Filling the Surveillance Footage Gaps: Place and Payments

The government has asked for — and Trump and Walt Nauta’s lawyers have not objected — to a protective order in the stolen documents case. That’s utterly routine — though sometimes there is a stink about the terms of a protective order, which didn’t happen here.

The actual protective order itself does not include extra restrictions to prevent Trump from tweeting shit out — as his Alvin Bragg protective order did — but it does require the defense to make everyone who reviews discovery to sign a protective order as well (sometimes defendants unsuccessfully object to this on Sixth Amendment grounds because it provides a way to track a defendant’s own investigation).

The motion itself has attracted a good deal of attention because of this language, describing why they need to keep the discovery confidential: There’s an ongoing investigation.

The materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals

This makes more explicit what a description of needing to send this indictment back to a grand jury in DC, in the motion to seal the indictment, already implied. DOJ needed to tell grand jurors in DC a story about how much work Donald Trump and Walt Nauta did to withhold documents from the FBI and the Archives, in part so they could load them on a plane to Bedminster.

Which is why I want to look more closely at what else — besides information on an ongoing investigation — DOJ is trying to protect.

  • personal identifiable information covered by Rule 49.1 of the Federal Rules of Criminal Procedure
  • information that reveals sensitive but unclassified investigative techniques
  • non-public information relating to potential witnesses and other third parties (including grand jury transcripts and exhibits and recordings of witness interviews)
  • financial information of third parties
  • third-party location information
  • personal information contained on electronic devices and accounts

The first and second are routine — things like social security numbers and FBI techniques. The last, personal information on devices and accounts, is a nod to a great deal of content obtained in this investigation (including the pictures of stolen documents that appear in the indictment). Maggie Haberman reported that Trump hated those pictures in the indictment. A review of the pictures yet to come may prove sobering to Trump.

DOJ is, from the start, providing grand jury transcripts, but that’s likely a testament to the number of people who testified under a subpoena (normally, there would be more interview reports and DOJ might provide grand jury transcripts closer to trial).

It’s the remaining two I find interesting: financial information, and location data, particularly given the documents that went to Bedminster, never to be heard from again, and the gaps in surveillance footage.

Location data showing that someone was standing in front of a known surveillance camera at a particular time might help to fill the gaps that currently exist in the footage. Their bank account might provide more context.

These details may give Trump’s attorneys — and perhaps more importantly, Nauta’s — a sense of where DOJ thinks this investigation might head. In other circumstances, DOJ might try to obscure that an Espionage Act indictment charging 31 different highly sensitive documents is just the appetizer in a larger investigation. But in this case, they want Trump — and perhaps more importantly, Nauta — to know that from the start.

Aileen Cannon Did Something Normal

Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.

This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.

In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.

It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.

Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.

So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.

No Crime Alleged in the Mar-a-Lago Indictment Occurred in DC; Other Crimes Did

Today, SCOTUS ruled that the government can retry someone in the proper venue if the original case is thrown out on venue grounds without violating double jeopardy.

The decision matters for Vladislav Klyushin, “Putin’s pen-tester,” whose sole post-trial challenge to his Boston insider trading conviction was on venue grounds. The decision makes it more likely he’ll just move to sentencing and maybe decide to make his life easier by cooperating with the US government.

Contrary to what a bunch of TV lawyers are saying — who adopted this challenge as their favorite explanation for why Jack Smith would charge Trump under 18 USC 793(e) in Southern District of Florida rather than DC — the decision would never have mattered for Donald Trump.

I can’t tell you whether Smith charged Trump in Florida because he knew Trump would have successfully challenged venue elsewhere, because he has a larger strategy in mind, or because he just believes you don’t look for easy wins if you’re going to charge the former President of the United States. I suspect it is all of those things, plus a decision to do as much as possible to convince Republicans that this prosecution is legitimate, not merely an attempt to get Donald Trump.

I know that when Smith spoke publicly for all of three minutes, he mentioned the Florida venue twice.

Frankly, all the hand-wringing about venue in SDFL plays into the Republican doubters’ hands, because it sure makes it sound like you are trying to get Trump rather than prosecute a crime.

I can tell you those who think DC would have worked misunderstand the charge and misunderstand the only way an 18 USC 793(e) charge was going to be viable against the former President.

As a reminder, these are the elements of offense of 18 USC 793(e), taken from the very same jury instructions that a jury in SDFL one day may receive. As I showed in August, there was already abundant evidence that Trump met the elements of offense.

There are five elements:

  • Unauthorized possession (proof he had the documents after such time as he was no longer permitted to have them)
  • National Defense Information (NDI) (reasons a jury would agree that these documents were closely held and important to keeping the US safe)
  • Damage to the US (some kind of proof that Trump knew both that these documents could damage the US and that classified information could generally)
  • Willful (proof that he knew he had the documents, as distinct from — like Pence and probably Biden — he just accidentally removed them from his office along with other papers)
  • Refusal (some proof that he didn’t just not return the documents, but refused to do so)

To charge a former President — as distinct from someone who had clearance and brought stuff home from work — you have to prove two things: One, he knew he had  documents that remained classified after he left the Presidency, and two, that after such time as he realized he still had classified documents, he refused to give them back.

Biden and Pence discovered they had unauthorized possession of classified documents and they rushed to give them back.

By July 2021 — when Trump bragged about having documents that remained classified to a ghost writer — Trump knew he had unauthorized possession of classified documents. The Archives, Trump’s lawyers, and DOJ told him over and over that he had to give them back.

And then, in two different incidents, he took classified documents and removed them from a set of other documents that he did give back. That’s the refusal.

You do not have a crime with which you can charge a former President — as distinct from someone whose possession of classified documents would be unauthorized once he brought them outside the SCIF he had agreed to hold them in — until such time as he realizes he has them, someone asks for them back, and he refuses.

It is the refusing to give the documents back that is the provable crime, not the possession per se.

And Trump’s two big refusals — the two times he went to great efforts to sort through boxes personally to cull out documents he wanted to keep rather than return — were both in Florida, both long after he left the White House.

According to the indictment, Trump committed the act of refusing to give documents back under 18 USC 793(e) twice: once, from November 2021 until January 2022, when having been convinced he had to return documents, he went through box after box and carefully curated the boxes he returned on January 18, 2022 to keep some. The proof that he refused to give everything back in January 2022 is that there were still 38 classified documents when Evan Corcoran conducted a search in June, ten of which are charged as separate counts.

Trump refused again in May and June 2022, when he duped Evan Corcoran into claiming he had done a diligent search when in fact Trump had made sure that Corcoran would only search 30 of the 64 boxes Trump knew he still possessed. The proof that he withheld classified documents in June are the 100-some classified documents that the FBI found him to still have in his possession on August 8 of last year, 21 of which are charged as separate counts.

Jack Smith’s decision to charge this case in Florida — knowing full well he might face Aileen Cannon — was a decision about whether he could prove the elements of the offense of a crime that happened in Florida.

He is provably still considering charging crimes that happened in DC. He might even be contemplating charges for crimes that happened in New Jersey. Or maybe he is contemplating charging crimes that started in DC and ended in New Jersey.

I suspect we’re going to be surprised with the crimes he does charge, as virtually all the people saying this could have been charged in DC were surprised that he did choose to charge 18 USC 793(e), rather than just obstruction.

I wasn’t surprised. I laid out exactly how it would look last August; the big surprise to me are the pretty pictures proving Trump’s possession of these documents in Florida.

I also think virtually everyone is imagining that Smith is searching for the one trial to take Trump down, rather than making decisions about a package of conduct about which he might be able to reach a just resolution for the public interest.

I personally doubt an 18 USC 793(e) trial will happen in Florida (or elsewhere), because 793 prosecutions rarely go to trial.

They plead out.

And I promise you that Jack Smith would prefer to get a plea agreement with Donald Trump — however improbable that may seem to us now — than air 31 of the country’s most classified documents at trial.

The only prosecutorial decision Jack Smith has made public thus far is to charge a crime in Florida that happened in Florida. And none of us know how that decision fits in with the other prosecutorial decisions Smith might make or may already have made.

Down a Mouse Hole with Bill Clinton’s Cat, Socks

When I first read this WaPo article yesterday, I was struck by two things: first, the revelation that when Judicial Watch’s Tom Fitton appeared before a Jack Smith grand jury early this year, he was asked both about his central role in convincing Donald Trump he could rely on a case he, Fitton, lost, to justify stealing thousands of government documents (that’s the testimony we knew about), but also his role in January 6.

Fitton, who appeared before the grand jury and was questioned about his role in both the Mar-a-Lago documents case and the investigation into the Jan. 6, 2021, attack on the U.S. Capitol, acknowledged he gave the advice to Trump but declined to discuss the details of their conversations.

I wasn’t aware that Fitton had much of a role in January 6.

I was also shocked that, in the spite of the grave damage Fitton’s crackpot advice had already done to Donald Trump’s future, he was nevertheless permitted to be there with the accused felon Monday night, dining on what was undoubtedly overcooked filet mignon, as Trump and his supporters discussed his plans for beating the rap.

In an interview Wednesday, Fitton said he dined with Trump on Monday night at his club, eating filet mignon with the former president one day before his first court appearance on the document charges. “I saw him last night; he’s in a good mood. He’s serious and ready to fight under the law.”

On top of the sheer stupidity of letting Fitton anywhere close to Trump in the wake of his indictment, Fitton’s presence presumably would breach any privilege claim lawyers present could make in the future.

The report that Fitton has been chatting with Trump this week explains some of the insanely stupid things Trump has said on his failing social media site, not to mention Trump’s deceit in claiming he would see everything presented to the grand jury, much less have already seen it before any protective order is signed and discovery is provided.

By invoking Clinton’s Socks, his term for Fitton’s failed lawsuit, Trump was falsely claiming to have inside knowledge of something that would have legal merit, presumably so his followers would believe Trump had some viable defense (that they would send him money to fund).

I was not, however, surprised by the sheer stupidity of the opinions Fitton expressed to WaPo.

“I think what is lacking is the lawyers saying, ‘I took this to be obstruction,’” said Fitton. “Where is the conspiracy? I don’t understand any of it. I think this is a trap. They had no business asking for the records … and they’ve manufactured an obstruction charge out of that. There are core constitutional issues that the indictment avoids, and the obstruction charge seems weak to me.”

Several other Trump advisers blamed Fitton for convincing Trump that he could keep the documents and repeatedly mentioning the “Clinton socks case” — a reference to tapes Bill Clinton stored in his sock drawer of his secret interviews with historian Taylor Branch that served as the basis of Branch’s 2009 book documenting the Clinton presidency.

Judicial Watch lost a lawsuit in 2012 that demanded the audio recordings be designated as presidential records and that the National Archives take custody of the recordings. A court opinion issued at the time stated that there was no legal mechanism for the Archives to force Clinton to turn over the recordings.

For his part, Fitton said Trump’s lawyers “should have been more aggressive in fighting the subpoenas and fighting for Trump.”

It’s not just that Fitton was allowed to share these legally incorrect opinions with Trump. It’s that he badly misunderstands how his own advice about the “Clinton Socks” case might be viewed as an agreement with Trump to enter into a conspiracy to withhold classified documents.

Remember, after Trump fucked up releasing the Crossfire Hurricane documents, Fitton went after them himself, only to reveal that the collection was just one dumbass binder.

Anyway, after puzzling through what role Tom Fitton might have had on January 6, I started reading through a motion to compel that Ruby Freeman’s attorneys served on pardoned felon Bernie Kerik last week. Bernie was the guy who mailed a key strategy document to Mark Meadows on December 28, 2020. In addition to making clear that Bernie was sharing the document to “move legislators,” not win court cases, it included exhibits laying out the claims about Freeman and her daughter Shaye Moss that Rudy Giuliani would subsequently make publicly — that Freeman counted suitcases of votes multiple times after kicking out poll watchers, using a false claim of a water main break as the excuse — claims that Freeman alleges amount to defamation.

To be clear: those claims about Freeman are false, as is the claim she was arrested for her actions. Thus the lawsuit.

Freeman’s lawyers filed a motion to compel because when Kerik first responded to their subpoena last year, his attorney — Tim Parlatore — simply provided a link to the stuff that Kerik had provided to the January 6 Committee. Since then, Freeman’s lawyers argue, Rudy has disclaimed any work privilege claim over materials prepared for legislatures, as opposed to lawsuits. But when Freeman’s lawyers have gone back to Kerik to get the materials he withheld from J6C under a work product privilege claim that (they argue) Rudy has since waived, Parlatore explained there had been a “technical glitch” that creates some difficulties in consulting with Rudy’s attorney on the issue.

Relations between Parlatore and Freeman’s team have been sour for some time. Around the same time in December when Parlatore was telling a DC grand jury that he had done a diligent search of Bedminster — where at least two and probably a bunch of classified records have been sent, never to be seen again — he was telling Freeman’s team that Kerik didn’t have some documents that Freeman had obtained from other sources.

After Plaintiffs spent months negotiating with Mr. Kerik’s counsel and made more than a dozen unsuccessful attempts to effectuate personal service on Mr. Kerik,5 counsel for Mr. Kerik accepted service of the First Kerik Subpoena on November 14, 2022. (See Houghton-Larsen Decl. ¶ 4.) On November 21, 2022, Plaintiffs agreed to narrow the requests and provided examples of emails produced during discovery that were sent to Mr. Kerik but were not present in his production to the Select Committee. (See id. ¶ 5.) On December 21, 2022, Mr. Parlatore responded that “Mr. Kerik has looked and we do not seem to have any additional responsive documents to provide.” (See id. ¶ 6.) Mr. Kerik has never explained why he does “not seem to have” any of the example communications Plaintiffs provided to him, on which he was copied, and which have been produced by other parties.

By the time former Trump attorney Parlatore claimed a “technical glitch” was creating delays on June 7, the day before Trump was indicted, he also explained that, “there are other more pressing matters that have taken priority.”

The motion to compel includes fragments of both Rudy’s and Kerik’s March depositions in this case. In Kerik’s, Parlatore made a series of dickish responses to Freeman attorney Annie Houghton-Larsen’s questions that Parlatore deemed to ask for work product information, precisely the privilege claim that has since started to collapse.

In Rudy’s, there are a slew of hilarious responses showing how dissolute Rudy has gotten, such as when, struggling to come up with Sidney Powell’s name, he called her the Wicked Witch of the East.

Q. I’ll ask you about who was on it, but the team that was assembled at that point in time, is that the team that Ms. Bobb is referring to as the “Giuliani legal team”?

A. Correct.

Q. Now you can tell me, who was on this team?

A. It was myself, Jenna Ellis, Victoria Toensing, Joe DiGenova, Boris Epshteyn, originally.

We added Christina after about two weeks, and we added — oh my goodness, of course, her name will escape me.

Come on guys, help me. The wicked witch of the east.

Q. It’s — really, in this forum, I’m interested in what you remember.

A. Oh, I remember who it is. I just can’t remember the name. I block it out.

Q. We can come back to it.

A. On purpose. Everybody knows who it is.

Q. We can come back to it.

Anyone else aside apart this —

A. Sidney.

Q. Sidney?

A. It was Sidney.

Q. Sidney who?

MR COSTELLO: How could you forget that?

Q. Are you referring to Sidney Powell?

A. Sidney Powell, yeah.

Both men, however, struggled when asked about this passage of the strategy document, showing who, on December 28, its author considered key members of their team (Freedom Caucus members make the list on the following page), both struggled to remember who some of the members were.

There was little doubt that BK was Kerik and both ultimately decided that BE was Epshteyn.

But both simply couldn’t imagine what close Boris associate “SB” might be. Here’s Kerik’s epic struggle with the question:

Q. Okay. This might help you. Can we please turn to page 6.

Okay. So about two-thirds down the page it says, “Key team members. Rudy Giuliani.”

And then, “BK.” I’m assuming that’s you.

A. That’s probably me.

Q. Okay. “KF.” Do you know who that is?

A. Katherine Friess.

Q. And then, “Media advisors. SB.” Who do you think that is?

A. No idea. Well, I went through this before.

THE WITNESS: Who did I do this with? J6?

MR. PARLATORE: Probably.

THE WITNESS: Yeah. Boris Epshteyn would have been the BE. SB, I have no idea what that  is.


Q. Okay.

Sadly, Rudy dodged the TF question altogether and the excerpt cut off before Kerik was quizzed about the same question.

So we will have to wait to learn whether Tom Fitton is the TF who did influencer outreach on the effort to steal the election.

But it might help to explain why he was still welcome in the Boris Epshteyn-led effort to pursue political grievance rather than a sound legal defense.

Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.


In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.


Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).

Trump and Nauta’s Release Conditions

Going into yesterday’s arraignment, I believed the release conditions would be the only thing of note.

I was wrong. Alleged Trump co-conspirator Walt Nauta wasn’t even arraigned! It seems he may be having difficulty finding local counsel to add to his Trump-funded lawyer, Stan Woodward.

Still, the release conditions were newsworthy, but it took until Anna Bower wrote up her 27-hour wait for the 30-minute hearing before what happened became fully clear: on the summons, the government asked for no release conditions besides the order that neither man commit any more crimes (!!!), something Trump attorney Todd Blanche optimistically assured his client could do.

But then magistrate judge Jonathan Goodman imposed an additional one: a limited restriction on talking to witnesses.

Goodman had attempted to impose a no-contact rule, as well as prohibiting Trump from speaking to Nauta about the case. But Trump attorney Todd Blanche objected, noting that some of the witnesses are members of Trump’s personal detail.

[Prosecutor David] Harbach continues, the prosecution is not seeking a restriction requiring Trump to avoid contact with his co-defendant, witnesses, or victims.

Now Goodman is ready to make a ruling. As to Trump’s release, he agrees with the government’s recommendation: “I’m going to authorize a personal surety bond with no financial component,” he announces.

But Goodman isn’t willing to be as lenient as the government is with respect to the special conditions of that release. “Despite the parties recommendations,” he says, “I’m going to impose special conditions.” Specifically, Goodman wants Trump to avoid contact with witnesses and victims in the case except through counsel. He asks the government to submit a list of witnesses and victims so that Trump would know whom to avoid by way of abiding by the restriction.

Continuing to enumerate the special conditions of Trump’s release, Goodman further says that Trump should avoid talking to Nauta about the case. He emphasizes that he customarily would require no contact whatsoever between co-defendants. But here he recognizes that Nauta works for Trump, and it would thus be “impossible” for the usual condition to apply in this case. For that reason, Goodman says the restriction will only apply to Trump and Nauta’s communications about the case itself.

Blanche successfully attempted to narrow the contact order still further, allowing contact but not discussion about the case.

Here Blanche interjects: “Your honor,” he asks, “may I be heard on the special conditions?”

After receiving permission to continue, Blanche says that the “problem” with the conditions enumerated by the judge is that many of the likely witnesses in the case are part of Trump’s protective detail or long-time employees. “For him not to be allowed to have contact with them would in our view be inappropriate,” he stresses. To emphasize this point, he notes that the same challenges that exist in restricting Trump’s communications with Nauta similarly apply to Trump’s communications with his security detail and employees. “As one example,” he continues, a “key witness” is the President’s lawyer. For those reasons, Blanche urges the court to reconsider its restriction on communications with witnesses.

Then Harbach, rising at the judge’s request for a response, offers the government’s view. Noting that the government is “cognizant” of the issues raised by Blanche, Harbach suggests that the prosecution come up with a non-exhaustive, narrowed list of witnesses that could “accommodate” Blanche’s concerns. After producing the list, he advises, the government could confer with Trump’s legal team to work through any practical difficulties. Further, he says, the government would suggest that—as with Nauta—the restriction could be limited to communications with these witnesses about the case.

Responding to these representations, Judge Goodman momentarily toys with the idea of requiring the government to make up a two-category list of witnesses: a category of witnesses with whom there should be no contact at all, and a category of witnesses with whom there should be no contact about the case. For example, he says, members of Trump’s protective detail would fall within the second category.

Blanche, however, remains unsatisfied with this proposed arrangement. He suggests that it would be “unfair” to people who rely on Trump for their livelihoods if the government were to place them on the “no contact” list. Moreover, he says, these restrictions on communications with witnesses are not necessary because “all of these witnesses” have their own counsel, which Blanche seems to consider sufficient to guard against any improper communications with Trump.

Harbach, whom I suspect is keen to let the court impose this restriction now that it has been proffered by someone other than him, jumps in. He wants to “reiterate,” he says, that the magistrate’s special conditions are “workable.”

Judge Goodman agrees. Discarding the idea of the two-tiered list of no-contact witnesses that he had considered moments ago, he decides on a simpler course of action: The government should produce of list of witnesses, but the “no contact” restriction will be limited to no communications “about the facts of the case other than through counsel.”

“So that will be a special condition,” he declares with an air of finality.

This decision is what it is — and I have every expectation that Trump will violate the restriction on talking about the case. But this is a testament that Trump was charged based on the testimony of his closest aides. These people practically live with Trump. And their testimony could put him in prison.

A lot of people are upset that Trump and his alleged co-conspirator didn’t receive stronger conditions.

With respect to Nauta, of course, he’s got no record and he’s just charged with obstruction, so a personal recognizance bond is not that surprising.

With respect to Trump, most Espionage Act defendants are jailed pre-trial.

But there are recent examples where Espionage Act suspects remained out on pretrial release after their compromises were discovered. Both Robert Birchum and Kendra Kingsbury, for example, who like Trump collected hundreds of documents over years and took them home, remained at large (and according to the government sentencing memo filed just this week in Kingsbury’s case, she was less than helpful during the investigation). If the government hopes to find a way to get Trump to plead out of this charge, the comparison is not inapt.

More importantly, Trump has a full-time security detail, so he will be in immediate reach of Federal law enforcement at all times. Plus, there’s a strong preference for pre-trial defendants to be permitted to continue to work. His job is lying to rubes and running for President.

More generally, though, everything the government has done thus far — both by filing the case in Florida, and by doing nothing to impede Trump’s campaign (to say nothing of giving him an ankle bracelet to show off) — undercuts Trump’s claims that this is a political prosecution.

That won’t — and hasn’t — stopped him from claiming it is one.

But already, there are a number of Republicans who, once they’ve read the indictment, have started coming around to the gravity of Trump’s crime. There are a number of Republicans who agree that the decision to prosecute Trump was not political.

And that’s as important a part of this prosecution as anything else: to get a majority of the country to understand that the charges are merited.

Expected Response Is Expected, Redux: Trump, Post-Arraignment

[NB: check the byline, thanks. /~Rayne]

Two days after a warrant was served on Mar-a-Lago last August, I wrote this:

We could have seen it coming after all this time. They’re reliably predictable, no crystal ball required.

Trump appears to be in trouble: The FBI serves a warrant on Mar-a-Lago, seizing papers.

There’s a moment of hesitation or pause: Trump delivers a ranty statement some time after the FBI leaves.

The coordinated response is generated: Trump’s lawyers make a false claim about evidence being planted by FBI.

The zone is flooded: The right-wing’s proxies and media repeat ad nauseam the same false claim.

The media dutifully picks up and repeats: the zone is further flooded, amplifying the false claim.

This is a cycle we’ve seen repeated over and over again. The only additional step not included here is the final one in which some pundit will opine about this situation being bad for Democrats and Joe Biden though it has nothing to do with them whatsoever.

I noted then that the media responded reflexively to this cycle. Breaking out of their sycophantic role has happened but very rarely, and I say that only because I can’t think of a good example off the top of my head when a media outlet didn’t just regurgitate Trump’s DARVO, thereby poisoning understanding by those who aren’t media literate/skeptical and those who are themselves stuck in the same loop as MAGA GOP.

Trump will once again Deny the Attack, Reverse Victim and Offender, a behavior pattern typical of abusers, and the media will enable it thereby becoming the abuser’s weapon — once again wielded against the public.

After this afternoon’s arraignment, I expect we’ll be swamped once again by the same DARVO cycle. Trump will repeat everything he said after he was told he was a target, after he was told an indictment was imminent. He raged on his own version of Twitter, he raged again on video; he’ll do this all again, perhaps with some additional flourishes in a live venue.

I’m an innocent man,” he claimed over and over, though the timeline of events, the photos taken, the refusal to fully cooperate with the National Archives and the Department of Justice all indicate otherwise.

After his arraignment in Manhattan NY this April for charges of falsified business records, Trump fulminated.

He called Smith a “lunatic,” and also claimed the judge presiding over his case in Manhattan is a “Trump-hating judge.”

… Trump cast the indictment as Democrats’ latest attempt to kneecap him, citing previous “fraudulent investigations” related to Russia and Ukraine, and “impeachment hoax one” and “impeachment hoax two.” Trump said his opponents have “really stepped up their efforts by indicting the 45th president of the United States.”

And of course he claimed he was the victim of an injustice, “I never thought anything like this could happen in America … Never thought it could happen. The only crime that I’ve committed is to fearlessly defend our nation from those who seek to destroy it.”

Defending our nation looks a lot like unlawfully retained classified documents carelessly dumped from a box in a storeroom near a resort’s pool.

Today’s arraignment might produce slightly different results as Trump might not wish to insult Trump-friendly Judge Cannon. However he will surely insult Special Counsel Smith, casting Smith once again as a villain of the deep-state apparatus seeking to harm poor little old Trump.

~ ~ ~

Few to none of the media outlets will note that none of this had to happen. Trump could have turned over everything — presidential records, classified documents, defense information — when NARA asked in May 2021.

He could have tried to comply again in February 2022 when NARA said it was still missing documents.

Trump could have done more to comply between February and June 2022 — heck, up to the search warrant’s execution in August — but instead he and his minions obstructed.

The arraignment today is a choice that Trump made. He has no one to blame but himself.

But because this is his lifelong practice, he will blame everyone else but himself. He will depict himself as a victim.

And the media will likely repeat his bullshit rather than noting the real victim is this nation and its Constitution, because the documents Trump has steadfastly refused to relinquish belong to our executive office.

Watch closely now for the DARVO and media’s complacency. It’s just a matter of time — tick-tock.

~ ~ ~

This is an open thread. Bring all your non-Trump stuff here rather than clutter Marcy’s threads.

Trump’s “Beautiful Mind Paper Boxes:” Jack Smith’s Points of Leverage

In this post, I laid out how DOJ really really really tries to plead out 18 USC 793(e) cases if it can do so, to avoid doing any more damage to national security, on top of the original compromise. That’s true even with a garden variety Green Beret who brought classified documents about a gripe home from work. All the more so if it’s the former President who compromised hundreds of highly sensitive documents.

But as we’ve seen over the ten months since the search of his beach resort, Trump is highly unlikely to do that.

What would it take — Jack Smith’s team may have brainstormed before they filed this — to get Trump to enter into a plea agreement?

So I want to return to my argument that the Mar-a-Lago case is tactical — a tactical nuke, I called it. Partly, I think it is designed to give Walt Nauta very good reason to plead and cooperate, to what end and import I only have guesses.

Partly, I think charging 31 incredibly sensitive documents is a different kind of threat to Trump than it is to most people, because of his narcissism.

Those 31 charged documents are, taken together, a bunch of stories that prosecutors can tell about why Trump stole classified documents. The reason prosecutors included some are pretty easy to guess. Document 19, which concerns US nukes, is classified Formerly Restricted. Under the Atomic Energy Act it could not be declassified by the President alone, so that document will be legally easier to prove to be National Defense Information covered by the Espionage Act than others might, even if jurors don’t get the import of protecting information on America’s nuclear weapons. Some, like document 11, an unmarked document that captures military contingency planning of the United States, seem to be another example of stuff that is obviously NDI, information that is closely held precisely because doing so is necessary to protect US security, regardless of classification level (and may have been selected because it doesn’t include classification marks). Others, like document 3 and document 23, appear to have Sharpie notes, which may provide some hints about why Trump stole them. Matt Tait thinks document 7, memorializing October  28, 2018 communications with a foreign leader, might record a call with Putin or Mohammed bin Salman, post Khashoggi execution, both of which could be highly embarrassing for Trump. Based on its date, Tait argues that the other document pertaining to nukes in Trump’s stash, document 5, likely pertains to Russia. Brian Greer thinks the charged documents turned over on June 3, most of which are from the fall 2019 period during impeachment, could be a coherent set. Whatever else document 8 is — it is described as an October 4, 2019 Five Eyes document — the spillage picture from the storage closet would amount to proof that by storing it insecurely, Trump made it accessible to at least two people who no longer had clearances.

Whatever these documents are, his closest aides considered him to be obsessed with them. Employee 2 — according to WaPo, this is Trump’s then-Executive Assistant, Molly Michael — described the boxes as Trump’s “beautiful mind paper boxes” as she debated with a colleague about where to stash them. Trump went to great lengths to curate and keep these documents; they became tied to his self-imagination of power, it seems. He told Evan Corcoran, “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” As bad as it is for Trump that the government seized these documents from him, it might pose a far greater injury to his ego if they were shared in court for all the world to see who he really was. We’re all going to get to look at Trump’s boxes if this goes to trial. All of us.

And while the timing of this prosecution cannot be predicted (aside from that the CIPA process will take a lot of time), such an injury to Trump’s ego might be greater if “his” boxes were to become public in the middle of the general election, which is about the earliest that might happen.

So, bizarrely, as hard as it would be for the spooks to declassify these for trial, it might do as much damage to Trump’s psyche to have the contents of “his” “beautiful mind paper boxes” shared for the entire world to see. It would shred the sense of power that he derived from them (and in many cases, would show that many of his public claims about what — say — Mark Milley had really said were false). And so keeping them secret might be something about which Trump and DOJ could come to some kind of agreement.

But that’s not the only point of leverage that Smith has.

Because Trump decided to announce his Presidential run early in a bid to stave off criminal charges, Merrick Garland appointed Jack Smith to oversee both criminal investigations into Trump, the stolen documents case and the January 6 case. At the very least, that means that in the not-too-distant future, Smith will file additional charges against Trump and his close associates, in DC. Since Trump will be dealing with the same prosecutor, Smith, in both, if he wanted to settle one case — say to stave off having his “beautiful mind paper boxes” exposed in Florida — Smith could attempt to include a settlement in a second case in any negotiation.

You still have to get Trump to a position where he wants to settle, but having the same prosecutor oversee both cases simply gives him more flexibility, flexibility that might be able to find a just result for the country.

And the way in which these cases intersect may provide Smith additional tools. Several witnesses in the stolen documents case also have exposure in one or another aspect of the January 6 case. Trump Representative 1 is — again, per the WaPo — Alex Cannon. The January 6 Committee documents showed Cannon to be a key player in (not) vetting fundraising pitches for false claims; but he was also involved in attempts to limit the damage of Cassidy Hutchinson’s testimony.

No one has yet identified Trump Attorney 2, but it may be Boris Epshteyn, who had his phone seized last September and already sat for two days of interviews with Smith’s prosecutors. Trump will go to court today represented by Todd Blanche, who also represents Boris. And Boris’ close associate and partner in crypto-corruption, Steve Bannon, received a subpoena from the Special Counsel last month.

Perhaps the most important of these players common to both criminal investigations, however, is Michael, and that enigmatic comment, “Oh no oh no … I’m sorry potus had my phone” is one of the reasons why. Michael was one of Trump’s most important gatekeepers leading up to January 6, and the logs of his calls from that period were mysteriously not kept. When the January 6 Committee questioned her about events, Michael professed not to remember a lot of things from that period. When the January 6 Committee asked her about her phone — the phone that Trump would sometimes use — she explained that her lawyer had pulled off any texts relevant to the event, but did not provide more. Because Trump made Michael a central player in his effort to steal classified documents, Jack Smith appears to have obtained her phone, a phone that would show some of Trump’s communications, as well as her own.

Indeed, that reference to Trump having her phone on December 7, 2021, may be as much about what he was doing with it as what she said to Nauta once she got it back.

More importantly, these overlapping players have witness testimony about more than the attack. Most if not all of them, as well as most if not all of their known attorneys, are the beneficiaries of the suspected campaign finance fraud that has become a second prong of Jack Smith’s investigation — the investigation into how Trump raised money from small donors promising to use it on election integrity and instead used it on paying lawyers for other criminal exposure (and, as noted, that’s the area where Cannon’s known legal exposure is greatest). We may learn more about how DOJ feels about that today, if DOJ asks for a conflict review of Stan Woodward’s representation of Walt Nauta.

The indictment charged Nauta. But it is very coy about the degree to which the other named witnesses, especially Michael and Epshteyn, have cooperated or might be exposed elsewhere.

And that’s important because of the other elements that don’t show up in this indictment. Michael is the one who ordered Chamberlain Harris to make copies of Trump’s schedules, for example, which in the process resulted in the dissemination of classified information. Michael is the most likely candidate to be the person who compiled one Secret and one Confidential document into one with messages from a pollster, a faith leader, and a book author. One uncharged crime in Trump’s existing indictment describes him sharing classified information with a representative of his PAC (and the paragraph immediately following that one hints that the information may have subsequently been shared with the press). The last thing Jay Bratt did before obtaining this indictment was to interview Taylor Budowich about shared knowledge of Trump’s employees that he was hoarding documents.

As far as we know, Trump appears to have kept the most spectacular of these documents for himself. “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes,” Trump told the attorney he had hired to search them. But the more mundane documents — such as the Iran document that disappeared forever after it was publicly aired at Bedminster in July 2021 — appear to have been exploited by the same Political Action Committee that was already the subject of Smith’s increasingly interlocking inquiries.

Trump lied to his small donors about how he was going to use their money. But he also appears to have taken documents when he left the White House — documents that belong to you and me — that he has since put to his own personal and political benefit. Some of those documents are classified.

And so — especially given the suggestion that Smith needed his indictment to go back to a grand jury still working in DC — Jack Smith may have more points of leverage over Trump and his closest associates, including points of leverage that remain almost entirely hidden.

Update: As I was writing this, Lawfare published a similar piece on shoes yet to drop.

Trump Needs Cleared Lawyers, Not Just Any Lawyers

WaPo has a 28-paragraph article on Trump’s scramble to find lawyers to appear at his arraignment today that doesn’t mention several things that are undoubtedly making the search harder.

First, there are all the details in the indictment that reveal how much information Trump withheld from his lawyers: not just the location of the files Evan Corcoran needed to search on June 3, 2022 (and Tim Parlatore tried to search in November and December, only to find none of the documents that remain unaccounted for), but also the sensitivity of the documents he had them claiming before Courts were merely personal records.

Several prominent Florida attorneys declined to take Trump on as a client after two of the key lawyers handling the documents matter — Jim Trusty and John Rowley — resigned last week, according to people familiar with the matter.

Trusty and Rowley’s departure was sudden and unexpected, leaving Trump jockeying to identify a lawyer ahead of his Tuesday appearance in federal court in Miami, where rules require practicing attorneys to be a member in good standing of the Florida bar or to be sponsored by one before appearing.

All three lawyers who quit — plus Lindsey Halligan, whose status remains uncertain — signed a letter to Congress claiming that the organization of the boxes returned in January 2022 merely reflect the result of haste and sloppiness by White House staff.

This organization of materials (i.e., schedule of calls for the day, insert page for briefing sheet to prepare for the call, newspapers from the same day) indicates that the White House staff simply [having] swept all documents from the President’s desk and other areas into boxes, where they have resided ever since


We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws. Rather, all indications are that the presence of marked documents at Mara-a-Largo was the result of haphazard records keeping and packing by White House staff and GSA.

The claim is wildly inconsistent with the evidence in the indictment showing how Trump carefully curated these documents over the course of months. That’s the kind of misrepresentation that carries a great deal of personal and professional risk, something that was obvious at the time.

The haste with which Trusty and Rowley abandoned ship, coming shortly after Parlatore’s loud departure, will raise real alarm bells for any attorneys considering the case.

Especially given another detail WaPo doesn’t mention: Lawyers who show up at his table today could get stuck seeing this criminal prosecution through, with far less ability to quit after Trump inevitably fails to disclose other key details in the future. Once a lawyer files a notice of appearance in a criminal case, they often can’t leave until a replacement is found. If, for example, Trump neglected to mention to incoming attorneys that in addition to hoarding documents, he also was disposing of them for personal gain, those attorneys couldn’t quit until a replacement showed up or Trump stopped paying them or Trump fired them.

Finally, there’s the other key thing that WaPo doesn’t mention: Trump needs cleared attorneys, and he should (finally) have the lawyers with Espionage Act experience that might have minimized some of the risk he currently faces.

When courts deal with classified documents like this one will, the judge does not need clearance. (This is a separation of powers issue; members of Congress similarly don’t need clearance.) But the lawyers do. At least one and preferably three of Trump’s lawyers will need to be cleared at the elevated levels the FBI Agents who did the search of Mar-a-Lago had to be read into to even conduct the search. As it was, Trusty was Trump’s only attorney with clearance, and he just split.

Not all lawyers want to go through the trouble of getting clearance. Some — possibly including Chris Kise, was a registered agent for Venezuela in recent years — may not be able to get cleared at that level.

Donald Trump’s trouble finding legal representation is no longer simply the comedy of self-destructiveness it has been for years. Starting today (or shortly thereafter), there will be new obligations and exposures for lawyers representing him.

Trump’s search for a lawyer is not just about finding people who are members of the bar in SDFL. He also needs to find lawyers who are willing to put their security clearance and their reputations at risk on a case where Trump has already been wildly misleading his attorneys.

Update: Without mentioning Kise’s potential unwillingness or inability to try to get cleared, Hugo Lowell describes that Kise will sponsor Todd Blanche and appear just for today. There’s still no hint of Lindsey Halligan’s status — she could also sponsor in Blanche.

After interviewing a slate of potential lawyers at his Trump Doral resort, the former president settled on having Kise appearing as the local counsel admitted to the southern district of Florida as a one-off, with Blanche being sponsored by him to appear pro hac vice, one of the people said.


Blanche is expected to take the lead role in the Mar-a-Lago documents case in addition to leading the team defending Trump against state charges in New York for paying hush money to an adult film star in 2016.

Though Kise is expected to appear alongside Blanche in federal district court in Miami, he has primarily handled civil litigation for Trump since he came off the documents case last October and is not expected to be on the trial team proper, a person familiar with the matter said.

Update: Kise filed what appears to be a permanent notice of appearance, with Todd Blanche filing as well.

Scooter Libby, Whom Trump Pardoned, Serves as Precedent for the CIPA Challenge His Prosecution Presents

If and when former President Trump goes on trial, the Classified Information Procedures Act will govern what information gets submitted at trial and in what form. I wrote about CIPA in conjunction with the Igor Danchenko case here. Former National Security Division prosecutor David Aaron wrote about it the other day.

I’d like to give three examples of what documents that have gone through the CIPA process look like.

First, here’s one of the many CIA cables introduced at Jeffrey Sterling’s trial (here’s a larger set). Sterling was convicted of leaking details about a scheme to use a former Russian nuclear scientist to deal fake blueprints to Iran in an attempt to bollox their nuclear program. The cables would include substitutions for all the organizational details of how CIA works, as well as for the names of the Russian — Merlin — and all the covert CIA officers involved. Entire paragraphs that weren’t crucial to the meaning of the document were redacted.

This particular document was 15 years old when it was used at trial. Most if not all of the Sterling exhibits were classified Secret.

This exhibit includes the parts of Josh Schulte’s prison notebook introduced at trial. This was tied to the allegation that he was launching an Information War from jail, planning to leak further classified information to damage the CIA.

The government was able to substitute the name of a cybersecurity company that had IDed one of the CIA’s hacking tools, so as to avoid confirming that the tool referred to as Bartender in the WikiLeaks release was the malware discussed in the vendor report. But several other things were entirely redacted — such as details of the role that Schulte played at the CIA.

Some of these redactions cover other information — such as his privileged material or stuff that’s particularly inflammatory.

Schulte wrote these notes in 2018; they were first introduced for his 2020 trial, then again for his trial last year.

The case that may present the most analogous challenges to a trial against Trump is the Scooter Libby case, which — like the documents charged against Trump — involved a lot of classified communications to the White House. Here are the exhibits used in his 2nd Grand Jury appearance, at which he lied to cover up the orders Dick Cheney gave him.

Many of these are CIA documents from which the classification markings and entire sentenced were redacted. Like two of the exhibits charged against Trump, these have hand-written notes — sometimes Libby’s, sometimes Cheney’s — which were important to the case. One HUMINT report involving Joe Wilson redacted all the front-matter, including the classification marks (in this case, the notation of Wilson’s name was the important bit).

Even still, the vast majority of the documents introduced at trial were still just classified Secret, not Top Secret with compartments like most of the documents charged against Trump.

The exceptions were often Libby’s notes of Daily Briefings (including PDBs), which he used as part of a gray-mail campaign to try to make the case impossible to try. Though they didn’t have any classification marks (as is true of a document charged against Trump), they were treated as TS/SCI.

Here’s one example of from Libby’s own notes:

The vast majority of this had to be declassified because it was central to the defense Libby was mounting. Just the Foreign Leader and the US official were masked.

The Libby documents are similar to those charged against Trump in another way. These were just 4 years old when presented at trial. If Trump were to go to trial next year, the most recent documents, from 2020, would be four years old.

These cases are all in different circuits than Trump would be prosecuted in. Nevertheless, given the scant number of CIPA cases, it’s possible that the case of Josh Schulte — about whose case was one of the first times Trump shared classified information — and Scooter Libby, whom Trump pardoned, will serve as precedents for his prosecution.