One notable aspect of yesterday’s hearing on Trump’s absolute immunity claims is the fact that James Pearce — and through him, Jack Smith — refused to take yes for an answer.

They refused to accept what Judge Florence Pan, at least, seemed to suggest would be the quickest way to get to trial.

Throughout the hearing, Judges Michelle Childs and Pan seemed persuaded by American Oversight’s amicus argument that Midland Asphalt prohibits this appeal. While Childs never seemed to fully concede that point, after Pearce responded to a Childs’ argument by stating that because this involves a President, the immunity analysis is different, Pan asked Pearce why he wasn’t adopting the American Oversight argument. Pearce responded, first, by emphasizing the goal of “doing justice” and so getting the law right, and only secondarily getting to trial quickly.

Judge Pan: Why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?

Pearce: Our interests are two-fold. One, as in United States versus Nixon, it is in doing justice. And the second is to move promptly to satisfy the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right, and our view is even if a dismissal on jurisdiction might move this case faster — actually, empirically, that’s hard to know — we just don’t think that’s the right analysis here, on either immunity or the second claim.

So Pan set about figuring out how they could use the hypothetical statutory jurisdiction to reach the merits even if she and, especially, Childs still had doubts they were allowed to do that.

Pan: If we have discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent which which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction, about whether or not we should reach the merits?

Pearce: So I think in the American Hospitals decision, the 2020 decision, the court said, the formulation was something like, we’re doubtful as to our jurisdiction but nonetheless, invoking the line of cases you’ve just described, went on to decide the merits. We would urge the court to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merits.

At least some of the panelists on this worthwhile Lawfare Podcast about the hearing took that “doing justice” line to be fluff, and took the “empirical” questions about whether rejecting this appeal on jurisdictional grounds would really speed things up.

But I’m not so sure.

Granted, later in the hearing, Pearce provided some explanation for why a rejection on jurisdictional grounds might not help move things along. It came as part of a discussion of two questions: Childs’ question about whether the panel should rule on the broad question of presidential immunity, as Judge Chutkan had, or whether — as Judge Henderson at least entertained — they should assess whether a president was immune from prosecution for the crimes, as charged in the indictment, as most Motions to Dismiss are treated. In the same discussion, Henderson asked twice about how to apply the Blassingame decision in this context. Both these questions are about whether Trump can be prosecuted only because of the nature of the charges in the indictment, or whether as an ex-President he can be charged, regardless of what the charges are.

But as the discussion proceeded, Pearce voiced some of the concerns about what a more narrow ruling would do to the prosecution.

Childs: Are we to look at the broader question that was dealt with by Judge Chutkan with respect to Presidential immunity, no, absolutely immunity for no criminal prosecution of official acts, versus looking at this indictment and accepting as true the allegations that are brought there. Or both?

James Pearce: So we have a strong preference that the court adopts the former view, and looks at the question — in the way, as the District Court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, Is there, in fact, immunity for a former President?

We think the answer to that is no, for of course all the reasons we put in the brief and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a President orders his Seal team to assassinate his political rival and resigns, for example, before an impeachment? Not a criminal act.

President sells a pardon. Resigns, or is not impeached? Not a crime.

I think that is [an] extraordinarily frightening future, and that is the kind — if we’re talking about a balancing and a weighing of the interests — I think that should weigh extraordinarily heavily in the court’s consideration.

Henderson: Let me ask you about the effect of Blassingame. How does it either bind us. How is it persuasive to us.

Pearce: So, I think it, formally, has no application at all, because of course very early on in the opinion, the court says, “we’re not dealing with any questions of immunity in the criminal context.” I tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the Fitzgerald standard outer perimeter standard. It says, you don’t look at intent, or you don’t look at purpose. Context plays a more important role than — often — the content of communications. I think the significant change of course is the acknowledgement of looking at a President — whether that President is acting in his or her role as office-seeker or office-holder.

But, again, to go back to my response to Judge Childs’ question, although that would change the nature of whether — it may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use. We think that under Fitzgerald — in fact, that would be inconsistent with Fitzgerald’s reasoning — and it’s also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent? There are plenty of acts that, everyday, I mean, for example, if I were going to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone not to go on a hike because their testimony a trial — sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me?

It’s the same underlying act.

And now, when you map that onto the criminal–onto the Presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic, or a business rival? That would seem to then, be exempt, potentially, from criminal prosecution, we certainly wouldn’t concede that. If that’s the world we need to live in. I think we would advance plenty of arguments below, but we really — but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

Childs: But looking, and thinking about your answer about potentially not looking at, your argument about motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.

Pearce: Yes. Precisely. And that’s why it wouldn’t make sense to use this non-motive — as I understand how Fitzgerald outer perimeter standard might work, it could say, “those types of official acts, official conduct, that is something from which a President is immune.” You don’t ever get to that second question of, well, did that person act with mens rea, can we prove it beyond a reasonable doubt, because at least under a theory where it’s not available at trial, then there’s no way to reach that conduct.

Childs: When we’re looking at this indictment, though — back to Judge Henderon’s question about the use of Blassingame. Some of the acts are the same or similar, and there was direct discussion of that in that opinion as determining whether it was office-seeker versus office-holder. So do we use Blassingame, at least for that?

Pearce: So if this court decides the case the way the district court does — did, pardon me — then I don’t think Blassingame has any role to play at all. Because there is no question of whether, you know, is this act official, or were these sets of allegations official? The question is, based on a Fitzgerald analysis and history, precedent, et cetera, is there any quantum of immunity for a former President. We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider the outer perimeter, this civil outer perimeter standard.

Henderson: How about if you don’t decide it? On the Blassingame. [inaudible]

Pearce: If you don’t, [inaudible, cross talk] so there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter, and that, I think, is enough to affirm, I think either party is encouraging the court at that point to send the case back to the District Court. I think that would then create a series of challenging questions that I mentioned earlier: What are the evidentiary theories under which that evidence could potentially come in? And, but it would be our strong view and we would want, if the court followed that route, which we would urge the court not to, to make clear that immunity is an on-off switch. Right? This is the immunity appeal. If the court says, we affirm, we send it back, there’s no immunity. Then other things become evidentiary questions, or questions of jury instructions, which any appeal is then an appeal from a final judgment, if any final judgment.

Childs: And the immunity defense is never lost?

Pearce: Um, well, I don’t think it’s immunity at that point. I think this court, in what I’ve just described, will have said there is no immunity. There may be some other types of challenges, as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is, not the topline reason, but certainly among the reasons why the court should not go down that path. [emphasis added]

As Childs and Pearce laid out, one problem with defining immunity in the criminal context with regards to official (in Blassingame, actions taken as an office-holder) and non-official (in Blassingame, actions taken as an office-seeker) acts is that criminal law, including the laws charged here, pivot on mens rea. Trump can’t be convicted of obstructing the vote certification, for example (assuming SCOTUS sustains its adoption with January 6), unless prosecutors can prove he had “corrupt purpose” in doing so, however that ends up being defined.

But also, if you’re going to split presidential immunity based on a categorization about official and unofficial acts, the evidentiary disputes become impossible. It would draw out that phase of litigation, probably requiring several hearings, but also would create expansive basis for appeal.

One argument John Sauer made yesterday, for example, is that because in Knight, the Second Circuit held that Trump’s Twitter account was a public forum on which he could not conduct viewpoint discrimination, it made his Tweets official acts. If the DC Circuit rules on an official/unofficial split, Trump would undoubtedly argue that under Knight none of his Tweets could come in as evidence, at least three of which are among the most critical pieces of evidence in the case.

But, as Pearce said, the difficulties such a split would create was not the topline concern here. They want DC Circuit to reach the merits, and they want DC Circuit to rule broadly, as Chutkan did.

I don’t think that “doing justice” comment is fluff. Immediately after Pearce presented his not-topline concern about how a categorical ruling would affect the prosecution, he and Pan returned to the theme of the hearing: The Seal Team Six assassination.

And also, selling pardons.

Immediately after that exchange — which was close to the end of Pearce’s time — Pan came back to what, as this really accessible George Conway column lays out, she had stripped things down to be the key issue.

Pan: Since President Trump concedes that a President can be criminally prosecuted under some circumstances — he says that is true only if he is first impeached and convicted by Congress, do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the Impeachment Judgment Clause? That is, if he’s correct, that the Impeachment Judgment Clause includes this impeachment-first rule, then he wins, and if he’s wrong, if we think the Impeachment Judgement Clause does not contain an impeachment-first rule, then he loses?

Pearce: So I think that’s basically right. I mean, the defendant’s theory over the course of this litigation has evolved a bit, and I think, now, before this court, I understand the argument to be the principle submission to be as you’ve just described — what we call in our brief the conditioned precedent argument. That there is only liability — criminal liability for a former president — if that President has been impeached and convicted.

And that is wrong for textual, structural, historical reasons, and a host of practical ones, one of which I’ll start with again, to just amplify the point. It would mean that if a former President engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted? There is no accountability for that, for that individual. And that is frightening. [my emphasis]

While Pearce addressed Sauer’s historical argument briefly, this was close to the end of Pearce’s argument, and really the key point of the hearing. Pan had (as Conway laid out) stripped the issues down to whether Trump’s view on impeachment is correct, and then Pan had demonstrated, using hypotheticals, how impossibly absurd that outcome would be.

James Pearce and Florence Pan don’t want to give Joe Biden an easy way to legally assassinate Trump, only Trump is asking for that.

Pan’s laser focus on those hypotheticals provided Pearce opportunity to repeatedly do what he did far more subtly starting in October. As I argued then, the five hypotheticals that Pearce floated in October were all near analogues for Trump’s known actions.

• Trading pardons to dissuade criminal associates from testifying against someone
• Ordering the National Guard to murder his critics
• Ordering an FBI agent to plant evidence on his political enemy
• Taking a bribe in exchange for a family member getting a lucrative contract
• Selling nuclear secrets to America’s adversaries

Todd Blanche (one of the lawyers representing Trump in both the stolen election and stolen documents cases, and so someone who is intimately familiar what kind of paperwork DOJ discovered, along with hundreds of classified documents, that Trump took with him when he left office) responded to this line of argument by calling the hypotheticals treason and suggesting they might be private acts, but arguing, as Sauer did yesterday that there would still be a remedy: impeachment.

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

As Pan had laid out, though, one part of Trump’s argument for immunity is actually bigger than that, arguing for immunity regardless. Indeed, that’s how Pearce presented this very same argument in his appellate response. He took Trump’s claims of absolute immunity at his word, describing that these scenarios — but not the pardon one — would be flat-out legal.

The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability. [my emphasis]

An analogue for Pan’s (more vivid) Seal Team Six hypothetical was in there: the National Guard order. And an analogue for her military secrets was in there: selling nuclear secrets.

But pardons aren’t in that brief. The only discussion of pardons in it pertained to the Nixon pardon.

Indeed, it was Sauer who briefed pardons, not Pearce. In an attempt to “prove” that presidents had committed crimes that had not been charged before, he cited the Marc Rich pardon — or rather an Andy McCarthy paywalled column about it — to imply that Bill Clinton committed a crime that had not been prosecuted.

The government argues that the absence of any prior criminal prosecution of a President in American history merely “reflects … the fact that most presidents have done nothing criminal.” Resp.Br.37 (citation omitted). This claim is untenable. App.Br.17 (citing examples of Presidents accused of crimes in official acts, from John Quincy Adams to Barack Obama). American history contains many such examples—President Reagan’s alleged involvement in Iran-Contra, President Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass destruction,” President Nixon’s firing of Archibald Cox, etc. 5 None of the above conduct was prosecuted. “Perhaps the most telling indication of a severe constitutional problem” with this prosecution “is a lack of historical precedent to support it.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (cleaned up).

5 Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. TIMES (July 7, 2008), https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html; Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REVIEW (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wagesof-prosecuting-presidents-over-their-official-acts/; The Editors, Iran-Contra Scandal Begins with Shredded Documents, HISTORY (Nov. 13, 2009), at https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documentsinto-the-shredding-machine.

With regards to Iran-Contra, Pearce noted that “in Chapter 27” of Special Prosecutor Lawrence Walsh’s report, “assumes that President Reagan is subject to prosecution and says, but we didn’t get there evidentiarily.”

In response to Judge Pan’s hypotheticals yesterday, he returned to noted authority, Andy McCarthy’s opinion, about Marc Rich, then said again that pardons had come up historically and not been charged. Pan raised it as a hypothetical, but Sauer wanted to make good and sure that pardons could not be charged because, he said, Andy McCarthy says so.

But then both times Pearce mocked the implications of Sauer’s logic, he did raise selling pardons, even though he left it off his response brief. And he added the scenario of corruptly getting someone not to testify against oneself by inviting them on a hike!

Incidentally, according to Anna Bower, Walt Nauta — the aide who has refused to explain what he knows about what happened to the stolen classified documents that got brought to Bedminster in 2022 — along with his attorney Stan Woodward (and of course Boris Epshteyn), were at yesterday’s hearing.

But the reason — one reason — why I find the way the way pardons have gotten floated repeatedly in this claim of absolute immunity is that, along with hundreds of documents, including nuclear secrets, found at Mar-a-Lago on August 8, 2022, DOJ found documentation about clemency granted by Donald Trump, probably including that of:

• Ignacio Ramos and Jose Compean
• Michael Behanna
• Ted Suhl
• Ronen Nahamani
• Rod Blagojevich

Oh, and also, some kind of clemency document — one that has some tie to Emmanuel Macron and therefore possibly a pardon beyond the one we know about — for Roger Stone, the guy who was convicted after refusing to disclose the substance of conversations he had with Donald Trump about advance knowledge of the Russian hack-and-leak. The same guy who, in 2020, was allegedly plotting assassinations with his former NYPD buddy Sal Greco.

It’s certainly possible that James Pearce — and so Jack Smith — want to have a clear decision that presidents can be prosecuted for their official acts simply out of getting the law right.

But both sides in this argument seem to understand there’s something more going on.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Discussions of Trump’s cultivation by Russia (and other authoritarian countries) always founder on discussions of his formal recruitment.

There is abundant evidence that Russia, like other countries, did at least attempt to recruit Trump. Craig Unger has written two good books on the subject.

But many attempts to describe why and whether that happened, particularly in the hands of pundits, are easily discredited. That’s true, in significant part, because people imagine recruitment is an either/or thing: that people come fully recruited spies one day and from that point forward they are puppets of their handlers. The reality, as I understand it, is a gradual process of creating the preconditions via which people can be persuaded to act in ways that benefit another country.

On top of being an all around annoyance, for example, Jonathan Chait’s consideration of whether Trump had long been recruited was sloppy and made the entire Russian investigation easier to discredit.

And the thing is, such efforts are unnecessary.

All you need to explain Trump’s actions (and all I’ll rely on for this series) is Trump’s narcissism. Trump is such an epic narcissist, and narcissists’ reactiveness and paranoia and pathological need to feed their own ego are so predictable, that the only explanation you need for how Trump could be manipulated is that narcissism. So long as you could reliably trigger Trump’s narcissism, you could fairly reliably trigger a predictable narcissistic response to a given trigger.

Trump’s habit of releasing highly classified documents is a great example. Trump almost blew the Vault 7 investigation by revealing details that made it clear FBI considered Josh Schulte as the prime suspect to Tucker Carlson the day of his first search; Trump did so to try to blame Obama for the compromise. Trump burned an Israeli counterterrorism program by giving it to Russia, which he did to show off. Trump burned the satellite imagery targeting Iran, which he did so to dickwag Iran. Trump attempted to release all the backup materials to the Russian investigation because some dopey advisor convinced him that it would help to disprove his critics. Trump shared details of DOD’s plans to attack Iran with Mark Meadows’ ghost writer because he thought it would help him discredit Mark Milley. A master spy might have asked Trump to release all this intelligence for him. Maybe one day we’ll learn the documents that went missing from Mar-a-Lago were specifically requested. But you don’t even need that master spy request (and if there were a master spy, he might not ask for documents in the form of a request): because all it takes to get Trump to release highly classified documents is to suggest that in some way doing so will harm his detractors.

The Trump Tower Moscow deal — or really, any deal — is another example. It is not important whether the Trump Tower Moscow deal pitched to Michael Cohen (or any of the several other Russian Trump Tower deals) to be real, or plausible. Russia could, with great certainty, dangle offers for free money and the biggest tower in Russia, and Trump was bound to act irresponsibly, as he did.

There certainly could be more: but there doesn’t have to be. All you need to manipulate Donald Trump is to trigger his narcissism.

CNN reports that the classified version of the Russian binder Trump tried, but failed, to release before leaving office has not been found.

A binder containing highly classified information related to Russian election interference went missing at the end of Donald Trump’s presidency, raising alarms among intelligence officials that some of the most closely guarded national security secrets from the US and its allies could be exposed, sources familiar with the matter told CNN.

Its disappearance, which has not been previously reported, was so concerning that intelligence officials briefed Senate Intelligence Committee leaders last year about the missing materials and the government’s efforts to retrieve them, the sources said.

In the two-plus years since Trump left office, the missing intelligence does not appear to have been found. [my emphasis]

I would contest that the disappearance of the binder is entirely new. It is consistent with Cassidy Hutchinson’s testimony, on which this story explicitly relies.

What is new in this story is that “last year” (so, 2022) Intelligence Community leaders briefed SSCI; the story is silent about whether the spooks briefed HPSCI, whence much of the materials came.

What is also new is that, according to a single US official, which is a moniker often used to describe members of Congress or their staffers, the binder was not among the things found at Mar-a-Lago last year.

The binder was not among the classified items found in last year’s search of Trump’s Mar-a-Lago resort, according to a US official familiar with the matter, who said the FBI was not looking specifically for intelligence related to Russia when it obtained a search warrant for the former president’s residence last year.

The Intelligence Committees got briefed on what was seized from MAL. It’s not entirely clear that they got briefed on what was returned in the first and second tranches.

That’s important because Alex Cannon — who was the key lawyer involved in the first set of boxes returned to NARA in 2022 — asked NARA for a copy of the declassified materials in 2021. In a response sent on September 27, 2021 (and later resent to John Solomon), NARA explained that NARA didn’t have the binder because when Meadows sent it to DOJ for the privacy review, it became a federal record, and what remained at the White House was not a binder but 2,700 disorganized pages the intended classification markings of which conflicted.

That’s because NARA General Counsel Gary Stern provided Kash and Solomon with the explanation of what happened with the attempted declassification over and over and over. First, Trump didn’t declassify the documents. He ordered the binder of Crossfire Hurricane documents be sent to the Attorney General, who would implement the final declassifications, then send the document back to the White House.

I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.

Then the next day, January 20, 2021, Mark Meadows sent all that to the Attorney General to conduct a Privacy Act review before releasing anything.

As Stern explained to Kash and Solomon, what remained at the White House at that point was a collection of 2,700 “undifferentiated pages,” a cursory review of which revealed conflicting redactions and some documents lacking the requisite declassification stamp. The stuff that got sent to DOJ was a Federal Record, not a Presidential Record, and by the time Kash and Solomon started this process, it was already being processed as part of a Judicial Watch FOIA lawsuit (the first two releases in which — one, two — recently came out).

In other words, Trump and Mark Meadows fucked this up. NARA didn’t. Trump did.

Shortly after getting this response, Cannon oversaw the attempt to return Trump’s documents, with the now-indicted Walt Nauta and the now-cooperating Molly Michael juggling boxes back and forth from the storage room so Trump could hand-curate what would be returned.

After it became public that a bunch of those documents were classified, Kash invented the story that Trump had declassified everything, focusing on the Russian documents, though not exclusively.

Then, in the weeks after Trump returned a folder of documents on June 3, 2022, Kash Patel and John Solomon made a panicked effort to find out what was at NARA. Evan Corcoran, only recently brought in to serve as fall guy for the document handover, was closely involved in that process.

During that same period, Trump made several unexpected trips back to Mar-a-Lago.

And the government and Stan Woodward apparently agree that the government still doesn’t know where all the boxes hidden from Evan Corcoran’s search on June 2 ended up.

All of Trump’s stolen classified documents aren’t accounted for. And the Russian binder may be only part of what’s missing.

Update: I did a post on what was known to be in Trump’s “dumbass Russian binder.” It’s quite the cherry pick.

ABC had a story yesterday revealing details about Trump attorney Jennifer Little’s role in the former president’s stolen document case. Most commentators are focused on the warning that Little testified she gave Trump: that failing to comply with a subpoena would be a crime.

But the backstory it tells is more interesting to me. It describes that Little — who continues to represent Trump on the Georgia case, though specialists in Georgia’s RICO law have also joined that team — was hired (the implication is, for the Georgia investigation) in March 2021 and only a year later did some other things for him.

Little was first hired by Trump in March 2021, only a couple of months after he left the White House, and shortly after authorities in Georgia launched their election-related probe. But more than a year later, she ended up briefly helping Trump with other matters.

When DOJ subpoenaed Trump in May 2022, Little suggested bringing in someone, “who had handled federal cases,”  which is reportedly why Evan Corcoran — someone totally inappropriate to a classified documents case, but someone who was then representing Steve Bannon in his contempt case — was brought in. In any case, I’m fairly certain Trump was already represented by people who had federal experience.

Little attended a May 23 meeting and, per ABC’s report, told Trump to take the subpoena seriously.

Four months later, believing Trump still possessed even more classified documents, the Justice Department issued its subpoena to him. Little suggested retaining an attorney who had handled federal cases before, so Corcoran was then hired, and she essentially handed over the matter to him, sources said.

On May 23, 2022 — 12 days after receiving the subpoena — Little and Corcoran met with the former president at Mar-a-Lago. It was Corcoran’s first time meeting Trump in person, and Little allegedly wanted to help ease Corcoran into his new role.

But, as sources described it to ABC News, Little told investigators she had a bigger purpose in going to that meeting: She wanted to explain to Trump that whatever happened before with the National Archives “just doesn’t matter,” especially because Trump never swore to them, under the penalty of perjury, that he had turned everything over, sources said. But whatever happens now has “a legal ramification,” Little said she tried to emphasize to Trump, according to the sources. [emphasis of passive voice my own]

That means that Little — and not Boris Epshteyn, as I and others had suspected — is Trump Attorney 2 in the indictment.

The indictment describes that Little and Evan Corcoran informed Trump about the subpoena, after which he authorized Corcoran, not Little, to accept service. The two lawyers met with Trump together on May 23.

53. On May 11, 2022, the grand jury issued a subpoena (the “May 11 Subpoena”) to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP (“Trump Attorney 1” and “Trump Attorney 2”) informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.

54. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

55. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

56. While meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP, in sum and substance, told the following story, as memorialized by Trump Attorney 1:

[Attorney], he was great, he did a great job. You know what? He said, he said that it – that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.

TRUMP related the story more than once that day.

57. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP’s boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.

This section of the indictment relies heavily on Corcoran’s notes. Perhaps the only thing that relies on Little’s testimony is the description that Trump told her she did not have to be present to review the boxes — in retrospect, a weird decision, since the task of reviewing the contents of 35 or so boxes in one day is pretty daunting.

The indictment does not include the warning that ABC describes Little giving.

But, she told Trump, if there are any more classified documents, failing to return all of them moving forward will be “a problem,” especially because the subpoena requires a signed certification swearing full compliance, the sources said.

“Once this is signed — if anything else is located — it’s going to be a crime,” sources quoted Little as recalling she told Trump.

The sources said that when investigators asked Little if those messages to Trump “landed,” she responded: “Absolutely.”

The former president said something to the effect of, “OK, I get it,’” the sources said she recalled to investigators.

ABC notes in the story that they previously broke the news of Corcoran giving Trump warnings, warnings which also don’t appear in the indictment.

ABC News reported in September that, according to the notes and what Corcoran later told investigators, Corcoran had warned Trump that if he didn’t comply with the subpoena, he could face legal trouble and that the FBI might search his estate.

As I noted, I and others had previously assumed that Attorney 2 was Boris Epshteyn. That’s because he was centrally involved in this process: he had previously been credited with hiring Corcoran (which is why I bolded the passive voice reference above), he was reported to have recruited Christina Bobb to be the fall-gal on the false declaration, he pushed an aggressive strategy, and then he attempted to retroactively claim that at the time he was doing that, he was representing Trump as a lawyer, not a political consultant.

Remarkably, reporting on Boris’ role in all this has completely disappeared from the story.

Reports obviously sourced to witnesses friendly to the defendant are often an attempt to share information otherwise covered by a protective order with those potentially exposed: it’s a way to compare stories without leaving an obvious trail of witness tampering.

And this story, revealing details of testimony that would be of interest to the quasi-lawyers who were also involved in this process but who weren’t even mentioned in the indictment, comes just weeks after another such leak, of the video testimony from flipped witnesses in the Georgia case.

There may have been two leaks: one, of just the depositions of Jenna Ellis and Sidney Powell, to ABC, and a second, of fragments of the depositions of all four known cooperating witnesses, to WaPo. The lawyer for Misty Hampton, implicated with Powell in the Coffee County plot, admitted to leaking the videos, or at least some of them. But that doesn’t explain why there appear to be two sets of videos.

The ABC set describes Jenna Ellis describing first learning about the fake elector plot from an text thread Epshteyn initiated.

Ellis, who in her remarks alternated between speaking on and off the record with prosecutors, instead discussed only the context surrounding the two incidents she couldn’t divulge, including saying that she first learned about the concept of the fake electors plot from Giuliani and current Trump adviser Boris Epshteyn.

“There was one group [text] thread that Boris initiated when — which was the first time that I learned of it — asking me to just join a phone call,” Ellis told prosecutors, who then stopped her from discussing the details of the call.

The WaPo report includes a version of that.

The former Trump attorney also told prosecutors that she was asked to join a Dec. 7, 2020, conference call with Giuliani and two other Trump campaign officials — Mike Roman, who is also charged in the Georgia case, and Epshteyn — as they talked “legal strategy” with several Republicans who were slated to serve as Trump electors in Pennsylvania.

Ellis said she had not initially been privy to the “fake elector plot” and believed “it had been shielded from me specifically” — though she did not elaborate on why. Ellis said she became aware of the effort when she was added to a group text chain about the plan that included Giuliani, Epshteyn, Roman and Eastman.

It also adds Kenneth Chesebro’s description that Epshteyn, not Rudy Giuliani, was quarterbacking Trump’s efforts to undermine the election.

At one point, a prosecutor asked Chesebro who he thought was “quarterbacking” the Trump campaign’s legal efforts — Giuliani, Eastman or Epshteyn. Chesebro replied that it appeared to be Epshteyn. Epshteyn declined to comment.

Remember: Epshteyn is not charged in the Georgia indictment; Epshteyn is unindicted co-conspirator 3. Mike Roman is charged for the coordinating that both accomplished.

Epshteyn is, however, believed to be co-conspirator 6 in the DC indictment.

I suggested during the discussions about a protective order in DC that Epshteyn may have been the person prosecutors had in mind when objecting to including “other attorney[s] assisting counsel of record” in the case, not least because Trump attorney Todd Blanche also represents Epshteyn.

Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

I had already contemplated whether some of the exhibits submitted with a discovery motion (which on reflection, was submitted by Blanche) were intended to share information, including details about what Trump is trying to obtain under CIPA. For example, the initial 49-page discovery memo included with the motion would be really valuable to any unindicted co-conspirators who might find a way to access the unredacted copy submitted under seal. Aside from references to the general January 6 database (which is mentioned at more length in another file submitted), it is otherwise only cited for references to this redacted paragraph that by context appears to pertain to discovery relating to the Secret Service.

The motion itself has helpful details about how prosecutors on one Jack Smith investigation sat in on interviews of witnesses in the other Jack Smith investigation.

For example, the Special Counsel’s Office used the same grand jury in this District for matters relating to both cases. Assistant Special Counsel John Pellettieri has appeared on behalf of the Office in this case and in the Florida Case. Senior Assistant Special Counsel (“SASC”) Thomas Windom, who has entered a notice of appearance for the prosecution in this case, participated in at least 27 of the interviews described in discovery produced in the Southern District of Florida. SASC Julie Edelstein, counsel of record in the Florida Case, participated in 29 of the interviews that have been produced in discovery in this case. Jay Bratt, also counsel of record in the Florida Case and Counselor to the Special Counsel, participated in 10 of the interviews that have been produced in discovery in this case. Notwithstanding the clear overlap of personnel and intermixed responsibilities, the Office has sought to artificially narrow its definition of the prosecution team to an unidentified subset of individuals who, apparently in its sole judgment, “are working on this case.” Ex. D. Not so. As the entire Office has participated in this prosecution, both in fact and by General Garland’s Order, the entire Office is subject to the prosecution’s discovery obligations.

This is likely highly misleading: for people who are witnesses in both cases — as, for example, Molly Michael and Alex Cannon would be — DOJ shared both sets of witness 302s in both places (and so some of the Edelstein and Bratt interviews would simply be stolen document interviews shared in January 6 discovery and some of the Windom interviews would be the counterpart). But it is also likely the case that some prosecutors sat in on interviews that would touch on investigative subjects of interest.

Then there’s Blanche’s treatment of it. After objecting back in September when DOJ submitted a filing along with the motion to seal it, that’s what Trump did here (for which Judge Chutkan scolded them), so if DOJ had any objection to the non-redactions in these filings, it would have been too late.

Boris Epshteyn, who was the focus for months of reporting about his role in Trump’s twin federal indictments, has all but disappeared. Indeed, ABC’s scoop about Little makes clear that his reportedly significant role in the stolen documents case never even made the indictment.

But as other recent leaks make clear, his role in both alleged felony conspiracies remains significant.

In comments to my thread describing how Aileen Cannon had deferred decision on the Trump stolen documents case, I admitted a lot of smart people were warning that her order was a non-appealable death knell for the May trial.

Those smart people were right. Judge Cannon has all but ensured that Republican voters will not have a chance to learn whether Trump really did store nuclear documents in his bathroom before picking him as their candidate.

Yesterday, Jay Bratt asked her to set an earlier deadline for CIPA 5 — the part of the process where Trump describes what he wants to use at trial.

In the Court’s Order Granting in Part Government’s Motion to Continue Trial and Resetting Deadlines (ECF No. 83), it set November 17, 2023, as the deadline for the defense to file their CIPA Section 5 notice. In ECF No. 205, the Court stayed the November 17 deadline, among others, and in its Order Granting in Part Defendants’ Motion to Continue Pretrial Deadlines and Denying without Prejudice Motion to Adjourn Trial, the Court superseded all deadlines except those identified in the Order. ECF No. 215 at 8. The Court’s new set of CIPA deadlines did not include a date for the defense to file a CIPA Section 5 notice.

[snip]

Defense counsel now have full access to approximately 5,500 pages of classified discovery (see ECF No. 215 at 4) – the vast majority of the classified discovery in this case – and the laptops necessary to create pleadings referencing those materials. They therefore are in a position to provide notice under CIPA Section 5 as to which documents or pieces of information from these 5,500 pages, or from any other source, they reasonably expect to disclose at trial. Providing such notice by a set, near-term date will facilitate the completion of CIPA litigation before the May 20, 2024 trial date.

[snip]

The Government acknowledges that (a) rulings on its CIPA Section 4 motion will likely result in the production of a limited amount of additional classified discovery;2 and (b) the defense could be successful in compelling the production of other classified materials. However, rather than delaying setting any CIPA Section 5 deadline until the CIPA Section 4 and discovery litigation is complete, the Court should reset the initial CIPA Section 5 deadline for December 18, 2023, with the understanding that it may be necessary to permit a supplemental CIPA Section 5 notice after all classified discovery issues have been resolved.

Judge Cannon responded within short order.

No.

PAPERLESS ORDER denying without prejudice 219 Motion for CIPA Section 5 Notification. As stated in the Court’s November 10, 2023, Order 215, “[a]ll previously remaining deadlines in the Court’s July 21, 2023, Order are superseded except calendar call and trial.” The Court “reset[] the first set of pre-trial deadlines” as indicated on pages 8 and 9 of that Order 215 and scheduled a conference on March 1, 2024, “to address remaining deadlines.” To the extent the Special Counsel’s motion seeks reconsideration in part of the Court’s November 10, 2023, Order 215, that request is denied. CIPA Section 5 deadlines, and all other pre-trial deadlines not included in the first batch of pre-trial deadlines contained in the Court’s revised schedule 215, will be set following the March 1, 2024, scheduling conference.

At the very least, this ensures that Republicans will not know whether a jury finds that Trump harm the United States before they make him the party nominee. It may mean no voter gets to know that.

I’ve finally found Trump’s election interference!

As I noted, right after Judge Aileen Cannon suggested, during a hearing on November 1, that conflicting trial schedules in DC and Florida meant she’d likely delay the stolen documents trial scheduled for May 20, Trump’s lawyers in DC filed to stay their DC trial. DOJ notified Judge Cannon right away that Trump had done that — basically proving the contention they made in the hearing that Trump was just stalling.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Judge Cannon hates to be embarrassed and probably was particularly perturbed that DOJ suggested she was allowing herself to be manipulated. She filed an order basically telling them never to do that again.

The parties are hereby reminded of the requirements of Local Rule 7.8 on Notices of Supplemental Authority. Except as authorized by Court order, the substantive content of any such notice (or response) may not exceed 200 words and may not be used as a surreply absent leave of Court. Future non-compliant notices or unauthorized filings will be stricken without further notice. Signed by Judge Aileen M. Cannon on 11/3/2023.

But it worked, at least for now. Judge Cannon has issued an order revising pretrial deadlines, some of which (such as a December response to a government motion already filed) don’t make sense at all. But she has not delayed the May 20 trial date and won’t consider it until March 1, at which point it will be clear whether the DC case will go forward that month.

Following review, it is ORDERED AND ADJUDGED as follows. Defendants’ Motions to Continue Pre-Trial Deadlines are GRANTED IN PART for the reasons stated below. Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

This increases the chances that at least one of these trials will go foward before the election.

In a hearing in the stolen documents case on November 2, Jay Bratt implored Judge Aileen Cannon not to base the timing of the Florida trial based on assumptions about the DC case, because that trial date

The Court really cannot let or should not let the D.C. trial drive the schedule here. In the D.C. case, they are making many of the same arguments, though they have not yet filed a motion for adjournment. They have already said that they likely will. They have talked about —

[snip]

A lot of this, though, is in the realm of the — I don’t want to say hypothetical, but it is in the realm of we don’t know what is going to happen. We don’t know what is going to happen in this case. We don’t know what is going to happen in the D.C. case. Among the things that the Defense has raised in the D.C. case is that if there are adverse rulings on any of the pending motions to dismiss, that they would seek an appeal and seek to stay the proceedings. That could happen. We don’t know. Obviously, there are arguments both ways, arguments both before the Trial Court before the D.C. Circuit, but that could happen. That trial date could disappear.

[snip]

Things could happen, things could happen with the D.C. case that would make going forward on May 20th, 2024, in this case not feasible. That may happen and we can address that, at that time, but we should be moving forward in this case.

The one thing he mentioned that could happen was a defense request to stay proceedings pending appeal.

Judge Tanya Chutkan certainly doesn’t want anything to delay the DC case. She said that explicitly in an October 16 hearing on Trump’s bid to stay her gag order.

THE COURT: This trial will not yield to the election cycle and we’re not revisiting the trial date, Mr. Lauro.

Perhaps to make that even clearer, after Trump filed to motion a stay pending appeal of any decision on his Absolute Immunity argument on November 1, she issued a requested order pertaining to jury selection by setting the beginning of that process to start on February 9.

But Jack Smith’s team appears to be concerned that Trump may use interlocutory appeals to delay the trial. In a response to Trump’s November 1 motion, Molly Gaston not only opposed that stay (which she described as an attempt to apply appellate and civil procedure to this criminal trial), but she requested that Judge Chutkan prioritize those decisions that are subject to interlocutory appeal: the Absolute Immunity bid, and one part of Trump’s Constitutional challenge to the indictment pertaining to double jeopardy.

[T]he defendant’s stay motion exposes his intention to use his meritless immunity claim to disrupt the Court’s schedule. Accordingly, to prevent undue delay and maintain the trial date, the Court should consider and decide first among the motions pending on the docket the defendant’s two claims that could be subject to interlocutory appeal: presidential immunity and double jeopardy.

In her motion, Gaston lays out Trump’s various dilatory tactics.

The defendant has planned to file this motion for months but waited until now in hopes of grinding pretrial matters to a halt closer to the trial date. As early as August 28, 2023, for instance, defense counsel informed the Court that the defendant would raise “executive immunity . . . with the Court likely this week or early next week, which is a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case. . . .” ECF No. 38 at 33-34. But the defendant did not file an immunity motion that week or the following. Instead, he waited more than a month before filing the promised pleading on October 5. See ECF No. 74. The defendant then waited another month to file the stay motion, late at night on November 1. Tellingly, earlier that same day, when defense counsel appeared at a hearing in the defendant’s criminal case in the Southern District of Florida, he used this Court’s March 4 trial date and pretrial schedule as an excuse to try to delay that trial—without disclosing that, within hours, he would file his stay motion here seeking to disrupt and delay the very deadlines in this case that he was using as a pretense. See United States v. Trump, No. 23-80101, Hr’g. Tr. at 24 (S.D. Fla. Nov. 1, 2023). In short, the defendant’s actions make clear that his ultimate objective with the stay motion, as has consistently been the case in this and other matters, is to delay trial at all costs and for as long as possible.

To thwart Trump’s efforts to stall any longer, Gaston requests that Chutkan prioritize the issues that can be appealed.

To limit such disruption, the Court should promptly resolve the defendant’s immunity motion, as well as his double jeopardy claim that is also potentially subject to interlocutory appeal, so that the Government can seek expedited consideration of any nonfrivolous appeal and preserve the Court’s carefully selected trial date.

She promises DOJ will use all mechanisms available to accelerate Trump’s own appeal.

To prevent the defendant from using the timing of any such appeal to disrupt the Court’s trial date, the Court should promptly consider and decide his immunity and double jeopardy motions. If the Court rules in the Government’s favor and the defendant appeals, the Government will take all possible measures to expedite the appeal, see Apostol v. Gallion, 870 F.2d 1335, 1339-40 (7th Cir. 1989) (identifying mechanisms such as requesting summary affirmance or asking to expedite the appeal), just as the defendant sought to expedite his appeal of the Court’s Rule 57.7 Order—relief that the court of appeals provided. See United States v. Trump, No. 23-3190, Order (D.C. Cir. Nov. 3, 2023) (expediting merits briefing and oral argument). In any event, although a non-frivolous appeal would temporarily divest this Court of jurisdiction, it would do so over only “those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). In sum, the Court’s prompt resolution of the defendant’s immunity and double jeopardy claims would best position this case to stay on track with its current pretrial schedule and trial date.

The thing is: The double jeopardy claim is frivolous; James Pearce noted that the four charges in the current indictment are for a totally different crime than the incitement of insurrection charged in impeachment.

But no matter how shitty the Absolute Immunity bid is, because of the historic nature of the case, all judges are going to take it seriously, including Chutkan.

The Absolute Immunity bid was fully briefed on October 26. Trump’s reply in the double jeopardy bid is due next week.

I don’t know appellate procedures well enough, nor can I imagine how John Roberts’ court will respond to a request to expedite something like the Absolute Immunity request.

But I do know that Jack Smith’s team seems to recognize that this bid for delay might work. Political pundits on both sides of the aisle are accounting for a trial that will start on March 4. But there has not yet been enough scrutiny on whether Trump’s bid for delay will succeed.

Perhaps the most amazing detail in the stolen documents transcript of last week’s hearing before Judge Aileen Cannon is that until the summer, Trump still had a Q clearance.

There is a category of documents that it — actually in unclassified discovery, we learned a week or two ago that there is a certain category of documents that require what is called a “Q clearance” and it includes one of the charged documents, and we learned that it’s a Department of Energy program. We learned that President Trump continued to have an active security clearance, even after he was indicted in this case, with the Department of Energy. Now that, in our view, is the definition of Brady. It was — I’m not going to say it was buried, but it was provided to us in discovery as part of miscellaneous materials at some point in the third or fourth production. I mean, it is literally a memo from the Department of Energy dated June — dated late June of this year, June 28th of this year, saying that, oh, we should remove Donald J. Trump from the person who has an active security clearance. He has been charged with possessing a document in violation of federal law, when he has an active security clearance with the holder of that document.

The detail doesn’t help as much as Trump’s attorney, Todd Blanche, would have you think. Whatever clearance Presidents get under the Atomic Energy Act (especially since presidents don’t get clearance; on Bluesky, Cheryl Rofer suggests he may have gotten DOE clearance while still a candidate) obliges them to follow document handling rules that might not have been as meticulously spelled out for Trump under his access to other classified documents. That he still had access when he was found with nuclear documents in August 2022 only means he was affirmatively violating the terms of his Q clearance, not that he could legally store nuclear documents in his gaudy bathroom.

Most people who get charged under the Espionage Act have or had clearances; those clearances actually make it easier to prosecute them.

Though Trump finally added someone appropriate to an Espionage Act trial last month, former SDNY National Security AUSA  Emil Bove, Blanche still seems to have a woefully inadequate understanding of how 18 USC 793 elements of the offense get proven at trial.

And Jay Bratt seems to be unable to conceive that his counterparts (and, probably, Judge Cannon) fail to understand that.

Bratt’s attempt to explain all this — something that makes a lot of sense to me from covering so many of these trials — was just one of two times where (in the transcript at least) Cannon abruptly cut off Bratt, as she often does when she risks embarrassment.

BRATT: I do not — we do not believe that the motion to compel litigation needs to be complete before they can file with the Court their theory of defense with respect to the 793 charges, and it kind of strains credulity that they say they can’t do that. You know, the elements of 793 are unauthorized possession of a document containing national defense information, possessing it willfully, that is with knowledge that what you are doing is unlawful, and failing to return it to a proper person. All that information they can flesh that out for the Court, and there is really — they may have legal — separate legal challenges to the 793 charges, but if you look at the elements, those are the defenses: Either he didn’t possess it, or he was authorized to possess it, or the information doesn’t contain national defense information, or he wasn’t acting willfully, or he returned it before he was being asked to return it. Those are the defenses, and they may have other color they want —

THE COURT: But to some extent, of course, one would have to review the relevant classified discovery in order to formulate a meaningful response, even if maybe not entirely complete, it would be difficult to just sketch out a skeleton, so to speak, of your theory without really doing so rooted in the documents themselves.

MR. BRATT: So I’m not sure that you do need to be able to say, no, we know this doesn’t contain NDI for the Court to rule on whether or not what we are presenting in Section 4 is relevant and helpful to the Defense, I don’t think so. I understand that, you know, they have said in their pleadings that they are going to strongly contest whether or not the information was national defense information, strongly contest whether it was closely held. Our burden is to prove that it was, and we embrace that burden; but these documents, you know, I —

THE COURT: That’s fine. We don’t need to talk about the actual contents of the documents, obviously, given this is a public hearing.

Blanche was pretty obsessed with the classification determinations, marveling over the fact that prosecutors had to talk to the Intelligence Community before deciding what documents to charge, what documents they could charge.

We have seen communications between NARA and the Department of Justice and the White House and the Special Counsel that started way before what has been publicly disclosed and extensive meetings, extensive communications; and so we feel very strongly and expect that we will win on that, when we file the motion that NARA is absolutely part of this prosecution team and that the intelligence communities that they worked very closely with in determining the — well, from what we can tell, the particular documents that they chose to charge, so there is purportedly a tranche of documents that have classified headings on them, and then 32 that they decided to charge. That wasn’t just done in a vacuum. They didn’t just, you know, pick 32 documents out of a hat and say, “We will go with these.” There was a lot of coordination that we can tell from the materials we do have with the intelligence community that ultimately led them to proceed the way they did.

So yes, we have an answer with them. They say very strongly that they view the prosecution team as being limited to the Special Counsel’s Office and the FBI, and we very strongly believe that’s wrong.

That may have been a cynical ploy to treat the IC as part of the prosecution team, which in turn may be an attempt at graymail.

Blanche also claimed that the defense had not yet received all the classification reviews for these documents, and had yet to receive Jencks production for people he imagines will sit on the stand and attest to the classification of each document, in a trial where the standard is National Defense Authorization, not classification.

THE COURT: What about classification reviews, have you received all of those?

MR. BLANCHE: No, Your Honor, we have not received all of them. That is one of the things that we are continuing to ask about. We have received them for — I believe for the charge documents; but as what should be obvious from the volume compared to the 32 counts, there is a tremendous number of documents that are extraordinarily important to our defense that are purportedly classified that we don’t have any information about at this time.

[snip]

A little bit about the classified Jencks material, as was discussed. The issue of whether a particular document is classified or not is something for the jury. And what we are looking for in discovery and what we don’t have is that has to be from a witness. There has to be a witness that is testifying about why a particular document is classified; and as part of that, like any witness, we are entitled to 3500 and Jencks material and we don’t have that. We don’t have that for all the witnesses, and our concern is that there is this class or category of Giglio and Jencks material that we are going to get at some later date which we are then going to — it’s another Section 4 litigation, at that point, because we are going to then ask the Court what we can use to impeach the witness, what information we are allowed to cross-examine him or her on.

Bratt did correct Blanche to say that Trump had already gotten all the classification determinations for all the classified documents retrieved from Mar-a-Lago.

THE COURT: Now, I went through some of these categories with Mr. Blanche, but classification reviews, are those included in the 5,500 and/or the disks?

MR. BRATT: Yes. And just to respond to something Mr. Blanche said, and it may have been oversight, it is not just for the 32 documents. It is for all 340-some documents that were at Mar-A-Lago.

But I just think that Blanche doesn’t get how easy it’ll be to convince jurors that you can’t put nuclear documents in a beach resort shower (and that’s all before the smoke and mirrors that the government uses in all Espionage Act trials, which will be epically contentious here).

I don’t think he understands any of this.

This all brings me to something I’ve been wondering: what the government has been withholding anticipating its CIPA 4 filing, which has been delayed by various Trump games about CIPA. CIPA 4 covers stuff they’ll share with Judge Cannon to have her rule whether the material needs to be turned over to the defense (the standard is whether the material is relevant and helpful to the defense), and if so, whether DOJ can use substitutions for some of the information.

This is my updated track of the universe of classified discovery.

Pretty much everything that should obviously be there is there:

• The stolen documents themselves
• All the witness testimony about the documents
• The discussions about classification reviews of the documents (which Brian Greer has suggested were likely somewhat limited in anticipation of trial)

But there’s one thing not mentioned — at least not obviously — that always proves contentious in 793 cases: The damage assessment.

One way defendants always attempt to prove that things aren’t National Defense Information is by pointing to a report — if they get one — that nothing blew up after they released a document or left it in their beach resort shower.

Often defendants don’t get them.

I’m particularly interested in what kind of damage assessment the Intelligence Community did here because of a footnote included in the 11th Circuit appeal last year, which I wrote about here:

A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]

[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4

4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances.”).

Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.

You can’t very well do nothing after you learn some of the most sensitive government documents were parked on a stage in a room hosting weddings attended by all manner of foreigner and grifter. You can’t do nothing after learning that Trump freely blabbed about the content of his stolen documents to anyone who bought access to him. You can’t do nothing after a Five Eyes document gets dumped out of a box in a storage closet that musicians and other resort personnel have accessed. You’ve got to go to your Five Eyes allies and explain that America’s former President is a dumbass and so the allies should take measures assuming that some drunken guest got a look at that document.

You might not even be able to charge documents as sensitive as these if the underlying programs hadn’t had to be rolled up. The spooks are going to prefer to protect the programs over vengeance against the dumbass former President.

Which brings me to the most intriguing claim made at the hearing.

Stan Woodward — Walt Nauta’s attorney — claims that neither he nor the government have figured out where all the missing boxes have gone.

[T]he Special Counsel has directed us to certain portions of the CCTV footage that they view as the most relevant, but there is — from what we know and from our defense, there is a tremendous amount of CCTV footage that we believe has been produced that is not what they have identified that is extremely relevant to us. For example, to the extent that boxes were moved on occasions other than what is delineated in the indictment, that is certainly something that matters to us.

[snip]

We have, of course, the benefit of consultation with our clients and are able to talk about what video we should be looking at and what video we should not be looking at. And the entire nature of the allegations, of the charges in this case are about missing boxes, right? The indictment is charging Mr. Nauta — and I’ll just stick with my client, with Mr. Nauta — with having moved boxes. Some number of boxes come out of a storage room, a lesser number of boxes go into the storage room, and Mr. Nauta is charged with hiding those boxes from whether it is Trump’s then counsel or whether it is the Government. And obviously, we are interested in knowing where those boxes are if they are, in fact, missing. The CCTV footage is what is going to help us understand that riddle.

Now, the Government does not know where those boxes went. As far as I can tell, to this day, the Government does not know where the boxes they allege were hidden ended up.

[snip]

I have a whole separate computer that I’m using just to do these extractions so that I can go in and start watching this days of video so that we can make an assessment of what this case is all about and whether it is about missing boxes or about boxes that just weren’t found when the FBI conducted its search of the property.

Now, Woodward has a habit of saying things that I find … shall I say, unpersuasive?

This certainly feels like one of those instances, coming as it did amid a schtick whereby Woodward repeatedly referred to the government, then corrected himself to say Special Counsel, something that seems to mirror Judge Cannon’s own preferences for calling Jack Smith’s office the OSC (John Durham used this abbreviation but no one else does).

Woodward is attempting to claim that he needs to delay the trial past the election because he needs to review all of ten years worth of surveillance video to defend his client. I’ve seen him make similar claims in January 6 trials.

More importantly, this is not a remotely fair representation of the charges against Nauta, which have to do with Nauta claiming to know nothing about moving boxes within days of being caught on surveillance video moving boxes, then allegedly attempting to destroy the video that captured him moving those boxes. Importantly, even if someone else moved a bunch of boxes that aren’t otherwise included in the indictment, it doesn’t exonerate Nauta. It could even inculpate him: if boxes were at Mar-a-Lago for someone else to move because Nauta had taken steps to withhold them from the government, it means his alleged obstruction would have made those other movements possible.

Plus, one big reason why the government charged Nauta, I believe, is because they believe he knows what happened to the missing boxes, including the ones he packed up to go to Bedminster where they disappeared forever.

I don’t doubt that the government hasn’t accounted for all the missing boxes; certainly Bratt did not correct Woodward on this point.

But one reason the government would have had to get ten years of video is to attempt to see who else entered that closet, to see who was in the closet when a Five Eyes document tumbled out, to see whether any of the foreign visitors to Mar-a-Lago seemed to know to look in the closet.

That’s not something that would show up in the indictment, not without proof that Trump willfully told visitors where the documents were.

But if Woodward is telling the truth about needing to see who else was moving boxes around, rather than just using the volume of video to stall, it might suggest he’s trying to find out what you might otherwise learn from a damage assessment. It might suggest that either Nauta hasn’t been entirely forthcoming with Woodward or Trump isn’t being forthcoming with his lawyers or his trusted valet.

Learning what the government saw in the surveillance video about moving boxes is not remotely necessary for defending Nauta against the charges against him. It might have a lot to do with understanding how ugly the story prosecutors will tell at trial will be.

Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

According to this piece, Devlin Barrett (this time, with Perry Stein) claims to believe a bunch of Chris Kise bullshit that has already been debunked in court filings.

One key issue is how much time Trump and his legal team get to review the piles of secret evidence in the case. Trump’s lawyers have accused the government of being too slow to provide access to the full catalogue of classified papers, and insist they need more time to prepare.

It’s true that Trump has claimed that. It’s true that Trump insists they need more time. But these claims were largely manufactured, which was readily apparent if you read the court filings closely.

Over the last five weeks, Trump’s lawyers have made a series of claims about classified production to support a bid to delay the stolen document trial until after the election.

Some of those were real: In particular, the Court Information Security Officer had to keep juggling a number of the documents Trump stole because they were so sensitive.

The first set probably involved the single charged and some number of uncharged nuclear documents, which defense attorneys were not yet cleared to access (the CISO basically removed them from the defense SCIF so the attorneys would be cleared to read everything that was left in there).

The second set — of first four and then another five — of the charged documents are Special Measures documents (those with additional compartments). Those could not be stored in the existing SCIFs in Miami without additional measures put in place. They were available in DC, and have now been made available in Miami. Altogether, it appears those Special Measures documents are around 44 pages in length. The defense team still needs a laptop equipped to write about them, the only apparent remaining delay in classified materials outstanding.

Those exchanges (most clearly laid out here) have revealed that, save for some classified FBI Agent emails that DOJ will provide closer to trial as Jencks production and some documents DOJ wants to provide with substitutions under CIPA 4 that this fight is holding up, this is the current universe of classified discovery in the case.

At less than 5,500 pages, it could hardly be called a “pile,” as Devlin did, unless you were referring to the horse manure that Kise was spreading.

Many of the claims that Chris Kise made were transparent bullshit. The most important one — because it appears to have fooled Aileen Cannon — is that the reason why a bunch of classified documents weren’t available in Miami (some were available in DC, where a number of Trump’s lawyers are) is because the defense attorneys weren’t in Miami to read them, something they delayed doing during several competing filings in this dispute. A CISO can’t just drop off nuclear documents in an unattended SCIF, but the guy who left the same document in his beach resort may not understand that.

It’s possible the defense put off going to Miami because the Special Measures documents were not yet there.

What’s clear, however, is that Trump’s team waited 11 days before reviewing documents that were ready for their viewing once they showed up to review them, then blamed DOJ because they waited.

A still more amusing complaint is that DOJ provided a disk with the items in a box of White House schedules that a Trump aide had scanned and then downloaded onto her computer, which because of duplicates amounted to 13,584 pages, of which just 15 pages were classified. DOJ had tried to provide all the unclassified pages in June, but Trump asked DOJ to hold off. That requested delay is one of the reasons Trump claims he can’t stand trial before the election.

Trump also spent weeks of October complaining that DOJ had provided 1,400 pages of Jencks materials (statements related to the case from people who’ll be witnesses at trial) in October, rather than the weeks before trial, when it is due.

Kise also complained he couldn’t review the classified discovery because he had to be in Trump’s 3-month fraud trial in New York, something that was known when Judge Cannon set the schedule.

As the government notes, Aileen Cannon’ schedule only had one deadline, for the initial production of classified documents, and the only delay in meeting that deadline came from Judge Cannon’s own dawdling over the protective order.

The Scheduling Order set September 7 as the deadline for the Government’s first production of classified discovery. The Government delivered certain classified discovery to the defense SCIF before then, but it was not available to the defense until September 13, after the Court entered the CIPA Section 3 protective orders, ECF Nos. 150-152.

Below I’ve put the series of claims Trump has made with DOJ’s debunking.

Claim:

On October 17, 2023, the Special Counsel’s Office caused approximately 2,487 pages of documents and four discs to be delivered to President Trump’s counsel, for the first time, at a secure facility in this District.

Debunking:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Claim:

[T]he Office’s October 6, 2023 production of approximately 2,400 pages of additional classified discovery is still not available for review in this District.

Debunking, One:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Debunking, Two:

As in all federal criminal cases involving classified discovery, to ensure confidentiality for the defense, the Government does not have access to the defense SCIF. To deliver classified discovery to the defense SCIF requires the presence of either the CISO or appropriately cleared members of the defense team.

Claim:

A recent, untimely production nearly doubled the volume of classified discovery, and the Office has not explained why those materials were withheld from prior productions.

[snip]

[T]he Special Counsel’s Office recently made available a classified production consisting of approximately 2,400 pages and four discs.

Claim:

[T]he Office still has not explained the timing of its October 6, 2023 production of thousands of pages of additional classified discovery, which is greatly in excess of what the Office estimated to the Court as recently as September 12, 2023.

Debunking:

[T]he largest set of documents in the most recent classified production—a set of about 1,400 pages of emails described in defendant Trump’s classified supplement—consists mostly of Jencks material, which this Court has indicated is not due until closer to trial.

Claim:

Mr. Kise has not yet been cleared fully to review all the CIPA materials and is currently representing President Trump in a trial in New York which is expected to conclude by December 22, 2023, well after expiration of many current deadlines as well as the hearing dates this Court has established. See People v. Trump, et. al, Index No. 452564/2022 (N.Y. Sup. Ct. 2022). He has therefore had no opportunity to review any of the CIPA materials or to participate in the preparation of the defense. President Trump should not be denied the assistance of core counsel in a matter of this significance due to the Government’s delayed discovery process.

Debunking:

Mr. Kise received an interim security clearance in late July, which authorized him to review about 2,100 pages of classified discovery the moment they were produced on September 13–the same day the protective orders issued. ECF Nos. 150, 151, 152. These materials included 16 of 31 charged documents and about 600 pages of classified interview transcripts, among other materials. So, although it is true that as of their filing Mr. Kise had not been “cleared fully,” it is inaccurate to suggest that that fact at all explains his failure to review “any of the CIPA materials.” This leaves only one of the proffered explanations for Mr. Kise’s alleged inability to review “any of the CIPA materials” as the possibly accurate one—Mr. Kise’s competing obligations in the New York trial. But those obligations were aired at the July 18 scheduling hearing, July 18 Tr. at 35, 43, and the Court has already taken them into account in setting trial in May.

Claim:

[T]the Office omits from its “supplemental response” that the four discs contained more than three gigabytes of data relating to six facilities, approximately 13,584 additional pages.

Debunking:

[A]ll but 15 pages of this 13,584-page set of materials had already been produced in unclassified discovery; and the reason the entire set of materials—including the previously produced unclassified pages—was provided together in classified discovery is that the defense asked that it be done that way. The 13,584 pages consist of multiple copies of documents from a box of scheduling materials from Trump’s presidency stored at Mar-a-Lago and elsewhere in West Palm Beach. During the investigation of this case, the Government obtained duplicate copies of the box’s contents—including from the box itself, as well as from a laptop and a cloud storage account to which an aide to defendant Trump had scanned copies—totaling the 13,584 pages, only 4,242 of which are unique. Fifteen of the pages were classified. On June 21, the Government produced to defendant Trump the unclassified digitized contents of the box, containing all but the 15 classified pages of the total of 4,242 unique pages. During a meet-and-confer on September 20, the defense indicated that rather than receiving productions of only the classified pages extracted from electronic devices, separated from the digitized unclassified material already provided in unclassified discovery, they wanted to receive any classified pages from electronic media together with surrounding contents so that it could ascertain where the pages had been stored.

Claim [classified supplement]:

The special measures documents could not be discussed in the defense SCIF when counsel resumed review of materials there on October 17 and 18.

Debunking:

[A]n equipment failure deactivated a security measure that prevented discussion of the special measures documents in Defense SCIF 1 (but review could still occur), and that the following day, October 18, counsel moved one block over to Defense SCIF 2, which was authorized for both review and discussion of all the classified discovery and to which the special measures documents were re-delivered.