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Donald Trump’s Contemptuous Leaking

A month ago, I noted that several stories about Trump’s engagement of a firm to search for additional stolen documents were wildly inconsistent.

WaPo and CNN both have stories about searches by a professional firm on additional Trump properties, looking for stolen classified documents.

In addition to at least three paragraphs that are affirmatively misleading (one that does not push back on a bullshit quote about how cooperative Trump has been, one that described Trump’s outright obstruction as a “breakdown … in trust,” and one that claims Trump is trying to avoid another high profile search when the further search was ordered by Chief Judge Beryl Howell) WaPo describes only searches of Bedminster and, later, Trump Tower.

Trump’s legal team hired an outside firm to carry out the search of his golf club in Bedminster, N.J., and, more recently, Trump Tower in New York, according to the people, who spoke on the condition of anonymity to discuss sensitive information.

In one paragraph, it describes that Trump’s lawyers told DOJ they did not turn up more documents, but in a follow-up, WaPo describes an attestation that may or may not apply to just Bedminster.

I did the post because of the inconsistency, but also because, in the past, when we’ve seen aggressive pitches from Trump like this (his cover story about putting a lock on the storage facility where he had stashed his stolen documents is another example), it has generally been an attempt to get ahead of something really damning.

Two days later, WaPo seemed to report that Trump had managed to get through whatever damning bit he was trying to hide. It stated as fact that Chief Judge Beryl Howell would not hold Trump in contempt.

A federal judge on Friday declined to hold former president Donald Trump’s office in contempt for not fully complying with a May subpoena to return all classified documents in his possession, according to people familiar with the proceedings.

U.S. District Judge Beryl A. Howell told Justice Department lawyers and Trump’s legal team to come to an agreement themselves over what actions or assurances by Trump’s office would satisfy the government, according to these people, who spoke on the condition of anonymity to describe sealed court proceedings.

“The President and his counsel will continue to be transparent and cooperative,” Trump spokesperson Steven Cheung said in a statement to The Washington Post.

But a report from Alan Feuer yesterday describes that Howell has not yet made a decision about whether to hold Trump in contempt or not.

At a court hearing held behind closed doors last month, Judge Howell put off ruling on the government’s contempt request. The judge has still not issued a decision, according to the people familiar with the matter.

As Feuer describes it, on Wednesday, Howell ordered Trump to share the names of the people who did the search with DOJ. Trump had tried to shield those names — purportedly out of concern about leaks, which has consistently been a bullshit line Trump’s lawyers have used. But it’s more likely his team was concerned that the PIs would have to appear before the grand jury themselves.

A federal judge has ordered lawyers for former President Donald J. Trump to give the government the names of the private investigators who searched Mr. Trump’s properties late last year for any remaining classified documents, part of what appeared to be a step by the Justice Department toward questioning the investigators about their efforts, two people familiar with the matter said.

The order, issued on Wednesday by Beryl A. Howell, the chief judge of the Federal District Court in Washington,

[snip]

The more recent spat began when prosecutors asked Mr. Trump’s lawyers for the names of the investigators who searched the storage facility and other Trump properties — among them, Mar-a-Lago; Mr. Trump’s golf club in Bedminster, N.J.; and Trump Tower in New York.

According to the people familiar with the matter, the lawyers offered to make the investigators available for questioning but wanted their identities shielded by a protective order, out of concern that the government might leak the information to the news media.

It’s certainly possible Trump worries that allowing an independent interview of these people will disclose areas where they were not permitted to search (or other games like the others Trump already got caught playing).

Whatever it is, though, this suggests that Trump continued to bullshit the press after his first attempts to do so regarding the follow-on searches.

And the lies to the press aren’t going to keep Trump from being held in contempt (and then jailed until he complies with a subpoena).

DOJ Moves for Contempt as Injunction Finally Lifted

I’m in transit and Google Fi is being useless so won’t say much about the two developing stories in the stolen document case.

But as WaPo and CNN are reporting, DOJ has asked Beryl Howell to hold Trump’s office in contempt for refusing to certify their searches for classified documents.

I guess my instinct that yesterday’s serial disclosures about additional stolen documents was just a cover story turned out to be correct.

Meanwhile, the 11th Circuit’s order vacating the Special Master order will now go into place and over the next day, DOJ will finally get the ability to question Trumpsters about the unclassified documents interspersed with classified documents.

Two Inconsistent Stories on Additional Searches of Trump’s Property

WaPo and CNN both have stories about searches by a professional firm on additional Trump properties, looking for stolen classified documents.

In addition to at least three paragraphs that are affirmatively misleading (one that does not push back on a bullshit quote about how cooperative Trump has been, one that described Trump’s outright obstruction as a “breakdown … in trust,” and one that claims Trump is trying to avoid another high profile search when the further search was ordered by Chief Judge Beryl Howell) WaPo describes only searches of Bedminster and, later, Trump Tower.

Trump’s legal team hired an outside firm to carry out the search of his golf club in Bedminster, N.J., and, more recently, Trump Tower in New York, according to the people, who spoke on the condition of anonymity to discuss sensitive information.

In one paragraph, it describes that Trump’s lawyers told DOJ they did not turn up more documents, but in a follow-up, WaPo describes an attestation that may or may not apply to just Bedminster.

Trump’s lawyers have told the Justice Department that the outside team did not turn up any new classified information during their search, according to people familiar with the process, and have said they utilized a firm that had expertise in searching for documents.

[snip]

The group first conducted a search of Bedminster, and Trump’s attorneys have now attested to the Justice Department that no further materials were found, two people familiar with the matter said.

CNN’s story, however, describes searches of four properties.

Lawyers for former President Donald Trump recently hired a team to search four of his properties for any potentially remaining classified materials, according to a source familiar the matter.

The team of two searched Trump Tower in New York, the Bedminster golf club and two other properties amid lingering concerns from the Justice Department that not all documents had been returned to the federal government.

And while CNN’s single source would not reveal what Trump’s lawyers told DOJ about the results, it specifically said that “they” did not make an attestation.

The source would not detail what they have told the Justice Department about the search, but did say they have not attested to the Justice Department that no new material was found during the search.

That double negative — have not attested that no new material was found — might either suggest the lawyers or those doing the search have their own questions. Or it might suggest additional documents were found.

If more documents were found, it would change DOJ’s options on venue for charges, making Southern District of New York, New Jersey, or possibly even Northern Virginia, depending on where any additional documents were found.

Update: WaPo has updated their story to reflect that classified documents were found in a storage facility in Florida. Which might explain a good deal of the discrepancy.

People familiar with the matter said the storage unit had a mix of boxes, gifts, suits and clothes, among other things. “It was suits and swords and wrestling belts and all sorts of things,” this person said. “To my knowledge, he has never even been to that storage unit. I don’t think anyone in Trump world could tell you what’s in that storage unit.”

There was no cataloguing of what was put in the storage unit, Trump advisers said — just as there was no cataloguing of what classified documents were taken to a room underneath Mar-a-Lago.

How Richard Barnett Could Delay Resourcing of the Trump Investigation

In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

Trump Finally Describes How FBI Injured Him: By Taking his Celine Dion Picture

The most important part of the hearing in the stolen document case before the 11th Circuit Tuesday came when Chief Judge William Pryor asked what the 11th Circuit should do if they find for DOJ.

It seemed to me that because this is an appeal from an injunction for purposes of appellate jurisdiction, what we would do if you’re right we would vacate the injunction, vacate this order on the ground that there is a lack of equitable jurisdiction. But that would be it. What we would have jurisdiction over is not the entire case. We would have jurisdiction, if we have jurisdiction, it’s over that order, granting an injunction. Isn’t that right, technically, instead of reverse and remand, with instructions, it’s really just vacate.

If Pryor’s original view was right, it would allow DOJ to use the documents in a prosecution of Trump, but would leave Judge Aileen Cannon with the authority to still meddle in the case.

Sopan Joshi, arguing for DOJ, disagreed and walked Judge Pryor through a SCOTUS precedent that says that the Court would necessarily have the authority to reverse the decision entirely.

Joshi must have persuaded, to some degree, because Pryor decided,

If you’re right, what we’re really talking about is a middle position, that is, I was right about vacate but you’re right about the authority to remand with instructions to dismiss. Ordinarily if a District Court lacks jurisdiction, that’s what we do. We vacate and remand with instructions to dismiss.

Joshi replied, “Fair enough, and I’m not going to fight you too hard on it.

Judge Britt Grant then piped in to ask Joshi whether,

We, in your view, if we decide there was not equitable jurisdiction in the first place we wouldn’t need to go through the bases of jurisdiction for the injunction and Special Master or anything like that. The lack of jurisdiction as it was brought would resolve all the questions in your mind. Is that right?

Joshi was pretty happy with that too. “I think that’s right.”

This technical debate, which took up about a quarter of the hearing, not only betrays that at least two of the 11th Circuit Court judges are thinking of how to give DOJ what it wants, but how to do so procedurally. And they seemed persuaded, ultimately, that they should just vacate the entire Special Master appointment altogether, ending the entire Special Master process.

Things didn’t go so well for Jim Trusty, Trump’s lawyer. Just as he started to get going on claims about Biden ordering a search on a political candidate’s home (a lie), Grant interrupted and corrected his use of raid: “Do you think ‘raid’ is the right word for execution of a warrant?”

When Trusty tried to claim that this warrant had been a general warrant, Pryor scolded, “but you didn’t establish that it was a general warrant,” the first of multiple times when the judges reminded Trusty he had not made the arguments he presented today before, not before any court. Grant pointed out that Trusty was misstating what their purported goal was, which was originally to review for privilege.

Then, as Trusty reeled off the things FBI seized that, he said, were incredibly personal, Grant asked, “Do you think it’s rare for the target of a warrant to think it’s overreaching?”

Mic drop!

She was back again, a few minutes later, as Trusty tried to argue what he thought the binding precedent should be, rather than what it was. Grant got to the core issue, which was that Trusty was asking for special treatment.

If you set aside, which I understand that you won’t want to do, but if you do for the purposes of this question, set aside the fact that the target of the search warrant was a former president, are there any arguments that would be different than any defendant, any target of a warrant who wished to challenge a warrant before an indictment.

Trusty tried to reframe her question. “We’re not looking for special treatment for President Trump. We are recognizing there is a context here where no President–”

Pryor interrupted.

I don’t know that that’s particularly responsive. The question was, set aside the fact that the subject of the warrant is the President. What’s to distinguish this from any other subject of a criminal investigation?

When Trusty tried to raise the concerns that he claimed Trump had had all along, Pryor responded, “I don’t see where that case has been made.” Again, Trump didn’t make the arguments he needed to, in September, to get the relief he is demanding now.

That’s when Pryor laid out the real practical problem with Trusty’s claims.

We have to determine when it’s proper for a District Court to do this in the first place, which is what we’re looking at now. And the last question was one posed that makes clear that basically, other than the fact that this involves a former President, everything else about this is indistinguishable from any pre-indictment search warrant. And we’ve got to be concerned about the precedent that we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction, and interfere with the Executive Branch’s ongoing investigation.

After Trusty started wailing more about personal documents, Pryor described,

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

That’s when Trusty revealed that FBI took a picture of Celine Dion.

Dion, remember, refused Trump’s request to play his inauguration.

Now Trump’s grave injury all begins to make sense! FBI hurt him by taking his Celine Dion picture. All the wailing and screaming since August now begin to make sense.

Trusty went on blathering, claiming — for example — that the injunction hadn’t harmed the government because they had months before and after the seizure to conduct their investigation. When Trusty claimed the injunction was overblown, Pryor invited,

Think of the extraordinary nature from our perspective of an injunction against the Executive Branch in a pre-indictment situation. Under the separation of powers, the judiciary doesn’t interfere with those kinds of prosecutorial and investigatory decisions. Right? That’s the whole nature of this kind of jurisdiction.

After Pryor asked about a new argument Trusty was making, Joshi reeled off the five different arguments that Trump has advanced.

Joshi closed with the practical fear Pryor had raised: If Trump has his way, every “defendant” will demand pre-indictment intervention.

This emphasizes how anomalous and extraordinary what the district court did her was. And I heard Mr. Trusty agree that there was no difference between this and other defendants. And I think that just emphasizes how the anomalous could become commonplace. And we think the court should reverse.

Andrew Brasher seemed more sympathetic to Trusty’s arguments, at one point asking how much more of a delay this would cause, as if he might let this all play out (and that’s what would happen if the 11th didn’t entirely vacate Cannon’s order.

But ultimately, Trump was treated as if not a defendant, then at least someone who could create untenable rights for other defendants, which sounded like something neither Pryor nor Grant were willing to do.

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

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

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

It’s not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11th Circuit Showdown: The Fight to Get the Documents to Charge against Trump

A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:

Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.

For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).

Two documents that are likely to be charged also include unclassified information:

  • The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
  • The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.

Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.

That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).

Government Asks Raymond Dearie to Recommend Judge Cannon Lift Injunction on 2,794 Documents

The global issues briefs from DOJ and Trump in the Special Master proceeding have been unsealed (DOJ, Trump).

The focus of both filings address what DOJ calls Trump’s gamesmanship but which is basically the kind of Calvinball that Judge Aileen Cannon appears to love. For many, if not most, of the 2,916 documents at issue, Trump’s argument appears to be:

  • If valuable then Tom Fitton (meaning, the misapplied argument that the President can designate anything “personal” and therefore effectively take possession of Presidential Records merely by sticking it in a box)
  • If not Tom Fitton, then Executive Privilege (meaning, if Raymond Dearie is not impressed by misapplied Tom Fitton logic, then he should allow Trump to withhold documents under a privilege claim)

DOJ provides a lot of reasons that’s nonsense, including that if Trump thinks something is personal then it obviously can’t be privileged.

A key part of the argument, however, is that even if Trump were able to invoke Executive Privilege against the government, DOJ would overcome that here because of the criminal investigation.

Plaintiff’s assertions of executive privilege fail under United States v. Nixon, because the government has a “demonstrated, specific need” for the seized records in its ongoing criminal investigation. 4

4 Because the government satisfies United States v. Nixon’s “demonstrated, specific need” test, which applies to a sitting President, the Court need not consider Plaintiff’s status as a former President for purposes of this analysis. [citations omitted]

Trump dodges addressing the Nixon standard by complaining that he hasn’t seen the unsealed affidavit that authorized the search, and so the government has failed to reach the Nixon standard.

Although crucial to the executive branch’s decision-making processes, executive privilege is neither absolute nor unqualified. Nixon, 418 U.S. at 706. Rather, the Supreme Court has recognized that the privilege must “yield to the demonstrated, specific needs for evidence in a pending criminal trial.” Id. at 713. In providing this standard, the Supreme Court clarified that in order to overcome an assertion of executive privilege, the party seeking the privileged material must “clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.” Nixon, 418 U.S. at 700. The Supreme Court again affirmed this standard in Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004).

Currently, the affidavit in support of the search warrant which authorized the search of Mar-a-Lago is under seal, and, therefore, inaccessible to Plaintiff. Plaintiff is therefore unaware of the specific arguments relied upon by the Magistrate in issuing the warrant authorizing seizure of the documents at issue. Given that, Plaintiff must take the position that the Government has failed to clear the three hurdles articulated by the Court in Nixon.

In other words, in a civil challenge to a lawful warrant, Trump is saying he should be able to retain stuff by default until he has seen the warrant against him.

Which is one reason why something else the government does is so interesting. It asks Dearie to recommend that Judge Cannon lift the injunction on all the documents — 2,794 out of 2,916 — over which Trump has not invoked either Executive and/or Attorney-Client privilege.

Finally, as the government has noted previously, the categorization of the records at issue as Presidential or personal does not ultimately affect the government’s ability to use and review them for criminal investigative purposes. See D.E. 150 at 4 n.*. Plaintiff has asserted attorney-client privilege only as to one document out of 2,916 documents at issue here, and Plaintiff has asserted executive privilege as to only 121 documents. As to the remaining 2,794 documents, Plaintiff does not assert any privilege that would bar the government’s further review and use of these materials for purposes of the ongoing criminal investigation. Although Plaintiff and the government disagree as to the proper categorization of numerous records as “personal” or “Presidential” for the purposes of PRA, neither categorization would supply a basis to restrict the government’s review and use of those records. Indeed, personal records that are not Presidential records or government property are seized every day for use in criminal investigations. Thus, absent any specific justification from Plaintiff for continuing to restrict the government’s review and use of the 2,794 records for which Plaintiff has not asserted any privilege, there is no reason to maintain the Court’s injunction as those those records.

This takes Judge Cannon’s premise on its face, as if this is just a normal Special Master review to ensure that the government doesn’t access any privileged documents for an investigation. If that were the case, she would easily approve the sharing of all documents over which the plaintiff had not made any privilege claim.

It may or may not work. But if Dearie were to act on this request immediately, then Cannon would either have to override it or grant it before the 11th Circuit makes its final decision on the appeal. Judge Cannon’s intervention is inappropriate on its face. But if she refuses to release non-privileged documents to the government, it will become clear that she is doing nothing more than attempting to thwart the criminal investigation of Trump.

Judge Raymond Dearie Prepares to Consult with the Archives

In his last act before today’s election, Special Master Raymond Dearie issued the following order:

I’ve added the new dates to the timeline below.

The December 1 status conference, which has attracted the most attention, is scheduled for such time as Dearie will have had a chance to review the two sides’ disputes. More importantly, it comes after the 11th Circuit will have this issue fully briefed — and could well have decided to stop the entire process. It will also come after most results of the election will have been decided. It will be public, so Trump will have to make his bid to claw back all the documents he stole before the press.

The notice that he will consult NARA is a bit more interesting. As Dearie notes, this was specifically permitted in Judge Aileen Cannon’s order of appointment. At the first status hearing, Dearie said he would alert Trump before making such consultation. This order serves primarily to tell Trump that this is his chance — while his team is writing their 11th Circuit response and drawing up their general document — to weigh in. But nothing will prevent Dearie from making this consultation.

Dearie knows a good deal about what NARA will say, because the Presidential Records Act is clear. Any document Trump saw as President is a Presidential record. Most of Trump’s claims so far are without merit, even ignoring that the documents were seized with a valid warrant and have evidentiary value.

But the order will ensure that Trump makes a three-page argument about how he is above the PRA. And it’ll provide another authority on which Dearie can rely to rule that Trump cannot convert government documents to his personal property by the mere act of stealing them.

Update: Tweaked timeline.

Timeline

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

October 25: Trump rethinks and submits his version of disputes

October 26: Both sides agree to brief general issues; Dearie resolves the remaining privilege issues and accepts briefing dates

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 7: Dearie reveals he will consult with NARA

November 8: Election Day; Principal briefs due to Dearie

November 10, 2022: Trump revised deadline to 11th Circuit; deadline to complain about consultation with NARA

November 12 (10 days after November 2): Both sides provide disputes to Dearie; response briefs to Dearie

November 17: DOJ revised reply to 11th Circuit

December 1: Status conference

December 16: Dearie provides recommendations to Cannon

In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

 

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.