Yesterday, SDFL AUSA Anthony Lacosta filed a sealed letter to Special Master Raymond Dearie along with the log laying out any disputes between the government and Trump over his potentially privileged documents.

Subsequent to that, Judge Aileen Cannon ordered unsealed the status report that Lacosta and Benjamin Hawk filed back on August 30. I will explain the two kinds of damage Judge Cannon did to Donald Trump in order to create an excuse to intervene in this matter — as I keep saying, Cannon caused the harm she intervened to fix.

For now, I want to talk about what happened with the potentially privileged material. Here’s a table of what we know about those documents.

Note that one page privileged document, item B-33. At least per the filter team, it may be the only clearly privileged document seized, one page out of 11,000 documents.

The warrant to search Trump’s beach resort required a privilege team to search his office. But (as members of that team explained in the hearing on September 1), they instead did the initial search of both the storage room and Trump’s office. As a result, the privilege team segregated 6 sets of information, which were catalogued on what I’ve called the SSA Receipt. The revised detailed inventory describes these boxes this way (note, these descriptions probably exclude the potentially privileged material, which is inventoried separately):

Item 4, which the status report describes as “the entire contents of a single drawer” in Trump’s office.

Three passports were originally in this drawer, which is why they were seized. They were returned on August 15. These documents were appropriately seized under the warrant because there were two classified documents in the drawer.

Items 29 through 33, which were in the Storage Room.

These boxes would have been appropriately seized under the warrant because all were stored in the place where boxes storing classified documents were stored. In fact, Item 29 had a Top Secret document in it and Item 33 has two empty staff secretary folders in it. Additionally, all are described to contain government documents, which were also authorized for seizure.

Two days after the search, on August 10, a Case Agent found a 3-page letter from law firm Morgan Lewis, “comingled with newspapers;” Morgan Lewis’ Sherri Dillon was named in Tish James’ motion to compel Trump’s deposition. So they sent the entire box to the privilege team, as described in the warrant. The box also included 4 pages of government documents treated as potentially privileged, including an email from the Air Force Academy’s coach.

By August 11, the privilege team had segregated out anything that  met their over-inclusive standard for potentially privileged documents from the rest of the documents, then sent the 7 boxes to the investigative team (which is, presumably, what led to the return of the passports days later).

On August 25, a case agent provided one more document to the privilege team:

39-page set of materials that appears to reflect the former President’s calls. (The majority of pages are titled “The President’s Calls” and include the Presidential Seal.) Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes.

One of these messages was from “Rudy,” though did not appear to constitute legal advice.

The privilege team separated all these potentially privileged documents into two categories:

Category A

This category includes 21 sets of documents for a total of 138 pages. Most are, “primarily government records, public documents, and communications from third parties,” which could not qualify as privilege. One document is a 3-page email to a White House email account, which the government maintains constitutes a waiver to attorney-client privilege. As noted, another is a printed email from the Air Force Academy’s head baseball coach with the word “PatC” on it.

For example, the Privilege Review Team agents identified and segregated a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “PatC” (perhaps a reference to White House Counsel Pat Cipollone) was written on the document in black marker (Item Number 4 in Exhibit A at FILTER A-005).

Another, as noted above, is one of the phone messages from the President’s Calls (we know this is a phone message because both are described as Item 21 in Category A), from “Rudy” and appearing to be a topic unrelated to legal advice.

Category B

This category consists of 43 sets of documents, for a total of 382 pages. The status report describes those as,

legal in nature (e.g., settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

According to the privilege team, just one of those documents appeared to be privileged. But way back on August 30, they proposed to give the originals of all these documents back to Trump. Then they tried again on September 1. Trump had to wait two more weeks before receiving these documents, so that Judge Cannon could use them as her basis for intervening in the case.

September 26 email

According to Trump’s objections, on September 26, the government provided an email newly identified by case agents (presumably in the course of reviewing the inventory). The government maintains the email is not privileged but Jim Trusty claims it is.

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.

In addition to the document sorting, before the filter team shared any photographs documenting the search, both the filter agents and the filter attorneys reviewed the photographs to ensure no privileged documents were captured in the photo.

Update: Added explanation for Morgan Lewis letter, h/t Simon. Added observation that there may be only a single privileged page in the whole seizure. Corrected numerical error.

The Archives (NARA) has released several sets of documents pertaining to the documents Trump stole, including the email that kicked off the entire hunt for documents on May 6, 2021. In it, NARA General Counsel Gary Stern emailed Pat Philbin, Mike Purpura, and Scott Gast talking about known missing items (including the love letters from Kim Jong Un).

Of those love letters, Stern described that Trump had a binder of them made right before he left office, just like he had a binder of the records pertaining to the Russian investigation.

[I]n January 2021, just prior to the end of the Administration, the originals were put in a binder for the President, but were never returned to the Office of Records Management for transfer to NARA.

More hilariously, Stern told the Trump lawyers that he knew of around 24 boxes of records that had been kept in Trump’s residence that weren’t returned. Stern told Trump’s lawyers that he knew that Pat Cipollone had told Trump to give them back — all 24 boxes of Presidential Records!

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.

NARA emailed Trump’s lawyers and told them he knew that there were roughly 24 boxes that Trump’s own White House Counsel had determined belonged to NARA.

And after an extended fight, Trump returned just 15.

Trump apparently thought a building full of archivists would just round up from 15.

Before you read this report on tensions between FBI Office of General Counsel’s National Security and Cyber Law Branch (NSCLB)  and DOJ’s National Security Division (NSD), remember the following things:

• In significant part because of jurisdictional limitations, DOJ Inspector General blamed FBI for everything that went wrong with the Carter Page FISA applications, and in the wake of that report, Bill Barr, Trump, and his allies in Congress used it to damage the career every single person at FBI who had been involved with the Russian investigation (except for the two guys who made multiple mistakes in dismissing the Alfa Bank allegations).
• John Durham then used that damage to attempt to coerce testimony, sometimes false, from FBI figures in his never-ending witch-hunt.
• For the same jurisdictional limitations, any abuse John Durham engages in or Andrew DeFilippis engaged in can only be reviewed by DOJ’s feckless Office of Professional Responsibility, not by DOJ IG.
• After that report, DOJ IG developed proof that Carter Page was not special; by some measures, his FISA application was better than those of people who hadn’t been fired by a future President for precisely the same foreign ties that the FISA was meant to assess.
• The NSD then dismissed those findings from DOJ IG, largely by adopting a standard different from the one that had been adopted with Carter Page (it’s unclear whether DOJ IG is still trying to resolve these discrepancies or not).
• None of the stuff that happened thus far addresses the substantive problems with the Page applications.

The report talks about the “historically strained” relationship between these two sets of lawyers, without laying out the role that the Carter Page review — and the Trump DOJ’s use of DOJ IG to punish his enemies generally — did to make things worse.

That tension plays out in the report. For example, Horowitz only provides recommendations to NSCLB and FBI’s OGC, not NSD. In each case, FBI is directed to coordinate with NSD, without the counterpart recommendation. The tension is particularly critical to something that DOJ IG cannot, therefore, recommend: That NSD have access to FBI case files, which would allow them to play a more proactive role in the vetting of FISA applications. It would also make NSD share in accountability for any problems that arise (as they should have with Page), though, and unsurprisingly NSD doesn’t want that.

NSCLB attorneys expressed their concern that although NSD attorneys assist agents in drafting the FISA applications submitted to the FISC, they do not share accountability when compliance incidents are reported to the FISC. Although NSCLB officials acknowledged the oversight role that NSD has related to FISA, they emphasized the need for FISA to be a team effort and not an adversarial relationship and stated their belief that the number of compliance incidents would be reduced if NSD would review the FISA-related documents housed in the FBI’s IT systems. However, according to NSCLB attorneys, NSD has expressed disinterest in ensuring FISA compliance on the front end and has said that it is the agent’s responsibility to identify in the first instance, anything that is necessary to be reported to the FISC. We were also told by NSCLB attorneys that NSD has said that it is concerned that an appearance of NSD attorneys having knowledge of the underlying documents would imply that they have full knowledge of all of the supporting documents, which would not be practicably feasible for them to have.

A senior NSD official that we spoke with told us that NSD has limited resources, and it does not have direct access to FBI systems.

NSD wants none of this accountability and DOJ IG can’t make them.

For all the tensions, though, it’s a fascinating report, as useful for providing both historical and bureaucratic background on this process as anything else. Much of this tension arises out of DOJ’s admitted parallel construction — using alternative sources for certain facts to protect sources and methods. There’s even a paragraph that describes NSCLB’s role as such (though not by name).

For instance, we were told that NSD relies on NSCLB to review documents such as search warrants and criminal complaint affidavits for law enforcement or other sensitivity concerns before they are filed with the court by prosecutors. When this process is not followed, it can become particularly problematic if NSCLB later finds that sensitive information was contained in the court filing. For example, if the FBI used a sensitive platform to obtain information, prosecutors may decide that a description of the platform is needed to support the search warrant or complaint. In such instances, NSCLB may ask prosecutors to anonymize that information. However, if NSCLB does not review the case agent’s draft affidavit in support of a search warrant or complaint before the agent provides it to the prosecutor, sensitive information may be exposed. Also, senior NSCLB officials told us that including an NSCLB attorney early in this process can provide an effective means of ensuring prosecutors have information necessary to support their case. Specifically, NSCLB can help identify which information may be difficult to use from a classification and sensitivity perspective and provide suggestions to obtain the information from an independent source without implicating sensitive techniques.

The report claims the particular roles of each side are not well-defined. I’m not convinced that’s the case, though. As described, NSCLB protects national security and the secrets that go along with that (including secret intelligence techniques). And NSD fulfills the needs of prosecutions as well as “protect[ing] FISA as a tool so the FBI can continue to use it.”

In one telling explanation,

NSCLB senior officials highlighted the fact that criminal prosecution is not necessarily the FBI’s aim in every national security investigation and that the FBI sometimes appropriately pursues investigations with the aim of disrupting threats or collecting intelligence.20

These are tensions, but they are not necessarily bad tensions. And it doesn’t seem like this report considers how this compares to the relationship between a prosecutor and a case agent where there are none of the national security (and classification) concerns.

In any case, the report attributes that tension for two radically different understandings about the standards involved in two FISA concepts, including one — material facts that must be disclosed to the FISA Court — that was at the core of the Carter Page case.

In the case of materiality, the FBI seems to be playing dumb (perhaps to avoid opening a whole historical can of worms given the aftermath of the Page IG Report).

The 2009 Accuracy Memorandum defined material facts as, “those facts that are relevant to the outcome of the probable cause determination.” The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD’s interpretation of material facts being facts that are capable of influencing the requested legal determination. An NSD senior official told us that the FBI’s viewpoint was based on the FBI’s involvement in the criminal law enforcement arena where the threshold for materiality in a criminal search warrant is outcome determinative. This official also stated that most material errors reported to the FISC do not invalidate the legal determination, and that the FISC still expects for these types of errors to be reported to them.

Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD’s application of the standard because it was reflected in previous Rule 13 notices filed with the FISC. For example, in the OIG’s report on the FBI’s Crossfire Hurricane Investigation, NSD supervisors stated that “NSD will consider a fact or omission material if the information is capable of influencing the court’s probable cause determination, but NSD will err on the side of disclosure and advise the court of information that NSD believes the court would want to know.”41 Similarly, in a FISC filing on January 10, 2020, NSD referred to this statement in the OIG report while describing its oversight and reporting practices when errors or omissions are identified.42 However, senior NSCLB officials told us that NSCLB was first made aware of NSD’s interpretation of the materiality standard in the OIG’s Crossfire Hurricane Investigation report and NSD’s subsequent January 2020 FISC filing.43

In the case of the claimed differing understand of  querying techniques under 702 (in which, by my read, both sides were pretending this hasn’t dramatically changed as FISC became aware of how 702 collection was really used), NSD seems to engage in the knowing bullshit.

In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI’s queries and NSD improved upon its ability to identify non-compliant queries over time.

I knew the standard the FBI was using. It is not credible that I knew what it was and NSD did not.

In both cases, this claimed disagreement seems to be an effort to avoid applying the standards adopted post-Page to the FISA approach (and not just on individualized orders) applied before then.

The report confirms something that had been obvious from heavily redacted sections of the last several 702 reauthorizations: FBI had been using 702 collection (and FISA collection generally) to vet potential confidential human sources.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Using back door searches to vet informants is an approved use on the NSA and, probably, CIA side. In the FBI context, my understanding is that informants understand they’re exchanging Fourth Amendment protections as part of their relationship with the FBI. Perhaps if the FBI had simply made this public, it could have been an approved use. Instead, we’re playing all these games about the application.

The report describes — but doesn’t really address — how the tension between NSCLB and NSD undermined National Security Reviews which,

examine (1) whether sufficient predication exists for FBI preliminary and full investigations, (2) whether a sufficient authorized purpose exists for assessments, (3) whether tools utilized during or prior to the assessment are permitted, and (4) all aspects of National Security Letters issued by the FBI.

There was a huge backlog of these until NSD hurriedly closed a bunch of them in 2020, which is the kind of thing that when Bush did them with FISA tools in 2008 was itself a symptom. So, too, may be some policy memos that happened in Lisa Monaco’s first days and John Demers’ last ones.

The section I found to be most interesting (and one that DOJ IG could not or chose not to address in recommendations) pertains to the tension over declassification of material for prosecutions.

According to the FBI’s Declassification of Classified National Security Information Policy Guide, NSCLB must participate in the approval of discretionary declassification decisions concerning FBI classified information. NSCLB assists in ensuring that the declassification of either FISA derived material or other FBI classified information is: (1) necessary to protect threats against national security; (2) will not include classified materials obtained from foreign governments; (3) will not include classified materials obtained from other U.S. agencies (unless authorized by the originating agency); (4) will not reveal any sensitive or special techniques; and (5) will not adversely impact other FBI investigations.

[snip]

Despite the FBI’s limited support role, NSD and DOJ staff we spoke with told us that they believe NSCLB has involved itself inappropriately in discovery matters. For example, an NSD senior official told us that NSCLB has attempted to second guess discovery decisions made by prosecutors. This NSD official believed that NSCLB’s role is not to participate in the determination of how the prosecutors choose to protect a piece of classified information, but instead to identify information that is classified, its level of classification, and how a declaration from the owner of that information would explain to a court why the information presents a national security concern. According to this official, NSCLB may rightfully conclude the information is too sensitive to provide in discovery and, as a result, prosecutors may have to dismiss that case. However, we were told that discovery issues do not generally reach that point. We also were told by some AUSAs that they have had to remind NSCLB attorneys that AUSAs have the discovery obligations to courts and will make discoverability determinations.

An official from one USAO told us that, while it is understood that satisfying discovery obligations is the responsibility of the prosecutor, the FBI’s interest in protecting its equities may justify challenging a prosecutor’s discovery decisions. The official explained that such back and forth may be necessary to reach a balance between the needs of discovery and the protection of sensitive information; however, when the FBI’s role in the process extends into making assessments of what is discoverable it can slow the process down and necessitate the prosecutor asserting authority over discovery decisions.

[snip]

By contrast, senior NSCLB officials noted that several factors outside of NSCLB’s control can cause the declassification process to take a considerable amount of time. According to these officials, the FBI addresses the risk of disclosing information that could cause significant harm to the American public by using a thorough, deliberate process which can be impacted by the volume of information, the sensitivities involved, and the resources available to conduct a review. In defending NSCLB’s role in the discovery process, a senior NSCLB official expressed the view that AUSAs tend to err on the side of making material discoverable, even when it involves national security information, and do not appreciate how the disclosure of information may affect other FBI or USIC operations. This official told us that NSD often prefers to declassify all information that could be relevant, necessary, or discoverable to ease the prosecution of the case or the discovery process. .

This is, in my opinion, the description of what lawyers for an intelligence agency would do. That seems to be the role NSCLB is playing, for better or worse. In light of the cases described out of which the more specific tensions arise, I find the complaint that NSCLB is delaying discovery rather telling. If prosecutors choose to make a case that NSCLB believes would have been better handled via disruption, for example, or are entirely frivolous, such tensions are bound to surface. That said, if FBI’s General Counsel’s Office has been coopted people trying to protect sources and methods, NSD lawyers are going to look like the only ones guarding due process (though I’m sure they would with CIA’s lawyers, too).

There’s a lot of worthwhile observations in this report. But it’s hard to shake the conclusion that the most important takeaway is that DOJ cannot continue to have such asymmetry in the oversight that FBI and DOJ experience.

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

Yes, it’s me, the golf widow, once again drafting a Trash Talk post.

And yes, I’m here at home alone enjoying the quiet of my remaining golf widowhood. This weekend is one of the last of regular play on the local course; next weekend there will be some celebratory golf outing shindig in which my kids will also golf while I dogsit.

Meanwhile I’m doing exciting things like cleaning carpets and scrubbing floors, washing draperies, and baking since I won’t be able to much next weekend with dogs and adult children underfoot.

What about you? Are you sportsing, or watching sportsing, or cleaning up after this week’s hurricane? Do tell.

~ ~ ~

Dreadful news came from Indonesia this week when at least 127 people died in a stampede at the Kanjuruhan Stadium after police used tear gas to disperse an angry crowd gathering on the football pitch.

This Reuters’ video shows how the crowd funneled toward an exit:

At least 125 people died in a stampede at a soccer stadium in Indonesia after police tried to quell violence on the pitch. https://t.co/zyh13g0G0m pic.twitter.com/EPbsBdSIhr

— Reuters (@Reuters) October 2, 2022

But this video reveals the animosity police displayed toward the attendees on the field which may also have led to panic:

At least 129 killed & 180 injured at a soccer match in Indonesia after a crowd stampede during a riot. Seems one of the world’s worst stadium disasters.
Horrific!#Indonesia pic.twitter.com/uCLXbUEko1

— Majid Alam (@iammajidalam) October 2, 2022

The resulting death toll already exceeds that of the 1989 Hillsborough disaster, making Kanjuruhan Stadium disaster in Malang the sixth deadliest sporting event related disaster in history.

Let’s hope there will be a thorough inquiry into this horror with accountability, and more quickly than followed the deadly Hillsborough crush. There are global repercussions in spite of the soccer match’s local nature; were there any stadium design problems which encouraged this crush? Were there lessons from policing at the stadium which might prevent future stampedes?

~ ~ ~

It’s been a shitty week in the National Football League – not because of any one game but because of players’ health and the league’s handling of the same.

Lots of buzz right now after this tweet by St. Louis Cardinal’s JJ Watt:

I was just told somebody leaked some personal information about me and it’s going to be reported on today.

I went into A-Fib on Wednesday, had my heart shocked back into rhythm on Thursday and I’m playing today.

That’s it.

— JJ Watt (@JJWatt) October 2, 2022

ahead of this news:

Cardinals defensive end JJ Watt revealed that he underwent treatment for a heart condition on Wednesday ahead of the team’s matchup against the Panthers on Sunday https://t.co/3xgduHsruZ

— Sports Illustrated (@SInow) October 2, 2022

Atrial fibrillation (A-fib) is a particular kind of irregular heart beat rhythm. There are many underlying causes though it occurs most frequently in persons age 50 and older. Watt is a bit young and assuming his general health has been monitored by the team, conditions like heart disease and diabetes are unlikely.

Football fans are shocked by this development but they shouldn’t be; A-fib can also be caused by viruses, both during active infection and as sequelae. We should expect to see more younger persons developing cardiac sequelae because of exposure to SARS-CoV-2.

Watt may or may not have had COVID, but it’s not impossible for an exposure to have played a role in his A-fib event.

It should disturb football fans that Watt’s health care privacy was violated in spite of HIPAA privacy rules – especially since the Supreme Court’s Dobbs decision undermined citizens’ unenumerated right to privacy.

As distressing as it is to know an NFL player was treated for A-fib this week and is playing today, it’s also distressing that another NFL player’s career may be over because the NFL and their team didn’t handle the player’s recent injury with more caution.

The Miami Dolphins’ 24-year-old quarterback Tua Tagovailoa was injured during last weekend’s meetup with the Buffalo Bills:

Tua’s head snaps back and hits the turf. He just walked to the locker room. pic.twitter.com/v8rsjHnbOH

— Mike Cugno (@MikeCugnoCBS4) September 25, 2022

In spite of what appears to be a head injury in the second quarter, Tagovailoa came back after halftime and finished the game throwing 186 yards after he was given a once-over by the team’s medical personnel which said Tagovailoa had a neck injury. The NFL Players’ Association demanded an investigation into what appeared to be the Dolphins’ skirting of the league’s concussion rules.

Before Thursday’s match against the Cincinnati Bengals, the concussion Legacy Foundation’s founder tweeted about Tagovailoa:

If Tua takes the field tonight, it’s a massive step back for #concussion care in the NFL.

If he has a 2nd concussion that destroys his season or career, everyone involved will be sued & should lose their jobs, coaches included. We all saw it, even they must know this isn’t right https://t.co/vxpaOif5rh

— Chris Nowinski, Ph.D. (@ChrisNowinski1) September 29, 2022

A sadly prescient opinion; Tagovailoa suffered head and neck injuries during the game, so severe that he manifested a fencing response on the field before the Dolphins’ medical team could reach him.

It was so awful and gruesome I won’t even share it, such an obvious sign of a head injury. He was seen at the local hospital but the team managed to get him packed up and on a plane with the rest of the team to head home to Miami. Goodness knows what all that handling including pressure changes did to Taigovaloa’s head and neck.

The NFLPA terminated the unaffiliated neurotrauma consultant involved in the assessment of Tagovailoa after his Week 3 injury before Thursday night’s game, but too late for Tagovailoa whose career may be over.

How badly do football fans need sports? At what point will they demand the NFL do better by players?

Or have fans become numb after more than 31 months of death and disability chewing away at the country during the pandemic?

~ ~ ~

Finally, we get to my kind of sports.

The World Series kicked off last night in Kansas City, Missouri. Nope, not Major League Baseball, not any kind of ball sports but the American Royal World Series of BBQ.

I think we need to send our contributor Jim White to this event next year, provided a hurricane doesn’t bear down on his part of the country next September/October.

Better get to practicing, Jim!

~ ~ ~

Once again, this thread will be an overflow catch-all this week if the House January 6 Committee hearing is rescheduled to this week. Bring all your off-topic discussion here to this open thread.

In the first paragraph of her order reversing Raymond Dearie’s order that Trump verify the inventory DOJ provided, Aileen Cannon identified three documents by name: Dearie’s amended case management plan, dated September 23, Trump’s objections, which were originally sent to Dearie on September 25 but which she may have only seen on September 28, and a government filing she renames, which was originally titled, “Motion to Modify and Adopt the Amended Case Management Plan with Comments on the Amended Plan and Plaintiff’s Objections.” That was filed on September 27.

THIS CAUSE comes before the Court upon the Amended Case Management Plan (the “Plan”) [ECF No. 112], filed on September 23, 2022. The Court has reviewed the Plan, Plaintiff’s Objections [ECF No. 123-1], Defendant’s Response to Plaintiff’s Objections and Motion to Modify and Adopt the Plan [ECF No. 121], and the full record.

Later in her order, when she discusses Dearie’s own order that Trump confirm the inventory before the start of the designations, she describes the deadline he set for the inventory verification as September 30, then notes in a footnote that he modified that deadline in an interim report to her on September 27.

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Those two details are a tell to understand what, bureaucratically, Cannon imagines she did on Thursday. On Thursday, she was overruling Dearie’s plan as it existed on September 23, not as it existed on September 27.  She was effectively taking over the review starting on September 23, but without telling anyone that or explaining what deadlines applied.

It’s a way — and was used as a way in this instance — to make Dearie entirely superfluous, a mere showpiece to give her own direct intervention to give Trump his way the patina of legitimacy.

Start with Cannon’s order appointing Dearie, dated September 15. It required that Dearie submit a plan to her within ten days, so by September 25.

Within ten (10) calendar days following the date of this Order, the Special Master shall consult with counsel for the parties and provide the Court with a scheduling plan setting forth the procedure and timeline—including the parties’ deadlines—for concluding the review and adjudicating any disputes.

She set a five day deadline for the parties to object to that order, after which she would review the matter de novo.

The parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations no later than five (5) calendar days after the service of each, and the Court shall review those objections or motions, and any procedural, factual, or legal issues therein, de novo. Failure to timely object shall result in waiver of the objection.

The day after the 11th Circuit overruled her injunction on classified documents, on September 22, Cannon issued an order that everyone thought was just her acknowledging that the classified documents were no longer covered by the order (that’s not technically true, and I think she doesn’t believe it’s true even now, but it took the classified documents out of Dearie’s work plan). In taking out the reference to classified documents, it also took out this entire paragraph, including the bolded language about interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary. [my emphasis]

I raised it at the time, people poo pooed my concern (and scolded Dearie for raising it later). But this was the moment when Cannon told Dearie to fuck off, only without telling him she had done that.

Shortly after that, on day 7 after his appointment, Dearie submitted to the two sides his original plan. He gave them until September 27 to raise objections.

This Case Management Plan shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing Case Management Plan by September 27, 2022. Failure to timely object shall result in waiver of the objection. See Appointing Order, ¶ 11; Fed. R. Civ. P. 53(f).1

1. To the extent the parties file objections with the Court as to this Case Management Plan, the deadlines set forth above shall remain in effect while such objections are pending.

Clearly, at that point, he believed he would have time to address any concerns himself. The work plan included his plan to use (and pay, as the only paid employee) retired Magistrate Judge James Orenstein to help with the review.

On September 23, DOJ informed Dearie that Trump still hadn’t contracted with a vendor to scan the documents, and asked for a one business day extension, but still with the expectation that Trump would arrange the contract (since he is paying). DOJ also asked him to tweak his order to make it clear the inventory would not include the potentially privileged documents. They noted that Trump still hadn’t provided his proposed protective order, which had been due September 20, which would have held up the document scanning anyway.

Later that day, Trusty filed a protective order.

Dearie issued an updated work order, with the same September 27 deadline for changes. It also still included his plan to hire Orenstein. I believe this is the work order Cannon took as operative on Thursday.

Also on September 23, Dearie issued a protective order that (the docket entry noted) had been approved by Cannon. It sided with Trump that he didn’t have to share the name of his reviewers, something that was made less urgent after the 11th Circuit had taken the classified documents out of the work plan.

On September 25, on Dearie’s original deadline for filing a work plan with Cannon (but before the date he provided for changes), Jim Trusty emailed Dearie his three objections: they didn’t want to affirmatively confirm the inventory, they didn’t want to distinguish between Executive Privilege that could and could not be shared with the Executive Branch, and they didn’t think they had to brief the appropriateness of filing a Rule 41(g) motion to Cannon rather than to Reinhart. This was not docketed and Judge Cannon is not listed as a recipient of this email. Chris Kise was on the signature block of this letter.

The next day, September 26, the second public deadline (after the protective order, which Trump missed), DOJ filed a revised and sworn affidavit. That was also the deadline for Trump to designate all the potentially privileged files he had had since September 16.

A bunch of things happened on September 27. I’ll treat them in the order they appear in the docket, which looks like this:

First, Dearie filed a staffing proposal to Cannon, noting that the window for the two sides to object to it had expired. This was the first moment that the staffing got separated from his work plan.

No party has submitted any comment to the foregoing proposal, and the time for such comment has lapsed. Accordingly, the undersigned respectfully submits the foregoing proposal to the Court for approval.

Then Dearie filed an interim report to Cannon. In it, he recommended Cannon add back in the language authorizing interim reports that she struck along with language about classified documents.

Interim Reports and Adjustments to Prior Orders. In the original Appointing Order, the Court directed that “the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.” Appointing Order ¶ 6. However, the Court later struck that language as part of its order implementing an unrelated ruling by the Eleventh Circuit. As the language quoted above as to interim reports and adjustments to prior orders is consistent with the Eleventh Circuit’s ruling and the efficient administration of the Appointing Order as amended, the undersigned respectfully recommends that the Court issue an order reinstating that language.

His interim report clearly expected he’d get one more shot to resolve disputes. In it, he said the parties would have until October 2 to respond.

This Interim Report and Recommendation shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing report and recommendation by October 2, 2022

Next, there’s a sealed (and still sealed) order.

Then Cannon approved Dearie’s staffing plan, but declined to replace the language in her original order that permitted interim reports.

The Court takes no other action at this time, recognizing that the Order Appointing Special Master authorizes the Special Master to file reports and make recommendations as appropriate.

It was not clear at the time, but this effectively told Dearie that his understanding of how things would work — that he could issue interim reports and only after that Cannon would intervene — had been changed in the wake of the 11th Circuit ruling on classified documents. Effectively, Cannon told Dearie on September 27 she had taken over the work plan on September 23. That’s why, I suspect, that she only cited his September 27 Interim Report in a footnote. She basically ignored everything he did after September 23.

After that, DOJ filed its request for another deadline extension, along with its objections to Trump’s objections received two days earlier.

On September 28, Trump for the first time raised timeline concerns in writing, also claiming that DOJ had told Trump there were 200,000 pages (as I’ve written here, that’s virtually impossible; I suspect it came from the work order DOJ provided to solicit the vendor). The letter was not signed by Kise, and raised a lot of bogus claims about privilege (and also seemed to indicate that Trump had already missed the privilege deadline). Along with those concerns about timing, Trump filed his complaints, which (at least based on the public record) was the first time Cannon would have seen the complaints; the docket exhibit is what she cited in her order.

Working under Dearie’s deadline, DOJ had four more days to respond to Trusty’s probably bogus claims of 200,000 documents and to rebut the privielge claims. Working off a five day deadline from Dearie’s submission of his amended work order on September 27, DOJ also had four more days. Working under Cannon’s original deadline — five days after Dearie’s original deadline of September 25 — they had two more days. Under Dearie’s September 23 order, the final deadline was September 27.

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.

Timeline

September 15, 2022: Cannon opinion denying stay; Cannon’s order of appointment; Raymond Dearie declaration

September 16, 2022: DOJ motion for a stay

September 19, 2022: DOJ topics for initial Dearie conference; Trump topics for initial Dearie conference

September 20, 2022: Trump 11th Circuit response; DOJ 11th Circuit reply

September 21, 2022: 11th Circuit opinion granting stay

September 22, 2022: Cannon order removing documents marked as classified from Seized Materials covered by her order; Dearie proposed work plan

September 23, 2022: Protective order; amended case management plan; motion for extension of time

September 25, 2022: Trump objections to Dearie order (released on September 28)

September 26, 2022: Sworn affidavit with more detailed inventory; Julie Edelstein

September 27, 2022: Dearie interim report; Staffing proposal; Government motion for extension and to adopt case management plan

September 28, 2022: Trump objection that DOJ didn’t ask for enough additional time

September 29, 2022: Cannon order alters Dearie work plan

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

After far too many mass shootings, commentators in the US have started to learn that when you immediately circulate the manifestos of mass shooters, you are making further mass shootings more likely. You are according the death wishes and death wish of that mass shooter value. You are often disseminating his (mass shooters are usually men) ideology to others who might be searching for some cobble of beliefs to make their own lives meaningful. And you are contributing to the spectacle of the mass killing, ensuring the focus will be on the horror of the act rather than the tragedy of the lives lost, much less the policies we could pursue to stop the epidemic of mass killing.

We have gotten so well-practiced with mass shootings in the US, we know well enough not to participate in the mass shooter’s actions by magnifying his manifesto.

But we don’t follow that rule about terrorism-in-process, at least not in the form of the former President’s own tweets.

With each new level of outrageousness — most recently in a Tweet inciting violence against the Senate Minority Leader and racism against his spouse — people who applauded Twitter’s decision to deplatform the realty TV show host and other forms of violent speech circulate that very same violent speech, often with little more than an expression of outrage to mediate it.

Not only does circulating the former President’s speech with no mediation magnify it, just like circulating the manifesto of a mass killer. But it accepts — willfully participates in! — the reality TV show host’s structure of power.

Every time one of his tweets goes viral, especially on a platform that has told him his incendiary speech violates the rules of the platform, he says — the actions of those who participate in it say — that the rules don’t apply to him. That he remains the center of attention. He remains the center of attention because the rules don’t apply to him. And that we all remain in the very same positions we did for the four years of his presidency: He commands by commanding attention, including the attention of those for whom our very scolding reinforces his value, because we are the “elite” a demagogue derives his power by opposing.

And because this economy works so well for him, because it is a way to retain his power long after voters acted to take it away, because it’s the only trick he’s got, he’s willing to ratchet up the outrageousness of his speech if that’s what he needs to do to remain the center of attention.

This is the same impulse that leads the networks to cover every single rally the former President stages (complicitly hiding the empty seats in the back), while ignoring historical speeches of the man who is, at least on paper, the most powerful man in the world, Joe Biden. If you hate it when the networks make such decisions stop making the equivalent decision yourself.

The former President continues to exercise power not via a rational calculus, not by an argument that he’s fit to govern. He failed to deliver on every single one of his campaign promises, and codified racism is the only promise that he consistently pursued. (Mitch McConnell and his White House Counsels, of course, never stopped their relentless efforts to stack the courts.)

The way to neutralize that power is not to observe, for the 1000th time, “my gosh he has said something outrageous” or even, “my gosh he’s going to get someone killed.”

Besides, he already did that.

If you choose to make the former President’s incitement  the center of attention — and many Twitter commentariat are voting with their attention to do just that every day — you choose to make spectacle, emotion, and fear the currency of politics.

So long as he dictates the political agenda through his expert deployment of spectacle, we will never have a rational conversation about politics. We will never get voters to listen when we describe how Rick Scott plans to cut their social security. We will never successfully point out the Republicans who are running on spending they voted against. We barely get voters (older, male voters at least) to listen to what the Sam Alito Court did to women’s autonomy. There is no “better argument” when politics is dominated by spectacle.

The way to neutralize spectacle is not to magnify it. The way to neutralize spectacle is to expose it as such, to help people see the theatricality of it all (and to point out the flimsiness of it along the way).

It’s not a perfect solution, but that’s why I use X-es anytime I screencap a tweet from the former President anymore. It makes it more work to read them, emphasizes that these tweets are stage-managed things, and interrupts the process of an immediate emotional reaction.

Better yet, don’t screen cap him: if you need to refer to something he has done — if he has actually done something that has any effect beyond ratcheting up emotion — then describe it without even using his name. Describe why he’s attempting to gin up emotion again — in this case, because Mitch McConnell has moved on to doing his job trying to help run the country without the guy who lost. If the country starts functioning quasi-normally again, then people might realize that the former President benefitted from and therefore encouraged dysfunction, which in turn fed the cycle of distrust in government. McConnell has taken baby steps towards helping the Senate to function normally again, and the former President needs to halt that process before the benefits of a quasi-functioning government become apparent.

The former President may be hoping that he’ll lead the Minority Leader to hesitate as he starts acting like a powerful Republican in his own right again, to worry about some crazed MAGAt with an arsenal. And yes, the former President might genuinely hope that happens, to show his threats are real. He’s undoubtedly hoping his own followers will continue to hate, in this case, Americans of Chinese descent. His power necessitates that Americans hate other Americans, because without that conflict, hate, and fear, their loyalty to him can’t be stoked.

The point is, the former President is ratcheting up threats because he can sense his own power, at least over Mitch, melting away.

Don’t help him renew that power.

In late August, alleged aspiring spy Jareh Dalke told someone he believed to be a Russian spy that he had already reached out on the “SVR [Russia’s foreign intelligence service] TOR site.”

In addition, in two emails on or about August 23 and 24, 2022, DALKE requested that the OCE take steps to verify that the person DALKE was communicating with was truly a member of Foreign Government-1. DALKE claimed that he had reached out through “multiple published channels to gain a response. This included submission to the SVR TOR site.”3 DALKE sought assurances that the OCE truly was a “[Foreign Government-1] entity rather than americans [sic] trying to stifle a patriot.” DALKE requested that the OCE provide verification of the association with Foreign Government-1, through a posting on an official website or through a report in one of the “media services associated with the government.”

That may provide useful insight into why Dalke was arrested on the same day as Anna Gabrelian and her spouse, Jamie Lee Henry, also for attempting to spy for Russia. Gabrielian told the undercover officer she wanted to support Russia, including its war in Ukraine.

During that meeting, GABRIELIAN told the UC she was motivated by patriotism toward Russia to provide any assistance she could to Russia, even if it meant being fired or going to jail.

Like Dalke, Gabrielian allegedly reached out to Russia at some unspecified time in the preceding months. Like Dalke, an undercover FBI officer had followed up on that outreach and gotten the aspiring spies to reconfirm an interest in working with Russia (they’re not the same undercover employee, though; one is referred to with female pronouns and the other is referred to with male pronouns).

On or about August 17, 2022, an FBI Undercover Agent (“UC”) approached GABRIELIAN and introduced herself by name. The UC told GABRIELIAN she was asked to contact GABRIELIAN about the assistance she offered a couple of months ago. GABRIELIAN asked if the UC was from the Russian Embassy, and the UC confirmed that she was.

The entirety of the case against Gabrielian and Henry was put together during a few weeks in August, during a period between the time when Dalke first shared fragments of three documents in early August and a period in early September when Dalke’s undercover officer was trying (unsuccessfully) to lure him to DC. It appears to have sat, largely wrapped up, until former Mueller prosecutor Aaron Zelinsky presented it to a grand jury on Tuesday.

Ultimately, the FBI set up an electronic dead drop for Dalke at Denver’s Union Station for a four hour window on Wednesday.

In Gabrielian and Henry’s case, the couple only provided medical records from Fort Bragg and Johns Hopkins (though each HIPAA violation carries a potential ten year sentence). Dalke is accused of sharing Top Secret NSA information and documents from two other agencies.

And his case is far more alarming for the way that he seems to have gotten hired at the NSA with the intent of stealing documents he could use to pay off his debt.

He was in the Army from 2015 to 2018. The next year, he got an online Bachelors in cybersecurity, and what is probably another online degree, a Masters, sometime after that. He bought a place with his partner in Colorado Springs in 2020. In June, he took a job at the NSA, but only remained there for 25 days, from June 6 until July 1. He claimed he left because of a family illness that would require nine months away, but then he applied for a new NSA job on August 11, after setting up the cryptocurrency account he would use to get paid by the presumed Russian spy.

The affidavit describes two reasons, besides debt, why Dalke might have considered spying. His arrest affidavit describes him expressing dissatisfaction with the US, particularly how it treated members of the military. “This country it is not as great as it thinks it once was. It is all about the businesses and their money, not anything about the people or those that serve it to include the military.” And he, “recently learned that my heritage ties back to your country, which is part of why I have come to you as opposed to others.”

But in 2017, he filed for bankruptcy, reporting over $80,000 of debt. And in a conversation with the presumed spy, he described even more extensive debts than reflected in his bankruptcy filings (though that may reflect the mortgage on his home).

In addition, according to court filings, on December 12, 2017, DALKE filed for Chapter 7 bankruptcy, which was granted on March 29, 2018. At that time, DALKE reported that he had approximately $32,809.52 in student loan debt and $50,987.34 in other non-secured debt, primarily credit card debt. At the time of the bankruptcy filing, DALKE also reported that he had approximately $8,373.12 in total assets.

[snip]

DALKE further noted that he was in financial need and was seeking compensation via a specific type of cryptocurrency in return for providing information he had procured, stating, “[t]here is an opportunity to help balance scales of the world while also tending to my own needs.” DALKE requested payment in the specific type of cryptocurrency because “as in these things privacy is extremely important.”

[snip]

On or about August 26, 2022, DALKE told the OCE that the total amount of his debt was $237,000, $93,000 of which was “coming due very soon.”

So, with his two online degrees, he started a job at the NSA on June 6. He either came in knowing — or soon learned — of a vulnerability that he used to access stuff for which he wasn’t cleared.

DALKE also noted that certain of the information he had access to was due to a misconfiguration in the system that granted him access to information beyond what he should otherwise have.

On June 17, June 22, and June 23 he printed out some of the documents he is accused of stealing. On June 28, the told the NSA he was leaving for a family illness, and left three days later. And then, after he had sent four documents to the guy pretending to be a Russian spy, Dalke applied for an external vacancy at the NSA, 8 months before he planned to return to the agency. (Update: The affidavit is not entirely clear whether Dalke would have taken a job earlier.)

In short, this was a guy who appears to have treated NSA like a quick fix for his debt woes. And at a time of heightened intelligence concerns and in the wake of Edward Snowden and Josh Schulte, he still wasn’t IDed during the vetting process.

Before I went to sleep last night, I suggested there was some suspense about whether journalists would accurately report the power grab Judge Aileen Cannon made yesterday. Who was I kidding? Rather than report what happened, virtually all news coverage simply quoted what Cannon claimed she had done. Not only didn’t the press call out Cannon’s own misrepresentations, but they introduced some of their own.

First, some outlets had suggested that Raymond Dearie had set really aggressive deadlines and Cannon simply altered them. That’s not really accurate. Cannon definitely tweaked with how Dearie would deal with the disputes (mandating a single report from Trump rather than cascading productions, a decision that Trump will cite next month when they ask for an extension). But her original order didn’t mandate any interim deadlines on the review itself (meaning, she can’t say the delay in hiring a vendor changed her own timeline); she just gave Raymond Dearie deadlines and timeframes during which the parties could challenge his decisions. The new interim deadlines she provided are premised on when Trump first receives the materials, so the delay Trump introduced by stalling on a vendor may not affect the process all that much. Dearie’s own deadlines were timed to meet Cannon’s deadline. So effectively, Cannon has simply arbitrarily extended her own deadline by 17 days, from November 30 to December 16.

Finally, in light of delays in securing an appropriate vendor to scan and make available the Seized Materials to Plaintiff and the Special Master, and recognizing the more precise quantification of the implicated pages of material [ECF No. 123 p. 1 (describing that the 11,000 documents approximate 200,000 pages of materials)], the Court hereby extends the end date for completion of the Special Master’s review and classifications from the prior date of November 30, 2022 [ECF No. 91 p. 5], to December 16, 2022. This modest enlargement is necessary to permit adequate time for the Special Master’s review and recommendations given the circumstances as they have evolved since entry of the Appointment Order.

As I note below, that happens to delay the end of Dearie’s work until after such time as the appeal will be fully briefed.

Cannon bases her timeline on three things. First, there’s the delay Trump introduced in getting a vendor (a delay Jim Trusty telegraphed at the hearing before Dearie). Cannon currently envisions the two sides having to agree on a vendor, so Trump may be able to delay the process further still.

Cannon also bought Trump’s claim there are 200,000 pages of materials. As I’ll show in a follow-up, she timed her order in such a way as to prevent DOJ from correcting this claim. I suspect it comes from a draft work order DOJ gave to Trump, but we shall see if and when DOJ explains that it’s impossible for there to be 200,000 documents in the 27 seized boxes plus Trump’s desk drawers.

Cannon also has decided that it will take three weeks to do the review based off her claim that it took DOJ three weeks to do a preliminary review of the seized material.

For context, it took Defendant’s Investigative Team approximately three weeks to complete its preliminary review of the Seized Material [ECF No. 39 p. 1].

She bases that off the interim status report from DOJ, which doesn’t say how long the review took. Rather, it says,

As of the date of this filing, the investigative team has completed a preliminary review of the materials seized pursuant to the search warrant executed on August 8, 2022, with the exception of any potentially attorney-client privileged materials that, pursuant to the filter protocols set forth in the search warrant affidavit, have not been provided to the investigative team.

DOJ would have said the same thing whether they finished their review minutes before filing this status report or two weeks earlier. Cannon simply invented the claim that DOJ had only just finished the review on August 30, three weeks after the seizure.

Cannon likewise misrepresents the nature of Trump’s objection to the inventory review and what the inventory review would have been (and reporters made her misrepresentation worse).

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

[snip]

Plaintiff objects to the pre-review Inventory objection requirement, citing the Court’s Order Appointing Special Master [ECF No. 91] and the current inability to access the Seized Materials [ECF No. 123-1 p. 1].

[snip]

There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents.

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Here’s what Trump’s objection actually said:

To help find facts, the appointing order authorized a declaration or affidavit by a Government official regarding the accuracy of the Detailed Property Inventory [ECF 39-1] as to whether it represents a full and accurate accounting of the property seized from Mara-Lago. Appointing Order ¶ 2(a). The Appointing Order contemplated no corresponding declaration or affidavit by Plaintiff, and because the Special Master’s case management plan exceeds the grant of authority from the District Court on this issue, Plaintiff must object. Additionally, the Plaintiff currently has no means of accessing the documents bearing classification markings, which would be necessary to complete any such certification by September 30, the currently proposed date of completion. [my emphasis]

The material he couldn’t review was limited to documents with classification markings, not the documents as a whole. And as Cannon notes in a footnote (there’s a reason it’s in the footnote, which I’ll come back to in a follow-up), Dearie had given Trump the same four days after receiving the materials to review the inventory after he adjusted the deadlines. In spite of the fact that Dearie’s most recent order only envisioned this verification to happen after Trump got the material, Cannon calls it a “pre-review” and “ex ante” process, suggesting Trump would have had to verify the inventory blind.

Perhaps Cannon’s most cynical move, however, came in her order dismissing Dearie’s suggestion that the two sides might have to brief whether Trump should file a Rule 41(g) in this court or before Bruce Reinhart.

As explained in the Court’s previous Order, Plaintiff properly brought this action in the district where Plaintiff’s property was seized [see ECF No. 64 p. 7 n.7 (citing Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012))].

The 11th Circuit has already ruled that intervening absent any evidence of callous disregard for Trump’s rights was an abuse of discretion.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406

Even ignoring that two Trump appointees have already told Cannon she was wrong, the sentence before the one Cannon cites here notes the absurdity of filing for a Special Master and a Rule 41(g) motion in the same effort, calling it “somewhat convoluted.”

As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity.

Yet even after straining to approve this in her first review and then getting smacked down by the 11th, Cannon still persists in envisioning that she’ll be able to take government property and give it to Trump.

I suspect Cannon’s wrong about at least one more thing — whether Trump has complied with his deadline to mark privileged material. These issues, however, all exhibit the same dishonesty we’ve seen in the past.

Yet the very same press that Judge Cannon is blowing off nevertheless failed to identify any of these problems.

Current Schedule

September 26: Trump provides designations on potentially privileged materials

October 3: Both sides identify areas of dispute on potentially privileged designations

October 5: Finalize a vendor (Cannon fashions this as a common agreement, giving Trump ability to delay some more)

October 13: DOJ provides materials to Trump (Cannon does not note this does not include classified documents)

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

October 19: Deadline for DOJ appeal to 11th Circuit

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

November 8: Election Day

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

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

21 days after Trump reply (December 9): 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)

I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

Aileen Cannon, without explaining why she was intervening, just rewrote Judge Raymond Dearie’s work plans regarding the Special Master review. This was effectively a de novo review before Dearie issued his final decision in the matter.

With no justification (particularly given the way Dearie has ceded to multiple issues Trump has raised), and after having been scolded by the 11th Circuit for her improper claims of jurisdiction, she effectively just eliminated any claim that the Special Master Trump picked and she appointed is a neutral observer.

Altogether she:

• Excused Trump from having to lodge challenges to the inventory (while misrepresenting the current deadlines for doing so)
• Accepted Trump’s claims about the timing of vendors even though DOJ assumed that part of the task
• Bought Trump’s dodgy claim there are 200,000 pages of documents before DOJ could lodge a correction
• Ignored Trump’s own hints they missed the one deadline they’ve faced so far
• Invented claims about how long it took DOJ to conduct an initial review
• Extended her own deadlines to make sure that nothing would happen until after midterms
• Claimed (even after the 11th Circuit said differently) that there was no jurisdictional dispute over Rule 41(g) motions

I’ll further substantiate these details tomorrow.

It’s an obvious power grab to ensure her own intervention doesn’t backfire on Trump.

Nothing is surprising about this. It’s not even surprising how shamelessly she has intervened.

The only matter of suspense is how honestly reporters will report this naked power grab.