No One Puts Roger Stone in a Box

As I noted in my first post on Wednesday’s DOJ response to Trump’s bid to get a Special Master, the filing provides more details about what the FBI found where.

I’ve updated my nifty graphic accordingly.

As a reminder, this graphic attempts to show with horizontal boxes where things were seized, and with vertical boxes, to show where they were cataloged. The original search inventory was catalogued on two different receipts: one — which I refer to as the CLASS receipt — on which all boxes described to contain documents marked as classified were listed, and another — which I refer to as the SSA receipt because the Supervisory Special Agent signed it — which Fox News subsequently reported was where all the potentially privileged materials were catalogued. Once emptywheel gets a graphics department, I’ll update this to reflect 22 boxes were found in the storage room.

While we can’t be entirely certain, it appears that further sorting of the items on the SSA receipt of potentially privileged items has identified two more boxes and 3 additional documents marked as classified.

Another thing I think we can say is that the FBI found Roger Stone in Trump’s desk drawer, not some dusty box stored in a converted bomb shelter.

According to the filing, FBI seized classified materials from just two rooms: Trump’s office and a storage closet.

[C]lassified documents were found in both the Storage Room and in the former President’s office.

The filing also makes clear that the TS/SCI documents in the picture included as an appendix came from a container seized from Trump’s office.

See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).

That helps us sort out the locations of the items seized in the search. The label “2A” in the picture confirms the container in question is item 2 on the inventory, the leatherbound box, which is further confirmed because that box was the only one in the entire inventory described to enclose TS/SCI documents. So that also makes clear (as I suspected) that the leatherbound box was seized in Trump’s office.

In part based on known FBI search processes and the role of proximity in this search protocol, we can surmise that the other items lacking an A-prefix were also seized in Trump’s office (items 1 through 7 here, plus item 4, described only as “documents,” on the SSA receipt that we know lists the items originally identified as potentially including privileged material). It’s hypothetically possible that some of those items were seized in Trump’s residence, but in part because the filter team only searched Trump’s office and in part because there’s not a second series of numbers from a room identified as “B,” I think it more likely this stuff was in Trump’s office.

Given that the only other location from which classified documents were seized was the storage room, it suggests all the A-prefix boxes were seized there. Again, that makes sense given what we know of FBI processes: they label a room with a letter, then label the items in that room by letter and number. There were at least 73 boxes or other items searched in that storage room.

So the first page of what I call the CLASS receipt, the items outlined in red would have been found in Trump’s office, and the items outlined in purple would have been found in the storage room. Everything else on the CLASS receipt, too, would have been seized from the storage room.

And the SSA receipt included some number of documents seized from Trump’s office that filter agents wanted to review some more, as well as five boxes that, for some reason, investigative agents stopped searching and brought to the filter team to handle.

If all that’s right, it means that DOJ seized 26 (out of at least 73) boxes from the storage room, and seven items total (one of which was described as “documents,” plural, on the SSA privileged receipt) from Trump’s office, for a total of 33.

I’ll come back to that number, 33.

From that inventory, according to DOJ’s filing, 13 boxes include documents marked as classified, and all told, the FBI collected over 100 documents marked classified on August 8.

Of the Seized Evidence, thirteen boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were seized.

Those over 100 break down this way, by location:

  • 76 documents found in boxes in the storage room
  • 3 documents (individually) found in desk drawer(s) in Trump’s office
  • At least 22 documents in the leatherbound box (I count around 23 from the picture)

It’s the number of total boxes with documents marked as classified, 13, that can’t be reliably broken down.

That’s because DOJ’s filing describes two more boxes that contain documents marked as classified, 13, than are reflected on the receipts, which show 11. They’ve found two more since August 8. The extra two boxes may come from one of two places: either boxes on the CLASS receipt that were not previously identified to include documents marked as classified but in which one or two classified documents were discovered on closer inspection, or boxes among the five originally on the SSA receipt that, after further filter review, were subsequently discovered to have classified documents.

It doesn’t really matter in the grand scheme of things — two boxes post-privilege review or two boxes in which there’s a stray classified document shorn of its cover sheet.

But it may reflect further processing of materials on the SSA receipt.

The government’s language on this is a bit confusing. In one place, the government seems to suggest the case agents have not reviewed anything in the containers originally designated to include potentially privileged documents (though this may simply mean the investigative team has finished its scrutiny of all boxes known not to contain privileged documents, without commenting on the rest).

The investigative team has reviewed all the materials in the containers that the privilege review team did not segregate as potentially attorney-client privileged.

In another place the government filing seems to suggest that since seizing the documents, a subsequent privilege review may have freed up materials — like some of the contents of those five boxes and documents, plural, from Trump’s office — for subsequent review or, in the case of Trump’s passports, return to the subject of the investigation.

[T]he government’s filter team has already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege.

In a third place, the government’s filing seems to suggest that DOJ has freed up everything not identified as potentially privileged, resulting in a much smaller possible universe of potentially privileged documents than the original five boxes plus “documents” laid out on the SSA receipt.

The privilege review team has completed its review of the materials in its custody and control that were identified as potentially privileged. The privilege review team identified only a limited subset of potentially attorney-client privileged documents.

I don’t so much care about the uncertainty except insofar as the small number might thwart Trump’s efforts to stall things with a Special Master review.

But several other things suggest that after pulling six items (five boxes from the storage room and “documents” from Trump’s office) for closer review on August 8, it has since freed up things that are clearly not privileged, and along the way identified some number of documents marked as classified.

One reason that almost has to be the case is that DOJ has segregated all classified documents because it has to do so to keep them secure (which will also help prove any eventual charges against Trump).

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.

This seems to suggest that even for the potentially privileged documents, the filter team has at least identified if they’re classified, so they can be stored someplace more secure than a hotel safe.

Another reason that seems, necessarily, to be true is that DOJ talks about documents marked as classified. While the FBI seized three individual documents from what appears to be Trump’s desk drawer — the Roger Stone clemency, a potential Presidential Record, and a handwritten note — none of those were described as classified, which would be easy to note. They might be classified, but they are not marked as such.

Which is to say that the two boxes not identified on the CLASS receipt that, per DOJ’s filing had classified documents, may be two that also contain potentially privileged documents. And the three documents from the desk drawer that are marked as classified were among those the filter team thought might be privileged. And in fact, Trump seems to know there are potentially privileged documents that are also classified. About the only thing Trump’s lawyers agree with DOJ about, regarding a hypothetical Special Master, is that that person should have TS/SCI clearance. (Which seems to be a confession that Trump broke the law, but Trump and his lawyers are doing that a lot of late.)

That also seems to be the only way to explain the treatment of items from Trump’s office: the filter team identified things that clearly weren’t privileged — such as the leatherbound box and all its contents and two binders of photos — then seized the rest as a category, documents, that they they have since done a more attentive privilege review on.

Three classified documents that were not located in boxes, but rather were located in the desks in the “45 Office,” were also seized. Per the search warrant protocols discussed above, the seized documents included documents that were collectively stored or found together with documents with classification markings.6

6 Plaintiff repeatedly claims that his passports were outside the scope of the warrant and improperly seized, and that the government, in returning them, has admitted as much. See D.E. 1 at 2 & n.2; D.E. 28 at 3, 8, 9. These claims are incorrect. Consistent with Attachment B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion.

That’s how it was possible to seize three passports but not have them show up on the original receipt. They were included along with those documents, plural, on the SSA receipt. But then further review made it clear that Trump’s visa stamps are not classified, and Jay Bratt returned them to Evan Corcoran.

In my nifty graphic above, I’ve put the passports where they belong, in a desk drawer in Trump’s office.

Now let’s return to DOJ’s affirmation that the total number of items seized were 33.

Remember when I wrote an entire post, based on the FBI’s Borgesian counting methods, arguing that others were making a big mistake by assuming there was one item, Roger Stone clemency for things we know about — his lying to cover up how he coordinated with Russia in 2016 — listed as item 1, and another separate item, information about a French President, listed as item 1A?

Well, the people who filed Wednesday’s filing — who presumably have DOJ’s detailed inventory in hand — tell us that the number of items seized equals 33.

During the August 8 Execution of the Search Warrant at the Premises, the Government Seized Thirty-Three Boxes, Containers, or Items of Evidence, Which Contained over a Hundred Classified Records, Including Information Classified at the Highest Levels

Pursuant to the above-described search protocols, the government seized thirty-three items of evidence, mostly boxes (hereinafter, the “Seized Evidence”), falling within the scope of Attachment B to the search warrant because they contained documents with classification markings or what otherwise appeared to be government records.

That’s precisely the number recorded on the inventory. 33.

The only way the people in possession of that more detailed inventory would assert, still, that there were 33 items on the original inventory is if item 1, Executive Grant of Clemency for Roger Jason Stone, Jr., and item 1A, info re: President of France, are the same object.

If there are 33 items, Trump granted clemency to Stone for something to do with a French President.

Let me repeat that: If the people who wrote this filing, who unlike you and I are privy to the detailed inventory of what was taken, say there were 33 items taken, then the Stone clemency itemized as item 1 in the inventory we do have contains — within it — information about a French President.

This is a pardon or some other kind of clemency that, rather than giving it to DOJ for publication, Trump stuck in a desk drawer. Not a box in a storage room. Trump had a pardon (or some other clemency) for his rat-fucker about an unknown subject relating to a French President, stashed in his desk drawer, apparently right next to his passports and three documents marked as classified that may be privileged.

And that’s one of the reasons I found DOJ’s generous offer to unseal the more detailed receipt, in the guise of sharing it with Trump, to be rather delicious.

1 Plaintiff also sought a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant. D.E. 1 at 19-21; see generally D.E. 28. The Court ordered the government to file under seal “[a] more detailed Receipt for Property specifying all property seized pursuant to the search warrant.” D.E. 29 at 2. The government filed today under seal, in accordance with the Court’s order, the more detailed receipt. Although the receipt of property already provided to Plaintiff at the time of the search, see In Re Sealed Search Warrant, No. 22-MJ-8332 (S.D. Fla.) (hereinafter, “MJ Docket”), D.E. 17 at 5-7, is sufficient under Fed. R. Crim. P. 41, the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to Plaintiff. [my emphasis]

Be careful of what you wish for, Donny, especially with the press coalition already asking Judge Cannon to unseal these sealed materials.

If Trump pardoned Roger Stone for something to do with — say — a hack-and-leak campaign, conducted in coordination with the GRU, targeting Emmanuel Macron, but then stuck the pardon in his desk drawer rather than sending it to DOJ to be published along with all his other utterly corrupt pardons, it’s not something he wants to be public. My guess is the potential Presidential Record and the handwritten note, also apparently found in his desk drawer, are similarly things Trump wouldn’t like to be public. Likewise the three classified, potentially privileged documents found in the same desk drawer, which he agrees would require a TS/SCI clearance to review.

Trump stuck his rat-fucker in his desk drawer. And now his efforts to gum up this investigation may make that public.

Update: Judge Cannon has thwarted live coverage of the hearing on this today. But NBC reported that she will not order the release of the more detailed inventory, which may suggest she recognizes it doesn’t help Trump.

207 replies
  1. Pat says:

    Great work, Marcy. IANAL, and I have a question for you about a recent Politico article. (

    It describes how one of Trump’s lawyers, who is defending him against charges brought by New York Attorney General Letitia James, gave the court an affidavit that she had searched Trump’s home at MAL for relevant documents for a subpoena issued in that case. This lawyer, Alina Habba, affirmed that she searched the whole place, and Trump affirmed that he had given her permission to go through his documents. This happened on April 5 of this year.

    Now we know, of course, that there were dozens of heavily classified documents at MAL. So, the question arises: Did Habba touch any of these documents? Or had they been moved? Or did she lie on the affidavit? The last option is the least bad w/r/t the Espionage Act, I would think.

    My question relates to Trump’s affidavit. If he affirmed to the court that he allowed her to see everything he has, is that evidence for mishandling the classified documents? Or am I reading too much into this?

    • emptywheel says:

      It certainly could be.

      I doubt DOJ will go there unless they develop proof it was more willful. But I also expect they’ll find stuff like that.

      • Gatorbaiter says:

        Could this somehow impugn Habba’s credibility regarding her search in the NY case? “Oh what a tangled web she’s weaved”

      • Tech Support says:

        Do you think it’s possible that Habba is the actual person who provided information to the DOJ that helped establish probable cause for the warrant? That she’s one of the redacted names in the affidavit?

    • Hika says:

      The problem of being caught in possession of classified documents (or National Defense Information) reminds me of Morton’s Fork*. If you have the material squirreled away under lock and key (and/or you kept shifting it around so others didn’t realize you had it), it shows that you knew it was sensitive and so you shouldn’t have had that material. If you had the material amongst your everyday stuff and made no effort to protect it, it shows that your possession of the material was dangerously compromising and so you shouldn’t have had it. Either way, you’re well and truly forked.

      (* Morton’s Fork is a somewhat strained device of reasoning to reach a similar conclusion regardless of a binary choice made to start. It’s believed to have originated with Henry VII’s Chancellor, John Morton, who reasoned that people living modestly must be saving money so could afford to pay more tax, while those living extravagantly were obviously rich and so could afford to pay more tax.)

    • Former AFPD says:

      This attorney may have unwittingly become a witness in the FL document proceedings due to the declaration she filed in the NY case. She has explained that she searched for documents in MAL during a very significant time period. What she observed during her search might well be relevant to the FL proceedings. As a result, she too may be considered a conflicted lawyer/witness in the eyes of DOJ and ultimately a court. This is what it looks like from the publicly available information. Representing a client when there are conflicts of interest is risky business. Perhaps there has been a waiver of conflict. We will see if there is some sort of conflict hearing regarding the FL attorneys and the NY attorney.

      • Pat says:

        Thanks, everyone. My first thought on reading the article was that the lawyer involved may have gone straight to the DOJ with what she had seen. It would have been the only way to protect herself from an impossible situation.

        [Welcome back to emptywheel. Very sorry this hasn’t been asked of you before but you may have been confused with another user named “Pat.” Please use a more differentiated username when you comment next as we have several community members named “Pat” “Patricia” or “Patrick.” Thanks. /~Rayne]

        • earlofhuntingdon says:

          Not every lawyer is as creative as Tom Cruise’s character in the Firm. Certainly not the ones hired by Trump.

    • BirdGardener says:

      Question: wasn’t she searching for documents related to the investigation into Trump .Org., rather than government documents that belonged back in government agencies? The Politico article, as I recall, didn’t specify what information was sought.

      • BirdGardener says:

        Here’s the court document linked in the Politico article; IANAL and haven’t waded through it yet:

        Rayne, I didn’t think the stuff after the question mark looked like tracking whatchamacallit, so I left it in; apologies if that’s wrong.

        Mental fog is descending on me and I’m losing my words, feh.

        [FYI, link is fine as is; in this case the ? divides address of document and instruction on handling it from generic location. It’s all necessary to open this document. Thanks for checking. /~Rayne]

        • BirdGardener says:

          Item 29 seems to be relevant; apparently it’s Demand#1. I’m not planning to quote all the demands (which I have yet to skim), but this does seem to indicate that the material she was looking for was unrelated to the government document search.

          “29. In addition, Demand No. 1 of the Subpoena calls for “all documents and communications concerning any Statement of Financial Condition.” I cross-checked the search terms used by the Trump Organization in connection with its searches in response to the OAG’s 2019 Subpoena, which included, without limitation, the following search terms:
          Statement of Financial Condition Personal financial statement
          DJT FS
          Personal financial
          DJT SOFC
          DJT W/5 SOFC
          Financial statement;
          balance sheet
          Trump National AND (LA or Los Angeles) TNGCLA or TNGC LA
          * *
          Tower w/5 worth, valu*
          TWT w/5 worth, valu*
          Trump Park” w/5 valu*
          555 Cal*” w/5 valu*
          Nike w/5 valu*
          502 Park” w/5 valu* S
          cotland w/5 worth, valu*
          40 Wall” w/5 valu*
          Mar-a-lago” w/5 worth, valu*
          Trump Parc” w/5 valu*
          845* w/5 worth, valu*
          Aberdeen w/5 worth, valu*
          Bedminster w/5 worth, valu*
          Charlotte w/5 worth, valu*
          Colts Neck w/5 worth, valu*
          Doral w/5 worth, valu* Washington DC w/5 worth, valu* Ferry Point w/5 worth, valu*
          Las Vegas w/5 worth, valu* Turnberry w/5 worth, valu* Doonbeg w/5 worth, valu* Hawaii w/5 worth, valu*
          TIHT w/5 worth, valu*
          OPO w/5 worth, valu*
          Pine Hill w/5 worth, valu* Philadelphia w/5 worth, valu* Winery w/5 worth, valu*”

          I haven’t been able to get my edits done fast enough, hence the replies.

      • earlofhuntingdon says:

        If she actually searched what she said she did, in the thorough manner she claimed, she would have seen a slew of classified documents, some of the ones actually seized by the feds. She would have evidence that her client was engaged in an ongoing crime.

        At best, that makes her a fact witness, which gives her an irreconcilable conflict with Trump. More likely, having continued to represent him, she might be charged with being an accessory. Then there’s the crime-fraud exception that would void A/C privilege.

        • Bev54 says:

          I wonder if the FBI found the documents, she was looking for but said she was unable to find? These are documents the NYS investigation is looking for.

    • Alan Charbonneau says:

      That woman is an incompetent attorney. Habba said this on Newsmax: “I think they wanted to show the public that there were Top Secret documents to justify the raid. What that doesn’t tell you is that things are declassified that are marked classified – they don’t change the markings when they do that.”

      When Trump is in a hole, his lawyers keep digging. I’ve never been to law school, but I could do a better job defending Trump by uttering “no comment” while they found a competent lawyer, than this idiot is doing with her news appearances.

      • P J Evans says:

        They’ll remark it when it’s declassified – that’s been pointed out a few times in the last three weeks. She needs to pay attention to experts.

        • Raven Eye says:

          Typical for a declassified document will be a strike-throughs on the top and bottom page markings. The date of the declassification will be noted as well as who authorized it. The colored cover sheet will be removed.

          Even then, sections may be redacted, with the rationale noted in the side margins. One of my favorite declassified CIA industrial reports (about Soviet interest in obtaining Austrian rotary forges) had a lot of “sources and methods” reasons noted for the redactions — more than 30 years after the initial report was published. The names of the authors of the report were also redacted. There was still a lot of factual information remaining, but not anything that would point back to sources.

        • Alan Charbonneau says:

          I was thinking about other issues. She basically said he declassified TS/SCI documents. Trump seemed to have backed off on that claim.

          Asha Rangappa asked on MSNBC the obvious question: “why would he declassify our most secret information?” Why indeed? I had wanted someone to ask Trump that weeks ago.

          Now, with Habba stating he declassified those particular docs shown in the photo, it’s hard to come up with a reason justifying Trump’s decision. Some Fox types will abandon him as the impact of these supposedly declassified docs upon national security become too much to try and defend—that’ll give them cover to pivot to DeSantis.

  2. jeco says:

    trump commuted Roger the Rat in July 2020, why was there a pardon in the hopper at term end – just to give him a completely clean record? Why didn’t trump just give him a pardon in July and be done with it?

    Either Roger crimed again after July and needed a pardon or trump was horsetrading a pardon for some Roger criminal dirty work on Macron that would benefit trump somehow. Maybe trump gave a secret pardon to Stone ???

    If FBI found indications of criminal collaboration between trump and stone involving Macron they have to follow that lead. trump, stone and blackmail seem like a great fit.

    (How secure is a leather bound box? Was it a desktop item? Incredible!)

    • Critter7 says:

      Trump’s commutation of Stone’s prison time in July left Stone free to roam, and free to aid Trump’s presidential run and then the election hijack attempt via whatever means, which he would not have been able to do if in prison.

      By withholding the actual pardon until December 23, Trump maintained a level of control over Stone, who wanted the pardon and knows how Trump operates. This helped to ensure that Stone would walk on Trump’s desired path during that critical period.

      Trump clearly values what Stone does and can do for him, as evidenced by the fact that he eventually delivered the thing of value that Stone wanted – the pardon – unlike how he has treated some of the others who went to bat for him (Hello Rudy); and also as evidenced by how Trump was keeping the Stone clemency doc close at hand, apparently in the desk drawer as per EW’s perceptive observation.

      I expect we would all like to know more about what Stone did for Trump, especially in the runup to Jan 6 when Stone was in touch with Proud Boys and Oath Keepers. Was he also in touch with Trump, acting as go-between as he did during the 2016 hack-and-leak? During the 2016 election campaign, Stone was in regular contact with Trump via personal phone calls.

      • Rugger9 says:

        Well, I doubt any ex-post-facto pardon of Stone would survive court scrutiny starting with how to independently document the date of the pardon signing. I’m pretty sure Cipillone, et al, pointed that detail out to Individual-1 which would make a pocket pardon inoperative. If the pardon is essentially useless, why keep it as part of the crown jewels? Since pardons also don’t require explanation, I’m not sure I would see the need to hold anything about the 23 DEC pardon as a letter/statement/document. It seems more likely to me that this is for a newer pardon for (ahem) ‘services rendered’.

        Since it would appear that the time frame is concurrent with the latest French election cycle and that Marine Le Pen was the preferred candidate for Team MAGA, I would have expected something would have bubbled up in the RW French press if there were anything to hold over Macron.

        This is weird all the way around.

  3. Badger Robert says:

    The government wrote the more detailed receipt in a manner that makes it potentially available to the public. Of course they expect the Trump side to start leaking it, so eventually it will be unsealed to.

  4. harpie says:

    Marcy, the following is from very late in the evening of 5/7/18:
    11:42 PM · May 7, 2018

    Most explicit statement yet tying Trump circle and #BlackCube dirty tricks ops…

    @julianborger: “our sourcing who are close to this private security firm said it was clear that, when the tasking for this went out, that the ultimate customer was the Trump team, the Trump camp.” [Link]

    Links to NPR:
    10:30 PM · May 7, 2018

    As President Trump’s Iran deal deadline looms, two Obama administration staffers who helped shape the pact are thrust back into the spotlight as the targets of a plot to discredit them. [Link]

    • harpie says:

      This is about this conversation you’re having on Twitter:
      8:04 AM · Sep 1, 2022

      [THREAD] One more point. If this is, in fact, Sperry serving as a cut-out confirming that that May 9, 2018 doc in the picture is re: withdrawal from JPCOA, then it would confirm @shaneharris’s scoop that they were looking for nuke docs.
      Thanks Donny!
      h/t @swearyanthony

      • Rayne says:

        This certainly bolsters the necessity for Bratt’s involvement and the absolute necessity to execute a warrant to seize these documents. The negotiations with Iran over JCPOA have been back and forth so much for so long. Have to wonder if the documents held something which kept parties from reaching an agreement sooner.

  5. Max404 says:

    I read the Trump response ( filed Wednesday night and the footnote #4 dropped on page 15 struck me:

    Movant submits that any records containing highly personal information should be segregated
    from the Seized Materials and returned. Movant’s personal records are not Presidential records
    within the meaning of the Presidential Records Act (“PRA”). See 44 U.S.C. § 2201(2)(B)(ii) (“The
    term ‘Presidential records’ . . . does not include . . . personal records[.]”); id. § 2201(3) (defining
    “personal records” as “all documentary materials, or any reasonably segregable portion thereof, of
    a purely private or nonpublic character which do not relate to or have an effect upon the carrying
    out of the constitutional, statutory, or other official or ceremonial duties of the President,”
    including “(A) diaries, journals, or other personal notes serving as the functional equivalent of a
    diary or journal which are not prepared or utilized for, or circulated or communicated in the course
    of, transacting Government business; (B) materials relating to private political associations, and
    having no relation to or direct effect upon the carrying out of constitutional, statutory, or other
    official or ceremonial duties of the President; and (C) materials relating exclusively to the
    President’s own election to the office of the Presidency; and materials directly relating to the
    election of a particular individual or individuals to Federal, State, or local office, which have no
    relation to or direct effect upon the carrying out of constitutional, statutory, or other official or
    ceremonial duties of the President”).(4)

    This footnote is dropped from this text in the main document:

    More specifically, the Special Master should designate batches of documents from the
    Seized Materials for review. For each batch, counsel for Movant will conduct a review and submit
    designations to the special master ex parte. The designations should identify all Presidential
    records, and all potentially privileged documents, for which counsel for Movant shall set forth the
    basis for assertion of the attorney-client and/or executive privileges; and documents containing
    highly personal information, such as diaries, journals, and medical records. (4)

    IANAL by a long shot, but it struck me that making “materials relating to private political associations” into “highly personal information, such as diaries, journals, and medical records” is a stretch, unless the private political association is with a known rat-fucker.

    The Trump response was pretty awful to wade through. I smell in-the-pants shitting, big time.

    Amazing work going on here at by the Doctor in Chief and all the other Doctors (and Poets.) Thank you.

    • emptywheel says:

      I agree that it looks like they’re trying to claim his own interference in political campaigns is encompassed by precedents pertaining to highly personal information.

      It’s an inapt precedent if I understand what they’re trying to do. But they’re writing for Aileen Cannon, so it may not matter, at least on a first decision.

      • KM Williams says:

        It is ironic that the lawyers are claiming very broad “privacy” rights, when SCOTUS just ruled that we Americans (women at least) don’t really have a legal right to privacy at all.

        • BirdGardener says:

          As I understand it, the GOP leadership as a whole is not being inconsistent, because despite a pretense of acting on principles, the real goal is to grab power for themselves, and rule this country without regard for the choices of the majority of the citizens. Their words are fig-leaves intended to cover their power-grab, distract their opponents/waste their opponents’ time and energy dealing with —lost the adjective I wanted—basically bad-faith arguments. That’s the only way their lack of principle makes sense to me.

  6. Badger Robert says:

    Why was Trump obsessed with Macron? We don’t know. But from photos it appears that the wife of the former President knows he was obsessed with the French President.
    What are the 3 documents that were kept with the holy of holies? They are probably the Eastman plans, which fed Trump’s obsession/fetish. The Eastman plan helps Trump maintain his focus on the idea that he won and he was cheated.
    These select documents are the post 01/06 equivalent of birtherism. They are evidence of a diseased and obsessive mind.

  7. Peterr says:

    From the post:

    One reason that almost has to be the case is that DOJ has segregated all classified documents because it has to do so to keep them secure (which will also help prove any eventual charges against Trump).

    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.

    This seems to suggest that even for the potentially privileged documents, the filter team has at least identified if they’re classified, so they can be stored someplace more secure than a hotel safe.

    This is the legal community’s version of subtweeting. There are a bunch of these “here’s how you handle classified information” jabs in this filing, making clear just how fast and loose the Trump team is playing with documents specifically and the truth more generally — all without actually coming out and saying “more secure than a hotel safe.”

    No need for them to gild the lily.

    • bidrec says:

      Safes have a rating on the side indicating how long it would take to breach them. The higher the classification the more secure the safe has to be.

        • rip says:

          In a spy-movie mode, I’d think that trump’s desk was really just a scanning device. Top drawer loaded with cameras and transmitting devices. Process: retrieve from some storage room, casket, boudoir, briefcase; give to donnie for scanning; places in drawer and closes for 10 seconds; returns document (or not.)

        • Drew says:

          That desk drawer may be the safe that Trump is referring to. In the last library where I worked, there was a file cabinet in my office that contained some important 18th century papers. It was a “fire safe” circa 1960. It’s lock was basically like other filing cabinet locks. It was relatively secure from fire damage. It’s lock kept out curious students or faculty which is what we wanted. Nobody is likely to want to break into a building to steal the letters of Samuel Seabury (they were well enough cataloged as to be very salable on the antiquarian market, if they ever had any value).

          Thing is, given that the items in the drawer were stuff Trump didn’t put into his trophy case leather bound box, they were likely stuff he didn’t want prying eyes to get to (he wanted to do any blackmailing with them himself) but he didn’t think that any major break in was likely and really didn’t care about national security or espionage.
          At least not enough to keep any of this information secure.

          • Rayne says:

            Made me think of an in-desk, in-drawer safe, like this one below. Hardly meets federal reg. 32 § 2001.43 Storage.

      • SMF88011 says:

        I can pretty much guarantee that his safe wasn’t certified for storage of classified materials. If it is built by “Master” or their subsidiaries, you should watch “Lock Picking Lawyer” on YouTube. He shows just how “secure” those things are.

        • RJames says:

          I worked for a lock company once, not Masters. We had an on site lock picker to test new designs. She was amazing to watch. It was never a question of “if” she could open a lock, it was about how long it took.

          • Rayne says:

            Which is why 32 § 2001.43 Storage specifies

            — Continuous protection by cleared guard or duty personnel;
            — Inspection of the security container every two hours by cleared guard or duty personnel;
            — Intrusion Detection System (IDS) with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation.

            A FF-L-2740 spec lock like this one will be tough to crack, tougher to smash around, but the continuous monitoring and regular intrusion detection is the failover.

            • AirportCat says:

              This reminds me of something I once read about Richard Feynman, possibly in his book “Surely You Must Be Joking, Mr. Feynman”, that he also turned lock-picking into a hobby and pointed out that most of the safes in use at Los Alamos at that time never had the factory combination reset. The head of security responded by telling everyone to “keep Feynman the hell away from your safes” or something to that effect.

              • FiestyBlueBird says:

                Yup. I didn’t remember that particular detail, but I, too, read several of Feynman’s books, and was thinking about his lock-picking as I read through these comments. Feynman was smart as hell and funny as hell. I enjoyed his books. I even got my Dad to read one or two of them (probably at least the “Surely You Must Be Joking, Mr. Feynman”.) He enjoyed it quite a lot. And (farmer) Dad was never the arm-chair science nerd that I was.

      • earlofhuntingdon says:

        Does the rating contemplate the training of the safe cracker? A foreign agent, many of whom were trying to insinuate themselves into life at MAL, would presumably be more talented than the average thief. I might steal a car, for example, but it’s unlikely I’d be able to break into it and be gone in sixty seconds, whereas that would be a cake walk for an expert.

        • Rayne says:

          You can look up the specifications yourself by searching for Title 32 § 2001.43 Storage for the minimum container and lock required for classified materials, and the Federal Specification 832 for a vault.

          This isn’t just about lock picking. It’s about withstanding the elements, safe cracking (as if with a power saw or air hammer) and about monitoring for intrusion.

          Furthermore, any container should be GSA-approved and a hotel-calibre safe is likely not. A desk drawer or bankers’ file is absolutely not.

        • Raven Eye says:

          Time, for each entry method described, is a very important metric for any secure container specification, government or not.

          The requirements for use of a specific container may vary depending upon other security protocols and systems. I worked in an “office” looking room (typical low-wall cubical farm) with about 30 other people. The entire space was designated for “open storage” up to a certain level, but we also had a few combination safes. The open storage was possible because of other security measures in that section of the building, which included alarms, controlled access to the entire building with armed security personnel, certain local construction features, etc. When you went upstairs and down the hall to the SCIF, that was an entirely different situation.

  8. BobCon says:

    I’ve been puzzling over regular reports of numbers of documents “marked as classified” since this began, and I appreciate your digging into an angle of it.

    As you’ve pointed out, classified docs aren’t necessarily marked, and I’m awfully curious about the implications of unmarked documents.

    How many are nonstandard items like handwritten letters and how many had classification markings removed? How many are copies with classification stamps covered up which were created for leaking? How much was the government looking for evidence of alterations in the first place, and how would they handle a box full of documents which lacked markings but they suspected might have come from a larger packet of marked material?

    I don’t think there is anywhere enough public knowledge to know much, but I think it’s safe to assume references to *marked* documents are intentionally there from the government to minimize what they are revealing at this point and protect aspects of the investigation.

    • bidrec says:

      It is not just “aspects of the investigation”. Humans as in “humint” are where they are in pursuit of a mission. If their identity is compromised it affects the mission.

      “‘The CIA are doing their job by briefing the president on what is happening internationally.

      ‘This is a briefing by the CIA to tell the president that some members of the Saudi royal family are plotting in this and that country.

      ‘Kushner took that part of the briefing and flew to Saudi Arabia to impress MBS.

      ”Kushner got hold of an intelligence briefing,’ said the Riyadh palace source, recounting the version which originated with MBS. ‘At that time he had a high level of security clearance and had access to that. He copied it and provided its contents to MBS.” This is from The Daily Mail in 2018, Kushner denies this.

      The source for the CIA was probably a human.

  9. Chirrut Imwe says:

    Had to laugh at the image of a tiny Roger Stone sitting in Trump’s desk drawer. Or maybe it was a really big desk…

    “Another thing I think we can say is that the FBI found Roger Stone in Trump’s desk drawer, not some dusty box stored in a converted bomb shelter.”

  10. Marika says:

    Looks to me like Trump wanted to keep the Stone pardon back to use against Stone at some future date. Why keep it secret, I assume not from Roger, but from the public? Was it created after he left office and thus not actually a valid pardon? If it’s a valid pardon and he is holding it back, he wants something from Roger in exchange for it, what would that be other than keep quiet, say, about Jan 6? The pardon has to be about something not connected to Trump’s own legal jeopardy to be valuable as blackmail, wouldn’t it?

    • BROUX says:

      Exactly, those are relevant questions. See my post below. Is this really a valid pardon? If it is, then there must be other paperwork elsewhere (presumably under seal). If it is not a valid pardon, then perhaps it is just the facts pertaining to it that are kept as possible future blackmail.

      • SMF88011 says:

        I now wonder if the “Roger Stone pardon” was a draft that detailed a quid pro quo that he was told couldn’t be documented as such. He kept it around as a reminder of what a good guy Roger Stone is.

    • nord dakota says:

      How would a secret pardon be used? Is the idea that if Stone were arrested again he could use his single phone call to have Trump reveal the secret? Now that the FBI has it, how would that work?
      I did find this from last year regarding whether a pardon could be secret.
      I also am reminded of Mark Wahlberg in The Departed when Matt Damon disappears his existence as an undercover agent, given that the pardon could only be used if it became un-secret.

      • Troutwaxer says:

        The only reason for a secret pardon would be to forgive-in-advance someone doing very special secret work, in which case there would be a whole, very complex procedure, and I suspect Trump wouldn’t know about it. He’d just stick an envelope in his desk drawer…

  11. nord dakota says:

    I am on my work network which isn’t allowing my to access the CNN link to the last filing by Trump, but I found this excerpt somewhere else:
    ” Despite the clear desperation of the Government in avoiding the broad parameters of the PRA in allowing President Trump to possess documents, Movant declines the invitation to take on all potential future litigation in the narrow context of the Court’s ordered response regarding the appointment of a Special Master.”

    This seems like an example of really, really terrible writing.

    • earlofhuntingdon says:

      That part is elegantly written compared to others. It’s a petulant mess. It argues through snide remarks rather than statutes and case law, and seems to rely on an emotional bond with the court rather than cogent legal argument.

      • Peterr says:

        This strongly suggests to me that the folks who signed this doc and submitted it to the Court were ghostwriters for TFG.

    • Raven Eye says:

      I found that filing mind-numbing. Especially annoying were those snarky little comments and attempts to politicize this matter. [Did Trump’s legal team anticipate and include the snark, or did Trump insist that they be included?] In contrast (at least to this lay person), I found DOJ’s filing pretty straight forward and interesting.

      The Trump filing includes a reference to 44 USC 2208(b)(1), paraphrased by his attorneys as “(authorizing a former President to assert executive privilege)” and conveniently stopping there.

      • earlofhuntingdon says:

        Privilege that a former president cannot assert against another arm of the executive branch.

        The Trump “argument” regarding 44 USC 2208 is a hoot. It’s as if his team word-searched the statute and cited anything referring to EP, without considering context, meaning or intent.

        That part of the statute deals with a former president attempting to assert privilege against routine public disclosure by the Archivist. It doesn’t apply here or in the case of a criminal investigation. The statute also vests the ultimate decision in that regard in the hands of the current president.

        Trump is doing what he does: throw mud in the hope that it sticks somewhere helpful to him.

        • Raven Eye says:

          Hmmm. “It’s as if his team word-searched the statute and cited anything referring to EP, without considering context, meaning or intent.”

          Is this symptom of an understaffed legal team? Not enough personnel to allow dividing up the research to get a lot of “eyes on”, and then not having a team to pull things together and draft the document, review it, and then craft the final package?

          Methinks that that this will always be an advantage to DOJ for high profile cases, since they have a much larger pool of resources to team this out. For quick turnarounds, they can tap expertise anywhere in DOJ.

          • Yorkville Kangaroo says:

            While it is true DoJ has heaps of resources at its disposal they can be effectively countered by well-resourced lawyers that have a clue.

            In The Donald’s case, he has neither.

  12. BROUX says:

    I am not sure I understand the situation clearly, perhaps someone can clarify. The recovered document is a pardon or some other kind of clemency that, rather than giving it to DOJ for publication, Trump stuck in a desk drawer.

    Supposedly, for this (secret?) pardon to be effective, there must have been official paperwork filled to DOJ while TFG was POTUS? So, while he is keeping one copy of this, there must be other documents too. If his intention was to make sure this (shameful) pardon remained secret, how could he be sure that the other copies would not be publicly revealed at some point? Maybe those copies were going to remain sealed forever by some mechanism? However, it seems that by keeping the document at MAL, he is the one who actually triggered the sequence of events by which this pardon is ultimately going to be revealed to the public, which was the opposite of his intention.

    • earlofhuntingdon says:

      I guess the check finally cleared – or Kise’s staff finished counting the pennies in all the jars.

      I think they are trying to ignore Reinhart and focus on a friendlier FedSoc face.

    • Geoguy says:

      He might think he will have better luck in Cannon’s court. The quote is from Wall Street on Parade posted 8/30/22, an article about Kise being removed from the Foley & Lardner website: “One reason that Foley & Lardner may have been so quick to take a magic eraser to any history of Kise at their law firm is that one of its other former lawyers, Cleta Mitchell, has scandalized the law firm in her dealings with Trump. Mitchell also has a long history of uncomfortable ties with radical right front groups; with Ginni Thomas, the wife of sitting Supreme Court Justice Clarence Thomas; and – wait for it – the Charles Koch network known as the “Kochtopus” that stuffed so many of its lawyers and operatives into key slots in the Trump administration.”

    • Owlmirror says:

      I have to wonder if maybe it went something like this:

      Kise: … so, given all of what I have just told you about how a Special Master is not a magic wand, and cannot just yoink everything back from the DOJ, which case do you want me to focus on? The warrant, or the appeal for a Special Master?

      Trump: I want a Special Master who can get all my stuff back! Get me a Special Master!

      Kise: [wondering if even the whopping retainer he demanded was enough to put up with this] I’ll just go register with Judge Cannon’s court, then.

  13. HorsewomaninPA says:

    Thank-you Dr. Marcy for all your work. You definitely are way above and way ahead of most people who are reporting on this debacle. And thanks for going on the Michael Smerconish show yesterday – he really needs to be educated. Listening to him and his guests talk about this topic while reading your blog each day is like trying to compare a two-year old’s knowledge of the world with a normal adult’s. Great job on both!
    IANAL – but I’m bowled over at the imaginative offerings of Team Trump. Do they all sit around every day and ask themselves, “what else can we make up to confuse and distract people?” BTW – that carpet in 45office is truly hideous.

    • skua says:

      In a nation of laws, empowering citizen would properly include educating them on the basics of the law and how and where to learn more when specifics are needed.
      Doesn’t look to have happened.

      “what else can we make up to confuse and distract people?” Yes, pretty sure that is happening – maybe tweaked to “what can we make up that Fox and RW (semi-fascist) media will spread to confuse, frighten, enrage and distract?”.

      • Yorkville Kangaroo says:

        You mean like this?:

        “An 8 December 2020 email from Mr Gingrich said the goal of the Trump campaign ads was to “arouse the country’s anger” so voters would “bring pressure on legislators and governors”.”

    • AndTheSlithyToves says:

      lolol on the carpet. My first reaction to the FBI pix, also.
      Dan Rather had the best take yesterday on twitter:
      Dan Rather: @DanRather
      As others have noticed, can we talk about the carpet of Mar-a-Lago? Should that be added to the list of crimes?
      7:36 PM · Aug 31, 2022·Twitter for iPhone

  14. Savage Librarian says:

    About the August 20, 2019 date that Ewan commented on in yesterday’s post (…Framed Time Magazine Cover), I wonder if it was a privileged and confidential document relating to communications Cipollone and Eisenberg had with Trump about the whistleblower.

    “Trump Knew of Whistle-Blower Complaint When He Released Aid to Ukraine” – The New York Times, 11/26/19

    “Both Mr. Cipollone and Mr. Eisenberg, who briefed Mr. Trump in late August about the whistle-blower complaint, had been following up on other complaints by administration officials about the Ukraine matter since early July.”

    • Yorkville Kangaroo says:


      This was just The Donald’s little treasure trove of shiny and (possibly) useful things to play with, kind of like the toy limousine Barron is playing with in my favorite portrait of family dysfunction.

      The fact that something as mundane as a framed magazine cover of the Orange Egotist was found in proximity to material that could lead to the torture and death of an American asset is merely evidence of how his fevered mind actually works.

  15. Bay State Librul says:


    Trump is not running in the November election.
    Why does DOJ have to wait until after November, if they decide to indict the former President?

    • Yorkville Kangaroo says:

      They don’t and exactly for those reasons. There is, of course, fevered speculation in the media based on approximately nothing that this principle will be applied despite what Comey did.

      Of course, should they decide to proceed after this magical 60 day cut off date the alt-right idiotsphere will go ballistic..but what’s different about that?

      • Rugger9 says:

        There might be a connection in the documents to congresscritters, since in 2016 Putin also did a lot of work on behalf of the GQP leadership (including then-Rep. Ron DeSantis) which touched quite a lot of them. IIRC it was one of Manafort’s projects. A couple of years after that there was a large delegation of GQP types that went to kiss Putin’s ring on the 4th of July (extremely weird, and not fully explained either). There are also the unexplained calls to the Kremlin from the WH and presumably ones like RoJo who have been carrying Putin’s agenda into the USA.

        There are the ongoing questions surrounding Senator Lee of UT, Gym Jordan and other GQP luminaries known to have been involved in making J6 go, and both of these ‘gentlemen’ are standing for re-election.

        So, if any of those connections get established then the election rule would be observed by Garland’s DoJ.

  16. Dr.C. says:

    At the significant risk of a bmazian take down, I am wondering why there is not more emphasis on the information contained in the documents rather than the documents themselves. That is, there is no doubt that every person coming in and out of MAL, and particularly the storeroom in question, would have the equivalent of an iPhone and could, within seconds, squirrel away significant amounts of information making whoever actually possessed the actual document moot. A special master can’t do much about this situation.

    • earlofhuntingdon says:

      You’re right, it would be irrelevant to a SM, whose normal role is to identify A/C privileged documents in circumstances where there are likely to be many of them, such as the search of a lawyer or his firm. There are likely to be precious few found at MAL, which obviates the need for a SM.

      The public has as much right to see what’s in the classified and NDI documents found at MAL as it does when those documents are properly stored at the appropriate government agencies: none.

    • Rayne says:

      I am wondering why there is not more emphasis on the information contained in the documents

      Seriously, take a step back and think about what you’re saying, think about the reaction of experienced/retired federal employees with experience handling these kinds of documents. They are classified to protect the nation’s security for a reason; the general public is NOT supposed to know what’s in them because of the sensitivity. The fact the coversheets indicate how very sensitive these documents are is ample enough evidence this situation is as serious as a nationwide heart attack and that’s all we really need to understand.

      Asking for more details plays directly into the hands of those who wish to do the US harm including anarchist elements in Trump’s base.

      • Dr.C. says:

        You make exactly the point I was trying to make. I don’t want to know what was in the documents, but who might know it and use it. It says something about discourse that I was misunderstood.

        • Rayne says:

          You asked why there isn’t more emphasis. This is why: we aren’t going to go there. Simple. Easy. No mistake at all.

          Start asking the right questions: why did FPOTUS — who never had a security clearance apart from the inherent clearance which came with POTUS — have any classified documents in his personal possession? What failures allowed him to keep them after he left the White House? Why were some of them ever allowed to leave a SCIF? How had they been stored/handled since they left the White House? Who else saw and/or handled these documents? Who else was at Mar-a-Lago who hadn’t been cleared? What networks and other electronic communications equipment has been within reach of these documents? How do we keep this bullshit from happening again should Americans be stupid enough to vote for a corrupt malignant narcissist like Velveeta Peron?

          And are the media doing an adequate job of investigating these issues, or are they still indulging in forced both-sidesism and horse race reporting in spite of visual confirmation that FPOTUS betrayed his oath of office and the country by creating a massive national security threat?

          • Troutwaxer says:

            “What networks and other electronic communications equipment has been within reach of these documents?”

            For starters, anyone with a decent cellphone,* or maybe someone hacked the wifi across the street, or there might be public wifi in the area, or the van across the street, which can doubtlessy run a Cradlepoint (cellular modem/router device) or similar off it’s cigarette lighter. All this (as you well know) is a hideous national security nightmare, and every one of these possibilities, plus a dozen more, needs to be checked for every day since Trump first traveled from the White House to Mar A Lago.**

            * Even if it can’t act as a hotspot, a cellphone is a very powerful network node. Just to unpack a little, Android is built on top of Linux, which is a full-stack Unix clone. A heavily hacked Android phone can act the part of an extremely powerful networked server without much difficulty, and it’s not hard to find 512 gig or terabyte SSD cards these days.

            ** The people in charge of dealing with this are eating extra meals so they can shit their pants at the rate required by the hellish significance of this emergency.

            • bidrec says:

              Back before cellphones, or The Carterfone for that matter, some communication stations had spaces that were Faraday boxes.

            • Rayne says:

              All of that. Where does that leave us? How does/has the intelligence community obtain/ed the ability to monitor communications without violating the rights of others who have nothing to do with the materials unlawfully stored at Mar-a-Lago, or whatever “drug deal” (as John Bolton once referred to some of Trump’s activities in office) Trump and/or cohort has been working on with these materials?

              It’s so weird traveling 180 degrees around from worrying about government overreach to worrying about government’s failure to reach and stop leaks of national security information — and yet effective governance should worry about both.

              • Troutwaxer says:

                Your question’s a doozy, and I don’t have any better answers than you. Maybe the NSA can sort through their take and prioritize what needs to be looked at? I’m thinking about the beginning of “Honourable Schoolboy” where Smiley is taking his senior staff through all the damage Hayden has done…

                • Ken Muldrew says:

                  Not to mention taking back-bearings from the precise collection of stuff that Trump insisted on keeping (or is that the start of Smiley’s People?).

    • Tom-1812 says:

      After a while, you get the impression that any kid with a stack of comic books, an album of baseball trading cards, or a collection of Star Wars action figures takes better care of their belongings than Trump did of all those classified files.

    • Peterr says:

      To go back to your original question, part of why there is not more emphasis on the information is that there is damn little public information (for good reason, as noted above) on exactly what that information is. We can infer certain things from the level of classification, and from the various compartments within those levels, but that’s about it, if you are looking at this through a responsible media lens. You can say “We don’t know what was in there” with certainty, and not much beyond that. Thus, any discussion (here or elsewhere) would be very, very speculative, and God knows we have more than enough uninformed speculation going on right now.

    • Yorkville Kangaroo says:

      Apart from everything Rayne and those associated have said, it’s because what is ACTUALLY in the documents, as they pertain to the investigation, is an unnecessary deflection. The documents can’t be seen or discussed because to do so would jeopardise the material held within them.

      The DoJ have been quite careful in stating that the documents are NDI and that their handling and possession conflicts with certain statutes of law.

      It’s like Schroedingers Cat. You don’t need to actually SEE the cat to know if it’s a cat or that it belonged to Schroedinger.

      • timbo says:

        If there are determined to be any known dead cats in the box, we may indeed start hearing about that as soon as the counterintel folks are done with dissecting why any given dead cat is dead.

  17. wetzel says:

    “Trump Search” the emptywheel game. You could use this graphic as a board. The players would have a six sided dice and there would be six card sets, like Community Chest, for Photo Albums, Roger Stone, Note, Diplo Passport, Passport, POTUS records. These are clue cards except for the Roger Stone cards which are trap cards that can move your piece to the storage closet where you can lose the secret documents you’ve already collected by understanding the clues.

  18. The Old Redneck says:

    I read Trump’s reply, and it really is bad. Over and over, it warns about the violation of privilege. But it never specifies whether it’s referring to executive privilege (bogus) or attorney client privilege (legitimate). It is repeated so often that it has to be deliberate conflation. It also claims that Trump’s right to challenge the warrant, which should be pursued first before the magistrate who authorized it, somehow means it is entitled to have a special master appointed by a district judge who had nothing to do with the warrant.
    I guess we’ll find out shortly how far Cannon is willing to go to indulge these types of filings. Anyone else would have gotten the boot when they filed a motion rather than a complaint.

    • timbo says:

      Tellingly, it doesn’t once seem to mention the seriousness of compromising the nations secrets. Hopefully someone in the 11th Circuit decides that’s enough to stop coddling these thieves much longer.

  19. Bobby Gladd says:

    Anyone out there live blogging/streaming etc the Cannon hearing?

    Also, one for the lawyers: does granted “privilege“ (of whatever flavor) extend all the way down to the individual word or number level?

    • Geoguy says:

      Ed Walker recently retweeted this: @SarahNLynch
      · 58m
      Bad news friends. Florida court is turning wi-fi off to block the media from reporting the Trump hearing in real-time. This truly sucks and I don’t understand it. We do this in DC District Court all the time. It makes courts accessible to the public. I am beyond annoyed.
      Show this thread

      • Rayne says:

        Believe me, I’m for transparency — I mean, Marcy was the first blogger to cover a federal court live — but there’s a limit to transparency when material covered may be classified. Team Trump has proven itself not up to the task of protecting US interests let alone their client. It’s not difficult to imagine these hacks slipping and leaking something critical during the course of a hearing.

  20. Bay State Librul says:

    Just Peachy?

    Georgia wants the facts, Senator Graham.
    You lost again. Will this fucking case go to the Supreme Court or were you stuffed to the gills by this ruling?

  21. Bay State Librul says:

    I guess Graham will appeal again

    Raise you hand if you think our legal system is one gigantic cluster fuck

    Don’t bother — we know the answer

    • Rayne says:

      We get it, you hate the government just about as much as Trump’s insurrectionist wrecking crew.

      Do you ever have anything new to add to conversation here? Anything at all constructive, informative, educational? Because your refrain is tiresome and as helpful as listening to Lindsey Graham’s whining. Seriously, this is tedious:

      2022/09/01 at 2:21 pm — Will this fucking case go to the Supreme Court

      2022/09/01 at 12:31 pm — Why does DOJ have to wait until after November

      2022/08/29 at 4:42 pm — How about the Senate censoring the distinguished Senator

      2022/08/27 at 5:44 pm — This just about sums up the past six years without an indictment yet

      You were cautioned back on 8/21 about cluttering threads with your lack of constructive discussion, and yet you continue.

      Come back when you can do more than merely vent. I’m sure you can find a therapist for that.

      • Bay State Librul says:

        I don’t hate the government like you implied.
        I don’t have all the answers, I’m merely asking some searching questions.

        • Cheez Whiz says:

          Those aren’t searching questions, they are complaints. Like most people, you apparently have no idea how our legal system works, let alone how or why it is so biased in favor of people like Senator Lindsay Graham or the 45th President of the United States. You want to take some breaths, and dig into what Marcy has been putting down. The fundamental rule is its not what you know, its what you can prove, and “prove” is one slippery little sucker.

        • timbo says:

          Where are you are your answers is what you are being asked to provide more of. And not glib little snippets. Ask me how I know? ;D

            • timbo says:

              Me too. But that was back when my IP was different. Maybe had three or four different ISPs since FDL days. Last change was around maybe 2019-ish?

              In any case, I’ll try to dial it back on off-topic commentary. It’s hard to go through some of this stuff when not focussed. Note to self: need to focus more, comment less!

  22. joel fisher says:

    Crazy talk:
    1) Trump has exposure in DC; US gets good jury pool;
    2) Trump has exposure in FL. Trump gets venue in FL and the good jury pool or he appeals right on up to SCOTUS;
    3) Simultaneous trials are unlikely.
    After an acquittal–what else?–in FL, it will look bad to try him again in DC. If I were Garland I would have a DC indictment in hand before proceedings start in FL.
    Perhaps a hidden advisor has told him this and he’s trying to get things going in FL by making a bunch of unforced errors.

    I hope there’s someone–BMAZ comes to mind–who will point out that my head is up my keester.

      • timbo says:

        Certainly anything that the PRA, and previous PE rulings by SCOTUS too, require much of this to be in the DC circuit. Notably, Cannon wasn’t overly concerned about those laws and precidents that require this be reviewed in DC circuit. In fact, Cannon tried to minimize movant’s ability to gain that venue…and for obvious reasons…if she wants to help fix things for Team Twisslering.

  23. Savage Librarian says:

    Eureka, Eureka, wherever you are, I’ve been wondering if you’ll be watching Biden’s speech tonight:

    8 p.m. ET from the Independence National Historical Park in Philadelphia

    • Cool Xenu says:

      Is the former president’s comparison of his current predicament with overdue library books called the Bookman defense?

      /Chewbacca seen lurking, eating twinkies

    • Savage Librarian says:

      You might be surprised how hostile some people get about overdue fines and referrals to collection agencies. They can be quite abusive. I’ve been sworn at and had books thrown at me. And that was after the clerical staff had already given their best try before seeking my assistance.

      If nothing else, after all that has happened, people might now be a little less naive about all the work that goes on in libraries. Theft of library materials is actually a significant problem. Some people have done serious time for it.

      Here’s a kicker. The policy I objected to about staff not being able to check a white supremacist’s rifle bag was written by someone who was recently convicted of organized crime. She has agreed to pay back about 40k, which is about 30% of the money she stole from the Friends of the Library. So, she cleared almost twice as much as it cost me in attorney fees to rectify the injustice that was done to me for objecting to the crappy policy she wrote.

      • timbo says:

        Ugh. Yeah, I feel BPL may be having similar problems with some of the
        “new blood” that’s been in there selling off the public’s book collection at rock bottom prices, etc.

  24. bbleh says:

    Per CNN at 4:05 and 4:11:

    “The judge said it wasn’t entirely settled law that a former president can’t claim privilege after leaving office, asking prosecutors, ‘What’s the harm?’”

    “US District Judge Aileen Cannon said she’s considering temporarily blocking the Justice Department from accessing the materials for its criminal probe if she appoints a special master to first review the materials for potential privilege issues.”

    Not gonna say “I told ya so” yet, but …

    • L. Eslinger says:

      Judge Cannon’s comments and rhetorical questions are a tell that appointing a special master and other acts that favor Trump’s team are in the cards.

      This is my opinion, based upon a lifetime of consuming television shows such as Perry Mason, Ironsides, Boston Legal, and, most critically, Ally McBeal .

      • bbleh says:

        And most especially, Lawn Order, as in, “you kids get off my!”

        But seriously. Second-chance coaching? “Inclined to”? Explicit openness to a claim of Executive Privilege that has basis or precedent … where? (Certainly not in previous actions or statements by Trump’s lawyers.) Unsolicited musing about sequestering ALL the evidence gathered in the search? Seriously?

        I reserve a modicum of hope that she’s doing all these things so as to remove even the slightest scintilla of appearance of possible bias given the inevitable appeal from the Trump people, but I certainly do not assign that possibility anywhere near the majority of probability.

    • earlofhuntingdon says:

      Not letting history and the lack of precedent get in her way. No surprise that she joined the FedSoc while still at Michigan Law. She was promoted by it and appointed by Trump for a reason.

      • L. Eslinger says:

        It appears that behind the curtain operating the judicial appointment levers are people like Stephen Brogan (a Jones Day managing partner) who packed the Trump administration with Federalist Society brethren (including Don McGahn). Interestingly, Jones Day appears to have a reputation as a go-to firm for Russian oligarchs.
        Why pay for access when you can control the machinery?

    • timbo says:

      Can FISA court overrule some of her nonsense? She seemed keen on stating that she was unlikely to stop the counterintel folks from reviewing all documents so I’m betting she doesn’t want someone to yank away her jurisdiction with her wonky support of Team Twittler.

  25. Jon says:

    While a stalwart supporter of the rule of law, I think we have at last, finally come to the point where someone just needs to be locked up. Maybe many others. Have we no FEMA Camps?

    Can there possibly be more examples of theft, fraud, obstruction, and potentially many, vastly more serious acts of Felony? What more is needed? We’ve got plenty of FISA courts, judges and lawyers cleared to handle classified documents. Time to act.

    [Welcome back to emptywheel. FOURTH REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Jon” or “Jonathan.” (See first request.) Your ability to comment may be curtailed if you do not heed this request. /~Rayne]

  26. Bay State Librul says:

    Here are my constructive comments:

    The January 6th Committee has done a fan-damn-astic job. I have applauded their efforts on many occasions.
    I am impressed by the work done in Georgia in trying to obtain the facts related to interference in the election.
    I have worked for both DOD and HHS and believe they do excellent work. Far from hating the Government as you said, I have worked with our state/federal partners to reduce costs and provide help to the least fortunate.
    My one weakness is that I believe time is of the essence and our democracy is in danger. I can be snarky

    Thanks for listening

    • timbo says:

      Our democracy is always in danger. Just thought I’d drop in and say that for…uh…um… I’ll just show my self out now.

  27. JVO says:

    I admit I have not read all the comments but I wanted to note that the headline “NO ONE PUTS ROGER STONE IN A BOX” is most certainly the greatest literary title I’ve ever read. Very seriously from a mechanical engineering / patent attorney background point of view. Masterful Marcy!

    PS – is it wrong that I feel like I can’t wait for Roger Stone to be in a box!

    • Tom-1812 says:

      Except you won’t be able to phone the smoke shop to ask, “Do you have Roger Stone in a box?” the way you can ask, “Do you have Prince Albert in a can?”

  28. Molly Pitcher says:

    January 6 Committee is calling Newt Gingrich to testify regarding involvement before and after the insurrection ! Announced on MSNBC.

  29. Bay State Librul says:


    One final point on therapy.
    I did see a therapist during the period of my “middle life crises”
    He was very helpful along with my co-author from Madison, Wisconsin.
    Since then, I have spent some time with the Trappists and dabbling with Zen. Reading Thomas Merton has been helpful.
    In any case, the lying and unethical behavior of the Republicans has driven me a little crazy.
    I want Trump indicted tomorrow

    • SMF88011 says:

      Point of order – you cannot be driven crazy; you were already there! CRAZIER! CRAZIER! ;)

      I hope you laughed a little.

      Anyhow, Trump is now trying that these were just “overdue” library books defense again. Too bad these books were never checked out and should have never been taken from the Library in the first place.

    • Rayne says:

      Before enlightenment; chop wood, carry water. After enlightenment; chop wood, carry water.

      We all do but stewing and venting doesn’t accomplish the larger objective of keeping a democracy. They’re wind chimes clanging aimlessly when what is needed is internal focus and external effort to provide what is needed to achieve the objective.

      • timbo says:

        The problem is when folks are carrying the water with an ax and chopping the wood with their hand. Again, ask me how I… *ouch!*

  30. Savage Librarian says:

    Rayne, bmaz and Marcy: I always appreciate your help, including any and all moderation. Sometimes shocking circumstances get hold of my insight. So, if and/or when you might decide to edit or preclude any comment I make, I understand. I’m grateful for all you do.

    [Thanks, SL. I think your last comment was tripped by a trigger word though I don’t know what the word was. Oops. Always nice to see your pixels here. /~Rayne]

  31. The Baffled King says:

    There’s a lengthy (nearly 4000-word) write-up of today’s hearing before Judge Cannon up on Lawfare. It’s all factual reporting, without legal analysis by the author, and it seems to do a good job of covering what was said by all of the relevant persons (the judge, Trump’s counsel, and the DOJ personnel) rather than focusing on one side to the detriment of the other. Here it is:

    • bbleh says:

      Ahh, actual fact. What a breath of fresh air. Very happy someone did that — CNN was beyond useless.

      Suspicions noted previously remain.

  32. Fedupin10 says:

    Hi EW,
    Glad I’ve found my way back to your page.
    One question I’m stuck on is Standing for this court to adjudicate this matter. Why isn’t the Judge who signed the search warrant (complete with contingencies for this matter) bitching about this Court interfering in his search warrant?

    • P J Evans says:

      Magistrate judges are lower than district court judges, for one thing – but Cannon should have done something other than go along with the former guys’ alleged lawyers, as they haven’t yet filed a complaint.

      • Yorkville Kangaroo says:

        They’re not ‘lower’ (though the Title II judges would probably think that way). They are ;’different’. The legal system would also not see them a ‘lower’ (as in a ‘lower court’).

        I’ve mentioned this several times and tried to evoke a response from bmaz but haven’t heard back yet which could mean a few things:

        1) I’m right and all is good with the newbie
        2) bmaz is off buried in torts and pleadings and is too busy to bother with my banal trivialities or
        3) He’s just getting a new gas canister for his blowtorch

      • timbo says:

        Also, Reinhardt is supposedly a “co-judge” for Cannon? That is, Cannon has some sort of nominal administrative relationship to Reinhardt within the same Florida circuit? That’s the rumor i saw somewhere anyways. But, yeah, as Bmaz pointed out, Article III judges supposedly have more gravitas than Article II magistrates…something like that?

  33. x174 says:

    mt–thanks for the update (“she will not order the release of the more detailed inventory”). her earlier stated inclination to do so struck me as rather odd and potentially pernicious

    • timbo says:

      And, as I noted speculative above, possibly would cross over into FISA court/DC circuit authorities that might get this wonky Team Twitler suit yanked to there pronto?

  34. Doctor My Eyes says:

    it is a sign of the times that Cannon could be anything from a second-rate mind and naive Trump fan to a fully compromised Putin asset. Stunningly, it is conceivable to me that the US could have a judge so compromised or brainwashed that she would order the inventory to be released with the intent of harming the US government. It does feel as though she is only limited by how much she thinks she can get away with. Her “What’s the harm?” carries strong echoes of Trump’s asking his lawyers who were trying to convince him not to install Clark as AG, “What do I have to lose?”

    I’m not arguing that this is so, just that the persistent assault on our society has been so effective that it is not beyond the realm of possibility. I mean, SCOTUS majority seems to be devoid of legal integrity and judicial temperament. It wouldn’t be surprising to find such corruption elsewhere. Still, it is more likely that she is the traditional domestic version of corruption–tipping the scales for the sake of the wealthy and powerful.

    • The Baffled King says:

      Calm down about the more detailed inventory/Receipt For Property. In their reply on 30th August, DOJ actually offered to unseal it:

      “The government filed today under seal, in accordance with the Court’s order, the more detailed receipt. […] the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to Plaintiff.” (Page 2; Footnote 1).

      • Yorkville Kangaroo says:

        And REALLY calm down about a judge being a Russian asset. If I want that sort of drivel I’ll go back to Facebook.

        • Doctor My Eyes says:

          I don’t need to calm down in the least. I”m calmly pointing out an aspect of our current situation, which is that we know for a fact that Russia has been developing powerful assets in the US for decades and that the behavior of several powerful US political figures is best explained by assuming their nonsense arises from their being assets. People need to stop assuming that such things are unthinkable. They are not. For example, it is known that Russian manipulation played a significant role in the anti-vaccine hysteria. It does us no favors to try to remain calm by burying our heads in the sand. My point is not that Cannon is a Russian asset; it’s that it is not entirely impossible that she not be.

          Our society is under assault from Russia, and that assault goes beyond mere bots on the internet. I happen to know this for a fact, but that’s all I’m going to say about what I know.

          • Yorkville Kangaroo says:

            Your statement is speculative nonsense. By your reasoning Cannon could also be a CIA operative, a Chinese plant or a Martian.

            We come here to talk about likelihoods and ideas not fever dreams.

            Are the Russians (and Chinese, and North Koreans, and Iranians, etc.) trying to disrupt everything they can get their hands on? Absolutely.

            But Occam’s Razor generally applies. The judge doesn’t need to ba a ‘Russian’ asset because all she needs to be is a Federalist Society/Trump stooge.

    • timbo says:

      If she made an order like that, she might have such an order appealed to SCOTUS/FISA court in a hot second?

  35. The Baffled King says:

    The below update to your article (or at least NBC’s reporting) seems to be wrong:

    “Update: […] But NBC reported that she will not order the release of the more detailed inventory, which may suggest she recognizes it doesn’t help Trump.”

    (1) Re. More Detailed Receipt For Property: The parties agreed at the hearing that this could be unsealed. Cannon ordered its unsealing.

    (2) Re. Status Report by the Filter Team: DOJ had no objection to providing this to Trump, and his counsel reviewed it during the hearing. The parties agreed that it should remain under seal. Cannon agreed with the parties.

    Source is the Lawfare report that I linked in my comment above this one. I also saw Hugo Lowell tweet that the Receipt For Property would be unsealed, correcting Harry Litman, who tweeted that it would remain under seal (Lowell was at the hearing; Litman was not).

    • timbo says:

      The DOJ submitted abridged inventory list has been released. The level of detail is inadequate to deduce much about compartmentalized documents seized other the the number of records/documents/empty folders/cover sheets found. A more detailed inventory than this is not going to happen without a lot of soul searching by all concerned.

  36. hollywood says:

    I think we have to wait to read her ruling that is to be issued “in due course.” Then, we will know what grounds anyone has to appeal it or not. Will she drop it Friday night?

  37. Benji says:

    Let the attempted deflection begin. The former guy is apparently riling up his minions with offers of financial support, pardons and apologies from the gummint for the J6 attack.

    Looks to me like throwing flak to deflect from the ongoing investigation.

    Lather, rinse – repeat.

    Regardless of how Cannon handles this it seems the DOJ has a handle on what they are pursuing. IANAL and cannot see how this will play out but to me it seems all indications are he will be fighting this (lamely) and flinging poo until his followers or a lone wolf type acts on his dog whistles and starts something awful again.

    • Tom-1812 says:

      I just intend this as a general critique, but I wish there was another term besides “lone wolf” to describe these individuals who commit criminal acts on their own. Calling such a person a lone wolf seems to imbue them with a dark romantic, almost Byronic, aura. One option might be to call them solitary killers or solitary bombers, as the case may be, or solitary terrorists if their actions warrant. But calling them lone wolves might only play into and reinforce whatever violent and revengeful fantasies of death and destruction that are festering in their minds.

        • bbleh says:

          Or “individual” terrorist, since I would guess at least some of them see themselves as part of a larger movement even if they’re not part of a more tightly organized group.

          • Tom-1812 says:

            Individual is probably better. It sounds more detached and clinical. Solitary still has some emotional resonance to it.

          • Tom-1812 says:

            You can’t get into people’s heads to know what they’re really thinking, so I hesitate to describe these individuals as deluded. I think many of them know the truth–e.g., that the Big Lie IS a big lie–but they’re looking for a justification to give in to their worst impulses and prejudices.

  38. Ddub says:

    The more I think about the evidence photo, the more angry, scared and saddened I become.
    I can’t imagine how people entrusted with our national security feel.

    • timbo says:

      Imagine how discouraging to the folks at the tip of spear this is. It’s crazy that anyone supports Twitler and his bozo Twisslerings at this point, at least if those in harms way actually believe in defending the current Republic in anything close to its current form.

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