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DOJ Raises Prospect that Trump Continues to Obstruct Investigation, Including of Empty Folders

DOJ submitted its reply in its request for the 11th Circuit to stay parts of Aileen Cannon’s order pertaining to documents marked classified. The matter is fully briefed, so the 11 Circuit could rule at any time.

There’s little that’s new in the reply, except for DOJ’s response to Trump’s claim that the 11th Circuit cannot hear an interlocutory appeal as to whether DOJ has to share the classified files with Judge Raymond Dearie and Trump’s lawyers. The government cites three bases for appeal: a claim that they are appealing Cannon’s initial order on September 5 stating she would appoint a Special Master, an assertion that an order to share classified information would be appealable by itself, and if all that fails, a writ of mandamus.

2 If the Court harbors any doubts about its jurisdiction over portions of the September 5 order, it should construe the government’s appeal and stay motion as a petition for a writ of mandamus with respect to those portions and grant the petition. See SuarezValdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988).

This jurisdictional dispute is, in my opinion, getting too little attention, because it’s one way Trump could succeed even though all the facts are against him. That said, as the government suggested, they believe they could separately appeal the order to share information (and so they could just turn around and file another appeal to address that order). Moreover, in yesterday’s hearing, Dearie indicated that, absent any affirmative claim that Trump has declassified any documents, he would resolve that issue without looking at the documents. (See also Adam Klasfeld’s report on the hearing.)

DOJ also points to Trump’s proposed topics for yesterday’s hearing to note that he refuses to say that he declassified any of the documents at issue (and that he’s already seeking to draw out this process).

Plaintiff again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step. And Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence. D.E. 97 at 2-3.

[snip]

To the contrary, after persuading the district court to grant injunctive relief and appoint a special master to adjudicate purportedly “disputed issues” about the records’ status, A6-A7, Plaintiff has now reversed course: In response to the special master’s invitation to identify any records he claims to have declassified and offer evidence to support such claims, Plaintiff objected to “disclos[ing] specific information regarding declassification to the Court and to the Government.” D.E. 97 at 2.

The timing of these filings serves the government’s case well, because Trump is refusing to make the kind of affirmative claims that a plaintiff would need to make for relief (though with another day, DOJ could have relied upon a transcript of the Dearie hearing as well, in which Jim Trusty asserted that with his Top Secret — but not SCI — clearance he should not be denied the Need to Know to access the documents).

The ease with which DOJ rebutted Trump’s factual claims is downright funny in places (or would be, if not for the possibility that some nutjob panel on the 11th won’t see the humor). For example, DOJ noted what I did — Trump invoked notes he had written on documents to claim Executive Privilege over some of the documents with classification marks. But those were documents turned over in June, not documents seized in August.

Indeed, except for a brief footnote, his response does not mention executive privilege at all. And the footnote states only that other classified documents recovered before the search contained Plaintiff’s handwritten notes and that those notes “could” contain privileged information. Resp. 13 n.5; see A73. But the question is not whether the records at issue here might contain material that in other circumstances could give rise to valid claims of executive privilege against disclosure to Congress or the public. Instead, it is whether Plaintiff can assert the privilege to prevent the Executive Branch itself from reviewing records that are central to its investigation.

DOJ doesn’t note here that these were documents turned over in response to a subpoena, but elsewhere, it notes that he didn’t raise such privilege claims when he turned over the records.

Plaintiff should not be heard to assert a privilege that he failed to raise in response to a grand-jury subpoena.

In other words, Trump is relying on documents that he turned over with no privilege claim to suggest he might withhold documents based on an Executive Privilege claim.

DOJ similarly notes that Trump pointed to a portion of the seized materials he might own as his basis for a claim DOJ shouldn’t have access to files he cannot own.

Plaintiff asserts (at 10) that he owns other seized evidence, such as “personal effects.” He may well have standing to seek return of that “portion” of the seized evidence. United States v. Melquiades, 394 Fed. Appx. 578, 584 (11th Cir. 2010). But he cites no authority supporting a claim for return of records that do not belong to him.

Both these areas are where Trump is stuck trying to make Cannon’s gimmicks to justify intervening hold up under scrutiny.

I’m most interested in how DOJ repeats something it has already said. It asserted that it may need to use additional search warrants to hunt down  any files disclosed to others.

As the government explained—and as supported by a sworn declaration from the Assistant Director for the FBI’s Counterintelligence Division—the Intelligence Community’s (IC’s) classification review and national-security assessment cannot uncover the full set of facts needed to understand which if any records bearing classification markings were disclosed, to whom, and in what circumstances. Mot. 18; A41-A42. The FBI has a critical role in using criminal investigative tools such as witness interviews, subpoenas, and search warrants in pursuit of these facts. A42. The injunction bars the FBI from using the seized records bearing classification markings to do just that. Plaintiff asserts that the government has shown only “that it would be easier . . . to conduct the criminal investigation and national security assessment in tandem.” Resp. 17. But the injunction prohibits DOJ and the FBI from taking these investigative steps unless they are “inextricable” from what the court referred to as the IC’s “Security Assessments,” A11-A12—a standard that the government must discern on pain of contempt.

Plaintiff next dismisses the government’s national-security concerns as “hypothetical.” Resp. 17 (citing A11). But the injunction is preventing the government from taking some of the steps necessary to determine whether those concerns have or may become a reality. Moreover, Plaintiff fails to address the harms caused by the injunction’s interference in the expeditious administration of the criminal laws, and by the possibility that the government’s law-enforcement efforts will be obstructed (or perhaps further obstructed). Mot. 19-20. Plaintiff states only that the injunction will last for a “short period,” Resp. 19. At the same time, Plaintiff is already attempting to delay proceedings before the special master. See D.E. 97 at 1-2 (seeking to extend deadlines and set hearings “on any Rule 41 or related filings” in “Late November”). [my emphasis]

As noted, DOJ made this argument — relying on Alan Kohler’s declaration, the only sworn declaration in the docket — in its motion for a stay before Cannon. But when they suggested that Trump may have leaked documents in their initial filing before the 11th, they only mentioned compulsory process, not warrants specifically.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

This is all couched in the language of hypothetical possibilities. DOJ is not saying that they currently have plans to execute further warrants in search of the documents Trump stole and, possibly, leaked to others.

But they are suggesting that may be a step they would take — before such time as the Special Master process ends in November — to try to hunt down the contents that used to be in those empty folders or other files Trump leaked to people not cleared to have them.

Christina Bobb, whom (according to the NYT) investigators already asked to interview, amended the declaration that Evan Corcoran wrote, possibly to limit her own certification to files still at Mar-a-Lago. If DOJ has since learned why that declaration did not incorporate all documents in Trump’s possession — something that has been a focus for weeks — the injunction really might be preventing further action, including search warrants to get them back.

Go to emptywheel resource page on Trump Espionage Investigation.

Don’t Analyze Trump Legal Filings Based on the Law, Analyze Them Based on Power

I think people are making a grave mistake of applying principles of law to Trump’s legal maneuvering.

Trump’s lawyers are not making arguments about law.

If there were lawyers concerned about principles of justice participating in his defense, they’d be stridently advising him to work on a plea deal admitting guilt to 18 USC 2071, removing government documents, maybe even agreeing to the probably unconstitutional part of the law that would prohibit him from running for President again, in exchange for removing the more serious 18 USC 793 and 1519 charges from consideration. Such a plea deal is never going to happen. Win or lose, Trump is pursuing power, not adjudication under the law, not even recognition of the law.

One way you can be certain about that is because Evan Corcoran, who got his and Steve Bannon’s asses handed to them in Carl Nichols’ courtroom making legally ridiculous arguments that treat Executive Privilege as a theory of impunity applicable to everyone who is loyal to Trump, has taken from that setback not that his claims about Executive Privilege are ignorant and wrong. Instead, he has doubled down on that approach with Eric Herschmann (and probably the Two Pats, Cipollone and Philbin), undoubtedly believing that so long as he can delay the time until Bannon reports to prison and Trump’s former White House Counsels testify about what really went down on January 6, his people can reclaim Executive authority and make all this go away.

He’s definitely not wrong that he can delay the time until Bannon is jailed, and he may not be wrong about the rest of it.

Four years ago last week, Paul Manafort entered into a plea agreement with Mueller’s team and then promptly started lying about matters to which he had already confessed to get the plea deal in the first place. Manafort managed to sustain the appearance of cooperation through the mid-term election, after which Trump took action that would have been politically problematic before it — firing Jeff Sessions and hiring Billy Barr. Amy Berman Jackson ruled that Manafort had lied during his plea deal. But it didn’t matter. Trump and Barr spent the next two years erasing every legal judgment against him and the Trump flunkies that had remained loyal, erasing Manafort’s conviction and even his forfeiture. They erased a good deal of evidence that he conspired with Russia to get elected in the process. In the end, everyone who played a part in this process ended up better off — in significant part because the process, especially Barr’s part in it, has never been fully reported for what it was. Trump even used the ensuing process of discrediting the Russian investigation as a means to train Republicans — along with likely Fox viewers like Aileen Cannon — to believe he was mistreated in the Russian investigation, when the opposite is the case.

Along the way, Trump did grave damage to rule of law and undermined trust in US institutions. For him, that was a side benefit of the process, but a very important and lasting benefit, indeed.

He’s undoubtedly trying to play the same trick again: Stall the investigation past the election, and then (seemingly confident that Republicans will win at least one house of Congress, by democracy or by deceit) flip the entire investigation into yet another example where Trump has not flouted the law, but instead the law has failed to recognize Trump’s impunity from it.

Consider the analysis of Trump’s objections to Judge Raymond Dearie’s draft Special Master plan. As noted, Trump wailed about two things: that Dearie asked whether Judge Aileen Cannon’s inclusion of any Rule 41(g) claims (which is basically a legal way to demand property back before an indictment) in her order accorded with law and asked Trump to provide a list of the documents he claims to have declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Virtually everyone has suggested that the reason that Trump is balking at the order to tell Dearie which documents he declassified is because his lawyers want to avoid lying and they know Trump hasn’t declassified any of these documents. Such observations apparently apply even to Evan Corcoran, who (according to the NYT) suckered Christina Bobb into signing a declaration he wrote about a search he had done that claimed a diligent search was done that has since been proven not to be a diligent search.

Suffice it to say I’m skeptical that these lawyers — at least some of them — would be averse to filing a declaration saying, “Our client tells us he declassified it all,” if it would serve Trump’s purposes. All the more so given that none of them were in a position to know whether Trump declassified them all or not, and Trump not only doesn’t care whether he lies to his lawyers, he’s probably constitutionally incapable of doing anything but.

That’s not the reason why they’re balking about Dearie’s request for a list of documents Trump declassified.

Consider the schedule Trump proposed.

This schedule ensures that key decisions come to a head in mid-November, after the election.

Trump’s goal here is not any final determinations from Dearie (absent a determination that the FBI was mean to Trump just like they were to Carter Page). Cannon’s order fairly obviously invites Trump to contest Dearie’s ultimate decisions so she can de novo decide the issues. Trump’s goal is undoubtedly (because it always is) to create conflict, to sow an invented narrative that DOJ is out to get him. And Trump’s optimal outcome is not necessarily even that Cannon will say Trump declassified all these documents, including some of the Intelligence Community’s crown jewels. Such a proposition might even piss off a few of the Republicans who’ve not entirely lost their mind, until such time as Trump convinces them through the process of repetition and demonization that the IC should never have been spying on (say) Russia in the first place.

Trump’s goal here is to sustain the conflict until such time as Jim Jordan can save him, and the two of them can resume their frontal assault on rule of law again.

All Cannon needs to do to serve that end is at some point, after the election, declare that Trump’s claims about classification, even if incorrect and foolish, are reasonable for a former President. That’s all it would take to make it prohibitively difficult for future prosecutors to indict the 793 charges. This is the same way Barr made it prohibitively difficult for prosecutors to charge outstanding Mueller charges, notwithstanding the number of self-imagined liberals who blame Merrick Garland for that damage.

A more obvious tell comes earlier in Trump’s proposed schedule.

He wants the classified documents shared with his team — none of whom currently has the requisite clearance — this week. Only after that does he want to create the privilege log for the 64 documents his lawyers have had for four days; he wants another two weeks (so 18 days out of a 75 day process, total) before he makes such privilege determinations.

To be fair, that may be what Judge Cannon intended, too. She, meanwhile, will have to review at least one protective order this week, and may use that as further opportunity to muck in the process, to reinforce her demand that DOJ start the process of sharing classified documents even before the 11th Circuit weighs in.

There are probably two very good reasons why Trump wants classified documents in hand before they make any privilege claim. First because (as I have repeatedly pointed out), Cannon used those potentially privileged documents as the harm she hung her authority to wade in on. If Dearie rules that — as DOJ has repeatedly claimed — these documents were pulled out not because they really are privileged, but only because they set the bar for potential privilege so low as to ensure nothing was reviewed, then it takes one of the three harms that Cannon has manufactured off the table. Every time a claimed harm is taken off the table, another basis for Cannon’s power grab, and another basis from which to claim conflict, is eliminated.

Trump needs to forestall that from happening until such time as he has created more conflict, more claimed injury.

The other reason, I suspect, that Trump wants the classified documents in hand before the potentially privileged documents is because he knows that some of the classified documents he stole involve either his White House Counsel (which would be the case if documents pertaining to his Perfect Phone Call with Volodymyr Zelenskyy were in the stash) or his Attorney General (which might be the case with the clemency for Roger Stone). DOJ has always limited its comments about attorney-client privilege to those involving Trump’s personal lawyers, and that approach has continued since then, even in their motion for a stay before the 11th Circuit. They’re not wrong on the law: classified documents involving White House or DOJ lawyers are obviously government documents. But that wouldn’t prevent Trump from claiming they are privileged (or Cannon agreeing with him on that point).

Thus the delay. Trump needs to delay the potentially privileged review until such time as he has those classified documents in hand and can claim that DOJ didn’t include all the potentially privileged ones because they assumed that government lawyers work for taxpayers, not for Trump.

It doesn’t have to be true or legally sound. It needs to be a conflict that can be sustained long enough to let Cannon decide, and decide in such a way that Trump keeps claiming he’s the victim.

Like I said, Corcoran may not be wrong that this will work. A lot depends on what the 11th Circuit decides. But a lot, too, depends on commentators continuing to treat this as a good faith legal dispute when instead it’s just more manufactured conflict.

“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.

Only Eric Herschmann (and Maybe Christina Bobb) Learned the Steve Bannon Lesson

There’s a lot to unpack in this NYT story about the in-fighting on Trump’s legal team.

It confirms that prosecutors have asked to interview Christina Bobb and notes that she “added language to” the declaration that Evan Corcoran wrote about his search for documents “to make it less ironclad a declaration before signing it.” (If I had to guess, I’d say this pertains to the limits on the search having taken place at Mar-a-Lago.) The story proclaims ignorance about whether Bobb actually has testified. But the shift in how DOJ has discussed Corcoran — describing him claiming he “was advised” about certain topics in the search warrant affidavit, but then stating he “represented” those same topics at the June 3 meeting in their response to Trump’s request for a Special Master — is consistent with Bobb refusing to be made the fall-gal. DOJ’s assertion that Trump’s lawyers might be “witnesses,” plural, in their motion for a stay to the 11th Circuit also suggests some inside knowledge about things that another Trump lawyer may have done (note, the reference in the affidavit to Corcoran as FPOTUS Counsel 1 suggests another Trump lawyer is described in it later in the affidavit).

NYT also describes Eric Herschmann’s famously candid opinions, this time about the value of Boris Epshteyn’s legal advice.

“I certainly am not relying on any legal analysis from either of you [Corcoran and John Rowley] or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

I have been wondering whether Epshteyn, in particular, were just exploiting Trump for his own objectives before he moves onto some other convenient vehicle for extremism after Trump is crushed by legal troubles inadequately defended, and this anecdote would be consistent with that.

But the larger story describes how Herschmann refused to simply just bullshit his way through privilege invocations before a January 6 grand jury. The story is based on an email thread in which Corcoran — who helped Steve Bannon get convicted of contempt — attempted to persuade Herschmann to follow the exact same approach to testifying that Bannon (and John Rowley client Peter Navarro) adopted with the January 6 Committee: To refuse to testify based off a claim of Executive Privilege that Trump had not formally invoked.

Incidentally, that’s the very same approach Trump has used before Aileen Cannon. Thus far it has worked like a charm for her. It has been less successful with every other investigative body.

In fact, Herschmann seems to have made precisely the same point I have in the past, to Corcoran (and Rowley): Executive Privilege doesn’t work the way Corcoran claimed it did when he was busy shepherding Bannon to a contempt conviction.

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

So after repeated insistence that he get a real privilege invocation and after refusing to discuss these things without a documentary trail, the morning before Herschmann would have testified, Trump’s lawyers acceded to Herschmann’s demand for a proper invocation of privilege.

After ignoring Mr. Herschmann or giving him what he seemed to consider perplexing answers to the requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August. Assert sweeping claims of executive privilege, they advised him, after Mr. Corcoran had suggested that an unspecified “chief judge” would ultimately validate their belief that a president’s powers extend far beyond their time in office.

[snip]

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment.

Nearly four weeks after Mr. Herschmann first asked for an instruction letter and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show that he received notification from the lawyers — in the early morning hours of the day he was scheduled to testify — that they had finally done as he asked. [my emphasis]

So let’s talk about the timing of all this — and also about how Glenn Thrush, who is a politics reporter who knows fuckall about DOJ, keeps getting scoops about details that would be known to those being investigated, including this email chain that would be protected by the same principles of attorney-client privilege that Corcoran claimed to be vigorously protecting in it.

The emails were obtained by The New York Times from a person who was not on the thread of correspondence. Mr. Herschmann declined to comment.

According to a slew of reports, Herschmann was first subpoenaed around August 15. Given the timeline laid out in the story, describing that Herschmann asked for four weeks before getting a formal privilege letter, it would suggest he didn’t get a formal privilege invocation until around September 12 — days ago, perhaps even more recently than that.

According to an equally coordinated set of stories, the two Pats — Cipollone and Philbin, who happen to be law partners — were subpoenaed earlier than that. Those reports, which came out on August 3, eleven days before the stories about Herschmann being subpoenaed, described how there was some discussion about how to handle Executive Privilege claims.

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

As ABC pointed out, before he testified to the January 6 Committee, Cipollone made a similarly big fuss about Executive Privilege.

But when he testified to the Committee, Cipollone made specious privilege invocations to avoid testifying about the former President cheering violence, including violence directed at his Vice President.

UNKNOWN: My question is exactly that, that it sounds like you from the very outset of violence at the Capitol, right around 2:00, were pushing for a strong statement that people should leave the Capitol. Is that right?

PAT CIPOLLONE: I was, and others were as well.

UNKNOWN: Pat, you said that you expressed your opinion forcefully. Could you tell us exactly how you did that?

PAT CIPOLLONE: Yeah, I can’t — I don’t have, you know, I have to — on the privilege issue, I can’t talk about conversations with the President, but I can generically say that I said, you know, people need to be told, there needs to be a public announcement fast that they need to leave the Capitol.

[snip]

UNKNOWN: Do you remember any discussion at any point during the day about rioters at the Capitol chanting hang Mike Pence?

PAT CIPOLLONE: Yes, I remember — I remember hearing that about that, yes. I don’t know if I observed that myself on TV.

UNKNOWN: I’m just curious. I understand the — the privilege line you’ve drawn, but do you remember what you can share with us about the discussion about those chants, the hang Mike Pence chants?

PAT CIPOLLONE: I can tell you my view of that.

UNKNOWN: Yeah, please.

PAT CIPOLLONE: My view of that is that is outrageous. And for anyone to suggest such a thing of the vice president of the United States, for people in that crowd to be chanting that I thought was terrible. I thought it was outrageous and wrong, and I expressed that very clearly.

ADAM SCHIFF: With respect to your conversations with Mr. Meadows, though, did you specifically raise your concern over the vice president with him, and — and how did he respond?

PAT CIPOLLONE: I believe I raised the concern about the vice president, and I — and I — again, the nature of his response, without recalling exactly was he — you know, people were doing all that they could.

ADAM SCHIFF: And — and what about the president? Did he indicate whether he thought the president was doing what needed to be done to protect the vice president?

UNKNOWN: Privilege. You have to assert it. That question would —

PAT CIPOLLONE: That would call for — I’m being instructed on privilege.

[snip]

LIZ CHENEY: And who on the staff did not want people to leave the Capitol?

PAT CIPOLLONE: On the staff?

LIZ CHENEY: In the White House, how about?

PAT CIPOLLONE: I don’t — I — I can’t think of anybody, you know, on that day who didn’t want people to get out of the — the Capitol once the — you know, particularly once the violence started, no. I mean —

ADAM SCHIFF: What about the president?

LIZ CHENEY: Yeah.

PAT CIPOLLONE: She said the staff, so I answered.

LIZ CHENEY: No, I said in the White House.

PAT CIPOLLONE: Oh, I’m sorry. I — I apologize. I thought you said who — who else on the staff. I — I — I can’t reveal communications, but obviously I think, you know, — yeah. [my emphasis]

Cipollone invoked Executive Privilege to avoid revealing details about Trump cheering the violence directed at his Vice President and hoping that rioters would stay at the Capitol. Cipollone made those privilege claims on July 8, two months before the rough date when, after much badgering, Herschmann succeeded in getting a letter invoking privilege from Trump’s lawyers.

That’s the only known formal invocation of Executive Privilege Trump has put in writing regarding January 6.

And if Herschmann got that letter on September 12, he would have gotten it after the two Pats testified in one-two fashion on September 2.

Email chains like this — by any measure, clearly privileged — usually get leaked (to politics reporters) when legally exposed individuals are trying to telegraph to each other important details about their testimony.

And whatever else this story conveys, it tells anyone who has already testified and invoked privilege that Chief Judge Beryl Howell has recently gotten, and will be deciding on, the first known formal invocation of privilege. Howell will be asked to weigh not just whether a White House Counsel can invoke Executive Privilege in a criminal investigation implicating the President, a topic about which Bill Clinton would have a lot to offer. She’ll also be asked, generally, about the privilege claims lawyers are making about an event — January 6 — that the Supreme Court has already decided Executive Privilege, at least, must be waived.

If Howell rejects Trump’s invocation of privilege with Herschmann, then any claims of Executive Privilege that the two Pats made in their one-two testimony on September 2 would fail as well.

And Pat Cipollone is a direct and credible witness to Trump’s cheers of violence directed at his Vice President.

The effort to get witnesses to invoke Executive Privilege without any formal invocation that Judge Howell would review is not new. Trump has been pursuing this for a year, first with Justin Clark telling Bannon to bullshit his way through privilege claims with the January 6 Committee, then with unnamed lawyers persuading Cipollone to bullshit his way through testimony to the January 6 Committee, and most recently to Evan Corcoran — who had a front row seat to see that not even former Clarence Thomas clerk Carl Nichols would buy such bullshit — continuing to pursue such an approach even after it led directly to Bannon’s conviction.

Eric Herschmann, at least (and possibly also Christina Bobb) has learned the lesson of Steve Bannon.

18 USC 793(g): Aileen Cannon’s Order Would Not Forestall Flipping Trump’s Custodian of Records

Donald Trump’s lawyers (including the one who failed to understand Trump was exposed to 18 USC 793 and who subsequently made himself a witness in the investigation) are cultivating the belief that they’ve succeeded in stalling the investigation into their client’s efforts to keep highly classified documents in his office and storage closet.

Perhaps they have. I don’t know what will happen. Though I know their track record of predicting what DOJ will do, thus far, has been piss-poor.

What I do know is that nothing would prevent DOJ from interviewing — or even flipping — the Custodian of Records who used to be one of Trump’s lawyers in this matter.

DOJ’s motion for a stay explicitly states that Judge Aileen Cannon’s injunction against using the classified documents seized from Donald Trump for investigative purposes would not shut down the investigation. It lays out several things her injunction would not prohibit.

To be sure, the Court did not enjoin the criminal investigation altogether. For example, the government does not understand the Court’s injunction against the government’s review and use of seized materials for criminal investigative purposes to prevent it from questioning witnesses and obtaining evidence about issues such as how classified records in general were moved from the White House, how they were subsequently stored, and what steps Plaintiff and his representatives took in response to the May 11, 2022 grand jury subpoena. The government also does not understand the Order to bar it from asking witnesses about any recollections they may have of classified records, so long as the government does not use the content of seized classified records to question witnesses (which the Order appears to prohibit).

DOJ maintains that Cannon’s order does not prevent them from questioning witnesses or otherwise obtaining evidence about:

  • How classified records were moved from the White House to Trump properties
  • How classified records were stored after they were removed from the White House
  • What steps Trump and others took in response to the May 11, 2022 grand jury subpoena
  • Recollections about classified records not relying on those seized on August 8

One person who would know a good deal about these matters, and might have an interest in being rather forthcoming about them if she were interested in minimizing her potential legal exposure, is Trump’s Custodian of Records.

By title, at least, that person would know how classified documents were stored — in Mar-a-Lago and any other Trump properties — after they were removed from the White House. And few people would know more about what steps Trump “and his representatives took in response to the May 11, 2022 grand jury subpoena” than one of those two representatives, the one who signed a declaration certifying that:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge.

In fact, that Custodian of Records might have real concern she faced legal exposure for one or more crime tied to lying to the FBI:

And all that’s assuming the Custodian of Records isn’t one of the people who shows up on video surveillance moving boxes in and out of the storage room before the “diligent search was conducted” of those boxes.

If the Custodian of Records does show up on that video surveillance, than she might face legal exposure to:

If the Custodian of Records conspired to withhold 103 classified documents, of which 18 were classified Top Secret or above, that Custodian of Records might decide she really wanted to limit her liability in that potentially draconian obstruction-plus-Espionage legal exposure.

All the more so if the Custodian of Records believed she might also have exposure to charges under 18 USC 1512(c)(2) and 18 USC 1512(k) — each of which carries up to a twenty year sentence — for involvement in an attempt to prevent the January 6 2021 vote certification and recognized that information about such activities was of value to other ongoing criminal investigations.

NYT, in an otherwise bizarre story claiming the following in its lead paragraph…

A dark joke has begun circulating among lawyers following the many legal travails of former President Donald J. Trump: MAGA actually stands for “making attorneys get attorneys.”

… revealed this piece of news:

Ms. [Christina] Bobb recently retained a lawyer, according to a person familiar with the situation.

Being Trump’s lawyer — being Trump’s associate generally — seems to be a non-stop game of prisoner’s dilemma, a constant weighing of whether he’ll sell you out or provide means to loot the country with impunity.

Years ago, when Trump was President, that prisoner’s dilemma turned out to be pretty easy. He would pardon anyone who lied to keep him out of trouble. So no matter how grave your legal exposure, your real criminal exposure was just a few years (and that’s before Billy Barr started selectively freeing Trump associates under COVID release programs).

But Trump is not President anymore, and short of successful civil war, even in the rosiest possible scenario would not become President again until 2025. In fact, Trump’s own legal problems and his success shutting down women’s access to abortion even makes more immediate potential relief — in the form of a House majority that could undermine DOJ’s ongoing investigations — far less of a sure thing.

Trump’s success at stalling access to classified documents seized on August 8 — and his current lawyers’ rosy prediction they’ve delayed such access until Republicans might win one house of Congress — certainly would be part of that prisoner’s dilemma. After all, until such time as DOJ were able to use 18 Top Secret documents in an Espionage Act indictment, the Custodian of Records probably couldn’t be charged for 18 USC 793(g).

But as I’ve noted before, the Espionage Act was written to dramatically alter these kinds of prisoner’s dilemmas, both because affirmative knowledge of stolen classified documents is enough to reach criminal exposure, and because the conspiracy prong of the statute exposes co-conspirators — even ones who don’t share the same motive as the person who actually possesses a cache of stolen classified documents — to the same stiff punishment as the people who actually possess those documents.

So a smart student of prisoner’s dilemmas might understand that it doesn’t pay to wait to see how Trump’s current efforts at delay work out.

One thing’s clear though: DOJ doesn’t intend to entirely halt the investigation into violations of the Espionage Act and obstruction. Indeed, they have a fair amount of leeway to pursue obstruction charges while Aileen Cannon delays the other part of the investigation. And they have described next steps to include obtaining information uniquely available to Trump’s Custodian of Records.

Go here for emptywheel’s other coverage of Trump’s stolen documents and related resources. 

Evan Corcoran Keeps Arguing that Evan Corcoran Didn’t Do a Diligent Search

There’s something weird about the argument that Trump’s lawyers — each time with the participation of Evan Corcoran — are making about the search of Mar-a-Lago. What they claim they’re up to is all over the map, and has evolved (for example, their first filing focused on Executive Privilege, but in last week’s hearing, Judge Aileen Cannon had to remind Trump lawyer Jim Trusty that’s what he was supposed to be arguing).

But their true goal, it seems, is to learn enough about what was taken so they can attempt to claw back certain materials that would incriminate Trump for reasons other than the sheafs of highly classified information that were stored in an insecure storage closet. It’s a two step process: Learn what was taken, so they can then argue that its seizure was a gross violation of the Fourth Amendment under what’s called a Rule 41(g) motion.

And to that end, the first filing argued that they need a more detailed inventory, describing what was seized and from where, so Donald Trump can make a Rule 41 motion claiming it was improperly seized.

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Govemment should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

The second filing (which is where the Executive Privilege started to be dropped) repeated and expanded the request that Cannon order the government give Trump enough information so he can start clawing stuff back. In addition to falsely claiming his passports had been improperly seized, the filing admitted they couldn’t figure out what kind of harm the seizures would do without getting more details on what was seized.

Finally, this Court should exercise its equitable or anomalous jurisdiction over Movant’s request for the return of seized property and for a detailed receipt for property. This Court has written, “Where no criminal proceedings are pending, either because an indictment has not been filed or because a criminal prosecution has terminated, a petition pursuant to Rule 41(g) [of the Federal Rules of Criminal Procedure] has always been treated as a civil action in equity.” Bennett v. United States, No. 0:12-cv-61499, 2013 WL 3821625, at *11 (S.D. Fla. July 23, 2013); see also United States v. Dean, 80 F.3d 1535, 1542 (11th Cir. 2005) (“Federal courts have developed the doctrine of ‘equitable’ or ‘anomalous’ jurisdiction to enable them to take jurisdiction over property in order to adjudicate ‘actions for the return of unlawfully seized property even though no indictment has been returned and no criminal prosecution is yet in existence.’” (citation omitted)). Given that Movant’s request for a receipt for property is ancillary to the request for the return of improperly seized property, the Court’s equitable jurisdiction should extend to that request.

[snip]

At the outset, because the Government has not produced an adequately detailed receipt for property, it is impossible for Movant to assess the full contents of the seized material. The Government has already confirmed that it improperly seized Movant’s passports (which were not listed on the Receipt for Property provided to Movant), and the Government’s continued custody of similar materials is both unnecessary and likely to cause significant harm to Movant. In addition, the return of property pursuant to Rule 41(g) is the only mechanism for Movant to secure wrongfully seized property, and he has no influence on whether later proceedings will enable him to seek such relief. [my emphasis]

At the hearing on Thursday, after Cannon had given Trump’s lawyers the more detailed inventory that shows that every single box that was seized had some official government documents inside, Jim Trusty complained — with Evan Corcoran sitting at a table beside him — that Trump’s lawyers would remain purposely blinded unless Judge Cannon ordered the government to let them inspect the actual documents themselves.

The next logical step would be to allow us to actually examine the documents and other items that were seized in this search.

[snip]

MR. TRUSTY: Your Honor, I think the difficultly in completely jumping through that hoop for the Court in terms of the Richey factors is that we are still purposefully blinded from large swaths of information. What we see from our side of the aisle is a warrant that looks like a general warrant and could be subject to challenge under Rule 41.

[snip]

The Court will probably recognize — I’m not asking for an opinion — that the warrant itself not only allows for gathering papers around their classified materials seizure, which again we even dispute whether it is classified or whether they are entitled to seize it or whether it is in the right paradigm, but boxes in the vicinity, documents in the vicinity. I mean, this was a colonial time search where the agents had discretion to take anything they want. And maybe they did, we are still trying to get through a legitimate inventory to figure that out. But there are significant substantial preliminary showings that this is a warrant that is suspect. And I can just tell the Court that our intention is to explore that, get the classifications through a special master and Your Honor that we can get, in terms of what the universe of items are, and pursue ideas like seeing the affidavit, maybe not for the general public, but at least for counsel to properly prepare for a Rule 41 and then litigating a Rule 41. This is what the rule is all about. It doesn’t matter whether it is a president or guy on street corner in Baltimore, they have that right to challenge this preliminarily.

[snip]

We think the special master will be in a position to assess personal versus Presidential documents under the framework of the PRA and executive privilege. We think all of that is the type of thing it would be, I suspect, economical and make sense to be conducted along with the physical review of the documents to throw that to the special master, allow us to use that time. Ultimately, there may well be reasons to come back to this Court, but I think that’s an efficient model for getting to a bottom line of where we disagree and where we agree, if anywhere, when it comes to the classification of all of these seized materials.

Again, this is all part of a two-part goal to first learn what was seized and, once they learn that, to make an argument that its seizure irreparably harms Trump. While Jay Bratt is treating this effort as a Rule 41 motion, Trump’s lawyers, joined by Evan Corcoran, argue they won’t be in a position to make a Rule 41 argument unless they first get a detailed look at what was seized.

Which, as I said, is pretty nutty, because according to the government, Corcoran told Bratt (and three FBI agents) the following:

[C]ounsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched

And another of Trump’s lawyers, Christina Bobb, signed a declaration claiming the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

As I noted yesterday, the government asked Beryl Howell to unseal the May 11 subpoena it served on Trump’s office so it could debunk several claims Trump had made in its filings. One they focused on, in particular, is Bobb’s claim that a diligent search “was conducted.” DOJ wanted to be able to argue that,

Contrary to [Bobb’s] assertion, when the FBI conducted its search of Mar-a-Lago on August 8, it found over one hundred total documents bearing classified markings, from both the storage room and the space FPOTUS uses as an office.”

I mean, it’s an important point and all. But at this point, they don’t even need to contrast the statements Trump’s lawyers made with the inventory seized.

They can just point to assertions — signed or joined by Evan Corcoran — stating that Trump’s lawyers, including Corcoran, have no fucking idea what was in those boxes and where they were stored. There is no way that Bobb’s claim that a diligent search was done and Corcoran’s claim that he knew all Presidential Records were stored in the storage room can be true and, at the same time, a team including Corcoran first needs to learn what’s in the boxes and where the boxes were stored before he can argue about the grave harm that has befallen Trump by seizing them.

All these claims that Trump’s legal team has no idea what’s in the boxes and where they were stored seems to be pretty compelling evidence that Trump’s lawyers’ claims to have actually searched these boxes were not true.

Beryl Howell Says the Surveillance Video Subpoena Was June 24, Not June 22

In the government’s response to Trump’s motion for a Special Master, it revealed that it had gotten Beryl Howell to unseal two subpoenas served on representatives of Trump. (Zoe Tillman first noted the unsealing.)

After Obtaining Evidence Indicating that Additional Classified Records
Remained at the Premises, DOJ Initially Sought Their Return Through the
Issuance of a Grand Jury Subpoena2

2 The former President disclosed this subpoena and a subpoena for video footage at the Premises in his filings to this Court. See, e.g., D.E. 1 at 5-6. Thereafter, on August 29, 2022, Chief Judge Howell in the District of Columbia authorized the government to disclose to this Court these grand jury subpoenas and material discussed herein.

Howell has now unsealed both the government’s emergency request for unsealing and her order granting it.

The government basically explained that they wanted to unseal the subpoenas because Trump lied about the circumstances of, at least, the May 11 subpoena.

[I]n light of the inaccurate or incomplete facts asserted in the SDFL Motion, and as discussed more fully below, the limited disclosure the Government is seeking here is “needed to avoid a possible injustice.”

The government request debunks two things we already knew to be untrue: Trump’s claim that he had conducted a diligent search, and his claim that when Jay Bratt and three FBI agents visited Mar-a-Lago, they were allowed to “inspect” the storage room. As DOJ describes, they “were allowed only a brief view of the storage room and were expressly told that they could not open any boxes to review their contents.”

But the government request emphasizes a third point that elaborates on their strategy behind the investigation: DOJ wrote the May 11 subpoena to cover all documents in Trump’s possession with classification marks, regardless of where they were and how they got there. The government addressed this twice. First, DOJ noted that it drafted the subpoena so as to prevent Trump from withholding documents based off a claim he had declassified the materials.

The government notes that the subpoena sought documents “bearing classification markings,” and therefore a complete response would not turn on whether or not responsive documents had been purportedly declassified.

The logic to that part of the subpoena was already obvious, to me at least. What I didn’t realize was that DOJ also specifically wrote the subpoena to cover any government document, regardless of whether it had been moved from the White House or got to Mar-a-Lago via some other path and regardless of whether it was still at MAL.

Although the SDFL Motion indicates that FPOTUS directed his staff to conduct a review of boxes moved “from the White House to Florida,” the subpoena was not so limited, instead seeking “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings,” without limitation to where they were stored.

Obviously, DOJ had reason to make this emphasis, beyond just asking for documents with classified markings to avoid getting into a fight over whether Trump had declassified them. Possibly, they have reason to know that some of the documents have already left Mar-a-Lago — maybe they traveled with Trump to Bedminster when he left on June 3. Possibly, they want to avoid Trump claiming he can keep classified documents that he accessed for the first time as President while at Mar-a-Lago, which would otherwise effectively exempt any document that never got moved back to the White House from the subpoena. Or possibly, they have reason to believe that Trump obtained documents from other agencies of government — like the NSA — and brought them directly back to Mar-a-Lago without stopping at the White House.

DOJ’s emphasis that the subpoena covered all records, whether they had left Florida, whether they had come from the White House, had never been moved back to the White House, or came from other agencies is important because — as a slightly longer account of what Corcoran told Bratt on June 3 makes clear — Corcoran limited his own representations about remaining classified documents to those that had been moved from the White House. The bolded language did not appear in DOJ’s Response; the italicized language did, but appears more significant given DOJ’s comment.

[C]ounsel for FPOTUS stated that he had been advised that all records from the White House were stored in one location at Mar-a-Lago, a basement storage room, that the boxes in the storage room were the “remaining repository” of records from the White House, and he additionally represented to government personnel his understanding that there were no records in any other space at Mar-a-Lago.

The bolded language suggests that Corcoran may have been lied to, meaning he’d be a witness, but not a subject, in the investigation.

The filing doesn’t address another discrepancy between Trump’s public claims about the June 3 meeting and DOJ’s: Whether the Former President ever stopped in at the meeting. Trump claims he did.

President Trump greeted them in the dining room at Mar-a-Lago.

DOJ says only two Trump people were at the meeting: Evan Corcoran and Christina Bobb.

In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office.

If Trump wasn’t present at the meeting, it’s possible Corcoran and Bobb pulled the meeting together for the first day that Trump would be gone to Bedminster, possibly even without telling him.

There’s one more detail about the June 3 meeting that’s may be new in the request for unsealing: According to Bratt and the FBI agents who got to glimpse into the storage room, there were around 50 to 55 boxes in the storage room.

[T]hey were explicitly prohibited from opening any of the approximately fifty to fifty-five boxes that they observed.

The inventories released so far suggest that the FBI searched at least 73 items in the storage room. While some of those items may have been bags of golf clubs or old furniture, this detail suggests as many as 18 boxes may have been moved back into the storage room after Bratt left, more than covering all the boxes that identified so far to have documents marked classified in them.

For all the new details about the May 11 subpoena, the request for unsealing reveals almost nothing about the second subpoena DOJ obtained. Indeed, there’s a  section that may address the subpoena that is entirely redacted.

Pages later, DOJ notes in footnotes 4 and 8 that Trump also revealed the existence of a surveillance subpoena and asks to disclose the existence of that too.

In none of the unsealed discussion of the surveillance video subpoena does DOJ mention its date.

Judge Howell does, though. In her authorization, she permits the government to disclose “another grand jury subpoena out of this district issued to the Trump Organization on June 24, 2022.”

That date is two days after the date Trump gave for the subpoena, both in anonymous sourcing to reporters and then in his motion for a Special Master.

In the days that followed, President Trump continued to assist the Government. For instance, members of his personal and household staff were made available for voluntary interviews by the FBI. On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government. [my emphasis]

It’s possible, but highly unlikely, that Howell got the date wrong. But because the government included this paragraph from Trump’s filing in its own request, Howell may have noted the discrepancy in the date.

It’s the kind of detail she tends to pick up.

If the date Trump is using is inaccurate, it may suggest several things. First, I noted here that Bruce Reinhart pointedly observed that no one who purports to own MAL had intervened. It’s the kind of comment one might make if one were aware that Trump played games with the ownership of MAL in an attempt to avoid service of a subpoena. That is, perhaps there is a June 22 subpoena, served on the Office of Donald J. Trump, and after he refused to respond, DOJ simply served a subpoena on Trump Organization, which has enough of its own legal problems right now it doesn’t need Trump to exacerbate them.

Or perhaps Trump was deliberately obscuring the real date, possibly to hide some tie between Kash Patel’s public claims on June 22 to have been made a Trump representative to the Archives and the subpoena.

In authorizing the release of the grand jury material, Howell emphasized the procedural nature of her decision. Because Trump’s request created another judicial proceeding, she could release the grand jury materials under FRCP 6(e)(3)(F). That requires that DOJ show a particularized need to unseal the material, which Howell describes as the need to “meaningfully [] respond” to Judge Aileen Cannon’s order.

Howell did not comment on two arguments DOJ made to get there: that an injustice might occur if Cannon ruled on the Special Master request based on a false understanding of events obtained from Trump’s lies to her and that there was no chance that revealing the subpoenas might harm someone who would later be exonerated, one of three reasons that would normally rule against unsealing grand jury materials.

But in revealing a different date for that second subpoena, June 24 as opposed to June 22, Howell may be pointing to another Trump lie.

Update: May 11, the date of the initial subpoena was a Wednesday. June 22, the date Trump claims he got the subpoena, is also a Wednesday, with June 24 a Friday. If Wednesday is the normal day for the grand jury, then maybe there were two subpoenas.

Christina Bobb Claimed No Copies of the Stolen Classified Documents Had Been Made

I want to look more closely at the actions of Evan Corcoran (described as “counsel” in last night’s filing before Aileen Cannon) and Christina Bobb (described as “Custodian of Records”) surrounding the June 3 meeting a Mar-a-Lago.

DOJ’s filing describes how DOJ served a subpoena on Trump on May 11, with a return date of May 24.

Through its investigation, the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022. See Attachment C; see also D.E. 1 at 5. The subpoena was directed to the custodian of records for the Office of Donald J. Trump, and it requested “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings [list of classification markings].” Attachment C. DOJ also sent the former President’s counsel a letter that suggested they could comply by “providing any responsive documents to the FBI at the place of their location” and by providing from the custodian a “sworn certification that the documents represent all responsive records.” See Attachment D. The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect. Id.

The subpoena asked for all documents with classification marks, and specified a bunch of classification marks, which suggests what DOJ thought they were looking for:

Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings, including but not limited to the following: Top Secret, Secret, Confidential, Top Secret/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS-O/NOFORN/ORCON, Top Secret/HCS–O/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TK/NOFORN, 1- Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS0/NF/OC, TS/HCS-0/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TK/NF, S/NF, S/FRD, S/NATO, S/SI, C, and C/NF.

Here’s what some of those markings mean:

  • HSC-P refers to a product of Human Intelligence (HUMINT).
  • HSC-O refers to an operation being conducted with HUMINT.
  • TK refers to satellite collection.
  • SI-G refers to intercepts from Signals Intelligence (SIGINT).
  • FRD refers to former Restricted Data — that is, materials formerly restricted under the Atomic Energy Act. Bill Leonard, the former head of ISOO, explains that this material is still covered by AEA, meaning the President cannot unilaterally declassify it.

FRD is still covered by the Atomic Energy Act.    It primarily refers to the military utilization of nuclear weapons and can be handled as classified NSI but it is not NSI and is still covered by the Atomic Energy Act, thus even the President cannot unilaterally declassify.

At first, Trump stalled, asking for a delay, which DOJ initially refused, then granted. Then, on the evening of June 2, Corcoran contacted DOJ and told them to show up the next day.

The subpoena’s return date was May 24, 2022. Counsel sought an extension for complying. After initially denying the request, the government offered counsel an extension for complying with the subpoena until June 7, 2022. Counsel for the former President contacted DOJ on the evening of June 2, 2022, and requested that FBI agents meet him the following day to pick up responsive documents.

As DOJ describes the June 3 meeting that Trump’s side has been leaking about relentlessly, Jay Bratt and three FBI agents showed up and met with Evan Corcoran (“counsel”) and Bobb (“custodian of records”). Notably, DOJ makes no mention of Trump’s presence. That doesn’t mean Trump wasn’t present. But DOJ is certainly not repeating the tale that Trump waltzed in just before he left for Bedminster to meet his Saudi buddies and told DOJ they could have whatever they wanted.

Corcoran handed the documents over in a folder appropriate to the treatment of classified documents and — as DOJ notes — made no claim about Executive Privilege (even though less than a month earlier he had made expansive Executive Privilege claims in communications with Acting Archivist Debra Steidel Wall).

On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.

Then, Bobb handed over a declaration (I’ll return to the content below).

The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge. See Attachment E. 4

After Bobb handed over the declaration based on “information that has been provided to me,” Corcoran separately made a representation to FBI agents, a representation that would be subject to false statements charges under 18 USC 1001 if it were false.

After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched. As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room.

According to the DOJ, Bratt and the three FBI agents “were permitted” to visit the storage room. They emphasize here (as the Trump filing described an FBI agent doing at the time) that the search of the storage room was consensual. But they were not permitted to open any box.

See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.

As DOJ explains, after the meeting, they developed evidence (we know from coverage that this included surveillance video showing boxes being moved in and out of the storage room, as well as witness testimony describing that Trump stored secret materials in his office) that there was more.

[T]he government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.

DOJ describes how the August 8 search proved that their video evidence and witness testimony proved to be correct: There were more classified documents in the storage room, and there were classified documents stored in a place other than the storage room: Trump’s office.

Notwithstanding counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room, classified documents were found in both the Storage Room and in the former President’s office. Moreover, the search cast serious doubt on the claim in the certification (and now in the Motion) that there had been “a diligent search” for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings. All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.

Given the extent of their representations, it is possible that neither Bobb nor Corcoran knowingly lied to the FBI, exposing themselves to false statements charges.

If no one told Corcoran about the stuff in Trump’s office and if all other classified documents had been moved out of the storage room, unbeknownst to Corcoran, he may have believed the following claims to be true:

  • All the records that had come from the White House were stored in one location—a storage room at the Premises
  • The boxes of records in the Storage Room were “the remaining repository” of records from the White House
  • There were no other records stored in any private office space or other location at the Premises
  • All available boxes were searched

It’s certainly possible that Corcoran was a victim of a ruse by his client and his client’s flunkies. After all, he had only recently joined Trump’s defense team (though had been representing Bannon for months). He was not a Mar-a-Lago insider.

DOJ, from their surveillance video, would likely know if Corcoran knew his claims to be true or not. But, given that Corcoran refused to let the FBI open any boxes, DOJ may have reason to believe he knew some of his claims were not true.

Similarly, if Corcoran had done the search on his own, with no involvement from “Custodian of Records Christina Bobb,” it’s possible she believed the following to be true:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

According to reports, she didn’t do the search. She had every reason to believe that Corcoran — who after all is a real lawyer — had done a diligent search.

I mean, it’s possible that Custodian of Records Bobb — who unlike Corcoran has been part of Trump’s crime spree for a while — also wasn’t a part or aware of the effort to remove documents from the storage room before Corcoran did the search.

It’s the following representation that Bobb seemingly offered up unbidden that makes my spidey senses tingle (particularly given the odd metadata on the copy of the Mark Meadows declassification memo I raised in this post).

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

Maybe DOJ asked Bobb to make such representations — but it’s not in the backup DOJ included with its filing. The letter Bratt sent Corcoran along with the subpoena said that if Trump chose to simply drop off the remaining classified documents at the local FBI officer,

The custodian would also provide a sworn certification that the documents represent all responsive records.

Trump’s people decided to type up a declaration even in spite of handing documents off personally, and they seem to have included an odd representation about making copies, unbidden.

Particularly given that weird metadata on the John Solomon document, showing creation of a document on September 27, 2021 and the apparent reproduction of that document on June 23, 2022, after the June 3 meeting, after Trump made Solomon a NARA representative, and days after DOJ subpoenaed the surveillance footage.

Update: Added clarifying language about FRD from Bill Leonard.

Key Details about Evan Corcoran that Evan Corcoran Did Not Disclose to Judge Aileen Cannon

Over the weekend, Judge Aileen Cannon ordered DOJ — which had not yet been formally served in Donald Trump’s civil suit to get a Special Master appointed to conduct a review of the materials seized from his home — to take initial steps towards appointing a Special Master.

There are a lot of procedural reasons why that order is crazy.

But Judge Cannon might be excused for believing some grave wrong has been done against the former President. That’s because the two filings his lawyers submitted — neither of which was accompanied by a sworn declaration — were wildly misleading.

I’d like to lay out a few of those details here. (First filing, Supplemental filing)

One of the lawyers who signed the filings is Evan Corcoran.

Some useful background first. In the Steve Bannon case, Corcoran let Bannon’s earlier attorney, Robert Costello, join his defense team even though Costello was a witness in the case against Bannon. He did so even after DOJ warned that might pose a problem. Ultimately, Costello conceded that might pose a conflict and he dropped off the team. So even in the last year, Corcoran has been rather flexible about where the role of defense attorney ends and the role of witness begins.

Now let’s look at the filings that Evan Corcoran signed, with two others.

One thing that Evan Corcoran didn’t bother to tell Aileen Cannon is that Evan Corcoran plays a lead role in the filing. The following are actions described in the two Trump filings that Evan Corcoran is either known, or by consistent reference, must have done, but which are attributed only to Trump’s counsel:

  • Communicated with DOJ, the White House, and NARA about the documents
  • On June 3, met with Jay Bratt at Mar-a-Lago
  • Told Bratt and three FBI agents that Trump consented to a search of a storage room that contributed to the probable cause that Trump was still refusing to return classified documents
  • Asked Bratt to communicate with him if they needed anything more
  • On June 8, received an email directing Trump to secure the storage room
  • Was the person informed of the search on August 8
  • Engaged in “heated discussion” after being so informed
  • Asked three questions after being informed of the search
  • Refused to turn off surveillance video during the search
  • Was informed on August 11 that the FBI had seized materials that might include privileged material
  • On August 11, stated the following to Jay Bratt:
    • President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is “angry.'” The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.
  • Was informed that filter agents who searched the Former President’s office had taken three passports

Here are some other details regarding events in which Corcoran was involved that he did not disclose to Judge Cannon:

  • After the meeting with Bratt, Trump did not identify and provide all classified documents at Mar-a-Lago to DOJ in response to a subpoena
  • In response to a direction to Corcoran to secure the storage room, Trump did nothing more than add a new lock
  • Corcoran made the comment about “the heat [] building up” in the wake of an attack by an armed Trump supporter on an FBI office
  • After Corcoran was informed on August 11 that DOJ would not use a Special Master, he did nothing for ten days
  • DOJ did, in fact, include a Corcoran letter that the first filing suggested they had not, thereby alerting Bruce Reinhart of Corcoran’s claim that Presidents have absolute authority to declassify documents

Perhaps most critically, in the second filing that quotes from the warrant affidavit, Evan Corcoran did not disclose to Judge Cannon that Evan Corcoran’s own actions are described in the unredacted parts of the warrant affidavit. He is mentioned five times in just in the unredacted section (and the fact that the affidavit refers to FPOTUS COUNSEL 1 strongly suggests there’s an FPOTUS COUNSEL 2, Christina Bobb, mentioned in the redacted sections).

[redacted] In the second such letter, which is attached as Exhibit 1, FPOTUS COUNSEL 1 asked DOJ to consider a few “principles,” which include FPOTUS COUNSEL 1’s claim that a President has absolute authority to declassify documents. In this letter, FPOTUS COUNSEL 1 requested, among other things, that “DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.”

[snip]

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

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

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

That makes the other things that Corcoran chose to misrepresent to or conceal from Aileen Cannon far more important:

  • That the warrant provided the reason for the search
  • That the reason for the search was to find documents Trump had refused to return, which amounted to probable cause for violations of the Espionage Act, 18 USC 2071, and obstruction (Corcoran had falsely affirmed the warrant was about the Presidential Records Act, which was not named on the face of the warrant at all)
  • That a quote in the second filing focusing on Presidential Records neglected to mention the evidence of Espionage Act and obstruction in the same paragraph; Corcoran withheld the following bolded language:
    • Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
  • Trump fought for 8 months before he acceded to send the first 15 boxes back
  • Christina Bobb was the custodian of records that accepted service for a subpoena asking for all remaining classified documents
  • Trump didn’t return all classified documents in response to a subpoena for them
  • That custodian of records, Bobb, not some lawyer who happened to be in the neighborhood, signed off on the property receipt
  • Custodian of records Bobb made no objections as to the form of the search warrant receipt — one basis for the claimed action — at the time of the search or since
  • No Special Counsel issued a finding that the FBI agents who investigated Trump were biased; the Inspector General issued a finding that there no evidence bias affected the investigation and a Special Counsel attempted to make similar claims that have thus far all failed (Corcoran makes a slew of other false claims about the Horowitz Report as his basis to suggest the FBI has been mean to Trump)
  • The Acting Archivist Debra Steidel Wall obtained an Executive Privilege waiver for documents inappropriately withheld under the PRA in May and informed Corcoran of that
  • In the ensuing three months after Corcoran was informed of the Executive Privilege waiver, he is not known to have done anything to contest it
  • The National Security Division filter team Corcoran describes and the filter process described in the warrant appear to be different (the former seems to be one described to him by the Acting Archivist)
  • The filter team process in the warrant approved by Reinhart includes the possibility of a Special Master, something Corcoran claims Reinhart could not approve:
    • (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.
  • If the storage of classified materials fit the terms of the CFR guiding storage of classified documents, then the surveillance video Corcoran refused to turn off would have shown to Trump what materials were seized from where
  • That DOJ acknowledged the passports weren’t validly seized under the warrant (they were, and Corcoran even suggests why they were — because they were in the same safe holding classified documents), when DOJ simply said they weren’t included in the scope of the crimes under investigation

Evan Corcoran, in a filing that failed to disclose his own role in the events under investigation, misrepresented to the judge that this was a search about the Presidential Records Act and not an investigation into violations of the Espionage Act and obstruction.

He didn’t even tell her that he is named in the affidavit showing probable cause of obstruction.

Update: DOJ has acknowledged Cannon’s order. As expected, they’ve completed much of the privilege review already.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any. Additionally, the Department of Justice and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of materials recovered pursuant to the search. As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.

Christina Bobb, Custodian of Records and Coup Conspirator

According to Donald Trump’s whack-ass filing the other day, he personally has yet to receive a subpoena in the investigation of his  suspected theft of classified documents and obstruction of one or more investigations by hiding, ripping, or flushing documents. Instead, his hospitality company and Christina Bobb have.

DOJ sent the June 22 subpoena for surveillance footage at Mar-a-Lago to the Custodian of Records at the Trump Organization.

On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government.

The WaPo explained that it was sent to Trump Organization, not Trump, because that’s who actually owns Mar-a-Lago.

By the way, that means that Trump Organization could have, but thus far has not, intervened in the August 8 search as well as Donald. Indeed, that may have been what Magistrate Judge Bruce Reinhart, who has read the search warrant affidavit, was alluding to when he memorialized his order asking DOJ to provide more justification for its review. He noted that neither Trump nor any other “purported owner” of Mar-a-Lago had intervened.

Neither Former President Trump nor anyone else purporting to be the owner of the Premises has filed a pleading taking a position on the Intervenors’ Motions to Unseal.

In fact, when Trump intervened in the Michael Cohen search in 2018 — and did so after just four days — he did so in the persons of Trump Organization lawyer Alan Futerfas and Futerfas’ partner Ellen Resnick. Having Trump Organization ask for a Temporary Restraining Order would have been another way to intervene in more timely and competent way than Trump has done so far — but Trump Organization has been rather distracted preparing for depositions in Tish James’ investigation and the October trial testimony of their former CFO in a New York City trial.

In any case, it is totally normal for a grand jury to subpoena the “Custodian of Records” of a corporation from which it wants records. In the case of the surveillance video (and presumably a renewed subpoena after the search), that just happened to place the legal obligation to respond on an entity that has a whole heap of other legal problems right now.

In Trump’s whack filing, though, the hero of our story Donald J. Trump magnanimously instructed Trump Organization to accept service and provide the video (it appears that Eric or the failson would have been the ones legally to give that order), otherwise known as “complying with a subpoena.”

It’s the other subpoena I find more interesting.

On May 11, 2022, Movant voluntarily accepted service of a grand jury subpoena addressed to the custodian of records for the Office of Donald J. Trump, seeking documents bearing any classification markings. President Trump determined that a search for documents bearing classification markings should be conducted — even if the marked documents had been declassified — and his staff conducted a diligent search of the boxes that had been moved from the White House to Florida. On June 2, 2022, President Trump, through counsel, invited the FBI to come to Mar-a-Lago to retrieve responsive documents. [italics Trump’s, bold mine]

There’s a lot going on in this passage. Whereas the earlier passage described the government sending the subpoena, here Trump’s team only describes that service for it was accepted, “voluntarily,” it notes in italics, which is not a thing.

It’s a subpoena, you don’t get a choice.

The passage dates that acceptance to May 11 — the day after, we now know, that the Acting Archivist Debra Steidel Wall had informed Evan Corcoran, acting as Trump’s attorney, that she would not respect Trump’s “protective assertion of executive privilege.” The dates are almost certainly related, but we can’t be sure how, because we can’t be sure when DOJ subpoenaed Trump for the rest of the classified documents he was hoarding.

More interesting, to me, is the way this passage introduces a second role (and third) it will rely on heavily to describe what must be a core focus of the obstruction investigation, that Custodian of Records of the Office of Donald J. Trump. The Custodian of Records accepted the subpoena (and so would be on the legal hook for it), “his staff conducted a diligent search,” and then his counsel — Corcoran — “invited” Jay Bratt to come get the additional classified documents that would constitute proof Trump had violated the Espionage Act. Trump doesn’t reveal who did the search (though other reports have said Corcoran did it). But as presented, this process implicated three different roles, at least one role performed by a guy who signed this very whack filing that works so hard to obscure all this.

All that is set-up for the meeting on June 3, which will carry a great deal of legal import going forward, not least in an inevitable Fourth Amendment suppression motion. Here’s the tale the whack filing, written in part by Evan Corcoran, tells:

The next day, on June 3, 2022, Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, came to Mar-a-Lago, accompanied by three FBI agents. President Trump greeted them in the dining room at Mar-a-Lago. There were two other attendees: the person designated as the custodian of records for the Office of Donald J. Trump, and counsel for President Trump. Before leaving the group, President Trump’s last words to Mr. Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”

Responsive documents were provided to the FBI agents. Mr. Bratt asked to inspect a storage room. Counsel for President Trump advised the group that President Trump had authorized him to take the group to that room. The group proceeded to the storage room, escorted by two Secret Service agents. The storage room contained boxes, many containing the clothing and personal items of President Trump and the First Lady. When their inspection was completed, the group left the area.

Once back in the dining room, one of the FBI agents said, “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.” Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter.

This passage is designed to portray Trump’s response as completely cooperative, which is set up for a claim the warrant was not necessary. As such, it describes an FBI comment undoubtedly designed, legally, to reiterate that a consensual search — of the storage room — was indeed consensual, as if it means something else, that the FBI had had all its questions answered. But when Trump eventually receives the affidavit that relies on this FBI agent’s first-hand observations during a consensual search to show probable cause for a warrant to come back and search the storage room further, Trump will have ceded the consensual nature of it and therefore his ability to suppress the August 8 search.

Evan Corcoran will one day be underbussed for agreeing (and in this filing, attesting) to this consensual search; given the way he’s portrayed in this WaPo story, the underbussing may have already begun. But for now, it is the stated version Trump wants to tell.

What I’m interested in, though, is that according to this version — a version that makes absolutely no mention of the declaration Jay Bratt required Trump’s team provide after that consensual search of the storage room — the roles that Corcoran and Christina Bobb played were different, and different in a way that holds legal weight. They don’t name names, but because Corcoran is known to have done the things attributed to “counsel” in this whack filing, he must be the counsel in the meeting and Bobb, by process of elimination, was the Custodian of Records. So Bobb was the person on the hook for the subpoena response.

As a reminder, here’s the most complete description of the declaration that Corcoran neglected to mention in the whack filing, from an NYT article that studiously avoids mentioning that obstruction is one of the crimes under investigation.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Bobb, performing the role as the Custodian of Records and so the person on the legal hook for the search, is the one who signed the declaration, based off a search that unnamed Trump “staff” members — described as a third role separate from that of Custodian of Records Christina Bobb and counsel Evan Corcoran — conducted.

Who knows whether Bobb really played the legal function of Custodian of Records at the Office of Donald J. Trump? I’ll come back to that in a bit.

Whatever Bobb really is, though, three pages later, Trump’s Custodian of Records gets a dizzying demotion to one of “three attorneys in the general area” who showed up to observe the search. That demotion may serve the legal function of justifying a claim, made another 11 pages later, that the search warrant receipts Bobb signed do not meet the standards required by Rule 41.

Among other actions taken after being notified of this unprecedented event, counsel for President Trump contacted three attorneys in the general area who agreed to go to Mar-a-Lago. Once they arrived, they requested the ability to enter the mansion in order to observe what the FBI agents were doing, which the Government declined to permit.

After approximately nine hours, the FBI concluded its search. An FBI agent provided one of the attorneys who had been waiting outside for nearly the full nine hours with a copy of the Search Warrant. TheFBI also provided a three-page Receipt for Property. Receipt for Property

[Case 9:22-mj-08332-BER, ECF 17 at 5-7 of 7]. That list provided almost no information that would allow a reader to understand what was seized or the precise location of the items.

[snip]

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed. R. Crim. P. 41(f). The “Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

[snip]

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Government should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

Rolling Stone has a piece explaining that this whack filing is not actually the significant Fourth Amendment filing we were promised. That one, a bid to demand that Trump get these files back, is still coming.

[T]he former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows  “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

But this whack filing is meant to lay the groundwork for the future promised significant Fourth Amendment whack filing.

And the success of both depends on a claim that poor Christina Bobb, who in her role as the Custodian of Records is either a witness or suspect in the obstruction side of this investigation, was on the day of the search just a pretty little lawyer who happened to be walking her dog in the neighborhood, and who asked the nice FBI agents to let her watch the search but wasn’t allowed to, which is why she signed off on the receipt without asking for more details on the front end. This entire scheme will fail when the FBI points out that a suspected co-conspirator didn’t do the due diligence Trump is now claiming (falsely) is legally required according to the standards of Rule 41.

It would almost certainly fail anyway, but it will especially fail when DOJ points out that Bobb is not just some lady walking her dog in the neighborhood, but played the role of the Custodian of Records, and so had the competence to demand a more complete receipt on the day of the search, but did not. The Office of Donald J. Trump has effectively already waived the issue of the receipts.

But consider the import of the claim that Christina Bobb functioned at the Custodian of Records for the Office of Donald J. Trump, particularly given Paul Sperry’s claim (h/t Ron Filipkowski) that Trump withheld these documents because he knew that if he turned them over, the Archives would in turn provide them to the January 6 Committee (and now, DOJ’s January 6 investigation).

Christina Bobb is not only not just a lady walking her dog in the neighborhood of Mar-a-Lago, she also played a key role in the coup attempt.

She was the first author of the draft Executive Order attempting to seize the voting machines.

That document is nearly identical to a draft executive order the National Archives has shared with the Jan. 6 committee, and that POLITICO published last month. Metadata on the document says it was created by a user named Christina Bobb, and later updated by an unnamed person. A One America News anchor by that name was involved in Giuliani’s work for Trump, and previously worked in the Department of Homeland Security during the Trump administration.

The Washington Post reported that Bobb was on at least one conference call about setting up alternate slates of electors for the Jan. 6 certification vote, and that she was at the Willard hotel “command center” that Trump’s allies used as a home base to coordinate efforts to overturn the election. The emails did not cast light on Bobb’s ties to the draft executive order beyond her name’s appearance in the metadata, and she did not respond to requests for comment.

And as Seth Abramson first confirmed, after leaving the Cannon Office Building at 1PM on January 6, Bobb spent the rest of the day in the Willard right alongside Rudy.

While the Archives spent a year trying to get Trump to return identified documents, some reports say things came to a head in December.

WaPo reports that Trump personally oversaw the packing of boxes to be returned to the Archives, and they were retrieved on January 17.

What followed was a tortured standoff among Trump; some of his own advisers, who urged the return of documents; and the bureaucrats charged by the law with maintaining and protecting presidential records. Trump only agreed to return some of the documents after a National Archives official asked a Trump adviser for help, saying they may have to soon refer the matter to Congress or the Justice Department.

Nearly a year later, on Jan. 17, 2022, Trump returned 15 boxes of newspaper clips, presidential briefing papers, handwritten notes and assorted mementos to the National Archives. That was supposed to settle the issue.

[snip]

It could not be determined who was involved with packing the boxes at Mar-a-Lago or why some White House documents were not sent to the Archives, though people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides. Philbin and another adviser who was contacted by the Archives in April have told others that they had not been involved with the process and were surprised by the discovery of classified records.

What’s clear is that effort to pack up boxes, an effort Trump personally oversaw, was happening during the same period when Trump was trying to prevent the Archives from handing over records to the January 6 Committee.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

Any tampering with already packed boxes may have happened after the DC Circuit ruled in favor of the Committee, but in any case, in courts in DC, such tampering happened during a period when Trump was legally fighting to hide records that would implicate him … and Christina Bobb.

I’m still not convinced that the January 6 investigation(s) are the primary thing that Trump was trying to retain, though I think there’s a decent chance they’re included among the investigation(s) that Trump is suspected of obstructing by hiding, ripping, and flushing documents.

But to the extent that Trump was attempting to obstruct parallel investigations of his efforts to steal the 2020 election, Bobb’s role as both a co-conspirator in the coup plan and as Custodian of Records would raise additional concerns for the FBI.