Evan Corcoran’s Two May 25 Stall Letters

A number of people have observed that the language in the newly unsealed parts of the Trump search warrant about what Evan Corcoran told Jay Bratt and others on June 3 emphasizes that “he was advised” certain things that (we now know) turned out to be false.

During receipt of the production, FPOTUS COUNSEL 1 stated he was advised all the records that came from the White House were stored in one location within Mar-a-Lago, the STORAGE ROOM, and the boxes of records in the STORAGE ROOM were “the remaining repository” of records from the White House. FPOTUS COUNSEL 1 further stated he was not advised there were any records in any private office space or other location in Mar-a-Lago. The agents and DOJ COUNSEL were permitted to see the STORAGE ROOM and observed that approximately fifty to fifty-five boxes remained in the STORAGE ROOM. [5 lines redacted] Other items were also present in the STORAGE ROOM, including a coat rack with suit jackets, as well as interior decor items such as wall art and frames. [my emphasis]

For comparison, here’s how that exchange was described in DOJ’s response to Trump’s motion for a stay.

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. 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. [my emphasis]

On August 8, FBI emphasized that Corcoran was simply describing what “he was advised.” By August 30, DOJ summarized what Trump, in the person of his attorney, “represented.”

The earlier emphasis on what Corcoran was told lends weight to the interpretation that DOJ believes he is a witness, not a subject, to an obstruction investigation. Yes, if he genuinely was lied to, then he’s probably safe from any criminal exposure himself, but will likely, eventually, have to explain that to investigators.

But that’s not the only thing notable about the newly unsealed sections, as pertains to Corcoran.

For example, his prohibition on searching boxes was not unsealed. Neither in that passage nor in any other place in the unsealed affidavit does the description of how Corcoran refused to let Bratt and the three FBI agents open any boxes appear (I’ve bolded how it appeared in DOJ’s response). Some of the five redacted lines of the paragraph describing the storage room likely describe all the reasons why the storage room doesn’t comply with the CFR on storing classified documents. The coat rack and the wall art are likely included as evidence that the storage room was not exclusively available to those with a Need to Know the classified information Trump was storing in the room. But somewhere, in that paragraph or in another one, the affidavit almost certainly describes that Corcoran prohibited the FBI from opening the boxes. It would be pertinent to FBI’s request to search what was really in those boxes. So a description that Corcoran prohibited the FBI from looking is almost certainly in the affidavit, but remains redacted, even though DOJ’s claim that Corcoran prohibited the FBI from looking inside the boxes was made public in DOJ’s response.

If that’s right, it suggests the FBI must still consider that refusal to be of investigative interest, and so redacted it.

It’s a third reference to Corcoran, though, where the newly unsealed language provides most interesting new context.

51. DOJ has advised me that, on May 11, 2022 an attorney representing FPOTUS, “FPOTUS COUNSEL 1,” agreed to accept service of a grand jury subpoena from a grand jury sitting in the District of Columbia sent to him via email by one of the prosecutors handling this matter for DOJ “DOJ COUNSEL.” The subpoena was directed to the custodian of records for the Office of Donald J. Trump and it requested the following materials:

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/SIG/NOFORN/ORCON Top Secret/SI-G/NOFORN Top Secret/HCSO/NOFORN/ORCON Top Secret/HCS-O/NOFORN Top Secret/HCSP/NOFORN/ORCON, Top Secret/HCS-P/NOFORN Top Secret/TK/NOFORN/ORCON Top Secret/TK/NOFORN, Secret/NOFORN, Confidential/NOFORN TS TS/SAP TS/SI-G/NF/OC TS/SI-G/NF TS/HCSO/NF/OC TS/HCS-O/NF TS/HCS-P/NF/OC TS/HCS-P/NF, TS/HCS-P/SI-G TS/HCS-P/SI/TK TS/TKINF/OC, TS/TK/NF S/NF, S/FRD S/NATO S/SI, C, and C/NF.

The return date of the subpoena was May 24, 2022. DOJ COUNSEL also sent FPOTUS COUNSEL 1 a letter that permitted alternative compliance with the subpoena 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. ” The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect.

52. On May 25, 2022, while negotiating for an extension of the subpoena, FPOTUS COUNSEL 1 sent two letters to DOJ COUNSEL. 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.” [my emphasis]

The description of the May 11 subpoena and Jay Bratt letter accompanying it got unsealed with this release. None of that description is new, though the fact that this is the first mention of both Bratt and Corcoran in the affidavit means the following earlier discussions, including an April 29 explanation from NSD — probably Bratt — about the national security urgency of reviewing the documents returned in January would not have appeared before that in the affidavit (though could later in it).

April 11, 2022: FBI letterhead memorandum asks NARA for access to Trump documents

April 12, 2022: NARA informs Trump of access request

April 29, 2022: NSD to Evan Corcoran letter laying out NatSec urgency (not public)

April 29, 2022: Evan Corcoran letter to NARA asking for further delay (not public)

May 1, 2022: Evan Corcoran letter to NARA asking for further delay (not public)

May 5, 2022: Evan Corcoran asks for access to the Trump records for representatives (not public)

May 10, 2022: Steidel Wall to Corcoran advising him she would give FBI access starting May 12

The May 10 letter from Steidel Wall to Corcoran was included in the government’s response to Trump’s Special Master request but not among the items that DOJ asked Chief Judge Beryl Howell to unseal as grand jury material. It appears that it has become a focus of the public discussion because John Solomon made it one.

The passage above also unsealed the first sentence of paragraph 25 (the rest of that paragraph was unsealed in the first release). We already knew about one May 25 letter from Corcoran — DOJ diligently included it with the affidavit, as instructed by Corcoran, and so it was unsealed in the first unsealing.

That Corcoran actually sent two letters that day was already made public in this letter to Beryl Howell, though probably few other people noticed. This is probably the first that most people will realize Corcoran sent two letters that day. More importantly, the newly unsealed sentence makes its relation to the subpoena more obvious.

The subpoena deadline was May 24. By that day, document custodians from all of Trump’s properties should have shown up at their local FBI office with the remaining classified documents Trump retained. If they had, we might never have heard of all this. But on May 25 — the day after the subpoena deadline — Corcoran, after having stalled the FBI’s access to the 15 boxes for a month, was still asking for more time to respond to the subpoena issued two weeks earlier. All the while he was making false claims that this aspect of the investigation had leaked.

It’s against that background that Corcoran sent not one but two letters. This one is the second he sent that day. It doesn’t mention the pending subpoena, at all. Rather, it did the following:

  • Argue that because public trust is low (thanks to Donald Trump) any actions by DOJ must not involve politics
  • Complain that the news of the NARA referral (which NARA shared with Congress after warning Trump for months they might resort to doing so) was publicly reported
  • Claim falsely there were, “Leaks about an investigation that involve the residence of a former President”
  • Assert that the President has absolute authority to declassify things (without claiming that Trump had declassified things)
  • Lay out the (IMO) most catastrophically shitty legal advice made public this year, that Corcoran believed only 18 USC 1924 was implicated in this investigation
  • Cite an IG Report stating that DOJ has to remain free of political influence
  • Include two paragraphs that, Corcoran requested, be shared with any judge ruling on a motion or application in connection with this investigation.

Here’s what those paragraphs say:

Long-standing DOJ policy requires that DOJ attorneys be candid in representations made to judges. Pursuant to those policies, we request 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.

The official policy ofDOJ further requires that prosecutors present exculpatory evidence to a grand jury. Pursuant to that policy, we request that DOJ provide this letter to any grand jury considering evidence in connection with this matter, or any grand jury asked to issue a subpoena for testimony or documents in connection with this matter. [my emphasis]

Effectively, the entire letter — written at a time when Corcoran was trying to negotiate a delayed response to a subpoena — was a pitch to a judge that there could be no probable cause that Trump had committed a crime, because 18 USC 1924 didn’t apply to him (remember, this is the statute Trump made a felony in response to Hillary’s home server) and because he hypothetically could have declassified all the most sensitive secrets.

The reference to Kash Patel, immediately following the mention of this letter, makes more sense now; it might explain that when Debra Steidel Wall told Corcoran on May 10 that no one could review Trump’s papers without proper clearance, he acceded to that.

What’s interesting about this letter (aside from how catastrophically bad that 1924 advice was) is its audience. Corcoran would have known that a judge was already involved; Beryl Howell oversees grand juries in DC, including the one that issued a subpoena to the former President. But he didn’t ask that the letter be shared with any judges who already reviewed subpoenas. Rather, he was asking that it be shared in case of some motion or application.

Corcoran envisioned — at a time he was stalling on compliance with a subpoena — that DOJ might soon go before a judge with some kind of application, something like a search warrant, in hand.

They were playing a game of chicken.

That suggests that DOJ was already threatening to come get the stolen classified documents they knew to remain at Mar-a-Lago. It suggests that this letter, with its catastrophically bad 1924 advice, was an attempt to stave off that, when in fact it instead ensured that DOJ would include a footnote explaining that the Espionage Act (unlike 1924) pertained to National Defense Information, not classified information, which would also make Corcoran’s nod to Trump’s unlimited declassification powers pointless as well.

I continue to get some satisfaction that during the period Corcoran was giving Trump such catastrophically bad legal advice pertaining to stolen classified documents, he was helping write 30-page filings in the Bannon misdemeanor case that also didn’t work, not even with Carl Nichols. But I’m perverse like that.

Anyway, that detail — that Corcoran wrote a letter to a hypothetical judge reviewing a warrant application even while he was negotiating an extension to the already passed subpoena deadline — is important background to whatever search Corcoran did and whatever representations he made on June 3, all a stunt that (he probably assumed) would stave off any search, including his refusal to let the FBI look in the boxes that he claimed to have searched.

I have no idea what Corcoran knew on May 25 and what he knew on June 3. But the fact he sent a letter envisioning a hypothetical judicial review of a search warrant application suggests he knew that he had to stave off a search even before the FBI showed up on June 3, when he refused to permit a consensual search.

Go to emptywheel resource page on Trump Espionage Investigation.

Carolyn Maloney Provides NARA Cause to Assert Standing

Carolyn Maloney, fresh off losing her primary, sent a letter to Acting Archivist Debra Steidel Wall as part of a pre-existing inquiry into Trump’s stolen documents.

Noting that, “NARA’s staff recently informed the Committee that the agency is not certain whether all presidential records are in its custody,” she asked for two things from Steidel Wall: To ask Trump to issue a declaration stating that he has returned everything and to provide the Oversight Committee a review of whether the government has gotten everything back.

I urge NARA to seek a personal certification from Donald Trump that he has surrendered all presidential records that he illegally removed from the White House after leaving office. I also ask that the agency conduct an urgent review of presidential records recovered from the Trump White House to assess whether presidential records remain unaccounted for and potentially in the possession of the former president.


[T]he Committee requests that NARA conduct an urgent review of presidential records from the Trump Administration to identify any presidential records or categories of presidential records, whether textual or electronic, that NARA has reason to believe may still be outside of the agency’s custody and control. Please also assess any other limitations on the completeness, accuracy, and accessibility of presidential records provided to NARA by the Trump Administration. Please provide the Committee an initial assessment of NARA’s findings from this review by September 27, 2022.

In addition, I urge NARA to seek from former President Trump a written certification that he has surrendered all presidential records or classified materials, has not made any copies or reproductions of such materials, and has not transferred any records or government documents to any party other than NARA or DOJ since his term ended.22 Although the President is not required under current law to provide such a certification, I believe that the exceptional circumstances in this case warrant that Mr. Trump do the same so Congress and the American people can fully understand the impact of his actions on our nation’s security, take mitigating action, and consider legislative reforms. [my emphasis]

Steidel Wall will never get Trump to issue such a declaration. But it will highlight the important question — particularly given the caveat that Christina Bobb added into her own declaration — about whether Trump shared or disseminated these records.

The rumors that he did are so abundant I’m hearing them an ocean away.

Maloney might have more success with her request for a report on whether NARA got everything back. There’s just one problem.

NARA doesn’t have the documents. The FBI does. But the FBI isn’t allowed to do anything with them, under Judge Aileen Cannon’s injunction.

This request from Maloney gives Steidel Wall cause to intervene and to do so on fairly urgent timeline. She has a legitimate request from Congress, after all!

Mind you, the place where Steidel Wall would be required to intervene is in DC, not in Florida.

Which may be the entire point of Maloney’s letter.

Go to emptywheel resource page on Trump Espionage Investigation.

Judge Aileen Cannon’s Funny Ideas about Being Owned

As noted yesterday, Judge Aileen Cannon enjoined the government from conducting a criminal investigation into violations of the Espionage Act and obstruction because around 4.5% — possibly as little as .5% — of the materials seized from Trump in 27 boxes amount to things more personal than MAGA hats and press clippings.

Her logic rests on a series of false claims about what amounts to being owned.

To understand why, you need to understand how a conservative Republican judge — child of a refugee from Communist Cuba! — upended property rights to halt a criminal investigation into the theft of property.

Aileen Cannon agrees that possession is the law

Trump’s motion had asked for a Special Master who would tell them what was in the boxes that Evan Corcoran told the FBI he had already reviewed diligently so he, Trump, could file a Rule 41(g) motion to claw that stuff back. He wasn’t filing it as a Rule 41(g) motion. He was filing something to give the lawyer who claimed to have gone through all these boxes enough knowledge of them to file a Rule 41(g) motion.

But, as DOJ’s head of the Espionage section. Jay Bratt, explained when he described in a hearing before Judge Cannon that DOJ was treating this as a Rule 41(g) motion and why this should end everything, Rule 41(g) only works if someone is trying to claw back their own property. Trump doesn’t own the vast majority of what was seized.

One is Rule 41(g), and we believe this is a truly 41(g) motion; or second, the Court can exercise a second or anomalous jurisdiction. To do that, that then triggers certain inquires the Court must make, and it also triggers certain burdens on them to establish that they satisfy those standards.

The civil cover sheet to this matter references Rule 41(g). There are frequent references throughout Plaintiff’s briefs to Rule 41(g), and we believe that what they have really done is brought a Rule 41(g) motion. And if the Court interprets and reads and applies Rule 41(g) strictly, they cannot get a special master or the relief that they seek, and that’s because the key factor that must exist for a party to bring a Rule 41(g) motion is that the party has a possessory interest in the property at issue.

And let me describe what the former President has as Presidential records that the 45th President took. He is no longer the President; and because he is no longer the President, he did not have the right to take those documents. He was unlawfully in possession of them; and because he has no possessory interest in those records, that ends the analysis under Rule 41(g).

That means, under the second prong of binding precedent in the 11 Circuit, if Trump doesn’t own this stuff, he’s not entitled to relief.

THE COURT: You don’t dispute one can bring a civil action in equity for the return of property pre-indictment assuming the equitable factors and consideration to counsel in favor of such an action.

MR. BRATT: I do agree with that; but under the Richey factors and to go through them — and actually, I was going to start with the first, callus disregard for Plaintiff’s constitutional rights, I will get back to that. But the second Richey factor is that Plaintiff must have an interest in and need for the property, and this plaintiff does not have an interest in the classified and other Presidential records. So under Richey, that, in and of itself, defeats or should point the Court to decline to exercise its equitable jurisdiction.

Cannon agreed with Bratt on the law. If Trump doesn’t own this stuff, he can’t demand it back.

Like Bratt, she sort of takes Trump’s bizarre filing as a Rule 41(g) motion too, even while she calls Trump’s arguments convoluted.

As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity. See Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975) (“[A] motion [for return of property] prior to [a] criminal proceeding[] . . . is more properly considered simply a suit in equity rather than one under the Rules of Criminal Procedure.”);

By treating this as a convoluted Rule 41(g) motion, she is conceding the centrality of the ownership of the items at issue to the analysis.

Indeed, as she notes in a footnote, this is all about property.

7 Rule 41(g) allows movants, prior to the return of an indictment, to initiate stand-alone actions “in the district where [their] property was seized.” See Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) (“Property which is seized . . . either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action.”); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012) (initiating an action with a “petition to return property”); see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir. 1985) (“[A] court is not required to defer relief [relating to privileged material] until after issuance of the indictment.”).

So Judge Cannon agrees that this issue significantly pivots around property. It is in how she effectively seizes government property (in the same ruling where she suggests one should be able to steal and sell Ashely Biden’s property with impunity) where things begin to go haywire.

Aileen Cannon refused to return Trump’s personal information so she could justify stealing US taxpayer property

Cannon starts her decision on whether to appoint a Special Master not on the privilege questions, but on Richey, which is how one decides whether someone should get their property back. In her analysis of the second prong of Richey, she decides (virtually all of this entails Cannon doing things Trump’s attorneys did not do) that Trump does have a property interest in this material. She points to medical and tax records the likes of which she believes people should be able to steal from Ashely Biden with impunity and says those — a tiny fraction of the whole — gives Trump standing under Richey.

The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date. 10

10 To the extent the Government challenges Plaintiff’s standing to bring this action, the Court addresses that argument below. See infra Discussion II.

This is why I laid out how small a percentage of the seized records this involves. On August 8, the government seized 11,282 stolen government records, of which 103 are marked as classified, 1,673 press clippings, and around 64 “sets of material” that might be privileged. 

Those 64 sets of material have not been shared with the investigative team. They’ve been segregated by the privilege team. Cannon doesn’t even claim Trump owns them. He may not! They may be White House Counsel documents about the Mazars challenge or White House physician documents about Trump’s COVID treatment. We don’t know whether they do or not because they are being protected, for Trump’s sake.

But the claim that this personal information equates to a property interest is one of three things that Cannon cites to substantiate her claim that something among this vast swath of stolen documents is owned by Donald Trump.

Then, Aileen Cannon double counts stuff. She only knows about — and has “leaked” the details about these medical and tax records — because she (unlike the investigative team) has read and publicly disclosed material from the filter team report. There are upwards of 500 pages that might be privileged (520, the privilege team says), which she counts as a separate property interest of Trump’s from the seized medical and tax records found within those 520 pages that only the privilege team has seen, even though it’s the same 520 pages and US taxpayers might well own those 520 pages (if, for example, they pertained to Trump’s treatment for COVID or DOJ’s defense of Trump in the Mazars case) as well.

That would be crazy enough. But to ensure she’d even get to this ruling, Cannon already refused to let DOJ share all this, the 520 pages of potentially privileged material and the tax and medical records therein. The filter team lawyers, Benjamin Hawk, asked to do so last Thursday. But Cannon told him no, because she wanted to do all this “holistically”.

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

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

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

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

So the only reason DOJ still has exclusive possession of the materials on which she hangs her Richey analysis is because she, Aileen Cannon, prohibited DOJ from sharing it, and she uses DOJ’s possession of it to prevent the government from investigating the thousands of government documents Trump stole.

As for the rest, she makes stuff up. As noted, she claims that in the government’s response they admitted that, “The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value.” She returns to this citation several times to claim that the government has acknowledged it seized stuff it should not have. Tell me if you can find that acknowledgment in the passage she cites (I’ve bolded what she claims is such an acknowledgement and italicized something Cannon entirely ignored):

As his last claim for relief, Plaintiff asks this Court to order “the Government to return any item seized pursuant to the Search Warrant that was not within the scope of the Search Warrant.” D.E. 28 at 10; see id. at 4. In Plaintiff’s view, retaining such material “would amount to a violation of the Fourth Amendment’s protections against wrongful searches and seizures.” D.E. 28 at 9. Although Plaintiff does not specify what material he contends was seized in excess of the search warrant, certain personal effects were commingled with classified material in the Seized Evidence, and they remain in the custody of the United States because of their evidentiary value. Personal effects without evidentiary value will be returned.

Nonetheless, contrary to Plaintiff’s contention, personal effects in these circumstances are not subject to return under Criminal Rule 41(g), for four independent reasons. First, the search warrant authorized seizing and retaining items in containers/boxes in which documents with classification markings were stored. See MJ Docket D.E. 17 at 4. Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.

Second, even if the personal effects were outside the scope of the search warrant (contrary to fact), their seizure and retention would not violate the Fourth Amendment because they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant. See, e.g., United States v. Wuagneux, 683 F.2d 1343, 1353 (11th Cir. 1982) (“It was also reasonable for the agents to remove intact files, books and folders when a particular document within the file was identified as falling with the scope of the warrant. To require otherwise ‘would substantially increase the time required to conduct the search, thereby aggravating the intrusiveness of the search.’” (citation omitted)).

Third, even if the personal effects were seized in excess of the search warrant—which Plaintiff has not established—Criminal Rule 41(g) does not require their return because that Rule was amended in 1989 to recognize that the United States may retain evidence collected while executing a warrant in good faith. See, e.g., Grimes v. CIR, 82 F.3d 286, 291 (9th Cir. 1996). As the Advisory Committee explained in connection with the 1989 amendment of Criminal Rule 41(e) (now subsection (g)), Supreme Court precedent permits “evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant,” to be used “even against a person aggrieved by the constitutional violation,” and “Rule 41(e) is not intended to deny the United States the use of evidence permitted by the fourth amendment and federal statutes.” The decoupling of Criminal Rule 41(g) from the Fourth Amendment also explains why a motion to return property provides no forum to litigate the scope of a search warrant: failure to comply with a search warrant or the Fourth Amendment is neither necessary nor sufficient to prove a movant’s entitlement to the return of property under Criminal Rule 41(g). [bold and italics mine]

Look at what she did!!! First, she took a subjunctive statement — that if the FBI were to find personal items without evidentiary value (like his passports, which they already returned, of which she makes no mention, because it would prove the government is right) — and outright lied and claimed it was a concession they had found such things. The reason she doesn’t mention the passports, by the way, is because the government said, “The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information.” So even there, they asserted an investigative interest. But in a passage where the government states, outright, that the Plaintiff has not established the government has seized anything not covered by the warrant, Aileen Cannon simply invents a concession that says they took stuff that is unnecessary to the investigation. Makes it up!

And yet she uses it as part of her “proof” that there are personal belongings among the 11,000 stolen documents. And she invented it out of thin air.

Cannon puts a Special Master where the DC District should be

Note what Judge Cannon didn’t deal with in this analysis of the second prong of Richey? DOJ’s assertion that Trump doesn’t own any of the 11,000-plus stolen documents seized as contraband. She separates the question of who owns the bulk of the materials seized into a separate section, purportedly about standing, not Richey.

Only after she decides that Trump has a possessory interest in the 11,000 stolen documents because of the tax and medical records therein that she prevented DOJ from sharing with Trump’s lawyers last week does she turn to the Presidential Records Act that makes these stolen documents. The first time she does so, and in a separate section, she dismisses the government’s argument about standing under Richey — analysis about which she has just done — as premature.

The Government relies on the definition of “Presidential records” under the Presidential Records Act (the “PRA”), see 44 U.S.C. § 2201(2), and on the Eleventh Circuit’s decision in Howell, 425 F.3d at 974; see supra note 12.

Plaintiff opposes the Government’s standing argument as premature and fundamentally flawed [ECF No. 58 p. 2]. In Plaintiff’s view, what matters now is his authority to seek the appointment of a special master—not his underlying legal entitlement to possess the records or his definable “possessory interest” under Rule 41(g) [ECF No. 58 pp. 4–6]. Moreover, Plaintiff adds, even assuming the Court were inclined at this juncture to consider Plaintiff’s potential claim of unreasonableness under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable [ECF No. 58 pp. 2, 4–6].

Having considered these crisscrossing arguments, the Court concludes that Plaintiff is not barred as a matter of standing from bringing this Rule 41(g) action or from invoking the Court’s authority to appoint a special master more generally.


Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations. [my emphasis]

Side note: it doesn’t matter for Fourth Amendment precedent, but this is another example of where Cannon seizes and reallocates property with wild abandon. Trump does not own Mar-a-Lago. The club does, and Trump Organization owns that. The failson is apparently in charge of it all. This has apparently been an issue in both the Beryl Howell grand jury docket and the Bruce Reinhart warrant docket. So while it doesn’t matter to her legal analysis, she simply invents Trump’s ownership of a club that his biological person does not own and on that basis uses it to give Trump standing.

But in this passage, which she conducts separately from the Richey analysis that pivots entirely on a made up claim and possession of documents she herself prohibited the government from sharing, she implies that proceedings before her will make, “an ultimate judgment on the merits as to those documents and their designations” — that is, a determination of ownership under the PRA.

Five pages later, in a section on Executive Privilege, she concedes that questions about ownership under the Presidential Records Act don’t belong before a Special Master appointed by a SDFL judge. It belongs in the DC District.

16 The Court recognizes that, under the PRA, “[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist” to permit public dissemination of presidential records “violates the former President’s [constitutional] rights or privileges.” 44 U.S.C. § 2204.

Having conceded that, Cannon has conceded she has no authority to appoint a Special Master to adjudge ownership under PRA. But in the same opinion where she concedes she doesn’t have this authority, she appoints a Special Master to weigh in on the matter.

This wouldn’t matter if Cannon just appointed a Special Master to review the attorney-client privilege claims. But her order envisions a review of all 11,000 seized stolen documents, based on her assertion that the question of ownership is still uncertain.

Aileen Cannon declares herself President and overrides Joe Biden’s delegated Executive Privilege decision

Judge Cannon could have simply appointed a Special Master to review Attorney-Client determinations (and such a decision might have been modest and defensible). But after assuming the right to appoint a Special Master to determine PRA issues, she then wades into Executive Privilege, claiming that Trump (whose lawyer told the FBI he had closely inspected all these boxes) has not had an opportunity to invoke Executive Privilege.

On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.

She points to two precedents pertaining to the EP claims of a former President against a co-equal branch of government and on that basis claims that it remains unsettled whether Trump can invoke Executive Privilege to claw back material from the Executive branch.

The Government asserts that executive privilege has no role to play here because Plaintiff—a former head of the Executive Branch—is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch [ECF No. 48 pp. 24–25]. In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a case involving review of presidential communications by a government archivist, the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege, id. at 439; (2) “[t]he expectation of the confidentiality of executive communications . . . [is] subject to erosion over time after an administration leaves office,” id. at 451; and (3) the incumbent President is “in the best position to assess the present and future needs of the Executive Branch” for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, “[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.” Trump v. Thompson, 142 S. Ct. 680, 680 (2022); see also id. at 680 (Kavanaugh, J., respecting denial of application for stay)


Thus, even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter. Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.

This is insane analysis. But the craziest part is that, with those words, “further review is required,” Aileen Cannon appoints herself President and overrides an Executive Privilege decision the actual President has already made.

Oh sure. She pretends the actual President hasn’t already weighed in.

Here’s how smothers Joe Biden — and the delegation he made to the Archives in May to make an Executive Privilege determination — with a pillow. On page 2, Cannon lays out the posture of this case this way.

On April 12, 2022, NARA notified Plaintiff that it intended to provide the Fifteen Boxes to the Federal Bureau of Investigation (“FBI”) the following week [ECF No. 48 p. 5]. Plaintiff then requested an extension on the contemplated delivery so that he could determine the existence of any privileged material [ECF No. 48-1 p. 7]. The White House Counsel’s Office granted the request [ECF No. 48-1 p. 7]. On May 10, 2022, NARA informed Plaintiff that it would proceed with “provid[ing] the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022” [ECF No. 48-1 p. 9]. The Government’s filing states that the FBI did not obtain access to the Fifteen Boxes until approximately May 18, 2022 [ECF No. 48 p. 7].

She draws from page 5 of the government response and non-contiguous pages, page 7 and 9, from the letter Acting Archivist Debra Steidel Wall sent Evan Corcoran in May. She left out page 8 of the appendix, in which Steidel Wall said this:

[T]he Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon’s argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA’s predecessor agency-a “very limited intrusion by personnel in the Executive Branch sensitive to executive concerns”-would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451 ; see also id. at 455 (rejecting the claim). The Court specifically noted that an “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.” Id. at 452; see also id. at 441-46 ( emphasizing, in the course of rejecting a separation-of-powers challenge to a provision of a federal statute governing the disposition of former President Nixon ‘s tape recordings, papers, and other historical materials “within the Executive Branch,” where the “employees of that branch [would] have access to the materials only ‘for lawful Government use,” ‘ that “[t]he Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch”; and concluding that “nothing contained in the Act renders it unduly disruptive of the Executive Branch”).

It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are “sensitive to executive concerns.” Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decision-making.” Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.

The bolded language, by the way, is a premise that Cannon adopts in letting the government continue its damage assessment. But she doesn’t cite it, probably because it would make clear not just how outlandish her argument is, but that this decision has already been made.

And Cannon cut out page 6 of the government response, which says this.

As the NARA Referral stated, the Fifteen Boxes contained “highly classified records.” Upon learning this, DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” Wall Letter at 1. DOJ followed the steps outlined in the Presidential Records Act to obtain access to the Fifteen Boxes.

On April 12, 2022, NARA advised counsel for the former President that it intended to provide the FBI with the records the following week (i.e., the week of April 18). Id. at 2. That access was not provided then, however, because a representative of the former President requested an extension of the production date to April 29. See id. As the Acting Archivist recounted, on April 29, DOJ advised counsel for the former President as follows:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.

See id.

On the same date that DOJ sent this correspondence, counsel for the former President requested an additional extension before the materials were provided to the FBI and stated that in the event that another extension was not granted, the letter should be construed as “‘a protective assertion of executive privilege made by counsel for the former President.’” Id. In its May 10 response, NARA rejected both of counsel’s requests. First, NARA noted that significant time—four weeks—had elapsed since NARA first informed counsel of its intent to provide the documents to the FBI. Id. Second, NARA stated that the former President could not assert executive privilege to prevent others within the Executive Branch from reviewing the documents, calling that decision “not a close one.” Id. at 3. NARA rejected on the same basis counsel’s “‘protective assertion’” of privilege. Id. at 3-4. Accordingly, NARA informed counsel that it would provide the FBI access to the records beginning as early as Thursday, May 12, 2022. Id. at 4. Although the former President could have taken legal action prior to May 12 to attempt to block the FBI’s access to the documents in the Fifteen Boxes, he did not do so.

Again, Cannon simply ignores that these issues were resolved in May.

She also ignores something Julie Edelstein said in the hearing before her: that the government waited before accessing the 15 boxes turned over in January to give Trump a chance to claim Executive Privilege, which he never did.

Also notably, that letter was provided on May 10th. Purposefully, we waited a few days before beginning the FBI’s review of that material to give the Plaintiff the remedy he could have sought at that time, which was to bring a suit in the District of Colombia to assert executive privilege over those materials. He did not.

Aileen Cannon knows Joe Biden has already weighed in on the EP issue, but she pretends he hasn’t and decides that she, Aileen Cannon, must review hypothetical claims of EP raised against the Executive branch.

Stealing classified documents is not immediately incriminating

One of the funnier moves Cannon makes is in claiming that the seizure of these documents two months after Trump swore he had turned over all documents marked classified in his possession is not immediately incriminating.

Importantly, after DOJ released this picture, Trump complained that FBI took a picture showing the documents in question in a condition other than he stored them in, a clear admission he had possessed them. Effectively, he has already confessed to the crime.

And it’s not just him either. In the hearing, Jim Trusty scoffed that showing smoking gun proof that DOJ caught Trump with documents that his Custodian of Records swore he did not have would be relevant to the question of a Special Master.

You even have what happened two days ago, the insertion in a motion about the special master of a perfectly staged photograph of classified covers on documents. I mean, how that was supposed to help the Court decide the issue of special master is beyond me.

Trump and his lawyers have admitted that these documents were seized at Mar-a-Lago.

That’s relevant to an invocation of an 11th Circuit precedent ruling that Jay Bratt made in the hearing. someone does not have standing to make a Rule 41(g) motion over material he obtained via crime.

The sort of standing or jurisdiction that you have to have right now pre-indictment as set forth in Rule 41(g), as set forth in the Howell case, and as I’m about to talk with respect to the equity jurisdiction Bennett case that Judge Rosenbaum decided when she was a judge here, that is very limited. And whether you call it “standing” or “jurisdiction,” they do not have it here. And in order to get the jurisdiction or standing under Rule 41(g), that is a key requirement. In fact, it is the key requirement, that you have a possessory interest in a property. If, at a later point, the Fourth Amendment — potential Fourth Amendment violations need to be vindicated, that is done through a motion on suppression. It is not done through a Rule 41(g) motion pre-indictment.


There are also, you know, three I think very important, overarching factors that the courts emphasize when a judge in your position is being asked to exercise equity jurisdiction for return of property. One is that the exercise of that jurisdiction must be with caution and restraint, and it must be exercised only to prevent a manifest injustice; and the third, any time a party comes to equity, the party must have clean hands. And here, the former President being in unlawful possession of classified and other Presidential records, that is a text book example of unclean hands.

Cannon argues that because Howell pertained to someone who had already pled guilty, it is inapt here. Note that she relies, again, on the personal documents she herself refused to let DOJ share with Trump’s lawyers.

At the hearing, the Government argued that the equitable concept of “unclean hands” bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) (“[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands.”). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine.

Cannon is all worked up over whether Trump is guilty, and not that under Howell, Trump has an affirmative requirement to prove he owns the stuff seized before she can grant him relief.

In order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.

But even the unclean hands language requires analysis, first, of whether Trump legally possessed the items at issue.

Furthermore, in order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands. See Gaudiosi v. Mellon, 269 F.2d 873, 881-82 (3d Cir.1959)(stating, no principle is better settled than the maxim that he who comes into equity must come with “clean hands” and keep them clean throughout the course of the litigation, and that if he violates this rule, he must be denied all relief whatever may have been the merits of his claim.)

The doctrine of “unclean hands” is an equitable test that is used by courts in deciding equitable fate.

As Cannon has already conceded, that question can only be determined in the DC District, not by a Special Master in SDFL.

Remember: Trump might not even own the things (identified in the privilege report and so unavailable to Bratt to address) on which Cannon has rested all her analysis. It could well be White House Counsel materials about the Mazars case or White House Physician materials about his near-death from COVID. Trump hasn’t made the argument they are his either (he instead relied on the passports that she ignored).

But based on first, her refusal to let DOJ share that material with Trump, and then her declaration that he does own it, Cannon has overturned the property structure before her, the 11,000 stolen government documents and the Executive Privilege that Biden has already, by delegation, asserted. Rather than forcing Trump to prove he owns this property, she’s just giving him default ownership of it.

In her desperation to shut down a criminal investigation into the theft of government documents, including highly classified ones, Aileen Cannon engages in large-scale appropriation of taxpayer owned property.

Update: Thanks for the corrections that Cannon was born in Colombia, not Cuba.

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

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

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

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

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

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

Here’s what some of those markings mean:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Added clarifying language about FRD from Bill Leonard.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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.

Six Days: Trump’s Second Whack Filing Is Too Late

According to the Trump affidavit, between May 16 and May 18, the FBI conducted a preliminary review of the 15 boxes of materials he returned to NARA in January.

47. From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Fm1her, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes.

We know from the letter from Acting Archivist Debra Steidel Wall that the FBI first got access to those records no earlier than May 12.

I have therefore decided not to honor the former President’s “protective” claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President “uphold[s]” the claim asserted by the former President, “the Archivist discloses the Presidential record”). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question , as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.

One … two … three … four … five … six.

That’s how many days it took the FBI to process 15 boxes of material and then find 184 unique pieces of evidence that the former President violated the Espionage Act.

Six days.

Now consider a detail included in the affidavit. As I’ve pointed out repeatedly, there was a filter team onsite. The affidavit helpfully explains that the primary job of the filter team was to do the search of Trump’s office.

82. The Case Team will be responsible for searching the TARGET PREMISES. However, the Privilege Review Team will search the “45 Office” and conduct a review of the seized materials from the “45 Office” to identify and segregate documents or data containing potentially attorney-client privileged information.

Probably, the case team brought the privilege review team five other boxes to review. That’s because Fox News told us already that all the items on what I call the SSA receipt include privileged materials, but the numbers for five of those boxes suggest they were found in the proximity of all the rest, likely the storage closet.

So five boxes (and a stash of documents) were identified to include privileged information. The remainder, a total of 22 boxes (one of which is the leatherbound box with the TS/SCI documents), would presumably be subjected to a similar process as that used in May.

Probably, that initial search was done with a limited team, because the investigation was not overt yet (though Trump obviously knew about it). Now, this time around, FBI was undoubtedly assuming that Trump could run to the court to get a Temporary Restraining Order at any time, so they may have thrown additional bodies at the problem. But let’s assume the process took the same amount of time. There are approximately 50% more boxes on the CLASS receipt than FBI first accessed in May. 50% more days would be nine days.

August 8 … August 9 … August 10 … August 11 … August 12 … August 15 … August 16 … August 17 … August 18. Nine days.

Even assuming that the FBI didn’t throw extra bodies at the problem, even assuming they took weekends off — both completely ridiculous assumptions when you’re trying to beat a notoriously litigious suspect trying to hide stuff — they would have been done with that same preliminary review around August 18. Nine days ago.

They could have gone through the entire process twice in the time elapsed since the search of Mar-a-Lago!!!

That timeline is consistent, in fact, with NYT having gotten a leak that the FBI had found maybe 100 more documents with classified markings, just from the 27 (or maybe just 22 of the) boxes seized on August 8, by August 22.

The initial batch of documents retrieved by the National Archives from former President Donald J. Trump in January included more than 150 marked as classified, a number that ignited intense concern at the Justice Department and helped trigger the criminal investigation that led F.B.I. agents to swoop into Mar-a-Lago this month seeking to recover more, multiple people briefed on the matter said.

In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, the people said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.

Every single document with classified markings seized on August 8 is another piece of evidence that the former President took classified documents the Presidential Records Act says must be in the Archives or the agency that generated the documents and refused to give them back. And then refused again. And again. And again. If the DOJ were ever to charge Trump, they might focus on just twenty documents, like they did with Hal Martin.

They’ve got 15 times that to choose from already.

Now let’s go back to the privileged documents — 5 boxes and a pile of other documents, presumably obtained from Trump’s office. For some reason — perhaps because they’re also government records or include classified information — even after identifying them as privileged, FBI still got to seize them.

Five boxes, a third the number as the original batch from Mar-a-Lago. Once you got into those boxes, it might take just two days to do an initial review of them.

Now, we don’t know what DOJ is doing with them (though they did decide to take them). But here’s what, per the affidavit, they were permitted to do:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (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.

They can hold off entirely (option b), they can engage in a sort of a Special Master review (option c), or (option a), they can secretly go to the judge and ask him to decide whether they’re privileged. The way this is written suggests that DOJ imagined that Bruce Reinhart might look at documents the privilege team identified as privileged and decide they weren’t privileged, possibly because they were crime-fraud excepted.

Remember that Fox News report relaying Trump’s complaints that the FBI had taken attorney-client privileged documents? That was published on August 13, six days after the search.

To be sure, Judge Reinhart probably can’t sort through boxes of documents at the pace the FBI can (though, what else was he going to do, given that he was hiding out from Trump’s mob?). Still, by the time Trump learned that the SSA receipt reflecting 5 boxes and some other documents from his office had privileged material in them, DOJ had had five days to do their own filter search and go back to Reinhart and ask him to confirm they could access those materials.

And that was something like fourteen days ago.

Yesterday, five days after their first attempt to submit a whack filing asking for (among other things) a Special Master to review the seized documents — but not for attorney-client privilege, but for Executive Privilege (documents that, by definition, belong at the Archives) — and after some polite prodding from an wildly pro-Trump Judge, Aileen Cannon, they submitted their second attempt.

I’m not going to go through it in depth this time (here’s a typically hilarious thread from Mike Dunford on it). But here are two key details. First, in response to one of the really helpful prods from Judge Cannon, Trump’s lawyers confessed that, no, they hadn’t thought to formally inform DOJ about this lawsuit before she reminded them that’s necessary.

Finally, the Court has directed Movant to address the status of service of process on the Government. Dkt. 10. Movant served the Motion to United States Attorney Juan Antonio Gonzalez and Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, on the date of filing, August 22, 2022, via electronic mail. Counsel for Movant spoke with Mr. Bratt on August 25, 2022, and inquired as to the Government’s position on acceptance of service. Mr. Bratt consulted the U.S. Attorney’s Office for the Southern District of Florida (“SDFL”), and informed counsel for Movant that, consistent with DOJ practice, SDFL adheres to the requirements of Rule 4(i) of the Federal Rules of Civil Procedure for service of process in a civil matter against the United States. Accordingly, counsel for Movant sought an executed copy of a Summons, which has been issued by the Clerk. See Dkt. 26. Movant will promptly serve it, and a copy of the pleadings, on the U.S. Attorney’s Office for SDFL and will promptly file proof of service thereafter.

But, two days after she nudged them to do so, Trump’s lawyers decided to call Jay Bratt, and asked him if he’d really like formal notice that they want to sue him to prevent him from doing his job.

He did.

So sometime on Monday, maybe — that’ll be 21 days after the FBI seized 27 boxes from Trump’s hotel, more than three times as long as it took for FBI to find 184 unique pieces of evidence that Trump violated the Espionage Act back in May — DOJ will have formal notice that this is going on, which would be the earliest that Judge Cannon could conceivably say, “Stop what you’re doing!!”

But she won’t, because first she’s going to give DOJ a chance to weigh in, even if on accelerated schedule.

With that in mind, here’s the second point. On their second attempt, Trump’s lawyers managed to ask for the thing they needed to do if they really wanted a Special Master: to ask for an injunction.

Movant requests two categories of relief in the present proceeding. First, Movant seeks an order directing the appointment of a Special Master to oversee the review of materials seized from Mar-a-Lago on August 8, 2022 and enjoining the Government from engaging in any further review of those materials.


The present Motion seeks injunctive relief in the form of an order barring the Government from engaging in any further review of materials seized on August 8, 2022.

I’m not sure they’ve made this ask properly. At this point, 18 days after the search, it’s probably not even worth the effort figuring it out. The point, though, is how this will work. 21 days after the search of Trump’s house, 17 days after DOJ told Trump they’re going to pursue some other option to access the stuff already identified as attorney-client privileged (one of which might be asking Reinhart to allow them to access it), and 14 days after Trump started getting stuff — his passports — that was out of scope of the investigation, is the first moment that they will have formally told a judge, “Emergency!!! We need a Special Master!!!”

Update: Two significant developments. First, Judge Cannon has issued an order to the government — which has not yet been served — to respond to Trump’s motion by Tuesday.

 On or before August 30, 2022, Defendant shall publicly file a Response to the Motion and Supplement, including Plaintiff’s request for the appointment of a special master.

In addition to the Response, on or before August 30, 2022, Defendant shall file under seal the following materials:

i. A more detailed Receipt for Property specifying all property seized pursuant to the search warrant executed on August 8, 2022.

ii. A particularized notice indicating the status of Defendant’s review of the seized property, including any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team.

Meanwhile, Director of National Intelligence Avril Haines has told various Committee Chairs and Ranking Members that the IC is conducting a classification review and what sounds like a preliminary damage assessment. That suggests the stolen documents are already out to the agencies.

Update: In DOJ’s initial response, they’ve noted that the privilege review is already done.

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


Christina Bobb, Custodian of Records and Coup Conspirator

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

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

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

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

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

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

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

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

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

It’s the other subpoena I find more interesting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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.


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.


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.

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Yesterday, propagandist John Solomon posted a letter (NARA link now added) that the Acting Archivist, Debra Steidel Wall, sent Evan Corcoran on May 10. It described a series of communications in which Corcoran asked the Archives to delay giving the FBI access to the documents returned by the former President in January and to treat the files with, “a protective assertion of executive privilege made by counsel for the former President. After letters on April 29 and May 1 asking for delay, on May 5, Corcoran asked to review what had been returned.

Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials. [my emphasis]

The date and Steidel Wall’s response is significant. That’s the date Kash Patel claimed, for the first time, that he had witnessed Trump declassifying broad swaths of material at the White House.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

While Patel declined to say specifically what Trump had declassified, he did describe it to include both “Russiagate” [sic] and the impeachment.

It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.

At one level, this looks more like a belated — and pathetic — attempt to give the President an alibi after he was caught storing Special Access Program documents in a basement room in his heavily-trafficked resort for a year.

But by mentioning two things Trump was investigated for, Patel effectively suggested the point of demanding that FBI hold off its investigation was, in part, an attempt to delay access to such materials.

And then, weeks after Steidel Wall said that those who were representatives could access the files for which he was being investigated, Trump informed her he was making Patel a representative.

I write to designate two individuals – Kash Patel and John Solomon – as my representatives for access to Presidential records of my administration, pursuant to the Presidential Records Act, 44 U.S.C. §§ 2201 – 2207, and 36 C.F.R. § 1270.44(a)(4).

Patel has made all sorts of claims about whether he has been given access to Trump’s documents at all.

But by his own public comments on May 5, the same day Corcoran first floated the idea of having Trump’s people review the documents already in hand, Patel gave the FBI even more reason to be concerned.

emptywheel Trump Espionage coverage

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