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The Zombie Case against Trump’s Indicted Co-Conspirators

Jack Smith signed the motion to dismiss the January 6 case against Trump, but his appellate lawyer, James Pearce, (digitally) signed the parallel request before the 11th Circuit.

Who knows whether that means anything.

But now that Smith has committed to sustaining the appeal of Judge Aileen Cannon’s decision as it applies to Walt Nauta and Carlos De Oliveira, someone needs to take over the case and write the reply, which is due on December 2. Pearce has done the primary work for all Jack Smith’s appeals and so could do so here — or, perhaps Jack Smith will close up shop, along with Pearce, and let Solicitor General Elizabeth Prelogar take over before she’s replaced by John Sauer in January.

One way or another, there’s likely to be a transfer of the Zombie case back to DOJ, where it will be suffocated with pillows never to be heard from again.

The decision to sustain the Nauta and De Oliveira case just long enough for Trump to shut down next year has certain ramifications I only touched in passing in this discussion with Harry Litman about what we might get in a report from Jack Smith, which is probably more accessible than this post about what declination decisions we might see (transcript here).

First, they’ve got due process rights. Meaning, you can’t say anything in a report that might endanger their ability to get a fair trial (a trial they’ll never face, of course). That may lead to redactions of the sort we saw in the original Mueller Report but which were re-released under FOIA. Or it may lead prosecutors to gloss certain things — such as the obstruction — in the report. In the chat with Litman, I noted that ABC reported that Walt Nauta and Trump went back to Mar-a-Lago after hiding documents from the FBI, which might make the report. But if it appears in there, it would need to be presented in such a way to protect Nauta’s due process rights.

It’s possible, even, that until the appeal, DOJ would avoid describing the investigative steps taken in the documents case after Smith was appointed in November 2022. The logic of Cannon’s opinion basically wiped out all that investigative work. Poof. Though it’s possible that Julie Edelstein and David Raskin — who left Smith’s team in October — have done something to recreate some of the work, such as the declassification that had happened in advance of an imagined Florida trial.

Meanwhile, sustaining the case against Nauta and De Oliveira creates an interesting dilemma for DOJ that may have repercussions for others and Trump’s DOJ going forward: how to get rid of the appeal. He would pay least political capital by just dismissing the appeal. But that would reflect a DOJ stance that Jack Smith was unconstitutionally appointed — something that might bind DOJ going forward (as if Pam Bondi won’t just pick Trumpy US Attorneys to do her dirty work like Bill Barr did) — though that may be unavoidable if Trump’s Solicitor General and Deputy Attorney General had both argued that Smith was unconstitutionally appointed, as they have.

But that would go some way to arguing that David Weiss’ appointment as Special Counsel is unconstitutional as well. It might give Hunter Biden, if his father doesn’t pardon him (and Alexander Smirnov, if he is convicted next month and not pardoned) cause to enjoin Weiss’ prosecutors from publishing a report; it would also make Hunter’s appeal of his charges far easier, especially in Los Angeles, where Weiss is not the confirmed US Attorney.

Which may be why (as both Litman and I suggested) Trump might want to pardon Hunter — to give the air of magnanimity to unintended consequences of his efforts to kill the case against him. To say nothing of the transparency into Trump’s first term that Hunter might get if he succeeds with his other appeals.

The case against Nauta and De Oliveira will be dead, one way or another, in two months. But until then, it’ll exist as a Zombie, having potentially unanticipated consequences.

Update: The full Jack Smith team has submitted its reply brief.

Stolen Documents Motions to Dismiss

Trump and at least Carlos De Oliveira are filing motions to dismiss (some are being unsealed via a review process). I’ll post them here until I read in more detail.

De Oliveira MTD or Bill of Particulars

Trump’s claim of presidential immunity to steal documents

Trump’s claim that he’s too stupid ot understand 18 USC 793(e)

Trump’s Special Counsel claim (repeating Hunter Biden’s appropriation claim)

Trump’s claim the Presidential Records Act says the opposite of what it says with assist from John Solomon

Still to come: A motion to suppress the search of Mar-a-Lago

Notice of pretrial motions

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

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.

Discoveries in the Stolen Document Discovery

As I noted in this post, the government provided a supplemental discovery notice yesterday. It included the following:

  • CCTV provided by Trump Org on May 9 and May 12 in response to an April 27 subpoena
  • CCTV obtained after June 8 pertaining to new obstruction allegations (DOJ does not confirm whether this came from Trump Org or not)
  • All 302s finalized by yesterday (302s are what the FBI calls interview reports)
  • All grand jury transcripts in government’s possession

The discovery confirms that the government took certain steps after June 8 to add Carlos De Oliveira to the indictment. There are two kinds of surveillance footage that appear in that section of the indictment: from De Oliveira and Walt Nauta’s stomping around trying to understand what surveillance footage there would be, including looking right at the key cameras in the hallway outside the storage room, as well as their discussions in the bushes just off Mar-a-Lago property.

The reference to location data may mean they obtained De Oliveira’s phone account.

The discovery also means that, if DOJ was using another grand jury, in addition to the DC and SDFL ones, Trump is now aware of it, because DOJ has turned over all transcripts in their possession (past notices had specified the two grand juries).

Finally, the discovery also describes that DOJ subpoenaed Trump Organization for yet more surveillance footage in April, which Trump Org turned over on May 9 and 12. That subpoena was already public; NYT reported it in May.

Prosecutors have also issued several subpoenas to Mr. Trump’s company, the Trump Organization, seeking additional surveillance footage from Mar-a-Lago, his residence and private club in Florida, people with knowledge of the matter said. While the footage could shed light on the movement of the boxes, prosecutors have questioned a number of witnesses about gaps in the footage, one of the people said.

The timing is interesting though. It comes after — per this WaPo report — Carlos De Oliveira was informed he might be charged after he claimed not to remember the dates when Trump returned to Mar-a-Lago in July 2022 (note: this “proffer” session sounds more like an interview conducted under a limited proffer before a grand jury appearance).

For one thing, De Oliveira said he did not remember his boss coming back to Mar-a-Lago in July, the people said. Trump tended to stay away from the Florida summer heat, and it did not seem likely to some investigators that De Oliveira would forget the former president showing up twice in two weeks.

The prosecutors’ dissatisfaction came to a head in mid-April, when De Oliveira was given a proffer session — an interview in which a prosecutor and a defense lawyer meet with a person to decide if they have valuable information to offer an investigation, the kind that could lead to a plea deal.

If prosecutors grew convinced De Oliveira was lying, they may have pulled his grand jury appearance. His charged false statements were in a January 13, 2023 interview at his Florida residence, not this appearance in what may still have been DC.

In the same time frame as this subpoena for additional surveillance footage, DOJ also subpoenaed Trump’s business records from the Saudi LIV tournament.

One of the previously unreported subpoenas to the Trump Organization sought records pertaining to Mr. Trump’s dealings with a Saudi-backed professional golf venture known as LIV Golf, which is holding tournaments at some of Mr. Trump’s golf resorts.

A later NYT story reported that the subpoenas were broader: to include foreign deals with a variety of countries.

The subpoena — drafted by the office of the special counsel, Jack Smith — sought details on the Trump Organization’s real estate licensing and development dealings in seven countries: China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman, according to the people familiar with the matter. The subpoena sought the records for deals reached since 2017, when Mr. Trump was sworn in as president.

And then, after those subpoenas but before Trump Org complied with them, the Matthews Calamari testified about why Walt Nauta sent Calamari senior a text in the time frame when he and De Oliveira were allegedly stomping around Mar-a-Lago attempting to implement Trump’s order to destroy surveillance footage.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

In that same April time frame, DOJ was also asking about loyalty oaths before being given Trump-paid attorneys to represent them — the fruit of which questions likely show up in ¶91 of the superseding indictment.

Another line of inquiry that prosecutors have been pursuing relates to how Mr. Trump’s aides have helped hire and pay for lawyers representing some of the witnesses in investigations related to the former president. They have been trying to assess whether the witnesses were sized up for how much loyalty they might have to Mr. Trump as a condition of providing assistance, according to people briefed on the matter.

It was after that, though, after the first indictment on June 8 which may have helped demonstrate the seriousness of this inquiry, when per CNN reporting the following happened with Yuscil Taveras, the IT guy who said he didn’t have the rights, on his own, to delete surveillance footage:

  • Receives a target letter
  • Decides he wants to be more forthcoming
  • Gets a new lawyer (reportedly after a conflict review instigated by a judge)
  • Testifies about the request De Oliveira made inside the sound room and his own response that De Oliveira would have to call people who might be one of the Calamaris

In that same period, per yesterday’s discovery letter, that DOJ obtained more surveillance footage and possibly the warrant tracking location data.

One note: If people testified before the grand jury in DC before Jack Smith moved to present charges in SDFL, they would have separate exposure for perjury there.

Here’s my track of what DOJ has turned over when (with links to the documents below).

 

June 21, 2023: Response Discovery Order

June 23, 2023: Motion to Implement Special Conditions

July 6, 2023: Supplemental Response Discovery Order

July 10, 2023: Defendants Response Motion for Continuance

July 13, 2023: Government Reply Motion for Continuance

July 17, 2023: Supplemental Response Discovery Order

July 18, 2023: Status Hearing (Lawfare account)

July 31, 2023: Supplemental Response Discovery Order

Update: Answered two questions I’ve gotten up in the text above: First, I used “provided by Trump Org” and “obtained” in the bullets above because that’s how the filing describes these. As I’ve noted, the video showing De Oliveira and Nauta in the bushes might well have come from a different property owner.

Second, I defined 302s, which are what the FBI calls interview reports.

How Trump Clouded Journalists’ Heads about Surveillance Video

In a story demoting Trump’s alleged co-conspirators to “minor characters” and omitting Yuscil Taveras’ reference to “the supervisor of security for TRUMP’s business organization” who could provide him the rights allowing him to delete security footage, NYT states as fact that Trump’s corporate person did turn over the surveillance tapes.

The Trump Organization ultimately turned over the surveillance tapes, and the indictment does not accuse any Mar-a-Lago employees of destroying the footage.

Until I noted it, NYT also reported that Taveras said he didn’t have the “right,” as opposed to “rights” to do so.

NYT is not the only outlet making this conclusion, noting that prosecutors obtained video and so concluding that Trump must have turned it over.

Such conclusions are wildly premature.

Trump, certainly, is making the claim.

But Trump’s tweet includes one demonstrable falsehood: any video turned over was compelled via subpoena, not handed over voluntarily (this repeats a false claim Trump made last summer about voluntarily turning over early tranches of documents). And Trump’s claim that he “never told anybody to delete them” conflicts with Taveras’ testimony about Carlos De Oliveira’s instruction, that “‘the boss’ wanted the server deleted.”

So, even ignoring he’s a pathological liar, there’s no reason we should credit Trump’s claim the tapes (at least some parts of them) were not deleted.

It is true that the current indictment does not yet charge Trump and his corporate person with deleting video. It is also true that the indictment stops at 3:55PM on June 27, 2022, more than a week before some surveillance footage was turned over on July 6, 2022. We only know part of what happened during the first five days after Trump Org was alerted to the subpoena. That leaves a lot of time for shenanigans.

There’s a lot of this story that prosecutors have not yet told.

Even in what prosecutors have revealed so far, it is clear Trump’s initial subpoena response fell short of complying with the subpoena, though there may be reasonable explanations for that. DOJ had subpoenaed five months of footage, from January 10 through the date of subpoena, June 24 (which would have captured the days leading up to Trump’s return of 15 boxes in January 2022). But Trump Org only provided footage from April 23 through June 24.

That’s a curious length of time: 62 days. It suggests Trump Org normally deletes surveillance footage after 60 days, not the 45 days Taveras believed they kept. But if that’s the case, to have 62 days of footage, Trump Org started preserving footage when Jay Bratt first alerted them to the subpoena on June 22. Importantly, if Trump Org’s surveillance footage is automatically written over after 60 days, then someone would have had to take action to start preserving it on June 22 for April 23 and 24 to have been included. That action would have happened before (at least as portrayed in the superseding indictment) anyone spoke to Taveras at Mar-a-Lago. Probably, then, that action occurred in New York.

More suspect is Trump’s failure to provide video footage of all the locations subpoenaed.

There’s a redaction in the citation of the subpoena in the warrant affidavit where it describes the locations requested.

It was never clear before last week whether the redaction hid another subpoenaed location. But the superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, one of which was the basement hallway.

The search affidavit describes that the disk provided on July 6 included footage only from four cameras in the basement hallway. Here, too, though, there could be a reasonable explanation: it may be Mar-a-Lago simply didn’t have cameras in the other requested positions. There’s another redaction in the search affidavit that might provide that explanation.

Certainly, when Walt Nauta and De Oliveira scouted out surveillance cameras with a flashlight on June 25, they’re only described as doing so in the basement hallway.

Many outlets are concluding that Trump Org must have turned over everything from that hallway since the search affidavit relied heavily on security footage to describe Nauta (then referred to as Witness 5) moving in and out of the storage room. But even that may overstate things. As I noted, there’s one movement of boxes that appears in the indictment but does not appear in the search affidavit: When Nauta entered the storage room on May 22, spent 34 minutes in there, and then left carrying a single box.

53. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

This is not proof that the footage wasn’t on the disk turned over on July 6. Perhaps the FBI wasn’t all that interested in this single box retrieval and so didn’t include it in the search affidavit. But it is a piece of footage the prosecutors may have obtained later, perhaps via other means.

This was only the first subpoena for video, however. Earlier this year, CNN described follow-up subpoenas after the August search, followed later by a preservation request before De Oliveira flooded the server room in October. The second subpoena, which may have been an attempt to learn when and how the remainder of the boxes were moved back into the storage closet, where they were found on August 8, might have obtained the footage of De Oliveira and Nauta scouting out the surveillance cameras. Once the FBI saw that, I’m sure they scrutinized what they had obtained far more closely, if they hadn’t already.

But there must be more than that: some weeks ago, the defense said they had received “approximately nine months” of surveillance 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).

If DOJ never got footage before April, they may have footage from some part of every month through December, when the last known search occurred (and if DOJ got a video of the search conducted at Bedminster, it may explain why the FBI hasn’t conducted their own search).

Importantly, defense attorneys don’t know how much surveillance footage they’ll eventually get. If all of it was coming from Trump Org, they would. (Though even the superseding indictment appears to rely on surveillance footage, capturing Nauta and De Oliveira in bushes just off Mar-a-Lago property, that could have come from a neighboring property owner.)

That’s why NYT’s earlier reporting may indicate that Trump Org didn’t “ultimately turn[] over all the surveillance tapes.” As NYT reported in May, DOJ also subpoenaed the software company that handles Trump’s surveillance footage.

But hoping to understand why some of the footage from the storage camera appears to be missing or unavailable — and whether that was a technological issue or something else — the prosecutors subpoenaed the software company that handles all of the surveillance footage for the Trump Organization, including at Mar-a-Lago.

Once DOJ identified suspected gaps they would do what DOJ does in all criminal investigations: find another source.

Especially when dealing with an entity, Trump Org, that in recent years had what the Senate Intelligence Committee described as “known deficiencies in [] document responses.”

When SSCI subpoenaed Trump Org for any documents showing ties between the campaign and Russia in 2016, Trump’s corporate person didn’t turn over everything. For example, they didn’t turn over (to Congress at least) an email from Paul Manafort describing how to “secure the victory,” predicting that Hillary “would respond to a loss by ‘mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results'” — precisely the strategy Trump used in 2020, albeit with the true statement that Russia was tampering with election facilities, though not the vote tallies.

I keep coming back to this, but one of those deficiencies — one of the things Trump Org didn’t provide in 2017, at least to the two congressional committees investigating Trump’s ties to Russia — were the emails showing that Michael Cohen directly contacted the Kremlin in January 2016 and got a response from Dmitri Peskov’s assistant. Mueller got a copy of it, though. He cited it in the report.

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350

There’s a ready explanation for how Mueller got an email showing that Trump’s fixer was in direct contact with the Kremlin during the election when it wasn’t included in Trump Org’s subpoena responses, at least to Congress: because on August 1, 2017, Mueller obtained Cohen’s Trump Org emails using a warrant served on Microsoft.

At least in 2017, as laid out in the warrant affidavit, Microsoft was the enterprise provider for Trump Org’s email.

55. On or about July 20,2017 and again on or about July 25, 2017, in response to a grand jury subpoena, Microsoft confirmed that the Target Account was an active account associated with the domain trumporg.com. Microsoft also provided records indicating that email accounts associated with the domain “trumporg.com” are being operated on a Microsoft Exchange server. According to publicly available information on Microsoft’s website, Microsoft hosts emails for clients on Microsoft Exchange servers, while allowing customers to use their own domain (as opposed to the publicly available email domains supplied by Microsoft, such as hotmail.com). According to information supplied by Microsoft, the domain trumporg.com continues to operate approximately 150 active email accounts through Microsoft Exchange, meaning that data associated with trumporg.com still exists on Microsoft’s servers.

That meant that, even though Trump Org didn’t turn over those damning emails (and Cohen testified to Congress as if they didn’t exist), Mueller got a copy anyway from the vendor, Microsoft, providing the cloud services to Trump Org.

The same may have happened with Trump’s surveillance footage: DOJ went to a cloud provider to obtain their version of it, without any gaps.

That warrant was, in part, a Foreign Agent warrant, so people in DOJ’s National Security Division working with Jay Bratt likely would have had a heads up. Bratt and Julie Edelstein, both on this investigative team, may well remember Trump Org’s recent, “known deficiencies in [] document responses,” and so knew to look for another source.

If that happened, then Nauta and De Oliveira may have initially testified believing certain events weren’t on surveillance footage turned over to DOJ when DOJ actually had such footage, just like Michael Cohen testified to Congress (and initially, to Mueller) as if those emails didn’t exist.

Here’s a point I keep coming back to. The surveillance footage turned over on July 6 had really damning footage: showing Nauta first emptying then half refilling the storage room. That footage, showing Trump withholding documents from Evan Corcoran’s search, was central to DOJ’s probable cause to obtain the warrant to search Trump’s beach resort on August 8.

If there are or were gaps, they served to hide something still more damning than proof that Trump was playing a shell game with his own attorney.

What we know (and Jay Bratt and Julie Edelstein likely knew when they started this investigation) is that in 2017 during the Russian investigation, all the known “deficiencies in [] document responses” in Trump Org’s subpoena compliance pertained to precisely the thing investigators most feared they would find: Direct ties between Trump and Russia.

Which undoubtedly would have made them all the more determined to fill any real or perceived gaps in Trump Org’s production of surveillance video.

Update: The government reveals it was still obtaining surveillance until recently, pointing to both footage obtained with an April 27 subpoena and footage — it doesn’t say from where — after the June 8 indictment.

Included in Production 3 is additional CCTV footage from The Mar-a-Lago Club that the Government obtained from the Trump Organization on May 9 and May 12, 2023, in response to a grand jury subpoena served on April 27. On July 27, as part of the preparation for the superseding indictment coming later that day and the discovery production for Defendant De Oliveira, the Government learned that this footage had not been processed and uploaded to the platform established for the defense to view the subpoenaed footage. The Government’s representation at the July 18 hearing that all surveillance footage the Government had obtained pre-indictment had been produced was therefore incorrect. See 7/18/2023 Tr. at 8. With this production, which also contains CCTV footage obtained after the original indictment was returned that pertains to the new obstruction allegations in the superseding indictment, the Government has produced all the CCTV footage it obtained during its investigation.

And if there’s a non-public grand jury, then Trump knows about it.

With the completion of Production 3, the Government has also now disclosed all unclassified memorialization of witness interviews finalized by today’s date and all grand jury transcripts in the Government’s possession.

“Rights” and Wrongs: Where the Stolen Documents Investigation Is Headed

I want to start this post about where the stolen documents investigation may be headed with an observation a commenter here made about this passage of the superseding indictment: the import of the word, the “rights,” coming from an IT guy who would think in terms of access privileges.

The passage comes in the midst of the Keystone Cops routine where Walt Nauta and Carlos De Oliveira try to figure out how to achieve Trump’s apparent order — probably given during a 24-minute phone call to De Oliveira on June 23 and to Nauta face-to-face at Bedminster sometime between 3:44 and 5:02PM on June 24 — to delete the surveillance server. They were stomping around, squawking about how sensitive this mission was. Nauta sent someone texts with shush emojis and De Oliveira told a valet Nauta’s visit should remain secret.

The evening of June 25 — one day after DOJ sent Trump Organization a subpoena for surveillance video — they get a flashlight and go to inspect what the surveillance cameras would pick up; by moving in front of the surveillance cameras, which we now know are motion activated, they would have triggered the cameras, thereby creating more damning surveillance footage.

Imagine the video exhibit at trial, as both Nauta and De Oliveira point a flashlight at the surveillance camera that, weeks earlier, caught both of them moving just half the boxes full of classified documents back into the storage room, two earnest faces looking straight into the camera. That footage wouldn’t be covered by the subpoena they were, at that moment, trying to defy; it would probably be covered by the next subpoena.

Two days later (there’s no indication of how Nauta spent his day on Sunday June 26), on June 27, De Oliveira walks into the IT room and asks Yuscil Taveras in front of a witness (possibly in front of another security camera) to step away so they could speak. They go to what they call an “audio closet” (which could be the decommissioned SCIF) and De Oliveira tells Taveras that “the boss” wants the surveillance server deleted.

Taveras says three things in response:

  1. He doesn’t know how to accomplish that
  2. He doesn’t have the “rights” to do that
  3. To accomplish the task, De Oliveira would have to reach out to one of the Matthew Calamaris

The words, “rights,” here hasn’t gotten enough attention. Taveras was saying that he did not have the computer privileges to just delete the surveillance server: one of the Matthew Calamaris in New York would have to be involved to make such a thing happen.

So after that, De Oliveira checks back in with Nauta (who has flown to Florida to accomplish this task, along with whatever he did on June 26), they stomp around some more in suspicious ways that are visible to yet more surveillance cameras, and then two hours later Trump speaks to De Oliveira for 3.5 minutes. As described, Trump calls De Oliveira, not the other way around.

Remember how I said — of the January 6 investigation — that the January 6 investigation would take more time than the Watergate investigation because, unlike Nixon, Trump is not known to have wiretapped himself?

Well, on the stolen documents investigation, he did, effectively, wiretap himself, or at least all the employees he sent to accomplish his corrupt mission. And then Trump tried, over and over, to Rosemary Woods away incriminating video, at least this first time, captured on video again.

But amid all the Keystone Cops stomping around talking about secrets while on surveillance camera and sending shush texts, what Taveras said is an important hint of where this investigation may go next (as I laid out here).

Thus far, this story — and the conspiracy as charged so far — is just a story of a failed attempt to destroy surveillance video. De Oliveira: Can you delete the server? Taveras: Nope. I don’t have the rights. Stomp stomp stomp, almost all of it on surveillance video.

The Keystone Cops caper ends with Trump calling De Oliveira at 3:55PM on June 27, with no word of what led Trump to call De Oliveira and no word of whether whatever video got deleted was deleted in Florida or New York, or somewhere else.

The superseding indictment doesn’t mention, for example, the text that Nauta sent Calamari Sr — possibly even between 1:50PM when he and De Oliveira were stomping in bushes adjacent to Mar-a-Lao and the phone call that Trump made to De Oliveira at 3:55PM.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

Calamari was the guy, Taveras told De Oliveira, who would have the privileges to delete surveillance footage. And sometime in that period, Nauta texted him about the surveillance request.

Thus far, this is a story and a crime about an alleged attempt to delete surveillance footage. But we can be pretty certain that surveillance video was, in fact, deleted. That’s because reporters have reported on witnesses being asked that for months. There would be no reason to obtain nine months of surveillance video — 57 terabytes of raw video, if you can believe the defense attorneys — unless there was a whole bunch more to learn from the surveillance videos.

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).

And there would be no reason for Trump, on August 26, to get Nauta to verify De Oliveira’s loyalty (stomp stomp stomp) before arranging to provide him a lawyer if what came next, what happened after Trump’s phone call to De Oliveira on June 27 isn’t even more damning.

Indeed, that’s why it matters that — buried in a Devlin Barrett story opining that De Oliveira’s, “alleged actions could bolster the obstruction case against the former president” because apparently Devlin hasn’t learned his lesson about presenting evidence of more serious crimes and calling it obstruction — Trump (unusually) came back to Mar-a-Lago twice between June 3 and August 8: once from July 10 to 12, and once again on July 23, and that De Oliveira told the FBI he had given away the key to storage when they showed up on August 8.

The Keystone Cop caper, in part because it is so colorful and in part because it is charged as an unsuccessful attempt, has distracted most commentators from the fact that there was a more successful attempt, and that more successful attempt didn’t hide the movement of boxes in and out of the storage closet. As I’ve noted, all the movement of boxes in May and June shows up in the search affidavit relying on what DOJ did get from Trump, save one: Nauta’s retrieval of a single box on May 22.

The superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, of which the basement hallway is just one. And the most recent unsealing of the affidavit reveals that the only cameras included on the hard drive of surveillance footage turned over on July 6 were four cameras in the basement hallway. So one way or another, footage of those other locations was not turned over in response to the first subpoena.

Everyone treats this indictment as a terminal indictment — and if that’s as far as Jack Smith gets, it’s still far more damning than most everyone imagined on June 8. But multiple public references — the discussion on July 13 of continued efforts to fully exploit Nauta’s phone, the reference in DOJ’s descriptions of discovery that suggest there’s a grand jury somewhere other than DC or SDFL, and the suggestion that interviews have continued after June 23 — suggests that the current instantiation of the indictment is intended to be part of an ongoing investigation.

I noted from the first indictment that it was a “tactical nuke” designed to persuade Nauta to cooperate. Not only hasn’t the effort worked, but Stan Woodward has adopted a position on classified discovery — that Nauta, in addition to his attorneys, should get to see all the stolen classified documents — that I think makes it more likely DOJ would supersede to add a conspiracy to retain classified documents charge with him, because the elements of offense are all satisfied in the existing indictment.

Here are the obvious things that obtaining credible cooperation from Nauta would obtain:

  • ¶25: Details of Trump’s intent as Nauta helped pack up documents from the White House
  • ¶46: Why Trump was trying to hide when he instructed Nauta to replace the lids of the boxes
  • ¶54: What he was sent for on May 22
  • ¶61: What Trump instructed Nauta before he moved half the boxes back into storage for Evan Corcoran to search
  • ¶73: What boxes got loaded on the plane to Mar-a-Lago on June 3
  • ¶78: What Trump told him at Bedminster that led him to fly to Florida and try to bury the surveillance video (as well as what else he did on June 26, which is not accounted for)
  • ¶86: What both men discussed in the bushes
  • How Nauta came to text Matthew Calamari
  • ¶91: How Trump came to ask Nauta to ascertain De Oliveira’s loyalty and whether Trump had similarly offered him legal representation
  • What Nauta witnessed as Trump’s bodyman, especially in Bedminster

Here are the obvious things that obtaining credible cooperation from De Oliveira would obtain:

  • ¶76: Details of the 24-minute call he had with Trump, while Trump was at Bedminster
  • ¶86: What both men discussed in the bushes
  • ¶87: What Trump said on the phone call and whether De Oliveira had a role in the successful deletion of video, and how he knew what to delete
  • ¶91: What the terms of his representation are and whether it led him to lie (a question, other reports have made clear, many witnesses have been asked)
  • Why Trump returned to Mar-a-Lago twice before the August 8 search
  • To whom he gave the key to the storage room and on whose orders
  • Whether the October flood of the server room was an(other) attempt to destroy surveillance footage and if so, whether he was instructed to do so

De Oliveira might be a key witness to lead Nauta to reconsider his decision to protect Trump.

More importantly, one or both might be irreplaceable witnesses to answer a number of closely intertwined questions:

  • How is Trump is using lawyers to command loyalty and does it create conflict or obstruction issues
  • What surveillance footage has Trump prioritized for destruction and why
  • Why did Trump steal the documents, how has he used them, and where did the ones that went to Bedminster disappear to
  • What role does Trump’s PAC have in exploitation of the documents
  • What role does Trump Organization have in exploitation of the documents
  • Who else has had ready access to these documents

All this superseding indictment shows is that Trump had something to hide that goes beyond his desire to hoard the classified documents. Jack Smith may require the cooperation of one or both of these men to fully understand what Trump is really hiding.

This fairly remarkable post from the WSJ opinion page demonstrates the stakes of trying to answer it. It’s a pitch to elect someone other than Trump in the GOP primary, and premised on an utterly bullshit claim that Biden has politicized justice. But it gets a good distance of the way to an important discovery: even the Keystone Cops attempt already included in the indictment totally debunks Trump’s public defense, because if he believed in June 2022 that he had the right to keep these, he wouldn’t have dug himself — and thus far two staffers — deeper into a legal hole.

If Mr. Trump sought to destroy evidence, it undercuts his defense on the document charges. He contends that the Presidential Records Act gives him the right to retain documents from his time in office. But if Mr. Trump believed that, he would have played it straight. If the indictment is right that he hid the files from his own lawyers and tried to wipe the security video to stop anybody from finding out, then he didn’t buy his own defense.

From a Murdoch rag, this is a really important insight. But then WSJ predictably refuses to take the next logical step: That Trump’s obstruction makes it clear he didn’t just do this out of pigheadedness.

Prudential questions about the wisdom of this prosecution remain. Mr. Trump appears to have kept the files out of pigheadedness, not because he wanted to do something nefarious like sell them to an adversary. The FBI raided Mar-a-Lago to recover the documents.

The episode reflects poorly on Mr. Trump. But is this conduct that truly gives President Biden no choice except to ask a jury to jail his leading political opponent in next year’s election? At least Watergate involved a burglary.

We can’t even rule out a burglary, if Trump learned that he compromised these documents by storing them in his beach resort! Especially since De Oliveira claimed he had given the key away to others. We can’t rule out selling them to an adversary! We sure as hell can’t rule out trying to exploit them for the success of his PAC.

The indictment and an attempt to try this before the general election is an important goal, though potentially unrealistic given the CIPA challenges.

But it really is important to learn what Trump did do with these documents, who got the key, where they disappeared to.

This indictment doesn’t answer the question of why Trump stole these documents or what he did with them. All the superseding indictment did is make the question more urgent.

Update: Fixed Trump’s location from whence he called De Oliveira — the first call would have been Bedminster.

Carlos De Oliveira Added a Lock to the Storage Facility Then (Claimed He) Gave Away the Key

My second favorite bullshit spin of the entire stolen documents investigation (the first being claims about Walt Nauta’s cooperation) is the way, in the days after the search of Mar-a-Lago, Trump got journalists to repeat his claim that the fact he replaced the lock on the storage room at Mar-a-Lago proved he was entirely cooperative with DOJ before the search.

Here’s how WSJ presented the claim in one of its first instances:

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” according to what was read to The Wall Street Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

[snip]

Mr. Trump and his lawyers contend they have cooperated with a monthslong effort by the government to retrieve some of the material he took from the White House and expressed outrage with Monday’s unannounced visit to Mar-a-Lago. A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

Here’s how John Solomon presented the claim in a post that first broke the news of the surveillance video subpoena.

Trump signaled his full cooperation, telling the agents and prosecutor, “Look, whatever you need let us know,” according to two eyewitnesses. The federal team was surprised by the president’s invitation and asked for an immediate favor: to see the 6-foot-by-10-foot storage locker where his clothes, shoes, documents and mementos from his presidency were stored at the compound.

Given Trump’s instruction, the president’s lawyers complied and allowed the search by the FBI before the entourage left cordially. Five days later, DOJ officials sent a letter to Trump’s lawyers asking them to secure the storage locker with more than the lock they had seen. The Secret Service installed a more robust security lock to comply.

Around the same time, the Trump Organization, which owns Mar-a-Lago, received a request for surveillance video footage covering the locker and volunteered the footage to federal authorities, sources disclosed.

It was always clear this was bullshit, not least because CFR guidelines about storing classified documents are really strict. But journalists repeated it credulously for several weeks, until the affidavit was unsealed, showing that in Jay Bratt’s request that Trump secure the storage room, he never mentioned a lock.

On June 8, 2022, DOJ COUNSEL sent FPOTUS COUNSEL 1 a letter, which reiterated that the PREMISES are not authorized to store classified information and requested the preservation of the STORAGE ROOM and boxes that had been moved from the White House to the PREMISES. Specifically, the letter stated in relevant part:

As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents (the ones recently provided and any and all others) were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.

On June 9, 2022, FPOTUS COUNSEL 1 sent an email to DOJ COUNSEL, stating, “I write to acknowledge receipt of this letter.”

But buried in this Devlin Barrett story about how prosecutors warned Carlos De Oliveira’s attorney, John Irving, that they believed he was lying way back in April is the BREAKING NEWS that after De Oliveira put a new lock on the door — the thing that Trump bragged about for a month, and a tale that Barrett repeats here — he gave away the key.

Or at least that’s the excuse he gave to the FBI when they showed up in August to seize the documents inside and he refused to let them into the storage closet.

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. [snip]

Imagine how outraged investigators must have been last August when Trump was publicly bragging about the new lock when the currently operative story at the time — one that may still be operative — is that within weeks, Oliveira had given away the key.

To whom, he did not know.

I’ve got a lot of guesses about who may really have gotten that key.

But the stunning news from this story is that Trump put a new lock on the storage facility and promptly gave away the key.

Carlos De Oliveira’s Uncharged Suspected Obstruction Happened on Aileen Cannon’s Watch

I’d like to make something explicit that’s implicit in this post. Some of Carlos De Oliveira’s suspected obstruction of the investigation into stolen documents happened on Aileen Cannon’s watch.

To be sure, it’s not charged, and the timing of all this is not made explicit in the indictment. De Oliveira is charged with four counts:

  • Count 33: Conspiracy to Obstruct Justice (18 USC 1512(k)) from May 11, 2022 until August 2022
  • Count 40: Corruptly asking Trump Employee 4 to destroy surveillance footage (18 USC 1512(b)(2) from June 22, 2022 until August 2022
  • Count 41: Corruptly attempting to alter surveillance footage (18 USC 1512(c)(1)) from June 22, 2022 until August 2022
  • Count 42: False statements in a January 13, 2023 interview with the FBI at his residence

The timeline of this is actually quite interesting. All the conspiracy charges go through August 2022, with no specific end date. That adopts the convention used in the first indictment.

By description, the conspiracies described in the first indictment might otherwise have ended on August 8, 2022, when the FBI seized the documents the obstruction attempted to hide. There was no overt act that post-dates August 8 in the first indictment.

There is in the superseding indictment. There’s this key paragraph, which describes that on August 26, 2022, after Trump confirmed De Oliveira’s loyalty, Trump called him and told him he would get him an attorney.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

That paragraph is important to prove the conspiracy because Trump Employee 5 appears to have testified independently about it. But it’s not about the June 2022 effort to destroy the surveillance footage. It’s an apparent effort to keep De Oliveira quiet about the June 2022 effort.

Witness tampering, a different kind of obstruction. But it is not charged as such.

At least not yet.

So the overt acts on the three conspiracies appear to go from May and June until August 26, 2022. But the indictment doesn’t include that as the specific end date.

On August 27 — the day after the last overt act in the three alleged conspiracies charged against De Oliveira — Judge Aileen Cannon issued an order providing preliminary notice that she would intervene in the case. On September 5, Judge Cannon issued an order enjoining the government from further investigation of the materials seized on August 8.

De Oliveira’s other alleged crime happened on January 13, 2023.

It happened after, on December 1, 2022, the 11th Circuit ruled that Aileen Cannon “improperly exercised equitable jurisdiction” to — among other things — stay any investigation using non-classified documents.

[T]he district court lacked jurisdiction to consider Plaintiff’s initial motion or to issue any orders in response to it.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

It happened after, on December 12, Aileen Cannon dismissed the civil suit before her.

De Oliveira’s first three alleged crimes happened before Aileen Cannon intervened, up through the day she did, in fact. All of Trump’s and Nauta’s alleged crimes ended before or on the day before she intervened.

De Oliveira’s fourth charge happened after the 11th Circuit ruled that she had improperly halted any investigation using unclassified materials seized from Mar-a-Lago from September 5 to December 1, a total of 87 days.

De Oliveira was not charged for something else, though, that — according to CNN’s report of it — was suspected to be another attempt to damage surveillance equipment, a flood of the IT room that, by description, happened in October.

An employee at Donald Trump’s Mar-a-Lago residence drained the resort’s swimming pool last October and ended up flooding a room where computer servers containing surveillance video logs were kept, sources familiar with the matter told CNN.

While it’s unclear if the room was intentionally flooded or if it happened by mistake, the incident occurred amid a series of events that federal prosecutors found suspicious.

At least one witness has been asked by prosecutors about the flooded server room as part of the federal investigation into Trump’s handling of classified documents, according to one of the sources.

The incident, which has not been previously reported, came roughly two months after the FBI retrieved hundreds of classified documents from the Florida residence and as prosecutors obtained surveillance footage to track how White House records were moved around the resort. Prosecutors have been examining any effort to obstruct the Justice Department’s investigation after Trump received a subpoena in May 2022 for classified documents.

Prosecutors have heard testimony that the IT equipment in the room was not damaged in the flood, according to one source.

Yet the flooded room as well as conversations and actions by Trump’s employees while the criminal investigation bore down on the club has caught the attention of prosecutors. The circumstances may factor into a possible obstruction conspiracy case, multiple sources tell CNN, as investigators try to determine whether the events of last year around Mar-a-Lago indicate that Trump or a small group of people working for him, took steps to try to interfere with the Justice Department’s evidence-gathering.

Agents first subpoenaed the Trump Organization for Mar-a-Lago surveillance footage last summer, before the August search by the FBI. But as more classified documents were found through the end of last year, investigators sought more surveillance footage from the Trump Organization, sources tell CNN. That included an additional subpoena after the FBI search in August and a request from the Justice Department for the Trump Organization to preserve additional footage in late October, according to one of the sources.

[snip]

Prosecutors from the special counsel’s office have focused their obstruction inquiries around Trump, Trump’s body man Walt Nauta and a maintenance worker who helped Nauta move boxes of classified documents ahead of federal agents searching the property last summer, and potentially others, sources told CNN.

The sources say that the maintenance worker is the person who drained the pool that led to the flooding of the IT room where the surveillance footage was held. [my emphasis]

If that really happened, if it really was another attempt to destroy surveillance video (as I noted, video that might show De Oliveira and Nauta’s earlier attempt to destroy the surveillance video, a cover up of the cover up), then it happened during the period when DOJ’s investigation was largely halted thanks to Aileen Cannon’s improperly exercised equitable jurisdiction.

It’s not yet clear whether Cannon’s injunction required DOJ to delay the January 13, 2023 interview until after the 11th Circuit ended it. After all, DOJ interviewed Christina Bobb in October and Kash Patel in November.

As of now, the overt acts in the apparent overlapping conspiracies to obstruct the investigation stop one day short of the moment when Aileen Cannon got involved, improperly, according to the 11th Circuit. And if DOJ were to substantiate the flooded server room was yet another attempt to tamper with surveillance footage, it would mean the obstruction happened on Judge Cannon’s watch.

Thus far, Cannon has issued one after another after another and yet one more not unreasonable order.

But we are butting against the date when Trump’s continued conspiracy to obstruct the investigation happened during the window she created by improperly intervening in the case.

Chekhov’s Alan Garten: The Human Gaps in the Surveillance Footage Gap

This post noted, shortly after Trump’s first stolen documents indictment, that the indictment included nothing about the gaps in surveillance footage DOJ spent much of the last year investigating. It also noted that the indictment did not name the maintenance guy who had played a role in moving boxes around.

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

As Jay Bratt’s notice to Aileen Cannon of the new details in the superseding indictment released last night explained, those paragraphs now identify newly-charged Carlos De Oliveira by name.

Paragraphs 62 and 63 now identify De Oliveira as the person who helped Nauta move approximately 30 boxes from Trump’s residence to the Storage Room on June 2, 2022, whereas paragraph 61 of the earlier indictment referred to De Oliveira as “an employee of The Mar-a-Lago Club”;

Paragraph 73 alleges that De Oliveira was one of the “others” identified in paragraph 72 of the original indictment who, on June 3, 2022, with Nauta, “loaded several of Trump’s boxes along with other items on aircraft that flew Trump and his family north for the summer”;

Yet even with the inclusion of De Oliveira in the indictment, the gaps about the gaps in the surveillance footage remain.

The conspiracy added to the indictment, laid out in ¶74 through ¶87, describes an attempt to destroy surveillance footage. As described, Walt Nauta and De Oliveira asked someone, identified in the indictment as Trump Employee 4 but who is likely Yuscil Taveras (identified in this story from NYT), to delete the surveillance server, but he said he could not. He told De Oliveira to contact the supervisor of security for Trump Organization.

83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.

84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an “audio closet” near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:

a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.

b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.

c. DE OLIVEIRA told Trump Employee 4 that “the boss” wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was the supervisor of security for TRUMP’s business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that “the boss wanted the server deleted and asked, “what are we going to do?” [my emphasis]

But that section ends with Nauta and De Oliveira meeting in the bushes just off Mar-a-Lago property the next day, then walking to the IT office, then walking back to the bushes again. There’s no allegation that Nauta and De Oliveira succeeded in deleting the video.

The entire section is bookended with these paragraphs, which — and I say this as a PhD in Comparative Literature — are narratively brilliant.

74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.

75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP’s business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras “on ground floor (basement),” where the Storage Room was located.

76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.

[snip]

87. [On June 27] At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes. [my emphasis]

The section starts and ends with a call to Trump. But never explains how the gaps ended up in the surveillance footage.

Let me go back.

As noted, and as Bratt noted, the original indictment didn’t identify De Oliveira at all. He was just some “other” guy involved, an employee of the club. In fact, in its first indictment, DOJ used a curious dual form of naming. The following people are clearly identified:

  • Trump and Nauta
  • Trump Employee 1
  • Trump Employee 2 (Molly Michael)
  • PAC Representative (reportedly Susie Wiles)
  • Trump Representative 1 (probably Alex Cannon)
  • Trump Attorney 1 (Evan Corcoran)
  • Trump Attorney 2 (possibly Boris Epshteyn)
  • Trump Attorney 3 (Christina Bobb)

Then there are people who are not identified by name:

  • ¶6a, ¶34: the people to whom he showed the Iran document, and the two staffers (reportedly Margo Martin, who recorded it, and Liz Harrington) who witnessed the interview
  • ¶19: the high level intelligence officials who briefed Trump
  • ¶24: other members of Trump’s White House staff, in addition to Nauta, who helped pack up boxes
  • 58c: A female Trump family member
  • ¶61: an employee of The Mar-a-Lago Club (De Oliveira)
  • ¶72: others, including De Oliveira, who helped load up boxes to go to Bedminster

This new indictment adds three identified Trump employees:

  • Trump Employee 3: the co-worker — who would have been at Bedminster — who alerted Nauta that Trump wanted to see him
  • Trump Employee 4: the IT worker, probably Taveras
  • Trump Employee 5: a valet who was asked — and confirmed in a Signal chat with Nauta — that De Oliveira was loyal

And the indictment adds several more unidentified Trump employees, several of which (like the reference to the female Trump family member in the first) could be sourced entirely to communications obtained from Nauta’s phone.

  • ¶77: The attorney for TRUMP’s business organization
  • ¶79: The people to whom Nauta gave inconsistent explanations of why he was making a secret trip to Florida: one person Nauta told he would not travel with Trump and a Secret Service agent
  • ¶83: Another employee in the IT department
  • ¶84c: Supervisor of Security for Trump’s business organization

Significantly, the original indictment describes how DOJ obtained surveillance footage this way:

In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.

Though the search warrant affidavit had described that “counsel for the Trump Organization” had a role, the original indictment made no mention of that. It was like a virgin birth of surveillance footage, delivered to the FBI with no explanation.

The other figures described but not named in the superseding indictment may or may not appear in later installments of this tale, like a gun shown in an early act of a play that later goes off.

The last — supervisor of security — is almost certainly Matthew Calamari, Sr, who was one of the very last people to appear before the DC grand jury before this case was moved to Florida and charged. Both Calamari and his son were asked why Nauta texted one of them (it turns out to have been Sr.) to call him about the subpoena request.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

But that exchange is for another indictment, possibly even another venue.

In this indictment, though, the attorney for Trump Organization, almost certainly Alan Garten, plays two roles. First, he received the draft subpoena from Jay Bratt on June 22 (this begins to explain the discrepancy regarding the date of the subpoena that I’ve been obsessed with from the start). And he’s the most likely explanation for why, the next day, Trump called De Oliveira and spoke for 24 minutes.

That is, Garten likely told Trump about the subpoena, which set off a process by which employees attempted to destroy surveillance footage in Florida.

According to Michael Cohen’s testimony, Alan Garten is the one responsible for Cohen’s document production to Congress, which ended up withholding documents showing him contacting Dmitri Peskov’s office. And according to the SSCI Report, there were other, “known deficiencies in the Trump Organization’s document responses.”

While DOJ has interviewed Calamari (and so may or may not have gotten honest testimony about what happened when he called Nauta), they are not known to have interviewed Alan Garten, the bar for which would be very high. They have, however, interviewed Alina Habba, who played a role in a suspected Alan Garten shell game to withhold documents from New York State, and in the process did a search of both Bedminster and Mar-a-Lago before DOJ served a subpoena for classified documents.

In spite of all these new details and new players, we still don’t know what happened between June 27, 2022, when Trump Employee 4 told De Oliveiras to reach out to Matthew Calamari and when Trump spoke to De Oliveira for three and a half minutes, and July 6, when Trump Organization turned over two months of video that reportedly had gaps in it.

There are still gaps in this story about how the reported gaps got into the surveillance footage. Indeed, there are still gaps about what the gaps attempted to hide!

As I showed here, the surveillance footage the FBI did get appears to have shown virtually all of Nauta’s box movements — and would have shown De Oliveira helping Nauta move 30 boxes back into storage on June 2 — because the search warrant affidavit relies on it. But they may not have shown Walt Nauta remove a single box from storage on May 22.

That, of course, was just the first subpoena for surveillance footage. There were more, undoubtedly including for footage showing Nauta and De Oliveira checking out the surveillance cameras with a flashlight on June 25, 2022, entering the IT department, walking through a basement tunnel and into an “audio closet,” then walking back into the IT office on June 27, and possibly, still on June 27, walking into the bushes just off of Mar-a-Lago property for two discussions. This superseding indictment must rely on a later subpoena for more surveillance footage from which the specific times of these movements would have been obtained.

Indeed, when De Oliveira allegedly flooded the IT room in October — at a time when Judge Aileen Cannon had put a stay on the investigation of these activities — he may have been attempting to thwart a second or third subpoena attempt, a cover up of the attempted cover up, an attempt to destroy the surveillance footage that ended up in this indictment.

Altogether, the surveillance footage that DOJ has since obtained covers nine different months.

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).

DOJ claims to have pinpointed which cameras they wanted and on what specific dates.

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage.

But there’s something in that surveillance footage that has made Trump very concerned about leaks, more so than he was about the documents seized last August.

This indictment provides shocking new details about Nauta and De Oliveiras’ alleged efforts to comply with Trump’s orders to destroy surveillance footage.

But it does not yet explain how reported gaps ended up in the surveillance footage.

And it doesn’t yet explain what Trump was trying to hide — what was worse than video showing Nauta emptying out the storage closet and then only half-filling it before Evan Corcoran did a search.