Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.

159 replies
    • Laurie Walker says:

      I don’t think people realize that getting a conviction of a former POTUS will be difficult under any circumstances, but if the DOJ rushes to indict he would almost certainly be acquitted. He would play the victim and his supporters would view him as a martyr and seek revenge, which could be worse than justice denied. The DOJ also wouldn’t be able to charge him again for the same crime(s). It must be handled properly. I personally wish we had asked the ICC to investigate his crimes against humanity so he could be tried at the Hague. For any charges that might be brought against him, his defense will claim that a fair trial isn’t possible, and it would actually be a strong defense for a trial in any of the 50 states or DC since most potential jurors would either strongly love him or hate him and the judges are partisan, many appointed by him (and his judges don’t respect the rule of law enough to recuse). I’m concerned it could result in a mistrial no matter how strong a case the DOJ has.

    • Rich says:

      I believe if they can not and will not charge Matt Gaetz, then Trump has absolutely nothing to worry about.
      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. I want to note as well your IP range has been linked with a repeat sockpuppet. Thanks. /~Rayne]

      • Scott Rose says:

        It might be reasonable to point to the successful prosecution of Sylvia Ash and to ask why Trump was never held accountable for obstruction of what is colloquially known as the Russia investigation.

  1. Kathy H. says:

    If he announces that he’s running 2024, does that mean it’ll have to wait until after that election? I thought that was the reason they couldn’t touch him pre 2022 election.

      • Kathy H. says:

        Thank you. It’s unbelie-vable how many times I heard that repeated, and by so called credible journalists.

        • Tech Support says:

          DOJ does have a *practice* of limiting it’s public actions impacting actual candidates in the period (60 days?) immediately preceding an election.

          The distinction between what’s actual and what’s apocryphal is best highlighted by the arrest of MI gubernatorial candidate Ryan Kelley back in June for his 1/6 participation.

        • Kathy says:

          Thank you!
          [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ve left two previous comments as “Kathy H.” which is shy of the minimum; “Kathy” won’t work here because there are multiple community members named “Kathy” or “Cathy” and with ie endings as well. Thanks. /~Rayne]

  2. Peterr says:

    The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour.


    I am reminded of John Bolton here, with his refusal to testify to the impeachment committee but willingness to tell all in his book.

    Maybe instead of issuing subpoenas, the DOJ should offer book contracts.

    • bmaz says:

      Lol. Naw, just give them a grand jury subpoena. Don’t think Beryl Howell has much appetite for the EP bunk anymore.

      • Peterr says:

        I think she’s probably been hearing the words “crime-fraud exception” a fair amount in the past two years.

    • Alice says:

      Total bunk. Reality Winner was arrested and charged within weeks.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security; we also have more than one “Alice” in the community. Thanks. /~Rayne]

  3. Ruthie2the says:

    Trump’s claim to have used DOJ/FBI to stop the count in Florida in the 2018 election raised questions about the seemingly politicized (if true) actions. Scolding Garland for not acting NOW essentially asks *him* to act politically rather than following standard procedure.

    With regard to possible indictments, is DOJ likely to act before all parts of the investigation have concluded before indicting even one? If they complete an investigation into the stolen documents, for example, are they likely to file charges while remaining strands of the Jan 6 investigation are hanging?

  4. Estragon says:

    Two minor nits: the prongs are converging not conversing. And the Georgia investigation paused in the run up to the election.

    Thank you as always for your outstanding, and lucid, work.

      • Richieboy says:

        bmaz, I understand where your exasperation with commenters suggesting minor corrections is coming from. In many contexts, pointing out corrections like this can seem like gratuitous “gotchas.” If I’m writing for print and one of my errors makes it past the editors, pointing that out to me is more like a “gotcha” than a helpful corrective, because once it’s ink on paper, there’s nothing I can do about it. But to me it seems like a blog post is different, because it can be easily corrected. And such corrections can often improve the readability and credibility of the piece (and the site). Regular readers understand that the posts to this site typically aren’t reviewed by an editor, but new readers may not. In that light, most of the correction comments I see seem less like “gotchas,” and more like sincere attempts to contribute to the impact and credibility of the site. Thanks.

        • Rayne says:

          It’s a blog post. This is not a commercial newspaper with professional resources like copyeditors.

          I mean, you literally said in your comment, “it seems like a blog post is different” which means there isn’t a team working on new research and posts in addition to copy editing. You get prolific well-researched material or you get thin volumes of perfection. You cannot have both.

          This picayune concern trolling drives moderation insane because there are enough other trolls to swat down at the same time. If someone wants to point out a grammatical error or typo, do so succinctly and then leave off the fucking 152-word editorial explaining why someone with 48 comments to date under their belt who can read this site for free feels they are entitled to demand specific performance.

        • LeeNLP941 says:

          I wonder if people feel obliged at some level to make small talk on this site. I know I suppress that urge frequently- maybe not often enough- the real estate here is too valuable to waste, and failing to pipe up is not a sign of lack of respect, quite the opposite. My compromise is to toss in a spare but sincere “thank you!” occasionally.

        • Richieboy says:

          Wow. Ok, got it.
          [I assume you used the wrong username and the wrong address as well? Because this screenname has something shy of 50 comments. /~Rayne]

        • Norskeflamthrower says:

          Thank you for your clear, patient, rational and polite explanation and I’m sorry that you had to do it…sigh.

  5. Patrick Ryan says:

    Good day Marcy,
    In another excellent post you chose a turn of phrase that might get you in trouble with your spouse. You wrote, “No. Merrick Garland has not carted Trump away in a paddy wagon.” Many years ago I used that term while making an argument in the Boston Municipal Court. The trial judge, an Irishman, admonished me for engaging in an ethnic slur. The term Paddy Wagon is linked to a historic stereotype that painted Irish immigrants as no more than “drunk criminals” in the U.S. I was embarrassed by my ignorance and never repeated my mistake. Thanks for your work and please give your spouse my regards.

  6. glenn storey says:

    Well, I’m not a lawyer, I’m merely a humble carpenter, so this may be an imperfect analogy, but here it is – you can’t build a house until the foundation is poured. {Or the blocks are laid, whichever method you choose}

    • emptywheel says:

      I just painted a wall of my living room. And was wondering if there’s a word painters have for the glee with which, after hours of cutting in the edges, they roll out the bigger walls.

      I suck at painting. Don’t have the patience.

        • P J Evans says:

          My mother was pro-level at doing the walls, stopping a neat 8th-inch short of the ceiling. (Pros admired her work.) She also chose colors well.
          I did a bathroom once, including sanding the walls and ceiling, but it was all white. Using a (borrowed) orbital sander.

        • bmaz says:

          Frog Tape is better than blue or tan masking tape, but yeah, the best folks I have seen do it by hand. I “think” hand is better even for a dope like me. Just be careful! And remember you can take a small arrow tipped brush to clean it up later.

        • LizzyMom says:

          My dad was a high school teacher back when the pay was even crappier than today. He had summer jobs to help pay the bills; one of those jobs was house painting (interior and exterior). He never used tape, pretty much never used a drop cloth. Taught us kids how to do it right — the trick is to have enough paint on the brush so that it slides along the molding smoothly, but doesn’t drip or splooge (technical term). Also, long, slow steady strokes done with care around the edges.

          I painted the 4m high living room in my apartment in Berlin many years ago without a drop cloth or any tape (parquetry flooring survived intact). If you take the time while painting you save yourself all that extra work.

        • Fran of the North says:

          I painted professionally (mostly new construction) for 4 years after university in a ski town, now just do it for home maintenance purposes.

          The key to cutting in is to 1) use as large a brush as you can control (ideally 2.5-3″, an angled bristle cut makes it easier but not required ), 2) dip the brush and then take most of the paint off on the side of the can, and to 3) angle the ends of the bristles and use the ‘bead’ of paint that is out in front of the bristles to define the edge.

          Then once you have a nice clean cut line with good paint coverage, you can go back over the rest of the brush stroke with your bristles 1/2 inch away from the cut lines to even out the pint and make it all look good.

      • John Lehman says:

        The Old Painter

        Cut and roll, cut and roll
        Thirty years of doing so

        Sand and patch,
        Mix and match

        Crawl and reach
        Slip and screech
        The scaffold, the ladders
        The noise…oh the clatter

        Clean the airless
        Prep and spray,
        It’s past my time
        ‘Twas quite a day

        Now with the little time that’s left
        It’s just an easel’s stick I heft
        Vision now that it’s my duty
        To maybe leave a trace of beauty

        -John Lehman

    • B Ruff says:

      Ah, a carpenter analogy, something I can speak to with authority (I am also a carpenter).
      Here’s mine: A carpenter is only as sharp as their pencil.
      I continue to return to empty wheel because Dr Wheeler writes with a very sharp pencil.

    • Robot17 says:

      Ok. I’ll bite.

      All tools are hammers. Except screw drivers. Because they’re chisels.

      I have no idea what that has to do with anything.

  7. Fraud Guy says:

    Like watching a new subdivision going up. After the purchase, the surveys, and the plats, first build the streets, then you can start on foundations and stack up the building materials. Once the foundations are laid, then you can build it with alarming alacrity, but complaining about the fact that houses aren’t completed when you first see the brochure is a bit premature.

    • P J Evans says:

      Substructures go in before the paving, but after the streets are laid out. (I read utility work orders. They always, always came in in reverse order, with the main piping last. Fixes were first…)

      • gknight says:

        Planning, design, reviews, corrections, signatures, permits…

        I kept being told that engineers and contractors can get it built. But planners have to make sure that it solves the challenge at the right time in the right place first.

  8. StevenL says:

    “But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich.”

    And, as I understand it, from Mark Meadows.

  9. Whinger says:

    We are so far past when the arrest needed to be made to get it done in time that it probably no longer matters if he’s still investigating or not. Zero chance he gets everything wrapped up before the 2024 election at this point. He failed to mitigate the threat to democracy and, very possibly, also failed to even get Trump to spend one day in prison, and hence, Garland very possibly failed to restore the rule of law.

    • bmaz says:

      And you continue your whinging in favor of prosecution based on political considerations and timelines, not legal ones.

    • Cheez Whiz says:

      I have this Grand Unification Theory of American Politics to explain chaotic voting patters and undecided/swing voters: a plurality of voters neither like nor understand politics and government, so their votes are driven by personal feelings about the candidates. These are the same people complaining about the feckless coward Merrick Garland who is denying them the starburst thrill of seeing a Trump perp walk. It’s an almost willful blindness to both the complexity of our legal system and how it’s evolved to expressly protect powerful and privileged people like Trump, even ignoring all the land mines the Federalist Society has laid.

    • Clare Kelly says:

      Although the day is young, this may be the most stunningly aggressive, self-own I’ve read to date.

      While bracing myself for reading the inevitable blow back, I checked the lede in case you merely did not read beyond it.

      The lede on this piece:

      Nope. It could not have been more clear.

      In the body:
      “There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.”

      We are the beneficiaries of Dr Wheeler’s uncanny ability to gather and analyze what are arguably the most complex natsec/jurisprudence issues of our time, delivered with unprecedented, witty lucidity.

      Unless this was some sort of selfless act to provide a stunning example of the “whinging” she anticipated, I applaud you for your commitment to intransigence and suggest virtual arnica for the bruising to follow.

    • BirdGardener says:

      “…it probably no longer matters”—I’d argue that it matters greatly that we establish, beyond all doubt, that our presidents are answerable to our laws. President Ford prevented us from holding Nixon accountable. It’s very important that we hold Trump accountable, and that we do so in strict accordance with the law. The DOJ cannot cut any corners.

      If you need to blame someone for Trump having escaped accountability so far, blame the GOP senators who refused to convict him after the House impeached him.

  10. Badger Robert says:

    I don’t care about Trump. Prosecute the corrupt attorneys and the other conspirators. Juries will convict them.
    But the jurisprudence aspect is just the beginning, It has to happen so carefully that Biden/Harris get re-elected and possibility of pardons is pushed out to ’28-’29.
    If DofJ wants to create deterrence they have to ruin careers.
    More sanctions for frivilous lawsuits might help too.

  11. David Salomon says:

    Ex-carpenter here. The expression, “measure twice, cut once” comes to mind. I would say that Mr. Garland is proceeding judiciously.

    • Tom-1812 says:

      Another senior’s moment. Failing to read through all the comments before leaving my own above at 11:01 am.

  12. Amicus says:

    This all seems correct and DOJ absolutely needs to be free of Judge Cannon before proceeding with any indictment in the stolen document case.

    But I don’t know that I would call Trump’s recent 11th Circuit brief desultory, it strikes me more as capitulatory. Trump’s attorneys have adopted Trump’s point of view: if a President absconds with classified documents then he owns them.

    “[H]ere, since President Trump had complete authority under the PRA to designate initially the records at issue as ‘personal’ during his presidency, and the seized records ‘were not provided to the Archives at’ the end of his presidency, the seized records are presumptively personal.” Br. at 20-21. Indeed, he did not even have to say anything to transmogrify the documents and make them his, he just had to take them. “President Trump’s decision to retain certain records as ‘personal’ and to not provide same to the Archives at the end of his presidency constitutes a demonstrable, and effective, exercise of his discretion under the PRA to categorize those records.” Id. at 18 n.6.

    Now, there is no affidavit saying that Trump knowingly made off with the classified documents because if (perhaps more likely when) the “he can just take it” legal defense fails, the affidavit would be inculpatory. And there is the inconvenient issue of having returned some classified documents in response to the compunction of subpoena while lying about the retention of others.

    In any event, there is every reason to believe that the 11th Circuit brief is the road map of crazy that Trump has finally convinced his attorneys to argue on his behalf.

    • Stephen Calhoun says:

      The marvelous (in a terrible way,) mash-up of unitary executive, self-serving circularity, and, special pleading in the brief may indicate that Trump has turned his lawyers into stenographers.

      My dumb guess is that Trump believes he possesses a naturally gifted legal mind. So, yeah, in TFG’s fantasy world, this is all just a ‘dispute about documents.’ Still, it is amazing to read this, knowing it was submitted to the Court.

      • Amicus says:

        It strikes me as laying the foundation for a possible defense should he be indicted. I’m about to go outside my lane, but reading the brief I kept thinking that this is fodder for a jury: “how could this man be guilty if had been told and believed that he had the right to treat these as his personal documents. It’s all been a misunderstanding blown up into a criminal case.” That ought not to fly (is my surmise) but DOJ has to convince 12 jurors.

        This has always been one of the considerations I keep going back to, what is it that he took – how bad is it – that DOJ believes they could convince 12 jurors to convict.

        I understand that DOJ takes the Cinderella approach in these kind of cases – use documents sensitive enough to convict without risking gray mail or undue disclosure, but I suspect the porridge here is going to have to be pretty warm.

  13. David M Steele says:

    Garland is making sure any convictions will stick even through the inevitable appeal process with Individual-1. As I’ve noted before, contrast that with Durham’s circus which to be fair was really intended as a red meat conveyor for Faux and its ilk. Mueller was likewise careful (maybe too careful, however he did leave pointers for use later) but still managed to get a slew of convictions and plea deals in addition to turning a profit from the forfeitures.

    I suspect Garland’s idea is to ensure Individual-1 is as isolated as possible when the marshals come knocking. Individual-1 is also doing his part by not shutting up and the egg laid by the RW in the midterms might give the more establishment types their window to split the party. After all, why would the NY Post run the ‘Trumpty Dumpty’ front page unless Rupert’s trying to disengage from MAGA? While a 30%-40% share of the RW electorate can’t be ignored in the primaries, they’re not enough to protect Individual-1 by themselves when he gets indicted.

        • Ginevra diBenci says:

          Knot the knitter in my family. And I refuse to play witness to the attempted launch of DeSantis, who appears to be the Murdochs’ current rocket boy.

  14. smf88011 says:

    What would be awesome (in my opinion) is that they announce Trump being indicted just before he is to announce his running for President tomorrow and take him into custody just before he is to take the stage. If not then, maybe we can get it done by Christmas.

      • J R in WV says:


        We’re not asking for President Biden and AG Garland to establish a police state, or even cut corners. We just want a happy ending, with solid and evidence-based grand jury indictments of all of the potential criminals involved with the Jan 6 insurrection, the theft and mishandling of government documents, classified or not, and election tampering by so many people. Followed of course by trials and convictions.

        False electors should all have been interviewed repeatedly by FBI investigators, anyone who so much as spoke to a false elector about their activity between the election results becoming final and Jan 6th should have been interviewed, and all involved should have had an opportunity to testify before a Grand Jury.

        I think most all of us who have been visiting EW for lo these many months want to see justice properly done, and believe that if it is properly handled lots of miscreants will be convicted.

        Please, Santa Wheeler, all I want is my nation back for Xmas !!! And poor Mr Trump made ineligible for any government office under the 14th Amendment. And maybe a new kitty… We lost an elderly love bug kitty named Spike a couple of weeks ago.

        • Rayne says:

          “We just want a happy ending” — 201 words insisting on getting the toy right the fuck now. Jeebus.

          There is no Santa Claus. I’m sorry you lost your kitty but there is no way to the end without going through the path.

        • LeeNLP941 says:

          You mean there is no royal road (to geometry, to justice, to knowledge, etc)? How long has that inconvenient truth been preached and ignored throughout history, I wonder?

          I love your description, Rayne. Gives me chills, like “Mufasa”. :)

        • Rayne says:

          IMO — though I’m hardly religious, being a lapsed Catholic — one of the most important lessons in the Bible is that of the tower of Babel.

          There is no ladder to God or to godliness. There is only the hard work here on earth, cooperating and collaborating with others. No cutting in the queue, no shortcuts. Do the work.

      • Paulka says:

        Is the Constitution a suicide pact?

        If Trump can survive long enough to be reelected, does anyone think that our nation will be the same afterwards?

        At what point does Trump’s ability to abuse due process become legal corruption?

        And do not try to convince me that frivolous lawsuits and baseless objections and nonsense appeals are anything but the ability of the wealthy to abuse the system.

        And, thus, the question remains, how many crimes are enough? Is not one of the reasons to detain someone prior to trial is to prevent them from committing ongoing crimes?

        Just in the past, what 3 or 4 days, we heard about 2 massive crimes-the use of the DoJ to assist a political ally in getting elected and the IRS to punish those opposing Trump.

        Reality Winner was arrested 30 days after releasing 1 document to the press. Trump is months if not years away from being arrested for a crime infinitely worse.

        And if the criminal justice system cannot function adequately or effectively to prevent his re-election, then what? We are to accept that this is what our nation is now?

        Is the Constitution a suicide pact?

        • smf88011 says:

          You nailed it. I agree with your post 100%. Just because he is “rich” and was a President of the United States shouldn’t get him off from having to face the consequences of his actions. If anything, he should be held to a higher standard.

        • smf88011 says:

          Go look at the message I replied to again. They didn’t call it that. They asked a question. I didn’t agree with the “suicide pact” statement nor did I say that I did. Everything else in their post I agree with. Trump needs to be in jail for what he did with those classified documents – if it was you or I, we would already have our mail forwarded to Fort Leavenworth. This is something I have been told by the Security Division for over 3 decades – the very definition of mishandling classified documents is met with Trump’s actions.

          Further, you cannot just “think” something is declassified and it becomes declassified. There is paperwork and notifications that need to take place before it is considered declassified. How do I know this? I am one of those people (Authorized Derivative Classifier) that had to determine if something is classified or not. If we haven’t been notified that something has become declassified, it is still classified.

        • bmaz says:

          Lol, okay, whatever. I have been at this a very long time, your personal experience from days gone by does not lend, at least to me, any help whatsoever.

      • smf88011 says:

        No, as someone that has held a security clearance for over 3 decades and has been an Authorized Derivative Classifier, I am enraged over Trump, what he has done, and what he has gotten away with. If I was the one that did what he did with these documents, I would already be sitting in my cell at Ft. Leavenworth with a sentence of 20+ years. Trump is a disgrace to the American people, should be disqualified from holding political office, and be wearing an orange jumpsuit that matches his fake tan.

    • joel fisher says:

      He’s not going into custody anytime soon after indictment. He might have to surrender his passport and the keys to his airplane after his arraignment. And then, how many appeals? Every step, a new appeal. He can stall with the best of them. Pretty easy to eat up 2 years.

  15. Yet Another Cynic Philosopher says:

    Even Weissman was pulling his hair out / saying enough delay from DOJ on twitter this morning, but I guess he’s just another whinger.

    • emptywheel says:

      Weissmann has repeatedly and very loudly made claims that evinced not a shred of awareness about the investigation. He and other loud commentators I know tend to get their news about investigations from legacy media, that don’t report details like this (for example, only the Guardian reported on the commingled docs in the outlets, and only two days after I did).

      I’m not trying to convince people DOJ will indict. I’m demanding that people at least look at the public record. Weissmann has not.

    • Ginevra diBenci says:

      It’s unfortunate that Weissmann’s Mueller contributions have led to him being anointed as the legal eminence gris among center-left media. He is not some kind of absolute authority on all investigations of Trump, just one prosecutor with his own ideas on how things should go–that and a telegenic apartment from which to opine.

  16. The Dude Abides says:

    Do we have any idea yet in which venue the DOJ might charge FPOTUS in the stolen documents case? I hate the idea of the trial being held in Florida and am holding out hope for a trial in D.C., if there is one.

    • Rugger_9 says:

      I would hope DC as well, since the PRA IIRC specifically cites that as court of first jurisdiction. The only reason FL is in play now is that the fully warranted search took place there and Individual-1 is trying to block access to its results. Otherwise, potential searches across the East Coast would argue for a consolidation in DC since this case is about still PRA compliance at its heart. However, all of that is AG Garland’s call.

      • The Dude Abides says:

        Thanks…so, no hint yet. I can’t imagine Garland choosing to have this trial in FL, but I’m haunted by the various DAs and judges here in SoCal making ill-fated decisions on trial venues in the 1990s.

    • emptywheel says:

      No. It’s tricky. Because if they know of more docs in a non-FL location, they could do a search there and it’d probably be a better venue. But for other reasons they may want to use the docs they’re withholding now to broaden exposure.

      Thus far, though, venue’d probably be FL.

        • joel fisher says:

          Am I missing something, or wasn’t the leaving of the WH with the stolen docs the beginning of the docs case?

        • joel fisher says:

          It’s killing me to say this, but might it not have been perfectly legal for the POTUS to put the docs in his helicopter, but his behavior became criminal when he had them in Air Force One somewhere over Georgia. Tell me there’s something wrong with this.

        • Rugger_9 says:

          Doubtful and no. It has to do with the law about handling classified documents, especially ones as sensitive as these are. Your scenario doesn’t comply with the law’s requirements.

        • matt fischer says:

          I don’t know about “perfectly legal,” but I think your question is more pertinent than Rugger_9 would like to admit.

        • earlofhuntingdon says:

          OK, then. As you pointed out earlier, and setting aside jurisdictional issues, the violations of law started with the theft of USG property, and the mishandling of classified documents. Where is an important but secondary issue.

        • emptywheel says:

          That’s not the way to charge this and make it stick. This is not about theft. It’s about retention. And the way you convict is prove that Trump retained docs AFTER he was told to give them back. Charging the period from 6/3 to 8/8 will be the way to do that.

        • bmaz says:

          I disagree, and think all document crimes, and potential charges on them, started in DC and are chargeable there. What occurred in FL was just a continuation thereof. People are overthinking this. If Trump wants to attempt removal, fine, let him try. Then again, I don’t think Garland and DOJ should have ever sought or agreed to SDFL jurisdiction, and yet there they are.

        • Rugger_9 says:

          Would the juries be more favorable in SDFL, or just Individual-1’s hand-picked judges? If the juries aren’t more favorable, going to trial doesn’t help TFG at all, subject to whatever constraints are imposed for trial.

        • bmaz says:

          Oh, no, any jury is SDFL would be be FAR more likely to acquit or hang. Would be a terrible place to try a criminal case against Trump

        • The Dude Abides says:

          Re which jurisdiction would have a more favorable jury: D.C. voted for Biden over the other guy 92% to 5%. Any competent prosecutor should be able to eliminate any potential MAGAts in the jury pool during voir dire.

        • Ginevra diBenci says:

          Does the team’s new argument that “He made them personal by taking them” seek to preempt a retention-based indictment?

          I noticed reading their newest brief that they’re not talking declassification anymore. And they have the nerve to accuse DOJ of changing the narrative.

  17. surfer2099 says:

    “The reason is that DOJ is still pursuing the evidence they would need before charging a former President.”

    This statement implies a privilege that other Americans don’t enjoy under the law. Trump is just a citizen now. There is literally years worth of public evidence of crimes to get him in jail waiting other charges to be brought. The government need not wait until all evidence is gathered for all crimes committed before acting on a single charge. That’s like waiting to convict a serial killer after his 10th kill cuz you don’t have evidence of kills #8 & 9 while you have enough evidence for kills #1-4.

    I will say again as in the past. I don’t think the government will ever charge this man with a crime because they are afraid of the optics. And that is no justice at all.

    • P J Evans says:

      They want iron-clad stand-up-against-all-claims evidence. Because they know at least one juror will be a Trumpista.

    • bmaz says:

      This is absolute ignorant bullshit. I don’t know about you, but I have represented defendants in complex conspiracies before, and they often, usually even, play out over three to four years. Please try to not falsely make people in this comment section stupid when there is information out there that is truly contra.

      • surfer2099 says:

        I am not a lawyer. I’m an accountant.

        My comment was my personal speculation on the outcome or what is currently happening. If those who read my comment and get more stupid from reading it, then I’m not sure they were all that smart to begin with. lol

    • WilliamOckham says:

      It took 5 years to bring Ken Lay and Jeff Skilling to trial for the Enron debacle. And that was despite Andy Fastow copping a plea and incriminating them. The problem isn’t so much that rich powerful people are hard to convict. The problem is that poor, powerless people are too easy to convict.

  18. Randy Baker says:

    I missed what investigation DOJ needed to complete before charging Trump for demanding 11,780 votes in Georgia, which, of course, was a violation of federal law.

    • bmaz says:

      Um, how about intent and causation? Forum and venue? Confirming witnesses? You missed the necessity of all that?

      • Randy Baker says:

        The required intent is to cause the person to add votes that do not exist. A reasonable person in Trump’s position would have known they do not exist. That alone suffices. However, there also is ample evidence Trump expressly had been told by reliable sources the votes did not exist. Causation is transmitting the statement to the Georgia officials. That is impeccably established by the tape, and corroborated by percipient witnesses — as the cherry on top. I don’t believe forum and venue require substantial investigation, since it is known where Trump was when he uttered the statements, and where the Georgia officials were when they received the statements.
        So, I am pretty sure I got all that, but thanks for checking.

  19. Rwood0808 says:

    The whingers may be wrong, but its not hard to understand their anger. The main reason they keep yelling is that they have been told their whole lives that “Justice delayed is justice denied” and all they see in regard to trump is delay-delay-delay.

    It’s been two years since trump was voted out, with an avalanche of crimes committed both before and after that date. They see no reason why the DOJ needs 2 years to do its job as they compare it with other things that can be done in that amount of time and it only adds fuel to their frustration.

    Here’s just a sample of things that can be accomplished in 2 years:
    – Earn a master’s degree
    – Build four average homes
    – Write 4 novels
    – Have two children
    – Build the Eiffel Tower
    – Build 2 cruise ships
    – Build 2 Empire State buildings
    – Walk 2,000 miles
    – Clean up 3 9-11’s
    – Make an average Hollywood film
    – Fight WWI (US)
    – Invent and deploy a vaccine
    – Travel to Mars and back

    So it’s not hard to see why the average voter would be upset by the pace at which the cases against trump are moving. They see simple decisions from judges and can’t wrap their heads around the time required to make them. “Why does it take three weeks and 36 pages to simply say “No”!?!”

    Now add to this the constant delays Trump is able to leverage, with very little effort, and it does nothing but reenforce the “two-tiered justice system” they are told doesn’t exist. So the frustration level rises even more.

    Bmaz says justice is not political and that the end goal is accountability. I agree, but the average man-on-the-street will look at that and say “Ok, he went to jail six years after he committed the crimes. He did a ton of damage in those 6 years. What exactly do WE get for all this awesome accountability?”

    Politics is the means by which trump and his ilk do the damage they do, so yes, the average person on the street wants the DOJ to take action and prevent him from taking part in the political process. Politics is a huge part of this, even though it shouldn’t be.

    • BirdGardener says:

      “…wants the DOJ to take action and prevent him from taking part in the political process. Politics is a huge part of this, even though it shouldn’t be.”

      This was the Senate’s job, and they failed because most of the Republican senators refused to convict Trump after the House impeached him. It strikes me as unwise to blame the DOJ when it’s the Republican senators who have left Trump free to run for office again.

      The DOJ is doing its job. They’re not the ones who failed us.

      • bmaz says:

        It is also Pelosi’s fault for ordering only lame and half-assed impeachment inquiries. Don’t put this all on the Senate, when the House refused to do the job too.

      • Rwood0808 says:

        The DOJ is doing its job, I’m just saying that the end result will be too late to have any impact on…anything.

        It’s too late to jail trump before the 2024 election. So what’s the next best thing?

        At this point it may be better if the DOJ delayed the indictments. Trump will announce soon, which puts him up against DeSantis for the oval in 2024. That will split the GQP ticket. I don’t see Trumps cult followers voting for anyone but him. His narcissism will never allow him to tell them to do otherwise. So if they stay home it will rob DeSantis of the votes needed to win and the Dems will most-likely keep the presidency.

        A set of nasty ongoing trials leading up election day could be just the ticket to sink the GQP in 2024. What are the chances the trials will be televised? I would imagine trump demanding it as he thinks it will help him.

        • bmaz says:

          So, you seriously want the DOJ to act on political timelines and basis? Will you want that the next time it is in the other party’s hands? Why do you think that critical now?

        • Rwood0808 says:

          Nowhere in my comment did I say that. I merely pointed out that when the time comes for “accountability” it will be too late to have any impact that matters.

    • John Paul Jones says:

      Don’t know quite what sort of novel can be written, edited, re-written, proofed, set, proofed again (galleys), reset, printed, bound and shipped in six months but I would wager it would be relatively short (under 100K), and probably fairly generic. The last five items alone could easily take two months, even for a short novel. I’ll admit such things do indeed go by the name of novels, but I would dispute whether creating such an artefact would actually be worth the effort for any writer worth their salt.

      • Rwood0808 says:

        That brought a smile, but I’ll refrain from anything further as you obviously don’t know who I am.

        Grisham writes his books in three months. Child even less. I average 6-8 myself.

      • WilliamOckham says:

        Corín Tellado would disagree. She published more than one novel a month for years even though she had to get hers past the censors in Fascist Spain. RWood808 is a slow poke compared to her.

  20. A Sleuth says:

    I do have inside knowledge of the workings at DOJ and FBI.
    And, I can assure you tRump, nor any of his cohorts will be charged for Jan 6th or the classified document theft.

    Carry on.

      • Rayne says:

        Look, we view with suspicion commenters who make such claims with zero supporting evidence, who have not apparently commented here before this thread, and whose other identifying information is cryptic.

        Don’t drop this kind of crap here.

      • Ginevra diBenci says:

        Sleuth, I don’t intend snark but rather a good-faith effort to understand your comment. Do you mean “Neither Trump nor his cohorts will be charged … “?

        I thought I grasped your first comment, but the second threw it up in the air.

    • bmaz says:

      I don’t believe you. And your insistence on using a bullshit descriptor like “tRump” makes me, and hopefully anybody who reads your comments, makes that even less so.

  21. Drew in Bronx says:

    On Twitter, etc, so many are enamored with getting an *indictment* of Trump, as if there’s something magic about getting an indictment. It’s an official accusation, that’s all. One real problem in the discourse is, that on the ham sandwich theory of indictments, it it *is* likely that some prosecutor could get an indictment of Trump on pretty short order–there’s certainly more evidence against him than there was of Michael Sussmann when Durham indicted him.

    But that’s the thing, a crappy indictment can make it difficult, sometimes impossible to get the evidence together to get a conviction, especially in a high profile case with a defendant with access to lots of money for a legal defense. Much more is needed than merely indicting Trump or even convicting him to remedy all the damage that’s been done.

    Thanks for the excellent analysis.

  22. Setec says:

    Thanks for the analysis.

    For those of us who want Trump to face justice, how worried should we be about the possibility that Trump can drag this whole thing out—with the justice system dutifully dedicating months to every specious claim of privilege or declassification, and judges taking months to process appeal upon appeal of every minor detail—to a point at which Republicans retake the presidency, throw norms out the window, and sink the investigations via unethical or illegal interference? It would be easier to be patient about this slow-moving process if I could be confident the pace does not put the entire thing at risk.

    Also, why aren’t we hearing anything about Trump being investigated in the campaign finance violations that put Cohen in prison? Wasn’t it established that he committed those crimes at Trump’s direction? To the untrained eye, it looks like the system feels obligated to forget one of Trump’s previous crimes every time he commits a new one.

  23. gmoke says:

    I am not pushing DOJ to indict quickly. I’m happy to have them build an iron-clad case before they go to court. What worries me is that it seems logically impossible to empanel an impartial jury for any case involving tfg. Not a lawyer but that strikes me as a fundamental problem that the lawyers among this group might want to take up before any possible indictment comes down.

  24. Rugger_9 says:

    It seems Individual-1 got another one of his SDFL judges (Ruiz this time) for his J6 committee suit. I thought the J6SC did all its work in DC.

  25. Yet Another Cynic Philosopher says:

    ‘There are few things more disconcerting than learning that the rescue team is in on the plot.’
    –Sarah Kendzior

  26. Mighty Mike says:

    I get this. But at the same time, I gotta say that dismissing our frustration by calling us “whingers” and essentially fluffing a “go away” gesture at us is very reminiscent of the MAGA crowd.

    • bmaz says:

      And you are “fluffing” nonsense. Calling us MAGA like for knowing that any case against Trump has to be airtight and knowing that there is a tried and true process to get there is, indeed whinging. To charge and prosecute such a case not only requires admissible facts as to the legal elements of any and every crime charged it also requires being fully prepared to rebut any affirmative defenses that could be be raised in a Trump defense. That takes time to work from the ground up.

      What the whingers are fluffing is your own political concerns over the proper exercise of the criminal justice system. Now that is actually pretty Trump and MAGA like. Shortly after the first of 2023 it will be three years in. To put it into perspective, the last large conspiracy case I did took three years to be fully charged (much less resolved through trials and sentences), and I believe parts of it are still ongoing because there was also an international component. That was a huge conspiracy, but nowhere close to the daunting task of going after J6 and Trump.

      So, yeah, lets do it right and get it all down before making a decision as to whether to charge and prosecute. You think all the crap you see on TV, including the J6 Committee, and think you know from anonymously sourced print reports is “evidence”. It is not. You have to have admissible evidence and witnesses or other basis to actually get it admitted in court. In law, that is called a proper foundation. It is a light year different and more onerous than the common whingers think. There remain holes that need to be filled first. The criminal justice system is not a cure for your, nor anybody elses’ political concerns. Thinking it should be is fools’ gold.

  27. loquitur says:

    Why might the classified docs investigation be gated by Kash Patel, causing further delay?
    Don’t declassification (or classification) procedures leave plenty of audit trails, per protocols
    mentioned here for really scary stuff, where multiple agencies must sign off?

    If so, you don’t need to ask Patel about it, just ask the DOE/DOD/DNI if any request came across
    the transom. Also here’s a good primer:

    Methinks if Executive order 13256 were overturned by Trump, you’d hear about already
    by some affected agency.

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