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Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

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The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.

Boris Epshteyn’s Clearance Problems

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WaPo includes three details in a profile of Boris Epshteyn that I’ve long been pondering, though WaPo doesn’t consider their import.

First, it states more clearly than past whispers have that one of several reasons Epshteyn didn’t get a job in the White House early in Trump’s term was because of “issues [getting] security clearance.”

After the election, Epshteyn became an aide on the transition team and in the White House. But his tenure in was short — he lasted about two months in the White House and was abruptly moved from the transition to be communications director for the inaugural committee. Three Trump advisers, including one person with direct knowledge of the matter, said the White House exit came after issues gaining a security clearance and clashing with other White House aides.

This was a White House that gave Jared Kushner the highest levels of clearance, took a year to get rid of Rob Porter, and similarly took time before removing Johnny McEntee — and then brought McEntee back! Which is to say, the Trump Administration, which didn’t much care who had clearance, identified a clearance problem before the delayed vetting that identified Porter and McEntee as threats. And acted on it.

And yet, this is the guy that Trump — at a time he had almost no grown-ups left in his entourage — put in charge of his response to the stolen documents investigation.

Initially, many of Epshteyn’s calls to Trump were about the 2020 election. But this year, as the controversy over classified documents located at Mar-a-Lago intensified, Trump grew furious with some of his lawyers who were urging him to return the material to the federal government. In spring, according to advisers, Trump gave Epshteyn a larger role in his legal defense team — akin to an in-house counsel.

“He came in and started giving orders,” one person familiar with the matter said.

[snip]

Epshteyn has urged a pugilistic tone in court filings about the documents, has tried to shape public relations around those filings and has called Trump repeatedly throughout the day to talk strategy, other advisers say.

So the guy who even Trump wouldn’t give clearance to is the mastermind of Trump’s strategy to refuse to give back classified documents, some of the most sensitive documents in government.

We know that investigators find Epshteyn’s role of interest from the reporting on Christina Bobb’s interview with the FBI.

Bobb also spoke to investigators about Trump legal adviser Boris Epshteyn, who she said did not help draft the statement but was minimally involved in discussions about the records, according to the sources.

Apparently her testimony described additional contacts she had with Epshteyn.

Bobb testified to the justice department about the 3 June episode on Friday, detailing Corcoran’s role and additional contacts with Trump’s in-house counsel Boris Epshteyn, one of the sources said.

One of those contacts involved Ephsteyn calling her the night before DOJ came to Mar-a-Lago — remember, DOJ was only asked to come the night before — and telling her to show up the next day to play what was, unbeknownst to her at the time, the role of the fall gal.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

So I’m not the only one focusing on Epshteyn’s role in refusing to give documents back. FBI is too.

I point this out a lot, but I’m going to point it out again. 18 USC 793 — one of the crimes Trump is being investigated for — has a conspiracy clause that exposes those who help someone commit a crime under the statute to prosecution themselves.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

By all descriptions, Trump literally brought in Epshteyn precisely because he encouraged Trump to refuse to give the documents back. And the easiest way to charge Trump under 793 would be to charge him just for hoarding the documents from June 3 to August 8, the period after which he had withheld documents in response to a lawful subpoena.

As I also point out incessantly, it would be a lot easier to charge Trump if he made highly classified documents accessible to someone who never was entitled to access them. Bobb once had clearance, and by description at least, never accessed the documents herself. Kash Patel had top clearances — indeed, by his own description, he still has clearance (though he wouldn’t have the need to know). Evan Corcoran at least treated the documents like they were sensitive.

But Epshteyn was, according to this WaPo profile, not hired into the Trump White House because of clearance concerns. And he’s the guy, by all reports, in charge of Trump’s efforts to refuse to give the most sensitive documents back. That doesn’t mean he had these documents in hand. But it does mean he was part of the effort to keep them.

There’s one more puzzle that I keep raising. The WaPo notes what a ton of stories have already: Epshteyn’s phone was seized in September.

Epshteyn recently had his phone seized by federal agents as part of that probe. A federal subpoena that went to more than 100 people across the country this spring — including fake electors and state officials — sought phone and email communications with dozens of people involved in the effort, including Epshteyn.

By all reports, the phone was seized as part of the investigation into Trump’s efforts to steal the 2020 election, rather than his efforts to steal classified documents. Epshteyn, who has a JD, was part of the group of lawyers dreaming up whack theories to justify stealing the election (or dupe Trump followers into an attempted coup), but there’s no indication he was lawyering then. Instead, by description, he was doing what he has always done for Trump: organizing.

But, perhaps for legal reasons, all the profiles of Epshteyn’s role in the stolen documents case describe him as playing a legal role. This WaPo piece describes him serving as “in-house counsel,” for example.

FBI seized Epshteyn’s phone almost two months ago, which presumably included five months of content from the period when he has played this purported legal role in helping Trump refuse to give highly classified documents back. Yet we’ve heard nothing about a privilege fight.

That’s particularly interesting given that — after Bobb’s testimony last month — DOJ may have had probable cause to broaden the scope of any filter on Epshteyn’s phone.

Trump Prosecutions: Making Tea While Awaiting the Post-Election Flood

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One of the only citations any of the filings in the Trump stolen document case make to prior 18 USC 793 prosecutions — one of the crimes under investigation — is this reference to a letter that then-NSA Director Mike Rogers submitted in the Nghia Pho case. It was cited to explain that sometimes the government has to kill sensitive intelligence programs based on the mere possibility they’ve been compromised. The letter also talked about how, when things get compromised by people bringing them home from work, US intelligence partners grow reluctant to share information. The letter was cited even though the letter itself was never docketed online (it was liberated at the time by Josh Gerstein).

In other words, someone knew to reference something really obscure to make a highly inflammatory argument about the ways that Trump has already done real harm to US national security.

One of the prosecutors in the Nghia Pho case was Thomas Windom, the MD-based AUSA brought in to lead the investigation into Trump’s attempts to steal the election.

Obviously, lots of people at DOJ’s National Security Division would also know that case, and so presumably the letter, well. I wrote about the important lessons DOJ seemed to take from the compromises that the Shadow Brokers leak (in part, that it doesn’t matter why someone brought classified documents home, they can do catastrophic damage to national security anyway). But I raise it here because of an assertion WaPo made when they broke the news that David Raskin — who prosecuted a number of terrorism cases that faced really difficult classification complications — was involved in some way in the stolen document case.

Just two weeks ago, Raskin won a guilty plea in a case with parallels to the Trump case — a former FBI analyst in Kansas City who authorities say took more than 300 classified files or documents to her home, including highly sensitive material about al-Qaeda and an associate of Osama bin Laden.

It’s actually unclear how much the case of Kendra Kingsbury resembles Trump’s. She was charged over three years after being fired from the FBI for the theft, charged with just Secret documents and only two counts of 18 USC 793e (supported by ten documents each), which made getting the plea far easier than charging her for any Top Secret documents or charging her for all twenty individually. According to the docket, the case never started the CIPA process. Her change of plea documents have not been docketed (and so don’t explain the five month delay in sentencing).

All of which is to say the Kingsbury prosecution, like the Pho one, avoided a lot of the difficulties a Trump case would pose, particularly given how unlikely it is that Trump would plead guilty. The Ahmed Ghailani, Zacarias Moussaui, and other early SDNY terror cases make far better precedents for the classification problems that a prosecution of Trump would pose.

Besides, as the WaPo reported, that’s not why Raskin was first brought to DC; he was brought there, like dozens of other prosecutors, to help with the flood of cases after January 6.

Justice Department officials initially contacted Raskin to consult on the criminal investigation into the Jan. 6, 2021, assault on the U.S. Capitol. But his role has shifted over time to focus more on the investigation involving the former president’s possession and potential mishandling of classified documents, the people familiar with the matter said.

I raise all that because we’re beginning to get a whole bunch of new tea leaves in the various investigations into Trump.

CNN had a detailed report yesterday, describing that DOJ was prepping for post-election activity — as well as the likelihood that Trump will declare his candidacy for 2024 out of a belief it’ll shield him from indictment.

As it describes, in addition to Raskin, DOJ has brought on a former SDNY lawyer with extensive experience on conspiracy cases, David Rody, as well as added a high-ranking fraud and public corruption prosecutor and an appellate specialist, neither of whom they name.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

CNN reports that DOJ is even considering whether to appoint a special counsel, though the implication seems to be that that would cover ongoing prosecutorial work, in the same way that John Durham was made a special counsel to shield his work from the snooping of outside oversight (which in Durham’s case led him to pursue ill-considered charges unsupported by his investigation).

I expect as other outlets (especially ones with reporters that have more closely covered the January 6 investigation) will add clarity to all this. But given everything that’s happening, with the exception of the move of the public corruption prosecutor, it’s not clear how much these developments stem from resource allocations that have been a constant feature of the post-January 6 investigation, how much DOJ is putting together a prosecution team, or even whether DOJ has deliberately selected prosecutors (aside from the public corruption one) who weren’t at DC USAO when Billy Barr made all sorts of corrupt moves to help protect Trump. There are DC AUSAs on the team; Mary Dorhmann, who is sort of a Jill of All Prosecutorial Trades, is working with Windom even while she served on the team that won one guilty verdict and one hung verdict against Capitol Police cop Michael Riley and other more pedestrian January 6 cases.

All this is happening as DOJ just locked in Kash Patel’s testimony by compelling his testimony with use immunity. WaPo’s report describes that, in addition to asking him about his claims that Trump declassified documents, prosecutors also asked about Trump’s motive for stealing documents (whether classified or not).

National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago,

This story is as useful for its account of former Deputy White House Counsel John Eisenberg’s testimony as for Patel’s; he’s the guy who attempted to bury the Perfect Transcript of Trump’s call with Volodymyr Zelenskyy (remember that witnesses friendly to the subject of an investigation often share their testimony to help others, effectively a way to coordinate stories).

Finally, NYT reported something I’ve been expecting for some time: Trump lawyers are getting fed up with the incompetent advice of Boris Epshteyn, who is not a defense attorney but who claims to be playing a key role in Trump’s defense.

A tirade of a lawsuit that Donald J. Trump filed on Wednesday against one of his chief antagonists, the New York attorney general, was hotly opposed by several of his longstanding legal advisers, who attempted an intervention hours before it was submitted to a court.

Those opposed to the suit told the Florida attorneys who drafted it that it was frivolous and would fail, according to people with knowledge of the matter. The loudest objection came from the general counsel of Mr. Trump’s real estate business, who warned that the Floridians might be committing malpractice.

Nonetheless, the suit was filed.

[snip]

The new 41-page lawsuit against Ms. James was filed in Palm Beach by Timothy W. Weber, Jeremy D. Bailie and R. Quincy Bird, members of a St. Petersburg-based law firm — and was championed by Boris Epshteyn, an in-house counsel for the former president who has become one of his most trusted advisers.

[snip]

Unable to persuade the Florida lawyers to stand down Wednesday, the Trump Organization’s general counsel, Alan Garten, then took aim at Mr. Epshteyn, blaming him in an email to Mr. Epshteyn and other lawyers for the filing of the suit, said the people with knowledge of the discussion. Frustrations with Mr. Epshteyn among some of Mr. Trump’s other aides and representatives have been brewing for months and boiled over with the new legal action.

Another lawyer for Mr. Trump, Christopher M. Kise, a former Florida solicitor general, also objected to the filing of the lawsuit on Wednesday. And Mr. Trump’s legal team in New York expressed concern that the Florida lawsuit would undermine their defense in Ms. James’s case, costing them credibility with both the New York attorney general’s office and the judge overseeing the case, the people with knowledge of the matter said.

It’s fairly astonishing that someone as notoriously paranoid as Trump has not yet begun to wonder whether Epshteyn has Trump’s own interests in mind. Certainly I’ve questioned it.

But pissing off Alan Garten, especially — really one of the only stable legal presences in Trump’s life over the last six years — will not bode well for Trump going forward.

None of these details (not even the shift of the public corruption prosecutor, which I think is one of the more important developments) tell us where a Trump prosecution will start to move next week, after the election. Given all the factors — especially the resource allocations on account of the January 6 investigation and conflicts that may have been created by Trump’s past corruption — it will be impossible for anyone to understand where this is headed for some time.

But the tea leaves have finally convinced the TV lawyers that it is headed, somewhere.

Kash Patel’s Immunized Testimony Is about Premeditation, Not (Just) about Declassification

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Thankfully, the NYT has written a second story reporting that DOJ is considering asking Beryl Howell to give Kash Patel use immunity in the Trump stolen document investigation, because I was about to go back and write about the first one.

Earlier this month, the prosecutors summoned Mr. Patel to testify before a grand jury in Washington hearing evidence about whether Mr. Trump had mishandled classified documents and obstructed justice when he refused to return the records to the government.

Mr. Patel repeatedly invoked his Fifth Amendment right against self-incrimination. In response, prosecutors asked a top federal judge in Washington to compel Mr. Patel to answer questions — a move Mr. Patel’s lawyers have strenuously opposed. The question now is whether the Justice Department will grant him immunity in order to secure his testimony.

The first was newsworthy — as I laid out in this thread and as Jay Kuo wrote up in this piece — for its silence about the fact that Stanley Woodward is the defense attorney for both people described in the story (the other was Walt Nauta, the valet who moved documents around before Evan Corcoran did a search of what was left).

Woodward represents a slew of key defendants who might serve as firewalls in a larger and much more damning crime: in addition to Patel and Nauta, Dan Scavino, Peter Navarro, Oath Keeper Kelly Meggs (who has ties to Roger Stone), and the guy who kicked off the entire riot, Ryan Samsel. Woodward’s a decent defense attorney (not least because, unlike many Trump attorneys, he is a defense attorney), but he’s got a conspiracy streak that should be accounted for when reporting on his representation of events.

Both NYT stories portray Patel’s unnamed attorneys as resisting the move to immunize him.

In response, prosecutors asked a top federal judge in Washington to force Mr. Patel to testify — a move fought by Mr. Patel’s lawyers, who are concerned the government wants to use Mr. Patel’s own statements to incriminate him. [first]

[snip]

The push for the testimony has also created friction between the Justice Department and Mr. Patel’s lawyers, who have argued that the department could use his statements against him if they build out a larger obstruction investigation. [second]

This is, frankly, silly reporting. Stanley Woodward doesn’t get a choice in whether Patel is immunized. That’s the point: You immunize a witness to compel his testimony. And defense attorneys and prosecutors are adversarial; there is supposed to be “friction” between them. That’s the nature of an adversarial system.

Including these claims in the story without explaining the import of compelled testimony does a disservice to readers and makes the story far more of vehicle for obstruction.

Best as I can tell (it’s hard to tell, because the part of the earlier story addressing immunity was so muddled), this version of the story adds no new news except for the self-congratulatory detail that Trump only learned that Kash took the Fifth from the earlier story.

Mr. Trump first learned that Mr. Patel had invoked the Fifth Amendment when The New York Times reported it on Monday, according to person briefed on the matter.

This is not actually interesting unless you’re a NYT reporter or someone like Stanley Woodward wanting to make clear he’s not directly consulting on these defense issues in advance with Trump himself, which is different than consulting with someone like Boris Epshteyn, who (unlike Woodward) is not a defense attorney but nevertheless is purportedly in charge of Trump’s defense. It just so happens that these anonymously sourced stories provide all the details that Trump would need and Woodward would want public to make sure he still got paid. (Not addressed, however, is a reference in the earlier story boasting about the treatment of the video surveillance that would have led to changed testimony from Nauta.)

Sadly, this story utterly misses several key points about the import of Kash Patel’s testimony.

First, consider Kash’s potential responses if Beryl Howell does grant him use immunity. Either he testifies truthfully, he lies, or he still refuses to testify and gets jailed for contempt. This is the real tension that Woodward is getting at — what should Kash do if he is immunized, as if the story is begging for directions from those paying the bills. While Trump was still President, the answer was easy: lie and await a pardon. It’s more complicated when you’re firewalling someone who may not return to the presidency anytime soon.

More importantly, consider possible reasons why Kash might have invoked the Fifth, if it was anything more than an attempt to avoid testifying in the absence of Executive Privilege claims.

NYT — which has spread the cover story that the only Russian documents Trump attempted to disseminate as he left office were the unclassified Strzok-Page texts (ABC had a detailed story about what really happened) — says that this is all about whether Kash’s claims that Trump declassified the documents he stole are true.

Federal prosecutors investigating former President Donald J. Trump’s handling of national security documents want to question one of his confidants about a claim that Mr. Trump had declassified national security documents he took when he left the White House.

[snip]

But the Justice Department’s interest in questioning Mr. Patel about the claim shows that prosecutors see it as potentially relevant to their investigation into the handling of the documents and whether Mr. Trump or his aides obstructed the government’s efforts to reclaim them.

If all Kash was asked about was whether — at a time when he was supposed to be running the Pentagon but instead happened to be at the White House at the precise moment Trump waved a magic wand to mass declassify documents he intended to steal — Trump had really declassified those documents, there’d be little cause to invoke the Fifth and he would have invoked Executive Privilege instead. If Trump didn’t declassify the documents, Kash would be admitting to lying in Breitbart, which is not only not a crime, but it is generally assumed of columns that appear in Breitbart.

If Trump actually did declassify these documents with Kash as a witness, Kash has no legal exposure whatsoever.

So (again assuming Kash invoked the Fifth because he believed he had real exposure himself, which may not be the case), what might be those possible areas of exposure? Some possibilities include [these are hypotheticals]:

  • At some time before January 20, 2021, Kash and Trump coordinated to select a group of documents — including the Russian binder, but also (per the Breitbart piece quoted in the search affidavit) the Ukraine quid pro quo and other topics of national security import — that Trump would steal when he left; this is consistent with a great deal of what Kash has said publicly.
  • The Russian binder did circulate and because the declassification process was never finalized before Trump left office — and appears not to have been finalized at all — any classified documents in it would expose the person circulating the binder to Espionage Act charges himself. If an unredacted Carter Page application were included, it would expose the person to FISA violations as well, as I noted in August.
  • Trump and Kash both know that he never declassified the documents he stole, but leading up to May 5 — at a time when Trump was trying to stave off further investigation and even before FBI reviewed the boxes returned in January — they coordinated the false Breitbart column and the false claims about declassification since.
  • The decision to make Kash and John Solomon Trump’s representatives to the Archives was an effort to assess what was stolen.
  • Kash was in some way part of the curating process of choosing which stolen classified documents to retain after 2021, effectively a continuation of the role he started to play in 2017, for which he was rewarded handsomely.

Again, all of these are strictly hypothetical! But they more closely match the known facts than the cover story that Trump was only disseminating unclassified Strzok texts.

And for all the NYT’s focus on obstruction — goddamnit, Mike Schmidt, will you never tire of reporting that Trump is primarily exposed to obstruction?!?! — many of these actions would expose Patel not just to obstruction, but to charges under the Espionage Act himself (and, as I noted, potentially FISA).

I described on August 12 — four days after the search — that if Trump asked Kash or John Solomon to access the stolen classified documents at Mar-a-Lago, then it would expand Trump’s exposure under the Espionage Act.

If Trump and Kash worked together while still in the White House to select a bunch of classified documents to steal and further disseminate, it might expose one or both to 793d.

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

If, before DOJ started making the more formalized requests for Trump to return the stolen documents (and so at a time when Trump might plausibly claim he was still sorting through his documents), Kash disseminated them forward from Mar-a-Lago, it might expose one or both to 793f.

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

If Kash coordinated with Trump to try to create post hoc justification to keep the stolen classified documents — including with the Breitbart column and his subsequent claims about declassification — it might expose both to 793g.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Again, this post involves a lot of hypotheses (though with the advantage that, unlike the NYT, I’m not under the illusion that the only Russian documents Trump planned to disseminate were unclassified Strzok texts). But this is an absolutely critical thought experiment (especially when trying to assess venue, as Brandon Van Grack did here) because the question before DOJ is not, and never was, solely whether a former President refused to return documents he might implausibly claim to have declassified.

The question has always been about whether Trump had a premeditated plan to steal classified documents, and what Trump did with the classified documents after he stole them. Every single one of Kash’s claims to be privy to a purported declassification are also claims about premeditation and dissemination to people not authorized to have classified documents.

And that’s why he’d have a credible Fifth Amendment claim.

It would be unprecedented to charge a former President with violating 18 USC 793e for refusing to return classified documents — though I think DOJ has a clear case (with the South Florida venue that Van Grack explains in his piece) for documents retained between June 3 and August 8.

But if DOJ had evidence that Trump had a premeditated plan to steal classified documents and disseminate them to frothers — some with suspect associates — it would expand his exposure into crimes that are not close calls at all.

And that’s why the decision whether to immunize Kash is not the hard trade-off that people are making it out to be. DOJ may or may not be able to mount a case against Kash himself. But if he were a key witness in a 793g case, it would make the gravity of crimes charged under the Espionage Act far more clearcut, even if charged in Florida. It would make any case against Trump far easier to prove.

Kash Patel is not primarily a witness about whether Trump declassified the documents he stole. He’s a witness about whether Trump had a premeditated plan to steal classified documents and disseminate them to people not entitled to have them. And that’s why the serial reports about DOJ seeking to immunize Kash’s testimony are interesting.

Imagine If Maggie Had Reported that Vladimir Putin Dictated Trump’s June 9 Meeting Cover Story?

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Imagine how much differently things might have worked out if, on July 19, 2017 Maggie Haberman had reported that Vladimir Putin had dictated the statement Trump had his failson release, excusing the meeting Don Jr had to collect Russian dirt in exchange for lifting the Magnitsky sanctions?

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up.

I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

As you contemplate that, consider how Trump’s various means of withholding the documents he stole serve as a metaphor for how he covers up his own criminal exposure.

At first, Trump stonewalled, refusing to cooperate at all. Then, he got some of his aides to privately tell lies on his behalf. But then, when that looked like it wouldn’t work any more, he  packed boxes himself, personally curating the first limited hangout for the Archives. In January, Trump delivered 15 boxes — nine fewer than NARA knew he had taken, but three more (Maggie is the only one who cares about this) than he had told NARA he’d deliver. When NARA opened the boxes that Trump had curated personally, they found some, but not all, of what they were expecting. Hidden amidst, “newspapers, magazines, printed news articles,” they also found “a lot of classified records.” This expert liar believed he could fool professional archivists by hiding the evidence of his crime behind a curtain of press clippings.

At this point, Trump started lying publicly, both by releasing statements designed to go viral on social media falsely claiming to have cooperated, and in the public claims that Kash Patel made that were broader than the set of Russian documents Trump did or attempted to steal, but which were primarily about that story.

Trump had to find new people to lie for him, which he did in the form of a far less qualified legal team. Trump had that less qualified legal team try to bully DOJ legally, claiming that he couldn’t be charged with the single crime he wanted applied to his criminal behavior. When all that failed to stave off DOJ, Trump curated another story, having boxes removed from the storage room, having one of the new, less-qualified lawyers search through what was left and discover another limited hangout of documents to return, and getting another of the less-qualified lawyers to certify that’s the end of the story, all without letting investigators actually check what actually lay behind that search.

This time it was DOJ that knew better than to believe the series of cover stories the reality TV show star kept telling, and so they quietly put together a search of the beach resort, seizing another 27 boxes of government records, yielding 18 more boxes than NARA even knew about. It’s not clear Trump would have revealed the search, at all, if Peter Schorsch — not one of the national journalists paid handsomely as a full time Trump-whisperer, but instead a local reporter — hadn’t revealed it. (There’s no evidence Trump ever told the Trump-whisperers about this investigation before the search, and most have not credited Schorsch’s role in the process, perhaps to obscure that there was news about Trump accessible without Trump offering it up.) Then, via a statement, via preferential leaks to journalists, via misleading legal filings, Trump repeated the process again, claiming different laws applied and distracting with details — like the fucking lock he claimed DOJ told him to put on his storage closet — largely irrelevant to the crimes actually at issue.

When Trump gets in trouble, the showman curates stories to distract from his real legal woes, obscuring the real legal jeopardy he faces, while distracting the crowd with a blizzard of stories serially revealing tidbits that are distractions from the real story.

That’s how it happens that, five months after Kash Patel publicly used the Russian investigation documents Trump tried to release in the last hours of his Administration as an alibi for stealing other documents, Maggie and Mike have gotten the chattering classes worked up over something related to that cover story that Trump did not do: offer the government to return documents unrelated to Russia if the government would let him burn more sources and methods relating to Russia.

Late last year, as the National Archives ratcheted up the pressure on former President Donald J. Trump to return boxes of records he had taken from the White House to his Mar-a-Lago club, he came up with an idea to resolve the looming showdown: cut a deal.

Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.

[snip]

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.

Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

Maggie and Mike published this story one day after ABC published a story describing the very specific set of documents Trump had spent his last days in office trying to publicly release. Even the ABC story, which reveals, “White House staffers produced multiple copies of documents from the binder,” misses key parts of the story — including why a document John Solomon claims to have obtained in June has a September 2021 creation date. But it nevertheless makes clear that the Russian documents are more central to the stolen document story than either of the two versions Maggie has told admit.

And yet that misleading Russia tidbit distracted from more important details. Buried in the story was the detail that Alex Cannon, a lawyer who negotiated with the Archives late last year, was worried that Trump was withholding documents responsive to subpoenas from the January 6 Committee. This was a detail Paul Sperry publicly floated on August 16. It comes in the wake of the filter inventory accidentally docketed that shows the FBI seized at least three items pertinent to the known January 6 investigations. In a piece reporting, possibly for the first time, that Trump may have withheld documents to obstruct other investigations, Maggie and Mike (purveyors of the false claim that Mueller primarily investigated Trump for obstruction) describe DOJ’s investigation into violations of the Espionage Act and obstruction this way, as if poor Donald Trump and those paid to lie for him were just innocent bystanders in all this.

In the process, some of his lawyers have increased their own legal exposure and had to hire lawyers themselves. Mr. Trump has ended up in the middle of an investigation into his handling of the documents that has led the Justice Department to seek evidence of obstruction.

The more important point is that rather than focusing on Cannon’s concerns that Trump was obstructing the January 6 investigation (or even that he suspected Trump was hoarding classified records but didn’t tell NARA that), Maggie and Mike focus on the deal that Trump never formally pitched, trading one set of classified documents for the classified documents describing sources and methods Trump wanted to burn.

This detail, in a story describing the lies Trump has told to cover up his stolen documents, is pure distraction, a side-show to the evidence of criminal behavior that matters. But nevertheless, the sheer audacity of it has gone viral, distracting from the real evidence of criminal intent or even the ABC report that at least substantiates the real ties between the Russian documents and the documents Trump was hoarding.

As noted in the ABC report, this is actually the second limited hangout about the Russian documents that Maggie spread. The first — part of her book campaign — is that Trump was sitting on copies of the Strzok and Page texts.

(In one of our earlier interviews, I had asked him separately about some of the texts between the FBI agent and the FBI official working on the Robert Mueller investigation whose affair prompted the agent’s removal from the case; we had learned the night before Biden’s inauguration that Trump was planning to make the texts public. He ultimately didn’t, but he told me that Meadows had the material in his possession and offered to connect me with him.)

This is the basis on which many people have claimed that Maggie withheld the story that Trump had stolen documents. But it’s actually not. It’s a limited hangout suggesting (John Solomon’s public statements that Trump would release everything notwithstanding) that Trump had only taken home the Strzok-Page texts, and not also a bunch of documents describing sensitive human sources and SIGINT collection points. Maggie has also claimed that Trump’s DOJ advised against releasing the texts because it would constitute another violation of the Privacy Act, without explaining why, then, Trump’s DOJ itself had done just that in September 2020.

Once again, it’s another less damning story rather than the more damning one for which there is just as much evidence. If Trump (or Mark Meadows) stole a copy of the Strzok and Page texts, it would be a violation of the Presidential Records Act and the Privacy Act, but not a violation of the Espionage Act or (if they stole a copy of the unredacted Carter Page application) FISA.

With Saturday’s story, which purports to share with readers how Trump “exhibited a pattern of dissembling,” Maggie and Mike either don’t understand this this story is just another press clipping that Trump is hiding the real criminal evidence behind, or are having a great big laugh at how stupid their readers are, making this non-story about something Trump didn’t do go viral whereas more factual details go unnoticed.

Which makes it very much like the story Maggie and Mike published, along with Peter Baker, on July 19, 2017. The story was based on an interview all three did that same day, one day after other journalists disclosed a second meeting between Putin and Trump, without a US translator, which lasted as long as an hour. The interview happened on the same day — the Mueller Report notes —  that Trump renewed his request to Corey Lewnadowski to order the Attorney General to limit the Russian investigation to prospective election tampering.

On July 19, 2017, the President again met with Lewandowski alone in the Oval Office.621 In the preceding days, as described in Volume II, Section II.G, infra, emails and other information about the June 9, 2016 meeting between several Russians and Donald Trump Jr., Jared Kushner, and Paul Manafort had been publicly disclosed. In the July 19 meeting with Lewandowski, the President raised his previous request and asked if Lewandowski had talked to Sessions.622 Lewandowski told the President that the message would be delivered soon.623 Lewandowski recalled that the President told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.624

[snip]

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

Later that day, Lewandowski met with Hicks and they discussed the President’s New York Times interview.634 Lewandowski recalled telling Hicks about the President’s request that he meet with Sessions and joking with her about the idea of firing Sessions as a private citizen if Sessions would not meet with him.635 As Hicks remembered the conversation, Lewandowski told her the President had recently asked him to meet with Sessions and deliver a message that he needed to do the “right thing” and resign.636 While Hicks and Lewandowski were together, the President called Hicks and told her he was happy with how coverage of his New York Times interview criticizing Sessions was playing out.637

The NYT article that resulted from the interview with Trump reported the following, in order:

  • Trump’s claim he never would have hired Jeff Sessions if he knew he would recuse from an investigation Trump didn’t know about yet
  • Trump’s complaint that Sessions’ recusal led to Mueller’s hiring
  • Details about the interview
  • Trump’s false claims that Mueller had conflicts
  • The “red line” comment that Maggie and Mike would henceforward use to say Mueller could not investigate Trump’s finances
  • Trump’s claim that he was not under investigation even though there were public reports he was being investigated for obstruction
  • A description of Trump’s claim only to have spoken with Putin for 15 minutes, mostly about “pleasantries, but also “about adoption” [without explaining that “adoption” is code for Magnitsky sanctions]
  • Trump’s description that “his son, Donald Trump Jr., said that was the topic of a meeting he had” on June 9, 2016 (days earlier, Maggie and Peter had reported Trump had been involved in that statement)
  • Trump’s claim that he didn’t need the dirt on Hillary because he had other dirt
  • More discussion about the interview again
  • Descriptions of Trump’s “amiable side,” including his story of holding hands with Macron and — this was described as amiable! — his hopes for a military parade in DC
  • A description of Trump’s interactions with his then 6-year old grand-daughter
  • More about how angry he was with Sessions
  • Quotes from Trump attacking Sessions for recusing
  • Attacks on Sessions’ confirmation testimony about Sergey Kislyak
  • A no-comment from Sessions
  • A claim that Jim Comey had briefed the Steele dossier in an attempt to keep his job
  • Trump’s claim he dismissed the claims in the dossier
  • A no-comment from Comey
  • An explanation of why Trump’s briefers had briefed the dossier
  • Trump’s claim that Comey’s sworn testimony about the February 14 meeting was false
  • Trump’s boasts that he did the right thing by firing Comey
  • A return to his claims that Mueller had conflicts
  • Trump’s claim that he didn’t know that Deputy Attorney General he himself had appointed was from Baltimore
  • A claim Rosenstein had a conflict of interest with Mueller
  • A citation to a Fox interview where Rosenstein said Mueller could avoid conflicts
  • Trump’s claims that Andrew McCabe had conflicts because of the donation Terry McAuliffe gave to McCabe’s spouse
  • A return to the discussion with Putin, including quoting his comment about adoption
  • Trump’s claim that he did not know of the June 9 meeting in real time
  • Trump’s false claim he didn’t need (much less seek out) more dirt on Hillary because he had everything he could need

Most journalists would have taken that detail — that Trump and Putin had used an unmonitored face-to-face meeting to talk about the subject of a burgeoning scandal at the center of the investigation of Russian interference in the election — and dedicated an entire story to it. They likely would have included an explanation that “adoptions” was code for sanctions relief. They probably would have noted how Trump’s claims about the conversation differed from the public reports about it, particularly with regards the claimed length.

Journalists who — as Maggie and Baker had — reported, just days earlier, that Trump had “signed off on the statement,” might cycle back to sources for that story and lay out the possibility — confirmed by Mueller years later — that after Trump discussed adoptions with the President of Russia, he in fact dictated a misleading story about the things he had just discussed with Putin, over his son’s and Hope Hick’s wishes to get the entire story out.

Imagine how that story, that after discussing the topic with Putin, Trump dictated a misleading story, would have changed the direction of the Russian investigation.

But that’s not the story that Maggie and Mike and Peter told. On the contrary, they buried their lede — the smoking gun that Trump had “colluded” with the President of Russia on a cover story — and instead focused the story where Trump wanted it: on pressuring Jeff Sessions and Rod Rosenstein for allowing the appointment of a Special Counsel, on ending the investigation in which they had just revealed a smoking gun. As Mueller explained,  Trump “was happy with how coverage of his New York Times interview criticizing Sessions was playing out.” It buried really damning half-admissions inside an article that primarily served his obstructive purpose (and disseminated a number of lies with limited push-back).

When Trump wanted to obstruct the Russian investigation on July 19, 2017, Maggie proved a more reliable partner than Corey Lewandowski.

That continued throughout the investigation, in which Maggie consistently misled her credulous readers that Mueller only investigated Trump for obstruction, neutralized one of the most damning revelations of the investigation providing Paul Manafort’s provided campaign strategy to Oleg Deripaska, ignored all the most damning details of her old friend Roger Stone, as well as the investigation into a suspected bribe via an Egyptian bank that kept Trump’s campaign afloat in September 2016.

A vast majority of the country believes that Mueller only investigated Trump for obstruction, and Maggie is a big reason why that’s true. And that mistaken belief is one of the reasons the aftermath of the Mueller investigation — with Bill Barr’s sabotage of multiple ongoing criminal investigation and the pardons for four of the five Trump aides who lied to cover up their ties with Russia — proceeded without bigger outcry.

And yet still, five years later, people don’t understand that Maggie successfully led them to believe a false, far less damning story of Trump’s exposure in the Russian investigation, that he was only investigated for the obstruction she was a part of, and not for doing things that led him to directly coordinate cover stories with Vladimir Putin before he dictated the story Putin wanted told.

The problem with Maggie’s memoir of her access to Donald Trump is not that she withheld details Trump told her as she pursued the least legally problematic part of the Russian document cover story for Trump’s stolen documents. It’s that people still think all of this is news, rather than a distraction from the real criminal exposure that — history proves — Trump’s transactional relationship with Maggie serves to cover-up.

When Trump attempts to cover up his crimes, he literally buries the evidence under stacks of press clippings. And those press clippings are, often as not, distractions he has fed (directly or indirectly) to Maggie to tell.

Beryl Howell Says the Surveillance Video Subpoena Was June 24, Not June 22

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In the government’s response to Trump’s motion for a Special Master, it revealed that it had gotten Beryl Howell to unseal two subpoenas served on representatives of Trump. (Zoe Tillman first noted the unsealing.)

After Obtaining Evidence Indicating that Additional Classified Records
Remained at the Premises, DOJ Initially Sought Their Return Through the
Issuance of a Grand Jury Subpoena2

2 The former President disclosed this subpoena and a subpoena for video footage at the Premises in his filings to this Court. See, e.g., D.E. 1 at 5-6. Thereafter, on August 29, 2022, Chief Judge Howell in the District of Columbia authorized the government to disclose to this Court these grand jury subpoenas and material discussed herein.

Howell has now unsealed both the government’s emergency request for unsealing and her order granting it.

The government basically explained that they wanted to unseal the subpoenas because Trump lied about the circumstances of, at least, the May 11 subpoena.

[I]n light of the inaccurate or incomplete facts asserted in the SDFL Motion, and as discussed more fully below, the limited disclosure the Government is seeking here is “needed to avoid a possible injustice.”

The government request debunks two things we already knew to be untrue: Trump’s claim that he had conducted a diligent search, and his claim that when Jay Bratt and three FBI agents visited Mar-a-Lago, they were allowed to “inspect” the storage room. As DOJ describes, they “were allowed only a brief view of the storage room and were expressly told that they could not open any boxes to review their contents.”

But the government request emphasizes a third point that elaborates on their strategy behind the investigation: DOJ wrote the May 11 subpoena to cover all documents in Trump’s possession with classification marks, regardless of where they were and how they got there. The government addressed this twice. First, DOJ noted that it drafted the subpoena so as to prevent Trump from withholding documents based off a claim he had declassified the materials.

The government notes that the subpoena sought documents “bearing classification markings,” and therefore a complete response would not turn on whether or not responsive documents had been purportedly declassified.

The logic to that part of the subpoena was already obvious, to me at least. What I didn’t realize was that DOJ also specifically wrote the subpoena to cover any government document, regardless of whether it had been moved from the White House or got to Mar-a-Lago via some other path and regardless of whether it was still at MAL.

Although the SDFL Motion indicates that FPOTUS directed his staff to conduct a review of boxes moved “from the White House to Florida,” the subpoena was not so limited, instead seeking “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings,” without limitation to where they were stored.

Obviously, DOJ had reason to make this emphasis, beyond just asking for documents with classified markings to avoid getting into a fight over whether Trump had declassified them. Possibly, they have reason to know that some of the documents have already left Mar-a-Lago — maybe they traveled with Trump to Bedminster when he left on June 3. Possibly, they want to avoid Trump claiming he can keep classified documents that he accessed for the first time as President while at Mar-a-Lago, which would otherwise effectively exempt any document that never got moved back to the White House from the subpoena. Or possibly, they have reason to believe that Trump obtained documents from other agencies of government — like the NSA — and brought them directly back to Mar-a-Lago without stopping at the White House.

DOJ’s emphasis that the subpoena covered all records, whether they had left Florida, whether they had come from the White House, had never been moved back to the White House, or came from other agencies is important because — as a slightly longer account of what Corcoran told Bratt on June 3 makes clear — Corcoran limited his own representations about remaining classified documents to those that had been moved from the White House. The bolded language did not appear in DOJ’s Response; the italicized language did, but appears more significant given DOJ’s comment.

[C]ounsel for FPOTUS stated that he had been advised that all records from the White House were stored in one location at Mar-a-Lago, a basement storage room, that the boxes in the storage room were the “remaining repository” of records from the White House, and he additionally represented to government personnel his understanding that there were no records in any other space at Mar-a-Lago.

The bolded language suggests that Corcoran may have been lied to, meaning he’d be a witness, but not a subject, in the investigation.

The filing doesn’t address another discrepancy between Trump’s public claims about the June 3 meeting and DOJ’s: Whether the Former President ever stopped in at the meeting. Trump claims he did.

President Trump greeted them in the dining room at Mar-a-Lago.

DOJ says only two Trump people were at the meeting: Evan Corcoran and Christina Bobb.

In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office.

If Trump wasn’t present at the meeting, it’s possible Corcoran and Bobb pulled the meeting together for the first day that Trump would be gone to Bedminster, possibly even without telling him.

There’s one more detail about the June 3 meeting that’s may be new in the request for unsealing: According to Bratt and the FBI agents who got to glimpse into the storage room, there were around 50 to 55 boxes in the storage room.

[T]hey were explicitly prohibited from opening any of the approximately fifty to fifty-five boxes that they observed.

The inventories released so far suggest that the FBI searched at least 73 items in the storage room. While some of those items may have been bags of golf clubs or old furniture, this detail suggests as many as 18 boxes may have been moved back into the storage room after Bratt left, more than covering all the boxes that identified so far to have documents marked classified in them.

For all the new details about the May 11 subpoena, the request for unsealing reveals almost nothing about the second subpoena DOJ obtained. Indeed, there’s a  section that may address the subpoena that is entirely redacted.

Pages later, DOJ notes in footnotes 4 and 8 that Trump also revealed the existence of a surveillance subpoena and asks to disclose the existence of that too.

In none of the unsealed discussion of the surveillance video subpoena does DOJ mention its date.

Judge Howell does, though. In her authorization, she permits the government to disclose “another grand jury subpoena out of this district issued to the Trump Organization on June 24, 2022.”

That date is two days after the date Trump gave for the subpoena, both in anonymous sourcing to reporters and then in his motion for a Special Master.

In the days that followed, President Trump continued to assist the Government. For instance, members of his personal and household staff were made available for voluntary interviews by the FBI. On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government. [my emphasis]

It’s possible, but highly unlikely, that Howell got the date wrong. But because the government included this paragraph from Trump’s filing in its own request, Howell may have noted the discrepancy in the date.

It’s the kind of detail she tends to pick up.

If the date Trump is using is inaccurate, it may suggest several things. First, I noted here that Bruce Reinhart pointedly observed that no one who purports to own MAL had intervened. It’s the kind of comment one might make if one were aware that Trump played games with the ownership of MAL in an attempt to avoid service of a subpoena. That is, perhaps there is a June 22 subpoena, served on the Office of Donald J. Trump, and after he refused to respond, DOJ simply served a subpoena on Trump Organization, which has enough of its own legal problems right now it doesn’t need Trump to exacerbate them.

Or perhaps Trump was deliberately obscuring the real date, possibly to hide some tie between Kash Patel’s public claims on June 22 to have been made a Trump representative to the Archives and the subpoena.

In authorizing the release of the grand jury material, Howell emphasized the procedural nature of her decision. Because Trump’s request created another judicial proceeding, she could release the grand jury materials under FRCP 6(e)(3)(F). That requires that DOJ show a particularized need to unseal the material, which Howell describes as the need to “meaningfully [] respond” to Judge Aileen Cannon’s order.

Howell did not comment on two arguments DOJ made to get there: that an injustice might occur if Cannon ruled on the Special Master request based on a false understanding of events obtained from Trump’s lies to her and that there was no chance that revealing the subpoenas might harm someone who would later be exonerated, one of three reasons that would normally rule against unsealing grand jury materials.

But in revealing a different date for that second subpoena, June 24 as opposed to June 22, Howell may be pointing to another Trump lie.

Update: May 11, the date of the initial subpoena was a Wednesday. June 22, the date Trump claims he got the subpoena, is also a Wednesday, with June 24 a Friday. If Wednesday is the normal day for the grand jury, then maybe there were two subpoenas.

“The President Was … Working in a Filing Room”

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The unredacted part of the affidavit for Trump’s search shows that it incorporated a “statement” Trump put out on February 18, in an attempt to rebut the report that the Archives provided Carolyn Maloney about what was discovered in the 15 boxes Trump finally returned. In a redacted part of the affidavit, there’s something that looks like a second post of some kind, which appears at the end of a nine-paragraph section describing the Archives’ fight to get the boxes back. One possibility is that it’s a second statement Trump issued before the other one.

I’d like to look at the two statements he put out in February, the one that might be that second post, and the one that is included in the affidavit but was illegible in the rendering of it on PACER. Here’s the first one:

The first attacks Maggie Haberman’s story about flushing documents (but is limited just to White House toilets; she has since reported he flushed stuff while traveling as well).

It also falsely claims that “the papers were given easily and without conflict and on a very friendly basis.” Whatever the seven redacted paragraphs in the affidavit about the fight to get the documents back includes, it would show that that claim was utterly false.

But the statement does claim that “I have been told I was under no obligation to give this material back based on various legal rulings.” We know Trump was told this after the documents were returned. As CNN reported, Judicial Watch’s Tom Fitton was telling Trump just that, citing a ruling pertaining to Bill Clinton.

Not long after the National Archives acknowledged in February that it had retrieved 15 boxes of presidential records from former President Donald Trump’s Mar-a-Lago residence in Florida, Trump began fielding calls from Tom Fitton, a prominent conservative activist.

Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.

Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.

The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
While Trump continued to publicly tout his cooperation with the Archives, privately the former President began obsessing over Fitton’s arguments, complaining to aides about the 15 boxes that were handed over and becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago, according to people with knowledge of his behavior at the time.

Trump even asked Fitton at one point to brief his attorneys, said a person familiar with the matter.

“The moment Tom got in the boss’ ear, it was downhill from there,” said a person close to the former President, who spoke on the condition of anonymity to discuss internal matters.

If Trump’s statement was a reference to Fitton’s advice, it may suggest that advice started even before the Archives publicly confirmed returning the documents (or that Fitton immediately got inside Trump’s head).

What I was most interested in, however, was Trump’s description that the “boxes [] contained letters, records, newspapers, magazines, and various articles,” suggesting that all this excitement was just a fight over 15 boxes of shit.

In fact, the affidavit reveals the initial Archives referral explained, those boxes did contain a lot of shit. But intermixed with all that shit were “a lot of classified records.”

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.’ Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”

As I understand it, the description that this was “unfoldered” means it had been separated from a classified cover sheet that the government uses to highlight that the document enclosed is classified (they’re color-coded so a person can readily see how secret something is). When people try to hide that they’ve got classified information, one of the first things they do is rip off that cover sheet because it’s such a dead giveaway (which is, after all, the point). As I’ve said elsewhere, the FBI found such cover sheets in Joshua Schulte’s shredder when they did the search of his apartment, which they used to suggest, fairly or not, that Schulte was trying to hide things in the wake of the Vault 7 release.

As Elizabeth de la Vega noted when reading the affidavit, newspaper articles and magazines are the kinds of things that white collar criminals use as filler to try to obscure their crimes.

Trump claimed that the boxes were full of things that might appear worthless, and when the Archives opened them up and looked more closely, that’s precisely what they were full of, aside from the classified documents stripped of their cover sheets. But in a public statement the day after the investigation was announced, Trump tried to insist it was just filler, as if that were going to confuse the FBI or even a building full of committed archivists.

And that’s one reason the second post — the one that we know appears in the affidavit — is so interesting.

Unsurprisingly, Trump pitched the discovery of classified documents in a continuity with his past investigations — Russia, Ukraine Impeachment, January 6 Impeachment.

Trump’s statement said the same thing when the search broke on August 8.

Since then, however, Kash Patel, in a column cited in the affidavit, has given us reason to believe that the real continuity is that (at least some of) the documents Trump had stolen were about the Russian investigation or the Ukraine impeachment.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

And Paul Sperry revealed that one reason Trump was withholding these records was because of the ongoing investigation(s) into January 6.

I guess, if you refused to turn over records regarding past investigations, wailing that this is just a continuation of those past investigations is a good way to inoculate your mob for scandalous new disclosures about those past investigations.

But I’m most interested that Trump’s response deflects by complaining,

The Fake News is making it seem like me, as the President of the United States, was working in a filing room.

In fact, there was a public report that had emphasized Trump’s role in packing up the boxes before they got sent to the Archives, one of the WaPo stories that really led the way on this story in February.

At one point, Archives officials threatened that if Trump’s team did not voluntarily produce the materials, they would send a letter to Congress or the Justice Department revealing the lack of cooperation, according to a third person familiar with the situation.

“At first it was unclear what he was going to give back and when,” said one of these people, who, like the others, spoke on the condition of anonymity to share candid details of a sensitive situation.

Trump was noticeably secretive about the packing process, and top aides and longtime administrative staffers did not see the contents, the people said.

That entire article — which includes details about Trump trying to get the Archives to issue false claims about his cooperation with the investigation — seems to be closely aligned with the kinds of sources that the FBI seems to have subsequently developed.

But the allegation Trump was attempting to rebut — that he personally was involved in packing boxes — has since been matched. The NYT cited multiple sources describing Trump going through the boxes to be returned to the Archives personally.

Mr. Trump went through the boxes himself in late 2021, according to multiple people briefed on his efforts, before turning them over.

More recently (and possibly part of an attempt to blame Mark Meadows for all this) the NYT described how stuff that had accumulated on the dining room table of the White House where he worked was not only getting dumped into two dozen boxes that would not get sent to the Archives, but staffers were bringing additional documents into him there, including the Kim Jong Un letters that — because the Archives knew to go looking for them — have served as a beacon for the stolen documents throughout this story.

Papers he had accumulated in his last several months in office had been dropped into boxes, roughly two dozen of them, and not sent to the National Archives. Aides had even retrieved letters from Kim Jong-un, the North Korean leader, and given them to Mr. Trump in the final weeks, according to notes described to The New York Times.

[snip]

Although the White House Counsel’s Office had told Mark Meadows, Mr. Trump’s last chief of staff, that the roughly two dozen boxes worth of material in the residence needed to be turned over to the archives, at least some of those boxes, including those with the Kim letters and some documents marked highly classified, were shipped to Florida. There they were stored at various points over the past 19 months in different locations inside Mar-a-Lago, Mr. Trump’s members-only club, home and office, according to several people briefed on the events.

Whether the first of these two posts is the redacted one or not, both times the Archives issued a public statement, Trump issued public, false, denials (and, according to the contemporaneous WaPo story, attempted to get the Archives to do the same).

At that level, then, the statements feel familiar from the Russian investigation, Trump’s well-studied ability to flood the zone with bullshit.

But buried in the two, together, seems to tie closer to actions — Trump’s personal involvement in stuffing the boxes full of shit under which to hide damning documents — that would go some distance to prove deliberate obstruction.

Did Kash Patel Already Confess to Illegally Disseminating Carter Page FISA Information?

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I’m pretty proud of how closely my two posts (first, second) predicted what the likely and known contents of the Trump affidavit would be. I pretty accurately described the structure, the contents, and many of the known details of what we’ve seen of the application so far.

That’s especially true of the statutory section. I not only predicted that — “Particularly given the novel legal issues implicating a search of the former President” — there would be a substantial statutory background section, but that, “If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing.”

Which they did.

And, to a significant extent, I predicted what would be in that statutory section. Here is that section of my post, with the paragraphs of the Trump affidavit where that language appears in bold and linked.

Everything I expected to be in there, was in there. The details I didn’t anticipate, though, are pretty noteworthy.

That’s particularly true of the section describing special designations. These designations all stem from what the FBI found in the 15 boxes Trump returned in January.

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

If the FBI found a document of a particular type in May, it included that designation in this statutory section.

The Atomic Energy Act was not included, which means (as some knowledgable people predicted in advance), if Trump had nuke documents, they’re not about our nukes, they’re about someone else’s. Trump’s affidavit also includes a description of HCS and SI, Human and Signals Intelligence, designations which have appropriately sobered the response of at least some Republicans, because they mean Trump could get someone killed.

The mention of ORCON — Originator Controlled material — would mostly matter if the FBI found that one of NSA documents that Mike Ellis was sharing with unauthorized people and places during the period Trump was packing up were among the things in the boxes. Those documents were both described as relating to (a or some), “controlled, compartmented NSA program,” in the Inspector General Report on Ellis and the designation ORCON would matter more if documents were retained after the Originator made a sustained effort to get them back, as NSA did in this case.

It’s the mention of FISA, though, that I should have anticipated, and which could present heightened legal problems for Trump — and Kash Patel, and others.

14. Foreign Intelligence Surveillance Act, or “FISA,” is a dissemination control designed to protect intelligence information derived from the collection of information authorized under the Foreign Intelligence Surveillance Act by the Foreign Intelligence Surveillance Court, or “FISC.”

That’s because both Kash and John Solomon have been attempting to create an alibi for information that may include the final Carter Page application. And, as that preliminary review determined, there was at least one FISA document in the boxes returned in January.

On top of any violations of the Espionage Act, if Trump took a copy of that with him after he was fired, it might constitute unlawful dissemination under FISA.

Between them, Kash and Solomon — whom Trump made his representatives to NARA on June 19 — have described that materials relating to the Russian investigation were among those NARA found in the returned boxes and that they might include a Carter Page FISA warrant (which I assume must mean the application).

There’s the May 5 column in which Kash claimed that everything that had been returned in the 15 boxes had been declassified.

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

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

In that column, Kash exhibited knowledge that the materials included documents from “Russiagate” [sic] and Impeachment 1.0.

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

That’s the column cited in the Trump affidavit — though there’s at least one sentence of that paragraph that remains redacted.

I am aware of an article published in Breitbart on May 5, 2022, available at https://www.breitbart.com/politicsi2022i05/05/documents-mar-a-lago-marked-classified-wereah-eadv-declassifi.ed-kash-patel-savs/, which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ”misleading” reports in other news organizations that NARA had found classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue. [redacted]

Kash has issued a statement complaining, even though he had no complaint when information about Michael Isikoff was unsealed in the Carter Page FISA application for a similar published statement.

More interesting still, on July 20, John Solomon (who did a podcast on January 14, 2021 bragging of detailed knowledge of what Russian investigation materials would be released in the coming days) described having newly obtained a January 20, 2021 Mark Meadows memo to DOJ instructing them to declassify documents from the Russian investigation.

Even though the Meadows memo cites from Trump’s own January 19, 2021 order stating that the declassification, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court,” Solomon described that the declassified information did include both transcripts of “intercepts made by the FBI of Trump aides,” (which may have included the intercepts of Mike Flynn obtained by targeting Sergey Kislyak which, because the intercepts took place in the US, may have been conducted under FISA) and “a declassified copy of the final FISA warrant approved by an intelligence court.”

The declassified documents included transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

In the end, multiple investigations found there was no such collusion and that the FBI violated rules and misled the FISA court in an effort to keep the probe going.

The documents that Trump declassified never saw the light of day, even though they were lawfully declassified by Trump and the DOJ was instructed by the president though Meadows to expeditiously release them after redacting private information as necessary. [my emphasis]

Curiously, the PDF of the Mark Meadows memo Solomon linked (my link) — which includes a staple mark and other oddities for an original document preserved by NARA — shows a September 27, 2021 creation date, with a modification date just days after Trump designated Solomon as his representative at NARA. (h/t @z3dster for the observation)

Back to Solomon’s implication that the documents in question — documents that Kash had suggested were among those boxed and sent back to NARA — included the final Carter Page warrant.

If the former President’s stash included an unredacted copy of the final FISA application targeting Carter Page, it could mean additional trouble for him and anyone else involved.

Even a Kislyak intercept would, because it would impact Mike Flynn’s privacy.

Similarly, even if, after three years of effort led largely by Kash Patel, an Inspector General hadn’t deemed the Carter Page FISA applications problematic, Trump took the Carter Page warrant application home after he left office, it would be an egregious violation of FISA’s minimization procedures, which strictly limit how such material can be disseminated. A disgruntled former government’s employee’s desire to spread propaganda about his tenure is not among the approved dissemination purposes.

But Carter Page, almost uniquely of any American surveilled under FISA, has special protections against such things happening.

That’s because in the wake of the IG Report on Carter Page, and in the wake of Bill Barr’s DOJ withdrawing its claim of probable cause for the last two Page warrants, James Boasberg required the government to ensure that materials for which there might not have been probable cause were no longer disseminated. In issuing that order, Boasberg cited 50 USC 1809(a)(2), the part of FISA that makes it a crime, punishable by a five year sentence, to disseminate improperly collected material from a targeted person. As a result, in June 2020, Boasberg issued an order sequestering the material collected from the Carter Page FISA except for five designated purposes.

Indulging the former President’s tantrum is not one of those five purposes.

And Trump and Kash, especially, have reason to know about this sequester. That’s because in October 2020 — at a time when Kash was still babysitting John Ratcliffe at DNI — DOJ violated the sequester by sharing information on Page with the Jeffrey Jensen and John Durham inquiries. As far as we know, that violation of the sequester order didn’t result in surveillance records on Carter Page being stored in a poorly secured storage closet in a resort hotel, but it still involved a hearing before the FISC and a public scolding.

If there’s an unredacted copy of the Page application, it would mean sections like this and this would be unsealed. There’s even a description of the emails that Page sent to the campaign bragging about his access to top Russian officials that, because of how it came to be in the application, would be subject to Boasberg’s sequestration order. There might even be contacts that Page had with Steve Bannon, whose privacy would also be implicated. Disseminating any of that stuff in unredacted form is, by itself, a crime, one the FISC has warned Trump and Kash’s bosses about repeatedly.

In his January 2021 podcast, Solomon claimed that the material Trump wanted to release would prove he was spied on. To show that from materials relating to Carter Page would require sharing information specifically covered by the sequestration order. Shipping that from the White House to Mar-a-Lago would be a crime. Sharing it from there would definitely be a crime. And any authorization would have to involve the FISA Court. No President — not Trump and not Biden — can lawfully ignore that order.

Since at least May, both Kash and Solomon seem frantic to help Trump develop a cover story. And their frantic efforts seem to explicitly include materials pertaining to Carter Page.

And that’s why the confirmation that Trump had FISA materials in his stolen boxes could present additional headaches for the former President and his flunkies.

Trump Had Human, Signals, and FISA Intelligence in an Insecure Room at Mar-a-Lago for a Year

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Here’s the affidavit used to search the home and resort of the 45th President of the United States for classified documents he refused to return. My live tweet is here. I’ll do running updates in this thread. Here’s my earlier post on what the affidavit would include which accurately predicated a great deal of what was in here.

The investigation

The affidavit spends three paragraphs describing how, after NARA made a referral on February 9, 2022, the FBI opened an investigation to learn:

  • How classified documents were removed from the White House
  • Whether the storage facilities at Mar-a-Lago were suitable for storing classified materials
  • Whether there were anymore classified documents at Mar-a-Lago or elsewhere
  • Who had removed and retained the documents in unauthorized spaces

In a probable cause paragraph, it explains that there were 15 boxes with classified information at Mar-a-Lago and there was probable cause to believe there were more.

There’s a redacted paragraph that may describe the basis for suspecting obstruction. A later sentence in the probable cause paragraph describes that there likely will be evidence of obstruction at MAL.

The affidavit explains that this is an investigation into (among other things) 18 USC 793e — which I was among the first people to predict. This means that DOJ maintains that Trump was not authorized to have these documents.

Statutory authorities

As I predicted, there is a series of paragraphs that lay out the statutory authorities implicated. This tells us how sensitive the documents in question are.

It does not list the Atomic Energy Act.

It does have paragraphs defining:

  • 18 USC 793(e), the Espionage Act
  • EO 13526, the Executive Order governing classified information
  • Confidential, Secret, and Top Secret classifications
  • Secure Compartmented Information
  • Special Intelligence, which is SIGINT
  • HCS, which refers to clandestine human spying
  •  FISA
  • NOFORN, material not permissible to share with foreign governments
  • Originator Controlled, meaning whoever created controls it
  • Need to know
  • 32 CFR Parts 2001 and 2003 which describes the Storage requirements for classified information
  • 18 USC 1519, obstruction
  • 18 USC 2071, willfully removing information
  • 44 USC 2201, the Presidential Records Act
  • 44 USC 3301(a), the Federal Records Act

NARA Referral

Two paragraphs describe the NARA referral.

First, it describes the February 9, 2022 message to DOJ describing how Trump had “classified records [that were] unfoldered,” meaning their protective cover sheets were gone, “intermixed with other records, and otherwise unproperly [sic] identified.

Former Watergate prosecutor Elizabeth de la Vega described that this sounds like an old white collar crime technique.

There’s also a description, first, of the notice NARA gave to Carolyn Maloney as the Chair of the House Oversight Committee, and Trump’s response. It also included Trump’s statement in response falsely claiming he was raided.

Redacted pack-up description

There are four paragraphs that appear before the description of Trump’s move out of the White House. Those must include details about what was known of his pack-up.

Boxes containing documents were transported from the White House to Mar-a-Lago

There are eight paragraphs that start with a description of how he moved at least two trucks of stuff to Mar-a-Lago.

It’s unclear what the rest of this section describes (though it may include witness testimony about how things were unpacked). It also seems to quote from correspondence.

Provision of the fifteen boxes to NARA

Nine paragraphs (and one footnote) describe the effort to retrieve the boxes. It describes the effort lasting from May 6, 2021 to “approximately late December 2021,” when NARA was informed there were 12 — not 15 — boxes ready to be retrieved.

That section ends with a redaction, possibly a Trump Text.

The FIFTEEN BOXES provided to NARA contain classified information

What may be just two paragraphs describes what was found in the original 15 boxes: 184 documents bearing classification marks, including:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Others marked HCS, FISA, ORCON, NOFORN, and SI
  • Some documents with Trump’s handwritten notes

Two redacted documents

Paragraphs 49 and 50 are a separate section. They may describe evidence of obstruction.

A description of Trump’s refusal to return materials [redacted title]

Paragraphs 51 through 61 describe DOJ’s efforts to get Trump to return the rest. Most are redacted. The unredacted passages include:

  • A May 25 letter from Evan Corcoran purporting to lay out “principles” covering the the President’s authority to declassify, asking NARA to share that letter with “any judicial officer who is asked to rule on any motion pertaining to this investigation.”
  • A link to the Kash Patel post where he claimed Trump had declassified documents. (I accurately predicted these were related.)
  • A description of the June 8 letter from Jay Bratt to Corcoran, informing him that the facilities were not authorized for classified information.

A footnote to the paragraph leading into that section distinguishes NDI from classified information. Clearly, Trump was claiming he had declassified everything, and DOJ was saying that didn’t matter.

Seven redacted paragraphs

This may explain the declaration Christina Bobb signed and reason DOJ believed it was false.

There is probable cause to believe that documents containing classified NDI and Presidential Records remain at the premises

Seven paragraphs in this section are classified.

The eighth explains that the classified documents are likely to be in the STORAGE ROOM, FPOTUS’ residential suite (which is called Pine Hall), and the “45 Office.”

A mostly redacted paragraph describes where this stuff has been stored. After a redaction, it explains that the club is closed for the summer, and explains that rooms that are not currently occupied may be searched.

Conclusion

This is summary asking for proof of all three crimes.

Sealing

This is a standard sealing paragraph.

Search procedures for handling potential attorney-client privileged information

Four paragraphs describe that a taint team will conduct the search of Trump’s office. If it finds stuff that is privileged that DOJ wants to search, it provides three further ways to get it:

  • An ex-parte determination of whether they are privileged
  • Simple deferral of accessing the information
  • Cooperation with Trump

This must be the stuff on the SSA receipt.

Update: Corrected something I thought was a heading but which was not.

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

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

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

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

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

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

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

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

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

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

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

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

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

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

emptywheel Trump Espionage coverage

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480