Mark Meadows’ Proffer

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I continue to dig through the document dump Judge Aileen Cannon finally released the other day.

The dump included 70 exhibits (some FOIAed documents) submitted in conjunction with Trump’s motion to compel discovery and a few exhibits submitted with the government’s response.

The most titillating of the latter set is a November 2022 interview with Person 16 (whom I suspect to be Eric Herschmann, in part because Herschmann relishes giving titillating interviews in which he calls other lawyers morons).

But for the moment, I want to look at Person 27’s December 2022 proffer.

While the government is coy about the identity of Person 16, they’re not hiding Person 27’s identity: It is Mark Meadows.

The passages below, matched to the corresponding exhibits, makes it clear that Person 27 is Trump’s former Chief of Staff. Said Chief of Staff briefly got involved in the document recovery effort after NARA first threatened to make a referral to DOJ, then threatened to deem the boxes Trump had taken destroyed. Said Chief of Staff traveled to Mar-a-Lago in October 2021 (at a time when discussing the January 6 investigation would have been fruitful) and while there asked if Trump wanted help searching boxes, only to be told that Trump didn’t need help returning documents he wanted to keep.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

These passages, collectively, serve to rebut Trump’s claim that the involvement of Biden White House attorney Jonathan Su was in any way investigative or improper; the passage shows that Patrick Philbin involved Su, his successor as White House Deputy Counsel, and the White House had to further intervene when Meadows tried to reach out to a White House Office of Records and Management person, Person 40, directly.

This ABC story describing Meadows’ testimony, describing offering to help but being rebuffed, further corroborates that Person 27 is Meadows.

The former chief of staff also told investigators that shortly after the National Archives first requested the return of the official documents taken to Mar-a-Lago in 2021, he offered to Trump that he would go through the former president’s boxes to retrieve the official records and send them back to Washington. Meadows told investigators Trump did not accept his offer, according to sources.

So Government Exhibit C is a December 6, 2022 proffer from Mark Meadows.

I’m not so much interested in the content of that proffer. As ABC has reported, Meadows’ testimony was iterative, slowly evolving over at least three interviews as he was presented with more evidence of details that Jack Smith knew. Aside from a mostly redacted reference to Trump’s delegation of declassification authority (which may relate to the effort to declassify the Crossfire Hurricane binder and which might not be entirely true), the description of his trip to Mar-a-Lago to offer to help is the most interesting bit in this proffer.

But that’s the thing about proffers, offered by one of the best attorneys representing any Trumpster, George Terwilliger, offered before Beryl Howell overruled any Executive Privilege claims, and offered before the Georgia indictment made Meadows’ operative January 6 story told in DC less sustainable.

Proffers are the story you want to tell, not the full story.

As I wrote last August, after the first of ABC’s big scoops,

[T]his is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise.

There are a number of things to which Meadows eventually testify, per ABC’s reporting, that are not in this proffer. The most notable pertains to his ghost writers, on which topic his testimony evolved to accept that they were probably right that Trump was sharing classified documents in 2021.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said. Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

According to ABC, where Meadows’ other testimony would evolve to is that he would have been more diligent than Trump returning stolen documents.

Meadows also told investigators that he would have responded differently than Trump when the National Archives first asked Trump to return all remaining presidential records in his possession, and would have been very diligent in his handling of the initial search for documents to return to NARA, sources familiar with the matter said.

It’s unclear if there’s an “if” involved in this conditional statement, such as “if he knew Trump was stealing classified documents.”

That’s interesting, because in that proffer, Meadows claimed not to believe Trump had Presidential Records at all.

In July 2021, [Philbin] informed [Meadows] that NARA had contacted [Philbin] regarding missing boxes of documents. [Meadows] was already planning to travel to Mar-a-Lago for an unrelated meeting and offered to look for the missing boxes while [he] was there. [Meadows] was skeptical there were any presidential records as [he] believed, based on [his] experience with FPOTUS at the White House, that the boxes likely only contained newspapers.

Again, there’s a pretty big chance that this particular claim evolved, just like Meadows’ explanation for why he edited a really damning description from his ghost writers. The proffer is a baseline, a place from which prosecutors could slowly coax testimony closer to the truth, all the while locking in useful testimony to rebut Trump’s most outlandish claims. In this case, after all, the testimony is critical to rebutting Trump’s complaints about the involvement of Su, whether or not the testimony was entirely forthcoming, even while not giving anything away.

And I’m interested in it for that reason as well.

This proffer doesn’t tell us how Meadows would later testify. It doesn’t give anything away.

Robert Mueller’s team tried to flip witnesses against Trump, only to find that Trump bought them off with pardons — something that Person 16 describes already got promised to Walt Nauta. Here, there’s a far larger cast of characters, including people like Meadows who are central to all of Trump’s suspected crimes and also likely to welcome an offer of a pardon in exchange for loyalty. This slow squeeze is a different approach.

And along the way, Jack Smith got useful testimony — testimony that will give him what he needs to go to trial — but testimony that also can be used to inch closer to the truth.

Trump’s Attorney-Client Leak Privilege

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Pursuant to Judge Cannon’s order, her clerk has finally unsealed the substance of a complaint from Stan Woodward floated last summer: That, in a August 24, 2022 meeting, Jay Bratt insinuated that if Walt Nauta didn’t cooperate against Trump, then he’d lose his opportunity to be a Superior Court Judge. Here’s the letter presenting Woodward’s side of the story and here’s Jay Bratt’s explanation.

In his explanation of the dispute for Judge Cannon, Woodward repeatedly denied being the source for leaks to the press because “we litigate our cases in Court.” He even explained that multiple people got ahold of a longer letter including his complaint, but reporters, “agreed not to disclose defense counsel’s identity at defense counsel’s request because, we litigate our cases in Court.” That’s the same reason Woodward provided for not correcting Trump’s Truth Social attacks,

alleging prosecutors with the special counsel’s office had attempted to ‘bribe & intimidate’ a lawyer representing a witness in the case and claimed that the lawyer had been offered an, ‘”important judgship” in the Biden administration’ if the client ‘”flips” on President Trump.’

As Stan Woodward tells it, he spent a whole lot of time instructing journalists precisely how they should report on these allegations, but without correcting any false claims made by Trump.

It turns out, though, that Woodward’s complaint is not the only one Trump used in a bid to get grand jury testimony unsealed back in June 2023, after getting a target letter. Trump made a bunch of allegations:

  • Brett Reynolds was anxious to get Kash Patel to testify under the schedule when Beryl Howell had ordered it to occur even after Patel hired Stan Woodward just as the Oath Keeper trial tied up his schedule for months
  • Prosecutors asked Chamberlain Harris for a password to the laptop on which she had some classified information and she provided it
  • They gave Margo Martin somewhere between 72 hours and six days notice for a grand jury subpoena
  • They obtained a warrant for Carlos De Oliveira’s phone after having issued a subpoena for content because he hadn’t turned over a message from Nauta instructing him to cover up a July 10, 2022 return to Mar-a-Lago by Nauta and Trump
  • Tim Parlatore invoked attorney-client privilege 45 times during a grand jury appearance

It’s the last one that is the most remarkable. As Jack Smith explained — before even addressing the Woodward claims — the reason Parlatore was testifying before the grand jury in the first places was because Trump refused to have a real custodian of records attest to the thoroughness of the searches of Trump’s other properties for remaining stolen documents. As a result, Parlatore agreed to sit for a grand jury interview at which he would make item by item privilege claims about the thoroughness of the search he had overseen.

It was the same stunt Trump pulled with Christina Bobb in June 2022.

That part of Jack Smith’s response provides a ton more details about Parlatore’s efforts to string out prosecutors in fall 2022.

Trump made claims of abuse about one question in particular: whether Trump was the source for false claims Parlatore made about how cooperative Trump was during the June 2022 Jay Bratt visit, at which Parlatore was not present.

At one point, Parlatore ciaimed attorney-client privilege after being asked whether the former President was the source for Parlatore’s testimony about statements the former President purportedly made to government investigators about being cooperative. GJTr.40. The prosecutor then asked if a client could waive privilege and questioned why the former President had not allowed Parlatore to testify as to these conversations if he (the former President) meant to be cooperative, but the government prosecutor also quickly made clear that she was “absolutely not saying” that waiver of privilege is required to be cooperative and that, consistent with her earlier statement, she did not mean to “induce any waivers.”GJTr.40-43. Nonetheless, Parlatore on several occasions accused the government prosecutors of “trying to improperly invade the attorney/client privilege.”GJTr.45. see also GJTr.77. After one such accusation, a government prosecutor conveyed to Parlatore that “if [he] want[ed] to invoke the privilege, [he] can just say that” instead of casting aspersions about “what the people on this side of the table are and are not trying to do.”

In short, it was designed to create the opportunity to claim abuse, and Trump then claimed it.

What’s so interesting about the allegation — besides all the details of Parlatore stringing along prosecutors — is that shortly before this complaint, Parlatore loudly left Trump’s team and fairly routinely ran his mouth about details of Trump’s legal team. That is, Parlatore was more forthcoming with CNN than he was with the grand jury. And per a Hugo Lowell story, Parlatore shared a transcript of this grand jury appearance before Trump demanded a transcript of this grand jury appearance.

It’s all so predictable and obvious.

But … eight months later, it still seems to work wonders for Aileen Cannon.

Trump’s Nuclear Documents Were Mixed with Post-Presidential Press Clippings

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Some of the most interesting documents from the exhibits released with Trump’s motion to compel discovery yesterday pertain to the review of the original 15 documents returned in January 2022. This email thread within NARA describes an initial review of the documents. And these tables describe what the FBI found on initial review.

Together, they go a long way to describing why FBI had to pursue a criminal, rather than just a countrintelligence, investigation.

The initial review was written on January 18, the same day the 15 boxes arrived in DC. That initial review and a follow-up confirmed that NARA had received the things they had originally asked for: the weather map that Trump had altered, plus an accordian folder including the other documents they were seeking.

There was one accordian folder in the mess so it stood out. It contained, among other things, the Obama letter and North Korea correspondence. We need to verify that all of the correspondence is in there. But I think we are in good shape.

But even before discovering that, the person who wrote the memo described how an initial glance revealed classified documents, and a closer look after moving the boxes to a SCIF revealed news clippings that post-dated Trump’s presidency.

My plan was to glance into each box before I shelved it so I could give y’all a high level overview. As I fanned through the pile of newspapers at the top of the first box, I found several unfoldered classified docs in between some of the newspapers. So I took all the boxes to the SCIF. The first box I picked up in the SCIF had a newspaper on top that was post 1/20/2021. At that point I decided to take a closer look in each box to see if there are other issues that you three, David, and Deb might want to know about sooner than later.

From the start then, NARA knew that someone else at Mar-a-Lago had been accessing classified information after the end of his presidency.

For comparison, the FBI found that there were post-VP folders in a box with the Afghan documents at the core of Robert Hur’s investigation into Biden’s classified documents, but those were separate folders.

The person described that most of those classified documents — as claimed by Trump’s lawyers — were “state briefing papers and briefing cards” prepping Trump to talk to foreign leaders. But they “saw several docs that I think are PDBs” and “also found an incredibly sensitive SAP [Special Access Program] document.”

The person also found several things that Congress had requested.

I did see some material related to 1/6 and COVID. And at close glance I believe one of the classified docs is responsive to a third Congressional request. So we will need to review all of these boxes.

In other words, from the start there were two reasons for NARA to look more closely: the classified documents, but also the documents that Congress had already requested.

The FBI report, done a month later, provides three tables categorizing the classified documents found in those boxes. The single SAP document found by the NARA person, for example, is a 6-page memo dated to 2019.

In box 3, the FBI found three FRD (Formerly Restricted, an Atomic Energy Act designation that Presidents cannot override by themselves) documents totalling 57 pages.

All the FRD documents date to November 12, 2019, so they may pertain to Iran’s decision to resume enrichment at their Fordow facility announced on November 6.

Behrouz Kamalvandi, spokesman for the Atomic Energy Organization of Iran, said on Nov. 6 that 696 of the centrifuges allowed at Fordow would be used for enriching uranium up to 4.5 percent uranium-235, slightly above the 3.67 percent U-235 limit set by the deal. The remaining 348 machines will be used for medical isotope production, he said.

The International Atomic Energy Agency (IAEA) confirmed in its Nov. 11 report that Iran began enrichment at the site on Nov. 9.

This is the fourth step Tehran has taken in breach of its JCPOA commitments over the past six months. In May 2019, Rouhani said Iran would “reduce compliance” with its nuclear obligations under the deal in response to the Trump administration’s withdrawal from the deal in May 2018 and its reimposition of sanctions in violation of the accord. (See ACT, June 2019.)

The other parties to the deal (China, France, Germany, Russia, the United Kingdom, and the European Union) criticized Iran’s decision, but said they remain committed to preserving the nuclear deal.

In a Nov. 11 joint statement, the foreign ministers of France, Germany, the UK and the EU foreign chief said the Fordow decision “represents a regrettable acceleration of Iran’s disengagement” from its commitments under the nuclear deal.

The FBI noted that the single NATO document, a slide dated two days after the FRD ones, would trigger treaty obligations.

I argued in October 2022 that Trump’s strategy with these 15 boxes curated personally by Trump appear to mirror Trump’s disinformation strategy generally: to bury his crimes behind literal and figurative press clippings. It sounds like these initial documents actually had a higher proportion of press clippings than the documents ultimately seized in the Mar-a-Lago search.

But he tripped up: By including post-presidential clippings amid his nuclear documents, Trump gave investigators more reason to look, rather than less.

Trump’s White House Didn’t Archive Twitter DMs

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After a long wait, Judge Aileen Cannon has finally docketed the exhibits behind Trump’s motion to compel discovery in the Trump stolen documents case. Much of the dispute centers on claims that the Archives exhibited political bias because they wanted to archive Trump’s presidential materials.

As such, the exhibits include details about NARA’s efforts to archive the Twitter accounts Trump and others used during their tenure. NARA would later send Carol Maloney a version of this in 2022, which focused attention on tweets that people like Ivanka had deleted.

As that letter revealed, the exhibit reveals that Trump didn’t start automatically preserving tweets until 2018, but took quite some time to include everyone in the archiving process.

Whereas Ivanka’s deleted tweets seemed particularly important in 2022, Andrew Giuliani — who had contact with Kellye SoRelle — look more important from this vantage.

But the detail that takes on most new significance given what we’ve learned since is that the White House didn’t choose to archive DMs.

Again, this was in that 2022 letter to Maloney. But we now know that when Xitter tried to refuse to turn over material from Trump’s account, Jack Smith pointed to the incomplete nature of what NARA had as one of his bases for needing to go to Xitter directly.

I still doubt that was the most important item that Smith was looking for. But Trump’s earlier failures may have been part of what gave Smith cause to demand more important information on attribution from Elon Musk.

Walt Nauta Claimed Trump Hoarded Hairspray Cans in His Storage Rooms

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The transcript from Walt Nauta’s May 26, 2022 FBI interview, at which he allegedly lied about his knowledge of Trump’s boxes of classified documents, has been released.

Several times, Nauta comes off as a skilled liar. For example, when the FBI asked reiterated that they wanted to know where the boxes that were sent to NARA in January 2022 had been stored and if there were more, Nauta changed the subject to the Embassy in Madrid.

But when the FBI asked Nauta what was in Trump’s storage rooms, he claimed that Trump hoarded hair spray.

He later went on to claim that Trump had so many golf shoes, but the FBI noted those wouldn’t be in bankers boxes.

Ultimately, Nauta came off like a guy who was wildly impressed with his own stature.

It is like, wow. Now how do I transition from a guy who used to scramble eggs to now I’m working for a former President?

It’s not surprising he was unwilling to give that up. I mean, if Trump regains the Presidency it will all have been worth it.

Bullshit and Also, Aileen Cannon, Post

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I know you all probably want a thread where you can talk about Aileen Cannon’s 3-page order denying Trump’s motion to dismiss based on bullshit claims about the Presidential Records Act.

For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.

Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.

Fine, fine, have at it. She claims Jack Smith is the one making nutty requests, not herself.

Lee Kovarsky, who generally has a great read about the appellate posture of such things, warns that it’s unlikely Smith will ask for a writ of mandamus, but might ask for her recusal, which probably won’t work.

But really, I’m more immediately interested in this superb quote Will Oremus included in a WaPo article describing disgruntled new owners of a Xitter blue check, which may be my best ever quote in a mainstream publication.

Marcy Wheeler, an independent journalist covering national security who greeted her blue verification badge Wednesday by posting an expletive, said she remains on X mostly to monitor right-wing narratives and disinformation so she can push back on them. She said she believes the verification changes are part of an effort to restore X’s status as a “public square” so that Musk can use it to “mainstream far-right ideas.”

On Thursday, Musk amplified various posts from verified X users defending a Jan. 6, 2021, suspect, decrying a rise in the “foreign-born” population under President Biden, highlighting crimes by Syrian migrants, mocking diversity and inclusion programs, and suggesting that leftists want to disarm American citizens “because they intend to do things that American citizens would want to shoot them for.”

In between, he agreed with a post that said that “a blue checkmark is a stamp of authenticity.”

As I said, have at it!

Jack Smith to Aileen Cannon: Treating Non-Lawyer Tom Fitton’s Theories as Law Will Lead to Mandamus

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Both Trump and Jack Smith have responded to Aileen Cannon’s whack order to write proposed jury instructions as if the Presidential Records Act says something it doesn’t. Neither are all that happy about it.

Trump used his response to claim that having the jury assess whether Trump really did make these documents personal records rather than simply steal them would put them in the role that, he’s arguing, only a (former) President can be in.

Smith — as many predicted — spent much of the filing arguing that Cannon cannot leave this issue until jury instructions because it must have an opportunity to seek mandamus for such a clear legal error; they cite the 11th Circuit slapdown of Cannon’s last attempt to entertain this fantasy in support.

Along the way, though, Smith also did something I had hoped he would do: explain where, and when, Trump’s own whack theory came from in the first place.

It came from Tom Fitton’s Xitter propaganda in response to the public report, in February 2022, that Trump had returned documents, including classified ones. But even after Fitton first intervened, Trump’s handlers continued to treat any remaining classified documents as presidential records for months.

On February 8, 2022, the day after the Washington Post article was published, the president of Judicial Watch posted the following two statements on Twitter5
:

Immediately after posting the second Tweet, the Judicial Watch president sent to an employee in Trump’s post-presidency office a link to the Tweet and offered to discuss the issue with Trump. A few hours later, the Judicial Watch president sent the same person his analysis of the case Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That evening, the Judicial Watch president circulated to the employee a proposed public statement for Trump’s consideration, which included language that the PRA and judicial decisions gave Trump the right to keep the documents he returned to NARA. The statement never issued.

Around this same time, the Judicial Watch president, who was not an attorney, told another Trump employee that Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.”6 Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.

Smith doesn’t, however, draw out the implication of this explicitly.

Not only has Trump been falsely suggesting — without evidence — that he did designate these documents personal records. He couldn’t have done so, because he didn’t know of this theory until over a year after he stole the documents.

But Cannon is such a chump that she has been chasing a theory spun up by Fitton, someone who has only an English BA.

Cannon may well respond poorly to Smith’s use of 20-some pages to lay all this out. It’s the kind of thing that routinely elicits miffed responses from her.

At this point, though, it seems Smith is simply laying a record for a challenge at the 11th Circuit.

How Alleged Geezer Joe Biden Caught Rob Hur and Marc Krickbaum Trying to Sandbag Him

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I was giggling during much of the atrocious Robert Hur hearing yesterday. Just as it started, House Judiciary Democrats released the transcript of the Joe Biden interview (October 8, October 9). It’s the kind of no-advance release that Sarah Isgur (whom Hur paid to be his spox for the hearing) did while at DOJ, most notably with the texts of Peter Strzok and Lisa Page. It was particularly damaging to Hur that when he denied that, in his interview, Biden had correctly and forcibly stated the date of Beau’s death, the transcript was out showing that’s a lie.

But it also meant that as Hur was spending hours (fewer than the combined length of his Biden interview, though) defending calling Biden an old geezer, people were reading the transcript and seeing that he misrepresented Biden’s acuity.

The transcript is more important, however, for the way it shows that Hur — and even more so, another former Trump US Attorney, Marc Krickbaum — came into that interview with a theory of Biden’s criminal wrong-doing, repeatedly tried to sandbag the President into admitting culpability, only to have the old geezer point out their logical flaws.

Generally, the plan for the interview went like this:

  • Biden’s transition from VP to private citizen
  • Map of the houses
  • Specific furniture from 2017 in Chain Bridge and 2019 in Wilmington
  • The notebooks and the filing cabinets and the ratty box
  • [Break for the day]
  • Clarification about when Biden did send marked documents back
  • The Thanksgiving Memo
  • Confidential memo in back
  • Zwonitzer interview and 8 words out of 33 words
  • How and why he had just returned marked documents
  • His notebooks
  • The Afghan docs
  • Tranches of deliveries to the garage
  • Penn Center general
  • Penn Center specific
  • Naval Observatory meeting

On the first day, they got Biden to explain how he managed the 2017 transition and where stuff, especially furniture, was in both his existing Wilmington house and a house he rented in Virginia from 2017 to 2019 that they call Chain Bridge. It ended with a review of the box from the garage, what both men were desperate to make a smoking gun.

Much of the second day, in which Krickbaum took the lead, focused on trying to get Biden to endorse their theory that Biden had taken the Afghan documents home because he wanted to write a book on them. He debunked that theory, but they nevertheless put it into the report anyway.

The part of the report where they laid out this theory is riddled with false claims.

In the same box in the garage where FBI agents found the classified Afghanistan documents, agents also found other documents of great personal importance to Mr. Biden, including photos of his son Beau and documents Mr. Biden filed, accessed, and used in early 2017, during the same time he told Zwonitzer found the classified documents about Afghanistan in his Virginia home. 825 The evidence suggests that Mr. Biden maintained these files himself.

Mr. Biden had a strong motive to keep the classified Afghanistan documents. He believed President Obama’s 2009 troop surge was a mistake on par with Vietnam. 826 He wanted record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made-that his judgment was sound when it mattered most. 827

This evidence provides grounds to believe that Mr. Biden willfully retained the marked classified documents about Afghanistan. If he was not referring to those documents-later found in his garage-when he told Zwonitzer he had “just found all the classified stuff downstairs,” it is not clear what else Mr. Biden could have been referring to. 828

825 See Chapters Five and Six.

826 See Chapter Six.

827 See id.

828 See Chapters Five and Six

The photos of Beau were campaign photos, not personal photos. There was a good deal of administrative files in the box, which Biden pointed out in his letter, he didn’t manage himself. The report doesn’t even present proof that Biden was accessing all those files in 2017 and — as Hur himself admitted — there were files from much earlier and much later.

Since Biden had the memo he wrote himself, there was no reason to keep all the other documents. The memo was better exoneration, as it was proof not only that he was right, but that he warned President Obama in advance, the only memo of the kind he sent Obama, he claimed. And the claim that “it is not clear what else Mr. Biden could have been referring to,” is sheer fantasy. By context — the context they only provided once in the report — it was a specific reference to the memo, which (as they also showed) would have been found stuck in one of the notebooks Biden was using in the interviews.

As I laid out here, nothing about this theory ever made sense!

And, as I noted, this discussion cites to the chapters of the report I’ve called novelistic, which incorporate direct testimony only from Ron Klain. This is the theory that Hur himself describes as “reading into” the facts of the case.

But now look at how Hur and Krickbaum came into those interviews with a determination to get Biden to admit to it anyway.

On the first day, Hur led Biden through a discussion of the box and its contents (remember: the FBI put the documents into a new box out of order, and they did all questioning on documents based on photos, which were often hard to read). Biden repeatedly said that, given that there was such a mix of things in the box, someone probably just shoved them all in together.

Hur: But do remember how these materials got into the box and then how that box got into the garage?

Biden: No, I don’t remember how it got — I don’t remember how a beat-up box got in the garage.

[snip]

Somebody must’ve, packing this up, just picked up all the stuff and put it in a box, because I didn’t.

[snip]

See, that’s what makes me think just people gathered up whatever they found, and whenever the last thing was being moved. So the stuff moving out of the Vice President’s residence, at the end of the day, whatever they found, they put — they didn’t separate it out, you know, Speakers Bureau or whatever the hell it is, or Beau. They just put it in a single box. That’s the only thing I can think of.

[snip]

But my guess is that they — based on the dates, they were Vice Presidential material initially. They got put in a box and probably got sent — either to the Penn Center or to Chain Bridge Road or, for some reason, got sent up to Wilmington. [my emphasis]

At this point, Bob Bauer interrupted and noted that Hur was supposed to be asking Biden what he remembers, not asking him to engage in “detective work” about how things may have ended up where they did.

Bauer: But to be clear, your question is whether he knows —

Hur: Correct.

Bauer: — has a clear recollection of how they —

Biden: No, I have no idea.

Bauer: got [muddled] Okay.

Hur: Correct.

Bauer: I want to make sure it’s clear.

Hur: But it’s also helpful if he has thoughts as to how —

Bauer: Well, I mean, I’d like to stay with his recollection and not put him in a position where he has to speculate or —

Hur: Understood.

Bauer — create assumptions or try to engage in detective work.

Biden started looking at something and Hur brought him back to the box.

Hur offered up — literally asking Biden to endorse their theory — that because there are not other boxes with file folders in the garage, the materials in the box must have come from two file cabinets in another room, at least one of which came from Chain Bridge.

Hur: So just going back and forth, there’s blue hanging file folders, there’s some red manila folders, there’s yellow manila folder, both in the garage box and in the lower drawer of the cabinet in the den — in the pool table room. So it looks to us what happened was the materials that were in the box in the beat-up — the materials that were in the beat-up box in the garage, at some point, were in the cabinet in the pool table room. They got put in a beat-up box and shoved out in the garage.

Bauer was fairly incredulous at this leap of logic.

Bauer: Just for my sake, Rob, how do you — I just really — I honestly don’t quite understand.

Hur: Yes.

Bauer: These are file folders, right? They could — people buy file folders, so —

Hur: Correct.

Bauer: Why do you assume that that’s the trajectory here? I hope, I hope —

Hur: I am — I’m not assuming. I’m saying that it just —

Bauer: You said, you said it looks to us like this —

Hur: — from physical appearance. From physical appearance. So–

At this point, Biden and Bauer were looking at something entirely different. Once everyone was looking at the same picture (which, remember, is a picture of folders that were not in the same order as they had been in the tattered box, because the FBI rearranged the order on repacking), Hur tried again.

Hur: So was that material previously in the file cabinet that was in the pool table room and that is shown in FBI_0040?

Biden offered what was, to him, a more plausible explanation.

Biden: Wouldn’t it be more likely it was on a floor in the garage, they took it off the garage and put it in the file cabinet? Why would you put it out in the — unless you want to throw it away.

Hur: Well, maybe I framed this question — well, what are we trying to do is to figure out where was this stuff in the garage before it was in the garage.

Bauer interrupted again to remind Hur he was supposed to be asking Biden about what he remembers, and he had already said he didn’t know how the box got there.

Bauer: And my understanding, just to be clear —

Hur: Yes.

Bauer: because I really don’t want to be unhelpful, I want to be —

Hur: Yes.

Bauer: helpful, is I thought, unless I misunderstood —

Hur: Yes.

Bauer: His answer earlier was he doesn’t know how it got there.

Hur claimed that Biden said he did not recall how the box got there.

Hur: He doesn’t recall. And my follow-up —

Biden first said that he didn’t remember, because that’s the question Hur asked. But then he specifically said (bolded above) he did not pack up the box. That’s consistent with what he said about every other box they asked about, and consistent with the conclusion that Hur drew about the most sensitive documents found, which were at Penn Center.

Bauer intervened again and asked Hur to stop asking the President to speculate. Hur pretended he was just asking the question poorly, but repeated his theory that file folders must all come from the same place.

Bauer: And I’m worried that he’s about to start sort of analyzing speculative assumptions.

Hur: Sure. Well, let me, let me get the question out, because I’ve sort of framed it kind of clunkily here. So given the physical — given the fact that the materials in garage box 1 are different from everything else in the garage in that they’re in hanging file folders, and given their physical — you know, there are some similarities between their appearance and the stuff that’s in the file cabinet in the, in the pool table room, is it — are we wrong to think that maybe the stuff in the garage was formerly in the file cabinet?

Biden pointed out that — particularly since everything got delivered into the garage when it got moved — the opposite made more sense, that this box simply never got moved into the house. Then he repeated again, that he did not know how the box got there — not that he didn’t remember, but that he affirmatively did not know.

Biden: No no more than I think you’re wrong if it was the opposite, stuff that was in the file cabinet was in the garage.

Hur: I see.

Biden: In other words, I, I don’t have any idea.

Bauer intervened again.

Bauer: Yeah. I think —

Hur: Understood.

Bauer: I think we’re kind of going down a trail here that I find confusing. Frankly, I just —

Hur: Yes.

Biden, more plainly, stated that they’re “trying to establish something.” Ultimately, he described that he used to teach logic and pointed out that the logic of Hur’s theory was flawed.

Biden: They’re obviously trying to establish something.

Bauer: do. His recollection is his recollection.

Hur: Okay.

Bauer: and he doesn’t know how it got there.

Hur: Okay, fair enough.

Biden: No, but I, I don’t have any idea.

Bauer: Well, that’s, that’s — then that’s the answer then I think.

Biden: But I don’t know, it just — I used to teach logic. I don’t get even the assertion, but anyway, it doesn’t matter.

The guy Hur accused of being a geezer because he didn’t remember the year, but did (Hur forgot to put in his report) remember the date of Beau’s death ended up lecturing him on how dumb his theory was.

That also didn’t make the report.

The next day, Marc Krickbaum took a more active role in questioning. After walking Biden through the Thanksgiving memo Biden sent Obama to try to dissuade him from surging troops in Afghanistan — which Biden strongly explained he wanted to keep it secret because of the sensitivities of the memo, not because of classified information in it  — Krickbaum tested one part of his theory. Did Biden ever think about writing a book about Afghanistan? “I give you my word I never thought about that.” Biden reviewed, for a second time, what he had wanted to write about — the inflection point in history — and Krickbaum interrupted, and Bauer interrupted him. Bauer again complained that prosecutors were asking Biden to speculate so as to endorse their pet theory. In response, Krickbaum demanded a break.

Krickbaum: Okay. That answered my question.

Bauer: And Marc, just really quickly, I promise it’ll be brief. I just really would like to avoid, for the purpose of a clean record, getting into speculative areas. When the President responded and said I don’t recall intending to keep this memo, you then said well, you know, might you have thought it was important to keep it or whatever and he said well I guess, I could have — his recollection as I understand it is, he does not recall specifically intending to keep this memo after he left the Vice Presidency and I want to be — I want these questions to be as clearly answered and recorded on the transcript as possible.

Krickbaum: I think we should take a break at this point.

Laufman: Oh, come on. Come on.

They took a break.

Krickbaum then turned to the interview with Mark Zwonitzer and asked Biden about his comment that he “just found all the classified stuff downstairs,” though only describing, not quoting, the rest of the context.

Biden replied that he didn’t remember. He conceded he probably did tell Zwonitzer about the memo.

Then Krickbaum pulled a fast one, not just quoting only the 8 words without the surrounding context, but also claiming that Biden said he had found marked classified data.

Krickbaum: Okay. Do you remember telling him, “I just found all the marked classified stuff downstairs?”

Biden: Marked?

Krickbaum: Telling Mark? Do you remember saying that to him?

Biden: No.

Reminder, this is the full context, which Krickbaum summarized but did not read verbatim:

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [emphasis original]

After Biden stated, no, he didn’t remember raising classified information Zwonitzer, Kirckbaum again asked Biden to endorse his theory:

Kirckbaum: And I guess looking at, you know, the evidence taken together, one simple theory — and I’m just going to ask you if you have anything you want to add when I explain this theory. If the answer is no, the answer is no.

Biden: Okay.

Kirckbaum: One simple theory would be that when you told Mark Zwonitzer in February of 2017, and you were talking about Afghanistan, that you just found all classified stuff downstairs, what you mean was you just found all the classified documents about Afghanistan that were later found in your garage in the lake house. And so, we’re trying to understand if that’s what you meant or not. And I understand you’ve told us you don’t remember, but our question is really if there’s anything else — any other memory or thought you have on this that you want to share with us as we try to make sense of the evidence.

Biden: Other than, only thing I can think of is I was referring to him that I knew of the President — the memo I wrote to the President, I didn’t want that in use for any reason.

Krickbaum asked him specifically if Biden had just seen the Afghan documents that showed up in his garage years later, and Biden pointed out — without having been read the full context — that probably he was talking about the memo itself.

And yet, based on that record, when Hur and Krickbaum wrote up the report, they claimed, “it is not clear what else Mr. Biden could have been referring to.”

There were two more obvious possibilities: That Biden was referring to the red marked document he had found and had sent back. Or, that just as Biden answered, he was referring to the memo itself, which he named explicitly in his comment.

There also was a totally obvious explanation for why the Afghan documents weren’t properly returned: Because Biden wrote the memo while in Nantucket, then returned to DC separately.

Instead of considering the most obvious explanations, Hur and Krickbaum instead engage in their fiction.

No wonder the old geezer made fun of their logic.

Update: Fixed spelling of Krickbaum’s first name.

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