Judge Aileen Cannon Risked the Safety of the Country to Protect Two Probably Public Letters

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There’s a detail from yesterday’s Raymond Dearie hearing that I’ve seen no other journalist cover: that filter team attorney Anthony Lacosta described sending a public link of this document to Trump attorney Jim Trusty on September 30.

If it’ll help the parties, I sent email to Trusty on 9/30 that sent a copy of letter at issue. I sent link, they appear to be the same, all that’s missing is signature.

We know from the privilege inventory that was accidentally docketed that it’s an 11-page letter from then Trump attorney Marc Kasowitz to Robert Mueller.

Lacosta mentioned that the letter had been published. That must mean the letter is this one, published by the NYT on June 2,2018 (here’s the text for those who can’t access the NYT).

As I noted weeks ago, this document from the same inventory also is almost certainly a letter released publicly years ago, too.

Harold Bornstein, who was then Trump’s personal physician, released a one-page letter dated September 13, 2016 as part of Trump’s campaign for President.

In other words, two of the documents that Judge Aileen Cannon pointed to in order to claim that Trump was suffering a grave harm that justified enjoining an ongoing criminal investigation into some of the most sensitive documents in US government have probably been public for years. Indeed, the Bornstein letter was released by Trump himself.

Here’s how the government described the harm Judge Cannon caused to the United States by enjoining DOJ’s access to these documents in their appeal to the 11th Circuit.

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, on May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11. In response, Plaintiff’s counsel produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification,” DE.48-1:16. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government 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. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them. [my emphasis]

The government needs to figure out whether Trump’s negligence caused any compromise of highly sensitive documents.

But Judge Cannon decided that letters Trump released to impress voters are more important.

Judge Dearie Confirms Trump Has Claimed Executive Privilege Over a Personal Document

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Raymond Dearie just held his second public status conference in the Trump Special Master proceeding. He had the government explain why, after Trump’s team claimed there were 200,000 pages to review, the total ended up being 22,000.

AUSA Steve Morrison explained that the estimate came from a vendor, which developed its own estimate based off a standard business letter length of just under 20 pages per document, times the 11,000 documents. He noted that the 32 boxes that had been seized could not possibly have fit that much; he gave 82,000 as the max amount.

Mostly, it seemed, Dearie called the conference to express frustration with the paucity of the descriptions behind the designations so far, and concern that he’ll get 11,000 versions of that in November. Several times, he said he wanted an idea of how many disputes to expect on November 12, when he gets the items about which there remains a dispute, so he can at least figure out whether he needs more staff.

There were some specific questions, though.

For example, he asked why the two sides hadn’t been able to decide whether the government already had a copy of what is described as Item 5 in this accidentally docketed inventory, a letter from Marc Kasowitz to Robert Mueller. After some squabbling, Dearie complained, “I have no patience for either one of you on this point. If it’s in Department of Justice possession, either produce it or make a representation it’s in DOJ possession.” Filter Counsel Anthony Lacosta described that he sent Jim Trusty a link on September 30 showing a publicly produced version of the letter that seems to be an exact copy of the one seized. That means it must be this letter published by the NYT on June 2, 2018 (the second one on the page).

Dearie also noted that there was nothing in the four pardon packages included that indicated any legal advice had been given — which suggests Trump is claiming a privilege that should not stand over those as well.

Perhaps most importantly, Dearie indicated that there’s one letter of the documents discussed so far that Trump has claimed is a personal document but over which he has claimed Executive Privilege.

I see a doc for which claim there’s a personal doc, and also a claim that Executive Privilege covers it. Unless I’m wrong, there’s a certain incongruity there. Perhaps plaintiff’s counsel will address that in submission.

That is, Trump is doing precisely what the law doesn’t envision.

And among other things, Dearie is making that clear as the challenge to Judge Cannon’s intervention proceeds at the 11th Circuit.

Udpdate: Corrected documents/pages error in first paragraph.

Update: SCOTUS Will Not Intervene [Yet] In Trump’s Stolen Documents Claim

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Update, 10/13: The Supreme Court just declined to intervene in Trump’s stolen document case. That means that the Special Master review will, unless something entirely unforeseen occurs, be limited to documents without classified markings.

I’m republishing because I think this post best explains the damage that might otherwise have been risked.

I laid out what SCOTUS might review later in this process here.

Given developments in the last two days, here’s how the various schedules pertaining to Trump’s stolen document case intersect (I’ve included the original 11th Circuit deadlines to show the effect of yesterday’s ruling to expedite the merits appeal):

October 5: Finalize a vendor

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

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, 2022: DOJ revised deadline to 11th Circuit

October 19: Original deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

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

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

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

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ 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)

As I understand it, one way the 11th Circuit appeal may be expedited is that the panel will be picked, secretly, from the start, giving it a chance to review filings as they come in. And they can schedule an oral argument, if necessary, for almost immediately after the reply brief comes in. It will be a new panel, so the odds are at least one other Trump appointee will get a chance to weigh in, in addition to the two who already ruled against Trump.

The SCOTUS appeal, remember, is for a limited issue: Whether to restore classified records to the matters before Special Master Raymond Dearie and, ultimately, before Judge Aileen Cannon.

Particularly given that even Clarence Thomas, in setting DOJ’s deadline a week out, isn’t treating Trump’s appeal as much of an emergency, I think the most likely scenario is that SCOTUS declines to consider Trump’s appeal. It’s the easiest thing to do, dictated by precedent if SCOTUS feels obliged to follow it, and made more likely by the fact that Cannon has altered the scope of her order. As the timeline above shows, if that were to happen, it might well happen before DOJ’s deadline for its appeal on the merits.

I think the most likely scenario is that the 11th Circuit sustains the opinion that three judges on the Circuit already came to: that Cannon abused her authority to even take the appeal. DOJ has more information about Cannon’s abuses they could choose to include in their brief, such as that Judge Cannon halted a national security investigation based in part on a document Trump made public six years ago. Though by the time Trump files his response, he will have been able to review all the documents seized from his beach resort (barring the classified documents, unless SCOTUS quickly reverses the Circuit). So who knows what kind of imagined injury he’ll invent after seeing all the documents? The Circuit may act quickly enough to rule before Dearie issues his report to Judge Cannon, which is the next most likely time for her to engage in more fuckery. Because of her past fuckery, it doesn’t even appear that Dearie will issue a report on the potentially privileged materials until then either.

In other words, the best scenario — and a not unlikely one — is that SCOTUS first declines to review Trump’s appeal, and then the 11th Circuit rules that Judge Cannon improperly intervened, all of which may well happen before anything else overt happens in Judge Cannon’s docket, though Trump would have the ability to and likely would introduce details learned from his review before the 11th.

But we don’t know.

As I keep saying, anyone who tells you they know how this is going to work out is selling you assurances that can no longer be offered with this 11th Circuit and with this Supreme Court.

One thing many commentators are claiming that bears correction, however, is the claim the only damage the Supreme Court review can do is delay: that even if SCOTUS permits Dearie and Cannon to review the documents with classification markings, it could do no more damage to the DOJ investigation. That is obviously false.

Assume for the moment that SCOTUS does take Trump’s appeal and does rule that Cannon can include classified documents in her review (to be sure, I think that unlikely). And assume for the moment that the 11th Circuit reverses itself and finds that Cannon acted properly by intervening in a national security investigation to protect Trump’s interest in a letter he himself made public six years ago. Assume, too, that the 11th Circuit leaves in place Cannon’s decision to treat this as a “hybrid” motion, yoking the Special Master process to a Rule 41(g) motion.

In that scenario, Dearie would issue his report, including regarding classified records, on December 16. He likely would uphold all DOJ’s assertions regarding classification, because he understands how classification at least used to work, before this case: that the current Executive gets unlimited say over what is classified (which is different than what is National Defense Information). Trump would then object to Dearie’s report (he is guaranteed to when and if Dearie ever makes one). Cannon would then review the report de novo, as she did with Dearie’s work plan. And she would write an opinion that either affirmed Trump on one or two minor documents, or said, effectively, that she agrees with Dearie’s classification designations, but that she believes Trump’s logic — that he declassified these documents by shipping them to Mar-a-Lago, and that’s why he refused to give them back — is reasonable.

There are other things Cannon could do to fuck up the prosecution, for example by deeming the 33 pages of correspondence with NARA included in the Category A documents seized from Mar-a-Lago, Trump’s personal possessions under rule 41(g) and returning them to him, thereby depriving DOJ of evidence that directly pertains to the crimes under investigation.

But the way in which Cannon could most fuck up any charges for 18 USC 793e (though not obstruction) would by by issuing an opinion that — even if she agreed all the documents were classified — nevertheless deemed Trump’s bullshit story, that he believed he had declassified these documents by packing them in a box and shipping them to his beach resort, reasonable.

Charging a former President under the Espionage Act presents unique challenges, but I think they could be overcome given what we know has transpired. We’re even likely to learn that Trump lied to the lawyers who knew better than to ship classified documents to his beach resort, and those lawyers will make compelling witnesses against Trump.

But if Cannon gets the opportunity to review Trump’s bullshit declassification story and deems it reasonable — even though she has virtually no relevant experience from which to judge that issue, even though she’s just one judge big-footing on a lawful warrant, even though such an opinion would likely be overturned on appeal — it might make charging Trump under the Espionage Act prohibitively difficult. That’s because that opinion from a judge that Trump’s bullshit story was reasonable would likely be enough to sway at least one juror, especially if the case were charged in Florida. And DOJ is not going to charge Trump — they’re definitely not going to charge Trump under the Espionage Act — unless they’re sure that the most credible people making these kinds of arguments are potentially implicated witnesses like Kash Patel. Yes, they might still charge obstruction (and they might only charge obstruction anyway), but if Republicans win back one or both houses, they will use an obstruction-only prosecution to claim it was a politicized prosecution.

So yes, Clarence Thomas could do harm by accepting Trump’s appeal and SCOTUS could do harm by ruling in favor of it. I don’t think that’s the most likely outcome (and such a move would likely to lead to further appeals). But there is a risk of harm beyond a simple delay.

On August 8, There Were at Least 73 Items Where the FBI Had Seen 50-55 Boxes on June 3

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There’s a propensity when reporting on an FBI investigation to believe that things being reported by the press as new news that the FBI doesn’t know about. We don’t know what the FBI doesn’t know, and so if it’s new to us, there’s a propensity to believe it’s new to people who have the advantage of subpoena power.

But I’d like to point to details that have long been public that suggest the FBI knew boxes had been moved out of Trump’s storage room in advance of Jay Bratt’s glimpse at it on June 3.

On May 6, 2021, NARA General Counsel Gary Stern told Pat Philbin that he understood Trump had taken 24 boxes of documents to Mar-a-Lago.

It is also our understanding that roughly two dozen boxes of original Presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the Administration that they need to be. I had also raised this concern with Scott during the final weeks.

Side note: This email was before a bunch of boxes, potentially other boxes, were moved from a Virginia storage facility to Mar-a-Lago.

In any case, when Trump returned 15 boxes of documents in January 2022, NARA (and so the FBI) would have known there were at least 9 boxes missing.

On June 3, 2022, Jay Bratt and three FBI agents went to Mar-a-Lago to retrieve — they were told — the balance of the documents Trump stole. They were handed not 9 boxes, but a folder.

They were also shown the storage room where Trump had been storing some of his stolen documents. Here’s part of how the FBI described the room in the August 5 affidavit to search Trump’s beach resort:

The agents and DOJ COUNSEL were permitted to see the STORAGE ROOM and observed that approximately fifty to fifty-five boxes remained in the STORAGE ROOM. [five lines redacted] Other items were also present in the STORAGE ROOM, including a coat rack with suit jackets, as well as interior decor items such as wall art and frames.

In the same affidavit, the FBI said Trump’s residential suite, Pine Hall — which must have been discussed in the prior seven mostly-redacted paragraphs — was one of the places Trump may have stored the still-missing classified records.

When the FBI searched Mar-a-Lago on August 8, they used A-labels for all the items of investigative interest found in what has since been confirmed as the storage closet (see this post for pictures of how this looks in practice, from the search of Josh Schulte’s apartment in 2017). The series goes up through at least 73.

While it’s possible the FBI found Trump’s coat rack to be of investigative interest, it’s far more likely that the labeled items were all boxes, because the FBI wasn’t authorized to seize coat racks.

So on June 3, four witnesses, several highly-trained, estimated or counted 50 to 55 boxes in the storage room.

On August 8, there were at least 73 items of investigative interest — probably boxes — in the storage room.

Before SCOTUS, DOJ Argues Trump Has Shown No Harm

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DOJ offered about a jillion jurisdictional reasons why Trump’s appeal to the Supreme Court should fail (I’ll circle back and catalog them in a bit). Because Trump’s was largely a jurisdictional complaint (arguing that the 11th Circuit did not have jurisdiction over the scope of the Special Master review), that’s the meat of the legal issue if SCOTUS decides to review this.

As they note, SCOTUS doesn’t even have to reach that issue because Trump has made no compelling argument that he will be irreparably injured unless SCOTUS intervenes to force DOJ to share highly classified documents with Special Master Dearie and Trump’s lawyers.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29. As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)).

[snip]

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm — much less irreparable injury — on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits. See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion — that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 — is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

As smarter people than I have said, Trump’s failure to argue irreparable harm should end things — and it may well, particularly when counterposed against Navy v. Egan, the Supreme Court precedent giving the (current) Executive great authority to determine who can have classified information.

But with this court, we can never know.

There’s a far briefer section addressing the likelihood that Trump might prevail before the 11th Circuit (again, that’s not the primary argument Trump is making here). But it’s more interesting for our purposes, because these are the issues that SCOTUS might one day review in more substantive fashion, either an appeal of the merits decision before the 11th or, just as likely, as part of a criminal case against Trump.

That section repeats the still-uncontested point that Trump has claimed no violation of his constitutional rights (the standard under Richey).

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged — much less shown — a violation of his constitutional rights. Id. at 17.

Trump has instead demanded a Special Master to assert the closest thing he has to a defense — that there’s no criminal enforcement mechanism for the Presidential Records Act, and back before he was fired by voters, he had the authority to declassify documents.

Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

As DOJ has laid out before, his PRA claim fails because he has failed to comply with the PRA.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1).

And besides, DOJ finally notes, if Trump has a complaint under the PRA, he needs to take it to Beryl Howell in the DC District.

Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court — which would be yet another reason the government is likely to succeed on the merits here.

DOJ dismisses Trump’s claims that he could have declassified these documents by noting he has not claimed he did, much less presented evidence that he had.

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19.

DOJ notes that, for the purposes of this appeal, that doesn’t matter because these documents could not be his personal property, the ostensible point of the Special Master (DOJ does not note here what they did before the 11th Circuit, that even if these documents had been declassified, they would be responsive to the subpoena — though it does note earlier than he did not fully respond to the subpoena).

And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

Then, in a footnote, DOJ notes that Trump has largely given up the Executive Privilege claims (though he appears to be asserting them before Cannon).

7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.

This claim on privilege is one that SCOTUS might see on an appeal.

Again, little of this stuff would be before SCOTUS in substantive fashion any time soon. But they’re all the topics that the lower courts will be grappling with for the next several months until this comes back to SCOTUS (if it ever does). And this is what they’ll look like for SCOTUS’ first glimpse of them.

Boris Epshteyn Enters the Three-Person Chat

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Yesterday, both NBC and the Guardian reported that Christina Bobb was interviewed by investigators last Friday. The stories describe that her testimony confirms what we already knew, generally: Evan Corcoran did the search and wrote the declaration but Bobb signed it. Here’s NBC.

Bobb, who was Trump’s custodian of record at the time, did not draft the statement, according to the three sources who do not want to comment publicly because of the sensitive nature of the sprawling federal investigation.

Instead, Trump’s lead lawyer in the case at the time, Evan Corcoran, drafted it and told her to sign it, Bobb told investigators according to the sources.

[snip]

Before Bobb signed the document, she insisted it be rewritten with a disclaimer that said she was certifying Trump had no more records “based upon the information that has been provided to me,” the sources said of what she told investigators. Bobb identified the person who gave her that “information” as Corcoran, the sources said.

“She had to insist on that disclaimer twice before she signed it,” said one source who spoke with Bobb about what she told investigators.

The source said she spoke freely without an immunity deal.

“She is not criminally liable,” the source said. “She is not going to be charged. She is not pointing fingers. She is simply a witness for the truth.”

[snip]

“People made [Bobb] the fall guy — or fall gal, for what it’s worth — and it’s wrong,” the source said. “Yes, she signed the declaration. No one disputes that. But what she signed is technically accurate. … The people who told her to sign it should know better.” [my emphasis]

In addition to describing that Corcoran did the search, the Guardian corrects a point NBC made: Bobb wasn’t, actually, the custodian of records, which makes the decision to have her sign the declaration all the more suspect.

The certification was drafted by Corcoran, who also searched Mar-a-Lago for documents demanded by the subpoena, and sent it to Bobb before the justice department’s counterintelligence chief, Jay Bratt, arrived on 3 June to collect a folder of responsive records, the sources said.

[snip]

It was not clear why Bobb was willing to sign the declaration – as required by the subpoena in lieu of testimony – as the “custodian of records” when she never fulfilled such a role, the sources said, and appeared to know there was risk in attesting to a search she had not completed.

It is common for people friendly to a criminal suspect to immediately tell the press what they told investigators, so these stories are unsurprising.

They’re interesting in their form, however.

First, normally these stories are based on someone’s lawyer quietly telling the press the substance of her interview (which, because Bobb testified to investigators, not the grand jury, her competent attorney would have attended and taken notes). Here, Guardian seems to explicitly rule out Bobb’s attorney (though not, perhaps, someone who is not specifically the “criminal defense attorney”).

Bobb and her criminal defense attorney also did not respond to requests for comment, though Bobb has told associates since the FBI’s search of the property on 8 August that the certification she signed was truthful, the sources said.

NBC doesn’t rule that out.

Represented by Tampa attorney John Lauro, Bobb gave her testimony Friday in Washington and spoke to federal investigators, not the grand jury investigating Trump, the source with knowledge of her testimony said.

Regardless of whether someone close to John Lauro was one source for this story, at least two more people, aside from the typical lawyer source that would be all such stories normally require, have knowledge and are blabbing to the press. It’s totally okay for a lawyer to share this, but having three different people share knowledge of the interview means Bobb has shared details with people who are not her lawyer — something that sounds more like witnesses comparing stories.

The entire point of going to the press, after all, is it’s a way to share details without directly sharing details with other potential witnesses. These stories almost make it sound like people spent the weekend comparing notes.

More interestingly, this effort to share her testimony includes, in each story, that investigators asked about Boris Epshteyn, whose phone the FBI happens to have seized last month based off what is believed to be a January 6 warrant.

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.

Epshteyn’s cellphone was seized last month by the FBI, according to a New York Times report, citing sources familiar with the matter. Two sources confirmed to NBC News that his phone was seized.

Since the phone was seized, more stories (including both of these) have started claiming Epshteyn played some kind of legal role in Trump’s entourage. That’s a bit nutty, because for six years of association with Trump, Epshteyn has served as a propagandist and a political organizer, not a lawyer.  But these stories and a few recent ones are labeling him as a counsel even as Bobb, who claims to be a Trump lawyer but not on this topic, proves one can be a JD and not be acting as an attorney at any given time. For whatever reason, we’ve heard nary a peep about privilege claims from Epshteyn regarding the earlier seizure, but these stories, at least, seem to want to retroactively claim this stuff involves a privilege claim.

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

All that’s just tea leaves about how to read these kinds of stories.

The piece of news, however, is that DOJ appears to have gotten Bobb to specify precisely what caveat she demanded in the statement, which reads as follows:

I hereby certify as follows:

1. I have been designated to serve as Custodian of Records for The Office of Donald J. Trump, for purposes of the testimony and documents subject to subpoena #GJ20222042790054.

2. I understand that this certification is made to comply with the subpoena, in lieu of a personal appearance and testimony.

3. Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge. [both emphases mine]

Both stories appear to confirm that Bobb insisted on the bolded language limiting the declaration to the “information that [was] provided to [her].” That suggests she’s not the one (I had mistakenly suspected) — and she just told DOJ she’s not the one — who included the language limiting the declaration to documents moved from the White House to Florida.

The subpoena didn’t ask for all records bearing classification marks that got moved from the White House to Florida. The subpoena asked for, “Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” The letter Jay Bratt sent to Evan Corcoran specifically envisioned custodians of record all over the country going to their local FBI office to drop documents off.

the custodian may comply with the subpoena by providing any responsive documents to the FBI at the place of their location

That caveat — limiting the declaration just to those documents in Florida — was an even more damning caveat than the one Bobb insisted on. The one Bobb insisted on was just testament to the obvious refusal by anyone with personal knowledge of the search to sign a declaration affirming its diligence. It was basically a big flag saying, “This declaration is toilet paper!!”

But the caveat limiting the declaration to just the documents in Florida is a different flag, one saying, “There are documents in other states!!!”

And that caveat was written not by someone ignorant of the whole scam, like Bobb says she was, but by someone who at least believed there was a good chance there were documents in other states.

On Thursday, the day before Bobb’s interview, outlets started reporting that Jay Bratt had told Trump’s people that they suspected he still had more documents. NYT’s version of that describes that as the source of tension between Evan Corcoran and Jim Trusty on one hand, and Chris Kise, on the other.

The outreach from the department prompted a rift among Mr. Trump’s lawyers about how to respond, with one camp counseling a cooperative approach that would include bringing in an outside firm to conduct a further search for documents and another advising Mr. Trump to maintain a more combative posture.

The more combative camp, the people briefed on the matter said, won out.

[snip]

After the call from Mr. Bratt, who has led the Justice Department’s investigation into Mr. Trump’s handling of the documents, Mr. Trump initially agreed to go along with the advice of one of his lawyers, Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

Bloomberg’s version of this story describes that Trump’s lawyers are worried DOJ will require more declarations, which might be a trap!

But the department’s communications have generated doubt and debate for Trump’s lawyers about whether the department actually knows documents are missing and wants the lawyers to make written declarations in response. Some of Trump’s lawyers apparently view that as a potential trap that could land them in legal jeopardy, further exacerbating tensions on Trump’s team.

Based off Bobb’s testimony on Friday — which Bobb seemed to have been inviting for weeks — DOJ may have already set that trap.

Update: In a piece suggesting, without evidence, that Bobb is a subject in this investigation, not a witness, NYT provides more detail of Epshteyn’s role.

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.

Trump’s File B-076: Calvinball Ping Pong

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I spent part of last weekend attempting to understand how Judge Cannon might explain throwing out Raymond Dearie’s work plan (which included a rolling process designed to finish up by November 30). This is what I came up with (by all means please let me know if I’ve made errors, but otherwise, don’t invest too much in this because the big takeaway is that Judge Cannon is playing Calvinball, so the current rules mean little).

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

I believed, when I wrote that a week ago, Judge Dearie would have no real say in the process until November 14 (see the timeline below), after Trump had made designations on all the seized documents and then spent ten days fighting over those designations with DOJ.

I don’t know what Dearie thought, but on October 4 — one day after receiving the designations from the filter team materials, five days after Cannon’s order — he canceled a scheduled October 6 status hearing, citing the order.

Then, yesterday, he had a say, issuing an order in response to the filter team designations he received on October 3. The order did the following:

  • Reveal a set of about 35 pages of Category A files that Trump had raised no attorney-client privilege over (marked in turquoise below)
  • Ordered the Privilege Review Team to provide those files to the Case Team by October 10 so they can review Trump’s Executive Privilege and Presidential Records Act claims
  • Indicated he would “promptly issue a report making recommendations” about Trump’s attorney client privilege claims as to the remaining Category A and Category C documents
  • In fact of a dispute over whether Dearie should make a privilege designation on file B-076, confirmed there was no dispute about the document in question because Trump made no privilege claim over it
  • Ordered DOJ to return the originals of all the Category B documents to Trump by October 10, including file B-076
  • Set a status hearing for October 18

As I laid out here, Category A documents are government documents involving some legal issue. Category B documents are the personal documents (including those pertaining to Trump’s health, taxes or accounting) that DOJ proposed returning 38 days ago. Category C is a new category, possibly limited to this document turned over to the filter team after the initial filter team inventory was completely,

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

Possibly it includes different kinds of documents (such as the call logs) that don’t precisely fit the other two categories.

Here’s what we know of the designations so far, with turquoise being things Dearie cleared to share with the Case Team. (I’ve marked items Trump has claimed no privilege over with an N, items he has claimed privilege over parts of with a P, items that he must be claiming privilege over with a Y, and used question marks for items that, because of the additional category, I’m not certain about.)

 

Here’s what happens next, best as I can tell according to the rules of Calvinball.

First by Monday, DOJ will give all the original documents in Category B back. That seems to comply with Judge Cannon’s plans, because according to Judge Cannon’s original order, if both sides agree on the privilege designation for a file, it “shall be handled in accordance with the parties’ agreement.”

If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement. If the Privilege Review Team disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision. Failure to object to a report and recommendation within five (5) calendar days shall result in waiver of that objection.

Both sides say Trump should have the originals, and by Monday — a federal holiday — Trump will have the originals back. As I’ve written, that will eliminate one of the harms that Judge Cannon deliberately inflicted on Trump in order to justify getting involved.

It’s the other part of the order I find more interesting: If someone objects to what Dearie has done, they’ve got five calendar days — so until October 12 — to complain to Cannon so she can overrule Dearie.

One side has complained about what Dearie did to not make a privilege determination on B-076, because there’s no dispute: Trump has not claimed privilege over it. Making the determination wasn’t controversial. Rather, deciding to make the determination at all is what one side has complained about.

Document B-076 is a one-page document from Morgan Lewis, the law firm involved in Trump’s taxes.

It’s significant because the duplicate (item 3, which is four copies of the same one-page letter) is one basis for Judge Cannon’s claim that DOJ had made a filter failure. Here’s how the filter team has described it.

An additional seventh box was transferred to the custody and control of the Privilege Review Team agents on August 10 ,2022, after a Case Team agent observed a document on Morgan Lewis letterhead comingled with newspapers.6 Consistent with the filter protocol set forth in the Affidavit, the Case Team stopped its review of the entire box and provided it to the Privilege Review Team agents to conduct a review to identify and segregate potentially privileged materials.

6That document is item Number 3 in Exhibit B (FILTER-B-065 to FILTER-B-068). Also contained within the seventh box were Item Numbers 1 to 4 in Exhibit A (FILTER-A-001 to FILTER-A-005), which the Privilege Review Team agents identified as potentially privileged after receiving custody and control of the box.

And here’s how Judge Cannon used that document (among others) to claim both that Trump was being deprived of personal tax documents and that the filter process had failed.

According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]

[snip]

Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

In other words, this Morgan Lewis document is one of the central documents to Cannon’s argument that the FBI is not to be trusted, that the investigative team has been tainted, that poor Donald Trump is being deprived of his personal tax records.

And Dearie has now made public that that’s bullshit.

But Trump, who didn’t claim it was privileged, now has the opportunity — by October 12 — to complain to Cannon that his hand-picked Special Master is being mean again.

And that would happen before DOJ submits its merits brief to appeal Cannon’s decision to get involved in the first place, which is due on October 14.

Regardless of the error that the 11th Circuit already ruled Cannon had made by intervening, Dearie has now eliminated much of the claimed harm that Cannon invented to intervene. He has ordered returned all the personal medical and tax documents that Cannon used to claim he was being deprived of very sensitive documents. And he has confirmed that for one of three claimed filter failures — the only one, importantly, pertaining to a non-governmental document — was not a privileged document at all.

Trump could ask Cannon to overrule Dearie for even making that public. But that would make it clear — and public for DOJ’s brief — that Cannon was once again intervening to create a harm she could then invoke to claim a need to intervene.

I don’t know whether under Judge Cannon’s Calvinball rules Dearie was supposed to take these steps at all. But if she wants to override them (again), it’ll make it clear that she’s simply creating harms to excuse her intervention.

Update: Reworded the B-076 language per nedu’s comments.

Timeline

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to extradite 11th Circuit appeal

October 3, 2022; Trump response to 11th Circuit; motion to seal privilege log; original privilege status report unsealed; Potentially privileged material designations submitted (under seal)

October 4, 2022: Trump SCOTUS appeal of part of 11th Circuit decision; Dearie cancels October 6 status hearing

October 5: Vendor selected

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

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 19: Original deadline for DOJ appeal to 11th Circuit

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

21 days after notice of completion (November 4): Trump provides designations for all materials to DOJ

November 8: Election Day

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

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

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

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ 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)

After 37 Days, Raymond Dearie Ends the Harm Judge Aileen Cannon Deliberately Inflicted on Donald Trump

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As I have written, by her own standards, Aileen Cannon deliberately inflicted harm on Donald Trump in order to justify her intervention in the Trump warrant. On September 5, she ruled that being deprived of his own documents would inflict harm.

being deprived of potentially significant personal documents [] creates a real harm

But on September 1, she refused the request by DOJ’s filter attorneys to return the Category B documents identified in the filter team status update, all the most obviously personal documents seized.

Cannon then pointed to those personal documents in the language justifying her intervention.

The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)].

All of those personal documents were Category B documents.

Cause the harm, then intervene to fix it.

Raymond Dearie has finally ameliorated the harm Judge Cannon was personally responsible for sustaining against Trump since September 1.

Since both sides agreed that DOJ can give back those Category B documents, he ordered DOJ to give back those originals.

The parties also agree that the original Filter B Materials should be returned to Plaintiff. Id. Accordingly, the Court directs the Privilege Review Team to release the original Filter B Materials to Plaintiff by October 10, 2022.

So by October 10, DOJ will finally be able to end the harm that Judge Cannon was sustaining. Altogether, Cannon will have been responsible for at least 37 out of 60 days harm done so far, and possibly as many as 40 days out of 63 days of harm total that she says was done to Donald Trump.

Judge Aileen Cannon Treated a Public Letter about Trump’s Health as More Sensitive than America’s National Security

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As I have shown, had Judge Aileen Cannon left well enough alone, the government would have handed all Category B documents identified by the filter team back to Trump on September 1. Instead, she deliberately inflicted what she herself deemed to be further harm on Trump to justify intervening in the search of Trump’s beach resort.

And now she may have caused even more harm. That’s because, by means that are not yet clear (but are likely due to a fuck-up by one of Cannon’s own staffers), the inventories from both Category A (government documents that deal with a legal issue) and Category B (more personal documents) were briefly posted on the docket. (h/t Zoe Tillman, who snagged a copy)

Those inventories not only show Cannon’s claims of injury to Trump were even more hackish than I imagined. But it creates the possibility that DOJ’s filter team will attempt to retain some of the documents included in Category B, notably records pertaining to the Georgia fraud attempts and January 6, they otherwise wouldn’t have.

Start with the hackishness. The harm that Cannon sustained to justify intervening consisted of preventing DOJ from returning, “medical documents, correspondence related to taxes, and accounting information” to Trump, “depriv[ing Trump]of potentially significant personal documents.” Cannon made DOJ withhold such documents from Trump for a least two additional weeks and then used it to argue that Trump had a personal interest in what DOJ claims are mostly government documents and press clippings.

The single solitary medical document pertaining to Trump (there’s a Blue Cross explanation of benefits that appears to pertain to someone else) is this letter from Trump’s then-personal physician released during the 2016 Presidential campaign.

Not only was it publicly released over six years ago, but details of medicines left off the report and Trump’s role in dictating an earlier version of the letter were widely reported in 2017.

Aileen Cannon held up a national security investigation into highly sensitive documents stored insecurely at a beach resort targeted by foreign intelligence services, in part, because the FBI seized a public letter than had been released as part of a political campaign six years ago.

She personally halted efforts to keep the United States safe, in part, to prevent leaks of a document that Trump released himself six years ago.

But that’s not all she did.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

Similarly, there are documents that might be responsive to and of interest to Tish James in her investigation of Trump’s fraud. Those include:

  • 5 copies of the same one-page letter from Morgan Lewis about taxes
  • A document about a restrictive covenant agreement
  • A confidential settlement between the PGA and Trump Golf
  • Several IRS Form 872s, including one in a folder marked NYC 8/10 (the date of Trump’s deposition with Tish James)
  • An IRS Form 2858 with Molly’s name on it (almost certainly Molly Michael)
  • A signed tax return disclosure consent form

The desk drawer also includes details of Alina Habba’s retention agreements and payments, which she would have found when she searched the drawers to ensure there were not tax documents in there.

The tax documents are likely uninteresting. Some (especially the Hilbert documents) may already be in investigators hands. But the point remains: By preventing DOJ from turning over these Category B documents to Trump on September 1 like they requested permission to do, Cannon has now given DOJ an opportunity to argue these document are not privileged, possibly even that they’re responsive to various subpoenas that might be crime-fraud excepted.

With the exception of the Hilbert emails to the White House, DOJ may still return these — fighting over them may be more trouble than it’s worth. But because this inventory got released, it will now be clear what Trump’s lawyers are attempting to hide. It may even give James or Willis opportunity to subpoena the documents anew.

And it will be clear that Aileen Cannon endangered the United States, in part, based off a claim that a medical record that Trump himself released six years ago is more important than some of the government’s most sensitive documents.

As Tillman noted in her piece on the inventory, there are also details of some of the clemency packages Trump reviews. Those include pardons for Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner, as well as the commutation of Ted Suhl. There’s also one for an “RN” that might be Ronen Nahamani, whose clemency a bipartisan group of politicians supported, including Matt Gaetz. The inclusion of all these clemency packages makes it more likely that Roger Stone’s was among them — though by description, Stone’s pardon was in another drawer of a desk in Trump’s office.

One of the other main categories of Category A documents are letters to NARA, something likely covered by the part of the warrant authorizing the seizure of communications about classified records.

How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

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Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

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