One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

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.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

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.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.

50 replies
  1. Rugger9 says:

    Regardless of the outcome there will be precedents set. I would agree on how the lists would be divided so long as no other factor intervenes (i.e. crime-fraud exception that might apply to Dersh and Bondi, since both played ball with Individual-1 in the past).

  2. Fraud Guy says:

    What if, with the sloppiness that is his wont, Individual 1 mixed his correspondance so that the White House Counsel and external attorneys were part of the same correspondance. Would that render it unprotected?

    • Peterr says:

      If you mean that Trump put letters to and from both sets of lawyers in the same box, no. That’s the whole reason for a filter team – to sort out which are clearly OK to seize under the warrant, and those that might be subject to some kind of protection, like attorney-client privilege. The first group goes straight to the investigators, and the second group gets a closer look to make a final determination.

      No prosecutor wants their case tossed because they relied on evidence that they should never have seen.

      • Fraud Guy says:

        I was more thinking letters from WHC to outside counsel, or communications that copied both. “Pat, Dersh, thanks for hashing out this idea where Pat blocks the release of documents while you publicly decry that without them as a smoking gun, they have to acquit me.”

        • Peterr says:

          By and large, if I include someone who is not my lawyer on my letters to my lawyers, those letters are no longer privileged.

      • punaise says:

        “No prosecutor wants their case tossed because they relied on evidence that they should never have seen.”

        AKA, the fruit of the tainted tree?

        • BirdGardener says:

          All this talk of tossing brought me an image of Trump, seated at a dining table, throwing his dinner at the wall and then yanking the tablecloth so everything else on the table smashes on the floor. Tainted fruit, salad, legal papers—all in a ketchup-covered jumble. Not unlike the legal arguments his lawyers filed, eh?

        • Rugger9 says:

          That’s apparently what pretrial motions are for, to determine what is in or out before starting with other steps. If there are gaping holes and you’re not Durham with a quota for prosecutions, it’s quite likely that no charges would be brought.

          The government has to use the forbidden fruit to taint the trial, but if it’s not used and there is enough evidence otherwise to get across the reasonable doubt bar, mere possession of the unused information doesn’t mean much. For example, the defense would object to use of non-approved material. Sussmann’s team did a lot of objections (not always) when DeFilippis, et al, flouted the evidence rules to try to impeach witnesses.

          What Individual-1 is trying to do here is to scare the DoJ to letting him off because of the threats of legal mayhem and delays plus a bit from Lindsey threatening violence from MAGA cultists. Garland is not likely to be bullied that way like Comey was by SDNY.

        • KP says:

          made me chuckle, and wonder just how far along lil miss priss lindsay is on transitioning. ‘many people are asking’ (sorry not sorry for the terrible snark, but i really don’t like ‘those’ people … and it does make me a bit angry with myself they’ve made me feel that way about them … fuck y’all haters, bigots, and hatriots doing you damnedest to destroy our Nation)

        • skua says:

          Are you implying “a Grindr man”?
          (Please interpret my question as serious and your answer as consequential.)

        • timbo says:

          No right-minded prosecutor…as opposed to those who likely have let Trump slide for decades with secret non-prosecution agreements, etc.

  3. earlofhuntingdon says:

    Trump and Kash Patel’s assertion that Trump had and used some previously unknown “insta-declassification” order has nothing to do with protecting US national security. It has even less to do with facilitating Trump working from home – something he doesn’t do at the office or at home. Its only purpose is to shield Trump and his associates from criminal liability. Democrats, Republicans, and the press should unite in rejecting that priority.

    • Peterr says:

      And whatever value that claim has, it is only a shield for a small amount of criminal liability.

      The whole “These items belong to the US Government, so you are in possession of stolen goods, and refusing to return them for more than a year is obstruction of justice” crime spree is outside that shield.

      But you be you, Kash.

  4. eskimo says:

    Jay Bratt’s direct involvement in the Naralago search could mean DOJ anticipated the 1st Cannon motion and response. The judge’s appointment occurred in the aftermath of J6 when DOJ tallied mega volumes of data as numerous legal challenges were still underway, or starting, interwoven with corrupt dissembling, like the Barrack case, or Firtash, going back to … forever. Bratt’s involvement could imply moreover that FBI may have anticipated any potential intermission ex parte that resulted in the incongruous 2nd Cannon round: a decoy smoke signal to the hilltops. Also too, those entities responsible for the wrongful possession know what FBI obtained and what FBI didn’t obtain, which means lives are at risk, or have already been lost. It’s an exceptionally dangerous assignment for LE, which must strike a procedural and informational balance that limits injury. But IC now has a ripened perspective on how these forces work in this context. It’s a quandary for the ages, that TFG just happens to vulgarize. It’s not really about him. The stakes seem more colored by a meta logic turf war among psychologically abusive mobsters than anything close to governance, or politics.

  5. Obansgirl says:

    This seems interesting and perhaps relevant in some way?

    Tony Ornato, the senior Secret Service official who served as a top aide in Donald Trump’s White House and faced scrutiny from the Jan. 6 select committee earlier this summer, announced his retirement Monday. Politico.

    • Raven Eye says:

      From that Daily Beast article: Todd was brutally roasted by Trevor Noah at the White House Correspondents’ Dinner. “How are you doing?” the Daily Show host asked Todd. “I’d ask a follow-up, but I know you don’t know what those are.”

    • P J Evans says:

      Can’t be done without tossing the Constitution and all the laws about elections, nationwide. It’s just him having Yet Another Tantrum.

    • Doctor My Eyes says:

      That demand from Trump was hilarious–it’s so direct that it’s bestial. But it’s not completely hilarious. I’m glad that the chances of one of his crazy schemes–like going to the Capitol and declaring martial law in front of a bunch of blood-thirsty believers–is less likely than it was a few months ago. Luckily, he’s a man of media action only.

      It was a close call, and we may be just starting on the road to discovering how deep the damage goes.

  6. BirdGardener says:

    Did you all see the following articles reporting that Trump has long bragged that he had intel on Macron’s ‘naughty’ sex life? The articles noted that Trump has always spread such rumors about people, making it…difficult to assess the likelihood of the listed document being such intel.

    Rayne, I don’t recognize any tracking information on those links, but I know nothing beyond your request that we delete everything after the question mark. There weren’t any question marks, fwiw.

    [You did fine with these URLs, no problem. Not every site embeds tracking in URLs. / ~Rayne]

    • Rugger9 says:

      It also beggars belief that none of Macron’s political adversaries (almost all with dedicated media outlets) were unable to unearth any kinkiness, even allowing for the more relaxed European attitude on sex. It’s BS fromIndividual-1 until proven otherwise.

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