Christina Bobb Claimed No Copies of the Stolen Classified Documents Had Been Made

I want to look more closely at the actions of Evan Corcoran (described as “counsel” in last night’s filing before Aileen Cannon) and Christina Bobb (described as “Custodian of Records”) surrounding the June 3 meeting a Mar-a-Lago.

DOJ’s filing describes how DOJ served a subpoena on Trump on May 11, with a return date of May 24.

Through its investigation, the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022. See Attachment C; see also D.E. 1 at 5. The subpoena was directed to the custodian of records for the Office of Donald J. Trump, and it requested “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings [list of classification markings].” Attachment C. DOJ also sent the former President’s counsel a letter that suggested they could comply by “providing any responsive documents to the FBI at the place of their location” and by providing from the custodian a “sworn certification that the documents represent all responsive records.” See Attachment D. The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect. Id.

The subpoena asked for all documents with classification marks, and specified a bunch of classification marks, which suggests what DOJ thought they were looking for:

Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings, including but not limited to the following: Top Secret, Secret, Confidential, Top Secret/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS-O/NOFORN/ORCON, Top Secret/HCS–O/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TK/NOFORN, 1- Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS0/NF/OC, TS/HCS-0/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TK/NF, S/NF, S/FRD, S/NATO, S/SI, C, and C/NF.

Here’s what some of those markings mean:

  • HSC-P refers to a product of Human Intelligence (HUMINT).
  • HSC-O refers to an operation being conducted with HUMINT.
  • TK refers to satellite collection.
  • SI-G refers to intercepts from Signals Intelligence (SIGINT).
  • FRD refers to former Restricted Data — that is, materials formerly restricted under the Atomic Energy Act. Bill Leonard, the former head of ISOO, explains that this material is still covered by AEA, meaning the President cannot unilaterally declassify it.

FRD is still covered by the Atomic Energy Act.    It primarily refers to the military utilization of nuclear weapons and can be handled as classified NSI but it is not NSI and is still covered by the Atomic Energy Act, thus even the President cannot unilaterally declassify.

At first, Trump stalled, asking for a delay, which DOJ initially refused, then granted. Then, on the evening of June 2, Corcoran contacted DOJ and told them to show up the next day.

The subpoena’s return date was May 24, 2022. Counsel sought an extension for complying. After initially denying the request, the government offered counsel an extension for complying with the subpoena until June 7, 2022. Counsel for the former President contacted DOJ on the evening of June 2, 2022, and requested that FBI agents meet him the following day to pick up responsive documents.

As DOJ describes the June 3 meeting that Trump’s side has been leaking about relentlessly, Jay Bratt and three FBI agents showed up and met with Evan Corcoran (“counsel”) and Bobb (“custodian of records”). Notably, DOJ makes no mention of Trump’s presence. That doesn’t mean Trump wasn’t present. But DOJ is certainly not repeating the tale that Trump waltzed in just before he left for Bedminster to meet his Saudi buddies and told DOJ they could have whatever they wanted.

Corcoran handed the documents over in a folder appropriate to the treatment of classified documents and — as DOJ notes — made no claim about Executive Privilege (even though less than a month earlier he had made expansive Executive Privilege claims in communications with Acting Archivist Debra Steidel Wall).

On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.

Then, Bobb handed over a declaration (I’ll return to the content below).

The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge. See Attachment E. 4

After Bobb handed over the declaration based on “information that has been provided to me,” Corcoran separately made a representation to FBI agents, a representation that would be subject to false statements charges under 18 USC 1001 if it were false.

After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched. As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room.

According to the DOJ, Bratt and the three FBI agents “were permitted” to visit the storage room. They emphasize here (as the Trump filing described an FBI agent doing at the time) that the search of the storage room was consensual. But they were not permitted to open any box.

See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.

As DOJ explains, after the meeting, they developed evidence (we know from coverage that this included surveillance video showing boxes being moved in and out of the storage room, as well as witness testimony describing that Trump stored secret materials in his office) that there was more.

[T]he government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.

DOJ describes how the August 8 search proved that their video evidence and witness testimony proved to be correct: There were more classified documents in the storage room, and there were classified documents stored in a place other than the storage room: Trump’s office.

Notwithstanding counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room, classified documents were found in both the Storage Room and in the former President’s office. Moreover, the search cast serious doubt on the claim in the certification (and now in the Motion) that there had been “a diligent search” for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings. All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.

Given the extent of their representations, it is possible that neither Bobb nor Corcoran knowingly lied to the FBI, exposing themselves to false statements charges.

If no one told Corcoran about the stuff in Trump’s office and if all other classified documents had been moved out of the storage room, unbeknownst to Corcoran, he may have believed the following claims to be true:

  • All the records that had come from the White House were stored in one location—a storage room at the Premises
  • The boxes of records in the Storage Room were “the remaining repository” of records from the White House
  • There were no other records stored in any private office space or other location at the Premises
  • All available boxes were searched

It’s certainly possible that Corcoran was a victim of a ruse by his client and his client’s flunkies. After all, he had only recently joined Trump’s defense team (though had been representing Bannon for months). He was not a Mar-a-Lago insider.

DOJ, from their surveillance video, would likely know if Corcoran knew his claims to be true or not. But, given that Corcoran refused to let the FBI open any boxes, DOJ may have reason to believe he knew some of his claims were not true.

Similarly, if Corcoran had done the search on his own, with no involvement from “Custodian of Records Christina Bobb,” it’s possible she believed the following to be true:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

According to reports, she didn’t do the search. She had every reason to believe that Corcoran — who after all is a real lawyer — had done a diligent search.

I mean, it’s possible that Custodian of Records Bobb — who unlike Corcoran has been part of Trump’s crime spree for a while — also wasn’t a part or aware of the effort to remove documents from the storage room before Corcoran did the search.

It’s the following representation that Bobb seemingly offered up unbidden that makes my spidey senses tingle (particularly given the odd metadata on the copy of the Mark Meadows declassification memo I raised in this post).

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

Maybe DOJ asked Bobb to make such representations — but it’s not in the backup DOJ included with its filing. The letter Bratt sent Corcoran along with the subpoena said that if Trump chose to simply drop off the remaining classified documents at the local FBI officer,

The custodian would also provide a sworn certification that the documents represent all responsive records.

Trump’s people decided to type up a declaration even in spite of handing documents off personally, and they seem to have included an odd representation about making copies, unbidden.

Particularly given that weird metadata on the John Solomon document, showing creation of a document on September 27, 2021 and the apparent reproduction of that document on June 23, 2022, after the June 3 meeting, after Trump made Solomon a NARA representative, and days after DOJ subpoenaed the surveillance footage.

Update: Added clarifying language about FRD from Bill Leonard.

167 replies
  1. SMF88011 says:

    As someone that has held a security clearance for over 3 decades, it boggles my mind to think about the amount of damage these documents could have done to our country. If I had done even a tenth of what Trump did with stealing documents, I would be at Ft. Leavenworth already. I know what type of things are under those classification cover sheets and it can be quite scary.

    I hope that the “Trump 2024” signs/stickers/flags stand for “Trump’s Reality – Under Multiple Prison sentences – 20 to 24 years in jail.

    • John B. says:

      “…damage these documents could have done…”? How do we know that damage hasn’t already been done either from these documents, copies that have been made or documents we are not aware are missing at this time? There is so much we do not know but we do have a pretty good idea about TFG and what motivates him. The scale of this is mind numbing and my guess is not all the documents have not been recovered and during his presidency* he likely traded in secrets to our enemies from top secret and classified info. I am especially remembering the photo of him and the tow Russians in the oval office after Comey was fired and the photo of him at the summit with Putin where he looks like he is being led on a leash by a very confident Putin…

    • lemoco says:

      I’ve read a number of opinion pieces soft selling Trump’s motivation by suggesting he retained these documents to use as party favors and show-and-tell, in service of ego. While I don’t doubt there is a kernel of truth in there somewhere, because everything Trump does is in service to his ego, I also think he would absolutely sell top secret information to the highest bidder. The intelligence impact assessment should prove interesting.

      • SMF88011 says:

        As someone that has held documents that had this level of classification, I am terrified about what that impact assessment will say. I wouldn’t be surprised that there are multiple copies of it – one that they release to the public and another with even greater detail of how bad it was. I have seen reports released with it saying it was something minor and then the classified version quite damning at a high level.

  2. Former AFPD says:

    The DOJ filing certainly seems to suggest that attorneys Bobb and Corcoran are potential witnesses and targets of this investigation. As I mentioned in another thread, this situation usually inspires a prosecution motion to disqualify conflicted counsel or a hearing into potential conflicts of interest. For non-lawyers, it is a conflict of interest to represent a client where the attorney is also a witness or target in the case. There is a whole procedural litigation process to sort out conflicts. We will see if that happens here.

    • emptywheel says:

      This filing may have been meant to push that. But can they file before they actually bring charges, in any case?

      • Former AFPD says:

        A client is entitled to unconflicted counsel at every stage of the proceedings. In fact, potentially conflicted counsel have a duty to notify a court that such a conflict exists once they become aware of it. Has there been full disclosure of the conflict to the client and a waiver by the client? Would an attorney want to rely on disclosure and waiver with a client who has proven particularly litigious? In any event, once the potential for conflict has arisen, the motion to disqualify can be filed. The district court is on notice of the problem due to the content of the pleadings. She may decide to take this up on her own. We will see.

      • Former AFPD says:

        A client is entitled to an unconflicted lawyer at every stage of the litigation. In fact, a lawyer should notify a court as soon as they realize that there is a potential conflict of interest in a case. The lawyer who may also be a witness or target in pending litigation represents such a potential conflict of interest. Has there been full disclosure to the client and a waiver of conflict of interest? Would a lawyer want to rely on such a waiver with a particularly litigious client? A motion to disqualify based on a conflict of interest can be filed as soon as the potential for conflicted interests has appeared. That certainly seems to be the case here. The court could also take up the issue on her own. For the non-lawyers, a court can disqualify an attorney from representing a client where the lawyer is also a witness or target in the pending litigation. It’s commonly called the lawyer/witness conflict.

        • Yorkville Kangaroo says:

          Could explain the presence of Hice now. They both may be considered suspects at least for now.

          • Former AFPD says:

            A particularly aggressive motion to disqualify might argue that, to the extent newly added counsel has discussed the information contained in the declaration and letters about the document production with original counsel, that newly added counsel has now become a witness. That’s the purpose of a conflict hearing – to determine the nature and depth of any conflicts of interest. In this situation, a claim of attorney-client privilege might be asserted. However, the crime fraud exception might apply. This would be a very interesting conflict/disqualification hearing, perhaps partly conducted in camera – confidentially.

            • bmaz says:

              Would you caption that a motion to DQ, or as a motion for determination of counsel? The ask is the same, but a little easier for the court to digest.

              • Former AFPD says:

                The caption of a disqualification/conflict motion depends, I suppose, on what the DOJ intends to accomplish with such litigation. Is a DOJ attorney ready to declare under penalty of perjury that specified attorneys are potential witnesses or targets of an investigation? That would tip the investigative hand. Or, does the DOJ want to make an immediate record of any potential or actual conflicts as early as possible in the litigation in order to head off later delay, mandamus review, or possible appellate points? These could all be considerations. The most aggressive caption would be Motion to Disqualify Attorneys ____ and _____. Or, the pleading could be captioned Motion for Inquiry into Potential and Actual Conflicts of Interest. These decisions ultimately belong to the district court. We will see if any such motion is filed.

        • Bobster33 says:

          Your answer suggests that Trump may be hiring lawyers just to make a mess and cause delays. Lawyer 1 gets hired, gets conflicted and then sidelined. Lawyer 2 gets hired, has one month to prepare for case, gets conflicted and then sidelined, Lawyer 3 gets hired, has one month to prepare, etc.

          The sole purpose is to drag out the process using motions, changes of lawyers, etc. And for the most part, Trump’s strategy is working.

          • earlofhuntingdon says:

            Trump has a history of doing that. Good, expensive lawyers he brings in typically only when he is personally at risk and is finally forced to engage in the legal process, instead of manipulating it. The Kise hiring may be an example of that.

            • bmaz says:

              Heh, Kise is not exactly Roy Black. And Roy lives in FL. But Roy charges real money. Upfront. That is the rub between Trump and real criminal defense lawyers.

              • earlofhuntingdon says:

                It still amazes me how any lawyer would work for Trump without a sizeable upfront payment, commensurate with the work. The only thing larger than his girth is the list of unpaid bills he’s left in his wake. Even then, Trump can usually call on some rich rube, or a bunch of poor ones, to pay his bills. (But no longer, apparently, the RNC.)

              • Former AFPD says:

                Indeed, bmaz. Real criminal defense lawyers do not want to become embroiled in their client’s case(s), either.

        • Ruthie says:

          Wouldn’t a non-compromised lawyer *want* to withdraw in these circumstances? Doesn’t Corcoran’s failure to do so indicate something hinky? He must be as aware of the conflict of interest as the DOJ and/or judge, and that his client is implicating him in crimes.

    • Arteberry says:

      A few days ago I commented here that I was surprised to see Corcoran’s name on the mutant “pleading” or “motion” and on its “supplement.” His role in the June certification of the required production of documents was enough, by itself, to make me think he would know better than to get into the sand trap of appearing as counsel of record on any matter concerning the documents. I also wondered then, and am wondering now, about the fact that he is a partner in the medium-sized (40 to 50 lawyers) Silverman firm in Baltimore. I have a hard time believing his partners would buy in to the risk here. It may be technically possible for the client to waive the conflict (and for the firm to just ride it out until the government forces the issue) but that gives a whole new level to the term, “dicey.” Is the Silverman firm taking the philosophy of “there’s no such thing as bad publicity” a little too far.? Certainly the Silverman partners now have to be thinking about—even more than every other lawyer thinks about with Trump—the prospects of being paid. Accordingly, I will be curious to see if Corcoran’s name will still be on the reply brief coming in later today.

      If Corcoran (or Bobb) is going to claim to be an innocent dupe in the scam, non-production of documents, one angle he might take is that he was legally forced to rely on Trump’s representations. The story would be that neither Corcoran, nor Bobb, nor really anyone else at MAL, could exercise any due diligence, because they lack the necessary security clearance to sort through boxes where they would be exposed to highly classified documents. [These days Trump himself lacks the necessary clearances…but his personal performance of the search could be excused on the basis that he would be looking at things he had already seen when he actually had the authority to see them.]. This also might give Corcoran, et al, a strong incentive to say they were never advised about a purported “declassification.”

      • Coffae says:

        “…but his personal performance of the search could be excused on the basis that he would be looking at things he had already seen when he actually had the authority to see them.”
        Is it plausible that a previously eligible person who was allowed to keep a top secret document can use this argument once they lose clearance? Wouldn’t anyone who had some sort of access to any TS documents make that same argument?

        • Arteberry says:

          The issue arises from the service on Trump of the grand jury subpoena for documents. Somebody has to do the “diligent search” for classified documents. The question is who. The true answer is that nobody in Trumpland is authorized to do. Trump needed to bring in someone with a top security clearance to do the search.

          It’s certainly possible that Corcoran or other people working for Trump, in addition to Trump himself, had previously seen the still-retained classified material. Either way, a false statement has been made to the government and somebody has to take the fall. I’m just interested in the alibi Corcoran or others might use. Now, if there’s evidence Corcoran knew the classified stuff was still there, he’s in trouble. If he saw the stuff he might be in more trouble. But if there is no clear evidence he knew, then he might try to cement his alibi by suggesting he purposely did not participate in the search, for security clearance reasons. Interestingly, in the news today we see that Trump attorney Alina Habba, in connection with the subpoena in the New York case, acknowledged personally searching Trump’s MAL office for responsive documents. It is correctly pointed out that this was a security breach, given the other documents in that office. It remains to be seen if other Trump lawyers try to take the line that they were seeking to avoid the same predicament.

  3. PeterS says:

    I find something else odd about the Bobb declaration. As noted,
    it says “based upon the information that has been provided to me”. Now if for some reason the declaration wasn’t going to be signed by someone who participated in the necessary searches then surely it should have indicated, at least generally, the source of the provided information. Or is there some legal convention that such declarations mean information provided by the relevant client?

    • Tom-1812 says:

      Or was Bobb thinking, “Well, the paper only asks me to sign ‘based upon the information that has been provided to me’; it doesn’t ask me to sign based upon other facts I know to be true, such as my own personal observations, so on that narrow basis I can sign it.”

    • YinzerInExile says:

      I’m not sure if this answers your question (or the one from jeco immediately below), but in other legal contexts where I have worked with the phrase, “to the best of my knowledge” (in my case, in crafting representations and warranties given in connection with either mergers and acquisitions or sales of securities), the addition of “the best of” carries with it an affirmative duty of inquiry. In these corporate contexts, we always believed that a statement “to my knowledge” was just a statement of what was in the individual’s head, whereas a statement “to the best of my knowledge” meant that they actually had to go out and ask people who could inform them (think of a CEO giving a statement about a financial matter, and having to go ask the CFO in order to inform themselves). I suspect that bmaz may weigh in on all of this in the criminal context. But I would think that, “based upon information that has been provided to me” lines up reasonably well with, “to the best of my knowledge”, and implies that Bobb was not just saying what was in her head, but had actually either asked or been told that the statements she was making were true.

      There’s a separate issue, of course, as to whether it would have been reasonable for her to rely upon any such statements . . . .

      • PeterS says:

        Thanks. I just find a “someone told me” declaration weird, kinda like a hearsay declaration. Hopefully a legal expert will deweirdify it for me.

      • Sandor says:

        In the law of evidence, the phrase [upon] “information and belief” identifies a statement that is made, not from firsthand knowledge, but “based on secondhand information that the declarant believes is true”.

          • bjet says:

            Reminds me of a certain so-called professional journalist who has spent years making molly-coddling ‘critical’ factual statements, above the fold, about what Trump “believes” and “feels.” God forbid we have a quarter of that time above the fold to hash out how to throw the IRS & DOJ enough pin money to give all the sheltered Donnies & Bobbettes clear & present reasonable belief they won’t get away with it, before they do it. Before they’re in their 70s.

        • earlofhuntingdon says:

          The reasonableness of relying on someone else’s information depends on their credibility and other facts and circumstances, such as how the information is to be used.

          It might be reasonable to rely on information from a senior lawyer, about a matter within that lawyer’s recognized expertise. It might be reasonable to rely on information from a client – without doing any independent investigation – if that client had a reputation for truth-telling. Trump’s reputation, on the other hand, is the polar opposite.

          For me, that would make it inherently unreasonable to rely on any statement by Trump, especially if it were not in writing and under oath. (That’s one reason lawyers typically rely on affidavits, written and under oath, when submitting claims to a court or the government. When a factual claim is subject to perjury or a false statement charge, it ordinarily makes it more reasonable to rely on it.)

          • Operandi says:

            This was one of the points hammered in the sanctions proceedings case against Team Kraken in Michigan. That (at least in the context of court filings), the attorneys had affirmative duties to investigate the truth of the information and affidavits they were passing along. In that instance, they were filing “evidence” that didn’t even pass a cursory sniff test.

            I imagine there must be some standards around subpoenas of where the buck stops, since lawyers routinely rely on clients/custodians to fulfill production.

          • vvv says:

            In the civil context, verified pleadings make proceeding on them much easier and more certain, and serve to protect the atty submitting same on behalf of the verifying client.

            “Did I do due diligence? Well, judge, my client swore it’s the truth on penalty of perjury, which I duly and diligently explained to them.”

            I’ve never seen that not good enough, but again, that’s in a civil context.

      • Bruce Olsen says:

        In the commercial context, as a product manager I reviewed a variety of partner/alliance/reseller agreements (before our actual legal team was involved) and I’d always redline “best efforts.”

        • Paulka says:

          Take it for what it is worth, but Bobb told Fox News on 8/12 that Trump’s legal team did a search/review of the records. She was careful to say she did not speak to Trump vis a vis nuclear documents, specifically.

  4. jeco says:

    Can both Boob and Cork use the Sgt Schultz defense?

    No matter how you slice it there were material misrepresentations made to the FBI about the status of MAL docs. Hard to miss that over 2/3 of docs were still at MAL.

    The hip bone’s connected to the thigh bone.

    Both will be gone from the dream team and be fighting to avoid prison. Team trump will be looking to hire more legal cannon fodder

      • ApacheTrout says:

        May I suggest ‘”Booby, or Bobo”:

        “The English name “booby” was possibly based on the Spanish slang term bobo, meaning “stupid”,[6] as these tame birds had a habit of landing on board sailing ships, where they were easily captured and eaten. Owing to this, boobies are often mentioned as having been caught and eaten by shipwrecked sailors, notably William Bligh of the Bounty and his adherents during their famous voyage after being set adrift by Fletcher Christian and his followers.

        • bmaz says:

          No. Please. Let’s not do that stupid bullshit. It makes this forum look stupid, the entire discussion stupid and searchability for the person and discussion here dumb beyond belief. Let us NOT do that.

          • ApacheTrout says:

            The comment was mostly tongue in cheek to point out a reasonable and seemingly fair basis based on the avian world, but point taken all the same.

          • DaveINChicago says:

            I am not well versed in the domain of law and thus the details in this thread but as a layperson who is politically active am finding the legal analyses (and speculation) really fascinating, enlightening. I presume the odd slightly snarky name-morphing is not a big deal, doesn’t change my interest in the commenters’ thoughts, but I really like the idea that this interesting back-and-forth is going to keep that stuff at a minimum. Speaking as an outsider/newbie, IMO it does really affect the tone of the discussion, which is being held on an impressively substantive level. Too many sites/thread already devolve into that stuff, and it’s beyond refreshing to find one that seeming does not. Im glad I found this site, and will share it with others. Thanks, folks, and zero offense to any who have had a little snarky fun, zero..

      • Purple Martin says:

        Yes. I observe no one seems inclined to make the obvious jump of replacing the 3rd letter of “Cork” as they replaced the 3rd letter of “Bobb,” to create a similar anatomical insult.

      • LizzyMom says:

        FWIW, if you look it up in the Oxford English Dictionary, in the singular (North American) definition is “a stupid or foolish person”, which is how I interpreted this play on her name.

        Had it been pluralized, I would agree with you it would be sexist, but it wasn’t.

        (Sorry, linguist speaking here…)

        But I also understand you are discouraging any nicknaming here and that’s okay.

      • rip says:

        Another complaint about substituting colorful terms such as “The Orange Anus” for the real thing is that doing searches in this (and other) web sites must use at least 100 terms to find all references to the “pvssy gr@bber”.

  5. WilliamOckham says:

    An obstruction prosecution for Trump and his minions would likely obviate the need for CIPA hearings, right?

    • emptywheel says:

      Not entirely. It would come up at sentencing (for example, DOJ avoided SOME CIPA litigation when Hal Martin pled out, but he still got CIPA coverage for sentencing).

      Unless DOJ chose not to ask for enhancements tied to the classification.

      • WilliamOckham says:

        I’m thinking the quickest way to a conviction (assuming the evidence is there) is via 2071 and 1519. Adding 793(e) complicates the prosecution and provides far too many opportunities for the defense to delay and obfuscate.

    • SMF88011 says:

      (//GBR S) would have been marked on the document itself, not on the cover sheet.

      They could also be something like (TS//REL to USA, AUS, CAN, GBR)

      You are also required to identify the type of info in each document’s paragraph, diagrams, etc. See below. The #s are representative of paragraphs, letters info in the paragraph, subpoints are subpoints in the paragraph related to the letter info.

      1. (U) Purpose
      a. (TS) Info
      2. (U) Background
      a. (TS) Point A
      b. (S//NF) Point B
      (S//NF) subpoint 1
      (S) subpoint 2
      (U) subpoint 3
      3 (TS) Recommendation

  6. Sabine Farm says:

    Thank you Professor Wheeler for all that you have provided on the DOJ’s 40 page filing in response to Trump’s motion/ action(?) for appoint ment of a Special Master. Trump’s attorneys and their client have violated the two rules of criminal law defense cited by Evan Thomas in his biography of the nonpareil trial lawyer Edward Bennett Williams , “ The Man to See”: 1) Nothing is usually a good thing to do and always to say, 2) Lawyers don’t get indicted, clients do Your immediate , practical analysis of this major misstep by Team Trump ,in my view, puts your lawyering in the same league as Williams. Who knew that a PhD in Comp. Lit. Was better than a law degree. My sincere thanks.

  7. Badger Robert says:

    1. If the representations in the declarations were inaccurate, if not knowingly false, then the representation about no copies having been made is most likely incorrect also.
    2. With respect to NDI and classified material, a person designated as custodian of records, who knew that such records were present, seems to have a higher duty than to rely on information by provided by others. And regardless of the what information she had, the form of the custodian’s statement is false, and obstructive. Mere negligence doesn’t seem to be an adequate excuse, in my view.

  8. Badger Robert says:

    What about the FBI’s own privilege review? What did they identify as possibly attorney created material?

    • earlofhuntingdon says:

      We won’t know that unless Trump spills the beans, and any “disclosure” by him would be unreliable. If the material were subject to a crime-fraud exception, we wouldn’t learn about it unless the DoJ used it at trial. Regardless, the other material is more likely to be useful to the DoJ.

    • Operandi says:

      Unless it leaked in a news story I missed, the FBI has been pretty quiet on the nature of the documents that would make them a/c privileged. That said, their filing last night repeated several times that the volume of the documents segregated by the taint team is “small”. And accordingly, any review should be narrowly time-boxed.

      That said, eagle-eyed Marcy noted in her thread last night that one line of the filing seems to tip that they believe a/c privilege only adheres to communications with Trump’s *personal* (i.e. not White House) attorneys.

      p30: “Unlike possible assertions of attorney-client privilege by the former President with respect to his personal counsel,”

  9. NeoGeoHa says:

    Ahhh the old “to the best of my knowledge” defense. So if the folks that didn’t search the boxes looking for the requested docs themselves, I am guessing the DOJ will have questions, not the least of which are “did you examine all the boxes yourself?”, “If you did not examine all the boxes yourself, who told you there were none of the requested documents still at MAL?” That will lead to several other questions.

    MAL is not GM or IBM. There aren’t 10,000 office workers milling about, most of whom have no idea what the others are doing. If a lot of this stuff was found in FPOTUS’s office and safe, you better believe he knew it was there. Additionally, no one wanted to keep this stuff EXCEPT FPOTUS, so to think he wasn’t aware exactly what was being stored there is borderline ludicrous.

    There are a lot of bridges to cross and much more to learn, but this is the clearest case where his fingerprints (figuratively and literally) are all over this crime and not a lot of his usual insular “I had no idea people were doing that” or “Who’s that? I barely knew them” defenses. As evidenced by his escalating rhetoric about societal violence should he be indicted.

    • Fraud Guy says:

      And of course the “well, if you were not going through the documents, who was, and did they have clearance?” [likely not]

      • Gatorbaiter says:

        Kash Patel and Jon Solomon are probably trying to sand the prints off their fingers as we speak. Lol

        • LizzyMom says:

          With their background in government positions, it’s almost assured that their prints have been on file for quite some time as part of an application process.

  10. BobCon says:

    “No copy, written notation, or reproduction of any kind was retained as to any responsive document.”

    Are they trying to get cute by using the word “retained” which wouldn’t address whether copies were made but then transmitted to somebody else?

    • Peterr says:

      No. That’s boilerplate language, saying “we didn’t gather all these docs, make copies for ourselves, and then give you the originals that the subpoena asked for.”

      • BobCon says:

        What got me wondering was the followup to that in MW’s post. If DOJ didn’t ask, why would Trump’s side offer it?

        Would it cover a different scenario where copies had been made well before the government pressure to collect and return documents had increased?

      • L. Eslinger says:

        These phrasing details are interesting and educational for me, since my reading of the sentence that BobCon quoted would lead me to ask the same question. Physics and engineering did not prepare me for the law, which is one reason for my visiting blogs such as emptywheel.

        • rdpayne says:

          Yeah, I made my living exploiting physics and math, the legal and political aspects of my job I never quite got a grip on, especially the political.

      • Edouard says:

        Is it “boilerplate language,” though? I did a search and can’t find that particular combination of words anywhere but here. If this were the product of a good lawyer, I expect they would have plenty of other, similar filings to copy the boilerplate from, but this looks unique.

        Maybe I am wrong, though, and this is a common construction. If so, happy to be enlightened.

  11. JVO says:

    This reads like a bad episode of keystone cops! They are all going to say they didn’t do anything wrong and it was the other guy. Hopefully, all of that leads only to one meatbag!

  12. Peterr says:

    From the beginning of the “Factual Background” section of the DOJ filing:

    Mindful that the Court ruling on the present motion is not the same Court that authorized the search warrant from which this civil action results, the government provides below a detailed recitation of the relevant facts, many of which are provided to correct the incomplete and inaccurate narrative set forth in Plaintiff’s filings.

    This is one masterful opening sentence, as they take on various unstated problems with the Trump filing . . .

    (1) It opens by reminding everyone that a different judge authorized this search
    (2) The government’s explanations that follow are detailed (in contrast to the Trump filing).
    (3) They will recount relevant facts (in contrast to the irrelevant wishful thinking in the Trump filing).
    (4) They will fill in the gaps in the Trump filing’s incomplete narrative
    (5) They will correct the errors in the Trump filing.

    As I said, this is a masterful opening.

    • Drew says:

      And it’s very chill, not outraged in tone, totally respectful of the judge and its shade against opposing counsel is as understated as it is clear and devastating.

  13. Peterr says:

    I love footnotes.

    3 Here and in other parts of this public filing, the government refers to evidence developed in its investigation in order to inform the Court of the relevant facts. Of necessity, however, the government cannot publicly describe the sources of its evidence, particularly while the investigation remains ongoing. As Judge Reinhart concluded, revealing this type of information could “impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation.” MJ Docket D.E. 80 at 9

    A friendly reminder that this is part of an ongoing investigation, and that the judge granting the search warrant has already agreed that this information needs to be kept out of public view. Again, the DOJ is gently reminding this judge that another court has already looked at this.

    • NeoGeoHa says:

      Judge’s first question to FPOTUS’s lead counsel should be “Why did you file this motion in my court rather than the court already handing this matter?” Then, in lieu of a reasonable and valid answer, she should toss them out of her courtroom and remind them to follow the established process and norms of the legal system.

      • Yorkville Kangaroo says:

        A NORMAL judge would have asked that when it hit her bench. Unfortunately, Cannon is a political hack and accepted the Master motion.

  14. hcgorman says:

    As an attorney that has practiced law for almost 40 years I cannot imagine signing something like this statement without having done my own investigation. It just is not done.
    These attorneys will need their own paper trail to show their due diligence and just asking someone “anything else in there?” is not enough.
    Because I have a brief due in one of my own cases I have not had time to read the government’s response. Thank you Marcy for reading it for me (I will read it later!). A lot of time goes into reading and analyzing all of this- I hope everyone reading makes a donation to Marcy and her team today.

  15. Peterr says:

    Fun with searches . . .

    The word “Trump” appears 13 times, with “the former President Trump” as first reference, a second occurrence when it describes “former President Trump” returning the Fifteen Boxes, four references in the subpoena and Bobb’s certification letter to “Donald J. Trump” and “the Office of Donald J. Trump,” and two references to “then-President Trump” which come up in the context of the Michael Cohen case. The rest of the time his name is used are in case citations.

    Contrast that with the word “Nixon” which appears 20 times. This includes all mentions, including in case citations, URLs, and other references to outside documents. If I’m Trump, being paired with Nixon like this is not a good look, especially since Nixon gets mentioned by name more than Trump does.

    Outweighing all of that, though, is the phrase “former president” which occurs 83 times. The usage “a former president” shows up 11 times, always in the context of theoretical discussions of presidential powers for any former president. The more particular phrase “the former president” shows up 65 times.

    IOW, the DOJ is politely, persistently, and pointedly reminding Trump and everyone else that he lost in 2020. “You aren’t the president any more, so quit trying to act like you are.”

    *chef’s kiss*

  16. hammbro says:

    Dr. Wheeler, thanks again for your painstakingly, detailed work.

    We could try to play the board game CLUE, to try to predict just what was found, by whom, and where. Here is something I predict will be revealed in future DOJ legal filings. In that Leather Bound packet, located in the Former Guy’s personal office, were COPIES of previously turned over Top Secret, and Highly classified materials.

    • NeoGeoHa says:

      That tracks. All his favorite docs in one place with a gaudy presentation to make it even more amazing and impressive (sarcasm).

    • Operandi says:

      We saw the contents of the leatherbound box; that’s the photo DoJ included in the appendix that has now been plastered everywhere. Given everything still had their coversheets, I’m guessing they were originals.

  17. Yorkville Kangaroo says:

    I’m interested in Bobb’s use of the phrase, “on behalf of the Office of Donald J. Trump”.

    Is this standard vocabulary in such a document?

    It gives me pause to ask two questions:

    1) Isn’t she acting for DJT personally and, if not
    2) Who, exactly, is ‘the office’ of DJT?

    • Peterr says:

      The phrasing is standard for the professional work of a given party, as in the classic law office of Dewey, Cheatem, and Howe.

      The “office” in this context is not only Donald J. Trump, but also all the people who work with him to handle his private business affairs as secretaries, lawyers, coffee boys, box movers, and . . . Custodians of Records. This would be distinct from the Office of the CEO of the Trump Organization, or the head of any of his other corporate bodies.

      • Yorkkville Kangaroo says:

        Pretty much as I suspected.

        I guess the good part about that is it puts so many more people in the gun for the documents, i.e. Patel, et al.

        • Troutwaxer says:

          Agreed. My hope would be that the DOJ prosecutes everyone in this case who can be prosecuted. IMHO a lesson needs to be taught!

  18. Peterr says:

    If I am the Custodian of Records, I get nervous when I read passages like this on page 8:

    When producing the documents [at the June 3 meeting], neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.

    In hindsight, I wish the DOJ had a picture of this Redweld envelope, to contrast with the photos of ordinary bankers boxes and simple documents. The DOJ is saying “You clearly know how to handle classified materials, Ms. Bobb. It kind of makes us wonder why you as the Custodian of Records didn’t handle *all* the classified documents in your custody like this.”

    Moving on to page 10:

    Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.

    Yeah, that’s not good. Bobb may want to spend some time coming up with an explanation for this, because you know that someone will be asking her about it, right after she raises her right hand and swears to tell the truth, the whole truth, and nothing but the truth.

    Moving on . . .

    Right under this comes a heading that speaks of “Obstructive Conduct Occurred in Connection with the
    Response to the Subpoena”, followed by this opening sentence:

    Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3.

    The word “notwithstanding” is particularly ominous for Bobb, suggesting that maybe there is another good explanation she needs to work on.

    Consider this filing to be a kind of take-home test, Ms. Bobb, but don’t bother writing out your answers. The actual test itself will be an oral examination.

    • Yorkville Kangaroo says:

      Don’t forget this is only one photo.

      I’m pretty sure that the FBI will have photos of the Redweld and will make exactly the case you are making here.

      “The actual test itself will be an oral examination.”

      And, if you’re stupid enough not to roll on your former boss, a rectal one as well.

        • ScottMI says:

          “On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials.” (Page 8 of DOJ’s new filing)

          • Peterr says:

            Sorry. Good catch.

            Still, that was a meeting between primarily attorneys, and not a search led by the FBI. There’s no reason anyone would have been taking photos at that meeting.

            • bmaz says:

              That staged photo was stupid to be included in the filing. Who in the world is really running this effort at DOJ at this point?

              • cmarlowe says:

                Yes indeed that was political as all the interesting info in the document markings depicted in the photo were included in the text of the DOJ filing (see Marcy’s 2nd excerpt above). It will do nothing the to aid ultimate charging and conviction.

                And yet, while I think I understand bmaz’s objection and have no desire to argue with him, I still like it.

                • SMF88011 says:

                  If the documents were intermingled in that box, it applies. The photograph in question is actually how it says it should be done in the FBI manual.

                  • P J Evans says:

                    It’s one of their evidence photos. But it documents that in fact classified materials were there, and not stored properly.

                    • SMF88011 says:

                      I know that. What I am saying is that those documents were found inside the box with the other items such as magazine front pages.

                  • cmarlowe says:

                    The reason I said “I like it” is that it informs the polity in a manner that the text of the filing is not likely to achieve. bmaz would argue (I think) that disclosing this now is not what DOJ is supposed to be doing. I will not argue with that, but I would only say that the circumstances here are, like Trump’s J6 mob, “very special.”

                    • Yorkville Kangaroo says:

                      Again, I don’t intend to speak for bmaz but I would suspect his beef would be that releasing anything into the public domain from any case, let alone one as sensitive as this one, can only risk jeopardizing the successful conclusion of that case.

            • Operandi says:

              I don’t know why you think the subpoena retrieval was just an attorney chit-chat visit. We know the “attorney” mentioned there is Jay Bratt, Chief of Counterintelligence. The team wanted to see the storage room; they wanted to open the boxes. Their visit was very much intended to operate as search to the fullest extent possible given the circumstances (less than 24 hours notice, no warrant, technically “guests”). I strongly suspect there are a *ton* of photos from that visit.

    • L. Eslinger says:

      How much Christina Bobb knew, and when she knew it, will likely be explored and revealed. Given her willingness to sign the certification, she is either willfully complicit in obstruction or willfully ignorant of the responsibilities she shoulders (and may have not been involved in filling and taping the folder provided to Jay Bratt).

      I’m not qualified to assess the quality of her prior professional work, but Bobb has a rich and interesting resume. However, factors such as her presence in the “war room,” and her attacks on election integrity in Arizona, suggest to me that she is complicit and should retain a good attorney.

      • bmaz says:

        I don’t know what she did as a JAG, but other than that, Bobb does not have any “prior professional work” that I am aware of.

        • L. Eslinger says:

          She also reportedly was with Higgs, Fletcher, and Mack, before DHS, though I don’t know how long.

          If I were to consider her for hire I’d be concerned about the short stints and lack of depth of experience in any particular area. This sort of background is more consistent (in my corporation-land experience) with people who are being groomed to move up, not someone who is a reliable subject-matter expert. It may also be why she appears to be so willing to jump into deep water: it’s always worked out for her.

          • bmaz says:

            Thank you, I missed the Higgs, Fletcher, and Mack part! Where she was a “civil litigation attorney”, which means about nothing.

            Am still kind of laughing at her experience though.

            • L. Eslinger says:

              Her experience contains enough associations to open doors to relationships with people who aren’t concerned about depth. It’s rich and interesting, but more in a party conversation starter way, like “I once met and talked with Richard Feynman,” not “I wrote a paper with Richard Feynman.” If she isn’t charged and successfully prosecuted then she may go far within the GOP. Hmmm, maybe so even if she is.

      • earlofhuntingdon says:

        Every burnable barn needs a good lightning rod.

        But, yes, Bobb appears foolish, at best, to blithely assume someone more knowledgeable and powerful than she is has her back. Given the client and the circumstances, she is grossly negligent to not practice defensive lawyering, which creates a likelihood that she’s complicit.

        • bmaz says:

          It is the fucking DOJ. That is who she is fighting. I mean, come on. Anybody graduating from any law school, anywhere, ought understand the implications of what Bobb was doing. Simply insane.

          • earlofhuntingon says:

            Agree. But Trump usually hires based on looks and a compliant but ambitious attitude, somebody disposable that he can play, more than they can play him.

            Then there’s how pathetic even academically gifted lawyers can be when it comes to practicing the law. Kris Kobach comes to mind. And nobody’s suggesting Bobb graduated summa from Harvard or has a doctorate from Oxford.

            Bobb is apparently 36. If she isn’t more street-smart than this by now, she may never be. Just the sort Trump likes. But with an LL.M. from Georgetown and a record as a JAG for the Marine Corps, I don’t see the DoJ or anybody else cutting her a break. She’s a loyal member of the tribe.

    • Badger Robert says:

      This is an important point. Ms. Bobb’s statements were inaccurate and obstructive, and her prior actions support the inference that they were knowingly falsie.

    • Overshire says:

      DOJ is very careful to distinguish Bobb as “custodian” from Corcoran as “counsel” in this filing, and they specifically call out “counsel” on the handling of that package, which makes me wonder if Bobb ever saw or handled the documents with classification markings. If Corcoran was aware of the rules for properly handling such material, surely he’s also aware that even allowing her to assist with a search for it would likely be just as criminal as making spare copies for DJT Jr’s poker buddies. So maybe she never saw anything classified? That, and relying on Corcoran’s assurance that the statement she signed was true, might clear her of obstruction, but it seems almost certain that any testimony from her to that effect would be a major (bl)underbussing for him.
      I’m also still wondering if it was proper under the rules for a person with no security clearance to be the designated Custodian of classified documents in the first place, or does naming her as such simply add another crime to Trump’s list?

      • Yorkville Kangaroo says:

        Bobb is ‘Custodian of Documents’. There’s nothing mentioning classification. The minute she saw something that looked iffy she should have run straight to the DoJ.

        Hence, obstruction.

        If we’re really lucky we may also get a conspiracy thrown in but that’s harder to prove I believe and might come later.

  19. Frank Probst says:

    I’m going to wearily point out (my personal opinion) that if you’re going to make a false statements charge, you should have a recording of the conversation. I think the FBI’s policy of not recording conversations is going to bite them in the ass here, because the exact wording of what was said is critical. Yes, they may have memorialized the conversation in a memo (or 2 or 3 or 4), but if Corcoran and Bobb knew AT THE TIME that they were at risk for a false statements charge, they could just as easily have memorialized the conversation in their own memos in such a way that lets them thread the needle here.

    I hope like hell that they made an exception to the rule and have all of this on tape.

    • bmaz says:

      Note that has not been the hard policy of the Bureau since 2014. Wrote this back then. But that applies as to “in custody” interrogations, not more casual ones. Frankly, the “exceptions” to even the in custody ones seem to be greater than the actual instances of electronic, whether audio or video, ones.

    • Just Some Guy says:

      Yes, it’s mind-bogglingly stupid imho that the FBI doesn’t rely on electronic recordings for witness statements in this day and age. IANAL, obviously, but I have yet to read a convincing explanation as to why recording witnesses isn’t a SOP.

      • bmaz says:

        No, that is not mind boggling whatsoever. You want people to talk to you. If you say “Hi, I am the FBI, and we are recording this” do you think people are going to chat?

        • Just Some Guy says:

          So the FBI won’t do what pretty much every other law enforcement agency in the country does, and yet they’re supposed to be the “premier” agency? That makes sense.

          There are only about a zillion examples of law enforcement officers railroading witnesses into false incriminatory statements in the age before recording became commonplace, would you care for me to list more than just, say, the Central Park Five that comes immediately to mind?

          Come on.

          • earlofhuntingdon says:

            The FBI also has a long history of fucking up the introduction and use of new telecoms technology.

            • Just Some Guy says:

              Very true. I’m definitely not on the side of the FBI in this particular sidebar, but if anything, recording witness interviews would help them fuck up less.

              I mean, it’s not like we just saw an attorney charged with making false statements be acquitted by a jury earlier this year or anything.

    • cmarlowe says:

      >> I’m going to wearily point out (my personal opinion) that if you’re going to make a false statements charge, you should have a recording of the conversation.

      I think the false statements charge will be based on signed documents falsely asserting that all class. docs have been provided.

      • Frank Probst says:

        Bobb signed a statement written by another lawyer that said other unnamed people told her that that everything was in the envelope that was handed over. She doesn’t even say that she herself has ever been inside Mar-a-Lago. What’s her false statement?

  20. Onwatch says:

    “Director Haines has confirmed that the Intelligence Community and Department of Justice are assessing the damage caused by the improper storage of classified documents at Mar-a-Lago”, This seems to imply that NDI will be looking at the ‘sources and methods’ in these documents and aligning them with actual incidents in the past 6 years to see who or what was outed. This should be a big part of the actual indictment against Trump and others if not generally printed in the News media. Are there other clues to this information?

    • Peterr says:

      On the contrary, this may make it *harder* to prosecute, as prosecution would reveal to the world certain sources and methods.

      Imagine that Spy A was revealed in these docs, and word gets back to Country X that A is a Spy. They don’t get the whole doc, but they get the bottom line about Spy A, and Country X takes out Spy A. That’s all in the past.

      Now, if a present-day damage assessment reveals that Spy A was blown and it can be traced back to this doc, and the doc comes out in court filings, Country A may be able to determine how Spy A was recruited. They, in turn, will do their own damage assessment and perhaps notice that several other folks in their ranks have similar behavior patterns to those of Spy A. Thus the exposure of the method reveals additional sources: Spy B, Spy C, Spy D, and perhaps more, all of whom get swept up as a result.

      This kind of thing keeps Bratt and the lawyers of his division awake a night. How do we prosecute national security crimes without making things worse from a National Security perspective? (See Marcy’s coverage of Joshua Schulte for another example of this.)

      • Jon Foster says:

        Thank you for the response, I didn’t think that specific identity information would be published. As the the trial itself, wouldn’t Nat Security trials be somewhat secret?

        [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; you’ve used two different names today, and have three usernames total. Pick from “Jon Foster” or “Onwatch” and stick with that name here on forward. (Please do not use “Jon” as we have several folks with same first name.) Thanks. /~Rayne]

        • earlofhuntingdon says:

          No. Trials are public. There are procedures for handling classified information that would keep some of it from the public, while disclosing it to the defendant. That’s what bmaz is referring to.

          The art is in choosing which materials can be used without further compromising national security,and defending claims by Trump for more and more secret material he might claim to be exculpatory.

          • Peterr says:

            And that art is what I was talking about. For Bratt & Co, if you get it wrong, you may lose the case and you may get someone killed.

          • hcgorman says:

            It the guantanamo litigation the habeas hearings were only partially open because of the classified documents. Same with the appellate court. Then the court went into special closed door session. Those lower court hearings of course were not jury trials which by their nature have to be open but other hearings can be bifurcated with open and closed sessions.

        • TooLoose LeTruck says:

          “wouldn’t Nat Security trials be somewhat secret?”

          I’ve been wondering about this very point myself… depending on how serious/sensitive the material is, will we, the public, ever learn the full extent of what Trump’s done here and the damage it’s caused?

          And as an aside, what a monumental thread…

          I am astonished at the story we’re seeing played out in real time here.

  21. HEW says:

    It is is formally possible that Attorneys Corcoran and/or Bobb may have believed their written statement and additional representations to be true. But if I was a lawyer, and my client or his flunkies (likely acting on his orders) had engaged me to conduct a search for documents responsive to a subpoena and prepare submissions in response, and then lied to me or intentionally mislead me as to the location of said documents, leading me in turn to prepare and/or sign a false written statement, and/or to make false statements to the FBI in furtherance of their obstruction, I’d withdraw from representation immediately. And that would have been in early August when it became apparent that classified documents were found in boxes in the storage room that I had searched and in other locations on the premises.

    • rip says:

      Are you impugning ethics (moral or legal) to Corcoran and/or Bobb (are there legal ethics)?

      That might be considered slanderous in these circumstances.

    • Yorkville Kangaroo says:

      “I’d withdraw from representation immediately.”

      Yep. They could then at least put on a semblance of an argument that they were misled but let’s remember, these aren’t the sharpest tools in the (legal) shed.

  22. pseudonymous in nc says:

    I’m left wondering whether Bobb and Corcoran would be in slightly better legal shape — at least to claim ignorance or incompetence — had they handed over nothing at all on June 3. Somebody packed up that folder with responsive documents.

    (Also, that folder may explain the past tense of “where the documents had been stored” in Bratt’s letter about securing the storage room.)

    • OuthouseCounsel says:

      DOJ appears to be asserting explicit acts of obstruction by Corcoran during the June 3 visit – doesn’t fit well with an ignorance or incompetence claim. “As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit then storage room. See D.E.1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room giving no opportunity for the government to confirm that no documents with classification markings remained.” (p.9 of DOJ Response filed 8/30)

  23. Legonaut says:

    Semi-OT: I assume a sitting President has on-demand access to NDI information that precedes his term of office. If, for example, a President was reviewing the Iran nuclear deal, or the Saudi/Yemen conflict, or Russian Novochok field tests, etc. etc., they could request a focussed briefing from the IC.

    1) Would such pre-2016 information show up on a list of “known” missing documents from NARA?
    2) What would finding such information in the Trump stolen documents trove indicate?
    3) Who would know what to look for? Is there a list of such briefings provided to Trump (or his staffers) from the IC?

    In other words: how far does the exposure go?

    • Peterr says:

      Re #3: In the White House, the Office of the Staff Secretary is in charge of damn near everything that goes in and out of the Oval Office. They schedule briefings, and keep a log of every document that is presented to the President. Part of the OSS is the Office of Records Management, which tells you about the importance of this office when it comes to the president making decisions and those decisions being documented in one way or another.

      So when NARA gets the log from the Office of Records Management and the Office of the Staff Secretary, if the log does not match what has been accounted for, either delivered to the Archives or having returned to the agency/department/office that generated the document, that ought to set off a flag.

      And note that Trump’s last official Staff Secretary left in mid-December, with no one appointed to be the Acting Staff Secretary for the rest of Trump’s term.

      • Legonaut says:

        I was afraid of that. So, like everything else in Trump’s administration, there are gaps and opportunities for malfeasance. Certainly, NDI could be backtraced (h/t John LeCarre) from the individual agencies supplying it during the period(s) in question, but that’s a longer, more difficult process.

        Hopefully, that’s part of the damage assessment.

        I just have a vision of Trump, realizing he’s on his way out the door “for reals”, guts the OSS watchdog and goes shopping for things tasked by his potential customers (or actual master(s)). Paranoid? Yep — and we have reason to be.

        • Yorkville Kangaroo says:

          And, hence why, there being no Staff Secretary being in place for a period leading up to J6, is such a big actual deal.

  24. PeterS says:

    No need to read on if you’ve heard enough about the framing of the Bobb declaration, or if you are allergic to pedantry. I’ve read all the comments here and I still don’t understand quite what the declaration means, or was meant to mean.

    It says “Based upon the information that has been provided to me, I am authorized to certify” X, Y and Z. And it ends “I swear or affirm that the above statements are true and correct to the best of my knowledge”.

    Does this mean anything beyond “somebody (the president, the janitor, could be anyone) told me X, Y and Z. Yep, it’s all true as far as I know”?

    Was this declaration drafted in good faith? Why was it accepted by the DOJ as being dispositive of anything when it doesn’t say where the key information came from?

    P.S. perhaps paragraphs 1 and 2 of the declaration are supposed to imply something very relevant, but surely legal declarations should be as explicit as possible. 

  25. VinnieGambone says:

    Thank you all for keeping the conversation clear and to the point(s).
    I so hope they get him dead to rights.

  26. Alan Charbonneau says:

    “Trump’s people decided to type up a declaration even in spite of handing documents off personally, and they seem to have included an odd representation about making copies, unbidden.”

    Perhaps she thought that if she said there were no copies, they FBI wouldn’t have reason to come back? It’s ludicrous, but it’s the kind of thinking in which Trump’s attorneys seem to engage.

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