Judge Aileen Cannon Risked the Safety of the Country to Protect Two Probably Public Letters

There’s a detail from yesterday’s Raymond Dearie hearing that I’ve seen no other journalist cover: that filter team attorney Anthony Lacosta described sending a public link of this document to Trump attorney Jim Trusty on September 30.

If it’ll help the parties, I sent email to Trusty on 9/30 that sent a copy of letter at issue. I sent link, they appear to be the same, all that’s missing is signature.

We know from the privilege inventory that was accidentally docketed that it’s an 11-page letter from then Trump attorney Marc Kasowitz to Robert Mueller.

Lacosta mentioned that the letter had been published. That must mean the letter is this one, published by the NYT on June 2,2018 (here’s the text for those who can’t access the NYT).

As I noted weeks ago, this document from the same inventory also is almost certainly a letter released publicly years ago, too.

Harold Bornstein, who was then Trump’s personal physician, released a one-page letter dated September 13, 2016 as part of Trump’s campaign for President.

In other words, two of the documents that Judge Aileen Cannon pointed to in order to claim that Trump was suffering a grave harm that justified enjoining an ongoing criminal investigation into some of the most sensitive documents in US government have probably been public for years. Indeed, the Bornstein letter was released by Trump himself.

Here’s how the government described the harm Judge Cannon caused to the United States by enjoining DOJ’s access to these documents in their appeal to the 11th Circuit.

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, on May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11. In response, Plaintiff’s counsel produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification,” DE.48-1:16. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government records. Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them. [my emphasis]

The government needs to figure out whether Trump’s negligence caused any compromise of highly sensitive documents.

But Judge Cannon decided that letters Trump released to impress voters are more important.

15 replies
  1. Kathy B says:

    I gather that the way Cannon can be yeeted is impeachment. Or perhaps a tempting offer for “something else?” where she can’t hurt people or the country?

    Other than that, is it possible (or dangerous?) for people to ask for a recusal or somehow avoid her as the judge? Even cancelling and re-filing a suit later to keep her from tromping on their lives?

    I do note that her attempts to assist Trump appear to have backfired fairly spectacularly, or are in the process of that. I’m surprised he’s not scolding her rantfully, as he does.

    • Fraud Guy says:

      If the President were of her own party, the genteel way to pension off a once valuable servant is an ambassadorship to some remote location where they can do little harm*. Alternately, becoming the Dean of a not infamous law school is also a happy ending for all involved**. Finally, a posting to a no longer news network as a regular host is considered the most remunerative reward.

      *excepting the locals
      *excepting the students

      • Howard Cutter says:

        Time for the US to establish formal diplomatic relations with the Principality of Sealand? I’m sure Judge Cannon’s many talents would be quite useful there.

    • Joeff1953 says:

      Once the 11th Circuit reverses her and dismisses the case with prejudice, she’ll be history (infamy) for this matter. Maybe govt could seek recusal in future Trump filings (which there are sure to be) but they don’t usually play that way.

    • Commentmonger says:

      Her career can’t ‘nosedive,’ because she has a life appointment – unless removed through impeachment by the US Senate. A VERY high hurdle.

      • SelaSela says:

        She won’t get impeached, but I do hope her name would become toxic enough so that she would never get promoted.

  2. Charles Wolf says:

    He stole the “… very objects of the offense…” while wearing a disgusting presidents’ mask.

  3. Silly but True says:

    Both letters are interesting, and are great examples which highlight Dearie’s “incongruities.”

    Trump’s copy of Kasowitz’s letter _TO_ Mueller is clearly a private record. It is also clearly protected by Attorney-Client privilege. This is not to address in any way _Mueller’s_copy received by Kasowitz; that copy is a federal record that NARA should have gotten via DoJ. Thusly, DOJ can claim record as a federal record, and at same time Trump can claim it as private and attorney-client privileged. I could also see that a case could be made that some might also consider the letter to be a Presidential Record in addition to everything else above.

    The Bornstein letter is most clearly considered a private record. However, a case could be made to extent it may have served in Presidential deliberations after Trump became President for example in reference to a subsequent physical then a copy might be a Presidential Record that one might still assert either PRA private or PRA privilege.

    Stretching hypotheticals further to case different from this that if it hadn’t been released then it may be possible that health information on a POTUS might conceivably be classified in addition to everything else it might be.

  4. ajcharnc says:

    Its been so while since I posted anything here I don’t remember if I added the “nc” or just “ajchar” I’ll remember to add the “nc” to meet 8 characters.

    IANAL just an old computer tech who read a lot of court decisions years ago so I rarely comment.

    Dr Wheeler (and friends & commentators) are informative and entertaining. I stop by at least once a week and lurk :)

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  5. Thomas says:

    What happens when a judge commits felonies with a plaintiff?
    Presumably, a judge can be indicted, arrested, prosecuted?

    Is a judge necessarily removed pending trial, in such a case?

    It really seems like Cannon’s actions are abnormal and not just bad calls.

    • Silly but True says:

      There are probably several issues rolled up in any response.

      Indicted, arrested, prosecuted: Yes, they can. But none of that necessarily relates to them being a judge, actively serving as a judge, or drawing taxpayer-funded paycheck.

      Federal judges are appointed for life and can only removed from office upon conviction by US Senate by Congressional impeachment.

      Courts can administratively address a judge’s arrest, indictment or prosecution by administratively modifying their caseload. And if they don’t, there is nothing inherent in a judge’s arrest, indictment or prosecution that would otherwise modify that judge’s cases; it’s likely their cases are going to be significantly delayed, and that delay would have downstream implications. But even if they’ve been sentenced to life in prison or death penalty, they will continue to serve as judge and draw their judge paycheck until removed from office or death.

  6. Grannysue says:

    First time commenting. Visited firedoglakde and daily kos since Clinton. Thank you for the great conversation and fact filled assessments. Daily kos awill not me comment anymore. Posted as grannyj. .but get the truth here.

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