Aileen Cannon’s Special Master Review Helped DOJ Prepare for a Key Witness Interview

My impression of DOJ’s reply brief in their 11th Circuit appeal of Judge Aileen Cannon’s decision to appoint a Special Master to review the files seized from Mar-a-Lago is that they’ve gotten whatever benefit they could get from the Special Master review and now that the election pause has passed, they’re really impatient for the injunction on their investigation to be lifted so they can interview the last few witnesses. That probably includes Trump assistant Molly Michael.

The reply repeats the arguments DOJ made in their opening brief: Judge Cannon abused her authority by getting involved in a case where there was no evidence of callous disregard for Trump’s rights.

But even before that, it calls out Trump for totally changing his tack, no longer arguing that some privilege merits withholding documents from the government, but instead the Tom Fitton theory that Trump could simply convert Presidential Records into his own property by packing it in a box and shipping it to Mar-a-Lago. Since this is a new argument, it’s not proper.

None of those three filings cited Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012), upon which Plaintiff now relies (incorrectly) in claiming authority to convert Presidential records into “personal” records by removing them from the White House. And nowhere in those filings did Plaintiff suggest that he had exercised that purported authority with regard to the seized records—much less why that would warrant an injunction and special-master review. Rather, Plaintiff asserted that the case “center[s] around [Plaintiff’s] possession . . . of his own Presidential records,” DE.58:2 (emphasis added); see also DE.127:8 (transcript) (“What we are talking about here, in the main, are Presidential records in the hands of the 45th President of the United States.”); DE.127:9 (similar). Unsurprisingly, the district court did not rely on this novel PRA theory in issuing its injunction and appointing a special master.1 Because this argument has been “raised for the first time on appeal,” In re Dukes, 909 F.3d at 1322, it need not be considered here.

Importantly, even if the Fitton theory were true, it’d be irrelevant. DOJ had a warrant to obtain these records. Warrants authorize the seizure of personal records all the time. If Trump is lucky, DOJ suggests, he might be able to get some of these records back after DOJ closes the investigation.

Even if Plaintiff could have designated the seized records as “personal” records, that would provide no basis for an injunction or special-master review. A document’s categorization as a “personal” record does not preclude the government from obtaining it through a search warrant or using it in a criminal investigation. Law enforcement officials routinely conduct judicially authorized searches to seize evidence of crimes, see Fed. R. Crim. P. 41(c)(1), and that evidence routinely consists of personal effects, including personal papers. Nothing in the law prohibits the government from using documents recovered in a search if they are “personal,” and the search warrant here authorized the government to seize materials stored collectively with records bearing classification markings regardless of their status as “personal” or Presidential records.


Simply put, the government can review and use materials obtained in its judicially authorized search regardless of whether they are Presidential or “personal” records. At most, a record’s categorization under the PRA speaks to whether that record would be provided to NARA or returned to Plaintiff after the government’s investigation concludes.

DOJ also talks about all the ways that the Special Master process has already mooted any legitimate demand Trump might have had. DOJ returned to Trump any legitimately privileged documents, as they tried to do before Judge Cannon prevented them from doing so as to create a harm she needed to fix.

The government’s filter team has also now returned to Plaintiff a limited set of documents segregated by the filter team—as it sought to do at the very outset, see U.S. Br. 25—thus mooting any hypothetical disputes about attorney-client privilege as to those documents. See DE.138:2.

He has copies of all the non-classified documents, which would be the outcome of any successful Rule 41(g) fight.

Moreover, Plaintiff has now had an opportunity to review all of the seized records except those bearing classification markings, and the government has no objection to Plaintiff retaining copies.

Trump has conceded three potentially privileged documents found during the initial scoping were not privileged. (See this post where I explained how DOJ got Raymond Dearie to put this detail into the public record.)

The government’s opening brief noted three instances in which the investigative team, following the filter protocol and applying broad criteria, subsequently ceased review of a document and provided it to the filter team for further review. U.S. Br. 39-40. The filter team concluded that none of the three documents is privileged; and—as the public record now reflects—Plaintiff agrees. See DE.138:2 (Plaintiff not asserting privilege as to document referred to as B076); DE.158-1:1 and DE 162 (same, as to “Document 21” and “Document 22”); see also DE.148 (sealed filter team filing describing these documents).

That leaves just one fragment of a document over which Trump has claimed attorney-client privilege.

The sole remaining dispute pertains to one portion of a one-page document, see DE.182-1:1, 7 and the filter protocols originally directed by the magistrate judge provide a mechanism to resolve such disputes, see MJDE.125:31-32


Finally, Plaintiff states that after the special-master review, he “will be entitled to return of some of the seized items,” including “not only [the] privileged materials but also [] the seized materials (i.e., personal records) unrelated to the investigation.” Br. 61. That assertion is wholly unsupported. At most, Plaintiff is entitled to a single page of a single document if he prevails on a disputed claim of attorney-client privilege.

7 That document was identified by the investigative team during the special-master review and, consistent with the filter protocol, it was referred to the filter team. The filter team has filed a sealed letter to the Special Master regarding its position. DE.186.

Effectively, the Special Master process has mooted any legal claim of injury Trump might have so even if Cannon had properly intervened, there’d be no point in continuing.

Which brings us to DOJ’s response to Trump’s claim that DOJ has presented no proof that the injunction on using the unclassified documents is causing harm. In its original brief, DOJ talked about the significance of the unclassified documents that are “intermingled” or “comingled” with classified documents to establish possession or timeline. This reply repeats the emphasis on “comingled” documents, but also discusses the import of when materials were “compiled.”

Second, although this Court’s stay mitigated the injunction’s most severe harms to the government and the public, the rest of the injunction has impeded the government’s investigation in other ways. The sole purpose for which the government has been permitted to review the seized unclassified records is to participate in a prolonged dispute with Plaintiff about their categorization. The government has been enjoined from using unclassified records comingled with records bearing classification markings to (for example) piece together timelines related to when these materials might have been compiled or accessed, or to question witnesses who may be familiar with these documents’ contents. Beyond that, the government cannot be expected to disclose to Plaintiff specific investigative steps that it would take absent the injunction. [my emphasis]

Which brings me to my suspicion that DOJ is anxious to interview Molly Michael with these unclassified documents.

Molly Michael was, at the end of Trump’s Administration, his Executive Assistant; she moved with him to Mar-a-Lago. Here she is, being interviewed by the January 6 Committee.

As Maggie Haberman noted days after the search, the FBI had reached out to Michael for an interview.

It’s highly likely that Michael either used or had access to the drawer in Trump’s office from which 144 items, for a total of 989 pages, were seized. All of those documents went through the privilege review and it’s likely that many of the 60-some potentially privileged documents were from that desk. Indeed, these two documents, treated as potentially privileged, are most likely from a desk that was in active use.

These two documents are ones over which Trump is making some of the most remarkable claims. According to an October 20 filing, DOJ had agreed with Trump that these were personal documents (even in spite of their reference to “POTUS), yet Trump was claiming Executive Privilege over them.

Given the Presidential Record Act rules that if a document has been shown to the President, it becomes a Presidential Record, by far the best explanation for the agreement these are personal documents over which Trump is trying to claim privilege — as I noted here — is that they reflect the Mar-a-Lago office running like his White House office used to, with his assistant, Molly, providing meeting requests and questions for Trump to review. The reference to “POTUS” cannot be a reflection of his position if and when he did review them, because if he were still POTUS, they would be Presidential Records. Rather, the moniker likely reflects that all the sycophants at Mar-a-Lago still call him POTUS.

Over the course of the privilege dispute, then, Trump provided compelling evidence that these two documents were created after he left office. He probably also confirmed that Molly Michael was the one accessing these documents.

Thanks Don!

That’s important for the document I’ve called a mini smoking gun: the document that includes a Secret document, a Confidential document, messages from a pollster, a religious leader, and a book author, as well as one page (SM_MAL_00001190) over which Trump is claiming attorney-client privilege.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.


This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

This document as a whole is the one other one that Trump is trying to withhold entirely under an Executive Privilege claim over what he says is a personal document.

This is obviously a document Trump would badly like to claw back from the government — and for good reason: it is evidence that he was accessing classified records in conjunction with his business after leaving the White House.

Note the government calls it a “compilation,” the same word included in the Reply brief. The government wants to show unclassified documents to witnesses to find out when they might have been compiled.

If I’m right that this document comes from the same drawer as the Molly’s Questions for POTUS Approval documents, then she is likely the witness who can say when it was compiled. She would be the witness who could explain why Trump integrated a Secret document into his ongoing personal business. She might even testify that she saw the entire compilation, including the page over which Trump is claiming privilege, which would vitiate that privilege claim.

If I’m right, then the government is probably pretty anxious to put Molly Michael in front of a grand jury with these unclassified documents. They just need the 11th Circuit to proclaim all these Trump claims bullshit, as they’re likely to do after next week’s Tuesday hearing.

This would be a priority for another reason.

If the government is going to charge Trump, they need to find documents that are sufficiently damning to persuade the jury (and the public) that what Trump did was corrupt, but not so sensitive that agencies would refuse to declassify the documents for trial. This document, along with the Roger Stone clemency, is the sweet spot: They both include a Secret document. They both were stored in a readily accessible desk drawer. And they both reflect more personal business.

Indeed, the other most heated fight over designations, after this compilation document, pertains to a series of other clemency grants. Trump is trying to claim that documents that — by definition — could only exist in the context of his role as the President, are personal.

Filter Log Document 8 (portion) (A-023 to A-024) and

Filter Log Document 10 (A-031 to A-032)

Filter Log Document 12 (portion) (A-034 to A-035)

Filter Log Document 13 (portion) (A-041 to A-042)

The four bullet-pointed commutation analyses are Presidential records because they relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. The four analyses were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity. Plaintiff relies on Judicial Watch to “deem” the Presidential records to be personal records, but the dicta in that non-binding district court decision provide no authority to automagically recharacterize documents that are “Presidential records” within the meaning of the Presidential Records Act, 44 U.S.C. § 2201(2). See ECF 173, at 4-6 (global issues brief).

The four commutation analyses cannot be withheld from the Executive Branch on a claim of executive privilege because, among other reasons, Plaintiff may not assert the Executive Branch’s privilege to withhold documents from itself. See ECF 173, at 12-13 (global issues brief).

These are parts of the clemency packages for Ted Suhl, Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner. While it’s certainly possible Trump may have had corrupt purpose to hide the internal deliberations over these pardons from prosecutors, meaning they’d be evidence of a crime — albeit a different crime — themselves, this fight may also be a proxy for a fight over the Stone clemency which, unlike these four documents, includes a document classified Secret.

Trump’s lawyers may have next to no experience on Espionage Act cases. But they’re not dummies. They can figure out which documents are most likely to get Trump charged. And the ones they’re fighting hardest to claw back are the clemency packages and the “compilation.”

In fact, they’ve just spent the last two months emphasizing to the government that they believe these are the most damning documents (at least thus far), going so far as confirming that several of them post-date the time when Trump (and maybe Molly Michael) would have legal access to classified documents.

When this Special Master process started, there was the possibility that Trump might confirm things that helped DOJ prosecute him, most notably by confirming the inventory (though DOJ has made another bid to get Dearie to force this issue or deem accuracy claims to be waived).

But they did get something: They got Trump to confirm certain details, including dates, about records that were likely in his desk drawer. Which means they’ve helped prepare DOJ to interview whoever had control of that desk drawer.

48 replies
  1. JonathanW says:

    Thank you Dr Wheeler, I find this post, and all your coverage of this topic (and other topics of course) to be super educational both in facts and learning how things work.

    I’m still curious to know what you (and other emptywheel experts) think the likelihood is that Judge Cannon allows Judge Dearie to require Trump to certify the inventory. I’ve come to understand (from reading this site religiously) that this confirmation, if required and made, may help a LOT as potential evidence for both NDI retention and obstruction (via non compliance with the subpoena). I guess I’m kind of asking how normal it is in such a dispute for a court to require someone to assert the validity of the list of seized materials. I seem to recall Dearie doing it because of Trump talking about planted evidence to the press, but I could easily be remember that wrong. If it is normal, or not abnormal, can Cannon really overrule at this point, now that Trump has had the time to review the documents (minus the classified ones)?

    All the usual disclaimers about me not being an expert in this field.

    • emptywheel says:

      I suspect it won’t get that far. Dearie just has 3 business days to make such a decision before the 11th Circuit hearing. My gut feel is that they will reverse Cannon’s entire decision pretty quickly, and Dearie may well know that. So I suspect he’ll at least see Tuesday’s hearing goes before he rocks the boat.

  2. Amicus says:

    DOJ’s reply brief is cold, clinical, and unanswerable in any meaningful respect. I think worth pointing out is that DOJ structured the brief in an unusual manner. DOJ’s first argument (in the Argument section at 3- 11) answers Trump’s “I took them their mine,” claim. That’s a merits argument. DOJ’s second argument is the Richey jurisdictional argument. As a rule, courts – and litigants – should address jurisdiction first and merits second.

    DOJ claims that there are stylistic reasons for their organizational choice “because [the ‘I took them’] claims permeate multiple issues.” Reply at 3. That is true, and the brief does read well with this organization.

    But I suspect this atypical structure serves two other purposes. DOJ is telling the court of appeals that the “I took them’ argument is hogwash and shows how outlandish this whole proceeding has been. The ‘I took them’ argument means that any President could disrupt and defeat the continuity of government function by absconding with government records, and engage in espionage and extortion at will. DOJ is also inviting the court to rule on the argument. They want an adverse ruling against Trump (from what is seen as a conservative court of appeals) that DOJ can cite in response against him in other proceedings hereafter.

    I don’t know if the 11th Circuit will bite but they might. The Richey argument is dispositive and when the court finds that there is no jurisdiction in a matter they need not say more. But given the fact that Trump has already run to the Supreme Court in this matter, they may feel the need to ensure that their position on ‘I took them’ is set out for consideration.

    Oral argument should prove interesting. Certain judges would crucify Kise and he deserves it. Everyone who signed that brief should be sanctioned. They raised a legal argument that has no grounding in the facts of the case: that Trump knowingly chose to take the classified documents when he left the White House. That won’t happen. But Kise should and may well face some questions to which there is no meaningful answer and hopefully the panel will press him on these points. Again, Trump’s having run to the Supremes already gives the panel ample reason to do so.

    • emptywheel says:

      Thanks for that. I recognized that putting the jurisdictional argument second was unusual but wasn’t sure why.

      • Amicus says:

        I appreciate the kind words from both of you. As soon as I saw the organization of the brief, my reaction was “bring it on.”

        There are two other considerations that reinforce that point. After Trump filed his “I took it” brief, DOJ brought Sopan Joshi from the Solicitor’s office into the case to argue. Again, it’s a signal to the court of appeals that DOJ is fully aware that this matter might be headed to the Supremes and DOJ is ensuring a continuity of argument.

        Second, DOJ was remarkably precise in arguing that Trump had forfeited – not waived- the “I took it” argument by failing to argue it below. Practitioners and courts are typically very imprecise in using these terms, but the law in the 11th Circuit is that the court can consider an argument that has been forfeited, but cannot entertain an argument that has been waived.

        “Typically, issues not raised in the initial brief on appeal are deemed abandoned. United States v. Levy , 379 F.3d 1241, 1242–45 (11th Cir. 2004) (collecting cases). Describing issues not raised in the initial brief as ‘abandoned’ has a long history in this Court—our very first case as the Eleventh Circuit contained a footnote describing several of the appellant’s claims as ‘abandoned’ on appeal. Bonner v. City of Prichard , 661 F.2d 1206, 1209 n.4 (11th Cir. 1981) (en banc ). However, our caselaw has been less than clear about whether an issue abandoned on appeal has been waived or merely forfeited—a problem made all the more troublesome by the way jurists sometimes use the words interchangeably.” United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022).

        “‘Although jurists often use the words interchangeably, forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.’” Id. at 872 (citation omitted).

        Waiver directly implicates the power of the parties to control the course of the litigation; if a party affirmatively and intentionally relinquishes an issue, then courts must respect that decision. In contrast, courts do have the ability to ‘resurrect’ forfeited issues sua sponte in ‘extraordinary circumstances.’ ” Id.

        Kise should be called on to address this issue on oral argument and explain why the “I took it” argument was not raised until the 11th hour and what extraordinary circumstances justify the court’s consideration of the argument. But again, DOJ is inviting the court to rule on the merits.

        • Alan Charbonneau says:

          I saw a YouTube video a day or so ago about Chris Kise arguing in court for Trump. Kise cited a piece of case law. The judge told him that she was on that panel and she “dissented, strongly”. She assumed that he must’ve known that. Kise said he was unaware.

          Unfortunately, I can’t find the source to give the details of which case was cited. I was stunned that with his $3 million price tag, he hadn’t done basic research.

        • John Paul Jones says:

          I always look forward to seeing your comments. Informed, clear, incisive and cognizant of the relevant statutes and cases. I feel more educated after reading them. Truly you are a friend to this blog and its readers. Thank you for taking the time and expending the effort.

    • Norskeflamthrower says:

      Thank you for this, it identifies the source of this terrible stink from the confused and confusing batch of bullshit vomited up by the Dumpster.

    • John Paul Jones says:

      “DOJ’s reply brief is cold [and] clinical.”

      Yes indeed, but the tone I got as I read it was – anger. The writers of the brief seem to be genuinely outraged that so much time has been wasted by Cannon’s erection of a tent for the clowns to perform in. No foul language, of course, but every piece of writing carries a tone which can be felt, and the tone here is – pissed off. Doubtless a detailed rhetorical analysis could be made, but for me, it seemed pretty clear.

      • AtticusFlinch says:

        [Been away for many months, just started lurking/absorbing a few days ago, but couldn’t suppress the need to ask this question …]

        “DOJ’s reply brief is cold [and] clinical.” … Thought so too. Then, this …

        “Plaintiff relies on Judicial Watch to “deem” the Presidential records to be personal records, but the dicta in that non-binding district court decision provide no authority to automagically recharacterize documents that are “Presidential records” within the meaning of the Presidential Records Act, 44 U.S.C. § 2201(2).”

        Is this an ironic typo/transcription error, or did the GOVERNMENT really say “automagically” in a court filing? Open ridicule/mockery, inconspicuously implanted amid all the precise prose?

        • Estragon says:

          I believe this came up the other day in these parts: my dim recollection is that this is actually a term of art used frequently in the IT world. Someone smarter please jump in and correct if needed

  3. Clare Kelly says:

    Thanks for the update, the ongoing analysis, and the much appreciated, empty wheel-induced, bonus snort laugh to start my day:

    “Over the course of the privilege dispute, then, Trump provided compelling evidence that these two documents were created after he left office. He probably also confirmed that Molly Michael was the one accessing these documents.
    Thanks Don!”

  4. Yogarhythms says:

    Scintillating as always. DOJ’s arguments are a welcome keel in this sea of bump stock rapidity of rapacious claims by tfg. Thank you to all the counselors spewing specious arguments for tfg, Trails of bread crumbs do not always have happy endings….“ going so far as confirming that several of them post-date the time when Trump (and maybe Molly Michael) would have legal access to classified documents.” Hello 11th Circuit.

  5. Ginevra diBenci says:

    Thank you, Dr. Wheeler. Before reading this post, I found Trump’s attempts to claim all this stuff as “personal” embarrassingly desperate. Now I see how such claims might inculpate him, or at the least lead to questions for staff such as Michael–as well, one would think, as Kash Patel and Evan Corcoran, who is still signing off on Trump’s briefings.

  6. Molly Pitcher says:

    MSNBC is saying the AG Garland has appointed a Special Counsel for Jan 6 and for Mar A Lago documents.

    • PieIsDamnGood says:

      Is he trying to insulate the investigation from the Republican House? It feels late in the process to do this for any other reason.

      • Troutwaxer says:

        It’s because the Republicans will control the house. Unfortunately, that control involves several members who will probably be arrested when the Jan 6th investigation is complete, and of course important politicians can’t be prosecuted by ordinary attorneys, so the prosecutor has to be “special.” Also note that the Jan 6th committee will be making prosecution recommendations soon, and this will involve Members of the House making criminal accusations against not only other Members of the House, but possibly the Senate as well, plus, potentially the wife of a Supreme Court Justice. Lots of “specialness” there, right?

    • nedu says:

      Just watched Garland’s press conference live.

      Here’s the DOJ press release. Note that this press release contains a link to the PDF of the order appointing John L. Smith as Special Counsel (Order No. 5559-2022; dated 11/18/22).

    • nedu says:

      Btw, thanks for the heads-up on the breaking news. Shouldn’t let things get so busy so as to forget to acknowledge your tip to turn on the TV, and google for live coverage, browse over to DOJ’s Office of Public Affairs, et cetera.


  7. Rugger_9 says:

    I’m curious about the evidence that Individual-1 complied with procedures to move classified materials away from the SCIF to M-a-L. If there is a quibble with the filing it’s that the removal was itself a violation but maybe it’s more useful in oral argument.

    If something is ‘personal’ it would seem to me as a legal layman that later trying to blame someone else for his conduct would be closed off. (Molly, for example) EW makes a key point that a validly authorized warrant trumps any privacy issue.

    Anything after January 20, 2021 at noon is not EP, since he’s not POTUS even according to the GQP members trying to justify their ‘no’ votes on the impeachment at that time.

    • Chairborne Nam71 says:

      From his photos looks like a no-nonsense type. Add the rumors of an alleged indictment in 30-90 days and who knows.

      Tom from Ann Arbor

  8. Norskeflamthrower says:

    In addition to Special Counsel, the J6 Committee has quietly advanced criminal referrals to DOJ. Assuming these referrals include fucking off the Committee’s subpoenas

        • bmaz says:

          Think have told this story before… But long ago, in Santa Monica, I went to a cocktail party. I was there at the invite of friends, and very much one of the younger people there. Werner Klemperer was there. The folks I came with were off chatting up others, and I was kind of milling around. Next to Klemperer, so we started talking. Nicest guy in the world. I made a crack that the only thing that could be more perfect would be the monocle. He reached into his inner jacket pocket, pulled out a monocle and put it on for a few seconds. Hilarious. Cannot emphasize enough what a genuinely nice and funny person he was.

  9. Silly but True says:

    US diminishes some of the underlying non-classified record case here:
    “ Moreover, Plaintiff has now had an opportunity to review all of the seized records except those bearing classification markings, and the government has no objection to Plaintiff retaining copies.”

    A question between the parties: did the government _already_ have copies of the records in Trump’s possession; I.e. were any records in Trump’s possession _already_ copies?

    Irrespective of the merits of the investigation or government’s case, _if_ it has no problem with Trump possessing copies (now), then I think Trump and DoJ are exactly on the same page that there is no problem with Trump retaining personal copy.

    US just essentially ceded it’s non-classified stolen records argument in allowing Trump copies of everything now.

    Really, this hones in on the classified document issue being the meat of the case.

    A whole lot of effort was expended by a lot of people just to have DoJ give Trump copies of 99.9% of what was seized, everything minus the 100ish classified documents, here.

    • earlofhuntingdon says:

      No, it doesn’t. Really.

      Non-classified documents are seized under validly obtained and executed search warrants every day. For starters, they are useful themselves. They help establish their own usage, the storage and usage of classified documents, and the manner in which the latter were obtained and kept. They help establish timelines, the order of events, which can then establish one or more separate crimes.

      Trump’s possession of copies of certain documents does not present the same concerns as possession of the originals. But the possession of copies is not necessarily harmless, certainly when it comes to classified materials. Copies of those documents can be as much of a threat to national security as the originals. They can also establish separate crimes, such as the mishandling of classified materials that allowed them to be copied in the first place.

      These are not new issues and we shouldn’t have to keep repeating the same arguments.

      • Silly but True says:

        You reinforce my points; everything you just noted is in respect to making the classified document case, not about prosecuting any crime of theft of non-classified materials.

        My point is not that the information is without value to the US.

        Repeating it: “US diminishes some of the underlying non-classified record case here.

        In granting that there is no problem that Trump has copies, it recognizes to a degree there was no problem that Trump had copies.

        What it’s after is the mishandling of classified documents case, not any “stolen” non-classified records case.

        This itself is enlightening as the search warrant was executed on allegation of both.

        • matt fischer says:

          Allowing the former president to retain copies of presidential records does not retroactively absolve him from having stolen originals.

        • Silly but True says:

          There is no such thing as “original record” distinction under PRA. NARA either has the record, and copies are fine to satisfy its obligation, or not. And if it does have the record POTUS having personal convenience copies are also fine; that personal convenience copy may even be an “original” with Archivist getting a photo copy or digital image of that record.

          In fact, under the Paper Reduction Act, the US government prefers digital records: Trump retaining his signed copy, while turning over scan is perfectly acceptable way to satisfy PRA obligation.

        • matt fischer says:

          NARA was not in possession of certain records they attested were missing. FPOTUS was the only person understood to have possessed them. Thus, certain records formerly in FPOTUS’ possession were effectively original.

          The fact that copies may now be made and distributed is by virtue of subpoena and search warrant. Otherwise those records may well never have been seen again. Your argument ignores that salient point.

        • earlofhuntingdon says:

          I refuted your position. The non-classified documents are as important to the overall case as the classified ones. Trump is not legally allowed to possess presidential records, classified or not, except pursuant to the terms of the PRA.

  10. Savage Librarian says:

    Marcy says:
    “the ones they’re fighting hardest to claw back are the clemency packages and the “compilation.”

    Did you know that Mike Huckabee has written several books? He even had a book event in Franklin Graham’s library. And they seem to communicate with each other regularly.

    So, my WAG is that F. Graham and Huckabee might be the “religious leader, and a book author.”

    That, then, would connect the “compilation” document to the clemency package through Ted Suhl, because of Huckabee’s intervention for Suhl.

    Maybe there is more to that story. Or, maybe they’re worried enough as it is bacause it might be a proxy like you say.

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