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How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

What Happened with the Potentially Privileged Documents Seized from Mar-a-Lago

Yesterday, SDFL AUSA Anthony Lacosta filed a sealed letter to Special Master Raymond Dearie along with the log laying out any disputes between the government and Trump over his potentially privileged documents.

Subsequent to that, Judge Aileen Cannon ordered unsealed the status report that Lacosta and Benjamin Hawk filed back on August 30. I will explain the two kinds of damage Judge Cannon did to Donald Trump in order to create an excuse to intervene in this matter — as I keep saying, Cannon caused the harm she intervened to fix.

For now, I want to talk about what happened with the potentially privileged material. Here’s a table of what we know about those documents.

Note that one page privileged document, item B-33. At least per the filter team, it may be the only clearly privileged document seized, one page out of 11,000 documents.

The warrant to search Trump’s beach resort required a privilege team to search his office. But (as members of that team explained in the hearing on September 1), they instead did the initial search of both the storage room and Trump’s office. As a result, the privilege team segregated 6 sets of information, which were catalogued on what I’ve called the SSA Receipt. The revised detailed inventory describes these boxes this way (note, these descriptions probably exclude the potentially privileged material, which is inventoried separately):

Item 4, which the status report describes as “the entire contents of a single drawer” in Trump’s office.

Three passports were originally in this drawer, which is why they were seized. They were returned on August 15. These documents were appropriately seized under the warrant because there were two classified documents in the drawer.

Items 29 through 33, which were in the Storage Room.

These boxes would have been appropriately seized under the warrant because all were stored in the place where boxes storing classified documents were stored. In fact, Item 29 had a Top Secret document in it and Item 33 has two empty staff secretary folders in it. Additionally, all are described to contain government documents, which were also authorized for seizure.

Two days after the search, on August 10, a Case Agent found a 3-page letter from law firm Morgan Lewis, “comingled with newspapers;” Morgan Lewis’ Sherri Dillon was named in Tish James’ motion to compel Trump’s deposition. So they sent the entire box to the privilege team, as described in the warrant. The box also included 4 pages of government documents treated as potentially privileged, including an email from the Air Force Academy’s coach.

By August 11, the privilege team had segregated out anything that  met their over-inclusive standard for potentially privileged documents from the rest of the documents, then sent the 7 boxes to the investigative team (which is, presumably, what led to the return of the passports days later).

On August 25, a case agent provided one more document to the privilege team:

39-page set of materials that appears to reflect the former President’s calls. (The majority of pages are titled “The President’s Calls” and include the Presidential Seal.) Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes.

One of these messages was from “Rudy,” though did not appear to constitute legal advice.

The privilege team separated all these potentially privileged documents into two categories:

Category A

This category includes 21 sets of documents for a total of 138 pages. Most are, “primarily government records, public documents, and communications from third parties,” which could not qualify as privilege. One document is a 3-page email to a White House email account, which the government maintains constitutes a waiver to attorney-client privilege. As noted, another is a printed email from the Air Force Academy’s head baseball coach with the word “PatC” on it.

For example, the Privilege Review Team agents identified and segregated a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “PatC” (perhaps a reference to White House Counsel Pat Cipollone) was written on the document in black marker (Item Number 4 in Exhibit A at FILTER A-005).

Another, as noted above, is one of the phone messages from the President’s Calls (we know this is a phone message because both are described as Item 21 in Category A), from “Rudy” and appearing to be a topic unrelated to legal advice.

Category B

This category consists of 43 sets of documents, for a total of 382 pages. The status report describes those as,

legal in nature (e.g., settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

According to the privilege team, just one of those documents appeared to be privileged. But way back on August 30, they proposed to give the originals of all these documents back to Trump. Then they tried again on September 1. Trump had to wait two more weeks before receiving these documents, so that Judge Cannon could use them as her basis for intervening in the case.

September 26 email

According to Trump’s objections, on September 26, the government provided an email newly identified by case agents (presumably in the course of reviewing the inventory). The government maintains the email is not privileged but Jim Trusty claims it is.

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

In addition to the document sorting, before the filter team shared any photographs documenting the search, both the filter agents and the filter attorneys reviewed the photographs to ensure no privileged documents were captured in the photo.

Update: Added explanation for Morgan Lewis letter, h/t Simon. Added observation that there may be only a single privileged page in the whole seizure. Corrected numerical error.

Trump’s Shaky Privilege to Hide His Pence Pressure

CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Go to emptywheel resource page on Trump Espionage Investigation.

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

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

Trump’s lawyers are not making arguments about law.

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

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

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

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

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

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

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

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

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

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

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

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

Consider the schedule Trump proposed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That we will honor and defend our Constitution.

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

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

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

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

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

Things could get really crazy in weeks ahead.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

UNKNOWN: Yeah, please.

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

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

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

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

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

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

[snip]

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

PAT CIPOLLONE: On the staff?

LIZ CHENEY: In the White House, how about?

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

ADAM SCHIFF: What about the president?

LIZ CHENEY: Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

In Motion for a Stay, DOJ Raises Prospect that Trump Leaked Classified Documents

In the government’s motion for a stay submitted to the 11th Circuit last night, it suggested the investigation into Trump’s stolen documents may have expanded to focus on whether the former President shared the content of highly classified documents with others.

It describes that Aileen Cannon’s order only permitted the government to review the classified documents for hypothetical risk of future disclosure. It notes that that would prohibit the government from investigating whether these documents have already been disclosed. It then raises the empty folders as a problem that must be solved, in part by identifying the patterns of Trump’s theft to identify what else he may have stolen.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

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

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Significantly, the government doesn’t even use language to suggest that these documents were compromised, without Trump’s involvement — that some fake Rothschild or a hotel valet had snuck into the closet and stolen documents. It suggests these documents may have been disclosed, intentionally and knowingly.

This is not the only hint in the filing that the investigation may have expanded beyond mere unauthorized retention of classified records.

The motion also describes that Trump’s lawyers might be witnesses, plural, suggesting that Jim Trusty could be hidden in the search affidavit as the FPOTUS Counsel 2 implied by the affidavit’s description of Evan Corcoran as FPOTUS Counsel 1 (Christina Bobb is referred to merely as Individual 2).

The government came very close to saying that Judge Cannon has prohibited the government from preventing leaks in process.

Judge Aileen Cannon Deems Grand Jury Subpoenas Toilet Paper

In Judge Aileen Cannon’s order blowing off national security in favor of Donald Trump’s claims of being a victim, she never once names the crimes under investigation.

Not the Espionage Act, 18 USC 793.

Not removing government documents, 18 USC 2071.

And definitely not obstruction, 18 USC 1519.

Her silence about the crimes for which a magistrate judge found probable cause is critical to the scheme behind her order.

That’s because — in a breathtaking paragraph — she suggests that the classification marks on the documents Trump stole are up for debate.

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion. [my emphasis]

Had she discussed the Espionage Act, she might consider that it doesn’t matter whether Trump claims to have declassified the documents. What matters is if they are National Defense Information.

Cannon’s silence about obstruction is even more outlandish. No one contests that these documents are marked classified! Trump has not even formally contested they’re classified. But the entire question is what to do about documents marked classified.

If the are marked as classified — which no one contests! — then they were responsive to the May 11 subpoena. And if Trump withheld documents responsive to the May 11 subpoena, he committed the crime of obstruction.

And that’s why Aileen Cannon doesn’t want to talk about the crimes under investigation here. Because once you do, then there’s no question but those documents marked as classified are either evidence of the crime, Espionage Act, or the crime, obstruction — and probably both.

Go to emptywheel resource page on Trump Espionage Investigation.

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

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

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

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

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

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

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

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

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

That’s par for the course of this order.

Go to emptywheel resource page on Trump Espionage Investigation.