October 7, 2022 / by 

 

Big Criminal Justice News — and Not So Big Criminal Justice Not News

Joe Biden just pardoned everyone convicted at the federal level of simple marijuana possession, while encouraging Governors to follow suit.

Proud Boy Jeremy Bertino just pled guilty to seditious conspiracy and weapons possession. (Here’s the statement of offense.)

And … far less interestingly, but noting for the record, FBI agents trying to force David Weiss to indict Hunter Biden leaked to Devlin Barrett just like FBI agents trying to harm Hillary Clinton leaked to Devlin Barrett in 2016.

Back to the stuff that matters. Bertino will be a witness not just against Enrique Tarrio and Joe Biggs, but also against Roger Stone (this plea happened as yet more testimony implicating Stone was introduced into the Oath Keeper’s trial). DOJ now has both seditious conspiracy trials focused on the former reality TV show host’s rat-fucker.

And my goodness, the marijuana pardon will positive affect almost as many lives as the student loan forgiveness (But See Ravenclaw’s correction here).


FBI Allegedly Found Child Sexual Abuse Material When It Searched Josh Schulte’s Discovery Laptop

For the past several weeks — since his attorney, Sabrina Shroff, filed a letter on September 28 asking why he hadn’t been delivered to the SCIF as expected on September 26 — there has been something weird going on in the docket for Josh Schulte — who in July was convicted of stealing and leaking the CIA’s hacking tools to Wikileaks. She noted there was a probable request that he be withheld from the SCIF in the docket and wanted access to it. Today, the government unsealed three filings explaining what happened: They allegedly caught Schulte with Child Sexual Abuse Material again. Almost four years to the day after he was found using contraband phones in MCC, the government did another search of his cell to figure out whether and how he got the CSAM (which probably came from his discovery pertaining to the files allegedly on his home computer in 2017).

The filings are:

What happened is this:

July 27: The government obtained a warrant for Schulte’s discovery laptop covering contempt and contraband with search run by filter AUSA.

As the Court is aware, on July 27, 2022, United States Magistrate Judge Cheryl L. Pollak of the Eastern District of New York signed a warrant authorizing the seizure and search of the laptop previously provided to the defendant for his use in the Bureau of Prisons for reviewing unclassified discovery and preparing litigation materials in this case (the “Laptop Warrant”), which was at that time located at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. Pursuant to the terms of the Laptop Warrant, the initial search and review of the contents of the defendant’s laptop for evidence of the subject offenses set forth therein, specifically violations of 18 U.S.C. §§ 401(3) (contempt of court) and 1791(a) (possessing contraband in a correctional facility), is being conducted by agents from the Federal Bureau of Investigation (“FBI”) who are not part of the prosecution team, supervised by an Assistant U.S. Attorney who is also not part of the prosecution team and is experienced in privilege matters (the “Wall Team”), to segregate out any potentially privileged documents or data.

August 26: The FBI discovered an extra thumb drive in the SCIF.

On or about August 26, 2022, Schulte was produced to the Courthouse SCIF and, during that visit, asked to view the hard drive containing the Home CSAM Files from the Home Desktop. The hard drive was provided to Schulte and afterwards re-secured in the dedicated safe in the SCIF. The FBI advised the undersigned that, while securing the hard drive containing the Home CSAM Files, they observed that an unauthorized thumb drive (the “Thumb Drive”) was connected to the SCIF laptop used by Schulte and his counsel to review that hard drive containing the Home CSAM Files. On or about September 8, 2022, at the Government’s request, the CISO retrieved the hard drive containing materials from the Home Desktop from the SCIF and returned it to the FBI so that it could be handled pursuant to the normal procedures applicable to child sexual abuse materials. The CISO inquired about what should be done with the Thumb Drive, which remained in the dedicated SCIF safe. The Government requested that the Thumb Drive remain secured in the SCIF while the Government completed its review of the defendant’s laptop and continued to investigate the defendant’s potentially unauthorized activities.

September 22: FBI discovers “a substantial amount” of suspected CSAM on his discovery laptop with review run by a second AUSA.

[O]n September 22, 2022, the Wall Team contacted one of the FBI case agents handling this matter to inform him that, during the Wall Team’s review of the defendant’s MDC laptop, they had discovered a substantial amount of what appeared to be child sexual abuse materials (the “Laptop CSAM Files”) and to request guidance about how to proceed.

[snip]

[A]nother Assistant U.S. Attorney was assigned to the Wall Team at the request of the undersigned to be able to review the material and assist in obtaining that additional warrant, which this Court issued on September 23, 2022 (the “CSAM Expansion Warrant”).

October 5: FBI executes a search on Schulte’s cell, the SCIF, and electronics in the SCIF.

One warrant, which was issued on October 4, 2022 by United States Magistrate Judge Robert M. Levy of the Eastern District of New York, authorized the search of the defendant’s cell at the MDC and the seizure of certain materials contained therein, including electronic devices (the “MDC Cell Warrant”). The second warrant, which was also issued on October 4, 2022 by this Court, authorized the seizure and search of three specified electronic devices previously used by the defendant in the Courthouse Sensitive Compartmented Information Facility (“SCIF”) in connection with his review of CSAM obtained from the defendant’s home computer equipment and produced in discovery for review in the SCIF (the “CSAM Devices Warrant”). Both the MDC Cell Warrant and the CSAM Devices Warrant contain substantially the same procedures as the CSAM Expansion Warrant for initial review of the seized materials by the Wall Team. Both warrants were executed by the FBI on October 5, 2022.

DOJ is still investigating the discovery laptop for both the contraband and the CSAM. But they’re ready to give Schulte a typewriter so he can write his post-trial motions.

As the Government previously informed defense counsel and the Court, the Government cannot at this point consent to providing the defendant with a replacement laptop under any conditions (D.E. 950), in light of both his convictions of a variety of computer-related offenses and the additional evidence of his misconduct with regard to the previous MDC laptop that was seized. The Government has conferred with legal counsel at the MDC to request that the defendant have access to a typewriter for purposes of drafting these post-trial motions, similar to that available to inmates in general population. MDC legal counsel has indicated that this would likely be possible, subject to approval from the senior management of the MDC.


Trump’s SCOTUS Appeal Hypothetically Could Do Damage Beyond Delay

Given developments in the last two days, here’s how the various schedules pertaining to Trump’s stolen document case intersect (I’ve included the original 11th Circuit deadlines to show the effect of yesterday’s ruling to expedite the merits appeal):

October 5: Finalize a vendor

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14, 2022: DOJ revised deadline to 11th Circuit

October 19: Original deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

As I understand it, one way the 11th Circuit appeal may be expedited is that the panel will be picked, secretly, from the start, giving it a chance to review filings as they come in. And they can schedule an oral argument, if necessary, for almost immediately after the reply brief comes in. It will be a new panel, so the odds are at least one other Trump appointee will get a chance to weigh in, in addition to the two who already ruled against Trump.

The SCOTUS appeal, remember, is for a limited issue: Whether to restore classified records to the matters before Special Master Raymond Dearie and, ultimately, before Judge Aileen Cannon.

Particularly given that even Clarence Thomas, in setting DOJ’s deadline a week out, isn’t treating Trump’s appeal as much of an emergency, I think the most likely scenario is that SCOTUS declines to consider Trump’s appeal. It’s the easiest thing to do, dictated by precedent if SCOTUS feels obliged to follow it, and made more likely by the fact that Cannon has altered the scope of her order. As the timeline above shows, if that were to happen, it might well happen before DOJ’s deadline for its appeal on the merits.

I think the most likely scenario is that the 11th Circuit sustains the opinion that three judges on the Circuit already came to: that Cannon abused her authority to even take the appeal. DOJ has more information about Cannon’s abuses they could choose to include in their brief, such as that Judge Cannon halted a national security investigation based in part on a document Trump made public six years ago. Though by the time Trump files his response, he will have been able to review all the documents seized from his beach resort (barring the classified documents, unless SCOTUS quickly reverses the Circuit). So who knows what kind of imagined injury he’ll invent after seeing all the documents? The Circuit may act quickly enough to rule before Dearie issues his report to Judge Cannon, which is the next most likely time for her to engage in more fuckery. Because of her past fuckery, it doesn’t even appear that Dearie will issue a report on the potentially privileged materials until then either.

In other words, the best scenario — and a not unlikely one — is that SCOTUS first declines to review Trump’s appeal, and then the 11th Circuit rules that Judge Cannon improperly intervened, all of which may well happen before anything else overt happens in Judge Cannon’s docket, though Trump would have the ability to and likely would introduce details learned from his review before the 11th.

But we don’t know.

As I keep saying, anyone who tells you they know how this is going to work out is selling you assurances that can no longer be offered with this 11th Circuit and with this Supreme Court.

One thing many commentators are claiming that bears correction, however, is the claim the only damage the Supreme Court review can do is delay: that even if SCOTUS permits Dearie and Cannon to review the documents with classification markings, it could do no more damage to the DOJ investigation. That is obviously false.

Assume for the moment that SCOTUS does take Trump’s appeal and does rule that Cannon can include classified documents in her review (to be sure, I think that unlikely). And assume for the moment that the 11th Circuit reverses itself and finds that Cannon acted properly by intervening in a national security investigation to protect Trump’s interest in a letter he himself made public six years ago. Assume, too, that the 11th Circuit leaves in place Cannon’s decision to treat this as a “hybrid” motion, yoking the Special Master process to a Rule 41(g) motion.

In that scenario, Dearie would issue his report, including regarding classified records, on December 16. He likely would uphold all DOJ’s assertions regarding classification, because he understands how classification at least used to work, before this case: that the current Executive gets unlimited say over what is classified (which is different than what is National Defense Information). Trump would then object to Dearie’s report (he is guaranteed to when and if Dearie ever makes one). Cannon would then review the report de novo, as she did with Dearie’s work plan. And she would write an opinion that either affirmed Trump on one or two minor documents, or said, effectively, that she agrees with Dearie’s classification designations, but that she believes Trump’s logic — that he declassified these documents by shipping them to Mar-a-Lago, and that’s why he refused to give them back — is reasonable.

There are other things Cannon could do to fuck up the prosecution, for example by deeming the 33 pages of correspondence with NARA included in the Category A documents seized from Mar-a-Lago, Trump’s personal possessions under rule 41(g) and returning them to him, thereby depriving DOJ of evidence that directly pertains to the crimes under investigation.

But the way in which Cannon could most fuck up any charges for 18 USC 793e (though not obstruction) would by by issuing an opinion that — even if she agreed all the documents were classified — nevertheless deemed Trump’s bullshit story, that he believed he had declassified these documents by packing them in a box and shipping them to his beach resort, reasonable.

Charging a former President under the Espionage Act presents unique challenges, but I think they could be overcome given what we know has transpired. We’re even likely to learn that Trump lied to the lawyers who knew better than to ship classified documents to his beach resort, and those lawyers will make compelling witnesses against Trump.

But if Cannon gets the opportunity to review Trump’s bullshit declassification story and deems it reasonable — even though she has virtually no relevant experience from which to judge that issue, even though she’s just one judge big-footing on a lawful warrant, even though such an opinion would likely be overturned on appeal — it might make charging Trump under the Espionage Act prohibitively difficult. That’s because that opinion from a judge that Trump’s bullshit story was reasonable would likely be enough to sway at least one juror, especially if the case were charged in Florida. And DOJ is not going to charge Trump — they’re definitely not going to charge Trump under the Espionage Act — unless they’re sure that the most credible people making these kinds of arguments are potentially implicated witnesses like Kash Patel. Yes, they might still charge obstruction (and they might only charge obstruction anyway), but if Republicans win back one or both houses, they will use an obstruction-only prosecution to claim it was a politicized prosecution.

So yes, Clarence Thomas could do harm by accepting Trump’s appeal and SCOTUS could do harm by ruling in favor of it. I don’t think that’s the most likely outcome (and such a move would likely to lead to further appeals). But there is a risk of harm beyond a simple delay.


Judge Aileen Cannon Treated a Public Letter about Trump’s Health as More Sensitive than America’s National Security

As I have shown, had Judge Aileen Cannon left well enough alone, the government would have handed all Category B documents identified by the filter team back to Trump on September 1. Instead, she deliberately inflicted what she herself deemed to be further harm on Trump to justify intervening in the search of Trump’s beach resort.

And now she may have caused even more harm. That’s because, by means that are not yet clear (but are likely due to a fuck-up by one of Cannon’s own staffers), the inventories from both Category A (government documents that deal with a legal issue) and Category B (more personal documents) were briefly posted on the docket. (h/t Zoe Tillman, who snagged a copy)

Those inventories not only show Cannon’s claims of injury to Trump were even more hackish than I imagined. But it creates the possibility that DOJ’s filter team will attempt to retain some of the documents included in Category B, notably records pertaining to the Georgia fraud attempts and January 6, they otherwise wouldn’t have.

Start with the hackishness. The harm that Cannon sustained to justify intervening consisted of preventing DOJ from returning, “medical documents, correspondence related to taxes, and accounting information” to Trump, “depriv[ing Trump]of potentially significant personal documents.” Cannon made DOJ withhold such documents from Trump for a least two additional weeks and then used it to argue that Trump had a personal interest in what DOJ claims are mostly government documents and press clippings.

The single solitary medical document pertaining to Trump (there’s a Blue Cross explanation of benefits that appears to pertain to someone else) is this letter from Trump’s then-personal physician released during the 2016 Presidential campaign.

Not only was it publicly released over six years ago, but details of medicines left off the report and Trump’s role in dictating an earlier version of the letter were widely reported in 2017.

Aileen Cannon held up a national security investigation into highly sensitive documents stored insecurely at a beach resort targeted by foreign intelligence services, in part, because the FBI seized a public letter than had been released as part of a political campaign six years ago.

She personally halted efforts to keep the United States safe, in part, to prevent leaks of a document that Trump released himself six years ago.

But that’s not all she did.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

Similarly, there are documents that might be responsive to and of interest to Tish James in her investigation of Trump’s fraud. Those include:

  • 5 copies of the same one-page letter from Morgan Lewis about taxes
  • A document about a restrictive covenant agreement
  • A confidential settlement between the PGA and Trump Golf
  • Several IRS Form 872s, including one in a folder marked NYC 8/10 (the date of Trump’s deposition with Tish James)
  • An IRS Form 2858 with Molly’s name on it (almost certainly Molly Michael)
  • A signed tax return disclosure consent form

The desk drawer also includes details of Alina Habba’s retention agreements and payments, which she would have found when she searched the drawers to ensure there were not tax documents in there.

The tax documents are likely uninteresting. Some (especially the Hilbert documents) may already be in investigators hands. But the point remains: By preventing DOJ from turning over these Category B documents to Trump on September 1 like they requested permission to do, Cannon has now given DOJ an opportunity to argue these document are not privileged, possibly even that they’re responsive to various subpoenas that might be crime-fraud excepted.

With the exception of the Hilbert emails to the White House, DOJ may still return these — fighting over them may be more trouble than it’s worth. But because this inventory got released, it will now be clear what Trump’s lawyers are attempting to hide. It may even give James or Willis opportunity to subpoena the documents anew.

And it will be clear that Aileen Cannon endangered the United States, in part, based off a claim that a medical record that Trump himself released six years ago is more important than some of the government’s most sensitive documents.

As Tillman noted in her piece on the inventory, there are also details of some of the clemency packages Trump reviews. Those include pardons for Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner, as well as the commutation of Ted Suhl. There’s also one for an “RN” that might be Ronen Nahamani, whose clemency a bipartisan group of politicians supported, including Matt Gaetz. The inclusion of all these clemency packages makes it more likely that Roger Stone’s was among them — though by description, Stone’s pardon was in another drawer of a desk in Trump’s office.

One of the other main categories of Category A documents are letters to NARA, something likely covered by the part of the warrant authorizing the seizure of communications about classified records.


Anthony Trenga Smothers the Frothers’ Hopes for a Pee Tape Trial … But Not the Damage Done by Credulous Press

Judge Anthony Trenga has issued his order on John Durham’s omnibus motion in limine in the Igor Danchenko case which was — as the equivalent motion was in the Michael Sussmann case — a last desperate bid to turn a false statements trial into a conspiracy theory.

On all the most substantive issues, including whether Durham will be able to fly a German Ritz Hotel staffer in to testify about the pee tape, which is not charged, Trenga ruled against Durham.

His rulings include:

  • That the pee tape allegations are not intrinsic to the charged crimes and the confusing and prejudicial nature of the claims would outweigh any probative value of the story
  • Unless Durham can prove that Danchenko gave Steele the information on Millian that ties him to the pee tape, prosecutors can’t introduce utterly equivocal answers Danchenko gave to the FBI that a pee tape source could be Millian
  • Durham can introduce evidence that Danchenko told Charles Dolan he worked for Steele (though the communications in question show primarily that Dolan knew it), but he can’t introduce evidence showing that Danchenko told others he worked for Steele
  • The only reason to introduce an email to a business associate would be as impermissible evidence of bad character; it is not sufficiently related to the charges against Danchenko to be admitted under 404(b)
  • An email Sergei Millian sent on July 26, 2016 can be admitted (I’ve shown that it reflects Millian coming back from Asia earlier than he otherwise would have), but two emails from 2020 are inadmissible hearsay because by then, “Millian certainly possessed motive and opportunity to misrepresent his thoughts”
  • Durham cannot introduce the details of the 2009 counterintelligence investigation into Danchenko because to introduce those details would require hearsay, and the details themselves would not be all that useful to proving the case against Danchenko but would be very prejudicial
  • Trenga will rule on evidence pertaining to the reliability or credibility of Durham’s witnesses at trial

Both the issues on which Trenga ruled for Durham — Dolan’s knowledge that Danchenko worked for Steele and Millian’s July 2016 email — may actually hurt Durham’s case. On all the other issues, every bit of Durham’s effort to spin a conspiracy theory, Trenga has ruled for Danchenko.

And aside from noting, twice, that Millian had “opportunity and motive to fabricate and/or misrepresent his thoughts,” there’s another sign that Trenga gets what Durham’s ruse is.

His reasoning for excluding the pee tape lays out all the flimsy threads Durham spun in an effort to present his conspiracy theory.

Through [German Ritz employee] Kuhlen, for example, the government seeks to prove that Danchenko completely fabricated his sources to Steele on the Ritz-Carlton allegations and then lied about it to the FBI to keep Dolan off the FBI’s radar. But that justification faces several obstacles. First, Dolan’s role in these uncharged false statements is unclear. The government does not allege that Dolan was a source for Danchenko’s Ritz-Carlton reporting, and therefore this evidence seemingly is not being used to prove the falsity of Danchenko’s statement in Count I. While Dolan, in June 2016, received a tour of the presidential suite and had lunch with the hotel’s general manager and staff, the government does not appear to intend to present evidence that Dolan told Danchenko about those events, including meeting or speaking with Kuhlen.2 Thus, the link between Danchenko’s allegedly false statement about the Ritz and Dolan is a highly attenuated one. Perhaps recognizing this, the government instead proffers that this evidence goes to proving the materiality of Danchenko’s Count I statement, not its falsity. But the proffered evidence relating to the RitzCarlton allegations bears little probative value in terms of materiality. The government contends that had Danchenko told the FBI that Dolan was a source it is more likely that it would have interviewed Dolan, in part, because of his proximity to Danchenko in June 2016. But that fact can be established separate and apart from trying to prove Danchenko lied about his Ritz-Carlton sourcing. The government can sufficiently establish at trial that Danchenko engaged in fact gathering for the Steele Reports in Moscow in June 2016, that Dolan was present in Moscow during that same time, and that the two met in Moscow, without getting into the purported false statements or the underlying details, which have an attenuated connection to the charged false statement. Additionally, and perhaps more importantly, proving up an uncharged false statement does not bear on the materiality of the charged false statement.

Second, the government fails to reference any evidence that Danchenko told Steele either that he met with Kuhlen or, more generally, a western member of the hotel staff. The government does not, by all indications, intend to call Steele as a witness; and in terms of what Danchenko told Steele, the jury will be left solely with the hearsay description in the Report itself, which Steele, not Danchenko, prepared. Why Steele characterized the sources for the Ritz-Carlton allegations as he did in the Report or, indeed, whether the listed sources, in fact, came from Danchenko are subject to a significant degree of speculation. As such, the reference in the Report to those sources does not provide strong evidence that Danchenko informed Steele that he met with a western member of the hotel staff. Moreover, when asked by the FBI about “Source E” in his May 18, 2017 interview, Danchenko completely equivocated. See [Doc. No. 84], at 11 (“Danchenko: . . . I don’t think it’s just uh, I don’t think [UI] one of the um, hotel managers. Agent 1: You think source E is? Danchenko: [ ] Somebody I met. . . . And I don’t know who, who [Steele’s] referring to.”). The government seeks to prove that Danchenko never met with Kuhlen; and while that may be true, that evidence does not, given the circumstances, have much probative value concerning whether Danchenko lied to the FBI about his sourcing of the Ritz-Carlton allegations.

2 The government’s position on the probative value of this evidence, aside from materiality, is unclear. The government at one point, characterizes Dolan as a “fact witness” because of his tour of the presidential suite and time at the Ritz-Carlton in general, but does not draw a clear line between Dolan’s experiences and Danchenko’s reporting to Steele. [Doc. No. 78], at 10. The Indictment strongly implies, however, that Danchenko used information learned from Dolan during the June 2016 Moscow planning trip in his reporting to Steele. [Indictment], ¶¶ 30-34.

Judge Trenga won’t let this stuff in not just because the Rules of Evidence say you can’t rely on the emails of an unreliable witness written four politicized years after the fact without making him show up and risk prison himself to substantiate his claims.

He ruled against this stuff because Durham has not claimed to have any evidence to justify a number of wild leaps of logic he made to spin this conspiracy theory in the first place: Durham has not claimed to have (reliable) evidence about what Dolan told Danchenko over 6 years ago (indeed, Dolan apparently, “will testify that he has no recollection of seeing the defendant at the Ritz Carlton in June 2016”). Durham does not claim to know what Danchenko really told Steele about the pee tape, and he does not claim to know to what degree Steele exaggerated what Danchenko told him or if he otherwise reported it unfaithfully. The evidence Durham does have — that Danchenko made equivocal statements in response to a speculative cue and told the FBI his reporting stopped well short of what Steele claimed it did — doesn’t say what Durham claims it does.

Trenga won’t let Durham present his pee tape conspiracy theories in part because it is the pee tape, with six years of rabid focus by all parties behind it. But more importantly, he won’t let Durham present his pee tape conspiracies because Durham’s pee tape conspiracies were never any more substantive than Christoper Steele’s pee tape report drafted back in 2016.

That didn’t stop any number of media figures — Devlin Barrett, Jonathan Swan, Barry Meier, Rachel Weiner, and Marshall Cohen, among others — who regurgitated the evidentiary flimsiness of Durham’s conspiracy theories and printed them as fact.

You might be under the impression that John Durham has charged Igor Danchenko with multiple counts of lying regarding the role of Charles Dolan in the sourcing of the dossier. You might similarly be under the impression that, in the indictment, Durham alleges that Dolan was the source for the pee tape.

You’d be forgiven for believing those things. After all, the WaPo reported charges, plural, showed that “some of the material” in the Steele dossier came from Dolan.

The indictment also suggests Danchenko may have lied to Steele and others about where he was getting his information. Some of the material came from a Democratic Party operative with long-standing ties to Democratic presidential nominee Hillary Clinton, according to the charges, rather than well-connected Russians with insight into the Kremlin.

The allegations cast new uncertainty on some past reporting on the dossier by news organizations, including The Washington Post.

Relying on that report, Jonathan Swan described charges, plural, that Dolan was, “one of the sources for the rumors about Trump.”

And Barry Meier, who so badly misunderstood the import of Oleg Deripaska in his book on private intelligence, also claimed there were charges, plural, relating to Dolan and insinuated that Durham had alleged the pee tape came from him.

In Durham’s indictment, however, Danchenko comes across more like the type of paid informant often found in the world of private spying — one who tells their employer what they want to hear.

According to those charges, he supposedly fed Steele some information that did not come from Kremlin-linked sources, as the dossier claims, but was gossip he picked up from an American public-relations executive with Democratic Party ties who did business in Moscow. In 2016, the indictment states, the manager of the Ritz-Carlton in Moscow gave that executive a tour of the the hotel’s presidential suite, and soon afterward, Danchenko took a selfie of himself and the executive at the hotel.

Reporting on Danchenko’s arraignment, WaPo went off at more length, not only failing to distinguish an uncharged accusation as such (one likely source of the belief that Durham charged multiple counts pertaining to Dolan), but stating as fact that Danchenko made up an entire conversation — one Danchenko has consistently attributed to a named Russian source — regarding the pee tape.

He is also accused of lying about revealing to sources that he was working for Steele.

Durham says Danchenko made up a conversation he claimed was the source of one of the dossier’s most salacious claims, that Trump paid prostitutes at a Moscow hotel room to urinate on a bed in which President Barack Obama had once slept. The dossier also suggested Russian intelligence agencies had secretly recorded that event as potential blackmail material. Trump has denied any such encounter.

The indictment suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump.

Judge Trenga’s ruling will spoil the frothers’ hopes for a trial about the pee tape.

But the frothers aren’t the problem: The problem is how many actual journalists bought this sleight of hand and now remain silent about the baseless claims they perpetuated last year.

Update: Meanwhile, Danchenko has moved to:


How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.


FBI Approved Igor Danchenko as a Source before It Stopped Doing Back-Door FISA Searches to Vet Informants

Last Thursday, Judge Anthony Trenga denied Igor Danchenko’s motion to dismiss, while making it clear the government’s case was really shoddy.

Judge Anthony J. Trenga ruled that Danchenko’s case must be weighed by a jury, clearing the way for his trial next month. But it was “an extremely close call,” Trenga said from the bench.

(This AP piece has more detail but it also makes really obvious errors.) While there’s no ruling on the docket, Trenga must have approved any remaining CIPA issues.

The frothers, of course, remain obsessed with the news that the FBI formally made Danchenko a confidential human source in 2017. Most prominently, for example, Chuck Grassley and Ron Johnson wrote a pissy letter to Merrick Garland and Christopher Wray demanding information about why he was made an informant by October 22.

In December 2016, the FBI’s Crossfire Hurricane team identified Danchenko as Steele’s primary sub-source and, according to the FBI, “became familiar with the 2009 investigation.”[8] The FBI, even in light of the extensive derogatory information attached to Danchenko, proceeded to pay him as a confidential human source three months later from March 2017 to October 2020 as part of Crossfire Hurricane. Therefore, while we were investigating the Justice Department’s and FBI’s misconduct with respect to Crossfire Hurricane, you maintained him on the government’s payroll.

This extraordinary fact pattern requires additional information from the Justice Department and FBI relating to why Danchenko was placed on the payroll and paid by the taxpayer to assist in the federal government’s flawed investigation into President Trump.

I hope to finish a post explaining why all the frothers are painfully stupid in their response to this news before Danchenko’s trial starts next week.

I’m not surprised that Grassley and Johnson are just as clueless on this point as the rest of the frothers.

But I am somewhat surprised that Grassley, the Ranking Member of the Senate Judiciary Committee, doesn’t know something about how FBI vetted informants until 2018, after they formalized Danchenko as one: They queried the person against all the FBI’s databases, including their FISA databases.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Particularly given the past investigation into Danchenko and concerns about his past ties to Russian spooks, it is highly likely the FBI would have done such a back door search with Danchenko. They would have done it for precisely the concern Grassley and Johnson raised: to chase down some of the derogatory information on Danchenko from the earlier investigation. They would have done it to see the content of conversations he had with anyone of particular interest. Indeed, for a variety of reasons, the FBI likely could have done a backdoor search on Danchenko even after the querying standard changed in 2018.

The FBI likely made Danchenko a CHS not only for very good reasons, but for reasons that the frothers, if endless saturation inside a disinformation bubble hadn’t rotted their brains, might even approve of.

And before they did so, they likely did some very thorough vetting of him first.


Aileen Cannon Deliberately Harmed Trump To Create an Excuse to Help Him

On September 5, Judge Aileen Cannon ruled that depriving Donald Trump of personal items constituted “real harm.”

being deprived of potentially significant personal documents [] creates a real harm

Yesterday, the newly unsealed filter team status report revealed that, for two weeks, Judge Cannon deliberately inflicted that harm on Trump.

That’s because on August 30, DOJ’s filter team told her that they wanted to return the original copies of documents designated as Category B — 43 sets of documents amounting to 382 pages of documents — to Trump.

[T]he PrivilegeReview Team proposes to return the originals and provide a Bates-stamped control copy to the Plaintiff. Many of these materials do not appear to be privileged (although one appears to be.11), but they are all either legal in nature (e.g.,settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

These documents were lawfully seized: many were likely in the desk drawer in which Trump also had a document marked Confidential and another document marked Secret. The others would have been seized from the storage closet where Trump was hiding 79 documents with classification markings. But on August 30, DOJ proposed to Aileen Cannon that they give them back.

Then, the next day, on September 1, filter attorney Benjamin Hawk asked for permission to pursue “the proposal that we offered,” which, in addition to providing Trump with Bates-stamped copies of all the documents treated as potentially privileged, would also include (per the status report that had been discussed at length in the hearing) giving him the originals back.

MR. HAWK: Your Honor, if I may.

THE COURT: Yes.

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing. THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews. I think Mr. Bratt is hoping to get a few more minutes in.

In response to a request to (among other things) give the originals of Trump’s personal documents back, Cannon declined to approve the request. Had she approved it, 382 pages of personal documents would have been back in Trump’s custody right away. He would no longer have been deprived of those potentially significant personal documents. The harm that Cannon said was caused by his deprivation of those documents would be ended.

And that is precisely the harm she cited when she first ruled that a Special Master had to review the documents that she had prevented DOJ from returning to Trump. Indeed, she claimed there was a dispute about the very personal property that DOJ had tried to give back five days earlier.

Although some of the seized items (e.g., articles of clothing) appear to be readily identifiable as personal property, the parties’ submissions suggest the existence of genuine disputes as to (1) whether certain seized documents constitute personal or presidential records, and (2) whether certain seized personal effects have evidentiary value. Because those disputes are bound up with Plaintiff’s Rule 41(g) request and involve issues of fact, the Court “must receive evidence” from the parties thereon. See Fed. R. Crim. P. 41(g) (“The court must receive evidence on any factual issue necessary to decide the motion.”). That step calls for comprehensive review of the seized property.

Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.

By that point, she had personally been responsible for depriving Trump of 382 pages of documents for five days.

She would cite back to this passage, claiming a dispute including over documents DOJ had tried to give back, when she refused to stay her injunction on investigating the classified documents.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)]. [my emphasis]

The only dispute here was between Cannon and the government! They had already asked to give Trump’s personal documents back, and she refused to grant permission to do that.

And Cannon pointed to those personal items — items the government had already tried to give back — when she refused to lift her injunction on investigating classified documents.

Again, the September 5 Order imposes a temporary restraint on certain review and use of the seized materials, in natural conjunction with the special master process, only for the period of time required to resolve any categorization disputes and rule on Plaintiff’s Rule 41(g) requests. This restriction is not out of step with the logical approach approved and used for special master review in other cases, often with the consent of the government, and it is warranted here to reinforce the value of the Special Master, to protect against unwarranted disclosure and use of potentially privileged and personal material pending completion of the review process, and to ensure public trust.

[snip]

And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

As I have noted, there was just one clearly privileged document among the 11,000 seized on August 8. DOJ had tried to give it, along with some personal documents, back on August 30. Yet that is precisely what Cannon pointed to — the harm that she herself was sustaining — in her justification to hold up an investigation into 103 highly classified documents stored in a beach resort targeted by foreign spies.

She put the entire country at risk because of a harm she herself continued an extra two weeks.

And that’s not the only harm that Judge Cannon inflicted on Trump to justify interfering in this case.

First, we now know that her reference to tax and medical and accounting information was to the Category B documents — the ones that DOJ had already attempted to give back.

According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2;

I had mistakenly believed she was relying on the privilege status report — a document which the filter attorneys had said could safely be shared publicly. The status report doesn’t mention those specific documents at all (unless the Morgan Lewis document explicitly referenced accounting). Those references are to still-sealed information.

She’s the leak she claimed threatened Trump’s reputation.

Worse still, it’s now clear those really may be Trump’s personal accounting and tax documents (something that I previously thought was unlikely). If so, Cannon’s reference to that still-sealed information revealed to Tish James that documents potentially responsive to subpoenas — documents that Alina Habba swore did not exist — may soon be found at Mar-a-Lago.

Since she got this lawsuit, Judge Cannon has been doing backflips to try to help Trump. That goes so far as inflicting harm that she then uses to justify intervening.


What Happened with the Potentially Privileged Documents Seized from Mar-a-Lago

Yesterday, SDFL AUSA Anthony Lacosta filed a sealed letter to Special Master Raymond Dearie along with the log laying out any disputes between the government and Trump over his potentially privileged documents.

Subsequent to that, Judge Aileen Cannon ordered unsealed the status report that Lacosta and Benjamin Hawk filed back on August 30. I will explain the two kinds of damage Judge Cannon did to Donald Trump in order to create an excuse to intervene in this matter — as I keep saying, Cannon caused the harm she intervened to fix.

For now, I want to talk about what happened with the potentially privileged material. Here’s a table of what we know about those documents.

Note that one page privileged document, item B-33. At least per the filter team, it may be the only clearly privileged document seized, one page out of 11,000 documents.

The warrant to search Trump’s beach resort required a privilege team to search his office. But (as members of that team explained in the hearing on September 1), they instead did the initial search of both the storage room and Trump’s office. As a result, the privilege team segregated 6 sets of information, which were catalogued on what I’ve called the SSA Receipt. The revised detailed inventory describes these boxes this way (note, these descriptions probably exclude the potentially privileged material, which is inventoried separately):

Item 4, which the status report describes as “the entire contents of a single drawer” in Trump’s office.

Three passports were originally in this drawer, which is why they were seized. They were returned on August 15. These documents were appropriately seized under the warrant because there were two classified documents in the drawer.

Items 29 through 33, which were in the Storage Room.

These boxes would have been appropriately seized under the warrant because all were stored in the place where boxes storing classified documents were stored. In fact, Item 29 had a Top Secret document in it and Item 33 has two empty staff secretary folders in it. Additionally, all are described to contain government documents, which were also authorized for seizure.

Two days after the search, on August 10, a Case Agent found a 3-page letter from law firm Morgan Lewis, “comingled with newspapers;” Morgan Lewis’ Sherri Dillon was named in Tish James’ motion to compel Trump’s deposition. So they sent the entire box to the privilege team, as described in the warrant. The box also included 4 pages of government documents treated as potentially privileged, including an email from the Air Force Academy’s coach.

By August 11, the privilege team had segregated out anything that  met their over-inclusive standard for potentially privileged documents from the rest of the documents, then sent the 7 boxes to the investigative team (which is, presumably, what led to the return of the passports days later).

On August 25, a case agent provided one more document to the privilege team:

39-page set of materials that appears to reflect the former President’s calls. (The majority of pages are titled “The President’s Calls” and include the Presidential Seal.) Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes.

One of these messages was from “Rudy,” though did not appear to constitute legal advice.

The privilege team separated all these potentially privileged documents into two categories:

Category A

This category includes 21 sets of documents for a total of 138 pages. Most are, “primarily government records, public documents, and communications from third parties,” which could not qualify as privilege. One document is a 3-page email to a White House email account, which the government maintains constitutes a waiver to attorney-client privilege. As noted, another is a printed email from the Air Force Academy’s head baseball coach with the word “PatC” on it.

For example, the Privilege Review Team agents identified and segregated a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “PatC” (perhaps a reference to White House Counsel Pat Cipollone) was written on the document in black marker (Item Number 4 in Exhibit A at FILTER A-005).

Another, as noted above, is one of the phone messages from the President’s Calls (we know this is a phone message because both are described as Item 21 in Category A), from “Rudy” and appearing to be a topic unrelated to legal advice.

Category B

This category consists of 43 sets of documents, for a total of 382 pages. The status report describes those as,

legal in nature (e.g., settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

According to the privilege team, just one of those documents appeared to be privileged. But way back on August 30, they proposed to give the originals of all these documents back to Trump. Then they tried again on September 1. Trump had to wait two more weeks before receiving these documents, so that Judge Cannon could use them as her basis for intervening in the case.

September 26 email

According to Trump’s objections, on September 26, the government provided an email newly identified by case agents (presumably in the course of reviewing the inventory). The government maintains the email is not privileged but Jim Trusty claims it is.

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

In addition to the document sorting, before the filter team shared any photographs documenting the search, both the filter agents and the filter attorneys reviewed the photographs to ensure no privileged documents were captured in the photo.

Update: Added explanation for Morgan Lewis letter, h/t Simon. Added observation that there may be only a single privileged page in the whole seizure. Corrected numerical error.


NARA Asked for 24 Boxes … Trump Gave Them 15

The Archives (NARA) has released several sets of documents pertaining to the documents Trump stole, including the email that kicked off the entire hunt for documents on May 6, 2021. In it, NARA General Counsel Gary Stern emailed Pat Philbin, Mike Purpura, and Scott Gast talking about known missing items (including the love letters from Kim Jong Un).

Of those love letters, Stern described that Trump had a binder of them made right before he left office, just like he had a binder of the records pertaining to the Russian investigation.

[I]n January 2021, just prior to the end of the Administration, the originals were put in a binder for the President, but were never returned to the Office of Records Management for transfer to NARA.

More hilariously, Stern told the Trump lawyers that he knew of around 24 boxes of records that had been kept in Trump’s residence that weren’t returned. Stern told Trump’s lawyers that he knew that Pat Cipollone had told Trump to give them back — all 24 boxes of Presidential Records!

It is also our understanding that roughly two dozen boxes of original Presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the Administration that they need to be. I had also raised this concern with Scott during the final weeks.

NARA emailed Trump’s lawyers and told them he knew that there were roughly 24 boxes that Trump’s own White House Counsel had determined belonged to NARA.

And after an extended fight, Trump returned just 15.

Trump apparently thought a building full of archivists would just round up from 15.

Copyright © 2022 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/author/emptywheel/