“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.


We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.


To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

120 replies
  1. Leu2500 says:

    Chutkan is an experienced trial lawyer & jurist. I’m less concerned about what will happen in her court room.

    Whereas Cannon is dragging her feet. I’m just assuming her trial will be last & might essentially be moot.

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    • Datnotdat says:

      About Cannon and foot dragging. She has given abundant reason to suspect her protracted timelines are a favor to Trump, but I wonder if there might not be an additional reason for her dilatory approach to scheduling. I recall when I was first a practicing physician, I’d do the tests needed to establish a diagnosis and then pause and wonder what tests I might do to confirm the suggested diagnosis. To quote Dr. Obvious, having the correct diagnosis is primary, and essential, but once that is in hand it’s imperative to promptly move on to the next steps. (I my practice, treatment and or amelioration.)

      In other words, I think Judge Cannon may be, due to her inexperience, trying to avoid making mistaken decisions by putting off making any decisions.

      • Ebenezer Scrooge says:

        As I understand things, judges feel free to discuss pending cases with other judges, to gain their insights. So I’m not sure I buy the “inexperience” argument.

        • BRUCE F COLE says:

          But if a judge seeks ex parte legal advice from any disinterested expert(s), be they judges or otherwise, they need to notify the parties in the case and offer them space to object and respond, and the advice needs to be entered as authored by such an expert. That last bit may color her willingness to do such seeking.

          Her process so far indicates that she’s not getting disinterested advice, e.g., from anyone who’s remotely expert in Garcia issues.

          To describe her as “out of her depth” is pretty close to a compliment at this stage.

          • bmaz says:

            Lol, no, not every conversation in the court cafeteria need be made public nor subject to response. As much as people have glommed onto Cannon as the worst baddie judge in the world, she is far from it. People really need to step back and get a grip.

            • BRUCE F COLE says:

              I was going by the Federal Code of Conduct for judges, Cannon 3(A)(4)

              “(4) [snip]. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:
              (c) obtain the written advice of a disinterested expert on the law, but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received;”

              I also cribbed from ABA Rule 2.9(A) where it’s framed a little differently, and I guess I was getting the requirement in that rule for how a written piece of advice is handled conflated with how a more casually imparted bit of advice is handled in 2.9(

              • bmaz says:

                Here is what I know: Been in a lot of court cafeterias. The judges, in fed court, usually have their own separated dining area. I got let in with a friend who was the son of a 9th Circuit judge. Trust me, they talk a lot with each other, and on the phone too. And that is pretty much a very good thing.

              • BRUCE F COLE says:

                (accidently hit “post comment” a bit early)
                …2.9(B) “If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.”
                That covers cafeteria and parking lot talks, but still includes the necessity of notification and opportunity for response of the parties.

                  • BRUCE F COLE says:

                    Copy that, but I’m gonna have to report you for dining with the judges — “ex partay.” (That’s latin for “gate crasher.”)~

                    It’s all good, I suppose — spreading bench knowledge around freely is a plus — until a judge in, say, a liability case gets a novel legal insight pertaining to that case at the snifter bar in the gentlemen’s club from a judge who’s nephew works for one of the litigants’ subsidiaries, say, but the trial judge isn’t clued into that.
                    Requiring that conversation to be noticed in the record and responses to be invited could give whichever side is opposite the side that the advising judge is linked to the opportunity to include that in their presentation to the jury, and in any appeal that might follow should they lose.

                    That’s probably the kind of possibility they had in mind when that apparently meaningless bit of the Code of Conduct was written. Lol, 28 USC 455(a) springs to mind!

                  • Dmbeaster says:

                    I represented a Superior Court Judge in civil matters in California. He used to ask me questions regarding my opinion on pending civil cases before him. And he told me that judge’s frequently talk with each other about issues. Had a similar experience with another judge who I interacted with on behalf of his wife, my actual client.

                    • BRUCE F COLE says:

                      So I got disabused of my incomplete reading of that CofC rule by Marc in Denver (see just below) regarding consults between judges, ex parte, but ex parte consulting between judges and lawyers is still out of bounds (Canon 3(4) Commentary:

                      “The restriction on ex parte communications concerning a proceeding includes communications from lawyers, law teachers, and others who are not participants in the proceeding.”

                      In the next sentence, judges and court personnel are exempted from the rule.

                    • BRUCE F COLE says:

                      …although if a judge notifies the parties of having talked to someone other than a judge, and gives opportunity for response, it’s kosher.

              • Marc in Denver says:

                FYI, the commentary on Canon 3(A)(4) appears to exempt conversations with other judges: ” A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities.” (from uscourts dot gov)

                • BRUCE F COLE says:

                  Thanks for that clarification. I should have kept scrolling down! My bad.

                  My comment above about an un-noticed consulting judge having a conflict/bias that would thereby itself go unnoticed in a proceeding is, I still think, a large flaw in this part of that rule.

        • Rugger_9 says:

          It’s not directly analogous, but one of the things about running a power plant is the pathological fear of newbies that they might break something and get blamed for it. As a consequence they will not let routine maintenance get done in case something went awry. Very annoying.

          Comparing Cannon to McAfee might be an interesting case study some day.

      • earlofhuntingdon says:

        If Cannon’s problem was inexperience, one would expect her to have made decisions that occasionally favored the prosecution, occasionally the defendant. Hers favor Trump.

        Moreover, she has a very good academic background, substantial experience as an appeals lawyer – for the DoJ in Florida – a few years of private practice and on the bench. She knows the law and procedure. Any delays she is responsible for in Trump’s case are not driven by lack of experience.

        • GSSH-FullyReduced says:

          I asked this same question here 6mo ago about who Cannon might be getting ‘mentored’ by because I was curious about why she seemed to lean toward protecting the defendant’s position in this stolen documents case. Commenters helped me to understand that judges do consult with each other on a professional basis but nobody mentioned the Federal Code of Conduct for Judges. Been lots of discussions here about recusal issues of judges in Trump’s federal indictment cases. We all remember that judge Cannon was unanimously slapped down by the 11th circuit when she improperly exercised equitable jurisdiction in a related hearing last year and I still wonder who is helping her now to avoid being labeled as ‘biased’.

          • JR_in_Mass says:

            I sometimes wonder if Cannon is being overly accommodating to ensure that there can be no legitimate complaint about a rush to judgment. It doesn’t seem that she does Trump any favors if the trial happens during election time rather than in 2023.

            • earlofhuntingdon says:

              Trump’s legal woes are his campaign, so being in or contemplating the start of a trial in November 2024 would very much work in his favor.

          • BRUCE F COLE says:

            That thought occured to me when she finally scheduled the Garcia hearings (which will take place tomorrow afternoon!). In doing so she offered no commentary or reasoning for the several aspects of the order:

            She had no provision for the Garcia standard of having standby conflict counsel to advise them if they so choose. She also didn’t require the other witnesses — who may be in conflict with them while having the same set of lawyers — to be present. Both of those restricted parameters are ludicrous and indefensible, as well as thoroughly defense-friendly. Oh, and she also left it open that the whole mess could go behind closed doors at her whim.

            If she got another judge’s rationale for that mess of an order I’d be totally surprised. And the fact that she decided not to back the order up with any reasoning whatsoever, in a minute order, indicates to me that she’s flying both blind and solo — and that she didn’t want to give any more ammunition for another brutal slapdown, other than the order itself.

            I’m guessing Smith’s team will immediately object to the absence of the Garcia standards of standby conflict counsel availability, and of the presence of all conflicted witnesses, and that things will go downhill from there. As Joyce Vance noted when the order was issued, this could well end up in the lap of the 11th Circuit Appeals Court, and another brutal slapdown (with a garnish this time of imposed recusal, I’m hoping) could be the result.

            • earlofhuntingdon says:

              Cannon’s conduct is not an expression of ignorance, or about protecting an inexperienced ego. Her decisions routinely benefit one party: Trump.

              If she leaves something out, it’s to give herself wriggle room and inhibit attack. If she doesn’t state her reasons for an order, it’s to force the prosecution to infer them. That allows her to dismiss them as wrong. The point is to make any appeal harder, something she knows from seven years as an appellate attorney for the DoJ in the SDFL.

  2. Carl_03AUG2022_0931h says:

    It strikes me that Milley et al memorializing events holds the greatest risk with respect to both MAL and J6 investigations. And if Meadows hasn’t ratted him out then he, too, is in for a world of hurt.

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  3. Thorvold says:

    To better understand what agencies the listed documents may have come from, I think it would be good to understand what compartments the interim clearances that the DOJ awarded the defense lawyers had. I can’t seem to find it right now (I think it was in a footnote in one of the Govt filings in the Mar-a-Lago case), but I believe the interim clearances were TS//SI/TK. That would cover basic Top Secret data from NSA (SI) and NRO (TK), but I don’t think they had HCS (CIA) or Q/FRD (DoE). These REDACTED clearances could also have been a sub-compartment or ECI to an existing awarded class and therefore needed extra approvals like HCS-P or SI-G since the documents are marked ORCON (Originating Agency has to approve adding to distribution).

  4. BobBobCon says:

    It’s always chilling to read how much of a bad place Trump was in, and it’s striking how secondary it was to reporting after the 2020 election– insiders like Maggie Haberman and Phillip Rucker seemed intent on witholding much of it from contemporary reporting and keeping it for books published much later.

    Insiders have the benefit of hindsight — explicitly comparing his mood now to his mood then would go a long way to help frame his intentions to trash our institutions, and offer reporters a lot of clues to where they should be digging for signs of impending violence. I’m pretty skeptical they’re trying to learn much, though.

    • RitaRita says:

      IIRC, reporters reported on Trump’s post-Election conduct and intent but always soft-pedaled the threat by quoting aides and confidants who were sure that Trump would just get over it and retire to Mar a Lago. I am sure the Washington Press Corps and Trump Whisperers believed the aides and confidants.

      • LadyHawke says:

        Against all evidence that Trump has never gotten over a single perceived slight in his entire life?

        • bmaz says:

          I’m sorry, has there been a trial where real evidence was adduced, and entered on the record? No? Then people need too rethink what is truly “evidence”.

          • HikaakiH says:

            The word ‘evidence’ is used with meaning in fields beyond the law, both scientific and artistic.
            Context is important. If a botanist says a tomato is a fruit, we can understand that they aren’t about to put it into their fruit salad because the word ‘fruit’ has a different yet perfectly good and widely accepted meaning in a culinary context that exists just as well as the botanist’s scientific meaning.
            If LadyHawke wanted to stick the word ‘evidence’ into a court filing, they should be guided by your expert advice, but that doesn’t mean they shouldn’t or can’t use that word elsewhere in a context where other (non-legal) readers find its non-technical meaning clear enough.
            LadyHawke is clearly alluding to Trump’s widely known proclivity to hold grudges. We could get into the weeds about the work the word “known” is doing in that sentence but we’d be wasting each other’s time.

            • HikaakiH says:

              Immediately after hitting Post Comment, I regretted the absence of the old Edit/Delete option. If you wish, please delete this and my comment above.

  5. earlofhuntingdon says:

    Trump’s requests, apart from constructing a defense to the indefensible, and to delay, also looks like research for his enemies list, which he would Shirley act on his first month in office, should he regain the White House. After that, the deluge.

            • Legonaut says:

              I remember sitting in the theater, gobsmacked that they got all those great actors together for something so goofy. Peter Graves, Leslie Nielsen, Lloyd Bridges, Barbara Billingsley, Robert Stack — what a treat!

              • DrStuartC says:

                Another “great’ was Kareem Abdul Jabbar, who had brief cameo – and the Lakers were NBA Champions in 1980, the year the movie was released. How’d they get him?

                Those punchlines are all classics, but what about the endless sight gags! The nuns lining up to punch the hysterical person, or the pilot’s “drinking problem”!

                Very Marx Brothers and very brilliant.

                  • Rugger_9 says:

                    Jarvis was also at the very end, where he’s still sitting in the taxi saying he’d give Hays ‘five more minutes’. While in public, Jarvis was notoriously impatient, thus the joke.

                    What I didn’t know until Wiki came along is that the white-zone-red-zone couple were the actual ones from LAX and they enjoyed their cameo immensely.

            • ExRacerX says:

              Priscilla Presley delivered one of the film’s best punchlines from atop a library ladder: “Thanks—I just had it stuffed!”

              • DLupVulpes says:

                That was Naked Gun, not Airplane!

                (I updated my user name to have more than 8 characters and will try to remember this one on those rare occasions when I comment.)

            • wa_rickf says:

              Barbara Billingsley was perfectly cast to deliver that line. Nearly every I know can quote a line or two from that movie.

              “Hospital? What is it?”
              “It’s a big building with patients, but that’s not important right now.”

              • obsessed says:

                Have you guys seen this side-by-side comparison of Airplane and Zero Hour? https://youtu.be/FasDZeNAmlk
                Apparently the Airplane writers bought the script and rights to a completely serious 1950s disaster flick. You could teach a whole course on the nature of comedy. By framing a scene you can turn drama (albeit over-the-top, goofy drama) into insanely brilliant comedy.

                • wa_rickf says:

                  Jim Abrahams, David Zucker, Jerry Zucker discussed this very fact in their interview on NPR last week, discussing the making of the movie in the new book that is just out.

                  SPOILER ALERT: Many studios passed on the movie’s first script.

    • BobBobCon says:

      The body count in Airplane started long before they started pouring every light on the field. I think there’s a good question whether Trump’s enemy list is going to see a lot worse than food poisoning long before election day.

  6. David F. Snyder says:

    Many thanks for collecting and organizing these points, Marcy, I was hoping you would. I’d only had time to skim the SC’s filings. I wonder if those papers retained in DC related to recent events abroad? I mean, the transportation of them (special courier etc.) raised my eyebrows.

    • David F. Snyder says:

      I meant, the conditions stipulated for the transportation of those documents from DC to FL (special courier etc.) raised my eyebrows. Must be something extra special.

      • earlofhuntingdon says:

        Extra special? Given that they were initially deemed too sensitive even to be in a SCIF in Florida, one would think so.

        • David F. Snyder says:

          True, but then extra special sauce is hotter than the special sauce everyone already knew these particular docs were before this filing.

  7. Rugger_9 says:

    Searches still need to be done to complete the damage assessment, and FWIW we also need to figure out how many copies there are ‘out there’. I still have yet to see a real explanation of what Defendant-1 intended to do with these documents. Was it so he could supply a ghostwriter to write his memoirs? There were a helluva a lot of them and unless someone in the WH actually kept track of everything that was passed to Defendant-1, I do not see where anyone can make any valid assessment of the damage he caused to America and to our allies.

    I won’t rehash the why-the-SCIF-wasn’t-enforced issue again since it’s more important IMHO to explain why the documents were found where they were. Given the bootlicking minions Defendant-1 surrounded himself with in the WH it’s a short transit to letting D-1 have whatever he wanted without questions or accounting.

    • Molly Pitcher says:

      Another issue that needs addressing, or at least discussion, is why the issuing departments were not keeping track of their own documents ? Netflix used to hound the hell out of me if I didn’t return a DVD in time, you would think that the issuers of national security documents might keep a Postit note on the monitor about who last had the foreign intelligence secrets ??

      • Rugger_9 says:

        I would suspect these items would be released to the WH custodian (by name) who would then be responsible for its access. That person would be the next string to pull, since as part of the handling of classified material the inventory has to be taken every time the SCIF safe is opened.

        Unless there was some kind of sunset date for return they would stay out there at the WH. It would take some serious brass ones to demand return especially considering the WH team in place at the time. They were not known for being cooperative.

        • Molly Pitcher says:

          Thanks for the clarification. But does that not seem like the moment Trump was booted out of office, the alarms should have been going off regarding the location of this information ?

          I would have expected more accountability by adults if the people with the documents are notorious children.

    • Sue 'em Queequeg says:

      Just guessing, but is it possible Defendent-1 didn’t have any specific idea what he wanted to do with them? In other words, is there reason to think his motivation goes beyond the general “hmm might be useful someday” kompromat-oriented mentality?

  8. Tech Support says:

    To clarify:

    EW’s reporting here of uncharged classified documents should be interpreted by the layperson as documents the government recovered that they felt were inappropriate to charge (due to their sensitivity or some other reason), and NOT as newly discovered documents that could result in additional charges. Is that correct?

    • vigetnovus says:

      I would agree with this as well. If anything, they were even more sensitive documents that SCO must feel would be too susceptible to greymail defenses through CIPA.

      Part of me wonders if recent events are in any way related to the content of some of those documents. I could see a certain foreign power that had close ties with that former cabal being able to piece together information about the offensive capabilities of an erstwhile enemy from these documents and being able to match it up with intelligence that foreign power had gleaned from recent entreaties with a wannabe ally. Such knowledge would have been very valuable to certain terrorist groups. Especially if this foreign power was playing both sides against each other….

    • Rugger_9 says:

      He is not well, and I expect the BK7 to follow shortly to prevent him from having to pay up. The useful question for the superrich guys like Lindell was is whether there is anything squirreled away overseas (remember the Panama Papers?) that can be tapped.

        • Rugger_9 says:

          IANAL, but my understanding is that BKs can shield for a lot of things, but not everything. I don’t know if a loss to Dominion means that its court judgement is dischargeable for the person. I think MyPillow is toast and Lindell might try to use it a a firewall.

          However, it’s hard to convince me that the rampant conspiracy mongering that Lindell did has any relevance to the operation of MyPillow, which I suspect would make it very hard to shove the judgement into the MyPillow BK and keeping Lindell out of hot water.

          • bmaz says:

            Dunno about that, not sure Lindell and My Pillow are very separable. BK is not my bailiwick particularly, but did do one case all the way though the 9th Circuit. The core issue was that intentional torts are not dischargeable under 7 or 13. I won on that.

        • P J Evans says:

          chapter 7 bankruptcy.
          I think Lindell really is broke – he can’t pay his lawyers, his pillow market dried up because the stores didn’t want to deal with him or his problems, and there aren’t enough people who will buy online to keep it afloat.

          • bmaz says:

            Yeah, and Bed Bath and Beyond is done. Costco won’t sell that junk. He can’t even seem to keep doing the late night infomercials.

            • wa_rickf says:

              My Pillow was booked into Costco through Department 44 (D44) Special Events. D44 books 3-day Road Shows at various warehouses for a particular vendor (Cookware, knives, food processors, etc).

              D44 has not booked My Pillows since Mike Lindell became controversial for his 2021 election fraud claims.

              • Rayne says:

                But privately-held big box hardware store Menards, owned by right-winger John Menard Jr., is selling My Pillow brand products now. Got a sale flyer in my email pushing them this week.

                No shareholders to give Menard a hard time about doing business with an insurrectionist, propping up My Pillow with right-wing mutual aid.

  9. obsessed says:

    Also on the topic of Trump’s state of mind, Aaron Blake has a fairly interesting article in WaPo postulating that Smith is intending to prove at trial what Trump’s motive was in retaining the classified docs:

    Smith: “That the classified materials at issue in this case were taken from the White House and retained at Mar-a-Lago is not in dispute,” Smith’s office said.
    It then added that “what is in dispute is how that occurred, why it occurred, what Trump knew, and what Trump intended in retaining them — all issues that the Government will prove at trial primarily with unclassified evidence.”
    Blake: The government apparently thinks it knows “what Trump intended” with the documents. And it’s signaling that it plans to prove that intent.

    • bmaz says:

      <...blockquote>“…postulating that Smith is intending to prove at trial what Trump’s motive was”.

      Well, yeah, Smith will have to do that. That is the brilliant analysis Blake has??

      • Scott_in_MI says:

        “Well, yeah, Smith will have to do that.”

        Does he? I was under the impression that demonstrating willful unauthorized retention of classified information was sufficient, and the failure to turn documents over in response to a subpoena seems to satisfy the “willful” component.

        • vigetnovus says:

          That was my understanding as well, that Smith does not have to prove motive, just that there was willful intent to illegally retain the documents.

          Of course, if SCO has ironclad evidence that clearly spells out the motive, it will be very easy to convince a jury that the retention was willful. In addition, it will blow out of the water the likely defense strategy of “how can you be so sure he willfully retained these documents?” questions during cross of practically every witness. A clear narrative and story always works best in these situations, and will keep the jurors engaged in the trial.

          • bmaz says:

            You have been listening to people on the internet. Juries always want that evidence. They want to know why. Saying it is not an element of this or that crime is fool’s gold. Yes, they want to know.

            • SteveBev says:

              In one instance there is evidence in the public domain of the purpose to which Trump found a use for the document- Trump is recorded discussing the document with Meadows biographers, as if it vindicates him and undermines Gen. Milley. At least in this instance, his leaking of the material was to stroke his vanity, and give him a ‘win’ over a perceived opponent, against whom he had conceived a grievance.
              The nuclear sub stuff with Pratt might not have been charged, but again it is an instance of vanity- here he wants to parlay state secrets for (at the very least) being seen to be a man in the know who thereby garners attention and (he imagines) respect.
              What his precise motives and purposes and might be in relation to other documents remains to be seen. But vanity and spite will factor in the matrix somewhere in his calculations for squirrelling away classified documents for future personal advantage when the opportunity presented itself.

                • SteveBev says:

                  If the ‘nuclear sub’ conversation with Pratt was backed up with evidence, but was unrelated to any classified document in found in Trump’s possession, couldn’t the conversation nevertheless be admissible as evidence of motive in relation to his use of classified information, or is it in your judgment too tenuous?

                  • bmaz says:

                    I don’t know. What I do know is that getting evidence into a real criminal court is a far different thing than it being in the public sphere.

                    • SteveBev says:

                      Yes I know. That’s why I prefaced the point in the way that I did.

                      I was genuinely interested to learn whether you thought that a generalised motive would go some way toward explaining the case to a jury, or whether you felt it is necessary to try and explain particularised motives for each document or group of documents.

                    • bmaz says:

                      Unfortunately, not sure I know that either. We really do try our best here to predict things, but sometimes you just don’t know.

              • earlofhuntingdon says:

                Even if Trump were not disclosing secrets for money or return favors, that he would use nuclear sub and weapons secrets in conversation at the dinner table, or give them to a biographer to score a bloody debating point, marks him as hopelessly reckless and self-serving.

                It would illustrate at trial the argument that he will use anything for any purpose, as long as he sees a benefit in it.

                While I don’t imagine anyone on the govt side would want to discuss anything about this in open court, it would motivate them to see if there are legitimate reasons to prevent his making further disclosures of state secrets.

  10. Hart Liss says:

    Waiting for the superseding indictment alleging actual old-time espionage: selling state secret — classified documents — to foreigners.

    • bmaz says:

      Why should there be a superseding indictment? Why do people like you think it is hunky dory for prosecutors to serially string out charges they already know about for tactical advantage against a defendant? You think that is a good thing? Seriously?

  11. bloopie2 says:

    Thought struck me while reading something about Trump. Is he (or was he) as good as Don Rickles at insulting people?

    • Rayne says:

      No. Rickles’ success at insults was that he both knew the target of his insults well and he knew the limits of both his audience and his target. His insults were part of his comic persona because he was otherwise known to be a really nice guy.

      Trump’s insults don’t reflect an understanding of his target, only his audience’s desire for cruelty, and he punches down displaying no understanding of limits. It could be argued Trump’s insults are part of his kayfabe but he has always insulted people in public and private. There’s no off button.

      • sohelpmedog says:

        Yes; one of the nicest. And that made all the difference because you could laugh with him, rather than recoil at an exhibition of cruelty,


        [Moderator’s note: URL above replaced with a direct link to the YouTube video. Please use the Share button in YouTube to copy the link for sharing; do NOT copy the Google Search link as it contains huge amounts of tracking information. /~Rayne]

        • earlofhuntingdon says:

          Now that looks like a url that should be broken up. Not to mention that there are less intrusive search engines than giggle.

            • earlofhuntingdon says:

              You’re saying it’s the link and not appended tracking info, or that the tracking is now inseparable from the link? Coming from giggle, my preference would be to deactivate it. Readers can put it back together.

              • Rayne says:

                sohelpmedog typed into Google “don rickles frank sinatra on johnny carson” and then pressed Enter.

                Then they copied and pasted into their comment the link from the first result of the search results which are to a YouTube video.

                But the search results link says more or less: [Account sohelpmedog] used Google dot com to search for [don rickles frank sinatra on johnny carson] after searching for [unknown] on [device X] via [network Y] and a bunch of other metadata.

                If you were to click on that Google Search link from comments here, Google can pair you to emptywheel comments AND sohelpmedog AND whatever device sohelpmedog used AND whatever else sohelpmedog had been looking for prior to copying that Google Search link.

                Abso-fucking-lutely nope. Clicking on a YouTube link will pair you to emptywheel’s comments and I think they already have you dead to rights on that if you haven’t copied links and opened them in a new browser tab.

      • LadyHawke says:

        One relatively early one that sticks in my mind is Trump not only deliberately showing up late at Michael Cohen’s son’s bar mitzvah, but then loudly mocking how desperate Cohen was to have him there. Carefully targeted cruelty.

      • Ginevra diBenci says:

        Rayne, your distinction is well drawn. I would add that unlike Rickles’s scripted, practiced, and perfectly timed comedy, Trump’s insults often started as unplanned blurts. I’m thinking of his 2015 blast at John McCain (“I like people who don’t get captured, okay?”), which felt like a hastily justified stab at the time.

        He tends to repeat things ad nauseum, of course, but certain initial degradations like the McCain one feel clumsily improvised–something Rickles did only within the parameters of social situations/audience, as you explain, a sensitivity Trump either lacks or bulldozes over.

        • Bruce Olsen says:

          Rickles got my brother at a club in NYC in the late 60s or early 70s.
          Brother was a fighter pilot, was wearing a gray sport coat and a white turtleneck and Rickles asked if he was a U-boat commander.
          Got a pretty good laugh and my brother got to tell people for years he’d been zinged by Rickles.
          So some of his work was scripted (like almost any good comic) but not all.

      • Bruce Olsen says:

        The difference is that Rickles was aiming at comedy.
        Trump has always aimed to inflict pain,to display his power, as a means to test loyalty, and to get his followers to enforce his will on the targets (whether physical violence or mere electoral defeat).

    • earlofhuntingdon says:

      The alleged frauds are many, pervasive, and subtle as a brick. Serious prison time is likely to await Mr. Santos.

  12. CPtight617 says:

    At some point, perhaps when T loses his businesses and the receiver starts selling off property, or when SC logs a conviction in J6 and dying in prison becomes a real possibility, Trump will absolutely pull a “Russia if you’re listening” on this TS/SCI material just to fuck with Biden and DoD and to enrage Milley, Esper, et al.

    • Alzero53 says:

      I assume all of this will be moot if and when TFG becomes POTUS again? Can anyone speculate about how he might go about nullifying any prosecution or conviction? I am sure BMAZ will say this is entirely premature, but surely the possibility of reelection with all that entails must be seriously considered.

      • Rayne says:

        We have roughly a year to worry about that. A lot of shit happens inside one year. Let’s not clutter up discussion with a very large what-if.

  13. Molly Pitcher says:

    Aspiring facist, Kari Lake is running for Kristen Sinema’s seat for Senate in AZ.

    [Moderator’s note: your username was changed to the one you’ve used for 2383 comments to date. Pretty sure you didn’t want to use what looked like a RL name. /~Rayne]

  14. greenbird says:

    why do i feel this is ne plus ultra of all marcy’s posts – perhaps ever – and a two-bit of relief: Airplane AND Don Rickles in the mix.
    well, first, thank you, marcy, for everything.
    and next, thank you, well-practiced commenters, for bringing your views and experience.
    this post, to me, feels very special. it will take me a while to comb through it, links and all. it will be worth it.

Comments are closed.