The Trump-Biden-Pence Documents Story Is Not (Yet) about Overclassification

It is my belief that had Eric Holder appointed a Special Counsel to investigate David Petraeus’ hoarding of classified information, the retired General might have been charged with 18 USC 793(e) and maybe even 793(d).

That’s true, first of all, because the facts he admitted to as part of his wrist-slap plea largely cover the elements of the offense. That’s true, too, because everyone but Holder seemed to support charging Obama’s CIA Director. Ultimately, the decision would have remained Holder’s. Holder might have overruled a Special Counsel even still, as he is reported to have overruled prosecutors. Holder may have calculated that Petraeus’ years-long cultivation of Congress would mitigate any blowback for overriding the recommendation to prosecute.

Certainly Holder paid no price for making the decision he did make: Congress believed that Petraeus could do no wrong.

Instead, Petraeus is (with Sandy Berger) one of the two poster children for the premise that the powerful will never be held accountable for mishandling classified information the way lower ranking personnel will be. That could change with at least two Special Counsels involved.

Yet even as powerful as he was during the period he was leaking to his biographer, David Petraeus is still differently situated than Trump, Biden, and Pence, starting with the fact that even in his case, DOJ relied on his clearance and nondisclosure agreements to prosecute him.

By comparison, all three of the men currently under investigation were Original Classification Authorities under EO 13526, the Executive Order governing classification during the period in question. None of those men would ever have been required to get any security clearance beyond the courtesy clearance given to formers after their tenure (of which Trump was stripped). And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files in boxes to decide what he was permitted to take home and what he was obligated to turn over to the Archives.

That process was at least part of what went wrong in all three cases, even Biden’s possession of documents from when he was a powerful Senate Chair. One minute, they were virtually immune from rules pertaining to classification, and literally the next minute — before they had finished that sorting process! — they were subject to the rule of law again.

Indeed, because all three are explicitly subject to the Presidential Records Act, the basis by which they lack authorization to possess the documents in question stems, in significant part, from an entirely different basis than it does for other people, which arises from the clearances they were never required to get.

And that’s one reason why all the punditry (here, here, here, here) — almost all from people who haven’t followed the details even of the Trump case, where we’ve got the most facts available — claiming that this is a problem with overclassification is, at best, wildly premature.

Indeed, with Trump, we can say with some certainty that this is not about overclassification. The classification markings from the subpoena DOJ served on him, understood to be based in part on what they had already found in the boxes he turned over, are not trivial. Nor are the likely contents of the documents we see in the FBI picture of his stolen documents. Even some of the documents from the Russian investigation that Trump wanted to declassify and disseminate rely on either human source and/or intelligence collection targeting Russia’s spy service, and the reporting was just five years old at the time (a brand new must read from the NYT also reveals the intelligence came from the Dutch, so it wasn’t our intelligence to declassify).

These men were the President and Vice President. They had access to highly sensitive information, and Trump, at least, had a well-established history of releasing it with abandon.

Until we have evidence that the documents in question were simply materials that some agency was bigfooting (as was the case in most of the classification pertaining to Hillary’s emails), we should not assume this is about overclassification. There’s no evidence of that.

Chuck Rosenberg argues that it also should not matter.

One place we might see overclassification is in classification reviews of the hand-written notes that both Trump and Biden took, though even there, Trump was reportedly waving around his private love letters with a nuclear-armed dictator as a party trick, and that probably did have the ability to make it harder to manage a very difficult threat. But with Trump, at least, the possibility that some of his hand-written notes won’t turn out to be as sensitive as the spooks will declare them doesn’t mitigate that he had documents that are almost certainly unbelievably sensitive sitting in a beach resort known to be targeted by intelligence services.

Thus far, we have no evidence that this is about overclassification. We do have abundant evidence that these three specific compromises have to do with the wacky way Presidents and Vice Presidents (and to a lesser degree, Members of Congress) operate outside the system of clearances that leads virtually everyone else with access to classified information to exercise a great deal of caution when handling it. One day they’re immune, the next day they’re sorting documents to try to sort out what needs to go to the Archives.

That’s a different problem than overclassification.

Crazier still, most of the people who are out there claiming this about overclassification are using (at least partly) as their examples people who sought out documents that were not part of their work and then leaked those documents. Those cases are also not about overclassification.

And amid all the talk of overclassification, none of the pundits have mentioned a case that is a far more apt example of overclassification and the way the Executive uses classification to punish people: Jeremy Brown, the Oath Keeper recently found guilty of unlawfully retaining — right next to some grenades for which he was also convicted — one document that Brown wrote himself in 2011, classified Secret, believed to be about the Bowe Bergdahl case.

Brown was acquitted on 793 charges for four other documents, also classified Secret, that were even older.

Brown’s case in many ways parallels Trump’s. Like Trump, the Feds showed up and asked him to return the document and he lied to hide it. Like Trump, the FBI found the documents with a warrant.

But it’s far more likely these documents, all of which were at least ten years old, are overclassified.

Don’t get me wrong: I think Brown is a dangerous shithole. I’m not unhappy he’s going to prison.

I also think DOJ believed, correctly, they could use these classified documents (along with the grenades) as a way to neutralize a dangerous loose canon.

Want to make a case about overclassification? Jeremy Brown is the dangerous shithole you should be defending. Want to prevent the grave disparities in how powerful people are treated, as compared to dangerous shitholes like Jeremy Brown?

You need to address that magic process by which Presidents are treated with immunity and then — in an instant!! — purportedly subjected to the same rules as everyone else.

“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.

What We Can’t Rule Out with Biden’s Classified Documents

The FBI did a consensual, almost 13-hour search of President Biden’s Wilmington home yesterday. The FBI found and seized six more classified documents “with surrounding materials” (some of which date from Biden’s time in the Senate) as well as hand-written notes from his time as Vice President.

Note that after Biden’s lawyer’s found a document in the room adjoining his garage, they stopped searching. DOJ came to fetch that document and took 5 more pages, all of which may have been in the same place. It’s possible (though in no way certain) that these additional documents were simply stored in the same place, the obvious outcome of DOJ’s effort to return and do a more thorough search.

The voluntary nature with which Biden has given information back to DOJ still starkly distinguishes him from Trump. And that comparison may give DOJ leverage to try to obtain the records it believes Trump still has.

But at this point, we can’t rule out several of the most damning details that are known to be present with Trump to also be present with Biden.

There are, as far as we know, at least three things that make Trump’s retention of classified records particularly damning:

  • The existence of a leatherbound trophy box in his office storing the most classified documents (alongside Time Magazine covers, which is one piece of evidence these are trophies)
  • The existence of 46 empty classified folders, which may be one reason DOJ suspects not all of Trump’s documents are accounted for yet
  • Two compiled documents integrating classified records with other materials, one dating from Trump’s presidency (the grant of clemency for Roger Stone) and one that includes at least 3 messages that post-date his presidency

I’ll review that last document, because it hasn’t gotten nearly enough attention yet.

One of the last filings released in Trump’s Special Master process, summarizing the disputes, described a “compilation” of two classified records (one Confidential, one Secret), and what appears to be four other documents: messages from a book author, a religious leader, and a pollster, as well as what appears to be a fourth document involving a lawyer. The messages all post-date January 20, 2021.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

In other words, this document, which was stored in a desk drawer, suggests that Trump used classified documents at least once after he left the White House.

While there are press reports that Trump otherwise accessed documents after DOJ started looking for them — in part, by curating the ones he was willing to send back in January 2022 and hiding some from Evan Corcoran so they wouldn’t be turned over in the June 2022 search — this compilation seems to show that Trump not only knew the classified records were in his home, but he used them, at least once, after he left the White House.

Given the discoveries in yesterday’s Biden search, we can’t rule that out in his case, either. Bauer’s statement described the FBI taking, “documents with classified markings and surrounding material,” which doesn’t rule out a compiled document — though it also could describe documents and the other contents of the folder or box they were found in, which would be consistent with how DOJ approached the search of Trump’s home.

And the seizure of hand-written notes from the time Biden was Vice President means we can’t rule out the equivalent of the letters from Kim Jung Un that Trump took, memorabilia that, because it pertains to foreign policy, should also be treated as classified (and would be covered by the Presidential Records Act).

Both both-sides journalists and hopeful lefties are jumping to conclusions about what the Biden seizures mean. The truth is, we simply don’t know yet. We know the most damning details about documents Trump had largely because of his legal challenges, not because they would otherwise be available from this kind of report on the investigation.

Here’s a comparison of what we know of the two cases:

The obstruction is still what distinguishes Trump from Biden, because DOJ would most likely charge a Constitutional officer only with 18 USC 793(e), refusing to given classified documents back. Biden has made multiple efforts to give documents back: Trump has made multiple efforts to refuse to give documents back.

But as for the other damning details we know exist with Trump? We can’t rule them out with Biden.

Update: I’ve changed the number of Biden docs, to allow for some uncertainty about these are being referenced. We don’t have the FBI inventory, like we do for Trump.

Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:

[snip]

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.

Merrick Garland Appoints a Special Counsel in Biden Documents Case

Given the discovery of two sets of documents at Joe Biden’s house, Merrick Garland has appointed former Maryland US Attorney Robert Hur as Special Counsel to investigate that case.

I don’t think this is a bad thing. It will eliminate any claim of bias and ensure a report can be filed at the end. And it will stave off GOP interference in the case.

Garland described the following timeline.

November 4: NARA informs DOJ of the documents

November 9: FBI conducts an assessment to understand whether classified information was mishandled

November 14: Garland assigned US Attorney Lausch to conduct initial investigation

December 20: Biden’s counsel informed Lausch of additional documents in the Wilmington garage

January 5: Lausch briefed Garland of initial investigation and recommended further investigation

January 11: Biden informed Lausch of an additional document from Biden’s personal residence

Update: Hur’s statement:

I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.

 

Several Missing Details about the Classified Documents at Penn Biden

As CBS first broke the story yesterday, on November 2, some Biden associates discovered around ten classified documents (including some classified TS/SCI) in files from his former offices at Penn Biden. The documents were returned the next day, NARA made a referral to the FBI, and Merrick Garland asked one of two remaining Trump US Attorney appointees to investigate the matter.

Attorney General Merrick Garland has assigned the U.S. attorney in Chicago to review classified documents found at the Penn Biden Center for Diplomacy and Global Engagement in Washington, two sources with knowledge of the inquiry told CBS News. The roughly 10 documents are from President Biden’s vice-presidential office at the center, the sources said. CBS News has learned the FBI is also involved in the U.S. attorney’s inquiry.

[snip]

Garland assigned U.S. Attorney for the Northern District of Illinois John Lausch to find out how the classified material ended up at the Penn Biden Center. The review is considered a preliminary step, and the attorney general will determine whether further investigation is necessary, including potentially appointing a special counsel.

Lausch was nominated to be U.S. attorney by former President Donald Trump, and he is one of only two current Trump-era U.S. attorneys still serving. The other is Delaware U.S. Attorney David Weiss, who is leading an investigation into the president’s son, Hunter Biden.

Lausch recently briefed the attorney general and will eventually submit a final report to Garland. The review is expected to conclude soon.

The report has generated a lot of insanely bad reporting, including this article from the NYT — with four reporters bylined and two more contributing — that doesn’t even mention a key detail from a recent Alan Feuer scoop (which I wrote about here): that Beryl Howell might yet hold Trump or his lawyers in contempt for failing to return all the classified documents in his possession.

Peter Baker and his colleagues didn’t mention that recent NYT scoop, but it did see fit to quote the former President without fact check. Nor did they note that Biden is not complaining that this is under investigation, whereas Trump has never shut up about it. Indeed, a key part of Trump’s defense has been that NARA had no authority to refer the matter for investigation. So Trump’s embrace of this investigation eliminates a claim he has been relying on in his own defense.

Another amusing difference is that for the entirety of the Trump Administration, Biden continued to have clearance; Biden decided not to continue intelligence briefings for Trump shortly after he launched a coup attempt.

Some outlets, including the NYT, have managed to explain that unlike Trump, the Biden office did not refuse to give documents back — though many, like the NYT, have insane comments about why Biden and DOJ didn’t disclose an ongoing investigation when (among other things) that would violate DOJ policy.

The White House statement said that it “is cooperating” with the department but did not explain why Mr. Biden’s team waited more than two months to announce the discovery of the documents, which came a week before the midterm congressional elections when the news would have been an explosive last-minute development.

[snip]

Still, whatever the legal questions, as a matter of political reality, the discovery will make the perception of the Justice Department potentially charging Mr. Trump over his handling of the documents more challenging. As a special counsel, Mr. Smith is handling that investigation, along with one into Mr. Trump’s efforts to overturn the 2020 election results and the Jan. 6 attack on Congress, under Mr. Garland’s supervision.

[snip]

“The circumstances of Biden’s possession of classified documents appear different than Trump’s, but Merrick Garland must appoint a special counsel to investigate,” said John P. Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017. “Merrick Garland waited too long to let us know he had opened this investigation,” he added. “To keep the confidence of the country, you need to be transparent and timely.”

But there’s something else missing from the coverage so far: it’s not even clear that the documents had been in Biden’s possession, as opposed to another of his former staffers at the Obama White House. As CBS noted, Tony Blinken was the Managing Director at the start, followed by Steve Richetti.

Secretary of State Anthony Blinken, for example, was the center’s managing director in 2018. Steve Richetti, who now serves as a top White House aide to Mr. Biden, was managing director of the center in 2019.

While Blinken had already returned to the private sector by 2017, Richetti was Biden’s Chief of Staff when they left.

One thing Chicago US Attorney John Lausch has been investigating is how the documents ended up at Penn Biden.

Lau[s]ch’s review will examine, in part, how the documents got from Mr. Biden’s vice-presidential office to the Penn Biden Center.

In other words, it might not even be a Biden thing. It could be one of his staffers — and it could be a more serious issue if someone was found to have intentionally taken documents with them when they left the White House, or was using them in the interim. It could be Richetti who did it, for example (which would be one reason among many not to reveal the investigation publicly before discovering how the documents got where they were).

There will be insane reporting ahead — there already has been.

And virtually none of it will report that Trump is still suspected of hoarding classified documents.

Update: Here’s what Jim Trusty argued on August 30, before Judge Aileen Cannon, about how NARA should not be able to criminally refer the discovery of classified documents in the possession of someone covered by the Presidential Records Act because it is not judicially enforceable.

The existing EO on classification (which dates to 2009) treats the VP as an original classification authority, just like the President.

Update: CNN describes that the contents were mixed in with Biden’s personal items.

Among the classified documents from Joe Biden’s time as vice president discovered in a private office last fall are US intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter.

A total of 10 documents with classification markings were found last year in Biden’s private academic office and they were dated between 2013 and 2016, according to the source.

The boxes with these classified records also contained personal Biden family documents, including materials about Beau Biden’s funeral arrangements, the source told CNN.

Update: I meant to show CNN’s correction earlier, but they’ve backed off the claim that the files were stored intermingled with personal items.

The vast majority of the items in the office contained personal Biden family documents, including materials about Beau Biden’s funeral arrangements and condolence letters, the source told CNN. It is not clear if the boxes with classified documents contained personal materials.

At Least 25 Lawyers Are Subjects or Witnesses in the Various Trump Investigations

Between the release of the January 6 Committee transcripts and the unsealing of some grand jury orders from last summer, I’ve been pondering how many lawyers were central to Trump’s efforts to steal the 2020 election. Consider this table, for example, which is based on two separate sets of subpoenas (June, November) sent out to the swing states Trump tried to steal. Only the people marked in blue are not lawyers.

Eighteen people on this list — all people who played key roles in one or various plots — have a colorable claim to have played the role of an attorney, though the J6C transcripts show that for some — Boris Epshteyn and Jenna Ellis, for example — there was some dispute about whether they were functioning as lawyers or some other role, like spokesperson. And Sidney Powell was famously formally separated from the campaign.

Add those 18 people to the lawyers on this list, which includes state officials reported to have had their phones seized, Jeffrey Clark (who’s not on the fake elector warrants but is a subject based on other factors), Mike Lindell (whose phone was seized as part of the Colorado investigation into accessing voter machines) as well as five other lawyers known to be witnesses to key parts of the various plots.

Four of these people — the two Pats, Greg Jacob, and Marc Short — were reported to have had Trump’s Executive Privilege claims overridden by Chief Judge Beryl Howell for follow-on appearances before grand juries.

With seven more lawyers added to the list, that’s a total of 25 witnesses, all of whom have to be treated with kid gloves to avoid blowing the entire case.

That’s one reason I’m interested in a detail from the February 24 J6C transcripts from Michael McDonald (NV GOP Chair) and James DeGraffenreid (another NV fake elector). Both men pled the Fifth — there were aspects of Nevada’s fake elector certificates that even Trump’s people admitted presented more serious legal problems. Neither man is an attorney. And both men claimed to have retained the Signal and Telegram texts they had sent using their phones.

Q On your personal devices, did you use any secured messaging applications like Signal, telephone [sic], or WhatsApp?

A Yes, sir.

Q And did you search those applications for any materials that might be responsive to the subpoena?

A Yes, sir.

We saw that DOJ used Scott Perry’s role in the Jeffrey Clark node to identify unprivileged communications (though that approach also yielded a lot of junk communications). I would imagine that that makes people like Mike Roman (who ferried fake elector certificates around but has been dropped from subpoenas) and the two NV fake electors particularly important to chiseling away at privilege claims.

Donald Trump’s Contemptuous Leaking

A month ago, I noted that several stories about Trump’s engagement of a firm to search for additional stolen documents were wildly inconsistent.

WaPo and CNN both have stories about searches by a professional firm on additional Trump properties, looking for stolen classified documents.

In addition to at least three paragraphs that are affirmatively misleading (one that does not push back on a bullshit quote about how cooperative Trump has been, one that described Trump’s outright obstruction as a “breakdown … in trust,” and one that claims Trump is trying to avoid another high profile search when the further search was ordered by Chief Judge Beryl Howell) WaPo describes only searches of Bedminster and, later, Trump Tower.

Trump’s legal team hired an outside firm to carry out the search of his golf club in Bedminster, N.J., and, more recently, Trump Tower in New York, according to the people, who spoke on the condition of anonymity to discuss sensitive information.

In one paragraph, it describes that Trump’s lawyers told DOJ they did not turn up more documents, but in a follow-up, WaPo describes an attestation that may or may not apply to just Bedminster.

I did the post because of the inconsistency, but also because, in the past, when we’ve seen aggressive pitches from Trump like this (his cover story about putting a lock on the storage facility where he had stashed his stolen documents is another example), it has generally been an attempt to get ahead of something really damning.

Two days later, WaPo seemed to report that Trump had managed to get through whatever damning bit he was trying to hide. It stated as fact that Chief Judge Beryl Howell would not hold Trump in contempt.

A federal judge on Friday declined to hold former president Donald Trump’s office in contempt for not fully complying with a May subpoena to return all classified documents in his possession, according to people familiar with the proceedings.

U.S. District Judge Beryl A. Howell told Justice Department lawyers and Trump’s legal team to come to an agreement themselves over what actions or assurances by Trump’s office would satisfy the government, according to these people, who spoke on the condition of anonymity to describe sealed court proceedings.

“The President and his counsel will continue to be transparent and cooperative,” Trump spokesperson Steven Cheung said in a statement to The Washington Post.

But a report from Alan Feuer yesterday describes that Howell has not yet made a decision about whether to hold Trump in contempt or not.

At a court hearing held behind closed doors last month, Judge Howell put off ruling on the government’s contempt request. The judge has still not issued a decision, according to the people familiar with the matter.

As Feuer describes it, on Wednesday, Howell ordered Trump to share the names of the people who did the search with DOJ. Trump had tried to shield those names — purportedly out of concern about leaks, which has consistently been a bullshit line Trump’s lawyers have used. But it’s more likely his team was concerned that the PIs would have to appear before the grand jury themselves.

A federal judge has ordered lawyers for former President Donald J. Trump to give the government the names of the private investigators who searched Mr. Trump’s properties late last year for any remaining classified documents, part of what appeared to be a step by the Justice Department toward questioning the investigators about their efforts, two people familiar with the matter said.

The order, issued on Wednesday by Beryl A. Howell, the chief judge of the Federal District Court in Washington,

[snip]

The more recent spat began when prosecutors asked Mr. Trump’s lawyers for the names of the investigators who searched the storage facility and other Trump properties — among them, Mar-a-Lago; Mr. Trump’s golf club in Bedminster, N.J.; and Trump Tower in New York.

According to the people familiar with the matter, the lawyers offered to make the investigators available for questioning but wanted their identities shielded by a protective order, out of concern that the government might leak the information to the news media.

It’s certainly possible Trump worries that allowing an independent interview of these people will disclose areas where they were not permitted to search (or other games like the others Trump already got caught playing).

Whatever it is, though, this suggests that Trump continued to bullshit the press after his first attempts to do so regarding the follow-on searches.

And the lies to the press aren’t going to keep Trump from being held in contempt (and then jailed until he complies with a subpoena).

Judge Jesse Furman Gives DOJ 3 Pages to Reply to emptywheel’s Bid to Liberate Sealed Transcripts on the Espionage Act

Some weeks ago, I described that, with the help of National Security Counselors, I was intervening in the Joshua Schulte case to try to liberate transcripts from a May 3 sealed Classified Information Procedures Act hearing in which this exchange took place.

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

CIPA is the means by which the government tries criminal cases involving classified information. It permits the government to ask to hold certain hearings about what evidence will be admitted in sealed hearings to avoid any possibility that classified information will be publicly disclosed at those hearings.

[Note, these transcripts were funded by Calyx Institute with funding provided by Wau Holland Foundation, the latter of which has close ties to WikiLeaks.]

While everyone else was staying up late waiting for the January 6 Committee Report last Thursday, I was staying up late to see the filing that Kel McClanahan submitted in that intervention, which is here.

In the filing, McClanahan argued that the government’s own argument in support of sealing the transcripts attempted to use wiretap precedents to justify their continued sealing of CIPA hearings, even though they were asking to seal something else — hearings at which classified information might or might not be discussed.

It goes without saying that the proceedings in question—and the transcripts thereof—are judicial records for purposes of the common law, and the Government does not make any serious argument to the contrary. Instead, it argues that CIPA established a presumption against disclosure, drawing an analogy to the statutory provision for sealing of wiretap applications at issue in In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009). It then goes beyond that analogy to argue that the presumption is even stronger because Congress allowed for wiretap materials to be unsealed for good cause but provided no comparable mechanism for CIPA proceedings. However, CIPA is not Title III, and the Government’s argument requires that to be the case in order to succeed.

Simply put, In re New York Times dealt with a statute which included a “manifest congressional intent that wiretap applications be treated confidentially,” id. at 408, but only because it includes a provision that the records themselves “shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction.” 18 U.S.C. § 2518(8)(b). In contrast, CIPA only provides that a hearing shall be held in camera because “a public proceeding may result in the disclosure of classified information.” 18 U.S.C. App 3 § 6(a) (emphasis added). It in no way exhibits any intent that the records created from such a hearing should be presumed undisclosable, nor could it, since by its own terms the hearing might actually include no classified information. In other words, CIPA merely provides a protective procedure to guard against the chance that a hearing may include classified information,2 based solely on the Attorney General’s assertion that it may include classified information—hardly a high bar for the Government to clear. Congress voiced no opinion about what should then happen to the unclassified information included in that hearing, let alone a “manifest congressional intent.”

McClanahan laid out how the CIPA discussions at issue played a role in the exercise of Article III power, noting that the transcripts in question address the elements of the charges against Schulte: the very definition of the Espionage Act (and its application to someone like me, who might be held accountable for disseminating unconfirmed classified information).

The key question then becomes, what was the “role of the material at issue in the exercise of Article III judicial power” and its “resultant value . . . to those monitoring the courts?” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). The Court itself addressed both of these issues at various times. Most relevantly, it engaged in open court in an extensive discussion of a colloquy that appears to have taken place in the 3 May hearing, telling Government counsel, “I gave you two hypotheticals” about the Government’s interpretation of the scope of the Espionage Act. (Tr. of 7/6/22 Hrg. at 149:3-151:12.) It did so in the context of a discussion of potential jury instructions, and expressed the sentiment several times that the Government’s assertion that a person sharing National Defense Information (“NDI”) that is already in the public domain would still be liable under that statute was “kind of a striking proposition.” The role, then, of these transcripts—and the information they contain—in the exercise of Article III judicial power is clear, as is the resultant value to people monitoring the judicial process. In this case, according to this Court, the Government has—behind closed doors—pressed an argument that a person can violate the Espionage Act by handing a copy of a New York Times article containing leaked NDI to someone else, which is definitely something that interested persons in the field should know, and what they do not know is the degree to which the Government pressed this point, how it defended it, whether it has actually done so in the past, and what other positions it took when it was not expecting the transcripts to become made public.

By the same token, this convergence of factors also definitively demonstrates that the First Amendment right of access attaches to these records, because unlike the hypothetical CIPA hearing that the Government asks the Court to envision, at least this discussion strayed far from a simple discussion of evidentiary issues, with the Government presenting legal arguments about elements of the crime itself. [McClanahan’s italics, my bold]

He argued that the government’s argument went further than the stance it takes on Prepublication Reviews, insofar as we’re just arguing for a First Amendment right to read these transcripts, not publish them.

Simply put, when courts are put in the position of balancing claims related to national security against a writer’s First Amendment concerns, they consistently and without exception find that only classified information tilts the balance. There is no reason for this dynamic to change when it involves a reader’s First Amendment concerns, and while we acknowledge that some district courts have accepted the Government’s arguments, there is no evidence to show that those courts were presented with our argument and no grounds for this Court to follow suit.

Then McClanahan pointed to Judge Furman’s own comments about the colloquy as proof that the government’s claim — that there is no meaningful way to unseal just the unclassified portions of the transcripts — must be false.

In fact, the very existence of the Court’s 6 July summary of the two hypotheticals discussed above demonstrates the frivolousness of these arguments, since: (a) it was neither incoherent not functionally useless; and (b) the Court presumably did not divulge classified information in discussing it.

Judge Furman must have found something novel or persuasive in this argument. When he ordered the government to formally request the continued sealing of the transcripts on November 21, he said they could only submit a reply with his permission. But he just gave the government three pages to to do so.

This challenge could do more than liberate arguments the government made about the Espionage Act in secret. It could challenge the government’s larger views on secrecy in the context of CIPA.

As McClanahan laid out, “the Government has—behind closed doors—pressed an argument that a person can violate the Espionage Act by handing a copy of a New York Times article containing leaked [classified information] to someone else.” When I saw the argument (as relayed in Furman’s July description), I recognized the import of liberating this transcript.

I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

Judge Aileen Cannon Dismisses Donald Trump’s Documents Challenge

Judge Ailenn Cannon has just dismissed Trump’s document challenge for lack of jurisdiction.

After 98 days, DOJ can finally use the unclassified documents seized with a lawful warrant in the investigation of Donald Trump’s stolen documents.

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