31 Flavors of Stolen Classified Documents

In days ahead, there’ll be a heated discussion of what kind of sentence Espionage Act defendant Donald Trump might face. But even among the really experienced people — who correctly point out that Trump’s sentence would be a tiny fraction of the total 400 max he faces — I think the discussions are wrongly conceived. To explain why, I plan to return to my argument that the Mar-a-Lago indictment is tactical.

But first, I want to emphasize the magnitude of the fact DOJ charged Trump with hoarding 31 documents, each charged as an individual count and described, with classification markings, in the indictment. Virtually all of these documents are the type that the government is normally loathe to include at trial, and yet DOJ piled them on, compartmented document on top of compartmented document. The decision to commit to presenting all of them at trial is really remarkable, and must be (and is not being) accounted for in discussions of potential sentencing.

As background I’d like to review five similar prosecutions.

Daniel Hale

First consider two recent prosecutions (Chelsea Manning’s court martial, after which she was sentenced 35 years, is a third) where the indictments listed a long catalog of stolen documents like DOJ did with Trump: Hal Martin and Daniel Hale.

In Hale’s case, the indictment first listed all 23 documents he printed out from his job at a defense contractor, only four of which were as sensitive as most of the documents Trump was charged for hoarding.

DOJ only described the 11 documents that were published by The Intercept (document H, the fourth TS document, was not published by The Intercept and so not included in the charged documents). It then charged five counts:

  • 18 USC 793(c) for taking the 11 documents ultimately published
  • 18 USC 793(e) for taking and sharing the files with Jeremy Scahill
  • 18 USC 793(e) for causing to be published the files
  • 18 USC 798(a)(3) for sharing 4 SIGINT documents (documents A, D, E, and K, above)
  • 18 USC 641 for taking the files, charged to include the 11 that got published and a few other unclassified documents that they had proof he had taken

Hale pled guilty to one count without a plea agreement immediately before trial and got a 45 month sentence. He is due to be released in July 2024.

Had Hale gone to trial, the government wouldn’t have had to expose any new information (though it would need to declassify it), because every charged document had been published already. So DOJ really risked very little by charging all 11 documents published by The Intercept. Any damage was already done.

Hal Martin

The way DOJ charged Hal Martin, though, is more akin to how DOJ has charged Trump.

Martin, remember, was arrested, guns-a-blazing, immediately after Shadow Brokers pegged him as the source of the documents being released in 2016. When the FBI searched his home, they found stacks and stacks of documents, including in his car. It took six months to charge Martin, presumably because DOJ had to do an investigation into what and why he had taken — including whether he was Shadow Brokers or had wilfully leaked the documents to Shadow Brokers. Unlike Trump, he was in pre-trial custody that whole time.

In the end, there were no dissemination charges (ultimately, the public record in his case is inconclusive whether he wilfully leaked these documents or not, but if he did, DOJ either couldn’t prove it or chose not to try). As DOJ did with Trump, each of a bunch of documents, a total of 20, were charged as separate counts.

There are descriptions of each of these 20 documents in the indictment, but not classification markers. The indictment describes that they were a mix of Secret, Top Secret, and SCI.

DOJ presumably got sign-off from the agencies to present these documents at trial, but after a very long pre-trial process, Martin ultimately pled guilty in March 2019 to one count of 18 USC 793(e) as part of a plea agreement, with an agreed on sentence of 9 years, one year short of the 10-year max. He’s scheduled for release in May 2024.

Nghia Pho

By comparison, Nghia Pho — the other presumed source of Shadow Brokers, from whom hackers stole a bunch of NSA files loaded onto his home computer — entered into a plea agreement from the start. His Information didn’t describe any of the documents he took home, though suggested many were TS/SCI. Pho was sentenced to 66 months. Pho, who was in his 60s when he was sentenced and is now 72, is due for release in September.

This is the way DOJ normally prefers to treat those responsible for leaks and other compromises, because the prosecution does little additional damage. Of course, there was never a chance in hell such an approach would work for Trump.

Note that Thomas Windom, who is one of the lead January 6 prosecutors, was on the Pho prosecution team.

Jeremy Brown

Two other relevant cases involve Floridians prosecuted in the last year. With Oath Keeper Jeremy Brown, the government did list and present the five documents, all classified Secret, he was accused of hoarding. They used the Silent Witness rule to present the classified documents at trial, all of which were far more dated and less sensitive than the ones Trump is accused of stealing. Here’s how they described that process in the pre-trial process.

First, the government would provide each juror, the Court, and the defense with a binder of unredacted copies of the Classified Documents. The same process was followed in Mallory, 40 F.4th at 173, and it would enable the jurors to examine the Classified Documents while the government elicits unclassified testimony about the same from its expert witness. As in Mallory, the defense would be permitted to follow the same procedures during cross examination and/or with its own cleared expert, should the defense choose to retain one. Id. This procedure ensures that the jury has full access to the information it needs to fulfill its obligations. Id. at 178 (“But a review of the record reveals that the silent witness rule denied the jury none of the information on which Mallory based his defense.” (emphasis in original)). Second, the government will have Bates and line numbers added to the Classified Documents to enable the witness, the government, and the defense to direct the jurors to specific portions of the material.

Brown was only convicted of one of five Espionage Act counts, but nevertheless was sentenced to 87 months for the document as well as the illegal weapons he was convicted of hoarding.

Robert Birchum

Finally, there’s Robert Birchum, a retired Lieutenant Colonel who was just sentenced to 36 months a few weeks ago. Birchum was found hoarding over 300 documents he had collected before 2008, in 2017, six years ago. The Air Force declined to court martial him, and he was honorably discharged (it sounds like the Air Force really valued the counterinsurgency work he did). The first his case was made public was in January, when he was charged by Information with one count of 793(e). That Information did describe two documents he was charged with:

two documents classified at the TOP SECRET/SCI level from the National Security Agency (NSA) relating to the national defense that discuss the NSA’s capabilities and methods of collection of information.

The government asked for a bottom of guidelines sentence of 78 months, emphasizing Birchum’s abuse of a position of trust and the sensitivity of the documents he took. Among other things Birchum raised at sentencing is that he was so important to the Air Force, they sent him back to Afghanistan even after diagnosing him with PTSD. He also invoked all the high ranking people, including Trump, who had brought classified records home.

Among others, Mr. Birchum’s case now shares a stage with the current President of the United States, the former President and Vice-President of the United States, and a former Secretary of State. Looking a bit further back in time, one can see examples of other high-level government executives involved in the same type of offenses, including a former national security adviser who pled guilty to knowingly removing classified documents from the National Archives and a former CIA director and retired four-star general who pled guilty to sharing classified documents with his biographer and mistress. Both the former national security adviser and the former CIA director were sentenced to pay a fine and probation. No charges have been bought against any of the other individuals noted above. Similar cases involving lower-level government employees that did result in prison sentences typically involved attempts to obstruct the investigation or actual dissemination of the information or both.

He was sentenced to 36 months.

The reason I laid all this out is to suggest how remarkable it was that DOJ listed 31 documents Trump allegedly stole. Of the cases above, they did so with less sensitive, dated records that Brown was charged with, with the 11 documents already published in Hale’s case, and then the catalog of documents charged against Martin, some of which may also have been compromised as part of the Shadow Brokers release. If Martin’s charged documents were already compromised as part of the Shadow Brokers case, it means that among these cases, there is no precedent for the government choosing to charge a catalog of incredibly sensitive documents like they have with Trump.

That’s one reason I keep harping on the footnote in a DOJ filing in the Trump case from last September, invoking the Pho case (where we know the documents were badly compromised) to suggest that sometimes the Intelligence Community has to operate on the assumption that programs have been compromised and shut them down.

Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.

We know one of the 31 documents charged against Trump — the document described in Count 8 that fell out of a box in the storage closet — would be treated as compromised, particularly if someone knocked the box over or is believed to have found it (remember that there are no cameras inside the storage room).

I can’t emphasize this point enough: One possible explanation for the catalog of charges against Trump is that the IC knows, or made a decision last September to assume, that all of these documents have been compromised. It’s one of the most likely ways to explain DOJ’s willingness to include all of them in charges, just like they did with the documents charged against Hale.

That possibility is not being factored into any of the discussions about sentencing, and it should be. The IC likely has to assume that the many intelligence services that targeted Mar-a-Lago, including two known Chinese infiltrators, found some of these documents, or maybe just the musicians and partygoers who could have had access while they were taking a shit.

Importantly, all the documents charged remained in an unsecured storage room after it became public that there were classified documents among the ones that Trump had delivered to NARA in January 2022. (Note, among the really sensitive documents that weren’t included in Trump’s charges are ones classified HCS-O, describing HUMINT operations.)

The Pho and Birchum examples show that DOJ would far prefer negotiating a plea agreement in advance, to minimize further damage to national security. But Trump made quite clear after the search last year, he was unwilling to go quietly.

The only one of these five who went to trial was Brown, and DOJ used the Silent Witness rule for him. That rule is rightly controversial even with disfavored shithole defendants like Brown (or Kevin Mallory, who was convicted of spying for China using it). I simply can’t imagine using the Silent Witness rule in a trial with a former President. The issues of legitimacy are too great. And so, if this thing goes to trial, I assume redacted copies of all these documents would be introduced as evidence that would get shared with the public.

Which is why I point to the Martin case as the one most similar to Trump. My read of that case is that DOJ charged so many documents — just 20, though, rather than 31 — as part of the coercion process to get Martin to plead.

The problem, in Donald Trump’s case, is that he has more incentive to start a civil war than plead guilty to these charges.

Those are some of the assumptions — not to mention that by charging this in West Palm Beach, where Aileen Cannon was likely to and did get the assignment — that Jack Smith must have had in mind when he charged the MAL case like he did.

With every other similarly situated defendant, DOJ has pursued strategies to get the defendant to plead before exacerbating the damage of the compromise at trial. But with Donald Trump, they’re facing a uniquely intransigent defendant. And that is what Jack Smith was facing when he decided to charge this case this way.

130 replies
  1. Artzen Frankengueuze says:

    As always, thank you for the clear and concise laying out of these cases, explaining similarities and differences, and their possible implications.

  2. BRUCE F COLE says:

    This makes perfect sense for yet another reason: the garnering of much broader public consensus that Trump has truly and irrevocably harmed the country.

    That’s what will happen, I’m thinking, when those formerly highly classified docs are aired, unredacted, in court and published across the planet, describing government secrets whose outings can be seen on their face to be harmful to the interests of the American people.

    I can see the Prosecution calling expert IC witnesses (and Generals and Admirals as well) to testify in public as to the harm each exposure has cost not just our national security and operational viability, but (as pointed out above, and perhaps most persuasively, unfortunately) our national Treasury. The cross-examination of each of those witnesses will be delicious to behold as well (if his idiot lawyers are stupid enough to attempt it).

    • Peterr says:

      These documents will never be “aired, unredacted, in court.” In the publicly released indictment, the DOJ redacted some of the security codes, signaling that even revealing the codes could compromise current programs, sources, and methods. There is a legal process for handling classified information in legal proceedings — CIPA — which will eventually result in some kind of statement approved by the court that describes the significance of the documents in question.

      The specific content of the documents is not material to proving the specific crimes alleged. It doesn’t matter, from the standpoint of the legal process, which foreign countries are mentioned in the documents, which nuclear secrets are discussed, which human sources provided intelligence, or any other similar details. As such, there is no need for the jury or anyone else to know more than these documents are properly classified as National Security materials.

        • Peterr says:

          First, that document has plenty of redactions. Second, in Sterling’s case, it was critical to show the content of the documents, to demonstrate the linkage to what Risen published.

          In this case, Trump isn’t charged with anything that requires disclosure of content to prove the allegation.

        • Dmbeaster says:

          Whether this is right or wrong, I suspect that it is highly likely that there will be few redactions.

          Trump will employ the blackmail strategy to demand maximum exposure and therefore force the Government to accept maximum risks from exposure. It will be an effort to get benefits from the blackmail. I suspect Smith has already expected and planned on this. 31 documents supports the inference.

          And there is a real likelihood that Cannon, who knows nothing about CIPA, will indulge those demands by Trump lawyers. Even if she is less inclined to make a fool of herself in this historic case, this is something that she could readily do even if not intending to be a Trump shill.

        • BRUCE F COLE says:

          Marcy’s point, that this is Donald Trump not Jeffrey Sterling, is determinative, I think. Smith doesn’t just have to convince a jury (a West Palm Beach jury, I might add, who will likely be surrounded by MAGA protesters coming and going to and from court, keep in mind) — but also the American public needs to be as fully convinced as possible that this former POTUS has so deeply violated the security of the nation that he deserves the approbation and punishment that a conviction carries. The screams of witch hunt will not abate, and those screams need to be seen as deranged, not aggrieved.

          The average American, not just attentive Democrats and legal and NATSEC geeks, needs to see that.

          This case needs to be a major historical marker, not another Scooter Libby or Reality Winner case. The harm he’s done to the country needs to be laid bare. That’s why I suggest that IC and military brass could be called to bear witness.

          If there is ongoing operational utility for any of those charging documents, then they will be of relatively little use for the larger purpose that Smith, being a war crimes prosecutor, must understand: to bring down a lawless former ruler, and to make the populace understand why.

          That has never been done before in this country. This trial will therefore need to be one of a kind, and I’m pretty sure Smith has made sure the IC knows this.

        • BRUCE F COLE says:

          Lol, talk about a slip of the dictionary, I meant “opprobrium that a conviction carries,” not “approbation.” Not that his conviction wouldn’t result in approbation from his cult, of course.

        • Spank Flaps says:

          Excellent point! And to add the significance that USA is the head of NATO, it polices the seas, supplies most NATO countries with fighter jets, and has most of the nukes.
          Like it or not, USA is the world’s policeman. We are where we are.
          USA took over the job from the old British Empire.
          When Britain downsized, USA was the obvious successor.
          If USA fell to Trump/Putin, there is no obvious successor.

        • Tech Support says:

          “Trump isn’t charged with anything that requires disclosure of content to prove the allegation.”

          Not yet? Given the all the speculation around the absence of follow-up on documents that we now know went to Bedminster, it does make me wonder about a separate, slower-moving investigation into how those documents might possibly have been used once they got to Bedminster. Similar to what’s going on with Jan 6, I wonder if we’ll see subsequent indictments that may be dependent on the outcome of these prosecutions.

        • Peterr says:

          Yes, not yet.

          If (hypothetically) Smith were to charge Trump with providing Saudi Arabia with classified intelligence in exchange for financial favors through his various golf clubs, things would be very different. In that hypothetical, the content of the documents in question would be central to the charges, and so it would be much more critical to declassify or otherwise make the information available to the court.

          But that’s not what we’re looking at in the Mar-a-Lago indictment.

        • timbozone says:

          Yep, not yet. The speaking indictment’s list of some of the compromised documents that are alleged to have been stolen from the government indicates that there may be more their may be worse intelligence compromises that the IC cannot or will not be disclosing now or unless absolutely forced to due to future events and circumstance. Thus, those who continue to side with Trump against the rule of law and possibly against their own self-interest may be eating another shoe or two of failed national security expertizing by the former President.

    • ExRacerX says:

      If that’s the way it goes, I’m not sure the case of popcorn I’ve laid in will be enough.

      “You want the truth? You can’t HANDLE the truth!”

  3. Peterr says:

    I, too, was surprised by the number and quality of documents included in the indictment. After reading this, I went back and reread parts of the indictment, and I think the DOJ and the Intelligence Community worked hand in hard to include a package of materials that reflected the breadth and depth of what Trump had in his possession. Here’s paragraph 3 from the Mar-a-Lago indictment, with its two lengthy sentences reformatted with bullet points by me:

    3. The classified documents TRUMP stored in his boxes included information regarding
    • defense and weapons capabilities of both the United States and foreign countries;
    • United States nuclear programs;
    • potential vulnerabilities of the United States and its allies to military attack; and
    • plans for possible retaliation in response to a foreign attack.

    The unauthorized disclosure of these classified documents could put at risk
    • the national security of the United States,
    • foreign relations,
    • the safety of the United States military, and
    • human sources and the continued viability of sensitive intelligence collection methods.

    Each of those bullet points is quite general, and covers a lot of territory. Taken together, it’s a massive array of information and risks. DOJ is saying — again, likely with the blessing or even encouragement of the IC — that Trump didn’t endanger one or two programs, a handful of spies, and a couple of signal intelligence efforts. He has thrown in the trash millions of dollars of IC work, dozens of programs, hundreds of human sources, and caused the seven agencies listed in paragraph 21 to reexamine a lot of their past work and reconfigure their forward-looking efforts.

    This was a huge intelligence catastrophe, and the indictment does not sugar coat that at all.

    I like the discussion above about potential parallel cases, but DOJ and the IC have constructed this indictment in such a way as to say those cases were small potatoes compared with what they allege Trump has done.

    And for God’s sake, Republicans, don’t try to equate this indictment with Hillary’s emails.

    • BRUCE F COLE says:

      Also interesting in this regard (as the unthinkably broad ramifications of Trump’s debasement of our country’s security and intelligence capabilities quickly disseminate) is his currently barely-existent legal team. Here’s this, just up on MSNBC:

      Will he even have a “legal team” to speak of when the shit hits the fan tomorrow? Todd Blanche is currently supposedly doing double duty between this and the Manhattan porno-hushmoney-fraud case, having just 2 days ago come on board to face Smith and the entire American IC. He is aptly surnamed in this case, I’m thinking.

        • bmaz says:

          Sure, but that can be taken care of, just not likely by tomorrow. And, as Marcy has pointed out, there still may be a clearance issue, thought that would not stop him of being an atty of record to the best of my knowledge.

        • Konny_2022 says:

          Thanks for the reply! Considering the discussion below, the question who ultimately will represent Trump in this case remains interesting.

        • FLwolverine says:

          An article in WaPo said Kise is still in the legal team and can sponsor Blanche or whoever else Trump adds.

        • bmaz says:

          I would not do that, it would mean being yoked to the case. Maybe Kise is okay with that, but not a wise play. Being the local counsel who jumps in another from another jurisdiction makes you responsible for literally everything they do. It all flows through you. Does Kise really want that? It is one thing to attempt a limited appearance for arraignment only, but far another to be the flow point in perpetuity for the case. That is a mug’s game with someone like Trump.

        • BRUCE F COLE says:

          It’s a pro forma process, though the large question is whether Blanche can come up with the $200 pro hac vice fee. Has Trump even paid him anything yet, since he left Cadwalader?

          The more serious question is who will be the locally registered counsel he needs to bring on to satisfy the pro hac vice? No problem, he’s got 22.5 hrs.

        • BRUCE F COLE says:

          It’s a pro forma process, though the larger question is whether Blanche can come up with the $200 pro hac vice fee. Has Trump even paid him anything yet, since he left Cadwalader? Maybe his clerk can loan him some cash.

          The actually serious question is who will be the locally registered counsel he needs to bring on to satisfy the pro hac vice requirement?

          No problem, he’s got 22.5hrs to work it out. Surely there are any number of CA11-registered lawyers willing to risk their careers like he has.

        • bmaz says:

          Where did you come from? Blanche would not have a problem coughing up the $200 pro hac vice fee. “Maybe his clerk can loan him some cash.” What an asinine statement. And, no, it does NOT have to be all completed by tomorrow.

          “The actually serious question is who will be the locally registered counsel he needs to bring on to satisfy the pro hac vice requirement?”

          One of the first intelligent things you have said. But it is NOT just “CA-11 registered lawyers, it has to be FL and SDFL.

          Cool your jets, Bruce.

        • BRUCE F COLE says:

          I’m from Maine, though I don’t know how my words get routed onto your screen.

          “The actually serious question” opening to the second part was the clue that I was making a joke in the first part, not thinking I would have to explain it as such.

          Thanks for the correction.

          Thanks for the advice.

          Looking for my jets now…maybe thermal imaging would make it easier? Any suggestions?

          Should I have asked your permission to post here?

        • BRUCE F COLE says:

          From one site (lost the link): “Trump’s legal team has been interviewing South Florida lawyers to join the team, most notably Ben Kuehne, a Democrat and prominent member of the legal community. “He’s a former president of the Miami-Dade Bar Association and most recently represented Miami Commissioner Joe Carollo in his federal civil case in which Carollo was sued by businessman Bill Fuller.”

          And from here,
          “WANTED: Lawyer barred in the Southern District of Florida. Must have high tolerance for humiliation. Retention of license to practice law not guaranteed.”
          and that same piece has a Hugo Lowell tweet:
          “As of now, per ppl familiar, Trump expected to do his arraignment with Todd Blanche and Chris Kise — who is barred in Southern District of Florida — but if he retains new counsel today, they could also appear. For the arraignment, Trump will enter thru sally port, not main door.”

          And then she’s shares these shining prospects:
          “The attorney of record for the appeal of the withering smackdown by US District Judge Donald Middlebrooks in the Clinton RICO LOLsuit is Jared Roberts, an associate at the firm run by Trumpland regular Jesse Binnall. Roberts has been a member of the Florida bar since May of 2022 and appears to practice out of Northern Virginia, though, so perhaps he’s sub-ideal.

          Similarly there’s Trump’s old boarding school roommate Peter Ticktin, who acted as local counsel in that suit. But he and Habba managed to get themselves and Trump a million dollars of sanctions, so perhaps he’s in foul odor with his former buddy at this point.

          And Trump’s lawyer Lindsey Halligan appears to be admitted to the Southern District of Florida. But her prior experience appears to have been as an insurance lawyer in landlord-tenant disputes, and her colleagues complain that her (admittedly telegenic) presence ‘waters down the honor to represent a president.’”

        • bmaz says:

          I honestly do not care about your increasingly silly and stupid junk. I understand how you get into court, and do not need your lame help. You understand this is an arraignment, at best, not a trial? Or do you? Because frankly, you seem to be blowing shit up people’s asses here. Is that your goal, “Bruce”?

        • BRUCE F COLE says:

          Sorry if I gave the impression that I was trying to help you. That never entered my mind.

          [Moderator’s note: Slow your roll. You’ve published 14 comments today totaling 1750 words and most of it is not substantive, adding no new material contributing to community members understanding of the posts under which you’ve commented. New commenters should learn more about this community and its expectations before jumping in with both feet. Members who have been here for years are afforded more latitude based on their contributions to discourse. /~Rayne]

        • BRUCE F COLE says:

          Imagined courtroom exchange tomorrow:
          “If it please your honor, our preferred, admitted co-counsel is waiting for their check to clear before appearing before your honor in this most historical of cases. Deutsche Bank is slow these days I understand.”
          “Yeah, whatever. Let’s just pretend you know what you’re doing for the time being.”
          That was a joke. Sorry, I should have put that at the top of the post but I’m too lazy to fix it.

    • Savage Librarian says:

      “And for God’s sake, Republicans, don’t try to equate this indictment with Hillary’s emails.”

      The MAGA Republicans are so deranged that they’re baskin’ in the robbings. I scream, you scream, we all scream for IC creamed. 31 flavors. Time for a new flavor to be rotated through. But I’m so disgusted I’m at a loss for inspiration. I’m thinking there should be something to give tribute to the rule of law, though, and the dedicated and hard working people who support it.

    • Epicurus says:

      I think you have defined the crux of the government’s trial problem. The human mind isn’t built for complexity. The individuals on this jury will be faced with trying to comprehend the breadth and depth of what Trump’s documents cover. Somehow the prosecution has to turn something the jury probably won’t understand, at least in the beginning, into something meaningful for each individual. In other words, the prosecutor has to transform however many pieces of paper/documents there are into a life and death scenario for each juror individually to bring meaning to the charges.

      if the prosecutor doesn’t do that then the very real non-complex reaction for at least one juror has a high probability of being “Wait a minute. President Biden had all that classified stuff outside of secured facilities and so did Pence. If the law prohibits possession for them, how come they got away with it and Trump is being charged/treated differently?” That’s about the only defense Trump can offer, but he is a master at distilling complexity down to the basic human reactions he wants. His defense will hammer at Why Me and not Biden? and conflate 30,000 Clinton emails with however many documents he is being charged with violating.

      The prosecution has a huge task in front of them.

      • Ravenclaw says:

        I think the prosecutors, so far, are doing a very good job of exactly that: keeping the case very simple and full of emotional “punch.” Suppose you’re on the jury. You see a document outlining American vulnerabilities and think “wow, it’s a road map for the next al-Qaeda bombing!” You see a document outlining our plans for a war with Iran or North Korea and think “wow, that could mean they’re prepared to take out our troops, including my nephew Billy.” Then you ask yourself, “was it okay for him to have those documents?” and look at them spilling out onto the bathroom floor.

        It’s noteworthy that the indictment says nothing about any influence-peddling/business dealings that might have drawn on these documents. Not because they are sure nothing like that happened, maybe not even for lack of evidence – but it would be a complex web of connections, and a spirited defense could raise doubts in jurors’ minds. Remember: DoJ generally only prosecutes when they think they have something like a 95% chance of winning. And they’re pretty good at handicapping the horse races. In fiscal 2022 (if we ignore 289 cases with undetermined outcomes), they brought 62,173 cases and won convictions (guilty pleas, trial convictions, or “rule 20” pleas) in 57,648 of them: 92.7%. When cases went to trial, their conviction rate was even higher. {https://www.justice.gov/media/1279221/dl?inline}

        • EuroTark says:

          It would not surprise me if the Gov is prepared to show that the dissemination of these documents directly led to the loss of human intelligence.

        • Sue 'em Queequeg says:

          IMNautaL I’ve long been expecting reporting that specifically links the loose-document side to the intelligence damage and deaths of sources ever since this possibility was mentioned months ago. Has there been any at all? The absence makes me wonder if this is another area where silence = DOJ diligence.

      • Spank Flaps says:

        I think that’s why the indictment includes a quote from Trump himself, debunking “Hillary’s emails”.
        Trump did say “but her emails” to a NY judge last year, in the tax/fraud case for Trump Org.

      • Robot17 says:

        A jury can parse this. It’s not that complicated. They won’t be asked to learn physics or calculus. It’s a dope case basically. Practically an elevator pitch. The problem will be if Cannon will understand it or stick her finger in the wind to find out which way she should rule on various aspects of evidence and possibly sentencing.

        The enormity of the blow back on the IC and the sheer cost of what could be a constriction or termination of various projects that may be effected will be easy to sketch out for normal people. If he’s convicted, I suspect Cannon will weigh out what sending a former President away for a significant portion of his final years will cost the country. She’s already deferred to his stature before.

        • bmaz says:

          Lol, there are no “dope” criminal trials. And, yeah, it really is a bit complicated if you understand how jury instructions are crafted.

        • Robot17 says:

          How can jury instructions frame the consequences of the criminal behavior the prosecutor will present in their arguments? Not being snarky, that was my intended point.

        • bmaz says:

          How can they?? Why in hell wouldn’t they??? Initial and final instructions are the very lens a jury receives evidence and then deliberates on it. If you as an attorney in the well are not keeping that in mind, and conducting yourself accordingly, you are an idiot.

        • Robot17 says:

          The potential consequences (disclosure of NatSec info classified TS etc.) of the criminal behavior are part and parcel of the charges in the indictment and unless the judge determines those be excluded and walled off from the jury, I suspect they will hear them. And it’s not complicated.

        • bmaz says:

          You don’t know exactly how Smith has planned this, and nothing matters until the rubber meets the road as to potentially classified material. It is “not” just about what documents were filed on, but what about potential Brady and Jencks material? How are you going to deal with that? What if Cannon does make some rulings you don’t like (and she might, any judge might), then what?

          If you do not think this is all complicated territory, you are a dope.

        • Robot17 says:

          Oh contraire! Don’t sell me short! I could be a dope either way!

          I just think the jury will understand if they get presented with it is all I’m saying. I’m a pretty strong believer in the process.

    • Desidero says:

      I edited list down to 2 tweet-sized segments:
      classified docs TRUMP stored in boxes incl info re
      • defense & weapons capabilities of both US & foreign countries
      • US nuke progs
      • vulnerabilities of US & allies to military attack
      • plans for possible retaliation in response to foreign attack

      unauthorized disclosure of classified docs puts at risk
      • nat sec of US
      • foreign relations,
      • safety of US military, &
      • human sources & continued viability of sensitive intel collection methods

  4. Veritas Sequitur says:

    Thanks, Ms. Wheeler, for your important coverage via weblog of this twisted intersection between destructive politics, abstruse legal proceedings, and security. The viability of liberal democratic governance at its best depends significantly upon the courageous press. Three cheers for efforts to advance truth, justice, safety!

        • NHDecoto says:

          You are such a cool person. Intelligence with wicked snark often embedded in your commentary. Been with you since Fire Dog Lake.

          Rayne, I know I have posted before but with such an unusual name as mine, I’d like to have a handle, 10-4 good buddy.

  5. jecojeco says:

    Just as background trump came into office with a mega hardon for US intelligence right from kickoff, with comments along the way that he trusted what putin told him more than what he got from (confidential) US sources.

    trump refused to share defense briefings with President-elect Biden after Biden soundly defeated him in the election. Sharing is SOP for peaceful transitions – which this was not. Biden reciprocated (for good reason) and took trump off the courtesy distro list of former presidents. He dissed trump’s already shattered ego and I think trump decided to take as many sensitive defense docs as he could lay his hands on in his twilight hours leaving WH. (Meadows scooped and loaded his car with 1000 pages against the advice of WH counsel in his last trip from WH, I’m sure we’ll hear more about that from DC GJ. Meadows said he did it at instruction of trump so there’s potential espionage collusion charges for both with a DC jury pool and w/o Cannon.) People are looking for a rational explanation for trump’s behavior, was it for cash, was it to fetch for putin? It may have been all emotional, anger, spite. His childish, amateurish, felonious game of “Keep Away” from DOJ was just trump being trump on the big stage. If trump testifies it should be from a psychiatrist’s couch.

    Thanks for all your analysis and erudite commentary Dr Wheeler!

  6. jaango1 says:

    By way of background, and thankfully, I am not going to be a juror should this trial take place for public scrutiny, and yet my last job while in the military, I was in charge of of a “storage” center of ‘security documents’ and thusly, my security clearance was two clicks well above top secret and consequently, there is very little with my regard to understanding of this current legal fight.

    To wit, the indictment and with the relevant issues, seems far more consequential with and when the Jury takes the decision to decide “intent.”

    Therefore, will Trump, should he personally testify, be highly questioned relevant to each classified document? If not, and if Trump refuses to testify, as a participating juror, I would beholden to find Trump, “guilty” and in doing so, with no qualms considered. Subsequently, having a chain of command that dismisses “intent” puts the daily lives of men and women in jeopardy.

  7. BobBobCon says:

    “The problem, in Donald Trump’s case, is that he has more incentive to start a civil war than plead guilty to these charges.”

    I think from the perspective of the IC, there’s also the deeply troubling issue raised in the Washington Post article linked to back in 2020:


    As the article notes: “All presidents exit the office with valuable national secrets in their heads, including the procedures for launching nuclear weapons, intelligence-gathering capabilities — including assets deep inside foreign governments — and the development of new and advanced weapon systems.”

    “The chances are low that Trump knows the fine details of intelligence, such as the name of a spy or where an intelligence agency may have planted a surveillance device. But he almost certainly knows significant facts about the process of gathering intelligence that would be valuable to adversaries.”

    What’s scary about the article is the focus on the types of things Trump knows rather than the printed material he has. You can seize documents, but what do you do about what is in his head?

    The same thinking that could lead Trump to promote a big wave of violence could lead him to start talking. And I think part of the scope of charges here is an attempt to push an extremely dangerous container of intelligence to think about the personal stakes of revealing it, and the lengths the IC will go to contain it.

    • Bobster33 says:

      I think the promotion of violence is overblown. Trump had his chance on Jan 6th. Trump’s cabal is smaller than before. Unless Trump is paying for bad actors to start acting badly, few will show up.

      Now as for Trump talking, we know he cannot shut up.

      • Hope Ratner says:

        I don’t think that the assorted Jan6 trial defendants and the subsequent guilty verdicts will inspire as many Oath Keepers and Proud Boys and their cosplay partners to jump to committing violence like they’ve done previously. But that’s just my two cents.

  8. earlofhuntingdon says:

    “But with Donald Trump, they’re facing a uniquely intransigent defendant. And that is what Jack Smith was facing when he decided to charge this case this way.”

    As you say, Trump is incapable of compromise. His overwrought ego would drive him to attempt another violent coup rather than plead to any wrongdoing that also imposed real, in fact, any consequences on him. Jack Smith knows he’ll have to work hard as hell to convict and imprison him.

    • BobBobCon says:

      I think part of the problem is that he’s always been happy to sign a contract, even one with severe financial penalties. He just won’t follow them.

      If he signs an agreement as a result of this at any point, it’s hard to see how Smith would believe Trump would honor it without means in place to enforce it.

      Although I’m sure we’ll get people like Susan Collins and Peter Baker arguing this time he’s learned his lesson.

      [FYI – you published this as “BobCon”; I have corrected it to free this comment from auto-moderation because the system saw “BobCon” as a new users. PLEASE check your Name/Email entries as this is the second typo correction in the last 2-3 days for you. /~Rayne]

      • BobBobCon says:

        Sorry about that! I’ll try to wipe that from my autocorrect.

        [Thanks. If you’re using a desktop, try clearing your cache. /~Rayne]

  9. Ravenclaw says:

    As usual, a remarkably exhaustive and incisive study of the problem at hand produced at a breakneck pace!

    My questions (for Marcy, the other hosts, and the hive mind):

    1. The exclusion of all documents relating to human intelligence seems intentional. Does this suggest that the relevant agencies are hoping to keep those sources active or just, having already extracted them, to reduce the risk of assassination?
    2. Related to #1: We’ve seen mention (including here) of the possibility that US intelligence in Saudi Arabia has been compromised – this because of the occasions when we seem to have been caught by surprise by moves the kingdom made last fall. Could this be connected to any of the humint-related documents recovered but not charged? As in, a source gone dry?
    3. The post ostensibly relates to sentencing issues but doesn’t seem to draw any conclusions (unless I missed something). Would the unique features of this case point to an unusually lengthy sentence, were conviction to be obtained? I’m guessing that’s the thrust of the argument, but not sure.

    • Peterr says:

      I don’t think you can say ALL documents relating to human intelligence were omitted from the indictment. Yes, certain documents with the security classification code HUMINT were not included, but it is at least probable if not likely that human intelligence was behind some of what was contained in the documents with descriptions like “Document dated November 2017 concerning military capabilities of a foreign country” and “Document dated February 2020 concerning policies in a foreign country.”

      But to your larger question, yes, the IC is likely trying to assess who has been blown and who has not, whether they need to exfiltrate these assets or not, and whether it is possible to replace a given asset with another — all without arousing any suspicion on the part of the target governments/organizations. If an agent *isn’t* compromised, but we expose them as an asset as we try to get them out, then we’ve given our enemies a trail to follow, backwards and forwards, that could be very destructive to our interests.

      • Sue 'em Queequeg says:

        Is it possible these indictments might have dropped a bit earlier but were held until the IC could fairly thoroughly assess known or potential damages? Not to say that in some ways it still seems the whole thing happened pretty quickly, given all that is involved.

        From earlier comments it still feels as if there’s a lot waiting in the wings here. This phase feels like the first drumbeat in a long march. If so, that seems like the perfect way to play it.

  10. Waban1966 says:

    These observations by MTW reinforce my view that Judge Cannon might actually be as good a draw as one could hope for, in these circumstances. Jack Smith obviously would have thought through the nuances of the assignment wheel in SD Fla, knowing that there was a very high chance Judge Cannon would get the case. And Smith retains a lot of optionality about the charges.

    First, if the case drew anyone other than Judge Cannon, Trump would be hammering away on the judge already. He’s got his best choice, and if/when Judge Cannon makes any rulings against Trump, it will reinforce the legitimacy of Smith inside the Beltway press corps. If Judge Cannon rules in favor of Trump, Smith has the best possible chance of CA11 viewing her as making an error, after the special master nonsense, compared to any other judge.

    All this matters a lot. Trump will still turn on Judge Cannon and complain, but it will matter with speed of appellate and trial process. And legitimacy inside DC.

    Sure, Judge Cannon can shade jury selection to maximize chances of a mistrial, without any practical risk of appeal. But the E Jean Carroll jury having a MAGA and still unanimously convicting says there is probably my better.

    But as MTW pointed out in an earlier post (labeling this a tactical nuc and calling it the “Mar-a-Lago Indictment” to distinguish from other future possibilities). Smith has likely preserved that this isn’t the only potential indictment on documents.

    Of massive importance in this is that we now know that the “Bedminster Boxes” exist(ed). One possible tactic would be to leave out actually indicting on the Bedminster Boxes (which Smith did) until you see which SD Fla judge you get. Smith can then go to NJ if he wants, after he sees some initial Judge Cannon rulings and test her “lessons learned” from the harsh 11th Circuit special master reversal.

    For example, Smith could have included a lot of very-highly-classified stuff (as MTW’s post describes) because under CIPA there is an initial ex parte hearing (so I have read). Using this Smith can first gauge ex parte how Judge Cannon is acting. By including really, really shocking stuff, he can show Cannon the seriousness of the situation, while Smith can still withdraw particular counts (particular documents) to address public disclosure issues. Maybe even withdraw before Smith has to disclose the super-classified stuff to Trump, if Judge Cannon does something after the CIPA hearing that is like the out-of-bounds position on the special master.

    Another example, to take this to a logical conclusion: Smith can wait to see what public statements Trump makes after arraignment, and then likely seek some kind of limited gag and restricted viewing by Trump order, as Trump received in NYC. Having the super-classified documents makes this the hardest possible decision for Cannon, and at that stage redacted documents probably still work. If Cannon won’t issue an appropriate order, Smith can drop what he wants. Indeed if he thinks he can bring charges in NJ, it’s not impossible that some of the Mar-Lago documents could be charged there too (like the “Milley war plan”).

  11. Rugger_9 says:

    As noted on the prior thread, some of this depends upon what is allowed to come in. This is where Cannon’s supervision (apparently permanent) can really screw things up. First, we’ll have new lawyers who will undoubtedly be granted an extensive delay to prepare their case, followed by a series of allegedly plausible arguments to ditch chunks of the evidence, challenge the validity of the search because of the recent claims of FBI manipulations, the two-year rule belched out by Parlatore and probably whether the docs are Defendant-1’s even though the 1978 PRA clearly says otherwise.

    Given how Cannon ignored black-letter law and extensive precedent in the earlier special master fiasco, the DC Circuit shootdown of the ownership claim will mean nothing to her. Perhaps this is the reason Defendant-1’s team did not appeal that decision to SCOTUS at the time, to avoid having a precedent set that Cannon could not ignore.

    As for Lt Col. Birchum, the separation options for officers are ‘honorable’, ‘general (under honorable conditions)’ or ‘dismissal’ which works like a dishonorable discharge. DDs are usually for stuff like murders or desertion, but for whatever reason the USAF didn’t want to add to the bad publicity even though if I were on his GCM he’d be Dismissed.

  12. John Paul Jones says:

    It occurs to me that one way Cannon could mess things up is to refuse whatever conditions the government wants to impose on the defendant pre-trial. And I wonder what those conditions will be. Surrendering his passport? Stay off social media? etc., etc.

    • Ravenclaw says:

      Personally, I want him to have a passport. And to use it. To leave the country before conviction. That might even persuade some of his supporters to change their tune. But I’m a dreamer.

    • Rwood0808 says:

      As we have seen several times, Trump is his own worst enemy. The more he runs his mouth about the case the better for the prosecution.

      As for Cannon, she and team Trump will no doubt be looking for anything she can toss, probably starting with the attourney-client ruling regarding Corcoran.

      • bmaz says:

        Lol, no as to Corcoran ruling, which was by Chief Judge (at the time) Beryl Howell in DC. Cannon cannot laterally remove that. People need to chill on this, Smith picked this venue and here he is. So be it.

        • JimmyAnderson says:

          I apologise in advance if I have misunderstood – but didn’t Chief Judge Howell’s ruling that the crime-fraud exception rule applied, only allow a grand jury to review Evan Corcoran’s notes and hear his evidence ?
          Are you saying Trump’s defence team can’t bring new motions to suppress that evidence and keep that information from reaching the Florida trial jury?
          Is Judge Cannon bound by Judge Howell’s rulings?

  13. Jim Luther says:

    The tattered credibility of the US law enforcement system and the idea of the rule of law is on trial here as much as Trump.

    We have one segment of the population that will view law enforcement as little more than a cudgel used by the rich and powerful in a continuation of McCarthy / Jim Crow era traditions if Trump and his enablers walk – or if they are pardoned in a continuation of Civil War / Nixon traditions. We have another segment of the population that has explicitly rejected the concepts of the rule of law and evidence based rational decision making, and desire for law enforcement to be an enforcer of their preferred values – and they will continue to attack the rule of law unless Trump and his enablers walk. Add to that the substantial Native American and African American communities for whom the rule of law has always been a farce.

    Simply proving that Trump intentionally damaged the national security of the US won’t be enough to preserve the acceptance of the rule of law, simply because the core base of support for Trump views him through an evangelical end times lens. As they have repeatedly claimed (and is reflected in their policies), they are simply unconcerned about improving life here on Earth, but instead focused upon the fulfillment of their peculiar end times beliefs. IMHO, the only item that can help resolve this conundrum is if it can be proven that Trump intentionally damaged the national security of Israel.

    • Bay State Lurker 23 says:

      If you’re implying the right wing cares about Israel’s security, no — the fundie/evangelical Christian right-wing support of Israel has always been a means to the end of starting Armageddon, so jeopardizing Israel’s security is fine by them, as long as it helps get Jesus.

      You’d think that him damaging the national security of Israel by disclosing information discovered by Israel to Russia in May 2017 would have been enough to stem Trump’s support in Israel, but no, the right-wing hold is strong there as well, even in members of my family who used to be on the ideological left. It’s genuinely dispiriting how people are so eager to say Trump is good for Israel, when every word he says is so bad for the people who live there.

      [Thanks for updating your username to meet the 8 letter minimum. I assume your previous username “Reeb” is now retired. /~Rayne]

      • Bay State Lurker 23 says:

        Rayne – yeah, I’ve seen your requests for people to change their usernames often enough to know what makes a good one! I’ll likely remain a lurker for the most part — IANAL or security researcher, and when I don’t know what’s going on, I like listening to the people who do.

        • Rayne says:

          Trash Talk and Open Threads, when we have them, may be good opportunities for you to join in until you’re more comfortable. After a bit of practice you’ll figure out how far you can push things while toughening your comment hide.

          IANAL either btw. :-)

  14. Molly Pitcher says:

    MSNBC is reporting that the arraignment tomorrow may be delayed, because Trump can’t find a ‘local’ attorney.

    • P J Evans says:

      He’s going to have trouble finding one who can handle this kind of case and willing to work for whatever he thinks is fair pay, rather than a large upfront payment.

      • RipNoLonger says:

        What level of security clearance would an attorney representing Trump in this type of case need?

        Perhaps more important, is Trump cleared to see the evidence against him? He never had a clearance – just piggy-backed on the POTUS title.

    • Rayne says:

      That’s a knee slapper, that. Palm Beach County is chock full of attorneys of which some must surely specialize in criminal law. Apparently they are all booked up for clients, huh? ~snicker~

      • LargeMoose says:

        If Trump can’t get anyone to defend him, won’t they have to appoint a public defender? Oh, the irony. :-)

        • Shadowalker says:

          A good portion of the claims filed against him or his companies have been from former attorneys seeking payment, that coupled with the fact he never listens to them means that field has been narrowed quite a bit. Though I think the not listening plays a bigger role.

    • GSSH-FullyReduced says:

      I’ll bet Harlan Crow knows of a few local lawyers in SDFL. Part of the ‘Two- Tiered’ legal pool of ambulance-chasers I’m trying to wrap my head around.

    • DougKane says:

      He actually does have a local attorney. The $2 million man, Christopher Kise, who was hired during the special master debacle and then largely sidelined because the advice that he was giving Trump was to be conciliatory rather than combative, is a member of the SDFL bar, and reportedly will be appearing with Trump tomorrow along with Todd Blanche, his NY-based defense attorney (and anyone else that he can hire between now and then).

      • bmaz says:

        If so, that is interesting. If Kise enters as attorney of record for the arraignment, it might not be so easy for him to withdraw in the future. I sure would not do that without another $5-10 million in cash up front.

        • emptywheel says:

          The other thing is that it is highly unlikely that Kise, who until recently was a paid foreign agent for Venezuela, can get clearance. So unclear what would happen if he filed and then had to withdraw for clearance reasons.

        • bmaz says:

          He does not need to be cleared to be an atty of record. You just get Chinese walled off for clearance issues. I guess he could do an arraignment with the understanding he is appearing “only” for that proceeding. I would not do that, but guess, with consent of the court, you could.

      • Eschscholzia says:

        For what it’s worth, the WaPo has an unattributed assertion: “Veteran Florida litigator Christopher Kise, who joined the team in the fall and has an extensive network in the Florida bar, has led the search for a lawyer and cast a seemingly wide net in the state. Kise declined to comment.”
        https://wapo.st/3JbonXQ No indication of how the reporters know that, not even an anonymous source.

    • David Brooks says:

      Perhaps Aileen Cannon will appoint a public defender, first name on tomorrow’s list. Or perhaps she won’t.

      • bmaz says:

        No need to, Trump atty Lindsey Halligan is a member of the FL and SDFL bar. That is sufficient for an arraignment and to get Blanche jumped in. But Trump will need more and better for the duration. I’d go to Neal Sonnett or Roy Black’s firm. They are first rate. They may not want Trump though.

        • emptywheel says:

          It seems she went with Trusty and Rowley or maybe never really was playing a role besides eye candy.

          And honestly, I think all the lawyers who saw how badly they were duped by Trump want to avoid being stuck at this point.

        • David Brooks says:

          Thank you for taking my comment seriously, though. Is “I still can’t find a law firm” a valid delay tactic, and how long would it be tolerated?

        • bmaz says:

          Given that security clearance will be an issue, yes it is an issue. But not for arraignment, which is fairly perfunctory.

  15. Savage Librarian says:

    Nauta Oughta

    There’s a gaslit mum schmuck
    almost underwater,
    A gaslit mum schmuck,
    Life is getting hotter,
    Who breached off-site
    more than Milley had,
    Transactioned those things
    and then said “I’m glad
    I’m a gaslit mum schmuck,
    Life is getting hotter,
    Quack, Quack, Quack.

    There’s a mad demagogue
    almost underwater,
    A mad demagogue,
    who deceived Walt Nauta,
    who breached off-site
    more than Milley had,
    what the schmuck ego-tripped,
    and then said “I’m glad
    I’m a mad demagogue
    almost underwater,
    Glug, Glug, Glug.

    There’s a GOP thug
    almost underwater,
    A GOP thug
    who surely knew Walt Nauta,
    Stroked the demagogue
    for what Milley had,
    what the schmuck ego-tripped,
    and he said, “I’m glad
    I’m a GOP thug
    almost underwater,
    Bzz, Bzzz, Bzzz.

    There’s an emergency brake
    to shut off the water,
    An emergency brake
    doing what it oughta,
    That shut down the gaslit schmuck
    who the demagogue had,
    and grated the thug,
    and then said, “I’m glad
    I’m an emergency brake
    to shut off the water,
    Hiss, Hisss, Hisss.

    But what ever happens
    to Mr. Walt Nauta,
    He got caught
    not doing what he oughta,
    There’s a big void now
    of what Milley had,
    Rogues & demagogue
    face a day, I’m glad,
    But there’s still plenty more
    not doing what they oughta…
    “Oh no, oh no, oh no.”


    “Original versions of The Little White Duck written by Walt Barrows, Bernard Zaritsky | SecondHandSongs”

  16. Bears7485 says:

    Perhaps a stupid question, but why is the silent witness rule controversial?

    It seems to me that using it would prevent people from skating on the most serious national security offenses.

    • emptywheel says:

      That’s why they use it. But it limits cross examination and undermines presumption of public access.

      The one time I’ve seen it used, with Sterling, it was used for cheap theater (as was much of the case), not any real security reason.

  17. AB909_ext says:

    1. So essentially they have indicted him based on documents that are related to now compromised programs and presumably counterintelligence work for those items are fairly well along. So ok for trial.

    2. There are documents that were returned are too sensitive to indict on. Never ok for trial.

    3. There are documents that were not returned that he could be indicted on. The government wants these back, but has options either way. Ok for trial.

    4. There are documents that were not returned that are so secret that he would not be indicted on those. The government wants these back. Never ok for trial.

    I am going to speculate about #4. That tranche is probably what Trump considers his get out of jail free card. It is inconceivable that he didn’t carve it out. And at the risk of the wrath of Bmaz and others I am going to throw down a guess as to some of the content of that at tranche. It is the evidence of our government’s interaction with Non Human Intelligence as described by whistleblower David Grusch. (And I will reiterate a past plea for any of the Emptywheel crew to please start to look at this topic. It is not fake, it is not disinformation. It is real, there are gigabytes of historical information on all of the subject areas he touches on, and it is by far the most important ‘National Security’ topic of our generation if not the history of our species.)

    Trump’s power in using this card is being lost as this topic is being forced out into the public, but if the DOD/CIA succeeds in putting the toothpaste back in the tube, watch for unusual DOJ moves.

    Thank you to all who write and comment here. A lighthouse of intelligence in a sea of ignorance.

    [Thanks for updating your username to meet the 8 letter minimum. Please stick with this username here on forward. /~Rayne]

    • P J Evans says:

      I think there is stuff that’s too secret to use at trial, but I seriously doubt it has anything to do with nonhuman intelligence.

    • firefish says:

      The main reason I disagree with you on this point is that I am convinced that Trump is absolutely constitutionally incapable of keeping something that juicy to himself. Putting aside whether such intelligence does or does not exist, is or is not credible, etc., I just think there is no way on god’s green earth he wouldn’t have come out of such a briefing & immediately started talking about it to anyone who would listen.

      • HikaakiH says:

        As some comic once noted about his own arrest, “I knew I had the right to remain silent, but I lacked the ability.”

  18. USMA1986 says:

    One of the concerns I’ve seen – I saw bmaz mention it and I’d guess Marcy and Rayne feel the same – is that Judge Cannon is not the primary issue. I didn’t fully appreciate that until I realized that a grand jury requires only 12 votes out of 23 (or at least a quorum of 16) to indict. That’s a relatively easy hurdle vs having to run the board, going 12 for 12 in an actual trial. Especially in Florida, in 2023, when facts can be irrelevant to a certain demographic.

    It makes me wonder what limits Judge Cannon can impose during jury selection? Is there any chance, for example, lawyers would not be allowed to access social media for potential jurors? That seems unlikely, yes?

    Beyond that, what does jury selection boil down to? Assuming this case is as strong as it appears, and assuming it is presented properly, is there an ever present concern that a lone juror might possess hidden intentions to vote a certain way, facts be damned? Apologies if these seem like obvious questions.

      • USMA1986 says:

        Thank you. This has been referenced by many, but the range of discourse on this site is really special. The Empty Wheel team responds to earnest questions from IANAL types, such as myself, all the way up to experienced career insiders, capable of posing complex, thoughtful, questions. We all benefit, and become better citizens in the process. You are all quite patient with us – and when your patience wears thin, well, I’m not gonna lie. It’s pretty fun to witness. Joking aside, and last point, my favorite aspect of this site is when mods take the side of the opposition, whether it’s Trump or any number of countless villains over the years. I love it because you follow the law where the law takes you. That’s the beauty of our legal system and it’s what really matters in the end.

        Thank you.

        • USMA1986 says:

          Fair enough. Edit:
          2 out of 3 of you are quite patient with us. 😂

          For new commenters, a good rule of thumb. If your reply from bmaz begins with one of these phrases, you’re off on the wrong foot:

          “lol, yeah right”
          “And you know this how?”
          “That’s bullshit.”
          “Jesus fucking Christ on a bicycle,”
          “Feel free to explain to me just how…”

          Bonus: If your post involved a defense of Fani Willis, Alvin Bragg, the Jan 6th Committee, or you suggested some dumbass strategy involving RICO, don’t even bother reading his response.

          You’re welcome.

        • Buzzkill Stickinthemud says:

          “Pleas stop…”
          “Get a grip…”
          “Not going to happen…”
          “People need to…”
          “You’ve made several comments over the past [time frame], all of them full of…”

          Besides the acute intelligence of Marcy and the moderators, another reason I read emptywheel is the impatience for trolls and the like. It’s rather refreshing, even if I sometimes fall in the “watch it, bub” column.

        • FiestyBlueBird says:

          My bmaz favorite should never be forgotten:

          “That is some authentic frontier gibberish!”

          And my mind whispered in my head, “Rayne”, not bmaz when I read:

          “Jesus fucking Christ on a bicycle,”

          But good one, very good one! Thanks for the laugh.

        • USMA1986 says:

          Just got back from dinner and am enjoying these additions to the list. I love that I’m not the only one who can pull them from memory. Clearly we all appreciate bmaz’s depth of knowledge AND his tenacity in keeping this site in line.

          Speaking of tenacity, I agree with FeistyBlueBird that the “JFC on a bicycle” line could just as easily come from Rayne* but I’ll direct your attention to the following July 5, 2022 post titled:

          where, on July 7th, at 3:26 pm, bmaz did, in fact, write:

          Jesus fucking christ on a bicycle. People are still braying about RICO? Get yer heads out of your asses.**

          *Rayne, or from my 94 year old Irish mother.

          **Otherwise known as a twofer. A Jesus Fucking Christ, plus a reference to RICO.

        • Rayne says:

          The next update of the comment system here will add to any occurrence of RICO in comment drafts a warning — “Because it’s almost never RICO your comment may go into auto-moderation” — so we here in the site’s backend don’t have to spend so much time adding so much swearing and so many abbreviations to our replies.

          Ditto for all uses of the word treason, because it’s almost never treason. Gods, I am so fucking tired of these two overused and rarely appropriate legal terms.

        • USMA1986 says:

          I love it. And yes, how did we leave out the grand daddy of moronic impulse comments: TREASON!

          Looking forward to tomorrow’s historic arrangement. Before I call it a night, I want to say this:

          To have initiated a comment thread that resulted in replies from Marcy, bmaz, and now you, Rayne – in the same day, no less – well, hell, that’s the dream of every longtime lurker. Moving forward, I’ll strive to contribute as best I can, via well-intentioned comments, occasional sarcasm, empathy, and financial support.

          Let that be an inspiration to the rest of you longtime lurkers. If I can interact with the triumvirate and emerge ass intact, so can you!

          We compiled a list of “danger zone” phrases to look out for, and “post-at-your-own-peril” topics to avoid. Just keep things civil, don’t be a fucking dumbass, and you’ll do just fine.


        • bmaz says:

          Lol, those are literally the only real requirements. And the eight letter name convention thing.

          And, yeah, RICO. It is never RICO. Except in Georgia, Fani Willis seems intent on using the uniquely bizarre and over broad state RICO law as her Trump card. If you will.

  19. abbakadabra says:

    Forgive the newbie question: Could Trump purposely instruct his attorney to so incompetently represent him that either a mistrial is declared or a guilty verdict is overturned ?

    Thank you.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • timbozone says:

      Ideally, a truly incompetent attorney would require little instruction in how to be incompetent. However, have you ever seen “The Producers”…?

  20. Drew in Bronx says:

    I do wonder if strategically this is more like a siege than a direct attack meant to fell Trump with a quick conviction. The CIPA process and other pre-trial motions are likely to take this prosecution well past the 2024 election. But as long as these charges are alive, Trump is faced with the prospect of spending the remainder of his life in prison. (Even at the low end of speculations about sentencing on this, how many people really believe Trump is going to live past 85?)

    But other prosecutions are imminent: Georgia & NY for sure. But also federal conspiracy stuff regarding January 6. Maybe also a New Jersey federal case over the dissemination of the war plans and maps at Bedminster. This many criminal cases is exhausting for anyone, especially for a guy who’s older than me and in less good physical shape than me. AND the evidence is very compelling. While there are plenty of MAGAts who will stick with Trump thru thick and thin, the exposure of so many damning facts will wear down his support in the center and center-right so at some point it will be apparent he has no chance at re-election.

    Trump is stubborn and unrealistic, but he does what is best for Donald Trump. When he’s sure he’s looking at conviction and incarceration, he would allow his attorneys to seek a way for him to plead to a single charge, with home confinement as the sentence. (This is not something anyone else in the universe could get at this point, and people will hate it, but the complexity of Secret Service protection for a Federal prisoner, plus the need to resolve the case without infinite appeals and fomenting of civil war makes it more likely).

    Thus, after a long and punishing siege, Jack Smith will get his conviction.

  21. paulka123 says:

    As a minor aside, the bathroom that seconds as a storage closet has a window without blinds/curtains. EWWWW

  22. Charles Wolf says:

    My question has to do with bail and whether he should be denied bail b/c he’s a danger to others. He still has many docs that may be used to harm the nation if he is allowed to remain free.
    If he is cut loose, then he will not have received equal treatment under the law.

    • bmaz says:

      No, Trump is not going to be detained no bond. Where in the world do people come up with stuff like that?

  23. StillHopeful says:

    Maybe this has been asked before…..

    As a person never “cleared” via non-presidential channels, is this ex-president cleared to hear details of the documents he was found to have in his possession?

    • HikaakiH says:

      Yet another reason in favor of Dr. Wheeler’s speculation that the documents used in the prosecution will be used unredacted on the assumption that the sources/methods are already burnt beyond toast. Given a public trial I infer that the documents will be declassified to achieve this, but would be happy for correction if I’ve misunderstood that.

Comments are closed.