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Ransacked! 120 Minutes before 11th Circuit Hearing, Trump Attempts to Create a Fourth Amendment Injury

Less than two hours before the 11th Circuit hearing that may result in Judge Aileen Cannon being reversed for intervening in the Trump investigation, Trump’s attorneys (notably excluding Chris Kise) filed a motion for access to the affidavit for his search.

That this is a transparent attempt to give Judge Cannon some basis to intervene in both the Special Master review and the 11th Circuit appeal has not stopped reporters from treating it as a reasonable request.

It’s not.

Even if all the claims made in it were true, it still wouldn’t provide basis to give Trump the affidavit that (among other things) identifies who he could retaliate against for cooperating with investigators.

One of the most important paragraphs (and footnote) is this one.

Moreover, Plaintiff’s counsel has reviewed most of the seized materials over the last several weeks. The fact the Government took a huge volume of personal and family photographs, newspapers, thank-you notes, campaign materials, books, and golf shirts demonstrates that this search and seizure was nothing more than a general ransacking. 7 This raises serious questions about how the affiant characterized his or her assertion of probable cause and the justification for seizing thousands of personal and private items. Plaintiff must have an opportunity to review the affidavit and determine whether the Fourth Amendment was respected, intentionally subverted, or recklessly violated by a DOJ bent on getting its nose under the Mar-a-Lago tent.

7 A general rummaging through the belongings of President Trump is a particularly ominous moment in law enforcement history. With DOJ and some state officials engaging in various efforts to investigate President Trump, the search smacks of pretextual conduct with hopes of feeding personal documents to prosecutors or agents who might find use for them in unrelated pursuits. Authorization to seize “any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes” is an invitation to “rummage,” which every court has recognized as barred under the Fourth Amendment. See Andresen v. Maryland, 427 U.S. 463, 480 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). [my emphasis]

Start with the books and sweaty golf shirts. According to a part of the affidavit that Trump has not contested (the highlighted items below are the ones that changed with an updated inventory), the FBI seized a total of 33 books in the search on August 8, across 33 items seized; the bulk, 23, were all in one box together. That box was likely close to another that had multiple Top Secret documents, as well as a book. Those books got seized because they were next to stolen Top Secret documents. There was likewise a piece of clothing or a gift the box with stolen Top Secret documents. And altogether, there were just 19 gifts or pieces of clothing seized.

That’s what Trump wants you to think amounts to a ransacking.

Many of the other items are actually things about which there is an active dispute before Raymond Dearie (as noted in this filing).

For purposes of the yellow-highlighted Disputes, the Special Master will see that three issues account for the overwhelming majority of disputes. From the government’s perspective, the three conceptual issues are:

1. Annotations. – Books, magazine articles, and newspaper clippings with markings are original Presidential records.

2. Thank you notes for presidential acts or events. – Thank you notes reflecting gratitude for acts taken in the course of official duties are Presidential records.

3. Briefing book compilations with indexes. – Briefing material and other work product prepared by presidential staff for the President are Presidential records.

Trump wants to claim press clippings on which he made annotations are personal; the Presidential Records Act says otherwise. Trump wants to claim that thank you notes sent to him in his role as President are personal; the Presidential Records Act says otherwise.

Among the campaign materials taken were several letters written by Kurt Hilbert about stealing the election in Georgia, as well as something written by Cleta Mitchell. Sure, those are campaign materials. They are also evidence of a crime. They were also returned already, and could have been returned earlier had Judge Cannon not intervened.

Trump’s claim that it is unusual for the FBI to seize personal materials as part of a search warrant (bolded above) is particularly ridiculous, not least because Plain View doctrine clearly says that DOJ can refer items seized with a warrant for prosecution.

But it’s particularly notable given this language in the order appointing Jack Smith.

The Special Counsel is authorized to prosecute federal crimes arising from the investigation ofthese matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.

It permits Smith to refer things for further prosecution, including (presumably) any evidence of a crime he sees in the materials seized from Mar-a-Lago.

At this late hour, after being reversed once already, Judge Cannon is unlikely to get further over her skis.

But it likely will come up in the hearing starting in (now) 45 minutes, so Jim Trusty can claim, for the first time, that there has been a Fourth Amendment violation that merits Judge Cannon’s intervention under Richey.

Update: Even though improper to do so procedurally, Trusty did raise this argument, over and over at the hearing (he even complained that the FBI had taken Trump’s Celine Dion photo). That led both William Pryor and Britt Grant to observe that Trump’s argument kept changing over the course of the litigation before the 11th Circuit. Sopan Joshi, arguing for DOJ, laid out five such changes.

More importantly, the Chief Judge of the 11th Circuit noted that the reason so many personal items were seized is because Trump chose to store stolen classified records with his personal belongings.

You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.

I don’t think Judge Cannon will be in a position to act on this motion for very long, but I think this comment from Pryor would give her pause before she did so anyway.

Judge Aileen Cannon Treated a Public Letter about Trump’s Health as More Sensitive than America’s National Security

As I have shown, had Judge Aileen Cannon left well enough alone, the government would have handed all Category B documents identified by the filter team back to Trump on September 1. Instead, she deliberately inflicted what she herself deemed to be further harm on Trump to justify intervening in the search of Trump’s beach resort.

And now she may have caused even more harm. That’s because, by means that are not yet clear (but are likely due to a fuck-up by one of Cannon’s own staffers), the inventories from both Category A (government documents that deal with a legal issue) and Category B (more personal documents) were briefly posted on the docket. (h/t Zoe Tillman, who snagged a copy)

Those inventories not only show Cannon’s claims of injury to Trump were even more hackish than I imagined. But it creates the possibility that DOJ’s filter team will attempt to retain some of the documents included in Category B, notably records pertaining to the Georgia fraud attempts and January 6, they otherwise wouldn’t have.

Start with the hackishness. The harm that Cannon sustained to justify intervening consisted of preventing DOJ from returning, “medical documents, correspondence related to taxes, and accounting information” to Trump, “depriv[ing Trump]of potentially significant personal documents.” Cannon made DOJ withhold such documents from Trump for a least two additional weeks and then used it to argue that Trump had a personal interest in what DOJ claims are mostly government documents and press clippings.

The single solitary medical document pertaining to Trump (there’s a Blue Cross explanation of benefits that appears to pertain to someone else) is this letter from Trump’s then-personal physician released during the 2016 Presidential campaign.

Not only was it publicly released over six years ago, but details of medicines left off the report and Trump’s role in dictating an earlier version of the letter were widely reported in 2017.

Aileen Cannon held up a national security investigation into highly sensitive documents stored insecurely at a beach resort targeted by foreign intelligence services, in part, because the FBI seized a public letter than had been released as part of a political campaign six years ago.

She personally halted efforts to keep the United States safe, in part, to prevent leaks of a document that Trump released himself six years ago.

But that’s not all she did.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

Similarly, there are documents that might be responsive to and of interest to Tish James in her investigation of Trump’s fraud. Those include:

  • 5 copies of the same one-page letter from Morgan Lewis about taxes
  • A document about a restrictive covenant agreement
  • A confidential settlement between the PGA and Trump Golf
  • Several IRS Form 872s, including one in a folder marked NYC 8/10 (the date of Trump’s deposition with Tish James)
  • An IRS Form 2858 with Molly’s name on it (almost certainly Molly Michael)
  • A signed tax return disclosure consent form

The desk drawer also includes details of Alina Habba’s retention agreements and payments, which she would have found when she searched the drawers to ensure there were not tax documents in there.

The tax documents are likely uninteresting. Some (especially the Hilbert documents) may already be in investigators hands. But the point remains: By preventing DOJ from turning over these Category B documents to Trump on September 1 like they requested permission to do, Cannon has now given DOJ an opportunity to argue these document are not privileged, possibly even that they’re responsive to various subpoenas that might be crime-fraud excepted.

With the exception of the Hilbert emails to the White House, DOJ may still return these — fighting over them may be more trouble than it’s worth. But because this inventory got released, it will now be clear what Trump’s lawyers are attempting to hide. It may even give James or Willis opportunity to subpoena the documents anew.

And it will be clear that Aileen Cannon endangered the United States, in part, based off a claim that a medical record that Trump himself released six years ago is more important than some of the government’s most sensitive documents.

As Tillman noted in her piece on the inventory, there are also details of some of the clemency packages Trump reviews. Those include pardons for Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner, as well as the commutation of Ted Suhl. There’s also one for an “RN” that might be Ronen Nahamani, whose clemency a bipartisan group of politicians supported, including Matt Gaetz. The inclusion of all these clemency packages makes it more likely that Roger Stone’s was among them — though by description, Stone’s pardon was in another drawer of a desk in Trump’s office.

One of the other main categories of Category A documents are letters to NARA, something likely covered by the part of the warrant authorizing the seizure of communications about classified records.

Graphic: Quino Al via Unsplash (mod by Rayne)

‘I Just Want to Find 11,780 Votes’

We’re waiting for the state of Georgia to finish counting ballots for the Ossoff vs. Loeffler and the Warnock vs. Perdue U.S. Senate races. I’m sure The New York Times’ needle monitor has been bombarded with traffic. A number of pollsters are calling the races but I’m not going to pay them heed yet.

I’m too afraid of getting my hopes up too high given how many attempts Team Trump and the GOP have made to subvert U.S. elections.

While waiting for the final tallies, I want to look at the transcript from the audio recording of the teleconference between Trump and Georgia Secretary of State Raffensperger, particularly this excerpt:

TRUMP: … And why can’t we have professionals do it instead of rank amateurs who will never find anything and don’t want to find anything? They don’t want to find, you know they don’t want to find anything. Someday you’ll tell me the reason why, because I don’t understand your reasoning, but someday you’ll tell me the reason why. But why don’t you want to find?

I don’t know about you but it sounds like Trump is implying with the right persons permitted access to the ballots, the votes Trump needs to win Georgia would be “found.”

He’s implied he wants a fixer team to resolve his “missing votes” problem since Raffensperger can’t or won’t — how mobster-like, how corrupt.

There’s just so much raw, naked criminality in this one phone call, beyond numerous lies Trump made.

There’s solicitation of a crime — he clearly says he wants to “find” 11,780 votes, a number representing at least one more than the margin by which Joe Biden won Georgia. Trump’s insistent on this point, using the word “find” 23 times over the course of the conversation compared to his Chief of Staff Mark Meadows who says “find” twice but in context of an agreement, and attorney Cleta Mitchell who says “find” once while asking about FBI and Georgia Bureau of Investigation findings.

There’s extortion —  a threat of prosecution and other less specific injury implied against Raffensperger and GA SOS counsel Ryan Germany if the desired votes aren’t “found.”

I’m not the lawyer here at emptywheel, but it looks to me like Trump may have violated federal voting and election law 52 U.S. Code 20511 with his interference in a federal election, depriving or defrauding the residents of a State of a fair and impartially conducted election process.

Trump may have violated Georgia election law 21-2-604, Criminal solicitation to commit election fraud; a presidential pardon won’t weasel him out of this one if GA attorney general Chris Carr or Fulton County District Attorney Fani Willis find there’s adequate reason to investigate and prosecute Trump.

Former federal prosecutor Renato Mariotti and Moms Demand Action activist Patti Vasquez discussed the tape with MSNBC Legal Analyst Joyce White Vance, former U.S. Attorney for the Northern District of Alabama in their On Topic podcast. Vance pointed out there was an effort to put “lipstick on the pig,” dressing up the phone call as if there was a legitimate lawsuit about which Trump and his campaign were seeking a settlement with the state of Georgia. But Vance had found no active suit.

Why this effort, including the appearance of an attorney — Cleta Mitchell of lawfirm Foley & Lardner — who wasn’t really Trump’s attorney nor his campaign’s attorney, but compromised enough by her presence during the phone call that her employment was terminated on Monday by Foley & Lardner? This looks deceptive as heck.

Why was White House Chief of Staff Meadows involved at all, discussing an implied agreement in the offing? Yet another Hatch Act violation by a Trump staffer we’re supposed to swallow like a TicTac?

What really bothers me is the practiced ease with which Trump just rolled through this call. We know he tried to pressure Ukraine’s president into investigating Hunter Biden to produce evidence of malfeasance by both Hunter and his father Joe Biden while Biden was VP during the Obama administration. The approach was similar though Trump used bait in the form of aid rather than a threat of prosecution as he did with Raffensperger and Germany. We have yet to see a word-for-word transcript of the 2019 Ukraine call, having instead a memo providing most of the context. Would the full transcript buried in a classified file system sound more like the Trump-Raffensperger call?

How many other calls like this past Saturday’s has Trump made? How many in-person visits making similar solicitation and extortive attempts as well?

Did he use the same technique during that one golf game with Lindsey Graham after which Graham suddenly did an about-face toward Trump, becoming his lap dog?

Let’s not forget that same lap dog also called Raffensperger about finding votes for Trump. Did his call sound like Trump’s except Graham didn’t tweet about it afterward?

I hope we’re going to hear from other states soon whether they, too, were pressured to “find” votes.

And I hope each state pursues an investigation and prosecution where appropriate.