Yes, Trump Was Making Notes on Classified Documents

When the Trump search warrant was initially unsealed, many commentators focused on the description of documents bearing Trump’s notes.

From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes. [my emphasis]

At the time, I thought that was an overreading of the passage. After all, that paragraph is a description of the contents of fifteen boxes, of which just 184 documents have classification markings. Given the context, I believed it was possible this described other documents in the boxes, hand-written documents that also might also contain classified information. Trump’s notes from calls with foreign leaders, for example, might include classified information or be otherwise particularly sensitive.

But one of the newly unsealed passages from the affidavit released yesterday describes Trump’s handwritten notes on the documents on June 3, as well. (As noted, this passage also revealed that at least one of the documents bore a FISA marking, as the first did.)

A preliminary review of the documents contained in the Redweld envelope produced pursuant to the grand jury subpoena revealed the following approximate numbers: 38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following caveats/compartments, among others: HCS, SI, and FISA. [redacted] Multiple documents also contained what appears to be FPOTUS’s handwritten notes. [my emphasis]

In this case, there cannot be any doubt: the notes are on documents bearing classification marks. That’s because the only things Evan Corcoran handed over on June 3 were documents bearing classified markings.

In fact, of all the sets of documents turned over or seized, that set includes the highest concentration of Top Secret documents. Almost half those documents turned over were marked Top Secret.

(This table includes the contents of the leatherbound box in the total of classified documents seized on August 8, but also breaks it out, which shows the leatherbound box stored the second highest concentration of Top Secret documents.)

So, yeah, at least some of these documents — multiple, not just several — reflect Trump writing on classified documents.

We don’t yet know what that means. Nor is it clear when he wrote those notes. In fact, FBI might be able to use those notes to prove that Trump has gone back and referred to (and written on) these documents since he left the White House, after such time as the current President decided that the former President no longer had a need to know America’s most sensitive secrets.

The confirmation that Trump took notes on documents bearing classification markings is important background to Trump’s attempt to claim that documents marked classified might be his own personal documents, as he made hints of doing in these passages of his response to the government’s motion for a stay.

Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See 18 U.S.C. § 793(e); [ECF No. 69 at 9].7

7 Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA.


To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the PRA and cannot possibly form the basis for any criminal prosecution. [my emphasis]

That is, in an attempt to forestall an Espionage Act prosecution (the only time Trump has named the statute), he seems to be entertaining a claim that he first declassified these documents and then, by dint of writing on them, made them his own personal property.

Such an argument raises the stakes on the timing of his notes. If he only wrote on these documents after he left the White House, they would have been declassified government (often, Agency) documents on January 20, 2021, not personal documents. But if he wrote on these as President, then his notations would have been made, “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,” clearly making them Presidential Records under the Act. Either way, the documents belong in government custody.

The government scoffed at the possibility that Trump could have made classified documents personal records (it does not raise his notes on them).

Plaintiff’s suggestion that he “may have categorized certain of the seized materials as personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would only supply another reason that he cannot assert executive privilege with regard to those records. If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. § 2201(3) (defining “personal records” as records “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”). In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information.2

2 Plaintiff’s characterization of the discretion the PRA provides the President to categorize records as “Presidential” or “personal,” D.E. 84 at 14-15 (citing Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012)), is thus irrelevant here. In any event, the district court decision on which Plaintiff relies did not concern classified records and does not support his assertion that a court must accept a former President’s claim that records that indisputably qualify as Presidential records under the PRA are instead personal records. Instead, the court in Judicial Watch concluded that it could not compel the National Archives and Records Administration to revisit a President’s decision about such a categorization. 845 F. Supp. 2d at 300-301. More fundamentally, the district court’s analysis in Judicial Watch has no bearing on the application of criminal law regarding unauthorized retention of national defense information, unauthorized removal of government documents, or obstruction of justice. 18 U.S.C. §§ 793, 2071, 1519.

If Trump claims to have made these classified documents his own personal documents while President (by writing on them), it would more clearly amount to theft, because otherwise any notes he wrote would be part of his official business, as noted above. But that’s currently what Trump is offering up as his defense.

Because he is suggesting that classified documents were declassified and made personal, the notes make it more likely that Trump used America’s secrets for his own private gain either during or after he left the Presidency. In fact, that appears to be the argument he’s offering in his defense!

Update: Tried to clarify my logic in the final two paragraphs per observations from Ariel817.

Go to emptywheel resource page on Trump Espionage Investigation.

116 replies
  1. Davidb says:

    Oh! Fair Use! Copyright Law! I only used 5 seconds of a doc, reading it in my head, my notes prove this.

    Or maybe he is writing a Parody, also covered.

    N.b. Abbie Hoffman, in Steal This Book, noted the best way to steal a book is to write your name in it on the bookstore, then show that or other handwritten markings to the guard if you get caught.

    • MB says:

      Reminds me of when I was a teenager, a friend taught me his method to steal vinyl records from a department store: legitimately buy one record, take the record inside the bag with the cash register receipt outside, stash the record in bushes outside the store, walk back into the store with the empty bag and receipt, and slip another record in the bag. If the store security guard stops you, simply show the legitimate receipt from the other record now safely stashed outside, and continue on.

      Well, that was the theory. The guard saw me walk back into the store with the empty bag and slip a brand new copy of Led Zeppelin III into the bag and I got caught. Called the cops, got handcuffed and whisked down to the police station, where my parents had to come and get me…

  2. joberly says:

    Here’s another detail to the timeline: Yesterday’s release of the search warrant affidavit reveals the first sentence in Paragraph 64, that on July 5, the Trump Organization handed to the FBI “a hard drive” of M-a-L surveillance tapes. Paragraph 64 was entirely redacted in the initial unsealing of the affidavit. Paragraphs 65-69 are still redacted in this latest unsealing but presumably tell the magistrate judge what the FBI saw on those tapes after July 5th that led them to believe there were additional NDI records in the Storeroom, in the 45 Office, and perhaps elsewhere at M-a-L, and on August 5th to ask the magistrate judge to authorize the search warrant.

  3. GKJames says:

    Even if Cannon buys his argument, it still doesn’t get him around 793(e), does it? He can obsess all he wants over classified/personal; it’s his silence on “national defense information” that’s telling.

    • BrokenPromises says:

      i.DJ.T. is like a guy talking to you about the tri lateral commission and the conspiracy behind the pyramid with an eye on the dollar bill while a bright Parrot on his shoulder sqwauks “lies all lies” which he dutifully pretends isn’t there….

  4. cbear says:

    Notes on the TS docs?
    One can only imagine:

    “Doc #22 Jared/MBS $2bn. Split- Me 90% Jared 10%”
    “Doc #45 Barrack/MBZ $1BN. Split- Me 50% Tommy 50%”
    “Doc #69 Flynn/Turkee $100mm. Split- Me 99% Dumbass 1%”

    The mind reels at the possibilities.

    • dude says:

      Well, his notes would be in Sharpie, so consume half a page by themselves. Recalling what Trump did to a certain hurricane forecast, I imagine they would look a lot like the kind of notes kept by Jackie Treehorn.

        • Super Nintendo Chalmers says:

          The good thing is the FBI really does have leads, and they have team of agents working on the case.

          • dude says:

            Yes, a wealth of leads. Given the length and breadth of these investigations, I imagine a lot of law and enforcement people are approaching burnout. No matter what they discover and conclude, this whole business with Trump et al is exhausting. Some economist will eventually tote-up the dollar-cost, and it will be staggering. The human cost is too, but there is no convenient measuring-stick for that. I think that is one good aspect of the J6 Hearings–providing a human-cost reference.

            • posaune says:

              Yeah. I want to know, in the end (whatever and whenever that is), how many hours Marcy worked on this! Now, mind you, an hour of her brain power, memory, steel-trap mind, is worth ten of mine, so we’ll have to figure out the variable for that across the board.

            • Bardi says:

              ” The human cost is too, but there is no convenient measuring-stick for that. ”
              Those agents killed in other countries due to donnie’s monetization of classified/secret documentation will never be known. I am not a supporter of death and would prefer to have the freeloader work it off, one day at a time, forever.

              • robb rogers says:

                Or, instead of Glover Cleveland on the $1,000 bill, put a picture of 45, in an orange jumpsuit, just as a reminder.

    • Yargelsnogger says:

      Although not as entertaining as your list, I wouldn’t be at all surprised if they have notes like “keep”, or “take with” on them.

      • KM Williams says:

        Trump may have been collecting information to write an autobiography that would sell waay better than Obama’s… with photos of all sorts of secret info -with his handwritten notes on it! Showing how he saved the world over and over, and the Russia investigation was “fake”. Or something. Plus, he almost certainly sold, or “made a deal” using the info.

  5. Tish says:

    “I peed on them, so they’re mine.”

    But so far the only legal consequences of his actions while President seem to be . . . new case law? Is that going to be it? He’ll be buried on one of his golf courses before the courts are done with the 2016-20 Presidential administration. Soon all the apologists’ arguments will be along the lines of “He’s too old/feeble/addled to be held responsible for anything.”

    • Troutwaxer says:

      Obviously he did not declassify the documents. If so, there would be a record. You don’t declassify documents by waving your magic sharpie over them. You call an aide and say, “I need to declassify X, let’s start the (complex, lengthy) procedure for this document.” Then records get made, documents get moved to a non-classified facility, or maybe it turns out that the President doesn’t have the authority to declassify a particular document, and so forth, with records made of every step in the process.

      No records, no declassification. End of story.

      • TPAkyle says:

        Didn’t I read that Trump, via Kash Patel, actually went through the formal process to declassify several documents? Given that, he has demonstrated that he knows the proper procedure for declassification. He should also know his magic fairy dust declassifications do not qualify.

        • Midtowngirl says:

          You probably had, since here is Ka$h on right-wing vlogger Benny Johnson’s YouTube, in an interview dated 07/04/22, affirming as much. He describes an attempt by Trump to do a ‘bulk’ declassification of a “mountain” of classified docs near the end of his term, only to be thwarted by WH aides and the bureaucratic process.

          • Midtowngirl says:

            A couple of things that K said in that interview stand out to me:
            1. He says he was “substituted in” as a representative to the Archives. Who did he replace?
            2. He says that they (at the time of this interview in July) were still in a fight to declassify those same docs, which are now in the custody of the Archives.
            So, I’m guessing that in the final days of his administration, Trump tried waving his magic sharpie, found that didn’t work, and resorted to stealing the docs instead.

            • Troutwaxer says:

              A fight with who to declassify the documents? That comes down to something like this:

              FORMER PRESIDENT: I want to declassify these documents.

              CURRENT ADMINISTRATION: Sorry. No. You can’t do that.

              So the people who do currently have classification/declassification authority told the people who don’t have that authority that the documents were, in fact, still classified. IANAL, but that sounds like a confession to me, as in, “Someone with classification/declassification authority told me we had classified documents, but we didn’t immediately return them to a SCIF.”

  6. WilliamOckham says:

    Um, no. The entire edifice of Trump’s argument falls apart when it is examined in the light of the definition of presidential records (emphasis added):

    The term “Presidential records” means documentary materials, or any reasonably segregable portion thereof

    Handwritten notes are not reasonably segregable. A classified document cannot, under any circumstances, be classified as a personal record. Adding a handwritten note (which is, by definition, non-segregable) cannot change that.

    The whole thing is just obvious bullshit.

  7. Silly but True says:

    So as it’s evolving the whole rub on many of these seems to be distilling down to government documents with Trump doodles.

    As I see DoJ’s legal case:

    1. These are almost certainly not the only copy of the underlying government record; any underlying NARA record may be moot, as the original or suitable copy exists in government’s possession. (An argument that a copy still belongs to the government diminishes in face of it being the government who distributed the copies and very specifically likely have Trump his copy; the government would likely be hard pressed to even account for how many copies of any given document it might have distributed)

    2. The entire “classified document” angle the media trumped up this whole time is moot; the government’s angle that Trump hasn’t furnished proof of declassification is weak. Let the government identify the specific US statute which binds POTUS to “furnish proof” as it asserts — poop or get off the pot on classification. It can’t do that because it knows POTUS does in fact enjoy broad plenary power on this issue; in legal fact, POTUS does not have to “furnish proof” to declassify something.

    3. The “national defense information” condition: this is the real meat of any espionage-related crime. Although the defense would be “these were declassified for purpose of distributing to public” so at that time while still as POTUS the executive decision was made that the merit as national defense information evaporated. This is a political not particularly legal argument, and will test executive power before courts if it makes it that far. Trump will largely be arguing to the public square (“Deep State doesn’t want you to see these…”), while DoJ to some sense of statutory order of US laws overrides any such executive powers.

    This gets us to…

    4. His POTUS doodles (on government records): they’re certainly not government records. They can only be either Presidential Records or Private Records exempt from PR Act. Each party is on opposite side on this and there is still a lot untested on where any line is at between them, how bright that line is, and probably the context of each individual doodle probably matters.

    If NARA already has a copy of the underlying document, its Government Record Act requirements are fulfilled. If POTUS doodles are Presidential Records, then Trump’s last defense will be on the aggressiveness of the raid: “all this is over some notes I made telling me where Ukraine is? Ridiculous!” If these doodles are Privileged, then all of this has been overblown.

    The more this stays around, the more pressure DoJ will be under to indict. The more that this whole things evolves from Trump stole US nuclear secrets that he could sell to Russia, to Trump’s notes on his copies really, probably should have been given to NARA instead of kept until his library is done will probably favor Trump in long term.

    • FLwolverine says:

      The idea that there are multiple copies of Top Secret documents floating around boggles the mind. But even if there were, wouldn’t each copy be subject to the same security regulations and procedures as the original would be? So if it would be illegal for Trump to have the original of Top Secret Doc #12345 stashed away in MaL, wouldn’t it be just as illegal for him to have a copy of that document stashed away?

      After all, what’s really Top Secret is the information. The piece of paper is classified because the Top Secret information is written on it. Same would be true of originals, copies, flash drives, floppy disks, microfilm, etc

      Or maybe I’m missing something here?

      • timbo says:

        That depends on what the original compartmented information is and where it came from. If the original is from a foreign or private source than the original will likely be subject to higher security than copies might be. In almost all cases I can think of, if the a record deteriorates as it ages due to the limitations of the media on which the information is stored then preserving an original might become critical and thus lead to a tighter security regimen.

      • Tom R. says:

        It is common for multiple copies of Top Secret documents to exist. Even the President’s Daily Brief, which is very highly classified, exists in multiple copies. None of them “float around” but they do exist.

        The copies have serial numbers. Each copy is tracked separately.

        • FLwolverine says:

          That’s the kind of system I would have expected, based on everything I’ve read here on how classified documents are handled. “Floating around” comes from this statement by Silly but True: “ the government would likely be hard pressed to even account for how many copies of any given document it might have distributed”.

      • Silly but True says:

        This had long been a serious problem plaguing the whole of US government. There had been a new term “overclassification” that entered the lexicon: some federal employee classifies something or something higher level that shouldn’t be classified or classified at lower level. The particular issues are that its massive pain to manage, and grows more massive with each level. And once it’s declassified one place, everyone needs to get hat message.

        The issue at heart of your question is any declassification. That Top Secret Doc #12345 may just have become Federal Doc #12345 before leaving WH to Mara-lago because POTUS declassified it.

        _IF_ true, then there would be nothing illegal per say about how it’s stashed; the only issue just becomes any fault of Federal Records Act or Presidential Records Act, which goes away if Trump’s record is a copy of a record that is in government’s possession.

        Lately, this week in particular, a lot’s been made of Trump having copies. Both DoJ & Jan. 6 Cmte. both brought this up within days of each other which makes me think that what (some of what) Trump had were copies. If that’s the case — that what he had were declassified copies of things NARA / federal agency always already had then there wouldn’t be any issue here at all. That’s why Kash Patel & Meadows have been out making those very arguments; that’s his one out.

  8. jeco says:

    The thought of self-incriminating trumpian comments on these docs is delicious. Maybe he redacted “Top Secret” and other document titles, declassifying with his sharpie magic declassifying wand post 1/20/21.

    How high does this blow up if GOPers like Mccarthy & Lindsley have been getting tours of trumps archives. Also trump family members.

    • Purple Martin says:

      Given his extensive experience in hurricane tracking, I assume there’s a sharpie-drawn bubble extending from the Northwest corner of each “Top Secret” stamp, surrounding the sharpie-written word, “Not”

    • TooLoose LeTruck says:

      I don’t know if I’m giving them too much credit, but I would imagine that both McCarthy and Graham would be astute enough to run like hell from any direct involvement in Trump’s current fiasco…

      What’s that old country saying… like a freight train on a dirt road?

      They may defend him however they can, but get directly involved?

      The family members, on the other hand… that wouldn’t surprise me in the least…

      And what else could Trump still be holding? And where?

      Those questions have to be asked, no?

    • timbo says:

      That’s a really good point. McCathy seemed to have a change of voice after he’d visited Mar-a-Lago for the first time after Twitler became ex-POTUS…

      • TooLoose LeTruck says:

        Hell, Graham was a JAG in the Air Force…

        You think he for sure would know better, and be running like hell from this mess…

        • Rayne says:

          It’s this point which makes me think whatever kompromat Trump has on Graham is wretched. He’s willing to burn down any cred he’s had as a JAG, as an attorney, as a Senate Judiciary Committee member to further the Trumpy fascist agenda.

          • TooLoose LeTruck says:

            Yes, indeed!

            I feel like I’m watching a really, really sloooow-motion boxing match between two massive heavyweights…

            The spectacle is nothing short of astonishing at this point…

            • Rayne says:

              Yeah, I’d read that, still pondering how hoarding fits with his BPD and overall pathology. It makes sense that he’d have one more atypical neurological feature given his likely blend of malignant narcissism, opposition defiance disorder, ADD, and some form of dyslexia.

              But he’s also been gifted with the ability to sublimate every disorder into something profitable. Is his natural tendency to packrat material how he built a body of leverage over a lifetime? Is that why Mary Trump ended up with so many documents — his hoarding which got out of his control?

              The findings are based on interviews with Fred Trump’s former employees and advisers and more than 100,000 pages of documents describing the inner workings and immense profitability of his empire. They include documents culled from public sources — mortgages and deeds, probate records, financial disclosure reports, regulatory records and civil court files.

              The investigation also draws on tens of thousands of pages of confidential records — bank statements, financial audits, accounting ledgers, cash disbursement reports, invoices and canceled checks. Most notably, the documents include more than 200 tax returns from Fred Trump, his companies and various Trump partnerships and trusts. While the records do not include the president’s personal tax returns and reveal little about his recent business dealings at home and abroad, dozens of corporate, partnership and trust tax returns offer the first public accounting of the income he received for decades from various family enterprises.


              Why would those documents still exist in 2018 instead of being scanned into digital records with hard copies destroyed? Seems off given his penchant for lawyers who don’t take notes.

  9. Amicus says:

    These are good observations, but I think DOJ makes the excellent point that the time for Trump to have made such claims and supported them has passed. “But Plaintiff does not actually assert-much less provide any evidence-that any of the seized records bearing classified markings have been declassified.” Reply at 2. And Trump’s failure to assert claims or provide evidence is a running theme throughout the Reply. In the ordinary course, that would carry the day: you cannot oppose the USG’s showing with nothing. Of course, DOJ does not find itself dealing with the ordinary, but Cannon knows this is going to the 11th Circuit. Hopefully, the court of appeals is not going to be sanguine with Judge Cannon making Trump’s arguments for him and assuming facts not in evidence. I suppose if he loses before the 11th Circuit that Trump will run to Justice Thomas but what else transpires and is revealed between now and then remains to be seen, for example who was seen on the surveillance cameras or what do the notes say, among other things.

    • Troutwaxer says:

      The terrible thing here is that the judge was once a JAG. She probably knows the law about classified documents extremely well. The idea that her opinion should be taken seriously here is pure daylight madness – she knows full well that she’s ruling in direct opposition to black letter law. (I wouldn’t be surprised to see records of one of her military court cases showing up at her impeachment.)

          • dude says:

            Saul Enderby to George Smiley describing Karla’s clumsy attempts to hide his mentally ill daughter…that’s where I first heard the expression.

            • Troutwaxer says:

              Copyright 1979, probably written in ’78… then Smiley lists all the other things which are madness, and finally says, “It’s simply a question of whether you want the product.”

              The terrible thing with Trump is that everything is amateur hour. The dude’s got his own cell phone sitting on the Resolute Desk, right next to the classified papers, and of course it has a camera… but he’s got to keep the actual files, and isn’t even smart enough to make new copies of the front pages by putting pieces of paper over the bits that say “Classified.”

              If Putin is Karla, I’d liken Trump to Kirov.

  10. nord dakota says:

    There are three possible legal categories of any document, right?
    PRA vs personal (and personal is just that, not anything related to acts of his Presidency)
    classified vs non-classified or declassified) (but even if declassified they have to be PRA?–he declassified them as President? And in any event if they were previously classified they would likely contain NDI?)
    NDI vs other

    Doesn’t any defense based on one of these categories bang up against another category?

    On another note: FBI just took MyPillow guy’s cell phone when he stopped at a Minnesota Hardees.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You may have accidentally used a real name after more than 160 comments under a pseudonym. I have changed your name here to the previous pseud; please let me know by reply if you had intended to be “out” under your real name. Thanks. /~Rayne]

    • Amicus says:

      There are federal agency records (which is almost certainly the category that the marked classified documents at issue fall within), PRA or personal. Think about the documents bearing classification designations as having been produced by CIA, NSA, or DOD or the like.

    • civil says:

      In this case, another category is: documents that fall under the Federal Records Act, as would be the case fo government records that originate with an agency rather than falling under the PRA or being personal docs. As EW has pointed out in previous columns, Trump’s team acknowledged this category but then ignored it in their discussion.

    • nedu says:

      For completeness here, besides agency records, presidential records, and personal records, note that 44 USC § 2201(2)(B) also excepts two additional categories of paper.

      Trivially, stationary isn’t a presidential record.

      Less trivially, clearly-identified convenience copies also are not presidential records. But do contrast that against the broader definition in 5 USC § 552(f) [former 552(e), see Pub. L. 99–570].

    • timbo says:

      Note that there several more categories that these documents might fall into than that. For instance, some of these documents might not have been generated nor had their origin in the USG. Also, some of them might have been “retired” documents, that is paper documents that NARA no longer had any interest in retaining (although the USG might have an interest in destroying). Also, it’s possible that some of them are draft copies of classified USG documents, not the final copies. There’s all sorts of varieties of documents that might be in this trove of seized documents. The varieties that are highly sensitive will not be seeing the light of day anytime soon…unless introduced in court during a trial in which the information is known to already have been compromised publicly…something that is not outside the realm of possibility given the foolish arc of Twitler’s purloinments.

  11. bidrec says:

    I had a top secret clearance and later worked on Wall St in “cages” where paper stock certificates were kept and then post “dematerialization” with electronic custody. I scoured my brain for anything remotely this stupid. This is the closest I could find, [from 1985]

    “A homeless woman entered the offices of Deak-Perera, the worldwide currency exchange and precious-metals dealer, today and fatally shot the firm’s 80-year-old founder-chairman and his receptionist, police said.

    Officers said Lois Lang, 44, walked into Deak’s 21st-floor office on Broadway in lower Manhattan about 9:30 a.m., asserting she was a part owner of the company and that “an injustice had been done to her.” She was ushered out.

    Two hours later, the woman, dressed in dungarees and a T-shirt and shouldering a knapsack with an aluminum baseball bat inside, returned with a .38-cal. revolver…”

    The article goes on to say that Deak served in the OSS.

  12. L. Eslinger says:

    From what I’ve so far been able to find in government regulations and orders, personal records and presidential records must be identified as such at the time of their creation and not commingled. There’s nothing about hand waves, eyebrow twitches, or subvocalizations being recognized as methods for establishing a classification, and, anyway, there certainly isn’t any mechanism for retroactively doing so. And windows of opportunity for control, such as established in E.O. 13489, automatically close and lock, regardless of whether or not one knew they were open.

    Basically, the guidance appears to be that if you work in government, anything that you don’t up-front, clearly, and rightfully declare is your personal property ain’t yours.

    Are these attacks on institutional methods just more of Trump’s “do anything to weasel out of trouble,” or is this also part of, or useful to, broader efforts to delegitimize government?

    • Peterr says:

      I think it is a lot simpler and a lot more personal than some grand plan to deligitimize government.

      Trump has never in his whole life worked in an organization where he was accountable to a board or a supervisor, and cannot conceive of an organization where the leader cannot do whatever the hell he wants. “I’m in charge, I own this place, and I can do what I want, when I want, however I want to do it.” It’s how he treated the Pentagon (“my generals”), it’s how he treated the DOJ, and it’s how he seems to have treated every gift to the US he was handed by a foreign leader and every government document that crossed his desk. Mine mine mine mine mine!

      Six years later, Trump still hasn’t figured out he wasn’t elected king in 2016.

      • WilliamOckham says:

        It’s often said (most famously by John Dalberg-Acton, aka Lord Acton) that power corrupts and absolute power corrupts absolutely. I believe this is incorrect. In reality, there is a certain type of corrupt individual who believes his own power is absolute. He believes that “when you’re a star, they let you do it. You can do anything”. He believes that he can ignore laws with no criminal penalties. He believes that a law that says he has access to certain documents means he have an absolute right of access. He believes that he’s entitled to all the powers of the presidency even if he is no longer in office. Fundamentally, he believes that there is no restraint on his own desires.

        And unless we show him that he’s wrong, he’ll be right.

        • LeeNLP says:

          And there are thousands of people in the US dedicating their lives, fortunes and sacred honor to prove him right.

        • John Paul Jones says:

          It’s been a long time since I saw the quotation, in situ, so to speak, but as I recall, Acton’s phrase has an additional clause. “Power corrupts, and absolute power corrupts absolutely; great men are nearly always bad men.” By “great” he means “of high position.” If we take him to mean unchecked or unaccountable power, I think there might be better grounds to agree with him, though I believe you’re right to be skeptical. It’s one of those generalizations that strike one so immediately as having the ring of truth, that one really ought to be careful of accepting it.

      • L. Eslinger says:

        I agree that Trump actually believes that he has the full rights and privileges of a king – or at least a story book king who doesn’t have to worry about crop failures, plague, wars, etc.

        What I failed to clearly express is that the noise and chaos that Trump generates are and have been useful for people and organizations who think that they will benefit from an impotent federal government – the shrink it ’til it’s small enough to drown in a bathtub people. Trump didn’t personally pack the courts with Federalist Society acolytes, but his various mental pathologies made it possible.

        • Tom-1812 says:

          I don’t see Trump as having that level of grandiosity in his thinking or self-perception. He is now what he has always been–a liar and a conman. He’s a conman who managed to con his way into the White House, but he’s still the same conman he was back in New York City.

          I still have doubts about whether Trump ever really wanted to become President because I think he’s uneasy about being on public display charged with so much responsibility that he knows he can’t handle, as shown by his bungling of the Covid crisis. But once he was in the White House, Trump wanted to stay there for the same reason Willie Sutton said he robbed banks; “Because that’s where the money is.”

          • Rayne says:

            I don’t see Trump as having that level of grandiosity in his thinking or self-perception. …

            Okay, sure. ~side eyeing you~

            • Tom-1812 says:

              The above photo is evidence of bad taste, not grandiosity of thinking. I’m sure Trump enjoys the lavish display, but I see it as all part of the con. “Look what I got!” is the message Trump is sending. “Just trust me and you can live like this, too.”

              Trump is like the old joke about the guy who puts an ad in the paper saying, “Hey folks, I’m a millionaire! Send me ten dollars and I’ll tell you how I make money!” So people send in their money and receive a letter back stating, “Thanks for your ten dollars. Now you know how I make money.”

                • Tom-1812 says:

                  I agree that Trump feels little to no sense of gratitude for anything or anyone–except maybe Ivanka. Whether or not that equates with grandiosity I’ll save to think about when I’m falling asleep tonight.

                • L. Eslinger says:

                  Wow! The woman on the couch is extraordinarily strong! She’s lifting a tray with 75 kilos (~164 lbs.) like it’s a bag of Tostitos [original restaurant style] Tortilla Chips ™.

                  Mmmm…Tostitos! (I have not yet received any compensation for this comment)

                  A significant difference between Trump and Mr. Most Opulent Slav is that Trump would want the most biggestest giraffe (and Don Jr. would want to shoot it).

  13. Randy Baker says:

    Given Trump’s famous disinterest in his security briefings, and his well documented passion for grifting, it would seem that his notations on classified material more likely reflect his having monetized them rather than executing his presidential duties with them– except insofar as doing the latter might itself have advanced the former.

    • Unabogie says:

      I get a kick every time one of his apologists suggests he took these documents home with him at night to some sort of “work” or “study” with them. No one seriously believes he did that. Whatever he took home had some sort of value to him as blackmail or leverage or something he could sell.

      • StringOnAStick says:

        After reading Ms. Wheeler’s post today about his writing on classified documents, my first thought was a sardonic “huh, apparently he CAN read afterall”. I know he’s not that dumb; I was indulging my sense of humor.

        My first thought when this news about his retention of classified documents broke was they are all going to be related to his pursuit of the white whale of proving no Russian collusion in his 2016 election victory; as a malignant narcissist, he demands that to be true. Then I thought about how insiders were taken aback at just how intensely interested Jared was in all the daily presidential briefings and classified information available. I now think he delegated all Hoovering up of what could me monetized/what Putin wanted, etc. to Jared. What’ has been recovered so far is likely a small subset of what has been compromised. It wasn’t for ideology though, strictly for the money.

  14. rattlemullet says:

    25 Top Secret Documents. I assume each agency has its own set of protocol for delivering, transmitting and returning Top Secret Document. It seems as if the process for tracking the return of these documents fell apart in the trump White House prior to his departure. Was this failure do to the partisan hacks he had appointed to the various agencies during his tenure. Seems like the process of tracking Top Secret Documents would be a bullet proof operation.

    • Rugger9 says:

      One would expect that any transfer would have a custody record with signatures kept on both sides of the exchange. Those who signed for acceptance are on the hook now, bigly.

      • jeco says:

        I’m sure after a day or two in office trump refused to sign for anything and let it be known that anyone who asked him to sign anything would be publicly fired by tweet before sunset.

      • Troutwaxer says:

        I’d imagine they came back to CIA HQ (or wherever) and filed a report saying POTUS refused to give the document back. The delivery person would probably be off the hook, but somewhere up the chain people will be made examples of.

      • bidrec says:

        Google “Armed Forces Courier Service”.

        Note that back in the day, e.g., during Vietnam much of this would have been over Teletype via crypto, then burned.

  15. Frank Probst says:

    Random thought: All of the handwritten notes that the government recovered from the Mar-a-Lago search will be information that the government doesn’t already know. With the classified documents, it’s highly unlikely that Trump had the only copy, no matter how secret they were, and the government has a list of what’s missing. So they already know what’s missing and what’s in those documents. From a counterintelligence standpoint, seeing the notes is going to be a big part of the damage assessment.

  16. Ddub says:

    Logical to assume that if TFG were in the habit of sharpieing up classified docs while Prez that that would be common knowledge, perhaps source of jokes.
    If he continued to write on docs after January 2021 then it figures that almost anything he wrote would be incriminating – and the source of future jokes I’m sure.

    • jeco says:

      trump never had a Rosemary Woods, a secy or Man Friday who would have seen any of this?

      Picture the MAL private carting service taking everything to a warehouse and sorting the king crab legs from trumps hand torn documents and taping the docs together. And the plumbers could separate the flushed docs from the Big Macs.

  17. paul lukasiak says:

    This.,… “Trump’s notes from calls with foreign leaders, for example, might include classified information or be otherwise particularly sensitive.” … highlights something I’ve been wondering about…

    Remember how there were hundreds of Clinton emails on her server that were not marked confidential in any way, but were later found to contain “classified” information and rendered classified after the fact.

    How many of the 10K+ ‘not-classified’ documents stolen by Trump contain potentially classified information? Is anyone actually doing to those documents what was done to the Clinton emails?

  18. KPH from Texas says:

    Quick suggestion for the classification analysis spreadsheet – a TS SCI document count column could be useful. I realize the count is low, but having a constant reminder that “crown jewel” level materials were in the wild is important.

    That said – the analysis (legal and otherwise) in the main posts and the thoughtful music lyric (and otherwise) commentary are first rate. Thank you.

  19. earlofhuntingdon says:

    If only the notes on a classified doc were instructions to his fail sons to sell all his stock in some company, whose business would be trashed by a decision he was about to make.

  20. Fran of the North says:

    1) Question: The use of the phrase “unique documents with classification…” might have another less conspicuous meaning. In the core common use, the translation would be ‘distinct’. But what if there were actually 185 documents ‘marked’, but there were 184 distinct and different documents, and one copy?

    The language as written would be accurate to describe the second meaning, but obscure a hair-on-fire fact, that there was evidence of duplication.

    2) Might the reason for Cannon’s attempt to stop the investigation of classified documents be directly tied to the “FPOTUS handwritten notes”? It is possible that the notes describe what a potential disposition of the information could be, and therefore be direct evidence of a crime contemplated or committed.

    • earlofhuntingdon says:

      The civil proceeding in front of Cannon is not an appropriate forum to decide questions in a criminal investigation. But Cannon, an ex-criminal appellate lawyer for SDFL, already knows that. She should spend the rest of her days in her lonely, single judge office in the back of beyond in the SDFL.

    • timbo says:

      Unique document with classification may refer to documents that were not originally generated by USG. Foreign generated and/or private documents (including photos, plans, etc) that were marked classified may be in the cache seized.

  21. WilliamOckham says:

    I would call your attention to Executive Order 13526 Section 1.7(c):

    Information may not be reclassified after declassification and release to the public under proper authority unless: …

    Obama’s executive order placed important limitations on the rather pernicious practice of classifying/reclassifying information that was already in the public domain. However, none of those limitations apply to declassified information that was not released to the public under proper authority. None of the documents in question (even if they’re part of the Crossfire Hurricane dossier that Trump declassified on his way out the door) were ever released to the public. All it would take to end this nonsense about classification would be an affidavit from a competent authority that to the extent any of the documents were once declassified, they are now classified at the level of their markings. And my recommendation for the competent authority would be Vice President Kamala Harris. Just because

  22. Paulka says:

    Not being someone who deals with classified information, can someone provide a basic guide to the classification issue. I would imagine that documents are not necessarily classified, it is the information IN the document that is classified. i.e. a theoretical blank piece of paper can’t be classified or can it?

    So, if Trump “declassified” something, did he declassify a document? If so is all the INFORMATION in that document unclassified? Are their separate levels to the declassification, i.e. the document and the information? Because say there are 2 similar documents with similar information-one gets declassified, doesn’t that effectively declassify the OTHER document?

    It really is quite confusing to a lay person

  23. Lloyd Bonafide says:

    “[He] kinda had this problem, something like 8% of [Presidents] do it, but whatever.”

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. Are you sticking with this username? Because you’ve published comments here as “DM” and “DL Louis.” Thanks. /~Rayne]

  24. morganism says:

    Makes me wonder if anyone has gone back and re-reviewed the reports that Kash put on the super duper secret net.
    Pardon reviews? docs related to docs taken? Saudi and MBZ stuff? Durham stuff?
    Intel committees would be curious to see basic groupings at least.

  25. Tom R. says:

    It might help some commenters to reflect upon the difference between classified documents and sensitive information.

    The goal is to protect the information. Controlling the documents is a means to that end. Controlling the documents is necessary but nowhere near sufficient.

    In particular, suppose I read a classified document that says Putin’s housemaid is a British asset. I then return the document to the vault where it belongs. So far so good. Now suppose I go home. I still have the information between my ears. I could spill that information in a hundred ways, accidentally, maliciously, or under duress. Putting extra locks on the aforementioned vault doesn’t help. Indeed, destroying the original document doesn’t help.

    The document is concrete, while the information is abstract. The latter is a lot harder to control.

    Example: I should not write sensitive information on a napkin at home, but if I do, that creates a document that is outside the tracking system. It’s not marked classified.

    Example: Conversely, I shouldn’t mark Hillary’s risotto recipe as Top Secret, but if I do, it does not magically become sensitive national defense information.

    These examples go to show that classification markings and tracking procedures are imperfect means to an end. They might tell you whether the document contains sensitive information, or they might not. They might alert you when sensitive information has been spilled, or they might not.

    If documents are improperly stored, getting them back is nowhere near the end of the story. Somebody could have copied the information, and you might have no way of knowing.

    The espionage statute is written in terms of national defense information, as it should be (not in terms of classified documents).

    Do not let the bad guys set the agenda. Just because they say it is merely a document storage issue doesn’t mean it is. It’s partly about theft, concealment, and destruction of documents, but it’s also espionage and obstruction. And probably lying to the FBI also. Furthermore, it’s about cleaning up the spill, which is a high-priority national security objective, more-or-less distinct from the law-enforcement objectives.

    Do not let the bad guys frame the discussion. As usual, they are mostly waging a PR campaign, even when that harms their legal case. On social media they say he declassified the documents, which works fine as a PR talking point, but it’s otherwise irrelevant. The stolen documents are stolen documents, whether declassified or not. The sensitive information is sensitive information, whether declassified or not.

    Refusing to help clean up the spill is a strong indication that you’re a bad guy.

    • nedu says:

      You know, call me a “bad guy” if you will… yet I myself remain personally committed to James Madison’s ideal, “A people who mean to be their own governors must arm themselves with the power which knowledge gives.” –That America’s greatest national security asset, strength, and weapon are educated and informed citizens.

      I do agree with you that the “bad guys” ought not be permitted to set the agenda, frame the discussion.

      I happened to spend some time late last night, into the early hours, reading the quarter-century old Moynihan Commission report. In this context, a passage there strikes me again–

      [M]any officials simply do not see public access as part of their agency’s mission. As one agency employee noted in the context of explaining the attitude some officials have toward the FOIA, members of the public who request declassification often are considered “the enemy,” those officials view the effort required to process requests as “a disruption” in their duties, and they feel that providing public access “is not what we get paid for.”[1]

      In the light of late morning here in the West, reading here in this forum your goal, “To protect the information,” it makes me wonder why? What’s the deep purpose of your declared mission?

      I’ll tell you, from here in the state where I live now, “The people insist on remaining informed so that they may maintain control over the instruments that they have created.”[2]

      So, call me the “bad guy”, call me “the enemy,” if you will, but I personally lack intense interest in “cleaning up the spill”.

      Contrariwise, I am not merely intensely interested –I am personally offended– when a former chief magistrate of the republic apparently steals my public records.

      Perhaps you cannot comprehend the depth of this offense.

      [2] quoted from RCW 42.56.030, historically from preamble to state initiative.

      • Tom $. says:

        Did you read the document you cited? Did you make it as far as the second paragraph? That’s where it says:

        core secrets do exist that need the highest level of protection. There is widespread agreement, even by those who most vigorously support broad declassification, that there are many types of government information that will always require zealous protection-

        What entitles you to FOIA the existence (much less the identity) of a spy in Putin’s household?

      • Tom R. says:

        Did you read the document you cited? Did you make it as far as the second paragraph? That’s where it says:

        core secrets do exist that need the highest level of protection. There is widespread agreement, even by those who most vigorously support broad declassification, that there are many types of government information that will always require zealous protection-

        What entitles you to FOIA the existence (much less the identity) of a spy in Putin’s household?

        • nedu says:

          Over the long run of years– a decade from now, a quarter century from now, perhaps even half a century– the need for secrecy is fleeting.

          America shall endure.

          And it’s my document.

  26. nedu says:

    In the long run, whether it’s a decade from now, a quarter century from now, perhaps even half a century, America shall endure.

    And it’s my document.

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