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

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.

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

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.

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

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.

Aileen Cannon Bows to Donald Trump

Aileen Cannon has made official what has been obvious for some time. She has no intention of moving forward on Donald Trump’s stolen documents trial with any kind of order or speed.

The Court also determines that finalization of a trial date at this juncture—before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming—would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury.6 The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.

Instead, she will entertain every one of his frivolous motions for months and months and months.

Again, none of this is surprising. But it is Cannon’s commitment to let a man accused of stealing hundreds of classified documents potentially regain the White House with no accountability for his alleged theft.

Stan Woodward’s Manufactured Scandal about Box A-15

As I have noted, the FBI agents who searched Joe Biden’s garage rearranged the contents of the single box which Robert Hur attempted to prove Joe Biden had deliberately curated when they moved the contents from the beat-up box found in the garage to a new one.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Had Hur been able to prove that the contents of this box had been in Biden’s Virginia home when he mentioned classified records to his ghost writer in 2017, and had Hur been able to disprove that that reference wasn’t to other documents Biden had recently returned to the White House or to the letter Biden sent Obama about Afghanistan, and had Hur been able to rule out Biden simply losing track of those files, and had Hur been able to prove that Biden himself and not staffers had been packing and repacking the box, then the order of the box would have been crucial to proving a case against Biden.

Hur hung much of his theory of willful retention on the other documents found with two folders containing classified Afghan documents.

Which is to say, the FBI’s sloppiness would have doomed the case if there were ever a case to bring.

Now, Walt Nauta attorney Stan Woodward is trying to claim the same with regards to the documents seized from Mar-a-Lago, to great effect among right wing propagandists.

He made the claim in a bid to get a delay in filing his CIPA 5 notices (which describe what classified information he’d need to release at trial).

Following defense counsel’s review of the physical boxes, the unclassified scans of the contents of the boxes, and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information. For example, Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10. The FBI Index indicates that the classified documents removed from the box (and where a cover sheet was inserted in its place) appear in the order listed below. The contents of the unclassified discovery pertaining to Box A-15 begins at USA-00340924, with the first inserted at the second page of the scan, or Bates labeled USA-00340925:

Per the FBI Index, the first purportedly classified document removed from box A-15 was assigned FBI Index code “ccc,” its classified bates begins at 0079, is one page, and bears the classification marking of “CONFIDENTIAL.” For reference, the physical cover sheet from the actual box for document “ccc” appears as depicted in the below image:

To state the obvious, a “Secret” document is not the same as a “Confidential” document. To be sure, a slip sheet in in Box A-15 does match the one scanned as part of unclassified discovery (at USA-00340925):

However, there is no way for defense counsel to know that the slip sheet depicted above actually corresponds with USA-00340925. And the slipsheet labeled “ccc” does not appear for several hundreds of pages later than the FBI Index indicated it would. Defense counsel’s review of these materials calls into question the likelihood that the contents of the physical boxes remains the same as when they were seized by the FBI on August 8, 2022.

Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time. Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.

Jack Smith claims this is all a delay tactic invented because Woodward’s other recent delay tactics fell through.

But he concedes, first of all, that after the search team ran out of cover sheets because there were far more classified documents than they imagined, they used hand-written papers to mark where classified records had been found.

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.

And then they made sure that each box was handled separately, to ensure that the contents of each individual box remained separate. They failed, however, to keep all the boxes in the same order.

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

3 The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court’s question of whether the boxes were “in their original, intact form as seized” by stating “[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents”).

While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient. Unlike Biden and Trump, Nauta is not alleged to have curated any boxes. He is not accused of willfully retaining classified documents at all.

So the order of documents within the particular boxes is meaningless to his defense (though Trump, who has asked to file a sur-reply piling on, might make great use of this argument if this ever goes to trial).

Plus, it’s worth noting which box Woodward is focused on, A-15. That box happens to have, easily, the biggest number of classified documents in it, 32; a third of the items originally in the box were marked classified. And probably 11 of them, those marked Confidential, have since been declassified and provided in unclassified discovery.

In total, the FBI seized 77 documents with classification markings from the 12 boxes that were seized from the Storage Room, but of those 77 documents, 26 have now been produced in unclassified discovery.

No documents already declassified would be pertinent to a CIPA filing.

In other words, Woodward has selected a box that includes both official and handwritten slip sheets, had no Top Secret documents, but a lot of less classified documents.

Something (he knows from his Jan 6 crime scene cases) a shameless propagandist will wail about.

But not something substantive to Nauta’s case.

Aileen Cannon Liberates Details of Trump and Melania’s Mar-a-Lago Bedrooms

I don’t like Trump at all.

I don’t like Melania much either.

But call me crazy, I don’t think this kind of detail of a former President’s private suite should be available to the masses and aspiring spies, not even those of former Presidents accused of stealing hundreds of classified documents.

Ah well, kudos to Melania, who got an extra 112 square feet in the bargain.

A more pertinent part of newly unredacted material in the August 2022 search warrant affidavit is that DOJ asked for CCTV footage from outside of Pine Hall, as well as the hallway outside the storage closet where Trump had all his stolen documents stashed, as I’ve long surmised. If such video exists, they didn’t get it in their first request (there remains a redaction regarding the response they did get).

Update: According to NPR, Judge Cannon has some disclosure issues of her own, having failed to disclose two junkets she took to Montana.

Judge Aileen Cannon of the Southern District of Florida is presiding over former President Donald Trump’s criminal trial for allegedly mishandling classified documents. Cannon, herself a Trump appointee, attended two seminars at a luxury resort in Montana, but the privately funded seminar disclosures for both events were not posted online until NPR began making inquiries. Clerk of court Angela Noble told NPR in an email that the absence of the disclosures was due to technical issues and that “Any omissions to the website are completely inadvertent.”

The Phone Contacts between the “Total Moron” and the PAC Head

According to Person 16 — who has the potty mouth and performed candor we’ve come to expect from Eric Herschmann — Person 5 is a “total moron” — an opinion about Boris Epshteyn that Herschmann has expressed elsewhere.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

At that same November 2, 2022 interview, Person 16 went on to tell Jack Smith’s investigators how Person 5 ingratiated himself to Trump after the former President left the White House.

Post January 2021, [Person 5] constantly sent FPOTUS what [he] had uncovered on the election fraud and maneuvered [his] way into FPOTUS’ circle. [Person 16] was unaware of an actual [redacted] for [Person 5], stating it was [Person 5] who would instruct media to report [on him] as [redacted].

I long laughed at the the way that journalist after journalist credited Ephsteyn with playing a role in Trump’s legal defense even while Ephsteyn was billing Trump’s PAC for strategy consulting, not law.

For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

According to Person 16, he “believed [Person 5] was now trying to create [redacted] to cover [him] for previous activities. [Person 16] believed [Person 49’s] records may reflect recent [redacted] that did not reflect what actually transpired.”

It was around the time of this interview, in November 2022, when Ephsteyn did start billing for legal services, even while the press was credulously reporting that he had always been serving in a legal role. That happened in the aftermath of Ephsteyn’s phone being seized, in September 2022.

Person 16 also thought that “total moron” Person 5 might have shifted the concern about witness tampering from the January 6 investigation[s] to the stolen document one.

[Person 16] could not recall where the information that the concern about witness tampering was related to the document investigation and not the January 6th Committee. [Person 16] commented that sounded like something [Person 5] would do.

That interview was in November 2022.

In January 2023, according to an exhibit submitted in support of a discovery request for records on all correspondence and/or communications regarding counsel, Jack Smith’s office asked the FBI to pull together the toll records between Person 49 — who may be Susie Wiles, the head of America First PAC — and both Person 5 and Stanley Woodward.

The contacts between Person 49 and Woodward are not that interesting — just four phone calls in fall 2022, when Woodward started representing Kash Patel.

The contacts between Person 5 (whom I suspect is Ephsteyn) and Person 49 (whom I suspect is Wiles) are more interesting.

The contacts started on April 20, 2021, when Person 5 called Person 49, with sustained contact for a few months and then a lapse.

The contacts resumed in September and October 2021 (when the January 6 Committee was ratcheting up).

There were four phone calls in one week in November 2021, and two longer calls in December 2021.

And then nothing, until when Ephsteyn started ingratiating himself in Trump’s orbit after the documents issue went public in February 2022. From that point forward they were “in contact almost daily.”

Of course, these SMS texts might not be that useful. The paragraph of the superseding stolen documents indictment that describes Wiles vetting Carlos De Oliveira’s loyalty before arranging legal representation of him describes that Nauta confirmed his now co-defendant’s loyalty on a Signal chat, not an SMS text.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney. [my emphasis]

Among the exhibits included in this request for discovery is a fragment of an interview with Person 49 denying unequivocally that she had done such vetting (as well as an earlier interview in which she said Person 16 was at the forefront of finding lawyers). If this is Wiles, she denied conducting loyalty checks before agreeing to find legal representation for people.

Mind you, that’s not the only place Wiles shows up in the superseding indictment.

In August or September 2021, when he was no longer president, TRUMP met in his office at the Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-t0-know classified information about the military operation.

That was around the time when Person 49 resumed phone contact with Person 5 again.

This ABC piece talks about what a big deal it is that Wiles might have to testify at trial in the height of a campaign she’s leading (though Aileen Cannon seems dead set on preventing that from happening).

And this post describes how Wiles likely showed up in another Trump-related indictment as the Florida campaign official who interacted — unwittingly — with Yevgeniy Prigozhin’s trolls.

Mark Meadows’ Proffer

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

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

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

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

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

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

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

[snip]

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

[my emphasis, links added]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump’s Attorney-Client Leak Privilege

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s all so predictable and obvious.

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

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

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

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

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

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

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

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

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

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

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

The person also found several things that Congress had requested.

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

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

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

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

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

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

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

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

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

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

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

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

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

image_print