In Motion for a Stay, DOJ Raises Prospect that Trump Leaked Classified Documents

In the government’s motion for a stay submitted to the 11th Circuit last night, it suggested the investigation into Trump’s stolen documents may have expanded to focus on whether the former President shared the content of highly classified documents with others.

It describes that Aileen Cannon’s order only permitted the government to review the classified documents for hypothetical risk of future disclosure. It notes that that would prohibit the government from investigating whether these documents have already been disclosed. It then raises the empty folders as a problem that must be solved, in part by identifying the patterns of Trump’s theft to identify what else he may have stolen.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Significantly, the government doesn’t even use language to suggest that these documents were compromised, without Trump’s involvement — that some fake Rothschild or a hotel valet had snuck into the closet and stolen documents. It suggests these documents may have been disclosed, intentionally and knowingly.

This is not the only hint in the filing that the investigation may have expanded beyond mere unauthorized retention of classified records.

The motion also describes that Trump’s lawyers might be witnesses, plural, suggesting that Jim Trusty could be hidden in the search affidavit as the FPOTUS Counsel 2 implied by the affidavit’s description of Evan Corcoran as FPOTUS Counsel 1 (Christina Bobb is referred to merely as Individual 2).

The government came very close to saying that Judge Cannon has prohibited the government from preventing leaks in process.

147 replies
  1. PeterS says:

    Yes indeed, I read the DOJ filing and the phrases “patterns in the types of records that were retained” and “compulsory process to locate any additional records” jumped out at me. Especially as the filing notes that “the government’s criminal investigators have already reviewed the records bearing classification markings”.

    • Bleeding Gums Murphy says:

      Any idea if the order’s reference to “compulsory process to locate any additional records” would prevent DOJ from, for example, seeking and executing search warrants in Bedminster and Manhattan?

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; it’s been a while since your last comment, you may have forgotten you commented as “El Marko.” Please pick a name and stick with it. Thanks. /~Rayne]

  2. Thomas Paine says:

    I am not sure why anyone is surprised by this suggestion from the DoJ. Of course Trump leaked them – why else would have taken them. Why is the FACT that the US Electorate and the GOP likely selected the 21st Century version of Rosenberg or Philby as POTUS and entrusted him with all the Crown Jewels so hard to accept has fundamentally STUPID. It still boggles my mind. The SOB has been a traitor from the start and likely collected these documents for money or revenge from the first day he was briefed, keeping the good stuff on Banker’s boxes in the WH residence for a rainy day. This should be NO surprise to anyone who paid any attention to Pete Strok and others who warned everyone they could about Trump in 2015. NOW imagine if the FBI discloses at trial how many US human sources were pushed off roofs because Trump doxxed them to Putin, and what that means to the American experiment.

    We need to rethink, from scratch, how we can legally vet future POTUS candidates via SF86 and SSBI’s before we ever let them appear on a Federal ballot – any Federal ballot, or we will have no National Security to defend.

      • Thomas Paine says:

        Yes. A modicum of High School Civics knowledge would also be helpful. We can no longer be naive about the enemy within. Democracies are rare for a reason, because they are fragile. The Manchurian candidate problem is an Achilles heal for our notion of self-governance.

        • Rayne says:

          The voters *can* ask for better qualifications and clarity up front on positions. Ballotpedia has Candidate Connection surveys as just one example; we could be funding similar efforts which ask candidates questions directly related to basic civics.

            • bmaz says:

              Yeah? Instead of whining on the internet, why not do what Civil (above or below depending on your viewing angle) is doing and go register voters?

            • Rayne says:

              And you think this statement is constructive. Do you think trashing this thread with your defeatism is helpful at all?

              That’s a rhetorical question. Don’t waste our time with more idle flapping.

        • MattB says:

          I agree it’s a terrible idea. Imagine if Biden were dependent on the Trump administration in 2020 to qualify for running for office. And as we saw with the tax returns in 2016, any normative requirements are out the window these days too as long as the GOP is willing to ignore norms.

  3. timbo says:

    It might be interesting to determine if Judge Cannon had visited Mar-a-Lago after Jan 20, 2021 at this point…

    • jeco says:

      If the security video shows GOP big-wigs taking the MAL document crypt tour it would help explain why Cannon’s rulings have been so radical.

      There needs to be disclosure if she and the 11 Circuit judges have visited MAL

    • bmaz says:

      Why? Who cares if Cannon went to dinner there? If I were in Palm Beach, I would go to dinner at Mar-a-Lago. Does that imply something nefarious about me too?

      The sheer amount of batshit conspiracy theories being bandied about here is becoming overwhelming.

      • Scott Rose says:

        Canon 5 of the Code of Conduct for U.S. Judges specifies that a judge should not attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

      • John Colvin says:

        Several years ago, while visiting Chicago, I had quite a nice meal at Restaurant Sixteen (in the Trump hotel). I have also eaten a couple of times at Jean-Georges in the Trump International on Central Park West in NYC. Somehow, those experiences had no effect on my politics.

        • J R in WV says:

          I would take ipecac before I would eat in a Trump related restaurant, especially while many actually great restaurants are in the same neighborhood.

      • Unabogie says:

        I’m not following this logic at all. Are you saying that if she has a personal and ongoing friendship with the person at the heart of this case there are no professional rules about recusal? And that it’s a conspiracy theory to call it out?

        • bmaz says:

          I am saying that this is complete conspiracy theory garbage. Has Cannon ever been to MaL? Provide evidence before spewing conspiracy BS. Even if she did go, was it more than for a common dinner? Provide evidence. And do not flood this space with garbage.

          • Unabogie says:

            I haven’t even brought this up so you must have me confused with someone else. I asked you a question that you didn’t answer.

            Is there not an ethical dilemma for a judge to have a personal relationship with a plaintiff in her court?

            If so, then it’s not a conspiracy theory to ask the question, is it?

            • bmaz says:

              Oh no, I responded directly to your comment and do not have you confused in the least. Do you have ANY facts to support your “just asking a question” bullshit? The answer is you clearly do not. Garbage like this is killing this site lately. And that will not maintain.

              • Unabogie says:

                So now I’ve asked you the same question twice but you are avoiding answering me. I’m not “just asking questions” while assuming an answer. I am questioning your characterization of the report as a conspiracy theory. I’m saying that if a judge that Trump personally vetted and appointed to office has an ongoing personal relationship with him – something that would not be unusual given Trump’s usual MO – and has been at Trump’s house where the alleged criminal activity took place and during the period at issue, how is that not a reasonable question to ask given her unusual rulings?

                This assumes nothing here and I am making no connections and there’s no yarn with pushpins. I’m asking a very specific question. If she has an ongoing relationship with her plaintiff, how is it not a valid reason to seek a recusal?

                • bmaz says:

                  Oh, no, I have answered that. And, yes, you are “just asking questions” and doing so with no rational basis.

                  • timbo says:

                    You have to ask questions to find answers. If you don’t ask questions then there will be no investigation. Frankly, I think it is a pertinent question as to whether or not Judge Cannon has visited Mar-a-Lago from the point of Jan 20, 2021 until now. The fact is that neither you or I have any personal knowledge about that one way or the other, correct? But that doesn’t mean that it isn’t a good question for DOJ anti-corruption investigators to have a look at, particularly if there’s any clear evidence that she (or anyone she personally or professionally knows) was in proximity to these alleged NDI documents prior to taking on this case.

                    This is not a “just asking questions” matter and more of a good question if one is seeking to understand how her wonky rulings and attempts to read into her rulings things that were not raised by Twitler’s lawyers explicitly in their suit before her court. You currently maintain she’s just doing it “because”? Or what and why do you maintain she is doing what she is doing in her court rulings on this matter?

                  • Unabogie says:

                    I’m going to let you have the last word but you did not answer my question in any way whatsoever and I’m having a hard time understanding your obtuseness here.

                    1. A commenter above suggested we find out if Cannon had been to MAL
                    2. You scoffed at the relevance of such a question, conflating just going to dinner there with other kinds of visits
                    3. I expressed confusion about why you scoffed at the apparent conflict of interest where a judge would visit the crime scene prior to presiding over a case in which she’s personally involved with the target of an investigation
                    4. You accused me of being a conspiracy theorist
                    5. I pointed out that you didn’t answer my question
                    6. You again accused me of being a conspiracy theorist
                    7. I sighed, wrote this note, and closed this tab in my browser.

                    • Lady4Real says:

                      The only question Cannon would have to answer, which seems to be answered by her active participation in the case: Does she have a conflict of interest due to a personal relationship to tfp or to the case itself.

                      In other words, she would have come forth from day one and recused herself if that were the case. If she had an actual conflict due to personal relationship, the next judge in line would have taken up this case. The court deserves the benefit of a doubt on this score.

                      Beyond the COI test, Cannon, in terms of treating tfp as somehow not a literal citizen and holding him out as more important and worthy of special consideration, has called her integrity into serious question.

                    • bmaz says:

                      Absolute crap. Have you ever been in any trial court? Of any kind? You are spewing complete garbage to the people here. Next time you do that, you are done.

      • Duke says:

        There exists a schism comparable to Grand Canyon when it comes to Cannon’s ruling and the facts and circumstances of this situation.

        The Judge is acting on Tfg’s conspiracy theory and creating her own to justify her ruling.

          • vvv says:

            I’ve never even had Chik-fil-a.

            But yeah, I’d like to get drunk at MAL, and laugh and laugh – mebbe loudly keep asking my date about her emails …

  4. DavidM says:

    Has the FBI not already polled every agency asking if they sent any classified documents to the WH between 1/20/2016 and 1/20/2021 that were not returned? How is it that we don’t already have a list of all the missing documents? (We may, but DOJ/FBI doesn’t want to say.) A harm that I have not seen the DOJ list is that there are people in the agencies that need the contents of some of these documents now to protect our national security. I am picturing Bob in his CIA cube going, “Has anybody seen our list of spies in Iran?”

    • JM says:

      They have copies of all the missing documents. It’s not like the info is lost forever.

      [Welcome to emptywheel. Please use a more differentiated and unique username when you comment next, with a minimum of 8 letters or numbers. Thanks. /~Rayne]

          • Rayne says:

            No, you think about the materials in question. There’s no reason whatsoever to believe there were copies made by the originating government entity since the public doesn’t even know what those materials are — and shouldn’t.

            If some squeaky new commenter with zero cred — like “JM” above — is going to drop in here and claim there are copies of classified material made before Trump got his tiny mitts on the originals, they had better fucking well provide evidence.

            • cmarlowe says:

              Define “original” and “copy.” What Trump had were hard copies. They were not created “by hand” on a piece of paper.

              • Rayne says:

                Don’t be a smartass. Seriously. I don’t have the patience for it. You have 111 comments under your belt, you know by now we don’t put up with this crap.

                ADDER: And don’t think I didn’t see you ADD to your remark AFTER I responded.

                You are fucking with the wrong moderator.

                • cmarlowe says:

                  I am not being a smart ass. I have working knowledge of this and have to be a bit careful what I say. Where is the actual original of this Emtywheel thread? I can print it out but the original is bits on a sever somewhere, no?

                  Arguments were made above (and in earlier threads) that the USG may have truly “lost” class doc content information. I doubt it and am trying to explain why.

                  I will conjecture that the USG has every doc that is classified in some form. The pertinant question is which ones did Trump take copies of, and who else saw them.

                  And – I did not add to any remark after you saw it. I don;t even know how I could do that.

                  • Rayne says:

                    If you have “working knowledge” you also know not all intelligence is made with electronic devices. Further, you know that originating entities may avoid using electronic devices for the very reason you’re insinuating, and that some of that material never leaves a SCIF for that reason UNLESS somebody like POTUS or his minions took it out.

                    And yes, you’re still being a smartass.

                    • cmarlowe says:

                      I can’t imagine how they would create a print out without creating the original document with an electronic device. The printer itself is an electronic device and must get it’s data from another electronic device (PC or equivalent).

                      I have never heard of the avoidance of using electronic devices as you describe it, which of course would be in the SCIF. For a number of reasons, this is actually more secure and easier to track than paper copies. Paper is a pain in the ass though sometimes you do need it.

                      I don’t claim to know everything, but I have never heard of a class doc, unless actually hand written, not created on a PC or equivalent.

                      BTW – how do you do italics in a post (:

          • Critter7 says:

            For the top secret docs – and maybe for other classified categories also – they probably have procedures in place to avoid leaving electronic copies. Given the sensitivity of that information, why would they not.

            • Rayne says:

              Marlowe hasn’t noticed DOJ has placed a greater emphasis on “records” while Team Trump refers to “documents.”

              Records aren’t always things which can be put through a copier/scanner though some surely have been and not necessarily by the originating entity or lawful owner.

              • cmarlowe says:

                I honestly don’t understand your point. What does this have to do with the assertion that USG would only keep a single paper copy of a class doc with no electronic backup?

                A record or a document, whichever you call it, can be in electronic form stored on a computer or exist printed on paper (or both). I don’t understand the distinction.

                If it’s on paper, you can scan or photograph it (though there are ways to make this more difficult). That gives you a “copy” saved in electronic form on a computer.

                The only way you would not be able to scan a document or record is if it’s only in electronic form. In that case why bother scanning it?

                  • cmarlowe says:

                    Hey bmaz, not sure what further answer you expect from me beyond what I already said.

                    All I can add is that in the real world where you have stressed humans working with this stuff, documents get coffee or soup or eyeglass cleaner fluid spilled on them, are inadvertently shredded, other accidental things can happen. For the latter two it can happen and then your not really sure what happened to the doc.

                    If you don’t believe that just because I said it, consider that over a million of our citizens have secret level clearance, and a small but still large number have TS. Nearly all are dedicated and careful, but still stuff happens.

                    For these and other reasons I am asserting that would it be nuts for the USG to maintain critical NDI in the form of a single paper copy. I hope I have enough paragraph breaks in this.

                    • bmaz says:

                      I do not, and have learned to not, expect anything out of you. What you said was already enough.

                      And you think this is about coffee or soup? Lol.

                    • Proton says:

                      Hello cmarlowe, I am one of those folks who has a security clearance. In my experience, you are correct. I’m sorry to see that this thread has been quite sour towards you.

                      There is generally a copy of the document, whether electronically or physically, somewhere in the world. That’s not to say that a document *always* has to be copied. Each agency has their own internal regulations regarding the handling of classified information. Not all copies are electronic, especially with older or larger documents. Getting access to additional copies can be quite cumbersome depending on what the information is, where the copy is located (e.g. electronically on SIPRNet, or physically on the other side of the country), and whether you have access to see that information (i.e. having a SECRET clearance doesn’t automatically grant you access to seeing all of your agencies SECRET files). It can also be as easy as printing it off yourself in a secured facility (SCIF) with a computer dedicated to handling classified information, assuming you have access and the necessary permissions to view the file in the first place.

                      Also, many classified documents are derived from original source documents (“derivative classification”). These documents generally contain information on where the original information was derived from. All of them are appropriately marked with the proper classification marking and sensitivity controls. Remember, it is the information within the documents that is protected. There may be hundreds of classified documents that contain information on a very specific topic, but it only takes for one to go missing to have that information be released. Hence why the government will go to great lengths to protect that information, and why they often assume the worst-case scenario when that information leaves an SCIF (without a courier card) until proven otherwise.

                      [Welcome back to emptywheel. Please use a more differentiated username when you comment, something which is not a brand name or salted so it does not look like a brand name. /~Rayne]

                    • Rayne says:

                      Gee, thanks for dropping in Mr. Two-Comments-To-Date. Thanks also for doubling down on “document” or “documents” nine times in a rather excessive 298-word comment.

                      “Record” or “records” doesn’t appear at all.

              • ProtonSE says:

                In this context, a record and document both refer to a physical piece of paper. The term “record” is probably used because it’s a broad term; it can refer to a document, a video, a cassette tape, etc. Regardless of the medium, the information within it is classified. I’m not sure I understand what you mean to imply by differentiating the two terms. We have a scanner that’s about 8-feet in length (used for very large engineering draft paper), we can scan about anything in.

                Also, I’m not sure I understand the hostility towards me? Why does it matter if I have 2 comments-to-date? Would it have changed if I had 111 comments? And I don’t understand why being excessive in my previous comment was a necessary point to bring up, especially when I’m new here and I’m trying to contribute to the conversation.

                • cmarlowe says:

                  Proton SE – I expected that eventually someone else with a clearance would post similarly, as there a number of posters that appear to be cleared. In my experience everything was backed up in some way.

                  I suppose Trump could have ordered a printed copy of any class doc (or record) and then ordered that all other copies (on paper or electronic) be obliterated. Then there would be only one. I don’t think that would be so easy and would likely require a conspiracy extending beyond his inner circle.

                  Having seen and read commentary from ex-DNIs and other security experts with respect to the havoc Turmp has wrought, I have never heard nor read anyone concerned about a complete loss of the classified information contained in a document or record, but I haven’t read everything and I can’t prove a negative.

                  If you didn’t know, note that bmaz and Rayne are among the site moderators and have substantial expertise in their respective fields. Like you, I really don’t understand the hostility here. I’ll also say that I pretty much didn’t understand anything Rayne said but tried to respond as best as I could

      • Dopey-o says:

        This is like the wristwatch quandry: if you have a wristwatch, you always know the time. If you have 2 watches, you’re never quite sure.

        If you make copies of your agency’s classified documents, you have increased to chances of catastrophe.

      • DavidM says:

        Any stated prohibition against reproduction shall be strictly observed. Copying of documents containing classified information at any level shall be minimized.
        32 CFR § 2400.30 – Reproduction of classified information

        As stated by others, copies increase your risk of not keeping the secret. I would expect that the agencies do not have copies, so they do not have access to the information in the documents. How is it that the agencies were not calling up DOJ on Jan 21, 2021?

          • bjet says:

            If I read Marcy’s posts on Mike Ellis right, NSA at least, was unable between J6 and the 21st to ascertain whether that was not remotely called for until six days before we had a responsive presidential office at the earliest; possibly not until the 19th, when Ellis reported for duty as NSA General Counsel, if even then.

            According to DDIRNSA Barnes, “we didn’t know if there was a disconnect or an understanding,” were IOW not notified or given clarification as to which, but and hence, were “prioritizing … identifying our documents” that were or could be ‘out there’ and so forth.

            Their ability to do so was constrained at a minimum, by two ‘wild’ moves on the two days after J6 (both attributed to Ellis by January 13th) with two identified NSA items containing “our most sensitive information,” which (predictably) sent the “flares” up & them off on a wild goose chase clear through inauguration day, “spending the last week or so … trying to find out who had them, where they were” etc (Barnes, DOD IG report), with (if I got this right) Ellis not caught up to after the 8th until the 19th -if then- nor neutralized until the 21st. That’s just NSA.

            Parts of those NSA materials may have come from another or multiple originators, as 32 CFR § 2400.30 (cited above) indicates, “copies … incorporated in a working paper are subject to the same controls prescribed for the document from which” reproduced (according to the latter OCA’s rules, generally speaking). US depts & agencies are not the only OCA’s, nor is the president the only other one, but as Marcy puts it, the president is “ultimately the Original Classification Authority,” so sending them on that wild goose chase may have been authorized at the time, so to speak.

            This must be the unknown potential “understanding” Barnes alluded to being in the dark about in the context at least, of those two NSA items so ‘gratuitously’ identified indirectly via Ellis immediately after J6. (Gratuitous as Peter Baker would say, or was it Michael Schmidt who was so fond of describing ‘inexplicable’ acts of cruelty & incompetence reported on cue from the Trump WH as “gratuitous”?)

            So along with the apparent obstacle of “controls prescribed” by the ‘ultimate’ uncommunicative OCA, authorized “[s]pecific reproduction equipment” per 32 CFR § 2400.30, could encompass anything from lovely offline printing presses to funky dark room dodge & burn tools; anything from a Theramin to the dull end of the Sharpie.

            So we don’t know but probably not.

    • KM Williams says:

      Surely the various intelligence agencies have known from the start that Trump kept their documents. And have been taking measures to mitigate the damage they knew he’d perpetuate. How could they not know? How could they not do… something?

      Whether they shared this info with each other or with the DOJ is an interesting question.

      The August search warrant at Mar a Lago has resulted in a lot of rocks, of all sizes, being turned over, of which Judge Cannon’s is one.

      Here’s an interesting link to Guardian article about the $$ behind the Federalist Society, Leonard Leo:

      • Anne says:

        The WH clerks under the Staff Secretary have to keep track of these documents and make sure they are in the secure filing cabinets in the secure storage area. After a few months in 2017, all the clerks would have known there were documents missing, presumably upstairs in the WH residence. So would the clerks in the CIA, NSA, Pentagon etc. Ask anybody who has ever had a security clearance how it works.
        My question is, what whistle-blowing procedures did the WH clerks have available after the Chief of Staff shut down the clerks’ complaints/alarms in order to let TFG get away with stashing them upstairs? Were these procedures shut down too?
        But proper protocols wouldn’t have been shut down in the various IC agencies. My bet is that FBI counterintelligence has been on this since 2017 (but was maybe told to keep quiet?) and that NARA in January 2021 got an entire list of missing documents.
        Here’s an article from the Grid: https: // politics/2022/09/14/ the-white-house-system-to-protect-secret-records-has-a-president-sized-hole/

  5. x174 says:

    i’ve been wondering for quite some time now what might drumpf et al be up to besides delaying the investigation. my original thoughts seem more plausible in light of each of Clown Judge’s evermore egregious rulings, such as that the government should not be able to access its own classified documents and that a special master and drumpf’s stooges will need to examine the original classified documents and not copies to make sure that they’re not his. the idea is that drumpf needs to reacquire the seized documents to find certain information that he had already promised his handler.

  6. jeco says:

    If trump gets access to originals he’ll eat & swallow them.

    His notes written on the documents could be very incriminating.

    Why was he so hellbent on illegally retaining these secret documents? The rational answer is to monetize them, he spent 4 years ignoring emoluments restrictions, once he had yoke off his back he could really run amok.

    Lets say trump leaked info that contained sources and methods and our intelligence agencies started noticing their sources mysteriously falling from hi rises in Moscow etc and they were able to backtrack/triangulate to info contained in docs suspected to be in MAL. Maybe the full court press (pun intended) to recover these docs really started at intelligence agencies not NARA.

    Remember trump always had an animus to US intelligence, he announced that he trusted what putin told him over our intelligence info. I don’t think it’s a huge stretch for trump to help putin to stop the (false-in trump’s mind) info being generated by US intel, especially in his extremely unstable mental state after being robbed of his presidency. A bitter former employee mindset layered on top of his general instability and grievances.

    Cannon’s goal in blocking the investigation could be to stop a trump indictment for treason – at least until he has an opportunity to be reelected in 2024 and self pardon.

    “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

  7. Tom-1812 says:

    Trump’s apparent conscious decision (or was it thoughtless negligence?) to keep the empty file folders seems to have been the fatal mistake that master criminals always make in crime novels. There appears to be no good way for him to explain their existence in those boxes at Mar-a-Lago. He has either sold, traded, destroyed, or otherwise illegally disposed of the contents of the file folders, or they simply vanished while in his keeping.

    I think it’s entirely possible that someone may have made off with the files without Trump even being aware they were missing (though you have to wonder why the culprit(s) would have left the empty folders behind). Even if Trump were to claim that wicked elves from the Black Forest sneaked into Mar-a-Lago one night and stole the classified files, he would still have to be held responsible because they were in his possession at the time. The only other option I can see is for Trump to say he took empty classified file folders with him to store his newspaper clippings, but that explanation would be unbelievably lame.

    Almost forgot what Trump will most likely claim about the file folders–the FBI planted them!

    • Yohei72 says:

      Good point. Can’t believe this question didn’t occur to me earlier – why on earth would he or anyone leave empty file folders in there? I guess simple laziness is an explanation that makes sense. Grab the docs wanted for whatever reason, throw them in a box or a bag, and don’t bother further with cleanup. However, haste also seems plausible – someone moving quickly and in fear of getting caught – which is very unsettling. Occam’s razor probably points to “lazy,” though. Trump & many of his cronies & minions are certainly that.

      • timbo says:

        If one were going to try to sell fake secrets then having real covers might make those fake secrets seem more authentic. There are other less devious reasons why these might be kept as well.

    • AirportCat says:

      It is possible that the contents of the empty folders were removed and then mixed in among the files that were recovered at Mar-a-Lago. Note that the photo of classified documents released by DOJ does not appear to show folders. While it is possible that the contents from the empty folders may still be missing, I haven’t seen anything that confirms that to be the case. I would assume that is part of what DOJ is investigating, or would be had they not been impeded by Judge Cannon’s ruling.

    • ScottMI says:

      Off the top of my head, a thief would leave the folders behind because (a) they’re superfluous; (b) the documents are easier to conceal without the folders; and (c) leaving the folders marginally reduces the chance that your theft is detected (a casual inventory would probably just count folders rather than inspecting each one).

      • Rayne says:

        and (d) easy to find the point where documents should be reinserted, like a bookmark, and (e) easy to tell when a drop has been made because the folder is empty when the dropper checks to see if droppee has retrieved the goods.

        • Yohei72 says:

          Aha! All five of these explanations make sense.

          I’m always so glad there are smarter people than I in the world.

  8. Badger Robert says:

    Does the 11th Circuit want a constitutional confrontation with the current President? And does Clarence Thomas want to inflict that potential confrontation on the Supreme Court which has lost most of its credibility?
    I am skeptical that a President that is leading Europe in preserving a free nation in Ukraine is going to tolerate a judicial system infringing on his national security duties.
    Ms. Wheeler was quick and to the point today. Brilliant as always.

    • 808HL says:

      For the Conservatives in the 11th to go with Cannon’s crazy ruling’s will they also have to contend with discarding their theory of Unitary Presidential power? They will have to be pretzel makers to give this FPOTUS power.

  9. Cheryl Rofer says:

    Hi Marcy – I’m going to disagree a little here. All I see in the language is the standard concerns when classified documents have been unsecured. If you don’t know where they’ve been or who’s had access to them, you have to include the worst possibilities, like that they have been shared with others whose first consideration is not the good of the country. And, as others are noting in the comments, all sorts of people may have had access to them, not to mention all we don’t know about Trump’s motives for stealing them.

    The possibilities are so many, and the situation hard to decipher because we’ve never had a president before whose loyalty to the country seems nonexistent. The government states that they are looking for patterns in the types of documents stolen, which indicates they’re considering a very serious crime indeed. But, again, they have to consider all the possibilities. If Trump is as innocent as he claims and merely swept up a great many documents in a rush to pack, then he has nothing to worry about, right? Of course, this is at the other end of the spectrum of possibilities and everything in between must be considered. That is done most economically by considering the worst case.

    There are two schools of thought on the empty folders: 1) OMG what happened to the contents and 2) My agency had empty folders like that lying around all the time. I belong to the first. Different agencies have different practices, and some of us tend to look down on others. The first is the worst case, again, that the investigators must consider, and they are considering it.

    • Bredon says:

      Regarding your number 2 option, who would bring an empty file to the Oval Office or leave an empty file there? That doesn’t seem plausible.

      • OmAli says:

        He could maybe, while in office, have simply dumped contents that he didn’t think would benefit him afterwards. He may have just wanted the folders to display in his trophy cabinets at all his sleazy properties…. Didn’t he do that in the bar at Trump Hotel?

    • Peterr says:

      One difference, I think, is that Judge Cannon seems to be acting as if a security review simply takes the documents and asks “what would be the result if this got out, and how can we protect the human sources or electronic systems implicated before anything happens to them?” That’s a good question, but hardly the only one. Others include . . . Who had access? Why did Trump select these documents, out of all the possible documents that crossed his desk? Did they actually get surreptitiously viewed by unfriendly visitors? Did they get affirmatively shared by Trump with people not cleared to see them? Did they just sit in their boxes and drawers?

      To look at those questions is AT LEAST as important as figuring out the potential dangers and damages to our sources and methods, and yet Cannon wants to restrict the ability of the FBI and their partners in the intelligence community to assess what actually happened.

      • Cheryl Rofer says:

        Those questions are all part of the great in-between on the spectrum from worst to least-worst case. And they’re intertwined with sources and methods. I’ve been annoyed at the ease with which the intelligence agencies have tossed around sources and methods as an excuse for not making information available. It’s true that the nature of the information can reveal sources and methods, or at least point in the direction they might be investigated, but it’s also true that when you’re inside and see all the information, it all seems to be connected, but from the outside, those connections are more difficult to discern because there are so many possibilities.

      • earlofhuntingdon says:

        There would also be concerns about patterns that emerged when the documents are analyzed as a group. What, if anything, connects them? Examples include whether their dates or time frames are similar. Their subjects or contents. Their sources, geographies, industries, governments. Their authors or intended readers….

        It would be ineffective to review them individually or have them reviewed by people with insufficient experience, knowledge, or context.

      • Cheryl Rofer says:

        I read your Pho post after I read this one. There’s a comment over there that is parallel to mine.

        I have no doubt that the investigators are mightily pissed off and, more importantly, extremely concerned about the damage that might be (has been?) done. Heck, I’m pissed off. And they know, to some degree, the nature of the documents, which we don’t. That may mean that the nature of the documents suggests a worst case.

        We may never know the nature of the documents and certainly won’t in the near future. There are so many unknowns right now, as in Peterr’s questions, that we won’t resolve this difference between us (which I don’t view as large) for a while.

        • emptywheel says:


          I will say, however, that there are substantial rumors that the set of Crossfire Hurricane docs was shared outside of MAL in 2021 (indeed, I think I’ve seen screenshots that must come from it). As I’ve written before, if that includes Carter Page FISA materials, that’s likely a separate crime under FISA, especially given the sequestration order covering his stuff in particular.

          • Ginevra diBenci says:

            Crossfire Hurricane documents have long made the most sense as the kind of supposed proof Trump would cling to that “Russia, Russia, Russia” was the “Hoax” he claimed. Of course they don’t prove that (at least I highly doubt it), but his repeated invocations of this–along with the “They spied on my [2016] campaign” line–in the past month suggest that papers related to these issues constituted the part of his hoard he clung to most fiercely.

          • Willis Warren says:

            Why would he risk so much for Carter Page? I don’t understand how that goofball is relevant at all, unless they’re trying to figure out how he was tagged

            • Rayne says:

              I have been disconcerted by Carter Page since before he revealed in April 2017 he was “Male-1” in the Buryakov spy case.

              I still want to know what Atlantic City casinos the Russian spies Evgeny Buryakov, Igor Sporyshev, and Victor Podobnyy visited and all the whys behind this.

            • timbo says:

              He wouldn’t. This isn’t about Carter Page directly, it’s about the manipulation of information beyond or aside from Carter Page… er…unless the leaks are from Carter Page himself…in which case you’d have to ask him I guess?

            • emptywheel says:

              For one bc Trump never thinks in terms of risk, and to the extent that Trump was responsible for circulating a fully unsealed or partially unsealed application, that all happened before he thought NARA would come looking.

              But also it’s not about Carter Page for him. He has succeeded at gaslighting about Russia for years, and the Carter Page application is the only basis he has for claiming *he* was wiretapped. So he needs to continue to conflate Page and himself, even though at multiple times in the period of surveillance Page was better understood as victimizing Trump.

              • Ginevra diBenci says:

                Exactly. Trump has exploited the procedural issues in the final Carter Page FISA application by exaggerating the actual content past the point of annihilation, all for the purpose of gaslighting a willfully gullible base.

                The horror to me is how long he’s managed to sustain this campaign of lies and how many powerful and “respected” professionals like Durham have furthered it.

  10. Peterr says:

    Disregarding a sworn declaration from a senior FBI official . . .

    This also sounds like a not-so-subtle swipe at Team Trump, who barely swore to anything beyond their own names in their filings. They used the passive voice to hide names and agency, for instance, and reveled in laying out hypotheticals rather than swearing to basic facts.

    • bmaz says:

      A sworn declaration inappropriately filed after the fact in a motion for stay it should be noted. Because Garland and DOJ recklessly failed to do it appropriately at the trial court level.

      • Peterr says:

        The initial filing with Judge Reinhart was a sworn statement, too, filed at the outset of this whole mess. That Cannon failed to treat it as such, while giving Trumpworld the presumption of having sworn facts that they in fact did not swear to, is a massive judicial failure.

        At best.

      • Badger Robert says:

        They should have been building their factual record if they knew an appeal was probable. It seems elementary.

  11. starscm says:

    I recall prior discussion, either on Emptywheel or elsewhere, that document theft often involves mixing up innocuous material with the stolen material. If someone with low cunning wanted to sneak secret documents out of the White House, the obvious solution would be to put the secret documents on the bottom of the document boxes and layer on top newspapers, MAGA gear, whatever can be grabbed during the mayhem of a rushed departure, to get the boxes off the premises and into the van parked outside. That approach would provide protection from a cursory search or the chances of dislodged lid. It would be interesting if the FBI found any evidence of such deliberate mixing. By the way, the high level of perceptive discourse on this site is delightful..

  12. tomfNW5 says:

    I think documents must include material that compromises Trump himself.
    If it was stuff about Biden or FBI corruption he would have already declared it loudly (instead of only slightly hinting and letting proxies make the suggestion), of course, as he knows it’s highly unlikely docs will ever be revealed to public, I expect he’ll make that claim anyhow.
    If material happens to be related to Carter Page it becomes clear why he put Dearie on his list. In fact, it seems obvious that a tainted SM will be a line of defence for him.
    Everything about the SM motion, from the irregularities in filing through Judge Cannon’s biased rulings seem designed to create conditions favorable to Trump appeals. Not to mention the issues over his legal teams involvement in the investigation.
    We know Trump only thinks about himself. His interest in anything is whether it makes him look good or his enemies look bad.

    BTW, Emptywheel is terrific. Thank you Marcy Wheeler.

  13. Fedupin10 says:

    This discussion about whether classified documents have been disclosed or not overlooks the justification for the search warrant in the first place.
    Someone, either one of his lawyers attempting to avoid prison or one of his billionaire buddies he was trying to impress, has attested he still had classified documents after the subpoena exchange. They would have to have seen the documents to make this assertion and that would constitute at least one incident of unauthorized disclosure. Who knows who else has seen them and not reported it.

  14. dejavuagain says:

    District Court Judges have two clerks, and presumably here were very involved in the draft of Cannon’s orders. Not a surprise to find that one of her Clerk’s is Federalist Society – actual membership not clear.

    Does the Federalist Society help provide clerks for the Judges they insert into the District Courts?

    “Anna Edwards is a 2021 J.D. candidate at Regent University School of Law where she is the Executive Editor of Regent Law Review. During her time in law school she has worked as a legal intern for the U.S. Department of Justice Office of Legal Policy and as law clerk on the U.S. Senate Judiciary Committee. She currently works as a legal fellow at Spero Law, LLC. After graduating in May 2022, Anna will serve as a law clerk for the Honorable Aileen M. Cannon of the U.S. District Court for the Southern District of Florida during the 2022-2023 term and then for the Honorable Paul B. Matey of the U.S. Court of Appeals for the Third Circuit during the 2024-2025 term. “

      • dejavuagain says:

        “VIRGINIA BEACH, VA (January 30, 2020) – Judge Ken Starr, J.D., Regent University’s newest senior lecturing fellow for the School of Law, spoke to a packed house on Tuesday, January 28, in a premier event hosted by the Federalist Society on Regent’s Virginia Beach campus. Law students, members of the local community and honored guests, including Bob McDonnell, former governor of Virginia and Regent Law alumnus, were in attendance.”

        • Ginevra diBenci says:

          I think that speech by Starr (or another similar one) was just shown on BookTV. He luxuriated in the very recent SCOTUS’ recognition of “religious freedom,” meaning the freedom for everyone to worship Starr’s way.

    • harpie says:

      Episode 7: Trump turns on Pence
      Jonathan Swan / Zachary Basu Jan 20, 2021

      […] [By Christmas 2020] Trump’s outside lawyers were filling his mind with junk legal theories about Pence’s constitutional authorities. One of those lawyers was Mark Martin, a former chief justice of the North Carolina Supreme Court who’d become dean of the law school at Regent University in Virginia Beach. Trump urged Pence to listen to Martin during a three-way conference call. […]

      And, via bmaz:
      2:20 PM · May 19, 2022

      Harvard Law School, ranked 4th in the country, sent 18.3% of its 2020 graduates to clerkships.

      Regent University’s law school, ranked 142nd and founded by Pat Robertson, sent 23.5%. […]

      [Same author, link in next comment]

      This is blowing up so I’m going to mute, but first some valid points brought up in the thread + more context:

      Full disclosure: I only looked into this because my husband just graduated from Regent (undergrad). I was surprised at commencement that a sitting SCOTUS, Samuel ALITO, was a senior lecturing fellow. Thought, “Wow, Regent must be higher-ranking than I thought!” (It’s not.) [VIDEO pointing out names of STARR, SEKULOW and ALITO] […]

      • Yohei72 says:

        “Regent University’s law school, ranked 142nd and founded by Pat Robertson, sent 23.5%.”

        Jesus Christ (so to speak), that’s terrifying. Once again, we see how these nutcases manage to punch above their weight in American politics & culture – they just work so much harder than the sane people.

        • Rayne says:

          It’s not so much that they work harder. It’s that they’re more organized having been working at this since the 1980s.

          At the same time they demoralized the left suppressing their ability to organize effectively. It’s also been difficult to get the left as individuals to see that their single issue is really interconnected with other issues and they needed to turn out for the rest of the left (see Moulitsas and Armstrong’s Crashing the Gate: Netroots, Grassroots, and the Rise of People Powered Politics, c. 2005, it’s been that fucking long).

          • Ginevra diBenci says:

            You know what really helps them punch above their weight? Millions and millions of dollars routed via Leonard Leo.

            • Rayne says:

              This has been a much bigger project — a program, really — going back to the 1980s. Council for National Policy, Orrin Hatch’s years of clerks and judiciary appointees with his nod, the Kochs and Mercers pumping money into the same increasingly conservative efforts…Leo was able to capitalize on nearly a lifetime of preparation for this moment in time, when a low morals, easily persuadable POTUS and the right Senate leader were able to work in sync on a body of crappy appointees funneled through their fascist pipeline.

    • earlofhuntingdon says:

      Yes, the FedSoc is very active in arranging judicial clerkships for its high flyers. It’s an essential part of its networking with judges and senior lawyers, and a major carrot used to recruit those up and comers.

      It’s part of sometimes cradle-to-grave wingnut welfare, which came up frequently during the BushCheney regime.

    • emptywheel says:

      I wish people would not focus so much on Federalist Society, which includes a good number of reasonable Republicans, and would instead focus on the subcultures within right wing law that are more consistent markers of craziness. For example, the Regent Law degree is FAR MORE indicative of batshittery than Federalist Society membership by itself.

  15. tdr10 says:

    The requisite IANAL, but I recall several posts here noting that the (unnamed) clerk in Canon’s office should have tossed Trump team’s hash of an initial filing on any number of grounds.

  16. Jeremy Daw says:

    I suspect Biden’s address 2 weeks ago was driven by Intel reporting that he has received. Reporting on Intel leaks of such a serious nature, he wanted to make a statement immediately. He could not do so directly, TFG leaked for money, but he could stake his territory ahead of what we will find out, and ahead of how entirely freaked out 75% of the country will be.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “jeremy” is your second user name; I am editing it to match your previous username, “Jeremy Daw.” Please stick with this or indicate what different unique username you wish to use here on forward. Thanks. /~Rayne]

  17. dejavuagain says:

    Do we know who is Cannon’s other clerk – another Federalist Society clone?

    I was wondering if the Federalist Society sponsors “training sessions” for all of their new court clerks? Do they have summer “conferences” where their Judge selections get together and swap notes and get to know each other? Bmaz, am sorry if you think this is unseemly speculation thinking, but, this is human nature.

    On reason for my interest in this is that I wondering how Cannon and her clerks were able to so quickly create all of their orders etc. In particular, none of them have any experience, it seems, in special masters, but whoever drafted Cannon’s order seem to know which language to mess with to create further problems for DOJ. I postulate that the clerks received input from other Federalist clerks, and that Cannon received input from other Federalist judges.

    • bmaz says:

      That is kind of what clerks and judges do together. Do you have one shred of evidence something eld is afoot here, or just bandying about bullshit?

      • dejavuagain says:

        Why do you call this “bullshit” if that is what clerks and judges do together? Not everyone know this is what they do. Do I have any specific example: Answer is that I have no specific shred of evidence and I made that clear. The Federalist Society does sponsor a lot of programs – I am not on their mailing list though and am not a District Court Law Clerk so would have do so some research. So, I am bandying this about should anyone know of the programs, formal or informal, the Society runs for new clerks. Sorry if I offended anyone or you.

    • pseudo42 says:

      That would be the Heritage Society, see A Conservative Group’s Closed-Door ‘Training’ of Judicial Clerks Draws Concern, NY Times, October 8, 2018 “…aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges.” As for FedSoc, can’t say for sure but they do have summer camp for scoundrels in training & recent grads. Search for James Kent Summer Academy. I have no info on the 2nd clerk.

  18. Amicus says:

    DOJ’s stay motion ought to prevail: it is difficult to see any meaningful counterargument. In the ordinary course, Plaintiff would stand on the district court’s order denying the government’s stay request below. But that should not meet with success here. Fundamental to the district court’s order is the finding that “it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials.” Order at 4. With that simple sentence the district court excuses Plaintiff’s failure to make any substantive assertions – let alone showing – with respect to the classified documents.

    The lower court’s finding is unsound in numerous ways. First, as best as I can tell, Plaintiff did not make this argument: courts should not to be inventing arguments for one of the sides before them. Second, it is implausible, if not absurd, that Plaintiff can say nothing at all about a discrete set of extraordinary documents – state secrets – that he absconded with from the White House and has possessed for more than a year and a half, that were found in his office. Third, the statement is empirically false, if not dishonest. Trump can address these specific documents: he has told the world that he declassified them, just not under oath. Moreover, one of the ways that DOJ’s motion deals with Cannon’s finding (without taking her to task) is to note that Plaintiff could have asserted a possessory interest or claim of privilege in the classified documents at the time of responding to the grand jury subpoena. Of course, he did not, because that would have meant revealing their existence and defeated his efforts to retain them. Fourth, the district court has turned the rule of law upside down and excused Plaintiff from making any showing in support of his claims. DOJ attacks this vulnerability by noting that standing is not dispensed in gross, and whatever interest Plaintiff may have in the rest of the group of seized materials, he has no possessory interest or claim of privilege with respect to the seized classified documents. Frankly, that argument ought to be game, set, and match.

    Other commentators (professional commentators) have also noted Cannon’s extraordinary claim that principles of equity are different for former Presidents. “Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff.” Order at 10. That is a breathtaking statement. According to her decision, we don’t have “Equal Justice Under Law” (as inscribed on the façade of the Supreme Court), we have superior rights for the favored.

    • Bobby Gladd says:

      “According to her decision, we don’t have “Equal Justice Under Law” (as inscribed on the façade of the Supreme Court), we have superior rights for the favored.

      Some Animals are more equal than others.

    • timbo says:

      Unfortunately, if the documents were planted then that’s something where plaintiff would not have any knowledge of what the documents seized might be. This is the angle from which Cannon can make all sorts of rulings that don’t seem to make sense outside of that context. Of course, most normal people will assume that DOJ doesn’t plant evidence on ex-Presidents when they have a court ordered seizure warrant, particularly not using live NDI documents to make such a frame-up, etc; the chance this is a frame-up appears to approach nil if one looks at the fact that there are affidavits attested to during the warrant determination by Reinhart et al, complete with earlier record recovery history that is not in dispute. Hopefully the crap ruling and judgement of Cannon will not stand but it could if seditious judges want to keep pushing the obstruction into this national security criminal investigation.

  19. DaveV says:

    Trump needs for the classified documents to remain in limbo as long as possible, even hopefully excluded from the search. This must be resolved before that examination of the other documents, hopefully on appeal of the motion for a stay. After the determination is made that they are “marked” classified documents, all other documents become the fruit of the tree, and as such any crime/fraud exemptions will be protected from Cannon’s ultimate override biased on the SM process.

    Wonder what is in the other documents?

    • timbo says:

      What Team Twitler is trying to do here is run out the clock as long as possible so that if things do progress in the criminal investigation they progress slower than their own rise back into a position of power in the Congress and the White House. This is the obstruction that they are undertaking to avoid significant legal consequences for the many conspiracy they have been involved in, plus some on-going ones that we might only be dimly aware of, etc.

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