL toilet? I have contacted her repeatedly for clarification but so far, no answer.
Cue Neil Young’s “Like a Hurricane.”
Foolscap it is (“the words of the profit are written on the toilet stalls and Mar-a-Lago walls…”)
Shar pei – not just a dog in China.
An ignorant question: Could Trump be held liable for wrongful death/damages, given that he now knows that at least some of his followers are violent to the point of attempting murder, and yet has not called for nonviolence?
Calling for nonviolence wouldn’t necessarily stop the violence, but it would reasonably get him off the hook.
Judge Mehta, in lawsuits against Trump, said he could be held accountable to a (lower) civil standard of Aid and Abet liability for assaults at the Capitol. Since that time we’ve gotten FAR more information about his foreknowledge of the violence.
I often listen to North Country Public Radio from upper New York state. Their reporters regularly complain of Stefanik’s refusal to respond to requests for interviews. That would probably apply to questions about her name being on scraps of paper at the bottom of a toilet.
Makes one wonder what tales the white house plumber might share concerning clogged toilets?
Another NCPR listener, albeit closer to Mt. Mansfield. I feel for your lack of qualified representation!
I appreciate your sympathy but I actually live north of the border, just a hop skip and a jump away from Cape Vincent.
If Judge Cannon has been following the news at all, how can she not be aware of the problems in Corcoran’s filing that Dr. Wheeler describes above? Or is she bound to address only the information contained in that filing without reference to any other facts and sources? Or is Judge Cannon so pro-Trump that she’s accepting Corcoran’s filing at face value and pretending that she’s not aware of his misrepresentations?
I seem to recall bmaz pointing out that the judge should rule on the facts of a case presented in filings (esp. with regards to evidence), and that “following the news” is basically hearsay. However, when essential facts that should be in the filing (such as perfecting service on the DOJ, in this case) are missing, then she would be perfectly entitled to send the filers back to the drawing board. So, bad lawyering and bad judging all around.
(see also EoH @ 11:52 AM below)
Thanks for the clarification.
The only facts in the record before Judge Cannon were those in whatever documents that may have been attached to the motion. Most of the claims in the motion were unsupported by anything in the record and therefore not properly relied upon by the judge.
If Trump was arrested for obstruction/espionage would she be the trial judge? Also, what can and can’t she do without an actual set of charges against Trump? How much action can she take?
First question: it would depend on where the charges were filed. They don’t have to filed in the Southern District of Florida. My guess is that even if they were filed in FLSD, the new case would go to the next judge in rotation – but a trial lawyer on here can give you a more authoritative answer.
Second question: Cannon is supposed to act only on what’s before her and what she’s been asked to act on. So at this point, only appointing a special master and ruling on privileged papers.
Justice Burger once said, “We cannot ignore as lawyers what we know as men.”
Paging Franz Kafka.
Does DOJ responding to Cannon’s “ruling” amount to acknowledgment by the DOJ that Cannon has jurisdiction and that, in fact, they have received (by inference) notification that a suit has been filed?
The worse part for my worried mind is who is there to set the process right? SCOTUS? Yikes! The Trump phenomenon of lying has made crystal clear the importance of an independent judiciary with integrity.
None of these thugs are capable of organizing their monkey brains well enough to create a court document that conforms with external demands either of court procedures or of reality.
Impressively done, thank-you.
So, any informed guesses as to how DOJ responds? Will they administer a verbal and legal beatdown along the lines above? Or will they simply say the question is moot since they’ve already completed their search of the seized records?
Or not respond at all until they have been properly served.
Unless there is a professional obligation to strictly focus upon and consider only the information contained in the suit that has been filed and assigned to her, not knowing, or not taking the time to review what has been publicly revealed, amounts to a willful blindness by Judge Cannon.
Cannon has discretion about what in the pulic record she takes judicial notice of. But one reason she should have earlier demanded the government respond to plaintiff’s claims is that she would have been given this list of facts adverse to the plaintiff.
She knows that’s how the adversarial system works, and that even competent lawyers offer up only the version of the facts helpful – or not harmful – to their clients.
Her background suggests that she is at least a competent attorney, which is part of the reason that I suggested in a previous post that her audience may actually be other members of the Federalist Society. The idea here being that she could anticipate the outcome, but making some noise would demonstrate that she’s a loyal foot soldier, worthy of further support.
The thing is that Cannon is ruling without having the knowledge in hand as to whether or not this suit/filing might not be more damaging to the person authorizing the filing of the suit in their name. Along those lines, I encourage the AG and POTUS to authorize the showing of one of these seized TS/SCI documents to Judge Cannon so that she can then not claim to be uninformed about the seriousness of this investigation. At that point, perhaps she’ll stop coddling crappy Twisslering lawyers and maybe dial back the “anything you need right now you got!” behavior when it comes to letting FPOTUS hang himself.
Thank you Dr. Marcy. Excellent information.
Forgive me if I missed it in the post, but I think you left out Corcoran’s most egregious conflict of interest: according to WaPo, Corcoran drafted the highly misleading written statement that Bobb signed at the conclusion of the June meeting at Mar-a-Lago. That statement represented (with a b.s. caveat, as described below) that as of that point in June, all classified documents at Mar-a-Lago had been returned to the government. It appears Bobb was designated “custodian of records” to serve as a cut-out. Bobb likely was given no direct observance or knowledge of whatever “searching” Trump or Corcoran or someone had done—or, more precisely, had not done—so Bobb could tell the government that “to the best of her [own] knowledge” all relevant materials had been returned. [Of course such a statement to the government carries an implied representation that the signatory has personal knowledge that a search was conducted that was reasonable for the purpose of the required production ] Interestingly, the separate statement that Corcoran drafted and Bobb signed was provided gratuitously. The formal statement was not actually required by the subpoena and does not appear to have been requested by Jay Bratt at the meeting. Granted, all this information come from reporting and not from the affidavit filed to support the search warrant. But if it true, Corcoran better hope he is not more than a material witness.
The post is looking at (a) what Corcoran either swore to in filings he made to a court or (b) what can be gleaned about Corcoran’s actions from DOJ filings (either open filings or redacted filings). Drafting the “We gave it all back” memo for Bobb to sign is not in either of these.
Not saying it’s not true, and not saying it’s not significant, but it has not been admitted to in court by Corcoran or put forward to the court by the DOJ.
Yet.
I’ve included in there that Trump did not return all the docs. We don’t yet know where the liability for that is. For example, we don’t know whether Trump snuck classified docs out of the closet before Corcoran reviewed them.
We don’t even know if Corcoran or Bobb reviewed them. To the limited extent there are attorney-client communications in the seized files, it will be interesting to eventually see if there is a document (like an engagement letter to the client) saying something to the effect that the attorney, due to possible classification and security clearance issues or other reasons, is forced to rely on Trump’s representations on all factual matters. That might include a warning that if Trump’s representations prove to be false, then the attorney would be compelled to resign. Corcoran or whoever else might have tried to cover his ass that way, though Trump might have been canny enough to not accept the condition. Trump always wants the option to throw everyone else under the bus. More generally, I’m not surprised the number of attorney-client communications recovered is “limited.” Trump never writes to his attorneys and he no doubt wants very little back in writing. If the government really wants to find something interesting, it should apply for a new warrant to search Mar-a-Lago’s toilets.
Bobb claimed in a Fox interview on 8/12 that “The legal team had done a very thorough search…” Note she also stated “I have not specifically spoken to the President {Trump} about what nuclear materials may or may not have been in there…”
https://video.foxnews.com/v/6310752679112#sp=show-clips
As a follow up, in that interview Bobb said that “…from that meeting in June [June 3], the next thing I heard was on Monday [August 8], where you have to get down to MAL…”
With the June 22 subpoena, this seems to be a lie. Not sure why they lie so carelessly with easily available facts.
Jeebus. Why would she even go there about “nuclear materials” if she had no knowledge about their inclusion. What an idiot.
Heck, we don’t even know if there are documents that have left the country as yet. It’s possible that some of the documents sought were taken away from MAL long ago and that, if true, that means that this investigation has considerable legs and consequences for those involved in delaying a finding that, yep, gee, not all the nation’s secrets that Twitler stole are actually accounted for…and are now possibly irretrievable.
Given the existing proceedings before Reinhart, on what grounds is Cannon even accepting jurisdiction?
Well, this sure lights a fire under the situation. Once again, Marcy nails it. The Trump team was far too late to stop the train.
https://www.washingtonpost.com/national-security/2022/08/29/trumpspecial-master-documents/
“FBI agents have already finished their review of possibly privileged documents seized in an Aug. 8 search of Donald Trump’s Mar-a-Lago home, according to a Justice Department court filing Monday that could undercut the former president’s efforts to have a special master appointed to review the files.
The “filter team” used by the Justice Department to sort through the documents and weed out any material that should not be reviewed by criminal investigators has already “completed its review,” the brief filed by Justice Department prosecutors says. The filing came in response to a ruling Saturday by U.S. District Judge Aileen M. Cannon to hold a hearing this week on Trump’s motion seeking the appointment of a special master.
The new government filing says prosecutors will provide more information later this week. But in the meantime, it notes that even before the judge’s weekend ruling, the filter team “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” of the search warrant to handle any privilege disputes.”
Actual filing, to corroborate:
https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.31.0_6.pdf
I like that “judicially authorized search warrant” – nice reminder that a judge did see and approve, no matter what Corcoran has implied in his filing.
The filter team sorted for attorney-client privilege but the special master was requested for executive privilege. I’m not sure what does and doesn’t matter at this point, and I’m aware of the problem with any claim of exec privilege, but is this government motion even responsive?
So far, it is yet to be determined that the SM would filter for EP or anything else.
I understand but that was the only request. if the government is going to respond, why not be responsive?
Their formal response is still pending, as this filing notes.
So in their informal reply, why do you think they addressed attorney client privilege and not executive privilege?
Because plaintiff has not raised EP in its own filings, and a SM is normally used to identify potentially A/C privileged records.
Trump’s filing throws around “privilege” as a talisman, but it does not assert any specific form of privilege or offer facts to support the claim. It uses the same method to imply there are unspecified problems with the FBI’s document review protocol. It’s an emotional play, not a legal one.
At a guess? Probably because there’s actually a procedure in the warrant affidavit for handling A-C privileged material, and giving notice that it’s complete *now* forestalls any complaints that DOJ delayed filing their formal response to give the PRT time to finish working. That’s just a guess, though; I can claim no expertise in this or any other area of legal procedure.
Yes, IIRC she did ask for a “status” report. This is reasonably responsive to that, at least in part.
Also, again IIRC, I think DOJ has yet to acknowledge that a claim of Executive Privilege would be valid in any case, so perhaps they want to avoid even an implication that they believe it could be.
This also gave the DOJ a vehicle to put the whole warrant application in front of the Cannon – something Corcoran neglected to do — which may perhaps cause her to re-read what Corcoran filed in a new and different light before the formal response is made.
Yes, the DOJ didn’t file a preliminary, early response to help Trump so I guess they did it to help the judge – help her avoid doing anything else stupid.
Regarding Executive Privilege as this point in time…
We know that NARA obtained an Executive Privilege waiver from Biden for PRA purposes. Does that only apply only to NARA and then only to PRA matters?
Yet we continue to see “Executive Privilege” popping up in some of the legal discussion and on both MSM and Trump-leaning media outlets and talking heads. Is that just smoke the Trump-World is blowing up our collective kilts?
Is an opinion on Executive Privilege in DOJ’s back pocket; stating that Trump lost Executive Privilege the moment Biden was sworn in? Or will Biden need to weigh in somewhere down the line – and REALLY ignite the RWNJs?
Everything and anything of Trump’s that could conceivably be covered by a claim of executive privilege is subject to the PRA and belongs to NARA. Their existence at Mar-a-Lago confirm breaches of the PRA. The question is then can Trump’s executive privilege claims prevent release of those particular documents to an executive branch investigation.
SCOTUS has already ruled that NARA can release material subpoenaed by the Jan.6 Committee. They did so on the basis that even if Trump were the sitting president, Jan.6 was such a matter of constitutional peril that any claim to keep secret information about how it transpired would fail. So now the question shifts again to what sort of stuff was Trump trying to keep hidden at Mar-a-Lago? I can’t see too many people (lawyers really, but lawyers are people) lining up to go to prison to protect Trump just so Trump can keep some trivial memorabilia close to hand. There’s something(s) big and damning in those documents and very likely of sufficient importance to investigators that DOJ should get a similar SCOTUS result as Rep. Thompson received.
[Edit: Just to note IANAL]
IANAL.
As I understand it, NARA rejected Trump’s legal team’s claim of EP in a letter from the archivist to them on 10 May. Jack Goldsmith at JustSecurity seems to think that there may be an issue there, on narrow grounds, that Biden could only grant NARA access if the documents were needed for current business AND not available from other sources. To me this seems somewhat strained because we don’t know what White House Counsel said to NARA about availability. Not to say that one of Trump’s lawyers might not raise it anyway, since they probably will. Here’s the relevant bit:
“The fact that the acting archivist made clear why the information in the documents was needed for current government business but did not obviously address whether the information was “otherwise available” makes me think that there is at least a difficult question about whether the “not otherwise available” element of § 2205(2)(B) is satisfied.”
Whole article: https://www.lawfareblog.com/presidential-records-act-and-mar-lago-documents
It’s a massive stretch for Goldsmith to suggest Biden might have access to the same records with identical content “available from other sources.” Ex. If Trump has the originals or printouts from a database AND he’s marked them up in some way to note an executive decision which affects current new decision making, copies of the records or new printouts which may not be marked will not be the same – they’re different records.
Nor does Goldsmith entertain one of the worst case scenarios. Recall after a teleconference with Putin in late July 2019, Trump asked for a list of intelligence personnel of a certain paygrade. What does that list entail — was it a record or collection of records which might be obtainable from ODNI’s resource system and therefore “available from other sources,” but the existence of the list prepared at that point in time and any marks made on that list convert the list into a separate, unique record?
What if that list includes non-official cover and assets, and damage assessment can’t be made because the existing records available don’t reflect what Trump understood at the time he received the list in/around August 2019 — that there may have been other changes to the records not evident without the record/s in Trump’s possession for comparison? (I’m thinking of the “perfect phone call” with Zelensky and the record the public eventually saw versus the one believed to be stored in a passcode-based system as one example.)
ADDER: Had a fleeting thought about the nature of presidential records (past tense) and presidential records (current tense), national defense information and non-NDI. Did Trump believe that he could somehow convert records to a different status simply by marking them up, a la NOAA/NWS hurricane map and his Sharpie? Did his handling of that map of Hurricane Dorian (and his violation of 18 USC 2074) in September 2019 convert the map to a presidential record since it wasn’t merely part of presentation materials by NOAA/NWS by virtue of his markup? Was this approach of marking up records part of a practice of conversion from materials used by the executive to presidential records which would be his, his, his? Did he do the same to NDI thinking it converted materials from NDI to presidential records which would be his, his, his?
I think that The Donald, oblique in his thinking as always, may have realised that he COULD change the status of something by merely writing on it. However, and at its core, he is no ‘very smart person’ especially when it comes to keeping track of his criming.
So, he would probably claim that marking up changed them from whatever he saw them as to begin with to ‘his’. However, he’s just as likely, and just as fallaciously, claim that doing this had NOT done this depending on whatever document suited whatever argument he was choosing to make at the time.
The Master of Inconsistency.
Some elements of “Mine-mine-mine-ism” have got to be in play here.
The Sharpie map, to my way of thinking, would have been a flag at NARA: “O.K. folks. Just to be sure…Have any of you seen that Sharpie Map come in?”
But to Trump, I think that your “mine, mine, mine” is pretty accurate with regard to the PRA. His behavior with regard to PRA might indicate that, for him, PRA only applied to officially signed or initialed documents/information. Notes and stuff? “Naw”. That would reflect what he did in his business life. And since he rarely had public shareholders, the stuff on his desk was his alone. (My guess is that partners of his only got copies of contracts because their lawyers — and Trump’s — insisted on it.) I don’t think 45 ever considered himself the president/CEO of a YUGE publicly-held company. Votes and polls, to him, are just cryptocurrency, valued and spent as he alone wishes.
His approach to NDI material may come from a different part of his Gollum brain. It’s still a “mine, mine, mine” thing, but more like the “Ring”. Somebody delivered that stuff and it’s now his. Perhaps continued exposure to the power of NDI infected his mind (or just made “bad” worse).
Trump’s first filing talked alot about stuff being presumptively privileged. And actually I think that’s a pretty logical argument. If you believe you’re still president.
Hmm. I added a comment in hereabouts but it seems not to have made it through moderation.
[Sorry, appears to have been hung up in auto-moderation because of the URL. It’s been freed. /~Rayne]
I Am Not A (Constitutional, in particular) Lawyer but even this thinking is flawed. The Donald’s belief would be that absolutely EVERYTHING that happend in the Executive Branch was privileged and is a nonsense.
On Twitter, 1836 Republic suggested that the Chief Judge of SDFL should reassign the case to Reinhart because the submission process violates the rules for SDFL. In particular, the reason why the the first filing was made on paper and appeared to have no lawyers representing Trump is because that was the only way to get around the standard process of assigning judges in SDFL. https://twitter.com/1836_republic/status/1563880449029640192
Most interestingly, Trump had previously tried to be in Judge Cannon’s court a few months ago, and was told that he couldn’t do that. That filing was through the electronic filing system. https://www.politico.com/news/2022/04/06/judge-recuse-trump-hillary-clinton-00023650 (perhaps first cited by Kyle Cheney?)
IANAL, wondering if the Chief Judge of SDFL can interfere? She’s a Dubya appointee, so no telling if she would. Also, these threats of violence tend to have a chilling effect on judges as well.
Anyone want to bet that Trump moves to dismiss his complaint, claiming he got his review and is getting his”details” to try to avoid having Garland’s thrashing in the DOJ’s reply and refutation. Comical at this point. What if the DOJ got some evidence related to Jan 6 and that explains his Sunday’s “truths”, now that he cant stop the train.
Unless the updated docs show who the mole(s) is/are Individual-1 doesn’t have anything new. He also must presume that DoJ knows everything in every box by now, and if there is anything left at M-a-L the process of elimination should tell his legal team what DoJ has. Of course that assumes some records were kept.
Trump’ll also assume that they might not have every document that he may have destroyed thoroughly.
I don’t know that he’ll assume that. He exhibits paranoid tendencies. But he also “wings it,” both out of temperament and out of simple inability, so my guess is he’ll just fret about it. But in any case, Trump is anything but a cool customer.
I’m thinking that he is of the mind that if he has destroyed evidence he will be beggared if there is any evidence remaining. He has not stayed out of jail this long by accident.
Bedminster & 721 Fifth Ave.
Imagine being a member of the bar (for now) apparently humble bragging about the role you personally played in conveying the F(elonious)POTUS’s veiled threats to the Attorney General of the United States by including them verbatim in a motion filed in a court of law without making clear that it was you who participated in that depraved act (First Motion, at page 8, bottom).
Dear Ms. Wheeler,
Thanks for your laser like focus on these issues. You writing cuts through all the “sand in the air” BS that too often clouds the basic truth. I’m left with the abiding notion that Mr. Corcoran is in over his head, likely not all of his own fault given the client. Nonetheless, after reading the NYT piece on Jones Day (https: //www. nytimes .com/2022/08/25/magazine/jones-day-trump.html?unlocked_article_code=XyLdKSW-3eRmebRhWo6Fby8robjXpuz9qmdUPt1JscL15TAIOURkP1M1IE8lEKi4nygBm9ObP_CFSkvM7cec-av71kJcezOK0v97aatqZGo0hiQT6FKfHk99oR3Jfru3BTt9JV_0pn4adJoefe9EERD4sLS-4b41hUjkumJkXQFCH58Oe_YnCc7jLo215jQhLBrVI3ZUNtea3ePk_amXH37zBLvRb1pDbdGozHSVVk9ZAvoO53ONv6r3vBWNbTuVKUu9WXO99-q9k80fK4doy7_vP6GeCDaNj87uH_pV1XYQeEtBnjHN4izttEdzSyw0RZSv1Xjf5foRrg&smid=share-url) I’m wondering if the brain trust of the Federalist Society hasn’t decided that they are done with DJT. They had a nice run, reshaped the federal judiciary, and made a ton of money. Time to take out the trash. Otherwise wouldn’t they prevail on one of their grey eminences to weigh in on Trump’s behalf.
[Welcome to emptywheel. FYI, link “broken” with blank spaces. Community members can copy-paste and remove blank spaces to activate link. Keep in mind that links like this will track users. /~Rayne]
It sometimes helps to delete the entire address including ? and all after. It is not needed and is usually used for tracking.
My key takeaway is that by rule of law a judge may only take into account the evidence brought before her. So even though the redacted affidavit is public in another Court, she can’t take all of it into account until DOJ brings up the bits Corcoran left out. Seems obvious when I write it down. So easy to forget, that court filings in the larger public record, must be introduced to judges in other jurisdictions.
I believe that is called ‘taking judicial notice’. It is also why jurors aren’t allowed to sleuth on their own, because the whole idea (though IANAL) is to have a complete record of the evidence, arguments, rulings, etc. that went into whatever decisions were reached in the case.
FWIW, it’s Corcoran and possibly Bobb who would be sanctionable, not Cannon UNLESS bad behavior is proven and then it’s up to Congress.
IANAL.
But as I understand it, pro se filings are the only ones allowed to be filed on paper and not through PACER in SDFL, and those are the only ones that would not go through the Wheel. So isn’t there irregularity in accepting such a filing, when the lawyers were added on immediately after it was assigned to the judge? Especially when the plaintiff (Trump) has tried a similar stunt in SDFL previously *for the same judge* (Cannon), and been called out by another SDFL judge (Middlebrooks, earlier this year)?
Additionally, even if they mention nothing else, they do mention the warrant itself, which was filed in Palm Beach County, right where the action actually occurred. So she does know at least that fact. It feels like it shouldn’t be possible for her to legitimately begin hearing and ruling on this on her own, far from where the offenses allegedly occurred, without hearing anything from DoJ or Reinhart?
“The redacted version of the search warrant affidavit, made public on August 22, 2021, is available at D.E. 102-1 of Case No. 22-mk-8332-BER.” A rather cold and elegant way of reminding Judge Cannon that the evidence and rulings concerning this matter exist in another proceeding. Which ties into Trump’s argument about the Court’s jurisdiction to appoint a special master. The cases cited in the supplemental pleading rely on the Court’s inherent supervisory authority, which in the current circumstances indicate that such a motion should have been filed in the warrant proceeding, the matter to be supervised. Assuming that the issue of the privilege review is not moot, which appears to be the case unless Judge Cannon requires a wasteful and unnecessary “do over” review. The appeal to the Court’s equity jurisdiction makes no sense. Federal courts are courts of limited jurisdiction and do not possess general equity jurisdiction. They possess equitable authority incident to cases properly before them under some extant cause of action arising under federal law. And the appeal to equity for the return of property seized outside the scope of the warrant is unsound: there is an adequate remedy at law pursuant to Fed. R. Crim. P. 41(g). But Trump has not brought a Rule 41 motion (yet) let alone submitted the requisite “evidence” to support it. That may be because he wants to argue that all of the seized materials belong to him and is trying to get his attorneys to bring such a motion, and they have instead temporized by filing this meritless equitable request instead. (Of course, Judge Cannon could treat it as a Rule 41 motion; her orders to date are an ominous harbinger of wanting to get in the middle of these matters.)
Regardless, DOJ’s frosty notice strongly suggests that they are going to try and kill this improper collateral action with fire.
My expectation is that Judge Cannon will take the unprecedented step of still ordering a special master to review all the documents seized to determine whether they are subject to executive privilege, not attorney-client privilege. And yes, I understand that that makes no sense at all and would be completely unprecedented. But the same came be said about her preliminary order.
Given noted irregularities in her taking the case in the first plane, might that put her at risk of becoming a part of a conspiracy to obstruct?
She has judicial immunity.
Arrest her and see if a court will take the immunity away. If nothing else, you can beat the rap but not the ride, and she’s out of the DOJ’s hair because she’d have to recuse herself. What’s she going to do, try to keep a case involving hundreds of classified documents out of court then sue because she got arrested for obstruction?*
A just and alert jury might award her a dollar.
* IANAL, and maybe I’m just talking out my ass, but what can anyone do to make sure a Trumpist whackjob so-called judge realizes there are actual limits on her behavior?
LOL.
Astoundingly brilliant analysis by Emptywheel.
Q: Above, “Former AFPD” commented about a motion to disqualify Corcoran. Can such a motion derail the upcoming hearing?
Q: Will the DOJ challenge the inadequacy of the Trump filing (lack of complaint, etc) and the jurisdictional issue, as EP issues must be filed in DC, and the matter is already before a magistrate?
Q: Since the motion didn’t address attorney-client privilege, is appointment of a special master for that before Judge Cannon, especially since Reinhart already made a ruling on that matter and the review is complete, thus moot?
A lawyer cannot be both counsel for a party and a witness in a case. That constitutes a conflict of interest. If the DOJ has evidence that a lawyer is also a witness in a criminal or civil case, the DOJ can file a motion, supported by factual allegations, which alleges the conflict of interest. The DOJ can ask that the court disqualify the conflicted lawyer from representing a party in the case. Typically, once a motion to disqualify for conflict of interest is made in federal court, all other proceedings are held in abeyance until the issue of the status of counsel is resolved.
A YouTube video announcing the DOJ reply said the written response is due tomorrow, Aug 30.
“The government explained in its notice that the documents have already been reviewed, but that it would provide a more detailed written response on August 30, 2022 pursuant to the Court’s briefing schedule.”
I cannot find a corroboration via Google, but if true, we won’t have to wait long
https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.31.0_5.pdf
I think that not enough attention is being paid to the fact that Cannon termed her order “preliminary.” Issuing a preliminary order accomplishes two things: throws a bone to the MAGA crowd and gives DoJ a target to shoot at.
Judge Cannon’s first order was issued to Trump: fix this; here’s a template. Her second order, IMO, is directed to DoJ: tell me why this is wrong. She is going to be handed chapter and verse, and I dare say that this is exactly what she wants. Not to mention the fact that DoJ’s upcoming response will include sworn affidavits, and Cannon will be obliged to treat anything in them as uncontested because Trump’s side hasn’t submitted any witness statements under oath.
Maybe I’m being overly optimistic. Time will tell.
I think you are right benfdc. If there was a website that would have let me bet on whether Judge Cannon will indeed issue an Order that actually put some random “Special Master” in a position to read a trove of U.S. secrets I would have put a hefty wager down that it will never happen, and I would expect maximum return on investment for a wager right after the preliminary order issued.
People who seemed really worried about that admittedly unusual preliminary order all seemed to forget that the previous order would have allowed 45’s silly request to die on the vine with whatever dignity it had left.
Viewed through an ultra wide angle lens, from here, the whole thing looks like “good cop” (Cannon) / “bad cop” (Reinhart).
Emptywheel tweet 3 hrs ago: “[E]ither Reinhart (the most likely), or possibly even a more senior judge — like Beryl Howell, who’s overseeing GJ investigation, or Cecilia Altonaga, CJ in SDFL — is ALREADY reviewing/reviewed the A-C materials.”
At this point, I wonder if it is possible to work for Trump and not commit crimes. It’s like on day one you get hired only to be given a a choice, get rid of the dead body or dispose of the bales of cocaine. Once you make that choice, the rest of your days are stuck cleaning up Trump’s crimes and further implicating yourself.
This reminds me of the book Killing Pablo where the Columbian government and various US agencies went after cocaine smuggler Pablo Escobar. Escobar started to run out of competent professionals to do his bidding and had to use the bottom of the barrel for professional services. It was only time before Escobar’s empire crumbled.
The same will happen to Trump.
Whilst your thought bubble might seem fantabulous to even yourself it probably isn’t far off the truth. Don’t forget that The Donald was aided and abetted by Roy Cohn for decades and all his ‘organisations’ have operated evry much in a quasi-mafia type manner.
So you get people like Allen Weisselberg running the books who is a co-criminal. He can’t spill the beans lest The Donald tell the authorities about good ol’ Allen’s misdeeds.
Until the Feds come in and charge him.
Gonzales has now filed an “Unopposed Motion to Exceed Page Length” requesting leave to file a brief of up to 40 pages in response to Trump’s dream team’s motion and supplemental motion (which together were about 31 pages). Lest anyone think that he and Bratt are not going to respond in detail to Corcoran et al.’s misrepresentations and flat out wrong legal analysis. Should be interesting.
Does anyone know whether Gonzales was ever Cannon’s supervisor when they both worked in the U.S Attorney’s Office for the Southern District of Florida and Gonzales was the lead deputy?
Wow, what an analysis! Thanks and respect.