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The “Wow, Pictures!” Tabloid Coverage of Trump’s Stolen Documents Is as Bad as Conspiracy Mongering

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The other day, I mined the documents and photographs released in the government’s response to Trump’s bid to throw out his indictment based on a complaint that the FBI failed to preserve the order of documents in boxes.

Doing so, I showed that Trump had stored ten of the documents charged against him — including one classified under the Atomic Energy Act — under bubble wrap and a Christmas pillow.

 

I had to do a fair amount of work to figure that out, building on work I did years ago. I had to cross-reference the item number (28, as shown in the picture) with the box number (A-73, which you can find on the warrant return) to determine which box this was. I then cross referenced that with the table of charged documents in the filing.

Then I annotated the picture to describe which charged documents were found in the box myself. You can cross reference that with the indictment to learn what kind of documents are included in the stack in the picture.

All that under the bubble wrap and the Christmas pillow!

But that’s not why DOJ included the picture in its filing. DOJ included this picture, along with the two other pictures in that exhibit and the two in this exhibit, “to provide a sense of the variety of items in the boxes.” And Jack Smith’s team did that to show that FBI agents who conducted the search had no way of knowing that Trump knew (according to the interview of a former White House aide of his) precisely what was stored in which box, and therefore no way of knowing he might cite document order in his own defense.

Furthermore, this is not a case where reams of identically-sized documents were stacked neatly in file folders or redwelds, arrayed perfectly within a box. To anyone other than Trump, the boxes had no apparent organization whatsoever. The boxes contained all manner of items, including, for example, papers of varying sizes, from folded large-format items to tiny notes; clothing; picture frames; shoes; magazines; newspapers; newspaper clippings; correspondence; greeting cards; binders; and Christmas ornaments. The photographs attached as Exhibits 3, 8, and 16 provide a sense of the variety of items in the boxes. The notion that the precise ordering of materials within these boxes possessed any exculpatory value that would be apparent to the Filter Team when they opened the boxes is absurd.

These pictures also corroborate what filter team agents said about their efforts to retain the order of items in these boxes as they searched them for any potentially privileged documents, such as Agent 5’s description that it was impossible to retain the order because of the “[loafers], newspapers, post-it notes, golf balls, etc” she found in the boxes. For the most part, these were not boxes of file folders (like the one found in Joe Biden’s garage, the order of which FBI also disrupted; they were boxes of Christmas pillows and bubble wrap, and that’s one of several reasons why the document order within boxes was not maintained in all boxes.

There was a purpose to these photos, and it went well beyond slob-shaming the former President or just showing how DOJ released these pictures to portray Trump as chaotic. The photos and other exhibits make a specific rebuttal to an argument Trump is making: that FBI willfully mixed up document order to undermine a foreseeable future defense that was radically different to the one — that he knew the documents were there, but had declassified everything — he had been making before the August 8, 2022 search.

There was a purpose to these photos: To rebut a range of conspiracy theories designed to undermine rule of law and truth itself.

The coverage from most mainstream journalists (I excuse those who were stuck in Aileen Cannon’s courtroom who just threw up a post after that tedium) consisted of little more than “ooh, pictures!” which quickly turned into slob-shaming that failed to provide any context about the legal significance of the exhibits or the chain of custody they depicted.

There were several other things the filing and pictures were meant to explain: notably, what and how cover sheets got put into boxes, and — because Julie Kelly is a shameless propagandist — whether the FBI brought cover sheets for the sole purpose of framing Donald Trump.

This conspiracy theory started when Stan Woodward spent 1:50 examining physical document boxes. He took this picture, of Box A-14, which has only around 35 documents in it, all stacked up neatly, but otherwise spent little time examining this box — just 6 minutes.

This box was originally segregated because it had potentially privileged documents in it. Days later, an FBI agent discovered a single document marked with Top Secret markings. That document, dated May 6, 2019 and describing a White House intelligence briefing, is charged in Count 4 of the indictment.

Woodward made no claim that the cover sheet in this box, wherever it is, was out of place.

Woodward spent more time reviewing box A-15: 18 minutes. He didn’t take a picture (but the FBI did). Box A-15 was found with a binder in it, containing 21 Secret documents and 11 Confidential documents.

When Woodward inspected this box, he discovered that the order of the cover sheets marking classified documents reflected in the scan done for the Special Master review conflicted with the order he discovered them when he reviewed the box itself.

For this box, because it was one originally inspected after the FBI ran out of cover sheets they brought with them (they didn’t expect so many classified documents!), there were three sets of cover sheets used with the document. The generic cover sheet marking the highest level of classification mark found in the box, depicted in the picture above, which the FBI took to document its search; hand-written cover sheets they used to mark individual documents after they ran out of the normal cover sheets the day of the search;

And cover sheets marked with each individual document index ID (the “ccc” in the picture) after they indexed everything.

The documents in this box were indexed as “ccc” through “iii” and then “www” through “tttt.”

For this box, each of those three cover sheets served a different purpose. The first played a role in an evidentiary picture, to document the search, and yes, the FBI put that cover sheet there on purpose to both cover up classified information and to mark how sensitive it was.

The second was a place marker for each document taken from the box and kept more securely, and the third was a cover sheet to track each individual classified document.

But this box, in particular, ended up getting particularly jumbled because there were so many classified documents all appearing in a binder.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

I don’t excuse that — the FBI flubbed boxes in both the Biden and Trump investigations. But as noted, in this case, it won’t be relevant to any defense Trump will offer because these documents aren’t charged.

The fact that FBI used cover sheets to mark and cover the contents of classified documents when documenting the search (as in the two pictures above) led propagandist Julie Kelly to imagine that the original photo released in an exhibit back in August 2022 must be a set-up, with the FBI using a bunch of classified cover sheets solely to make Donald Trump look worse than he was.

Julie got way over her skis claiming that Jay Bratt lied when he introduced a reference to the picture by saying that, “Certain of the documents had colored cover sheets indicating their classification status.”

The photo was a stunt, and one that adds more fuel to this dumpster-fire case.

Jay Bratt, who was the lead DOJ prosecutor on the investigation at the time and now is assigned to Smith’s team, described the photo this way in his August 30, 2022 response to Trump’s special master lawsuit:

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court.

The frothy right has been trying to claim this photo was a frame job from the start. But Julie’s theory was a particularly stupid version of the conspiracy theory. If the idea was that cover sheets make the documents look worse than, say, visible classification marks like the ones visible if you look more closely, and the more cover sheets the more useful for framing Donald Trump, why not use cover sheets on all of them? In a piece that otherwise struggled with the difference between [Box] Two and [Box] Ten, Julie counted seven cover sheets in the picture. I think there are at least eight (plus another form of cover sheet) but — another data point that undermines her conspiracy theory — a Secret cover sheet is buried in the middle of the stack, useless for the propaganda value Julie’s conspiracy theory has dreamt up.

While last week’s filing didn’t take on Julie’s conspiracy theory head on (notably, Trump has not adopted her conspiracy theory, which should tell you something), it did include the materials to understand how the initial evidentiary picture got put together.

As noted in the Jay Bratt language Julie quotes, the contents in that picture were found in a container in the “45 Office,” what Mar-a-Lago staffers called Trump’s office. The warrant return described the box holding the most sensitive documents, item 2, as a “leatherbound box of documents.”

That’s one of many ways we can be sure that this picture — which the “ooh pictures! people were very excited about mostly on account of the Diet Coke bottles, which I think short-changes the cult Donald Trump picture in the right side — depicts the same box.

The next picture in that exhibit shows how that same box got labeled Box 2, the box that Julie the Propagandist would one day confuse with Item 10.

Another picture shows what the top of the box looked like (since this is post taint search — the unsigned Sandy Hook letter that some “ooh photos” journalists claimed must be a super sensitive document, on account of hiding the name of the child gunned down at Sandy Hook — may not have been on the top of the stack when the FBI first found it).

The filing even includes the photo log showing how the photographer took pictures first of the closet (Room F), then of the box, then of the contents of the box.

Here’s that evidence photo again, which would have been taken in the foregound of the wide view picture above, with the rolled up paper and the seeming book now appearing at the top of the picture, and the tacky dresser on the left.

The picture was misleading when released, but not for the reason Julie the Propagandist suggests. It was misleading because it suggested that Trump put his Top Secret documents in with his Time Magazine covers. He didn’t. He put them in a different box, a few feet away, also in his office closet with the awful carpeting.

The filing that Julie the Propagandist claimed vindicated her conspiracy theory does the opposite. The government filing reiterates the claim — the claim that Julie the Propagandist claims caught Jay Bratt in a lie — that “Certain of the documents had colored cover sheets indicating their classification status.”

The 45 Office consisted of the “ante room,” where Trump staff members had desks (Room B); Trump’s office (Room C); a closet attached to Trump’s office (Room F); and two bathrooms (Rooms D and E). Ex. 9. Entry photos were taken of the ante room, Trump’s office, and both bathrooms. Id. Filter Team agents then discovered in the closet a blue, covered, leatherbound box full of various papers, including numerous newspapers, newspaper clippings, magazines, note cards of various sizes, presidential correspondence, empty folders, and loose cover sheets for classified information, as well as documents marked classified. Ex. 10. FBI 13 conducted the privilege review of this box, with some brief assistance from FBI 5. ECF No. 612-11 at USA01291471. FBI 13 was careful to return all items to the box after reviewing them, but did not maintain the order of the items. Id. at USA-01291472; Ex. 11 at USA-01291691. FBI 13 found no potentially privileged materials in the box. ECF No. 612-1 at USA-01291485. After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. The Case Team agents seized the documents marked classified (as well as any cover sheets already attached) and segregated them. As they extracted the seized documents, they inserted placeholder sheets where they found them. [my emphasis]

To be sure, there’s still a step of this progression that the government didn’t include in its filing (again, this is not the primary focus of the filing because Trump has not adopted Julie the Propagandist’s conspiracy theory, at least not yet, and — one exhibit included last week also made it clear– Trump’s people had turned on CCTV surveillance before the search started, and investigators knew that).

Trump’s initial MTD included notes and last week’s filing includes a follow-up interview with Agent 13. Agent 13 was the primary person who did the filter search of the closet. The original notes describe the agent, “does recall seeing cover sheets inside box[,] don’t know one way or other if cover sheets in photo came from box.” In the follow-up, the agent described that the lid to the leatherbound box was on the box when they found it (meaning the evidence pictures thereafter reflect what happened after the filter search).

That testimony is utterly consistent with the picture: that at least some of the cover sheets in the picture are the ones Agent 13 found when they did the search. But you’d need to add the testimony of the photographer and the two investigative agents to learn whether all of them were, or learn whether any of the loose cover sheets in the box were also used in the photo.

Nevertheless, it’s a pointless conspiracy theory. Julie the Propagandist has made a big deal out of cover sheets used in the way cover sheets are supposed to be used: to convey that something is classified and prevent any incidental exposure. But the picture doesn’t, primarily, show cover sheets. Indeed, it shows at least ten documents without classified cover sheets (covered instead with blank cover sheets), virtually all with classification markings visible.

More importantly, what the filing and the original photo both show the chain of custody of a box that — no amount of squealing about cover sheets disputes — clearly shows at least 22 of the 24 documents alleged to have been found in the box, most with classification markings visible.

Tracking what these exhibits do explicitly and — with more effort — implicitly takes time. But responding to conspiracy theories with facile reporting squealing, “Ooohh pictures” serves nobody, except media outlets looking for free reporting and conspiracy theorists hoping to turn truth into a both-sides dispute.

The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

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As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

The Document Found with Roger Stone’s Clemency Did Pertain to Emmanuel Macron

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Just days before the snap election Emmanuel Macron recklessly called after Marine Le Pen shellacked his party in the EU elections, we are one step closer to showing a tie between the still unexplained grant of executive clemency to Roger Stone found in the search of Mar-a-Lago and the French President.

As I have described in the past, the first thing listed on the non-privileged search warrant return was an executive grant of clemency for Trump’s rat-fucker. Most people have always assumed that it was one of the known grants of clemency — either the commutation or the later pardon — for Stone’s lying to cover up his 2016 ties to Russia.

Except as listed, it is associated with, “Info re: President of France.”

There had been reports that the President of France in question was Macron. Trump’s defense attorneys seem to have confirmed that.

That confirmation comes as part of a Trump bid to dismiss the entire stolen documents prosecution because the FBI jumbled the order in which documents were found during and after the search. Both before and after the problem with the order of the documents first became understood, in March and then May, Jack Smith’s office did some interviews with the Miami-based agents who did the filter process, which Trump included as exhibits.

As described, the agents exercised varying diligence about maintaining the order of documents in each box; as Agent 5 explained, keeping the order intact was made more difficult because of the contents of the boxes, in which Post-It notes and golf balls were stashed in the same boxes with potentially privileged documents (I can’t make out the first word in this series).

As Agent 17 described, he and Agent 5 did the filter search of Trump’s own desk together as another agent found the box in the closet where the most sensitive classified documents were found (note: it’s clear agents were also being asked about the 43 classified cover sheets allegedly found in that box; Trump’s silence on this point suggests others gave clear answers about it).

As Agent 17 described it, Agent 5 found “Macron doc in desk,” though makes no mention of the clemency associated with it.

Note there was a set of “KJU letters” — the love letters from Kim Jon Un to Trump — in a desk then occupied by Molly Michael, identified as Person 34 in other releases. Trump had returned at least some of these in the January 2022 boxes.

It’s not yet clear how the Macron document, classified Secret, relates to the Stone clemency. But as I wrote here, such a tie could be quite significant: when Scott Brady (the MAGAt US Attorney whose claims to have vetted the Alexander Smirnov hoax were just referred to DOJ for potential prosecution as a false claim to Congress) indicted GRU hackers for operations that included the 2017 MacronLeaks that attempted to help Le Pen in her election against Macron, the indictment claimed to be ignorant of the public details tying Roger Stone associates to the dissemination of the stolen documents.

The Macron document does not appear to be among those charged, so we may never learn more about why Trump had a Stone grant of clemency — and possibly a bunch of other pardons — in his desk drawer.

Note, in addition to exhibits documenting the Mar-a-Lago search, Trump’s lawyers helpfully provided this description of the documents found among the boxes Trump returned in January 2022, two of which required especially sensitive treatment.

Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

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After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

Jack Smith Invites Aileen Cannon to Protect the Country Rather than Just Donald Trump

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Jack Smith has asked Judge Aileen Cannon to prevent Trump from lying about a plot to assassinate him, as he has done since propagandist Julie Kelly made a stink about a routine Use of Force form Trump himself released and misrepresented and created a false scandal. But there’s a detail about how he asked the deserves attention.

The motion describes how Trump filed that routine form, without tying to his demand for suppression, and then started lying about it, only to have other propagandists (it includes an example from Steve Bannon’s show) join in.

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. See ECF No. 566. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Id. at 4. Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission. The motion also left out language explaining that deadly force is necessary only “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Compare ECF No. 566-3 at 11 with ECF No. 566 at 6. Notwithstanding the misleading characterization of the use-of-force provision when describing the search, the motion did not seek suppression based on the policy, claim that the agents had acted inappropriately in following that standard protocol, or otherwise rely on the policy as part of the argument. See ECF No. 566 at 12-13.

On May 21, 2024, Trump filed a redacted version of his suppression motion and exhibits on the public docket. See ECF No. 566. The next day, Trump publicly claimed that he was just “shown Reports that Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mara-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.” Exhibit 1. Trump also sent an email stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” Exhibit 2. Trump also publicly claimed that, “[s]hockingly,” the Department of Justice “authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’” Exhibit 3. Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump. See Exhibit 4. [my emphasis]

Now, that could have been all that Smith needed to do. As he lays out, Judge Cannon has the authority under the Bail Reform Act to modify Trump’s release conditions to protect the safety of the community.

Under the Bail Reform Act, a “judicial officer shall issue an order that, pending trial, the [defendant] be” either released on personal recognizance or an unsecured bond, 18 U.S.C. § 3142(a)(1), released “on a condition or combination of conditions under subsection (c),” id. § 3142(a)(2), temporarily detained pending revocation, deportation, or exclusion, id. § 3142(a)(3), or detained, id. § 3142(a)(4). Here, Trump was released on conditions under subsection (c). ECF No. 17.

Subsection (c) provides that, if a person is released on conditions, the “judicial officer shall order the pretrial release of the person” subject to (1) “the condition that the person not commit a Federal, State, or local crime during the period of release,” and (2) “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(A), (B). The statute then lists several “further condition[s]” that the release order “may include.” As relevant here, those further conditions include that the defendant “satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv). Subsection (c) further provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” Id. § 3142(c)(3).

The Court should exercise its authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case

But Smith didn’t stop there. Even before that, Smith invoked an argument Judge Cannon made herself last year, when choosing to stick her nose into the public reports that Jay Bratt was mean to Stan Woodward.

The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

This is, at the very least, a subtle dig. Cannon has gone out of her way (with the original search, and then on two of these such occasions) at least three times to protect Trump.

But she has done nothing as Trump, “irresponsibly put a target on the backs of the FBI agents involved in this case,” as the filing describes.

At least one attorney has suggested that Cannon could ding Chris Kise for leaving out the limitations and thereby giving the Use of Force policy the opposite meaning than it really has (bolded above), setting up this propaganda attack.

Instead, Smith has used it as an opportunity to either force Cannon to rein Trump in — or to demonstrate that her bias in this case is contributing to a very dangerous situation.

Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

Stan Woodward’s Manufactured Scandal about Box A-15

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As I have noted, the FBI agents who searched Joe Biden’s garage rearranged the contents of the single box which Robert Hur attempted to prove Joe Biden had deliberately curated when they moved the contents from the beat-up box found in the garage to a new one.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Had Hur been able to prove that the contents of this box had been in Biden’s Virginia home when he mentioned classified records to his ghost writer in 2017, and had Hur been able to disprove that that reference wasn’t to other documents Biden had recently returned to the White House or to the letter Biden sent Obama about Afghanistan, and had Hur been able to rule out Biden simply losing track of those files, and had Hur been able to prove that Biden himself and not staffers had been packing and repacking the box, then the order of the box would have been crucial to proving a case against Biden.

Hur hung much of his theory of willful retention on the other documents found with two folders containing classified Afghan documents.

Which is to say, the FBI’s sloppiness would have doomed the case if there were ever a case to bring.

Now, Walt Nauta attorney Stan Woodward is trying to claim the same with regards to the documents seized from Mar-a-Lago, to great effect among right wing propagandists.

He made the claim in a bid to get a delay in filing his CIPA 5 notices (which describe what classified information he’d need to release at trial).

Following defense counsel’s review of the physical boxes, the unclassified scans of the contents of the boxes, and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information. For example, Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10. The FBI Index indicates that the classified documents removed from the box (and where a cover sheet was inserted in its place) appear in the order listed below. The contents of the unclassified discovery pertaining to Box A-15 begins at USA-00340924, with the first inserted at the second page of the scan, or Bates labeled USA-00340925:

Per the FBI Index, the first purportedly classified document removed from box A-15 was assigned FBI Index code “ccc,” its classified bates begins at 0079, is one page, and bears the classification marking of “CONFIDENTIAL.” For reference, the physical cover sheet from the actual box for document “ccc” appears as depicted in the below image:

To state the obvious, a “Secret” document is not the same as a “Confidential” document. To be sure, a slip sheet in in Box A-15 does match the one scanned as part of unclassified discovery (at USA-00340925):

However, there is no way for defense counsel to know that the slip sheet depicted above actually corresponds with USA-00340925. And the slipsheet labeled “ccc” does not appear for several hundreds of pages later than the FBI Index indicated it would. Defense counsel’s review of these materials calls into question the likelihood that the contents of the physical boxes remains the same as when they were seized by the FBI on August 8, 2022.

Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time. Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.

Jack Smith claims this is all a delay tactic invented because Woodward’s other recent delay tactics fell through.

But he concedes, first of all, that after the search team ran out of cover sheets because there were far more classified documents than they imagined, they used hand-written papers to mark where classified records had been found.

The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

And then they made sure that each box was handled separately, to ensure that the contents of each individual box remained separate. They failed, however, to keep all the boxes in the same order.

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

3 The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court’s question of whether the boxes were “in their original, intact form as seized” by stating “[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents”).

While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient. Unlike Biden and Trump, Nauta is not alleged to have curated any boxes. He is not accused of willfully retaining classified documents at all.

So the order of documents within the particular boxes is meaningless to his defense (though Trump, who has asked to file a sur-reply piling on, might make great use of this argument if this ever goes to trial).

Plus, it’s worth noting which box Woodward is focused on, A-15. That box happens to have, easily, the biggest number of classified documents in it, 32; a third of the items originally in the box were marked classified. And probably 11 of them, those marked Confidential, have since been declassified and provided in unclassified discovery.

In total, the FBI seized 77 documents with classification markings from the 12 boxes that were seized from the Storage Room, but of those 77 documents, 26 have now been produced in unclassified discovery.

No documents already declassified would be pertinent to a CIPA filing.

In other words, Woodward has selected a box that includes both official and handwritten slip sheets, had no Top Secret documents, but a lot of less classified documents.

Something (he knows from his Jan 6 crime scene cases) a shameless propagandist will wail about.

But not something substantive to Nauta’s case.

Jack Smith to Aileen Cannon: Treating Non-Lawyer Tom Fitton’s Theories as Law Will Lead to Mandamus

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Both Trump and Jack Smith have responded to Aileen Cannon’s whack order to write proposed jury instructions as if the Presidential Records Act says something it doesn’t. Neither are all that happy about it.

Trump used his response to claim that having the jury assess whether Trump really did make these documents personal records rather than simply steal them would put them in the role that, he’s arguing, only a (former) President can be in.

Smith — as many predicted — spent much of the filing arguing that Cannon cannot leave this issue until jury instructions because it must have an opportunity to seek mandamus for such a clear legal error; they cite the 11th Circuit slapdown of Cannon’s last attempt to entertain this fantasy in support.

Along the way, though, Smith also did something I had hoped he would do: explain where, and when, Trump’s own whack theory came from in the first place.

It came from Tom Fitton’s Xitter propaganda in response to the public report, in February 2022, that Trump had returned documents, including classified ones. But even after Fitton first intervened, Trump’s handlers continued to treat any remaining classified documents as presidential records for months.

On February 8, 2022, the day after the Washington Post article was published, the president of Judicial Watch posted the following two statements on Twitter5
:

Immediately after posting the second Tweet, the Judicial Watch president sent to an employee in Trump’s post-presidency office a link to the Tweet and offered to discuss the issue with Trump. A few hours later, the Judicial Watch president sent the same person his analysis of the case Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That evening, the Judicial Watch president circulated to the employee a proposed public statement for Trump’s consideration, which included language that the PRA and judicial decisions gave Trump the right to keep the documents he returned to NARA. The statement never issued.

Around this same time, the Judicial Watch president, who was not an attorney, told another Trump employee that Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.”6 Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.

Smith doesn’t, however, draw out the implication of this explicitly.

Not only has Trump been falsely suggesting — without evidence — that he did designate these documents personal records. He couldn’t have done so, because he didn’t know of this theory until over a year after he stole the documents.

But Cannon is such a chump that she has been chasing a theory spun up by Fitton, someone who has only an English BA.

Cannon may well respond poorly to Smith’s use of 20-some pages to lay all this out. It’s the kind of thing that routinely elicits miffed responses from her.

At this point, though, it seems Smith is simply laying a record for a challenge at the 11th Circuit.

Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

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Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

The “Piles” of Chris Kise Bullshit Devlin Barrett Claims to Believe

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According to this piece, Devlin Barrett (this time, with Perry Stein) claims to believe a bunch of Chris Kise bullshit that has already been debunked in court filings.

One key issue is how much time Trump and his legal team get to review the piles of secret evidence in the case. Trump’s lawyers have accused the government of being too slow to provide access to the full catalogue of classified papers, and insist they need more time to prepare.

It’s true that Trump has claimed that. It’s true that Trump insists they need more time. But these claims were largely manufactured, which was readily apparent if you read the court filings closely.

Over the last five weeks, Trump’s lawyers have made a series of claims about classified production to support a bid to delay the stolen document trial until after the election.

Some of those were real: In particular, the Court Information Security Officer had to keep juggling a number of the documents Trump stole because they were so sensitive.

The first set probably involved the single charged and some number of uncharged nuclear documents, which defense attorneys were not yet cleared to access (the CISO basically removed them from the defense SCIF so the attorneys would be cleared to read everything that was left in there).

The second set — of first four and then another five — of the charged documents are Special Measures documents (those with additional compartments). Those could not be stored in the existing SCIFs in Miami without additional measures put in place. They were available in DC, and have now been made available in Miami. Altogether, it appears those Special Measures documents are around 44 pages in length. The defense team still needs a laptop equipped to write about them, the only apparent remaining delay in classified materials outstanding.

Those exchanges (most clearly laid out here) have revealed that, save for some classified FBI Agent emails that DOJ will provide closer to trial as Jencks production and some documents DOJ wants to provide with substitutions under CIPA 4 that this fight is holding up, this is the current universe of classified discovery in the case.

At less than 5,500 pages, it could hardly be called a “pile,” as Devlin did, unless you were referring to the horse manure that Kise was spreading.

Many of the claims that Chris Kise made were transparent bullshit. The most important one — because it appears to have fooled Aileen Cannon — is that the reason why a bunch of classified documents weren’t available in Miami (some were available in DC, where a number of Trump’s lawyers are) is because the defense attorneys weren’t in Miami to read them, something they delayed doing during several competing filings in this dispute. A CISO can’t just drop off nuclear documents in an unattended SCIF, but the guy who left the same document in his beach resort may not understand that.

It’s possible the defense put off going to Miami because the Special Measures documents were not yet there.

What’s clear, however, is that Trump’s team waited 11 days before reviewing documents that were ready for their viewing once they showed up to review them, then blamed DOJ because they waited.

A still more amusing complaint is that DOJ provided a disk with the items in a box of White House schedules that a Trump aide had scanned and then downloaded onto her computer, which because of duplicates amounted to 13,584 pages, of which just 15 pages were classified. DOJ had tried to provide all the unclassified pages in June, but Trump asked DOJ to hold off. That requested delay is one of the reasons Trump claims he can’t stand trial before the election.

Trump also spent weeks of October complaining that DOJ had provided 1,400 pages of Jencks materials (statements related to the case from people who’ll be witnesses at trial) in October, rather than the weeks before trial, when it is due.

Kise also complained he couldn’t review the classified discovery because he had to be in Trump’s 3-month fraud trial in New York, something that was known when Judge Cannon set the schedule.

As the government notes, Aileen Cannon’ schedule only had one deadline, for the initial production of classified documents, and the only delay in meeting that deadline came from Judge Cannon’s own dawdling over the protective order.

The Scheduling Order set September 7 as the deadline for the Government’s first production of classified discovery. The Government delivered certain classified discovery to the defense SCIF before then, but it was not available to the defense until September 13, after the Court entered the CIPA Section 3 protective orders, ECF Nos. 150-152.

Below I’ve put the series of claims Trump has made with DOJ’s debunking.

Claim:

On October 17, 2023, the Special Counsel’s Office caused approximately 2,487 pages of documents and four discs to be delivered to President Trump’s counsel, for the first time, at a secure facility in this District.

Debunking:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Claim:

[T]he Office’s October 6, 2023 production of approximately 2,400 pages of additional classified discovery is still not available for review in this District.

Debunking, One:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Debunking, Two:

As in all federal criminal cases involving classified discovery, to ensure confidentiality for the defense, the Government does not have access to the defense SCIF. To deliver classified discovery to the defense SCIF requires the presence of either the CISO or appropriately cleared members of the defense team.

Claim:

A recent, untimely production nearly doubled the volume of classified discovery, and the Office has not explained why those materials were withheld from prior productions.

[snip]

[T]he Special Counsel’s Office recently made available a classified production consisting of approximately 2,400 pages and four discs.

Claim:

[T]he Office still has not explained the timing of its October 6, 2023 production of thousands of pages of additional classified discovery, which is greatly in excess of what the Office estimated to the Court as recently as September 12, 2023.

Debunking:

[T]he largest set of documents in the most recent classified production—a set of about 1,400 pages of emails described in defendant Trump’s classified supplement—consists mostly of Jencks material, which this Court has indicated is not due until closer to trial.

Claim:

Mr. Kise has not yet been cleared fully to review all the CIPA materials and is currently representing President Trump in a trial in New York which is expected to conclude by December 22, 2023, well after expiration of many current deadlines as well as the hearing dates this Court has established. See People v. Trump, et. al, Index No. 452564/2022 (N.Y. Sup. Ct. 2022). He has therefore had no opportunity to review any of the CIPA materials or to participate in the preparation of the defense. President Trump should not be denied the assistance of core counsel in a matter of this significance due to the Government’s delayed discovery process.

Debunking:

Mr. Kise received an interim security clearance in late July, which authorized him to review about 2,100 pages of classified discovery the moment they were produced on September 13–the same day the protective orders issued. ECF Nos. 150, 151, 152. These materials included 16 of 31 charged documents and about 600 pages of classified interview transcripts, among other materials. So, although it is true that as of their filing Mr. Kise had not been “cleared fully,” it is inaccurate to suggest that that fact at all explains his failure to review “any of the CIPA materials.” This leaves only one of the proffered explanations for Mr. Kise’s alleged inability to review “any of the CIPA materials” as the possibly accurate one—Mr. Kise’s competing obligations in the New York trial. But those obligations were aired at the July 18 scheduling hearing, July 18 Tr. at 35, 43, and the Court has already taken them into account in setting trial in May.

Claim:

[T]the Office omits from its “supplemental response” that the four discs contained more than three gigabytes of data relating to six facilities, approximately 13,584 additional pages.

Debunking:

[A]ll but 15 pages of this 13,584-page set of materials had already been produced in unclassified discovery; and the reason the entire set of materials—including the previously produced unclassified pages—was provided together in classified discovery is that the defense asked that it be done that way. The 13,584 pages consist of multiple copies of documents from a box of scheduling materials from Trump’s presidency stored at Mar-a-Lago and elsewhere in West Palm Beach. During the investigation of this case, the Government obtained duplicate copies of the box’s contents—including from the box itself, as well as from a laptop and a cloud storage account to which an aide to defendant Trump had scanned copies—totaling the 13,584 pages, only 4,242 of which are unique. Fifteen of the pages were classified. On June 21, the Government produced to defendant Trump the unclassified digitized contents of the box, containing all but the 15 classified pages of the total of 4,242 unique pages. During a meet-and-confer on September 20, the defense indicated that rather than receiving productions of only the classified pages extracted from electronic devices, separated from the digitized unclassified material already provided in unclassified discovery, they wanted to receive any classified pages from electronic media together with surrounding contents so that it could ascertain where the pages had been stored.

Claim [classified supplement]:

The special measures documents could not be discussed in the defense SCIF when counsel resumed review of materials there on October 17 and 18.

Debunking:

[A]n equipment failure deactivated a security measure that prevented discussion of the special measures documents in Defense SCIF 1 (but review could still occur), and that the following day, October 18, counsel moved one block over to Defense SCIF 2, which was authorized for both review and discussion of all the classified discovery and to which the special measures documents were re-delivered.