Remember: DOJ May Still Suspect Trump Is Hoarding Classified Documents

When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.

In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.

As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.

The six things Corcoran has been ordered to testify about, per ABC, are:

  1. “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
  2. Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
  3. “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
  4. “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
  5. “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
  6. What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room

Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?

Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?

Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.

“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.

And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.

She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.

But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.

As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.

Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.

But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.

Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.

Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.

Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.

If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.

It may also finally provide the basis to hold Trump in contempt for withholding further documents.

81 replies
  1. phred says:

    What puzzles me still about all of this is why haven’t all of Trump’s properties been searched?

    So, just as a hypothetical… if any other government employee (i.e., not a former president) who owned multiple properties had been found to be concealing classified documents at one property, wouldn’t the government automatically issue warrants to search all of their properties?

    I would imagine that having documents at one property is sufficient probable cause to get a judge to issue a warrant for all the rest of their properties. But I’m not a lawyer, so maybe that’s not the right way to think about it…

    • bmaz says:

      Theoretically, no. “Probable cause” needs to be particularized as to each location to be searched and items to be searched for. That, of course, does not always happen, but it should. Even as to Trump.

      • Zirc says:

        Interesting. If you have a good reason to believe someone is holding classified documents, but that person has access to many places to put them, your hands are tied with regard to a search warrant unless you have more specific knowledge involving particular documents in a particular place? That’s a predicament.

      • JonathanW says:

        Thanks for the clarification, bmaz. One follow up (and maybe your answer is that you don’t have the details, which I would obviously understand): In your opinion, should DOJ have tried to itemize/particularize probable cause for the other properties (with an argument along the lines of “we found docs in one place, and we suspect that there may be others in other properties”) well before now? Or do you understand their reason for waiting (like maybe it was too hard to establish probable cause for the other locations)?

        Hope my question makes sense!

        • Scott_in_MI says:

          IANAL, but I would imagine that *if* DOJ had sufficient probable cause to support a warrant to search any of Trump’s other properties, the national security concerns implicated by having other unsecured classified documents out in the wild would motivate them to acquire and execute that warrant ASAP.

      • phred says:

        Thanks bmaz : ) I appreciate it, even though it still doesn’t make sense to me ; )

        So, if you don’t mind me being a pest, here’s another hypothetical for you…

        Let’s say a bank has been robbed of $100,000. And let’s say the police find $10,000 (the serial numbers match those from the bank, so no question of their origin here) in a suspect’s car.

        Can they get a warrant from the judge to look for the rest at his home? If he has a primary residence and a summer cottage up north, what is required to get warrants to search both residences, after finding only part of what has been taken in the car?

        Obviously, there are caveats here, that the thief worked alone, that the $ wasn’t planted in his car, and maybe that’s where the devil in the details comes in… but I would guess the bank might want the police to have a look around all of the suspect’s property to try to get the cash back.

        • bmaz says:

          The bank’s wishes matter not, and they are insured. As to the multiple locations, should, again theoretically, get particularized warrants as to each location. Has the putative defendant been there? What is the reason it is believed the money is there? Etc.

        • Dmbeaster says:

          Simply because you have solid evidence of a crime by the suspect does not establish probable cause to search everything for additional evidence. It requires evidence that the place to be searched has evidence of the crime. The level of evidence required is probable cause.

      • AlaskaReader says:

        I wonder why there was not the use of anticipatory warrants?

        In the case of national security concerns, I would think there is little reason not to seek exigency for a warrant?

          • Midtowngirl says:

            If anyone has already discussed this, my apologies.
            There is a publicly available video taken by the Daily Mail on May 8, 2021, of Trump and aides boarding a private jet for Bedminster with multiple boxes of documents. This is 2 days after NARA contacted Trump’s office about the missing docs.
            Couldn’t the video, especially with what is now known about documents turning up in previously searched areas, be enough for a search warrant for Bedminster?

  2. AB_23MAR2023_1112h says:

    I don’t recall the original language authorizing Jack Smith’s appointment. But with the recent report outlining all of the missing gifts received during the Trump admin, can those possibly fall under Smith? They belong to the Federal gov’t, not to Trump.

    Obviously, a giant painting of Trump doesn’t have the same import as highly-classified documents, but some of the people who have given testimony during this investigation might have some insight as to whereabouts of certain other missing gov’t property, I’d imagine.

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    • earlofhuntingdon says:

      There’s plenty of wriggle room for Smith to deal with crimes his investigation discloses, either directly or by referring them to a USA’s office:

      “(b) ….Further delineation of the authorizations between the Special Counsel and the United States Attorney for the District of Columbia will be provided as necessary and appropriate.”

      “(d) The Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.”

  3. Frank Probst says:

    I still don’t understand the urgency here. Almost all of this was well known to DOJ prior to this week. What kicked everything into overdrive?

    • Belynsky says:

      Someone’s knowledge of what the document reveal would be my guess and in whose hands they are held.

    • Zirc says:

      It’s all speculation, but the urgency is interesting and more than a little frightening. I try not to speculate, but can’t help thinking that there’s a least one state secret out and about that is potentially available to bad actors.

    • Tech Support says:

      EW insinuated on Twitter that Corcoran wants to testify, and that would incentive the court to expedite the process.

    • c-i-v-i-l says:

      I’ve read that Judge Howell’s order required Corcoran to turn over the documents by yesterday. The DCCA panel issued a brief administrative stay while considering Trump’s appeal, but apparently they didn’t want to issue a longer stay in order to give Trump more time on his appeal re: the documents, instead ruling before the documents were due. However, if you look at the last entry in the case docket, there’s some other aspect of the case that’s continuing into April and May:

    • earlofhuntingdon says:

      The question assumes that prosecutors haven’t been doing much before, so why are they apparently doing so much more now? EW has spilt liters of ink saying they probably haven’t been lying around drinking rum punch.

      One might ask why is that actor suddenly so talented now? They’ve been doing nothing but work in indie films and regional theater for ten years. Or why is that rocket taking off now? They’ve been doing nothing but build it for years.

      The reasons developments are becoming so public now need not be political. That’s an MSM obsession. Among them, it could be that SOL are running out. Or that the cases are simply maturing, or that key witnesses have finally decided spilling the beans is their safest course of action.

    • emptywheel says:

      I think it’s possible they want to hold Trump or someone else in contempt. I think it’s possible they may be close to arrest of others. I think it’s possible it stems from the Howell to Boasberg transition.

      • DaveC2022 says:

        Thank you again Marcy. The thing I’ve been wondering about is who leaked the ABC report about Judge Howell’s order(s) & the leakers motivation. Speculating that somehow (again) its a way of different potential conspirators signalling to others & attempting to communicate anonymously.

  4. Amicus says:

    Yesterday, I was thinking over the ethical implications of Corcoran taping conversations with Trump, and it occurred to me that he has potentially much more serious concerns and exposure. If you are going to record a conservation, you always want to be cognizant of whether any of the parties to the conversation are located in a “two-party consent” state. Florida is a two-party consent state: unless you fall within a recognized exception it’s a felony to record someone speaking in Florida unless that party consents. (This is one of the reasons for those “this call may be recorded” recitations that we are all familiar with).
    “Florida’s wiretapping law is a ‘two-party consent’ law. Florida makes it a crime to intercept or record a ‘wire, oral, or electronic communication’ in Florida, unless all parties to the communication consent.”'s%20wiretapping%20law%20is%20a,parties%20to%20the%20communication%20consent.

  5. P J Evans says:

    Adding to all this is that the ex-president is known to be a micromanager, involved with everything his staff does.

  6. WilliamOckham says:

    Whenever I start thinking about the timeline in this case, I come back to a fundamental conundrum. I’m going to start with a few assertions. Take these as “evidence indicates” that they are true:
    1. When Trump left office, he stole a bunch of documents. He knew they didn’t belong to him and he took them surreptitiously.
    2. Although he obviously cares deeply about some of the documents he stole, he clearly doesn’t care about the contents of most of them. He would have had better access to them if he had turned them over to the National Archives for cataloging.
    3. No one has any idea how many documents he stole or what happened to them.

    Which leads me to some questions that we can’t answer (although the feds may know the answers):
    How did Trump (and/or others) decide which boxes to remove from the storage room before Corcoran’s search?
    Have any of the documents been digitized? (The WH schedule thing smells like a limited hangout to me although I have no rational basis for that belief)
    Is there a direct connection between the documents and Jan 6? I have not seen any evidence of that heretofore. The more recent events that seem to imply a connection could have other explanations.

    Like I said, I don’t think those questions are answerable, given the current state of knowledge. I do think they’re helpful to consider as more information and disinformation about this case is revealed.

    • emptywheel says:

      I think that’s why the inclusion of Jennifer Little is interesting.

      I think Smith may have expanded beyond just the classified docs to a systematic effort to withhold incriminating docs generally — from Tish James (thus the Babba testimony), from GA (thus Little), and from NARA, which Paul Sperry said Trump was worried would share with J6C (this Corcoran).

      That is, I think there MAY be select documents that are particularly incriminating.

  7. Crying Havoc says:

    the REAL question is what documents are missing?…hopefully the gov has some means of knowing which ones Trump had in toto?….and if there ones still missing what could he have done with them?….flushed down one of his toilets, given as gifts to various Middle Eastern rulers? gifted to Putin?

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    • WilliamOckham says:

      It’s almost certain that no one knows and no one will ever know what documents are missing. With a few notable exceptions (i.e. Trump’s love letters to a certain North Korean leader and the traditional letter from Obama to his successor), most of the documents in question were produced by other government agencies from original classified intelligence. Although a lot of these documents would have been very closely tracked, Trump seems to have completely subverted the White House system for destroying classified documents. I doubt there’s any way to determine which documents were destroyed and which weren’t.

      Any sane manager in the Intelligence Community has to assume that anything that passed through the Trump White House is potentially compromised.

  8. jecojeco says:

    Hi Marcy,

    Thanks for painstakingly disecting the dizzying details of this. You were right on the money months ago. Trump has been taking crazy risks hiding these documents, there must be something meaningful.

    Can Corcoran take the 5th when he’s questioned about this? I think he’s smart enough to fully comply now and not stray over the line from witness to suspect (if he hasn’t already). Can he possibly continue as one of trump’s attys after this?

    Are they trying to pin Jen Little down with crime fraud for Atlanta case (what could trump be hiding there?) or has she somehow been drawn into MAL intrigue? She had been flying below the radar before this. Will more trump attys like Drew Findling in Atlanta get treated to crime fraud treatment, maybe after she speaks.

    The comment that everything trump touches dies really fits most of the lwayers in the trump orbit.

  9. Joberly1954 says:

    Thanks, EW, for teasing out from yesterday’s ABC News story the six topics about which the Dept of Justice wants to question Attorney Corcoran. I read that ABC News piece citing “sources familiar with the filing” and found the writing of the story so convoluted that I couldn’t figure out the six topics at issue. I appreciate Marcy’s work in identifying the topics from the body of the news story, especially Topic # 6.

  10. !?FTWlol says:

    While it makes sense that probable cause is needed to search a particular *place, one would think that somebody has compiled a list of all classified documents that Team Trump received and compared that to what has been recovered. *If Trump is found guilty on this, would that be enough to give investigators the probable cause to search more of Trump’s properties?

      • Bobby Gladd says:

        The fourth amendment could not be more clear in that regard. Notwithstanding that “probable cause“ is more of a “legal fiction“ than an empirical matter. According to Cuddihy, back during the colonial era, “probable cause“ more or less meant that “someone in authority said so.“

        • earlofhuntingdon says:

          We seem so far from the Colonial era that your logic and characterizations don’t seem to hold water.

          • Bobby Gladd says:

            “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

            It doesn’t get much clearer than that (albeit with the contentious exceptions of the “conjunctive severability“ and “administrative departures“ debates). I’m with bmaz on this.

            Moreover, I am no “originalist.“ I would prefer that we look at empirical findings with respect to assessing “probable cause.“ Notwithstanding that that would necessarily be post hoc. To simplify, cutting to the end-game chase, and dividing the total number of prosecution dispositions other than an acquittal, or dismissal, divided by the total number of charges made — if that gets you to greater than 50%, you can infer that authorities acted with faithful “probable cause“ in the aggregate. Of course, You would have to stratify that calculation by jurisdictions, ‘eh. I would think in general that our authorities for the most part observe empirical “probable cause” by a wide margin. Surely, someone has done this math. I’m just not aware of any such tabulations.

            Were we to issue search warrants for, say, 10 Trump properties, and only find illegal stuff on two of them — well, so much for “probable cause.“

            I assume that you DO know the meaning of the phrase “legal fiction?“

      • billtheXVIII says:

        which may not help him. wikipedia:
        “Witnesses compelled by subpoena to appear before a grand jury are entitled to receive immunity in exchange for their testimony. The grant of immunity impairs the witness’s right to invoke the Fifth Amendment protection against self-incrimination as a legal basis for refusing to testify.

        Per 18 U.S.C. § 6002, a witness who has been granted immunity but refuses to offer testimony to a federal grand jury may be held in contempt. In addition, grand jury witnesses may be prosecuted for perjury or making false statements in their testimony.”

  11. earlofhuntingdon says:

    Trump’s indictment watch lollapalooza seems intended to act like much of his propaganda: to kill the truth and deprive it of meaning, creating a chaotic landscape from which he can profit, monetarily or otherwise.

    The disappointment felt by his followers will be used to suggest prosecutors – take your pick – ain’t got nothing but hot air. Trump must hope it will lessen the impact of any real indictments, and reinforce the extraordinarily inappropriate role the GOP-run House has assumed, that of obstructing legitimate investigations into TFG’s probable crimes. Then there’s keeping TFG in the news and screwing with people’s minds, all good for the Don.

  12. Dr Noisewater says:

    Does anyone know the status of Trump’s Presidential Library? I find it curious I haven’t heard a peep out of him or his flunkies since he’s left office. Like no plans for it or location or anything. I feel like he’d be crowing and grifting the hell out of the entire process.

    *Mod caveat- I can’t remember what email I’ve used here sorry guys!*

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    • earlofhuntingdon says:

      TFG already has a place for the book he’s read, he’s not interested in fundraising for anyone or thing besides himself, and many of his papers will be needed as legal exhibits. So, I would not expect to hear much about an oxymoronic Trump Library anytime soon.

      • David F. Snyder says:

        My wife and I have visited every Presidential Library except for Obama’s (soon!). So informative and often little surprises (like Hoover’s progressive side). But we will never set foot in a Trump PL (when or if such a thing comes to exist).

        Our President’s Day parties were events to be remembered, until we stopped having them in 2017 because you know why. Each President had/has flaws, of course. But not like the iDJiT — there is no bottom to his sense of entitlement.

        • earlofhuntingdon says:

          Herbert Hoover’s progressive side – his managing food relief in Europe after WWI, for example – is deeply overshadowed by his arch-conservatism, which increased after his loss to FDR. It would be the smallest chapel in a Gothic cathedral. The largest and most often-visited would be Stanford, whose presidents, policies, and faculty he haunted for decades.

  13. Peterr says:

    One question I’ve been pondering is whether, if Corcoran thinks he is in danger of facing charges of his own, he might be talking to prosecutors about some kind of deal. To be able to talk, he needs the order piercing atty/client privilege.

    • Ginevra diBenci says:

      So you’re suggesting, Peterr, that the ruling would function somewhat analogously to a friendly subpoena?

      I hadn’t thought of that, but if I were Evan Corcoran (and given the publicly available facts), I might very well welcome this.

  14. Peterr says:

    The more I listen to Trump and his lackeys, the more it seems to me that Trump believes “executive privilege” is another name for a Non-Disclosure Agreement.

    IANAL, but my sense is that if I offer advice to the president, I cannot be forced to disclose it if the president invokes EP, but it also means that I can disclose things if I want to whether the president invokes EP or not. Am I way off base here?

      • Seashell says:

        And which cases they’re involved in. Being in Atlanta, I associate Jen Little with the hunt for 11,780 votes in Georgia case. I wasn’t aware that she’s also in the hunt for classified docs case with Jack Smith. So I guess she’s on first and second…?

    • emptywheel says:

      ABC is reporting that Parlatore decided to reveal that he testified and complain about prosecutorial misconduct on the day before Corcoran has to testify!

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