Leak Investigations Archives - Page 5 of 60

Gary Shapley’s Notes Show That Gary Shapley Misrepresented David Weiss

When Gary Shapley wrote down what was said about charging Hunter Biden with tax crimes in California at a contested meeting on October 7, 2022, he quoted Weiss as saying that if the US Attorney declined to prosecute, Weiss, “will request approval to proceed in CA” [my emphasis].

When Shapley relayed what happened in the meeting to his boss around six hours later, he described that Weiss “would have to request permission,” [my emphasis] even while admitting he was “unclear” on what Weiss said about where he’d get that permission.

Shapley’s lawyers shared these handwritten notes, over three months into his media tour with the right wing congressional set, because they think the fact that Shapley wrote down his understanding that Weiss said, “he is not the deciding person” [the latter part of which is redacted in the hand-written notes], that they disprove the testimony of others at the meeting.

The Special Agent in Charge, Thomas Sobocinski, said that both before and after the meeting, he understood Weiss to be the final decision-maker.

But this discrepancy later in his notes — Shapley’s replacement of “will” with “would have to,” his replacement of “approval” with “permission” — instead reveals that Shapley misunderstood what was said in the meeting, and then misrepresented what happened both that same day, with his supervisor, and ever since, with dumb right wingers in Congress.

To be sure, both versions are consistent with what David Weiss and Merrick Garland have been saying all along — including to Jim Jordan in June and to Lindsey Graham in July: that if Weiss decided to bring charges outside Delaware and the local US Attorneys didn’t want to partner on the case, he could ask for Special Attorney authority under 28 USC 515 and Garland would grant it. Both versions are consistent with the process Weiss has laid out. You ask the local US Attorney, and if they say no, you get Special Attorney authority.

But in the notes Shapley took in the meeting, he recorded Weiss committing to taking the steps to charge the later tax years — the ones that had to be charged in Los Angeles, two of the three years that were part of the plea deal. In his email to his supervisor, Shapley transformed that into his panic that, “this case could end up without any charges,” [emphasis and panic Shapley’s], something that was sharply at odds with the commitment Shapley had recorded Weiss making in the meeting — will — to follow the process necessary to charge the case. Plus, Weiss’ description of seeking “approval” rather than “permission” substantially disproves Shapley’s claim that anything said at the meeting was “inconsistent with DOJ public position and Merrick Garland testimony.” Shapley had to reword what he originally recorded Weiss as saying to support that claim.

That he did so — that he rewrote his own notes to match his belief, and then shared the rewritten version rather than the original with Congress — damages his credibility rather than backing it.

To be sure, neither set of notes is reliable.

For example, there is at least one thing missing from Shapley’s hand-written notes that he records in the email to his boss: the substance of his objection to David Weiss’ decision not to charge the 2014 and 2015 tax years.

I stated for the record, that I did not concur with that decision and put on the record that IRS will have a lot of risk associated with this decision that there is still a large amount of unreported income in that year from Burisma that we have no mechanism to recover.

Shapley’s claim may not be (or may no longer be) true: at the plea hearing, AUSA Leo Wise stated that there was no restitution owed. But I have no doubt Shapley did make this objection. If he didn’t record making a statement he thought to be that important, then, what else did Shapley say that he didn’t write down?

More importantly, what did Shapley not say that he didn’t record?

There’s nothing unredacted in Shapley’s notes recording Sobocinski’s question — which Shapley included in his email to his boss — about whether there was any problem on the case with politicization.

FBI SAC asked the room if anyone thought the case had been politicized — we can discuss this [if] you prefer.

That’s important because, at least per Sobocinski’s interview with the Committee, no one raised concerns about politicization at the meeting. “I was asking in a room of leaders on this case to say, ‘Hey, we are working together. We’re moving this thing
forward. Do you think there’s any manipulation from the outside that’s stopping us from what we’re doing?'” Sobocinski told the House Judiciary Committee about the question. And, at least per Sobocinski’s representation, “nobody in that room raised their voice to say anything other.”

So unless the redacted lines at the end of Shapley’s notes record Shapley providing some kind of affirmative answer, then there’s no evidence he took the opportunity to express the wild claims of politicization he was making contemporaneously, but he also didn’t record himself passing up that opportunity. At least per Sobocinski’s memory, the SAC gave him an opportunity to air those concerns and he didn’t take it, an opportunity that might have elicited a very simple explanation about what Shapely was misunderstanding about how the Special Attorney process worked and might have saved us from all the theatricality that threatens all charges against Hunter Biden now.

Indeed, whether or not Shapley said anything in response to Sobocinski’s question, the most suspect part of his email to his boss was an offer to discuss politicization in person: “we can discuss this [if] you prefer.” Both these documents are designed to provide for accountability, but Shapley appears to have declined to write down anywhere what his claims about politicization were, which would have made him accountable to his claims just like he wants to hold Weiss accountable for what he understood him to say.

Shapley reorganized his notes between the hand-written ones and the email in a way that changes their meaning, too.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

The LA decision mattered — the one about which Shapley originally recorded Weiss saying he “will” pursue Special Attorney authority if need be. The DC decision did not.

Just as important a problem for Shapley’s credibility is that for more than three months, Shapley has been claiming the email was his best record of the meeting, without distinguishing what parts of the email were his editorial statements and what parts a record of the meeting. That parts of the email reflected him editorializing should have been clear to anyone smarter than Jim Jordan; Shapley’s use of “I believe” and “in my opinion” are a big tip-off.

But it’s clear that Republicans have nevertheless treated the email, and all its bullet points, as a record of the meeting. That’s most problematic with the way Shapley recorded his understanding that Weiss had asked for permission to file in DC, permission which hadn’t been granted.

Staffers in Congress have been quizzing meeting attendees about things Shapley included in his email, without making clear they were background and not contemporaneous notes. One example that relates to the way Shapley packaged up his notes, at several points Steve Castor quizzed Sobocinski about whether he, “remember[ed] anything in that meeting about the fact that D.C. had declined to bring a case?” Sobocinski didn’t remember that — but likely for good reason. Shapley doesn’t record it as having happened, at all, in this meeting (and Sobocinski did not entirely back Shapley’s claim that that is what did happen). All Shapley recorded in his hand-written notes is that when Weiss asked for Special Attorney status (which Shapley lists as Special Counsel), DOJ — not Matthew Graves — told him to follow the process, which requires first asking if the US Attorney wants to partner on the case.

Even in these hand-written notes, this comment may have been editorializing; after all, Shapley records it after Weiss had already delivered his decision not to charge 2014 and 2015. But his hand-written notes definitely don’t reflect anyone saying that Graves had refused to partner on the case at the meeting.

In Sobocinski’s interview, he talked about how Shapley’s little media tour has created more challenges to actually charge this case, including threats against team members, particularly Lesley Wolf. There is nothing that Shapley has released publicly that helps the case and a great deal that will give Abbe Lowell more ammunition to demonstrate that the people pushing for tax charges against his client were going nuts because they weren’t allowed to violate rules on Sensitive Investigative Matters and because they didn’t understand bureaucratic process.

This is yet another example: Gary Shapley provided his editorialized version of a meeting that, he claims, was his red line to Congress and only months later did he share the underlying notes. Not only do the notes show he misrepresented what Weiss said about Los Angeles, but they raise yet more questions about Shapley’s equivocations about a leak that happened to coincide with a red line that isn’t entirely backed by his own notes. The motivated inconsistencies in the notes are the kind of thing defense attorneys use to discredit entire investigative teams, and Shapley has simply offered it up.

At this rate, Shapley’s media tour will be singularly responsible for making it impossible for Weiss to do the one thing Shapley claimed had to happen: charges against Hunter Biden.

Stan Woodward Thinks Aileen Cannon Is an Easy Mark

September 6, 2023/238 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

There’s a passage in Stan Woodward’s surreply to DOJ’s motion for a conflicts hearing in the stolen documents case that goes to the core of Woodward’s conduct in his representation of multiple witnesses in Trump investigations.

Woodward claims that because Yuscil Taveras testified in a July 20 grand jury appearance that he had not been coached (by Woodward, presumably) to lie about whether he had any conversation with Carlos De Oliveira, it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.

[T]he foregoing Surreply is necessary to correct the record with respect to the Special Counsel’s Office’s conduct in this matter. Specifically, defense counsel played no role in Trump Employee 4’s voluntary testimony before the grand jury resulting in the Superseding Indictment in this action.5 Superseding Indictment (July 27, 2023) (ECF No. 85). Moreover, when Trump Employee 4 testified, for the first time, before a Grand Jury in this District, Trump Employee 4 was unequivocal that, with respect to his prior testimony, he, “wasn’t coached,” and that nobody, “suggest[ed] to [him], influence[d] [him to say that th[e] conversation with Carlos De Oliveira didn’t happen.” G.J. Tr. at 50 (July 20, 2023). To that end, Trump Employee 4 did not retract false testimony and provide information that implicated Mr. Nauta, “[i]mmediately after receiving new counsel.” Reply at 4 (Aug. 22, 2023) (ECF No. 129) (emphasis added). Rather, after the Special Counsel’s Office issued a target letter on June 20, 2023, threatening Trump Employee 4 with prosecution, see Reply at 3 (Aug. 22, 2023) (ECF No. 129) (“[O]n June 20, 2023, . . . [a] target letter . . . identified . . . criminal exposure . . . entirely due to [Trump Employee 4’s allegedly] false sworn denial before the grand jury in the District of Columbia that he had information about obstructive acts that would implicate Nauta (and others).” [my emphasis]

Woodward provided no evidence — not one shred — to support his claim that Taveras didn’t change testimony. All he provided was inconclusive evidence that Taveras did not blame Woodward for his original, allegedly false, testimony.

And based off that unsupported claim, Woodward suggested that dealing with alleged perjury delivered in a DC grand jury in DC to support additional charges amounted to abuse of grand jury rules.

The argument of the Special Counsel’s Office, that it did not use the D.C. grand jury for the purpose of adding to the store of witnesses in the instant case, is unpersuasive.10 The theory the Special Counsel’s Office offers, that having called a witness before a distant grand jury to answer questions about events in this District and having nominally created an additional venue in which to claim that the witness was untruthful, should not be condoned. The approach taken by the Special Counsel’s Office – which unquestionably affected the presentation of evidence in the existing Southern District of Florida case – is a tactic inconsistent with precedent barring the use of a grand jury for trial purposes.

All of this is transparent garbage.

But he’s writing for Aileen Cannon, and so his unsubstantiated claim, on which he builds his renewed demand that Cannon exclude Taveras’ testimony altogether, might well work!

Woodward also plays temporal games by using comments Michelle Peterson and James Boasberg made on June 30, in the first conflict hearing, to claim he did nothing wrong.

5 As both the Chief Judge of the United States District Court for the District of Columbia and the First Assistant Federal Public Defender acknowledged:

[First Assistant Federal Public Defender]: Your Honor, one other thing. I did want to say for the record, I should have started with this, have seen no reason to believe that either Mr. Woodward or Mr. Brand or anyone else associated with this has done anything improper. This just came up at this point in time, and based on the status of the record, I’ve given [Trump Employee 4] my best counsel, and he will be making a decision based on everything he knows now.

THE COURT: Right. And thank you. And certainly my reading of the government’s motion for his hearing did not suggest that Mr. Woodward or Mr. Brand had done anything improper either. The government’s was a prophylactic measure to comply with the law as it exists regarding conflicts and to make sure that [Trump Employee 4] is aware of his rights. Hr’g T. at 6 (June 30, 2023) (Attached hereto as Exhibit C).

Those comments were made after just an hour of consultation between Peterson and Taveras. It’s not a comment Peterson made at the second conflicts hearing, on July 5, where Taveras said he wished to have Peterson represent him, much less after Taveras changed his testimony.

And while the exhibits Woodward included purport to support his false claims, they also reveal that the approach to the conflict hearing before Cannon is similar to what he tried — unsuccessfully — to pull before Judge Boasberg.

In an email to Boasberg’s chamber on June 28, Woodward accused the government — which filed this conflict motion with no advance notice to Woodward — of stalling on a conflicts hearing when Taveras testified in March and then played for more time and briefing.

[I]nsisting on a hearing on such short notice prejudices [Taveras] and any appointed conflicts counsel. Although the government alludes to an ex parte submission, neither the Court nor any potential conflics counsel has had the benefit of any submission on behalf of [Taveras]. Effectively, the government would have Mr. [Taveras] through counsel, present his defense to the government’s puported allegation of perjury in just a few days. Of note, the government filed its motion after meeting with us earlier today — a meeting at which we challenged the government’s evidence contesting the veractiy of [Taveras’] testimony. Among other things, government counsel conceded that the government did not believe [Taveras] engaged in obstructive conduct; and, in the heated colloquy that followed, government counsel blurted out that they believed Mr. Nauta had been untruthful to his colleagues concerning certain events related to [Taveras’] testimony, a fact wholly irrelevant to whether [Taveras] had committed perjury and evidencing the government’s clear motive in filing this motion.

Third, although we do not, as a general matter, oppose the appointment of conflicts counsel to consult with and advise [Taveras,] given the serious nature of the matters under investigation by the government, we also believe he deserves — is entitled to the benefit of — a brief responding to the government’s filing in which dozens, perhaps more than a hundred, cases are cited for the Court. Again, more than three months have passed since [Taveras’] testimony with just days’ notice on the Friday before a holiday weekend when travel to and from South Florida is has already proved problematic this week is not just unnecessary, it is unfair.

Again, none of that makes sense — we know DOJ was still obtaining new evidence, including of Nauta’s phone — that would have led to increased certainty that Taveras’ initial testimony conflicted with known evidence.

In June, Woodward tried to buy time and make his own case (and claimed it benefitted Taveras to make that case).

In August, Woodward bought an entire month. In his first response, he equivocally embraced a conflict review three pages in.

Nevertheless, defense counsel does not now – and would not ever – oppose an inquiry of Mr. Nauta by the Court to assure the Court that Mr. Nauta has been advised of all his rights, including the right to conflict-free counsel, so long as such inquiry is conducted ex parte and under seal.

This time around, having spent another month consulting with Nauta, Woodward led with support for a hearing at which Nauta would be asked if he had been advised of his right to conflict-free counsel.

This Court should hold a hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to conduct an ex parte inquiry1 of Defendant Waltine Nauta as to whether he has been apprised of his rights, including the right to conflict-free counsel.

And in spite of the fact that Woodward bought this delay, in part, by claiming that DOJ had raised new information — they hadn’t; It was in a sealed filing — Woodward didn’t address one of the newly public details in DOJ’s filing: that they had raised his payment by Trump’s PAC in the conflict motion.

That said, this whole process likely isn’t for Woodward’s benefit, or Nauta’s. It is for Judge Cannon.

Among the things Woodward’s exhibits revealed is that DOJ had already alerted Judge Cannon to the conflicts twice before they filed their motion for a Garcia hearing.

We would also note that the court is already aware of the conflicts issue given that the government previously called this to the court’s attention – twice.

Cannon was already aware of these potential conflicfts.

And she did nothing.

Update: DOJ filed a reply in the parallel motion with Carlos De Oliveira, insisting on a hearing even if John Irving has gotten the other witnesses new lawyers.

Aileen Cannon Working Hard to Protect Stan Woodward; Doing Nothing to Protect Walt Nauta or Carlos De Oliveira

August 26, 2023/228 Comments/in 2020 Presidential Election, emptywheel, Leak Investigations /by emptywheel

In this post, I noted all the things in DOJ’s reply on their motion for a Garcia hearing that had to have come from the grand jury, and assumed that DC Chief Judge James Boasberg must have permitted DOJ to share it.

As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.

It revealed:

Trump’s IT worker, Taveras, testified (falsely, the government claims) in March

DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)

It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings

James Boasberg provided Taveras with conflict counsel

Taveras changed his testimony after consulting with an independent counsel

Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.

A filing submitted from DOJ shows that I was right.

It also shows that Judge Aileen Cannon and Walt Nauta attorney Stan Woodward are engaged in a game that is doing nothing to ensure that Nauta’s getting unconflicted legal representation, but it is protecting Trump’s protection racket.

Let’s review the timeline.

On August 2, DOJ filed their original motion for a Garcia hearing, describing, generally, that Yuscil Taveras had testified against Nauta, which presented a conflict for Woodward, even before you consider the three other possible trial witnesses — of seven remaining witnesses — he also represents. DOJ submitted a sealed supplement with information on those three as well as other information, “to facilitate the Court’s inquiry.” Five days later, Cannon ordered that filing stricken, stating that, the government had, “fail[ed] to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.” In her drawn out briefing schedule on the question, she instructed Stan Woodward to address, “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”

On August 17, Woodward responded. He contended that Garcia hearings only covered when an attorney represented two defendants, but ultimately argued that, rather than adopt a more traditional method of resolving such a conflict (such as replacing Woodward), Judge Cannon should exclude Taveras’ testimony.

The government’s reply — filed on August 22 — is the one that made public more, damning, information on what went down in June and July.

Three more days passed before Woodward submitted a furious motion requesting opportunity to file a sur-reply. In it, filed 23 days after DOJ’s original submission and sealed filing, he accused DOJ of contravening, “a sealing order issued by the United States District Court for the District of Columbia,1” though in a rambling footnote, he admitted maybe DOJ had requested to unseal this ex parte.

1. Defense counsel is not currently aware of any application by the government to unseal defense counsel’s submission. To have done so ex parte is arguably less professional than deliberately violating the Court’s sealing order. The government did not solicit defense counsel’s position on the unsealing of defense counsel’s own submission, but appears to have deliberately misled both the District Court for the District of Columbia and this Court. Of course, if they did seek such an application ex parte, this would be the second time in as many weeks that the government has done so – a particularly ironic approach given the Special Counsel’s objection to the Court conducting any ex parte inquiry of Mr. Nauta.

In a fit of Trumpist projection, Woodward also complained that DOJ was doing things that might lead to tampering with witnesses.

2 In the time since the government’s submission, defense counsel has received several threatening and/or disparaging emails and phone calls. This is the result of the Special Counsel’s callous disregard for how their unnecessary actions affect and influence the public and the lives of the individuals involved in this matter. It defies credulity to suggest that it is coincidental that mere minutes after the government’s submission, at least one media outlet was reporting previously undisclosed details that were disclosed needlessly by the government.

Projection, projection, projection.

Well, it worked. Judge Cannon granted Woodward’s motion, even giving him one more day than he asked, until August 31 instead of August 30 (remember that she scheduled a sealed hearing sometime in this timeframe). Which will mean that because of actions taken and inaction by Aileen Cannon, Walt Nauta will go the entire month of August without getting a conflict review.

Meanwhile, on August 16, DOJ filed a motion for a Garcia hearing to discuss the three witnesses represented by Carlos De Oliveira’s attorney who may testify against him. Best as I can tell, Cannon is simply ignoring that one. Fuck De Oliveira, I guess.

After Cannon assented to yet more delay before she addressed the potentially conflicted representation of two of three defendants before her (someday, Cannon may even have to deal with conflicts Todd Blanche has, since he also represents Boris Epshteyn), DOJ submitted notice sharing a filing they submitted before the DC grand jury, assenting to Woodward’s request, filed just yesterday morning (that is, three days after their reply), asking to unseal stuff that was already unsealed.

It includes the Woodward filing, from which DOJ’s reply quoted, that Woodward claims DOJ cited out of context.

The full filing doesn’t help Woodward.

Indeed, Woodward’s own filing suggests that if Taveras wanted to cooperate with the government, that would entail seeking a new attorney.

Ultimately, this is little more than a last-ditch effort to pressure [Taveras] with vague (and likely nonexistent) criminal conduct in the hopes that [Taveras] will agree to become a witness cooperating with the government in other matters. See Government Filing, p. 10 (“A conflict may arise during an investigation if a lawyer’s ‘responsibility to his other clients prevents the lawyer from exploring with the prosecutor whether it might be in the interest of one witness to cooperate with the grand jury or to seek immunity if the witness’s cooperation or testimony would be detrimental to the lawyer’s other client.’ [] ‘Professional ethics prevent [an attorney] from advising a witness to seek immunity or leniency when the quid pro quo is testimony damning to his other clients, to whom he also owes a duty of undivided fidelity[.] [] In many cases, however, that advice is precisely what the client needs to hear, even, or perhaps especially, when it ‘is unwelcome’ advice that ‘the client, as a personal matter, does not want to hear or follow.’ [] (internal citations omitted)). Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government. However, [Taveras] has not signified any such desire and that means counsel for [Taveras] can continue to represent [Taveras] both diligently and competently. [my emphasis]

And the filing makes clear that DOJ addressed at more length the conflict presented because Woodward was being paid by Save America PAC; while I’m uncertain about the local rules in SDFL, in DC there is a specific rule 1.8(e), requiring informed consent when an attorney is paid by someone else. While Woodward addressed it (see below), Woodward’s own description that Taveras could get another lawyer if he wanted to cooperate would seem to conflict with that rule’s independence of representation, and when he addresses the rule, Woodward doesn’t address confidentiality.

Furthermore, when Woodward addresses why being paid by Save America PAC is only natural for Taveras because Taveras worked for Trump, he makes an argument that wouldn’t explain the entirety of his representation for Nauta — or, for that matter, Kash Patel, a known Woodward client who testified in the stolen documents case.

While the government has often sought to imply an illicit purpose for the Save America PAC covering the legal costs of certain grand jury witnesses, the truth has always been very simple and legitimate: many of the grand jury witnesses, including [Taveras], are only subject to this investigation by virtue of their employment with entities related to or owned by Donald Trump. Save America PAC has placed no conditions on the provision of legal services to their employees. Ultimately and in compliance with Rule 1.8, [Taveras] was advised that Save America PAC would pay his legal fees, that [Taveras] could pursue other counsel than Mr. Woodward if he so desired, that Save America PAC was not Mr. Woodward’s client, that [Taveras] was Mr. Woodward’s client, and that [Taveras] could always make the decisions relating to the trajectory of [Taveras]’s grand jury testimony. [my emphasis]

Taveras is only a witness because Trump paid him to do IT work. But for much of the conduct about which Kash must have given testimony, represented by Woodward, he was the Acting Chief of Staff at the Pentagon. That’s the period when, per Kash, Trump conducted a wild declassification spree in his last days as President before packing up boxes to move to Mar-a-Lago.

And while most of Nauta’s exposure as a witness (and now defendant) arises from things Nauta did as Trump’s valet after both left the White House, ¶25 of the superseding indictment, describing the process by which Trump and Nauta packed up to leave, entails conduct from before Nauta left government employ.

If Trump were to be charged with 18 USC 2071, Nauta would be a witness to that.

In other words, brushing off the financial conflict with Taveras is one thing, but this conflict is also about Nauta. And Nauta is now being prosecuted for conduct that may have begun when American taxpayers were paying him, not Donald Trump. One of the things Nauta may be hiding by not cooperating are details about Trump’s overt intentions as they both packed up boxes.

And that’s not even the most damning part of the filing DOJ submitted yesterday.

DOJ also submitted its initial motion to unseal grand jury materials, submitted on July 30, in advance of the Garcia motion.

That motion reveals, first of all, that DOJ informed Judge Cannon of the conflict hearing on June 27.

On June 27, 2023, the government filed a sealed motion asking the Court to conduct an inquiry into potential conflicts of interests arising from attorney Stanley Woodward, Jr.’s simultaneous representation of [Taveras] and Waltine Nauta (“conflicts hearing motion”); and a separate sealed motion seeking Court authorization to disclose the conflicts hearing motion by, among other things, attaching a copy of the motion to a sealed notice to be filed in United States v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, No. 23-cr-80101 (S.D. Fla.) (“Florida case”). The Court granted both motions, and the government filed the sealed notice, with a copy of the conflicts hearing motion attached, the same day.

As DOJ noted in its reply, that’s what the sealed docket entries 45 and 46 are.

That is, Aileen Cannon knew this was happening in real time. DOJ wasn’t hiding anything from her.

That motion to unseal also describes that DOJ intended to file “all information related to the conflicts hearing,” including the appointment of Michelle Peterson to represent Taveras, in a sealed supplement to its motion for a Garcia hearing.

The government therefore moves for an order permitting it to disclose to the court in the Florida case all information related to the conflicts hearing, including the fact and dates of the hearing, the resulting appointment of AFPD to represent [Taveras], and, if necessary, any filings, orders, or transcripts associated with the conflicts hearing. The government initially intends to include such information only in a sealed supplement to its motion for a Garcia hearing.

In other words, these two docket entries that Judge Cannon ordered be stricken, five days after they were posted and therefore made available to both Cannon and Woodward?

They include the material that, Woodward claims, he had never seen before DOJ’s reply.

Judge Cannon just gave Woodward another bite at the apple, as well as another six days before his client gets a Garcia hearing, based off Woodward’s claim that he had never seen information DOJ had shared (and which would have been available to Woodward for five days) but then Cannon herself had removed from the record. DOJ did provide this information in its initial motion. But because of actions Cannon took — the judicial equivalent of flushing that information down the toilet — Woodward (after waiting three days himself before first asking Judge Boasberg to share the information) claimed that he had never seen it before.

DOJ may have had a sense of where this was going, because back on July 30, in the same paragraph where they asked for permission to submit this information as part of a sealed supplement, DOJ also asked for permission to share it in unsealed form if things came to that.

[T]o ensure that it does not need to return to the Court for further disclosure orders, the government also seeks authorization to disclose information related to the conflicts hearing more broadly in the Florida case, as the need arises, including in briefing and in-court statements related to the Garcia hearing.

Things did, indeed, come to that.

And Woodward may have gotten notice of all that from Judge Boasberg’s order on July 31.

Things are going to get really testy going forward (if they haven’t already under seal) because, in a filing that DOJ did not first ask permission to file (but which I suspect would be authorized by a sealed order elsewhere in the docket, not to mention general ethical obligations requiring DOJ to inform her of everything going on in DC), DOJ just revealed that Judge Cannon threw out precisely the information that she’s now using to grant Woodward’s request for a sur-reply and — between the three days he waited to ask and the six she granted him to respond — nine more days to delay such time before Walt Nauta might be told about the significance of all the conflicted representation Woodward has taken on.

But I also expect that this will escalate quickly in one or another forum. Aileen Cannon was informed weeks ago of two significant conflicts in the representation of defendants before her, and rather than attend to those conflicts (or decide, simply, that she was going to blow them off, which in some forms might be an appealable decision), she has helped Woodward simply stall any resolution to the potential conflict.

Remember how I’ve promised I would start yelling if I believed that Cannon was doing something clearly problematic to help Trump? I’d say we’re there.

Update: Corrected my own math on the delay, which I said was 11 days but is 9. Ignoring that Cannon asked for lengthy briefing on a topic that most judges would just issue an order on, the key delays are:

5 days before Cannon flushed the sealed supplement down the judicial toilet
3 days between the DOJ reply and Woodward’s panicked demand for a sur-reply based on a claim that DOJ hadn’t previously raised the things Cannon flushed
6 days of delay before Woodward will submit his sur-reply

The Secrets within Donald Trump’s Stolen Secrets Docket

August 23, 2023/31 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.

It revealed:

Trump’s IT worker, Taveras, testified (falsely, the government claims) in March
DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)
It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings
James Boasberg provided Taveras with conflict counsel
Taveras changed his testimony after consulting with an independent counsel

Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.

The filing also explains two sealed entries in Judge Cannon’s docket: dockets 45 and 46.

DOJ informed Cannon of the grand jury proceedings in those two docket entries.

The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46.

That explains, then, two of the multiple sealed entries on the docket. But those weren’t the only sealed dockets.

There was one before DOJ’s notice.

And one after.

Both of those may be orders from Cannon, since she wouldn’t have to ask for permission to file something under seal.

There’s the twin entry on August 2, in which DOJ asked to seal what was probably a description of the potential conflict involving Stan Woodward’s representation of three other witnesses who may testify against Walt Nauta.

Judge Cannon ordered those to be stricken.

Then there were five more — or more likely, two, and then three — on August 11 and 14.

All those sealed docket entries took place before — yesterday’s filing disclosed — the grand jury “completed its term” on August 17.

The Government notes that the grand jury in the District of Columbia completed its term on August 17, 2023.

DC grand juries generally sit for 18 months, but if this was a special grand jury focused only on this investigation (which has always been the assumption), it would have been convened (again, per the filing), in April, 2022, two months shy of that.

There’s no guarantee those other docket entries pertain to the DC grand jury. But it’s one possible explanation for the sealed entries.

Certainly, DOJ afforded itself of the opportunity presented by Cannon’s order to brief what she called “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertienent to the instant indicted matter in this district.

Waltine Nauta shall file a response to the Motion for a Garcia hearing [ECF No. 97] on or before August 17, 2023. Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023.

As DOJ’s reply noted, this wasn’t post-indictment investigation. Rather, it was pre-indictment investigation for the indictment adding Carlos De Oliveira and adding new charges against Trump and Nauta. And DOJ had to deal with all that in DC, because that’s where Taveras’ gave his original false testimony.

Following the indictment in this district, it was appropriate to use the grand jury in the District of Columbia to investigate false statements by Trump Employee 4 and De Oliveira. Neither individual was named in the indictment against Nauta and Trump, and venue for charges based upon their false statements in the District of Columbia would lie only in that district. It therefore necessarily follows that the grand jury was not used “for the primary purpose of strengthening its case on a pending indictment or as a substitute for discovery,” even if that “may be an incidental benefit.” United States v. Beasley, 550 F.2d 261, 266 (5th Cir. 1977).

[snip]

A claim of improper use of the grand jury here is even further afield than in Beasley. Whereas the recanted testimony in Beasley was relevant only to the charges pending in the indictment, as described above, Trump Employee 4’s corrected testimony is probative of “crimes not covered in the indictment.” US Infrastructure, Inc., 576 F.3d at 1214.

Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976).

Nauta is therefore incorrect when he claims (ECF No. 126 at 8) that the Government was “attempt[ing] to diminish the Court’s authority over the proceedings in this case and to undermine attorney-client relationships.” When a conflict arose in the context of Trump Employee 4’s status as a putative defendant in the District of Columbia, the Government raised the conflicts issue there; now that a conflict arises from potential cross-examination of Trump Employee 4 in the case against Nauta in this district, the Government has raised the conflicts issue here. Nauta makes no showing of improper use of the grand jury, let alone the strong showing that is required to rebut the presumption of regularity in grand jury proceedings.

There’s far more secrecy than there should be, for the prosecution of the former President, even accounting for the highly sensitive documents involved.

Not only has Cannon made it prohibitively difficult for the media to cover the proceedings, but she canceled an open hearing scheduled for August 25 in lieu of a sealed hearing — secret time, secret place — to discuss the classified protective order. She did that while refusing to let DOJ protect the secrecy of the grand jury in DC.

It’s her courtroom, and if she wants to pick and choose which proceedings against the former President become public, to some degree that’s her prerogative.

Having been forced to unseal these matters by Cannon’s order, though, this filing (and in the Garcia motion pertaining to John Irving), DOJ laid out how damning the alternative can be.

DOJ Invites Aileen Cannon to Avoid Another Reversible Error

August 22, 2023/119 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Nine pages into the twelve page reply regarding DOJ’s request that Judge Aileen Cannon hold a Garcia hearing to explain to Walt Nauta the potential hazards of Stan Woodward’s conflicts in the stolen document case, DOJ warns Judge Cannon that if she does what Woodward wants her to do, it will be (reversible) error.

In his response, Woodward had suggested that rather than hold a hearing to explain to Nauta the potential conflict and hazards to his defense, Judge Cannon should just exclude the testimony of Yuscil Taveras, the IT guy who testified against Nauta and Carlos De Oliveira.

To do that, DOJ argued, would be unprecedented, particularly given that Woodward had advance notice of this conflict.

III. It Would Be Error to Suppress Trump Employee 4’s Testimony

Nauta contends (ECF No. 126 at 4-5) that if the Court finds a conflict, it should preclude Trump Employee 4 from testifying at trial, rather than employ more routine remedies. That proposed remedy is contrary to precedent and—except for the district court ruling reversed in United States v. Messino, 181 F.3d 826 (7th Cir. 1999)—would appear to be unprecedented.

Courts have rejected exclusion of evidence as a remedy to avoid a conflict of interest, concluding that evidence that is “relevant to the Government’s case” should not “be excluded to accommodate a defendant’s choice of counsel.” United States v. Urbana, 770 F. Supp. 1552, 1559 n.17 (S.D. Fla. 1991); see Messino, 181 F.3d at 830; United States v. Lech, 895 F. Supp. 586, 592- 93 (S.D.N.Y. 1995). Exclusion of probative testimony “is an extreme sanction and would only harm the interests of justice.” Lech, 895 F. Supp. at 592. A “defendant’s choice of counsel” should not “take precedence over the Government’s discretion in deciding what charges to prosecute and how to present its case.” United States v. Pungitore, 910 F.2d 1084, 1142-43 (3d Cir. 1990).

[snip]

Nauta has not identified any case, and the Government is unaware of one, in which a court has excluded evidence to avoid a conflict on facts remotely similar to this case, where the Government put Mr. Woodward on notice long ago about potential conflicts, and he is now seeking to affirmatively use those conflicts to gain a tactical advantage at trial by excluding highly incriminating evidence to the benefit of not only his own client but also a co-defendant (Trump) whose PAC is paying his legal fees. The Court should not countenance this maneuver. [my emphasis]

Before they provided this implicit warning that if she makes such a decision, DOJ laid out how and why Taveras testified in DC, after the original indictment obtained in Florida. As I predicted, it’s because he had made false claims in an earlier appearance before the grand jury — one Woodward (who was still representing him) knew about.

In March, DOJ claims, Taveras gave false testimony to the grand jury about this, denying all knowledge of an attempt to destroy surveillance footage.

Before that, DOJ raised Woodward’s conflict, but he said he was not aware of one.

Then, after the June 8 indictment in Florida, DOJ warned Taveras, through Woodward, he was a target, and served two more subpoenas for surveillance footage. After serving the target letter, DOJ got DC Chief Judge James Boasberg involved and told Judge Cannon about it. Woodward raised no objection to a review of the conflict in DC. And that’s when Judge Boasberg assigned a public defender to advise Taveras, which led him to revise his testimony against Nauta and De Oliveira.

The target letter to Trump Employee 4 crystallized a conflict of interest arising from Mr. Woodward’s concurrent representation of Trump Employee 4 and Nauta. Advising Trump Employee 4 to correct his sworn testimony would result in testimony incriminating Mr. Woodward’s other client, Nauta; but permitting Trump Employee 4’s false testimony to stand uncorrected would leave Trump Employee 4 exposed to criminal charges for perjury. Moreover, an attorney for Trump had put Trump Employee 4 in contact with Mr. Woodward, and his fees were being paid by Trump’s political action committee (PAC). See In re Grand Jury Investigation, 447 F. Supp. 2d 453, 460 (E.D. Pa. 2006) (explaining that potential conflicts can be “further heightened by the financial dynamics of the joint representation,” where, for example, a client “did not independently select the” attorney but instead had the attorney “pre-selected for them by the attorney to the [person] who is the central focus of the grand jury proceedings”).

On June 27, 2023, consistent with its responsibility to promptly notify courts of potential conflicts, and given the prospective charges Trump Employee 4 faced in the District of Columbia, the Government filed a motion for a conflicts hearing with the Chief Judge of the United States District Court for District of Columbia (Boasberg, C.J.), who presides over grand jury matters in that district. The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46. Mr. Woodward raised no objection to proceeding in the District of Columbia regarding Trump Employee 4. In fact, he responded that he “welcome[d] the Court’s inquiry into [his] representation of” Trump Employee 4, Response at 1, In re Grand Jury Subpoena, No. 23-GJ-46 (D.D.C. June 30, 2023), but asserted that he had no “information to support the Government’s claim that [Trump Employee 4] has provided false testimony to the grand jury,” and that “even if [Trump Employee 4] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the Government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him.” Id. at 3. According to Mr. Woodward, if Trump Employee 4 “wishes to become a cooperating Government witness, he has already been advised that he may do so at any time.” Id.

Chief Judge Boasberg made available independent counsel (the First Assistant in the Federal Public Defender’s Office for the District of Columbia) to provide advice to Trump Employee 4 regarding potential conflicts. On July 5, 2023, Trump Employee 4 informed Chief Judge Boasberg that he no longer wished to be represented by Mr. Woodward and that, going forward, he wished to be represented by the First Assistant Federal Defender. Immediately after receiving new counsel, Trump Employee 4 retracted his prior false testimony and provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage, as set forth in the superseding indictment. [my emphasis]

Because Taveras’ false statements to the grand jury were in DC, venue would have been DC.

Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976)

The term of that grand jury ended on August 17.

Judge Cannon has already been reversed by the 11th Circuit in humiliating fashion on this matter once.

DOJ is trying to help her avoid a second reversal.

Meanwhile, twice in this filing (bolded above), DOJ notes that Woodward is being paid by Trump’s PAC. DOJ is inching closer to raising that as a separate conflict in his representation of Nauta.

Trump Changed the Lock in His Residence before Changing the Lock on the Storage Room

August 17, 2023/32 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

In another motion for a Garcia hearing in the Trump stolen documents case, DOJ revealed that Trump changed a lock on a storage closet in his own residence on June 2, before changing the lock on the storage closet where his classified documents had been stored for months.

At issue is one of three clients of Carlos De Oliveira’s attorney, John Irving, that DOJ says may testify at trial.

Recall that Stan Woodward represents seven clients interviewed in this matter, and did represent Yuscil Taveras before he got a new lawyer and cooperated against Woodward client Walt Nauta. DOJ tried to describe those conflicts under seal, which Judge Aileen Cannon refused, which may be why DOJ has laid out these conflicts in an unsealed court filing.

The three witnesses whom Irving represents include a Trump Employee 3 — the person who told Nauta that Trump wanted to see him before Nauta flew to Mar-a-Lago and allegedly tried to delete surveillance video, a former Trump assistant (possibly Chamberlain Harris?) who knew of movements of boxes to Mar-a-Lago, and the head maintenance worker at MAL whom De Oliveira replaced, referred to as Witness 1 in the filing.

The most damning testimony the Witness 1 provided debunked the excuse De Oliveira made to explain why he was taking pictures of surveillance cameras at MAL.

Witness 1 was a maintenance worker at Mar-a-Lago who served as head of maintenance before De Oliveira took over that position in January 2022. Witness 1 has information demonstrating the falsity of statements De Oliveira has made to the Government. In addition to the false statements De Oliveira made to the FBI that are the basis for the false-statements charge in Count 42 of the superseding indictment, he also made false statements in an April 2023 interview with the FBI and members of the Special Counsel’s Office in Washington, D.C. In particular, when confronted with video footage appearing to show him photographing surveillance cameras in the tunnel at Mar-a-Lago near the storage room where the FBI recovered some of the classified records, De Oliveira claimed he was (1) looking for a shutoff valve because a water pipe had ruptured on the grounds of Mar-a-Lago, and (2) documenting a broken door below one of the cameras. Witness 1 has information about when the pipe broke and the door needed repairs that is inconsistent with De Oliveira’s statements.

But the more interesting testimony is that De Oliveira changed the lock on “a closet inside Trump’s residence … on June 2, 2022” after moving boxes with Walt Nauta.

Witness 1 also has information about De Oliveira’s loyalty to Trump and about De Oliveira’s involvement in the replacement of a lock—at the direction of Trump—on a closet inside Trump’s residence at Mar-a-Lago on June 2, 2022, the day Nauta and De Oliveira moved boxes as described in paragraphs 62-63 of the superseding indictment.

De Oliveira’s the guy who changed the lock on the storage room after Jay Bratt instructed Evan Corcoran to secure it, then gave away the key to some whose identity he claimed to forget when the FBI showed up on August 8 last year.

Agents had another concern: The lock on the door to the storage room was flimsy. The officials urged staff to put a better lock on the door, which De Oliveira did — using a hasp and a padlock to keep it secure, the people said. If there were still highly sensitive classified documents in the room, such a lock was far from sufficient, but it was better than nothing.

[snip]

When FBI agents arrived at Mar-a-Lago the morning of Aug. 8 with a court-issued search warrant, De Oliveira was one of the first people they turned to. They asked him to unlock a storage room where boxes of documents were kept, people familiar with what happened said. De Oliveira said he wasn’t sure where the key was, because he’d given it to either the Secret Service agents guarding the former president or staffers for Trump’s post-presidency office, the people said.

Frustrated, the agents simply cut the lock on the gold-colored door. The incident became part of what investigators would see as a troubling pattern with the answers De Oliveira gave them as they investigated Trump, the people said.

But apparently, sometime before that, De Oliveira added a lock to a closet within Trump’s residence, one that may have stored some subset of the roughly 35 boxes that didn’t get moved back into the storage closet so Corcoran could search them.

Perhaps that lock was designed to ensure that Evan Corcoran didn’t accidentally find the other 35 boxes full of classified documents.

The fact that he changed that lock makes his paltry efforts to secure the main storage closet all the more damning.

Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

August 13, 2023/120 Comments/in 2020 Presidential Election, emptywheel, Hunter Biden, January 6 Insurrection, Leak Investigations /by emptywheel

I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.

[snip]

A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.

[snip]

While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.

[snip]

We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

August 11, 2023/55 Comments/in 2020 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

How 9 Months of Camera Footage became 8 Years

August 10, 2023/47 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Even while Trump’s attorneys argued that he should be permitted to discuss classified information on private property that was already targeted by foreign spies before it became clear he was hoarding boxes of classified records there and may not have turned everything back, they argued that to investigate what happened with the stolen classified documents while in Trump’s custody, the FBI had to get 8 years worth of camera footage.

Actually, more than that. Trump’s response claimed that three-quarters of the total surveillance video turned over to date makes up 8 years, meaning the total would amount to around 128 months of surveillance footage.

To be sure, this is part of competing efforts to inflate (Trump) or understate (DOJ) the amount of discovery in this case.

I’m tracking those competing claims about what has been turned over in this table.

The latest claims — that would suggest that DOJ had turned over around 128 months worth of surveillance footage — reflect an evolving methodology on Trump’s part. On July 10, Trump’s lawyers described the initial batch of surveillance footage to be “approximately nine months of CCTV footage.”

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

On July 18, Todd Blanche described that the footage Trump’s discovery vendor had uploaded as of that morning amounted to 1,186 days — or “over three years” worth of video.

Your Honor, just starting with a question you asked Mr. Bratt a while ago about just one part of the discovery, which is the CCTV footage, which is extraordinarily significant to this case, not only as what’s obvious from the indictment, but it also in part gave rise to the search warrant, the affidavit, and the probable cause to search Mar-a-Lago. As of this morning, there’s 1,186 days of footage that we have uploaded so far, and our vendor is not finished uploading it. And again, I’m not questioning Mr. Bratt’s position about the time period, but there’s multiple cameras that were subpoenaed and that have been produced to us as Rule 16 discovery; and as of today, it’s over three years’ worth of video.

Now, I’m not suggesting to the Court that we’re going to sit for three years and watch three years’ worth of video, but it’s a tremendous amount of data and information, and we’re just — I’m just talking right now about the CCTV footage. While the Government is correct that they have pointed us to the few days that they believe are the most significant to them as it relates to the charges in the indictment and presumably the search warrant, they’re not the most significant to us. I mean, the movement of boxes and where boxes were on given days is extraordinarily significant not only to the justification for the search warrant of the President’s residence but also to the defense of the case. And so the CCTV footage alone, over 1,186 days, makes the schedule the Government proposed pretty disingenuous, Your Honor.

Yesterday’s filing describes that when Trump’s vendor finished uploading that first batch of surveillance footage — which was 57 terabytes out of 76 total — it amounted to 8 years of footage.

Furthermore, the government has produced approximately 76 terabytes of compressed raw CCTV footage, which is itself an incredible volume of material. Last week defense counsel finally finished processing the intake of CCTV footage that the government produced on June 21—the 57 terabytes of CCTV footage produced on June 21 totals nearly eight years of video. On July 31, the government produced an additional 19 terabytes of CCTV footage, including, according to the government’s production letter, “footage that was produced to the government in May that was not included in the government’s first discovery production.” Counsel recently received a hard drive with CCTV footage referenced in the government’s July 31 letter, and we are still processing that discovery to assess the total length of additional video the government produced.

That’s where my 128 months estimate comes from: if 57 terabytes amounted to eight years, then 76 might amount to 10.66.

To be sure, this effort to maximize the scope of the surveillance footage is just meant to impress Judge Cannon and it might well work.

But it also provides some way to reverse engineer what the scope of the surveillance footage really is.

For example, if the scope of this includes footage spanning 9 months of time, as Trump originally claimed, then 10.66 years of footage might suggest 10 cameras were ultimately obtained; according to the search affidavit, there were 4 cameras — from the hallway outside the storage room — covered by the initial production, and by counting using Trump’s new method, 2 months of footage from four cameras would amount to eight months of surveillance footage.

It’s funny math, but now there’s more than 16 times that.

Note that in July, Bratt confirmed the unsurprising detail that some of the footage is from Bedminster (which is probably why DOJ hasn’t done a search on Bedminster — because they could validate the thoroughness of the search done in November or December).

MR. BRATT: So it covers a nine-month period, but not all the cameras were — but it is not all the cameras at Mar-a-Lago or Bedminster; not all the cameras were always running. And the retention period that the Trump organization had varied from camera to camera, so it is not a solid nine months of video footage.

Now, I’m interested in the scale of the footage for several reasons. Yesterday’s motion pointed to the 8 years of footage as proof that nothing ever got deleted.

As relevant here, the charges allege various obstruction-related conduct arising out of false claims of efforts to destroy certain video tapes. No videotapes were deleted or destroyed and the government does not so allege; indeed, President Trump has produced to the Special Counsel’s Office what amounts to more than eight years of CCTV footage.

It’s certainly possible that when DOJ started the investigation that led to multiple obstruction charges, they were just trying to figure out why Trump totally blew off the part of the initial subpoena that asked for locations in addition to the hallway outside the storage room (which I laid out here).

Particularly given that the claim accompanied the suggestion that the alleged attempt to delete footage in June 2022 was “false,” I certainly wouldn’t credit the amount of footage eventually obtained by the government as proof that nothing was deleted. It’s not even clear that all the footage comes from Trump Organization, much less the guy who used to be President.

But the other reason I remain obsessed about the amount and types of surveillance footage here (besides, perhaps, my PhD in literature), has to do with the types of questions investigators may have been trying to answer.

Take, for example, the claim by Bratt on July 18 that the movement of boxes key to the initial obstruction conspiracy happened on May 24 through June 2.

With respect to the closed circuit television and the movement of boxes, I would just note that the movement of boxes occurred between May 24th and June 2nd. So it’s not years’ worth of video with respect to the movement of boxes.

If so, that would suggest Nauta’s movement of a single box on May 22 was something besides an attempt to obstruct the subpoena response.

Or consider the way Trump’s lawyers boast about what an unusual place Mar-a-Lago is.

We similarly reminded the government of the uniqueness of President Trump’s residence, including that it is in a highly protected location guarded by federal agents that previously housed a secure facility approved for not only the discussion, but also the retention, of classified information. The government’s Motion suggesting we anticipated discussing classified information in an unsecure area is wrong, and they are fully cognizant of that fact. Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

This neglects to explain why no sane person would want to restore a SCIF at Mar-a-Lago as explained very easily in the indictment.

The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP’s residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.

Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.

Mar-a-Lago shouldn’t be compared to the residence of “any private citizen,” sure, but for entirely different reasons than Trump’s lawyers want to admit: it’s a counterintelligence nightmare, and was long before Trump started hoarding classified documents in the gaudy shower, and was even ignoring the known targeting of the compound by foreign spy services.

One thing those surveillance videos are going to show is people besides Walt Nauta who got into the storage closet, perhaps to stash their guitar there, and in the process knocking over and discovering classified records that as a result have to be burned.

If there really is over 10 years worth of video surveillance, spread across a bunch of cameras and two properties, it’s likely some of the surveillance will show stuff Trump didn’t control, but stuff for which he should be held accountable.

Update: Added the quote about Bedminster bc as coalesced notes, Bratt’s comment about retention period is also worth noting.

Shorter DJT: Mexico Will Pay for My New SCIF

August 10, 2023/142 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

In Trump’s response to DOJ’s motion for a classified protective order in the stolen documents case, his lawyers clarified that they didn’t so much want to discuss classified documents with Trump while sitting in his offices, which is how the government represented their request, but instead wanted to restore the SCIF at one or another of his resorts.

Even there, the response itself says that Trump wants to review classified materials in a restored SCIF, while a footnote disavows that, then says he wants the space where he used to review such material, with another footnote disavowing a plan to transport classified documents there now.

President Trump opposes any portion of the Proposed CIPA Protective Order that prohibits counsel from simply discussing the relevant purportedly classified material with President Trump inside an approved secure location other than the designated SCIFs in the Southern District of Florida where the classified discovery will be housed. President Trump respectfully requests that the Proposed CIPA Protective Order be modified to approve re-establishment of a secure facility in which President Trump was permitted previously to discuss (and review2 ) classified information during his term as President of the United States.3

2 To be clear, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to or reviewed or stored in, this location.

3 Counsel can provide additional information about President Trump’s proposed secure location but respectfully request that such information be provided in camera because of security concerns.

[snip]

So that President Trump and his legal team may discuss classified information in a substantive manner as regularly as necessary to prepare an adequate defense, we respectfully request that the Court approve re-establishment of a secure facility in which President Trump previously discussed (and reviewed5 ) classified information during his term as President of the United States.

5 Again, President Trump is not requesting that any classified materials be transported to or reviewed or stored in this location. [my emphasis]

Throughout this filing, Trump refers to purportedly classified material in the body of his argument, then disavows wanting to transport classified material in a footnote.

To that end, President Trump requests that the Court approve the renewed use of the previously approved and appropriately secure location so that he is then able to discuss the relevant classified information with his counsel without the need to mobilize his security detail and state and local law enforcement every time he has a conversation regarding his defense as it relates to purportedly classified information.8

8 Again, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to, or stored in, this location.

[snip]

Indeed, the government has the authority to discuss the purported classified material in other approved facilities outside of a Court designated SCIF, and we anticipate it does so regularly. That is not inconsistent with the law so long as they are having those discussions in a secure, approved facility. Our request is to have the same opportunity. We are seeking the Court’s permission to discuss classified information in a secure facility that was long approved for such use and met then, and could easily meet now, the standard required by our nation’s intelligence community to ensure protection of information deemed classified. [my emphasis]

All the reassurances that Trump doesn’t want to store classified material back at Mar-a-Lago modify claims that it might not be classified. Given those caveats, there’s a big question whether stolen classified documents will end up right back at Mar-a-Lago.

Put aside the gimmick here — Trump is demanding that the government make his home a legal place for classified information, which still amounts to seeking, “permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

This is also a filing about Secret Service. The response and Todd Blanche’s related declaration describes that this proposal is based on, “multiple communications with several individuals who are familiar with the required security protocols surrounding President Trump and his family.” But it doesn’t describe any consultation with the people whose job it is to protect classified records.

6. When President Trump was in office, there was a designated, secure location where classified information was approved to be housed and discussed. We have had discussions with officials familiar with this arrangement.

Blanche says that because he had discussions with the Secret Service agents who know where the SCIF was, it’s the same as discussing security arrangements for building and maintaining one.

That is, this filing is about conflating the protection of Trump with the protection of classified records.

Indeed, Trump repeatedly minimizes the risk of storing classified records at Mar-a-Lago, with all the spies targeting it (which I’ll return to), because of the Secret Service detail there.

Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

[snip]

President Trump objects to the Proposed Protective Order insofar as it does not allow him and his counsel to discuss the relevant purportedly classified material inside an appropriate secure facility at or near his personal residence. Limiting any discussions with counsel to the government offered SCIFs is an inappropriate, unnecessary, and unworkable restriction, given the unique circumstances of President Trump’s access to security—namely that he resides and works in a secure location that is protected at all times by members of the United States Secret Service, and that the proposed alternate location previously housed an area approved for not only the discussion, but also the storage and review, of classified information

[snip]

The government’s Motion dismisses this fact and compares President Trump’s request herein to any other defendant’s request to discuss classified information in their “private” or “personal residences” or offices. (See ECF No. 84 ¶¶ 13–14). This characterization is misleading and misconstrues the facts of this case. Donald J. Trump served as President of the United States for four years, and he, along with other Presidents and senior government officials, have had access to remote facilities for the purposes of reviewing and discussing sensitive information while in office, and at times after leaving office.

Of course, Trump didn’t have access to classified information after he left office, at least not after Biden ended Trump’s classified briefings in February 2021.

But this dispute is likely partly an attempt to manufacture some conflict between the President and the guy who wants to replace him.

The argument here is based on inflated claims about how hard it is for Trump and his Secret Service detail — who are making multiple trips a week to give speeches in places like New Hampshire high school gymnasia — to travel from Mar-a-Lago to a SCIF in South Florida.

2. If President Trump travels to a public facility in the Southern Division of this District, most circumstances would require an overnight stay in the local area by his protective detail, including members of the Secret Service, as well as an overnight stay by President Trump, due to the distance between his residence and the public facility.

[snip]

5. In any of these scenarios, the required security measures take significant planning and effort, as well as financial resources.

6. The alternate secure location in which President Trump seeks to discuss (but not review) classified information is under 24-hour a day full security protection, whether President Trump is present or not. Furthermore, the government can re-establish a restricted area within the proposed secure location in which President Trump and his legal team can discuss classified information in a manner that is consistent with government security protocols.

7. Between 2017 and 2021, with reasonable effort and expense, a secure facility was established and approved at President Trump’s residence in the Southern District of Florida. In that facility, President Trump was permitted to review and discuss classified information. Reestablishing this secure facility is readily possible if the Court so directs.

Donald J. Trump — the same guy who never missed a chance to bilk the Secret Service for space in his own residences or hotels — is demanding that the US Government minimize the inconvenience of secure travel by him to defend himself for stealing classified information even as he is traveling all over the country — incurring the same costs and inconveniences for those around him — campaigning with nary a care about the cost that imposes on tax payers.

And he’s not offering to pay the US government to rebuild the SCIF in his beach resort.

Multiple people on Xitter joked that he’ll probably just ask Mexico to pay for it, and that’s about right: Trump is promising that the government can build something instantaneously without cost.

But given that Aileen Cannon is involved, it may well work.

This is not a good faith offer. It is an attempt to create a conflict that, if and when it is appealed to the 11th Circuit, will present closer calls than the ones on which Judge Cannon got her ass handed to her last year.