Team Trump Knows Details of the Investigation that Jay Bratt Does Not — and Trump’s Already Leaking Them

The WaPo report that one of the documents seized from Trump’s resort pertained to “a foreign government’s military defenses, including its nuclear capabilities” is currently 27-paragraphs long. Of those 27 paragraphs, three quote Trump’s attorney, Christopher Kise, using the story to claim that the harm Aileen Cannon imagined in her opinion enjoining the government had come to pass.

Christopher Kise, a lawyer for Trump, decried leaks about the case, which he said “continue with no respect for the process nor any regard for the real truth. This does not serve well the interests of justice.”

“Moreover, the damage to public confidence in the integrity of the system simply cannot be underestimated. The responsible course of action here would be for someone — anyone — in the Government to exercise leadership and control. The Court has provided a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”


Kise, the Trump lawyer, cited that part of the judge’s reasoning Tuesday night, saying “the damage to public confidence in the integrity of the system simply cannot be underestimated.” He said the special master appointment by the court provides “a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”

These Kise quotes may have been added in by Josh Dawsey, who was added to the story after an earlier version that lacked the Kise quotes.

Seven paragraphs are dedicated to laying out Aileen Cannon’s opinion, including some passages that are so ridiculous, they deserve a factcheck.

She also reasoned that a special master could mitigate potential harm to Trump “by way of improper disclosure of sensitive information to the public,” suggesting that knowledge or details of the case were harmful to the former president, and could be lessened by inserting a special master into the document-review process.


Cannon wrote that Trump’s position as a former president means “the stigma associated with the subject seizure is in a league of its own,” and that a “future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

The fact that over a third of this story reporting on leaked information about the things found in the search focuses on the manufactured prospect that leaks to the press about the investigation would be worse than leaks of the actual documents advises some caution — especially since several of the claims in the story are attributed to single sources and all are described only to be “familiar with” the search or the matter.

A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter,


Only the president, some members of his Cabinet or anear-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.


It was in this last batch of government secrets, the people familiar with the matter said, that the information about a foreign government’s nuclear-defense readiness was found.


One person familiar with the Mar-a-Lago search said the goal of the comprehensive list was to ensure recovery of all classified records on the property, and not just those that investigators had reason to believe might be there.


Investigators grew alarmed, according to one person familiar with the search, as they began to review documents retrieved from the club’s storage closet, Trump’s residence and his office in August. The team soon came upon records that are extremely restricted, so much so that even some of the senior-most national security officials in the Biden administration weren’t authorized to review them. One government filing alluded to this information when it noted that counterintelligence FBI agents and prosecutors investigating the Mar-a-Lago documents were not authorized at first to review some of the material seized.

As described, these sources are familiar with the need to recover certain documents and the complexities about classification and clearance. The description of how, during the search, alarm grew about the sensitivity of the documents is sourced to someone who seems unfamiliar with public details about where this document, by definition, would have been found (in the leatherbound box). While I suspect it’s not, it could even come from someone — like a Secret Service agent onsite or someone watching video remotely — who merely observed the search.

Like I said, while I have no reason to doubt the report (indeed, I think it highly plausible, based on the date, that one of the visible documents in DOJ’s picture from the search pertains to JPCOA and therefore to Iran’s “military defenses, including its nuclear capabilities”), I would caution about the motives of those behind it.

Especially since, for almost a week, Team Trump has been privy to parts of the investigation that Jay Bratt, the prosecutor overseeing the investigation, is not.

Close to the beginning of last Thursday’s hearing, Judge Cannon had the filter lawyers share their status review with Trump’s lawyers.

MR. BRATT: So, Your Honor, we have the two filter attorneys present here. We have not seen it; and, certainly, our main concern would be that there was nothing in there that would then get out and taint members of the investigative side. So I would defer to them as to whether the whole document can be unsealed and provided to Defense or whether only a portion. I’m sort of speaking blindly about it.


THE COURT: Good afternoon. My question, Mr. Lacosta, is directed only at the status report not exhibits A or B. What is your position with respect to making that available to Plaintiff’s counsel?

MR. LACOSTA: Your Honor, we have no objection with the pleading itself being made to Plaintiff’s counsel, both the pleading, exhibit A and exhibit B, but we would ask that it remain under seal.

THE COURT: Okay. So for now, please, I’ll ask my team to make those documents available to Plaintiff’s counsel. And because those are lengthier, I’m going to take a 15-minute break for Plaintiff’s counsel to review them. The Court is in a brief recess.

THE COURTROOM DEPUTY: All rise. (Recess was had at 1:11 p.m.; and the proceedings Resumed at 1:26 p.m.)

THE COURT: You may be seated. All right. Has Plaintiff’s counsel had enough time to review that status report?

MR. KISE: We have, Your Honor.

THE COURT: Okay. What is your position on the unsealing of the report itself, minus the exhibits?

MR. KISE: Your Honor, respectfully, we think that both the report itself and the exhibits should remain under seal at this time. The report itself does make some substantive references to privileged material; and, in an abundance of caution, we want to make sure that we don’t get into a situation where there is a waiver claim of some kind. So, respectfully, we would ask the Court to keep it under seal. There may come a time, after we understand a little bit more, where that position could change; but certainly for now, Your Honor, we don’t want to have a waiver situation.

THE COURT: Okay. Well, seeing as it is a joint request at this point to continue the seal as to the filter review team status report and associated exhibits, that document will remain under seal, and the parties should be careful to adhere to that in their presentation today.

This step was actually fairly central to the asymmetry that Cannon used to find some ownership interest in medical and tax documents that Trump might not even own. Bratt couldn’t rebut Cannon’s representations about the material because he is specifically prevented from seeing these materials until after privilege determinations get made.

Significantly, Kise seemed amenable to releasing the content of the material so long as it didn’t involve a waiver of privilege claims.

And Trump just tweeted about precisely this material — material the filter attorney had asked to share with Trump’s lawyers last Thursday, but Cannon prohibited.



There should be no way that a nuclear-related document was mentioned in that privilege progress report. Based on court filings, there are just three items that were initially placed in the potentially privileged bucket that have classification markings.

One is Top Secret (buried along with clippings from 1995!). But at least as described, it doesn’t bear compartment markings.

Trump team has knowledge about things that Jay Bratt does not, but that doesn’t likely extend to that nuclear document.

I mean, Trump likely has knowledge of what documents were in his leatherbound box. But unless he’s confessing to storing that in his closet directly, his team is likely not the source for that part of this story.

On TeeVee this morning, Marco Rubio — who seems to be staking his Senate seat on groveling to Trump — claimed that the only people who have knowledge of the investigation are at DOJ (he also egregiously misstated what happened after Trump refused to fully comply with a subpoena for the marked documents). That’s definitely not true of the most sensitive documents seized there, which an entire apparatus of secrecy must be involved with. But as of last Thursday, we can say with certainty that there are aspects of the investigation that Trump’s team knows more about than the guy leading the investigation.

And Trump is already making claims about things that prosecutors cannot and have not accessed.

164 replies
  1. Peterr says:

    What was it that Nixon is alleged to have said? “It’s not a leak if a former president does it”?


    (I have to say that I found the “absolutely perfect physical specimen” line hilarious.)

      • Peterr says:

        If you think the conspiracy theories that have been flying around for the last 10 years have been crazy, strap in because the conspiracy theories that would follow a death like that would make the stories around Vince Foster or Pizza Gate look downright tame.

        • Addison says:

          I could live with it — as long as that death finally, FINALLY shut that incessant ignorant nonsensical blather for all time.

      • MB says:

        You mean, more fucked than we already are at the present moment?

        More pragmatic than dealing with the fallout of “dying as a martyr”, how do we deal with a malignant narcissist when he can no longer have his way with everything? That becomes self-(and other-)destruction territory. Dragging as many people (and institutions) down with you as you can manage in a furious whirlwind of vindictiveness…

      • Krisy Gosney says:

        Trump will never die. Just the way JFK Jr has never died. As long as there is a buck to be made and cult members to be had Trump will always be just around the corner.

        • Commentmonger says:

          What I see is 500 years from now, people will be celebrating Festivus – complaining about things from the past year.. all waiting for The Donald to come and throw paper towel rolls with his 3 wives, and kids will play the game that the innkeeper locks you up until you tell them a secret and can go free, ending with 2 scoops!! of ice cream.

          Of course, 500 years from now it will be cold tofu balls

    • puzzled scottish person says:

      Re ‘leaks’:
      In an alternative universe, Pink Floyd are performing Animals live. The pig balloon appears on high, only it’s The Donald. It describes a few clumsy arcs, then pops and tears over and over the crowd in a series of crazed Looney Tunes-style loops and lurches before immolating itself in a gargatuan fart which breaks the windows and bursts the eardrums of half of London and fells two of the Battersea Power Station’s chimneys.

      Then the pig’s lawyers pop up and assure us that we didn’t see what we just saw: it was only our lying eyes lying to us.

      And then, sadly, I woke up ;-)

      • Fran of the North says:

        Thank you for recounting your fever’d dream. Today I Learned (TIL) that Battersea Power Station was the location for that iconic album cover. My regret is that my original copy went missing at some point in my past.

    • meryvr says:

      This, after diligent application of mental floss to dislodge the disturbing images that flashed through my mind two days ago in the 8-10 seconds my brain took to buffer between the anatomical and heraldic meanings of escutcheon.

      Sorry in advance for the following, but frantic mental flossing isn’t without serious risks:

      He stands before the looking glass,
      Puffs out his chest, admires his ass.
      Thinks my god, cannot they not see
      The pure Adonis that is me?
      Those who don’t are not just vicious,
      They’re nasty, mean, downright seditious.

      Thing is, this guy has failed to notice
      That he is the former POTUS,
      No sense at all of what that means,
      He sits about and counts his beans.
      Ching ching ching the sikrets fall:
      This guy thinks he knows them all.

      Thus the folk who do the putschin’
      Miss the blots on his escutcheon.
      Worry not, we still can hope
      (It’s clear that he’s a total dope):
      He doesn’t know that mythic boar
      Was Special Master Albert Gore.

  2. tryggth says:

    “…if the goal is, as it should be, to find a rational solution to document storage issues…”

    Channelling Rubio?
    ‘rational solution’ seems wishful thinking.

  3. BobCon says:

    I wonder if Trump or his people are dumb enough to reveal classified info in their zeal to score points, and make their situation even worse. This isn’t like a tax case where Trump has wide freedom to leak his information selectively but the government cannot.

    They may easily screw up and think as long as they don’t show an actual document they’re OK, and not realize that even summarizing restricted information may trigger new charges depending on what they reveal.

    • Rugger9 says:

      ‘Talking around’ a classified topic rarely works as protection, because one doesn’t know what the other party already has to put 2 and 2 together. We see it in our interactions with gossip where the disparate bits get threaded together into a clear picture.

      • Purple Martin says:

        Yes, when I was involved in the declassification process of classified information accidently introduced to non-classified IT systems, the term used by the original classification authority’s (OCA) representatives was “Data Aggregation.”

        That is, unclass data point A combined with unclass data point B and Confidential (C)data point C, could result in additional inferred (C)data or new Secret (S)data.

        Although the most common outcome of an unintended class data discovered on a declass system incident was OCA declassification of the info, declassification requests were sometimes denied with “Aggregation Risk.”

  4. Rugger9 says:

    Evan Corcoran’s ‘diligent review’ may have actually happened even if he’s been busy claiming otherwise in his court filings, or some other minion may have done the cataloging of what’s there. Arguing against that theory is the reported state of the boxes, which were described as being filled willy-nilly with random items (as EW refers to above with the classified doc mixed in with a 1995 press clipping). It also might be possible that the chaotic storage was a recent change in policy, to ensure that items over which privilege could be asserted would be mixed in to poison the fruits of the search.

    I am pretty certain that even if Individual-1 was too gaga to know what he had, some of his minions (looking at you, Kash Patel and Mark Meadows) were well aware of the contents and that would explain why Bratt was at a disadvantage here. If so, that would also make it fairly certain that the leaks complained about in the court discussions actually came from M-a-L, not DoJ.

    • emptywheel says:

      We’re likely to get more hints about who moved the boxes. Beryl Howell permitted DOJ to unseal details of the surveillance video subpoena in the affidavit yesterday.

      • Rugger9 says:

        IIRC these are not sealed boxes, so from the videos we could identify if uncleared staff were handling the crown jewels.

  5. Teri says:

    Hi, Marcy, isn’t it also possible that the leakers are the same witnesses who went to the DOJ to report the fact that Trump still had documents?

    • emptywheel says:

      Hey! Welcome!

      I think it might be. For example, the hypothetical Secret Service witness could overlap. Which I guess would make sense with Leonnig.

      • obsessed says:

        Interesting! How about a nifty chart with one column for each possible source, one column for the effect of the story from DOJ’s PoV and one column for the effect of the story from Team Trump’s PoV?

        • Commentmonger says:

          How about a Board Game like Clue!
          Match the secret to the room!
          but also part Monopoly.
          Move forward with a Spy Pass. Loss a turn at a deposition. Sell as many secrets as you can guess.
          Merde Lago Trumplandia

  6. clyde g says:

    I’m confused and I thought this would be a good place to ask this question.

    I’ve been reading Empty Wheel for awhile and especially during the past few weeks since ‘the raid’ (what Trump calls the enforcement of a legal search warrant). Judge Cannon’s involvement and order surprised me, but the rest was, sadly, not unexpected or at least not surprising. (Hmm . . . I hadn’t thought of that but I can believe Trump would do that.)

    So my question is this: It’s been reported (anonymous sources) that the FBI seized documents of the highest-level Top Secret such that “[r]ecords that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.” And yet Trump took these from his personal space in the WH to MAL – and no one noticed and no one said something to someone about these highest-level Top Secret documents?! And the National Archives request for PRs is not sounding an alarm.

    Something doesn’t feel right. Can it be that our government is so careless with Top Secret documents? Or are the reporters being played by their anonymous sources?

    • PieIsDamnGood says:

      The president is the executive branch. He doesn’t need a security clearance, he is the source of security clearances. The president can have any information he wants.

      And the National Archives did sound alarms but since this was super secret shit, they sounded the super secret alarms. We’re just now seeing the results of that.

      • earlofhuntingdon says:

        There is secret USG information that even the president can see only with a need to know.

        Oh, people noticed all right. But Trump fired anyone who would tell him no, a message that quickly gets round a bureaucracy. At the end of his regime, he left key administrative posts vacant, too, including the person most responsible for tracking the paperwork that crossed his desk. To me, that gap looks manifestly intentional.

        And like the press corps and Judge Cannon, a lot of people backstopped him and made excuses for him, looked the other way, and picked up the torn pieces and taped them back together. A few people we’ll never hear about would have made “notes to file” about unreturned items. Whether that helps this investigation, we may never know, either.

        • BobCon says:

          I am guessing some people were in full CYA mode and either reported memos going away or else had lawyers and statements ready as soon as officials started asking questions.

          But I also suspect investigators strongly encouraged them not to say anything to tip off the Trump team, or else their lawyers gave them this advice.

          If you have security clearance and you’re counting on it for a nice defense contracting position, you don’t want a missing memo deadending at your doorstep, but you also don’t want to be known as a cooperator.

          But I have no idea what percentage of staff did this and what percentage were dumb, scared of Trump, or true believers.

        • Ravenclaw says:

          “To me, that gap looks manifestly intentional.” Like, if I’m superintendent of schools and want to be able to blow past a certain school at 80 mph, I fire the crossing guard who might report the speeding car and don’t replace him. Makes a certain kind of sense, that.

    • Carole says:

      This is what I’ve been wondering myself. How did nuclear secrets documents get spirited out of the WH without some sort of human burglar alarm going off? I read that there is a human assigned to each one of these that is checking frequently to make sure they stay safe and secret.

      [Welcome back to emptywheel. Second Request: Please use a more differentiated username when you comment next as we have several community members named “Carole” “Carol” or “Karol/e.” Thanks. /~Rayne]

        • Commentmonger says:

          And Mike Flynn’s brother, Lt. Gen Charles, the guy who was handling the National Guard deployment on 1/6.

    • bidrec says:

      Trump was both captain and mutineer. This never happened before in the office of the US president. After the collapse of EF Hutton the SEC mandated that a securities firm’s head of compliance have no other title or function (like president or CEO). That is the closest analogy I can come up with. Even Madoff who destroyed his namesake firm did not want to destroy it.

  7. DaveC says:

    Guessing that the leakers are either nominal Trump associates with personal legal vunerability, and or NatSec community with knowledge of the damage assessment. In either case, its likely that there is a hall of mirrors between the leakers’ motivations & the leaks.

    Also, Bratt shouldn’t be naive of all the potentially non-privileged documents siezed in the search. If the filter team completed its review, its likely investigators made signifigant review progress as well on the non-privileged materials prior to #JudgeLooseCannon s injunction. It seems likely investigators & the filter team would consider IC products as non-privileged.

  8. DaveV says:

    Friday is 60 days out from the election. DOJ just needs to state in it’s motions on Friday’s hearings that it will take the case and evidence to the trier of facts – criminal. Trump and Cannon are not ready for that. DOJ is ready with the irrefutable evidence on hand they can use. Fight on

    • Alan Charbonneau says:

      Perhaps, but I think it likely that there are be complexities regarding other investigations which might cause them to wait. I don’t think anybody can guess when an indictment will be handed down. If it happens on Friday, I’ll be happy to have been proven wrong, but I don’t see an indictment now.

    • Bruce Olsen says:

      It feels to me as if the leak of the nuclear document was a step in that direction. And if the matter is as urgent as it’s been portrayed (and it certainly is) it’s urgent enough to warrant filing a criminal case in DC on Friday, assuming they have a case, of course, bmaz ;-).

      Obviously, filing on the last possible day would look a little, ummm, political, and MAGA types would burst into flame because of it, but I’d expect a lot of non-Trump supporters (even some among GOP voters) would appreciate that DoJ is taking aggressive action on a matter that’s so urgent. At least some GOP voters must still support NatSec.

      Then (I hope) DoJ can appeal Judge Cannon’s noxious decision on a timeline that won’t impact the criminal case–and get all of its stunningly bad “reasoning” overturned.

      If DoJ does I’ll start selling shirts containing Garland’s face and “FAFO.”

      • notjonathon says:

        Trump is not a candidate for office, so there is no reason for DOJ to consider the legally non-binding 60-day rule at all. To do so would in itself be a decision that might affect election results.

        • Belyn says:

          My thinking, too. Is this whole matter policy, norm or what? Is it relevant to the contest or the whole election, or neither?

  9. Frank Probst says:

    A damage assessment of the wildly improper handling of the information about “a foreign government’s military defenses, including its nuclear capabilities” is going to be pretty broad, isn’t it? That’s exactly the kind of thing that’s going to involve intelligence received from multiple other countries, and I don’t see how you can truly assess the damage unless you alert the intelligence communities in those other countries that source of the information you received from them has been compromised. Shouldn’t a fair number of people in the international intelligence community already be involved?

    This is the kind of thing that would infuriate our allies. If we’re going down the rabbit hole of “Who leaked this?”, I think that it might be an ally that has had to deal with the fallout from it, no?

    • Rayne says:

      Or a non-ally which doesn’t want to be punished for information about its situation which may have changed substantively since the intelligence was first collected.

      Ex: Friendly-ish Countries A and B want to bomb hostile-ish Country C based on year-plus-old intelligence while C has since then negotiated dismantling technology OR the technology blew up OR the government which ordered the technology has changed substantially.

  10. earlofhuntingdon says:

    Trump did spend a lot of effort denying any docs he unlawfully retained related to nukular capabilities, not long before the second WaPo article came out about the presence of just those materials among the documents the FBI seized. Mr. Trump is a guy who likes to make his own coincidences.

  11. sfvalues says:

    There’s a third group that has access to the classified docs: the intelligence team conducting the damage assessment. It’s possible that the intelligence community leaked some information, although I’m not sure what motive they would have. It would need to be some kind of psyops or national defense reason. For example, if they know he took a particular doc, but didn’t find it, they could leak it, then watch to see if he runs to check it’s safe, thereby revealing the location of another stash.

    • Rayne says:

      Excellent point. It wouldn’t be an op just on FPOTUS, though; they’d be watching to see who was circling back to MAL or watching for SIGINT and other non-local HUMINT for hints at what might yet be at risk.

      • Rugger9 says:

        As for communications, I wonder who Judge Cannon’s been talking to especially given her mostly ex parte process of how she came to this ruling. The criticism of the ruling included Bill Barr and several other conservative legal minds, so there was some other factor at work.

        Doing a search or pinging FBI records would involve a claim of criminality or something that could invoke a ‘reasonable’ probable cause that isn’t in evidence, but if there were flies on the walls….We’d certainly know a lot more about the leveraging process used by Invidiual-1 and his minions.

        • Frank Probst says:

          I think by now that everyone knows that you’re going to need a 24/7 security detail if you don’t give him exactly what he wants.

    • earlofhuntingdon says:

      The answer should be nothing. She would be indicted presumably for independent crime(s), false statements, for example. Her defense, however, will claim that there could be no prosecution of her without a violation of Cannon’s order. So it would matter a lot where the prosecution took place and exactly which documents any false statements, for example, related to.

      • robert harding says:

        Thank you, Earl.

        Yes, I was wondering if a criminal proceeding would take precedence over Cannon’s civil suit, if the DOJ said that the documents in the 8/8 search were material evidence in proving that her signed statement was false. But those would only be the classified documents.

      • emptywheel says:

        She would be charged for obstruction and could be without access to the documents. But that might be a way to override Cannon’s order.

  12. Riktol says:

    Is it possible that the sources talking to the press are Kash Patel and/or John Solomon? They would be “familiar with the search” if Trump or his lawyers briefed them, and they’d be familiar with the contents of the documents, because Trump gave them access.

    It would also make sense if they did the ‘diligent’ search that Bobb testified to (affirmed?). Trump told them that he declassified ‘everything’, so in their warped worldview, any documents they found with classification markings weren’t responsive because the markings were ‘invalid’.
    The documents that were returned in June via the subpoena must simply be documents that Trump is no longer interested in, or considers low value.

  13. earlofhuntingdon says:

    About those nuclear secrets at MAL, that Trump had documents in an unsecured location that’s probably riddled with spies for over a year and a half will upset the country at issue, or the countries that helped us get that information through signals and/or human intelligence. Imagine how much more pissed off they – and many other countries will be – if the US fails to prosecute him. Not to mention the damage Trump has done to our own government and processes and respect for the rule of law. Fish, corporate and institutional cultures, and democracies rot from the head.

    As for Bubbly Bill Barr, he has not suddenly become rational or helpful or more concerned with democracy or national security. He keeps ratcheting up how bad the case against Trump looks, for example, but concludes – as a policy matter – that Trump should not be indicted. “I wouldn’t want to see that.” Still serving unaccountable power after more than three decades.

    • Tom-1812 says:

      I was starting to wonder whether Barr might have some inside knowledge of what Trump has done or might do with those classified documents by the way he’s been ringing the alarm bells about the Mar-a-Lago mess, but I changed my mind as soon as Barr said he doesn’t think Trump should be indicted.

      The long term adverse effects of not holding Trump accountable will, I think, be far worse than the short term adverse effects of laying charges, should there be sufficient evidence to do so.

      • Tom Marney says:

        If Barr is to continue in the largely-positive role he’s created for himself, he has no choice but to say that he doesn’t want to see Trump indicted. That doesn’t mean he’s lying, but it does mean that he’d have good reason to. I despise Barr as much as anyone, but I give him a pass on this, whether or not he’s telling the truth.

        • earlofhuntingdon says:

          “Largely positive role?” LOL.

          Bill Barr is not your friend, or democracy’s. His aim is what it’s always been. He admits only what can no longer be denied, but denies that Trump (or anyone else) should be held accountable for it, least of all Bill Barr. That does not deserve a pass, thanks very much.

    • BobCon says:

      I’d hate to try to predict the reprecussions of any of it.

      Imagine if he kept a memo about India and Pakistan’s efforts to bolster anti-missile defenses. Maybe that makes India happy. Or maybe the implications anger India and Pakistan and freak out China and Russia. Or maybe nobody cares except Pakistan.

      What we can say as a baseline — beyond whatever else happens — is it’s insane that Trump stole them and kept them in a basement room and potentially shared them. And that more people aren’t massively angry at him and his enablers.

  14. Paulka says:

    It seems to me that regardless of whether there were nuclear documents there or who the source of the leak of the presence of nuclear documents actually is our national security has been impacted. The very fact that Trump had TS documents and held them insecurely, will force other country’s intelligence communities to act as if it were factual and that the information was captured by hostile forces. The logical result would be that those countries would be less likely to cooperate with us or share intelligence.

    And that is the absolute best case scenario vis-a-vis impacts of this debacle.

  15. TXphysicist says:

    I think this is all a big misunderstanding. You see, Trump and I share a love of nuclear physics, and it’s not really a big deal if we parse through the French method of Uranium confinement over coffee most Wednesdays. He’s actually an advocate of their torus geometry, for the core, but I’m all about spherical. Ahh, I remember, fondly, he would say “Mr. Fistassist, not-so-smart, you can do better neutron density with a linear shot delivery through a hollow core, people are saying”, and I replied “Well but you have to think about the ease of the manufacturing process and the shelf-life as well”, and then we would kiss. And we kissed like the French, too, baby. Every time.

    Well guess what? It’s Wednesday, and you sickos have taken that away from me. We’d be doing nuclear (he called it) right now, but nooooooo. You should all be ashamed of yourselves.

    • dmkam5 says:

      Thank you, Mr. Fistassist from the Great State (is there any greater?). I haven’t laughed this hard in weeks !
      ~Note to Rayne: I’m delurking after a very long absence and no longer recall what name I previously posted under. I’ll be happy to Correct any Oversights. Thank you for your service, and Death to Sockpuppetry !!

      [Welcome back to emptywheel. Someone using the same IP address used the name “Naargh Nargo” some time back — was that you? /~Rayne]

      • dmkam5 says:

        (Replying to TXphysicist) You clearly missed a career. And you’re right, comedy is often not just the #1 CM, but the only one we’ve got.

        (Replying to Rayne) Yep, that was me, under an ancient alias. Should I resurrect it, or continue under the current one ? (Just want to simplify your record-keeping if possible)

        [Current name is fine now that we know who you are if this new name is easier to remember. You’ll simply have to comment more often to remember it. :-) /~Rayne]

  16. Rita says:

    What is the motive of the person who leaked this to the WaPo?

    We know that defense counsel sometimes leak in order to get ahead of the story or to frame the narrative in the best light for their client. So it could be the defense team, although I am not sure how this makes Trump look good.

    It could be someone who was aware of the presence of that document and was appalled. Maybe one of the defense team’s staff? Perhaps, someone has flipped. Mark Meadows, John Solomon, Kash Patel? Although a flipper would probably be under orders from DOJ not to talk to the press. Maybe someone from the foreign country affected who has already been told about the reckless handling of the document.

    If we look at whom the leak benefits, right now it would look like the DOJ, because it is turning public sentiment against Trump. And it also may turn that particular document into a “Goldilocks” document. But that would be a risky thing to do while the matter is before Judge Cannon.

    • TXphysicist says:

      I think there is value in slowly leaking info so that as more and more details are revealed, right-wing media can say “Oh, that’s not news, we already knew that”. If they address it at all. Or if e.g. a GOP politician is confronted about it in an interview.

      It’s 24 hours later, and the WaPo scoop re: “Nuclear defense capabilities of a foreign country” seems as yet unconfirmed by any other outlet. I’m gonna speculate that would also point to most or all of the leaking coming from Trump’s defense or allies who only have a relationship close enough to feel assured of their anonymity with a WaPo reporter. But I dunno, this does put some pressure on Cannon. Not that she will pretend to care.

      • Pedro P says:

        If, ifs and buts were candy and nuts, blah blah blah.
        Now that conspiracy theories are so common here, how about the one where the country is North Korea and the document is just one of the love letters from Kim telling Donald about how big and strong his military and weapons systems are.
        And the leaker selectively leaks to throw cannon fodder at the special master pick.

        • TXphysicist says:

          Hey, that’s exactly what I thought before yesterday, and I just now saw your comment. That’d be nice, but c’mon. That’s not an “assessment” of a foreign military’s capabilities.

          Sorry, I only get speculative when it’s like… possibly duck and cover-tier issues?

      • P J Evans says:

        That’s how a potentially-usable-at-trial document was described: it has to be able to convince the jury, as well as the prosecution.

      • BirdGardener says:

        Someone here previously explained that the DOJ can’t prosecute someone for stealing secret documents that must remain secret. They need a ‘Goldilocks’ document that is, as you say, just right— not too much, not too little.

        Edit: I see I should have refreshed the page: P J Evans has already answered!

    • Sue 'em Queequeg says:

      Might one leak simply to be able then to turn around and blame the other side for leaking? You’d have the added advantage of being able to control the substance, timing and channel of the leak.

    • Rugger9 says:

      I don’t think it’s the DoJ, because Garland’s DoJ doesn’t leak like Individual-1’s DoJ did. Remember all of the official DoJ actions (I’m not counting Durham) were surprises, not signaled in advance. Maybe the IC did the leaking, IMHO it’s more likely the defense team leaked to blunt the effect of the news (as noted above it’s now ‘old news’ for the RWNM).

      Or, it’s totally kayfabe brought to WaPo by someone with a deadline and a quota.

      Now, let’s speculate that an adversary is the one whose nuclear info was compromised. Does anyone here believe that there will not be a price to pay for that faux pas? TFG will need to stay away from windows, I think.

      • TXphysicist says:

        Maybe Kushner sold assessments of Israel’s nuclear program to Mohammad bin Salman. Could explain why Kushner was given $2 billion from MBS a few months ago for an “investment” into Kushner’s new private equity firm after a laughably bad pitch.

        That’d definitely change the calculus of Trump’s defense. But more importantly, this could be _very_ geopolitically destabilizing. Until the WaPo scoop last night, I was clinging to hope that maybe it was just offhand discussion of nukes in Trump’s “love letters” to Kim Jong Un, blown out of proportion. I hope WaPo was bamboozled. But I doubt it.

        • TXphysicist says:

          There is a Congressional committee currently investigating exactly that. The privatization of the “Abraham Funds” policy after Trump lost re-election. The lack of reporting in Google search results about it seems strange to me.

          I’m very much unmarried to anything conspiratorial I float here. I’ll grant you that I’m throwing some ketchup at my Oval Office wall to see if anything sticks, but I’ve tried to qualify everything speculative in “could”s and “maybe”s and “possibly”s.

          The point of my floating the possibility of Kushner selling Israeli secrets to the Saudis (and other conspiracy theories) is moreso to see if it helps the other known pieces of the puzzle of recent events fit together better. And I don’t know that it does. I’m hella outta my element, too, obviously.

          Maybe someday there will be a physics ambiguity in the news related to national security, and I’ll actually be factually useful around here, but I doubt it. :|

        • Just Some Guy says:

          I’ve been curious how Mnuchin seems to have laid relatively low since January 20th, 2021. What is that weasel up to?

        • Thebuzzardman says:

          My SWAG, from a totally non expert, random internet guy is that the information is around the disposition of Iran’s capabilities, though the idea it relates to Israel or Saudi Arabia or even Korea are definitely in play.

          I just figured Iran because Trump has always had a lot of ego around Obama’s negotiations with Iran; that he views blocking it as a key achievement of his administration. In some way I think he thinks this classified information proves him correct, ignoring all the nuance and permutations around the issue.

          Pretty petty reason, right?
          Then realize it’s Trump we are talking about.

  17. BrokenPromises says:

    This comes very late in the thread but I was quite struck by the implication of this:

    “…and that a “future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.””

    indictment…. based on property…. ought to be returned….result in reputational harm….

    The reality to my mind and as I understand evidence is that property that supports a charge of a crime is evidence plain and simple. It then follows that committing a crime leads to reputation harm. It was a bizarre thing to read. When my Dad taught me to read lines to play a character on the stage all he asked me to do was ask what was the intent of the characters words. Words always have intent even if it is just astonishment.
    In a movie this claim would lead to much fighting between the parties about the reputational harm thus distracting the audience until in the climax they would learn the “seized property” proves beyond doubt the guilt.
    Looking to understand the intent or logic of this sentence logic says that indictment follows from physical things (property in this case) by what they reveal before the law. It’s not a political deflection or attempt to make someone look bad. Cannon didn’t find Schrodinger’s cat alive or dead but simply turned it inside out.
    I am well aware that the privilege records would have nothing to do with the criminal act. If they did they would not be privileged and would not lead to an indictment. Used by Cannon here it is a red herring distracting the DOJ to achieve her goal. Deliberate? Or simple ignorance of what she is doing? I would not want this woman in my personal life or to appear before her in a court because like so many of the people I have met in authority in my life she makes it up as she goes along.

    • Belyn says:

      It’s a good way of putting it. Logic is lost on people who make it up as they go along. Don’t waste a rational thought on trump is this regard.

  18. jdmckay says:

    I haven’t seen/heard/read anything about this… apologies if already addressed: does Cannon’s order preclude the FBI from examining the security videos?

    Right now, I am particularly curious if any Trump “staff” dumped the “clippings” (and such) in those folders in recent months? Of course assumes Trump hasn’t already edited/erased/turned it off for ‘sensitive” administrative tasks or (????).

    While I am at it:
    (snark… I think)
    one other thing: what’s up with Cannon and Trump’s “reputation”? Does she have an affidavit called: Trump reputation? I mean, he paid off porn stars to keep them quiet about “flings”. How many rape accusations?Laundered Russian Oligarch $$ through purchases of his “apartments” (at least in Panama that I am aware), An awful lot of fraud (Trump U. to start), and more lies in 4 years then all presidents of all countries going back to 10k years BC… combined!!!

    So… how does stealing (how many of) America’s most top secret documents very possibly to distribute for $xxxmillions… damage his reputation?


    • TXphysicist says:

      For the case of Donald J. Trump, he has almost exactly zero reputation left to lose in the eyes of half of the country. For the other half of the country, it is literally impossible to damage his reputation. But she’s really, truly worried about his reputational harm.

      It’s the most reactionary ruling I’ve seen since… Oh, wait, just a few months ago. Dobbs.

      Tomorrow, on Axios: “Scoop: Ginni Thomas text messaged the entire 26-page ruling to Aileen Cannon”

    • emptywheel says:

      Re security videos: no. Those were from 2 grand jury subpoenas separate from the search. In fact, Beryl Howell authorized the unsealing of the discussion of the first one as it appears in the affidavit authorizing the search.

  19. cmarlowe says:

    It’s late, and I know all I do is ask questions and this may be the worst.

    As commander-in-chief with responsibility for national security, is it arguable that Biden has authority by executive action to do what is necessary to secure the NDI that was at MAL?. That would include emergency investigative steps required to determine if there was any spillage, and if so, the extent of the spillage, as well as who was at fault. Then, Cannon notwithstanding, could any such information uncovered be used as evidence in court?

    If the knowledgeable folks here think that is nuts, fine my me.

  20. Nick Barnes says:

    How did you establish a correspondence between the item numbers in the detailed property receipt and the box numbers in the initial brief property receipt? I’ve been looking through the filings and I can’t see anything which provides that information. Is it guesswork? How confident are you of the box numbers on your spreadsheet?

    • emptywheel says:

      I’m 100% confident about the box numbers. The way I established a correspondence was by treating item 1 as item 1. And item 2 as item 2.

      • Nick Barnes says:

        Thank you. Now I’ve put both sets of data into a single table, I agree that they correspond fairly well. In particular, using that correspondence, all the things called “box” on either list are called “box” on the other list, and many of the classified documents on the detailed inventory are similarly mentioned on the brief inventory. Not all of them though (for example, item 29, “Box labeled A-14”, contained a top secret document which is not mentioned on the brief inventory). Presumably these documents weren’t found during the initial search at Mar-a-Lago but showed up on a more detailed search of each individual box seized. That raises the possibliity of other classified documents still being at Mar-a-Lago, in un-seized boxes, undetected by the search team.
        I’m curious about item 4, labeled “Documents” on the intiial (privileged) inventory. It doesn’t appear to have been a box. Possibly the contents of a desk drawer?

        • emptywheel says:

          It was definitely the contents of the desk drawer.

          And the reason the classified doc in A-14 was not found immediately (nor the two classified docs in the desk drawer) is because they were in the potentially privileged bucket from the start.

        • Nick Barnes says:

          Interesting. That explanation doesn’t hold for items 10 (box A-15, 21 secret and 11 confidential documents), 18 (box A-35, 1 secret document), or 25 (box A-41, 1 secret document in addition to the confidential one). For items 11 (box A-16), 13 (box A-18), 15 (box A-28), and 28 (box A-73), I imagine the hierarchy of classification can account for the omission of the less-classified documents.
          I simply assume that there wasn’t time, during the search itself and prior to issuance of the initial brief receipt, to search every box thoroughly for every classification mark. There are over a thousand documents in some of these boxes, and all they needed to find at the time to seize any given box was a single government document in a nearby box.

  21. pseudo42 says:

    The DOJ disclosures on Aug 30 included a May 11 GJ subpoena to Custodian of Records, Office of TFG. At Alex Wellerstein points out that this subpoena mentions S/FRD in a long list of classification marking, and he details the meaning, which is far from unclassified. With respect to disclosures to foreign persons and governments, S/FRD is still subject to the Atomic Energy Act as amended

    One of the two WaPo reporters who bylined the September 6 nuke-a-lago “according to people familiar with the matter” article, Carol Leonnig told MSNBC audiences the same day “when they made this subpoena, they were kind of throwing the kitchen sink…while they were seeking some of this material, lo and behold they found some”. quote is from roughly 1:20 to 1:40. IMO this is obviously a reference to S/FRD, though she did not go into any kind of detail.

    Who was the source? Dirty trickster, original source who pinned or corroborated the docs as being in the country club, disgruntled or former private atty, harried document custodian in the IC, DoJ maverick? Each could have their reasons and opsec, of varying efficacy.

    Re possible dirty trickster, both of the names on the WaPo byline have been in journalism long enough to remember the Killian papers (Dan Rather lost his job) and the Scooter farce (Judith Miller was a jailbird) so they ought to know there are consequences of journalists being played. So this is some reason to believe they’ve been careful…unless they’ve been checked by some galaxy brain 9-dimensional chess master, which I can’t rule out.

    The Atomic Energy Act as amended is not referenced in the search warrant. This could be because there’s no there there; or because the document custodian just wants them back as quietly as possible; or it could be that a prosecutor just wanted to be sure & there could be further charges. It’s not perfectly clear to me that there would be a violation of the act if the information was not disclosed to a foreign person. If I am not mistaken anyone looking at the evidence would need to know all about the classification doctrine and the enforcement details in the act, somewhere between 42 USC 2271 and 2284. Apologies for my posts being redundant or maybe this is all a given for long timers here.

    • emptywheel says:

      There are other problems with Carol’s comment. It DOESN’T include all classifications. It doesn’t include RD, for example, or a slew of others.

      The document in question likely is NOT FRD. Because it’s about a foreign country’s nukes, not our own, it’s likely just highly classified bc of the way we learned about it.

    • BobCon says:

      “both of the names on the WaPo byline have been in journalism long enough to remember the Killian papers (Dan Rather lost his job) and the Scooter farce (Judith Miller was a jailbird) so they ought to know there are consequences of journalists being played.”

      The Post also was the focus of a Project Veritas sting attempt with a fake Roy Moore accuser, and they wisely turned the tables by exposing it.

      I hope the rush to publish doesn’t snag reporters who end up passing on classified material leaked by Trump’s side out of cluelessness or malice. Some have strong enough editing backup to watch out for the risks, but there are also Novak-style hacks who don’t understand the pitfalls.

    • FL Resister says:

      Carol Leonnig broke the nuke story and her book Zero Fail, a deep dive into the US Secret Service which I have not read, would give her a unique position as POC for someone somewhere in the SS privy to knowledge.

      Certainly, timing of this leak adds gravity to documents of what nature a Special Master should see.

      • Ginevra diBenci says:

        I have read (most of) Zero Fail, and it attests to Leonnig’s deep sourcing and thorough reporting. She has the best sourcing of anyone on the secret service beat, and she is typically a careful journalist.

        But this article was by-lined, initially, by Devlin Barrett, with Josh Dawsey added later along with some padding from Trumpy sources. Given the thinness of the actual content related to the “nuclear document,” it really adds little to the August article except the information that it relates to a foreign government. These things might be guessed at by a reporter who hadn’t seen the document itself, “confirmed” by someone who had seen *something* (like a cover page or photo), and then given a shrugging acknowledgment by a secret service source. There’s not much there there, just enough to rekindle the August story or preclude (if it came from Trump’s side, as I suspect) the massive firestorm that will erupt when the true scope of his theft becomes public.

      • Slwalczak says:

        The timing of this leak, following so closely on Judge Cannon’s ruling, leads me to think the leak came from DOJ itself to demonstrate the danger of the stay to national and international security and to prepare the public for a greater degree of heavy handedness to come from the DOJ.

        [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; your previous one was “TaxesMyCredulity.” Thanks. /~Rayne]

  22. Atomic Shadow says:

    I’m still working through a case of Covid brain fog. Sorry in advance If my alleged thoughts don’t make sense.

    As I have pondered all of the huffing and puffing in the press, A thought dawned on me. Trump has not shut up once since he left office. At every new revelation or scandal, he ups the volume and calls out his howler monkeys to drown the news cycle in nonsense.

    But who has learned, or knows, the important lesson of “Shut The Fuck Up”? It is Mark Meadows. He has gone radio silent. That leads me to some baseless speculation. Has Meadows made a deal with DOJ already? They always say the guy who flips earliest gets the best deal. He would sure know where the bodies are buried in this documents case, the insurrection, and who knows what else? I’ll bet he has receipts too.

    I think he is the type of swamp rat that would have an eye out for an opportunity to save his own ass. Betting that the GQP take control of Congress in the midterms and that Trump rides back to power in 2024 seems like a shaky path. I see Meadows as they guy who looks in the mirror and sees a hero looking back at him.

    If he has made deal with DOJ they would require him to STFU. He has been very, very quiet.

    • BirdGardener says:

      Hope you’re recovering well!

      I have lived with a post-viral syndrome for over a quarter century, including coping with brain fog whenever I am not well-rested, and I’d like to encourage you to get as much rest as you can for as long as you can. One of my (young) family members tried to keep working while sick with Covid and started showing alarming symptoms of long-covid. S/he stopped trying to work, and is making a slow (months-long) recovery that we hope will eventually be a full one.

      Decades ago, not knowing any better, I had tried to keep working even though I obviously wasn’t getting better, until I worked myself into a hospital visit. I never did recover my health. So please, if you can, take it easy. Our family experience suggests that trying to return to work too soon can lead to a life-long disability.

      I apologize if this is too personal.

  23. greengiant says:

    The EW fellowship and commenters remember well that Devlin Barrett was the journalist who carried Rudi and friends’ poisoned water to the FBI for comment on Weiner’s laptop Hillary’s emails back in 2016. The phone call that caused McCabe to jump the couch.
    Secondly what a Federal judge can do.
    Put a 10 year restraining order concealing all information about a Felix Sater
    civil suit. From Michael Sallah’s article for one.

  24. DaveV says:

    The DOJ could argue that they they alone pick the SM from their list for the “classified” documents. This is because of overriding National Security concerns and expediency. Let the court pick the SM from the two lists for everything else. Or maybe even select multiple SM for a portions, due to the number of unclassified, all be it they are presumed to be presidential documents. Seems fair and unbiased. The existence of classified documents alone are good enough for the charge of unlawful possession and concealment of government documents.

    • earlofhuntingdon says:

      Unworkable, needlessly complicated, ignores that both parties must agree to the purposes of a SM, absent contrary authority in a statute. This is an unprecedented use of a SM, so good luck finding that exceptional statutory authority. See, FRCP 53.

      • DaveV says:

        Yeah – but this is an unprecedented case and ruling that Connon has already broke/fudged precedent multiple times. After all Trump wants to cooperate to resolve the privileged issue (or not).

        44 Code 2204(A): Prior to the conclusion of a President’s term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:…

        He had his chance to specify which documents were executive privilege & communications prior to leaving office. Can’t do that now.

        • timbo says:

          Actually, this begs the question of whether or not some of these choices were made before Twitler left the White House. If those choices were made then then it’s hard to see how they could be changed now. And if they weren’t made then that’s the other side of the same fish?

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