DOJ Raises Prospect that Trump Continues to Obstruct Investigation, Including of Empty Folders

DOJ submitted its reply in its request for the 11th Circuit to stay parts of Aileen Cannon’s order pertaining to documents marked classified. The matter is fully briefed, so the 11 Circuit could rule at any time.

There’s little that’s new in the reply, except for DOJ’s response to Trump’s claim that the 11th Circuit cannot hear an interlocutory appeal as to whether DOJ has to share the classified files with Judge Raymond Dearie and Trump’s lawyers. The government cites three bases for appeal: a claim that they are appealing Cannon’s initial order on September 5 stating she would appoint a Special Master, an assertion that an order to share classified information would be appealable by itself, and if all that fails, a writ of mandamus.

2 If the Court harbors any doubts about its jurisdiction over portions of the September 5 order, it should construe the government’s appeal and stay motion as a petition for a writ of mandamus with respect to those portions and grant the petition. See SuarezValdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988).

This jurisdictional dispute is, in my opinion, getting too little attention, because it’s one way Trump could succeed even though all the facts are against him. That said, as the government suggested, they believe they could separately appeal the order to share information (and so they could just turn around and file another appeal to address that order). Moreover, in yesterday’s hearing, Dearie indicated that, absent any affirmative claim that Trump has declassified any documents, he would resolve that issue without looking at the documents. (See also Adam Klasfeld’s report on the hearing.)

DOJ also points to Trump’s proposed topics for yesterday’s hearing to note that he refuses to say that he declassified any of the documents at issue (and that he’s already seeking to draw out this process).

Plaintiff again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step. And Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence. D.E. 97 at 2-3.


To the contrary, after persuading the district court to grant injunctive relief and appoint a special master to adjudicate purportedly “disputed issues” about the records’ status, A6-A7, Plaintiff has now reversed course: In response to the special master’s invitation to identify any records he claims to have declassified and offer evidence to support such claims, Plaintiff objected to “disclos[ing] specific information regarding declassification to the Court and to the Government.” D.E. 97 at 2.

The timing of these filings serves the government’s case well, because Trump is refusing to make the kind of affirmative claims that a plaintiff would need to make for relief (though with another day, DOJ could have relied upon a transcript of the Dearie hearing as well, in which Jim Trusty asserted that with his Top Secret — but not SCI — clearance he should not be denied the Need to Know to access the documents).

The ease with which DOJ rebutted Trump’s factual claims is downright funny in places (or would be, if not for the possibility that some nutjob panel on the 11th won’t see the humor). For example, DOJ noted what I did — Trump invoked notes he had written on documents to claim Executive Privilege over some of the documents with classification marks. But those were documents turned over in June, not documents seized in August.

Indeed, except for a brief footnote, his response does not mention executive privilege at all. And the footnote states only that other classified documents recovered before the search contained Plaintiff’s handwritten notes and that those notes “could” contain privileged information. Resp. 13 n.5; see A73. But the question is not whether the records at issue here might contain material that in other circumstances could give rise to valid claims of executive privilege against disclosure to Congress or the public. Instead, it is whether Plaintiff can assert the privilege to prevent the Executive Branch itself from reviewing records that are central to its investigation.

DOJ doesn’t note here that these were documents turned over in response to a subpoena, but elsewhere, it notes that he didn’t raise such privilege claims when he turned over the records.

Plaintiff should not be heard to assert a privilege that he failed to raise in response to a grand-jury subpoena.

In other words, Trump is relying on documents that he turned over with no privilege claim to suggest he might withhold documents based on an Executive Privilege claim.

DOJ similarly notes that Trump pointed to a portion of the seized materials he might own as his basis for a claim DOJ shouldn’t have access to files he cannot own.

Plaintiff asserts (at 10) that he owns other seized evidence, such as “personal effects.” He may well have standing to seek return of that “portion” of the seized evidence. United States v. Melquiades, 394 Fed. Appx. 578, 584 (11th Cir. 2010). But he cites no authority supporting a claim for return of records that do not belong to him.

Both these areas are where Trump is stuck trying to make Cannon’s gimmicks to justify intervening hold up under scrutiny.

I’m most interested in how DOJ repeats something it has already said. It asserted that it may need to use additional search warrants to hunt down  any files disclosed to others.

As the government explained—and as supported by a sworn declaration from the Assistant Director for the FBI’s Counterintelligence Division—the Intelligence Community’s (IC’s) classification review and national-security assessment cannot uncover the full set of facts needed to understand which if any records bearing classification markings were disclosed, to whom, and in what circumstances. Mot. 18; A41-A42. The FBI has a critical role in using criminal investigative tools such as witness interviews, subpoenas, and search warrants in pursuit of these facts. A42. The injunction bars the FBI from using the seized records bearing classification markings to do just that. Plaintiff asserts that the government has shown only “that it would be easier . . . to conduct the criminal investigation and national security assessment in tandem.” Resp. 17. But the injunction prohibits DOJ and the FBI from taking these investigative steps unless they are “inextricable” from what the court referred to as the IC’s “Security Assessments,” A11-A12—a standard that the government must discern on pain of contempt.

Plaintiff next dismisses the government’s national-security concerns as “hypothetical.” Resp. 17 (citing A11). But the injunction is preventing the government from taking some of the steps necessary to determine whether those concerns have or may become a reality. Moreover, Plaintiff fails to address the harms caused by the injunction’s interference in the expeditious administration of the criminal laws, and by the possibility that the government’s law-enforcement efforts will be obstructed (or perhaps further obstructed). Mot. 19-20. Plaintiff states only that the injunction will last for a “short period,” Resp. 19. At the same time, Plaintiff is already attempting to delay proceedings before the special master. See D.E. 97 at 1-2 (seeking to extend deadlines and set hearings “on any Rule 41 or related filings” in “Late November”). [my emphasis]

As noted, DOJ made this argument — relying on Alan Kohler’s declaration, the only sworn declaration in the docket — in its motion for a stay before Cannon. But when they suggested that Trump may have leaked documents in their initial filing before the 11th, they only mentioned compulsory process, not warrants specifically.

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.

This is all couched in the language of hypothetical possibilities. DOJ is not saying that they currently have plans to execute further warrants in search of the documents Trump stole and, possibly, leaked to others.

But they are suggesting that may be a step they would take — before such time as the Special Master process ends in November — to try to hunt down the contents that used to be in those empty folders or other files Trump leaked to people not cleared to have them.

Christina Bobb, whom (according to the NYT) investigators already asked to interview, amended the declaration that Evan Corcoran wrote, possibly to limit her own certification to files still at Mar-a-Lago. If DOJ has since learned why that declaration did not incorporate all documents in Trump’s possession — something that has been a focus for weeks — the injunction really might be preventing further action, including search warrants to get them back.

Go to emptywheel resource page on Trump Espionage Investigation.

314 replies
  1. Valerie Klyman-Clark says:

    From the Daily Beast, “The special master, Raymond J. Dearie, said Tuesday that if Trump’s lawyers don’t officially counter whether the documents the former President took are classified, then Dearie will side with the DOJ.”

    “As far as I’m concerned, that’s the end of it,” he said.

    I cannot tell you how deeply I appreciate All of you here. Thank you, Dr. Wheeler, Bmaz, Rayne: you continue to give me hope.

    • Zirc says:

      Of course, Judge Cannon reserved the right to fire Dearie at any time for any reason. Wouldn’t look good, but given what she’s done so far, would she care?


        • Patrick Carty says:

          IANAL but it is my understanding that NDI and other classified documents pertaining to national security fall under the jurisdiction of the Executive Branch and their custody is not the decision of Judge Cannon. Is she going to tell President Biden to return them? Biden can pull a Trump and say they’re all highly classified again, so there.

          • RJames says:

            This crossed my mind as well. I wonder if part of the plan in to get Biden directly involved in the case to make it appear more partisan.

          • GWPDA says:

            We historians/records managers are very aware that any declassified document can be re-classified pretty easily, and at levels waaaaaaaaaay below presidential rank.
            “Washington, D.C., February 21, 2006 – The CIA and other federal agencies have secretly reclassified over 55,000 pages of records taken from the open shelves at the National Archives and Records Administration (NARA), according to a report published today on the World Wide Web by the National Security Archive at George Washington University. Matthew Aid, author of the report and a visiting fellow at the Archive, discovered this secret program through his wide-ranging research in intelligence, military, and diplomatic records at NARA and found that the CIA and military agencies have reviewed millions of pages at an unknown cost to taxpayers in order to sequester documents from collections that had been open for years.

            The briefing book that the Archive published today includes 50 year old documents that CIA had impounded at NARA but which have already been published in the State Department’s historical series, Foreign Relations of the United States, or have been declassified elsewhere. These documents concern such innocuous matters as the State Department’s map and foreign periodicals procurement programs on behalf of the U.S. intelligence community or the State Department’s open source intelligence research efforts during 1948.”

            • Jeffrey Gallup says:

              That the State Department overtly obtained publications overseas more than 70 years ago hardly seems a secret worth reclassifying. There may be aspects of such procurement that might be validly classifiable – what kinds of publications are sought by which USG agencies, with what objectives. This reclassification project seems overdone and a waste of time and money.

              • timbo says:

                I don’t necessarily pretend to understand why a massive reclassification of such old, already published records might be important. What I will say is that if one is trying to create a needle in a haystack then one must also have an haystack in which the needle could reside…

        • earlofhuntingdon says:

          Cannon’s ruling establishing the SM specifically contemplated replacing him at will. Moreover, she can reconsider all his determinations de novo, that is, from scratch and without consideration for Dearie’s reasoning or conclusions. The DoJ’s recourse is to Cannon – predictably pointless – or to the 11th Cir.

  2. Peterr says:

    To me, this is a section (pp. 3-4) that hits the media coverage of this dispute (present company excepted, of course):

    In any event, Plaintiff’s effort to raise questions about classification status is a red herring. As the government has explained (Mot. 15-17), even if Plaintiff could show that he declassified the records at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation. Again, Plaintiff offers no response.

    Plaintiff likewise fails to rebut the motion’s showing that the injunction is irreparably harming the government and the public. He emphasizes that the district court allowed the government to continue to use the records for certain national-security purposes. But Plaintiff cannot deny that the injunction is impeding the criminal investigation, which is itself an essential component of the government’s effort to identify and respond to the threats posed by the mishandling of records bearing classification markings reflecting their extreme sensitivity. And Plaintiff cannot show that he would suffer any cognizable injury from a partial stay.

    To Team Trump, all the talk about investigating potential crimes is yet another a shot across the bow. The phrase “crime-fraud exception” is not used, but it’s sitting right there between the lines.

    Most of all, though, what stands out are the numerous ways in which the DOJ calls out Team Trump for raising hypotheticals but not following through on making actual claims. For instance . . .

    Plaintiff asserts (at 10) that he owns other seized evidence, such as “personal effects.” . . . But he
    cites no authority supporting a claim for return of records that do not belong to him. [p. 5]

    Plaintiff implies (at 14-15) that the PRA gave him “sole discretion to classify a record as personal” before leaving office. But Plaintiff does not represent that he categorized any of the records bearing classification markings as personal. [p. 5]

    But Plaintiff does not explain why a right of access constitutes an ownership interest justifying a claim for return of property—or how he can invoke the PRA after failing to comply with it. [p. 5]

    That last one will leave a mark.

    • Scott Rose says:

      Note that Trump’s claim of having “sole discretion to classify a record as personal” is false.

      § 2201 3 of the Presidential Records Act defines the categories of documentation that may be classified as personal.

      An outgoing president does not have the power to classify any document whatsoever as personal.

      • earlofhuntingdon says:

        Exactly. If a record relates to a sitting president’s exercise of his constitutional duties, it’s a presidential record.

        Trump can’t make it a personal record by writing, “How much can I get for this?” on it with a Sharpie. Nor can he do it a box or truckload at a time. He has to do it document by document, a process Trump would never follow.

        The whole exercise ignores the fundamental issue that anything but a properly deemed personal record belongs to the USG and should be in the care and custody of the National Archives.

        • Tassy says:

          Just an aside… shouldn’t the government be searching the ENTIRE resort of Mar-a-Lago with a fine toothed comb? Why would they think they NOW have all the docs?

          • timbo says:

            And other properties controlled by the “Trump organization”, right?

            Here’s some things we do not know. We do not know if documents were turned over from other properties voluntarily. We don’t know if there have been other warrant searches at other locations. It’s not clear; Trump has made Mar-a-Lago the center point of his commentary and civil suit, etc, that’s all we know. DOJ would be avoiding and requesting that others avoid publishing these sorts of seizures and/or voluntary return of documents to USG if that’s happened as part of a national security investigation.

          • Yorkville Kangaroo says:

            According to the original search warrant they pretty much had free and unfettered access to Mar a Lago so they couldn’t go there again with another search warrant without probable cause.

            However, once The Donald attests that he has returned every last document this will likely be found to be untrue once NARA says that documents are missing at which time they could go to a Grand Jury again and get search warrants for not only MaL but also Bedminster and Trump Tower.

            If they find another document at MaL in a place they already searched another brick in the wall for obstruction.

    • Midtowngirl says:

      Yes! The same sort of sorting that is being litigated now is built into NARA’s instructions given to an incumbent president. Before the end of their term, they are supposed to ensure that documents claimed privileged are logged and stored separately. From what I recall they are allowed 4 subsets in that area, shosen at their discretion. They are also expected to maintain separate filing systems the length of the administration.
      Just like him to expect a payout/protection from a system he never contributed to, isn’t it?

  3. jeco says:

    US records only at MAL would be the most surprising document scenario to me. If trump moved some records from MAL to other locs after receiving the subpoena that would be like obstruction hari-kari.

    Apparently Habba searched all trump org squirrel holes looking for documents for NYS lawsuit (or at least attested that she did) and mentioned how neatly trump’s records were at MAL. A fair FBI Q for Habba, did you see any docs that could be US docs at any locations besides MAL. I’m sure that would get a long pause.

    FBI is obviously looking for originals but illegal copies of sensitive US docs seems like another fruitful area and I’m shocked FBI didn’t get search warrants for MAL based electronics given the deceptive, evasive behavior of trump and his Dream Team.

    • Rayne says:

      did you see any docs that could be US docs

      Too much weasel room in that and I hope the DOJ understands this. If she’s a true believer of the Big Lie, she’d think any documents Trump had were his personal property; more cynically, she might cling to this to avoid obstruction charges. This might be why so much Trump’s legal team has produced puts emphasis on him as 45th president while avoiding emphasis on his former president status.

      • jeco says:

        Thanks, good point – any documents or other items “marked” as US

        Habba is definitely way out there, she was the first to say FBI planted evidence on Il Supremo

        • Jeffrey Gallup says:

          Government documents should normally be easy to spot: they are on some form of USG letterhead and are from a USG agency or official.

          The only exception that occurs to me are diplomatic non-papers, which typically have the text of the message without any heading or footing or classification markings and are intended to be given to a foreign government. Sticky notes, scribbled legal pad notes and the like might also be USG documents but not clearly marked.

      • Howard Cutter says:

        Probably crazy scenario, but it is Team Trump we’re talking about – what are the odds that his lawyers wait until the appeals get before the Supreme Court on this and then they try to make the argument that he really won the election but was cheated because of fraud, so he’s still President and therefor has sole de-classification authority and possessory interest in these documents, not the illegitimate and illegal Biden administration?

        • Yorkville Kangaroo says:


          That’s not how SCOTUS operates and any attorney approaching the bench should be laughed out of court (if SC Justices actually laugh on the bench).

    • paul lukasiak says:

      indeed, based on Marci’s discovery that there were no news clippings dated after Nov 2020 in the boxes seized in August, its pretty much impossible to believe that other documents weren’t taken.

      And if/when those documents are seized, Trump will be left with a dilemma — if he claims that documents concerning the big election lie are “private”, then he loses the ability to claim that he was acting officially when he was engaged in various election fraud schemes. But if he claims that he was acting officially, then he loses any claim to retaining those documents.

  4. Amicus says:

    Now we wait. If the 11th Circuit believe these are urgent issues then they will write with some urgency. They now know that Dearie won’t require the DOJ to provide the marked documents for his review, and I doubt Cannon will remove him while this is before the court of appeals. Other than failing to note that the sworn declaration provides further proof of the USG’s ownership of the marked classified documents seized by the FBI, the DOJ’s reply pretty much covers the waterfront. The within same order, collateral order, and mandamus arguments are all ways for the 11th Circuit to address the totality of the relief sought, and the right standing finding would accomplish the same result. And yes, DOJ/USG very much wants to know who has seen these documents and what they did with them. If they treat this like they should, maybe they get wiretaps, maybe they already have.

  5. bg says:

    Will Dearie be the Archibald Cox of these times? My mother was a registered R until “the Saturday Night Massacre.” She changed her registration and never looked back.

  6. I Never Lie and am Always Right says:

    Soon we will know whether the 11th Circuit ascribes to the “logic” relied upon by those who say that Trump is innocent because he’s being investigated and Hillary is guilty because she’s never been charged.

    Judge Cannon’s rulings are not just wrong, they are corrupt. It’s almost as if she is outsourcing the writing of her rulings and orders to Steve Bannon.

  7. waban1966 says:

    Two questions:

    Is Cheney v. Federal District Court relevant here? It talks about mandamus being a proper avenue for appellate review of even clearly-interlocutory orders that raise constitutional executive privilege and separation of powers issues.

    This could matter not because of the intricacies of the law, but because as MTW points out, Trump’s strategy is always about power (not the law). And that delay is the tool he is trying to use here. Mandamus tends to have the feeling of super-urgency that is the way to combat that attempt to delay at any cost. And the new appellate jurisdiction arguments do have a big risk of allowing the courts to just avoid confronting the errors that Judge Cannon made. What matters is forcing the process fast.

    I’m also curious as to people’s theories on why the empty folders marked “classified” aren’t called out in coverage or maybe even the filings. It’s pretty powerful and easy for the public to understand that there are empty folders, and God knows what was in there and where it went. In fairness they are discussed and DOJ says they need to figure out what and where the contents are. But it’s not a highlight. DOJ knows what they are doing so I am wondering.

    • Troutwaxer says:

      I think my question is this: Are all the classified documents they found in their folders already, or are some of them folderless? If so, do the folderless documents possibly go in some of the folders the FBI found? Or are there excess folders? If so, how many of the folders they found don’t match documents which are without folders? In other words, how big is this problem?

        • Troutwaxer says:

          Hopefully the DOJ has a list someplace:

          Total Documents = X

          Documents Without Folders = Y

          Folders Without Documents = Z

          and is capable of doing the math. Whether they’re willing to discuss the results is another matter.

      • Jeffrey Gallup says:

        The empty folders could be important, or a dead end and a distraction. They’re used for carrying around classified documents, sometimes several at a time, but do not necessarily bear any evidence or markings as to what was in them.

        I’m sure that at one time or another I had a stack of empty “classified” folders that got separated from their document but went back to their place of custody. It’s sort of like asking what documents were in that stack of plain manila folders you have: maybe something, but maybe not. Just that these had classified in them at one time.

      • mamake says:

        And, where else did he “send” all the documents.

        Mark Sumner / Sept 22 / Daily Kos highlighted this:
        To Mar-a-Lago … or wherever you’re sending it. Trump follows this with another, somehow worse, statement: “when you send it, it’s declassified.” Even using the term “send” is an odd expression for something that was boxed up and hauled to his own office. All of this certainly raises the question: Where else did Trump send classified documents? [end of quote] Donald-Trump-claims-he-declassified-documents-by-thinking-about-it-but-that-s-not-the-worst-thing
        {Hope I put the link in correctly – break just before DT’s name.}

  8. bg says:

    Don’t the cover sheets have markings that would indicate what is inside based on time stamps and other info like which agency/agencies have given the documents their secret status? Or are they blank and the markings are inside on the missing documents? They must have an inventory of what went out but did not come back.

    • Zirc says:

      Markings on cover sheets? In my limited experience handling such documents, no.

      “They must have an inventory” Who is they? Trump was POTUS when he got them — if he got any after he left office we have even bigger problems. And the people around him either couldn’t or wouldn’t get him to follow rules. So, I suspect the normal tracking of classified material could have been dispensed with when it got to him.


      • bg says:

        Well, I assumed, perhaps wrongly, that TS and etc. docs are not just one original? So the agencies would have copies/originals of whatever was taken to the WH or wherever FPOTUS was at the time, and that there would be notations of what was delivered and when, for his consumption. And that if any were not returned they (the agencies or whomever gave him the docs) would have been noted. If there were no protocols before, I guess there would be now. Are these original one and only one of each? That would really be problematic in this case.

        • Sue 'em Queequeg says:

          I’ve been wondering about this too. There has been a lot of discussion on this site, fabulously enlightening to those of us with more curiosity than knowledge, indicating that federal-level tracking of sensitive documents is a complex process with many players and yet for all that it is also pretty buttoned down. If this is the case (and I don’t recall hearing any views to the contrary), wouldn’t someone, or a bunch of someones, somewhere in the government long since have figured out a) which documents are involved and b) which copies were found there among the different Floors de MaL and where they were supposed to be?

          One other noob and somewhat OT question: given all the possession-of-the-ball-type wrangling over who gets the original copies, if DoJ somehow had to surrender them, does Cannon’s injunction bar them from locating other official copies elsewhere within the government for their investigation and/or as evidence? In other words, do the various rulings sometimes apply to content and sometimes apply to physical documents?

            • Sue 'em Queequeg says:

              Thank you! BTW great to see you on Nicole Sandler. I can’t imagine how you find the time for everything but I’m so happy and grateful that you do.

            • Jeffrey Gallup says:

              In my experience, low-level classified documents are not carefully accounted for. But the TS SCI documents undoubtedly have control logs with signatures showing chain of custody right up to the President (maybe they don’t make him sign, but the staff secretary or military aide surely does. I don’t know where these control records go after the administration ends – the National Archives? the White House Communications agency? But as I recall, they have to be kept for a certain number of years.

          • RLHall says:

            I guess others missed it, but I love the Floors de MaL/Fleurs du Mal pun.
            Not a francophone, but seems you aced it!

            • Yorkville Kangaroo says:

              Not to be pedantic (yes to be pedantic) but ‘du’ mal.

              Just trying to add to the ‘high brow’ around here.

  9. Sela says:

    IANAL, but I doubt Trump’s jurisdictional arguments have any merit. It looks like the crux of Trump’s lawyers argument is that a decision to appoint an SM is merely a procedural decision during the course of a trial. Even if we accepted their arguments, this would be relevant for cases where the court appoint a special master without any injunction. In the case of Shakman v. Clerk of Cook County, the Magistrate Judge appointed an SM to investigate an issue. The 7th circuit ruled that this decision to appoint an SM is not appealable. Which is a reasonable decision. But there was no injunction involved there.

    It does look like a much more competent filing, and much better written. But the precedents the used are the kind of precedents a paralegal would find when the lawyer asks them “find any court decisions with the keywords ‘special master’ and ‘appeal’ in them”.

    • nedu says:

      You didn’t link to the decision that Trump cited on p.23 of his “September 20, 2022: Trump 11th Circuit response“. Instead, you linked to a later 2022 decision in that litgation, which refers on p.3 to the earlier 2021 7th Circuit decision as “Shakman VI“.

      Without delving too much further into Shakman VI, it does contain (in part III) a discussion of 28 USC § 1292(a)(1).

      And regarding your (apparent) point about the distinction between injunctions and consent decrees, it might be worth noting that in Shakman VI, the 7th Circuit does go on to say

      [W]e do have jurisdiction to review the magistrate judge’s decision denying the Clerk’s request to vacate the Consent Decrees. See id. at 1064-65 (explaining that the denial of a motion to modify a consent decree under Rule 60(b) is “appealable under section 1292(a)(1)”).

      (Hyperlink added–please verify.)

  10. Zirc says:

    Markings on cover sheets? In my limited experience handling such documents, no.

    “They must have an inventory” Who is they? Trump was POTUS when he got them — if he got any after he left office we have even bigger problems. And the people around him either couldn’t or wouldn’t get him to follow rules. So, I suspect the normal tracking of classified material could have been dispensed with when it got to him.


    • Jeffrey Gallup says:

      It could well be that Trump was not required to sign for documents – but every step up to then should be recorded and the last person signing for the document would be responsible for getting it back to the proper custodian. This person would either have to testify that they gave the document to Trump and never got it back or they did get it and somehow it disappeared on their watch. Either scenario is bad for the person who signed for the document, for the President, or both.

      • timbo says:

        These things are mostly irrelevant when one considers that the USG owns these documents, not Trump, and that Trump willfully took them with him. And you can bet that some of the A-C that Twitler is trying to claw back here might bearing on this very issue. And all the other issues that are arising from this investigation.

        And what I mean by that is >why did Trump need to take these documents with him when he left the White House<? What possible benefit would accrue to the United States for him doing so? There's the rub—for what and whose benefit were these government records moved to Mar-a-Lago after Twitler was no longer President?

  11. Former AFPD says:

    Marcy has linked to the report of Adam Klasfeld in Law and Crime, above. Klasfeld reports that TFG’s attorney, Chris Kise, was a registered foreign agent for Venezuela, while at his prior law firm. Klasfeld links to the foreign agent registration form which lists Kise. The date the form was received by NSD/FARA unit is shown to be 1/24/2020, just weeks after the insurrection. Wasn’t one of the MAGA arguments that the voting machines were being manipulated in Venezuela? That’s today’s laugh for me. For you foreign and national security experts, would this registration create a barrier to any sort of security clearance for Kise?

      • Former AFPD says:

        Oops. Off by a year on the insurrection. Apologies. However, interesting that Kise and firm appear to have been agents for Venezuela in 2020.

  12. Tom-1812 says:

    From a layman’s point of view, I’m puzzled why Trump still had so many boxes of classified documents in his possession 18 months after leaving the White House. Assuming part of his plan was to sell at least some of them, why weren’t more of the documents snapped up by adversarial foreign intelligence services long ago? I would think some of the intelligence in the files would have a limited shelf life, so Trump would want to sell them while they still had maximum value.

    Given there was such an intelligence bonanza sitting in cardboard boxes in Trump’s MAL basement storage room, why didn’t some foreign government send a team to steal it, either by stealth or by staging a fake terrorist attack and making off with the boxes in the midst of all the mayhem, the way the British did in WWII when they staged commando raids to try and seize the latest version of the German Enigma machine?

    I’m tempted to think that foreign enemies viewed the situation at MAL as too good to be true. “Do the Americans really expect us to believe that they’d allow a former President to sit on boxes and boxes of secret intelligence in his unsecured basement storage room for months on end? The files must be bogus and we’re not taking the bait,” I imagine them saying.

    I’d also like to think that American intelligence services foresaw that Trump would attempt to make off with classified files at the end of his Presidency, so they were careful to prepare files and files of phony, misleading information for him to truck off to MAL and then try to sell–unsuccessfully–to foreign agents. Perhaps that’s why Trump still had so many boxes of files on his hands when the FBI came calling back in August.

    • Just Some Guy says:

      “Assuming part of his plan was to sell at least some of them, why weren’t more of the documents snapped up by adversarial foreign intelligence services long ago?”

      Why would any foreign intelligence er… gatherers need to take the documents with them when Trump could just show them? Especially in the age of high-resolution phone cameras, the “where” of where the documents are is kind of irrelevant.

    • bidrec says:

      c.f., the Jonathan Pollard case, “During one period, Pollard had been handing over documents to [foreign agents] almost weekly, and [foreign agents] had been forced to rent an apartment in northwest Washington, where they installed a high-speed photocopying machine.”

  13. Ddub says:

    This is my speculation – for once delay won’t help TFG.
    The most obvious reason is that any delay overlaps the DOJ 60 day rule. So now a story that might have gone quiet will be constantly on headlines before a crucial election.
    The other is more structural. This story, like the Dobbs decision, starts bad and only gets worse.
    And the intertwined politics are bad, highlighting recklessness in national security, and judicial corruption. This erodes the ‘patriotic’ support he needs most, cultists aside.
    The open hand to Q in Ohio is pure desperation and an acknowledgement that violence may be his only out. In that sense January 6th was at least a partial blessing as a wake up to the FBI.
    I’m hopeful for the most mundane of reasons though – America doesn’t like losers.

        • bmaz says:

          Yes. There is no real “rule”. To the extent it even is a consideration, and it has been historically, it centered originally on election crimes as to putative defendants actually on the ballot. And the presumption was never that there simply could be no charge/indictment, but rather that it had to be staffed up to the Public Integrity Department (PIN) command, and then to DOJ Main. But Trump is not on a ballot. There is no issue whatsoever here.

          • gmoke says:

            You are fooling yourself with “Trump is not on the ballot.” In terms of legality, that is accurate. In terms of political reality, that is wildly false. DOJ knows that political reality and will do its best not to screw with it.

            Agree with you on the lack or a rule, more of a deferential practice but political reality overrules legal reality often and runs over norms and deferential practice as if they were the nothing they are.

            • bmaz says:

              “Political reality” is that Government has to do its job, and that includes DOJ. Adhering to a rule that is a straight up lie is not doing that. And people acting like it is not a straight up lie are not helpful.

              • gmoke says:

                That the government has to do its job is the administrative reality. Political reality, what is possible given the particular politics of this moment, is entirely different.

                I agree with you that the idea of a 60 day rule or deference to a President of former President who appears to be in clear violation of the law goes against the foundational idea of equal justice. However, the perception of public opinion, or politics, can weigh heavy on those scales whether we like it or not.

              • Yorkville Kangaroo says:

                I doubt anyone here is saying that the 60 day ‘rule’ should apply to The Donald. But there will be plenty of GOP operatives and office holders screaming it from the roof tops…ESPECIALLY if they lose.

                Unfortunately, perception is reality bmaz…ask Lee Atwater.

            • earlofhuntingdon says:

              Trump, and before him Bush/Cheney, went to great lengths to sell that approach. It’s time to return to our usual programming.

        • Tech Support says:

          Isn’t it the case that the “tradition” of establishing a quiet period around elections is also limited to actual candidates and elected officials? None of the potential suspects, targets, or witnesses being discussed meet that qualification.

    • emptywheel says:

      One thing I meant to suggest in my post is that DOJ is at least suggesting they’ll take action within that 60 days with this case, bc they have to on account of the urgency. That may not be charges, but it may be another search.

  14. jeco says:

    trump probably took copies with his non-secure cell phone or a burner phone he had bought for cash at Walmart and sold the copies not the original. Sent it by cell and created a jump ball for the leading spy groups, Russia, China, Mossad. Only Saudis got originals with their $2B “loan”

    • Rayne says:

      Let’s emphasize here you are SPECULATING offering zero evidence this happened.

      I seriously doubt Trump ever set foot in a Walmart, for example. He also complained loudly and often he’d been tapped; would someone who feared being tapped do as you speculate? For that matter, what’s to say his complaints weren’t warnings to his market that digitized content wasn’t available over networks?

      I fear for you if our resident cholla cactus has his spikes twisted today.

      • Coffae says:

        Second that fear. I still may have one of those spines lodged somewhere (looks down at seat cushion.) That said I wonder; why the delay that may only buy 45 days? December 1st is D-Day when it comes to The Special Master. Why the huge fight for this short space? Will he miss a certain date if incarcerated? Is he working on dispensing the 4 dozen docs that were in empty folders? Is he planning on asking Musk for a rocket ride to Mars?

          • earlofhuntingdon says:

            Trump has put himself between a rock and a hard case. He has amassed a fortune from the rubes and stashed it in various political action committees, under rules that allow him to pay personal as well as election-related expenses. Once he declares his candidacy, however, he’s no longer legally allowed to use it to pay personal expenses.

            • Molly Pitcher says:

              And he is facing a mushrooming cloud of billable hours across many legal cases. They all seem to be popping up at the same time.

              What a shame.

              • earlofhuntingdon says:

                I imagine Trump resents spending a single penny on lawyers to defend himself from lawsuits and prosecution. Imagining himself as a pauper in that regard would help make him a victim, and be useful in grifting off the rubes.

                However much he resents the expense, he appears to have squirreled away enough assets to pay any claim and to defend himself for decades. But given his decades of probable criminal conduct, any reduction in his and his family’s wealth would be a step toward justice.

      • Eastern Ash says:

        “I fear for you if our resident cholla cactus has his spikes twisted today.”

        Most admirable diplomatic and pointed phrasing.

      • jeco says:

        Hi, This isn’t a court room, there’s no evidence here. This was just a lighthearted scenario, although his use of an unsecure personal cell phone, during his term in office, drove his security crazy.

        I said “he had bought for cash at Walmart” meaning he had bought (for him) with cash at Walmart, not he bought for cash at Walmart. I couldn’t imagine even John Barron shopping there.

  15. L. Eslinger says:

    Judge Dearie pointed out that it’s the markings on the documents, not the content, that are important. And, after spending [just] a couple of hours diving down the rabbit hole of how the government identifies, controls, and tracks restricted access documents, I’ll state with measured confidence that, regardless of whether Trump waved his hand or used a Sharpie to scrawl “declassified” on any of the documents that he stole, without a formal trail and a concurrence by the originators and other authorities the documents ain’t declassified.

    What, exactly, is the basis of Trusty’s “need to know” claim? Either the documents remain classified as marked or Trump has receipts showing that he actually declassified them, the default being that they remain controlled. The general suspicion is that there is no basis for Trusty’s claim and that this is just another splatter of mud slung by Team Trump to stretch out time needed by the government to clean up the mess and focus upon the real legal issues. Team Trump is obstructing the prosecution of justice, but they won’t (perhaps can’t) be called out for it.

    • Thorvold says:

      I think Trusty’s “need to know” is because he can’t defend against the unknown. I doubt Trump had any sort of document inventory tracking system, so Trusty probably doesn’t know what the 100 documents are. This makes it impossible for him to generate the evidence that Dearie is asking for that “Document titled X dated Y was declassified by Trump on date Z”. He doesn’t know what Trump had. I think this is also some of the reasoning that they are complaining about the “detailed Inventory” not being specific. Because the Govt hasn’t provided him a line item list of document names, he doesn’t have anything to use as a basis for a privilege list.

      • Frank Probst says:

        This was my (non-lawyer) impression of what he was saying, too. Trusty’s “need to know” is so that he can sort the Insta-declassified documents from the non-Insta-declassified ones. It struck me as sort of a “greymail” attempt. Dearie wasn’t having any of it, and he went so far as to say that he hoped to get through this without even seeing the documents himself. My impression was that absent other proof, Dearie would consider a sworn affidavit from Trump saying that he’d declassified specific documents, but right now, nobody (including Trump) knows what to say he Insta-declassified, and no lawyer wants to try to submit something like that to the court, especially with a no-bullshit judge like this one.

        • earlofhuntingdon says:

          Trump is, as usual, attempting to abuse the legal process. But defrauding a federal court by submitting knowingly false material statements of fact would heap more trouble on both Trump and the lawyer who submitted them.

        • Paulka says:

          I believe part of the issue is that if Trump claims to have declassified only a portion of the documents, he will be admitting to the crimes of obstruction by not returning those documents that remained classified and the espionage charge of retaining classified documents. He has dug himself quite the conundrum there.

          • Nick Barnes says:

            The classification status of the documents is irrelevant to the most obvious possible obstruction charge, relating to the 2022-05-11 subpoena:

            – The subpoena demanded documents *bearing classification markings*.
            – Trump [Bobb/Corcoran] produced the Redweld folder containing 38 such documents, but retained over a hundred others.

            That’s obstruction. It’s irrelevant whether the documents were still classified, or in fact whether they had ever been classified in the first place. They “bear classification markings”.

      • L. Eslinger says:

        Having so far failed to find a written transcript of the hearing or an order, and going by the limited unique stories detailing what was said during the hearing, I am, at the moment, unaware of any Dearie request of such specificity (title, date of document, when declassified by Trump). Team Trump is claiming that the DOJ is lying about the documents seized being classified. Dearie responded that, absent proof from Team Trump that the documents are not classified, they are classified. Team Trump can’t even outline the process used in the claimed declassification.

        Trump did have a document tracking system: it’s built in to the system for all official actions of the executive, including receiving and declassifying documents. Trusty could make a request of the archives to generate a list, the process of which is covered by an executive order. What’s not tracked is what didn’t happen in any official procedural way. A problem here for Trusty is that such a list would show that Trump did not properly handle classified documents.

    • matt fischer says:

      Trusty is well aware that Team Trump has no need to know, but he will continue to posture on the “basis” that FPOTUS remains POTUS, because that is the delusional foundation on which all of Trump’s flaccid arguments rest.

    • Bruce Olsen says:

      He must know they will never be ruled as his, so most likely this is all an attempt to get those documents back in his hands so he can continue with whatever his plan was before the DoJ so rudely interrupted him.

    • Arteberry says:

      Trusty is claiming “need to know” to more effectively defend Trump. That’s not at all what Judge Dearie is talking about. Dearie is talking about “need to know” from the national security perspective and the recognized protocols of the classification system. Trusty would never have a need to know such super-sensitive information from the national security frame of reference. If Trump is indicted and the government would seek to use at trial a SCI/need to know document—extremely unlikely for several reasons—then the system has methods of accommodating Trusty’s ability to defend Trump.

      • matt fischer says:

        Defend Trump against what? This is a civil action in which Trump is the plaintiff. (And, yes, I understand you were making a different point.)

      • earlofhuntingdon says:

        Yes. Trump’s personal needs are irrelevant to whether he has a need to know national secrets in order to protect national security. That’s one reason EP is meant to be wielded only by the constitutional officer chiefly responsible for protecting that national security. By design, Trump is fudging the distinction. L’etat c’est moi and all that.

      • Arteberry says:

        Read “represent” for “defend.” At the moment Trusty is trying to prosecute a civil action and take advantage of all the lunacy of Cannon’s order. In due time, Trusty or someone will be defending Trump in a criminal case. Trusty does everything but directly acknowledge that. The only point here is that the “need to know” Dearie speaks of has nothing to do with Trump’s right to effective representation in this civil matter.

        • matt fischer says:

          Yes, “everything but directly acknowledged that,” per Josh Gerstein:

          Trump team initially took up spots on judge’s right which appears to be defense table. A clerk asked them to move to plaintiff’s table. Trump is the plaintiff, sort of, really just the movant since he never filed an actual complaint. Case was assigned as a suit though

  16. John Paul Jones says:

    When I read this passage – “But they are suggesting that [executing more search warrants] may be a step they would take — before such time as the Special Master process ends in November — to try to hunt down the contents that used to be in those empty folders or other files Trump leaked to people not cleared to have them” – I keep thinking of Kash Patel, and I wonder if he is at least one of the persons to whom classified files were given or disclosed.

  17. Troutwaxer says:

    Leticia James has just announced a gigantic lawsuit against the Trump organization and its leadership for fraud against both lenders and New York’s States tax collector. The “relief” she’s asking the court for is essentially the death-penalty against the Trump Organization, (at least in New York.) She’s also reporting Trump/Organization/Trumpkids to the Feds for similar crimes… Any thoughts from Marcy or some of our legal eagles?

    • bmaz says:

      Letitia James is basically useless. She has no criminal jurisdiction whatsoever inherent in her office, this is a civil case that could take years to play out. Nice little PR announcement I guess. Her criminal referrals are worthless. SDNY and IRS have had this information for years.

    • P J Evans says:

      More here:

      The suit claims that Trump has regularly inflated the value of pretty much all of his assets—from Trump Tower to Mar-a-Lago to the former Trump hotel in Washington, D.C., in order to secure favorable loan and tax arrangements. For example, the suit alleges that Trump has valued Mar-a-Lago as high as $739 million, when it should have been valued at $75 million.
      [tweets snipped]
      Trump used that higher valuation, James alleges, ”based on the false premise that it was unrestricted property and could be developed for residential use, even though Mr. Trump himself signed deeds donating his residential development rights and sharply restricting changes to the property.”

      • Commentmonger says:

        FYI,, this is exactly the same scheme for the golf course property in NY. He valued the property as a potential single-family development (of very high-end homes), yet the zoning would not allow that. AND, the plan had previously been proposed and rejected by residents and municipal authorities who would need to approve. So even IF the appraisal took potential change of zone prior to redevelopment into account… the discount would have to have been very large to acknowledge the risk.

        • P J Evans says:

          He did things like inflate the area of apts – a 10K-square-foot apt would be reported as 30K square feet, for sales, and something like 7K square feet for taxes.

    • Bruce Olsen says:

      Irrespective of any legal impact on Trump, it’s valuable for persuading the small number of persuadables that still exist. I’m glad it happened before the midterms.

      Competing with Trump’s power game by following the rule of law is enormously important.

    • MB says:

      In addition to this NY state lawsuit, AG James also announced that they have referred criminal violations of: 1) false statements to financial institutions and 2) bank fraud both to SDNY and IRS, so add that to the bucket of crimes incidentally arising to this state civil investigation…

      • earlofhuntingdon says:

        Big or small, the issue is whether they relied on his false statements when making lending decisions.

        • Molly Pitcher says:

          James said in the presser today that they are now investigating Cushman & Wakefield who provided Trump Org real estate valuations, and Deutche Bank who provided, at least a conduit for, loans from…somewhere.

          • earlofhuntingdon says:

            Good and not surprising: Trump was aided and abetted in his crimes for decades by cooperating vendors.

            But an important element of the suit against Trump is that – as he does with legal, accounting, and political advice he doesn’t like – he ignored professional valuations and made up his own.

            That focus will have important collateral effects on any jury. Subordinates in a small, family run company do not take such high-risk and abusive positions and keep their jobs. Only the head of the family can get away with it.

          • Rugger9 says:

            Deutsche Bank apparently has leverage being put on them by Putin, recall that Individual-1 sued DB year ago for a deal that went sour. So, instead of a sanctioned Russian bank providing the money, DB is acting as a front.

            DB’s also run foul of the EU regulators IIRC.

            The other thing to consider is that once James finishes her work here, anyone that made a decision and lost $$ based on the valuations can sue for that fraud in a civil case. It’ll be death by a thousand cuts for the whole empire with any decent luck.

        • Raven Eye says:

          Relying on them, and knowing about them are two different things.

          I suspect that at least of few financial institutions were aware of Trump’s scamming, but for some reason (financial arrogance?) kinda turned a blind eye to some of that (DB?). It’s a form or risk management that’s pretty darn risky.

          • bidrec says:

            When it is capital flight risk is relative. There is less risk in overpaying for American real estate than in keeping your money at home.

      • Bruce Olsen says:

        Shameless apologism, and completely irrelevant,

        He simultaneously over-and under-stated values on the same property multiple times, sometimes by an order of magnitude or more. That’s fraud.

        • bidrec says:

          So do other real estate developers over/underestimate. I have sympathy for the tax department but not for banks. The 58 story Trump Tower is 664 feet tall. The 50 story GM Building a block away is 705 feet tall. If the banks can’t do simple arithmetic I have no sympathy.

          When purchasers over pay as part of capital flight that is a different crime, a fraud against the country the capital is flying from.

  18. nord dakota says:

    It helps me to read something (DOJ filing) that has clarity. It also occurs to me that for the plaintiff to claim any steps to “classify” material as “personal” is strikingly oxymoronish.

  19. Bruce Olsen says:

    Some of the talking heads last night were speculating on why Trump’s lawyers (in the latest filing) were essentially inviting DoJ to file a case.

    As plaintiffs Trump’s lawyers know (or have just figured out) they need to assert the documents aren’t classified (even though it’s not relevant to the matter) which is something they likely have no intention of doing (both to save their licenses, and also because they can’t possibly prove their assertion).

    Now, if they had filed nothing with Cannon, and instead waited for DoJ to file, the burden of any proof about document status would be on DoJ as plaintiffs. There’s no real case there, but I assume it could have dragged out the criminal case and allowed further water-muddying on Trump’s part.

    But because Trump’s impulse control seems, ummm, limited at best, he filed with Cannon and unwittingly accepted the burden of proof. I’m sure they never anticipated Dearie would do his job and not even question the government’s assertion in the absence of a case from Trump.

    So once Trump filed with Cannon, the DoJ must have realized that Trump was volunteering to clear away the dispute over classification in a way that was unfavorable to him. All they had to do is follow the process.

  20. brucefan says:

    The foundations of Trump’s legal house of cards are the theories that (1) PRA somehow supplants/renders inapplicable all other laws regarding secret USG records and (2) Judicial Watch v. NARA establishes that a President has unfettered discretion to designate a document as a personal record, even if it is clearly a presidential record by the PRA’s definition.

    There is no controlling authority establishing either theory. The theories themselves are preposterous, but to build a case on them with no controlling authority verges on malpractice. For the judiciary to grant relief based on such a case is … [“beyond preposterous” – I’ll stop there].

  21. canton says:

    I very much appreciate turning to this site for the rigorous research and informed commentary. One question I had about the “claims” about declassification. Absent any witness receiving instructions from the former president, or other forms of evidence, wouldn’t Trump himself need to take the stand to claim declassification? And if so, would that also require that he subject himself to any other questions the government might ask him?

    • Yorkville Kangaroo says:

      He will, at least, need to attest to it in a form acceptable to the court. However, he’ll also need to attest to what EXACTLY he ‘declassified’ and how. The fact he probably does not know the half of what the FBI picked up in it’s trawl through the swamp at Mar a Lago won’t help much since, if he doesn’t SAY he declassified it, it can’t actually BE declassified.

      This is why his lawyers are trying to find out EXACTLY what was in the boxes.

      • timbo says:

        There’s also a possibility that Trump and/or his lawyers are interested in finding out what >was not in those boxes< seized at Mar-a-Lago in August. That is, if Trump's side knows that at one point certain NDI related documents were there and that DOJ didn't find them in the seizure, that could be key information too… particularly when one is trying to plan a defense ahead of criminal indictment(s), etc.

        One scenario of serious legal jeopardy might be what happens if you were known to be obstructing the return of sensitive government records, records provably known at one point to be in your possession (as the last known controller) but then it turns out you don't have some of those records when the government comes to collect…

  22. mospeck says:

    we for sure got our own troubles..sry Marcy, OT, but CNN just reported that Aviasales is selling 2 stop 1 way Aeroflot tix from Moscow to Yerevan, Armenia and that they were going like hotcakes for only $4241 US.
    Like the young Russian refusenik joes we had our own same similar troubles back in the day with Vietnam war, tin soldiers and nixon coming, the long goodbye, etc. The bad part is it’s bought by blood, but the good part is they got their own 1960s coming right up. And it only happens 1 time

    • ScorpioJones, III says:

      My Alma Mammy plays, of all schools, Kent State on Saturday. I’ve had CSNY running in my head for days, so I understand your point.

    • P J Evans says:

      IIRC we had it a little easier – it was possible to get out of the US. Or otherwise to avoid getting drafted. (You didn’t have to worry about being taken right off the street, for one thing.) One of my brother’s classmates did two years for refusing induction, one went to the Coast Guard Academy (and made it a career), my brother appealed and got CO status (it’s real), and we knew a guy who went to Canada.

  23. Doug Kane says:

    Question for the appellate experts here. I see in the docket that there is a NOTICE OF CIP FILING DEFICIENCY to Christopher M. Kise for Donald J. Trump. In that notice, it states “If you are an appellee or respondent, no action will be taken on documents submitted until the CIP deficiency is remedied. See 11th Cir. R. 26.1-5.” I see that rule 26.1-5(a) says “The court will not act upon any papers requiring a CIP, including emergency filings, until the CIP is filed and the web-based CIP is completed, except to prevent manifest injustice.” Is it possible that the panel will delay taking action on resolving the motion until Kise remedies the CIP filing deficiency? Or is it possible that they will act expeditiously without even considering Trump’s response? Or will they just ignore the deficiency in order to prevent manifest injustice?

    • Badger Robert says:

      The Court of Appeals makes the basket of classified documents available, pending appeal to the Sp Ct. The appointed specialist can put more documents into the basket. Judge Cannon can now assert, its out of her hands.

      • earlofhuntingdon says:

        Per curiam, apparently including two Trump appointees on the three-judge panel.

        No classified documents to the SM – Dearie saw no reason to review them – and the DoJ can use the classified docs in furtherance of its criminal investigation.

        Now we’ll see whether Trump’s strategy of delay leads him to immediately appeal to the S.Ct.

        • Rugger9 says:

          En banc is apparently out due to the emergency nature of the appeal. I think SCOTUS will intervene since Alito, Thomas and ACB will definitely vote for cert and Kavanaugh will likely join in. However, I don’t think Roberts and Gorsuch would go along in a decision since this ask from Individual-1 strikes at how courts operate and both Roberts and Gorsuch have been defenders of the process in the past. I may be wrong, though.

          If SCOTUS intervenes, then this will be pushed beyond the election to get the delay Individual-1 wants, however, the Ds can hammer home the idea of GQP lawlessness. All they need to ask is whether the voters want to be screwed by Individual-1 and remind them TFG pardons ZERO J6 rioters when he had the chance. I’m pretty sure some will not like being made into patsies.

          • blueedredcounty says:

            The Kyle Cheney twitter thread had this tweet:
            Steve Vladeck
            Eleventh Circuit Rule 35-4 expressly prohibits en banc reconsideration of panel rulings on applications for stays.

      • earlofhuntingdon says:

        “[N]one of the Richey factors favor exercising equitable jurisdiction over this case.”

        Judge Cannon’s distinction between allowing the USG to use the classified documents to investigate its national security concerns, but prohibiting its use of those documents to further its criminal investigation is – “untenable.”

        “The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree.”

        Plaintiff Trump has no possessory interest in the classified documents.

        • WilliamOckham says:

          Doesn’t the analysis of the Richey factors suggest that Cannon’s intervention in the case was baseless?

        • earlofhuntingdon says:

          I think it does, but I don’t think the DoJ challenged her equitable jurisdiction in its appeal.

          I would guess these 11th Cir. judges have opinions regarding more of Cannon’s decisions, but refrained from giving them unless and until they properly come before them on appeal.

      • njbill says:

        Only active circuit judges can rehear a case en banc. The 11th Circuit has 11 active judges (W, Clinton, Obama (3), Trump (6)).

        Assuming the Clinton and other two Obama appointees would vote to affirm the panel decision if the matter were to be reheard en banc, Trump would still lose at least 6-5.

  24. Chairborne Nam71 says:

    Classified defense info re declassified report 2008 from Internet Archive. I found the reoport while searching for info on Cam Rahn Bay, Vietnam where I was in the US Army 1971-1972.

    The following text is from the report’s cover page:
    “Declassified By AF/HOH IAW E.O. 12950 (Amended) Date: 20080718 Approved for Public Release”

    At the left bottom of the page is a text box with the following:
    “SPECIAL HANDLING REQUIRED NOT RELEASABLE TO FOREIGN NATIONALS The information included in this document will not be disclosed to foreign nationals or their representatives.”

    At the bottom right of the page is a text box with the following:
    “SPECIAL REPORT Group-1 Excluded from automatic downgrading and

    At the very bottom are the following:
    A label marked: “K717.0414-24 c. 2 [copy 2] a large bold printed label: “20080910335
    and the text at the very bottom of the page: “(This page is UNCLASSIFIED.)”

    The fourth page is a letter with the following text:

    ” (1) Attached is a SECRET NOFORN document. It shall be transported, stored, safeguarded, and accounted for in accordance with aplicable security directives. SPECIAL HANDLING REQUIRED, NOT RELEASABLE TO FOREIGN NATIONALS. The information contained in this document will not be disclosed to foreign nations or their representatives. Retain or destroy in accordance with AFR 205-1. Do not return.
    (2) This letter does not contain classified information and may be declassified if attachment is removed from it.”

    This was 37 years ago and not sure what has changed.
    “retain, or destroy but don’t return”

    The report was 97 pages and the distribution list went to over 200 units/offices/

    The stamped in all caps bold said: UNCLASSIFIED at the top and bottom of each page.

    Were the MAL docs from DOD components and IC components? And why were all these docs from the White House. Who in the WH would have been in charge of classified docs? I had to sign some legal docs at my attorneys with a blue pen since
    a black pen could look like a photocopy. Did the MAL docs have cover letters and
    distribution lists inside?

    • Jeffrey Gallup says:

      Take a look at the photo of documents found at Mar a Lago. From their cover sheet markings, many of these are pretty clearly intelligence community documents. Those with markings like SCI, SI/TK, HCS are probably Intelligence Reports from places like CIA, DIA, NSA, or National Reconnaissance Office (NRO). The Cover sheet would have no identifying markings except for the classification. The underlying classified document might (but not necessarily) have a cover letter. It is likely to be a memorandum from the originating agency (maybe naming an actual person), and the addressees, which could be the White House and other agencies or specific individuals in the White House or other agencies. There will also usually be a subject line (maybe classified, maybe not) and often a summary paragraph. The classification will appear at the top and bottom of each page and notations like NOFORN and ORCON can also appear. My favorite was UNCLAS EFTO FOUO, meaning unclassified encrypted for transmission only for official use only, which I saw the army frequently using.

      If the document is highly classified, it would undoubtedly say return to ….,
      the document custodian. I’m not sure who that would be in the White House. The Vice President’s office, I’ve read a regulation saying there is a VP security office charged with responsibility for classified documents. But for the President I don’t know – I guessed the White House Communications Agency (staffed by military personnel) for any documents transmitted electronically. But would welcome comment, especially from any previous White House/NSC denizens.

  25. Jeffrey Gallup says:

    In my experience, low-level classified documents are not carefully accounted for. But the TS SCI documents undoubtedly have control logs with signatures showing chain of custody right up to the President (maybe they don’t make him sign, but the staff secretary or military aide surely does. I don’t know where these control records go after the administration ends – the National Archives? the White House Communications agency? But as I recall, they have to be kept for a certain number of years.

    • Peterr says:

      The White House Office of the Staff Secretary is responsible for (among other things) the flow of people and documents in and out of the President’s view. Part of the OSS is the Office of Records Management, to whom the day to day task of keeping track of all the documents falls. Among other things, they keep a log of what documents were presented to the President and what happened to them afterwards (filed, referred to some other office for action, etc.). These logs are to be turned over to NARA like all other federal records of an outgoing administration.

      Note that from December 18th to January 20th, there was no White House Staff Secretary.

      Derek Lyons had been the Staff Secretary until he resigned on December 18th, and it appears that no one was named to replace him, even in an acting capacity. This only added to the chaos of the post-election transition within the WH, especially when it came to tracking documents.

      • Jeffrey Gallup says:

        Thanks for your enlightenment on White House document control. I hope the absence of a staff secretary does not mean the custody of highly sensitive documents is muddled at the point before they reach the secretary. I can hardly imagine a military courier, Records Management person (these are professional, not political, right?) or communications person just dropping off TS/SCI documents on random someone’s desk and saying “No signature required! Where the recorded chain of custody ends, the fun (and the interrogation) begins!

        • timbo says:

          The White House has a coordinated daily briefing. I’m guessing that there’s a process for bringing classified documents in and out of such briefings, through Nations Security Advisors office, NDI, State, etc. More generally, coordination of the briefings would be done by Chief of Staffs office. And that process undoubtedly included document control of some sort—ideally, anyways.

    • Christenson says:

      That was quick… and the opinion is narrow and thorough, but grants basically every DOJ point.

      Here’s one that I have been noticing: I get the impression team Trump seems to have no real idea what is in any of the seized boxes, and probably not even in the ones they turned over earlier, what with the chaotic mixing up of things. I’m speculating if some of the 11000 other documents might be classified but separated from their classification folders/cover sheets, or if the preliminary filter team would have picked up on that already.

      • BobCon says:

        I suspect the lack of full knowledge is a sign of compartmentalization within Team Trump and an effort to maintain deniability for Trump himself.

        I’m not sure how it stays sustainable, and may be a sign he’s headed toward a totally PR and politcal defense effort, not a legal one.

        • Max404 says:

          I agree. It’s the Sergeant Schultz defense. If he does not even “know” what is in the boxes, how could he have sold any of it ? But the missing contents from the empty folders ….

      • Jeffrey Gallup says:

        Any properly classified document prepared by an agency would have the classification top and bottom of every page, including any other restrictions like NOFORN or ORCON. The FBI should spot them very quickly, even if the cover sheets or folders are separated from them, since they would still require appropriate storage and clearances to access.

        Now, I could imagine the White House preparing documents and not putting the proper classification on them….

    • earlofhuntingdon says:

      Thanks. The decision was a succinct, well-written, traditional, and objective legal analysis.

      It was also a subtle but direct rejection of Cannon’s position on a narrow set of issues, and a shot across the bow should she continue in that vein regarding other issues. It refused, for example, to adopt Cannon’s outrageous, “I don’t believe you,” position regarding the classification of government documents.

      It also dismissed Cannon’s concern about leaks – implying that they would inevitably come from the government – by observing that the government’s purpose in this investigation, and its position that it not be forced to disclose the contents of the classified documents to the SM or plaintiff’s counsel, was precisely to avoid further unauthorized disclosure.

      • Peterr says:

        Part of the reason it was succinct and well-written, as well as the reason it was issued so quickly, is that the DOJ filings were succinct and well-written. In many places, the 11th Circuit simply quoted the language of the DOJ and said “Yep, that’s right.”

        In addition, the 11th Circuit’s job was made easier because the DOJ supported their contentions with facts and sworn testimony, while Team Trump offered neither facts nor sworn testimony. The sole exception to the absence of sworn testimony was the June affirmation that all classified materials were turned over — and we’ve all seen how well that held up under scrutiny.

        • earlofhuntingdon says:

          Most federal appeals’ courts are also well-staffed with talented clerks, who tend to do the prep work, such as verifying and/or critiquing the DoJ’s arguments and citations, and comparing them with, in this case, those of the plaintiff appellee.

          Appeals court judges are generally more experienced and/or talented than district court judges. And their focus is on the correct analysis of the law, rather than also having to weigh personalities, and a mass facts and procedural rules.

        • Puriya says:

          IANAL. Trump’s filings and Judge Cannon’s writings made my head hurt. Given my limited experience, I was ready to believe that conservatives do not know how to write. But this 11th Circuit Appeals court ruling is really a pleasure to read.

    • RJames says:

      IANAL but it looks to me that Justice Cannon just got spanked by the USCA. Is it common for the term “abused its discretion” to be in these types of opinions?

      • bmaz says:

        Yes, in fact it often a standard. But very much not what you want to see on the other side of things, or if you are the judge.

        • Christenson says:

          Appellate opinions quite frequently explicitly state that they are reviewing something under an “abuse of discretion” standard. They can also review under a “clear error of law” standard, and they may or may not review something “de novo”.
          The smackdown is that every factor of every test weighs in favor of the government position, it’s per curiam (no dissent), including 2 not highly-regarded trump-appointed judges, and it’s out in about 30 hours — it’s rare for courts to move at that speed. There’s also that disbelief of the Trump position that anything was ever declassified.

      • Peterr says:

        But you are not wrong in saying that the 11th Circuit spanked Judge Cannon. As Ken White (aka @Popehat) noted in his tweet thread on this ruling, “/8 By the way, this 11th Circuit order is not gentle. It’s a bit of a beatdown. It’s also quite nicely written — clear and easy to understand. Worth a read.”

        For his more brutal summary take, check out the last tweet in that thread.

        (Note: she is not “Justice” Cannon – the honorific “Justice” instead of Judge is used only to refer to the 9 members of the Supreme Court)

    • Literay says:

      The first use of “her” in the opinion struck me as a warning to Judge Cannon regarding the release of classified information. It is used several times afterward, in a context that could not be construed as a warning. Is the pronoun “her” commonly used in court documents?

        • Literay says:

          Thanks for the answer. I have only recently read actual court documents because of the issues of our times. The tenor as I took it was an unusually strong rebuke to the district judge. While narrowly addressing the specific issue before them, it seemed they went out of their way, at least a bit, to suggest the larger case is being improperly adjudicated (pardon if this is the wrong term).

      • Rayne says:

        There might be a more innocuous reason for the use of “her” three times in the text; every use of “he” across 39 times is a reference to Trump. The use of “her” distinguishes a separate individual though it could also warn Cannon (or other women involved who may have released classified information).

        It’s interesting this document only uses Trump’s name twice and one of those uses is in the cover. He’s referred to as the Plaintiff 97 times in the document, only once as the former president. It feels like they have a handle on the identity games being played by Team Plaintiff.

        I’ll point to Trump’s weird interview tonight in which he referred to himself in the third person and also expressed difficulty referring to himself as “former” president. It’s hard for an untrained person to tell if this is conscious identity games or unconscious behavior driven by his narcissism.

        • John Paul Jones says:

          Don Lemon played two little clips from that, one where Trump (again) claimed he could declassify stuff just by thinking declassificationary thoughts, and t’other where he said all his statements of value carried a disclaimer on the first page, so if any lender was deceived it was their problem for taking him at his word. If I had a boggle left in my mind after, what is it, six years of Trump, that would’ve done removed the last one.

          • notjonathon says:

            There’s an old saying for what worked for Trump:
            If I owe the bank a million dollars and I can’t pay, I’m in trouble; if I owe the bank 100 million dollars and I can’t pay, the bank is in trouble.

    • timbo says:

      Thanks much for the link to today’s granting of a partial stay! It’s good to see that the USG doesn’t have to stop investigating here just because a partisan hack has gotten involved on behalf of Team Twump.

      Here’s what stood out to me as the smack down paragraph from today’s appeals panel ruling:

      “Here, the district court concluded that Plaintiff did not show
      that the United States acted in callous disregard of his constitutional
      rights. Doc.No.64 at 9. No party contests the district court’s
      finding in this regard. The absence of this “indispensab[le]” factor
      in the Richey analysis is reason enough to conclude that the district
      court abused its discretion in exercising equitable jurisdiction here.
      Chapman, 559 F.2d at 406. But for the sake of completeness, we
      consider the remaining factors.”

      Frankly, I’m happy to see that Cannon’s wonky nonsense here is being noticed and mentioned. Further down the word “red-herring” is used to describe some of the nonsense from Trump’s lawyers with regard to so-called ‘insta-declassification’. More gold.

      I shall now continue reading apace, a smile on my puss. Hopefully it doesn’t say “Just kidding!” at the end?

  26. earlofhuntingdon says:

    The NYT’s headline writers continue to get things fabulously wrong.

    This is wrong: “Court Restores Justice Department Access to Mar-a-Lago Files.”

    The 11th Cir., instead, restored DoJ access to the classified documents only, about a hundred of them, but it’s what the DoJ asked for.

    • timbo says:

      Is that byline changed yet at NYT? The East Bay Times went with an altered byline for the subscribed NYT article that was more accurate.

  27. ScorpioJones, III says:

    Unfortunately, even at the NYT, headline writers may or may not understand what the story says beyond the lede.

  28. Raven Eye says:

    Stepping back and considering what’s happening in Trump’s Tent after today’s events…

    1. The ketchup hit the wall.
    2. What I’d give to be a fly on that wall, listening to Trump’s legal teams spinning the news.

    (Going forward, I’ll try to use “When the ketchup hits the wall” more often. It sounds more civil than “SHTF”, and will really annoy any MAGA types I come across.)

    • P J Evans says:

      It’s also about as messy as dropping the container of salad dressing that came with the single-serving bowl, and having it flip onto the floor rather than into the salad. Gaaah! (It was Caesar dressing.)

    • Rayne says:

      Ugh. I’ve only seen a few snippets, afraid I’m going to have to watch that entire dumpster fire. Far too many comments in my timeline about how coked up he appeared, wondering if that interfered with his already weak impulse control.

      ADDER: good gravy…

      • Peterr says:

        Remember: the PAUSE button is your friend. Just because Trump dumped all that nonsense in one long take doesn’t mean you can’t hit PAUSE, get up from your sofa, walk around, splash some water on your face, and otherwise do what needs to be done to tend to your own mental health before resuming your viewing.

        I’ll just wait here for you to report back, wondering not so much what Trump had to say but how Hannity reacted to the inconceivable crap being spewed.

        • Rayne says:

          I can’t do it, I can’t stomach that tangerine twatwaffle’s voice, invokes a visceral response. I’m plowing through a few threads from folks who covered it, though, little snippets at a time. Like this one:

          • Peterr says:

            I agree with your take on the look on Hannity’s face. The photo needs a thought bubble that says “Did he *really* just say what I think he said?”

          • Yorkville Kangaroo says:

            Kinda like the look he gave when Cruz told him De Santis broke the law by flying asylum seekers to Martha’s Vineyard.

    • Raven Eye says:

      Oh my. That interview clip is amazing. Declassify something by thinking about it…And maybe the FBI and/or NARA was looking for Hillary’s emails.

    • timbo says:

      That’s a crazy short clip from the interview…

      Twitler is a grifter, plain and simple. He’s throwing stuff at the wall of public opinion, trying to see what takes hold and can give him an out, some political leverage. “NARA is a radical leftwing group” isn’t going to stick very well. From there he falls into even more gobbledyguck…”Hillary emails!”, “Russia, Russia, Russia!”, his old standards to get his fading star burnished up a bit. He also gave out his criminal defense theory of the case—Trump “implicitly” declassified stuff when he took it with him from the White House in Jan 2021? Guess I’d have to watch the whole interview to see how desperate he is getting here. Also, have to watch to see if he attacks the 11th circuit panel already…only a matter of time if he hasn’t?

      Unless there’s proof of declassification then I’d say that theory ain’t going to fly easily in a thoughtful court, although one can see that at least one federal judge has already been willing to try to give Twitler the benefit of the doubt in startling ways. The good news is that today’s 11th Circuit panel seemed skeptical of a host of “unique” claims and ‘ghost assertions’ within Team Trump’s civil lawsuit attempt to slow down DOJ’s criminal investigation, not just the one thing they were tasked with issuing or denying a stay about.

  29. Naomi Schiff says:

    I’m feeling a little regret that Dr. Wheeler’s time zone is asleep, thus will be late to the festivities. What a relief.

    • puzzled scottish person says:

      Late to the festivites, indeed, but what great news to wake up to. I shall go off to work singing today :-)

  30. Doctor My Eyes says:

    I can’t believe how relieved I am about that ruling. Jeez, it’s so hard to know what’s going to happen these days. The range of possible behaviors from institutional actors has expanded to a distressing extent since the Trump phenomenon. Quite unsettling. All of a sudden, a reasoned opinion from Trump judges. Thank god the corruption is limited, at least so for. I have no idea what determines whether judges or politicians will do completely insane things that attack the core of our political system or will seem normal and reasonable. Anyway, what a great relief. I’ll enjoy this until the next great scare. It says a lot that we can’t be certain how SCOTUS would rule on Cannon’s absurdities.

    OT but weird. A unanimous Senate resolution specifically mentioning Trump’s situation and condemning attacks on the FBI is getting almost no press. Seems like a pretty big deal to me, both because it happened and because such a thing was called for in the first place. “Now, now, let’s not have former presidents comparing the FBI to the Gestapo.” Interesting times, indeed.

  31. Jeffrey Gallup says:

    That the State Department overtly obtained publications overseas more than 70 years ago hardly seems a secret worth reclassifying. There may be aspects of such procurement that might be validly classifiable – what kinds of publications are sought by which USG agencies, with what objectives. This reclassification project seems overdone and a waste of time and money.

    • timbo says:

      What the heck are you referring to specifically? And what does that have to do with the topic at hand?

      The topic that I see here is that an ex-President took government records, including NDI, with him when he went home. How would him doing this strengthen our national defense? Why would the US as a whole benefit from him doing this? And that ignores that doing this broke a number of laws…particularly when he appears to have ignored court orders to turn these records over to NARA, the USG agency tasked with maintaining these records >by law<.

      • Ravenclaw says:

        Sounds like what EW calls the “frothy right” (not to say trolls) are trying to leverage the fact that many government documents are classified that really don’t need to be, and once classified they stay that way unless an onerous & time-consuming process is launched, into an argument that the top secret documents T***p stole and hid are “no big deal.”

        • timbo says:

          Plus there are non-obvious reasons why reclassification of totally innocuous documents and records might occur; intelligence and counter-intelligence operations can be much more nuanced sometimes than folks realize. It’s not just about the information value of a particular record sometimes, but more about whether someone else, a foreign government perhaps, is found to be interested in something that we think (or know for sure) is innocuous.

          The purposeful creation of needles in haystacks is not a new thing in intelligence circles is what I’m saying. And all the folks yammering about all the wasted money and such from “stupid and needless reclassifications! It’s already in the public domain for heavens sake!” might not comprehend how some intelligence operations work. For many folks not in or not qualified to be in discussions of intelligence operations (I mean not all Intelligence personnel are bright bulbs, right?), subtlety goes over their head pretty quick.

  32. Tom-1812 says:

    “If you’re the President of the United States you can declassify just by saying it’s declassified, even by thinking about it … ” The Lamont Cranston Defense.

    • timbo says:

      My favorite retort to Trump’s and the Twisserling on this one is that this means that Biden can reclassify it then “simply by thinking about it”. Unless, of course, they actually still believe that Trump is still somehow legally President? And, if the latter case, they’re pretty much plotters and seditionists so…

  33. Tom-1812 says:

    Referring to sending files to the National Archives, Trump says, “I would say there’s a very good chance that a lot of those documents will never be seen again …” Will he morph that claim into an explanation for the empty file folders?

    • timbo says:

      More to the point, he accused NARA of being a leftist organization. That’s the sound of someone desperate, and of someone who never should have been President in the first place.

  34. harpie says:
    9:43 PM · Sep 21, 2022 “There doesn’t have to be a process … I declassified everything” — Trump on how he declassified documents (this is false — there is a process Trump didn’t follow) [VIDEO]


    Hannity: So let me ask you this question, because I think this is the next logical question, because the President of the United States, you, unlike, say, Hillary Clinton in her case, a President, has the power to declassify.
    Trump: Right.
    H: OK. You have said on Truth Social a number of times you did declassify.
    T: I did declassify, yes.
    H: OK. Is there a process? What was your process to declassify?
    T: There doesn’t have to be a process, as I understand it. You know, there’s different people say different things.
    H: Right.
    T: But, as I understand it, there doesn’t have to be. If you’re the President of the United States, you can declassify just by saying I’m, it’s declassified, even by thinking about it. Because you’re sending it to Mar-A-Lago, or to wherever you’re sending it, and there doesn’t have be a process. There can be a process, but there doesn’t have to be. [0:44] You’re the President. You make that decision. So, when you send it, it’s declassified. We, I declassified everything.

    Now, I declassified things, and we were having a lot of problems with NARA. You know, NARA, ah, is a radical left group of people running that thing, and when you send documents over there, I would say there’s a very good chance that a lot of those documents will never be seen again. [1:07]

    There’s also a lot of speculation because of what they did, the severity of, the FBI coming and raiding Mar-A-Lago, were they looking for the Hillary Clinton emails that were deleted but they are around someplace. Were they looking for the spy
    H: Wait, wait, you’re not saying you had it.
    T: No, no. They may be saying, they may have thought that it was in there.
    H: That you did. OK.
    T: And a lota people said the only thing that would give the kinda severity that they showed by actually coming in and raiding with many, many people, is the Hillary Clinton deal, the Russia-Russia-Russia stuff, or, I mean there are a number of things, the spying on Trump’s campaign. So they spied on my campaign. [1:47]

    • Rayne says:

      Would love to see a sharp interviewer — preferably in a courtroom while Trump was under oath — ask him pointedly about this particular declassification which did have a process.

      • harpie says:

        Thanks, Rayne! I don’t have a lot of time, but there’s at least one thing that might be for the J6TL:

        […] At my request, on Dec 30, DOJ provided the WH w/a binder re: Crossfire Hurricane investigation. Portions of docs havent been released. I requested the docs so that a declassification review could be performed & so I could determine to what extent materials should be declassified. […]

        That happens to be the day BANNON [in DC] and TRUMP [at MAL] talked about killing the Biden presidency in the crib [or something like that].

        “We’re going to bury Biden on January 6th, fucking bury him.” […] “We are going to kill the Biden Presidency in the crib,” he said.

        • Rayne says:

          Maybe Stone told Trump how the conspiracy would work along with what materials to pack and move — perhaps in exchange for a pardon — between 12/27 and 01/01?

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