Judge Cannon Blows Off Concerns about Walt Nauta’s Conflicted Representation

Before I attempt to explain the substance of the order that Aileen Cannon issued in response to DOJ’s request for a Garcia hearing, let me point out how it looks on the docket.

Before DOJ filed its motion for a hearing on potential conflicts, it tried to submit something under seal in dockets 95 and 96 — probably details on the two other witnesses whose representation by Stan Woodward may present a conflict. Judge Cannon said the government hadn’t provided sufficient reason to seal, and so ordered the request, and the sealed information, to be struck.

Simultaneously, the Special Counsel moves for leave [ECF No. 95] to file under seal a “Supplement” containing additional information “to facilitate the Court’s inquiry” [ECF No. 96; see ECF No. 97 p. 2 n.2, p. 6]. The Special Counsel states in conclusory terms that the supplement should be sealed from public view “to comport with grand jury secrecy,” but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.

2. The Special Counsel’s motion for leave to file under seal [ECF No. 95] is DENIED.

3. The Clerk is directed to STRIKE from the docket sealed entries 95 and 96.

Before her order, there were two more docket entries missing — numbers 98 and 99. I’m not familiar enough with SDFL’s docketing rules to understand whether there’s something under seal in those dockets or not, but there could be. Perhaps Stan Woodward submitted something?

Then there’s Cannon’s order. Rather than scheduling a Garcia hearing to see whether Woodward can adequately represent Nauta going forward, she instead ordered briefing — adding two more weeks of delay, but more importantly, delaying the question of whether Woodward can represent Nauta without conflict.

Her order for briefing focuses primarily on something else: whether DOJ was pulling a fast one by using a non-SDFL grand jury to pursue matters pertinent to the SDFL matter before her.

Waltine Nauta shall file a response to the Motion for a Garcia hearing [ECF No. 97] on or before August 17, 2023. Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023. The remaining Defendants may, but are not required to, file briefs of their own related to the grand jury issue referenced herein, but any such briefs are due by August 17, 2023, and may be submitted in combined or individual fashion.

1 This request for supplemental briefing is not intended to substitute and/or to limit any future motion brought pursuant to Fed. R. Crim. P. 12(b). [my emphasis]

Contrary to some commentary on this, Cannon did not disclose the continued activity in the DC grand jury (bolded above). That was made clear both in DOJ’s motion for a Garcia hearing and in other materials.

The grand jury in this district and a grand jury in the District of Columbia continued to investigate further obstructive activity, and a superseding indictment was returned on July 27, 2023.

Woodward and Trump’s lawyers have been outspoken that they intend to question whether DOJ should have investigated this from the start in DC, or whether it should always have been in SDFL supervised by SDFL’s chief judge.

That issue was frivolous: DOJ didn’t know when the investigation was predicated where potential crimes happened.

This may be frivolous too. After all, most witnesses who testified before May testified in DC. So if one of them committed perjury, they would have to clean that up in DC (and that may be what happened with Taveras, either on his own or as part of a plea agreement).

But Cannon — perhaps prompted under seal by one of the defendants — seems intent on making it a big deal. And she made it clear that this set of briefing will be in addition to further motion practice, including motions complaining about misuse of a grand jury.

And it may well not be frivolous. DOJ is not permitted to use grand juries to continue to investigate an already charged crime. DOJ was explicit that it was not. It was investigating other kinds of obstruction. But we don’t know. And because Cannon struck DOJ’s sealed motion, she may have struck a perfectly reasonable explanation for all this, and instead left a sealed one from the defense.

This would be not dissimilar to a stunt Woodward pulled before Judge Trevor McFadden a few weeks ago, where he showed up late for Freddie Klein’s representations and — without prosecutors present — made accusations about what went down in a grand jury session that day with another of his clients.

The thing that matters in the short term, though, is Cannon seems to have no interest in walking Nauta through ways that Woodward’s continued representation of him may be a problem. And whatever other inquiry she may feels is necessary — whether frivolous or meritorious — she is causing at least two more weeks of delay before she’ll deal with that potential conflict.

253 replies
  1. John Paul Jones says:

    The unanswerable question is whether she does this stuff to create pretexts for delay, but as with the delay last year, Cannon seems to always start from a position that the government is not to be trusted, that they are always trying to pull a fast one. It’s just as foolish as starting from the assumption that all prosecutors and their cases are righteous.

      • BRUCE F COLE says:

        Another appeal in the offing? What will Pryor countenance?
        Another question: in the event of an appeal, what is the mechanism for the 3 judge pane to be chosen? Is it atypical like the 11th’s jury pool size is?

        • joeff53 says:

          Appellate panels are supposed to be chosen randomly unless the appeal is in a case related to a previous appeal. Motion panels are usually set on a rotating basis and hear whatever comes before them when they’re on duty.
          A dismissal by Cannon offers at least the possibility that an appellate panel would say “basta” and reassign case.

          • bmaz says:

            “A dismissal”, eh Joe? Have you yet seen a “dismissal” Joe?

            A few people here are so far out over their skis, they are off the planet of criminal law sanity.

        • BRUCE F COLE says:

          This is about Garcia, in case you’re reading Marcy’s “pretext for dismissal” in the larger sense.

            • SteveBev says:

              The pretext EW points to is the issue flagged by Cannon: the propriety of using the DC grand jury to continue to investigate.

              The Defendants are likely to jump at the opportunity to make mischief over this in the hope of construing the prosecution actions in a way which create grounds for dismissal

              That was my reading of it FWIW

              • Kick the Darkness says:

                And if she were to so construe, and dismissed with prejudice that would then be the end of the documents case, right? But it is all kind of confusing. I mean, I didn’t think superseding indictments were all that uncommon. So is it just that you can’t use information gleaned from a grand jury to bring additional charges-all that was supposed to be baked in at the beginning?

                • earlofhuntingdon says:

                  You left out that DoJ is more than likely to appeal to the 11th Cir. any attempted dismissal of the Florida docs case, with or without prejudice.

                  • Kick the Darkness says:

                    Ah, thanks Earl. I didn’t leave it out so much as not know that a dismissal could be appealed. But am glad to hear it-will help temper the verses of Alice’s Restaurant that started going off in my head.

                  • earlofhuntingdon says:

                    Technically, Cannon would be dismissing the indictment, which is appealable to the 11th Cir.

        • 2Cats2Furious says:

          I’m not Marcy, but I believe she is referring to the portions of Cannon’s order specifically requesting briefings on the “legal propriety” of continuing to use a DC grand jury to investigate matters that may be related to the SDFL documents case currently pending.

          Cannon goes on to state that this request for supplemental briefing will not impact “any future motion brought pursuant to Fed. R. Crim. P. 12(b).”

          I believe the gap in your understanding is that the above-referenced rule refers to motions to dismiss brought by the defendants on various legal grounds, which may include “an error in the grand jury proceeding.” In other words, Cannon may be trying to steer the defendants to filing a motion to dismiss based on the DOJ’s use of a DC grand jury.

          Link to the rule below.


          • Unabogie says:

            I continue to be shocked that it’s not out of the realm of possibility that this sorry excuse for a judge would dismiss a case this cut and dried, about a crime so serious, because of her nutty politics.

            But I guess we’ll see.

            • 2Cats2Furious says:

              I am by no means suggesting that Cannon is looking for a way to dismiss the case, but I find the language of her order deeply troubling. This isn’t the first time she’s directed Trump to brief a particular issue (she did so in the prior Special Master case), thus providing guidance to his counsel on how to achieve his goals. And the specific reference to Criminal Rule 12(b) is even more disturbing, because it suggests she would entertain a motion to dismiss on those grounds.

              I will note that not all successful 12(b) motions to dismiss are required to be dismissed “with prejudice,” and I also believe the DOJ can still appeal such dismissals to the 11th Circuit because there would be no jeopardy attached. Frankly, if Cannon pulled a maneuver like this, it would be the best grounds for her recusal, although the attendant delay would certainly be beneficial to Trump.

              • bmaz says:

                So, common judicial language is now a cause for CONCERN? That is where the discourse is because Trump?

            • bmaz says:

              Tell me, would you, or anybody else here, have ever even heard of Aileen Cannon but for that one random civil case? Do you have ANYTHING on her other that that one stupid little civil case?

              • Unabogie says:

                Would you, or anybody else here, have even heard of Charles Manson but for one random murder in the 1960s? This is a silly point.

                We can look at several pieces of evidence to assume the worst about Cannon.
                1. She’s one of Leonard Leo’s handpicked gang.
                2. Trump was given her name with assurances she was one of them.
                3. She behaved in a manner so egregiously biased that even other conservative judges were shocked.
                4. In this order, she is expressing unearned skepticism to the case, and giving unearned benefit of the doubt to known liars. It’s bizarre.

                So although I only learned about her last year, I know enough to view her with suspicion.

                • bmaz says:

                  “Would you, or anybody else here, have even heard of Charles Manson but for one random murder in the 1960s? This is a silly point.”

                  Yes, I absolutely would have.

                  There are are a LOT of Len Leo appointees. Elections and judicial policy matter. Another thing I have been carping about forever.

          • BRUCE F COLE says:

            Thanks. I did gloss that. Overly fixated on Garcia, I guess. My perseveration and sloppy reading aside, Cannon’s tossing the “alien GJ” objection into her dismissive Garcia response smacks of advocacy, imo, of the kind that she exhibited when running with the defence’s bogus “equitable and ancillary jurisdiction” brief, which she actually solicited from them because she couldn’t come up with a jurisdictional basis on her own in that ludicrous pre-indictment SM order (see pages 8 and 9 of the Appellate slapdown order).

            So similarly here, as you say, she appears to be steering the defendant Nauta (whose lawyer Woodward is clearly conflicted in this case, to which she says “Meh”) to push for a dismissal that defense has been publicly whining about and that she’s seemingly honed in on. In that sense, we should probably expect him to give her as sloppy a dismissal justification as Jim Trusty’s hail-mary equitable jurisdiction rationale was — and for her to buy it hook line and sinker.

            A short time will tell.

        • vinniegambone says:

          Pure Rat- fuckery.
          Future supreme court nominee, if, may all the God’s forbid.
          ” Oh, she’s fine so far.”
          And now ?

  2. thorvold says:

    Courtlistener has number 98 as:
    WAIVER of Personal Appearance at Arraignment and Entry of Plea of Not Guilty by Donald J. Trump (Kise, Christopher) (Entered: 08/04/2023)
    but it does not have a link to the document itself (probably because no-one has uploaded it to RECAP)

  3. Former AFPD says:

    I went and looked at the docket to see the actual order and review the course of the recent pleadings. To me, it appeared as though the court spanked the prosecutors and turned a blind eye to the allegations of defense counsel conflict of interest. A judge can initiate an inquiry into conflicts of interest on their own – sua sponte. Judge Cannon has been alerted to the potential conflicts of interest. She could have still held a hearing, even an in camera hearing, on the conflicts. Instead, it appears she is allowing the potential conflicts to smolder while other briefing takes place.

    • subtropolis says:

      That’s my take as well. I’ve been willing to give her the benefit of the doubt up to now but this latest has me strongly questioning that. Obviously, there’s a lot that i don’t know about what’s going on with DC but i have to wonder how much Judge Cannon herself understands. It seems to me that Smith et al have been properly dealing with the venue issue.

      • bmaz says:

        Have you thought twice about this: “Smith et al have been properly dealing with the venue issue.”

        Really? Based on what? From what I have seen, Smith and his teams’ venue/jurisdiction decisions/arguments have been mired in mud and bullshit.

        • DaveVnAz says:

          Isn’t this the 2nd time the SC has had it’s argument thrown back back Cannon as lacking in substantive (enough) detail in an initial pleading?

        • vinniegambone says:

          Love to hear your take on how DOJ should have proceeded because i have put all my faith in them based on they are all we have to defeat this monstrous disease. Seriously, what should they have done. What do you suggest they do now ?
          I’m not a lawyer. Im merely a stupid citizen scared shitless this fuck will survive. If you have some advice, seriously, sincerely tell us the best path forward , cause now you have me frightened. Thank you.

      • wasD4v1d says:

        I think it’s a legitimately question to be asked. Not why a different grand jury, probably not to have information cross-pollinating correlated prosecutions, but why DC as opposed to the next nearest FL district? I don’t think any judge will dispute the notion that prosecution and defense look to gain the strongest possible footing beneath their case and seek clarification of mysterious moves. If she sees DC as dubious, I can understand why.

        • Ravenclaw says:

          Why DC in the first place? Here’s a guess. The documents in question were allegedly stolen from DC. The Archives, which entity repeatedly requested their return, are also in the DC area. The fact that the trail led to Florida doesn’t change that. It could just as well have led to New Jersey, New York, or nowhere at all.

          • wasD4v1d says:

            Yes – but I don’t think ‘theft’ is what is charged, at least in Nauta’s case (yet). Obstruction is. I can see why Judge Cannon would like an explanation… and perhaps why she might not like that explanation.

  4. timbozone says:

    It would be foolish of Nauta not to have consulted another attorney about potential conflicts involved in the current Trump PAC/campaign funded arrangement. If there were, hypothetically, such outside counsel consultations having occurred or ongoing, there might be no easy way to know about that, not until Nauta or his attorney of record with the court make reference to such, correct?

    • earlofhuntingdon says:

      Unfortunately for Nauta, any approach he might make to alternative counsel might leak, which would imperil Trump’s sense of his loyalty and his interest in paying for Nauta’s lawyer.

  5. earlofhuntingdon says:

    Pity that Cannon didn’t put the Garcia hearing on a parallel track with her review of whether the DoJ was abusing an out-of-district grand jury in connection her trial. The latter issue will almost certainly find its way to the 11th Cir., sooner rather than later, causing further delay. The propriety of Woodward’s representation of Nauta implicates everything he does for him.

  6. Chris Bellomy says:

    As long as she keeps conveying to the defendants that she will let them play the delay game, she also keeps standing in the way of a plea deal.

    She must recuse.

    • earlofhuntingdon says:

      Fat chance of either recusal or a plea. Nauta might take a plea, but not with Woodward on board.

      • Chris Bellomy says:

        Certainly there’s little chance of a deal while Trump still thinks he can dodge conviction.

        But what happens when he figures out that he can’t?

        Cannon is happy to push that reckoning as far into the future as possible, seemingly. And the entire country pays for it.

        • earlofhuntingdon says:

          Trump will never figure that out.

          His current schtick seems not to be based on rational analysis of his legal jeopardy. He seems to have decided on a political strategy, instead. That involves managing the outrage of his base, and attempting to win the nomination or the presidency, and get a pardon from himself or the Republican winner.

          • CaptainCondorcet says:

            100% yes, and this cannot be underestimated. Everything he is doing and seemingly directing his lawyers to do has a political explanation that is as powerful or more powerful at explaining conduct than a legal explanation. Crank it up to 11 when you consider the possibility that even a mistrial is arguably a political victory given the impediments when considering whether to try him again, regardless of how airtight the case is. And we haven’t even gotten to the primaries yet.

            It’s fitting that he is with near certainty attempting to circumvent the entire judicial process when one of his cases involves charges that he attempted to subvert constitutional processes. It is also evident that all of his R primary opponents have implicitly or explicitly endorsed this strategy. When you take this conduct alongside Alabama’s joke of a new map for Congressional districts and other lower-profile actions, there starts to be a concerning narrative that the Republican establishment views November 2024 as a “last stand” of sorts. And last stands are rarely known for being tame…

            • CovariantTensor says:

              “Crank it up to 11 when you consider the possibility that even a mistrial is arguably a political victory given the impediments when considering whether to try him again…”

              If one juror declines to vote for conviction, Trump will call it “exoneration”.

          • Robot-seventeen says:

            He won’t need a pardon. I believe all he or the Republican winner has to do is direct the AG to drop any appeal. No controversy over whether he can pardon himself that way.

              • fatvegan000 says:

                Just timidly putting my toe in the water here:

                I don’t have any expertise, but were Trump to be convicted and sentenced to prison in a state case, and then the worst case scenario happens and Trump gets re-elected, couldn’t his AG put Trump’s sentence on hold for the entire time is in office?

                • Robot-seventeen says:

                  My timid reply (IANAL):

                  My suspicion is a Matt Whitaker type AG could just respond to any appeal (which will be forthcoming) by dropping it thereby terminating the prosecution. No confusion as to whether he can pardon himself or whatever. Keep in mind I find it highly unlikely he’ll win a general election. If a Republican other than Trump is the nom it’s very likely we’ll hear a “for the good of the country” pardon.

                • Robot-seventeen says:

                  Sorry – it’s early for me and I didn’t see the state. Somehow the edit button had vanished??

                • Robot-seventeen says:

                  I don’t think anyone knows. I doubt the AG can override the findings of a state court though. Dunno.

  7. scroogemcduck says:

    I’ve seen enough to form an opinion that there is no chance of this prosecution getting to a jury verdict before the November 2024 election.

    DC is where the action will be.

    • drhester says:

      I had exactly the same thought. And I’m grateful that the D.C. case may have that role. I don’t know enough law to comment on her actions and am grateful for the legal eagles here that enlighten me.

    • Mister Sterling says:

      Precisely. The moment Smith added Nauta to this case, he was conceding that this case will take years. DC will not. He will probably ask for a November date there in the hopes the judge rules that jury selection will begin after New Year’s Day. The DC trial should conclude beforre the election and I am bullish that it will.

  8. Rugger_9 says:

    Foolish or not, doesn’t this failure to consider Woodward’s conflicts create a point for appeal if things go poorly for Nauta? After all, it was Cannon’s decision and appeals courts exist to correct trial judge errors in procedure.

    • emptywheel says:

      If Nauta goes to trial with conflicted counsel it creates the basis for mistrial — rightly so.

      • Rugger_9 says:

        All the more reason for SC Smith to modularize the prosecution and keep the current DC case as streamlined as it is.

        • bmaz says:

          It should have all been thus. But, noooooo, everybody wanted maximized BS. Because it gave them jollies. There was, and is, a smarter way to do it all.

            • bmaz says:

              You would be surprised at how many I have met, and/or known on the internet for a very long time. Don’t make assumptions you have no clue about.

                • bmaz says:

                  I did nor “steal your point”. But, maybe, someday you and I will actually meet. I would like that I think.

          • obsessed says:

            There was, and is, a smarter way to do it all.

            [I’m not arguing one way or the other – just trying to follow along.] So you (bmaz) are saying that the smarter way to do it all would have been to bring the case in DC, and the venue justification for doing so would be that the first criminal act in the documents matter was illegally taking the documents from DC, so–even though you’re only charging crimes that were committed in SDFL–they’re all sort of fruits of the same criminal tree?

            • Ravenclaw says:

              IIRC, That’s what he was saying right along, as in, for some months before the indictment.

  9. massappeal says:

    Years ago among NBA fans there was an ongoing debate–fueled by periodic plays over the years–about whether perennial All-Star Dwyane Wade was a “dirty player”. My position was that I wasn’t calling Wade a dirty player…but that that was a dirty play.

    Likewise, I’m not saying Judge Cannon is biased in favor of Trump…I’m just saying that this ruling is the kind of ruling a judge biased towards Trump would make.

    • Seamus_07AUG2023_1705h says:

      In her case, bias toward the former president seems to operate with all the subtlety and unpredictability of gravity near a neutron star.

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    • P J Evans says:

      I’ve seen suggestions that her loyalty is to the GOP (and the Federalist Society), not to the former guy. But they may look alike for a while.

      • earlofhuntingdon says:

        I appreciate the distinction, but in practice, it seems to have as little utility as wondering whether Bill Barr was pro-GOP, pro-unrestrained executive branch power, or pro-Trump. He was probably all three, at least for the duration of his time at Trump’s DoJ.

        Do I suspect that Cannon is in the tank? Yes. Her bias toward Trump in the case last year was an expression of commitment, not of accident or inexperience, or an attempt to show a lack of bias.

        Has she sufficiently demonstrated that bias? No. This order provides an inkling of where she might go. But she hasn’t gone there yet.

  10. Konny_2022 says:

    There are several URLs provided by Courtlistener in this case. https:// www. courtlistener. com/ docket/67490069/united-states-v-trump/ seems most complete (as of now), including also docket numbers 98 and 99. (Link interspersed by blanks, although I think a link to courtlistener would bei ok, not?)

  11. introbang says:

    If a bank is robbed in DC and the robber flees to Florida with the loot, and is then caught in Florida – where would the trial be: DC (the scene of the crime), or Florida (the site of apprehension)? I do not understand why this trial is in Florida when the alleged crime was in DC.

    • scroogemcduck says:

      If the files were moved to Florida while Trump was President, there would be no initial robbery in DC under your analogy. The original crime would be the retention in Florida.

      • Rugger_9 says:

        Indeed. Until we know for certain the docs were moved after 20 JAN 2021 at noon, where they were found would be operative, I think, especially considering that the NARA requests were sent to FL and IIRC made no claim of post 20 JAN 2021 removal from DC.

        • earlofhuntingdon says:

          Trump could have committed crimes during his presidency, but under that untested Nixon-era OLC opinion, he couldn’t be indicted for them while president.

          • emptywheel says:

            He has been charged for crimes committed during his presidency in the Jan6 indictment.

            It really does come back to the fact that until noon on January 20, he had legal possession of those documents and THUS FAR no one has presented proof that he knew at 12:01PM on January 20 what documents he had in his possession.

            Somehow everyone has forgotten mens rea.

            • Fl Resister says:

              Failure to return the documents, compounded with willfully hiding them is a cartoonish prank with serious consequences that don’t appear to have occurred to Donald Trump, yet.

        • Operandi says:

          Given “willfulness” is an element of the retention crime, there may even be scenarios where a move after Jan 20 of docs out of DC would be noncriminal. If, say, during the mad rush of post coup failure packing, aides were sweeping full stacks of papers off desks into boxes, without checking for TS docs hidden in them.

          The criming only seems to start when Trump becomes aware the docs are in his possession and then continues to retain them. And we haven’t seen firm evidence that he had-to-have known he possessed these docs until well after he was ensconced in MAL.

          • FL Resister says:

            Sure. Sure. The Beautiful Mind boxes he slathered over like a Gollum and carted around everywhere with him.

            • wistlo says:

              I often wonder about ME (and tens of thousands of others who at some time have had clearances). In every case I could have been in jail or at the very least banished from ever working for the government again, ever.

              If I tried to test the courtesy and tolerance of the archive owning the documents, jail would be a certainty.

              All this gives perspective on just how much damage this guy has done to precedents, both legal and political.

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    • Scott_in_MI says:

      According to the indictment, the alleged crime is Trump’s willful retention of the documents and failure to render them to a representative of the government. That conduct occurred in FL, not DC. Imagine that your bank robber was charged not with robbing the bank, but with failing to give back the money when asked.

          • bmaz says:

            Lol If there was improper retention, it started in DC. If you can’t figure that out without “citation” this is a stupid discussion. So, no, there is no “citation needed”.

            • Shadowalker says:

              Not to mention the subpoena that was obstructed originated from the DC grand jury as a part of its investigation.

            • bmaz says:

              Let’s look at this from another perspective “Scott”.

              Were any such documents complained of Trump’s personal papers as opposed to government documents an/or NDI?


              Then the initial removal was the original crime. Because they later move along the eastern corridor down to Mar-a-Lago does not change the original offense.

              Also, too, who exactly is it you think the “victim” is of any putative crime? Some jackass in SDFL, or the actual people of the US, who are sited in Washington DC?

              I’ll be waiting.

          • bmaz says:

            No, “Scott” is not right, irrespective of what you wrote two months ago. And, yes, I really do think the spree started at the White House exit, and am just fine thinking the same. So, I CAN quite easily think that. And allege it. And do. I am good with where I am at, thanks. But understand you and “Scott” think different.

            • iamevets says:

              Help! the parents are fighting and can’t agree on a pretty major point. Bmaz or emptywheel? Who do i believe when i trust them both?

              I come for clarity but am now confused.

              • Kristen_D62 says:

                I think both are right because what is still undecided is the *Nixon* conundrum (it’s not illegal if the president does it). Until then, they’re both right.

                • BrokenPromises says:

                  For me there is no such conundrum. If it’s illegal it’s illegal. Status of office has nothing to do with it. That conundrum was created by involved parties busy breaking their promise, the promise to uphold the constitution and follow the rule of law on the premise of ‘No man is above the law’. We are where we are today because that broken promise happened oh so long ago. I have understood it this way all that time. For me the opinion of legal council was and remains bull shit as Bmaz likes to say.
                  Let me explain my simple logic. If a president is incapacitated (in a coma) or dead the VP takes command. The govt goes on. Ergo the idea that a President cannot function if there is a case against him/her is just ludicrous.

                • BrokenPromises says:

                  For me there is no conundrum. If it’s illegal it’s illegal. I view the office of legal counsel opinion to be a broken promise, the promise to uphold the constitution and follow the rule of law. That means that no one is above the law. If a president is unable to perform his/her duties then the VP steps in. Coma death and yes for me indictment for major crime can be cause for that to occur. On the other hand if a POTUS can campaign then a POTUS can confer with lawyers for a case. But I don’t accept that we ignore clear evidence (Nixon is the perfect example) for a political stasis. The tools for governance continuing are in place.

            • emptywheel says:

              We don’t THINK differently.

              We are dealing with the law, as written, rather than your invented “spree” bc you’re sure you know better than Jack Smith.

              This was not charged as a conspiracy to steal classified docs, a “spree.” It was written as a 793 case, in which case, particularly for an ex-President, ONLY the refusing to give it back matters. As far as alleged, that ONLY happened in SDFL, no matter how you and Andrew Weissmann might like to invent facts to avoid inconvenient details.

              • 2Cats2Furious says:

                THIS. I don’t think I’ve seen any evidence as to when Trump’s “beautiful mind boxes” were shipped down to Mar-a-Lago. If they were sent down on 1/19/2021, then he still had the right to them as President. The unlawful retention would only begin at 12:01 PM on 1/20/2021, meaning the crime started and continued in SDFL.

                For all the times bmaz criticizes folks for assuming facts not in evidence, he seems perfectly happy to assume -without evidence – that this was a crime thought up and executed in DC,

                • Kristen_D62 says:

                  I kind of think this conspiracy (and all the rest of Trump’s president-related crimes) likely was thought up in DC. Probably in NY, actually, when Trump was calculating how and why running for the presidency would be personally lucrative even if it destroyed democracy. That’s my opinion, based on who he’s shown himself to be.

                  So in that vein, I totally think bmaz is right. But as Marcy and earlofhuntington make clear, the charge is not about the conspiracy (on this case, anyway), but about the not-returning-them-when-asked. And he was asked after he was in FL. So they are both right, so long as the Nixon era OLC is the precedent.

                • Rayne says:

                  Wrapping document boxes in plastic and bundling them on pallets after leaving office and shipping them to FL says a lot about intent.

                  ADDER: There’s a difference between when Trump’s crimes related to presidential records and classified information began and which crimes were charged. bmaz is arguing about the crimes beginning in DC. Special Counsel cut Trump slack by charging the crimes which occurred in FL. When Trump launches a DARVO whine-fest complaining he’s being abused, he conveniently ignores the slack he’s been cut.

                  • emptywheel says:

                    No, Jack Smith didn’t, Rayne.

                    You have to prove willful retention. EVEN THE INDICTMENT makes it clear that Trump always just threw shit together in boxes and then staffers took the boxes away with classified docs intermixed.

                    You’re both simply misrepresenting the indictment and the law.

                    Until such time as he can prove that what WENT INTO the boxes in DC was curated — and I suspect he can’t get there w/o Nauta cooperating — no crime as charged was committed in DC, bc you have no evidence of WILLFUL RETENTION until after NARA started asking for it back.

                    It’s like bmaz now thinks mens rea is just a law school question.

                    • bmaz says:

                      Yes, Smith did exactly that, and so did Garland before him. Also, lol, you are gonna school me up on criminal intent, i.e. mens rea? Lol again.

                    • Kristen_D62 says:

                      “Until such time as he can prove that what WENT INTO the boxes in DC was curated — and I suspect he can’t get there w/o Nauta cooperating — no crime as charged was committed in DC, bc you have no evidence of WILLFUL RETENTION until after NARA started asking for it back.”

                      Thank you. This clears it up for me.

              • bmaz says:

                Lol, sure Jan. We “do” think differently. And I have nothing whatsoever to do with Andrew Weissmann, that was just a gratuitous slur. I hope you would have known that since the Enron Task Force, but maybe you are so caught up in this you can’t remember.

                • emptywheel says:

                  Sure. Well, there are a bunch of lawyers screaming without basic command of the facts.

                  You are, in this post, undoubtedly one of them. You don’t even know the time frame of the conspiracies!! You’ve simply eliminated the mens rea requirement.

                  I’m not CAUGHT UP. I’m trying to correct the errors of fact that you’re spewing, just like I do with Weissmann.

              • SteveBev says:

                With respect, may I tentatively offer this analysis

                “Refusal” to deliver the document is a term apt to confuse.

                In relation to offences contrary to 739(d)
                The retention etc elements are
                “willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it”

                Whereas for 739(e) the retention element is

                “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;”

                In relation to a charge under 739 (d) retention in the face of a demand requires proof

                Whereas in respect of charge contrary to 739(e) proof of a refusal to return is not required as an element of the offence, but is evidence of wilful retention and failure to return.

                Possession offences are by their nature continuing offences
                The 739 (e) have 3 conduct elements
                1 possession of, access to, or control over any document
                2 Retention
                3 Failure to deliver

                For permissible venue
                18 USC provides that it may be prosecuted in any district where it *begun continued or completed*

                Trumps assertion of control over the documents began in DC and even if the documents were in MAL prior to the end of his presidency he still had control over them via his servants or agents.

                If his purpose was to retain the documents after his Presidency (and his subsequent conduct is evidence that such was his intent)
                then he was taking preparatory steps to the commission of the offence (the offence had begun)

                At the moment he ceased to be President, his control continued he retained the documents, he failed to return the documents/ order their return, he was not authorised thereafter – the offence was complete, but the offence continued

                • bmaz says:

                  “For permissible venue
                  18 USC provides that it may be prosecuted in any district where it *begun continued or completed*”

                  Yes, that is 18 USC § 3237 (a), which reads in full:

                  “(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
                  Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.”

                  I have been saying this all along. It was a pre-Jack Smith error, and fool’s errand, for the Garland DOJ to have dabbled in SDFL to start with. But Smith continued the error by returning to SDFL when he did not have to. Both decisions were entirely elective bad calls. It did not have to be that way. The crime spree absolutely started in DC, and should have stayed in DC.

                  The “victim” is the United States Government (not just NARA), which, obviously, is sited in DC. These entirely elective decisions by DOJ originally, and now Smith, were bad decisions and unnecessary. And it has turned prosecuting Trump into a complete clusterfuck.

                  Smith’s SDFL indictments are not gospel in the least, in fact they were ill taken and ill advised (even if quite elegantly drafted). And that is before even getting to the ever expanding idiocy going on in one of the 159 local counties in Georgia. And now people are clamoring for even more state and local prosecutions.

                  You want to screw up prosecuting Trump? This is exactly how you do it.

                  • SteveBev says:

                    Thank you for correcting my omission of the section number, it had been my intention to include it.

                    It occurs to me that the language contrasting ‘begun’ ‘completed’ and ‘continued’ is quite striking – and more evidently so when the full provision is quoted as you have done.

                    It is clear that in any given continuing offence there maybe multiple choices of venue depending on the various locations of different steps within the entire course of conduct and result in a charge framed “ at Xyz in the district X and elsewhere “

                    Of course the points I sought to make were solely about the statutory interpretation ( based on first principles) : as for strategic and practical considerations of choice of venue I bow to those with actual knowledge and experience of relevant practice.

                • emptywheel says:


                  Your inaccurate representation of the law is fancier than bmaz’s but still wrong.

                  Like how in hell do you skip this word: “unauthorized”?

                  Or this one: “willfully”?

                  Now go back and try again as the law and the elements of offense are actually written, not as you’ve misrepresented them.

                  • SteveBev says:

                    With due respect I didn’t skip either “unauthorised” or “wilfully”

                    These are course of conduct offences.

                    Venue provision 18 USC 3273(a) contemplates appropriate venues include all the district where the conduct charged begun was completed and continued

                    The indictment paragraph 4 alleges

                    “ 4. At 12:00 p.m. on January 20. 202 1. TRUMP ceased to be president. As he departed
                    the White House, TRUMP caused scores of boxes, many of which contained classified documents,
                    to be transported to The Mar-a-Lago Club in Palm Beach, Florida, where he maintained his
                    residence. TRUMP was not authorized to possess or retain those classified documents.”

                    Having first alleged at para 2

                    2. Over the course of his presidency, TRUMP gathered newspapers, press clippings,
                    letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that
                    he kept in the White House. Among the materials TRUMP stored in his boxes were hundreds of
                    classified documents.“

                    Trumps wilful intent concerning the documents is evidence by his behaviour over the entire course of conduct.

                    He ceased to be authorised on 20 January.
                    Prior to that his conduct involved taking steps which would and did result in him being in unauthorised possession/ control of classified documents when he ceased to be President.

                    The subsequent conduct illuminates what his intent was at the outset.

                    Venue arises not from proof of all the elements having occurred with a particular district – otherwise why is there a contrast between begun and completed.

                    Moreover venue provision are the same for both investigation and charge. Which means suspicion of an offence based on conduct without proof of intent is sufficient if the course of conduct being investigated began in a particular district.

                    Trumps obligation to return the documents arose at the time he ceased to be authorised. But he failed to do so

                    So all the conduct requirements of the offence were complete at the time he ceased to be President.

                    His subsequent behaviour showed his overarching intention to keep and use the documents for his own purposes

                    • emptywheel says:


                      No. This is not a CIA officer or a private in the Army. That is not how the law applies to the President.

                      Those two paragraphs in fact show the OPPOSITE of what you think they do, even before (as you ignore) it doesn’t note when the boxes were shipped.

                    • scroogemcduck says:

                      Trump departed the White House shortly after 8am on the day he ceased to be President, according to breathless press reports, so he lawfully had possession of the documents for 4 hours, assuming he brought them with him that day and not at some point prior. After noon, he had no right to possession of them, but he would need to know that he had them to wilfully retain them. If he found them weeks later, was horrified to discover them and immediately notified NARA, there is no offence committed and no charges brought. It’s only after he knows that they are there and starts jerking NARA around that you can show proof that an offence commenced, in my view.

                      If the Govt had charged this in DC, Trump’s lawyers would have turned the case into a three-ring circus.

              • Kristen_D62 says:

                And the ‘refusing to give them back’ part occurred in FL, without a doubt – because no one asked for them back then. Right?

                    • earlofhuntingdon says:

                      Possibly. But the issue here is that a refusal to return NDI is an element of the specific crime with which Trump is charged.

                    • emptywheel says:

                      With normal people you get that affirmative requirement to give it back from NDAs, which require you to give it back. But Presidents don’t have clearance or NDAs.

                      That’s why for FORMER PRESIDENTS you have to prove they kept the docs after asking for them back — bc there’s not an NDA backstopping things.

                  • SteveBev says:

                    I am sorry I didn’t make my point with sufficient clarity.

                    Perhaps if I elaborate it:
                    732 (d) offence would require a demand
                    723 (e) does not require a demand
                    If Trump packed up the documents in January while still President intending them to be in his possession/control etc after he ceased to be President then he has taken preparatory steps to committing the offence.
                    His obligation by 732 (e) is to deliver them to a person entitled to receive them. That obligation crystallises at the moment he is no longer authorised to possess/ control etc them, and doesn’t require a demand to be the case ( contrast with offence under 732(d)
                    However, if there is a subsequent demand say in September, which is not complied with, then evidence of that demand, refusal to comply and any other behaviour relating to his control of the documents in MAL or elsewhere is evidence which goes to the issue of what his intent was in January ie that his purpose all along was to wrongfully retain the documents.

                    I am afraid I do it fully understand EW counter argument based on NDAs , perhaps because I haven’t fully grasped its subtleties and implications. As I see it:
                    The existence of otherwise of an NDA is not an element of the offence; however, if there is an NDA evidence about its contents and circumstances of signing etc etc may be adduced as evidence relevant to mens rea. The absence of evidence of an NDA simply means that other evidence of mens rea will be required.
                    So unless I have missed something crucial, I don’t think that the fact Trump didn’t have an NDA as he could not have been required to sign one is not dispositive – it simply means that a particular cohort of evidence often used isn’t available.

                    • emptywheel says:

                      As I noted: Your fancy bullshit is still wrong on the law.

                      You’ve simply rewritten the law as you want it to be.

                      It requires unlawful possession, and that CANNOT start until January 20, 2021 at noon. And it also requires willful possession.

                      While all you people who are sure you’re smarter than Jack Smith may be CERTAIN Trump took the documents willfully, thus far there’s literally no proof he knew he had the classified docs in the boxes when he packed up.

                      We may get there! In which case you can have DC venue. But no matter how many times you people decide to rewrite the law, it requires unlawful possession, and willful retention. And proving that with a President is why venue is only in SDFL (or, for two documents, NJ).

                    • timbozone says:

                      (This is a reply to Marcy, re the idea of unlawful possession and intent. The thread nesting limit was reached so…)

                      It is possible that it was unlawful for Trump to retain some of these documents prior to Jan 20, 2021 as, even if he is President, he may have an intent to possess some of these document for >unlawful purpose<. I don't see any way that such an intent might be proved with the public record currently at hand. But, for instance, suppose that Trump developed, in the mid-January timeframe, a plan to use some of the documents after he left the White House on Jan 20, 2021, for blackmail, profit, and/or to intentionally damage US foreign policy initiatives during the Biden Administration?

            • Brian Sims says:

              Trump was still President as of his White House exit and boarding the plane with the documents and remained so until Biden was inaugurated. As President he had the right to possess the documents. Therefore he still had a right to have the documents at all times he was in DC.

                  • NerdyCanuck says:

                    As someone who has legit been gaslit (both on its own, and as part of a DARVO pattern) by extremely abusive past partners, thanks.

                    Language matters (as is said often in these here comment threads)

                  • Rayne says:

                    bmaz’s use of the term ‘gaslighting’ was wholly accurate. Do NOT fuck with people’s heads here about Trump’s unlawful theft of presidential records and classified documents including national defense information.

                    Trump boarded a plane departing approximately 9:00 a.m. on Wednesday January 20, 2021, with arrival then scheduled for 11:00 a.m. in West Palm Beach that day. If Trump removed any presidential records regardless of classification *without making any advance plans to return the documents by the time Biden assumed office*, he revealed his state of mind and intent in doing so.

                    • NerdyCanuck says:

                      Ooof, I was definitely reacting to the overuse of the term in general, not trying to say that Trump didn’t steal the documents (that seems super cut and dry to me). Should have been more careful to check what I was actually responding to and thus endorsing before weighing in :( Consider me suitably chastened *goes back to observation-only mode in my corner*.

                      (note to rayne, i switched to my desktop computer to write this, as responding poorly was at least partly an issue because i was on my mobile, and once there are many replies the threads gets squashed, so it gets harder to track what is a reply to what. wanted to make sure that didn’t happen this time. And let you know why the new device all of a sudden mid-convo. And very sorry for getting worked up, many people do misuse such words, but I know you’re all usually quite on top of that, so I’ll be much more careful in future, and trust you&others to call it out. thanks so much for all you do)

                    • emptywheel says:

                      You’re missing the bit that there’s no evidence that’s how the docs got there.

                      Smith may ONE DAY have evidence to substantiate theft. I think he’d need Nauta’s cooperation to prove that tho. He does not yet have that evidence, not in what he’s shown.

                    • BirdGardener says:

                      Trump is most definitely gaslighting people, but the poster Brian Sims appears only to have been offering a simplified version of part of Marcy’s argument.

                      I too have been gaslighted, in childhood, by someone with power and authority over me, and that is why I ask folks to be more judicious in their use of the term.

                      Again, Trump and his circle have been gaslighting. The above poster does not appear to have been doing anything other than arguing Marcy’s point in different words.

                    • BRUCE F COLE says:

                      You can say that the effect of gaslighting on a victim is for them to doubt the “correctness” of their perceptions. i.e., to make them think that they’re incorrect, or wrong about something when in fact their first perception is actually correct.

                      So it’s more accurate to say that “being convinced by someone that you’re perception is incorrect is a necessary part of being gaslit,” is more correct!

                      Have I convinced you?

                      I pick that nit because, “being incorrect is a necessary part of being a gaslighter,” iis a less ambiguous way of framing it.”

        • HikaakiH says:

          If there is good admissible evidence for the failure to hand back ill-gotten goods but a paucity of admissible evidence to prove what is strongly suspected was the initial crime, do you charge it all in the initial venue knowing the first part fails for lack of evidence with the knowledge the strong part of the case would hold up? Or charge the strong part of the case in the venue it’s relevant acts were committed?

      • benfdcmd says:

        Whence, I suppose, the question why a subpoena to search a property in Florida for evidence of crimes committed in Florida was issued by a magistrate judge in D.C. in the context of an investigation by a D.C. grand jury.

        • Shadowalker says:

          Subpoenas are not warrants, the former can be issued by most authorities (Congress, any barred attorney, prosecutors, etc.), the latter must be signed by a judge. The DC grand jury that issued the subpoena received its authority from the DC courts

        • emptywheel says:

          The subpoena was issued by a DC grand jury overseen by the then Chief Judge.

          The warrant to do the search was issued by an SDFL magistrate.

    • emptywheel says:

      Because this is not about theft (and I’m sorry if my dubbing it document theft misled you). It’s about refusing to give docs back. That’s true for all 793 cases, but bc of the legal issues presented by charging a former President, it is ESPECIALLY about the refusing to give back stuff.

      So no crime that we’ve seen yet happened in DC.


      • bmaz says:

        Every bit of the impropriety, whether you want to term it “theft” or not, started in DC, as did the conspiracy to accomplish that. So, yes, the crime spree did actually start in DC.

        • sohelpmedog says:

          For the crime – unlawful retention, possession , conspiracy to unlawfully take and keep the docs – to have been committed in DC, wouldn’t you have to prove intent or agreement in DC? But that should be easy because if he was taking/sending the documents in the days or hours before his presidency was going to end, he wasn’t going to return them by noon on January 20.

        • joeff53 says:

          Hmmm, maybe a citation is needed after all. This doesn’t seem like a black-and-white case, such as a burglary charge, and venue has not one but two constitutional dimensions.

          • bmaz says:

            Or maybe not. Where did the crime and conspiracy start? Are YOU claiming that was not before the WH load out? If not, why not? Cite that. But you cannot.

            • emptywheel says:

              The charged conspiracies? Florida!!!

              After NARA asked for docs back.

              Wow, that was easy. Answered your own question mate, tho it wasn’t the answer you wanted.

            • Rugger_9 says:

              If they were transported while Trump was still President, the issue would be the inadequate storage. In Florida. Neither the NARA requests nor the indictment allege that the documents were taken after the presidency closed out on 20 JAN 2021 at noon,. It would appear to me that charging in DC instead pf FL would assume a fact not yet in evidence that POTUS couldn’t take paperwork with him wherever he goes.

            • bmaz says:

              In short, jurisdiction is where a case “can” be tried, and venue is where it “may” be tried.

        • HikaakiH says:

          Maybe the omerta is holding strong enough that there isn’t sufficient evidence of a conspiracy before 1/20/21.

      • Kristen_D62 says:

        I think I understand – please confirm if I am! The reason for FL charges is because he was not technically “guilty” until he refused to return them after he was no longer president (and prior leaving DC, he still was president – so could still refuse to return them and be a jerk about it but not illegal a la Nixon)?

        • bmaz says:

          Bullshit. Trump and his team leave the White House premises, the crime spree is in action.

          Other than that, you will have to argue “intent”, which a lot of people here do not want to have to establish. Any jury, though, wants to hear motivation evidence; i.e. intent. Whether necessary or not as a required criminal element, always supply it.

          • Kristen_D62 says:

            I apologize; this is a confusing piece to all of this. I hope I am understanding this and my questions are helping to illuminate it for anyone else similarly conflicted: I would agree that the minute they took the docs in DC, the crime is ON – but since precedent to prosecute a sitting president is lacking, it wasn’t a ‘crime’ until he was already in FL? Is this why you and Marcy are not in agreement about this (still seems you are both right because of the lacking precedent). Thank you for your patience and whatever light you can shed for me here.

            • bmaz says:

              Cannot speak for Marcy. But my experience is a conspiracy starts where is starts. You steal my airplane, load it up and get busted in CA, you will get prosecuted here in AZ. Guess everything is different because Trump. But it really is not.

            • emptywheel says:

              No. But thanks for giving me YET ANOTHER opportunity to demonstrate why bmaz’ claims are utterly divorced from the indictment and known facts.

              ALL the conspiracies charged in the indictment start in May 2022 or later. So bmaz’ screaming about a “spree”? It’s not in the indictment. If Smith ever gets the evidence to charge it, THAT may be charged in DC, but there’s good reason to believe he either doesn’t have the evidence (bc he would need Nauta’s cooperation) or there’s some other legal defect with the charge.

              For all the 32 documents charges, none of which is yet charged against Nauta (though I think they could be), DOJ has proof that Trump KNEW HE HAD THE DOCUMENT and had taken affirmative steps to KEEP it. He is not charged for taking them–they couldn’t do with a President, not least bc there are a slew of ways each individual doc could have made it to MAL legally. He is charged for keeping that at such point that he knew he could not legally do so.

              That’s based on 3 things:
              Charge 32 (Iran doc): Trump brought it to Bedminster, recorded himself acknowledging it was classified, then took it back to MAL, where he returned it in January 2022.
              Charges 22-31: The document was kept after the time in January 2022 when, after sorting thru all the boxes himself, Trump said he had sent everything back, but then was given back in response to subpoena no June 3.
              Charges 1-21: These are all documents that Trump withheld from Corcoran’s June 2 search, which were seized on August 8.

              It is true he HAD all those docs on January 21, 2021 when he was no longer President. But the crime is KEEPING them after such time he knew he had them illegally.

            • bmaz says:

              Oh, no, it was a crime already. Just one he would not be prosecuted for until out of office per (somewhat dubious) DOJ guidance.

              • timbozone says:

                I agree with you that it is entirely possible, likely even, that Trump planned/conspired to break the PRA and national security laws before he left office in Jan 2021. But that’s not charged in the current SDFL documents case.

          • BrokenPromises says:

            This discussion got me thinking about the taking of classified docs and the role of the POTUS. Please correct me if I am wrong.
            Here’s what occurred to me. If DJT on the 19th of January leaves the WH with classified documents and he is leaving on official business of the office of the Presidency he has a legal right to possession of the docs. Yes? On the other hand if he is leaving the WH on the 19th solely to transfer his personal belongings and effects as his presidency ends and he takes the classified docs he has no legal authority to do so. Yes? My premise is that the documents belong to the Office of the Presidency and/or other US govt agencies as we see via the NARA requests for them.
            A similar situation could have occurred when I retired from my position from a major US city police department. I was required to surrender both my ID and my badge. Had I not done that I could have been charged. Now the major idea for keeping a badge would be as a souvenir. Now had I never admitted that would simple possession of city property be enough for a conviction without explicit evidence of intent? Sorry for using such a simple criminal act for comparison.

            (note: there is a thought that if he left with docs on official business but they had zero to do with that might that also be illegal? And yes under ordinary circumstances I don’t expect a POTUS to be charged in that scenario.)

            • emptywheel says:

              Your analogy with the badge is what is present in all other 793 cases but not here: As part of the US clearance process, a clearance holder signs an NDA saying they can’t take stuff out of a SCIF and they have to give it back.

              Every 793 case against someone who had clearance includes those details and uses them to establish that their continued possession of documents either outside of a SCIF or after their employment was unlawful.

              Trump didn’t sign one of those. So PARTICULARLY given the process by which NARA has for decades retrieved Presidential Records, the basis of illegality cannot start until someone can be proved to have knowledge of possession after such time as he no longer has legal right to hold it.

          • emptywheel says:


            You’re simply making shit up. Stop. That is not the crime and if it were Biden would be charged as well.

            You BADLY want to be smarter than Jack Smith but you don’t even have basic details right. And you’re WAYYYYY ahead of the evidence he has in hand.

        • BirdGardener says:

          That is also my understanding of Marcy’s argument: that the charges are not about his removing the documents, but about his refusing to return all the documents (and obstructing the efforts to get the documents back, etc.) after their return was properly requested (requests, subpoenas).

          I’m sure my language is insufficiently precise, though, and contains inaccuracies because of that imprecision.

          • emptywheel says:

            Correct. it’s not just my argument, it’s the law.

            Short of having multiple witnesses attesting to the fact that Trump cultivated docs to steal — and thus far, not even Cassidy Hutchinson’s testimony supports that — you CANNOT charge a former President until you have asked for the documents back and he has refused.

            DOJ even LIKES to get that for dipshit normal people–they relied on the same fact pattern heavily in the Jeremy Brown case.

        • earlofhuntingdon says:

          The issue is the crime charged. Trump would not be “guilty” until tried and convicted for crimes that survive appeal.

          Marcy’s argument is that the crime charged, as opposed to those that Smith might have charged, depends on Trump’s refusal – in Florida – to return property/documents that belonged to the USG and which should have been in NARA’s control.

  12. greenbird says:

    are there different “types” of dockets ?
    trump submitted many pages of one, showing info not on the RECAP-PACER docket.
    many of questions were answered by that …

  13. Jeffrey Lowrie says:

    So have we officially started suspecting Cannon is compromised? It seems we were bending over backwards to avoid such a presumption.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “Sorryidontremembermyusername” is your second user name, which I have replaced with your third username, “Jeffrey Lowrie.” Your original username was “Godhelpusall” in October last year. Please advise which username you’re going to stick with going forward by replying to this comment. The comment system’s next iteration will NOT allow drive-by names like “Sorryidontremembermyusername,” resulting in comment deletion. /~Rayne]

      • Jeffrey Lowrie says:

        Sure. I am happen to explain. So my impression was that for the last week or more the posts here have been quick to point out how Judge Cannon has been issuing rulings that were uncontroversial, in stark contrast to those issue prior to her reprimand for the circuit. I guess I am asking whether this policy is still reasonable?

        • earlofhuntingdon says:

          Yes, it’s eminently reasonable. Suspicion about what Cannon might do is still that. This ruling does not create the factual basis for her recusal or to assume she is wholly in the tank for Trump. Do I like it? I would have preferred she set a date for a Garcia hearing. Is she abusing her discretion? No.

    • Rugger_9 says:

      What ‘we’ think is irrelevant unless someone started a pool about any smackdown (when, by whom). It will be SC Smith filing a motion with 11CA and if needed following 11CA (it might take two rounds) with SCOTUS. Whether Judge Cannon still runs this trial after that will be the outcome of the process.

        • Rugger_9 says:

          That’s a leap to a conclusion I don’t make. The point was and is that none of us on the board will change the process one whit nor its outcome if/when SC Smith asks to replace Cannon for cause.

  14. tje.esq@23 says:

    not to walk into a landmine here, but the putative (and initial) victim was NARA and since GJ’s can only be convened by a court, with a court order, under Rule 6 it appears proper that this investigation started in DC. And not until enough facts supporting elements of particular crimes (showing that charging retention, for example, was more appropriate than ‘theft’), did it become necess too convene a GJ in Fla. Additionally, Natl defense info and CIPA matters are more frequently investigated by GJs in DC, I believe.

    Also under Rule 6, we know that permission from DC would be needed in request for search warrant, and for any material that would be disclosed to the newer Fla GJ, only to be given by the DC chief judge ( and Marcy covered all that, if i recall correctly).

    The indictment charges retention and not ‘theft’ as discussed, so Fla is venue for this. So where I am stumped regarding to Cannon seeking briefing on out of juris GJ is:
    a) judicious use of resources favors continued use of DC Grand Jury, for example, to expand 32nd count to mystery iran military doc — to continue reviewing any permissible matters that can be included in superseders
    while AT the same time, continued obstruction / addt defendants inquiry would continue with the FLA GJ.
    Do we think Cannon feels otherwise or knows of a 3rd jurisdictions’s GJ that has yet to be disclosed to the public?..
    b) Did Cannon just ask for an argument to be made by the wrong party and against the presumption (use of continued matters stay with the GJ whose already begun on this part of the matter and request to REMOVE TO FLA so everything is consolidated in Fla, would have to be moved by DEFENSE?)

    Any rule 6 experts out there?

    Marcy@ how common in CIPA cases does a DCGJ stay on a case when the subject brought the secrets home to their non-DC house?

    • EuroTark says:

      Not a lawyer, but my experience is that the purpose matters: the DC grand jury is investigating crimes originating in DC. During the course of this investigation they uncover evidence related to the crimes which are charged in Florida. My take is that it’s OK as long as the purpose of the DC GJ is not to furhter investigate the crimes charged in Florida, but the line between these two are thin.

      • Shadowalker says:

        Most of the superseding charges are related to the obstruction of the subpoena originated from the DC grand jury. Because the crimes related to the investigation it was charged to conduct, it only makes sense it would be involved in bringing new charges (it wasn’t the SDFL grand jury’s, which is only used to bring a true bill), I suppose Smith could have brought these as new separate charges in the DC jurisdiction, but that could get messy real fast.

    • timbozone says:

      The “putative victim” here would be the people of the United States, the reason for which the US Constitution, the three branches of government derived from it, the laws passed by Congress by its Article I powers, etc, etc, exists to perfect a more perfect union.

  15. lazaraga says:

    It would nice for the legal system to solve our political problems but that’s not its purpose. Do we want to punish trump at the expense of our legal system? That’s kinda what trump wants. He wants the political system to infect and pollute the legal system. The legal prosecution of trump needs to be held to the highest standards. Even if it errs on the side of the defense.
    The political problem of trump isn’t going away. Even if he does. The problem is his voters, and the hateful information that fuels them. Trump in jail is still a problem.

    • timbozone says:

      If he’s lawfully and fairly convicted of some of the crimes he seems to have committed that’s better than ignoring (or actively encouraging) the tendency of the corrupt to gravitate towards the center of power.

  16. earlofhuntingdon says:

    I thank Judge Cannon for giving us a rare, correct example of the logical fallacy, “begging the question.” Her instructions to Nauta were to include in his response to prosecutor’s Motion for a Garcia hearing, a discussion of:

    the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.

    Question begging is a logical fallacy which assumes the existence of the very thing in question. Here, whether the work of the DC grand jury at issue can accurately be described as “continuing to investigate and/or seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” “Pertinent” is doing a lot of work there, too. Then there’s that the attorney whose potential conflicts the prosecutor wants to explore via a Garcia hearing – a process Cannon has just put off – would be the attorney drafting answers, which Judge Cannon already seems to have.

    I’d like to know how Nauta’s lawyer, Stanley Woodward, will learn the answers to Judge Cannon’s question, since they involve grand jury secrecy and prosecutorial discretion. Without them, any discussion would be purely hypothetical, and that’s not much of basis for a holding by Judge Cannon.

    • Rugger_9 says:

      I suspect it’s about the timing. I do not recall seeing when the docs in question traveled to M-a-L and given how we have seen references in the court papers that stuff was being waved around they very well might have come down well before 20 JAN 2021. If that is true the presence is not a criminal matter until 20 JAN 2021 at 12:00:01 at which point possession by a former president is not legal.

      What is not in dispute is that the NARA asked, then demanded the documents be returned from Florida. Defendant-1 said he doesn’t have to because they’re his which SC Smith (and the black-letter law as well) disputes. The search was executed in FL, so that’s why the hearings are currently there. bmaz might be right that the wrong venue was chosen, but it’s harder to push that point without being certain that Defendant-1 absconded with the docs after 20 JAN 2021 at noon. Perhaps I missed it, but I do not recall seeing that claim made by the government.

      As my speculation, Judge Cannon also leaps to the conclusion that Defendant-1 was authorized to keep the documents by whatever the legalistic theory du jour is, in addition to the assumption that the docs in M-a-L were the same ones under review by other grand juries. Based on what I’ve seen out of Jack Smith and his compartmentalization of charges, they probably are not relevant to the M-a-L search and so Cannon wouldn’t have standing to complain about the other GJs.

  17. bgThenNow says:

    Well, the judges are on trial, charged or not. We are going to see this in both cases. I mean, these examples of “our” courts, the charges, the documents, rulings, and of course the Drama, are stark in this regard. Black and white, high contrast.

    Maybe FL is just a kind of busy work. I can hardly fathom that Republicans especially are not just outraged by the lapse of any security with the contents of the folders. But it will be taking a lot of lawyer time.

    In terms of the timing, I think the most urgent matter is the elections. People need more information fast. I see the Republicans starting to stick their fingers in the air. I agree with others here, it feels like hair on fire, and not just because of the heat. I am going to be working hard to help get people informed, especially young voters who may be motivated about their educations if they are paying attention. Not like climate is not enough.

    It takes a person to vote 3X to become a regular voter, I learned. We have a year or so. Max. I will never give up.

  18. Molly Pitcher says:

    Neal Katyal said this evening, that Cannon got in trouble last week for forgetting to swear in a jury.

    • tje.esq@23 says:

      Katyal was close, but not exactly right.

      The MUCH BIGGER mistake was a 6th Amendment **REVERSIBLE ERROR** violation she made which caused prosecution (“pros”or “P”) to speak up and agree with defense (“D”) attorney, after Cannon overruled D Attorney’s objection. And prosecution mentioned the SCOTUS CASE AND RULE and Cannon still refused to reverse herself!

      Knowing judge’s error meant any guilty verdict resulting from trial would be immediately tossed, P had to offer very favorable plea to D. In a nutshell, she f-ed up prosecution’s case because her actions basically would have caused a ‘mistrial.’ Bigger yet, she did not APPARENTLY:
      a) know the rule or case,
      b) understand the balancing action required of her and immediate on-the-record justification needed to maintain her position and
      c) comprehend the enormity of the consequences for prosecution’s case.

      I assume none of our other attorneys of ready examples where prosecution objects to judge’s overruling his opponent’s objection? Some time had passed in between, and P spoke up only after error became even more egregious, acc to Reuters report. I have not read transcript myself, so summarize based on below


      Also, reading between the lines, it looks like P thought D might have grounds to appeal (to seek auto reversal on ?) based on questionable rulings judge made on admissibility of evidence too, but need to dig into transcript to be sure of this.

      Jack Smith better have a good long chat with the prosecutor in that case if he wants his case to not be inadvertently sabotaged by an inexperienced judge.

      • Just Some Guy says:

        Just chiming in to say that Cannon was an assistant US Attorney for the Southern District of Florida for seven years before being appointed a federal judge.

        • Rugger_9 says:

          So, she ought to know better and that makes these lapses in court worse. Seven years is a long time not to learn anything via osmosis.

  19. 2Cats2Furious says:

    Re: the debate over venue earlier in the comments:

    Both Biden and Pence discovered that they had some (much smaller) number of documents with classification markings in their residences/offices from their respective turns as VP. Both Biden and Pence immediately notified the FBI/DOJ and returned the documents, and further voluntarily allowed the FBI to search their homes/offices for any additional classified documents. Based on the information known to date, did either man intentionally take or willfully retain these documents? Apparently not. Pence has already been cleared; not sure what’s going on with the Biden special counsel.

    OTOH, bmaz argues that Trump deliberately conspired to take classified documents with him from the WH; therefore, the conspiracy started in DC and should have been charged there. Maybe bmaz is right, but that is just speculation at this point (which he routinely criticizes others for doing). It’s also possible that Trump was terrible about handling classified documents as President, that he’s a hoarder, and that he or his staff were directed to just throw everything into boxes at the last minute, after he FINALLY accepted he wouldn’t remain in power. Given what we know – that classified documents were found in boxes interspersed with newspaper clippings, photos, and apparently even clothing and hats – it suggests to me that they did a really bad and hasty job of packing, without really going through the contents of the boxes.

    So, maybe Trump deliberately tried to steal classified documents from the WH, and maybe he didn’t. And this is where bmaz’s argument that the case should have been filed in DC, because that’s where the alleged “scheme” originated, falls apart. Unless someone who packed those boxes testifies that Trump specifically told them to pack the classified documents, the DOJ has no way to prove whether the initial transfer of the documents was willful, or whether it was merely negligent.

    More importantly, DOJ has not charged Trump with a scheme or conspiracy to take the documents in the 1st place. Instead, they’ve charged him with “willful retention” of the classified documents after the government sought to get them back (first via requests by NARA, and then via a grand jury subpoena, and then via a court-ordered search warrant). And, of course, other charges for obstruction and conspiracy, which again further distinguishes why Trump was charged, but not Pence and (so far) not Biden.

    Tl;dr: bmaz is assuming a plan or conspiracy by Trump to deliberately take classified documents from DC, which may or may not be true. In any event, the DOJ has not charged Trump with this because they apparently don’t have the evidence. What they DO have evidence of is willful retention, conspiracy, and obstruction, all occurring in SDFL, which is why I agree with Marcy that the case was appropriately charged there.

    • SteveBev says:

      Your points about Biden and Pence is illustrative of a wider point.

      Their behaviour in alerting the authorities etc is evidence not only of their respective states of mind •at the time when they took those steps•
      but also of their state of mind
      • from the outset and throughout the period the documents were in their unauthorised possession/control•

      Trumps behaviour with the documents in MAL is also evidence going to
      • his state of mind throughout the period he was In unauthorised possession/control •
      Which began in DC.

      He may theoretically have a defence
      “When the boxes were packed in DC the documents were accidentally mixed in, and it was only later that I decided to keep them.”

      But the conduct – packing the boxes began in DC.

      Even if the defence was accepted the conduct still began in DC. The venue provision allows for charging in any district where the conduct “begun, continued, or was completed”

      If the boxes had been put on his yacht departing from Baltimore say and then which subsequently floated around the Caribbean, where then would the venue for trial of the offences be?

      • 2Cats2Furious says:

        1. Presumably, the classified documents in the possession of Biden and Pence were initially given to them in DC before being transferred to their respective homes in Delaware and Indiana. Assuming there is no evidence of their intent to willfully retain these documents, do you consider this to be an indictable offense?

        2. If not, then how can you claim that Trump’s transfer of classified documents – assuming he didn’t specifically direct that classified documents should be packed in the boxes – is an indictable offense that started in DC?

        3. Given that Trump (and likely the boxes) left DC before Biden was sworn in as President, how can you claim that Trump had “unauthorized possession/control” of the documents while in DC?

        I’m in no way defending Trump, and I think the indictment in SDFL is rock solid. But this idea that he deliberately – as opposed to negligently – “stole” the classified documents while he was still in DC has no current basis in law or fact.

        • bmaz says:

          It does. This is yet another load of simpering crap. Do you even read the law? What do you think “wrongful retention” means?

          • 2Cats2Furious says:

            First of all, Trump was charged with “willful retention,” not “wrongful retention.” At least get the terminology correct.

            Second, the indictment makes clear that the “willful retention” occurred after Trump retained the documents in SDFL after he was no longer President. What part of the indictment do you not understand?

            • bmaz says:

              Oh, thanks, I could have never read indictments on my own. I do not give a shit what “the indictment makes clear”. Are you too poor to pay attention to what I have been saying?

              • 2Cats2Furious says:

                Nah, I’m not too “poor,” whatever you might mean by that. I do, however, have too many functioning brain cells to accept your version of events.

                • bmaz says:

                  I do not know where you suddenly appeared from, but you are completely full of shit.

                  And, please, Emptywheel readers, do not buy off on suddenly appearing bullshit.

                  • 2Cats2Furious says:

                    LOL, OK. I didn’t just appear, but I’ve definitely spoken up more on this article because IAAL who agrees with Marcy’s analysis, as opposed to your churlish and childish attacks against her.

                    I trust that the readers can make their own decisions as to who is full of shit.

    • emptywheel says:

      All correct.

      Smith might one day get to proving that Trump conspired in advance to steal these docs. He may get to proving that Trump conspired to steal docs — classified and unclassified — to use for his personal benefit, with the PAC.

      But thus far, the indictment is MORE SUPPORTIVE of the interpretation that there was no conspiracy in advance, bc ¶2 says he always just threw shit in boxes together.

      And while ¶25 provides some evidence for willful theft, it also makes it clear that one of the firsthand witnesses to Trump’s plan to steal classified boxes was Nauta, which is why you can’t charge it in DC unless you get Nauta’s cooperation.

      • 2Cats2Furious says:

        Agreed as to all points. Without a witness to testify that Trump specifically ordered the inclusion of classified documents in the boxes, I don’t see how DOJ can prove – beyond a reasonable doubt – that Trump intended to “steal” classified documents, as opposed to being merely careless or negligent.

        That said, the other portions of DOJ’s case – willful retention, conspiracy, and obstruction – appear to be so solid, that I’m not sure they even need to try to prove that Trump intended to abscond with the classified documents in the first place.

        Thanks again for your thorough and cogent analysis.

        • bmaz says:

          So “Cat”, you are not familiar with circumstantial evidence? You are pretty much full of shit. Have you ever been in a trial courtroom, because your comments do not elucidate that. At all. You seem, instead, to be a troll.

          • 2Cats2Furious says:

            It’s becoming sort of adorable how you won’t let this go. It’s been a while since I came up against an alleged attorney who was so insecure that they felt the need to constantly lash out.

            Yes, I’m familiar with circumstantial evidence. And yes, I’ve tried cases in federal court on both the plaintiff and defense side (and won them all), where the burden of proof was the much lower standard of preponderance of the evidence.

            Any other questions?

            • bmaz says:

              Stick your “adorable” up your ass. I am not “alleged”. And, yes, I have a lot of questions, because I think you are full of shit. And a troll.

              • emptywheel says:


                Since YOU’RE the one wrong both on the law and the details as alleged in the indictment, please refrain from being an ass to people who are not.

                You don’t even know what was charged as a conspiracy which — hint — is not 18 uSC 793 (and venue would STILL be in SDFL if that were charged against Nauta).

                • bmaz says:

                  Except I am not wrong. Intent is almost always proved with circumstantial evidence. Which is what I said and Cats apparently does not understand.

                  By the way, even if specific intent is not a mandatory element in a charged offense, juries always want to hear of it. Always.

    • bmaz says:

      What a load of crap. You think conspiracies have to be announced ahead of time? The crime spree started in DC. Full stop. It did not need further acts in SDFL.

      • 2Cats2Furious says:

        Bmaz, I would think that you of all people would acknowledge that prosecutors shouldn’t bring charges based on mere speculation, but rather based on actual evidence that can be proven in court.

        Do you have any actual evidence that Trump intended to steal classified documents, as opposed to merely being sloppy (as apparently Pence and Biden were)? And then subsequently deciding he didn’t want to return all of the classified documents, while returning others?

        As always, I appreciate your insightful legal analysis such as “What a load of crap.” Top notch.

        • bmaz says:

          Thanks “Cat”. Yes, the same evidence in SDFL would be pertinent in DC. Have you ever been involved in a complex conspiracy, or just blowing shit on a blog comment section?

          • 2Cats2Furious says:

            Actually yes, I’ve been involved in complex civil litigation, although not criminal matters.

            Also, you didn’t actually answer my question about evidence to support your literal conspiracy theory, although I honestly didn’t expect you to.

            • bmaz says:

              Oh, excellent. You have done some civil work, have you? Your “conspiracy” question was dumb. Try focusing on criminal law.

              • 2Cats2Furious says:

                I have no interest in trying to overstate my qualifications. Also, I prefer to back up my legal analysis with actual facts and law, rather than ad hominem attacks. Others may choose a different approach.

                • bmaz says:

                  And, yet, you have been here about three months, most all recently. And think you own space here. You do not. what makes you think that?

                  • Ralph H white says:

                    You constantly harp on a poster’s, length of time as a member of this board, as if that has any bearing on the validity of their point, or their right to make it. When, as any sane person would admit, that has absolutely nothing to do with the correctness of their point.

                    • bmaz says:

                      But it does impact who we know and trust. Which is pretty important these days. You have no idea about the insanity that rolls in, or at least tries to, lately. That is not your concern, so please do not insert yourself into what we do.

    • Lurks123 says:

      Did Trump deliberately take classified documents with the intention of keeping them after he was no longer president? Almost certainly. Can I prove it? Er, no.

          • 2Cats2Furious says:

            You know, for someone who blows a gasket anytime someone uses a nickname for Trump – which you consider “childish” – you’re not exactly covering yourself in glory by referring to me as the “Cat person.” Did I hurt your feelings somehow?

          • emptywheel says:


            Tell us, oh smarter than Jack Smith one who doesn’t even know what conspiracies were charged much less the time frame of the charged crimes. WHere in the indictment do you see proof ABSENT Walt Nauta’s cooperation that Trump willfully packed the classified documents that were already packed in the boxes?

            • 2Cats2Furious says:

              All apologies. Bmaz clearly prefers to go after me for agreeing with Marcy and others like you, but that shouldn’t distract him from acknowledging that you’re the original source of this “load of crap.” Credit where credit is due! 😁

  20. David F. Snyder says:

    SC could still refine their request to supplement by “satisfying the burden”? Following the references to #95 (p. 2 n.2, p. 6), #96 must have been the list of additional witness(es) SC wanted to protect.

    Am I wrong to see Her Honor publicly telegraphing to the defendant who is on that list?

  21. Kristen_D62 says:

    Don’t want to take up valuable space but just want to express again my thanks for this blog. And all the disagreeing, which is done regularly and mostly respectfully. I have learned so much here.

    • klynn says:

      Agreed. This has been a great discussion. While IANAL, both the discussion of venue and the reference to “willful” has me recalling this piece on the transition and what was willfully happening with documents through Trump’s direction while he was still President. His actions, decisions and mindset described appear willful.
      Articles such as this, have made understanding the approach on the documents case a bit cloudy for myself as a layperson. Thus, I’ve appreciated the discussion here. Thank you.

    • !pverby! says:

      Regarding the irreplaceable value of this blog, I am in complete accord with everything you say, except the notion that all the disagreement is done “most respectfully.” Really? The increasing and very evident vulgarity and crudeness of many of the comments is disconcerting and discouraging.

      • Rayne says:

        Dude. You’ve mostly lurked since 2009 and should know full well this blog’s posts and comments has contained vulgarity and crudeness since its inception. You should also know commenters don’t police language here.

  22. ThomasJ7777 says:

    Forgive me, but after reading Cannon’s order and reading the rules cited, including 12b, I think all of this talk about using an out of state grand jury to investigate a crime already charged in FL is a distraction.

    It is not necessary for Jack Smith to be investigating the charged case before an out of state grand jury in order to be submitting grand jury evidence that he obtained from an out of state grand jury.

    Smith could be submitting information about other persons (not the defendants) that he learned from another grand jury investigation.

    Is he allowed to do that? Yes! He is a Special Counsel and not a US Attorney who would be barred from that activity.

    My guess is that the material is evidence about Woodward’s representation of a witness in DC.

    Cannon mistakenly believes that Smith is engaged in improper actions because she fundamentally misunderstands how Smith can file the grand jury information. She thinks he is acting outside of his authority.

    • emptywheel says:


      Hopefully she won’t fuck things up too badly before DOJ gets a chance to explain that to her.

    • earlofhuntingdon says:

      Based on her conduct in last year’s case, I would say Cannon “assumes” the prosecution has committed potential fatal misconduct. Thinking may not enter into it. It’s an odd starting point for an arch-conservative who spent seven years in the DoJ, most of it related to criminal appellate work, which suggests her stance is entirely political.

      That’s not without precedent. It’s exactly what the FedSoc seeks in its judicial nominees.

  23. hollywood says:

    So is there any basis for the Trusty-Cannon concept that the Special Counsel can’t convene grand juries in two different districts with reference to the confidential documents case?

  24. hollywood says:

    So is there any basis for the Trusty-Cannon concept that the Special Counsel can’t convene grand juries in two different districts with reference to the confidential documents case?
    How is it that Cannon gets to keep raising issues sua sponte without prompting from defense counsel?

  25. MT Reedør says:

    It may have had a lot of back and forth, but I thought everybody raised their game on clarifying the known and the possible in the crime sequence, and it’s implications. The fact that venue in our legal system can have such profound effect on indictments and trials makes you go hmm….Great stuff.

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