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Trump Needs Cleared Lawyers, Not Just Any Lawyers

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WaPo has a 28-paragraph article on Trump’s scramble to find lawyers to appear at his arraignment today that doesn’t mention several things that are undoubtedly making the search harder.

First, there are all the details in the indictment that reveal how much information Trump withheld from his lawyers: not just the location of the files Evan Corcoran needed to search on June 3, 2022 (and Tim Parlatore tried to search in November and December, only to find none of the documents that remain unaccounted for), but also the sensitivity of the documents he had them claiming before Courts were merely personal records.

Several prominent Florida attorneys declined to take Trump on as a client after two of the key lawyers handling the documents matter — Jim Trusty and John Rowley — resigned last week, according to people familiar with the matter.

Trusty and Rowley’s departure was sudden and unexpected, leaving Trump jockeying to identify a lawyer ahead of his Tuesday appearance in federal court in Miami, where rules require practicing attorneys to be a member in good standing of the Florida bar or to be sponsored by one before appearing.

All three lawyers who quit — plus Lindsey Halligan, whose status remains uncertain — signed a letter to Congress claiming that the organization of the boxes returned in January 2022 merely reflect the result of haste and sloppiness by White House staff.

This organization of materials (i.e., schedule of calls for the day, insert page for briefing sheet to prepare for the call, newspapers from the same day) indicates that the White House staff simply [having] swept all documents from the President’s desk and other areas into boxes, where they have resided ever since

[snip]

We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws. Rather, all indications are that the presence of marked documents at Mara-a-Largo was the result of haphazard records keeping and packing by White House staff and GSA.

The claim is wildly inconsistent with the evidence in the indictment showing how Trump carefully curated these documents over the course of months. That’s the kind of misrepresentation that carries a great deal of personal and professional risk, something that was obvious at the time.

The haste with which Trusty and Rowley abandoned ship, coming shortly after Parlatore’s loud departure, will raise real alarm bells for any attorneys considering the case.

Especially given another detail WaPo doesn’t mention: Lawyers who show up at his table today could get stuck seeing this criminal prosecution through, with far less ability to quit after Trump inevitably fails to disclose other key details in the future. Once a lawyer files a notice of appearance in a criminal case, they often can’t leave until a replacement is found. If, for example, Trump neglected to mention to incoming attorneys that in addition to hoarding documents, he also was disposing of them for personal gain, those attorneys couldn’t quit until a replacement showed up or Trump stopped paying them or Trump fired them.

Finally, there’s the other key thing that WaPo doesn’t mention: Trump needs cleared attorneys, and he should (finally) have the lawyers with Espionage Act experience that might have minimized some of the risk he currently faces.

When courts deal with classified documents like this one will, the judge does not need clearance. (This is a separation of powers issue; members of Congress similarly don’t need clearance.) But the lawyers do. At least one and preferably three of Trump’s lawyers will need to be cleared at the elevated levels the FBI Agents who did the search of Mar-a-Lago had to be read into to even conduct the search. As it was, Trusty was Trump’s only attorney with clearance, and he just split.

Not all lawyers want to go through the trouble of getting clearance. Some — possibly including Chris Kise, was a registered agent for Venezuela in recent years — may not be able to get cleared at that level.

Donald Trump’s trouble finding legal representation is no longer simply the comedy of self-destructiveness it has been for years. Starting today (or shortly thereafter), there will be new obligations and exposures for lawyers representing him.

Trump’s search for a lawyer is not just about finding people who are members of the bar in SDFL. He also needs to find lawyers who are willing to put their security clearance and their reputations at risk on a case where Trump has already been wildly misleading his attorneys.

Update: Without mentioning Kise’s potential unwillingness or inability to try to get cleared, Hugo Lowell describes that Kise will sponsor Todd Blanche and appear just for today. There’s still no hint of Lindsey Halligan’s status — she could also sponsor in Blanche.

After interviewing a slate of potential lawyers at his Trump Doral resort, the former president settled on having Kise appearing as the local counsel admitted to the southern district of Florida as a one-off, with Blanche being sponsored by him to appear pro hac vice, one of the people said.

[snip]

Blanche is expected to take the lead role in the Mar-a-Lago documents case in addition to leading the team defending Trump against state charges in New York for paying hush money to an adult film star in 2016.

Though Kise is expected to appear alongside Blanche in federal district court in Miami, he has primarily handled civil litigation for Trump since he came off the documents case last October and is not expected to be on the trial team proper, a person familiar with the matter said.

Update: Kise filed what appears to be a permanent notice of appearance, with Todd Blanche filing as well.

ABC Reports that Sources Familiar Say 2 + 2 = 5

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In a piece describing that Jack Smith has substantially completed his investigation into stolen documents, WSJ reported Trump’s associates believed that the former President would be indicted and were already making plans to profit off him being charged with one or more federal crimes.

Some of Trump’s close associates are bracing for his indictment and anticipate being able to fundraise off a prosecution, people in the former president’s circle said, as clashes within the Trump legal team have led to the departure of a key lawyer.

Hours after WSJ reported that Trump was going to try to profit off being a criminal suspect, he posted a letter, with just one substantive paragraph, on Truth Social. Aside from the letterhead and signatures from Jim Trusty and John Rowley, it was indistinguishable from Trump’s other grievance-farming on his failing social media platform, claiming that,

Unlike President Biden, his son Hunter, or the Biden family, President Trump is being treated unfairly. No President of the United States has ever, in the history of the country, been baselessly investigated in such an outrageous and unlawful fashion.

Then it asked for a meeting with the recused Attorney General to discuss the “ongoing injustice being perpetrated by your Special Counsel.”

It copied unnamed members of Congress, the last thing a letter seriously asking for dialogue with the Attorney General would do.

It’s a campaign stunt, not a letter designed to request a meeting about potential upcoming indictment(s). In fact, just days ago, Tim Parlatore explained that he quit because Boris Epshteyn would not permit him to engage in that kind of discussion professionally.

Nevertheless, multiple news outlets decided to treat this letter as a serious bid for discussion with the recused Attorney General. In ABC’s case, it falsely claimed that the letter “present[ed] arguments” that Trump should not be charged in the stolen documents case, citing “sources familiar with the matter.”

The letter, though thin on details, presents arguments that Trump should not be charged in the investigation related to his alleged mishandling of classified documents, sources familiar with the matter tell ABC News.

In other words, rather than convey to ABC’s readers what the document actually says — which is nothing more than a claim Trump is being treated unfairly, a claim that is easy to debunk — its reporters called up Trump’s lawyers and transcribed what they claimed the letter said, or perhaps simply parroted their cover for releasing a letter better designed to raise money and sow violence, rather than just reporting what the letter actually did say.

Because “sources familiar” told them so, ABC reported the letter said something it did not. 2 + 2 = 5.

Jim Trusty used to work at DOJ. He knows how to write such a letter. He did not. But ABC nevertheless claimed that he and John Rowley did.

2 + 2 = 5.

As the two journalists described how the letter was something that it wasn’t on Twitter, one of them — Alex Mallin — likened it to Trump’s purported request to speak with Garland last August, just before Garland publicly spoke about the search on Trump’s beach resort.

He didn’t mention that Trump’s comment came after Trump’s false claims of victimhood led a Trump supporter and January 6 participant to attempt to breach the Cincinnati FBI office. He didn’t mention that that earlier outreach sure looked like an implicit threat.

I really get the inclination to treat Trump’s response to being caught stealing classified documents as if it is a normal legal proceeding. I get the inclination to pretend everything is normal.

But that doesn’t justify describing the plain content of the letter as something it’s not.

The letter is a fundraising vehicle. It’s an attempt to discredit rule of law. It’s probably an attempt to sow violence again. Claiming it is something else because sources you’ve granted anonymity said it is is not journalism.

Trump’s Shaky Privilege to Hide His Pence Pressure

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

CNN first confirmed the reason.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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