Poof! How Jack Smith Made 800,000 Pages into 4,500

This post talks about what the government filing in the Trump stolen documents case says about the evidence. This other post talks about the legal argument against a delay.

As I noted, Trump’s response to DOJ’s bid for a December trial made an argument for complex designation, based in part on the volume of evidence involved. If that argument convinces Aileen Cannon, Trump is more likely to get her to order a significant delay.

It’s a reasonable argument — and would be more so were the discovery burden as onerous as Trump laid out.

But at least according to the government’s reply, it’s not. Not even close. The government reply shows how Trump inflated these numbers and how the government has streamlined the discovery process.

Whereas Trump claimed there were 800,000 pages of evidence,

Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians.

DOJ noted that only about 4,500 of that is “key” to the case and a third of that consists of email headers involving two people.

Although the Government’s production included over 800,000 pages, the set of “key” documents was only about 4,500 pages. 2

2 Nearly one-third of the over 800,000 pages consists of non-content email header and footer information obtained pursuant to 18 U.S.C. § 2703(d) for two account holders.

Whereas Trump complained about 57 terabytes of surveillance footage,

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ explained that while the footage might be selected from across nine months of time, here, too, DOJ has selected the key bits and “many” of the cameras don’t record continuously (which means some do, which would be stuff obtained since the August search).

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage

This argument may well make or break the government’s bid for a timely trial, because they’ll need to refute Trump’s complex designation bid to keep on a tight schedule.

And that’s one of many reasons (another is to make sure Trump and, especially, Walt Nauta can see what else they might be looking forward to) why they’re basically providing everything up-front, include Jencks production reflecting what witnesses have said about this case, which they’re not obligated to turn over until the morning of trial. And they’re providing every witnesses’ testimony, not just those they’re calling at trial.

The Defendants also rely on the Government’s statement in its discovery letter that “there will be additional productions of discovery” related to some devices and search warrant returns, and note that “the Government has not produced all interview-related materials, including certain witness statements and associated memorialization of those statements.” Resp. at 4. Defendants omit representations in the Government’s discovery letter about the timing of discovery that has been and will be provided. The Government has informed the defense that it intends to disclose promptly all witness statements and associated memorialization of those statements, even if they would not be discoverable under 18 U.S.C. § 3500. To that end, the Government has already produced all unclassified witness statements and the associated memorialization of those statements for interviews that occurred prior to May 12, 2023, and transcripts of all grand jury testimony from the District of Columbia and the Southern District of Florida through the present. See ECF No. 30 at 1. In the next week, the Government will produce unclassified witness statements and associated memorialization for interviews conducted between May 12, 2023, and June 23, 2023. The Government has made these productions promptly following arraignment despite having no obligation to do so. See ECF No. 28 at 4, obligating the Government to turn over Jencks Act material no later than “the morning of the first day of trial.”

With respect to the devices and search warrant returns, the Government has produced all applications for search warrants and the warrants themselves, in order to facilitate the Defendants’ ability to file pretrial motions. The Government has also produced all relevant content from devices it obtained, except for (a) three devices that were produced voluntarily, the relevant content of which will be produced in the next week; and (b) two of Defendant Nauta’s devices. For Defendant Nauta’s devices, the Government has already produced much of the responsive filtered, scoped content based on the Government’s earlier review of the devices’ content in a different form. In short, the Government has promptly produced thorough discovery in an organized manner, to include early production of Jencks Act materials. It also bears emphasis that the Government has already sought a nearly four-month continuance of trial, in part because of the need for both sides to review and process discovery. Mot. at 3. There is no discovery-related reason to further delay the jury selection in this case beyond December 2023. [my emphasis]

The government really did have this prosecution all prepped to go.

The rest of this, while also intended to help persuade Judge Cannon that the government has done everything it can to facilitate discovery here, provides a few interesting details about the case.

First, one of the last things the government is turning over are the three devices produced voluntarily. These probably came from a cooperating witness or witnesses, and if that’s right, DOJ may have held them until everyone had filed their appearance and signed a protective order, since any cooperating witnesses are most likely to be targeted for harassment.

The government seems to have seized two of Walt Nauta’s devices recently, possibly with arrest. The government seems to think they had most of this content already (perhaps from a backup). The phones themselves might include Signal or other encrypted app primarily available from the phones themselves.

The timing described is the most interesting thing:

  • The first batch of discovery included everything prior to May 12, around when Jack Smith decided to charge this in Florida
  • The government is about to turn over everything between May 12 and June 23
  • It has already provided all grand jury testimony from grand juries in DC and SDFL

Note the last bullet: You don’t need to specify that you’re referring to the DC and SDFL grand juries if they are the only ones.

Indeed, the scope of that discovery suggests DOJ may have started with a third grand jury after June 23. It’s not even — necessarily — New Jersey (though that’s the most obvious possibility). If evidence was altered in New York, it could be there too.

The government has provided Trump and Nauta virtually every unclassified thing they’d need to defend this case and bundled it up to make it easy (which, again, will also make it easier for Nauta to decide whether he really wants to risk his future on Trump winning the 2024 election).

The hold-up now is that at least two attorneys have not submitted their SF-86 forms to get clearance — which, the government helpfully notes, are due today: “The Court has set a deadline of today for them to do so. ECF No. 57.”

Meanwhile, any other hypothetical grand juries can keep working.

Update: Both Trump and Nauta’s lawyers have submitted their certificates of compliance with Judge Cannon’s order that they submit their SF-86 forms by yesterday. Chris Kise, who is the lawyer who may be disqualified from clearance (because he has recently worked as an agent of Venezuela’s government), technically did not comply: he still has to be fingerprinted, though promises that will be done by next Monday. Meanwhile, Nauta’s lawyers have laid the groundwork for a 6th Amendment challenge to the requirement that they get clearance. It’s an interesting issue, but he’s being disingenuous about why Judge Cannon (separation of powers) and the jury (because they only see things after CIPA has been finished) don’t need clearance.

Update: ABC reports that the guy who handled the surveillance video has received a target letter.

Special counsel Jack Smith in recent weeks transmitted a target letter to the staffer indicating that he might have perjured himself during a May appearance before the federal grand jury hearing evidence in the classified documents probe, the sources told ABC News.


Reached Thursday by ABC News, the employee declined to answer questions about a possible target letter and his discussions with investigators, saying only, “It’s none of your business.”

Stanley Woodward, a lawyer who has represented the employee and who represents several other Trump advisers, declined to comment to ABC News.

By description (see this post for background), this is the IT contractor Yuscil Taveras (whom NYT described to be represented by Woodward) not longtime maintenance guy Carlos Deoliveira (whom WaPo described to be represented by John Rowley).

This makes the timing of the discovery more interesting. The government is about to turn over DC grand jury materials and other interviews from after May 12 — that is, they haven’t yet turned over Taveras’ to Woodward. That suggests they may be about to charge him before they turn that over.

Taveras testified to the DC grand jury, so if he is charged with perjury, he’ll be charged there.

This likely complicates Woodward’s life significantly.

55 replies
  1. Alan Charbonneau says:

    Excellent analysis, Marcy! It’s also explained very clearly and I was able to follow it (that’s not always the case these days. 😁)

    • sohelpmedog says:

      They have been ordered to submit by today, so likely they risk contempt and / or assignment of new counsel if they don’t comply. It’s hard to imagine that they are so stupid as to not submitting the SF86’s thinking that will get them any delay.

    • earlofhuntingdon says:

      There are a number of responses available to Cannon, owing to defendant’s needless, extensive, intentional delay. None of them would be kind to a defendant causing such delays, nor should they be. I haven’t a clue which ones Cannon might choose.

      • Peterr says:

        I think any judge would try to distinguish between misconduct by the defendant and misconduct by the defendant’s lawyers. If the lawyers are dragging their feet because their client directed them to do so, by all means, go after the lawyers and the defendants. But if the lawyers are dragging their feet because they were lazy or they don’t like paperwork or even because they (independently of their client) thought it was a great way to drag things out as a legal strategy, the defendants ought not to be punished for their lawyers’ mistakes.

        At a minimum, I’d say that removing them from the case ought to happen for blowing off the order, and Trump/Nauta should be given 24 hours to find new counsel or federal public defenders will be appointed.

        • Rayne says:

          Rhetorical question: If this wasn’t Trump, what would happen?

          It’s not as if others haven’t been charged and prosecuted recently for possession of classified documents, been tried and sentenced promptly without all this rigmarole.

    • emptywheel says:

      Both sides have filed notices of compliance. Chris Kise has not yet been fingerprinted. He says he will by Monday.

      Woodward is laying the groundwork for a 6A challenge if one of the lawyers (the most likely of whom would be Kise) can’t qualify.

      • Peterr says:

        If you are right about that last sentence, then the lawyers probably shouldn’t blow off the date the court set for compliance. It’s hard to make your case for a 6A challenge saying “we tried to comply but the DOJ said we don’t qualify” if they didn’t actually comply with the court’s order.

  2. Joeff53 says:

    Just one question that may answer all the others: which pretrial rulings can the government appeal?

      • ThomasJ7777 says:

        I find that fascinating. Thank you. I am interested in details like that.

        It’s my opinion that Dr Wheeler must be eidetic. I’ve been following her work for 20 years.

        Does the defense likewise have a limited recourse to interlocutory pre-trial appeals, and are they also related to CIPA, or no?

        • emptywheel says:

          Definitely not eidetic. Rather, I remember things if I’ve written them. And I write a whole lot, and thereby leave things easily accessible via my own index.

          But it’s also one reason I write so much — I need to write to think things through. You’re all just my sounding board.

        • Valerie Klyman-Clark says:

          In a word: Brilliant.
          Thank you for all you do, Dr. Wheeler. I’m surprisingly verklempt as I write this. So grateful for you and your people here.

        • Taxesmycredulity says:

          “Eidetic memory is not limited to visual aspects of memory and includes auditory memories as well as various sensory aspects across a range of stimuli…” Wikipedia

          I think there is likely an eidetic spectrum and, if so, you are definitely on it, just with an extra but essential step of writing to lock it in.

          As many others have already said, we are grateful. Thank you!

        • posaune says:

          She of the mind like a steel trap!

          Can’t believe I’ve been following Dr EW since before the Libby trial. Amazing volume of work. We are so grateful! Thank you!

        • Eichhörnchen says:

          I’ve always said that writing is thinking (in the vain hope of eliciting better written work from undergraduates). Your work proves that point most emphatically.

  3. bloopie2 says:

    “ … and bundled it up to make it easy”. Hmm? The government has been learning all this material for months, and has boiled it down to a mere 4,500 key pages. Initially, that sounds like a lot for one person/team to read, digest, understand the significance of, find its weak points, figure out how to rebut, etc. And at the same time put together a cogent story of their own to present on direct. Still, I believe, for many reasons, that this case must be prosecuted speedily. Trump has been living on the edge for a long time — it’s time to call him on it.

  4. greenbird says:

    ? https:// storage. courtlistener. com/recap/gov. uscourts.flsd.648652/gov. uscourts.flsd.648652.77.0. pdf

    [FYI — link you’re sharing has been “broken” with blank spaces because you’ve not provided an explanation of what this is and where it came from. It may look obvious on the face of it but let’s not assume community members should take a risk on an active link. / ~Rayne]

    • P J Evans says:

      Rayne, it’s the defense’s notice that they’ve completed the required stuff. It’s one page.

      • Rayne says:

        Thank you. I’d like community members to get in the habit of identifying active links, though.

        • P J Evans says:

          For what it’s worth, it’s the standard address format for docs on Courtlistener. (“flsd” is the Southern District of Florida.)

        • Rayne says:

          As I said, it may look obvious on the face of it but it’s not a good practice to share an active link without an explanation.

          Imagine what could be shared with a spoofed address especially if moderation here wasn’t screening active links.

        • RipNoLonger says:

          Agree. And it might indicate laziness in not bothering to post a simple explanation of what the reference points to. I especially hate it when people just post a link to a tweet and expect me to open it to find out what it means. I don’t open those types of social media links period “.”.

  5. BobBobCon says:

    “The government really did have this prosecution all prepped to go.”

    I’d hope Trump, anyone involved with him, and the press realize the implications of this for other cases Smith may bring before long. He’s very unlikely to be playing around, but I think a lot of people are in denial or trying to be too clever by half.

  6. ThomasJ7777 says:

    Based upon my visionary ability to see into the future, I predict that Trump’s lawyers will not get security clearances. I’m kidding, but it’s not a bad guess, is it?

    Can the government file a motion for a court order to appoint lawyers by randomly choosing from a pool of lawyers who have the necessary clearances?

    Trump and Nuata have known for a whole month that they had to hire lawyers that had the required clearances, and among Judge Cannon’s first orders was one directing the defendants lawyers to file the necessary applications with the necessary Justice Department offices to begin the clearance process immediately.

    For them to appear now without even complying with that order should be documented because they will trample every norm to delay this case as much as possible. They have made that clear with their arrogant and crackpot excuses in their motion to delay the trial indefinitely and certainly beyond November 2024.

    The government should assume they will play more of the same obstructive games for which Trump has already been indicted.

    I hope that, and I wouldn’t be surprised if, Jack Smith is prepared to move right along seeking sanctions and contempt charges if they keep on fooling around.

    Can Kise be counsel in a classified trial while simultaneously being a registered agent for Venezuela?

    I’m skeptical Trump’s other lawyer is suitably skilled to represent him in a case like this. What if he can’t get a clearance for some strange reason that Trump wants to overlook because he’s….loyal?

  7. Peterr says:

    Providing all the DC and SDFL grand jury transcripts to Trump and Nauta, and doing so earlier than is required, has two separate purposes.

    With respect to Nauta, as Marcy notes, all these transcripts let him see just how tight the case is, in order to nudge him to rethink his decision not to cooperate.

    With respect to Trump, it makes it crystal clear who decided to testify truthfully, even if it hurts Trump. There were likely a number of these folks who promised Trump “I’m with you all the way” to his face, but then went into the GJ room and decided not to lie and put their own necks in the noose to save Trump’s bacon. Trump will read these transcripts, making a list of those who were naughty and those who were nice. The more of the former there were, the angrier Trump will get.

    And an angry Trump does not make good decisions. An angry Trump lashes out, publicly. An angry Trump blurts things out that he should probably keep to himself. An angry Trump looks to get revenge, which will only bring more attention to the target of his ire and the testimony from that person.

    In providing all this material well before they are required to do so, and providing more than they are required to, Smith and Bratt want Nauta nervous and Trump angry, and after reading this filing, I think they’ll get their two wishes.

    • earlofhuntingdon says:

      Nice comment. I would only add that a happy Trump also makes lousy decisions. He was just born rich enough to pay for many of them, and then he discovered the grift.

      • Peterr says:

        Think about Trump’s interaction with the Russians in the Oval Office after he fired Comey. He was angry at Comey for not kissing the ring and professing loyalty, so he canned him. Then, when the Russians came by, he not only happily bragged to them about removing Comey as a problem, but also inappropriately shared highly classified info with them about a deeply place Israeli agent within ISIS, blowing that agent’s cover.

      • Kope a Pia says:

        Wasn’t grifting a part of the Trump family business plan when he was brought into it?

    • David F. Snyder says:

      Agreed. Though, Trump’s reactionary choices rarely reflect the level of impartiality, consideration, and separation from emotional tides typically needed to reach a decision.

    • emptywheel says:

      Note the update, about the IT guy getting a target letter for perjury in DC.

      That also seems to have driven the timing here. They’ve withheld testimony from people who testified after May 13 until they can be charged.

      Because you can’t give Stan Woodward that transcript until after he has gotten at least one more client charged.

      • Peterr says:

        Nice. Gotta wonder if the IT guy has been clean with Woodward about how he acted and how he testified to the GJ.

        Perhaps Smith and Bratt are adding Woodward to the list of folks whose heads they are playing with.

        • vigetnovus says:

          Oh, definitely.

          In fact, crazy theory, but if Nauta and the IT guy coordinated their stories to the GJ, and Nauta lied to the GJ (which I suspect he did) and Smith has proof of this, he could charge both the IT guy AND Nauta with perjury in DC and possibly even conspiracy to obstruct justice (remember Fitz charged I. Lewis Libby with 18 USC 1503 OOJ for lying to the GJ and obstructing the investigation).

          So what would that do to Woodward’s representation of both of these guys? I would think it could not continue, because either could implicate the other, and Woodward would be hopelessly conflicted.

          Not to mention it would expose Nauta to even more serious penalties in whichever trial goes second since he’d be a convict by then.

          I can’t help but think this is a strategy to sever Nauta from Trump’s trial if he continues to refuse to cooperate.

    • Chuck M. says:

      This checks all the boxes in my mind about what I suspected regarding the government’s handling of this matter.

      His strongest trait is a compulsion to put it all out there and be the playground bully the cool kids (might) respect. Damn the rules!

      So let him. Yes, Smith (from my neck of the woods, btw) is being forthright by providing discovery, and in essence giving tRumpy a choice:”Here’s what we know, let’s talk” or, “Here’s a noose and a bucket to stand on. See ya at the party?”.

      But predictably he won’t see the choice, and his outta-control synapses will keep him from the party.

      Making America Great Again.

      [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

        • Chuckless says:

          You sound offended.

          [Thanks for updating your username to meet the 8 letter minimum. That said, avoid harassing moderators and contributors of which bmaz is both. /~Rayne]

        • Chuckless says:

          Is that directed at me? Reviewing the timeline it sure looks like I was the one harassed.
          I sure won’t try to tell you how to run your blog, but I sure don’t come here to be harassed by a moderator. I’ve certainly come expecting better.
          I’ll avoid contributing going forward.

  8. StevenL says:

    It seems that Nauta’s case is fundamentally very simple and does not hinge at all on the contents of the boxes he lied about.

    Understanding that there are presumably reasons the prosecution included both defendants’ alleged crimes in a single indictment, wouldn’t it be possible to separate Nauta’s prosecution in the event that clearance/classification issues became an obstacle? In which case it would seem he could go to trial even sooner than December

  9. Savage Librarian says:

    Poof, the MAGA dragon,
    LIV-id by the see,
    For all, slicked in the awful mess
    in a land called by Aileen.

    Mister Jackie Paper
    stubbed that rascal, Poof,
    And brought him strings,
    revealing acts,
    and other fancy proof.


    “Puff the magic Dragon – Peter, Paul and Mary – instrumental cover by Dave Monk”

  10. DaveVnAz says:

    So how long before Trump or Natua tries to extend or postpone a trial date for medical issues? Could they? If is was Trump, would he have to give up campaigning during that time?

    • Rayne says:

      That would rather awkward since Trump petitioned the Georgia Supreme Court to toss a Fulton County GA special purpose grand jury’s report recommending indictments and disqualify D.A. Fani Willis because *waaaah!* it wasn’t fair and he’d suffer “irremediable injury” to himself as a continuing candidate for 2024.

      Can’t bail out because of health in one federal case while using ongoing campaign as an excuse in a state case.

      (Christ, it’s like the orange milkweed pod forgot he’s on audiotape pressuring the Georgia secretary of state and he and his affiliates are documented harassing election workers.)

  11. vinniegambone says:

    Thanks again to the EW team for your patience and tolerance of we the unschooled for questions like this one :

    Does the judge get to see all/ any of the discovery given to defendants ? Guessing she does or how else could she rule on say the delay requests ?

    If she gets previews of what’s going to presented t might that incline her to be as serious and as efficient as she can be same as Jack Smith and his team are being ?

    If Trump doesn’t get the delays he wants how long before the angered Trump starts lashing out at Judge Cannon ?

    She doesn’t look like a person you’d want to piss off.

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