Trump’s Secret Document, with the Post-Administration Pollster Communication, in His Desk Drawer

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In Trump’s stolen document case, the two sides have submitted disputes to Special Master Raymond Dearie. Because some earlier documents remain sealed (because of the hurricane, DOJ says), the most descriptive document included is this one, laying out disputes.

The two sides are fighting over whether Trump’s notes on clippings and briefing books are presidential documents (both are squarely within the Presidential Records Act definition).

The most interesting description in the document pertains to one particular item over which the two sides are fighting: a “compilation” of two classified documents, with three communications that post-date when he left the White House.

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended.

This passage explains something I was wondering from the inventory: how DOJ accounted for the classified documents in the Bates numbers. The answer is that FBI included cover sheets to mark where the classified documents were, so they count in the running Bates count.

This particular document (or “compilation”) was in a desk drawer in Trump’s office. (We know that because the Bates number appears in Item 4, the box of stuff from the desk drawer, in the main inventory. Aside from the Roger Stone clemency, this was the only document outside of the leatherbound box with classified documents in Trump’s office.

The compilation, as found in the desk drawer, includes:

  • A Secret document
  • A Confidential document
  • A communication that post-dates Trump’s administration, from a book author
  • A communication that post-dates Trump’s administration, from a religious leader
  • A communication that post-dates Trump’s administration, from a pollster

The secrets involved here are nowhere near as sensitive as the stuff in Trump’s leatherbound box, which stored the most sensitive documents. Confidential documents like the one in this compilation are often State Department cables.

But in some ways this document is more damning: because it shows he was commingling stolen classified documents with his ongoing affairs after leaving the White House. It gets far closer to showing that Trump was using government secrets for his own personal affairs even after he left the White House.

Head of Republican Party Attempts to Stave Off Multiple Indictments by Announcing Candidacy Early

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In the last week — in the last six months, really — the Trump-whisperers keep doing stories on Donald Trump’s plans to plan to announce he’s running in the 2024 election. Those stories include the claim that he wants to make it harder for DOJ to indict him by announcing he’s running for President in 2024.

Each time attention in the ousted President wanes, he toys with the press again.

Jonathan Swan kicked off the latest such frenzy, promising a November 14 announcement, or maybe not.

Former President Trump’s inner circle is discussing announcing the launch of a 2024 presidential campaign on Nov. 14 — with the official announcement possibly followed by a multi-day series of political events, according to three sources familiar with the sensitive discussions.

Why it matters: Trump and his top advisers have been signaling for weeks that a 2024 announcement is imminent. But those discussions have reached the point that allies are blocking off days in their calendars for the week after the midterms — and preparing to travel.

[snip]

A Trump spokesman declined to comment. The discussions are still fluid and could change depending on Tuesday’s results, especially if the Senate still hangs in the balance and the Georgia race between Herschel Walker and Raphael Warnock goes to a run-off.

Reality check: It’s Trump. So anything could happen — or not. He’s conflicted on the timing and nothing is ever certain. But people who have been close to him for many years are lacing up for the next race.

The Guardian picked it up — noting that Trump’s planning has “intensified” as DOJ has continued the investigation of Trump’s theft of documents and attempted theft of an election.

The plans for the anticipated presidential campaign have intensified as the justice department moves forward with several criminal investigations surrounding Trump, including over potential mishandling of national security documents at his Mar-a-Lago resort, and over the January 6 attack.

Some advisers have told Trump that the timing could be positive since the combined effects of announcing a presidential run and daring the justice department to indict him as a candidate could drown out political messaging by congressional Democrats and the Joe Biden White House.

Then, one of Trump’s sycophants said that he was going to announce last night. After his belligerent rally (at which he attacked Nancy Pelosi), the press reconvened and, rather than talking about the likelihood he’ll incite more violence against the Speaker of the House, talked about his imminent announcement. Maggie Haberman observed, with no irony,

It’s sort of incredible how good he is at getting everybody to follow along with him when he does this game of, I’m thinking of doing it, and — to be clear Don, it’s hard to know sometimes whether it is a game, or whether he is working this out in his head, testing it with 800 different advisors, which is what he was doing.

[snip]

We all know what he’s talking about, we all know what’s coming. I’m personally of the view that it’s more interesting when he actually does something, because we will cover it. He’s running for President, he’s a front-runner in the polls, there’s legitimate reasons to cover it.

[snip]

I think he is extremely smart in terms of media coverage and what the media will chase.

Again, there was no irony in her extended explanation that when Trump actually makes news, they will cover it. None.

Then WaPo’s Mar-a-Lago stenographer teamed up with another Trump scribe to give the full tick-tock of how it didn’t happen. Again: how it did not happen. After a bunch of blather about the election law implications (Trump has committed a container ship’s worth of campaign finance violations in his short political life, but the FEC refuses to act on any of them), in paragraph 15, WaPo talks about making it harder to indict Trump.

Part of Trump’s urgency comes from wanting to get ahead of a potential indictment, the logic being that a declared candidacy makes a prosecution look more political. He is under investigation in two federal probes: one into the efforts to block certification of the 2020 electoral college results and another into the mishandling of classified documents brought to Mar-a-Lago. The Justice Department’s customary freeze on overt steps that could be seen as influencing an election expires when the polls close Tuesday.

Trump also faces an ongoing investigation from a prosecutor in Atlanta into his pressure on Georgia officials to override the state’s popular vote for president in 2020.

Apparently none of these people mind being treated like tools. They’re happy to keep reporting on stories they realize aren’t stories. And why not? Their career depends on leveraging all the access they’ve gotten by reporting on the gilt furnishings at Mar-a-Lago. Their job, until such time as Trump returns to the White House again, is ensuring he stays in the news.

As Maggie said, It’s sort of incredible how good he is at getting people like Maggie to follow along.

Imagine how this infantilization of journalism would change if every major outlet instead reported, factually, that the leader of the Republican Party may announce his candidacy early, in part, in hopes of staving off at least two federal and possibly a Georgia indictments?

Imagine if these people instead reported the news story they’re burying, that the political cycle of the Republican Party is now dictated, in part, by the suspected criminality of the guy whose legal bills the Republican Party has been subsidizing for years? Imagine if every time he played this game, the Trump beat reporters instead described the institutional support in the Republican Party for fraud and political violence?

Judge Raymond Dearie Prepares to Consult with the Archives

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In his last act before today’s election, Special Master Raymond Dearie issued the following order:

I’ve added the new dates to the timeline below.

The December 1 status conference, which has attracted the most attention, is scheduled for such time as Dearie will have had a chance to review the two sides’ disputes. More importantly, it comes after the 11th Circuit will have this issue fully briefed — and could well have decided to stop the entire process. It will also come after most results of the election will have been decided. It will be public, so Trump will have to make his bid to claw back all the documents he stole before the press.

The notice that he will consult NARA is a bit more interesting. As Dearie notes, this was specifically permitted in Judge Aileen Cannon’s order of appointment. At the first status hearing, Dearie said he would alert Trump before making such consultation. This order serves primarily to tell Trump that this is his chance — while his team is writing their 11th Circuit response and drawing up their general document — to weigh in. But nothing will prevent Dearie from making this consultation.

Dearie knows a good deal about what NARA will say, because the Presidential Records Act is clear. Any document Trump saw as President is a Presidential record. Most of Trump’s claims so far are without merit, even ignoring that the documents were seized with a valid warrant and have evidentiary value.

But the order will ensure that Trump makes a three-page argument about how he is above the PRA. And it’ll provide another authority on which Dearie can rely to rule that Trump cannot convert government documents to his personal property by the mere act of stealing them.

Update: Tweaked timeline.

Timeline

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

October 25: Trump rethinks and submits his version of disputes

October 26: Both sides agree to brief general issues; Dearie resolves the remaining privilege issues and accepts briefing dates

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 7: Dearie reveals he will consult with NARA

November 8: Election Day; Principal briefs due to Dearie

November 10, 2022: Trump revised deadline to 11th Circuit; deadline to complain about consultation with NARA

November 12 (10 days after November 2): Both sides provide disputes to Dearie; response briefs to Dearie

November 17: DOJ revised reply to 11th Circuit

December 1: Status conference

December 16: Dearie provides recommendations to Cannon

Boris Epshteyn’s Clearance Problems

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WaPo includes three details in a profile of Boris Epshteyn that I’ve long been pondering, though WaPo doesn’t consider their import.

First, it states more clearly than past whispers have that one of several reasons Epshteyn didn’t get a job in the White House early in Trump’s term was because of “issues [getting] security clearance.”

After the election, Epshteyn became an aide on the transition team and in the White House. But his tenure in was short — he lasted about two months in the White House and was abruptly moved from the transition to be communications director for the inaugural committee. Three Trump advisers, including one person with direct knowledge of the matter, said the White House exit came after issues gaining a security clearance and clashing with other White House aides.

This was a White House that gave Jared Kushner the highest levels of clearance, took a year to get rid of Rob Porter, and similarly took time before removing Johnny McEntee — and then brought McEntee back! Which is to say, the Trump Administration, which didn’t much care who had clearance, identified a clearance problem before the delayed vetting that identified Porter and McEntee as threats. And acted on it.

And yet, this is the guy that Trump — at a time he had almost no grown-ups left in his entourage — put in charge of his response to the stolen documents investigation.

Initially, many of Epshteyn’s calls to Trump were about the 2020 election. But this year, as the controversy over classified documents located at Mar-a-Lago intensified, Trump grew furious with some of his lawyers who were urging him to return the material to the federal government. In spring, according to advisers, Trump gave Epshteyn a larger role in his legal defense team — akin to an in-house counsel.

“He came in and started giving orders,” one person familiar with the matter said.

[snip]

Epshteyn has urged a pugilistic tone in court filings about the documents, has tried to shape public relations around those filings and has called Trump repeatedly throughout the day to talk strategy, other advisers say.

So the guy who even Trump wouldn’t give clearance to is the mastermind of Trump’s strategy to refuse to give back classified documents, some of the most sensitive documents in government.

We know that investigators find Epshteyn’s role of interest from the reporting on Christina Bobb’s interview with the FBI.

Bobb also spoke to investigators about Trump legal adviser Boris Epshteyn, who she said did not help draft the statement but was minimally involved in discussions about the records, according to the sources.

Apparently her testimony described additional contacts she had with Epshteyn.

Bobb testified to the justice department about the 3 June episode on Friday, detailing Corcoran’s role and additional contacts with Trump’s in-house counsel Boris Epshteyn, one of the sources said.

One of those contacts involved Ephsteyn calling her the night before DOJ came to Mar-a-Lago — remember, DOJ was only asked to come the night before — and telling her to show up the next day to play what was, unbeknownst to her at the time, the role of the fall gal.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

So I’m not the only one focusing on Epshteyn’s role in refusing to give documents back. FBI is too.

I point this out a lot, but I’m going to point it out again. 18 USC 793 — one of the crimes Trump is being investigated for — has a conspiracy clause that exposes those who help someone commit a crime under the statute to prosecution themselves.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

By all descriptions, Trump literally brought in Epshteyn precisely because he encouraged Trump to refuse to give the documents back. And the easiest way to charge Trump under 793 would be to charge him just for hoarding the documents from June 3 to August 8, the period after which he had withheld documents in response to a lawful subpoena.

As I also point out incessantly, it would be a lot easier to charge Trump if he made highly classified documents accessible to someone who never was entitled to access them. Bobb once had clearance, and by description at least, never accessed the documents herself. Kash Patel had top clearances — indeed, by his own description, he still has clearance (though he wouldn’t have the need to know). Evan Corcoran at least treated the documents like they were sensitive.

But Epshteyn was, according to this WaPo profile, not hired into the Trump White House because of clearance concerns. And he’s the guy, by all reports, in charge of Trump’s efforts to refuse to give the most sensitive documents back. That doesn’t mean he had these documents in hand. But it does mean he was part of the effort to keep them.

There’s one more puzzle that I keep raising. The WaPo notes what a ton of stories have already: Epshteyn’s phone was seized in September.

Epshteyn recently had his phone seized by federal agents as part of that probe. A federal subpoena that went to more than 100 people across the country this spring — including fake electors and state officials — sought phone and email communications with dozens of people involved in the effort, including Epshteyn.

By all reports, the phone was seized as part of the investigation into Trump’s efforts to steal the 2020 election, rather than his efforts to steal classified documents. Epshteyn, who has a JD, was part of the group of lawyers dreaming up whack theories to justify stealing the election (or dupe Trump followers into an attempted coup), but there’s no indication he was lawyering then. Instead, by description, he was doing what he has always done for Trump: organizing.

But, perhaps for legal reasons, all the profiles of Epshteyn’s role in the stolen documents case describe him as playing a legal role. This WaPo piece describes him serving as “in-house counsel,” for example.

FBI seized Epshteyn’s phone almost two months ago, which presumably included five months of content from the period when he has played this purported legal role in helping Trump refuse to give highly classified documents back. Yet we’ve heard nothing about a privilege fight.

That’s particularly interesting given that — after Bobb’s testimony last month — DOJ may have had probable cause to broaden the scope of any filter on Epshteyn’s phone.

Trump Prosecutions: Making Tea While Awaiting the Post-Election Flood

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One of the only citations any of the filings in the Trump stolen document case make to prior 18 USC 793 prosecutions — one of the crimes under investigation — is this reference to a letter that then-NSA Director Mike Rogers submitted in the Nghia Pho case. It was cited to explain that sometimes the government has to kill sensitive intelligence programs based on the mere possibility they’ve been compromised. The letter also talked about how, when things get compromised by people bringing them home from work, US intelligence partners grow reluctant to share information. The letter was cited even though the letter itself was never docketed online (it was liberated at the time by Josh Gerstein).

In other words, someone knew to reference something really obscure to make a highly inflammatory argument about the ways that Trump has already done real harm to US national security.

One of the prosecutors in the Nghia Pho case was Thomas Windom, the MD-based AUSA brought in to lead the investigation into Trump’s attempts to steal the election.

Obviously, lots of people at DOJ’s National Security Division would also know that case, and so presumably the letter, well. I wrote about the important lessons DOJ seemed to take from the compromises that the Shadow Brokers leak (in part, that it doesn’t matter why someone brought classified documents home, they can do catastrophic damage to national security anyway). But I raise it here because of an assertion WaPo made when they broke the news that David Raskin — who prosecuted a number of terrorism cases that faced really difficult classification complications — was involved in some way in the stolen document case.

Just two weeks ago, Raskin won a guilty plea in a case with parallels to the Trump case — a former FBI analyst in Kansas City who authorities say took more than 300 classified files or documents to her home, including highly sensitive material about al-Qaeda and an associate of Osama bin Laden.

It’s actually unclear how much the case of Kendra Kingsbury resembles Trump’s. She was charged over three years after being fired from the FBI for the theft, charged with just Secret documents and only two counts of 18 USC 793e (supported by ten documents each), which made getting the plea far easier than charging her for any Top Secret documents or charging her for all twenty individually. According to the docket, the case never started the CIPA process. Her change of plea documents have not been docketed (and so don’t explain the five month delay in sentencing).

All of which is to say the Kingsbury prosecution, like the Pho one, avoided a lot of the difficulties a Trump case would pose, particularly given how unlikely it is that Trump would plead guilty. The Ahmed Ghailani, Zacarias Moussaui, and other early SDNY terror cases make far better precedents for the classification problems that a prosecution of Trump would pose.

Besides, as the WaPo reported, that’s not why Raskin was first brought to DC; he was brought there, like dozens of other prosecutors, to help with the flood of cases after January 6.

Justice Department officials initially contacted Raskin to consult on the criminal investigation into the Jan. 6, 2021, assault on the U.S. Capitol. But his role has shifted over time to focus more on the investigation involving the former president’s possession and potential mishandling of classified documents, the people familiar with the matter said.

I raise all that because we’re beginning to get a whole bunch of new tea leaves in the various investigations into Trump.

CNN had a detailed report yesterday, describing that DOJ was prepping for post-election activity — as well as the likelihood that Trump will declare his candidacy for 2024 out of a belief it’ll shield him from indictment.

As it describes, in addition to Raskin, DOJ has brought on a former SDNY lawyer with extensive experience on conspiracy cases, David Rody, as well as added a high-ranking fraud and public corruption prosecutor and an appellate specialist, neither of whom they name.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

CNN reports that DOJ is even considering whether to appoint a special counsel, though the implication seems to be that that would cover ongoing prosecutorial work, in the same way that John Durham was made a special counsel to shield his work from the snooping of outside oversight (which in Durham’s case led him to pursue ill-considered charges unsupported by his investigation).

I expect as other outlets (especially ones with reporters that have more closely covered the January 6 investigation) will add clarity to all this. But given everything that’s happening, with the exception of the move of the public corruption prosecutor, it’s not clear how much these developments stem from resource allocations that have been a constant feature of the post-January 6 investigation, how much DOJ is putting together a prosecution team, or even whether DOJ has deliberately selected prosecutors (aside from the public corruption one) who weren’t at DC USAO when Billy Barr made all sorts of corrupt moves to help protect Trump. There are DC AUSAs on the team; Mary Dorhmann, who is sort of a Jill of All Prosecutorial Trades, is working with Windom even while she served on the team that won one guilty verdict and one hung verdict against Capitol Police cop Michael Riley and other more pedestrian January 6 cases.

All this is happening as DOJ just locked in Kash Patel’s testimony by compelling his testimony with use immunity. WaPo’s report describes that, in addition to asking him about his claims that Trump declassified documents, prosecutors also asked about Trump’s motive for stealing documents (whether classified or not).

National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago,

This story is as useful for its account of former Deputy White House Counsel John Eisenberg’s testimony as for Patel’s; he’s the guy who attempted to bury the Perfect Transcript of Trump’s call with Volodymyr Zelenskyy (remember that witnesses friendly to the subject of an investigation often share their testimony to help others, effectively a way to coordinate stories).

Finally, NYT reported something I’ve been expecting for some time: Trump lawyers are getting fed up with the incompetent advice of Boris Epshteyn, who is not a defense attorney but who claims to be playing a key role in Trump’s defense.

A tirade of a lawsuit that Donald J. Trump filed on Wednesday against one of his chief antagonists, the New York attorney general, was hotly opposed by several of his longstanding legal advisers, who attempted an intervention hours before it was submitted to a court.

Those opposed to the suit told the Florida attorneys who drafted it that it was frivolous and would fail, according to people with knowledge of the matter. The loudest objection came from the general counsel of Mr. Trump’s real estate business, who warned that the Floridians might be committing malpractice.

Nonetheless, the suit was filed.

[snip]

The new 41-page lawsuit against Ms. James was filed in Palm Beach by Timothy W. Weber, Jeremy D. Bailie and R. Quincy Bird, members of a St. Petersburg-based law firm — and was championed by Boris Epshteyn, an in-house counsel for the former president who has become one of his most trusted advisers.

[snip]

Unable to persuade the Florida lawyers to stand down Wednesday, the Trump Organization’s general counsel, Alan Garten, then took aim at Mr. Epshteyn, blaming him in an email to Mr. Epshteyn and other lawyers for the filing of the suit, said the people with knowledge of the discussion. Frustrations with Mr. Epshteyn among some of Mr. Trump’s other aides and representatives have been brewing for months and boiled over with the new legal action.

Another lawyer for Mr. Trump, Christopher M. Kise, a former Florida solicitor general, also objected to the filing of the lawsuit on Wednesday. And Mr. Trump’s legal team in New York expressed concern that the Florida lawsuit would undermine their defense in Ms. James’s case, costing them credibility with both the New York attorney general’s office and the judge overseeing the case, the people with knowledge of the matter said.

It’s fairly astonishing that someone as notoriously paranoid as Trump has not yet begun to wonder whether Epshteyn has Trump’s own interests in mind. Certainly I’ve questioned it.

But pissing off Alan Garten, especially — really one of the only stable legal presences in Trump’s life over the last six years — will not bode well for Trump going forward.

None of these details (not even the shift of the public corruption prosecutor, which I think is one of the more important developments) tell us where a Trump prosecution will start to move next week, after the election. Given all the factors — especially the resource allocations on account of the January 6 investigation and conflicts that may have been created by Trump’s past corruption — it will be impossible for anyone to understand where this is headed for some time.

But the tea leaves have finally convinced the TV lawyers that it is headed, somewhere.

DOJ Rethinks — but in a Few Areas, Expands — Access to Media Content

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In a story on the new media guidelines DOJ rolled out yesterday, Charlie Savage reveals what representatives of the press think they got in the new guidelines, in addition to a formal codification of broader restrictions on the use of legal process to find real journalists’ sources:

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The language in question appears to cover things like encrypted dropboxes, something that journalists liked to compare (inaptly) to the charge against Julian Assange of attempting to hack a password for Chelsea Manning. Thus far, multiple criminal prosecutions show that dropboxes have not thwarted DOJ from prosecuting those who submitted documents into them.

Journalism includes reporting on classified information

A more important change is that the guidelines explicitly include reporting on classified information in its definition of newsgathering.

Newsgathering includes the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

Savage describes that “is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.” I’m not sure that’s right: 18 USC 793 and 798 were (along with Child Sexual Abuse Materials) included in the exceptions to 42 USC 2000aa, which I think is unchanged by this regulation.

What has been removed from the prior version (in addition to the inclusion of classified information in the definition of newsgathering) is an exception permitting the use of legal process in investigations of classified leaks. This language has been removed.

In investigations or prosecutions of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation or prosecution, the Attorney General may authorize members of the Department, in such investigations, to issue subpoenas to members of the news media.

In other words, it wasn’t that there was an exception for the Espionage Act. Rather, there was language permitting searches in leak investigations that might be (and frequently have been in recent years) charged under the Espionage Act. That exception has been removed, and reporting on classified information has been explicitly included in the definition of newsgathering.

As we’ll see below, the regulation still authorizes searches in cases of suspected agents of a foreign power.

Expanded protection and a prohibition with exceptions instead of permission for exceptions

As Savage notes, however, the topline change is both a restructuring in the ways that a journalist’s sources might be accessed and the types of legal process covered. Whereas previously, the language on accessing source information included a presumption of access with a bunch of limits on use, as laid out in the prior regulation …

The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. In particular, subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. [my emphasis]

The new regulation outright prohibits compulsory legal process except in certain exceptions.

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope ofnewsgathering. Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(l) through (3).

In other words, these regulations importantly flip the presumption from one that permits the access of journalist records in certain situations to one that prohibits it except according to an enumerated exception.

And this revised regulation has broader language prohibiting the use of legal process. It now includes interception orders (like that used against NBC journalists who were sourced by Henry Kyle Frese), MLAT orders (like the Mexican one that targeted Zach Whittaker in 2020), and orders served on obscure third party providers of enterprise email hosting (like orders used against the WaPo and NYT in recent years).

“Compulsory legal process” consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests-regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.

In other words, the revision closes loopholes used under the Trump Administration.

What journalism isn’t

More generally, DOJ has reconceptualized the regulation though the use of exceptions.

Some of these are exceptions that permit the compelled process of a journalist, the most interesting new one of which entails evidentiary authentication with DAAG authorization.

(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;

This may be a response to the need to get journalists to validate videos they took on January 6.

DOJ has slightly reworked an existing section that at least used to be tailored to the definition covered by FISA (and FISA surveillance of journalists is in no way excluded from these regulations). It still includes the same language excepting an agent of a foreign power or someone who aids or abets one.

A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

In at least one of the reworked categories, the regulations represent an (entirely reasonable) expansion. The regulation includes this definition of terrorist activity — adding 18 USC 2339B, C, and D — which not only aren’t tied to State’s Foreign Terrorist Organization designations, but also includes (with C) funding for what could be domestic terrorism.

Committing or attempting to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or

Seamus Hughes pointed me to this case in which three white supremacists were prosecuted under 18 USC 2339A as an example of how this might apply to domestic terrorists. The new regulations add a review by the National Security Division head on these categories, but since John Demers approved the data collection on real journalists under the Trump Administration, that’s unlikely to be a very useful protection.

Another new exception — this time not associated with newsgathering — is for an investigation targeting a journalist’s non-journalist housemate or similar who is the subject of an investigation.

To obtain information or records of a non-member of the news media, when the nonmember is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;

But the biggest change is that, in addition to that tweaked list of national security exceptions, DOJ added a bunch of more common crimes that journalism doesn’t include:

(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

The distinctions are not entirely clearcut though. Of most concern, what distinguishes a journalist reporting on tech vulnerabilities and a hacker is that “requisite criminal intent,” and one often determines that by accessing content.

Incorporation of cases against recent not-journalism cases

Importantly, however, these crimes include a number of the cases that got journalists all hot and bothered but which, under the new rules, are very clearcut (Savage’s professed uncertainty about Project Veritas notwithstanding).

DOJ’s approach to Julian Assange didn’t begin change until he helped Edward Snowden flee to Russia and Assange wasn’t charged — initially, with attempting to help Chelsea Manning crack a password, itself included in one of the distinguishing crimes — until after he had aided and abetted Russia in a hack-and-leak campaign, one of the national security exceptions. The Espionage charges against Assange were filed after Russia attempted to exfiltrate Assange at the end of 2017. Any superseding indictment of Assange in the future would likely include an extortion claim and an aid-and-abet claim of Josh Schulte’s hacking of the CIA, for which Assange clearly expressed the criminal intent.

With regards to Project Veritas, the very first subpoena targeting their office manager (one obtained while Bill Barr was still Attorney General) listed 18 USC 873, blackmail — a kind of extortion — among the crimes under investigation, and their own defenses raised the possibility of extortion. Plus, Robert Kurlander’s statement of offense described trying to raise the price Project Veritas would pay for Ashley Biden’s diary because it was “literally a stolen diary.” So these new guidelines, applied retroactively, make the Project Veritas search an obvious exception.

The distinction between certain crimes and journalism would encompass three other, still undisclosed investigations into journalists last year described in DOJ’s report on legal process. The first was into insider trading:

In connection with an investigation of securities fraud and wire fraud relating to insider trading activities, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the person, personal effects, and cellular telephones of a member of the news media who was the subject of the insider trading investigation. Investigators had established probable cause that the member of the news media had participated in the insider trading activities with three coconspirators and was in communication with the primary target of the investigation, a former U.S. Congressperson; and that the information seized pursuant to the search warrant would lead to further evidence. Investigators had pursued multiple avenues to obtain the evidence, without success, and had exhausted all investigative leads. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the member of the news media’s newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the Privacy Protection Act (PPA), see 28 C.F.R. § 50.10(d)(4).

The second was into fraud and money laundering.

In connection with a fraud and money laundering investigation involving employees of a news media entity, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to search stored electronic content of email accounts maintained by a member of the news media and its affiliate entity; and to issue a subpoena to a thirdparty service provider for information relating to accounts maintained by a member of the news media. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the entities’ and employees’ newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

A third investigation last year into stalking that included the use of spyware and hacking.

In connection with an investigation of a member of the news media for stalking offenses, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the email account of the member of the news media. Investigators had established probable cause that the member of the news media had engaged in harassment and stalking of multiple people, including through the installation and use of spyware and the hacking of social media accounts, as well as employing several means to damage the reputations of the parties the member of the news media was harassing and stalking. The U.S. Attorney’s Office established evidence that the information seized pursuant to the search warrant would lead to evidence regarding the member of the news media’s criminal conduct, which was wholly outside the scope of his newsgathering activities. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant application pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

In other words, DOJ has used the lessons from the Trump DOJ’s hunt for journalistic sources, Julian Assange, Project Veritas, and three other undisclosed investigations (and who knows? Perhaps also to media outlets run by Neo-Nazis to help fundraise) to change how they conceive of journalism. All of those are reasonable exceptions from journalism.

There are a bunch of potential loopholes. If DOJ wants a journalist’s content, there are a great many ways they can still get it and because those exceptions would permit sustained secrecy about the searches might never be disclosed.

But these regulations, at a minimum, have established that reporting on classified information is part of journalism and have eliminated a lot of the loopholes to surveillance used to target journalists during the Trump Administration.

Kash Patel’s Immunized Testimony Is about Premeditation, Not (Just) about Declassification

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Thankfully, the NYT has written a second story reporting that DOJ is considering asking Beryl Howell to give Kash Patel use immunity in the Trump stolen document investigation, because I was about to go back and write about the first one.

Earlier this month, the prosecutors summoned Mr. Patel to testify before a grand jury in Washington hearing evidence about whether Mr. Trump had mishandled classified documents and obstructed justice when he refused to return the records to the government.

Mr. Patel repeatedly invoked his Fifth Amendment right against self-incrimination. In response, prosecutors asked a top federal judge in Washington to compel Mr. Patel to answer questions — a move Mr. Patel’s lawyers have strenuously opposed. The question now is whether the Justice Department will grant him immunity in order to secure his testimony.

The first was newsworthy — as I laid out in this thread and as Jay Kuo wrote up in this piece — for its silence about the fact that Stanley Woodward is the defense attorney for both people described in the story (the other was Walt Nauta, the valet who moved documents around before Evan Corcoran did a search of what was left).

Woodward represents a slew of key defendants who might serve as firewalls in a larger and much more damning crime: in addition to Patel and Nauta, Dan Scavino, Peter Navarro, Oath Keeper Kelly Meggs (who has ties to Roger Stone), and the guy who kicked off the entire riot, Ryan Samsel. Woodward’s a decent defense attorney (not least because, unlike many Trump attorneys, he is a defense attorney), but he’s got a conspiracy streak that should be accounted for when reporting on his representation of events.

Both NYT stories portray Patel’s unnamed attorneys as resisting the move to immunize him.

In response, prosecutors asked a top federal judge in Washington to force Mr. Patel to testify — a move fought by Mr. Patel’s lawyers, who are concerned the government wants to use Mr. Patel’s own statements to incriminate him. [first]

[snip]

The push for the testimony has also created friction between the Justice Department and Mr. Patel’s lawyers, who have argued that the department could use his statements against him if they build out a larger obstruction investigation. [second]

This is, frankly, silly reporting. Stanley Woodward doesn’t get a choice in whether Patel is immunized. That’s the point: You immunize a witness to compel his testimony. And defense attorneys and prosecutors are adversarial; there is supposed to be “friction” between them. That’s the nature of an adversarial system.

Including these claims in the story without explaining the import of compelled testimony does a disservice to readers and makes the story far more of vehicle for obstruction.

Best as I can tell (it’s hard to tell, because the part of the earlier story addressing immunity was so muddled), this version of the story adds no new news except for the self-congratulatory detail that Trump only learned that Kash took the Fifth from the earlier story.

Mr. Trump first learned that Mr. Patel had invoked the Fifth Amendment when The New York Times reported it on Monday, according to person briefed on the matter.

This is not actually interesting unless you’re a NYT reporter or someone like Stanley Woodward wanting to make clear he’s not directly consulting on these defense issues in advance with Trump himself, which is different than consulting with someone like Boris Epshteyn, who (unlike Woodward) is not a defense attorney but nevertheless is purportedly in charge of Trump’s defense. It just so happens that these anonymously sourced stories provide all the details that Trump would need and Woodward would want public to make sure he still got paid. (Not addressed, however, is a reference in the earlier story boasting about the treatment of the video surveillance that would have led to changed testimony from Nauta.)

Sadly, this story utterly misses several key points about the import of Kash Patel’s testimony.

First, consider Kash’s potential responses if Beryl Howell does grant him use immunity. Either he testifies truthfully, he lies, or he still refuses to testify and gets jailed for contempt. This is the real tension that Woodward is getting at — what should Kash do if he is immunized, as if the story is begging for directions from those paying the bills. While Trump was still President, the answer was easy: lie and await a pardon. It’s more complicated when you’re firewalling someone who may not return to the presidency anytime soon.

More importantly, consider possible reasons why Kash might have invoked the Fifth, if it was anything more than an attempt to avoid testifying in the absence of Executive Privilege claims.

NYT — which has spread the cover story that the only Russian documents Trump attempted to disseminate as he left office were the unclassified Strzok-Page texts (ABC had a detailed story about what really happened) — says that this is all about whether Kash’s claims that Trump declassified the documents he stole are true.

Federal prosecutors investigating former President Donald J. Trump’s handling of national security documents want to question one of his confidants about a claim that Mr. Trump had declassified national security documents he took when he left the White House.

[snip]

But the Justice Department’s interest in questioning Mr. Patel about the claim shows that prosecutors see it as potentially relevant to their investigation into the handling of the documents and whether Mr. Trump or his aides obstructed the government’s efforts to reclaim them.

If all Kash was asked about was whether — at a time when he was supposed to be running the Pentagon but instead happened to be at the White House at the precise moment Trump waved a magic wand to mass declassify documents he intended to steal — Trump had really declassified those documents, there’d be little cause to invoke the Fifth and he would have invoked Executive Privilege instead. If Trump didn’t declassify the documents, Kash would be admitting to lying in Breitbart, which is not only not a crime, but it is generally assumed of columns that appear in Breitbart.

If Trump actually did declassify these documents with Kash as a witness, Kash has no legal exposure whatsoever.

So (again assuming Kash invoked the Fifth because he believed he had real exposure himself, which may not be the case), what might be those possible areas of exposure? Some possibilities include [these are hypotheticals]:

  • At some time before January 20, 2021, Kash and Trump coordinated to select a group of documents — including the Russian binder, but also (per the Breitbart piece quoted in the search affidavit) the Ukraine quid pro quo and other topics of national security import — that Trump would steal when he left; this is consistent with a great deal of what Kash has said publicly.
  • The Russian binder did circulate and because the declassification process was never finalized before Trump left office — and appears not to have been finalized at all — any classified documents in it would expose the person circulating the binder to Espionage Act charges himself. If an unredacted Carter Page application were included, it would expose the person to FISA violations as well, as I noted in August.
  • Trump and Kash both know that he never declassified the documents he stole, but leading up to May 5 — at a time when Trump was trying to stave off further investigation and even before FBI reviewed the boxes returned in January — they coordinated the false Breitbart column and the false claims about declassification since.
  • The decision to make Kash and John Solomon Trump’s representatives to the Archives was an effort to assess what was stolen.
  • Kash was in some way part of the curating process of choosing which stolen classified documents to retain after 2021, effectively a continuation of the role he started to play in 2017, for which he was rewarded handsomely.

Again, all of these are strictly hypothetical! But they more closely match the known facts than the cover story that Trump was only disseminating unclassified Strzok texts.

And for all the NYT’s focus on obstruction — goddamnit, Mike Schmidt, will you never tire of reporting that Trump is primarily exposed to obstruction?!?! — many of these actions would expose Patel not just to obstruction, but to charges under the Espionage Act himself (and, as I noted, potentially FISA).

I described on August 12 — four days after the search — that if Trump asked Kash or John Solomon to access the stolen classified documents at Mar-a-Lago, then it would expand Trump’s exposure under the Espionage Act.

If Trump and Kash worked together while still in the White House to select a bunch of classified documents to steal and further disseminate, it might expose one or both to 793d.

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

If, before DOJ started making the more formalized requests for Trump to return the stolen documents (and so at a time when Trump might plausibly claim he was still sorting through his documents), Kash disseminated them forward from Mar-a-Lago, it might expose one or both to 793f.

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

If Kash coordinated with Trump to try to create post hoc justification to keep the stolen classified documents — including with the Breitbart column and his subsequent claims about declassification — it might expose both to 793g.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Again, this post involves a lot of hypotheses (though with the advantage that, unlike the NYT, I’m not under the illusion that the only Russian documents Trump planned to disseminate were unclassified Strzok texts). But this is an absolutely critical thought experiment (especially when trying to assess venue, as Brandon Van Grack did here) because the question before DOJ is not, and never was, solely whether a former President refused to return documents he might implausibly claim to have declassified.

The question has always been about whether Trump had a premeditated plan to steal classified documents, and what Trump did with the classified documents after he stole them. Every single one of Kash’s claims to be privy to a purported declassification are also claims about premeditation and dissemination to people not authorized to have classified documents.

And that’s why he’d have a credible Fifth Amendment claim.

It would be unprecedented to charge a former President with violating 18 USC 793e for refusing to return classified documents — though I think DOJ has a clear case (with the South Florida venue that Van Grack explains in his piece) for documents retained between June 3 and August 8.

But if DOJ had evidence that Trump had a premeditated plan to steal classified documents and disseminate them to frothers — some with suspect associates — it would expand his exposure into crimes that are not close calls at all.

And that’s why the decision whether to immunize Kash is not the hard trade-off that people are making it out to be. DOJ may or may not be able to mount a case against Kash himself. But if he were a key witness in a 793g case, it would make the gravity of crimes charged under the Espionage Act far more clearcut, even if charged in Florida. It would make any case against Trump far easier to prove.

Kash Patel is not primarily a witness about whether Trump declassified the documents he stole. He’s a witness about whether Trump had a premeditated plan to steal classified documents and disseminate them to people not entitled to have them. And that’s why the serial reports about DOJ seeking to immunize Kash’s testimony are interesting.

In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

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Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

 

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

Jim Trusty Tells Hand-Picked Special Master Raymond Dearie to Fuck Off

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At the beginning of a status hearing before Raymond Dearie the other day, Jim Trusty suggested they had until November 12 to submit their designations on privilege for the remaining 21,792 pages of documents. DOJ attorney Julie Edelstein corrected him, and said their deadline was November 2.

Per Aileen Cannon’s order throwing out much of Dearie’s proposed work plan and extending deadlines, that appears to be right. That order set that deadline for 21 days after DOJ issued a notice of completion to indicate Trump had the documents with a spreadsheet to track everything.

No later than twenty-one (21) calendar days after the receipt of Defendant’s Notice of Completion, Plaintiff shall provide the Special Master and Defendant with one comprehensive, annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege;

c. Executive Privilege;

d. Presidential Record within the meaning of the Presidential Records Act; and

e. Personal record within the meaning of the Presidential Records Act.

Plaintiff’s designations shall be on a document-by-document basis.

On paper, at least, it seems that Edelstein is correct. DOJ submitted their notice of completion on October 12 (two days before Cannon’s deadline). The deadlines that trigger off that should be November 2 (for Trump to submit designations) and November 12 (to submit disputes to Dearie).

It’s worth keeping that deadline dispute in mind as you consider what Jim Trusty did last night.

First, DOJ submitted a letter purporting to summarize the disputes between the two sides about the privilege determinations for fifteen documents that Dearie must issue a ruling on. I’ll come back to those in a follow-up; the important detail is the document shows Trump making ridiculous claims. As a reminder, this page has links to most documents from the stolen document case and my posts.

Hours later, Jim Trusty filed a letter saying that Trump’s team believed both sides were going to file a joint document, and because DOJ hadn’t and because Trump doesn’t agree with some of DOJ’s designations, they’re not going to file their disputed items until October 24, Monday.

As noted in the Defendant’s October 20, 2022 submission (ECF 150) the parties met and conferred regarding Filter A documents on October 19, 2022. Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions. This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.

Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents.

In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022.

Since Aileen Cannon decided to override Dearie and start changing deadlines randomly and unilaterally, it has been unclear what the deadlines or workplan will be on this case — the single certain thing is that, in the end, Trump will complain about Dearie’s designations and Cannon will review them de novo. Both Cannon’s original order and her Calvinball order overriding Dearie set initial deadlines for privileged determinations, but have no follow-up deadlines.

But in an October 7 order, Dearie did set deadlines. Trump’s 5-day deadline to complain about any orders has passed, and unless the Cannon Calvinball has gotten really tricksy, I’m not aware of anything overriding that deadline.

And that deadline was yesterday.

Trusty had enough time to review the DOJ filing and disagree and at least note about which items there’s a disagreement. There are only 15 documents here!!

But instead, Trump responded to the public docketing of his absurd claims by spending the time to write up a letter announcing he was taking his toys and going home for the weekend to pout. The best way to understand this action is that Trump simply doesn’t believe Judge Dearie has any authority to require actions of him.

And so Dearie could take the DOJ report and issues rulings, which might result in a report that came out early enough before the election for Cannon to have to overrule them before it. But if that happens, Trump will simply say he wasn’t part of that process.

Update: Dearie has noted that Trump’s response is untimely and given him until end of business today.

Dates

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order; Notice of Completion submitted

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

November 12 (10 days after notice of complete): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

“Sometimes We Fall in Love with Our Sources”

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Fifteen years ago, during the Scooter Libby trial, I had lunch with James Gordon Meek, a national security reporter then at NY Daily News. I remember I was bitching that journalists at the trial continued to treat Robert Novak as credible even though his testimony about what led to his exposure of Valerie Plame’s identity had changed four times by that point. He explained, very matter of factly, that “sometimes we fall in love with our sources,” particularly intelligence sources.

I had little contact with him after that until 2018 or 2019, when we spoke several times about the Russian investigation.

Meek’s comment has, obviously, stuck with me over the years. All the more so as I read Rolling Stone’s story describing how — over the course of ten minutes on April 27 — Meek’s home had been searched, and we’re only hearing about it almost six months later. There’s even a version of what Meek told me years ago in the story: “To his detractors within ABC, Meek was something of a “military fanboy.'” Meek got a lot of stories by being very close to his military sources.

The story has, predictably, generated a lot of concern about Meek’s treatment at the hands of Merrick Garland’s DOJ.

But there are details in the story that offer at least part of an explanation.

First, his attorney is quoted, complaining that this story is out there.

“Mr. Meek is unaware of what allegations anonymous sources are making about his possession of classified documents,” his lawyer, Eugene Gorokhov, said in a statement. “If such documents exist, as claimed, this would be within the scope of his long career as an investigative journalist covering government wrongdoing. The allegations in your inquiry are troubling for a different reason: they appear to come from a source inside the government. It is highly inappropriate, and illegal, for individuals in the government to leak information about an ongoing investigation. We hope that the DOJ [Department of Justice] promptly investigates the source of this leak.”

Meek’s lawyer, at least, is not trying to generate the kind of media attention that would immediately raise questions about his treatment as a journalist the way — say — Project Veritas’ lawyers did when James O’Keefe and others were searched. If he had concerns about Meek’s treatment or the propriety of the search, I highly doubt he would respond this way, by complaining that the search was made public.

Details in the story suggest Meek responded to the search differently than Project Veritas in other ways, too. He appears to have moved.

In the raid’s aftermath, Meek has made himself scarce. None of his Siena Park neighbors with whom Rolling Stone spoke have seen him since, with his apartment appearing to be vacant.

He withdrew from a project recounting the rescue of former US intelligence partners in Afghanistan around the time of the search.

“He contacted me in the spring, and was really distraught, and told me that he had some serious personal issues going on and that he needed to withdraw from the project,” Mann tells Rolling Stone. “As a guy who’s a combat veteran who has seen that kind of strain — I don’t know what it was — I honored it. And he went on his way, and I continued on the project.”

Mann says he hasn’t heard from Meek since.

And — first — his producer on a documentary about four Special Forces guys killed in Niger by ISIS, and then he himself resigned from ABC “abruptly.”

“He fell off the face of the Earth,” says one. “And people asked, but no one knew the answer.”

An ABC representative tells Rolling Stone, “He resigned very abruptly and hasn’t worked for us for months.”

[snip]

Adding intrigue, sources say another ABC News investigative journalist, Brian Epstein, also abruptly and inexplicably left the network a few months before Meek. Epstein also worked as a director, producer, and cinematographer on 3212 Un-Redacted (Hulu stopped Emmy campaigning after Meek apparently went AWOL, and the documentary ultimately failed to receive a nomination). Epstein told Rolling Stone, “I’m not commenting on this story,” before abruptly hanging up. 

Short of ABC turning the two reporters in themselves, resigning while under legal investigation would be the last thing you’d do, in part for the legal protection a big media outlet can offer.

All of which suggests there’s something about this story — or perhaps follow-ups — that led Meek and Epstein to withdraw.

As alluded to above, the story claims — citing “sources familiar” — that FBI found classified information on a laptop.

Sources familiar with the matter say federal agents allegedly found classified information on Meek’s laptop during their raid. One investigative journalist who worked with Meek says it would be highly unusual for a reporter or producer to keep any classified information on a computer.

I’m not sure I buy that it’s unusual for reporters to keep classified information on a computer — a laptop, after all, can be air-gapped, and fully encrypted information stored in digital form can be safer than papers lying around. But if it wasn’t air-gapped, it could make the classified information available, even unwittingly, to hostile entities. In the wake of the Nghia Pho compromise, the government has focused renewed attention on such possible modes of compromise. If Meek had obtained classified information in the course of reporting and the government believed the real goal — one he may not have understood — was its compromise, you might see something like this.

Meek and his attorney have, for whatever reason, chosen not to make a public case out of this search. But “sources familiar” just did so whether Meek wanted it to happen or not.

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