Beryl Howell Says the Surveillance Video Subpoena Was June 24, Not June 22

In the government’s response to Trump’s motion for a Special Master, it revealed that it had gotten Beryl Howell to unseal two subpoenas served on representatives of Trump. (Zoe Tillman first noted the unsealing.)

After Obtaining Evidence Indicating that Additional Classified Records
Remained at the Premises, DOJ Initially Sought Their Return Through the
Issuance of a Grand Jury Subpoena2

2 The former President disclosed this subpoena and a subpoena for video footage at the Premises in his filings to this Court. See, e.g., D.E. 1 at 5-6. Thereafter, on August 29, 2022, Chief Judge Howell in the District of Columbia authorized the government to disclose to this Court these grand jury subpoenas and material discussed herein.

Howell has now unsealed both the government’s emergency request for unsealing and her order granting it.

The government basically explained that they wanted to unseal the subpoenas because Trump lied about the circumstances of, at least, the May 11 subpoena.

[I]n light of the inaccurate or incomplete facts asserted in the SDFL Motion, and as discussed more fully below, the limited disclosure the Government is seeking here is “needed to avoid a possible injustice.”

The government request debunks two things we already knew to be untrue: Trump’s claim that he had conducted a diligent search, and his claim that when Jay Bratt and three FBI agents visited Mar-a-Lago, they were allowed to “inspect” the storage room. As DOJ describes, they “were allowed only a brief view of the storage room and were expressly told that they could not open any boxes to review their contents.”

But the government request emphasizes a third point that elaborates on their strategy behind the investigation: DOJ wrote the May 11 subpoena to cover all documents in Trump’s possession with classification marks, regardless of where they were and how they got there. The government addressed this twice. First, DOJ noted that it drafted the subpoena so as to prevent Trump from withholding documents based off a claim he had declassified the materials.

The government notes that the subpoena sought documents “bearing classification markings,” and therefore a complete response would not turn on whether or not responsive documents had been purportedly declassified.

The logic to that part of the subpoena was already obvious, to me at least. What I didn’t realize was that DOJ also specifically wrote the subpoena to cover any government document, regardless of whether it had been moved from the White House or got to Mar-a-Lago via some other path and regardless of whether it was still at MAL.

Although the SDFL Motion indicates that FPOTUS directed his staff to conduct a review of boxes moved “from the White House to Florida,” the subpoena was not so limited, instead seeking “[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,” without limitation to where they were stored.

Obviously, DOJ had reason to make this emphasis, beyond just asking for documents with classified markings to avoid getting into a fight over whether Trump had declassified them. Possibly, they have reason to know that some of the documents have already left Mar-a-Lago — maybe they traveled with Trump to Bedminster when he left on June 3. Possibly, they want to avoid Trump claiming he can keep classified documents that he accessed for the first time as President while at Mar-a-Lago, which would otherwise effectively exempt any document that never got moved back to the White House from the subpoena. Or possibly, they have reason to believe that Trump obtained documents from other agencies of government — like the NSA — and brought them directly back to Mar-a-Lago without stopping at the White House.

DOJ’s emphasis that the subpoena covered all records, whether they had left Florida, whether they had come from the White House, had never been moved back to the White House, or came from other agencies is important because — as a slightly longer account of what Corcoran told Bratt on June 3 makes clear — Corcoran limited his own representations about remaining classified documents to those that had been moved from the White House. The bolded language did not appear in DOJ’s Response; the italicized language did, but appears more significant given DOJ’s comment.

[C]ounsel for FPOTUS stated that he had been advised that all records from the White House were stored in one location at Mar-a-Lago, a basement storage room, that the boxes in the storage room were the “remaining repository” of records from the White House, and he additionally represented to government personnel his understanding that there were no records in any other space at Mar-a-Lago.

The bolded language suggests that Corcoran may have been lied to, meaning he’d be a witness, but not a subject, in the investigation.

The filing doesn’t address another discrepancy between Trump’s public claims about the June 3 meeting and DOJ’s: Whether the Former President ever stopped in at the meeting. Trump claims he did.

President Trump greeted them in the dining room at Mar-a-Lago.

DOJ says only two Trump people were at the meeting: Evan Corcoran and Christina Bobb.

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.

If Trump wasn’t present at the meeting, it’s possible Corcoran and Bobb pulled the meeting together for the first day that Trump would be gone to Bedminster, possibly even without telling him.

There’s one more detail about the June 3 meeting that’s may be new in the request for unsealing: According to Bratt and the FBI agents who got to glimpse into the storage room, there were around 50 to 55 boxes in the storage room.

[T]hey were explicitly prohibited from opening any of the approximately fifty to fifty-five boxes that they observed.

The inventories released so far suggest that the FBI searched at least 73 items in the storage room. While some of those items may have been bags of golf clubs or old furniture, this detail suggests as many as 18 boxes may have been moved back into the storage room after Bratt left, more than covering all the boxes that identified so far to have documents marked classified in them.

For all the new details about the May 11 subpoena, the request for unsealing reveals almost nothing about the second subpoena DOJ obtained. Indeed, there’s a  section that may address the subpoena that is entirely redacted.

Pages later, DOJ notes in footnotes 4 and 8 that Trump also revealed the existence of a surveillance subpoena and asks to disclose the existence of that too.

In none of the unsealed discussion of the surveillance video subpoena does DOJ mention its date.

Judge Howell does, though. In her authorization, she permits the government to disclose “another grand jury subpoena out of this district issued to the Trump Organization on June 24, 2022.”

That date is two days after the date Trump gave for the subpoena, both in anonymous sourcing to reporters and then in his motion for a Special Master.

In the days that followed, President Trump continued to assist the Government. For instance, members of his personal and household staff were made available for voluntary interviews by the FBI. On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government. [my emphasis]

It’s possible, but highly unlikely, that Howell got the date wrong. But because the government included this paragraph from Trump’s filing in its own request, Howell may have noted the discrepancy in the date.

It’s the kind of detail she tends to pick up.

If the date Trump is using is inaccurate, it may suggest several things. First, I noted here that Bruce Reinhart pointedly observed that no one who purports to own MAL had intervened. It’s the kind of comment one might make if one were aware that Trump played games with the ownership of MAL in an attempt to avoid service of a subpoena. That is, perhaps there is a June 22 subpoena, served on the Office of Donald J. Trump, and after he refused to respond, DOJ simply served a subpoena on Trump Organization, which has enough of its own legal problems right now it doesn’t need Trump to exacerbate them.

Or perhaps Trump was deliberately obscuring the real date, possibly to hide some tie between Kash Patel’s public claims on June 22 to have been made a Trump representative to the Archives and the subpoena.

In authorizing the release of the grand jury material, Howell emphasized the procedural nature of her decision. Because Trump’s request created another judicial proceeding, she could release the grand jury materials under FRCP 6(e)(3)(F). That requires that DOJ show a particularized need to unseal the material, which Howell describes as the need to “meaningfully [] respond” to Judge Aileen Cannon’s order.

Howell did not comment on two arguments DOJ made to get there: that an injustice might occur if Cannon ruled on the Special Master request based on a false understanding of events obtained from Trump’s lies to her and that there was no chance that revealing the subpoenas might harm someone who would later be exonerated, one of three reasons that would normally rule against unsealing grand jury materials.

But in revealing a different date for that second subpoena, June 24 as opposed to June 22, Howell may be pointing to another Trump lie.

Update: May 11, the date of the initial subpoena was a Wednesday. June 22, the date Trump claims he got the subpoena, is also a Wednesday, with June 24 a Friday. If Wednesday is the normal day for the grand jury, then maybe there were two subpoenas.

45 replies
  1. Peterr says:

    There has to be a kind of “Where’s Waldo” game in chambers every time Trump makes a legal filing, as the judge(s) and clerks(s) look for the lies/misrepresentations/errors.

    • evave2 says:

      And maybe these crappy attorneys did not recognize a misprint that used the wrong date.

      The simplest solution in my eyes.

        • earlofhuntingdon says:

          In Trump’s case, the preferred option. He uses the presence of simpler explanations to hide his innately criminal mind, in the way he throws the handiest adviser under the bus when need be.

          • Commentmonger says:

            Even though I think Trump has a criminal mind. the more I read about the details of the day-to-day, the more I am persuaded that Trump isn’t “lying” so much as he feels he is entitled to his own reality…. and if he said 22nd one time and then 24th another, they are both in the 20s (and so it doesn’t really matter) … they are equal. And if someone brings up the discrepancy, he tries to control it, by saying both are equal only because he says so. His worldview is by fiat. That’s probably why he likes gold…
            “L’Etat c’est a moi”: Louis XIV and the State

            I find that he does it more when he knows there could be a definite answer. Probably where Kelly Ann got her idea about Alternate Facts.
            It’s a fact to him and no one else. Kelly Ann, you should have stayed away from the Light.

            • HW3 says:

              A family member who has been a colossal Trump fan since the 80s spent thousands of dollars and at least hundreds of hours on training from Werner Erhard and subsequent organizations on exactly that, defining your own personal reality and making the world conform to it. I would say it is a standard but really it is a leveled up salesman state of mind.

  2. xy xy says:

    There are x number of SS personnel with surveillance and other tracking, etc. equipment “protecting” him at MAL
    There’s no way none of them overheard, saw, etc. nothing.
    Not all of them can be Sgt. Schultz.
    How is it there’s no one speculating on when did they start alerting, tracking, etc. him?
    And if none of them spoke up, any consequence to them as they are US Gov’t employees?

      • xy xy says:

        So you think Tony abruptly quit this week because the surveillance videos still exist?
        Just a maybe:
        They were probably wiped out in new upgrade before Aug 8 when FBI person snitched to Tony or on Aug 8 when FBI gave SS heads-up on MAL raid.
        And IG Joseph V. Cuffari is nowhere to be found.

  3. Marika says:

    Ryan Goodman appears to have access to the transcript from the Cannon hearing. Does anyone know if they are online anywhere?

  4. jeco says:

    Will trump look like he’s trying to hide something if he shifted gov docs from MAL after he got subpoena for all marked documents?

    Does anyone think there aren’t additional secret type docs at other squirrel holes in MAL, Badminster, trump tower?

    Given his behavior, if there are any suspected missing docs in his trove a search warrant, not a subpoena w/b warranted, he wants to play wack-a-mole

  5. SMF88011 says:

    Not related to this story but I have a question. Can Lindsay Graham invoke protections of the Speech/Debate clause by saying that his questions about the votes being counted/thrown out with the SOS of GA was him trying to get information to make an informed decision about the certification? Basically saying the entire conversation with the SOS was to help him make an informed decision about the certification and block answering ANY question because the Speech/Debate clause?

    I would love to hear about a recording of the conversation he had with the SOS come out AFTER he has testified. That would sink him quickly.

    • BirdGardener says:

      IIRC, this article answers some of your questions:

      For ex.: “”[T]he Court does not find that it can simply accept Senator Graham’s sweeping and conclusory characterizations of the calls and ignore other objective facts in the record that call Senator Graham’s characterizations into question,” May wrote.

      She said she was “unpersuaded by the breadth of Senator Graham’s argument.””

      There’s more but I’m too sleepy to summarize it well.

  6. BobCon says:

    “efforts may have been taken to obstruct the government’s investigation.”

    I wonder if that gooses any of the political beat reporters to change their framing.

  7. L. Eslinger says:

    With regard to conflicting claims, such as whether Bratt and the FBI agents were prohibited from opening any boxes or doing more than just viewing the contents of a storage room [possibly just from a doorway], are there legal, procedural, and/or tactical reasons preventing or arguing against the use of a type of body-cam designed for interviews, evidence collection, and other such official actions?

  8. Jon says:

    **[FIFTH REQUEST: Please use a more differentiated username when you comment next as we have several community members named “Jon” or “Jonathan.”

    Check your previous comments at:

    for the previous requests since April 2021. Reply to this comment with your new differentiated username to resume commenting along with restoration of this comment’s text. /~Rayne]**

  9. Tim L. says:

    It took them three months to get a search warrant after the May 11 charade, and it’s taken them more than two years to find out that 40+ highly classified docs are missing. “Let the DOJ do their work.” Fuck that, they are a freaking joke.

    • timbo says:

      DOJ is juggling a lot more balls than you or I are with this case? I do like that fact that you and I have substantial rights and privileges to openly disagree with the pace at which our government is trying to maintain its own stability but… Having the 4th Amendment to the Constitution be respected by legal institutions is not as easy as apple pie, something I’ve had to slowly come to grips with over the past few decades, particularly as those decades have indicated an erosion in stability within our society. That having been said tho…

      DOJ has to gather witness statements and other required information prior to writing the affidavit for a warrant seizure request. If the draft affidavit is not yet sound enough, then it has to be revised. (In the case of tossing the offices/premises/potential crime-dens of an ex-POTUS for the first time ever, the USAG will be reviewing those drafts and getting it as right and air-tight as possible.) Finally, once the affidavit is strong enough with regard to probable cause, a Federal judge will then issue the warrant. In this case, the government is moving at a pace which they feel satisfies all the different constraints and priorities involved…which are many.

      Perhaps you are fed up with the obvious implication that the USG doesn’t really know which secrets it doesn’t know are missing from its archives? I mean, it’s truly unsettling to think that this many supposedly controlled/compartmentalized documents were just gone, and that no one really was looking hard for them until NARA received subpoenas from Congress for Presidential records and the episodic slow-walking of these stolen documents back into government possession began… If you are fed up with this, I’m positive that you are not alone.

  10. Challenger says:

    If it were anyone other than Trump found with these documents and attempts to conceal, wouldn’t all their properties be searched in rapid order?

    • timbo says:

      Such rapid searches may even have already occurred; other individuals’ properties and workplaces may already have been searched based on a PC warrant or by voluntary agreement (yes, this sometime happens, particularly when folks are living in a fantasy land based on what they feel should be true vs what actually is true when it comes to who does and does not have a right to hold onto government records).

      Twitler is a loud-mouth who craves attention. His “brand” dies if he isn’t front and center in the national media as much as possible. Some of the more flamboyant of the folks in Twitler’s orbit are also interested in publicly expanding their own brand as well. More low radar types in/formerly in Twitler’s orbit however may be cautious about advertising any boneheaded or grossly negligent possession of NDI that they might have been caught with (or without, in the case where they’re the last known person to have had access/possession of missing NDI documents, etc)

      A note here on who is and isn’t the target of an investigation in this particular scandal. There are folks, folks like Cassidy Hutchinson et al, who may have been tasked with transporting or storing some of these boxes. Some of those folks might have little to no idea that there might have been NDI covered records in these boxes. (Heck, who of us even knows what some NDI documents might be without a lot of context that we just do not have, right?) And some of those folks may be the last known person(s) to be in the presence of lost NDI documents. They’re not going to want to publicly start advertising that fact if they’re still being called before grand juries and/or getting the feeling they may be being hung out to dry; being caught up in trying to do the right thing for our national security while facing possible severe legal and reputational consequences is not a pleasant place to be. Yeah, being a potential target, when it is others who got you into a now big personal mess by doing what you thought was a favor or taking on what seemed a simple project to hold one over until something better came along, etc, is not pleasant at all, and particularly unpleasant when one suddenly gets the feeling that having a good-expensive lawyer is becoming a necessity.

    • Yorkville Kangaroo says:

      I would have thought that the next logical step, failing discovery of all known FPOTUS material (especially Class and NDI) in these visits, is to find probable cause thet The Donald still holds materials he’s not entitled to and that are extremely sensitive and allowing a search of all of The Donald’s known residences and offices.

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