Aileen Cannon Confesses She’s Unable to Distinguish between Golf Balls and Nuclear Weapons

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Depending on how you count, Aileen Cannon issued three or four decisions yesterday.

The most telling is an order letting Trump have a mulligan on whether his false attacks on the FBI pose a danger to society.

As Jack Smith’s team described in a filing, after a hearing on the matter on June 24, Judge Cannon permitted more evidence of what a menace Trump is, but ordered no additional briefing would be permitted.

During the hearing on June 24, 2024, the Court discussed with the parties (Hearing Transcript 6/24/2024 at 27) the potential need to supplement the evidentiary record regarding the Government’s Motion to Modify Conditions of Release, ECF No. 592. After the conclusion of the hearing, the Court issued a minute order setting the schedule and resolving the issue that the Court and the parties had discussed regarding the need for additional briefing. The minute order states: “Consistent with the instructions provided in open court, the evidentiary record on this Motion will be open until June 26, 2024, for the parties to file any additional evidentiary attachments/exhibits in support of, or in opposition to, the Motion 592. Any attachments/exhibits shall be docketed as a “Notice of Filing” (separated by exhibits) and limited to specific evidentiary submissions only. No additional briefing will be permitted.”

But then on Wednesday, Smith’s team brought out a bazooka, providing all the records showing Trump poses a threat to society (which I’ve linked below).

In advance of that, when Trump submitted a bunch of exhibits that seem totally off point, they requested leave — in two weeks — to say more.

President Trump respectfully requests leave to file a response to the expected Notice to be filed tonight by the Special Counsel’s Office. See 6/24/2024 Tr. at 27 (“If the defense requests an opportunity to file additional briefing, then you should make that very clear in — in any response that you file to the motion for additional evidence.”). The defense conferred with the Special Counsel’s Office today and understands that the Special Counsel intends to file numerous exhibits not previously relied upon in seeking its Motion for Modification of Conditions of Release. President Trump respectfully requests two weeks to file a response to the newly submitted evidence.

So Judge Cannon pinky swore, invented a reason to retract one of the only definitive orders she issued against Trump, and created another five weeks of delay over the question of whether Trump is a menace.

PAPERLESS ORDER: In light of the extensive, newly submitted materials filed by the Special Counsel and Defendant Trump in support of and/or in opposition to the Special Counsel’s Motion to Modify Conditions of Release 592, the Court will permit the parties to file one final supplemental brief in response to those newly submitted materials, not to exceed 10 double-spaced pages, on or before July 5, 2024. The Court takes note of the additional court orders included in composite exhibit 11 to the Special Counsel’s recently filed Notice 652 . Consistent with the Court’s statements during the July 25, 2024, afternoon hearing 649, the Court will consider such orders as cited legal authority on the Motion, not as part of the developed evidentiary record in this proceeding, and not for the factual findings set forth in those separate proceedings. The evidentiary record on the Motion is closed. Absent leave of Court, no further exhibits shall be attached to the authorized final supplemental briefs.

Cmon Aileen. You just gave this man five weeks to declare that his own texts aren’t what his own texts say.

At this point, journalists covering Judge Cannon need to put aside all pretense of normality, all pretense that one or another decision will doom Jack Smith’s case (never mind that what they often say misunderstands the evidence). That’s a category error.

That’s true because, the way things are going, this thing will never go to trial. And it’s also true because puff coverage of the actual substantive filings does nothing to rebut the very intentional propaganda that this effort is designed to generate, but only serves the cause of using this case to discredit rule of law and reality.

Which brings me to the other quasi-decisions Judge Cannon made yesterday.

On paper, she denied Trump a Franks hearing for his claim that the warrant to search his beach resort in any way lacked probable cause, dismissing one after another thing that Trump argued should have been included in the affidavit (and debunking that several were, as Trump claimed, misrepresentations).

Except for the last one. Judge Cannon ruled that a warrant searching a home for documents with classification markings and Presidential Records Act documents didn’t have anything to do with probable cause.

The final cited omission concerns the absence of a definition of “personal records” under the Presidential Records Act (PRA) and related caselaw on a former President’s authority to designate records as “personal” under that Act [ECF No. 566 p. 9 (citing Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 300–304 (D.D.C. 2012))]. According to Defendant Trump, the affidavit offered the reviewing magistrate some guidance on the relevant legal statutes and definitions, including the definition of “Presidential records” under the PRA, but it did not include a definition for “personal records” under the Act, which is “significant” in light of the affiant’s decision “to include caselaw regarding the NDI [national defense information] element [in 18 U.S.C. § 793(e)]” [ECF No. 566 p. 9 (referencing ECF No. 566-2 p. 27 ¶ 60 & n.2)]. As with the earlier items in the Franks request, the Motion fails to explain how inclusion of more legal provisions or supporting caselaw on a contested legal question such as the applicability of the Presidential Records Act would have defeated probable cause given the content of the affidavit. Nor does the Motion offer legal authority to suggest that inclusion of further discussion in the affidavit of a potential affirmative defense was legally required to be included as a matter of the Fourth Amendment.

But it did have to do with whether the particularity of Attachment B of the warrant was sufficient, which question she will hold — you guessed it — a hearing on!

To be sure, the Special Counsel raises compelling arguments that Attachment B satisfies the Fourth Amendment’s particularity requirement given its reference to “classification markings” and “classified material” in certain subparagraphs of that document [see ECF No. 567]. But the Court determines that some of the terms in that document (e.g., “national defense information” and “Presidential Records”), do not carry “generally understood meaning[s]” such that a law enforcement agent, without further clarification, would have known to identify such material as “seizable” property pursuant to Attachment B. Wuagneux, 683 F.2d at 1350; [see ECF Nos. 325, 377, 398, 402, 444 (briefing and argument on the term “national defense information”)].6 This argument also relates to Defendant Trump’s claim that searching agents had impermissible discretion in executing the search because of the ambiguity of “certain terms on the illustrative list in the warrant’s subparagraphs” [ECF No. 566 p. 13]. Under these circumstances, even accepting the need for practical flexibility in weighing particularity challenges, the Court is satisfied that further factual development is warranted related to Defendant Trump’s particularity challenge as to Attachment B. 7

This is yet another attempt, by Cannon, to undermine what really are accepted definitions, because it hurts her feelings that she ruled differently in September 2022 and the 11th Circuit reversed her, soundly.

Put another way, though, Judge Cannon is making the argument that FBI agents can’t distinguish between golf balls and documents about nuclear weapons — a distinction that agents who conducted the search seem to have had no problem with. To prove that this is a problem, you would need to prove that any single box was seized with nothing that was obviously covered by the Presidential Records Act.

The part of this order that got far more attention than it merits, however, is that Judge Cannon also granted Trump another hearing on whether Beryl Howell ruled that Trump’s efforts to get Evan Corcoran to conduct an inadequate search merited a crime-fraud exception.

Much of that part of the decision is whiny insistence from Judge Cannon has the authority to revisit Judge Howell’s decision. She does!

Where it gets hysterical is where, almost a year of time-wasting after the indictment, Cannon tries to deny this is not about resource and time wasting.

This is not to say that the necessary evidentiary suppression hearing will devolve into a “mini trial,” as the Special Counsel suggests. The concern about crime-fraud “mini-trials” has been expressed by courts in the grand jury context, e.g., In re Grand Jury Investigation, 842 F.2d at 1226, and it makes sense that such a concern reasonably would apply in the post-indictment context, too, at least in a general way. But there is a difference between a resource-wasting and delay-producing “mini-trial,” on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress, on the other. More practically, the parties can meaningfully confer beforehand on the scope and timing of the hearing, raising appropriate objections with the Court as necessary; the parties can (and will) file exhibit and witness lists as is customary in federal criminal suppression litigation; and the Special Counsel can request the Court to impose reasonable limitations on the evidence produced to ensure efficiency and control. So too, for example, would it be appropriate to submit as an exhibit to the hearing the transcript of the District of Columbia grand jury proceeding (not yet received by this Court); any attachments already filed in connection with the Motion in this Court or in the grand jury proceeding; and any evidence submitted for review by the court that oversaw the grand jury proceeding (it appears no such exhibits were presented, although the matter is unclear).5 But it is an evidentiary hearing nonetheless, and it is before this Court—in this post-indictment context— to make factual findings on contested questions pertinent to the second prong of the crime-fraud exception.

Again, treating this as a serious legal opinion is a category error.

Aileen Cannon is sitting in her little court room in Fort Pierce denying the danger of Donald Trump — whether it involves storing nuclear documents under a Christmas pillow or whether it involves disseminating false claims about the FBI to people bound to respond with violence — all the while whining that her time-wasting is valuable.

Catalog of all the reasons Donald Trump is a menace

Exhibit No. 1: The Statements Giving Rise to the Motion to Modify Release Conditions— Trump’s Statements Alleging a Plan by the FBI to Kill Him and His Family in Connection with the August 8, 2022 Search of Mar-a-Lago

[link]

A. Trump Truth Social Post (May 21, 2024) [ECF No. 592-1]

B. Trump Fundraising Email (May 23, 2024) [ECF No. 592-2]

C. Trump Truth Social Post (May 23, 2024) [ECF No. 592-3]

D. Trump Truth Social Repost (May 24, 2024) [cited in ECF No. 592 at 7 n.3]

E. Trump Truth Social Post (May 25, 2024) [ECF No. 592-5]

Exhibit No. 2: Examples of Trump’s Surrogates Amplifying His Statements Alleging an FBI Plan to Kill Him

[link]

A. @patriottakes X Post Embedding Stephen Bannon Podcast Excerpt (May 21, 2024) [ECF No. 592-4]

B. @MZHemingway X Post (May 21, 2024)

Exhibit No. 3: Examples of Trump’s Statements Regarding the FBI

[link]

A. Trump Statement Regarding the Execution of the Mar-a-Lago Search Warrant (Aug. 8, 2022) [ECF No. 638-3]

B. Select Trump Truth Social Posts Regarding the FBI (Aug. 9, 2022 to June 9, 2023)

Exhibit No. 4: Examples of Threats Against the FBI Following Trump’s Statements

[link]

A. Select Ricky Shiffer Truth Social Posts (Aug. 9 to Aug. 11, 2022) [ECF No. 638-4]

B. In re: Search of Information Associated with Truth Social Profile with Username @rickywshiffer or Ricky Shiffer That is Stored at Premises Controlled by Truth Social, No. 1:22-mj-481 (S.D. Ohio Aug. 12, 2022; unsealed June 20, 2024) (Search Warrant Application) [ECF No. 638-1]

C. FBI Cincinnati Statement (Aug. 11, 2022; updated Aug. 12, 2022)

D. In re: Sealed Search Warrant, No. 9:22-mj-08332-BER (S.D. Fla. Aug. 22, 2022) (Order on Motions to Unseal) (highlighting added at 8-9)

E. United States v. Timothy Muller, No. 4:24-mj-479 (N.D. Tex. June 14, 2024) (Criminal Complaint) [ECF No. 638-2]

Exhibit No. 5: Examples of Trump’s Statements Regarding Judges and Court Staff

[snip]

A. Trump Truth Social Post (Aug. 4, 2023) [ECF No. 638-5] 1

B. Select Trump Truth Social Posts Regarding a United States District Judge for the District of Columbia Presiding Over a Criminal Case in Which Trump is the Defendant (Aug. 6 to Dec. 8, 2023)

C. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Civil Case Involving Trump (Oct. 28, 2022 to Nov. 29, 2023)

D. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Criminal Case in Which Trump is the Defendant (Mar. 26 to Apr. 30, 2024)

Exhibit No. 6: Examples of Threats Against Judges and Court Staff Following Trump’s Statements

[link]

A. United States v. Abigail Jo Shry, No. 4:23-cr-413 (S.D. Tex. Aug. 11, 2023) (Criminal Complaint)

B. Alan Feuer, Apparent ‘Swatting’ Incidents Target Judge and Prosecutor in Trump Election Case, N.Y. Times (Jan. 8, 2024)

C. Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (Affirmation in Opposition)

1. Ex. A: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (10/3/23 Trial Transcript)

2. Ex. B: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 20, 2023) (Other Order—Non-Motion)

3. Ex. C: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (Other Order—Non-Motion)

4. Ex. D: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Nov. 3, 2023) (Supplemental Limited Gag Order)

5. Ex. E: Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (11/21/23 Affidavit of Charles Hollon)

D. Peter Eisler, et al., Trump Blasts His Trial Judges. Then His Fans Call for Violence, Reuters (May 14, 2024)

Exhibit No. 7: Examples of Trump’s Statements Regarding Prosecutors

[link]

A. Select Trump Truth Social Posts Regarding the New York District Attorney (Jan. 31 to Mar. 24, 2023)

B. Select Trump Truth Social Posts Regarding the Fulton County District Attorney (Mar. 23 to Aug. 24, 2023)

Exhibit No. 8: Examples of Threats Against Prosecutors Following Trump’s Statements

[link]

A. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Feb. 26, 2024) (2/22/24 Affidavit of Nicholas Pistilli)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 21, 2024) (6/20/24 Affidavit of Nicholas Pistilli)

C. United States v. Craig Deleeuw Robertson, No. 2:23-mj-722 (D. Utah Aug. 8, 2023) (Criminal Complaint)

D. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Darin Schierbaum)

E. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Gerald Walsh)

F. United States v. Arthur Ray Hanson, No. 1:23-cr-343 (N.D. Ga. Oct. 25, 2023) (Criminal Indictment) Exhibit

No. 9: Examples of Trump’s Statements Regarding Potential Witnesses in the District of Columbia Case and Threats Following Trump’s Statements

[link]

A. United States v. Trump, No. 1:23-cr-257 (D.D.C. Sept. 15, 2023) (Motion to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings)

B. Trump X Post Regarding a City Election Commissioner (Nov. 20, 2020) and Excerpt of the Commissioner’s Public Testimony Before the House Select Committee to Investigate the January 6th Attack on the United States Capitol (June 13, 2022)2

C. Trump Truth Social Post Regarding a Former Chairman of the Joint Chiefs of Staff (Sept. 22, 2023) [ECF No. 638-5]

Exhibit No. 10: Trump’s Awareness of the Link Between His Statements and His Followers’ Responses

[link]

A. Select Trump Truth Social Posts (Apr. 4, 2024) [ECF No. 642, GX1]

B. Excerpt of Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023)

C. Trump Truth Social Post (Apr. 29, 2023) [ECF No. 642, GX2]

Exhibit No. 11: Relevant Court Orders Not Cited in the Government’s Pleadings

[link]

A. United States v. Trump, No. 1:23-cr-257, ECF No. 124 (D.D.C. Oct. 29, 2023) (Opinion and Order)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Mar. 26, 2024) (Decision and Order on People’s Motion for an Order Restricting Extrajudicial Statements)

C. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Apr. 1, 2024) (Decision and Order on People’s Motion for Clarification or Confirmation of an Order Restricting Extrajudicial Statements)

D. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 25, 2024) (Decision and Order on Defendant’s Motion to Terminate Order Restricting Extrajudicial Statements)

E. United States v. Taranto, No. 1:23-cr-229, ECF No. 27 (D.D.C. Sep. 12, 2023) (Order of Detention) (highlighting added at 4-6)

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The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

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As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

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“Nobody ever slept on that side of the bed usually so he would have it all full of boxes”

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The government has filed their response to Trump’s argument that, because some of the contents of Trump’s boxes have shifted during the investigation, the entire indictment must be dismissed. I’ll do a long post describing what new details it reveals of Trump’s hoarding and of the investigation.

For now, I wanted to point to a fragment of an interview report (302) from someone who might be one of Trump’s White House valets. The witness repeated a point made by other loyal Trump staffers: They joked about Trump’s obsession being akin to that in My Beautiful Mind.

The witness described that one time, after Derek Lyons instructed the witness to go search Trump’s boxes for something, Trump knew things were out of place.

[Person 81]: There were conversations — like, he knew which ones had what in them. We had conversations with the Staff Secretary for us to, quote, go into the boxes and get things out. So he wanted us to go shuffle through the boxes —

Mr. Raskin: He the Staff —

[Person 81]: The Staff Secretary.

Mr. Raskin: [Person 45] or [Derek Lyons].

[Person 81]: [Lyons] was the one that informed me to do it. Go through, shuffle through, see what we could find about schedules, specific documents that they had, which I can’t remember off hte top of my head exactly what those were, but find specific documents and pull those out and then give them to them so that they could have them —

Mr. Raskin: And did you do that?

[Person 81]: — for tracking purposes.

Mr. Raskin: And you said [Lyons] wanted you to do it; did you do it?

[Person 81]: We only did that — I did that one time and the President realized that it happened and I told [Lyons] that I won’t do that again because I don’t want the President to think that I was snooping through his stuff.

But the more interesting detail is that Person 81 described how there was a cluster of boxes right next to Trump’s bed at the White House.

So if you walk into the room, his bed — there’s a nightstand, his bed, and then there’s, like, a — where another nightstand was but nobody ever slept on that side of the bed usually so he would have it all full of boxes.

Now, I get the impetus. Back in the days when most of my reading was still dead tree books, there’d be a stack of them there, next to my side of the bed, maybe two stacks. There are still four or five in-process books on the bookshelf by the bed.

But Trump’s White House aide was describing boxes and boxes of White House documents, including classified documents.

They were right there by the side of the bed because (usually) no one slept on that side of the bed.

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The Document Found with Roger Stone’s Clemency Did Pertain to Emmanuel Macron

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Just days before the snap election Emmanuel Macron recklessly called after Marine Le Pen shellacked his party in the EU elections, we are one step closer to showing a tie between the still unexplained grant of executive clemency to Roger Stone found in the search of Mar-a-Lago and the French President.

As I have described in the past, the first thing listed on the non-privileged search warrant return was an executive grant of clemency for Trump’s rat-fucker. Most people have always assumed that it was one of the known grants of clemency — either the commutation or the later pardon — for Stone’s lying to cover up his 2016 ties to Russia.

Except as listed, it is associated with, “Info re: President of France.”

There had been reports that the President of France in question was Macron. Trump’s defense attorneys seem to have confirmed that.

That confirmation comes as part of a Trump bid to dismiss the entire stolen documents prosecution because the FBI jumbled the order in which documents were found during and after the search. Both before and after the problem with the order of the documents first became understood, in March and then May, Jack Smith’s office did some interviews with the Miami-based agents who did the filter process, which Trump included as exhibits.

As described, the agents exercised varying diligence about maintaining the order of documents in each box; as Agent 5 explained, keeping the order intact was made more difficult because of the contents of the boxes, in which Post-It notes and golf balls were stashed in the same boxes with potentially privileged documents (I can’t make out the first word in this series).

As Agent 17 described, he and Agent 5 did the filter search of Trump’s own desk together as another agent found the box in the closet where the most sensitive classified documents were found (note: it’s clear agents were also being asked about the 43 classified cover sheets allegedly found in that box; Trump’s silence on this point suggests others gave clear answers about it).

As Agent 17 described it, Agent 5 found “Macron doc in desk,” though makes no mention of the clemency associated with it.

Note there was a set of “KJU letters” — the love letters from Kim Jon Un to Trump — in a desk then occupied by Molly Michael, identified as Person 34 in other releases. Trump had returned at least some of these in the January 2022 boxes.

It’s not yet clear how the Macron document, classified Secret, relates to the Stone clemency. But as I wrote here, such a tie could be quite significant: when Scott Brady (the MAGAt US Attorney whose claims to have vetted the Alexander Smirnov hoax were just referred to DOJ for potential prosecution as a false claim to Congress) indicted GRU hackers for operations that included the 2017 MacronLeaks that attempted to help Le Pen in her election against Macron, the indictment claimed to be ignorant of the public details tying Roger Stone associates to the dissemination of the stolen documents.

The Macron document does not appear to be among those charged, so we may never learn more about why Trump had a Stone grant of clemency — and possibly a bunch of other pardons — in his desk drawer.

Note, in addition to exhibits documenting the Mar-a-Lago search, Trump’s lawyers helpfully provided this description of the documents found among the boxes Trump returned in January 2022, two of which required especially sensitive treatment.

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Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

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After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

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Jack Smith Invites Aileen Cannon to Protect the Country Rather than Just Donald Trump

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Jack Smith has asked Judge Aileen Cannon to prevent Trump from lying about a plot to assassinate him, as he has done since propagandist Julie Kelly made a stink about a routine Use of Force form Trump himself released and misrepresented and created a false scandal. But there’s a detail about how he asked the deserves attention.

The motion describes how Trump filed that routine form, without tying to his demand for suppression, and then started lying about it, only to have other propagandists (it includes an example from Steve Bannon’s show) join in.

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. See ECF No. 566. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Id. at 4. Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission. The motion also left out language explaining that deadly force is necessary only “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Compare ECF No. 566-3 at 11 with ECF No. 566 at 6. Notwithstanding the misleading characterization of the use-of-force provision when describing the search, the motion did not seek suppression based on the policy, claim that the agents had acted inappropriately in following that standard protocol, or otherwise rely on the policy as part of the argument. See ECF No. 566 at 12-13.

On May 21, 2024, Trump filed a redacted version of his suppression motion and exhibits on the public docket. See ECF No. 566. The next day, Trump publicly claimed that he was just “shown Reports that Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mara-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.” Exhibit 1. Trump also sent an email stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” Exhibit 2. Trump also publicly claimed that, “[s]hockingly,” the Department of Justice “authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’” Exhibit 3. Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump. See Exhibit 4. [my emphasis]

Now, that could have been all that Smith needed to do. As he lays out, Judge Cannon has the authority under the Bail Reform Act to modify Trump’s release conditions to protect the safety of the community.

Under the Bail Reform Act, a “judicial officer shall issue an order that, pending trial, the [defendant] be” either released on personal recognizance or an unsecured bond, 18 U.S.C. § 3142(a)(1), released “on a condition or combination of conditions under subsection (c),” id. § 3142(a)(2), temporarily detained pending revocation, deportation, or exclusion, id. § 3142(a)(3), or detained, id. § 3142(a)(4). Here, Trump was released on conditions under subsection (c). ECF No. 17.

Subsection (c) provides that, if a person is released on conditions, the “judicial officer shall order the pretrial release of the person” subject to (1) “the condition that the person not commit a Federal, State, or local crime during the period of release,” and (2) “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(A), (B). The statute then lists several “further condition[s]” that the release order “may include.” As relevant here, those further conditions include that the defendant “satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv). Subsection (c) further provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” Id. § 3142(c)(3).

The Court should exercise its authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case

But Smith didn’t stop there. Even before that, Smith invoked an argument Judge Cannon made herself last year, when choosing to stick her nose into the public reports that Jay Bratt was mean to Stan Woodward.

The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

This is, at the very least, a subtle dig. Cannon has gone out of her way (with the original search, and then on two of these such occasions) at least three times to protect Trump.

But she has done nothing as Trump, “irresponsibly put a target on the backs of the FBI agents involved in this case,” as the filing describes.

At least one attorney has suggested that Cannon could ding Chris Kise for leaving out the limitations and thereby giving the Use of Force policy the opposite meaning than it really has (bolded above), setting up this propaganda attack.

Instead, Smith has used it as an opportunity to either force Cannon to rein Trump in — or to demonstrate that her bias in this case is contributing to a very dangerous situation.

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Aileen Cannon Blames Jack Smith That She Fucked Over Stan Woodward

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Aileen Cannon has frothed up the usual suspects with her latest order, in which she suggests that Jack Smith is being inconsistent about his approach to grand jury secrecy.

In closing, the Court deems it necessary to express concern over the Special Counsel’s treatment of certain sealed materials in this case. In two separate filings related to sealing, the Special Counsel stated, without qualification, that he had no objection to full unsealing of previously sealed docket entries related to allegations of prosecutorial misconduct [ECF Nos. 423, 464]. In light of that repeated representation, and in the absence of any defense objection, the Court unsealed those materials consistent with the general presumption in favor of public access [ECF No. 472 (unsealing ECF Nos. 101, 115–116, 118)]. Subsequently, in the course of adjudicating continuing redaction disputesleading to this Order, the Court inquired about those nowunsealed filings, which contain material as to which the Special Counsel has voiced (and continues to voice) objections to unsealing [ECF No. 267–268, 294, 350, 369, 511 (opposing public disclosure of potential witness names, ancillary names, and grand jury matters); see ECF Nos. 506, 533, 542]. 4 In response to those inquiries, counsel explained that the Special Counsel took the position on unsealing in order to publicly and transparently refute defense allegations of prosecutorial misconduct raised in pretrial motions [ECF No. 542 p. 67]. 5 Fair enough. But nowhere in that explanation is there any basis to conclude that the Special Counsel could not have defended the integrity of his Office while simultaneously preserving the witness-safety and Rule6(e) concerns he has repeatedly told the Court, and maintains to this day, are of serious consequence, and which the Court has endeavored with diligence to accommodate in its multiple Orders on sealing/redaction [e.g., ECF Nos. 295, 361, 438, 440, 474]. The Court is disappointed in these developments. The sealing and redaction rules should be applied consistently and fairly upon a sufficient factual and legal showing. And parties should not make requests that undermine any prior representations or positions except upon full disclosure to the Court and appropriate briefing.

3 In addition, subject to further unsealing as becomes necessary, this Order marks the resolution of the limited disclosure issues transferred to this Court by the U.S. District Court for the District of Columbia [ECF No. 512 (sealed)].

4 The Court also notes that the Superseding Indictment contains numerous quotes from grand jury testimony, the balance of which the Special Counsel continues to maintain require sealing under Rule 6(e) [ECF No. 85]. [links added]

Ultimately, this is a complaint from Aileen Cannon that she made Stan Woodward look bad.

This kerfuffle stems from two things.

First, Jack Smith overproduced discovery to Donald Trump and his co-defendants compared to normal defendants, providing most grand jury transcripts from the start, rather than in conjunction with and timed to select witnesses testifying. Under Jencks, he would normally not be required to turn that over until when witnesses testified, but instead, he provided a guy who has serially ginned up threats against witnesses means with which to do so from the start.

Second, Cannon has twice intervened out of course, reading reporting based on leaks and deciding it is her job to expose the underlying dispute.

In this case, it arises from an order she issued days after the superseding indictment, requiring both sides to submit details about a claim reported in the press but not yet raised by Stan Woodard that Jay Bratt had threatened Stan Woodward in an attempt to force Walt Nauta to flip on Donald Trump.

THIS MATTER comes before the Court upon news reports of allegations of potential misconduct related to the investigation of this case and related reports of a review by the United States District Court for the District of Columbia. The Court refers herein to reported allegations raised by Stanley E. Woodward, counsel for Waltine Nauta, against Jay I. Bratt, Counselor to the Special Prosecutor, concerning statements made by Mr. Bratt to Mr. Woodward regarding a judicial application submitted by Mr. Woodward. In service of the Court’s independent obligation to protect the integrity of this judicial proceeding, and to promote transparency in the Court’s oversight of this case, it is ORDERED AND ADJUDGED as follows:

1. On or before August 11, 2023, Counsel for Waltine Nauta shall file under seal with the Court a complete and current account of the accuracy, substance, and status of the reported allegations, and shall attach to the submission any pertinent written materials on the subject, including any materials submitted to the United States District Court for the District of Columbia.

2. Similarly, on or before the same date of August 11, 2023, the Special Counsel shall file under seal with the Court a complete and current report on the status of the referenced allegations, attaching any written materials on the subject in the possession or custody of the Special Counsel or the United States Department of Justice. [my emphasis]

In response to Judge Cannon’s sua sponte intervention, Smith submitted several filings — including almost 200 pages showing that after Trump got warned he was going to be charged, he ginned up a bunch of misconduct allegations, including the one that got shared with the press. Those filings show Trump abusing the legal process, not Smith abusing his prosecutorial position.

These are grand jury proceedings about the investigation, not grand jury testimony of witnesses (though it describes the circumstances of certain witness testimony, including Margo Martin and Kash Patel). This filings show that the public claims Trump associates were making didn’t match the substance of a second dispute that happened before James Boasberg last summer.

The other filings were similar attempts by Trump to make allegations of misconduct (in conjunction with motions to dismiss) that he didn’t have to back publicly, but also to expose grand jury testimony. Smith’s opposition to releasing those materials stemmed from a justified intent not to allow Trump to abuse Smith’s expansive discovery to engage in witness tampering.

Of course, the problem would never have happened if Aileen Cannon hadn’t done something inappropriate in the first place, deciding to chase Fox News allegations in a court of law.

Cannon’s complaint amounts to a complaint that her initial intervention did not provide Trump an opportunity to threaten witnesses.

This is not the first time a little transparency revealed what a hack Cannon is being. In closely related developments last year, for example, the government made it clear she already had notice of Stan Woodward’s potential conflicts when she delayed proceedings for a month pretending it was new.

Ultimately, by the time all this gets unsealed, we’ll be able to reconstruct how Cannon’s serial attempts to put a thumb on the scale actually had the effect of making Woodward (and Trump’s lawyers) look dishonest. It’ll take time to do that, of course, which is likely why Cannon is wailing now, before we can reconstruct it.

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Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

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Right Wing Propaganda Fail: Julie Kelly’s Troubles with Ten and Two

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As I laid out in this post, Julie Kelly is an important right wing propagandist who has ginned up quite a lot of attention from accused fraudsters for her willingness to lie about Jan6ers and Donald Trump. Her propaganda may have given Aileen Cannon cover to delay trial for Trump’s alleged unlawful retention of National Defense Information, including a nuclear document.

I say she’s a propagandist willing to lie based on an extended discussion we had in 2021 about January 6ers charged with assaulting cops (at a minimum, 18 USC 111(a)). She reviewed my (incomplete) list, challenged a number of people on it — for example, people who had been charged with 18 USC 111 via complaint but charged with something else, like 18 USC 231, upon indictment. There were 112 people on the list. Nevertheless, Julie never retracted her false claim — a foundational one in Jan6 hagiography — that fewer than 100 Jan6ers had been charged with assaulting cops. Having been presented with proof she was wrong, she simply continued to tell the same lie, downplaying the alleged (and since then, adjudicated) violence of the Jan6ers she was claiming were peaceful protestors.

Because trolls keep pointing to her latest work, in which she accused the FBI of doctoring the initial photo released from the Mar-a-Lago search, I wanted to point out how Julie continues to struggle with numbers, this time the difference between ten and two, and as a result has badly deceived all those poor trolls.

She claims that Jay Bratt lied in his description of what the FBI found at Mar-a-Lago, in which he referred to the famous photo from the search, which Bratt specifically described as a photo of documents and classified cover sheets found in a container seized in Trump’s office.

Jay Bratt, who was the lead DOJ prosecutor on the investigation at the time and now is assigned to Smith’s team, described the photo this way in his August 30, 2022 response to Trump’s special master lawsuit:

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court. In fact, after being busted recently by defense attorneys for mishandling evidence in the case, Bratt had to fess up about how the cover sheets actually ended up on the documents.

Here is Bratt’s new version of the story, where he finally admits a critical detail that he failed to disclose in his August 2022 filing:

“[If] the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose.”

But before the official cover sheets were used as placeholder, agents apparently used them as props. FBI agents took it upon themselves to paperclip the sheets to documents—something evident given the uniform nature of how each cover sheet is clipped to each file in the photo—laid them on the floor, and snapped a picture for political posterity. [Italics Julie’s, bold emphasis mine]

Julie’s passage starts by quoting from Bratt’s description of the photo in his August 2022 declaration. The contents of the container in question are clearly identified in the picture as 2A — that is, the contents of box 2. In his declaration, Bratt specifically identifies that the box was recovered in the office. Until DOJ learned of the box of presidential schedules Chamberlain Harris had under her desk in various places, that was the only box known to be seized from the office (though some albums and loose documents were found as well).

Then, Julie nods to, but does not cite, Stan Woodward’s description of the appearance of slip sheets in boxes of unclassified documents when she describes Bratt as, “being busted recently by defense attorneys.” I quoted Woodward’s filing at length here.

She then quotes from Jay Bratt’s description of something other than that photo: of how, as the FBI searched individual boxes, the FBI inserted a replacement — sometimes a classified cover sheet, but after they ran out of those, a handwritten piece of paper — when it pulled the classified documents from the boxes. Here’s more of what Bratt said.

The filter team took care to ensure that no documents were moved from one box to another, but it was not focused on maintaining the sequence of documents within each box. If a box contained potentially privileged material and fell within the scope of the search warrant, the filter team seized the box for later closer review. If a box did not contain potentially privileged documents, the filter team provided the box to the investigative team for on-site review, and if the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

So Julie relies on (1) a description of a photo of the documents with classification markings removed from box 2 on August 8, 2022, (2) Woodward’s description of what boxes from which documents with classification markings have been removed currently look like, and then (3) Bratt’s description of the search process used in August 2022. From that, she declares that Bratt’s description of some contents of a single box doesn’t match his description of a process used to search boxes and therefore the evidence in the picture must have been doctored.

Already, poor Julie has a problem. First, Bratt’s descriptions are of different things. The August 2022 declaration describes what they found at Mar-a-Lago after pulling documents with classification markings from boxes. The recent response describes what the FBI did when pulling documents with classification markings from boxes.

Woodward, too, describes something different than what Bratt described in August 2022. In the filing that Julie doesn’t cite, Woodward describes what boxes from which documents with classification markings have already been removed currently look like. Again, there is a difference between what remains in boxes versus what got pulled from boxes.

Plus, Bratt’s description is consistent with the picture; Julie’s is not.

Bratt said that a subset of the documents did have cover-sheets — the bit that she italicizes. Julie simply asserts, as fact, that the FBI attached the seven cover sheets that appear in the picture (but for what she imagines is a doctored photo, did not attach cover sheets to the other documents in the picture). To match Bratt’s later description, all the documents with classification markings in the picture would have cover sheets, which also would have made a more damning photo. Julie doesn’t consider the possibility that the seven or so cover sheets in the picture which she describes to be attached to documents were among those documents that Bratt described that did have cover sheets. She doesn’t puzzle through why, if the FBI were trying to make things look as bad as possible, they didn’t put cover sheets on everything.

And to reiterate, this picture does not depict what Julie thinks she’s describing at all; what she’s describing is what got left after the classified documents were segregated from ones without classification markings. What the picture shows on the floor is only documents with classification markings.

It gets worse.

Poor Julie the propagandist states as fact that, “Classified cover sheets were not ‘recovered’ in the container.”

As I noted here, Stan Woodward bases his description of the troubling box with documents out of place as item 10. He describes, “Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10.”

The inventory certified as part of the Special Master process back in September 2022 describes item 10 (identified as box A-15 in the warrant return) this way:

It is, as I noted, the box with the biggest number of classified documents in it, but they were classified at a lower level — Confidential and Secret.

The inventory describes nothing about cover sheets.

But that’s not the box in the picture!! That’s not the box Jay Bratt described back in August 2022!

The box in the picture is box 2, a leatherbound box found in the office.

Here’s how the uncontested description from the Special Master inventory describes that box, the one that Jay Bratt was actually talking about. [my red annotation]

The inventory describes that, in addition to 24 classified documents — 7 of them Top Secret, of which just five are reflected in cover sheets in the picture — there were also 43 empty classified folders.

And yet poor Julie states as fact that, “Classified cover sheets were not “recovered” in the container.” While folders and these cover sheets are different things, they serve to cover classified documents. There were 43 empty classified folders in box 2.

Remember: Tim Parlatore admitted that Trump retained at least one classified cover folder when he was trying to explain why his search team found one marked “Classified Evening Summary” in Trump’s bedroom. Is Julie calling Parlatore a liar now too?

In any case, Julie is talking about an entirely different box, one that the inventory doesn’t record as having any classified cover sheets in it. Based on a claim that item 10 (box A-15) didn’t have cover sheets, Julie stated as fact that item 2 didn’t either.

She simply made it up.

Based on the uncontested inventory, the FBI could have made that picture far more damning than they did, had they paper clipped cover sheets to “each” document with classification marks, as Julie claims they did. They could have put cover sheets on two more Top Secret documents for the picture and added cover sheets on up to 12 more Secret documents. They could have stacked up those 43 empty folders that once had documents in them, but no longer did on August 8, 2022. Instead, they took a picture showing that some of those documents had cover sheets and some did not, which (accurate or not) is precisely what Bratt described, apparently leaving out the 43 damning empty folders altogether.

Poor Julie took a description of a box found in the storage closet, treated it as a description of a box found somewhere else, and then simply never bothered to check what that box — the box Jay Bratt was actually referring to — actually contained.

Julie the propagandist suggests that if the picture were accurate — if there really were seven documents that still had cover sheets in the box that Jay Bratt was actually describing — then it would accurately support an argument that, “the former president is a criminal and threat to national security.” And wow, that may be a problem, conceding that that picture supported an argument that Trump was a national security threat! Because nothing Julie claims in her post describes this box. And her claims that the FBI made this picture as damning as possible is debunked when you look at the actual contents of the box (or even, the picture itself).

So instead, she described something entirely different — something entirely unrelated to the box contents in this picture — and claimed the FBI, and not Julie the propagandist herself, was engaged in deception.

Update: Julie now says that in spite of all the proof she got caught lying, she must still be right because the paperclips in the picture are tidy.

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How We Got to a Place Where Right Wingers Cheer Stealing Nuclear Documents

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When Aileen Cannon issued her order delaying Trump’s stolen documents trial indefinitely, I posted this on Xitter.

The post was factual. Trump nominated Judge Cannon on May 21, 2020. Judge Cannon’s order ceded to the requests of Trump and his co-defendants for hearings on all sorts of requests that, before any other judge, would be deemed frivolous. She adopted deadlines Trump asked for last year. The order undoubtedly delayed accountability in this case, with the next deadlines set for a month after the original trial date. And Trump is alleged to have stolen nuclear documents. In the original 15 boxes returned in January 2022, there were three documents classified FRD, for a total of 57 pages and charged document 19, which was seized on August 8, 2022, is also classified FRD, formerly restricted, a classification used for nuclear stockpiles and targeting. All would have been covered by the Presidential Records Act and so belong to the US Government; Trump could declassify none of them on his own.

By 11 my time (plus-5 from ET), it had gone viral, with 200k views, 47 QTs, 4.4k likes, 1.6k RTs, and 300 responses.

The post is a good way to start thinking about the information economy that led us to a place where a Republican judge helps delay accountability for stealing nuclear documents and storing them in a closet normally storing campaign swag. This information economy creates an environment in which a former prosecutor like Aileen Cannon either believes, or claims to believe, outlandish claims of bias and ill-treatment solely because career national security officials — rebranded by Trump as the Deep State — did their job.

Take the responses. In addition to a bunch of lefty responses — including a bunch imagining there was some quick fix switch that Jack Smith can hit to remove Aileen Cannon — there were a range of MAGAt responses, including a bunch doubting that there were really nuclear documents.

One of those was a full Pepe meme invoking Obama’s birth certificate.

Several used the superbly inane retort MAGAts like to use with me: that my moniker should be “emptyhead” instead of “emptywheel.”

Several of the responses in the thread came from Alexander Sheppard, a Jan6er convicted of obstruction whom John Bates ordered released part way through a 19-month sentence pending the outcome of Joseph Fischer’s challenge to the application of 18 USC 1512(c)(2) over government objections that Sheppard still insists he’s a political prisoner.

This kind of viral response on Xitter is the point — right wingers have deliberately stoked such toxic viral responses for years. This is the kind of “engagement” Xitter’s billionaire owner has chosen to foster.

The point is not rational discussion, but instead the replacement of it with brainless mob-think, a mob-think designed to reinforce unquestioning partisan identity, a mob-think designed to drown out rational consideration of what it means that Judge Cannon has intervened in this way.

A mob-think that can be wielded to drown out the basic fact that Trump is accused of refusing to give back a nuclear document.

Of course, Elon Musk’s decision to grant people with a certain sized following, which includes me, checkmark status some months ago helps to ensure that anything I say will be visible to and therefore subject to this kind of mob treatment. Because of that involuntary checkmark, anything I say will be a magnet for this kind of mob response.

One reason the comment went viral is because of a few QTs from right wing influencers, not least Julie Kelly, who plays a key role in the right wing propaganda world. (The first post here is a QT, claiming that I am an example of the people invoked in her prior Tweet who (she falsely claims) hasn’t covered things I have covered; that is, Julie made my post go viral based on an outright lie, on top of the lie that I have never advocated that Smith ask Cannon to recuse because I doubt it would work.)

Julie has spent her time since January 6 running a PR campaign for the defendants, falsely claiming they were treated differently than other similarly situated defendants. I have repeatedly showed that Julie has refused to correct lies she has told about the number of January 6 defendants charged with assault and in some but by no means all cases, detained pre-trial. I’ve also had to explain really basic things to poor Julie, like how white people get charged with terrorism.

Julie has moved on from January 6 to Trump’s cases, providing the same kind of inflammatory, factually flawed claims she did for men who attacked cops. And she’s effective. Indeed, she spun the latest development that Aileen Cannon may use as political cover for shutting down the prosecution of a guy who stole nuclear documents. Julie has claimed that because FBI replaced certain documents with slip sheets, all the slip sheets were planted there by the FBI. That’s not remotely what the evidence shows (indeed, the evidence shows that a number of boxes had cover sheets without any documents, something even Tim Parlatore has backed). Nor does it convey the one place where altered box order will matter, which is for Trump — except that the altered document order shown thus far is almost certainly not implicated in any of the charged documents, because it involves Confidential, not Top Secret, documents.

Here is Julie’s coverage of the Robert Hur report, in which she spins Biden granting permission for the FBI to just come and grab boxes as somehow worse than Trump stalling, refusing to let the FBI actually look in boxes when they arrive, then withholding boxes and boxes.

Unlike the expansive raid of Mar-a-Lago, however, the bureau came unprepared. “The FBI dispatched two agents to retrieve the boxes in the garage the following day,” Hur wrote of the FBI’s visit to Delaware on December 21, 2022. “[The] agents conducted a limited search of the garage intended to determine whether it contained other classified documents. The two agents lacked sufficient resources to conduct a comprehensive search of the entire garage given the volume of material stored there.”

Authorities waited for Biden’s consent–he apparently did not want to turn over his notebooks–to search his home; agents were sent to Delaware on January 20, 2023. One item retrieved by the FBI, according to Hur, was Biden’s 2009 “handwritten memo [to President Obama detailing his opposition to the troop surge in Afghanistan] that contains information that remains classified up to the Secret level.”

But Biden and his associates will be spared prosecution. The same media echo chamber that raged for months about Trump’s threat to national security instead is condemning Hur for his “gratuitous” remarks about Biden’s faulty mental faculties.

In the meantime, Trump and his co-defendants are preparing for a tentative May 20 trial date in Florida, embroiled in costly and time-consuming legal battles with the DOJ.

Another example of the two-tiered standard of justice in Joe Biden’s America.

In spite of Julie’s close coverage of the Hur report, she has not told her rubes that the FBI similarly reordered documents in the most important box seized from Biden, nor gone back to admit that the problem she is now misrepresenting — that there were so many classified documents at Mar-a-Lago that FBI ran out of slip sheets — is evidence that the FBI was similarly unprepared for the Trump search.

Julie has similarly spun documents that show Mark Meadows was significantly responsible for getting the Biden White House involved in efforts to retrieve documents (because he tried to reach out to WHORM personally), and show key players at NARA hesitating before asking for further involvement of DOJ as the opposite, an aggressive effort to get Trump.

It doesn’t have to be true. It only has to feed the rubes.

And by feeding the rubes shamelessly false claims, Julie has become quite the celebrity, speaking at CPAC and regularly appearing on Steve Bannon’s show. Bannon knows a useful propagandist when he sees one!

Now, I’m not begrudging Julie the fame she has carefully cultivated with her shamelessness. She has earned it! The right wing propaganda network — the deliberate fostering of lies masterminded by people like accused fraudster Bannon — always rewards people who will tell the rubes what they want to hear.

What I’m trying to explain is how her role gives Aileen Cannon cover to do truly astonishing things, like entertain the notion that  putting a non-partisan in charge of the investigation of Trump for classified documents while putting a Trump appointee who had already deprived a Trump target of due process in charge of the Biden investigation is instead proof of selective prosecution against Trump.

In addition to that premise — that investigating Trump in the same way as investigating Biden is proof of selective prosecution against Trump — Aileen Cannon’s order yesterday and earlier orders signalled she is entertaining the following claims:

  • That Walt Nauta, who doesn’t claim to have sorted through any documents, must have the ability to sort through classified documents
  • That because the document investigation, which included crimes in DC, started in DC, and used DC SCIFs for the investigation, it’s proof that Jack Smith was deliberately attempting to bypass SDFL
  • That because Mark Meadows and Pat Philbin got the White House involved in document response, it’s proof that Biden improperly intervened
  • That even though multiple Trump-friendly witnesses testified that Trump didn’t even know Tom Fitton’s Clinton socks theory until 2022, he should be able to argue to jurors he applied it in 2021
  • That because NARA informed DOJ about classified documents, the same way they did with Joe Biden, it’s proof that NARA are part of the prosecution team as opposed to the victim
  • That because Trump’s surveillance system uses difficult software and one of the defense lawyers only uses an iPad, prosecutors have failed to meet discovery obligations
  • That Trump has immunity to steal nuclear documents that he couldn’t even declassify on his own

These are all, individually and collectively, crazy. It’s unclear whether Cannon truly believes them or simply doesn’t care. She has chosen to treat Trump’s claims according to the reality his propaganda bubble has created rather than the actual facts before her.

A lot of the responses to my Tweet were lefties imagining that Jack Smith has some kind of button he can press to get Aileen Cannon replaced; he doesn’t.

But even if he did, it wouldn’t solve the problem. Because the problem before us is that Trump’s mob and his judges have been trained to believe that applying any law to him amounts to a two-tiered system of justice by a very comprehensive propaganda machine.

Trump’s propaganda machine has drowned out facts and replaced it with grievance.

And until something starts cutting through that grievance, mere trials aren’t going to fix this.

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