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The Claimed 200,000 Pages Trump Stole Include Press Clippings

Yesterday, Trump filed the complaints he had originally filed under seal as well as another bid to delay the Special Master process.

I’ll return to both. But I want to look at the basis Trump offers to request a delay: that the documents seized from Trump amount to 200,000 pages.

At the status conference before the Special Master, the Plaintiff suggested that the dates put forth in the Draft Case Management Plan were unlikely to prove feasible in terms of both the likely start of the document flow and the man-hours necessary to review more than 11,000 pages or documents. Indeed, the Plaintiff suggested that a rough rule of thumb in document reviews is 50 pages per hour. Building into his calculations the review and categorization of the filter team documents; the successful recruitment, retention, and start-up operation of a data vendor; and the requisite review and categorization of that many documents led the Plaintiff to suggest mid-October as a completion date. Government counsel assured Your Honor that a minimal adjustment of “a couple of days” was all that was needed, but that otherwise the Plan was perfectly acceptable.

Trump has, so far, never shied away from spinning the facts. And this is the first filing made without Chris Kise’s signature, increasing the likelihood of shenanigans.

This universe of documents reflects the contents of 27 boxes plus the contents of Trump’s desk drawer (ignoring the 520 pages of potentially privileged documents, some of which came from the desk drawers, and all but one email of which Trump has had for 13 days). If the 200,000 number were accurate, every box and the drawer would have, on average, over 7,000 pages of documents, which is far more than even a large case of paper would include (10 reams of paper at 500 pages each, or 5,000). And some of these boxes include books (33 altogether) and clothing or gifts (19 total), which would fill space really quickly.

But even assuming that someone in government told him that the 27 boxes of documents plus the contents of Trump’s desk drawer amount to 200,000 pages of material, even assuming Trump would need to review every page of every government document he stole, this is still misleading.

That’s because the boxes also include clippings, up to 121 in a box, for 1,671 total. A typical news article printed out can run 10 pages or more (recall that Trump’s White House cut his NYT subscription). One “clipping” — in box 27 — spans over four years, July 2016 to September 2020.

This is not a single newspaper article. It might well be an entire blog or website, printed out.

And if these boxes resemble the ones delivered to NARA at all, they are largely clippings, with documents interspersed.

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.”

In other words, there’s a lot of fluff in these boxes. Fluff that will not need extensive review, because they’ve been seized because they help investigators understand the other items in those boxes.

And Trump is using that fluff to draw out the Special Master process.

Trump Sweeps Evidence of Obstruction under the Appellate Rug

Trump submitted his response to DOJ’s motion for a stay of Judge Cannon’s injunction and one part of her order appointing Dearie. To help show what the two sides have done, I want to compare the structures and content/scope arguments, which I’ve done below.

Several things stick out.

First, Trump — in the form of his competent appellate lawyer, Chris Kise — spent almost a quarter of their response addressing an appellate issue: whether DOJ can move for a stay of the part of the Special Master order requiring a review of the documents marked as classified. This part of the filing is competent, larded with precedent (the government’s primary precedent, unsurprisingly, is US v Nixon). I’m not well-versed enough in appellate issues to assess this argument (I think it doesn’t adequately account for the posture of DOJ’s appeal). So I’ll leave it out there for smarter people to address.

The two sides are telling a very different history. Trump has simply ignored everything that preceded August 8 — as well as the basis for the Espionage and obstruction investigations into him — to suggest his personal items and classified records were seized out of the blue on August 8. DOJ, of course, tells the story of his extended obstruction before that.

Because the government doesn’t deal with the public harm in a separate section from the one in it which it deals with the government interest in national security, Trump suggests the government conflates the two. Trump, meanwhile, suggests he still has a say in what is good for national security. Underlying all this is who gets to decide what is the public good, and whether DOJ’s claims of national security harm (plus the criminal investigation) get there by themself.

Aside from the appellate issue, Trump’s argument is a moving target, at one point treating Cannon’s order as she granted it (to find possessory interest in the potentially privileged material Trump has had in hand for 4 days), in other places ignoring the government’s more bracketed argument. Nowhere does Trump address the government’s argument that even if the documents are declassified, they are still evidence in a criminal investigation into obstruction and still necessary for national security purposes. In short, Trump largely addresses Cannon’s larger order, not DOJ’s much more circumscribed request.

Update: Here is DOJ’s reply, which I’ll address later on Wednesday.

Go to emptywheel resource page on Trump Espionage Investigation.


DOJ motion

Intro and Summary

Two weeks after a search, Trump asked for a special master and a stay. The government thinks the ruling was problematic for a bunch of reasons, but is only asking for a stay of the most problematic parts involving documents marked classified.

A. Background

This spans from Trump’s refusal to return documents to NARA, the criminal referral, the June 3 meeting, and the search warrant.

B. Proceedings below

This was brought on equitable jurisdiction, which requires exceptional circumstances. It notes that Cannon did not resolve the question of whether a former President can prohibit the current Executive from reviewing their own documents.

The government is appealing only with respect to records bearing classified markings. Cannon did not address the issue that there is no way Trump owns these documents

Then Cannon ordered the government to share classified documents with Dearie and Trump’s lawyers.

Argument

I. The government is likely to succeed on the merits

A. The court erred by exercising jurisdiction as to records bearing classification marks

  1. Trump lacks standing
  2. Cannon’s exercise of equitable jurisdiction cannot extend to these records under Richey
  3. The PRA doesn’t apply to returning records, plus the reason these aren’t accessible to Trump is because he failed to comply with PRA

B. Records bearing classification marks aren’t subject to any plausible claim of privilege

  1. Executive privilege exists for the benefit of the Republic
  2. Any claim of privilege by a former against the incumbent would fail with regards to records bearing classified markings
  3. Trump declined to invoke privilege when served with a subpoena

C. No factual dispute justifies Cannon’s order with regards to records bearing classified marks

  1. Trump doesn’t dispute the government recovered records bearing classification marks
  2. Even if Trump claimed he declassified these, they were still subject to the subpoena, plus the claim they might be “personal” means he can’t invoke privilege

II. The government and the public is irreparably harmed

A. By enjoining the investigation, Cannon’s order prevents the government from protecting national security

B. The injunction unduly interferes with a criminal investigation

C. Disclosure of records to the Special Master and plaintiff’s counsel would jeopardize national security

III. A partial stay would not harm Trump

DOJ has already reviewed these, and the only harm that might come is the investigation into him, which is not a cognizable harm.

Trump response

I. Summary and argument

The investigation of Trump is unprecedented. Having failed to convince Cannon to stay her order, the government appealed. She made no error.

II. Factual background

The government conducted a search and to protect Trump’s interest, Trump asked for a third party review. The government enjoined further criminal investigation but not national security review. Cannon appointed Dearie, who has a lot of experience.

The government sought a stay and Cannon denied it. Dearie has a lot of experience. The government sought a stay.

III. Standard of review

  1. Likely to prevail
  2. Irreparable harm
  3. Trump will suffer no substantial harm
  4. The public interest will be served

A. Standard of review — injunction

Requires clear abuse of discretion.

B. Standard of review — appointment of Special Master

Abuse of discretion, but not on interlocutory appeal.

IV. Argument

A. Cannon properly temporarily enjoined the government because she didn’t enjoin the national security review.

  1. The government misconstrues the standard for Rule 41(g) review [This is not a Rule 41(g) review, and Trump doesn’t address anything but the privileged material]
  2. The government hasn’t proven the documents are classified [The government’s argument holds even if the documents are only marked classified]
  3. Trump has a possessory interest in Presidential Records [which they establish because he has access, but not possession of]
  4. The government cannot say it will be irreparably harmed because Cannon disagreed with the sworn declaration saying that the investigation must be part of the national security review
  5. Trump and the public would be harmed by a stay [without addressing the public need or the classification issue]

B. The government’s motion for a stay amounts to an appeal of the Special Master appointment which is not appealable on an interlocutory basis.

“The Rule of Law is not assured:” The Cascading Constitutional Crisis Judge Aileen Cannon Deliberately Created

See the important correction about the scope of DOJ’s motion for a stay, below. I’ve corrected this post in italics.

There will be some timeline clashes this week in the Trump stolen document case, each of which could spiral into a Constitutional crisis.

They arise, in part, from Judge Aileen Cannon’s order that Judge Raymond Dearie start his review of the documents with those marked classified.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate.

That’s because DOJ’s motion for a stay of Cannon’s order enjoining DOJ from doing any investigative work and sharing classified information — which was filed at 9:03PM on Friday — and any other yet-to-be-filed appeal of (parts of) her order will be proceeding even as Dearie scrambles to meet Cannon’s first deadline: to have a schedule in place by September 25.

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

On Saturday at 7:03PM — just over 22 hours after DOJ’s filing — the 11th Circuit ordered Trump to file his opposition to the motion for a stay by Tuesday at 12PM.

That deadline comes just two hours before a first meeting Judge Dearie scheduled in his courtroom in Brooklyn at 2PM on Tuesday.

Counsel are directed to appear before the undersigned in Courtroom 10A-S of the Brooklyn Federal Courthouse on Tuesday, September 20, 2022 at 2:00 PM for a preliminary conference in the above-captioned matter.

Counsel are invited to submit proposed agenda items for discussion by docketed letter to be filed before the close of business on Monday, September 19, 2022.

The 11th Circuit seems poised to move quickly. But unless they granted a stay as quickly as they ordered Trump to file, it would not stay the Special Master process.

Until they rule, though, Dearie will necessarily move towards taking some of the steps laid out in this thread from SecretsAndLaws:

  • Finding a SCIF, probably in Brooklyn, to make the classified files available and transferring them by hand
  • Finding a place to store the remaining seized 12,904 items and shipping them
  • Clearing and providing work facilities for anyone who will have to access the classified documents

SecretsAndLaw didn’t consider one aspect of Cannon’s order. Read literally, with the exception of the 64 potentially privileged documents, she required DOJ to share the originals of the seized material with Dearie, not copies.

That’s likely something DOJ will ask to clarify on Tuesday. It’s solvable, sort of. DOJ can likely find a SCIF in the EDNY Courthouse or US Attorney’s Office. But that’s already a tremendous ask: that the government turn over the original copies of highly sensitive documents lawfully seized with a warrant to another branch of government.

It’s the clearance process that will lead to conflict.

As DOJ noted in their motion for a stay, Trump’s lawyers may be witnesses to the crimes under investigation.

Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

We already know Evan Corcoran is — at least — a witness. But a passage in the warrant affidavit unsealed last week reveals that it called Christina Bobb “PERSON 2” (Mark Meadows is the best candidate to be “PERSON 1,” because we know he was directly involved with returning, or not, documents to NARA earlier this year). Given that it refers to Corcoran as “FPOTUS COUNSEL 1,” there’s the possibility there’s an “FPOTUS COUNSEL 2” discussed as well (the FBI agent did not use numbers for all descriptors; it called Jay Bratt “DOJ COUNSEL,” with no number). If that’s right, it may mean Jim Trusty — the only one of Trump’s lawyers known to have held clearance in recent years and unlike Chris Kise, already representing Trump on August 5 when the affidavit was written — also made himself a witness in this investigation.

Meanwhile in 2020, Kise — the guy Trump just uncharacteristically ponied up a $3 million retainer to — registered under FARA to represent Venezuela on sanctions issues before Treasury. That would normally make him ineligible for a clearance, much less one to access some of the most sensitive documents the US owns.

In other words, it’s possible that none of Trump’s attorneys, not even Jim Trusty, are eligible for clearance in this matter. And when I say ineligible, it’s not a close call. There’s no reason DOJ should be forced to share these materials with someone who was an agent of a foreign power. There’s even less reason to share them with someone who might be implicated in obstruction himself. In a normal situation, Trump would be told to go find a lawyer with clearance (with the added benefit, to him, that they might know a bit about national security law).

DOJ routinely refuses to make classified materials available in civil suits. And anytime someone tries to order them to do so, they jump through a great many hoops to avoid doing so. In the al-Haramain case suing for illegal surveillance under Stellar Wind, one that has many direct applications to this one, that was true even when the plaintiff had already seen the classified document, as Trump has. In al-Haramain, there was even a cleared lawyer, Jon Eisenberg, with no ties to al-Haramain’s suspect activities, whom the government resisted sharing the key document in question.

The government will do — historically, has done — a great deal to avoid the precedent of a District Court judge ruling that it needs to grant even cleared lawyers the Need to Know very classified information.

And I have no reason to believe it will be different here.

All of this wouldn’t necessarily pose a risk of Constitutional crisis if not for a tactic that Judge Cannon has already used to create a harm that she can insist on remedying.

As I’ve noted, twenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

But Cannon prohibited DOJ from doing so, because she wanted to deal with this all “holistically.”

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

In her order denying DOJ’s request for a stay of her injunction (and several times before that), Cannon pointed to precisely these reserved potentially privileged items to find a harm to Trump that she needed to address.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)] [my emphasis]

I’ve written about how Cannon outright invented the claim that the medical and tax records were personal property. Both inventories thus far provided to Trump comply with the law (and, importantly, Custodian of Records Christina Bobb signed the first with no complaint about the accuracy or level of detail, arguably waiving any complaint).

But the single solitary reason why the filter protocol remained unavailable to Trump’s team on September 15, when Cannon wrote this order, is because she prohibited DOJ from sharing it with Trump over two weeks earlier.

Cannon, personally, created the harm, then used that harm to justify her intervention to address it.

And if you don’t think she plans to use the harm she created to justify continued intervention, consider that she still hasn’t ruled on DOJ’s request to unseal the privilege team status report, filed over ten days ago, which would be necessary for DOJ to address this ruse before the 11th Circuit (and rebut her false claims that the filter team missed anything). And she ordered Dearie — “shall” — to first address the classified documents even while acknowledging that her order was going straight to the 11th Circuit.

The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “[i]f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

Ordering Dearie to start with the classified documents feigned reasonableness on Cannon’s part. But what it also did is ensure these separation of powers issues come to a head within days, not weeks, possibly before any 11th Circuit ruling.

A reasonable judge, someone genuinely interested in a third party reviewing this stuff as expeditiously as possible, would start with the items already identified as potentially privileged, because that’s the single set of documents that does not implicate any separation of powers issues (and also the single set of documents that is virtually guaranteed not to be included in DOJ’s appeal).

So in addition to the motion for a stay and, at some point, the actual appeal of other parts of Cannon’s order — with complaints about the order to review classified documents, review for executive privilege, and the order prohibiting criminal charges, all of which Cannon concedes are Executive Branch authorities even while she usurps authority to override the Executive — the way Cannon has set this up may elicit several other appeals of the implementation of her order, separate from the initial appeal of the order itself:

  • To turn over possession of materials owned by the Executive Branch to Dearie
  • To clear Trump’s lawyers and anyone else not otherwise eligible for clearance
  • To grant those people Need to Know the contents of these documents

Ironically, Cannon’s Constitutional arrogance may hasten precisely the thing she claims to be preventing.

That’s because the single quickest way to avoid all these problems would be to charge Trump if and when the 11th Circuit (or SCOTUS) grants a stay of her injunction. As soon as that happens, all of this review would get moved under the District Court judge overseeing the criminal case (and Cannon’s intransigence makes it more likely DOJ would file such a case in DC).

DOJ really could not charge Trump on Espionage until that time (or until they seize other classified documents he has been hoarding, which they allude to in their motion for a stay). That’s because the the key proof that Trump refused to give the classified documents back is the failure to comply with the May 11 subpoena. Even any obstruction charge might require possession of (not just permission to use) the actual documents to prove the case. But DOJ may hasten such a decision at such time as they are permitted, to avoid the other Constitutional problems Cannon deliberately created.

As we have all that to look forward to this week, it’s worth watching or reading the remarkable speech Merrick Garland made with little fanfare at Ellis Island on Saturday, after he administered the Oath of Allegiance to new citizens. After contemplating that his grandmother would not have survived the Holocaust if not for the Rule of Law in the United States, Garland focused on its fragility.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

Having started the speech focused on his forebears, the Attorney General closed by addressing the urgency of “doing what is difficult” for the generations of Americans who come after us.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

And then — even as the former President was riling up his cult in Ohio — the Attorney General was contemplating, on the verge of tears, that the rule of law is not assured.

Things could get really crazy in weeks ahead.

Update: I’ve been corrected about something in DOJ’s motion for a stay: They requested that the 11th Circuit stay both Cannon’s injunction and her order that they share classified information with Trump.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.

Aileen Cannon Orders Government to Share Classified Information with Trump’s Counsel

I’ll have a lot more to say about Judge Aileen Cannon’s order blowing off National Security in favor of Trump’s half-assed claims of being a victim. Her order is a radical assault on national security and rule of law.

But for the moment, I want to look at this part of her work flow order.

Make available for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master, the documents marked as classified and the papers attached to such documents; and

It orders the government to make the classified documents stolen by Trump available to his attorneys, including Evan Corcoran, who is either a witness or a subject of this investigation. None are known to be cleared. Aside from Jim Trusty, it’s not clear how quickly any of them can be cleared.

In her order, she claims this involves sharing only with the Special Master, Raymond Dearie.

The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless

But these are completely contradictory. One document says the government must share classified information with Trump’s people. The other document says, “it’s only Raymond Dearie, don’t worry your little heads.”

And she just waves her hands and says the government must share this stuff, “including necessary clearance requirements,” without acknowledging that she doesn’t get to decide that. If the government says that none of Trump’s lawyers can be cleared, they get to say that (again, I expect fewer concerns about Trusty, but major concerns about Corcoran).

That’s par for the course of this order.

Go to emptywheel resource page on Trump Espionage Investigation.