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

September 11, 2022/176 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

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:

18 USC 1001 (false statements), with a sentence of up to five years
18 USC 1621 (perjury), with a sentence of up to five years

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:

18 USC 1519 (obstruction), with a sentence of up to twenty years
18 USC 793(g), (conspiracy to willfully withhold classified documents), with a sentence of up to ten years per charged document, with stiffer punishments tied to more classified documents

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

September 4, 2022/174 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

September 3, 2022/45 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

August 31, 2022/167 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

August 29, 2022/105 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

August 24, 2022/116 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

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.

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

August 23, 2022/111 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

NYT published a 1,700-word story on the investigation into Donald Trump that didn’t include the word “obstruction” once. It implied (though the reporting wasn’t entirely clear) that the government has already found about a hundred additional classified documents among the boxes seized on August 8, on top of around 200 already identified from the boxes turned over in January and the meeting with Jay Bratt on June 3.

WaPo published a 2,100-word story on the investigation that likewise failed to mention that “obstruction” was one of the crimes for which DOJ believed they’d find evidence at Mar-a-Lago. The WaPo story treated the ridiculous filing Trump’s attorneys, including Evan Corcoran, submitted yesterday as if it were a serious legal endeavor.

You cannot understand several of the things that appear in these stories without considering the legal import of the fact that after Corcoran and Christina Bobb (who is described alternately in Trump’s filing as, on page 5, the custodian of records and, on page 8, as one of “three attorneys in the general area” who showed up to observe the search) jointly signed a declaration stating that there were no more classified documents at Mar-a-Lago, the FBI found 100 more classified documents at Mar-a-Lago.

Here’s how the NYT story described it.

On June 3, Jay Bratt, the chief of the counterespionage section of the national security division of the Justice Department, went to Mar-a-Lago to meet with two of Mr. Trump’s lawyers, Evan Corcoran and Christina Bobb, and retrieve any remaining classified material to satisfy the subpoena. Mr. Corcoran went through the boxes himself to identify classified material beforehand, according to two people familiar with his efforts.

Mr. Corcoran showed Mr. Bratt the basement storage room where, he said, the remaining material had been kept.

Mr. Trump briefly came to see the investigators during the visit.

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.

Since Corcoran and Bobb created that declaration, and particularly since FBI seized evidence proving it was not true, they became likely witnesses or co-conspirators in this investigation, both in the obstruction side of the investigation (because they might know whether classified documents were deliberately hidden for Bratt’s visit and who knew that declaration to be a lie) and the Espionage Act side (because 18 USC 793 has a conspiracy provision).

So when Bobb arrived during the search on August 8 and “requested the ability to enter the mansion in order to observe what the FBI agents were doing,” the FBI would have viewed her as a potential co-conspirator in obstruction of an Espionage Act investigation.

And when Corcoran signed a filing demanding that the Court (a different court than the one that approved the warrant) appoint a Special Master who will work with lawyers from both sides to review the documents and also demanding that he and Trump’s other lawyers get a detailed list of what was seized, the FBI would view him as a potential co-conspirator in obstruction of an Espionage Act investigation.

Movant requests that this Court appoint a Special Master pursuant to Rule 53(a)(1)(B) of the Federal Rules of Civil Procedure and this Court’s inherent equitable powers and authority. This step — which the Government itself has requested in cases involving the seizure of privileged and/or potentially privileged materials — is needed to preserve the sanctity of executive communications and otherprivileged materials. Furthermore, Movant requests that this Court issue a protective order enjoining the United States from any further review of the items seized until this Court can rule on the present Motion. See Fed.R.Civ.P.26(b)(5)& (c) (1); S.D.Fla.L.R.26.l(g).

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.

Indeed, one likely goal of this filing is to get a different judge — one who doesn’t know whether Corcoran is named as a suspect on the affidavit — to force DOJ to tell everyone whether he is or not.

One reason the FBI asked for more surveillance footage — which the NYT story that doesn’t mention obstruction says is part of the hunt for more classified documents — is because they need to understand who caused that false filing to be filed in June and what happened in the storage area between Bratt’s visit and the search.

Even after the extraordinary decision by the F.B.I. to execute a search warrant at Mar-a-Lago on Aug. 8, investigators have sought additional surveillance footage from the club, people familiar with the matter said.

It was the second such demand for the club’s security tapes, said the people familiar with the matter, and underscored that authorities are still scrutinizing how the classified documents were handled by Mr. Trump and his staff before the search.

It remains true that we have no idea how narrowly or broadly the FBI scoped the probable cause of obstruction in the warrant affidavit. But what is clear is that DOJ will view both Bobb and Corcoran — the latter of whom remains one of the lawyers in closest contact with Bratt and who is the person who issued what has been viewed as a veiled threat to Merrick Garland — as either witnesses or subjects in this investigation.

And you really can’t explain the significance of that without using the word “obstruction.”

emptywheel Trump Espionage coverage

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The Likely Content of a Trump Search Affidavit

August 10, 2022/160 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Even Trump supporters are beginning to call on him to release the warrant used to search Mar-a-Lago Monday. In spite of serving as a source for multiple outlets yesterday, the lawyer who received the warrant, Christina Bobb, has refused to turn it over.

She’s probably refusing for several reasons. First, it’s likely that 18 USC 793 is among the suspected crimes cited on the warrant. If Trump admitted he’s under investigation for part of the Espionage Act, his supporters might be less likely to prepare for civil war, as they currently are doing. Plus, given the inconsistent numbers of boxes seized in Bobb-sourced stories (the WSJ reported at least 10 boxes were seized, Politico and WaPo reported that 12 were), it suggests the search warrant return is far more detailed than just listing boxes of stolen documents, but instead lists individual documents.

If the return looked something like, [and to be clear, this is strictly hypothetical, and my “yaddayadda” is a fake compartment name] …

Single existing copy of transcript of phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy, July 25, 2019, TS/SCI/SAR-YADDAYADDA/NF
Single existing copy of hand-written notes of meeting between President Donald Trump and Russian President Vladimir Putin, July 16, 2018, TS/SCI/SAR-YADDAYADDA/NF
Transcript of NSA intercept of Saudi intelligence official in advance of Turkey operation involving Jamal Khashoggi, September 29, 2018, TS/SCI/SAR-YADDAYADDA/NF
NSA targeting list for Russia, dated January 15, 2021, TS/SCI/SAR-YADDAYADDA/NF (see this post)

…Then the gravity of Trump’s crime would become immediately apparent.

Plus, Bobb didn’t receive the most interesting part of it, the affidavit the FBI used to obtain the search warrant.

So I wanted to write up what an affidavit would likely include, based on the public understanding of the investigation.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Page

The cover page would include the address to be searched, 1100 S. Ocean Blvd, Palm Beach, FL. It would name the magistrate docket for the warrant, 9:22-mj-08332, references to Attachment A describing the premises to be searched, and Attachment B, the description of things to search for, as well as the Affidavit.

It would have checkboxes checked, listing that the search was for evidence of a crime and to retrieve contraband.

It would list the crimes under investigation — according to public reports, probably 40 USC 2201-2209, 18 USC 2071, and 18 USC 793.

It would be dated and signed by Magistrate Judge Bruce Reinhart.

Attachment A

Attachment A would include a description of Mar-a-Lago, probably with a nifty picture of the garish resort, possibly also pictures of the basement storage area that investigators saw in their June visit. It would likely mention Trump’s hotel safe in the bridal suite.

Attachment B

Attachment B would authorize seizure of all documents relating to violations of the statutes in question, so probably 40 USC 2201 and 18 USC 793, with bullet points stemming from what is covered under the PRA and what is covered — defense information — under the Espionage Act.

No computer files were described to have been seized, so it would consistent entirely of paper seizures.

Affidavit

This would include:

Several paragraphs describing the affiant’s background and training
An assertion that the affiant believed there was probable cause for the subject offenses
The statutory language, basically a cut-and-paste describing the elements of the offense
Language about classification, including the various levels of classification
Language about Presidential Records
Language about 32 CFR sections 2001 and 2003, which cover the storage of classified information

Then there’d be a probable cause section that would include:

A description of who is under investigation (whether it’s just Trump, or whether his staffers are as well)
A reference to the Archive’s February 2022 request that DOJ investigate Trump’s document theft
Background on the year-long effort leading up to the Archives’ request to get Trump to return stolen documents, including the specific records the Archives identified that Trump had withheld (CNN has a timeline here)
Other evidence of Trump’s refusal to abide by Presidential Records Act
Other evidence of Trump’s failures to protect classified information (particularly if FBI knows of any instances from after he left the presidency)
The outcome of the investigation into Mike Ellis’ efforts to retain highly sensitive NSA documents at the White House as staffers were packing boxes
The Archives’ three statements on the effort to obtain the documents
A description of what aides told the FBI in interviews about the stolen documents in April and May
Testimony about efforts to keep uncleared staffers from accessing boxes that included classified information
A description of the May subpoena to the Archives for the classified documents stolen
A summary of the classified documents found in the 15 boxes turned over last year, possibly with examples of the most sensitive documents
Some explanation of why DOJ believes that these documents weren’t actually declassified by Trump before he stole them
A description of the June 3 meeting at Mar-a-Lago, which show three really key parts of the probable cause:
- Acknowledgement from Trump lawyers that he remained in possession of stolen documents
- A description of things the lawyers said that proved Trump was treating these as classified documents
- A description of the storage location in the basement, including why it did not meet the standards for storage of classified documents
- Possibly a description of documents seen on that visit that would qualify as potentially classified Presidential Records
A description of the letter asking Trump to better secure the documents
A description of the subpoena for surveillance footage from Mar-a-Lago, including anything suspicious on it
A list of known Presidential Records that had not yet been shared with the Archives

The affidavit would explain why the items being searched for are necessary to investigate the crime, which would explain:

FBI needed to obtain the documents to see if they were Presidential Records not otherwise shared with the Archives
FBI needed to obtain the documents to see if they were defense information
DOJ needed to secure the documents because they are all the property of the Archives

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified.