Evan Corcoran Keeps Arguing that Evan Corcoran Didn’t Do a Diligent Search

There’s something weird about the argument that Trump’s lawyers — each time with the participation of Evan Corcoran — are making about the search of Mar-a-Lago. What they claim they’re up to is all over the map, and has evolved (for example, their first filing focused on Executive Privilege, but in last week’s hearing, Judge Aileen Cannon had to remind Trump lawyer Jim Trusty that’s what he was supposed to be arguing).

But their true goal, it seems, is to learn enough about what was taken so they can attempt to claw back certain materials that would incriminate Trump for reasons other than the sheafs of highly classified information that were stored in an insecure storage closet. It’s a two step process: Learn what was taken, so they can then argue that its seizure was a gross violation of the Fourth Amendment under what’s called a Rule 41(g) motion.

And to that end, the first filing argued that they need a more detailed inventory, describing what was seized and from where, so Donald Trump can make a Rule 41 motion claiming it was improperly seized.

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Govemment should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

The second filing (which is where the Executive Privilege started to be dropped) repeated and expanded the request that Cannon order the government give Trump enough information so he can start clawing stuff back. In addition to falsely claiming his passports had been improperly seized, the filing admitted they couldn’t figure out what kind of harm the seizures would do without getting more details on what was seized.

Finally, this Court should exercise its equitable or anomalous jurisdiction over Movant’s request for the return of seized property and for a detailed receipt for property. This Court has written, “Where no criminal proceedings are pending, either because an indictment has not been filed or because a criminal prosecution has terminated, a petition pursuant to Rule 41(g) [of the Federal Rules of Criminal Procedure] has always been treated as a civil action in equity.” Bennett v. United States, No. 0:12-cv-61499, 2013 WL 3821625, at *11 (S.D. Fla. July 23, 2013); see also United States v. Dean, 80 F.3d 1535, 1542 (11th Cir. 2005) (“Federal courts have developed the doctrine of ‘equitable’ or ‘anomalous’ jurisdiction to enable them to take jurisdiction over property in order to adjudicate ‘actions for the return of unlawfully seized property even though no indictment has been returned and no criminal prosecution is yet in existence.’” (citation omitted)). Given that Movant’s request for a receipt for property is ancillary to the request for the return of improperly seized property, the Court’s equitable jurisdiction should extend to that request.


At the outset, because the Government has not produced an adequately detailed receipt for property, it is impossible for Movant to assess the full contents of the seized material. The Government has already confirmed that it improperly seized Movant’s passports (which were not listed on the Receipt for Property provided to Movant), and the Government’s continued custody of similar materials is both unnecessary and likely to cause significant harm to Movant. In addition, the return of property pursuant to Rule 41(g) is the only mechanism for Movant to secure wrongfully seized property, and he has no influence on whether later proceedings will enable him to seek such relief. [my emphasis]

At the hearing on Thursday, after Cannon had given Trump’s lawyers the more detailed inventory that shows that every single box that was seized had some official government documents inside, Jim Trusty complained — with Evan Corcoran sitting at a table beside him — that Trump’s lawyers would remain purposely blinded unless Judge Cannon ordered the government to let them inspect the actual documents themselves.

The next logical step would be to allow us to actually examine the documents and other items that were seized in this search.


MR. TRUSTY: Your Honor, I think the difficultly in completely jumping through that hoop for the Court in terms of the Richey factors is that we are still purposefully blinded from large swaths of information. What we see from our side of the aisle is a warrant that looks like a general warrant and could be subject to challenge under Rule 41.


The Court will probably recognize — I’m not asking for an opinion — that the warrant itself not only allows for gathering papers around their classified materials seizure, which again we even dispute whether it is classified or whether they are entitled to seize it or whether it is in the right paradigm, but boxes in the vicinity, documents in the vicinity. I mean, this was a colonial time search where the agents had discretion to take anything they want. And maybe they did, we are still trying to get through a legitimate inventory to figure that out. But there are significant substantial preliminary showings that this is a warrant that is suspect. And I can just tell the Court that our intention is to explore that, get the classifications through a special master and Your Honor that we can get, in terms of what the universe of items are, and pursue ideas like seeing the affidavit, maybe not for the general public, but at least for counsel to properly prepare for a Rule 41 and then litigating a Rule 41. This is what the rule is all about. It doesn’t matter whether it is a president or guy on street corner in Baltimore, they have that right to challenge this preliminarily.


We think the special master will be in a position to assess personal versus Presidential documents under the framework of the PRA and executive privilege. We think all of that is the type of thing it would be, I suspect, economical and make sense to be conducted along with the physical review of the documents to throw that to the special master, allow us to use that time. Ultimately, there may well be reasons to come back to this Court, but I think that’s an efficient model for getting to a bottom line of where we disagree and where we agree, if anywhere, when it comes to the classification of all of these seized materials.

Again, this is all part of a two-part goal to first learn what was seized and, once they learn that, to make an argument that its seizure irreparably harms Trump. While Jay Bratt is treating this effort as a Rule 41 motion, Trump’s lawyers, joined by Evan Corcoran, argue they won’t be in a position to make a Rule 41 argument unless they first get a detailed look at what was seized.

Which, as I said, is pretty nutty, because according to the government, Corcoran told Bratt (and three FBI agents) the following:

[C]ounsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched

And another of Trump’s lawyers, Christina Bobb, signed a declaration claiming the following:

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

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

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

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

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

As I noted yesterday, the government asked Beryl Howell to unseal the May 11 subpoena it served on Trump’s office so it could debunk several claims Trump had made in its filings. One they focused on, in particular, is Bobb’s claim that a diligent search “was conducted.” DOJ wanted to be able to argue that,

Contrary to [Bobb’s] assertion, when the FBI conducted its search of Mar-a-Lago on August 8, it found over one hundred total documents bearing classified markings, from both the storage room and the space FPOTUS uses as an office.”

I mean, it’s an important point and all. But at this point, they don’t even need to contrast the statements Trump’s lawyers made with the inventory seized.

They can just point to assertions — signed or joined by Evan Corcoran — stating that Trump’s lawyers, including Corcoran, have no fucking idea what was in those boxes and where they were stored. There is no way that Bobb’s claim that a diligent search was done and Corcoran’s claim that he knew all Presidential Records were stored in the storage room can be true and, at the same time, a team including Corcoran first needs to learn what’s in the boxes and where the boxes were stored before he can argue about the grave harm that has befallen Trump by seizing them.

All these claims that Trump’s legal team has no idea what’s in the boxes and where they were stored seems to be pretty compelling evidence that Trump’s lawyers’ claims to have actually searched these boxes were not true.

174 replies
  1. jeco says:

    As a diligent records custodian Chris B should have an accurate of records. (I wonder when she was hired as records custodian, who hired her, who did she report to and if she is still records custodian. I think the signed false attestation was the full scope of her duties. I wonder how she feels about being a Cohen-type fall guy. She seems to have faded into the mist.)

    In a bassackwards way trump Dream Team is pressing DOJ to file criminally to stop this legal clown car act.

    Bobb and Corky might get charged criminally for false attestation before their master is charged?

    Once it’s determined that there are still missing docs DOJ has to search other locs if these docs are sensitive. They may have some human sources with tips where the other records are, I’m thinking the worst stuff was moved and really hidden after FBI started zeroing in on MAL. You can’t claim the docs are sensitive and then shoulder shrug and not continue searching for them because the main suspect feels his privacy is being violated.

    • Peterr says:

      “She seems to have faded into the mist.”

      Or she has, quite properly, retained her own attorney whose first piece of advice was “Do not speak with these folks outside of my presence.”

      • Patrick Carty says:

        They need to tell her to forego the Fox News appearances too because this much talking can’t be helpful in the end, unless litigating in public is the best strategy they have.

        • jeco says:

          She was an OAN talker thats how she got the trump legal gig, photogenic w law degree. She won’t be talking about MAL, she’s smarter than trump and realizes she’s in a very bad spot.

          She was also plotting in the Jan6 Willard War room, trump throwing her under the MAL bus was really bad thinking. If she doesn’t want to become an old prison hag she has to sing for her supper with FBI.

        • Commentmonger says:

          Photogenic??! Are you referring to Bobb’s bob!?!?
          She has the creepy eye star and heavy makeup that’s MAGA dejour. Too bad Michele Bachmann and Tammy Faye Baker can’t get residuals.

        • Rwood says:

          As a trump lawyer, she has no choice but to go on faux and make whatever TV appearances she can, it’s most likely her only source of income.

      • Rollo T says:

        What makes you think these people would hire attorneys any better than they are? Nothing so far indicates Bobb or Corcoran are particularly savvy about these issues, understand the gravity of their own exposure or have any instincts for self preservation.

    • SMF88011 says:

      Let’s see how hard Trump fights the exhuming of Ivana’s casket. If he fights it at the level he has fought his taxes being seen, we know where a lot of the missing documents are located. They may also want to dig a few feet under the coffin for good measure.

      Seriously though, I am surprised that they haven’t conducted searches at his other homes and locations he frequented. I truly doubt he kept everything at MAL when he has that many documents.

        • Legonaut says:

          How do we *know* this was done throughout his term? We strongly suspect it, and wouldn’t be surprised that it’s true, but have we seen testimony or filings wherein such statements have been made?

          The dates on box’s docs & associated clippings indicate when the box was packed, not when it was moved. We have some surveillance tapes of The Storage Room (and I pity the poor FBI agents who have to watch all that footage & document box movements in & out), but that’s incomplete.

          The logistics of the document transfers seems to be a gaping hole in the narrative to date, one that would expose witnesses and sources (such as the box packers, moving flunkies, MAL cleaners, etc.). DOJ has no incentive to share it until they have to, to preserve prosecutions against Trump & the abettors, especially if they’re sharing before indicting (h/t bmaz).

          (BTW: “Trump & The Abettors” is the name of my new screamo metal band.)

          Personally, I fervently hope we’ll see more searches soon, driven by careful investigative work. I’m really conflicted about whether they’re fruitful or not.

        • Commentmonger says:

          Trump is the one who took the documents he wasn’t supposed to, and also the one who has obstructed their return to their owners.. The searches are fruitful because he created the situation and leaves prudent custodians of the public property justified in being thorough. They SHOULD have a quick search of all his properties and see what gets the biggest protest yelp. That’s probably where some of them are.

        • Unabogie says:

          Wasn’t that one of the excuses put out there early on, that Trump routinely brought his work “home” with him? Isn’t that a reason to assume he was removing TS documents all along and that they could be anywhere he called “home?”

        • posaune says:

          super-hypothetical question (way over the skis):
          what if documents were shipped to Turnberry or Doonbeg? what would be the process for DOJ to get them returned? and long would it take?

        • Commentmonger says:

          The process is described in Form 75c (rev. June 2005) and it with take 40 days and 40 nights, resulting in 81 days from start to finish.

      • eyesoars says:

        We only know that MAL was searched because DJT whined about it to the press. It’s possible, however unlikely, that other Trump properties have been searched.

  2. PeterS says:

    Yes, another own goal by team Trump – I’ve lost track of the current score, though I’m pretty sure the team wearing orange hasn’t yet got the ball in DOJ’s net.

    Also, if someone’s house is burgled and they want to make a claim under their insurance policy, the onus is on them to tell the insurance company what is missing before the company will make a payout. Surely Trump needed to explain generally what the “significant harm” would be, based on what sort of things were missing, before the court could give him anything. Or can I make a successful insurance claim by saying: I know lots of really valuable stuff has gone but I just don’t know what it is.

    (A far from perfect analogy I know)

    • Sue 'em Queequeg says:

      Not in a position to say how good the analogy is, but it certainly helped NAL me understand the situation.

      It seems in essence these folks are saying there’s no way in the world anyone could expect them to know what was in some boxes that they themselves packed, absconded with, and have had kicking around the house for the past 18 months, during most of which time they have known the government was after them to return.

      Given who we’re dealing with here, and their, let’s say, sub-optimal document tracking abilities, I’could almost believe they really don’t know what was in which boxes, or even with any degree of accuracy or completeness what they’d taken in the first place. That sounds pretty lame, so I get why you wouldn’t say that to a judge, but storming around claiming it’s someone else’s job to fill you in doesn’t seem that much better.

      And ultimately I find it pretty hard to believe nobody ever took at look at those boxes in all those months since the government started knocking on the door and then stopped knocking and opened it.

      • vvv says:

        “they themselves packed, absconded with, and have had kicking around”, and also provided affidavits concerning.

    • Tom-1812 says:

      I thought of the same analogy but the situation seems more akin to a fence complaining that the police searched his home and took all the stolen goods he had stashed in his garage and now he demands to know the exact value of his reclaimed swag.

    • Ginevra diBenci says:

      It has worked with Judge Cannon. She issued a 24-page ruling arguing that given that the potential reputational harm to a former president is “in a league of its own” (p. 11), such harm might be irreparable. But bottom line is “unprecedented” and “appearance of fairness.”

      The shocker to me: she seems to open the door (using Kavanaugh) to executive privilege claims by Trump, even–somewhat obliquely–over the stolen documents.

      That she does it with authority (lots of citations) and clarity bodes ill, I believe. She makes much of the two slip-ups by the FBI’s taint team, and alludes repeatedly to the potential of “leaks to the press.” By my count, all of these have come from the person whose irreparable injury she seeks to redress, who could not possibly know what precious items he possessed without a special master (they were that precious!), and whose “reputation” could be so harmed by even an indictment that … see p. 11.

      Leonard Leo sure got what he paid for with this one.

  3. Frank Probst says:

    I’m obviously missing something about the Bobb document, because my reading of it is that Bobb is saying ONLY that this is what other people have told her, NOT that she did any sort of search herself, or that she even tried to verify what she was told. Furthermore, she has been given the authority to speak “on behalf of the Office of Donald J. Trump”, NOT on behalf of Donald J. Trump himself.

    IANAL, but the document is far too cute for my tastes. Jay Bratt is a counterintelligence expert who came to Mar-a-Lago with a list of items that were still missing from the National Archives. He knows that what he’s being given can’t possibly be everything on that list. I think he asked to see where the documents were stored so that he’d have that information in order to provide it first-hand for an affidavit for a search warrant. He probably didn’t know for certain that one was going to be issued, but I doubt the man has the time to be jerked around by coming back with another subpoena.

    • PeterS says:

      Yeah, I’ve commented before that the Bobb declaration is deeply flawed. On the other hand, it’s going to be awkward for Trump’s attorney to stand up in court and argue before the judge, in the context of top secret and classified information, that what they gave the government didn’t really certify anything useful (and was perhaps a “dodgy declaration”?).

      • Drew says:

        I would think that the sworn declaration would put Bobb in the position of having to explain what exactly it was that she was swearing to, since its plain assertion turned out to be false. i.e. If she’s not saying that a diligent investigation was done, but rather that she was told it was done, who did the telling and why did she believe him. AND if he didn’t actually tell her anything but handed her the typed out declaration and told her to sign it, that would be worse, I think.

  4. flounder says:

    It occurs to me that Trump probably only tells his lawyers in the vaguest terms what criminal documentation he needs back.
    “Get me my signed copy of the perfect phone call. No not that one, the one with the Russian Ambassador person. No I don’t know where the hell it was, COCKran, you repacked it, where the fuck is it?”
    “Sir you said not to look at anything…”
    “What the fuck do you think that means COCKman…heh heh COCKman.”
    Then his lawyers have to figure out how to get enough info to ask for transcripts with Russia without announcing to the world that is what they are doing.

    • flounder says:

      In one of their previous filings, I think Trump’s Lawyers appeared to set up the foundation forma claim that anything with his writing on it was a diary entry or memento. So now he wants his crime fraud evidence back and he’s gonna say it I scribbled FAKE NEWS on it’s my Precious. That gets him out of arguing specifically what he needs/wants back.

    • Ginevra diBenci says:

      Actually, much of this whinging would be stopped by an indictment. 41(g) states that a person “aggrieved … by the deprivation of property” can move for its return, but doesn’t that rely on the determination that the search and seizure were “unlawful”?

      We here know the search was legal. So do Trusty and Kise, who are taking checks (likely from the RNC) to sound like real lawyers in court. This gambit seems like a play for time and an attempt to feed the RW media scraps of pseudo-content. My question: does this stall a potential indictment or can DOJ ignore it?

      • Peterr says:

        Note, however, that 41(g) applies to getting your property, not the property of others that you were illegally holding onto.

        • Ginevra diBenci says:

          The scariest thing about Cannon’s ruling is that she seems to create a gray area under executive privilege (citing Kavanaugh), where even documents that would seem clearly covered by PRA can arguably be “returned” to Trump on the basis of confidentiality, proprietorship, or (I’m guessing) the assumption that this SCOTUS will back her up.

      • Robot17 says:

        Oh if Trump is indicted there will be discovery. They can sort it out then. It appears his counsel has already signed off they know what was taken, other than the pesky stuff they lied about and withheld. At least it seems that way to me.

        • Drew says:

          They DO know what was taken: lots of boxes of assorted stuff that Trump had piled together over his years in the White House. HE (and probably they) knows that there was bunches of stuff that was likely both incriminating and deeply humiliating for Trump. (Perhaps also likely to get people he doesn’t want to cross upset at him, with consequences he fears)

          And without help from some well organized investigators, or they hope a magical Special Master, they can’t figure out what to try to get ahead of with their public outrage strategy.

  5. Rugger9 says:

    I’m surprised this gambit has any traction at all. If Corcoran, et al did a thorough search as claimed under penalty of perjury, then it’s wholly on his team that they don’t know what’s in the boxes. The government should point out they have no obligation for do-overs because of sloppy work by Corcoran’s team. The government relied upon defense assertions before finding out they were incomplete. One could also make the case this is an attempt at graymail which could be worth a referral if this motion is proven to be without any merit at all. Proven, not alleged.

    The process is quite Rovian, though and old Turdblossom was notorious for doing this very kind of thing. He was smart enough to do so while the case was still in the court of public opinion, not in front of a judge.

    If Individual-1 is an ordinary citizen as he has argued while whining about how unfair the search is, he needs to be denied here.

    • rip says:

      Your mention of ole turdblossom (k.rove) triggered the thought that gingrich (the newt) has now been “requested” to give testimony. I wonder if we’ll see more characters from the 80s/90s bubbling up from the cesspool (deLay, abramahoff, norquist, and 100s of others.)

      Sort of like the All New Soviets (russia) calling up reserves from the 70+ year olds to fight a modern battle.

    • Ginevra diBenci says:

      I’m surprised too. I wonder what a post-Labor Day new cycle will bring; I hope DOJ indicts, but don’t know if this sideshow precludes that until it’s resolved.

  6. harpie says:

    So, TRUMP knows he was/is hiding multiple possibilities of “certain materials that would incriminate Trump”, and he wants the Government’s help in identifying which particular incriminating evidence they found?

    • viget says:

      I think it is actually this. Trump legitimately has no idea what has been taken (probably because he has no idea what exactly was stored where), other than the stuff that was in his office. That makes preparing a defense somewhat problematic.

      I think the other goal is that he’s still trying to get that affadavit unsealed, as Trusty seems to claim that would allow them to understand why what was seized, was seized.

      Of course, all this seems to be premature bc TFG hasn’t been charged, so rule 41 shouldn’t apply here.

      I’m afraid they will succeed with their secondary goal, which is to delay until after the midterms. If the judge agrees to a special master (not sure on what grounds, the justifications keep shifting) DOJ will appeal. In addition even if she doesn’t, DOJ will probably want to delay indictment as long as possible so Trusty can’t make a Rule 41 motion.

      Either way there is a delay.

      • bbleh says:

        I think until after the midterms is a given, regardless of what Cannon or Trump’s people do; Garland is not gonna indict Trump — even though he’s not on any ballot — before the midterms, not even if his case is ready to go (which I doubt it is yet).

        What continues to worry me is a delay for many months, even a year or more, if a SM is appointed, takes months to do his/her work, and then everything is litigated, quite possibly up to SCOTUS level if executive privilege is involved. (And as an aside, if that happens, who knows what this SCOTUS would rule out of bounds? Who knows how much of the proceeds of the search would be deemed poisonous?) There are still all kinds of opportunities for mischief by determined right-wingers.

        • Rayne says:

          IMO, waiting until after the midterms is in the public’s best interest. Indicting before *will* affect voter turnout, and unfortunately not in the fashion serving the public as MAGA voters would be activated and offset the mounting wave of pro-choice voters.

          It would be better if the DOJ — and I’d really rather we depersonalized this because this is supposed to be a nation of laws, not men, and the laws have been violated — indicted Trump shortly after the midterms. He and his minions may understand this since he’s now having rallies where GOP candidates are struggling.

        • Badger Robert says:

          This is correct. If the Justice Department needs to speak through indictments it has multiple options that don’t involve an indictment of Trump prior to the midterm elections.

        • cmarlowe says:

          “MAGA voters would be activated and offset the mounting wave of pro-choice voters.’

          I am not saying that is wrong, but could you tell me what your basis for that is? Thx.

        • cmarlowe says:

          That hardly qualifies as polling data. The FBI search could be argued to have the same effect, does that mean it should not have been done?

          The same could be said about the J6 committee hearings as well as Biden’s anti-facist speech. Do we really need to avoid offending Trumpdom?

          It can be argued that the items found in the search ( and to no small measure a different photo, the one showing TS documents) may drive undecided and anti-MAGA voters. The details of a multiple count indictment could enhance the effect. Of course I don’t have polling data on that either.

        • Rwood says:

          I have to agree.

          Both Biden and Garland have basically stated that the gloves are off, they should back that up. The DOJ pulling its punches and pointing to “norms” again will just infuriate the blue voters.

          If trump is treated even slightly better than the average Joe it’s more evidence of injustice in their view. Those in the know may understand the need to wait, but the majority of the general public just see trump getting away with it…again.

        • Rayne says:

          LOL There won’t be polling data; if right-wing incumbents/candidates were to gather that, they’d do everything possible keep it under wraps. There will be influence operations based on long-compiled marketing data waged inside social media most on the left will not see, activating right-wing voters in the same way that these January 6 asshats were motivated. Due to in-group social pressure and demographics, it takes considerably less effort to turn out right-wing voters to get to the polls than it does to get them to show up to riot on the White House. The messaging which worked on the insurrectionists was aimed at those already identified as most likely to get in a truck with weapons and drive to DC.

          Let’s not forget the messaging most on the left never saw which encouraged the trucker convoy. Or the messaging which spurred all manner of anti-vaxx/anti-mask/anti-lockdown protests. The messaging literally encouraged right-wingers to their illness, disability, and deaths. The data is out there – just comb through Charles Gaba’s Twitter timeline. All of these destabilizing right-wing initiatives are the polling data you want.

          Watch specifically over the next eight weeks for messaging which does make it in the open to the general public to take a particular form: A vote for [right-wing candidate] is a vote NO against the radical left, with an emphasis on taking guns away. It’s statistically proven voters are more likely to turn out to vote No rather than Yes (sorry, I no longer have related research at hand provided during a ballot initiative training program I attended).

          The J6 Committee doesn’t have the same policy of avoiding disruption of elections as DOJ does. What may keep the J6 Committee restrained during the next two months is that most of its members must campaign for their jobs during this time frame.

        • SMF88011 says:

          He might try to announce right before or the day of the election that he is running for President and hope that will keep him from being indicted until after the Statute of Limitations expire. It won’t work but he will do whatever he can to avoid going to trial.

        • Rayne says:

          As soon as he announces his candidacy, all his campaign contributions are subject to FEC scrutiny. This is likely what keeps him from having gone there already.

        • Rayne says:

          There’s that…but I suspect RNC will have a tough time shutting off the cash going to Trump and not the RNC.

          I can’t help laughing about Rick Scott siphoning off NRSC cash at the same time.

        • civil says:

          The DOJ’s policy is not to indict a candidate during the 60 days prior to an election. Someone being a candidate doesn’t stop the DOJ from indicting if the election is more than 60 days away. Beyond that, some AGs have also said “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party” (quoting Holder and Lynch). Presumably the timing would be determined by the evidence.

        • Purple Martin says:

          …thus the “or” in:
          “…giving an advantage or disadvantage to any candidate or political party”

        • civil says:

          I know, but the issue raised was what happens if he declares candidacy (e.g., whether indictment is then precluded), and the policy also addresses actions that might affect a political party, not just a candidate.

        • Patrick Carty says:

          I’m confused. What can a Special Master do regarding materials that are not Trump’s to begin with? Aside from some framed magazine covers these are documents that should never have been removed from their original secure environment, and I do not understand any circumstance for a delay in their return let alone FBI retention.

      • Ginevra diBenci says:

        Thanks, viget. I knew Trusty was playing both sides against the middle by claiming not to be making a Rule 41 argument while doing just that. You made it clear why.

      • DrDoom says:

        I have a NAL question about the possible indictment being delayed. Trump is not on the ballot, anywhere. What prevents an indictment from being lodged between now and the midterms, either black letter law or custom? I understand not indicting or commenting on a matter involving a candidate during the 60 days prior to an election. But Trump is not a candidate, so doesn’t ruling out any action within 60 days of an election treat him differently than any other (potential) defendant? Wouldn’t dropping the indictment in the 60 day window be entirely consistent with Garland’s policy that DoJ will pursue crimes without fear or favor? I am not saying he would do it, but I am suggesting that it might not be dismissed out of hand.

        • bbleh says:

          Why delay even for a candidate? Answer: it’s incendiary politically. It interferes with the election, not in the sense of tampering with the mechanics but in the sense of affecting the minds of the electorate. Consider a Trumpian DOJ issuing a b-a-r-e-l-y justifiable indictment of a Dem candidate just a few weeks prior to an election (and we have a real case not too far off from that): it would be an abuse of governmental power. And even though Trump is not on the ballot as a candidate, he is very much on the minds of voters on both sides.

          I can’t imagine they’d do that, and they’d be right not to. They may even hold off indicting significant secondary figures out of an abundance of caution.

        • civil says:

          My understanding is that they don’t want to indict or engage publicly in any major investigative action that would impact a candidate, party, or election within 60 days of the election — so the policy isn’t limited to indicting a candidate. I expect that they’d decide that some action involving Trump could affect the election, and I agree with Rayne that it would motivate Trump’s base to turn out, so I’d just as soon that they wait.

        • Ginevra diBenci says:

          And now they won’t have to, thanks to Judge Cannon’s ruling which stays the DOJ’s criminal investigation while the special master TBA reviews everything, not just for attorney/client but for nebulous executive privilege.

    • eyesoars says:

      It’s easy to imagine a judge dryly informing Trump lawyers Robot17’s conjecture: “That’s traditionally called ‘discovery’. Why don’t you wait for the indictments first?”

      • Robot17 says:

        You get the prize. Too subtle I guess…

        Not certain what the prize is. Maybe I’ll buy a lotto ticket and promise to share the winnings with you hahaha

  7. jeco says:

    trump knows there are skeletons buried in the MAL crypt but has no record of whats there and whats been sent to other hiding spots and he can’t remember. If FBI comes across other evidence of criminality they have to pursue it. He can try to get all records back on bogus claim of exec priv. Most of his atty client priv stuff is probably subject to fraud exclusion anyway: Rudy and the Willard Crew that couldn’t coup straight. (Why are so many of his lawyers criminal suspects?)

  8. jhinx says:

    Bobb [in June]: We did a diligent search. Nothing else to see here. Nah! Don’t touch those boxes. Move along now.

    Corcoran [now]: Holy shit, this is SO unfair! We have no idea what was taken! The Court should appoint a Special Master, and oh, let us rifle through the boxes too. Otherwise there could be grave harm to myse- I mean Movant!

    • timbo says:

      Yeah, that seems to be what some of their filing and statements to the judge might amount to. The fact that Cannon is entertaining these sorts of nonsensical requests is not an indicator that Cannon is a clean judge.

      • Robot17 says:

        $500 fixes that. But let’s wait and see. Maybe just posing for the audience before the obvious decision. We can only hope.

  9. Attygmgm says:

    Trump’s argument is narrow and weak, but seems to be this sliver: I did not have any inventory of personal things seized with the government records, so I need more info to know what is missing. Huge appreciation for Prof. Wheeler’s persistently deep analyses. Let’s hope the courts act more promptly and more responsibly than they did while he was in office.

  10. Amicus says:

    Right now it’s a race. Every day that Judge Cannon delays ruling is another day for DOJ to review the seized materials and hopefully that also includes review of the documents not bearing classification designations to determine whether there are other incriminating documents. The Trump team’s behavior is certainly an indication that there are. Given the very high level treatment of this matter such a multi-faceted, comprehensive review ought to be ongoing. It was easy for Judge Cannon to issue her proposed ruling and maintain control of the case. But if she is inclined to continue to try and exercise control over DOJ’s investigation she has now to issue an order that is not subject to appellate review. And I think that is challenging. A limited order appointing a special master to pass upon DOJ’s attorney-client privilege assessments and make recommended rulings might pass muster. But the sorts of things Trump’s lawyers have asked for such as the provision of copies of the documents (many of which cannot lawfully be copied) or the Judge’s suggestion (if I recall correctly) of staying the DOJ’s criminal and counter-intelligence review of the materials plainly sound in the nature of injunctive relief, even if she tries to write around that point. And in the face of such an order, DOJ almost certainly must go to the court of appeals. But which one? The Eleventh Circuit is obvious but could DOJ instead go to the D.C. Circuit? Two can play forum shopping and there are a multitude of contacts with D.C. here. (I realize this would be extremely unusual and maybe it has no chance but you have to think through options when the stakes are this high.) Again, hopefully, some smarter bunny than I in DOJ is already thinking this one through.

    • bbleh says:

      IIRC she mused about staying DOJ’s criminal review but explicitly NOT the intelligence review. But staying the criminal review would be entirely bad enough.

      • Amicus says:

        And to be clear, I am not suggesting DOJ could directly appeal her order(s) to the D.C. Circuit but instead that DOJ could create (or her orders could result in) conflicting orders in DC that brings the D.C. Circuit into play. One of the key questions not resolved (which Marcy raised a bit ago) is where venue should be for violation of the potential crimes identified in the warrant.

        • Ginevra diBenci says:

          The grand jury is in DC. The criming has been so profligate, its chronology so protracted, that jurisdiction seems a question without any unifying answer. Thanks, Amicus, for laying out the issues. Given that there seems to be more than one perpetrator (that is, there are others with potential exposure like Kash Patel and Evan Corcoran), could there be trials in different venues?

  11. earlofhuntingdon says:

    Lawyers often argue in the alternative: “My client didn’t do A. If he did do A, it was because of valid excuse B,” sort of thing. But I don’t think that applies to a lawyer’s own conduct. If they claim “they” did Z in a public filing, they either did it or lied to a court about it.

    Judge Cannon did not seem too familiar with F.R.Cr.P Rule 41(g). And didn’t seem moved by the government’s obvious statement that a “Motion to Return Property” presupposes that the property is the defendant’s. (Or that the defendant had possessory rights to it, as in a bailment, where defendant legally holds the property of another, for that other person’s use). As the government pointed out, the materials the FBI sought were the property of the USG. In fact, its unauthorized possession by any other party is a crime.

    • Ginevra diBenci says:

      I assumed that Trump’s lawyers are deliberately conflating his “personal property” with the government documents, for the purpose of claiming they meant the former. This willfully neglects the FBI’s right to collect the government’s property along with the evidence of the other crimes it was authorized to investigate, including obstruction (like hiding classified files among magazine clippings) and mishandling said documents (removing classification covers).

      He can scream “They took my passports!” knowing most don’t understand (and aren’t being told on the media they attend) that they had the absolute right to take them, along with the evidentiary need to do so. In hindsight, it seems returning them may have been a mistake.

      No one seems to have informed them of the crime/fraud exception to privilege claims, either.

      • earlofhuntingdon says:

        As you point out, even if the feds seized personal documents, they were allowed to seize them if they were stored in proximity to illegally possessed government documents. They would be allowed to retain them for a period of time, to establish various things, including how insecurely Trump handled government documents.

        It would be premature for Cannon to order their return. and it would be improper to demand the return of government documents.

        • Ginevra diBenci says:

          Earl, I am eager to see yours and others’ interpretation of Cannon’s ruling. While she does not order return of government documents, she seemed to me in her discussion of executive privilege to leave the door open to arguments by Trump for him retaining some of those–in addition to the “medical documents” and other apparently personal items she mentions early on.

          Her whole treatment (indeed inclusion) of executive privilege disturbed me. It seemed like a pretty radical argument, grounded almost entirely on that single recent SCOTUS case–from which she cites Kavanaugh, as if he were Brandeis.

        • harpie says:

          Hi Ginevra! After seeing your comment about Kavanaugh, I had to refresh my memory about that SCOTUS ruling, learning this [bolded], which I had not previously known: https://www.nytimes.com/2022/01/19/us/politics/trump-supreme-court-jan-6.html

          […] Justice Brett M. Kavanaugh, who served as staff secretary to President George W. Bush, was the only justice to issue a signed opinion in the case. He said the appeals court, in a passage the majority had said was nonbinding, had been wrong in its analysis.

          “A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” Justice Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.” […]

        • Ginevra diBenci says:

          Thanks, harpie! Always an outlier, that Kavanaugh. Almost as if he foresaw just such a circumstance as this. What a mind.

  12. John B. says:

    Maybe the doj can tell them they’ll give them a list of every purloined item retrieved if they’ll give them a list of all the parents and children they broke up at the border.

  13. Marika says:

    It appears from the latest unsealing of search warrants etc. that the original request was for all material taken from the WH not all material taken from the WH to MAL. The affidavit that Bobb signed is wholly inadequate in a number of other ways. I have never seen an affidavit (contrast it with the one signed for the search in the New York State case) that does not specifiy what was searched and who did the search in what time frame. I have been involved in many copyright disputes over the years (as a plaintiff not a lawyer) and have had to sign such affidavits in discovery. I don’t understand how that affidavit was accepted in the first place? Why hasn’t the inadequacy of that affidavit been brought up by the DOJ?

    • PeterS says:

      Are you sure it’s in the DOJ’s interest to bring up that inadequacy (as opposed to the blatant inaccuracy)?

      • Marika says:

        I was wondering if it could serve as a basis for a further search warrant. I suppose they could also use it against Bobb and Corcoron to get their testimony? Can they simply say, I didn’t lie in the affidavit, I relied on what I was told, is there any repercussion for the inadequacy alone?

  14. PeterS says:

    Are you sure it’s in the DOJ’s interest to bring up that inadequacy (as opposed to the blatant inaccuracy)?

  15. Bay State Librul says:


    We missed you
    Your Clemens reference is killing me.
    Every time Clemens visits Fenway, he goes on NESN and kisses asses.
    Debbie Clemens was the one taking roids
    Old MacNamee is still in witness protection

    • Ginevra diBenci says:

      Thank you for the link, obsessed. The writer, a Harvard Law student, did a great job of conveying the content and tone of what sounds like a wearing afternoon in Florida court. She clearly knows the value of verbs! (Jay Bratt “trudged,” Trusty “griped,” etc.)

    • earlofhuntingdon says:

      It’s refreshing to read how a competent lawyer like Bratt deals with legal issues and a court apparently well-disposed toward Trump. Trump’s lawyers, on the other hand, need a stout broom to clean up the mess they make every time they make an argument.

  16. earlofhuntingdon says:

    Scottacular seems to think only British reporters know how to call bullshit when interviewing American political shits, who want to issue press releases rather than answer questions. Not.

    A few years back, Dutch reporters gave the new American ambassador, Republican Pete Hoekstra (an undocumented Dutch immigrant to the US), a memorably rude awakening when he didn’t want to answer an embarrassing question: “This is the Netherlands, you have to answer questions.”


  17. The Old Redneck says:

    The transcript suggests this is headed in a depressing direction. Judge Cannon will decide there should be a special master review, and that the SM will review not just for attorney client privilege, but executive privilege too. Presumably, that’s why she asked what would prevent Trump from raising executive privilege for some period of time after he leaves office (a point not even Trump’s lawyers were really pushing). I hope this turns out not to be the case, but that’s what the tea leaves from this hearing indicate.
    Sometimes you don’t need the right arguments. You just need the right audience.

    • BobCon says:

      One of the fundamental mistakes of pundit-think is accepting Trumpworld’s framework of things being contained to just one point.

      We have no idea if this is just Mar A Lago and just this search and just this set of documents and just Trump and just this judge. We don’t know, even if she issues a spaceballs ruling demanding Hillary Clinton testify about Whitewater, how this plays out or what cards DOJ has up their sleeves.

      As MW has pointed out, one of the reasons why Trump’s legal representation has been so poor is that he is stretched among multiple legal challenges right now in New York and Georgia and elsewhere. We don’t even know if this ends up being a sideshow.

      There is no guarantee that he will be indicted let alone convicted. But this reading of tea leaves is just premature. This is not the first fumbling efforts by House Democrats in 2017 to think up ways to use their limited options as a minority in Paul Ryan’s chamber to challenge Trump. This isn’t how things were in 2020 with Bill Barr firmly in command of DOJ. It isn’t even how things were in early 2021 when Garland was first sworn in. We just don’t know how this ends.

      • earlofhuntingdon says:

        Trump brags about being one of the richest guys in the world. He has access to half the rubes in the northern hemisphere, who give him money to keep him safe. He would have no trouble hiring and retaining lawyers, if he weren’t among the worst clients possible to have.

        If Trump were half as smart as the genius he claims to be, he would hire whatever lawyers he needs. He would recognize that there’s too much to coordinate himself, and so he would hire a single lawyer to coordinate the others, to collect, collate and direct their work, and to assess and prioritize Trump’s overall vulnerability.

        Trump, of course, will do none of that, and that’s on him.

        • BirdGardener says:

          “Trump brags about being one of the richest guys in the world.”—I certainly don’t believe him. He’s such a Dickensian character; almost the stereotypical Great Investor who’s accepted into high society despite dubious origins because he might be able to make some impoverished gentry rich—but instead scams them all. (I actually have Trollope’s Melmotte in mind.) I suspect he spends his personal income as fast as it comes in. If he truly were rolling in money, he’d pay up-front for a good criminal defense lawyer, despite his stinginess, out of sheer self-protection. After all, if he had enough money, he’d be making enough in interest to recover the lawyer’s fees over a reasonable period of time, without affecting his lifestyle.

          So where you’re thinking he’s not paying for great lawyers because of —hubris?—which I agree is part of what’s driving his decision-making—I suspect he also doesn’t have anywhere near as much money as he pretends. Could be wrong, of course!

          And ‘hubris’ is definitely an adjective that fits Trump to a T.

        • P J Evans says:

          He also doesn’t understand how money works. He doesn’t think in terms of investment. All his income seems to be from licensing and “donations”.

        • earlofhuntingdon says:

          Oh, nobody believes him, certainly not the people who’ve earned their money the hard way.

          Trump’s not paying his lawyers for the same reason he stiffs so many other contractors. He’s a cheap shit. It’s his lifelong habit and defining characteristic. He thinks it’s savvy and manly not to pay them, and that he’d be a chump if he did. He also thinks everybody should work for him for free, because he’s a superhuman being.

        • Yorkville Kangaroo says:

          Except he was never ‘accepted into high society’, something which has sat in his craw for decades. High society in NYC doesn’t even consider him as nouveau riche. They see him as a blowhard poseur with zero taste, class or sophistication and probably without any actual wealth to speak of which, in fact, he is.

    • Ginevra diBenci says:

      Shoutout, Old Redneck. Have you read the ruling? It proves your comment was prophetic.

      “The right audience” indeed.

  18. BobCon says:

    One of the fundamental mistakes of pundit-think is accepting Trumpworld’s framework of things being contained to just one point.

    We have no idea if this is just Mar A Lago and just this search and just this set of documents and just Trump and just this judge. We don’t know, even if she issues a spaceballs ruling demanding Hillary Clinton testify about Whitewater, how this plays out or what cards DOJ has up their sleeves.

    As MW has pointed out, one of the reasons why Trump’s legal representation has been so poor is that he is stretched among multiple legal challenges right now in New York and Georgia and elsewhere. We don’t even know if this ends up being a sideshow.

    There is no guarantee that he will be indicted let alone convicted. But this reading of tea leaves is just premature.

  19. Tom-1812 says:

    After watching excerpts from Trump’s last MAGA rally in Pennsylvania, I’m starting to think you can’t be semi-fascist any more than you can be semi-pregnant.

        • Savage Librarian says:

          More like Big Lie; Big Rip-off; Big Rig (as in manipulate fraudulently.) The semi images to keep in mind are the truck convoys.

        • Tom-1812 says:

          Now don’t forget, they’re not just truck convoys, they’re FREEDOM convoys! Somehow the extreme right wing has managed to make the word freedom seem vaguely distasteful. Guilt by association perhaps. Or maybe Mel Gibson is partly to blame because “Braveheart” has got to be one of the absolute worst ‘historical’ movies I’ve ever seen. Given the subject matter and the historical figures involved, what could have been a thought provoking epic film was rendered into just another Mel Gibson movie.

    • Yorkville Kangaroo says:

      Biden’s choice of word salad using the phrases ‘MAGA Republicans’ and ‘semi-fascists’ was a labored attempt not to repeat the HRC ‘basket of deplorables’ comments. It did no one any favors. It hedges and vacillates.

      Right now the VAST majority of the GOP are, in fact, MAGA supporters and enablers and BECAUSE they fully understand what is happening (they’re not ALL idiots like Marjorie Taylor Greene and Lauren Boebert) they are ALL entitled to be labelled exactly what they are:

      Fascism is a far-right, authoritarian, ultranationalist political ideology and movement, characterized by a dictatorial leader, centralized autocracy, militarism, forcible suppression of opposition, belief in a natural social hierarchy, subordination of individual interests for the perceived good of the nation and race, and strong regimentation of society and the economy.

      – from Wikipedia

      *I know not usually a reliable source but this is, after all, merely a definition*

    • earlofhuntingdon says:

      Cannon’s order has no precedent, but creates a foul one. Her attempt at humor, “What’s the harm?” was a strong signal her sympathies were with Trump. I assume the DoJ read that, too, and has its response prepared.

      The delay here is harmful but not fatal, but the devil will be in what precisely the SM is authorized to do, with whom she is authorized to communicate with ex parte, and the time frame within which she is supposed to complete her work.

      Cannon and her FedSoc brethren mock Justice Roberts’s claim that judges just call balls and strikes. But it was transparent bullshit from the start.

        • civil says:

          No the order doesn’t stop the criminal investigation as a whole, only the portion of the investigation based on these documents. They have earlier documents, they have the surveillance video, etc.

      • civil says:

        Her order doesn’t create binding precedent for any court. The DOJ certainly can appeal it as a bad ruling, but they may decide that it’s faster just to accept a Special Master with a limited time frame for review.

        • Yorkville Kangaroo says:

          Or, if the SM review is going to take forever (and it will due to the nature of the documents) go straight to appeal and it may be faster.

    • Raven Eye says:

      Is one of the side hustles Trump’s legal team might be working on is to pull Biden into this fray by making an explicit statement regarding Executive Privilege?

      Also, is DOJ likely to appeal this ruling even whilst preparing to meet Cannon’s requirements?

      • bbleh says:

        And perhaps someone versed in relevant caselaw and procedure could also comment regarding
        — WHETHER this order can be appealed (online opinion seems to be resoundingly ‘yes,’ but one doesn’t know who’s commenting)
        — Presuming it can, WHEN it can be appealed (eg, immediately, only after appointment and remit are settled, only after review … )
        — WHY most likely it might be overturned (procedural missteps, errors of fact, precedents regarding EP, precedents regarding 4th Amdt law, I’m sure there are others …)
        — HOW LONG it might take to get it settled (everybody assumes nothing will happen until after election, but then what?)
        — In the meantime WHAT (if anything) DOJ can do to move forward given that it has already reviewed much of the material, and
        — Whether this might put the entire investigation at risk, given that it may not now be possible to extricate information gained from the proceeds of the search if it’s declared privileged

    • PeterS says:

      I note the judge mentions the need to ensure “the integrity of an orderly process amidst swirling allegations of bias and media leaks”. Well, isn’t that dandy, team Trump stirs the media pot with leaks and helps their own case.

  20. earlofhuntingdon says:

    Judge Cannon’s unprecedented order is appealable. The question for the DoJ is which route would delay and confound its investigation more vs. create a bad precedent that might affect a large number of other cases.

    Cannon’s legal and factual errors are many. But the 11th Cir. is conservative – and Trump has appointed more than half its members. It’s guaranteed one side or the other would appeal to the S.Ct.. If it accepted, it would increase the delay and risk enshrining a bad precedent through a higher court’s decision. Before Trump, McConnell, and Len Leo, this would have been a more than winnable case. In fact, there would never have been a Judge Cannon at all.

    Not appealing this order leaves the matter with Cannon for now. What sort of SM would a judge who wrote this order appoint? Would she limit her search to someone who already holds a high enough clearance? How lavishly would she empower them? What ability to communicate with Trump’s team – ex parte – would she give them? What extended timetable might she set. If Cannon is willing to go as far as she did in this order, I think not appealing her order is a greater and broader risk than losing an immediate appeal to the 11th Cir. and/or the Supremes.

  21. earlofhuntingdon says:

    Cannon writes as if she knows nothing about the criminal law or the PRA, and hasn’t bothered to ask a clerk to look them up. In fact, she sticks a shiv in the PRA. Yet, she has degrees from Duke and U. Mich. law school, clerked for a US appeals court, worked at a white shoe firm (Gibson, Dunn), and had a stint as an AUSA in the SD of Florida. Clearly, she knows the law better than the writing in this order demonstrates.

    Her pearl clutching about fairness is beginning to look like cover for being strongly biased in favor of one party – but “I’d like to hold off judgement on a thing like that…until all the facts are in.” Farce is the only venue for describing Cannon’s work here without tears or expletives. Len Leo is laughing his ass off.

    • Badger Robert says:

      Your description is of an order that is deliberately bad. Its as if she is meeting her obligation to Trump, but doing it so poorly that its sure to get appealed.

      • Ginevra diBenci says:

        I started wondering if she might be veering into “unprecedented” (literally) legal territory on purpose when she embarked on her executive privilege pipe dream. It seemed she might have issued a focused ruling on attorney/client privilege, but relationships outside court (those Federalist Society folks hold their protegees close) made her go off course.

        An appeal (see earlofhuntington on the appeals courts, above) that might survive in part would argue these issues separately, as DOJ is more than capable of doing.

    • earlofhuntingdon says:

      Judge Cannon’s version of the law is like Dr. Oz’s version of geography: “I grew up south of Philadelphia,” Dr. Oz says, implying that he has a long association with Philadelphia and the Keystone state. A sixth grader could point out that the only thing “south of Philadelphia,” apart from the Delaware River, is New Jersey.

  22. Badger Robert says:

    Might Attorney General Merrick Garland finally realize the price of his caution and slow pacing is unacceptably too high?

  23. Paulka says:

    I am completely confused over the EP issue. Trump’s lawyers didn’t ask for an EP review by a SM? Yet the judge is giving the SM authority to review for EP? What could be the impact of an EP review, i.e. the SM would exclude documents from the investigation due to some supposed Trump’s EP prerogative? How would the metrics of that evaluation even be measured? Doesn’t the EP sit with Biden? I find it impossible to understand how Trump could control classified documents. That is what the argument of EP is, right? But the documents in question are without a doubt government documents, right?

  24. meryvr says:

    I read as far as Cannon quoting the Richey court that a wrongful indictment could create a “blot on a man’s escutcheon” and fell over laughing.

    In med-speak – more familiar to me than heraldic terms, so the first definition that sprang to mind – an escutcheon is the shield-like pattern of pubic hair.

    • Ginevra diBenci says:

      Yes! Full circle back to Stormy Daniels, who might well be the subject of some of those “personal” documents. (Or the “accounting” ones, because the financial is personal.)

    • MB says:

      Well…”escutcheon” also means “a flat piece of metal for protection and often ornamentation, around a keyhole, door handle, or light switch”.

      Therefore, a blot on all his escutcheons must be avoided! Every keyhole, every door handle, and every light switch (at all his establishments, throughout his imagined kingdom)…

      This is literally…hijacking the judicial system to “legally” provide him with narcissistic supply.

Comments are closed.