The Potential International Grift Hiding behind the Stolen Documents Investigation

Back in November, Devlin Barrett (along with WaPo’s Trump-whisperer, Josh Dawsey) published a column claiming investigators had found nothing to suggest that Trump was trying to monetize the documents he stole.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

I mocked Devlin’s credulity at the time. His story was utterly inconsistent with — and made no mention of — several details we (or I) already knew about the documents. It also showed no consideration of the value that the already-described documents would have for Trump’s business partners, the Saudis.

As Devlin Barrett’s sources would have it, a man whose business ties to the Saudis include a $2 billion investment in his son-in-lawa golf partnership of undisclosed value, and a new hotel development in Oman would have no business interest in stealing highly sensitive documents describing Iran’s missile systems.

The story was transparently an attempt by someone to prematurely cement an investigative conclusion, almost a month before the stay on DOJ’s access to the unclassified documents seized last August was lifted. Just two days later, Trump announced his bid for another Presidential term, and two days after that, Merrick Garland appointed Jack Smith, someone who had no partisan stake in issuing premature exoneration for Trump.

Yesterday, as the NYT published a second substantive story about Jack Smith’s subpoena for information about Trump’s business deals, Devlin published a perfunctory one. Even before he describes the subpoena, Devlin reports a single source concluding, as his sources concluded last November, “nothing to see here.”

But the inquiry produced little that wasn’t already publicly known, this person said, speaking on the condition of anonymity to discuss an ongoing criminal investigation.

Prosecutors sought information on any real estate and development deals reached in China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman, the person said.

The Trump Organization’s public website lists only one deal in that time frame in one of those countries, Oman, and that deal was done after Trump left the White House.

Devlin’s story notes his earlier report, but not how wildly it conflicted with even the events known at the time, emphasizing China not Iran.

The Washington Post reported last year that while the classified documents included sensitive information about U.S. intelligence-gathering aimed at China, among other subjects, investigators did not see an obvious financial motive in the type of documents recovered from Mar-a-Lago.

NYT’s more substantive story on this inquiry expresses far less certainty than Devlin’s single attributed source about what the subpoena obtained, much less what Smith already had to support this line of inquiry.

The Trump Organization swore off any foreign deals while he was in the White House, and the only such deal Mr. Trump is known to have made since then was with a Saudi-based real estate company to license its name to a housing, hotel and golf complex that will be built in Oman. He struck that deal last fall just before announcing his third presidential campaign.

The push by Mr. Smith’s prosecutors to gain insight into the former president’s foreign business was part of a subpoena — previously reported by The New York Times — that was sent to the Trump Organization and sought records related to Mr. Trump’s dealings with a Saudi-backed golf venture known as LIV Golf, which is holding tournaments at some of his golf clubs. (Mr. Trump’s arrangement with LIV Golf was reached well after he removed documents from the White House.)

Collectively, the subpoena’s demand for records related to the golf venture and other foreign ventures since 2017 suggests that Mr. Smith is exploring whether there is any connection between Mr. Trump’s deal-making abroad and the classified documents he took with him when he left office.

It is unclear what material the Trump Organization has turned over in response to the subpoena or whether Mr. Smith has obtained any separate evidence supporting that theory.

Neither story describes whether the subpoena listed which crimes are under investigation. On that topic, the NYT, as part of boilerplate, repeats the same thing I do when I make boilerplate recitations of the crimes under investigation: 18 USC 793(e), refusing to return classified documents, and 18 USC 1519, obstruction of the efforts to get those classified documents back.

While establishing a motive for why Mr. Trump kept hold of certain documents could be helpful to Mr. Smith, it would not necessarily be required in proving that Mr. Trump willfully maintained possession of national defense secrets or that he obstructed the government’s repeated efforts to get the materials back. Those two potential crimes have long been at the heart of the government’s documents investigation.

Devlin uses similar boilerplate.

The Mar-a-Lago investigation has centered on two potential crimes — possible obstruction for not complying with the subpoena, and possible mishandling of national security secrets for keeping classified documents in an unauthorized location

We are — all of us, myself included — forgetting the third statute included on the search warrant that once seemed a mere backstop to the others, 18 USC 2071, intentionally removing government documents. That statute, which once upon a time might have been used as the crime to which Trump could plead down in a plea agreement, carries only a three year max sentence. But along with that sentence, it disqualifies someone convicted of it from holding public office, something that would be challenged constitutionally following any jury verdict but which would be waived under any plea deal.

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

I’ve always believed (as have experts I trust) that this would be a particularly hard crime with which to charge a former President, largely because a President has legal access to these documents until noon on January 20. But asking about business deals Trump might have been pursuing while in the presidency, all the way back to 2017, might provide evidence of intent that predates the actual removal of the documents.

And learning about Trump’s business deals with, especially, the Saudis, might develop evidence for 18 USC 794, the far more serious crime of providing intelligence to help a foreign government.

Let me caution, I still think it exceedingly unlikely that Smith is pursuing 794 charges against Trump for stealing documents and then selling them to the Saudis, to be paid in the form of golf tournaments and branding deals in Oman. Please don’t take from my mention of this that I’m predicting Smith is going to Go There. Rather, I suspect Smith is thinking of a package of potential charges that would give Trump an option to plead down quietly, one sufficiently ugly to make Republican politicians not want to join him in his fight. I’m merely stating that taking documents and refusing to give them back — which is the currently known lead charge in this investigation– is a dramatically different fact set than taking them and sharing them with a foreign government that pays you a lot of money, especially one that subsequently engaged in multiple actions — keeping gas prices high during the election and chumming up to China — that seem to have surprised the US intelligence community, as if some intelligence visibility had gone dark before those happened.

But let me go back to Devlin’s source’s certainty that there’s nothing to see there. It’s an odd claim to make given the number of other gaps in understanding that seem to exist in the understanding of those not directly participating in the investigation.

The story where NYT first broke the Trump business deal subpoena described at least five different subpoenas to Trump Org (though way down at the bottom of the story, it describes “numerous” subpoenas):

  1. The subpoena including the golf deal and — we now learn — all business deals Trump has chased since 2017
  2. A subpoena to Trump Organization seeking additional surveillance footage
  3. A subpoena to “the software company that handles all of the surveillance footage for the Trump Organization, including at Mar-a-Lago”
  4. First, a subpoena to Matthew Calamari, Jr.
  5. Then, a subpoena to Matthew Calamari, Sr.

Matthew Sr., at least, would have visibility on business deals with the Saudis and others. But all the reports on the two interviews with the Calamaris suggest they were focused, instead, on why Walt Nauta contacted them after DOJ first subpoenaed surveillance footage.

To resolve the issue about the gaps in the surveillance footage, the special counsel last week subpoenaed Matthew Calamari Sr, the Trump Organization’s security chief who became its chief operating officer, and his son Matthew Calamari Jr, the director of corporate security.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request, one of the people said – initially a point of confusion for the justice department, which appears to have thought the text was to Calamari Jr.

Most reporters assume the gaps DOJ is trying to close pertain to Nauta’s own actions in advance of Evan Corcoran’s search of the storage closet. I’m not sure. That’s because DOJ got sufficient visibility from what they did receive to list the storage closet, Trump’s office, and Trump’s residence in the search warrant supporting the August search of Mar-a-Lago. They got sufficient visibility to lead Nauta to revise his testimony afterwards. That’s why I emphasized in my last post on this that DOJ asked for five months of surveillance video, predating the day, by eight days, that Trump sent boxes to NARA in January 2022. The gaps in question might have shown other people, not Nauta, entering the storage closet, or have shown Nauta entering at times entirely removed from the date of the subpoena. If — strictly hypothetically — those gaps coincided with business meetings with foreigners at Mar-a-Lago, it would be a flashing siren saying, “look here for the good stuff.” It might also explain why Nauta immediately reached out to Calamari about the video, if he knew some of that video would show things that were far more damning than the mere attempt to obstruct a subpoena response.

If Nauta had involvement in earlier sketchy activities, predating the subpoena, it might explain why — as Hugo Lowell reported — Nauta fairly obviously attempted to monitor Evan Corcoran’s own search.

The notes described how Corcoran told Nauta about the subpoena before he started looking for classified documents because Corcoran needed him to unlock the storage room – which prosecutors have taken as a sign that Nauta was closely involved at essentially every step of the search.

Corcoran then described how Nauta had offered to help him go through the boxes, which he declined and told Nauta he should stay outside. But going through around 60 boxes in the storage room took longer than expected, and the search ended up lasting several days.

The notes also suggested to prosecutors that there were times when the storage room might have been left unattended while the search for classified documents was ongoing, one of the people said, such as when Corcoran needed to take a break and walked out to the pool area nearby.

One more thing that might explain prosecutors’ concerns about gaps in the surveillance footage is if they coincided with the times when Corcoran had left the room unattended.

Yet every time someone writes about Nauta, they include language that might come from the vicinity of Stanley Woodward, the lawyer that Nauta shares with Kash Patel (as well as Peter Navarro and convicted seditionist Kelly Meggs and his wife), suggesting that it was a mistake not to immunize Nauta, as DOJ did with Kash, because it has prevented them from substantiating an obstruction case. The version of this in the NYT — which reflects the kind of internal DOJ dissent that WaPo has reported regarding a push to adopt a more cooperative stance in advance of the search — is especially unpersuasive.

Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.

Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.

The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.

The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.

More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.

If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny  of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).

And there’s something that is routinely missed in all of this coverage. The Guardian’s Lowell rightly suggests that because Trump didn’t directly tell Corcoran to search only the storage closet, it might present challenges to an obstruction case. But Trump’s choice to use Nauta as an obvious gatekeeper makes it far easier to charge Nauta with 18 USC 793(g), conspiring to hoard classified documents. So the observation that DOJ hasn’t chosen to charge Nauta with just false statements in the interim six months should in no way be taken as solace by Nauta, because what has happened in the interim puts him at risk of charges that carry a ten year sentence for each document in question rather than the few months he might face for lying to the FBI.

Nauta’s not the only one who might insulate Trump from obstruction charges but expose all of them to greater Espionage Act danger.

Witness the evolution of how Tim Parlatore described Boris Epshteyn’s role in the investigation. In March, Parlatore described that, until such time as Boris started being treated as a target, his access to people “inside the palace gates” was useful.

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

But in the wake of Parlatore’s departure from Trump’s legal team a week ago, he went on Paula Reid’s show (on whose show he had earlier told an utterly ridiculous story about Trump using classified folders to block a light by the side of his bed) and lambasted Boris as an impediment to communication between Trump and his lawyers.

Boris Epshteyn [] had really done everything he could to try to block us [the lawyers], to prevent us from doing what we could to defend the President, and ultimately it got to a point where — it’s difficult enough fighting against DOJ and, in this case, Special Counsel, but when you also have people within the tent that are also trying to undermine you, block you, and really make it so that I can’t do what I know that I know that I need to do as a lawyer, and when I’m getting in the fights like that, that’s detracting from what is necessary to defend the client and ultimately was not in the client’s best interest, so I made the decision to withdraw.


He served as kind of a filter to prevent us from getting information to the client and getting information from the client. In my opinion, he was not very honest with us or with the client on certain things. There were certain things — like the searches that he had attempted to interfere with, and then more recently, as we’re coming down to the end of this investigation where Jack Smith and ultimately Merrick Garland is going to make a decision as to what to do – as we put together our defense strategy to help educate Merrick Garland as to how best to handle this matter, he was preventing us from engaging in that strategy. [my emphasis]

At one level, this publicity stunt appears to be an attempt to persuade Trump that he should fire Boris. WaPo’s coverage of this clash describes that Parlatore’s public appearance followed what seems to have been a “he goes or we go” meeting with Trump a week ago (though Jim Trusty, at least thus far, has not chosen to follow Parlatore).

Before this weekend’s public feud, members of Trump’s legal team tried to settle the conflict quietly. Parlatore and another lawyer for Trump, James Trusty, recently traveled to Florida to advise Trump that he needed to remove Epshteyn from the document case and the 2020 election case, according to a person familiar with the matter who spoke on the condition of anonymity to reveal private deliberations. Smith, the special counsel, is tasked with investigating both cases.


Trump did not appear to take Parlatore and Trusty’s advice, as Epshteyn remained in his role as a key legal adviser and coordinator to Trump.

Parlatore has said he’d be willing to return if Boris were gone.

At another level, Parlatore seems to be getting out while the getting is good, shortly before any charges are filed, so he’s not stuck defending an uncooperative client who won’t pay his bills. (Update: WSJ reports that the investigation is all but done and some associates are prepping for Trump to be charged.) The publicity stunt gives him the first say on who is responsible for what comes next, too. If Trump gets charged, Tim Parlatore didn’t fuck up, Boris did.

The publicity stunt, with its claim that Boris lied to both him and Trump, may also be an attempt to insulate Trump. As such it may be little different than the ridiculous folder-on-the-bedside-light story.

But Parlatore’s response to Reid’s follow-up on Parlatore’s claim that Boris interfered with searches may be more than that.

Reid: What searches are those?

Parlatore: This is the searches at Bedminster, um, initially. There was a lot of pushback from him where he didn’t want us doing the search and we had to, eventually, overcome him.

Reid: Why didn’t he want you to do the search?

Parlatore: I don’t know.

Trump’s lawyer do not know — never have! — why Boris was so reluctant to allow a search of the property to which Trump flew to host a Saudi golf tournament directly after failing to comply with a subpoena.

Immediately after that exchange, Reid invited Parlatore to clarify that when he testified to the grand jury in December, he did so in lieu of any custodian of records for the searches done on Mar-a-Lago. Parlatore clarified he did not testify in response to a subpoena and on several occasions, when he offered to come back and clarify, prosecutors declined his generous offer.

Reid then gave him an opportunity to explain why the claims Parlatore made to Congress (which conflicted with known facts and which Epshteyn declined to sign) didn’t fundamentally conflict with the insta-declassification story Boris has told. Parlatore left me convinced that everyone is lying, meaning by choosing to retain Boris over Parlatore, Trump is just picking which lie he finds more convenient.

Nevertheless, Parlatore got his story out. He got to describe how the story he planned to tell Merrick Garland doesn’t conflict with the currently operative declassification story and more importantly, that if his December testimony to the grand jury was incomplete in any way, it’s all Boris’ fault.

Parlatore said, midway between his testimony and now, that if Boris started looking like a target, he might be in trouble. But in the wake of a two day interview between Boris and Smith’s attorneys and in the wake of subpoenas that raise increased questions about why Boris may have tried to prevent any search of the property at which Trump hosted the Saudis immediately after Trump blew off a subpoena, Parlatore took to the TV and offered his defense. If Jack Smith finds the Bedminster obstruction interesting enough, Parlatore may well have earned himself a subpoena.

The belated, convenient description of Boris as a filter rather than worthwhile access “inside the palace gates” is particularly interesting given WaPo’s description about what kind of advice Boris gave, in lieu of legal advice.

Epshteyn, a lawyer, had helped guide communications for Trump’s campaign and the White House.

According to the source, Parlatore and Trusty argued that the lawyers needed to focus on protecting Trump legally, not politically.

A source close to the Trump campaign who spoke on the condition of anonymity to disclose the team’s private thinking defended Epshteyn and said he is focused on protecting Trump from a variety of angles, whether it’s legal, political or related to the media.

Parlatore imagines he was trying to defend Trump legally. Boris thinks he’s defending Trump from a “variety of angles,” one of which is politics. That’s consistent with how Boris billed his time, which until after the August search he billed as political consulting. But it also suggests Boris was not just a gap in Parlatore’s knowledge, but also a gap in any privilege claims Trump can make over the others.

If Trump’s own ex-lawyer says that Boris was lying to both sides about what went on there’s a big gap in anyone’s knowledge — at least outside the team that has been investigating for a year.

Plus there’s all the stuff — even beyond the evidence collected in this investigation that DOJ would have obtained about these particular documents — that DOJ already knows.

During the Mueller investigation, for example, DOJ spent some time investigating how Trump shared highly classified Israeli intelligence with Russia just days after he fired Jim Comey. That includes the way in which White House staffers altered the MemCon of that meeting (much as, years later, the White House would alter the MemCon of Trump’s perfect phone call with Volodymyr Zelenskyy). That particular leak of classified information did not violate US law, because as President, Trump could declassify it. But it is precedent for Trump sharing the secrets of America and its allies with foreign countries that have helped him.

More directly on point, DOJ has abundant evidence regarding Trump’s approval of Tom Barrack’s efforts to tailor US policy to serve the Emirates and, secondarily, the Saudis, including to treat Mohammed bin Salman with full diplomatic status. On Barrack’s request, during the course of discovery, DOJ obtained a great deal of information from other agencies about Trump’s policy towards the Gulf Kingdoms. DOJ’s prosecution of Barrack ended in failure. But what it showed is that from the very start, the guy who got Paul Manafort hired did so knowing he could use it to promise to shape US policy to the Emirates’ interests. Like sharing classified information with Russia in 2017, Trump’s choice to shape US policy to serve the Emiratis and Saudis is not illegal. It’s only after he left the presidency where a quid pro quo could be important.

Unless, of course, such business discussions started earlier.

Again, I want to emphasize that I’m not saying Jack Smith is about to indict Trump for selling US secrets to the Saudis. But investigative developments reported out in the last several weeks have suggested that this investigation may not be the obstruction investigation everyone is treating it as.

Instead, Jack Smith may get to obstruction via a conspiracy to hoard classified documents.

Update: Corrected date on NARA document return.

90 replies
  1. earlofhuntingdon says:

    The threat of other, uncharged crimes hanging in the wind is always a useful negotiating tactic.

  2. earlofhuntingdon says:

    I note that Barrett likes to be redundant when describing crimes the president or other person in power might have committed. Here, he could have done without either “potential” or “possible”:

    The Mar-a-Lago investigation…centered on two potential crimes — possible obstruction… and possible mishandling of national security secrets

    • Ravenous hoarde says:

      Two potential Nobel prizes
      -possible chemistry and possible physics

      – Sideshow Bob Barrett

      • ExRacerX says:

        Sure, possible chemistry and physics are fun, but impossible chemistry & physics are more challenging.

        • HikaakiH says:

          While discussing impossible chemistry and physics, remember that it takes a really hot cup of tea to be fed to a finite improbability generator to produce an infinite improbability drive. But also recall that colleagues really can’t stand a smart-ass.

        • ExRacerX says:

          eh, my colleagues are always trying to outweird me, but I get stranger things for free in my breakfast cereal.*

          *Apologies to Zaphod Beeblebrox.

  3. BobBobCon says:

    “During the Mueller investigation, for example, DOJ spent some time investigating how Trump shared highly classified Israeli intelligence with Russia just days after he fired Jim Comey. ”

    One thing that strikes me is that much or all of the intelligence Trump shared then and in other cases was spoken, not written. And I have to believe the US is worried about this risk to this day, even if they’ve cleaned up as much of their exposure as possible.

    He must still be a significant risk of exposing US areas of interest and capabilities in ways which go far beyond any documents he has. It’s certainly possible that cases described above like intelligence sources going dark may be related to him passing on tidbits he heard about sources and methods, not things he read.

    I’m nowhere close to knowing how this kind of thing would be investigated, let along prosecuted. But I’m curious if a lot of the case being built about documents is an attempt to address a much bigger problem — not just how to get documents back and find out what was leaked, but to keep him quiet going forward, and understanding and containing the damage he’s done.

    • emptywheel says:

      Not actually true. I know of one time he shared intelligence where he had a classified folder in front of him when he shared it.

  4. Paul Wartenberg says:

    I doubt trump will ever accept any plea deal because that would be him admitting he had done something illegal or wrong. trump ALWAYS keeps lying about everything he does criminally as “the perfect X” like “that was a perfect phone call to Georgia’s Secretary of State trying to find me 12,000 more votes” or “what I do to women, they let you do that when you’re a celebrity like me.”

    trump will fight every legal charge against him and he will force the Republican Party leadership to back him 100 percent lest they get primaried by his MAGA voting base.

    • Bobby Gladd says:

      Trump by now has no choice but to keep on recursively doubling down. We might see that as irrational, but he likely doesn’t see it that way. Ultimately, he’s banking on a sufficient-sized national “jury nullification” pool of deaf True Believers (many of whom are Locked & Loaded).

      Yeah, it looks tragicomically absurd to us, but what choice does he have?

      • Matt___B says:

        I just gotta think that continuing down the path of “recursively doubling down” will eventually lead to a breakdown of some sort. One might be able to be a voluminous liar, but it can’t be a relaxing activity. At a certain point (maybe with multiple simultaneous indictments being a reality) the cortisol level will rise, anxiety level will rise, delusion level will rise even beyond currently high levels, something’s gotta give. An emotional/psychological/physical gasket will “blow” in some fashion or other…the threshhold of which is TBD.

        • jecojeco says:

          It’s remarkable that someone of trump’s age, poor physical condition and continuous and increasing stress hasn’t blown a physical or mental gasket. (Although his Truth posts like “WWIII” and “the Communists are after me” show that the mental gaskets are, at least, leaking.) Whatever they’re giving him to prevent a game-ending blowout must be great stuff. He must have a miracle working MD – and I don’t mean Ronny Jackson!

        • Matt___B says:

          well…to make an automobile analogy…if you have a leaky head gasket, it can manifest as steamy white smoke coming out of the the tailpipe. As the steam escapes, the engine heats up to an unsafe level. Hopefully in this handicapped condition, one can still navigate the broken vehicle to a mechanic for an expensive head gasket job. Might even have to swap out the head altogether.

          P.S. Michael Jackson also had a “miracle-working MD”…until he didn’t.

      • eyesoars says:

        It’s “gambler’s ruin” set in the criminal justice world. Aka, “go big or go to jail.”

  5. Rugger_9 says:

    Have Bedminster and Trump Towers been searched again for SC Smith? If not, it’s now overdue. DoJ can do that on our own soil (the contemporaneous 50-page note file could justify the warrant and exigency), but there might be stuff squirreled away overseas by now as well. Doonbeg, perhaps since the ‘5 eyes’ protective arrangements do not include Eire as far as I know.

    As for the fundamental skepticism about Defendant-1, it was never really plausible outside the courtier press bubble that he wouldn’t try to monetize his access, not only because it’s ingrained in his soul (such as it is) but IIRC there were and are still many financial chickens coming home to roost and he needs the money.

    • Shadowalker says:

      Such searches are required by the Constitution of having probable cause of evidence of a specific crime. Now, they may get a judge to sign the warrant with only the fact that documents have been found at other locations, however, that does not mean documents would be found there, and if they aren’t, would not only be embarrassing but also give more ammunition for claims of “witch hunt”.

      When they did the search at Mar-a-Lago they were positive that not only the documents were there but the actual locations to search.

      • Rugger_9 says:

        In the abstract, I’d agree, but within those 50 pages from the lawyer, I suspect there are enough specific references to meet 4th Amendment constraints. 50 pages will contain more than just drool and drivel, even for a lawyer (couldn’t resist) or Durham (not sorry).

        The crime would be obstruction (at least) and the document retention already discussed at length on this board. Also note that the government was able to subpoena these under crime-fraud exceptions to attorney-client privilege so I think that test is satisfied. The probable cause comes from the notes.

        • BobBobCon says:

          The government may well assume that any more documents he stole have already been distributed, and that they have enough of a case already that further searches will complicate prosecution rather than enable it.

        • bmaz says:

          They do have enough of a case already. But, the issue is not just criminal, but where, and to who, did it go. That should still concern them.

        • Shadowalker says:

          Having enough probable cause isn’t the main problem. The problem is if the suspected contraband isn’t there when the search is conducted.

          Years ago (actually decades) my brother-in-law was a house painter, one day one of his clients noticed some valuable items were missing after he left (jewelry mostly, think there was a coin set). So they contacted the police, who got a search warrant to look for the items in his house. They didn’t find anything, think they even accused him of selling the evidence. About two weeks after the search, it was discovered that the son of the clients had a drug problem and was selling the items to feed his habit.

          My brother-in-law isn’t a former President (though he did meet him once, and can’t stand him at all now) so they have to be absolutely sure they find what they are looking for or the whole case could be compromised. Any mistakes, even minor ones could be fatal for any prosecutions.

          To paraphrase Bmaz in another discussion, ‘You go after the king, you better be good’ (apologies for any errors). I’ll add that no former President has been prosecuted and they only get one shot that has to withstand any and all appeals and mistakes will be magnified.

          One thing I’m really confused about is that Trump gave some of his classified contraband to NARA. It was only after they inventoried the boxes that they discovered the classified documents. So either he really believes he wasn’t in legal jeopardy (in his mind he did in fact own them) or he was just daring them to go after him. Either way, he was done with those particular documents and so he gave them up willingly. We’ll probably never know what was in those documents or if we find out it would be so far in the future that they have no meaning.

        • bmaz says:

          “If you go at the king, you better kill the king”. Trump is no longer king, but he still has some cache. Smith seems to be building the real cases against Trump.

        • Shadowalker says:

          That was it. Thanks.
          Pretty sure all formers have cache, comes with the office.

          Yes Smith is, pretty sure he won’t pull a Durham either.

  6. Peterr says:

    Like sharing classified information with Russia in 2017, Trump’s choice to shape US policy to serve the Emiratis and Saudis is not illegal. It’s only after he left the presidency where a quid pro quo could be important.

    Unless, of course, such business discussions started earlier.

    And you know that they had to have started earlier, which could be the undoing of this mess.

    Somewhere at State, Treasury, DoD, and the CIA, staffers are working with Jack Smith to pore over briefing books and strategy documents that would have been provided to Trump and his appointed minions (including especially Jared Kushner and Steve Mnuchen) prior to their various trips and other discussions with foreign leaders. They will be cross-checking these pre-trip documents with the post-trip debriefings, looking for oddities between the “here’s what we want to do” stuff written ahead of time and the “here’s what we did” recorded after the fact.

    Not every discrepancy is proof of improper action — stuff happens, and so plans change and policy positions get altered. But somewhere, Jack Smith has gotten a whiff of something else, and those documents will contain hints or leads that need to be tracked down.

    If there was a substantive change in plans or policy positions that was made during the trip, there ought to be a trail of documents (call records, memos, emails, notes-to-the-file of conversations, etc.) that discusses why a change was needed and to make sure the right folks signed off on it. Again, not everyone needs to agree that a given change was needed, but if a change was made and there is *no* record of why, that’s a big red flag.

    Similarly, they will be looking at who was part of every meeting on these trips, and taking note of any last-minute adjustments or odd occurrences along the way. I am sure that the Special Counsel would be very very interested in any meetings like the one in 2018 that Rex Tillerson had with Turkey’s President Recep Tayyip Erdogan where the Turkish foreign minister did the translating and no other US delegation members were present.

    There are plenty of paper trails to be tracked down and career staffers interviewed to see if what’s on paper tells the whole story.

    • Martin Cooper says:

      Long-time Empty Wheel lurker and retired CIA officer here. I fully concur in Peterr’s observations. In the same vein, I wonder if Jack Smith will have interviewed the State Department (I think) interpreter present at Trump’s Helsinki meeting with Putin, and whose notes Trump reportedly seized thereafter.

      • bmaz says:

        Welcome to Emptywheel, join in more often.

        As to Helsinki, he better hurry up, the statute of limitation will expire mid July of this year.

  7. Tom Smith says:

    In the back of my mind, I always go back to how Trump looked during that first LIV golf tournament. For those who forget, please do a quick Google search and take a look.

    Trump never looks all that great, but there is something about that time that made him look even worse.. almost like you could see the stress of that particular time was weighing heavily and it was manifesting in his physical appearance. I think some in the media may have also noticed. I don’t remember what the weather was like during those days, but I always look back and notice how terrible he looked during that time.

    • Spank Flaps says:

      Noel Casler and Michael Cohen have said that Trump always looks that bad without makeup and posh TV lighting.

      • Savage Librarian says:

        If I have only one life…let me LIV id as a blot. (Only his hairdresser knows for sure.)

    • Ginevra diBenci says:

      That’s what he really looks like. His appearance, on the other hand, represents his greatest lie. If his MAGA fans ever saw him as he is, they would lose all faith.

  8. John Paul Jones says:

    Apologies for going OT, but the tweet feed has disappeared from both my office machine and my laptop. Is it something I’m doing/not doing, or something happening at the site level? Any assistance from fellow commenters would be welcome.

  9. greenbird says:

    i copy/paste gristly portions i need to further chew …

    “… But along with that sentence, it disqualifies someone convicted of it from holding public office, something that would be challenged constitutionally following any jury verdict but which would be waived [] under any plea deal.”

    “… asking about business deals Trump might have been pursuing while in [] the presidency, all the way back to 2017, might provide evidence of intent that predates the actual removal of the documents.”
    “… shall [] forfeit [] his office [] and [] be disqualified from holding any office under the United States.”
    “… what has happened in the interim puts him at risk of charges that carry a ten year sentence for each [] document in question rather than the few months he might face for lying to the FBI.”

  10. Amicus12 says:

    When you reflect upon the hit parade of Trump’s actions in office beneficial to Saudi and the Emirates it’s quite a hit parade.

    There is the apparent green lighting of MbS’s palace coup, the initial indifference to the blockade of Qatar (which went on for more than a year, and may have been initially green lighted as well), indifference (possible green lighting) to the Khashoggi assassination, the continued supply of weaponry for the war in Yemen, and the Trump-Barrack effort to provide the Saudi’s access to United States’ nuclear technology absent the strictures of a non-proliferation agreement (i.e., giving KSA the bomb). Given Trump’s transactional nature, why would he stop?

  11. Molly Pitcher says:

    With apologies,

    Hey Hollywood !

    Regarding “hollywoodsays:
    May 14, 2023 at 1:28 am
    You’re just setting your Nuggets up to get smashed by the Celtics or the Sixers. There’s a reason the Nuggets have never gone all the way.”

    Just a reminder.

      • Molly Pitcher says:

        I don’t know but I think it will be a terrific final series. I was rooting for the Nuggets because I was impressed with them over the year; since the Warriors were out, I wanted the Nuggets to crush the Lakers. Mission accomplished !

        NOT a Lakers fan.

        • Matt___B says:

          I was a Laker fan for 2 separate NBA generations, the Magic-Kareem Lakers of the ’80s and Kobe-Shaq Lakers of the ’00s. But never have been a fan of the LeBron Lakers, tho they did exceed expectations this year in merely getting into the West conference finals…

        • hollywood says:

          Well, Matt, it seems LeBron did not take the sweep well and is considering retirement.

        • Matt___B says:

          Ahh, that’s what he’s saying to the press today, the wound is fresh. We’ll see. Anyway he’s had a good career in Cleveland and Miami but couldn’t pull off the full monty in L.A. C’est la vie…

        • wrhack68 says:

          Thank you! I thought I was alone. Die hard Lakers fan from 1970s to 2015.

          (note I have added 68 to my previous moniker to bring it into conformity with 8-character requirement)

        • bmaz says:

          Think I have said this before, but, as far as I know, the “BEAT LA” thing started in Phoenix, and the thought remains very much.

        • P J Evans says:

          Before that, it was “Beat the Dodgers” or “Beat Brooklyn” – that goes back to around 1900. (“Are the Dodger still in the league?” – John McGraw, manager of the Giants)

  12. Michael K says:

    Can we infer anything from the specific countries reportedly listed on the subpoena?

    Is Trump possessing classified docs about Marcon in and of itself sufficient probable cause to demand business records in France? Is what’s publicly known about a Chinese bank account and Turkish real estate deals and Kuwait’s Trump hotel events sufficient probable cause to ask for business records with those countries? Or is the implication that the Special Counsel has some additional non-public evidence connecting business pursuits in these countries with improperly taken classified docs?

    • emptywheel says:

      Smith doesn’t need probable cause for the subpoena. He would need it for a warrant.

      But remember that the Macron doc, if that’s what it was (it was described as pertaining to the French President, which probably is Macron) was not free-standing. It was tied, in some way, to the Roger Stone clemency.

      • Michael K says:

        Thank you! I did not understand there’s a lower threshold for a subpoena.

        So what happens if the info which comes back in response to the subpoena hints at other possible crimes that are outside of the scope of already ongoing investigations? (For a simple example, say, tax evasion on foreign income). Are there restrictions against using documents subpoenaed for one investigation as a basis to open additional investigations?

  13. quickbread says:

    So, just like with the documents at MaL, does this mean Smith already has a lot of proof of nefarious international dealings in his possession, which he’d have needed to present to a judge to obtain the subpoena? Also, maybe this was already mentioned and I missed it, wasn’t there a document in Trump’s MaL desk drawer about the president of France? I’m cautiously hopeful this investigation will get to at least some of Trump’s core crimes rather than stopping short at classified document possession.

  14. QuadrantFive says:

    Is it me or does Boris Epshteyn seem like the most cartoonishly likely person to be a spy/agent for Russian interests? Born in Russia, Moderating an “invest in Moscow” forum with a bunch of Moscow politicians, propaganda mouthpiece at Sinclair Media?

    Wondering if others have more interesting facts about this man of mystery.

    Anyhow, wonderful article (as usual)!

    • emptywheel says:

      If he were, then he may have no greater goal than destroying the US, as opposed to helping Trump. And Trump might not understand that.

      • QuadrantFive says:

        My thinking is that Trump (despite likely having some mental acuity issues) is aware that Boris is likely representing Russia’s interests. My thought is that Boris is the person who presents Pootie Poot’s advice/instructions to Trump after receiving said advice through at least a couple middle men/cutouts. Although this could be my imagination running wild after watching too many spy movies;-)

      • Ginevra diBenci says:

        Is Boris smart enough to do that?

        And even if Trump understood, I can’t see him caring, as long as he got out okay.

  15. ptayb says:

    I recall a funny moment in the interview when Parlatore was asked how Trump could declassify stuff if he didn’t know what was in the boxes. Seemingly he wouldn’t be able to use his special declassification powers activated by his thoughts if he didn’t know what documents to think about. Parlatore tried to establish there were two kinds of documents. Those for which they had the documents showing the process for declassification (which they couldn’t show because they didn’t know what documents the DOJ has in their posession and if they only knew what documents the DOJ had they could clear it all up.) Then there were those documents in the boxes that they didn’t know about because of chaos and overzealous packers. So they have documents for which they can to show their work that should not be confused with the other documents that got there because stuff happens.
    My admiration for Dr Wheeler’s ability to write clearly about this stuff just went way up.

    • Shadowalker says:

      Trump knew there was a process. And it had nothing to do with thinking it into existance.

      Issued on: January 19, 2021
      Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation

      SUBJECT: Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation

      By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

      Section 1. Declassification and Release. At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form.

    • timbozone says:

      What isn’t clear is whether or not Trump’s lawyers have dared to submit a comprehensive list of >allsome< documents covering some subjects, we have Trump wandering around in public talking about automagic declassification based on his thoughtlessness patterns, etc. So, any definitive document submitted by Trump's legal team that covers it all? They tried to avoid that as much as possible last year in Cannon's monkey court. Have they managed to keep avoiding that so far?

  16. Purple Martin says:

    NYT and ABC reported this evening on a letter Trump attorneys sent to AG Garland requesting a meeting with the AG concerning the stolen documents investigation, and it is one amazing paragraph (literally, one paragraph). Non-paywalled ABC link:

    …which contains the letter embedded in a Scribed box (there’s also a direct Scribed link if you subscribe to Scribed). Here’s ABC’s short summary:

    The letter asks Garland for a meeting at his earliest convenience to discuss what the attorneys describe as the “ongoing injustice that is being perpetrated” by special counsel Jack Smith and says that no president has been “baselessly investigated” in such an “unlawful fashion.”

    The one-page letter was signed by Trump lawyers John Rowley and James Trusty, and does not outline any specific allegations of wrongdoing by Smith and his team.

    The request does not specifically detail what Trump’s legal team wants to discuss with the attorney general.

    “All the President’s Lawyers” was a Ken White/Josh Barro podcast for a while with a recurring joke of Barro asking White, “Based on [x] act, is [attorney] a good lawyer?” I’m not qualified to offer an opinion but would be interested in a knowledgeable answer to that question, inserting [this letter] and [Rowley/Trusty].

  17. RyanEvans says:

    Should the NARA date be Jan 2022, not 2021?

    I’m not clear on everything and have been re-reading, but I think that’s what the previous EW post says.

    (Either that was fixed between my reloads of the page, or i misread?)

  18. Andrew Is Tired says:

    I may just be dumb but I think the thread of these detailed pieces on interconnecting parts of an investigation would be marginally easier to follow with some section headings

    • RyanEvans says:

      I’ve found it helps to read through once while skipping the quoted sections. Most of them serve somewhat like footnotes, providing the evidence for something EW has asserted. Just as with a scholarly history, you don’t need to read the footnotes, even if it’s reassuring to know they’re there and others are checking them. Skipping over them, you’ll better follow the flow and texture of her argument. Go back and consult the footnotes the second time through if you like.

      Sorry I forgot to use my full screen-name. If anyone can add Evans, please do. I’ll try to remember next time.

      [FYI – username fixed. /~Rayne]

  19. Twinkie Defense says:

    Remember that Trump crime tip Barr and Durham received in Italy, that was never mentioned in the Durham report- any chance that became part of Jack Smith’s look at Trump’s shady financial ties with Saudi Arabia, etc?

  20. Jeff Graham says:

    I may not understand the law, but it looks like to me 2071 b applies to the case.

      • P J Evans says:

        Yeah, I figures “supermax” was hyperbole. There may be some truth to the rest of it. I’ll wait for Jack Smith.

Comments are closed.