Discoveries in the Stolen Document Discovery
As I noted in this post, the government provided a supplemental discovery notice yesterday. It included the following:
- CCTV provided by Trump Org on May 9 and May 12 in response to an April 27 subpoena
- CCTV obtained after June 8 pertaining to new obstruction allegations (DOJ does not confirm whether this came from Trump Org or not)
- All 302s finalized by yesterday (302s are what the FBI calls interview reports)
- All grand jury transcripts in government’s possession
The discovery confirms that the government took certain steps after June 8 to add Carlos De Oliveira to the indictment. There are two kinds of surveillance footage that appear in that section of the indictment: from De Oliveira and Walt Nauta’s stomping around trying to understand what surveillance footage there would be, including looking right at the key cameras in the hallway outside the storage room, as well as their discussions in the bushes just off Mar-a-Lago property.
The reference to location data may mean they obtained De Oliveira’s phone account.
The discovery also means that, if DOJ was using another grand jury, in addition to the DC and SDFL ones, Trump is now aware of it, because DOJ has turned over all transcripts in their possession (past notices had specified the two grand juries).
Finally, the discovery also describes that DOJ subpoenaed Trump Organization for yet more surveillance footage in April, which Trump Org turned over on May 9 and 12. That subpoena was already public; NYT reported it in May.
Prosecutors have also issued several subpoenas to Mr. Trump’s company, the Trump Organization, seeking additional surveillance footage from Mar-a-Lago, his residence and private club in Florida, people with knowledge of the matter said. While the footage could shed light on the movement of the boxes, prosecutors have questioned a number of witnesses about gaps in the footage, one of the people said.
The timing is interesting though. It comes after — per this WaPo report — Carlos De Oliveira was informed he might be charged after he claimed not to remember the dates when Trump returned to Mar-a-Lago in July 2022 (note: this “proffer” session sounds more like an interview conducted under a limited proffer before a grand jury appearance).
For one thing, De Oliveira said he did not remember his boss coming back to Mar-a-Lago in July, the people said. Trump tended to stay away from the Florida summer heat, and it did not seem likely to some investigators that De Oliveira would forget the former president showing up twice in two weeks.
The prosecutors’ dissatisfaction came to a head in mid-April, when De Oliveira was given a proffer session — an interview in which a prosecutor and a defense lawyer meet with a person to decide if they have valuable information to offer an investigation, the kind that could lead to a plea deal.
If prosecutors grew convinced De Oliveira was lying, they may have pulled his grand jury appearance. His charged false statements were in a January 13, 2023 interview at his Florida residence, not this appearance in what may still have been DC.
In the same time frame as this subpoena for additional surveillance footage, DOJ also subpoenaed Trump’s business records from the Saudi LIV tournament.
One of the previously unreported subpoenas to the Trump Organization sought records pertaining to Mr. Trump’s dealings with a Saudi-backed professional golf venture known as LIV Golf, which is holding tournaments at some of Mr. Trump’s golf resorts.
A later NYT story reported that the subpoenas were broader: to include foreign deals with a variety of countries.
The subpoena — drafted by the office of the special counsel, Jack Smith — sought details on the Trump Organization’s real estate licensing and development dealings in seven countries: China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman, according to the people familiar with the matter. The subpoena sought the records for deals reached since 2017, when Mr. Trump was sworn in as president.
And then, after those subpoenas but before Trump Org complied with them, the Matthews Calamari testified about why Walt Nauta sent Calamari senior a text in the time frame when he and De Oliveira were allegedly stomping around Mar-a-Lago attempting to implement Trump’s order to destroy surveillance footage.
Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.
The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,
In that same April time frame, DOJ was also asking about loyalty oaths before being given Trump-paid attorneys to represent them — the fruit of which questions likely show up in ¶91 of the superseding indictment.
Another line of inquiry that prosecutors have been pursuing relates to how Mr. Trump’s aides have helped hire and pay for lawyers representing some of the witnesses in investigations related to the former president. They have been trying to assess whether the witnesses were sized up for how much loyalty they might have to Mr. Trump as a condition of providing assistance, according to people briefed on the matter.
It was after that, though, after the first indictment on June 8 which may have helped demonstrate the seriousness of this inquiry, when per CNN reporting the following happened with Yuscil Taveras, the IT guy who said he didn’t have the rights, on his own, to delete surveillance footage:
- Receives a target letter
- Decides he wants to be more forthcoming
- Gets a new lawyer (reportedly after a conflict review instigated by a judge)
- Testifies about the request De Oliveira made inside the sound room and his own response that De Oliveira would have to call people who might be one of the Calamaris
In that same period, per yesterday’s discovery letter, that DOJ obtained more surveillance footage and possibly the warrant tracking location data.
One note: If people testified before the grand jury in DC before Jack Smith moved to present charges in SDFL, they would have separate exposure for perjury there.
Here’s my track of what DOJ has turned over when (with links to the documents below).
June 21, 2023: Response Discovery Order
June 23, 2023: Motion to Implement Special Conditions
July 6, 2023: Supplemental Response Discovery Order
July 10, 2023: Defendants Response Motion for Continuance
July 13, 2023: Government Reply Motion for Continuance
July 17, 2023: Supplemental Response Discovery Order
July 18, 2023: Status Hearing (Lawfare account)
July 31, 2023: Supplemental Response Discovery Order
Update: Answered two questions I’ve gotten up in the text above: First, I used “provided by Trump Org” and “obtained” in the bullets above because that’s how the filing describes these. As I’ve noted, the video showing De Oliveira and Nauta in the bushes might well have come from a different property owner.
Second, I defined 302s, which are what the FBI calls interview reports.
A serious question for the District Court judge trying the stolen documents case is what does she charge the jury with respect to ownership of the documents. TRumpster admits he took the documents but says he was entitled to do so because: “They are mine”.
But the Federal Records Act enacted in 1978 in the wake of Nixon’s Watergate scandal provides that records made in the course of a presidency are owned by the Federal Government.
Does she charge the jury that it is a question of fact for their determination as to ownership of the records?
OR does she charge the jury that , as a matter of law, the Federal Government owns the records?
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Will do.
IMHO that’s a Trump talking point that has no bearing on the charges of “unlawful retention of National Defense Information”. It’s put out there to confuse the weak minded and distract from serious crimes.
EW’s links to the indictments.
https://www.documentcloud.org/documents/23839636-230609-trump-indictment
https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.86.0.pdf
You don’t get to “question” the judge. You will see the questions when there is actually a trial.
I read to be mean a question to the group about how Cannon might rule over this question, not that they were intending someone to question Cannon over it.
Typo Tuesday:
“I read this to mean…”
If the First Amendment to the Constitution does not permit me to “question” what the trial judge will charge the jury with respect to the stolen documents TRumpster stole from the White House when he made his getaway may I question what a teal judge should charge the jury with respect to ownership of the documents???
Any hint that DOJ will move (with additional indictments) about the “why” of this whole affair?
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That’s one reason I did this post. To lay out the questions they were asking when.
They may need one or both of Nauta and De Oliveira to cooperate to move further though.
DoJ investigating the quid pro quo between a loyalty oath and cash paid for legal representation? Witness tampering is such a terrible charge to waste.
In both cases, yeah. It could be a free standing case that joins the two, since Trump is paying those lawyers with money raised for other purposes. So quid pro quo on top of fraud.
Which is why Trump’s financial filings yesterday are so interesting.
“Which is why Trump’s financial filings yesterday are so interesting.”
Which begs the question: Will this blatant Federal campaign finance law violation ever get some TLC? And would that be within the Jack Smith’s scope of investigations? Is the already-in-progress investigation of Save America PAC over their 2020 fundraising also within the SP’s scope, since it tangentially involves the “Big Lie”?
Let’s just hope that it isn’t left up to the Federal Election Commission to initiate anything: https://www.fec.gov/about/leadership-and-structure/
”
By law, no more than three Commissioners can represent the same political party, and at least four votes are required for any official Commission action. This structure was created to encourage nonpartisan decisions.
”
With 3D and 3R it’s kind of hard to see how the structure truly encourages nonpartisan decisions.
“Which is why Trump’s financial filings yesterday are so interesting.”
This was my LOL moment reading the WaPo article on that topic:
“Though Trump’s growing legal jeopardy has contributed to a strain on cash for the Save America PAC that has been handling many of his legal bills, that committee still found the funds to pay Melania Trump’s former stylist. The committee reported payments of $108,000 to designer Herve Pierre Braillard for “strategy consulting” during the first six months of this year.”
Melania: Pay my stylist.
Donald: Piss off. You are a fly buzzing in my ear. I have a shit-ton of other problems.
Melania: Fine. I will talk to…
Donald: Ok! Ok! It’ll come out of the PAC.
Melania: When?
Donald: As soon as I have a minion account for it. Probably use the usual “consulting” something or other.
Melania: Good. And I need a new car.
Donald: What?
Melania: And a driver.
I’d agree in concept but firmly tying the quid to the pro quo will be difficult. Even with Ms. Hutchinson we only have a he-said she-said connection that will not be enough to sustain a prosecution even though it confirmed what we were expecting. I’m not sure what it would take short of signed memos but perhaps our crack legal minds could enlighten us.
The pattern can establish the linkage between Hutchinson and Employee 4’s experience but I’m sure there are rules to follow to make the link.
It might be easier to go after the lawyers’ representation and I would suspect that would require the witnesses to file malpractice claims to the relevant bar.
Different concepts.
Complaints to the bar to which a lawyer is admitted would be based on violations of the canons of ethics.
Malpractice would be the basis for a damages action that an aggrieved client would bring in court.
Claims of conflict in representation can be made in the case being tried and can result in the court disqualifying an attorney from continuing to represent a particular client.
The same set of facts can implicate all three concepts.
Thanks much for parsing those concepts out.
Personally I’m not worried about exhaustively charging Trump with everything thing that could be charged, or even everything that would result in a likely conviction. Not that my priorities matter a whit, but I see this as being the most relevant things that need to be accomplished:
1. Peeling potential cooperators away from Trump’s conflicted bulwark of attorneys, in order to facilitate…
2. Obtaining a conviction on any charges that would bar future office-holding, and…
3. Obtaining additional convictions of the core enablers and supporters who have helped build and sustain Trump’s corrupt influence.
IMO you can remove Trump as an individual threat to democratic institutions and still fail to protect the long-term health of the nation if the population of grifters are allowed to find new personalities to attach themselves to.
No reason to spare Trump from any legitimate investigation, but I’m more interested in how witness tampering investigations can lead to secondary prosecutions and/or disbarments.
“Obtaining a conviction on any charges that would bar future office-holding”
It’s not clear to me – and, I gather, to a number of specialists on the topic – that any statutory bar to holding future federal office would pass constitutional muster.
I don’t know what sort of prior precedent exists on the topic, and I don’t know that the current SCOTUS would care about any prior precedents anyway, but if it’s an available remedy in the applicable statutes I think it needs to be pursued.
I believe a conviction on insurrection or incitement of insurrection does, since the 14th amendment specifically bars those who engage in insurrection or rebellion from holding office… Other than that, no, I think you are correct.
I believe one of the charges in the target letter Trump received over the Jan 6 investigation… I don’t remember the name of it, but it’s the Reconstruction era one that covers depriving people of their vote… THAT one also includes the prohibition as well.
Let’s not confuse the political system’s job related to Trump and the GOP’s threat to democracy and governance with Jack Smith’s job of investigating and prosecuting crimes.
Right. I don’t want Smith or anyone in government making political considerations part of their investigative process or their prosecutorial decisions. At the same time I still worry about the criming of unelected operators who enrich themselves at the expense of democracy. To the extent that a dispassionate upholding of the rule of law brings those individuals to justice as well, I’m grateful.
Yesterday I noted De Oliveira’s NY lawyer, John Irving, being quite reticent so far with regard to proclamations of his client’s innocence, juxtaposed with Carlos’ conspicuous position as an inner-circle-outsider. I’m wondering if there isn’t some intention on his part to look out for someone else’s interest other than “the boss’?”
Irving’s comments following the superseding indictment so far have only been about their search for a FL atty and declining to comment as to whether his client has been asked to testify against Trump — as far as I’ve seen. I’m hoping that just “looking for a FL atty” is wishful thinking on Irving’s part and that the search is De Oliveira’s alone, and broader: for a non-Trump atty.
https://www.staradvertiser.com/2023/07/31/breaking-news/mar-a-lago-manager-makes-court-appearance-in-classified-documents-case/
https://www.cnn.com/2023/07/28/politics/trump-maralago-indictment-carlos-de-oliveira/index.html
And here’s a tweet of a media scrum around Irving and De Oliveira outside of the courthouse with Irving’s reticence on display. The body language is very interesting, both the lawyer’s and client’s.
https://twitter.com/GlennaWPLG/status/1686040919529734144
Irving is in limbo and his reticence is necessary. Even his application for admission PHV should have been submitted electronically through a local SDFL-admitted lawyer. If there is no such locally admitted lawyer representing De Oliveira, Irving’s representation is tentative. That’s one reason De Oliveira deferred his plea.
I didn’t realize that phv was necessary in order to advocate for a client outside the courtroom post-indictment.
Argumentative. It’s easier for Alina Habba to make unsupported pubic statements about a case where she’s no longer representing Trump. That’s PR, not lawyering. Not so easy when the subject is a matter for which you are or are asking to be an attorney of record.
“The pattern can establish the linkage between Hutchinson and Employee 4’s experience but I’m sure there are rules to follow to make the link.”
Your statement reminds me of something else we learned:
During Cassidy Hutchinson’s testimony she mentioned a WH friend who gave her some advice about trying to get a lawyer. I’m not sure now, but I think that friend may have been Hayley (née D’Antuono) Harrison. Hayley married Beau, who Cassidy mentioned in her testimony.
Hayley works for Melania and Beau works (or worked?) for Trump. But, the point I’m trying to make is that ABC reported that Hayley Harrison is Trump Employee 1 in the first indictment. So, hopefully, Hayley has been more forthcoming than Walt and Carlos.
IIRC, Cassidy Hutchison reached out to Alyssa Farrah after Hutchison was concerned her Trump-paid-for attorney wasn’t giving her the best legal advice. Farrah then either connected her directly to Liz Cheney, who provided recommendations for a new attorney, or Farrah herself provided the recommendations.
Now that the pool guy has been added in the superseding indictment, I wonder if we’ll see Kato Kaelin appear as an expert witness at the trial. 👍
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Ha. He’s their Gazoo…
(Personally I’d like to see Ethel Rosenberg from Angels In America make a cameo somewhere. “Roy…you don’t look so good…”)
Trump certainly does keep the lawyers busy; lots of interleaved representations there. And there’s more! Witness this, from Law 360 today: “A group of attorneys who defended several U.S. Capitol rioters benefited from a report on the local jury pool and cannot escape a lawsuit alleging they never paid a $30,000 fee to use the study, the company that produced the report has told a D.C. federal court. Texas-based In Lux Research mounted that argument Friday in response to several motions to dismiss filed in recent weeks by the individual criminal defense attorneys, including Norman A. Pattis, who is also representing far-right conspiracy theorist Alex Jones in unrelated litigation. In Lux says it produced a study that the attorneys used to move, unsuccessfully, for a change of venue out of Washington, D.C., in their clients’ trials.”
I surmise that these types of cases are not in the hornbooks.
Marcy,
Want to thank you for making the point of amending your post to include additional explanatory language about 302s. I didn’t know what a 302 was until I started reading EW back in the Manafort trial days. While I’m sure experienced eyes may feel that those sorts of explanatory notes can be tiresome if seen over and over again, there’s always going to be someone new dropping in and demystifying jargon for the novices is always a valuable step.
Rather than ask her to write a post to suit your needs, it might be easier if you asked specific questions in comments, to which Marcy and others could respond.
Her updated text in this post wasn’t for my benefit specifically. I’ve learned enough at this point that I didn’t need the additional explanation. I just wanted to express my gratitude to her for noticing those kinds of questions when they arise and responding. We often credit Marcy for her exceptional insight and reasoning but clarity and accessibility are also praiseworthy.
“As I’ve noted, the video showing De Oliveira and Nauta in the bushes might well have come from a different property owner.”
The different property owner (Silvi) at 136 Woodbridge appears to have leased the property to the GSA, at least part of the time Trump was in office (9/1/18-8/31/19.)
I don’t know if this lease was continued after that. But I do wonder who the occupants were and if the GSA had surveillance cameras installed.
“Lease Amendment 1 – ADDRESS OF PREMISES: 136 Woodbridge Road. Palm Beach, FL 33480.”
https://www.gsa.gov/system/files/LFL00591_LA01_Redacted.pdf
Huh. That’s interesting. Wonder how many leases GSA made of properties owned by Trump org besides space needed for Secret Service in Trump Tower and old DC post office. One more possible reason why GSA administrator Emily Murphy didn’t want to turn over $$ to transition team.
An interesting new aspect as to what was the exact place of “the bushes on the northern edge of The Mar-a-Lago Club property” through which De Oliveira went to meet with Nauta. The superseding indictment says only “the adjacent property.” But since Mar-a-Lago’s northern edge stretches the whole island from East to West, there are several properties bordering, the most Eastern belonging to Trump companies, and one to Trump personally. I mentioned that already yesterday in a different thread (https://www.emptywheel.net/2023/07/31/how-trump-clouded-journalists-heads-about-surveillance-video/#comment-1005652).
I don’t think it matters right now though. We’ll learn when the government will present their evidence at trial.
Cue eventual right wing freakout over GSA-leased cameras at neighboring property “spying” on Trump’s capos.
Either FISA warrant approved or Five Eyes, take your pick.
At least I hope so.
[Insert my usual weary complaints about 302s here.]
Question for the lawyers: How common is “a conflict review instigated by a judge”, and what triggered one in this particular case? I get that Taveras decided to be more cooperative after he got his target letter, but I thought target letters were largely a “shot across the bow” from prosecutors. I didn’t think a judge needed to sign off on them. So how and why did the judge get involved at this particular point? Wouldn’t someone else have to have done something to get the judge involved?
(I’m not asking if there WAS a conflict. That’s pretty obvious. I just don’t understand how and why a judge would step in at this particular point in the process.)
Could this be part of a wiretap-recording a live digital feed?
My guess is a subpoena issued to the cloud storage provider, possibly after an earlier preservation (and gag) order.