Trump Proposes a New Plan to Steal Classified Documents

In the Trump stolen document case, the two sides have presented their plans for what they call a Special Master.

The government’s plan is a Special Master plan, one that would be finished by mid-October.

Trump’s plan is a plan to steal documents from intelligence agencies and to stall until close to the time — it seems to hope — Jim Jordan gets a gavel in Congress and so can muck up the criminal investigation into Trump’s theft and retheft.

The key differences between the two plans are as follows:

Trump proposes a plan to steal classified documents

Trump argues that even classified documents should go to the Special Master (and before that, his lawyers, including the one who is a witness in this investigation, Evan Corcoran) and effectively lets the Special Master override the decision of the Executive Branch over classification.

Plaintiff believes the Government’s objection to the Special Master reviewing documents they deem classified is misplaced. First, the Government’s position incorrectly presumes the outcome—that their separation of these documents is inviolable. Second, their stance wrongly assumes that if a document has a classification marking, it remains classified in perpetuity. Third, the Government continues to ignore the significance of the Presidential Records Act (“PRA”). If any seized document is a Presidential record, Plaintiff has an absolute right of access to it while access by others, including those in the executive branch, has specified limitations. Thus, President Trump (and/or his designee) cannot be denied access to those documents, which in this matter gives legal authorization to the Special Master to engage in first-hand review.3

Plaintiff anticipates filing a deeper analysis of these issues in upcoming filings.

There are a lot of problems with this claim, including that it treats Trump as the President still and utterly upends the precedent on classification that Trump himself is relying on for his claim to be able to declassify things, Navy v. Egan, not to mention the Obama-era Executive Order that remains the basis for authority over classification (and so was the basis for any claim Trump ever had to classify and declassify things). There is absolutely no basis, anywhere, for a private citizen to override the classification determinations of the Executive Branch, yet that is what Trump is proposing.

Crazier still, Trump envisions government documents with classification marks that his Special Master decides aren’t classified to be Presidential records. That’s not necessarily true! Many of these documents — and certainly the secrets they tell — belong to agencies, not any President. Effectively, this is a plan to convert secret CIA and NSA documents into the private playthings of Donald J. Trump, which he can access in perpetuity.

Under the government’s plan, the Special Master would never receive anything currently marked as classified. The government does note that some of the unmarked documents may be determined by the government to be classified.

As this process moves forward, if the government identifies any potentially classified information within the contents of any of the Seized Materials without Classification Markings, the government will so advise the Court and propose actions to ensure that any such material is handled appropriately.

Trump creates busy work and delay

The government proposes that Trump conduct an initial review and make claims on categorization; anything on which the two sides agree will bypass the Special Master process. Trump says the Special Master should look at everything not in the current potentially privileged bucket.

The government sets as a deadline October 17 for the entire review (implicitly setting a deadline on Trump’s own review too). It places a deadline of September 26 for Trump’s initial review. Trump envisions the process will take 90 days or more (and sets no deadlines for himself).

Trump wants to split the cost for the Special Master, whereas the government proposes Trump paying everything, which would disincent him from stalling indefinitely.

Trump envisions removing documents from investigators’ hands

Under the government plan, non-personal documents will either end up in investigators’ hands (if the Special Master doesn’t deem them to be Executive Privileged) or at NARA (if the Special Master does).

v. For any documents identified as Presidential records – not claimed by Plaintiff as subject to Executive Privilege, those documents shall remain in custody of the government, with copies sent to the Archivist of the United States, and may be used by the government forthwith for any lawful purpose, including in the government’s criminal investigation;

vi. For any documents identified as Presidential records – claimed by Plaintiff as subject to Executive Privilege, copies of those documents will be sent to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2201 et seq., may thereafter be followed.

Trump envisions Presidential Records to go to NARA, whether or not he succeeds in making an Executive Privilege claim, basically assuming that documents lawfully seized under a warrant should be taken out of the hands of the investigators.

e. Once the Special Master has completed the review process set forth in this Order and any dispute has been fully adjudicated, any documents identified as Presidential records will be returned to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2204, will be followed to determine the assertion of any restriction on access.

In either case, FBI can obtain a subpoena for documents if they have the need. Trump’s plan just introduces another way to muck up the process.

Trump wants the lawful owner of these documents excluded

The government plan requires the Special Master to consult with NARA before making final decisions about whether something is a Presidential Record or not.

c. In categorizing Seized Materials without Classification Markings as personal items or documents, on the one hand, or Presidential records, on the other hand, the Special Master will consult with the National Archives and Records Administration (“NARA”); the government will facilitate the Special Master’s consultations with NARA; and

Trump wants no involvement from NARA, the lawful owner of anything that is a Presidential Record.

Trump wants no paper trail

Trump wants to do this entire process without leaving a paper trail that the government (or a government appeal) can access. His ostensible logic — purportedly, that the Special Master must review things that even Trump and the government agree upon, which will add to the delay — is transparent bullshit. He says DOJ has already logged the materials (though the categories in question have changed), and so doesn’t need to see Trump’s logs before they get shared with the Special Master.

The principal difference in the parties’ workflow is that Plaintiff sends materials categorized by his counsel directly to the Special Master, while the Government proposes that it review Plaintiff’s categorization by logs to determine if it agrees or disagrees with the categorization. The Government anticipates that it may agree on many of the categorizations and thus minimize the workload of the Special Master and expedite the review. The Plaintiff contends that a full review of all seized documents remains an important part of the Special Master‘s duties, even if the parties ultimately agree as to the return of various seized items. As the Government has already reviewed and categorized the seized materials, the Plaintiff believes a review by the Plaintiff, and submission to the Special Master, is the appropriate process.

And since Trump doesn’t intend to share logs of his attorneys’ determinations with the government, much of the determinations will be made via ex parte discussions with the Special Master.

Because its workflow transmits all categories of documents to the Special Master without logs, Plaintiff proposes authorization for regular ex parte communications on categorization with only the Special Master’s final report and recommendation disclosed to the Government.

This will not only delay the entire process, but will prevent the government from obtaining some materials before determinations on all the documents are done. It will also hide what would surely be outrageous claims of declassification from the government and, ultimately, the public.

And by refusing to share a log with the government, Trump keeps the involvement of an attorney who is already a witness in the criminal investigation out of the hands of the government. And, as noted, this keeps any paper trail out of the hands of any appellate ruling.

Update: Section on logging and ex parte communication added.

129 replies
  1. P J Evans says:

    It sounds like the former guy still doesn’t want to understand who owns the docs. I hope the judge doesn’t accept his proposal – but if she does, it’s going to the 11th CA a lot faster.

      • skua says:

        My comment was meant to be a reply to
        “Wow, Trump’s “plan” gives Cannon so much room to “compromise.” Will she fall for that gambit?”

        • emptywheel says:

          Oh. Sorry. Didn’t realize it was a reply.

          By staving off the classification issue (and giving that urgency on appeal), DOJ also put them in a position where they can veto Trump’s Special Master choices if Cannon doesn’t relent on the classification issue.

  2. Mister Sterling says:

    And we’re going to let him re-define the PRA and get away with this. Brilliant. Just brilliant.
    And yes, when I tell rank and file Democrats that Jim Jordan will be the next speaker, they call me a “doomer.”

    Fools. The Doom is coming. I am just reporting what’s going to happen. Accept it. Or don’t.

    Wait, the Speaker of the House can stop a DOJ criminal investigation? Shoot me now.

    • TXphysicist says:

      Hello, fellow doomer!

      The biggest influence Congress/Speaker has over DoJ is surely investigative powers and under-oath Congressional testimony. Other than suggestive criminal referrals from Congress to DoJ, I’m drawing a blank. So largely court-of-public-opinion stuff only.?

      Jim Jordan? Why stop there?? Trump can technically be Speaker, if the GOP re-takes the house. And I know that sounds like a farce to probably 98% of the people on this website, but if you don’t think Trump has considered the fundraising $’s that could be made whilst leading (in the public eye, at least) an effort to impeach Biden, then you need to spend more time gaming out how to destroy our democracy for profit. Bannon has already floated the idea of Trump for Speaker. Either way, Jordan or Trump, at least we get to see the look on Kevin McCarthy’s stupid face before we all die :D

      If this comment goes too far and gets removed, that’s pretty understandable, hah.

      • Howard Cutter says:

        The one thing that I think would save us from Trump as Speaker is Trump’s own ego. I don’t think it would let him accept a “demotion” from President. I think he’d try to become President-for-Life before he’d seriously attempt becoming Speaker.

        • Tom-1812 says:

          Also, Trump’s management experience is limited to working with his adult offspring Don Jr., Ivanka, and Eric. I’m not sure he could effectively lead and manage the whole of the House Republican representatives. And I doubt the House GOP members would want the stress of having to deal with Trump on a face-to-face basis every day. Trump would also miss his “Executive time” and his lack of application to the responsibilities of his position would become more obvious.

        • Rayne says:

          Oh, I wouldn’t say that about Trump’s management experience. He’s managed for decades not to be convicted of crimes; he’s also managed the GOP congressional caucus so far, cowing them into submission (exhibit A: Lindsey Graham).

        • Tom-1812 says:

          That’s a far more expansive interpretation of management than I had in mind. You could also say Trump has managed to transform an increasingly diminishing number of hair follicles into something resembling a full head of hair … or a mohair cloche.

        • BirdGardener says:

          I agree, Tom-1812; Speaker of the House is too much work for Trump, and he’d screw it up if he tried. I imagine the actual work would fall to someone else (the Whip? — with each leader’s usual duties falling on the person below), and Trump would interfere. He’d also set up his power-games, and the GOP would be even further immersed in palace intrigue. No thinking GOP politician is going to want that unless s/he believes s/he can game the situation to his/her own advantage.

        • TXphysicist says:

          Circa February 2025: “First POTUS and co-Speaker of our BEAUTIFUL HOUSE. Can you believe it, folks? And they, they tell me, they want me to be the first SUPER Supreme Justice, too, bigger than Roberts, because, and you know this is true, because I’m the best thing to ever happen to this country. You have to do all three branches, have to, if you want to make it great, again.”

          Doom harder! (jk, I should seek therapy)

          You’re right, he would have the actual work fall on cronies of one flavor or another, and the ability of Congress to actually legislate would somehow deteriorate further. And the GOP will let Trump do anything, so long as Murdoch runs cover. There is no bottom. (…I should seek therapy)

      • Ravenclaw says:

        I don’t know about 98% (this is a pretty well-informed bunch), but I’ll confess that I hadn’t properly realized that the Speaker doesn’t need to be a representative. Despite their deference to TFG, though, I doubt that those in the Republican leadership would cede their own claims to the position. (If they did, the scariest thing wouldn’t be that he’d have that gavel, because Jordan or whoever would be equally nasty and probably more effective). It would be having him so close to the presidency – one near-octogenarian dead of natural causes, one woman of color murdered, and it would be all over. (I stress “woman of color” because the right-wing extremists are less likely to have any compunctions, indeed might even be eager to line up for the chance.)

        So, uh, thanks for the nightmare.

        • TXphysicist says:

          You’re welcome!! hahah

          I dunno, I’ve been continually surprised at just how craven Trump’s congressional enablers have been.

          And yes, one of the things that struck me the hardest about J6 was how congresspeople of color, especially women of color, felt disproportionately threatened because they knew that the mob was more likely to assume that they were democrats. Chilling.

    • Doctor Biobrain says:

      How is Jim Jordan as Speaker the Doomer position? The doom is if we lose the House, but Jordan is yet another moron who doesn’t know how dumb he is. And he lacks charisma and is easy to mock.

      The Doomer position is if Republicans somehow find an intelligent Republican who knows how to manipulate people and is likable; and I don’t think there are any because any Republican like that would be a rich CEO and stay out of politics. Republicans are in a pro-business religious cult that makes them all interchangeable, if any of them could do something they’ll all do it. Them electing dummies is our only chance.

      McConnell is one of the only smart Republicans left and even he only knows obstructionist tactics that only work when they’re in the minority. Jim Jordan as Speaker would be a clown show as every legislative stunt backfires and public hearings where he’s completely unprepared and demanding that the Democrats finally confess to everything and provide proof that it happened; as the victims roll their eyes and look exasperated.

      That’s not ideal but the problem is Republicans controlling the House. Jordan as Speaker would be comedy.

      • BirdGardener says:

        “McConnell is one of the only smart Republicans left and even he only knows obstructionist tactics that only work when they’re in the minority.”

        If he’s so limited in his capabilities, how do you explain his packing the courts?

        • Doctor Biobrain says:

          What skill did that take? Like with the Supreme Court, all he did was invent a preposterously bad excuse to refuse to consider Obama’s pick and then get his fellow cult members to approve the picks from Federalist Society. If Hillary had won, he’d have gotten no judges appointed. As much as people attack McConnell’s excuse to not consider Garland, he could have said nothing and it would have made no difference.

          Seriously, if he actually did any maneuvering or twisting of arms to get judges appointed, I’d like to know. But I’m pretty sure it was just Republicans controlling the Whitehouse and Senate that was the secret to his success. Just like how Biden has now appointed more federal judges than Trump did at this point in his presidency and McConnell was powerless to stop it.

  3. jeco says:

    Delaying & complicating the process are entry level goals in trump’s sabotage plan, Cannon will give him everything he wants and more – if she thinks of additional ways to muck up the case. Fundamentally she wants to treat him as if he was still the President with all rights & privileges -and maybe some additional protections as she sees fit. She isn’t letting law or precedent deter her from her mission.

    FT speaker would take too much time away from trump’s golf & hate rallies, maybe just an honorary election to house speaker for his obit then he resigns and Gym Jordan can go on a crime spree

    • Patrick Carty says:

      If the stewardship of these documents falls to the Executive Branch, and I believe they do, then I do not believe the Judicial or Legislative Branches have the Constitutional authority to determine their destination. That would be President Biden’s call as chief Executive and Commander in Chief. And all he has to do if refuse any “opinion” that says they should ever leave the SKIF. It is against the law to remove them in the first place, let alone take them to a broom closet in your beach house. The USG has possession and that’s that. Pound salt Donnie.

  4. teri mccomb says:

    I read that trumps lawyers submitted a request that they split the costs 50 50 for the Special Master and all support staff, experts, so on. Article read that in 2018, a SM charged $800/hr..

    DOJ said oh no f’ing way. I got elated.

    • SMF88011 says:

      I think the 50/50 cost bit is an attempt to make this case too expensive for the DOJ to pursue because they are going to try to run up the bill. It is my belief that Trump is going to try to hang the RNC with the bill too. This will allow Trump’s Scrooge McDuck syndrome of keeping all money and stealing everyone else’s continue and sticking someone else with the bill to continue.

      Trump probably thinks that his famous (notorious?) method of making it too expensive for someone suing him to continue to fight will work with the DOJ. We all know that is not the case with the DOJ though.

    • Fenix says:

      With Trump’s history of non-payment there’s no way the SM will get a dime from him. And asking DoJ to pay 50/50 is absurd.

      • earlofhuntingdon says:

        Donald Trump does not pay his debts, and potential claims against him grow daily. If Cannon is obsequious enough to require a 50/50 split, it will be one more thing Trump endlessly litigates over.

        Regardless of the party Cannon obligates to bear the cost, any SM would be wise to demand an upfront retainer, charge fees against it, and never let it fall below fees earned. Even that wouldn’t fully insulate them from possible Trump arguments, but it would mean the SM held the money while Trump argues.

  5. SMF88011 says:

    This is my take on what is going on here and the probable outcomes:

    Special Master nominees:


    Thomas Griffith – aimed to show that justice shows no political ties beings he was a Bush appointee to the bench, has rules against Democrats in the past but is also fair.

    Barbara Jones – lots of experience as SM, but also a warning to Trump because she was a SDNY Judge who knows all the BS that Trump has played in the past and got away with.


    Paul Huck, Jr. – The guy that Team Trump really wants in there. A political hack that should look good to Judge Cannon due to his being a fellow Federalist Society member.

    Raymond Dearie – a red herring. Old judge that has history on the FISA court. He was one of the judges that approved the Carter page warrants. Trump wants him because he might show some loyalty (he was a Reagan nominee) but also has so many shortfalls that if he rules against Trump they will be easily attacked due to his past issues with the FISA court.

    Executive privilege – Trump wants one of his disciples to be able to block EVERYTHING possible under EP and not allow the NARA to overrule. He knows that a lot of this stuff is so toxic that if the NARA is allowed to decide if it is EP or not, he would go to jail for a long time.

    How long will it last?
    Trump wants to run out the clock until he can announce that he is running for President again and therefore the DOJ will be hamstrung against bringing him up on charges under a modified “60 day” rule. He could also be hoping that he gets named Speaker of the House so he can also use that as a way to frame this as nothing but an even bigger partisan witch hunt than it already is in the GQP’s eyes. DOJ wants it to be VERY short period of time because it should be obvious that these things are not in doubt.

    Declassified or not?
    Team Trump wants to be able to have the SM decide if something has been declassified or not. They want someone that hasn’t dealt with classified materials in the past because people that have had training on proper storage/markings of classified documents will know that these things were not properly declassified. They also wouldn’t understand why some things that are classified because they do not know the nuisances of classification.

    Who pays for it?
    Team Trump doesn’t want to pay for it or if they pay for part of it, they want it to be VERY costly for the DOJ. If they share the costs, Trump will want to have the legal bills via his PAC and not from his own pocket. The DOJ wants this to be paid for by Trump as an individual.

    • Puriya says:

      Thanks for your thoughts on Dearie. I had been wondering why they would include him.

      The “60 day rule” is only about beginning new investigations, not continuing existing ones, right? Also, it’s not an outright ban against beginning them. It simply requires DoJ/FBI leadership to sign off on investigations begun in that time. Right? (I looked, but can’t find the original Barr memo which has the details of the policy.)

      It’s very unfortunate that mainstream media has interpreted the memo the way it has, because folks will now imagine that DoJ is violating its own policy by continuing the Trump investigation(s).

      • Ravenclaw says:

        I *think* the 60-day rule is about filing charges, because that’s a very public thing that could easily affect an election. But it would have no effect on either initiating or continuing with investigations that are not being publicized, nor would it impose a “hold” on court proceedings already under way. If I’m wrong, I reckon one of the savvy lawyers here will correct me.

    • Savage Librarian says:

      Side note: Paul Huck is married to Barbara Lagoa who was in the running for RBG’s seat on the Supreme Court. She currently is a jurist on the U. S. Court of Appeals for the 11th Circuit (a Trump nominee.)

      • Ginevra diBenci says:

        Having read the ruling, I wonder if DOJ might accept Huck just to force Lagoa to recuse. Might be better than Cannon’s choice.

        • Savage Librarian says:

          “In July 2020, Democratic members of the Senate Judiciary Committee wrote directly to Lagoa to urge her to recuse herself from a challenge to felon disenfranchisement in Florida because of her earlier participation in a related matter on the Florida Supreme Court. Lagoa and her fellow Judge Robert Luck declined to recuse themselves…”

        • Ginevra diBenci says:

          SL, you reminded me why, as DOJ must know, Huck might be the poisoned apple. Dearie would at least be the “devil you know,” as opposed to whatever Pam Bondi the judge might pull out of her cloak. (I’m assuming Individual Plaintiff 1 will not agree to DOJ’s choices, and with Cannon in catbird seat hold upper hand.)

        • Joeff53 says:

          Oh, Lagoa would recuse? In what universe?
          I’m surprised they didn’t nominate Ginni Thomas.

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You’ve commented most recently as “Joeff,” and before that as “Joe F”; please stick with one name. Thanks. /~Rayne]

    • BirdGardener says:

      SMF88011: Did spellcheck substitute ‘nuisances’ for ‘nuances’ in “…they do not know the nuisances of classification” (penultimate paragraph)?

      • SMF88011 says:

        I was replying from my phone and it did that. Sorry I didn’t double check because I was in a hurry this morning.

        • BirdGardener says:

          Thanks for replying! It’s a pretty funny typo. (And now I don’t have to figure out why it would be important to understand the nuisances of classification before experiencing them personally.)

        • SMF88011 says:

          I am glad that you were not an ass about that.

          As for classification, it is pretty simple in the end – classify it if you have any doubt if it should be or not. If something is classified, you do not share it with anyone that doesn’t have an appropriate clearance AND a need-to-know; just because they have a security clearance doesn’t mean that they need to know something. You do not take ANY classified documents out of an appropriate facility unless certain criteria and methodology are followed. If you do, you are toast if you are caught.

          Feel free to ask anything you want about classification. Sometimes I can give more detail than other cases because I have to wordsmith around classification issues.

    • Clare Kelly says:

      “Trump wants to run out the clock until he can announce that he is running for President again and therefore the DOJ will be hamstrung against bringing him up on charges under a modified “60 day” rule.” SMF8801

      Although I understand your point, please see:
      “I’m impatient to have some accountability for Trump and his flunkies, just like everyone else (even if, because I’ve followed the investigation, I know that DOJ is investigating Trump’s flunkies). I think, for the reasons I laid out here, a hypothetical Trump indictment wouldn’t come for some time yet, but I’m also confident that if the investigation isn’t open now or soon, Trump’s campaign roll-out would do nothing to thwart opening an investigation. It would require the same Garland approval that would be obtained in any case. Trump wouldn’t even be affected by the DOJ policy on pre-election actions, because he’s not on the ballot this year.”

      • SMF88011 says:

        You might want to “Google” this: Jessica Quintana LANL

        I was going to be an expert witness in that case before her guilty plea. That was bad but nothing in comparison to the level of issue that happened at MAL.

  6. DaveV says:

    Any record Trump deems EP, should have already been declared privileged. Key word “PRIOR” Cart / Horse.

    Presidential Records Act, 44 U.S.C. § 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:

  7. rattlemullet says:

    The constitutional process for life time appointments is a very flawed process and easily manipulated. Digby, posted about Aileen Cannon qualifications, here are a few excerpts

    “Cannon’s primary credentials for the job were apparently her young age and membership in the Federalist Society.”

    “Her professional experience was so limited that she was forced to admit on her Sen Judiciary Comm questionnaire that she had never made any speeches, produced any reports, participated in any panel discussions, spoke at any conferences or written for any bar association.”

    “In her twelve years as a lawyer, she published no writings of her own and just 3 writings done with colleagues at Gibson Dunn — limited to promotional articles on cases handled by the firm for their own website.”

    “In an attempt to show writing experience, Cannon listed 17 short articles from a 2-mo undergrad stint at El Nuevo Herald. ranging from “Prenatal Yoga” to “Flamenco: An Explosion of Energy and Passion.” Cannon is unclear on whether she authored or simply edited the articles.”

    “Finally, the questionnaire for a LIFETIME judicial appt asks Cannon to list all interviews she has given to the media. Cannon lists only her wedding article in a local magazine as her only media experience.”

    If I understand correctly 12 democrats vote for lifetime appointment. Where do go from here? The process for selection judges to lifetime appointments without qualifications is just flat out wrong as evidenced by the current legal (eye roll) process unfolding before us now.

    • Ginevra diBenci says:

      I don’t know why Digby left it out, but I think her main credentials were academic: Duke and University of Michigan. These big names probably stood in for ability with those senators, who share with the media a tendency to confer status based on such names, even when the name is a husk (see Jared Kushner).

      • earlofhuntingdon says:

        Cannon’s main credentials were her youth, inexperience, that she had left virtually no public record of her work or political views, and her hard right politics. If she had remained in private practice, and been good enough (a big “if”), she would now be a junior partner, ordinarily too inexperienced for appointment.

        Her academic record is good, but it’s nothing special among appointees to the federal bench. That some supporters looked on her as a future S.Ct. nominee is laughable.

        • Ginevra diBenci says:

          I was only trying to explain how senators (e.g., to my horror, CT’s own Chris Murphy) make consequential votes based on thin–at best–evidence.

          My own experience indicates that this happens in most realms where power is hoarded and dispensed to a chosen few. Certain university/college names possess an incantatory influence, to the point where they become signifiers for all things desirable in a person. Duke and U of M are among those, and their alumni cast a broad, tensile web over most professions here.

  8. Peterr says:

    That section on “no paper trail” brings to mind a little nugget in the Mueller Report:

    The President then asked, “What about these notes? Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes.” McGahn responded that he keeps notes because he is a “real lawyer” and explained that notes create a record and are not a bad thing, that it’s his legal responsibility to keep an accurate record of events. The President said, “I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.”

    • earlofhuntingdon says:

      Even Tom Hagen kept notes. As for Roy Cohn, he was among the most corrupt but effective fixers ever. If he didn’t take notes, or let Trump see him taking them, it’s because he had an extraordinary mind and memory. He earned both his undergraduate and law degrees at Columbia before he turned twenty-one.

  9. WilliamOckham says:

    I think Trump’s lawyers screwed up. By asserting that the Special Master’s access to review the documents is based on the PRA, they have given the government the ability to transfer this case to Judge Howell’s court.

    • DaveV says:

      44 U.S. Code § 2205 – Exceptions to restricted access :
      (2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
      (A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
      (B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
      (C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and

    • emptywheel says:

      And even if they don’t do that, it makes their appeals to 11th C and SCOTUS far stronger.

      He has conceded both points: that PPA rules and that documents with classified markings are USG docs.

  10. NeoGeoHa says:

    Gonna vent some. So sick of this. He (and/or someone working for him) CLEARLY has broken the law, likely several. ANYONE else in the country would have been arrested immediately upon learning secret/classified material were missing. But he gets to litigate if/how evidence in a crime is accessed by authorities. All I can hear is Orwell’s words in my ears: “All animals are equal, but some animals are more equal than others.”

    I understand why and the process, but this is starting to become farcical. Sorry, rant off.

    • Bobby Gladd says:

      “I could stand in the middle of 5th Avenue in broad daylight, and hand out documents containing the names and locations of all of our undercover CIA agents, and I wouldn’t lose any voters. It’s incredible.” — Donald Trump

      I share your dismay.

        • SMF88011 says:

          He is now starting to learn he is going to be stopped now. The GQP is running to his rescue now but they know as well as the prosecution that this time he won’t be able to get through this completely unscathed. Trump still thinks that he will get away with it though.

      • Gatorbaiter says:

        Considering the unusual amount of overseas agents and sources killed and nullified in recent years, he may have done just that minus the fifth avenue reference. I get queasy thinking about some of the grifters in tfg’s orbit like Kash Patel having access to even unclassified information. “A little knowledge can be a dangerous thing”.

        • SMF88011 says:

          My area of expertise is not this subject but I know a few people that are in the IC that had similar jobs as mine. Let’s just say that they have been worried about FPOTUS since he was POTUS and wondered if he has been the one spilling the beans since then. One said that there was an investigation into what was happening that got stopped due to “political considerations”.

    • Jim Luther says:

      When one reads The Economist, one reasonably expects that, whatever issue is being discussed, the problem is diagnosed as lack of competition, and the solution is free markets. Reading The Economist informs you, not of “truth”, but of a particular perspective.

      Likewise, EW also has a perspective, and IMHO, that is an extremely institutional perspective and a belief that there exists a “rule of law, not of men” that is difficult to discern in historical evidence. There is an abundance of deference to, and respect for, a legal system that has a very troubled history. John Ehrlichman famously admitted that Nixon had “two enemies: the antiwar left and black people” and used the war on drugs to politically disrupt those communities – with the DoJ as the tip of the spear. Very similar to role the DoJ served in the McCarthy and Jim Crow eras.

      The legal system (laws, enforcement, procedure, and interpretation) has always made it very, very difficult to prosecute the wealthy and powerful and been used to solidify their wealth and power (e.g. Citizens United, Rucho v. Common Cause). This is nothing new. Are the actions of Trump in openly breaking the law, bragging about it, and daring the legal system to do anything about it any different than the actions of Capone? Capone had a long career, including about 6 years as the boss and was only convicted of tax evasion, served 8 years, then spent the remainder of his life in luxury in South Florida. Sound familiar?

      As much as I am informed by the “rule of law” perspective presented here, it is extremely difficult to take a level headed look at the history of the DoJ and have any expectation that Trump personally, or any of the caporegime, will face the music – it’s not like he stole bread to feed his family or was caught smoking a blunt on the street. One of the very few positive outcomes of the Trump crime spree may be that a greater number of people recognize just how completely failed the legal system is. Trump accurately recognized that fact, and exploited it to his advantage for decades.

        • AlaskaReader says:

          “The legal system (laws, enforcement, procedure, and interpretation) has always made it very, very difficult to prosecute the wealthy and powerful and been used to solidify their wealth and power (e.g. Citizens United, Rucho v. Common Cause). This is nothing new.”

          Well said indeed, when I assert the same, some folks try and fail to disabuse me of the notion, despite the supportive abundance of objective evidence.

    • George Smiler says:

      I have to wonder whether early in Trump’s presidency his casual approach to security was noted by Whitehouse staff. I’d think the security trained career government employees would have wondered, if Trump was going to throw them under the security enforcement bus(decade in prison, loss of pension, personal shame) to save himself over a security violation i.e. a classified cover sheet of an accountable document being found in a regular Whitehouse office trash bin. Today, I’d guess many of those government employees are wondering whether the FBI lifted their finger prints or DNA off part of the MAL hoard and whether they need to lawyer up like Cassidy Hutchinson had to… or maybe not.

      I’d SPECULATE there was some special classified document handling and accounting system set up for Trump and his Oval Office dining room working office. Clearly, he was Commander in Chief and had to be accurately briefed and advised, but… only to what he could reasonably “handle”.

      There was Trump’s comment to his visiting “crazies” with Whitehouse legal staff present,”See what I have to put up with?” There were press reports of Trump getting his intelligence from FOX News. So, I suspect the distrust was mutual and justified both ways.

      For all we know, the real ODNI damage assessment may have been ongoing or done years ago off of a possible special document handling system set up for Trump as POTUS. The motivation of the Aug. 8 DOJ search warrant execution on MAL may have been to assure no document got missed or that there wouldn’t be the embarrassment, of a phony Russian princess or Chinese agent getting arrested walking around MAL with twice stolen Trump Whitehouse souvenirs.

      • Rayne says:

        I have to say, George, you’re setting off my hinky meter because of some odd naming conventions you’re using.

        Whitehouse is a name, like Senator Sheldon Whitehouse.

        White House is the office and residence of POTUS, a house which is white.

      • Literay says:

        A “Deep State” exerting control over the czar’s and other authoritarian’s chosen president. Speculation that feeds into the psychological predilections of anti-democrats. Interesting.

  11. civil says:

    It’s not clear to me that “Trump envisions government documents with classification marks that his Special Master decides aren’t classified to be Presidential records.” His claim is a conditional: “IF any seized document is a Presidential record, [then] Plaintiff has an absolute right of access to it …” If it’s not a Presidential record, the consequent doesn’t follow. I don’t see where he claims or implies that all government documents (with or without classification marks) are Presidential records.

      • civil says:

        Which is what the government is arguing: the classified docs should not be reviewed by the Special Master.

        Trump is arguing that the S.M. should review everything in order to:
        “a. Identify[] personal items and documents in the Seized Materials;
        “b. Conduct[] a privilege review of the Seized Materials and mak[e] recommendations to this Court as to privilege disputes between the parties (including Executive Privilege);
        “c. Identify[] any Presidential Records in the Seized Materials and
        mak[e] recommendations to this Court as to any classification disputes between the parties.”

        I think it’s part (c) that’s most relevant to your argument rather than the sentence you’d quoted in your discussion and that I initially focused on. My mistake for not having read all 3 documents before commenting.

  12. Paulka says:

    Just a small and obvious delay tactic
    Trump wants the SM to hold all documents until the review and adjudication is complete while the government wants documents released as the process continues with each individual document being released as its review continues
    The difference in timing is huge

  13. GSH says:

    Here’s an idea:
    Trump & fellow pirates planned this theft far in advance, stuffing biased judges to pad local judiciary, 11nth circuit appeals court & SCOTUS over several years knowing it was fulfilling federalist dreams, then stole the docs when he lost election, played 52card pickup, mixing all personal & gov docs together so that this exact scenario would manifest into a high stakes game pitting branches of our government against each other, a death trap for democracy. Not sure the FBI seizure at MAL was in the original plan but seems likely the masterminds knew DOJ would eventually take the bait & grab all the remaining docs, thus ensnaring constitutional mechanisms of the rule of law and allowing said pirates to sail away with secret booty to blackmail our government decades into the future.

    Ship of Fools or not, we’re a little late figuring out how to sink their plan…


    • skua says:

      OK. I like explanatory narratives.
      But I like to prod them as well.
      Q1 Why didn’t DJT photo the classifieds in Feb 2021, store those for use/distribution/storage on microSDcards and then phone NARA and arrange to return the paper versions?
      GSH: Plan to tangle DOJ in court battles.
      Michael Cohen: DJT is blackmailing DOJ, the classifieds are implicits threats of that.
      Twitter: Keepsakes/mementos of his WH years.
      skua: If CIA sees data from the classifieds turn up where it shouldn’t (after it has been sold/traded by DJT ) then DJT can say , “Security at MAL is the best, better than Fort Knox the experts tell me, but maybe it got stolen from MAL, I don’t know”.


      More than one explanation may be correct.

      • emptywheel says:

        Why he didn’t copy–you’re assuming he didn’t, some of this. Rumors are he did the RU stuff.

        The other stuff has more value if it hasn’t been copied.

      • rip says:

        Those boxes taking a few days to make their way to Bedminster, MAL, other places – easy enough to have operatives in the trucks carefully imaging everything that had any markings (or perhaps everything) and slipping out at the last rest-stop before the destination.

        I can almost hear all the chuckles from around the world as the US tries to secure the paper copies of items that have been shared globally.

    • Cheez Whiz says:

      None of what Trump is doing here is “planned”. The “biased judges” is a long-game Federalist Society project, Trump was just Grover Norquist’s ‘guy strong enough to hold a pen’. The hustle Trump’s lawyers are attempting is just classic Roy Cohn attack, delay, and obfuscate. The fact that this works at all is a sterling example of how privileged is baked into our legal system if you are rich and connected enough. The fact that all the heat the judge has taken for her nonsensical ruling will have no effect on her or this case is another.

    • Charles R. Conway says:

      Each docket filing with #LooseCannon makes your speculation more & more real.
      Speak of “packing” the Court. McConnell was once very handy to the #MangoMussolini

  14. Scott Church says:

    Both Cannon and Huck were elite Miami kids that went to the finest Miami private schools.
    I was Paul Huck Jr.’s classmate for three years back in the late 1970s.
    A precocious and highly competitive kid, beat me in the spelling bee finals.
    Straight A student and Alex P Keaton type.
    A larger than life character, even at age 12. One fierce competitor who hated to lose.
    I have not talked to him in over forty years. He is not on Facebook.

    • Ginevra diBenci says:

      Thanks for the insight, Scott Church. Huck seems like Trump team’s dream choice, and given his wife’s position the DOJ is being tempted to accept him based on chess moves.

  15. George Smiler says:

    “S’all, good man”, to quote a TV lawyer.

    After six years of JD public embarrassments, it looks like Garland has been handed a gift by Trump’s dummy lawyers. The JD now has a safety valve, to keep nutcases from going after FBI offices and calm the majority of the nation that thinks we’re headed for a civil war. Judge Cannon’s court room is a platform to communicate to the public through JD preferred old school public court filings, about a highly complex case, involving highly classified information, that the real secret investigation will likely drag on, past the midterm elections. A week ago, search evidence picture 2A to support a JD filing and the whole country has now got “the picture”. There is no middle ground in today’s America. Trump haters: TOP SECRET/SCI and Espionage Act, that’s good for years in prison, Trump lovers: Trump’s privacy has been “raided” and now the whole world knows Trump has a thing for tacky carpets.

    Yesterday’s installment: No plaintiff defendant agreement. Trump’s attorney’s plan amounts to an invitation to Judge Cannon to get on board with the Trump legal team’s conspiracy to obstruct a criminal national security investigation. Meanwhile, the ODNI damage assessment is stopped and the nation is ticking toward a three branch constitutional crisis. Surely, the SCOTUS majority, despite its political agenda, doesn’t want that to happen over relatively minor loose ends from Trump’s presidency. One way or another the National Security State will be accommodated or we will be overrun by terrorists, Putin well poisoners and bank robbers that think they can do a Trump and have a special master count and launder THEIR loot for them.

  16. Ardien says:

    I am new to EW, and this may be a dumb question and a bit OT, but at the risk of incurring the wrath of bmaz, I will pose it anyway. IIRC, one tactic DOJ could use to replace Loose Cannon as the judge in these proceedings would be to file a criminal indictment in DC and hopefully get it in front of CJ Howell. Given that Mar a Lardo is not a private residence, but owned by one of the Mango Mussolini’s corporate entities, does that entity have any criminal exposure or liability in this matter? In other words, could DOJ file an indictment in DC against that entity and its owners and managers rather than Trump personally? Clearly the ownership/management had knowledge of improperly stored classified information on the premises, since Trump is the owner. Perhaps filing an indictment against the corporate entity rather than Trump himself would be an easier call for Garland and DOJ, but would accomplish the same goal? I am not an attorney, so please forgive any improper terminology.

      • Ardien says:

        Thank you, Rayne. Perhaps more blundering than tiptoeing, but newbies do not have to read many comments here before encountering your resident Kerberos (The ancient Greek one, not the software). That said, the level of commentary here is much higher than average, both because of your vigilance and the fact that bmaz does not suffer fools at all, never mind gladly.

        • AlaskaReader says:

          But when he saw the bright light of day and viewed the clear spaces of the shining sky, black night rose over him and he turned his gaze to ground, closed tight his eyes and shut out the hated light

    • emptywheel says:

      DOJ can’t charge Espionage, at least for the docs seized in August, without those docs.

      To charge others they would need to prove knowledge that the docs were there and that they were classified. It’s still easier to charge Trump for making them available.

      Don Jr may have exposure on obstruction, depending on his role in all this. But my suspicion that there were two June 20-something subpoenas, one to Trump and one to Trump Org, suggests that Trump Org has been more compliant than Trump himself.

      Trump Org likely is keeping itself relatively clean given all the other legal troubles it has.

      • Ardien says:

        So much for that brilliant plan. I was hoping there might be a mechanism to evict Cannon without triggering the massive shit storm of insanity that will inevitably occur if and when Trump himself is indicted. In any case, thank you for the elucidation, Dr W; along with the other commenters, I appreciate the time and effort you put into digging out these details and correcting the innumerable omissions and errors of the so-called mainstream media.

  17. Rita says:

    I wonder if the DOJ and National Archives regret giving Trump so much deference and placing so much trust in him over the last 18 months. But we don’t know if Trump’s team have been making the arguments made in the latest filings all along. If so, perhaps the issue should have been forced quite some time ago.

    The certification signed by Trump’s attorney in June was not factually accurate. That doesn’t seem in dispute. Once more documents were discovered, the response that one might expect from a man concerned with the security of the country would have been something like, “Sorry, my team blew it. Unintentional oversight on our part. Come back and look some more.” What’s going on now seems like either desperation or bad intentions. Or both.

    • Rwood says:

      “The certification signed by Trump’s attorney in June was not factually accurate.”

      Unless the docs in question truly were not there when the search was made. Which begs the question “If they were not there then, where were they?”

      • Rita says:

        I would expect a former President, who is actually concerned about the country and its sensitive defense information to help find the information, to safeguard it well, and to assure the now charged with the national defense that he will do a thorough search to find any additional information.

        Instead Trump is playing hide the ball and impeding the investigation – not necessarily the actions of someone with the best of intentions. I can’t imagine any other ex-President acting like this.

  18. DaveV says:

    For any “classified” sets that Trump’s team is allowed to “see”, DOJ must demand that they can only be viewed at a Secured Facility (SCF). No pictures, No copies. No notes except what ODNI approves them to take due to National Security. Trump only gets a catalog entry that references those adequately. From the Plaintiff’s review, they make their arguments.

    Another hunch, could some of the classified documents or presidential records predated Tramp’s reign and thus would be executive privileged to Obama.

    • SMF88011 says:

      SCIF (secure compartmentalized intelligence facility) or VTR (vault type room) that is certified to as appropriate repositories for this type of documents are not that difficult to find in the US; most military facilities in CONUS have some form or the other available for this type of document storage. Standard classified document retention procedures need to be in place which means no photos, copies or notes main leave the facility unless it is cleared by an ADC.

    • earlofhuntingdon says:

      Whenever the documents were created, authority to exercise EP concerning them is in the hands of the current president.

      Trump, as usual, is seeking to invent new law or rules, to obtain money or influence, to inflict damage on his opponents, and to protect his ample backside.

      • DaveV says:

        Why won’t Biden categorically just invoke Executive Privilege to ALL the documents taken by Trump ?

        Biden: “My EP trumps your EP and the Courts are encroaching on MY executive privilege to be able to do the Executive’s responsibilities”

        Dark Brando’s popularity goes up when he doesn’t pull his punches.

        • Rayne says:

          Because that would be seen as picking a political war Trump could use for incitement AND it could also tip hostile entities as to the relative importance of any of the documents Trump has stolen.

          Dark Brando sometimes needs to be dark — and dark has more than one meaning.

        • Rita says:

          Hasn’t Biden done that already by delegating actions regarding Presidential Records Act to the National Archives, waiving EP with respect to the J6 request for documents, and allowing the Justice Department to pursue its attempt to collect documents? I don’t know that he needs to be explicit.

        • Rayne says:

          It’s not a delegation; it’s the role of NARA to manage presidential records. Biden has declined to exert executive privilege over at least eight sets of documents NARA has been asked to release to the House January 6 Committee, with the Supreme Court finding no legal impediment to the release of presidential records by NARA after Trump sued to halt them.

          That is not the same as invoking executive privilege and demanding the release of presidential records to the current White House from the previous administration which had been unlawfully in Trump’s possession.

          In other words, the first is a negative application of privilege and the second an affirmative application. The latter would definitely cause friction.

  19. rip says:

    Why do we need any of this if the former guy (FPOTUS); as normal procedure had kept records of what was HIS as he was doing his shipments. That way he could make sure that what was shipped was also received.

    Of course there are lots of very competent people who could help with this effort. Big group-enabled spreadsheet – lots of reviews and updates and revisions. Some competent people may even be in the (R) camp.

    Now, because of his intentional sloppiness and purposeful obfuscation he is trying to get the US gov’t to play along with his delays and even trying to end-run any prosecutions.

    Why isn’t this just another complaint filed along with the theft of non-personal objects from the White House on his ejection?

  20. Village idiot says:

    Sorry for the stupid question. It’s common knowledge that there’s a crime fraud exception to the lawyer/client privilege. but are there crime fraud-like exceptions to other types of privilege, like executive privilege for example?

    I’m pretty sure the answer is ‘no’ for executive privilege, and Trump is mainly trying to stop the J6 committee accessing documents via NARA any time soon – but I’m often wrong,.

    • matt fischer says:

      Per Just Security

      The Supreme Court, in U.S. v. Nixon, explained that executive privilege is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” …

      The Second Circuit’s 1982 decision in United States v. Myers suggests that government officials cannot hide criminal behavior behind a privilege implied by the Constitution … It’s not a large step from the reasoning in this decision to applying the crime-fraud exception to executive privilege …

      • matt fischer says:

        And, as frequently noted on EW, withholding documents from the Executive Branch on the basis of Executive Privilege is inherently absurd.

  21. Jack Horwitz says:

    Just saying … if intelligence agencies recognized DJT was a lability after his election in 2016 could they have withheld information and instead ‘planted’ others in order to ascertain culpability. That would make DJT’s claim a reality and we know that he blurts out truth that simply incriminates him. Of course we will never know since the docs are ‘secret’.

Comments are closed.