The Espionage Act Evidence WaPo Spins as Obstruction Evidence

The WaPo, with Devlin Barrett as lead byline and Mar-a-Lago Trump-whisperer Josh Dawsey next, has a report describing either new evidence or more evidence of obstruction in the stolen documents case.

Some of it, such as that investigators “now suspect that boxes including classified material were moved from Mar-a-Lago storage area after the subpoena was served,” is not new — not to investigators and not to the public. The version of the search affidavit released on September 14 showed that on June 24 investigators subpoenaed the surveillance footage for the storage room and at least one other, still-redacted location, going back to January 10, 2022, long before subpoena for documents with classification marks was served on May 11. So unless Trump withheld surveillance footage, then DOJ has known since early July 2022 on what specific dates boxes were moved. And a redacted part of the affidavit explains the probable cause the FBI had in August that there might be classified documents in Trump’s residential suite.

In other words, much of what WaPo describes is that DOJ has obtained substantial evidence since August to prove the probable cause suspicions already laid out in their August warrant affidavit. You don’t search the former President’s beach resort without awfully good probable cause, and they were able to show substantial reason to believe that Trump had boxes moved to his residence after he received the May 11 subpoena, where he sorted out some he wanted to keep, eight months ago.

They’ve just gotten a whole lot more proof that they were right, since.

Other parts of the story do describe previously unknown (to us, at least) details, and those may be significantly more important for Trump’s fate. The most intriguing, to me, is that witnesses are being asked about Trump’s obsession with Mark Milley.

Investigators have also asked witnesses if Trump showed a particular interest in material relating to Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, people familiar with those interviews said. Milley was appointed by Trump but drew scorn and criticism from Trump and his supporters after a series of revelations in books about Milley’s efforts to rein in Trump toward the end of his term. In 2021, Trump repeatedly complained publicly about Milley, calling him an “idiot.”

The people did not say whether investigators specified what material related to Milley they were focused on. The Post could not determine what has led prosecutors to press some witnesses on those specific points or how relevant they may be to the overall picture that Smith’s team is trying to build of Trump’s actions and intent.

Remember that reports on investigations, especially ones that include Mar-a-Lago court reporters, often amount to witnesses attempting to share questions they’ve been asked with other witnesses or lawyers. Trump’s team has no idea what kinds of classified items were seized. This detail suggests that among the classified documents seized are a document or documents pertaining to Milley.

According to Bobs Woodward and Costa in Peril, Milley called China twice in the last months of the Trump administration to reassure his counterpart that the US was not going to attack China without some build-up first.

On Friday, October 30, four days before the election, Chairman Milley examined the latest sensitive intelligence. What he read was alarming: The Chinese believed the United States was going to attack them.

Milley knew it was untrue. But the Chinese were on high alert, and whenever a superpower is on high alert, the risk of war escalates. Asian media reports were filled with rumors and talk of tensions between the two countries over the Freedom of Navigation exercises in the South China Sea, where the U.S. Navy routinely sails ships in areas to challenge maritime claims by the Chinese and promote freedom of the seas.

There were suggestions that Trump might want to manufacture a “Wag the Dog” war before the election so he could rally the voters and beat Biden.


This was such a moment. While he often put a hold on or stopped various tactical and routine U.S. military exercises that could look provocative to the other side or be misinterpreted, this was not a time for just a hold. He arranged a call with General Li.

Trump was attacking China on the campaign trail at every turn, blaming them for the coronavirus. “I beat this crazy, horrible China virus,” he told Fox News on October 11. Milley knew the Chinese might not know where the politics ended and possible action began.

To give the call with Li a more routine flavor, Milley first raised mundane issues like the staff-to-staff communications and methods for making sure they could always rapidly reach each other.

Finally, getting to the point, Milley said, “General Li, I want to assure you that the American government is stable and everything is going to be okay. We are not going to attack or conduct any kinetic operations against you.

“General Li, you and I have known each other for now five years. If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise. It’s not going to be a bolt out of the blue.

The two Bobs also described how, in the days after January 6, Milley reviewed nuclear launch procedures with senior officers of the National Mission Command Center to make sure he would be in the loop if Trump ordered the use of nukes.

Without providing a reason, Milley said he wanted to go over the procedures and process for launching nuclear weapons.

Only the president could give the order, he said. But then he made clear that he, the chairman of the JCS, must be directly involved. Under current procedure, there was supposed to be a voice conference call on a secure network that would include the secretary of defense, the JCS chairman and lawyers.

“If you get calls,” Milley said, “no matter who they’re from, there’s a process here, there’s a procedure. No matter what you’re told, you do the procedure. You do the process. And I’m part of that procedure. You’ve got to make sure that the right people are on the net.”

If there was any doubt what he was emphasizing, he added, “You just make sure that I’m on this net. “Don’t forget. Just don’t forget.”

He said that his statements applied to any order for military action, not just the use of nuclear weapons. He had to be in the loop.

Since these details about Milley came out, Trump and his frothers have claimed Milley committed treason, in concert with Nancy Pelosi (who had expressed concerns to Milley about the safety of America’s nuclear arsenal).

The attack on Milley is the same kind of manufactured grievance — often cultivated by investigation witness Kash Patel (who was DOD Chief of Staff during the transition) — as the Russian investigation. That other inflated grievance led Trump to compile a dumbass binder of sensitive documents that didn’t substantiate his grievances. If Trump did the same with Milley, either before or after he left office, those documents might include highly sensitive documents, including SIGINT reports about China’s response to Milley’s contacts.

If DOJ were ever to charge Trump for refusing to give back classified documents under 18 USC 793(e), DOJ would select a subset of the documents to charge, probably from among those seized in August. They would pick those that, if declassified for trial, would not do new damage to national security, documents that would allow prosecutors to tell a compelling story at trial. And given WaPo’s report, there’s good reason to think there’s a story they think they could tell about documents that may be part of Trump’s grievance campaign against Milley.

WaPo also described that witnesses are being asked whether Trump shared documents, including a map, with donors.

As investigators piece together what happened in May and June of last year, they have been asking witnesses if Trump showed classified documents, including maps, to political donors, people familiar with those conversations said.

According to the story, communications from Trump’s former Executive Assistant, Molly Michael, have been key for investigators.

[A]uthorities have another category of evidence that they consider particularly helpful as they reconstruct events from last spring: emails and texts of Molly Michael, an assistant to the former president who followed him from the White House to Florida before she eventually left that job last year. Michael’s written communications have provided investigators with a detailed understanding of the day-to-day activity at Mar-a-Lago at critical moments, these people said.

Michael is likely the person in whose desk drawer at least two of the classified documents seized in August were found: the two “compiled” with messages from a pollster, a faith leader, and a book author, the kind of document you would show to donors. That document, which combines two classified documents obtained before Trump left the White House with messages from after he left, is the kind of smoking gun that shows Trump didn’t just hoard documents because of ego (as Barrett reported even after the existence of this document was made public), but because he was putting classified documents to his own personal use. We learned back in November that there was evidence that Trump had used two classified documents in what sounds like a campaign document. Perhaps one of those classified documents was a map (of Israel? of Ukraine?).

Whatever it is, this is the kind of story prosecutors might like to tell at stolen classified document trials, not just because it would show Trump putting the nation’s secrets to his own personal gain and sharing classified documents with people who never had clearance, but because it would be proof that people on Trump’s team knew of and accessed documents after they lost their need to access such documents. This document would go a long way to proving that Trump didn’t just hoard classified documents out of negligence (which is currently the explanation why both Joe Biden and Mike Pence did), but because he wanted to make use of what he took.

Molly Michael is also the person who ordered a more junior aide to make a digital copy of Trump’s schedules from when he was President, an order that led to documents with classification markings being loaded to a laptop and likely to the cloud. That’s another example of the kind of exploitation of classified documents that would make a good story at trial.

It’s also the kind of story that could expose Michael herself to Espionage Act charges, such that she might work hard to minimize her own exposure. And yes, because she was Trump’s Executive Assistant, both at the White House and after he moved back to Mar-a-Lago, she likely can explain a lot about how Trump used documents he took from the White House and brought to Mar-a-Lago, including documents used as part of his political campaigning afterwards.

Without conceding it was incorrect, WaPo notes that in November, after it was already public that Trump had self-interested reason to refuse to return documents, it reported it was all just ego (it now attributes that conclusion entirely to what Trump told his aides, not — as claimed in the first line of last fall’s story — what “Federal agents and prosecutors have come to believe”).

Such alleged conduct could demonstrate Trump’s habits when it came to classified documents, and what may have motivated him to want to keep the papers. The Post has previously reported that Trump told aides he did not want to return documents and other items from his presidency — which by law are supposed to remain in government custody — because he believed they belonged to him.

Even in a story describing prosecutors collecting evidence about at least two stories about classified records that they might tell at a trial, the WaPo remarkably suggests to readers that obstruction is the primary crime being investigated here.

The application for court approval for that search said agents were pursuing evidence of violations of statutes including 18 USC 1519, which makes it a crime to alter, destroy, mutilate or conceal a document or tangible object “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency.”

A key element in most obstruction cases is intent, because to bring such a charge, prosecutors have to be able to show that whatever actions were taken were done to try to hinder or block an investigation. In the Trump case, prosecutors and federal agents are trying to gather any evidence pointing to the motivation for Trump’s actions.


Investigators have also amassed evidence indicating that Trump told others to mislead government officials in early 2022, before the subpoena, when the National Archives and Records Administration was working with the Justice Department to try to recover a wide range of papers, many of them not classified, from Trump’s time as president, the people familiar with the investigation said. While such alleged conduct may not constitute a crime, it could serve as evidence of the former president’s intent.

By treating this as only an obstruction investigation, WaPo incorrectly claims that lying to NARA (as opposed to the FBI) could not be part of a crime.

Here’s my attempt to lay out the elements of offense of both crimes — what prosecutors would have to prove at trial (I wrote more about the elements of an 18 USC 793e charge here and here).

To prove obstruction, DOJ would focus on the things of which — WaPo describes — Jack Smith’s team has developed substantial proof. Most conservatively, they would pertain to a grand jury investigation, because that application would be uncontroversial. After DOJ sent Trump a grand jury subpoena (which would be presented at trial as proof that Trump had notice of the grand jury investigation, his knowledge of which Evan Corcoran’s recent testimony would further corroborate), Trump took steps to hide documents and thereby prevent full compliance with that subpoena, and so thwarted a grand jury investigation. That’s your obstruction charge.

DOJ could charge a second act of obstruction tied to NARA’s effort to recover documents as part of its proper administration of the Presidential Records Act. But such an application would be guaranteed to be appealed. So the safer route would be to charge behavior that post-dates Trump’s knowledge of the grand jury investigation (and indeed, WaPo describes a close focus on events that took place starting last May).

But Trump’s longer effort to deceive the government in order to hoard documents is proof of 18 USC 793(e). To prove that, DOJ would need to prove that the government, whether NARA or FBI, told Trump he was not authorized to have documents covered by the Presidential Records Act, a subset of which would include documents with classification marks. They would need to show that Trump had been told about why he needed to protect classified records, which Trump’s former White House counsels and Staff Secretary have described (and documented) doing. For good measure they would show that Jay Bratt affirmatively told Trump that he had been (and, the August search would prove, was still) storing classified documents in places not authorized for such storage.

To prove 18 USC 793(e) at trial, you would need to describe specific documents Trump refused to give back and explain to a jury why they fit the definition of National Defense Information, material that remained closely held that, if released, could do damage to the US. That may be why they’re asking questions about Trump’s obsession with Milley or sharing maps with donors: because it’s part of the story that prosecutors would tell at trial, if they were to charge 18 USC 793.

All of which is to say that WaPo not only reported that DOJ has collected more evidence to prove what DOJ already suspected when they did the search on August 8, but they’ve been collecting information that would go beyond that, to a hypothetical Espionage Act charge.

Charging a former President with violating the Espionage Act is still an awfully big lift, and in the same way that charging obstruction for impeding NARA’s proper administration of the Presidential Records Act would invite an appeal, charging 18 USC 793(e) in DC would invite a challenge on venue (and charging it in Florida would risk spending the next three years fighting Aileen Cannon). But in addition to developing more evidence to prove the suspicions that they already substantiated in August, WaPo describes Jack Smith’s team asking the kinds of questions — about specific documents that might be charged as individual violations of the Espionage Act — that you’d ask before charging it.

Asking whether Trump (or Molly Michael or anyone else from Trump’s PAC) showed donors a classified map in a package also showing polling and a faith leader’s support for Trump’s policy in an attempt to raise money doesn’t get you evidence of obstruction. If the map is classified, though, it gets you proof that Trump not only knew he had classified documents, but had turned to profiting off of them.

That’s not a guarantee they’re going to charge 18 USC 793e. It’s a pretty good sign they’re collecting evidence that might support that charge.

Update: CNN has a much more measured story, describing how Jack Smith’s team is locking in the voluntary testimony they got last summer.

The new details come amid signs the Justice Department is taking steps typical of near the end of an investigation.

The recent investigative activity before a federal grand jury in Washington, DC, also includes subpoenaing witnesses in March and April who had previously spoken to investigators, the sources said. While the FBI interviewed many aides and workers at Mar-a-Lago nearly a year ago voluntarily, grand jury appearances are transcribed and under-oath – an indication the prosecutors are locking in witness testimony.


The grand jury activity – expected to continue to occur at a frequent clip in the coming weeks – builds upon several known reactions Trump and others around him had to the DOJ’s attempt to reclaim classified records last year, and which prompted the FBI to obtain a judge’s approval to search Mar-a-Lago in August for classified records.

Some of the evidence the DOJ has used to persuade a judge to allow that search is still under seal.

It also notes that Smith is still pursuing how a box including documents with classification marks came to be brought back to Mar-a-Lago after the search.

Since then, the Justice Department has pushed for answers around how a box with classified records ended up in Trump’s office after the FBI search took place.

91 replies
  1. phred says:

    Thanks for the careful analysis EW. It is unimaginable to me that Trump would not attempt to profit off of his classified hoard. He attempts to profit off of everything single thing that he can.

    But my imagination is not proof, so it’s good to read about progress being made by Smith et al. to get that proof.

    • Playdohglobe says:


      I agree..EW does a great job laying out the facts with information in the public domain.

      Mr Garland, Mr Smith, Mr Bragg, Miss Willis and many, many dedicated public servants to the rule of law as it is written are working for a variety of reasons to make sure DJT crime days are over.

      IANAL.. what is likely coming for the former President? History does not bode well fro Trump.

      TV lawyers are not always right. George Conway has been around a while. People paid him well to do actual law. I think he has some insights worth thinking about.

      “Conway went on to sarcastically quip that “only a genius like him could have paid $130,000 to a porn star who didn’t stay hushed, and get himself indicted for it.” Aside from saying Trump is “dead to rights” on the documents case, Conway also gave a reminder that Trump remains under legal scrutiny for his January 6th conduct, plus his attempt to overturn Georgia’s 2020 election results”

      Legal processes take time. The lawyers working for Trump do not appear to be from the top law offices in the USA. Trump is not a wise man. He has many dark and dangerous talents, wisdom is not one of them. He has many, many law enforcement and Justice department people who are not perfect, looking at the decisions he has made.

      Elliot Ness during Prohibition in the 30s was tasked to take down Al Capone. In late 1930, Attorney General William D. Mitchell, created Ness’s team with incorruptible agents, funding and the courts to unravel the Capone crime empire. It took time.

      Jack Smith has a very good record of doing the job assigned well.

      Arrogance and a paper trail is going to let Trump destroy himself. Trump has and will hurt many people.

      E.Jean Carroll – NY cases- GA – J6 – Mar A Lago – Espionage act -multiple Criminal cases and civil cases – Many people around him know where the bodies are buried. What violence people will do for Trump is unknown. Some are going to turn on him to avoid or minimize exposure to the Justice system.

      That many Federal and State officers of the court chasing Trump that are going after all the things Trump has done, is not going to go well.

      “The arc of the moral universe is long, but it bends towards justice.”

      Neither the defense lawyers or the government lawyers are perfect. Mistakes are made on both sides. I have confidence that the teams on the government side have the skill, patience, money and laws required to take a career criminal like the Former President and hold him to account.

      History suggests he will not make it through that gauntlet of real people after him for crimes he allegedly committed.

      All the political stuff, all the side shows, all the MAGA tears and all the champagne touting Trump’s first indictment are distractions from reality.

      The odds are not in Trumps favor. Trump does not have enough defense lawyers that have actual legal options to keep him free. He has to answer to reality in the courts now. AG Garland and many others are not playing around. Following the law and are seeing what is possible to stop Trump’s actual criminal conduct.

      Just like after the election in 2020, he lost 60 cases out of 61 case in actual courts and he was still President then. He is not President anymore.

      EW has had multiple insights that suggest Time is not on Trump’s side. She is not in possession of all the facts that the State and Federal people have access to.

      2023 and 2024 are going to be full of bad news for the Trump Crime family’s leader.

      • Rayne says:

        Please try to be more concise. At 626 words your comment is overlong, could probably have ended after your remarks about Conway because the rest is rehash. Assuming an arraignment goes off tomorrow, concision will be essential.

        Welcome back to emptywheel.

        • Rayne says:

          That’s nice, drhester, but you’re on a Mac using Firefox. Imagine what that overlong comment looks like to a mobile device user with a tiny screen, and what the overall thread looks like when it’s F I L L E D with one person’s idle off-topic chatter.

        • drhester says:

          Srsly? You had to look and see what device and browser i was using?

          [It’s not astrophysics, you left that footprint in traffic. Clearly you couldn’t have been using a phone because you’d have understood the problem with applauding an overlong off-topic post. /~Rayne]

        • earlofhuntingdon says:

          You need to get out more. Rayne mentioned only two of several items of information readily available to any administrator at every website you visit.

          An easy way to check how much more information your browser gives up would be to visit Cover Your Tracks at From that site:

          “[Y]our device sends a request that includes HTTP headers. These headers contain information like your device’s timezone, language, privacy settings, and cookies. Web headers are transmitted by your browser with every site visit.”

          BTW, I first read that comment on a mobile device. It took forever to scroll through it, so long that I didn’t care what it said.

        • Danzbe says:

          Thank you, earlofhuntingdon – didn’t know of but glad to have made its acquaintance. pleasantly relieved to confirm that I ‘have strong protection against Web tracking’ at least. Very useful and informative tool they’ve built

  2. Spank Flaps says:

    There’s a couple of reasons Trump and MAGAs attack the “woke” generals. One is they want the military to run elections. The other is to brain-drain the military and intelligence services, to hand a big advantage to axis powers.
    They know that in WW2 the European and Pacific wars were won by people like Alan Turing, Barnes Wallis, and Oppenheimer.
    The only potential weakness in the US military is the personnel, who are being targeted from numerous angles, at various levels.
    They have Fox News playing at all US military bases, there was the funny business with Wes Clarke Jr (American Psyop), and there are UFO/alien psyops being run on vets by TTSA and George Knapp (brainwashing them into thinking all planes, drones, balloons and missiles are space aliens).

      • xbronx says:

        Your comment made me think of this NYT article headline about NYPD recruits – Police Recruits Here Average 98.20 in I.Q. Tests, Lowest in Years. Yes. The New York Times. From July 23. 1970!

        • Richard Turnbull says:

          But that would be right around average IQ, so what do they expect? Maybe if the NYPD paid more, or required more de-escalation training and seminars on “race consciousness and gender bias” and how it can harm community trust etc. etc. they could expect recruits to average 110?

        • earlofhuntingdon says:

          Reminds me of a blog comment elseweb. The commentator was lamenting what she saw as a general decline in American intellectual skills, noting that “half of Americans were below average.” One might ask whether that was a mean or median comment.

    • Dru says:

      Who did you think is running the ufo-ops?
      I’m not doubting, just interested and noticed similar. Any reading recommendations?

    • P J Evans says:

      That last sentence needs evidence to back up those claims. The previous one – they’re targeted mostly by the RW, as in PB and fundy sects.

      • Rayne says:

        While I appreciate the effort, please don’t encourage Spank Flaps to bring more off topic material to this thread. They are in the UK, have only 26 comments at this site since August last year, and may not realize that they should focus more narrowly on the topic and not bring up outré issues particularly without supporting documentation.

        There are more than a couple commenters in this thread who appear to be trying to DDoS discussion by steering off topic.

    • Becker says:

      I’m confused by your comments because I really can’t put together what your comments have to to do with Dr. Wheeler’s article. I’ve only commented a few times on this site but you comments seem to be simply trolling.

  3. harpie says:

    Since these details about Milley came out, Trump and his frothers have claimed Milley committed treason, in concert with Nancy Pelosi (who had expressed concerns to Milley about the safety of America’s nuclear arsenal).

    Does this mean since Peril was published on 9/21/21?

    • emptywheel says:

      Publicly, yes, or actually since the previews showed up about a week earlier.

      That said, Trump had it out for Milley since when Milley admitted it was a mistake to take part in Trump’s Lafayette Square photo op.

      • Ginevra diBenci says:

        He soured on Milley and Esper at roughly the same time. Hence the DOD overhaul with critical insertion of Ka$h Patel (his spelling adopted here).

        • earthworm says:

          replying to GdB
          it looked to me at the time that trump’s changes and replacements of pentagon personnel were what you would do if you were planning a putsch, not merely “souring” but placing malleable people into positions of control and authority.

        • Ginevra diBenci says:

          Absolutely. Looked the same way to me at the time. Esper and Milley seemed to have struck him initially the kind of uniformed and decorated veneer he would use to accomplish what he wanted (in addition to be recommended by others). When his wants turned desperate and their compliance became unreliable, he did what he could to red-pill the DoD.

    • BruceF says:

      Trump assumed that any person taking an oath to the US Constitution had sworn fealty to him. He never grasped how loyalty works within our government. This led to many problems over his four years in office.

        • BruceF says:

          While this may be slightly too broad a generalization based upon my college logic course it remains essentially accurate as a description of how Trump viewed loyalty within his circle of advisors and the executive branch. Milley got momentarily pulled in at grave danger to our nation. Comey paid an immediate price for rejecting Trump’s insistence upon personal loyalty. You frequently challenge commenters asking, “What’s your point?”. What is your point?

      • Rayne says:

        I think Trump didn’t care about the Constitution, not that he made a bad assumption. As a malignant narcissist it’s always about him no matter what. His military, his generals, his parade, his classified documents belonging to him, it’s all his, his his.

    • harpie says:

      A very belated thank you for the answer, Marcy.

      I was planning on doing a little TL centered on TRUMP/MILLEY, but I’m just not able to really concentrate right now. Here’s the best I can muster, and hope people chime in with additions.

      6/1/20 MILLEY, wearing fatigues, accompanies TRUMP on his Bible photo op at St. John’s Episcopal Church [He publicly acknowledges his mistake 6/11/20]

      6/11/20 MILLEY acknowledges his mistake of accompanying TRUMP on his 6/1/20 Bible photo-op walk MILLEY: “I should not have been there” [VIDEO]

      10/30/20 MILLEY CHINA CALL

      11/11/20 MILLEY receives an unclassified signed order from TRUMP direct[ing] the military to withdraw from Afghanistan by 1/15/21.
      MILLEY: “After further discussions… the order was rescinded.” 9/28/21 [POLITICO]

      12/12/20 TRUMP attends ARMY-NAVY Game [Also there: Meadows, McEntee, Patel, Ratcliffe, [SecDef] Miller, Milley] TRUMP leaves at 4:09 PM, before half time, about an hour earlier than scheduled. [WaPo] “On Dec. 12, while Trump was attending the Army-Navy football game, he discussed with top aides a sensitive future assignment for Patel, one person recalled.”
      [From MILLEY’s deposition]:

      MILLEY to PATEL: So, Kash, which one are you going to get, CIA or FBI?
      PATEL: [looks down and he comes back and says]: Chairman, Chairman
      MILLEY: [Looks at MEADOWS] What are you guys trying to do?
      MEADOWS: Hey, it’s none of your business. This is personnel.
      MILLEY: Okay.

      Late December MILLEY call to counterpart in China
      1/3/21 DOD IG:

      “Mr. Miller and GEN Milley met with the President at the White House at 5:30 p.m. The primary topic they discussed was unrelated to the scheduled rally. GEN Milley told us that at the end of the meeting, the President told Mr. Miller that there would be a large number of protestors on January 6, 2021, and Mr. Miller should ensure sufficient National Guard or Soldiers would be there to make sure it was a safe event. Gen Milley told us that Mr. Miller responded, ‘We’ve got a plan and we’ve got it covered.’” (IGp31)

      1/8/21 MILLEY call with counterpart in China
      9/14/21 [approx] Previews of Peril published
      9/21/21 Peril published

  4. Rugger_9 says:

    One thing that so far has worked in democracy’s favor is that the American military from the very beginning has been subject to the civilian arm and since the Constitution was implemented in 1789 our oath is to protect and defend the Constitution, not the President. It’s another gift from Washington who doesn’t get enough credit in many cases for establishing the norms between military and government.

    Most of my colleagues understand that and are extremely loath to go to the banana republic model. Once GEN Milley was left holding the bag on the Lafayette Square fiasco, he was very unlikely to let Individual-1 push him around again on J6. That’s one reason why the ‘commissars’ were installed in order to prevent the NG summons (or at least slow-walked).

    • Hug h roonman says:

      Your point about the “gift” from George Washington is very well taken.

      If only the founders had heeded Washington’s warning about Political Parties.

      “The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually in- cline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the PURPOSES OF HIS OWN ELEVATION on the ruins of public liberty.” (emphasis mine)

      There is an echo of those words in our current predicament.

      • HikaakiH says:

        Drifting further afield: Political parties are a natural thing developed by people to further their shared interests. The influence of parties is strongest in systems that favor bigger parties; and that is exactly the outcome you get with the first-past-the-post voting system. Other systems make it more difficult for extremists to get themselves elected.

  5. Rugger_9 says:

    One thing that I wonder about is whether the cameras were already in place when the WashPo-referenced subpoenas were issued. If so, did Individual-1 know his actions were under surveillance?

    • Troutwaxer says:

      Security cameras are frequently run by outside services, and they’re not something higher-ups think about much prior to a crime being committed. So the subpoena is as likely to have been sent to the outside security company, probably under some kind of nondisclosure, as to Mar A Lago.

      I don’t know for sure what security arrangements are present at MAL, so this is nothing more than informed speculation, but everyone trying to understand what’s happening should be aware that MAL might not own their security cameras.

      • Legonaut says:

        Thanks for the point. I always pictured a control room at MaL with camera monitors and recorders, installed at the insistence of the Secret Service (if not already present) in 2016. Especially if the US Government could’ve been made to foot the bill.

        Too many movies, I guess.

  6. PhoneInducedPinkEye says:

    Thanks, analysis like this is why I come to this site first whenever I hear some major announcements on these cases condensed into a 3 second NPR bumper or tweet

  7. Leu2500 says:

    Sharing with donors. Anyone else remember way back when reporting was that the government wasn’t concerned that he’d tried to monetize the documents? So much for that.

    • vicks says:

      If Trump were bold enough to use the stolen documents for personal/financial gain, laundering the money through campaign donations just seems too easy to do and very hard to prove.

      • Anomalous Cowherd says:

        Oh, I dunno. How about a Russ Meyers flic like “Beyond the Valley of the Dolls?” TFG could play Z-Man. Just asking questions….

    • Rugger_9 says:

      It will be interesting to see the turnout, recalling how much of a fizzle it was last week for the indictment. To be fair the indictment issue had a bit of rope-a-dope about it (i.e. the jury recessing for a month as a signal) and a variable drop. The arraignment is different, for day and time.

      If the crowd is paltry (let’s remember there are reports of people leaving at Waco shortly after Individual-1 started blathering) look for more activity to try and find someone else. The problem for the GOP is that they cannot hope to win general elections without the MAGA crowd voting for them. This will be a test of how solid the hold is on MAGA by Individual-1.

      • Legonaut says:

        It wouldn’t surprise me if more looky-lous show up hoping for a perp walk, than Trump supporters protesting his arrest. Especially in NYC.

        And the press will outnumber them all.

  8. Ginevra diBenci says:

    Thank you, EW. I was hoping for just such an analysis after I read that thing in WaPo; I wondered in particular why they treated the whole shebang as simply an obstruction case. The Milley section stood out to me as new, too, and potentially damning.

    After reading this post, I found myself wondering if last week’s Hannity interview, during which Trump insisted repeatedly–and in spite of Hannity’s attempts to bail him out–that he had “the right” to the documents, might become evidence? I wouldn’t put it past Trump to try to play off voracious ego/proprietorship as mens rea now that such an intent seems less indemnifying–especially if the Trump-team play is for obstruction charges versus espionage.

  9. Cosmo Le Cat says:

    1. Since the venue for espionage charges could potentially be Florida, can the DOJ combine multiple charges, including the controversial NARA obstruction charge, in order to establish the DC Circuit as the venue?
    2. Could the charges/venues be bifurcated to separate venues?
    3. Would the venue for an obstruction of the DC grand jury be the DC circuit?

  10. jaango1 says:

    In all the many years of my political activity, the rationale for voting a candidate for elective or appointed public office, should leave me “angry” and yet, I am not disappointed, and not for one iota.

    Any person that condones or opts to reject one’s Moral Compass to support a candidate and premised on the person’s Marital Infidelity, should be recognized, for a passion that “dishonors” oneself within our governmental behavior.

    And given that “my future is mine” and now I have to contend with the “trash” that manifests itself daily, and even for all these many years, and which gives me the opportunity celebrate and practice my behavior for “Honor Achieved, Honor Acknowledged, and Honor Reciprocated.”

  11. Bay State Librul says:

    On the way to New York

    My guess is that the former President will be playing “First we take Manhattan, then we take Berlin.” as he heads toward the courthouse.
    Poor Leonard Cohen will be watching from afar.
    Look out for at least two years of mayhem.

  12. Rugger_9 says:

    OT, it seems Tacopina has been replaced by a former AUSA named Todd Blanche. He’s currently with Cadwalader, et al and represented Fruman and Manafort, so his loyalty score is probably high. Let’s see who is paying him.

    To use the Liz Truss test, did Tacopina outlast a head of lettuce as the voice of Trump in the Daniels case? It seems competitive for time line.

    Back on topic, why wasn’t Alina Habba in the loop about the new WashPo reports? She was grilled by Don Lemon and had the usual deer in the headlights look of someone who was blindsided as opposed to lying her tail off.

  13. pdaly says:

    “And given WaPo’s report, there’s good reason to think there’s a story they think they could tell about documents that may be part of Trump’s grievance campaign against Milley.”

    So Goldilocks docs potentially? I’m having fun picturing General Milley in a flowing blond wig.

  14. Cosmo Le Cat says:

    Josh Dawsey just appeared on MSNBC, taking the opportunity to stab at Biden by noting he also wrongfully had classified docs in his possession. Attorney Carol Lam replied by noting that both Biden AND Pence had docs, but then she distinguished the circumstances. She also said the Wa Post reporting could be a game-changer. I am always suspicious of Dawsey’s representations. I just read the Wa Post article and it also spends an early paragraph about Biden without mentioning Pence.

    • emptywheel says:

      NO need to be suspicious. Simply enough to recognize he’s the MAL court stenographer.

      • bmaz says:

        Yes, exactly. It is always fun to poke fun at the media, and they as a whole sure screw up enough. But, hopefully, one of the purposes/results of this blog is to help people think on their own and sort through it all. Everybody who reads here has that capability, or at least should.

    • David F. Snyder says:

      More notable (to me) was the embedded verbatim press statement via Trump aide Cheung. That seemed to me a principal raison d’être for the article: spread the talking (counter)points to the faithful.

  15. Tburgler says:

    A bit tangential, but what Milley did was wrong in so many ways, as he certainly knew himself, that he still felt that talking with the Chinese and inserting himself in the nuclear chain of command was less dangerous is frightening.

    • Rayne says:

      No. Fuck off. Seriously, go peddle that right-wing bullshit on Twitter. Milley was in the chain of command and after an attempted autogolpe he had every reason to be concerned about the risk of nuclear weapons being used unlawfully, without adequate predicate, since POTUS cannot declare war unilaterally. Milley fulfilled his oath which doesn’t demand blind obedience to POTUS:

      “I, [officer name], having been appointed an officer in the [military branch] of the United States, as indicated above in the grade of [level] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.”

      Having incited and encouraged insurrection for the purpose of an autogolpe, Milley had reason to perceive Trump as a domestic threat to the Constitution.

      P.S. Pick a username and stick with it. You commented today as “Tburgler” and previously as “Tburgler1” and “Tburler.”

      • Tburgler says:

        Apologies for the name changes. Looks like I couldn’t count one day and added a 1 to meet the character requirement.

        I think you misunderstand. I 100% applaud Milley for both those actions. Averting WWIII/nuclear catastrophe certainly warrants breaking rules. What I’m saying is that rules like civilian control of the military are core to our democracy. That Milley would break rules so ingrained is a measure of how likely he thought those outcomes were.

        And that’s Cuban missile crisis level terrifying.

        • David F. Snyder says:

          I don’t see Milley having broken any rules. Clarifying procedural rules to subordinates when the civilian CiC is known to be prone to pressure others to break procedural rules when it suits Trump’s personal desires is entirely reasonable and ethical.

        • Phaedruses says:

          This is also part of his job as a leader, making sure his subordinates know exactly what he requires in the performance of their duties.

          I was a company commander, and at times I made sure everyone was on the same page, especially in the move to combat during Operation Desert Storm.

          I see it as Gen Milley doing his job.

        • Eschscholzia says:

          I’m not a “General-lover” (c.f. U. Utah Phillips) but I don’t see where Milley broke any rules about civilian control of the military. He wasn’t playing Dr. Strangelove. Rather, wasn’t he coming from the perspective of illegal orders, ensuring illegal orders were not followed, and _possibly_ stepping in to take the heat from other officers for preventing illegal orders from being followed? I believe both undeclared war and Nuremberg principles are relevant.

          Yes the last may be giving Milley too much credit, but I would hope all military leaders, uniformed and civilian, would step up against potentially illegal orders.

    • Tech Support says:

      So, is this statement not factual?

      “Under current procedure, there was supposed to be a voice conference call on a secure network that would include the secretary of defense, the JCS chairman and lawyers.”

    • obsessed says:

      Anyone heard whether the judge is going to allow live TV in his court room?

      Trump’s lawyers have now opposed it, and most of the CNN/MSNBC analysts say Judge Merchan is known for keeping control over his courtroom and would be unlikely to allow it all other things being equal. So you should get your wish. They also say that Trump was offered the options of being remotely arraigned by Zoom or arraigned more privately at night, but that he chose the more high profile approach.

  16. Savage Librarian says:

    In a Bind(er)

    First it was the catch & kill he
    tried to ditch, but now there’s Milley,
    Still he couldn’t resist to gild the lily,
    But his shilly-shally was too willy nilly.

    It took more than one hefty dolly
    to shell game the document haul he
    doled out in bits to apprenticed Molly,
    Did she bundle some for a Svengali?

    Oh, covfefe, a coffee boy’s grinder
    ain’t got nothin’ on a document finder,
    3-ring circus, that dang Russia binder
    claps back like a stealthy sidewinder.

    And the Southern Baptist Convention,
    Is it even paying attention,
    Does it notice or even mention,
    Disbelief is on makeshift suspension?

    Who was it a faith leader forsook?
    Are classified maps what donors took?
    And is the pollster off the hook?
    Who is the author; who will make book?

    • Ginevra diBenci says:

      Good golly! You took my frown at the NYC Trump Parade–so unnecessary, so pathetic, and so demagogic during rush hour if you live up here–and turned it upside down, SL.

      Or is that rightside up? One of those.

  17. Jackie_03APR2023_2051h says:

    Trump is now Norma Desmond in Sunset Boulevard. Pathetic.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “Jackie” is your second user name and is not compliant with the site’s 8-letter minimum standard. You’ve commented before as “Obansgirl,” to which you may wish to revert. Thanks. /~Rayne]

  18. vigetnovus says:

    Not going to lie…I’m a little nervous about Trump being in NYC. Like emptywheel, I feel like there’s some really really sensitive stuff Trump still has and is trying to parley into a get-out-of-jail card.

    I wonder if he’s going to chat up SDNY folks while in town or talk to the FBI. The other way he avoids accountability is by turning CHS on others. Question is, who could he rat out to avoid catching a 793 charge? And wouldn’t such powerful people have eyes on Trump 24/7?

    Another possibility is that the missing docs are in Trump Tower or maybe Bedminster…..he’s there to make sure the handoff goes smoothly.

    • Rayne says:

      Whew. I don’t know how he could attempt to cut a deal by extorting performance using classified documents. I mean, if he does that, watch any of his attorneys who aren’t complete idiots run for the hills.

      Especially since he was the biggest rat. It might work if he was a small fish flipping on a big fish but he’s not.

      • vigetnovus says:

        I don’t disagree, but then again, Rayne, you and I both know that he is still a tool of even more powerful folks.

        Not saying he can help DOJ bring those folks to justice. But he might help FBI roll up some networks, or provide critical Intel about our adversaries’ weaknesses. That might be worth not charging him with espionage, as long as he returns all the docs.

        And maybe he can help put Stone, Flynn, Bannon et al behind bars. I’m ok with that. It sends a message to would be sell-outs in the future.

        Ultimately, I suspect he will be “exiled” to Israel or the UAE to live out his days in near-obscurity.

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