In Bid to Keep Executive from Accessing Executive Branch Documents, Trump Confesses to Obstruction

In his 21-page response to Judge Aileen Cannon informing her they want her to reject the government’s request for a stay of her injunction prohibiting the government taking investigative steps using 103 documents marked classified, Trump confesses to obstruction of justice.

Trump admits, over and over, that when the FBI showed up with a warrant authorizing the seizure (in part) of any documents with classification markings, it found such documents on the premises.

[I]t appears such “classified records,” along with the other seized materials, were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, controlled access compound utilized regularly to conduct the official business of the United States during the Trump Presidency, which to this day is monitored by the United States Secret Service.

Mind you, there’s a lie here, as there is in the passage where Trump describes “complying with a subpoena” as “voluntary” production.

Likewise, there was no similar sense of urgency or imminent threat associated with the “classified records” President Trump’s counsel voluntarily turned over on June 3, 2022.

The lie is that these documents weren’t all stored in storage boxes in a room that didn’t comply with the rules set by the Executive Order that still governs classified records. The most sensitive documents — along with most of the empty classification cover folders — were in Trump’s office, an office in which he routinely entertained people (including foreign citizens) not cleared to view classified records.

But even when Trump introduces the crux of his argument that the Presidential Records Act would guarantee him access to documents that are actually found to be Presidential (as opposed to Federal) Records, he doesn’t contest that the government seized documents marked as classified at his property.

Moreover, the ultimate disposition of all the “classified records,” and likely most of the seized materials, is indisputably governed exclusively by the provisions of the Presidential Records Act (“PRA”). See 44 U.S.C. §§ 2201, et seq. The PRA accords any President extraordinary discretion to categorize all his or her records as either Presidential or personal records, and established case law provides for very limited judicial oversight over such categorization. The PRA further contains no provision authorizing or allowing for any criminal enforcement. Rather, disputes regarding the disposition of any Presidential record are to be resolved between such President and the National Archives and Records Administration (“NARA”). Thus, at best, the Government might ultimately be able to establish certain Presidential records should be returned to NARA. What is clear regarding all of the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department of Justice.

The likely reason why Trump lies about Evan Corcoran responding to a subpoena is because absent that lie, Trump would have to explain to Judge Cannon that every single one of those 103 documents with classification marks was proof that Trump had refused to comply with a subpoena and — via his lawyers, including one who signed this filing — lied to do so.

Nevertheless, the entire 21-page argument about classification (which also concedes that neither he nor Judge Cannon has any authority to review these documents for classification status) is not just gaslighting, but also a serial confession that, Yes, Donald Trump obstructed this investigation.

And that confession is — irrespective of the actual classification status of those documents — an admission that because each of those 103 documents is evidence that Trump obstructed an investigation, they belong in the hands of the FBI to continue their investigation of why Trump obstructed their investigation.

Go to emptywheel resource page on Trump Espionage Investigation.

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53 replies
  1. Cosmo Le Cat says:

    As Emptywheel points out on Twitter, it’s also a lie that all records are either PRA or Trumps personal property. This ignores the Federal Records Act.

    As Bradley Moss points out: “With yet another court filing, it is increasingly clear there is no evidence of Trump’s alleged ‘standing declassification order’, and no evidence that these particular classified records were ever declassified.”

  2. DaveV says:

    Question. Does the DOJ get a final chance to respond to Trump’s distractions and point out the lies? I see there is a “replies due by 9/19/2022” on Trump’s docket# 84.

    • DaveV says:

      We are still in the middle of the inning. What I found generally is hopefull IF authorized by Cannon’s court’s rules and procedures. Trump may not have another opportunity to respond, depending on when DOJ files. This proceeding is at step 2.

      1. A moving party files a motion requesting the court to render a judgment, order or ruling
      2 The nonmoving party formally responds to the motion by filing its own written plea
      3 In response to the nonmoving party’s response, the moving party files a reply
      4. To respond to that, the opposing party files a surresponse
      5. Finally, to respond to the surresponse, the moving party files a surreply!

      I would expect the DOJ to file their reply shorty on or before Sept 9 (but no time so midnight) where they can to address Trump’s deficiencies, latest red herring and misrepresentations. And note that Trump did not actually assert an ownership to the marked classified documents. And strongly note all their legal arguments were not sufficiently argued.

  3. SaltinWound says:

    Is he claiming his entire resort is a controlled access compound? The storage locker isn’t a compound. What is he claiming the Secret Service is monitoring? Aren’t they there to protect him personally?

    • Bittersweet says:

      When I read that the Secret Service is monitoring the storage facilities I had the vision of Secret Service agents standing guard outside both the office and the basement storage room 24 hours a day. Maybe with full dress uniforms. Is there any evidence that there are guards in front of restricted areas a the club?

      • Gee says:

        There surely would be evidence if that were so – they have the video monitoring of the comings and goings of that area, so they must be able to see if the room is guarded, what is required to access it, etc. But we aren’t likely to hear about that now, as that is exactly the type of evidence which if exposed now would make it less easy for Trump and team to create further evidence of obstruction via their lies about the security of the room. I think DOJ will give Trump plenty of opportunities to screw himself.

    • Helena Montana says:

      My question is, does the SS even stay at Mar a Lago when trump isn’t there? Don’t they go with him from place to place? Or do they leave a standing force at all his residences? That could get REALLY expensive.

  4. Ginevra diBenci says:

    Forced myself to read the whole thing. I learned that Mar-a-Lago has been a secure government restricted-access location for … millennia? That Trump is still President (“President Trump” throughout), that Obama once might have had the title, and that Clinton has been relegated to “former president,” lowercase, status.

    I learned that because President Trump has unlimited supernatural powers of which declassification is just one, he alone possesses the secret knowledge of which “presidential records” were, are, or might ever be classified.

    Most of all, I learned that Devlin Barrett and Carol Leonnig got played. As I expected, the Kise ‘n’ Corcoran team scooped that scoop right up and exploited it to buttress the myth about “leaks.”

    And despite your observations about his glaring conflicts, Dr. Wheeler, Corcoran is keeping his name on these filings.

    • earlofhuntingdon says:

      It’s up to the DoJ to raise the issue. Corcoran himself could and should, but he’s unlikely to do so, something that should count against him in any bar proceeding.

  5. L. Eslinger says:

    “…which to this day is monitored by the United States Secret Service.”

    The Secret Service may monitor access to various rooms that could, at some point, be proximate to Trump, but not for the purpose of securing government documents. It’s also likely that the agents around Trump have turned a blind eye (and deaf ear) to all sorts of questionable (being generous with that adjective) behaviors, if only in a misguided effort to maintain a level of trust that they believe is essential to their protection-related work.

    • earlofhuntingdon says:

      You address a point Trump’s argument hopes to elide. Any monitoring done by the SS of the physical spaces at MAL is for the purpose of protecting the person of DJT from physical harm. That work has nothing to do with protecting government or personal records created during a former public employee’s term of office.

      Any collateral or incidental benefit from that “monitoring” would be inadequate to protect classified USG records, or those deemed NDI.

        • Teaser says:

          I’m assuming their job description is to oversee his personal protection of him and his family. If they are not present at MAL,what is the SS doing? Are they present at all of his properties? Seems like a good gig if he is not there.

          • Operandi says:

            I imagine you’d want a certain continuity of physical security at commonly inhabited locations to thwart a would-be adversary from leaving any number of surprises while he’s vacationing for a weekend.

            Where, when, and how many agents that involves is obviously info the SS isn’t going to volunteer readily.

            But, of course, if done, it’d be so they don’t have to toss the bedroom on his return, not to make sure everyone’s staying away from the storage closet.

  6. P J Evans says:

    Docs in his personal office are available to show to visitors who he wants to impress. That isn’t secure storage!

  7. Former AFPD says:

    There are numerous factual allegations contained in this pleading. These allegations are just that – allegations. The pleading is not supported by declarations sworn under penalty of perjury, the usual method for supporting factual allegations contained in such a pleading. These allegations have been disputed by the government. I suppose one way for the government to deal with this issue would be to request an evidentiary hearing on the disputed factual allegations, and point out that one or more of TFG’s attorneys might be a material witness to some of the factual allegations contained in the TFG pleadings.

    • emptywheel says:

      My BIGGEST concern about this dispute going forward is that they have not already done so.

      Brandon Van Grack has noted the absence of a criminal attorney for other reasons. But to make sure the appeal is well positioned is another reason.

      Just as an example, the affidavit, while referenced in the government’s response, is not otherwise part of the record (presumably for deliberate reasons, perhaps to ensure Cannon doesn’t decide to give it to Trump). But as a result, the explanation of the Trump subpoena is thinner than it could be.

      • Ginevra diBenci says:

        I was wondering about that affidavit, which seems to have been brought up solely to be brushed aside.

  8. HEW says:

    Thanks for the handy Resource page. Bookmarked.

    FYI, maybe I missed it in a multi-document link, but I could not find the August 30, 2022 “Notice by Investigative Team of Status Review” which you cited and linked to in a tweet earlier today on the Resource page.

  9. earlofhuntingdon says:

    If you’re on protection detail, you’re not focused on anyone or anything else, except to the extent they are a potential threat to the protectee. You can’t do both jobs at the same time.

    SS employees who were “protecting” Trump’s records, if any, should be regarded as moonlighting, and their time should be billed to Trump personally.

  10. The Old Redneck says:

    Over and over, their response says Trump had authority to declassify all those papers which had classification markings. Indulging that notion for a moment, the response provides not one shred of evidence that he actually did so. Not one example – just a single thing providing some plausibility for this claim – is provided.
    I wonder how Judge Cannon would have treated the “storage dispute which spun out of control” argument if she heard it from someone like Reality Winner.

    • my2cnz says:

      Trump also never argues executive privilege applies to him, only mentioning this:

      “The Government also continues to assert that President Trump is not
      permitted to claim executive privilege of documents in the custody of the Executive Branch. [ECF No. 69 at 8-12]. But the Court already expressed skepticism with the Government’s conclusory assertions regarding executive privilege. [See ECF No. 64

  11. Cosmo Le Cat says:

    Trump hurriedly left the golf course to fly to DC so he could retrieve his magic declassification wand, which also has the power to retroactively pardon former presidents.

  12. joel fisher says:

    “were principally”!!! What moron wrote that? “Principally” means”mostly” , but not always. So, occasionally we had national security records where the nest of spies populating my wedding venue could have access with ease or BMAZ is principally a pleasant fellow who helps the readers to understand the events of the day.

  13. ScottMI says:

    “The PRA further contains no provision authorizing or allowing for any criminal enforcement.”

    To the extent that the PRA establishes that presidential records are the property of the US government, then they should be covered under 18 USC 641, right?

    • ScottMI says:

      Furthermore, the PRA explicitly provides for the possibility of criminal prosecution for activities involving archival records: “The Archivist shall not make available any original Presidential records to any individual claiming access to any Presidential record as a designated representative under section 2205(3) of this title if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.” (44 USC 2204(f))

    • emptywheel says:

      DOJ is covering it under 2071. But yes, 2071 prohibits removal of govt docs.

      They won’t go to 641, IMO, unless they learn he has bartered or sold some of it.

  14. pseudonymous in nc says:

    21 pages is, once again, in violation of local rules. And probably deliberate. A flex.

    At some point we may find out that Fitton is acting as a backchannel between the lawyers and judge because his steroidal shadow is cast on both sides.

    • Doug Kane says:

      It’s not actually 21 pages. It is 20 pages, plus the certification of service page, which doesn’t count towards the page count. The DoJ’s motion is similarly 20 pages plus a certification page (even though the 20th page is only a signature page).

  15. TooLoose LeTruck says:

    Couldn’t help but notice the use of quotation marks on the phrase “classified records” throughout Trump’s response…

    In my mine’s eye I keep seeing one of Trump’s lawyers defending their position in court and every time the phrase “classified documents” is spoken, someone standing next to the lawyer makes air quotes w/ their fingers…

    It’s almost like they’re trying to claim that since he’s still actually the president, “President Trump” doesn’t really need to take this seriously.

  16. earlofhuntingdon says:

    This dispute is not “at its core a document storage dispute that has spiraled out of control.” You can’t get there from here even by focusing on the PRA, let alone the FRA, or the three criminal statutes cited in the government’s search warrant. As a former criminal appellate lawyer for the SDFL’s USA’s office, even Cannon should find it hard to agree with that characterization.

    Trump’s legal team, as Trump himself is wont to do, left out a bit of essential process in its discussion of the PRA. Yes, it “guarantees” a former president access to the presidential records, which belong to the USG, created during his term. But that access is subject to parameters regarding their safekeeping and the clearance level of the persons authorized by the former president to view them on his behalf.

  17. Jim Luther says:

    I will leave it to the lawyers to poke holes in the logic of the submission, but here is the logic that it followed:

    1. Documents falling under the Federal Regulations Act (FRA) and the Presidential Records Act (PRA) are mutually exclusive.

    2. The governance of all records produced or received by a president is ruled exclusively by the PRA. By mere possession, all subject records are therefore governed by the PRA.

    3. The president has absolute authority to designate records into the subcategories of personal or presidential, and the determination made during the presidency is final. The archivist assumes responsibility for presidential records, and plays no role whatsoever in personal records.

    3. While president, all documents were both declassified and designated as personal. Declassification by the president, nor designation as personal by the president, does not require any bureaucratic procedure.

    Therefore, under the ruling law (PRA), it is impossible for criming to occur, and if it did occur, there is no criminal enforcement authority.

    And, just to be sure, in case the archivist says some documents were presidential, not personal

    4. The PRA requires that the archivist “shall assume responsibility for the custody, control” of documents, but does not require that MUST assume ACTUAL custody and control of PRA documents, just mere responsibility.

    • emptywheel says:

      That is the argument. BUt that’s why it all crumbles with the obstruction side.

      Plus, there are requirements for both the personal/PRA, he didn’t start making this argument until THIS February, and there are similarly arguments about classification.

      • Cosmo Le Cat says:

        I’m guessing you mean that by failing to provide all documents with classification markings in response to the June subpoena, Trump committed an act of obstruction. As a private citizen, Trump would not be protected from delivering those documents, even if declassified and designated personal. (Note: this shows the wisdom of the specific language in the subpoena, as it sidesteps all the potential defenses Trump has thrown against the wall, as elegantly summarized by Jim Luther).

  18. earlofhuntingdo says:

    Trump’s response fails to acknowledge the existence of a criminal investigation, which was the basis for the judicially approved search warrant. Which means that, for the time being, most of the seized documents do belong with the DoJ (part of the executive branch, which controls claims of EP), and not just with NARA or the FORMER president.

    The PRA might give Trump preferred access to presidential records produced during his term of office, but they are the property of the USG, and access to them, even by the FORMER president or one of his designated representatives, remains subject to restrictions required to protect NDI and classified documents.

    Trump is setting a new bar for disingenuous arguments.

  19. earlofhuntingdon says:

    Half of Trump’s arguments are limited to regurgitating back to Cannon statements she’s already made, but which originally lack precedent or sound legal reasoning to support them. The technique is similar to when an academic proposes in support of a novel conclusion, his own prior work, which also lacked support. As with a checking account fraud scheme, it works only so long as the cycle keeps repeating. Stop the cycle of self-reinforcing statements, and they all fall down.

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