Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information

According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.

That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.

A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.

Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.

From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.

By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.

I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).

Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.

But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

Andrew Kaczynski put together all the instances of it.

In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.

Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.

23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:

As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.

The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.

Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.

But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.

And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.

Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.

To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.

34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:

TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.

WRITER: Wow.

TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.

STAFFER: Mm.

TRUMP: Wait a minute, let’s see here.

STAFFER: [Laughter] Yeah.

TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.

STAFFER: Mm-hm.

TRUMP: Except it is like, highly confidential.

STAFFER: Yeah. [Laughter]

TRUMP: Secret. This is secret information. Look, look at this. You attack, and—

Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.

This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.

Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.

In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.

Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.

Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.

I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.

But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.

I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.

But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.

Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.

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108 replies
  1. UncleDavid says:

    To re-up a question I may have asked too late in an earlier thread: is there any indication that an GJ is being spun up in New Jersey, to consider at least a charge of dissemination? Would we know?

    • David Brooks says:

      To address my own question on afterthought: maybe it’s hard to charge dissemination of documents that have gone “missing”, so whose contents can’t be proved unless there is evidence such as serial numbers?

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “David Brooks” is your third user name; you’ve commented once as “DBrooks” and three times as “UncleDavid.” Pick a unique username from one of the two which have minimum of 8 letters and stick with it here on out. Thanks. /~Rayne]

      • David Brooks says:

        Thanks for the correction, Rayne. The most recent was an un-noticed form fill on a different device, but in general I prefer to put my own name to my work so I’ll stick with this.

  2. mickquinas says:

    What are the chances that, in addition to January 6 related indictments (and related fundraising fraud), we see additional documents indictments in DC?

  3. Jeremy Bates says:

    “Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.”
    This appears to refer to self-dealing.
    Which often is a civil matter–a breach of fiduciary duty.

  4. USMA1986 says:

    Great analysis.
    A public integrity indictment wrapped up inside an Espionage Act indictment, or an Espionage Act indictment wrapped up inside a public integrity indictment? For readers of this site, this clearly is a riddle wrapped in a mystery inside an enigma.

      • USMA1986 says:

        Bmaz, not being a lawyer, I had to look up that acronym. It means Public Integrity Section, yes? I initially confused it with PINS, a healthcare acronym for Person In Need of Supervision. That certainly describes Trump when it comes to handling classified documents. 😂

        • Moongirl5 says:

          I was a Medical Coder for years. But, I do not recall that particular acronym. But, your contribution of that explanation sure does fit Trump. Thank you for your comments,

        • HikaakiH says:

          There are official med codes for insurance forms and the like and there are the old fashioned (and now generally avoided) codes for informal communication between practitioners. As an example from the field of pediatrics: FLP-FLK = funny looking parents – funny looking kid. From general practice in the UK, there is NFN = Normal for Norfolk (a largely agricultural region famed for having a proverbially inbred population). There are plenty of others of similar flavor.

  5. Peterr says:

    The context in the indictment of the “Hillary’s Revenge” and “Brennan’s Revenge” paragraphs are important to consider as well.

    They follow immediately after a list of seven different agencies in the Intelligence Community whose work was part of the various documents at the center of this case. “Here’s the breadth of what was compromised . . . and here’s what Trump said as a candidate and as president about how such information ought to be handled and protected . . .”

    That, my friends, is a powerful rhetorical move.

  6. blueonred says:

    Does the news about Harbach being at SDFL on Thursday preclude Bratt being there also? Bratt is the one who signed the “Certificate of Trial Attorney” (p. 45 of the indictment) and signed the motion to seal the indictment to the SDFL docket, so I would have expected that he did indeed take the lead at the Miami grand jury.

  7. GinnyRED57 says:

    Gee, he sure is good at parroting his speechifiers’ words to sound like a national security expert, instead of a risk. Too bad those very words can be used, with surgical precision, against him in a “speaking” criminal indictment.

    When he speaks on his own, he convicts himself with every word, and reveals himself to be the tale-telling idiot at the center of all the sound and fury.

  8. Manwen says:

    It is interesting that the indictment alleges that Trump shared the information in New Jersey but only charges him with willful retention in Miami. One of the NJ instances includes a representative of his Super PAC. If that rep was Budowich, Bratt surely would have asked him about the map incident when he question Budowich in Miami. The potential for another indictment appears to exist outside of the Florida (and Aileen Cannon) jurisdiction for sharing these documents. Is this an option for Smith? Can he pursue a parallel Espionage Act case, albeit with different yet related counts, in another jurisdiction? While unusual, it appears to this non-lawyer, that not charging him with sharing while including the facts in the indictment lays the groundwork.

    • bmaz says:

      Because those facts are now uncharged conduct as to sentencing for any convictions under the current indictment. Why in the world would any efficient prosector file a completely parallel case in NJ? That would be a ridiculous waste of time, as well as court and prosecutorial resources.

      Smith insisted on filing this in SDFL as opposed to DC where it clearly could have been filed, and did nothing to specifically avoid Cannon. It is kind of poetic that she was his early draw.

      • Manwen says:

        Thanks for the attorney’s perspective. That makes sense to me. Many of the broadcast media attorneys have been saying that the prosecution faced challenges in the venue decision, in part because the bulk of the criminal activity occurred in Florida. Compounding the inevitable appellate delays if he charged in another venue, Goodman and Weissmann warned that a recently argued, but as yet undecided, case (Smith V. US) leaves the venue question uncertain. (https://www.justsecurity.org/86845/pending-supreme-court-case-complicates-special-counsel-smiths-choices/) The court could rule, as I understand, that prosecutors essentially get one shot at venue. If they get it wrong, they cannot bring it to another venue. It also seems as though all of Nauta’s alleged criminal activity occurred in Florida, further limiting Smith’s options. I thought the option for similar charges in another venue might provide Jack Smith with a way to lessen appellate delays and leave him with another alternative if venue creates problems–bring a superceding indictment in Florida or fresh charges in New Jersey. I appreciate the inefficiency issues that someone who practices law would immediately recognize. Thanks.

      • Ginevra diBenci says:

        bmaz, I’ve understood Smith filing this case in SDFL as a way of avoiding the risk of having it dismissed (or overturned on appeal) on grounds of inappropriate venue.

        You *seem* to suggest that Smith made an unforced error here. Am I reading into your tone, or do you think this case should have been filed elsewhere (like DC)?

        • bmaz says:

          Oh, I very much believe it should have been filed in DC. Have consistently said so. I have no fear whatsoever that it would be dismissed/overturned, think that a bogus argument, and, if it did, then you refile in SDFL. But Smith affirmatively chose SDFL, so be it, that is where it is, and that is okay.

          There are repercussions/consequences that come with SDFL too, and so be that, okay. It would not have been my choice, but it was that of Smith, and is a proper venue, if not the only possible one. Away we go!

        • hiking_harrije says:

          Given the amount of grumbling about the time taking for an indictment, and given that all Trump investigations lead to the discovery of more criming, what is the alternative? The SC can’t wait for the investigations to end because the criming goes on and on, it’s never ending… At some point, you need to pull the trigger, at least with what you have. Pulling the trigger is what the SC did, I assume partly to scare the bejesus out of Trump World and it seems to be working.
          Another comment was posted saying that the FL indictment was “inefficient” if there are multiple parallel indictments. The indictments may be similar, but not parallel. Moreover efficiency does not matter, instead what does matter is effectiveness. The criming needs to stop, or bye-bye democracy.

          There are other postings that not enough was done to incent Nauta to flip. Not the case since he was never going to flip, he is another Wieselberg… On the topic of flipping, though, Mark Meadow’s flip was entirely predictable. Meadows has long had a reputation of being an loose-lipped double-dealing scumbag. I would have like to be a fly on the wall after Trump realized he was double crossed by Meadows after giving him a $1M bribe (https://www.reddit.com/r/politics/comments/shtsud/trump_gave_1m_to_meadows_nonprofit_weeks_after/)

          And the tactics of the SC appears to be effective, at least so far… Already two of Trump’s “best” lawyers have resigned (Trusty and Rowley), so the rats are abandoning the sinking ship. There is lots of speculation that this is to get Walt Nauta to flip. Not gonna happen as he is obviously being manipulated by Trump World (“you’ll be taken care of…”), and Nauta will continue to believe that at his own peril since he is obviously not too bright. There is so much evidence that the SC does not Nauta need to flip. This is an example of what’s to come, and it’s just the tip of the ice berg…

          Again, the SC move is brilliant. No need to wait. He’s throwing real “shit” at the wall and causing major chaos for Trump that is just beginning. Trump may thrive on chaos, but most of his attorneys do not.

        • bmaz says:

          Oh, just fucking “brilliant”. Thank you for letting me know, I could have never understood this case without you!

        • hiking_harrije says:

          You are welcome! I think we both want the same thing, namely justice. Is your sarcasm helpful? Not sure, but think about it. I promise I will think about it because I truly want to help. I don’t think I can help since I am just a peon. What can I do but vote? Will that make a difference? Doubtful. Will you make a difference bmaz? That is a rhetorical question, so don’t bother to answer. If you’re not making a difference, then why mock those trying to understand so they can someday make a difference…

        • hiking_harrije says:

          And not sure why you posted a reply stating “Thank you for letting me know”. My comment was not directed at you. It was not meant to let you know…

        • bmaz says:

          I honestly don’t care. I responded because you were full of it. And, yes, when you said:

          “Another comment was posted saying that the FL indictment was “inefficient” if there are multiple parallel indictments. The indictments may be similar, but not parallel. Moreover efficiency does not matter, instead what does matter is effectiveness.”

          You absolutely were referring to me. Please have the simple awareness of who has said what.

        • hiking_harrije says:

          No, I was intentionally not trying to refer to anyone in the spirit of being non-combative. I was going by memory, trying to discuss “generalities” so as not to “single anyone out” in attempts to have a worthwhile discourse. Apparently that was mistake, and going forward I will keep in mind your advice to “have the simple awareness of who has said what”. Again, just trying to learn, help, etc. I will stop now since I am now aware that my efforts to learn and contribute on this website are futile.

        • Shadowalker says:

          Is it possible that SC Smith feels that the evidence is strong enough that he could get a conviction on at least one count regardless of where the trial is held?

        • bmaz says:

          Oh, absolutely could be the case, and I assume he so thinks. And it may be right! This is not easy stuff, whether you are Smith or in the peanut gallery like me. I have a tad bit of experience in multi-venue/jurisdiction cases, but do not know the full extent of what Smith does. The choice was made, and so be it. Off we go!

        • Shadowalker says:

          Indeed. Who knows? He could get a slam dunk. I just hope he doesn’t pull a Durham and blame an acquittal on the political leanings of the jury should it go that way.

        • Ginevra diBenci says:

          Thank you (belatedly) for answering my question. Aileen Cannon’s assignment to the case has provided much pundit fodder, almost all of it speculative; I’d be interested to know where you fall on the prosecutorial request to recuse question, although my guess is that if Smith were going to do that it would already have happened.

          Given EW’s posts, I can’t help thinking about what Smith did *not* charge here, such as anything at Bedminster. His office is not putting all their eggs in the SDFL basket.

        • bmaz says:

          I would never file that ill advised motion. But then I think smith chose his selected forum, and there he is. I would also not file collateral junk in NJ. Smith should not spread himself too thin. Stick to the big portions, and related conduct already matters.

  9. Skaffen37 says:

    Long time reader, first time poster with a question: Is it normal that the indictment has such a long text listing things that to me sure sound like a crime (esp. showing the documents to third parties) while they don´t appear in the charges? Is this to set up additional charges later? Or is it just “public relations” since this case will get so much visibility?

    To draw a comparison to my normal world (tech/business): financial reports often have a lot of “fluff” in the beginning written by the PR/marketing department before the hard financials that actually matter. Similar situation with patents, often lots of text on state of the art, experimental data etc. but what actually counts are the claims in the end. This hybrid prose + charges setup reminds me a lot of that…

    • bmaz says:

      Well, yes in complex cases, especially ones that will be very public, it is not uncommon. On day to day cases, not as much.

    • Rayne says:

      Welcome to emptywheel’s comment community. You might consider visiting SeditionTracker.com for examples of indictments as there is a large number of them from which to choose attached to each indicted/convicted/sentenced January 6 perp.

      A specific example is Enrique Tarrio’s indictment. The form is Introduction, Background, Counts charged, with Introduction making a sweeping statement setting the scene of the crimes, the Background explaining who the characters are and the narrative of the crime committed, followed lastly by the Counts which each explain how a specific law was broken in the course of the narrative about the criminal behavior.

      I can see why you’d think it looks like PR, but it’s necessary to lay out the introduction and narrative because the investigation and its prosecutors may have collected evidence to build a case which is not one the public assumes on the face of what it knows. In the case of Trump’s mishandling and theft of presidential records/classified materials/defense information, the public might have believed this was about not returning paperwork after Trump left office. The introduction and narrative tell us the Special Counsel’s investigation found something much bigger and more serious. Capisce?

    • emptywheel says:

      Indictments are written working backwards off the elements of the offense. In this case those include knowing the risk of leaking classified information. Normally, charging a President with 793 would be especially hard — normally prosecutors use someone’s clearance to get that, but Presidents don’t have clearance.

      So that’s one of many reasons it was in there.

  10. bawiggans says:

    “Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.”

    Whatever wraps Trump the man – business tycoon, TV huckster, President, former President – he is at his core corrupt, the pure tincture of corruption. He embodies corruption as a kind aesthetic drilled into him by his father and Roy Cohen. Every notable act of his life is informed by the quality of corruption. He is the artist of corruption. Many have sensed the power of his dark art and are attracted to it. That attraction is the Republican disease. Being the Great Disruptor, avatar of the aggrieved, is the congenial guise he hit upon to fuel his drive to corrupt on ever-bigger stages. There is no policy, no plan; just appetite. He is what he does. All the ongoing prosecutions in the end will prove to be for public corruption and when Trump complains that he is being attacked for who he is, well, it is one of those truths he occasionally tells amongst all the rest of it.

    • Bobby Gladd says:

      “There is no policy, no plan; just appetite. He is what he does.”

      Indeed. Excellently put.

      And, it has long been so. Trump and I are the same age (I’m 5 mo older), and both from NYC. I’ve been unhappily aware of him and his gauche grifter schtick my entire adult life.

      His blood type is MF—Moral Fentanyl.

      • Norskeflamthrower says:

        “He is what he does.”

        Indeed and in the end aren’t we all? And isn’t that what a justice system is supposed to do: judge who you are, or who you aren’t, based on what you do.

        • bawiggans says:

          There are cultures where law is similar to our own, that is, it is predicated on actions, while what constitutes the person in that culture is something more than what they do and is seen as distinct. English people used to avoid asking new acquaintances what they do. It was considered impolite and beside the point. My point about Trump is that he has never shown himself to be anything more and nothing less than an agent of corruption.

        • Norskeflamthrower says:

          I understand your point about his congenital corruption. My point was to augment that to include that a justice system is supposed to judge a person on what he/she has done, on their behavior at specific moments, and my implication was that ultimately we are all judged by what we have done and how we treat others- that is, in fact, who we are.

        • John Lehman says:

          To paraphrase an Islamic quote

          “…they scheme and God schemes and verily God is the best of schemers…”

        • Peterr says:

          Or to borrow from Psalm 2:

          Why do the nations conspire, and the peoples plot in vain?
          The kings of the earth set themselves, and the rulers take counsel together, against the LORD and his anointed, saying,
          “Let us burst their bonds asunder, and cast their cords from us.”

          He who sits in the heavens laughs . . .

        • John Lehman says:

          Quotes which the spirits of Martin Luther King and Malcolm X both likely laughingly agree with

    • RipNoLonger says:

      Very nice prose and content – very readable. I am frequently amazed at the language skills that the main posters and commentators exhibit.

      I think another way to look at “what wraps the man” are the external demands made on him/family by other parties – nations, power groups, financial interests. His cortisol levels must always be through the roof.

  11. Amicus12 says:

    The entire indictment screams to me “you stole.” “You stole the Nation’s secrets.”

    We have (as Bmaz postulated) all of the preparatory activity in the White House – that Trump kept classified documents in boxes together with other materials. That he was involved in the selection process etc. I did not know that Smith & Co. could prove this but it seems they can. It was a bank heist of the Nation’s secrets.

    And the preparation leads to stealing. Note that for every count of willful retention the start date is January 20, 2021 (when Trump left office, and apparently exercised unlawful control over the documents). The start date is not the date of the subpoena.

    And after stealing these documents from the White House, Trump and his accomplice repeatedly acted unlawfully to keep the best of the stolen goods
    .
    But rather than charging conspiracy to unlawfully retain NDI (which still could be charged), Smith says “you stole.” I was immediately reminded of the Robert De Niro scene in the Untouchables where he is denigrating the income tax evasion charges saying something along the lines of “you steal from me, I say you stole.”

    It’s a theft of government documents case. There is no doubt a theme to the stolen documents – I suspect its Iran and the Gulf going by the dates and the specific Iran document story discussion. I suspect Trump kept these documents in order to prove his bone fides to the Saudis – he had made his bones for them and they should support him going forward.

    I suspect a lot of folks are shaking in their boots as to whether the accomplice will flip.

      • Amicus12 says:

        I knew someone in this crowd would catch it. Sort of in the style of if James Ellroy were given to puns. There are rumors that Kashoggi was investigating what information Kushner provided MBS.

    • emptywheel says:

      They likely need Nauta to flip to get the front end, to prove that he did intentionally curate these docs from the start.

      Thus throwing a tactical nuke at him.

      • Amicus12 says:

        What if Smith & Co.’s approach is to do this very differently than a typical CIPA case? Smith & Co. know that time is against them. They know this case is unlike any other case. Making allegations you cannot prove at the outset is risky and fights against a speedy trial with bullet proof evidence.

        They know Trump will do everything possible to delay. They cannot afford undue delay. If they are going to try the case they presented – and Smith said they intended to do just that, they have to act rapidly, and break the mold to do so.

        The documents at issue appear to be a thematic group. What if the related programs have been deemed to be burned? What if they get all of the documents declassified – and show the world just what Trump stole?

        It’s radical. Perhaps far-fetched. Perhaps essential.

      • David F. Snyder says:

        So, presuming you’re right about this being a tactical nuke aimed at Nauta (which I subscribe to), would this explain (as a strategy) why Smith had the charges filed in Florida instead of DC? The last count is aimed solely at Nauta; and I don’t see how Cannon could justify assisting defense counsel for Nauta as she previously done with Trump (deference being given, IIRC, due to Trump being an ex-PotUS citizen). Plus, it seems likely that Trump’s going to be indicted in DC anyway (re J6 at minimum, but possibly for this documents case as well (what was Meadows’ last interview session for?))

        And, does anyone know if Cannon has had experience with a CIPA case before? (everyone has to have their first). From a link Marcy gave in the earlier post about the possibility of this first round being a tactical nuke, it sounds like the first step in the CIPA case is educating all involved concerning the protocols (something Cannon did not have the benefit of before the debacle in civil court last Fall). When she was AUSA, did she prosecute a CIPA case? I’m guessing not, based on her judgements last Fall.

    • GSSH-FullyReduced says:

      So Trump’s financial deals with MBS may go beyond just profiting from PGA-LIV intercourse, or the sale of top secret Iran wargame plans (as revenge), all the way up to possibly corrupting Biden Admin’s MiddleEast Defense and Petroleum Industry machinery? Who profits from hedging on Wall Street when OPEC cuts production anyway?

      • David F. Snyder says:

        Might that be investigated by SEC (as insider trading)? Not sure how clear the evidence trail would be, other than suspicious trades.

      • earlofhuntingdon says:

        All that and more. And that’s before addressing the possibility that Trump regains the White House, when all bets and many restraints on his behavior are off. His retribution and emotional violence know few bounds.

      • RipNoLonger says:

        This seems to tangentially(?) involve all of the financial markets that trade in energy and instabilities. Short/long sales, futures. Such large potential swings can benefit those that are causing the swings.

  12. Critter7 says:

    In addition to whatever may remain squirreled away by Trump in Bedminster and other dark corners, there are other missing doc questions still out there.

    Wetzel commented yesterday that “Meadows supposedly removed 1000 pages on the last night of Trump’s presidency.” Murray Waas’ Substack, https://murraywaas.substack.com/p/exclusive-mark-meadows-removed-classified , has reporting on that. Some of the info is based on Cassidy Hutchinson’s testimony to J6 Committee when she told them she helped Meadows move some of the boxes into his car, but Waas also claims other sources not named.

    The post claims that Meadows “removed more than a thousand pages of classified documents from the White House late at night on the final evening of Trump’s presidency”, he did so under orders from Trump, and these documents were informally known as the “Russia papers”. According to Waas, this document batch appears as separate from the tranche that went to Mar-a-Lago.

    Waas reporting fits with a Washington Examiner story from 9 Dec 2021, Mark Meadows says DOJ tried to redact Russiagate materials ‘minutes’ before Biden sworn in, https://www.washingtonexaminer.com/news/mark-meadows-says-doj-tried-to-redact-russiagate-materials-minutes-before-biden-sworn-in , that is based on Meadows’ book. It describes a “frantic declassification blitz of Russiagate documents”. Apparently, there was an effort to redact sensitive information from classified Russiagate docs on January 19 and 20 so that Trump could properly declassify them but there were multiple difficulties with that. The Waas reporting also mentions the last-minute declassification effort, and claims that when that failed they just took the documents anyway.

    It could be that this all has something to do with why Meadows has been so quiet. And it suggests still more shoes to drop.

    • Rayne says:

      Meadows already had enough on his plate since the 2020 election with his voter fraud. He’s lucky NC’s AG didn’t charge him. But his willingness to commit voter fraud says something about his ethics.

    • WhiteTiger says:

      Thank you for mentioning Bedminster and the Meadow’s 1000 pages. I didn’t know Meadow’s 1000 pages were about Russiagate. How do you imagine Trump have used the declassified and redacted Russiagate materials?

      Bedminster is the hiding in plain sight question. Why is no one in the MSM mentioning this obvious hole in the narrative? What was taken to Bedminster and where are those materials now? We only have the mysterious M saying there was no room on the plane.

      • Ginevra diBenci says:

        Trump’s hoarding of docs related to what he called the “Russia Hoax” has been known for a year. It seems his motive was pretty straightforwardly Trumpian: he believed he could use them to “prove” the whole “Trump and Russia” story was indeed the “hoax” he had claimed. He was relying on John Durham to significantly buttress this argument.

        That would make his intention here analogous to the July 2021 disclosure of what Trump claimed to be plans for a US war with Iran: to *win* the narrative back from General Milley. Winning matters more than someone else’s abstract life.

        As Trump pored over “his boxes” at MAL in 2021, he must have realized his precious Russia documents packed little if any of the wallop he’d hoped. But there was so much more there, its promise perhaps not yet imagined…Of course he had to hold on to that ring–or rather, those boxes. If others wanted them so much, they must have value–and if Donald Trump knows nothing else, he knows the value of possession = nine-tenths of the law.

        I’m not sure even Judge Cannon can exclude the remaining tenth.

        • StellaBlue says:

          Really? She seems to have a talent for throwing wrenches in the works and playing fast and loose with the rules. Maybe in the end the mayhem she creates will be overturned on appeal, but the chaos potential seems real to me.

  13. Dawgzy says:

    Here’s a rookie’s question, a story and a suggestion. Does NARA know exactly which documents (that were taken for use by Trump) are still missing? It seems that they don’t. And if this is the case, perhaps my experience with archives might be helpful. I have taken documents out of several archives. Generally what has been required to take documents has been my showing a special ID to the archive that authorized me to do so that I had to show before I left with the documents. The archives had placed a card in a little pocket glued to the inside cover of every document that could be checked out. My name or my identification number was then written on the little card when I took possession of the documents and the archive kept the card. That way the archive knew that I had taken possession of and was accountable for the document. So if I didn’t return the document, by gosh, they knew that I was responsible for it and they would contact me and there would be a penalty involved when I returned the document in question. And if I didn’t return it, well, I wouldn’t be able to take out any more documents from that archive. It’s a pretty nifty system and I’m sure that a NARA would be able to implement it. That way they would know which documents are still “out there.” And they could then charge “late fees” that were higher than the nickle per day that I was charged. Even then, I had a huge incentive to return documents on time, as every day’s fine meant that my allowance would effectively be cut by a candy bar per day. THAT got my attention and I learned a valuable life lesson. You’re welcome.

  14. USMA1986 says:

    I’m trying to understand how district judges are chosen for a case like this. I did some basic research to understand how SDFL is organized on https://www.flsd.uscourts.gov. Then I came across this in an ABC News article:

    Judges in most federal cases are assigned at random. But the apparent nods to Cannon and Reinhart on the summons for Trump might actually reflect the fact that both have already played roles in the proceedings, experts said.

    So, a couple of questions:
    1) If not for the (possible) previous roles factor, would the judge pool potentially include all the district judges in the SDFL?
    2) Ultimately, is there an unknowable aspect to how the decision is made? Meaning it is generally random, but other issues may factor in which are not necessarily made public?

    Thanks, apologies if this has been covered previously.

        • USMA1986 says:

          This is timely and in keeping with what bmaz said. Chief clerk of the SDFL, Angela E. Noble, was quoted in a NYTimes article late Saturday. She explained that certain factors had increased the chances that the case would land before Judge Cannon (note from me: mostly related to judge schedules/rotations). She said that normal procedures were followed, the assignment was random, and confirmed that short of a self-recusal, Judge Cannon will continue to oversee the case. No court practice would return the case to be assigned to another judge.

          https://www.nytimes.com/2023/06/10/us/politics/judge-aileen-cannon-trump-documents.html?smid=url-share

        • bmaz says:

          Adding, that if what Angela Noble related, and Charlie reported, is accurate (and I have no reason to doubt it is not) that was knowable ahead of time. People who practice in SDFL every day, AUSAs, FPDs and panel attys, would have at least somewhat of a bead on that.

          To what extent did Smith talk to them, even the clerk’s office itself, and take that into consideration when he affirmatively chose to file there? I would like that question asked and answered, though I doubt it will be. And, no, of course there is nothing whatsoever mandating Cannon recuse. Frankly, it would be surprising if she were to do so. Venue choices matter; fancy that.

        • AirportCat says:

          While of course it has nothing to do with the law, should Cannon retain control of the case then at least that removes Trump’s opportunity to mewl about being treated unfairly by a “democrat-appointed” judge.

        • bmaz says:

          I have no idea. Time will tell how it plays out. I doubt Cannon is the cyclops she is painted as, but also think there was a way to avoid this. My view lost. So be it.

        • Ravenclaw says:

          It’s a curious piece. I wish the reporter had pressed a bit more for details.

          We’re told that there are 7 active and 3 senior judges in the pool, but senior judges hear a limited number of cases, and at least 1 of them is done for the year. The other 2 are thought to be close to the limit, but does that mean they become less likely to be chosen? Then we’re told that 1 active judge has actually been reassigned elsewhere, and 1 other doesn’t accept cases for some reason. So maybe we’re down to just 5, which doubles the odds of a Cannon pick to 20%.

          Then we’re treated to the suggestion that the judges draw different proportions of cases from different areas within the district, such that 1 gets 50% from the Miami area, while Cannon gets 50% from the West Palm Beach area. So, yeah, that’s going to raise the odds a bit more. Maybe a lot more. Maybe even 50:50?

          What I’m left wondering is this: does the clerk really have an algorithm that allocates different ‘weights’ to each judge based on how many cases they’ve heard, where they tend to specialize, etc., and follows up on that with a random pick? I guess you could do that if step one led to each being assigned a certain number of possible slots, like lottery tickets, and some kind of random number generator (or a hat full of cards) was used to pick the judge. But is this really what is done? For every single case filed? And who developed the system?

          Sorry: I don’t have the answer to that. Can only point out the complexity of the system it would require and wonder whether the clerk doesn’t (like many students in research methods classes!) confuse “picking whoever comes to mind” with random assignment.

      • David F. Snyder says:

        As SC Smith pointedly said in his announcement yesterday that defendants are innocent until proven guilty beyond a reasonable doubt. Long may that standard be upheld.

    • earlofhuntingdon says:

      Evidence and guilt are two different things. The Trump Trials are likely to carry on for years. We can’t afford to ignore such distinctions.

  15. burnitclean says:

    It is my understanding that both the prosecution and defense must agree to a bench trial in a federal court. Is that correct? I sure hope that is correct. ‘Cause if I’m Trump I’m asking for a bench trial.

  16. stillscoff says:

    “I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta)”

    Sounds like prosecutors might be trying to tie all of this criminality together into a nice, tidy little package.

    But what do I know.

    • earlofhuntingdon says:

      They’re mounting the defense of the rule of law on multiple fronts, with a determination not to be stymied, should politics interfere with its enforcement. The GOP, and Judge Cannon, in particular, have shown themselves more than willing to do just that.

  17. Snowdog of the North says:

    This decision by DOJ to charge the case in Florida is baffling to me. But, it’s also way over my pay grade – and I have to think these very experienced lawyers know exactly what they are doing.

    • Shadowalker says:

      Maybe SC Jack Smith isn’t in the habit of forum shopping. And maybe, just maybe, he feels fully confident in both the evidence and his application of the charges that he would get a conviction anywhere.

      • bmaz says:

        Or, maybe he is, and chose his preference. Okay, so be it. But let’s not draw, yet, conclusions where convictions may occur. There has not even been an IA/Arraignment yet.

  18. klynn says:

    Thank you for this post and your related posts on this latest indictment.

    IANAL so I hope the following is a safe observation.

    Two important concerns the MSM is not supporting are: 1) a FL jury of FL citizens did their civic duty. For the MSM to allow voices to demean their vote and service, is anti-rule of law and anti-democracy and extremely irresponsible in respect to the jurors. 2) The indictment is an Espionage Act concern and it is likely that individuals who serve our nation were not being protected or supported with the mishandling of classified information. As of right now, I think Romney is the only GOP voice to have addressed this properly as opposed to joining the firehose of falsehoods that are stirring a call to violence.

    Honestly, THAT is a missed story by the media. On that note, Marcy, thank you for your Twitter thread tracking GOP who are making statements that are anti-democracy, anti-rule of law.

    • Rayne says:

      That first point is likely why the venue is in FL. A grand jury of his FL peers found probable cause that a resident of FL may have committed crimes. If Florida Man’s citizen-resident neighbors found probable cause in doing their civic duty, more of Florida Man’s neighbors doing their civic duty are likely to find him guilty beyond a reasonable doubt. This is how it should work in this democracy.

      And yes, it’d be nice if news media acknowledged that no matter where the grand jury is empaneled and performs their work, they are doing this democracy’s work.

      • klynn says:

        Starting a list of those politicians and media who have made statements or allowed guests that do not support the jurors or those who serve would be vital. Both types of citizens could be harmed or badly impacted by leaked classified documents and poorly protected classified documents. The list would be a great service in defending and upholding the work of democracy carried out by both the jurors and those who serve to uphold our national security.

  19. CovariantTensor says:

    Lawyer Michael Popok does not believe Judge Cannon will ultimately preside over this case. He outlines here in this video, about 13 minutes in, various scenarios by which she is removed, including voluntary recusal, removal by the court, or motion by the prosecution:

    https://youtu.be/DqdSQYhCdHs

    But even if she does preside, is it possible that, having been twice seriously bitch slapped by the appeals court, and being young and not wishing to stain her career further, she falls into line as an impartial judge? Further, is it possible SC Smith anticipated this and is going for the optics of winning even under a Trump friendly judge? (And if he loses, hopefully he doesn’t pull a Durham, but he doesn’t strike me as that type at all). Whereas if he wins in DC, it’s under a notoriously Trump unfriendly jurisdiction? He seems to have a knack for the court of public opinion, having written the speaking indictment in such plain language, emphasizing the indictment was handed down by a grand jury in FL and that Trump is presumed innocent, and praising the integrity of the DOJ and FBI. Just my take as an interested observer with no legal training.

    p.s. I like Hornito’s Resosado and Gran Marnier. Are we allowed to post that here?

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