Walt Nauta Claimed Trump Hoarded Hairspray Cans in His Storage Rooms

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

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

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

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.


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


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.


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.

What If the Problem Is Not with Special Counsels, But Instead the Presidency?

Rod Rosenstein protégé Robert Hur will testify before the House Judiciary Committee today. He decided to come represented by one of the Republican party’s best criminal defense attorney, Bill Burck, and supported by a spox, Sarah Isgur, who played a key role in several of the hit jobs that Hur carried out with Rosenstein.

He just resigned from DOJ yesterday, which — along with his partisan hit squad — has raised concerns about what he’ll say. It’s unclear what effect that will have. When John Durham did the same thing, he actually reined in some of the false claims he had made in his report. That said, Hur has the ability to weaponize the fact that Joe Biden provided so much voluntary cooperation, meaning that many of the details in Hur’s report — like the content of classified documents discovered or of Biden’s diaries that Hur renamed notebooks to be able to snoop through them — were not obtained with a subpoena and would not be covered by grand jury secrecy. Testifying without a DOJ minder can work both ways, however; Democrats could — and should — question Hur about topics, such as:

  • Whether his supervision eliminated the kind of ethical check other prosecutors have
  • How he used attorney-client communications as a weapon against Biden when Robert Mueller, under Hur’s supervision, did the opposite
  • What role he played in depriving Andrew McCabe of due process and whether that abuse came up in the hiring process to be Special Counsel

Here’s my coverage of Hur’s report:

Robert Hur’s Box-Checking

How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor

Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified

In Advance of Robert Hur Hit Job, DOJ Updated Public Identification Policy

How Robert Hur Ghosted Joe Biden’s Ghost Writer

Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented

Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

Also, since transcripts show that Hur wildly misrepresented the moments where Biden couldn’t remember years, here’s my post on how Hunter Biden, like his dad, signposts his life around the grief tied to Beau’s illness and death.

Like His Father, Hunter Biden Got Forgetful about Details Pertaining to Beau’s Illness

In advance of Hur’s testimony, several people are taking a broader view, considering some problems with the current Special Counsel regime.

Chuck Rosenberg wrote a thoughtful piece about how the reporting requirement creates a problem.

Jack Goldsmith wrote a silly piece that tries to both-sides the matter.

Neither grapples with the underlying question: How do you hold a President accountable to rule of law?

Meanwhile, the transcripts of Biden’s interview with Robert Hur have been released (one, two). They don’t show what Hur claimed. Indeed, they show that former IA US Attorney Marc Krickbaum tried to sandbag Biden into admitting he knew he had documents with classification marks and Biden called him on it.


Jack Smith Is Not Amused

By Trump’s motions to dismiss the stolen document case.

Ten Days after David Slater Told His Honeypot American Officials Were Traveling to Kyiv, Lloyd Austin and Tony Blinken Arrived

I’ve been puzzling over how the government discovered that retired Lieutenant Colonel David Franklin Slater was leaking classified information to a honeypot he met on an online dating site.

But it seems likely that it arose from a counter-reaction to information he leaked about a trip of two officials to Ukraine.

On April 13, 2022, according to the indictment, Slater shared information about Russian capabilities in Ukraine.

[O]n or about April 13, 2022, DAVID FRANKLIN SLATER transmitted classified NDI regarding Russian military capabilities relating to Russia’s invasion of Ukraine.


On or about April 13, 2022, in the District of Nebraska and elsewhere, the defendant, DAVID FRANKLIN SLATER, having authorized possession of, access to, and control over information relating to the national defense, willfully communicated, delivered, and transmitted that information to a person not entitled to receive it with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation: to wit, DAVID FRANKLIN SLATER transmitted SECRET information regarding ·Russia’s war against Ukraine to Co-Conspirator 1.

The next day, his honeypot thanked him for advance notice of two officials who were traveling to Kyiv.

On or about April 14, “My sweet Dave, thanks for the valuable information, it’s great that two officials from the USA are going to Kyiv.”

Ten days later, Tony Blinken and Lloyd Austin arrived in Kyiv.

At a hearing on Tuesday, Magistrate Judge Michael Nelson granted the government’s request to treat this as a complex case (possibly because it’ll require CIPA). With the government’s consent, Slater was given pretrial release.

Trump’s Other Immunity Claim: Stealing Boxes and Boxes of Classified Documents

Whatever else the SCOTUS grant of Trump’s immunity claim did, it provided the basis for scheduling clarity.

It seems likely SCOTUS has committed to deciding the immunity question by the end of term, in June.

That would present Tanya Chutkan with the decision of whether to try the January 6 case during the election season (it is her choice, not DOJ’s to make). She had been entertaining starting the trial in August, which would have bled into election season as it is, so she may decide to do this. If she does, it is unlikely a jury would reach a verdict before election day, but the trial would give voters opportunity to see the evidence before voting.

The decision to grant cert is as interesting for Trump’s other immunity claim — Trump’s even more frivolous claim that he can’t be prosecuted for stealing boxes and boxes of classified documents because his claimed decision to convert those government documents to his personal possession in violation of the Presidential Records Act is immune from prosecution, as well. I’ve seen some commentary that SCOTUS may have been trying to come up with a different solution but then decided to hear the case. If that’s true, the decision to hear the case came less than a week after Trump made that other claim of immunity, that he can steal classified documents with impunity. Who knows? It’s not before the court, but it may have affected their decision to hear the case.

The matter will be fully briefed by the time Jack Smith submits his brief to SCOTUS on April 8. So he can have two absurd claims of immunity to address, Trump’s claim he can steal the election with impunity, and Trump’s claim he can convert boxes and boxes of classified documents to do with as he pleases on the way out the door even if it violates the Presidential Records Act, a law passed specifically to apply to Presidents. One of the matters that had been hypothetical before the DC Circuit — that Trump might sell nuclear documents to our adversaries — has become concrete.

Given the question as posed by SCOTUS — Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? — I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act “fearlessly and impartially,” citing the “especially sensitive duties” of the President and the need for “bold and unhesitating action.”

There has to be something that distinguishes such actions from those charged against Trump. That something is likely the conversion of the Presidency to one’s own personal benefit. It’s not in the DC Circuit opinion and needs to be — all the more so given that, in Florida, Trump is claiming that he could legally simply convert boxes and boxes of classified documents to his personal property, even though the Presidential Records Act prohibits it.

It’s not in the DC Circuit opinion. But something like that has to be, some measure to distinguish the ordinary unlawful stuff Presidents are asked to authorize on behalf of the country and the venal stuff Trump did to benefit himself.

Tomorrow, Judge Cannon will hold a hearing to discuss how to schedule that trial. Her original schedule included six months of things after pretrial motions, which would put her schedule at September as well (though she’s obviously more likely to stall until after the election). But one thing she can expect is that, by June, Trump’s immunity claim will be resolved.

Update: Here’s the language from Trump’s brief that addresses this problem.

The panel opinion ignores the long history of real-world examples of Presidents engaging in actual behavior that political opponents viewed as egregious and “criminal.” Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur, and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur—such as a hypothetical President corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir. Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. Confronted with real-world hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the Special Counsel conceded below that Presidential immunity from criminal prosecution for official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A, holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed … might be the kind of place in which the Court would properly recognize some kind of immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that the Founders supposedly must have intended that no alleged Presidential misdeed could ever escape prosecution—is plainly incorrect and contradicts the basic premises of a system of separated powers. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710 (Scalia, J., dissenting).

Jack Smith’s response doesn’t really deal with this issue in depth.

7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).