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Aileen Cannon Bows to Donald Trump

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Aileen Cannon has made official what has been obvious for some time. She has no intention of moving forward on Donald Trump’s stolen documents trial with any kind of order or speed.

The Court also determines that finalization of a trial date at this juncture—before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming—would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury.6 The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.

Instead, she will entertain every one of his frivolous motions for months and months and months.

Again, none of this is surprising. But it is Cannon’s commitment to let a man accused of stealing hundreds of classified documents potentially regain the White House with no accountability for his alleged theft.

Stan Woodward’s Manufactured Scandal about Box A-15

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As I have noted, the FBI agents who searched Joe Biden’s garage rearranged the contents of the single box which Robert Hur attempted to prove Joe Biden had deliberately curated when they moved the contents from the beat-up box found in the garage to a new one.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Had Hur been able to prove that the contents of this box had been in Biden’s Virginia home when he mentioned classified records to his ghost writer in 2017, and had Hur been able to disprove that that reference wasn’t to other documents Biden had recently returned to the White House or to the letter Biden sent Obama about Afghanistan, and had Hur been able to rule out Biden simply losing track of those files, and had Hur been able to prove that Biden himself and not staffers had been packing and repacking the box, then the order of the box would have been crucial to proving a case against Biden.

Hur hung much of his theory of willful retention on the other documents found with two folders containing classified Afghan documents.

Which is to say, the FBI’s sloppiness would have doomed the case if there were ever a case to bring.

Now, Walt Nauta attorney Stan Woodward is trying to claim the same with regards to the documents seized from Mar-a-Lago, to great effect among right wing propagandists.

He made the claim in a bid to get a delay in filing his CIPA 5 notices (which describe what classified information he’d need to release at trial).

Following defense counsel’s review of the physical boxes, the unclassified scans of the contents of the boxes, and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information. For example, Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10. The FBI Index indicates that the classified documents removed from the box (and where a cover sheet was inserted in its place) appear in the order listed below. The contents of the unclassified discovery pertaining to Box A-15 begins at USA-00340924, with the first inserted at the second page of the scan, or Bates labeled USA-00340925:

Per the FBI Index, the first purportedly classified document removed from box A-15 was assigned FBI Index code “ccc,” its classified bates begins at 0079, is one page, and bears the classification marking of “CONFIDENTIAL.” For reference, the physical cover sheet from the actual box for document “ccc” appears as depicted in the below image:

To state the obvious, a “Secret” document is not the same as a “Confidential” document. To be sure, a slip sheet in in Box A-15 does match the one scanned as part of unclassified discovery (at USA-00340925):

However, there is no way for defense counsel to know that the slip sheet depicted above actually corresponds with USA-00340925. And the slipsheet labeled “ccc” does not appear for several hundreds of pages later than the FBI Index indicated it would. Defense counsel’s review of these materials calls into question the likelihood that the contents of the physical boxes remains the same as when they were seized by the FBI on August 8, 2022.

Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time. Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.

Jack Smith claims this is all a delay tactic invented because Woodward’s other recent delay tactics fell through.

But he concedes, first of all, that after the search team ran out of cover sheets because there were far more classified documents than they imagined, they used hand-written papers to mark where classified records had been found.

The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

And then they made sure that each box was handled separately, to ensure that the contents of each individual box remained separate. They failed, however, to keep all the boxes in the same order.

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

3 The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court’s question of whether the boxes were “in their original, intact form as seized” by stating “[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents”).

While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient. Unlike Biden and Trump, Nauta is not alleged to have curated any boxes. He is not accused of willfully retaining classified documents at all.

So the order of documents within the particular boxes is meaningless to his defense (though Trump, who has asked to file a sur-reply piling on, might make great use of this argument if this ever goes to trial).

Plus, it’s worth noting which box Woodward is focused on, A-15. That box happens to have, easily, the biggest number of classified documents in it, 32; a third of the items originally in the box were marked classified. And probably 11 of them, those marked Confidential, have since been declassified and provided in unclassified discovery.

In total, the FBI seized 77 documents with classification markings from the 12 boxes that were seized from the Storage Room, but of those 77 documents, 26 have now been produced in unclassified discovery.

No documents already declassified would be pertinent to a CIPA filing.

In other words, Woodward has selected a box that includes both official and handwritten slip sheets, had no Top Secret documents, but a lot of less classified documents.

Something (he knows from his Jan 6 crime scene cases) a shameless propagandist will wail about.

But not something substantive to Nauta’s case.

Mark Meadows’ Proffer

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I continue to dig through the document dump Judge Aileen Cannon finally released the other day.

The dump included 70 exhibits (some FOIAed documents) submitted in conjunction with Trump’s motion to compel discovery and a few exhibits submitted with the government’s response.

The most titillating of the latter set is a November 2022 interview with Person 16 (whom I suspect to be Eric Herschmann, in part because Herschmann relishes giving titillating interviews in which he calls other lawyers morons).

But for the moment, I want to look at Person 27’s December 2022 proffer.

While the government is coy about the identity of Person 16, they’re not hiding Person 27’s identity: It is Mark Meadows.

The passages below, matched to the corresponding exhibits, makes it clear that Person 27 is Trump’s former Chief of Staff. Said Chief of Staff briefly got involved in the document recovery effort after NARA first threatened to make a referral to DOJ, then threatened to deem the boxes Trump had taken destroyed. Said Chief of Staff traveled to Mar-a-Lago in October 2021 (at a time when discussing the January 6 investigation would have been fruitful) and while there asked if Trump wanted help searching boxes, only to be told that Trump didn’t need help returning documents he wanted to keep.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

These passages, collectively, serve to rebut Trump’s claim that the involvement of Biden White House attorney Jonathan Su was in any way investigative or improper; the passage shows that Patrick Philbin involved Su, his successor as White House Deputy Counsel, and the White House had to further intervene when Meadows tried to reach out to a White House Office of Records and Management person, Person 40, directly.

This ABC story describing Meadows’ testimony, describing offering to help but being rebuffed, further corroborates that Person 27 is Meadows.

The former chief of staff also told investigators that shortly after the National Archives first requested the return of the official documents taken to Mar-a-Lago in 2021, he offered to Trump that he would go through the former president’s boxes to retrieve the official records and send them back to Washington. Meadows told investigators Trump did not accept his offer, according to sources.

So Government Exhibit C is a December 6, 2022 proffer from Mark Meadows.

I’m not so much interested in the content of that proffer. As ABC has reported, Meadows’ testimony was iterative, slowly evolving over at least three interviews as he was presented with more evidence of details that Jack Smith knew. Aside from a mostly redacted reference to Trump’s delegation of declassification authority (which may relate to the effort to declassify the Crossfire Hurricane binder and which might not be entirely true), the description of his trip to Mar-a-Lago to offer to help is the most interesting bit in this proffer.

But that’s the thing about proffers, offered by one of the best attorneys representing any Trumpster, George Terwilliger, offered before Beryl Howell overruled any Executive Privilege claims, and offered before the Georgia indictment made Meadows’ operative January 6 story told in DC less sustainable.

Proffers are the story you want to tell, not the full story.

As I wrote last August, after the first of ABC’s big scoops,

[T]his is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise.

There are a number of things to which Meadows eventually testify, per ABC’s reporting, that are not in this proffer. The most notable pertains to his ghost writers, on which topic his testimony evolved to accept that they were probably right that Trump was sharing classified documents in 2021.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said. Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

According to ABC, where Meadows’ other testimony would evolve to is that he would have been more diligent than Trump returning stolen documents.

Meadows also told investigators that he would have responded differently than Trump when the National Archives first asked Trump to return all remaining presidential records in his possession, and would have been very diligent in his handling of the initial search for documents to return to NARA, sources familiar with the matter said.

It’s unclear if there’s an “if” involved in this conditional statement, such as “if he knew Trump was stealing classified documents.”

That’s interesting, because in that proffer, Meadows claimed not to believe Trump had Presidential Records at all.

In July 2021, [Philbin] informed [Meadows] that NARA had contacted [Philbin] regarding missing boxes of documents. [Meadows] was already planning to travel to Mar-a-Lago for an unrelated meeting and offered to look for the missing boxes while [he] was there. [Meadows] was skeptical there were any presidential records as [he] believed, based on [his] experience with FPOTUS at the White House, that the boxes likely only contained newspapers.

Again, there’s a pretty big chance that this particular claim evolved, just like Meadows’ explanation for why he edited a really damning description from his ghost writers. The proffer is a baseline, a place from which prosecutors could slowly coax testimony closer to the truth, all the while locking in useful testimony to rebut Trump’s most outlandish claims. In this case, after all, the testimony is critical to rebutting Trump’s complaints about the involvement of Su, whether or not the testimony was entirely forthcoming, even while not giving anything away.

And I’m interested in it for that reason as well.

This proffer doesn’t tell us how Meadows would later testify. It doesn’t give anything away.

Robert Mueller’s team tried to flip witnesses against Trump, only to find that Trump bought them off with pardons — something that Person 16 describes already got promised to Walt Nauta. Here, there’s a far larger cast of characters, including people like Meadows who are central to all of Trump’s suspected crimes and also likely to welcome an offer of a pardon in exchange for loyalty. This slow squeeze is a different approach.

And along the way, Jack Smith got useful testimony — testimony that will give him what he needs to go to trial — but testimony that also can be used to inch closer to the truth.

Trump’s Nuclear Documents Were Mixed with Post-Presidential Press Clippings

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Some of the most interesting documents from the exhibits released with Trump’s motion to compel discovery yesterday pertain to the review of the original 15 documents returned in January 2022. This email thread within NARA describes an initial review of the documents. And these tables describe what the FBI found on initial review.

Together, they go a long way to describing why FBI had to pursue a criminal, rather than just a countrintelligence, investigation.

The initial review was written on January 18, the same day the 15 boxes arrived in DC. That initial review and a follow-up confirmed that NARA had received the things they had originally asked for: the weather map that Trump had altered, plus an accordian folder including the other documents they were seeking.

There was one accordian folder in the mess so it stood out. It contained, among other things, the Obama letter and North Korea correspondence. We need to verify that all of the correspondence is in there. But I think we are in good shape.

But even before discovering that, the person who wrote the memo described how an initial glance revealed classified documents, and a closer look after moving the boxes to a SCIF revealed news clippings that post-dated Trump’s presidency.

My plan was to glance into each box before I shelved it so I could give y’all a high level overview. As I fanned through the pile of newspapers at the top of the first box, I found several unfoldered classified docs in between some of the newspapers. So I took all the boxes to the SCIF. The first box I picked up in the SCIF had a newspaper on top that was post 1/20/2021. At that point I decided to take a closer look in each box to see if there are other issues that you three, David, and Deb might want to know about sooner than later.

From the start then, NARA knew that someone else at Mar-a-Lago had been accessing classified information after the end of his presidency.

For comparison, the FBI found that there were post-VP folders in a box with the Afghan documents at the core of Robert Hur’s investigation into Biden’s classified documents, but those were separate folders.

The person described that most of those classified documents — as claimed by Trump’s lawyers — were “state briefing papers and briefing cards” prepping Trump to talk to foreign leaders. But they “saw several docs that I think are PDBs” and “also found an incredibly sensitive SAP [Special Access Program] document.”

The person also found several things that Congress had requested.

I did see some material related to 1/6 and COVID. And at close glance I believe one of the classified docs is responsive to a third Congressional request. So we will need to review all of these boxes.

In other words, from the start there were two reasons for NARA to look more closely: the classified documents, but also the documents that Congress had already requested.

The FBI report, done a month later, provides three tables categorizing the classified documents found in those boxes. The single SAP document found by the NARA person, for example, is a 6-page memo dated to 2019.

In box 3, the FBI found three FRD (Formerly Restricted, an Atomic Energy Act designation that Presidents cannot override by themselves) documents totalling 57 pages.

All the FRD documents date to November 12, 2019, so they may pertain to Iran’s decision to resume enrichment at their Fordow facility announced on November 6.

Behrouz Kamalvandi, spokesman for the Atomic Energy Organization of Iran, said on Nov. 6 that 696 of the centrifuges allowed at Fordow would be used for enriching uranium up to 4.5 percent uranium-235, slightly above the 3.67 percent U-235 limit set by the deal. The remaining 348 machines will be used for medical isotope production, he said.

The International Atomic Energy Agency (IAEA) confirmed in its Nov. 11 report that Iran began enrichment at the site on Nov. 9.

This is the fourth step Tehran has taken in breach of its JCPOA commitments over the past six months. In May 2019, Rouhani said Iran would “reduce compliance” with its nuclear obligations under the deal in response to the Trump administration’s withdrawal from the deal in May 2018 and its reimposition of sanctions in violation of the accord. (See ACT, June 2019.)

The other parties to the deal (China, France, Germany, Russia, the United Kingdom, and the European Union) criticized Iran’s decision, but said they remain committed to preserving the nuclear deal.

In a Nov. 11 joint statement, the foreign ministers of France, Germany, the UK and the EU foreign chief said the Fordow decision “represents a regrettable acceleration of Iran’s disengagement” from its commitments under the nuclear deal.

The FBI noted that the single NATO document, a slide dated two days after the FRD ones, would trigger treaty obligations.

I argued in October 2022 that Trump’s strategy with these 15 boxes curated personally by Trump appear to mirror Trump’s disinformation strategy generally: to bury his crimes behind literal and figurative press clippings. It sounds like these initial documents actually had a higher proportion of press clippings than the documents ultimately seized in the Mar-a-Lago search.

But he tripped up: By including post-presidential clippings amid his nuclear documents, Trump gave investigators more reason to look, rather than less.

Trump’s White House Didn’t Archive Twitter DMs

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After a long wait, Judge Aileen Cannon has finally docketed the exhibits behind Trump’s motion to compel discovery in the Trump stolen documents case. Much of the dispute centers on claims that the Archives exhibited political bias because they wanted to archive Trump’s presidential materials.

As such, the exhibits include details about NARA’s efforts to archive the Twitter accounts Trump and others used during their tenure. NARA would later send Carol Maloney a version of this in 2022, which focused attention on tweets that people like Ivanka had deleted.

As that letter revealed, the exhibit reveals that Trump didn’t start automatically preserving tweets until 2018, but took quite some time to include everyone in the archiving process.

Whereas Ivanka’s deleted tweets seemed particularly important in 2022, Andrew Giuliani — who had contact with Kellye SoRelle — look more important from this vantage.

But the detail that takes on most new significance given what we’ve learned since is that the White House didn’t choose to archive DMs.

Again, this was in that 2022 letter to Maloney. But we now know that when Xitter tried to refuse to turn over material from Trump’s account, Jack Smith pointed to the incomplete nature of what NARA had as one of his bases for needing to go to Xitter directly.

I still doubt that was the most important item that Smith was looking for. But Trump’s earlier failures may have been part of what gave Smith cause to demand more important information on attribution from Elon Musk.

emptywheel Makes CIPA History

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Yesterday, Judge Aileen Cannon issued a surly order, acceding to Jack Smith’s request to protect witnesses. In reversing herself, Cannon scolded Smith for not making a more fulsome case to seal information.

Only now, after failing to meaningfully “raise argument[s] or present evidence that could have been raised” in these responses, Wilchombe, 555 F.3d at 957, the Special Counsel moves for reconsideration and argues, in no uncertain terms, that the Court committed “clear error” by applying an unobjected-to legal standard [ECF Nos. 267, 282]

Ultimately, Cannon argued the 11th Circuit precedent on this — but not on other — types of pretrial motions is undecided.

Having done so, the bottom line is this. The Eleventh Circuit has not specifically addressed the instant question: whether, in a criminal proceeding, the First Amendment qualified right of access attaches to discovery materials referenced or attached in support of a publicly filed Rule 12(b) motion to compel discovery under Rule 16. Nevertheless, the most faithful application of Supreme Court and available Eleventh Circuit authority is that Defendants’ MTC in this case is not subject to a public right of access, whether constitutional or common law in nature, because it is a still, ultimately, a discovery motion as distinct from a substantive pre-trial motion requiring judicial resolution on the merits.

Remember: One reason Trump has these materials to attempt to publicly release is because Smith was more generous in discovery than the rules require. Cannon did not permit Smith to seal information that would otherwise be Jencks, aside from information identifying witnesses.

The Court reaches a different conclusion as to the Special Counsel’s broad-based request to seal the substance of all substantive Jencks statements referenced in and/or attached to the MTC [ECF No. 278 p. 2 (arguing for wholesale sealing of potential witnesses’ statements to avoid “influenc[ing] the testimony of other witnesses or the jury pool”)]. By granting this sweeping and undifferentiated request—which the Special Counsel also raises in seal requests associated with Defendants’ substantive pretrial motions [See ECF No. 348 pp. 6–7]—the Court would be authorizing the categorical sealing of large portions of the record attached in support of critical
pretrial defense motions.

Meanwhile, in SDNY, I won (or rather, Judge Jesse Furman used my intervention (and that of Inner City Press) as an excuse to grant disclosure of something even more rare: Redacted transcripts from the CIPA 6 conference in the Josh Schulte case.

[T]he Court concludes that CIPA overrides any common law right of public access to the transcripts of a closed CIPA Section 6 hearing, at least where, as here, the court determines that the classified information may not be disclosed or used at trial. But the Court concludes that the public has a qualified right of public access to such transcripts under the First Amendment. It follows that the transcripts at issue here, redacted to protect national security or to preserve other higher values, must be unsealed.

As Furman noted, he had already disclosed some of this in a conference on jury instructions; he had distinguished those who disseminated already-released classified information if they knew it was classified (and therefore, by re-disseminating it, would confirm that it was classified) from those who did not have means to know.

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to [] extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

So all of which is to say I think I have come around to the view that merely sharing something that is already in the public domain probably can’t support a conviction under this provision except that if the sharing of it provides something new, namely, confirmation that it is reliable, confirmation that it is CIA information, confirmation that it is legitimate bona fide national defense information, then that confirmation is, itself, or can, itself, be NDI. I otherwise
think that we are just in a terrain where, literally, there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak.

Furman has given the government an opportunity to further redact the transcripts, but ordered them otherwise released on May 3 — meaning they’d be available before the follow-up hearing in the Assange extradition case, on which — because they pertain to the First Amendment — they may have bearing.

I’m not entirely sure this move is as unprecedented as Furman makes out. Some of the CIPA materials in the Scooter Libby case were released.

But particularly because this may affect the Assange extradition and particularly because the CIPA hearings in the Trump case are sure to be contentious, I would not be surprised if the government appeals this decision.

Thanks, again, to National Security Counselors’ Kel McClanahan to agreeing to argue this for me. You can support them here or here.

Update: Here’s my post explaining the High Court order inviting assurances about Assange’s First Amendment protections. DOJ has 6 more days to issue those assurances.

Mr. Smith Goes to SCOTUS

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Yesterday, Jack Smith submitted his brief on Trump’s immunity claim to SCOTUS. I’m working on a post on it, but thought I should go ahead and post this stub so people can chat until that’s done.

Bullshit and Also, Aileen Cannon, Post

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I know you all probably want a thread where you can talk about Aileen Cannon’s 3-page order denying Trump’s motion to dismiss based on bullshit claims about the Presidential Records Act.

For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.

Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.

Fine, fine, have at it. She claims Jack Smith is the one making nutty requests, not herself.

Lee Kovarsky, who generally has a great read about the appellate posture of such things, warns that it’s unlikely Smith will ask for a writ of mandamus, but might ask for her recusal, which probably won’t work.

But really, I’m more immediately interested in this superb quote Will Oremus included in a WaPo article describing disgruntled new owners of a Xitter blue check, which may be my best ever quote in a mainstream publication.

Marcy Wheeler, an independent journalist covering national security who greeted her blue verification badge Wednesday by posting an expletive, said she remains on X mostly to monitor right-wing narratives and disinformation so she can push back on them. She said she believes the verification changes are part of an effort to restore X’s status as a “public square” so that Musk can use it to “mainstream far-right ideas.”

On Thursday, Musk amplified various posts from verified X users defending a Jan. 6, 2021, suspect, decrying a rise in the “foreign-born” population under President Biden, highlighting crimes by Syrian migrants, mocking diversity and inclusion programs, and suggesting that leftists want to disarm American citizens “because they intend to do things that American citizens would want to shoot them for.”

In between, he agreed with a post that said that “a blue checkmark is a stamp of authenticity.”

As I said, have at it!

Jack Smith to Aileen Cannon: Treating Non-Lawyer Tom Fitton’s Theories as Law Will Lead to Mandamus

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Both Trump and Jack Smith have responded to Aileen Cannon’s whack order to write proposed jury instructions as if the Presidential Records Act says something it doesn’t. Neither are all that happy about it.

Trump used his response to claim that having the jury assess whether Trump really did make these documents personal records rather than simply steal them would put them in the role that, he’s arguing, only a (former) President can be in.

Smith — as many predicted — spent much of the filing arguing that Cannon cannot leave this issue until jury instructions because it must have an opportunity to seek mandamus for such a clear legal error; they cite the 11th Circuit slapdown of Cannon’s last attempt to entertain this fantasy in support.

Along the way, though, Smith also did something I had hoped he would do: explain where, and when, Trump’s own whack theory came from in the first place.

It came from Tom Fitton’s Xitter propaganda in response to the public report, in February 2022, that Trump had returned documents, including classified ones. But even after Fitton first intervened, Trump’s handlers continued to treat any remaining classified documents as presidential records for months.

On February 8, 2022, the day after the Washington Post article was published, the president of Judicial Watch posted the following two statements on Twitter5
:

Immediately after posting the second Tweet, the Judicial Watch president sent to an employee in Trump’s post-presidency office a link to the Tweet and offered to discuss the issue with Trump. A few hours later, the Judicial Watch president sent the same person his analysis of the case Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That evening, the Judicial Watch president circulated to the employee a proposed public statement for Trump’s consideration, which included language that the PRA and judicial decisions gave Trump the right to keep the documents he returned to NARA. The statement never issued.

Around this same time, the Judicial Watch president, who was not an attorney, told another Trump employee that Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.”6 Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.

Smith doesn’t, however, draw out the implication of this explicitly.

Not only has Trump been falsely suggesting — without evidence — that he did designate these documents personal records. He couldn’t have done so, because he didn’t know of this theory until over a year after he stole the documents.

But Cannon is such a chump that she has been chasing a theory spun up by Fitton, someone who has only an English BA.

Cannon may well respond poorly to Smith’s use of 20-some pages to lay all this out. It’s the kind of thing that routinely elicits miffed responses from her.

At this point, though, it seems Smith is simply laying a record for a challenge at the 11th Circuit.