Posts

Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

/51 Comments/in , /by

I noted yesterday that the government claimed that Stan Woodward had conceded he had a duty of loyalty to Yuscil Taveras that would limit what he could do in an eventual trial of Walt Nauta.

In his own response, however, Woodward makes no mention of any duty of loyalty to a former client. Instead, he engages in a great deal of word games to suggest precedents don’t apply to what he repeatedly describes as “[very] limited” representation of Taveras.

Instead, the Special Counsel’s Office seeks to micromanage defense counsel’s handling of any potential conflict arising from the trial testimony of a witness, which such witness benefited from limited former representation, no ongoing dual representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for crossexamination by the counsel in question (as co-counsel is available for the same).2

[snip]

[T]he very limited representation of an individual whom the Special Counsel’s Office wished to question in relation to a matter that later developed into a criminal prosecution of another client.

It’s a ploy used in Woodward’s surreply, as well.

The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale.

Even if it were the case that clients weren’t entitled to privilege if a representation was limited in time or scope, it ignores a very crucial detail of this case.

DOJ told Woodward he had a potential conflict before Taveras testified to the grand jury in March, where he denied knowing about the attempt to delete surveillance video.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

The only way this representation would be so limited would be if Woodward did nothing to figure out what kind of legal exposure Taveras was facing in his March grand jury appearance.

Woodward continued to deny his representation of both Nauta and Taveras created a conflict even after DOJ gave Taveras a target letter — in part because he had advised Taveras that if he wanted to cooperate, he could get a different lawyer.

[T]he government provides no information to support their claim that [Taveras] has provided false testimony to the grand jury. While counsel does not preclude that the government may have provided more information to the Court ex parte, the government’s current representation that [Taveras] has clearly presented false or conflicting information to the grand jury is wholly unsupported by any information available to counsel. Further, even if [Taveras] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him. If [Taveras] wishes to become a cooperating government witness, he has already been advised he may do so at any time.

[snip]

Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government.

Woodward seems to suggest that Taveras has waived his privilege because he told prosecutors what advice Woodward had given him.

Because it appears that the Special Counsel’s Office well knows what was disclosed to defense counsel by Trump Employee 4, the Special Counsel’s Office cannot maintain its position that the revelation of the same is barred. Put differently, the assertion of the Special Counsel’s Office of a presumption of continuing privilege in this context, where the Special Counsel’s Office sought and obtained new counsel for Trump Employee 4 for the purpose of providing a means for Trump Employee 4’s testimony to change, and for his prior assertions to be explained by him—all of which was done not in the District where this case is pending, but in a faraway District, raising separate issues of grand jury misconduct—warrants development of the record at a hearing so as to ascertain to what extent any applicable privilege has been waived by Trump Employee 4’s disclosures to the Special Counsel’s Office. At a minimum, if the Special Counsel’s Office persists in asserting that privileged information remains, an evidentiary hearing is warranted as to what the Special Counsel’s Office is withholding regarding Trump Employee 4, his claims as to prior representation, and whether there has been any failure to disclose such matters to the Special Counsel’s Office.

Here, Woodward fashions privilege to consist only of confidentiality, not loyalty. And he suggests that because Taveras has shown some kind of disloyalty to him, he doesn’t owe any back.

In the filing, Woodward makes an oblique reference to Beryl Howell’s ruling finding Evan Corcoran’s advice to Trump to be crime-fraud excepted (though as he always does, he calls the underlying grand jury investigation in this very case a “faraway” District).

[I]t is noteworthy that in the United States District Court for the District of Columbia the Special Counsel’s Office has taken precisely the opposite position with respect to privileged communications. Specifically, in that District, the Special Counsel’s Office took the position that where a witness represented by counsel in a government compliance matter is not forthcoming with their counsel, a crime-fraud exception applies, voiding the attorney-client privilege. While Mr. Nauta vehemently opposes any application of the crime-fraud rulings made in a faraway District to this case, it is nevertheless impermissible for the Special Counsel’s Office to tailor the positions it takes before courts and/or grand juries in the various Districts where it seeks an advantage in its prosecution of former President Trump and his coconspirators.

This appears to be an attempt to liken Trump’s affirmative lies to Corcoran to Taveras’ own communications with him.

But, particularly with the demand for a hearing to find out what Taveras has told SCO about Woodward’s advice to him, it comes off as flopsweat about his, Woodward’s, own conduct.

Stan Woodward Contemplating His Former Client Might “Become Unavailable” for Testimony

/90 Comments/in , /by

Last week, Judge Aileen Cannon had the much delayed Garcia vote to make sure that Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, had knowingly waived any conflicts their attorneys had. The reporting on the hearing all focused on the scolding Cannon gave the Special Counsel’s Office, because they had brought up a possible risk — that Stan Woodward would impugn Yuscil Taveras during closing arguments — they hadn’t previously briefed.

I do want to admonish the Government for, frankly, wasting the Court’s time because, had you brought up these issues in an appropriate way, we could have done this without circling the wagons and creating confusion that was unnecessary. So, I am disappointed in that.

Immediately after the hearing, journalists presented conflicting stories about the hearing, some reporting that biggest flashpoint was an assertion by the government that Stan Woodward should be categorically excluded from cross-examining his former client Yuscil Taveras at trial, and others reporting the problem to be that SCO’s David Harbach suggested that Woodward should also be prevented from maligning the man he used to represent in closing arguments.

None of the coverage I saw got something very basic right: what the past briefing had been about.

The past briefing was about whether to have a Garcia hearing. It wasn’t about what to include in a Garcia hearing.

David Harbach, arguing for Special Counsel, even pointed that out in the morning session.

MR. HARBACH: Specifically it is our view that a lawyer who suffers under a conflict, that — in that situation the lawyer is precluded from — by his duty of loyalty to his [former] client, from arguing to the jury that his former client lacks credibility or attacking his former client’s character.

And those obligations flow from the lawyer’s duty of loyalty to his or her former client, and do not turn on whether specific confidential information was provided to the lawyer that might or might not facilitate better or worse cross-examination of the witness.

THE COURT: All right. So, did you make this argument about sort of weaker arguments to juries in your papers?

MR. HARBACH: Not in our papers suggesting that we needed to have a hearing because that wasn’t necessary for the Court’s obligation to conduct this hearing.

Harbach pointed out — rather meekly — that previously they had only been arguing that Cannon needed to hold a hearing. She never asked what to include in it.

Don’t believe me? Here’s the tell: After the hearing, Judge Cannon ordered just that briefing.

On or before October 17, 2023, the parties shall meaningfully confer to further clarify the nature, scope, and potential manifestations of the conflicts alleged by the OSC regarding Stanley Woodward’s former representation of Trump Employee 4 and current representation of Witness 1. 1 This conferral should include a comprehensive discussion of the ways in which the OSC believes that Mr. Woodward’s former representation of Trump Employee 4 and current representation of Witness 1 could adversely affect Mr. Woodward’s performance so as to render his assistance of Defendant Nauta ineffective, in violation of the Sixth Amendment.2 The OSC shall disclose to defense counsel all legal authorities in support of its position so that Mr. Woodward may adequately advise Defendant Nauta prior to the continued Garcia hearing.

Sure, she blamed Jack Smith’s team, pretending they brought up new stuff. They did! But they did so only because she had never considered the full scope of the conflict.

She still isn’t. She views the conflict exclusively in terms of Nauta’s rights; she’s ignoring Yuscil Taveras’ right to have his past attorney-client privilege respected.

None of the discussion at the hearing addressed the obligations under the Florida Bar, which SCO included in their original motion.

The Rules Regulating the Florida Bar reflect these concerns, providing that, absent informed consent, a lawyer “must not represent a client” if “there is a substantial risk” that the representation “will be materially limited by the lawyer’s responsibilities to another client” or “a former client.” Fla. Bar R. Prof’l Conduct 4-1.7(a).4 Informed consent requires, among other things, that “each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.” Fla. Bar R. Prof’l Conduct 4-1.7(b)(4). The Rules further provide that “[a] lawyer who has formerly represented a client in a matter must not” either “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent” or “use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known.” Fla. Bar R. Prof’l Conduct 4-1.9(a)-(b). The commentary to the Rule explains that “information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client without the former client’s consent.” Fla. Bar R. Prof’l Conduct 4-1.9 commentary. [my emphasis]

And because journalists were so focused on Cannon blaming prosecutors, forgetting that she has already blamed prosecutors for her own fuck-ups and manufactured problems, they missed two specific things that Woodward said.

First, as ABC noted, Woodward was angriest that he might be be prevented from cross-examining Taveras. As part of his argument, he suggested he didn’t have to address that eventuality because Taveras — still a Trump employee — might instead “become[] unavailable.”

MR. HARBACH: So, that is why we think in this case it is crystal clear that Mr. Nauta should be advised and should be well aware of the possibility, likelihood, eventuality, however your Honor would like to put it, that his lawyer would not be able to cross-examine Trump Employee 4 at trial. That much seems clear, and we don’t, frankly, understand how Mr. Woodward could think that he could cross-examine Mr. — Trump Employee 4 under these circumstances. We are at a loss.

[snip]

MR. WOODWARD: To presume that I am incapable of cross-examining him is a presumption that is unnecessary because, contrary to the Government’s position, we don’t know that he will testify in this trial. There is the potential that the Court could preclude him from testifying. There is the potential that he becomes unavailable.

Woodward’s solution to a conflict is to contemplate that Taveras might become unavailable for testimony. Woodward did this even while arguing that SCO was asking both too early and too late for a conflicts hearing.

Plus, most coverage missed Stanley Woodward’s past claims.

It is absolutely bullshit that cross-examination didn’t come up. In Woodward’s sur-reply, his last bid to prevent this conflict hearing, he stated that of course cross-examination wouldn’t be a problem, because another attorney (Sasha Dadan) was available.

11 The Special Counsel’s Office cites particularly inapt conflict cases which reveal the lack of a sound basis to request the hearing that the Office now seeks. See United States v. Braun, No. 19-80030-CR, 2019 WL 1893113, at *1 (S.D. Fla. Apr. 29, 2019) (hearing as to, ”two defense attorneys from [the same firm, jointly] representing two defendants in this case[.]”); United States v. Schneider, 322 F. Supp. 3d 1294, 1296-97 (S.D. Fla. 2018) (addressing representation of two co-defendants, where counsel represented first defendant in his role as a cooperating government witness, and then thereafter newly took on representation of the second defendant, the target of the cooperation, while still representing the first cooperating defendant). The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale. [my emphasis]

I wrote about Woodward’s comments in a post called, “Stan Woodward Thinks Aileen Cannon Is an Easy Mark.”

We will get SCO’s brief later today about the scope of what Cannon should be asking, with Woodward’s due tomorrow, and the follow-up hearing Friday.

But things are going to get testy. In her order, Cannon finally copped onto how testy they might get. She envisioned the possibility of considering a disqualification motion after the Garcia hearing.

2 To date, the OSC has not moved the Court to disqualify Mr. Woodward as counsel or to impose remedial measures on Mr. Woodward’s ability to perform as counsel for Defendant Nauta [ECF No. 97 p. 9]. Any consideration of disqualification or imposition of other remedial measures will be addressed following the Garcia hearing as part of the Court’s decision to accept or decline any proffered waiver.

Taveras has not waived privilege. It’s not clear how, under Florida Bar rules, Woodward can comment about the conflicting testimony Taveras gave while represented by the DC attorney.

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

/120 Comments/in , , , /by

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

/63 Comments/in , /by

John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

Stan Woodward Thinks Aileen Cannon Is an Easy Mark

/238 Comments/in , /by

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

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

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

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

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

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

All of this is transparent garbage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cannon was already aware of these potential conflicfts.

And she did nothing.

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

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

/228 Comments/in , , /by

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

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

It revealed:

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

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

A filing submitted from DOJ shows that I was right.

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

Let’s review the timeline.

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

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

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

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

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

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

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

Projection, projection, projection.

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

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

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

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

The full filing doesn’t help Woodward.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Things did, indeed, come to that.

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

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

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

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

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

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

The Secrets within Donald Trump’s Stolen Secrets Docket

/31 Comments/in , /by

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

It revealed:

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

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

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

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

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

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

There was one before DOJ’s notice.

And one after.

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

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

Judge Cannon ordered those to be stricken.

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

DOJ Invites Aileen Cannon to Avoid Another Reversible Error

/119 Comments/in , /by

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

The term of that grand jury ended on August 17.

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

DOJ is trying to help her avoid a second reversal.

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

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

/32 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

How 9 Months of Camera Footage became 8 Years

/47 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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