Just Following Orders: Raymond Dearie’s Strict Compliance with Aileen Cannon’s Orders

Yesterday, two different filings were added to the Trump v. America docket. The first was an order from Judge Aileen Cannon, stripping the language pertaining to classified documents from her order appointing Raymond Dearie to be Special Master. The second, posted shortly thereafter, was Judge Raymond Dearie’s draft order for work flow.

Dearie’s order has rightly attracted attention for the lengthy instructions on how Trump must make any challenges the detailed inventory FBI released in the next week. (Note, according to the current schedule, Trump will have 4 days after receiving the documents to make such challenges.)


No later than September 26, 2022, a government official with sufficient knowledge of the matter shall submit a declaration or affidavit as to whether the Detailed Property Inventory, ECF 39-1, represents the full and accurate extent of the property seized from the premises located at 1100 S. Ocean Boulevard, Palm Beach, Florida 33480 (the “Premises”) on August 8, 2022, excluding documents bearing classification markings (the “Seized Materials”). See Appointing Order ¶ 2(a); Order Following Stay ¶

1. No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

b. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were seized from the Premises on August 8, 2022, but as to which Plaintiff asserts that the Detailed Property Inventory’s description of contents or location within the Premises where the item was found is incorrect.

c. A detailed list and description of any item that Plaintiff asserts was seized from the Premises on August 8, 2022, but is not listed in the Detailed Property Inventory.

This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.

No later than October 14, 2022, the government shall submit a declaration or affidavit from a person with sufficient knowledge of the matter responding to any factual disputes as to the completeness and accuracy of the Detailed Property Inventory raised in Plaintiff’s submissions. Upon reviewing the parties’ submissions, the undersigned will schedule further proceedings as needed to resolve any such disputes including, if necessary, an evidentiary hearing at which witnesses with knowledge of the relevant facts will provide testimony. To the extent that the resolution of any such factual disputes identifies additional materials that should be reviewed, the undersigned will set further proceedings as needed.

The identification and resolution of any factual disputes as to the completeness and accuracy of the Detailed Property Inventory will proceed concurrently with the substantive review procedures described below

From reports of the hearing the other day, it seemed that Dearie asked if this was really necessary. Jim Trusty admitted Trump doesn’t know what’s in the boxes. So this seems like a concession to Trump’s team, an extended focus on whether the FBI accurately cataloged the items taken from Trump’s house. But in practice it ends up being a very strict requirement on Trump that he substantiate things — such as his claim to Hannity, the other day, that the FBI agents took his will — that he has said publicly. Trump also admitted to Hannity that his video of the search doesn’t show the actual rooms from which items were seized, something I predicted (because there’s no way Trump would take video of his office accessible from New York). So while this is precisely what Trump had asked for, it ends up locking Trump in in ways that may limit any criminal defense strategies in the future.

As Dearie said the other day, Trump chose to make himself a plaintiff, and in that posture, he may be forced to make affirmative claims he would never be forced to make as a defendant.

Dearie also required that Trump differentiate the documents he claims are Executive Privileged that can be accessed by the Executive from those that cannot.

Plaintiff shall provide the Special Master and the government with an annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege

c. Executive privilege that prohibits review of the document within the executive branch;

d. Executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch;

e. The document is a Presidential Record within the meaning of the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq. (“PRA); see id. § 2201(2); and/or

f. The document is a personal record within the meaning of the PRA; see id § 2201(3).

This takes Trump’s claims of (and Cannon’s unilateral reimagination of) Executive Privilege literally. But it also requires Trump to make a claim that will be easier to defeat on appeal. It effectively requires Trump to create a new category of documents that will make DOJ’s appeal easier.

Dearie’s order requires Trump to pay his bills or face sanction.

No later than seven calendar days after the undersigned has resolved any such disputes (or seven calendar days after receiving an invoice as to which Plaintiff raises no objections), Plaintiff will submit payment in full as directed on the invoice. Failure to make timely payment will be deemed a violation of the Special Master’s order subject to sanction pursuant to Federal Rule of Civil Procedure 53(c)(2).

Finally, Dearie revealed that retired Magistrate Judge James Orenstein will assist him in the review — and that only Orenstein will be getting paid, and that at a rate below what other Special Masters make — Trump got off easy on this front!

The undersigned has determined that the efficient administration of the Special Master’s duties requires the assistance of the Honorable James Orenstein (Ret.), a former United States Magistrate Judge for the Eastern District of New York, who has experience with complex case management, privilege review, warrant procedures, and other matters that may arise in the course of the Special Master’s duties. Judge Orenstein has served as an appointed amicus curiae in the Foreign Intelligence Surveillance Court pursuant to 50 U.S.C. § 1803(i)(2) and currently holds Top Secret clearance.


As a United States District Judge in active service, the undersigned will seek no additional compensation for performing the duties of Special Master in this action. The undersigned proposes that Judge Orenstein be compensated at the hourly rate of $500.

As a Magistrate, Orenstein has repeatedly pushed back on governmental surveillance, first on “combined orders” as part of what was called the “Magistrate’s Revolt” in the 00s, and then refusing an All Writs Act order on Apple to break into an Apple phone.  Dearie’s revelation that Orenstein served as an appointed amicus on the FISC was news to me and other close FISC watchers, but I’ve got a few guesses about what role he may have played. In short, this is further evidence of the seriousness of this review.

Meanwhile, no one really knows what effect Cannon’s order will have. Along with the orders pertaining to classified information, her order takes out this paragraph, requiring interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.

But it leaves these two passages in.

The Special Master shall make ex parte reports to the Court on an ongoing basis concerning the progress of resolving the issues above.


The Special Master may communicate ex parte with the Court or either party to facilitate the review; provided, however, that all final decisions will be served simultaneously on both parties to allow either party to seek the Court’s review.

I had thought this might be an attempt to narrow the scope of DOJ’s appeal, taking the classified records off the table. There’s some dispute whether she’s even permitted to do this given the pending appeal before the 11th Circuit. But, the actual injunction, now stayed, remains in place, as does the original September 5 order, so that will still be within the scope of DOJ’s appeal. This change was about the order to Dearie, not Cannon’s usurpation of authority she doesn’t have.

But I find the order interesting given how literally Dearie took Cannon’s order to test the inventory and let Trump make Executive Privilege claims that will be easier to defeat on appeal.

In the hearing the other day, Trump lawyer Jim Trusty suggested that Dearie had overstepped his mandate by asking Trump to provide proof he had declassified anything. Dearie responded by saying that he was doing exactly what he had been told.

The judge, a veteran of the Foreign Intelligence Surveillance Court, expressed puzzlement about what his role would be if the government says certain documents are classified and Trump’s side disagrees but doesn’t offer proof to challenge that.

”What am I looking for?….As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?”

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”

Cannon revised her order to Dearie so that, in ignoring the classified documents, he can continue to do “what he’s told.”

Dearie (and Orenstein) likely saw precisely what I did: Cannon edited the standard boilerplate on Special Masters to allow herself the authority to remove Dearie for reasons beyond the timeliness of the review.

So it’s possible Dearie made sure Cannon’s order to him was revised so he can continue to strictly follow her orders, with all the pain that will cause Trump.

147 replies
  1. Nick Barnes says:

    Is this a “draft order”? It looks pretty final (and devastating to Team Trump, if the process plays out by these rules).

    • Nick Barnes says:

      Although if I were the Government I think I’d move to modify (as per the penultimate paragraph) to (a) state minimum batch sizes (which aren’t otherwise stated and which the Plaintiff could play silly buggers with otherwise); and (b) to require the Government provision of scanned copies and spreadsheet lines on a per-batch rolling basis. On the face of it the Government has to provide everything by next Monday, 26th, while the Plaintiff gets to respond on a rolling basis. It would seem reasonable to say (a) something like “Batch 1 is of at least 4000 documents. Batch 2 is of at least 4000 documents. Batch 3 is everything else.” and (b) Government provision of the scanned copies and spreadsheeted designations on, say, consecutive Mondays: September 26, October 3, and October 10 respectively. Or maybe a bit quicker than that.

      • Leu2500 says:

        Re batch size

        I believe this was set in previous communication from Dearie. See reports of Tuesday’s meeting or an order Dearie issued shortly after

        • Nick Barnes says:

          I looked but couldn’t find anything. Do you have a citation?
          This is Dearie’s first order since the meeting (his only previous order on the docket, #94, is the one ordering the meeting). The Government’s submission to the meeting (docket # 96) suggested 500 documents per day but no batch size. The Plaintiff’s submission to the meeting (docket #97) doesn’t discuss batching. I don’t have a transcript of the meeting, and reporting on this aspect of it is thin.

      • emptywheel says:

        They need to provide everything if Trump is going to be required to provide all challenges to the inventory by September 30.

        But yes, there should be rules about how much they get through when. This seems to be closer to Trump’s preferred plan than DOJ’s.

        • Nick Barnes says:

          For the Detailed Property Inventory process (part I of Dearie’s order), does the Plaintiff need anything beyond the Detailed Property Inventory, and the “declaration or affidavit” due on Monday?
          I was referring to the full scans and spreadsheet (paragraph 3 of part II of the order).

        • paul lukasiak says:

          I don’t think that Dearie is expecting Trump to verify the authenticity of each document by Sept 30 — or that if that is his intent, that its consistent with Cannon’s Special Master instructions/order. As I note below in my original comment, the DPI Verification ordered by Cannon seems intended to lock the DoJ into the DPI…. while she mentions affidavits from DoJ personnel, she does not require/suggest any such attestations from Team Trump.

          Moreover, merely as a practical matter, demanding that someone attest to the authenticity of documents, based on electronic copies, and within a very limited time frame, is not really workable (as I can personally attest to, having been peripherally involved in the Killian memos mess back in 2004)

          • earlofhuntingdon says:

            I agree that it is self-evident that Dearie is not asking Trump to verify the authenticity of a document he can view only in electronic form. He is asking him to make other determinations, which Trump can do by viewing those same digital documents.

            Dearie’s demands are not in conflict with Cannon’s order, he simply fills it out and applies similar requirements to both parties. He is attempting to identify and narrow the issues that remain in dispute, and dispose of issues not in dispute, within the confines of the work Cannon has asked him to do.

            That’s what normal judges do when adjudicating disputes between civil litigants. Imposing obligations on only one litigant is not what they do. In Cannon’s case, that would be called prejudging the issues.

            • J R in WV says:

              Anyone who thinks / dreams that Trump is actually going to look at all (any, really) of these documents whatsoever, let alone on a deadline, is using stronger drugs/medications than I’m used to.

              Trump won’t lift a finger to do anything, that’s what he paid one of his lawyers $3MM to do!!

              Am I right or what…

        • Faithdc says:

          I’m still uneasy. Isn’t this highly unusual that a target of an investigation is given access to every bit of material seized in a search before he’s been indicted?

          It also appears as if there is a good possibility that Trump could just make stuff up. “Declaration or affidavit -” what does that mean? Are both sworn statements?

          And I did understand you correctly that Cannon can still fire Dearie at will?

          I’m still uneasy.

  2. joel fisher says:

    I’m a convert on the Special Master. TFG is a master of delivering BS to his droolers on Hannity, but the SM has–at least, potentially–the power and apparent inclination to put the kibosh on BS in court. And the SM’s work will eventually become the actual history of these events.

    • paul lukasiak says:

      I think that people are reading WAY too much into Dearie’s actions.

      Dearie is NOT reacting to Trump’s public statements. If you think he’s a serious person, then he is someone who is going to concentrate solely on the facts of the case, and the law pertaining to those facts, without regard to public pronouncement that have no legal relevance to the proceedings.

      What he is reacting to, however, is Cannon’s complete mess of a ruling on the entire matter. For instance, Cannon demands that Dearie verify the accuracy of the DPI. But in her order, she seems to place the entire burden of proof on the DoJ. Cannon has thrown that back in her face by demanding that Team Trump attest to the accuracy of the DPI as well (because that’s the only way for Dearie to reasonably meet Cannon’s requirements within the timeframe allowed.).

      • BrokenPromises says:

        Don’t you mean “Dearie has thrown that back in Cannon’s face…”

        Somehow I can’t imagine Cannon throwing something in her own face. IANAL so I may be misreading this.

      • FL Resister says:

        I love the neat logic of Special Master Dearie.
        Things are as stated by DOJ and if the plaintiff thinks not, then he has to prove otherwise.
        Elated that the good guys have recaptured the stolen secret documents and a big squeeze is on for the rest.
        Thanks Marcy Wheeler, mods and commentators for this excellent resource (well worth a subscription).

  3. JonW says:

    I’m supposing Trump will not submit a sworn affidavit saying something like “at 11:58 on Jan 20, 2021, I thought Explicit Declassification Thoughts for all documents en route to Mar a Lago that bore classification markings”, but maybe only because the 11th Circuit made the classification moot?

    A more serious question would be, why did the request not include the possibility of labeling a document a Federal Record vs a Presidential or Personal one? Isn’t that in the tagging space for these documents (no tag, federal record, presidential record, personal record)? Or does this imply that the SM doesn’t think there will be disagreements about whether a document is a Federal Record?

    • CE says:

      “…why did the request not include the possibility of labeling a document a Federal Record vs a Presidential or Personal one?”

      IANAL. My guess is that 1) the classification scheme is meant to identify which, if any, of the seized materials Trump wants to make some claim about having returned to him and/or preventing DOJ from using; and 2) if a document is a Federal Record, there’s no basis for any such claim from Trump. Any lawyers want to chime in?

      What I thought was missing from the proposed classification scheme was 1) documentary materials not created at the White House, and which may never have been near Trump during his presidency (e.g., press clippings from before 2017, or his will); and 2) articles of clothing or anything else that doesn’t fit the definition of “documentary materials” under the Presidential Records Act.

      It may be that the definition of “personal records” in the PRA (44 U.S.C. § 2201 § 2201(3) is sufficiently broad to cover the first category, but it doesn’t seem to cover the odd MAGA hat or red necktie mixed in with all the documents.

      • paul lukasiak says:

        I’d like to suggest that Cannon’s order (and Dearie’s plan, based on that order) is consistent with the PRA, which only includes the two categories of records in its definitions, Presidential Records includes anything “whose function is to advise or assist the President” in his duties, which would include any “Federal Records” that he had been presented with.

        There may well be a class of “Federal Records” that Trump kept copies of for personal use (e.g. Federal publications about Social Security that he sent along to his private accountant), but in general, if a Federal Record has been used by the President or his staff in the conduct of their official duties, it qualifies as a President Record.

        see https://www.law.cornell.edu/uscode/text/44/2201#fn002018

        • earlofhuntingdon says:

          We have no idea whether Federal Records Trump may have retained were generally available to the public or only copies used for reference. The possibility that they included Social Security publications that Trump might have sent to his accountant seems Pollyana-ish.

          On your last point, regarding the transubstantiation of federal records into presidential records, 44 USC 2201(2)(B) argues to the contrary: Presidential records do not include documentary materials that are official agency records [ie, federal records].

          • WilliamOckham says:

            Let’s talk about the famous Hurricane Dorian map. For the sake of discussion, let’s assume that Trump personally altered that document. Before the alteration, it was a federal record. What about afterwards? The only two possibilities under current law are that the whole thing is still a federal record or the whole thing is a presidential record. I’m going to argue that the plain meaning of the PRA is that it’s still a federal record because the alteration isn’t reasonably segregable. I’m actually hoping that Dearie gets the chance to ask the Archivist about a similar scenario. I care about the answer.

            • Rayne says:

              It was a federal record and the furor at NHC/NWS/NOAA over the Sharpie-ning was related to the defacement of a federal record combined with PR which undermined the original document and its science to cover for Trump’s damaging defacement. The communications around the defaced document don’t treat it as a presidential record. Last email in a 01-FEB-2020 tweet thread by Jason Leopold:

              • earlofhuntingdon says:

                Yes, and Trump’s PR effort gave false information to the public about the path of a dangerous storm, a potentially life-threatening falsehood.

                • Rayne says:

                  False information to distort the “science based information product” of the NHC/NWS/NOAA — which to my mind means the underlying product was still that of NHC/NWS/NOAA and therefore a federal record.

                  • earlofhuntingdon says:

                    I agree. My comment was to add an additional component to the damages Trump exposed us to in order to salve his ego.

                    His cartoon scribblings on an original science paper, for example, would not convert the document from an agency record to a personal or presidential record.

                    • Brian Dodge says:

                      Secret documents can contain in part or in whole other secret documents, which complicates declassification. I know that the President’s Daily Briefing, a Presidential Record is classified because it contains classified information from other classified documents. I presume that the same principles apply to copies of Federal Records that the President edited, defaced, scribbled notes for speeches on the back, or tore up/ate. They are newly created Presidential records, that incorporate elements in whole or in part from Federal Records. Accessing Federal records as President and modifying them automatically makes them Presidential Records

            • earlofhuntingdon says:

              As you point out, it’s not a casual debate, because it will be had regarding more important records than your example.

              In principle, I think there’s a strong argument that the hurricane map remained an agency record. Trump’s scribbling on it with a Sharpie made his contribution not “reasonably segregable,” Trump’s constitutional duties do not include weather forecasting, and no agency official outside of the Kremlin would consider his markings a credible revision to the meteorological record regarding the storm’s path.

              If Trump’s personal markings were substantive and in line with the president’s official duties, the “reasonably segregable” argument would still apply.

              Alternatively, if the hurricane map were an extra copy, used for convenience or reference, and were “so identified,” the copy would not be an agency or presidential record. It might be a personal record, based on a personal fantasy. That depends on the nature of the scribbling. If the comments were substantive enough, the underlying copy would have the status of the back of an envelope, and the nature of the comment would determine the document’s status.

              The Archivist must have wrestled often with similar issues. Dick Cheney, for example, was not alone in frequently annotating documents that crossed his desk.

              • bjet says:

                NARA must have some sort of cross-classification cross-referencing system for items that straddle the lines, and more than one line. They must have internal rules, guidelines, manuals, memos that are publicly accessible which would throw some light on these questions.

                Like about ways that simply jotting on or comingling records of different kinds could change (and does appear to change) the length of time a presidential record might remain in the dark, to whom, for how long & why.

                I keep thinking about that awful pink ‘desktop publisher’ thingy Rudy presented to someone at the State Department around the attempt to extort a credulous nod to fake dirt out of Zelinsky (wondering where that ended up), and remembering those horrid illegal anti-indigenous casino ‘family values’ campaign ads Roger Stone got Trump to jot his hot shot approval on every one of, like a dope.

            • SteveB says:

              On the hypothesis that Trump altered the officially produced weather warning map, don’t the facts that at time he effectively published it with commentary representing incorrectly that it should be regarded as a truthful and accurate depiction of an official warning document, reinforce the contention that it was and remained the property of the government as a record, albeit mutilated and rendered counterfeit?And in addition to other legal protections for Federal records the altered map is potentially evidence of an offence of counterfeiting such a record, specifically penalised by 18 USC 2074

              • earlofhuntingdon says:

                In principle, yes, but no DoJ would prosecute a sitting president for that form of counterfeiting alone, nor would it pursue him after he left office for such an offense.

                They would only do that if they had strong evidence of more damaging crimes. If they had that, they wouldn’t overwhelm the jury with a plethora of minor offenses.

                • SteveB says:

                  TY for reply. Not suggesting that the offence ought to be investigated, but rather that the existence of the provision and the circumstances of the mutilation of the document reinforce the categorisation of it as a government record rather than a document subject to PRA

              • Brian Dodge says:

                IMHO, since he presented the altered copy of the hurricane map at an official and public Presidential Press Conference, it is a Presidential Record which incorporates a Federal Record which is the work product of a Federal Agency.

            • CJ says:

              > Let’s talk about the famous Hurricane Dorian map. For the sake of discussion, let’s assume that Trump personally altered that document. Before the alteration, it was a federal record.

              Some other questions that come to mind: to what extent is the federal-record-ness inherent in the underlying information encapsulated in the printed document, versus the printed artifact showing the NOAA projection? Did NOAA expect to get that blown-up map returned for future use, or was it created specifically for one-time Presidential use? (And does that even matter?)

              • nedu says:

                As always, we start with… 44 USC § 2901

                As used in this chapter, and chapters 21, 25, 31, and 33 of this title—
                (1) the term “records” has the meaning given it by section 3301 of this title;

                (URL modified from OLRC site to point to LII.)

                A few quick, initial notes, going towards your questions:
                – First, OLRC informs me that Title 44 has been enacted into positive law.
                – Second, ch. 22 is NOT using this def.
                – Third, § 3301 facially seems to focus on “information”, rather than emphasizing copies.

    • StevenL says:

      I’ve been curious about the missing category of Federal Records also. With removal of the documents marked classified from the process, however, this may be a much smaller issue.

      Also, I read a suggestion, which I think is right, that Trump will not make claims to have declassified the documents at issue because his only out at this point for the crimes plainly in front of us will be to say he did not know he had them, which is in conflict with saying he intentionally declassified them upon removal from the white house. I think that is what Trusty had in mind when he was coy about declassification claims in Brooklyn.

      • earlofhuntingdon says:

        I think Trump’s ignorance, profound as it is, related to these documents will be part of his legal defense. That it won’t affect most or all of the three statutes the government is investigating for criminal violations isn’t relevant to Trump, insofar as he will continue to throw anything at the wall, if he thinks he can force the government and court(s) to deal with it. Delay, delay, delay.

        • Ichibod Crane says:

          I’m not sure how Trump can claim he didn’t know he had the documents given that some of them were reportedly found both in his desk and IIRC personal safe.

      • Brian Dodge says:

        That will run into the logs of who checked them out, where they went, who the transporting custodian(witness) was, and to whom he delivered them.

      • Yorkville Kangaroo says:

        Almost all the documents are chump change and I doubt DoJ really care much at all about them though they will use them as evidence of malfeasance on the part of The Donald when the time comes.

        Bottom line: are they NDI? These are the ones Dearie cleared.

        BTW the answer is yes they most certainly are.

        • earlofhuntingdon says:

          We don’t and shouldn’t know that, apart from the classified documents, “almost all the documents are chump change.”

        • bawiggans says:

          On the Venn diagram doesn’t NDI potentially include some non-classified as well as some (if not all) classified documents? If so, the dross may actually contain consequential material.

            • Peterr says:

              This is a big concern of the members of the Intelligence Community, which is why the search warrant allowed for the seizure of not just documents marked classified but other documents stored in close proximity to those marked items.

          • Chairborne Nam71 says:

            The Air Force report I accessed on the Internet Archive was classified SECRET in Dec 1971 and 37 yrs later (2008) declassified and made publically available. The report originated by the Air Force, was and still is National Defense Information. And only the FBI and the IC would know if the MAL NDI docs had cover sheets and distribution lists. The report might have been embarrassing due to response time to the attack in 1971 but now the report would be only of interest to military historians.

            [FYI, your comments are getting delayed by auto-moderation because the email address isn’t the same across your comments. Is the domain *.fm or *.net? Please advise and be sure to be consistent when entering username identity information. Thanks. /~Rayne]

      • Raven Eye says:

        Not sure about the FOIL specs. Will metallic-coated Mylar be adequate, or do we need 100% metallic (lead, copper, gold, etc.)?

        • Ddub says:

          Not saying it is, but it could all be tied to this (1968!!) 3M “Bookshelf Game”:
          FOIL pits player against player- and time- in stimulating game of words and wits. Ulike (sic) other word games, FOIL challenges your skill in unscrambling words …

      • bjet says:

        Can we get one of those that provides some sort of bare bones structural layout of what his office’s “bureaucracy” did in fact ‘follow up’ on classifying?

    • ScottMI says:

      “why did the request not include the possibility of labeling a document a Federal Record vs a Presidential or Personal one? Isn’t that in the tagging space for these documents (no tag, federal record, presidential record, personal record)? Or does this imply that the SM doesn’t think there will be disagreements about whether a document is a Federal Record?”

      IANAL, but the language “whether Plaintiff asserts any of the following” suggests that for some documents, Trump may *not* assert any of those categories. Docs covered under the Federal Records Act should be in that “no assertions” category.

      • Nick Barnes says:

        I think that’s right. This is the Special Master process, which is only really about privilege, and the FPOTUS has no rights or privilege over FRA documents. But it would have been nice to see it here, along also with some process for non-documents. Just for completeness, as a column in the spreadsheet.
        Of course, we’ll never see the spreadsheet, due to the forthcoming Protective Order (I see the Plaintiff’s proposal for that, apparently an exact copy of the Government’s except for insertion of an explicit “two days” window for identifying staff). Maybe someone somewhere will unseal it, redacted, someday.
        Looking forward to the day the Plaintiff becomes the Defendant.

      • Seashell says:

        I think the PRA only requires 2 categories, records or personal from the president and then the Records go to NARA. So maybe it’s NARA that continues with categorizing Records and Federal.

        • ScottMI says:

          The PRA defines “Presidential records” as excluding several categories of material, including (specified separately) agency records (“as defined in section 552(e) of title 5, United States Code”) and personal records, and then goes on to define “personal records” explicitly as being “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” So no, the PRA excludes agency records from its purview at the outset.

            • ScottMI says:

              bmaz, if what you meant was “the FRA does not exclude agency records,” then I agree. If you meant something else, could you please explain?

              • Troutwaxer says:

                What if the agency makes a record for themselves, then makes a copy for the White House? Who does the White House copy belong to? (I think that’s probably the case for most records.)

                • Brian Dodge says:

                  The agency, unless the White House uses it to produce a derivative Presidential Record, by, for instance, drawing on it with a sharpie.

          • nedu says:

            You wrote:

            agency records (“as defined in section 552(e)…

            Colloquially referring to ‘agency records’ is one thing. But I’d ask folks to please not mix up that colloquial language with the exact language of the statute until either (1) you’re sure you’re not covering up a question of statutory interpretation, or (2) you’re sure that the question doesn’t matter.

            The exact language(*) of § 2201(2)(B) has:

            (i) official records of an agency (as defined in section [552(f)] of title 5, United States Code);

            ((*)Modified to substitute “552(f)” for “552(e)”, in accordance with the note citing Pub. L. 99–570.)

            QUESTION: Does the parenthetical “(as defined in… )” modify:
            – “agency” 552(f)(1)
            – “records [(2)] of an agency[(1)]” 552(f)

            Armstrong II (D.C.Cir. 1993; at 1290) seems to favor the former of those two:

            The definition goes on to exclude specifically “any documentary materials that are … official records of an agency,” as the term “agency” is defined in the FOIA, 5 U.S.C. § 552(f).

            Moving the parenthetical immediately behind “records” implies the latter.

            I noted the question for myself privately awhile ago, but I’m personally not sure whether the answer actually makes a difference worth really considering in depth. Still, I’d ask please don’t mix up the language the way you did there – unless you’re sure that it doesn’t matter.

  4. Badger Robert says:

    Who will be willing to turn Trump’s various assertions of privilege into a sworn declaration?
    The government is not likely to need 14 days to respond to any factual disputes raised by the plaintiff. The government most likely has a very solid catalogue of what was seized by now.
    Due to the cost orders, I suspect that the actual claims of privilege will be limited.

    • earlofhuntingdon says:

      That would be relatively easy, if Trump’s assertions were in the standard form of plaintiff’s sworn affidavit, in which case, the lawyer frames the accompanying pleading as passing on plaintiff’s assertions.

      Two sticking points: Getting Trump to sign any sworn affidavit that doesn’t have so many outs, it becomes of no evidentiary value. The lawyer must also not have personal knowledge that contradicts claims of fact Trump may make.

      As you imply, though, any lawyer who works for Trump long enough probably acquires a permanent feeling that anything s/he allows Trump to say is suborning perjury. Most lawyers working for Trump must know that, which means they are accepting the risk, in exchange for the money and notoriety. A devil’s bargain.

  5. Jim Crittenden says:

    Irony: Plaintiffs have responsibilities and burdens to fulfill in court. A person can’t be a plaintiff and defendant at the same time, lol. No new unproven conspiracy theories; the plaintiff’s gotta PROVE the negative, which has never been done before. It is an astonishing level of incompetence that even to a non-lawyer is obvious.

  6. PeterS says:

    I wonder what will happen if/when team Trump files a response in which the required declaration/affidavit and spreadsheet copy are not actually responsive (i.e. are the usual BS). Will Dearie say, That was your final chance and you blew it? Fingers crossed…

    • Yorkville Kangaroo says:

      And I highly doubt he’ll go down the Cannon path and TELL counsel what to say and how to say it.

    • 90’s Country says:

      I’ve created a storyline in my brain that Dearie has been observing Trump for quite a long time from his Brooklyn courthouse and has a pretty good idea of how to end the bs master’s bs. Please let me hope that’s true for a while longer.

      • Tech Support says:

        Explicitly calling out non-payment as a sanctionable offense is a clear indicator that Dearie knows who he is dealing with.

  7. nedu says:

    In the thread under the previous article, Beth H was kind enough to remind me that I should probably be careful to use a phrase like “the actual injunction, now [partially] stayed” by the 11th Circuit.

  8. Ravenclaw says:

    Am I correct in assuming that there is normally no distinction between executive privilege that restricts dissemination to the executive branch and executive privilege that prohibits dissemination within the executive branch – that the latter is a make-believe category added because of the former guy’s claims? So this forces his lawyers to make explicit their absurd contention that the executive branch should suffer (metaphorically) from some kind of dissociative disorder or even slit-brain syndrome, with one hand not knowing what the other is doing?

    • nedu says:

      From an outside perspective, I’d say that assumptions like “[T]here is normally no distinction between executive privilege that… and…”, first of all depend on who’s normally doing the assuming? Are the assumptions “normally” being made by the White House counsel? DOJ’s OLC? Congress? The judiciary? The public?

      George Washington invoked executive privilege, and got buy-in from his contemporaries and Congress, and so the history goes….

      Well, it’s certainly not like the English Parliament, whose full privileges are vast, inscrutable, and known only to themselves. I think it’s safe to assume that it’s not like that–not normally.

    • earlofhuntingdon says:

      Yes, EP is traditionally a qualified privilege the executive branch has and uses to shield its internal deliberations from competing branches of government and, ultimately, the pubilc.

      Trump invents expansive enhancements to EP, by claiming that a) a former president can assert it, b) it prohibits intra-executive branch communications, at least insofar as they might incriminate a former president, and c) a former president’s assertion of it may restrain the executive branch’s criminal investigation of him (and, logically, others), which is in direct conflict with a primary qualification that limits the reach of EP.

      Dearie is calling Trump on his claims by demanding he disclose specific documents they claims apply to, and that he provide a legal rationale for them. It sets the matter up for appeal.

    • paul lukasiak says:

      I think this has less to do with Trump’s lawyers than it has to do with this section of Cannon’s original opinion, in which she provides Trump with some kind of right to review the documents for executive privilege that would somehow preclude the government from looking at its own documents….(note that the SCOTUS opinion cited was in relation to possible Exec Privilege claims to prevent disclosure OUTSIDE the Exec Branch)

      ***** Further, just this year, the Supreme Court
      noted that, at least in connection with a congressional investigation, “[t]he questions whether and
      in what circumstances a former President may obtain a court order preventing disclosure of
      privileged records from his tenure in office, in the face of a determination by the incumbent
      President to waive the privilege, are unprecedented and raise serious and substantial concerns.”
      Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting
      denial of application for stay) (“A former President must be able to successfully invoke the
      Presidential communications privilege for communications that occurred during his Presidency,
      even if the current President does not support the privilege claim. Concluding otherwise would
      eviscerate the executive privilege for Presidential communications.”).****

      see https://www.courtlistener.com/docket/64911367/64/trump-v-united-states/

  9. Amicus says:

    Is it possible that Judge Cannon now believes that Trump is playing her? Prior to the 11th Circuit’s ruling, her orders afforded Trump the ability to present his side of the story and seek to clear his name and obtain significant judicial rulings prior to, or heading off any indictment. From that perspective, her orders were devoid of law but not devoid of purpose. Then, three things happened in short order. Trump’s attorneys played Bartleby the Scrivener and told Judge Dearie that they would prefer not to submit any evidence to substantiate Trump’s public claims that he declassified the 100 odd marked classified documents. Shortly thereafter, the 11th Circuit issued an easy to read but from an informed viewpoint scathing take down of her orders. All of which was capped off by Trump’s claim of uncommunicated declassification. Judge Cannon cannot have been pleased by any of this. And then we get the two apparently coordinated orders. First, Cannon removes any obstacle to Dearie proceeding apace by cleaning up her order to him concerning the declassified documents. Second, and shortly thereafter, Dearie issues his order telling Trump to put his facts in evidence. And it appears that all of the communications between Cannon and Dearie going forward will be ex parte. Yes, this is surmise. But Dearie appears confident that Judge Cannon will stand behind his detailed grilling of Trump’s positions going forward: as if he had sent it to her and gotten her blessing. Never mess with a federal district court judge – ever. “Always, always, know who you [screwing] with.”

    • earlofhuntingdon says:

      If Cannon were “smartly corrupt,” she would not be surprised by Trump’s duplicitous conduct. It’s his defining characteristic. She may not be happy he’s making her work harder, but she would have signed on for it.

    • joel fisher says:

      I think it’s his heft in the judiciary that, in the end, will make her more deferential to Dearie and, as a result, less so to Trump.

    • emptywheel says:

      Not at all. I suspect she’s already feeling like Dearie is running her, not the other way around. I would be if I were him. Provided he makes a public case that he’s doing what she claimed to want to do, it’s going to limit her ability to help Trump.

      • Rugger9 says:

        I’m waiting for the whine about the compressed timeline since delay is the reason for this nonsense. However, these are all documents Individual-1 had presumably already seen and ‘considered’ since he had them when DoJ came calling with their warrant. SM Dearie is asking for a list of ones TFG ‘thinks’ are privileged so it should take long to sort for that possibility. TFG will probably claim that all of them are privileged at the very last microsecond.

        • earlofhuntingdon says:

          I don’t see anything special about this timeline. Trump will whine about any expectation that he perform, fragile ego and all that, and he doesn’t want anyone clearing away the hurdles he uses to delay legal proceedings. The demand to show work on a rolling basis is routine for any long project.

          It’s how you teach your child to finish a school project or become an Eagle Scout. Engineers and lawyers use it all the time. Academics use it to teach research and writing skills, and because they know how lost love, drink, lack of discipline, and other foibles can delay finishing assignments. Catch delays early or both mentor and student fail. Dearie would be doing it for the same reason.

          • Rugger9 says:

            There is actually a known motivational factor regarding deadlines (the Student’s theorem one) where things are put off until deadlines are felt. That threshold differs among personality types, and FWIW it’s still valid these days as well.

      • Artemis says:

        Depending on the size of her ego, she may already be bristling about Dearie taking control. I wonder if she will pull anything outrageous to put Dearie back in his place.

        • bmaz says:

          Where is his place? How is she going to do that after both parties, and Cannon, agreeing to him? How would that work?

          • Nick Barnes says:

            NAL, but as I recall the order appointing Dearie allows Cannon to dismiss him at any time for any reason. That might not look good in the court of public opinion, but it’s been a long time since the Plaintiff looked good there.

        • njbill says:

          I would be surprised if Cannon, sua sponte, reached out on her own to overrule anything Dearie has done so far. Once he has completed his work and issued his report, it is of course possible she might not adopt some of his findings or might disagree with some of his conclusions.

          If Trump were to bring some type of objection before her in the interim, while Dearie is still doing his work, she probably would act on that, either agreeing or disagreeing with Trump.

          But I would be quite surprised if she reached out entirely on her own to overrule or redirect Dearie in any fashion before he has finished his work.

      • earlofhuntingdom says:

        Grandma always said sunlight was the best disinfectant.

        Yes, Dearie seems to be giving Cannon a master class in how to do the job she’s not doing. In this instance, she has more formal authority than he does, but Dearie has more experience, expertise, and status. I agree that that limits how expansively Cannon can aid Trump and get away with it. A welcome change.

        • Raven Eye says:

          Yeah. Position power is wonderful, but I’ve been in situations where one or two people with knowledge power incrementally sliced sections off his/her chair legs — until the power person disappeared under the table.

    • Tech Support says:

      I’ve read some discussion to the effect that Cannon’s striking of those paragraphs from her order rendered any possible appeals to SCOTUS moot.

      If that’s true, then does this mean Cannon did something she didn’t have to do? Something that killed an opportunity to further delay proceedings by preventing an appeal of the 11th Circuit’s decision to SCOTUS?

      If that’s correct, then it creates some questions about motivation, doesn’t it? If you take the position that Cannon is wholly in the tank for Trump, then why would she do anything to accelerate the process? Does she in fact feel “played”? Or was she somehow mortified by the backlash from her peers? It just seems like it complicates the narrative that Cannon is a shamelessly loyal Trumpist soldier.

      • Troutwaxer says:

        With regard to your objections, maybe I’d modify the hypothesis to go something like this: Cannon is not a Trumpist. She’s a Federalist. She doesn’t really want to give Trump everything he wants – she knows or suspects that she’ll be overruled as she first gives the order – but she does want to signal that she’s a good Federalist who’s willing to go the distance and fuck over whoever the White/Rich/Fascist power structures want to her to fuck over… she can no relax, let herself be overruled, and know that her communication has been received clearly by the people she’s trying to signal.

  10. civil says:

    Re: the effect of Cannon’s order, Steve Vladeck tweeted “On whether Judge Cannon’s amendment kills Trump’s ability to ask #SCOTUS to vacate the Eleventh Circuit’s stay, my own view is “formally, no” (the stay is still out there), but “practically, yes” (because it makes it legally impossible for Trump to meet the standard for vacatur). … Cannon’s amendment moots DOJ’s appeal, and means Trump can’t show any harm — let alone irreparable harm — that the Eleventh Circuit’s stay is causing. So there’s still *technically* a stay for #SCOTUS to vacate, but no possible legal justification for asking the Court to do so.”

  11. Brumel says:

    I think Cannon wanted the special master to do Trump’s bidding to the greatest possible extent. But by constructing himself as working strictly on Court orders, as well as carefully immunizing himself against any Kise shenanigans in the review process (and not taking a penny that comes from Trump’s purse!), Dearie is protecting his own integrity. He wants to retire with clean hands at the end of the year.

    • Marika says:

      That’s an interesting point about Dearie not taking any of Trump’s money. I wonder if that is the real or one of the reasons he is not taking any money or just a happy result.

      • earlofhuntingdon says:

        He’s a sitting federal judge, albeit on senior status, doing what federal judges are already paid to do. He happily highlights that Cannon could have done all this work herself for the same federal salary.

    • Troutwaxer says:

      Here’s the thing: Judge Cannon is fair far down the road of “play stupid games, win stupid prizes.” The problem is that the “stupid prizes” frequently splash on someone else. Dearie is very carefully making sure he’s got a good splash-guard.

  12. Former AFPD says:

    It appears that Judge Dearie’s order holds out dismissal as a potential sanction for failing to timely pay the SM fees.

      • Former AFPD says:

        earlofhuntingdon, I do agree with you. However, it was good to see that the typical civil remedy of dismissal for failure to follow the rules was highlighted in some way.

        • bmaz says:

          Dearie has, so far, been better than I expected. And, more importantly, more expeditious, which was not what expected based on reports.

          • Former AFPD says:

            bmaz, I’m hoping that Judge Dearie’s order results in a courtroom crucible moment. “So counsel, you’ve filed a response to my order regarding the search. Yet your client continues to make public proclamations that are at odds with what is contained in your pleadings. As my order stated, now is the time to assert the facts that support your complaint. The Court must therefore ask you directly, as the legal representative of TFG: did TFG declassify any document that was seized during the service of the SW? Did TFG have the ability to declassify a document by ‘thinking’ about declassifying it?” And so on.

  13. Klaatu Something says:

    It thankfully appears that Dearie is the right man for the job.

    Hopefully this is not a repeat of Mueller, a man who appeared right for the job but ended up being a company man who yielded to Barr’s con.

  14. paul lukasiak says:

    I’m not sure that ‘strict’ is the proper adjective to describe Dearie’s adherence to Cannon’s instructions. The heart of this entire matter, the Document Review, is significantly different in the Cannon and Dearie version:

    Cannon ordered that documents be separated into 4 mutually exclusive categories

    ii. Plaintiff’s counsel shall review the materials, allocate each of them to one
    of four mutually exclusive categories listed below, and prepare and provide
    to the Special Master a log stating, for each item or document, the particular
    category claimed and on what basis. The four categories are as follows:
    aa. Personal items and documents not claimed to be privileged;
    bb. Personal documents claimed to be privileged;
    cc. Presidential Records not claimed to be privileged; and
    dd. Presidential Records claimed to be privileged

    whereas Dearie’s document review plan (quoted by Marci) has six, entirely non-exclusive categories (which Dearie describes documents as being “privileged AND/or personal” [emphasis added])

    Given that Cannon prescribed that the document review should follow a “precise workflow” (“5. In reviewing the Seized Materials, the Special Master will follow a precise workflow”), this difference in procedures has the potential to create challenges down the road by both parties if/when they decide they are unhappy with Dearie’s decisions.

    I’d also offer that Dearie is also rebelling against Cannon in the “Verfification of the Detailed Property Inventory” section, Cannon’s instruction order to Dearie seems to be directed solely at the DoJ, placing the entire burden of proof on the Justice Dept for proving the accuracy of the DPI..

    a. Verifying that the property identified in the “Detailed Property Inventory”
    [ECF No. 39-1] represents the full and accurate extent of the property seized from
    the premises on August 8, 2022, including, if deemed appropriate, by obtaining
    sworn affidavits from Department of Justice personnel;

    Whereas, as Marci notes above, Dearie is demanding that Team Trump stop raising questions (in court) about the accuracy of the DPI. I’m not sure if Dearie’s expansion of Cannon’s (obvious?) intent is going to pass muster, insofar as the “Verification of DPI” and “Document Review” sections are separate and distinct, and Dearie instructions are so ambiguous (what exactly does he mean by “separate item”? each box/container? each line item? each document/photograph/clipping?) that its hard to figure out exactly what Dearie is demanding that Team Trump is supposed to attest to.

    • bmaz says:

      Hi Paul. Whereas, her name is Marcy, not “Marci”. I remember you Paul, you were an irritant years ago that thought this was a forum for you to bloviate, and apparently you have returned for that.

      • paul lukasiak says:

        personal attack duly noted.

        [You’ve left at least 6 comments inside the last hour here (one still in moderation), and all but this one begin with the word “I.” Take a seat for a while because you’re DDoS-ing this thread. /~Rayne]

        • Peterr says:

          Yes, your continued failure to spell Marcy’s name properly, after repeated comments calling this to your attention, has been duly noted.

        • timbo says:

          You could be politer. Instead of getting the name of the author and principal here correct, and after numerous attempts to get through to you, you refuse to acknowledge that you’re getting it wrong. You appear to be either dense or you are disingenuous. Meanwhile, you remain uncontrite and combative.

    • earlofhuntingdon says:

      You missed, for example, that “privilege” contemplates two forms, something Trump continuously obfuscates and which Cannon did in her order. Dearie is simply parsing that out.

      He is distinguishing between claims of either A/C or work product privilege – which relate to Trump and his lawyers – and EP, which relates to Trump’s claims that he, as a former president, can invoke it and bar communications within as well as outside the executive branch.

      Dear is doing his job, a refreshing thing in Trump world, and telling Trump to make factual assertions, under oath, and legal arguments supporting his claims or he’ll deem them waived for purposes of this civil litigation.

      • Sandor says:

        Thank you earlofhuntingdon, bmaz, Rayne for all of your work. This sub-thread is a good reminder of both the quality of this site, and of our need to provide whatever monetary support that we can.


      • paul lukasiak says:

        The point that I was trying to make was to dispute the idea that Dearie was ‘strictly’ adhering to Cannon’s instructions by using the most obvious example of Dearie’s defiance. It was not an attempt to analyze the categorizations themselves.

  15. Thorvold says:

    It seems like these orders/decisions are also impacting others in the Trump orbit. Mike Lindell (My Pillow guy) had his phone seized by the FBI last week and filed suit to get a restraining order asking for return of the phone and stopping the Govt from using it. This is similar to the kinda Rule 41(g) but more Rule 65(b) request that Trump filed here. The judge in that case referenced the 11th Circuit appeal from the Trump case in his denial.

    • earlofhuntingdon says:

      The Minnesota district court didn’t really rely on the 11th Cir.’s decision regarding Trump, a precedent that would be persuasive but not binding in Minnesota, in any case.

      Lindell’s attorney, like Trump’s in Florida, failed to properly file a civil action against the government to bar it from accessing and using data in the mobile phone it seized from Lindell, pursuant to an apparently valid search warrant. S/he failed to properly invoke Rule 41(g), and failed to provide facts and argue the law in support of Lindell’s claim for the return of the My Pillow Inc., phone that Lindell used.

      Do all these guys hire the same idjut lawyers?

      • Troutwaxer says:

        What does a first-class lawyer say when Trump or My Pillow Guy tries to hire him/her?
        Second class?
        Third class?

  16. L. Eslinger says:

    While reading Judge Dearie’s action plan the other night, a personal favorite revision of a bible quote came to mind: “be careful of what you ask for, for you will surely get it.” This reading also led me to wonder about how the selection of James Orenstein might facilitate Dearie’s plan.

    Looking for information on how Orenstein thinks and acts, I found a useful opinion piece he wrote for the NYT (link below), in which he discusses issues and concerns regarding balancing law enforcement and personal privacy interests “in a coherent, fair and democratic way.” Some readers may respond to this sort of thing with “well, duh!” but in relation to his work with Dearie one might suss a consistency with Dearie’s thoughtful, thorough, clarifying, evidence based, “suffer no fools” approach.

    Note, also, that in his opinion piece he mentions the FISA court system for bringing in independent lawyers “to argue novel or significant legal issues that occasionally arise when the government asks for technology-based surveillance orders.” Perhaps this relates to MW’s speculation regarding Orenstein.

    see: https://www.nytimes.com/2019/06/13/opinion/privacy-law-enforcment-congress.html

  17. TooLoose LeTruck says:

    Trump V. America…

    Good title for a book about this endless cascading mess…

    Srsly, Donald… why do you hate America so much?

    • puzzled scottish person says:

      ‘Srsly, Donald… why do you hate America so much?’

      Because the alien lizard people who actually run the New World Order refuse to bow down to his awful God-Emperorness? (sarky Brit humour, obviously)

      You and me, and a lot of people, should probably read Mary L Trump’s two books on the topic of her horrible uncle. (The serious answer.)

      • Ginevra diBenci says:

        Mary Trump’s first book focused on her uncle. Her second book, The Reckoning, traces the historical threads that led to him getting elected and continue to underlie the dangerous movement led by those she labels Donald’s (her name for him) enablers. Mary Trump has tried consistently to move the emphasis from Donald Trump the man toward those who have made Trump/MAGA viral as a phenomenon, and now millions strong as a cult.

        Dr. Trump has done lots of research outside her own family. She writes lively, engaging books that I have found valuable for many reasons. My own PhD is in American Studies, with a focus on colonial religious movements (and indigenous people’s religions that colonizers tried to erase) and their representation in literature. Mary Trump seems to have taught herself in barely a year what I have gathered over decades, and her connections to current trends are spot-on. Anyone who wants a crash or refresher course in American political history could do a lot worse than her Reckoning.

  18. MT Reedør says:

    Anyone want to opine why DOJ, having found records with a search warrant, doesn’t ask if there’s any more, even informally? Is this a strategy or something? Better to wait until this first document matter is over? Maybe happening behind the scenes? Can only be done formally with a subpoena or warrant? DOJ waiting for evidence that there might be more documents?

    • earlofhuntingdon says:

      The FBI already did that via its earlier subpoena. Trump’s responses repeatedly indicated that there were none, responses now provably false.

      The government bent over backwards for months to resolve these issues informally. We’re past the point where informal means would be prudent or effective. The government is now building a criminal case.

      • TimB says:

        This seems correct, Earl, so thanks.

        Is it not possible that the government is _also_ seeking to undertake damage control on NDI out in the wild? That would involve tracking down other classified or unclassified NDI documents taken by Trump, but not to Mar a Lago.

        • Tech Support says:

          It seems like resolving the questions surrounding the empty folders is a top priority issue for the govt at this point. If it can be demonstrated that the folders *cannot* be correlated to any documents that are now in the govt’s possession, then I’d imagine that could be the basis for additional search warrants.

            • Paulka says:

              Which begs the question: What was unique about MaL compared to TT or Bedminster?

              I would assume it was human intel that was used to get the search warrant for MaL, was that human intel unique to MaL.

              Is it in the realm of possibility that that Trump ONLY kept USG records in MaL? I find that incredibly hard to believe, but fully realize it would take a significant source to get search warrants for Trump’s other haunts.

              I would imagine that there are also missing documents unrelated to the empty folders. Is the DoJ/IC doing an in house inventory to determine what Trump COULD have?

              • Rayne says:

                One of the facilities is close to “Little Moscow” with ocean access on either side and an international airport within less than 4.5 miles — and the other is landlocked and an 8-mile drive to a tiny private air service airport.

            • fm says:

              It got me thinking when it was brought up in the news that the Queens casket was particularly heavy because it was lined in lead so needed 8 pallbearers. In previous news it was mentioned that Ivana Trump’s (who was cremated) casket buried at Bedminster had 12 pallbearers. Why would that be? Pure speculation of course, but perhaps these 12 pallbearers were protecting a special cargo: classified and other possible documents that were incriminating to Trump while in office. The timing is right given the subpoena’s, etc.

              • RJames says:

                With talk of it containing gold bars and now government secrets, Ivana’s casket is taking on a mythology similar to Al Capone’s vault. I can image a show in the distant future with an android who looks vaguely like Geraldo and a backhoe.

              • Nick Barnes says:

                This whole “Ivana’s casket” notion is mystifying to me. Surely, if Trump wishes to hide documents for later retrieval, there are better places for him to do so? Like: a storage container in a far-distant secure warehouse? Or in a bank vault? If he’s not intending to retrieve them later, he can very easily destroy them. Either way (hide or destroy), he could just as easily make digital copies before doing so—I am sceptical of even the FBI’s ability to locate such copies without inside information, if a reasonable effort is made to conceal them.
                If you hide a large cache of documents in a coffin, you have to dig the coffin up every time you want to get a single document out (or even to check that nobody else has done so). It’s just nuts. It makes about as much sense as Pizzagate or any of the other Q-Anon absurdities, and I suspect it arose in a similar way: somebody making up a story either as a joke or to test the credulity of their audience.

                • Rayne says:

                  I really don’t want to encourage the conspiracy theories around Ivana’s casket. There is, however, an assumption the casket went directly from the church to the golf course for immediate interment. We don’t know anything about that with certainty, though, anymore than what was in any of the boxes of materials move from the White House to Mar-a-Lago, and/or other locations, or by whom and exactly when.

                  All that ambiguity is what makes the conspiracy theories successful. This is a problem Congress can fix with legislation requiring GSA and NARA to act cooperatively to inventory every item which leaves the White House immediately before a transition in presidents.

              • pH unbalanced says:

                Being a pallbearer is an honor. Having 12 pallbearers means that there were 12 people you wanted to honor, not that 12 people were required to carry the casket.

  19. Taxesmycredulity says:

    Earlier today some cable legal pundits were discussing Dearie’s work order and how it has made things more difficult for TFG. They implied that if he simply withdrew his Motion for a Special Master that those compliance problems would go away. Is this actually an option? Thanks EW folks for all the info and clarification you provide!

  20. Leading Edge Boomer says:

    A former FBI special agent has called TFG’s specious claim that he can declassify anything just by thinking about it as “Secret Telepathic Unilateral Preemptive Irreversible Declassification” (S.T.U.P.I.D.).

  21. ScorpioJones, III says:

    L E Boomer,
    I am invoking my Telepathic Unilateral Preemptive Plagiarism Deflection Power to steal this.

    Kindest telepathic regards,

    S Jones

  22. klynn says:

    Marcy, thank you for this post and all your posts and appearances this week. What. A. Week. Your clarity and ability to walk the everyday reader through the multiple concerns is beyond amazing.

    A little OT question:

    I read that Trump lawyers Cochran, Rowley and Parlatore were meeting with DOJ at the Federal Court House yesterday (a few sources including unfortunately, Newsweek) and that they were meeting with Thomas Windom? I’ve been trying to find better resources confirming this.

    Is this part of what is going on?

    • ScorpioJones, III says:

      It is reported the lawyers were meeting to argue about executive privilege in grand jury proceedings, naturally the Trump team is using a variation of the spread delay offense.

      [Need from you: please confirm the comment left at 2:07 pm ET today was yours, thanks. User information is not the same and I’d like to make sure we don’t have a spoofing problem. Thanks. /~Rayne]

  23. Christenson says:

    New Filing tonight: Dearie’s protective order. No word if they have a data processing vendor.

    Commentary thereon is that Trumps side has successfully removed DOJ veto over who is allowed to review & handle docs, and that DOJ has probably decided secrecy on the 11K presidential records is not worth fighting — or, IMHO, speculatively, Team Trump may play into DOJ hands by making bad choices and leaking to the press.

  24. paul lukasiak says:

    Per the request of both the DoJ and Team Trump, Dearie has revised the schedule for his Case Management Plan. Only the schedule for the Review of Seized Materials has been changed, however. The deadlines for the Verification of the Detailed Property Inventory remains the same.

    So now, the deadline by which Team Trump is required to provide lists of discrepancies between the Inventory and what Team Trump say was actually taken is the SAME DEADLINE as for all the Documents to be given to Trump.(Sept 30).

    Which kind of makes it even less likely that Dearie “verification” language is actually demanding that Team Trump forego all legal claims that documents were planted after Sept 30. I’m still not sure what Dearie means when he says “a list of specific items set forth in the Detailed Property Inventory”, but it doesn’t appear to mean specific documents that have been reviewed by Team Trump.

    link to revised Case Management Plan… https://www.courtlistener.com/docket/64911367/112/trump-v-united-states/

  25. Scott Church says:

    Judge Dearie: When you say “the President”, do you mean President Biden?

    Attorney: “No, President Trump.”

    Judge Dearie: Let the record show Mr. Trusty was referring to former President Trump, now a private citizen. Please continue.

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