The Rules Against Keeping Classified Documents in an Unsecure RV Parked alongside Jeremy Brown’s Home

Several days into the trial of Oath Keeper Jeremy Brown, it continues to provide useful lessons for the case of that other disgruntled former Federal employee who took classified documents home to Florida with him.

In a motion in limine submitted yesterday, the government sought to preclude Brown from taking the stand and explaining why he took one of the classified documents he is accused of storing in his RV.

Count 10 charges the Defendant with violating 18 U.S.C. § 793(e) in connection with his willful retention of the Classified Trip Report. The parties have agreed that in order to prove the Defendant guilty of this offense, the government must establish that (1) the Defendant possessed the Classified Trip Report without authorization, (2) the Classified Trip Report relates to the national defense, and (3) the Defendant willfully retained the Classified Trip Report and failed to deliver it to an officer of the United States entitled to receive it. See Dkt. 230-1 at 19 (joint jury instruction setting forth elements of 18 U.S.C. § 793(e)).

Notably absent from these elements is any requirement that the Defendant intended to harm the United States. Nor does the government need to prove that the Defendant even knew or had reason to know that his conduct would harm the United States. Consequently, evidence of the Defendant’s motive, rationale, or justification for possessing the Classified Trip Report is irrelevant to the elements of this offense—unless he is contending that he was authorized to possess the Report (which he has never and cannot credibly argue).

Such evidence is also not relevant to establishing that the Defendant “willfully” retained the Classified Trip Report. The Defendant either acted willfully—i.e., he knew that his conduct was generally unlawful—or he did not. His reasons or motive for so acting are irrelevant. Here, the Defendant knew that the Trip Report was classified and he knew that it was against the rules to keep classified [sic] in an unsecure RV parked alongside his home. Indeed, he placed the classified markings on the document himself, and chose to include particularly sensitive information in the Report that could jeopardize U.S. national security. The Defendant’s subjective preference that some of the information in the document should have been at a different classification level – as pointed out to the jury during cross-examination of Special Agent Koundarakis – is similarly irrelevant. On these facts, the Defendant acted willfully. The Defendant’s subjective belief that he had good intentions, or his preferred classification level for the information in the document, is entirely immaterial to that analysis.

This is the kind of motive argument that many people accused of 18 USC 793(e) want to argue. Trump (or Kash Patel) himself has argued a form of it by arguing that he should have been able to take the documents about the Russian investigation to prove he was unfairly targeted.

In this case, the government is arguing that doing so (Brown already did so in opening arguments) amounts to jury nullification.

“[T]he potential for jury nullification is no basis for admitting otherwise irrelevant evidence.” Funchesi, 135 F.3d at 1409. The defendant does not have a due process right to present evidence “the only relevance of which is to inspire a jury to exercise its power of nullification.” Id. at 1408. Rather, “[j]ury nullification verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.” Id. at 1409.

If and when Brown’s fellow Floridian is ever charged with 793(e), I expect to see a much more extended version of this argument: That’s it’s okay to bring home classified documents and store them in your RV or leatherbound box of trophies because you had a good motive.

But there will be a whole bunch of precedent ruling such arguments about — possibly even from Brown’s own case! And since the 11th Circuit ruled that Trump isn’t special, I don’t expect any attempt to argue motive will work

36 replies
  1. Lawnboy says:

    My first thought seeing the byline…. Super Dave Osborne! The best episode ever in my book was the upright piano on top of the bus slamming into the overpass whilst Dave is playing ” King of the Road”.

    “Trailers for sale or rent”
    “Secret documents…50 cents”
    “Im a man of means by no means”
    “King of the load”

    The bridge being a metaphor for the DOJ.
    Forgive me for this departure.

  2. Rugger_9 says:

    Individual-1’s demands for special treatment will continue to be highlighted in a bad way when his supporters keep getting sent up the river for the same crimes. The 11CA’s ruling in this regard hasn’t been overturned either by the SCOTUS also packed with cronies so M-a-L will be verrrry uncomfortable over the holidays. Whether the MAGA tribe clues in to this will depend on the RWNM press coverage.

    OT: Apparently Brittney Griner is coming home, but not Paul Whelan who has been jailed for longer on less valid charges. I’m happy for Griner but both should have come back, and I have no doubt the RWNM will cue up the WOKE SCAM they have been using lately. What concerns me is that without Bout to trade now, who can we swap for Whelan?

      • Peterr says:

        I was thinking Paul Manafort. The Russians apparently want a spy, and Manafort’s work with Konstantin Kilimnik certainly qualifies him in that respect.

    • Unabogie says:

      The usual suspects are OUTRAGED over this trade, but of course it’s absurd to say it’s because of race. Nope, they don’t even SEE color!

      As an aside, considering that Putin routinely jails his rivals on charges that mysteriously pop up as soon as they run for office, why do so many people assume that Griner actually had cannabis in her possession? The whole thing happened the same time as Putin invaded Ukraine. To my eyes, this was an obvious ploy to leverage a popular American to influence our response. I’m not convinced she’s actually guilty of anything.

        • Unabogie says:

          I know that this is what they said at trial, but I also know that she was under severe duress and so the confession is not trustworthy to me.

        • Rugger_9 says:

          It was CBD for Griner, and FWIW she had apparently been allowed to bring it in on earlier trips before Putin needed to ramp up the price to get Bout back.

          Whelan is in for espionage which Putin considered more serious. Quite bogus, but Putin is trying to leverage release of an assassin held by Germany which is one reason why Whelan remains. It’s a familiar game from the Cold War, so perhaps we need to arrest a few ‘diplomats’ and package Derkach with Manafort into the deal.

          • Rugger_9 says:

            The other thing to remember about this totally expected kerfuffle is that these are people that cheered when Individual-1 released 5000 Taliban prisoners and set the Afghan pullout in motion to leave Biden with the blame.

            In other OT news, the House added amendments to the national defense reauthorization bill to remove the vaccine mandate (the military can still vax under good order and discipline to preclude malingering) and something that allows SCOTUS spouses to keep their employers secret. It’s not a conflict of interest if it’s not public knowledge. It’s not clear if the Senate has voted on this so these may get stripped out in conference.

          • Rayne says:

            Putin desperately needs Bout’s skills at this point in his war on Ukraine. But I’m betting Bout will be dogged by numerous intelligence agencies making his usefulness limited.

            Developments in Germany this week may have affected a deal for Whelan. My gut tells me the German seditionists were encouraged by Putin’s network, perhaps diluted through QAnon conspiracy crap; if so, any deal for one/both of the convicted murderer Khangoshvili and the subsequent intended assassin “Valid D.” could have been spiked (ref:

          • mospeck says:

            Learn to pronounce
            gerund or present participle: supercooling
            cool (a liquid) below its freezing point without solidification or crystallization.
            “the melt usually has to be supercooled by about 5 to 20 kelvins”
            supercooling is where rather surprisingly one can cool water down to minus 2 C without it turning to ice. But then you have to avoid centers where bubble nucleation happens –which is catastrophic, since then the horses get out of the barn and the 1st order phase transition just goes off like atomics forthwith.
            CNN 7 Dec 2022 — “Moscow court has postponed a sentencing hearing for the jailed Kremlin critic Ilya Yashin, who is accused of spreading fake news about the Russian army, until Friday, according to a post on Yashin’s official Telegram account.“The announcement of the verdict was postponed to Friday, December 9, at 12:00 PM Moscow time in the Meshchansky court,” the post said. Yashin, a prominent opposition leader and former municipal deputy, has been accused of spreading fake information about the Russian army and faces up to nine years in prison. Russian investigators say his statements about the killings of civilians in the Ukrainian town of Bucha by Russian forces are a criminal offense under recently introduced Russian legislation, which considers discrediting the Russian armed forces as illegal. In a closing statement on Monday, also posted on his Telegram account, Yashin made a statement addressing the judge, President Vladimir Putin and the Russian public: “As if they will sew my mouth shut and I would be forbidden to speak forever. Everyone understands that this is the point. I am isolated from society because they want me to be silent. I promise as long as I’m alive I’ll never will be. My mission is to tell the truth. I will not give up the truth even behind bars. After all, quoting the classic: ‘Lie is the religion of slaves.’” Yashin, also a close ally of Russian opposition leader Alexey Navalny, came to prominence during the protests between 2011 and 2012, which he helped organize against Putin’s re-election for the third term and unfair elections. Yashin served as a municipal deputy in small Moscow municipality before being barred from running for a public office.”
            So he goes up the river for 9 years noon tomorrow. And all done right and proper according to Russian law. And by upholding the law, vlad, he might not even end up a pin cushion like Nick II and the Romanovs. Instead may get the soft landing like QE II. Nah, she had some good parts to her

    • Commander Ogg says:

      “RWNM will cue up the WOKE SCAM they have been using lately.”

      Agree. While completely ignoring Mr. Whelan’s Bad Conduct Discharge from the Marines for larceny.

    • Rayne says:

      I have been thinking of that old Saturday Night Live skit series with Chris Farley since I read this post:

      …Now, as your father probably told you, my name is Matt Foley, and I am a Motivational Speaker! Now, let’s get started by me giving you a little bit of a scenario of what my life is all about! First off, I am 35 years old.. I am divorced.. and I live in a van down by the river! Now, you kids are probably saying to yourself, “Now, I’m gonna go out, and I’m gonna get the world by the tail, and wrap it around and put it in my pocket!!” Well, I’m here to tell you that you’re probably gonna find out, as you go out there, that you’re not gonna amount to Jack Squat!!” You’re gonna end up eating a steady diet of government cheese, and living in a van down by the river! Now, young man, what do you want to do with your life?

      Somebody’s probably rolled some massive doobage with classified documents in an unsecured RV down by the river.

      • Badger Robert says:

        There is something delicious about trotting out the arguments the DofJ intends to use against Trump, in an unrelated case against some low life fool who stored protected documents in his RV.
        Its almost British in its cruel irony.

        • Rayne says:

          Yes! At first I was thinking it was Monty Python-esque, but it’s darker.

          It’s like something from Terry Gilliam’s 1985 movie Brazil.

  3. ThomasJ7777 says:

    Maybe if Jeremy Brown had his lawyers search every place that he has been lately, except the other places that he is still hiding more classified documents, and maybe if he then turns over more classified documents that he previously lied about having, and then confesses to more national security felonies after confessing to national security felonies….

    Maybe then Jeremy Brown will be elected president!

    • person1597 says:

      Not to worry, he can frolic in full fantasy insanity…
      “They’re coming to take me away,
      Haha, they’re coming to take me away,
      Ho ho, hee hee, ha ha,
      To the Happy Home with Trees and Flowers
      And Chirping Birds and basket weavers
      Who sit and smile and
      Twiddle their thumbs and toes
      And they’re coming to Take me Away,

      • ThomasJ7777 says:

        I think a straitjacket is more likely than an orange jumpsuit.

        I’ll make a prediction. WHEN Trump is arrested and denied bail, and denied home confinement, he will be placed under observation for 30 days in a secure mental health facility.

    • Badger Robert says:

      A Presidential term is possible, but maybe an encrypted internet site: Excuses R Us, would be easier.

  4. Scott Rose says:

    One thing seen is a constant need to remind Trump and his enablers of the A,B,Cs of national security.

    The reason an American campaign should immediately report inappropriate approaches from foreign actors to the FBI is that if you don’t, then that foreign entity already has its claws in you. i.e. Putin knows you accepted the illicit approach, and can say words to the effect of: “Do as I demand, or I will cause Americans to know the bad thing about you, that you did with my people, that you don’t want Americans to know.”

    Manafort has confessed he sold U.S. voter data to a Russian agent, but Trump is going to argue to a court that he and his campaign were inappropriately targeted? I’m sure Kevin McCarthy can think up something completely idiotic to say about that.

    • ThomasJ7777 says:

      I have been puzzling this out myself.
      Some of the answer can be found in Trump’s response to the Special Prosecutor’s filing to Judge Cannon, in which the DOJ requested an extension of all of Cannon’s dealines to dates past the issuance of the Eleventh Circuit’s mandate, which went into effect yesterday.

      Trump, in his response to that DOJ extension request, complained that his motion to unseal the search warrant affidavit in unredacted form should get a ruling before the mandate to dismiss issued, because, he claimed, the Eleventh Circuit didn’t give him enough time to appeal.
      In truth, Trump DID have enough time to appeal. But he didn’t because if he wanted to appeal the Eleventh Circuit’s ruling, he would have to exhaust his appeals before appealing to the Supreme Court.

      If Trump had appealed to have his case heard en banc, by the full Eleventh Circuit, then the judge making the decision to grant such an appeal was Chief Judge Pryor, who presided over the three judge panel who heard his first appeal.

      Most likely, the Chief Judge would have denied his motion for appeal, and he would have taken his time doing it. Trump probably would have gotten his denial at close of business Dec 7th, giving him just hours to send an appeal to Thomas.

      Thomas may not have given him a stay. But if Thomas did give him a stay, he would get a two week delay, but that would be it. Trump would lose.

      But why not just get the delay, like he always does? It might be that the delay tactics themselves are now under investigation. I say that because of the hearing taking place today about the Trump lawyer’s exposure to contempt of court charges.

  5. Badger Robert says:

    Ms, Wheeler may lead the way. The way to take the former President seriously is to ridicule everything he says and everything said on his behalf.
    Transform Trump from a king to a fool, as the great Anthony Hopkins did in this modern version of King Lear.

  6. Dan Stiegen says:

    At the end: “But there will be a whole bunch of precedent ruling such arguments about”

    If you meant “about such arguments” then this is just a nit. But maybe you had a different word which got spell-check replaced.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This appears to be your second username if you’ve commented as “PostToaster” in August and September this year. Thanks. /~Rayne]

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