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Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

September 12, 2023/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

August 11, 2023/55 Comments/in 2020 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

How 9 Months of Camera Footage became 8 Years

August 10, 2023/47 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Even while Trump’s attorneys argued that he should be permitted to discuss classified information on private property that was already targeted by foreign spies before it became clear he was hoarding boxes of classified records there and may not have turned everything back, they argued that to investigate what happened with the stolen classified documents while in Trump’s custody, the FBI had to get 8 years worth of camera footage.

Actually, more than that. Trump’s response claimed that three-quarters of the total surveillance video turned over to date makes up 8 years, meaning the total would amount to around 128 months of surveillance footage.

To be sure, this is part of competing efforts to inflate (Trump) or understate (DOJ) the amount of discovery in this case.

I’m tracking those competing claims about what has been turned over in this table.

The latest claims — that would suggest that DOJ had turned over around 128 months worth of surveillance footage — reflect an evolving methodology on Trump’s part. On July 10, Trump’s lawyers described the initial batch of surveillance footage to be “approximately nine months of CCTV footage.”

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

On July 18, Todd Blanche described that the footage Trump’s discovery vendor had uploaded as of that morning amounted to 1,186 days — or “over three years” worth of video.

Your Honor, just starting with a question you asked Mr. Bratt a while ago about just one part of the discovery, which is the CCTV footage, which is extraordinarily significant to this case, not only as what’s obvious from the indictment, but it also in part gave rise to the search warrant, the affidavit, and the probable cause to search Mar-a-Lago. As of this morning, there’s 1,186 days of footage that we have uploaded so far, and our vendor is not finished uploading it. And again, I’m not questioning Mr. Bratt’s position about the time period, but there’s multiple cameras that were subpoenaed and that have been produced to us as Rule 16 discovery; and as of today, it’s over three years’ worth of video.

Now, I’m not suggesting to the Court that we’re going to sit for three years and watch three years’ worth of video, but it’s a tremendous amount of data and information, and we’re just — I’m just talking right now about the CCTV footage. While the Government is correct that they have pointed us to the few days that they believe are the most significant to them as it relates to the charges in the indictment and presumably the search warrant, they’re not the most significant to us. I mean, the movement of boxes and where boxes were on given days is extraordinarily significant not only to the justification for the search warrant of the President’s residence but also to the defense of the case. And so the CCTV footage alone, over 1,186 days, makes the schedule the Government proposed pretty disingenuous, Your Honor.

Yesterday’s filing describes that when Trump’s vendor finished uploading that first batch of surveillance footage — which was 57 terabytes out of 76 total — it amounted to 8 years of footage.

Furthermore, the government has produced approximately 76 terabytes of compressed raw CCTV footage, which is itself an incredible volume of material. Last week defense counsel finally finished processing the intake of CCTV footage that the government produced on June 21—the 57 terabytes of CCTV footage produced on June 21 totals nearly eight years of video. On July 31, the government produced an additional 19 terabytes of CCTV footage, including, according to the government’s production letter, “footage that was produced to the government in May that was not included in the government’s first discovery production.” Counsel recently received a hard drive with CCTV footage referenced in the government’s July 31 letter, and we are still processing that discovery to assess the total length of additional video the government produced.

That’s where my 128 months estimate comes from: if 57 terabytes amounted to eight years, then 76 might amount to 10.66.

To be sure, this effort to maximize the scope of the surveillance footage is just meant to impress Judge Cannon and it might well work.

But it also provides some way to reverse engineer what the scope of the surveillance footage really is.

For example, if the scope of this includes footage spanning 9 months of time, as Trump originally claimed, then 10.66 years of footage might suggest 10 cameras were ultimately obtained; according to the search affidavit, there were 4 cameras — from the hallway outside the storage room — covered by the initial production, and by counting using Trump’s new method, 2 months of footage from four cameras would amount to eight months of surveillance footage.

It’s funny math, but now there’s more than 16 times that.

Note that in July, Bratt confirmed the unsurprising detail that some of the footage is from Bedminster (which is probably why DOJ hasn’t done a search on Bedminster — because they could validate the thoroughness of the search done in November or December).

MR. BRATT: So it covers a nine-month period, but not all the cameras were — but it is not all the cameras at Mar-a-Lago or Bedminster; not all the cameras were always running. And the retention period that the Trump organization had varied from camera to camera, so it is not a solid nine months of video footage.

Now, I’m interested in the scale of the footage for several reasons. Yesterday’s motion pointed to the 8 years of footage as proof that nothing ever got deleted.

As relevant here, the charges allege various obstruction-related conduct arising out of false claims of efforts to destroy certain video tapes. No videotapes were deleted or destroyed and the government does not so allege; indeed, President Trump has produced to the Special Counsel’s Office what amounts to more than eight years of CCTV footage.

It’s certainly possible that when DOJ started the investigation that led to multiple obstruction charges, they were just trying to figure out why Trump totally blew off the part of the initial subpoena that asked for locations in addition to the hallway outside the storage room (which I laid out here).

Particularly given that the claim accompanied the suggestion that the alleged attempt to delete footage in June 2022 was “false,” I certainly wouldn’t credit the amount of footage eventually obtained by the government as proof that nothing was deleted. It’s not even clear that all the footage comes from Trump Organization, much less the guy who used to be President.

But the other reason I remain obsessed about the amount and types of surveillance footage here (besides, perhaps, my PhD in literature), has to do with the types of questions investigators may have been trying to answer.

Take, for example, the claim by Bratt on July 18 that the movement of boxes key to the initial obstruction conspiracy happened on May 24 through June 2.

With respect to the closed circuit television and the movement of boxes, I would just note that the movement of boxes occurred between May 24th and June 2nd. So it’s not years’ worth of video with respect to the movement of boxes.

If so, that would suggest Nauta’s movement of a single box on May 22 was something besides an attempt to obstruct the subpoena response.

Or consider the way Trump’s lawyers boast about what an unusual place Mar-a-Lago is.

We similarly reminded the government of the uniqueness of President Trump’s residence, including that it is in a highly protected location guarded by federal agents that previously housed a secure facility approved for not only the discussion, but also the retention, of classified information. The government’s Motion suggesting we anticipated discussing classified information in an unsecure area is wrong, and they are fully cognizant of that fact. Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

This neglects to explain why no sane person would want to restore a SCIF at Mar-a-Lago as explained very easily in the indictment.

The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP’s residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.

Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.

Mar-a-Lago shouldn’t be compared to the residence of “any private citizen,” sure, but for entirely different reasons than Trump’s lawyers want to admit: it’s a counterintelligence nightmare, and was long before Trump started hoarding classified documents in the gaudy shower, and was even ignoring the known targeting of the compound by foreign spy services.

One thing those surveillance videos are going to show is people besides Walt Nauta who got into the storage closet, perhaps to stash their guitar there, and in the process knocking over and discovering classified records that as a result have to be burned.

If there really is over 10 years worth of video surveillance, spread across a bunch of cameras and two properties, it’s likely some of the surveillance will show stuff Trump didn’t control, but stuff for which he should be held accountable.

Update: Added the quote about Bedminster bc as coalesced notes, Bratt’s comment about retention period is also worth noting.

Shorter DJT: Mexico Will Pay for My New SCIF

August 10, 2023/142 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

In Trump’s response to DOJ’s motion for a classified protective order in the stolen documents case, his lawyers clarified that they didn’t so much want to discuss classified documents with Trump while sitting in his offices, which is how the government represented their request, but instead wanted to restore the SCIF at one or another of his resorts.

Even there, the response itself says that Trump wants to review classified materials in a restored SCIF, while a footnote disavows that, then says he wants the space where he used to review such material, with another footnote disavowing a plan to transport classified documents there now.

President Trump opposes any portion of the Proposed CIPA Protective Order that prohibits counsel from simply discussing the relevant purportedly classified material with President Trump inside an approved secure location other than the designated SCIFs in the Southern District of Florida where the classified discovery will be housed. President Trump respectfully requests that the Proposed CIPA Protective Order be modified to approve re-establishment of a secure facility in which President Trump was permitted previously to discuss (and review2 ) classified information during his term as President of the United States.3

2 To be clear, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to or reviewed or stored in, this location.

3 Counsel can provide additional information about President Trump’s proposed secure location but respectfully request that such information be provided in camera because of security concerns.

[snip]

So that President Trump and his legal team may discuss classified information in a substantive manner as regularly as necessary to prepare an adequate defense, we respectfully request that the Court approve re-establishment of a secure facility in which President Trump previously discussed (and reviewed5 ) classified information during his term as President of the United States.

5 Again, President Trump is not requesting that any classified materials be transported to or reviewed or stored in this location. [my emphasis]

Throughout this filing, Trump refers to purportedly classified material in the body of his argument, then disavows wanting to transport classified material in a footnote.

To that end, President Trump requests that the Court approve the renewed use of the previously approved and appropriately secure location so that he is then able to discuss the relevant classified information with his counsel without the need to mobilize his security detail and state and local law enforcement every time he has a conversation regarding his defense as it relates to purportedly classified information.8

8 Again, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to, or stored in, this location.

[snip]

Indeed, the government has the authority to discuss the purported classified material in other approved facilities outside of a Court designated SCIF, and we anticipate it does so regularly. That is not inconsistent with the law so long as they are having those discussions in a secure, approved facility. Our request is to have the same opportunity. We are seeking the Court’s permission to discuss classified information in a secure facility that was long approved for such use and met then, and could easily meet now, the standard required by our nation’s intelligence community to ensure protection of information deemed classified. [my emphasis]

All the reassurances that Trump doesn’t want to store classified material back at Mar-a-Lago modify claims that it might not be classified. Given those caveats, there’s a big question whether stolen classified documents will end up right back at Mar-a-Lago.

Put aside the gimmick here — Trump is demanding that the government make his home a legal place for classified information, which still amounts to seeking, “permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

This is also a filing about Secret Service. The response and Todd Blanche’s related declaration describes that this proposal is based on, “multiple communications with several individuals who are familiar with the required security protocols surrounding President Trump and his family.” But it doesn’t describe any consultation with the people whose job it is to protect classified records.

6. When President Trump was in office, there was a designated, secure location where classified information was approved to be housed and discussed. We have had discussions with officials familiar with this arrangement.

Blanche says that because he had discussions with the Secret Service agents who know where the SCIF was, it’s the same as discussing security arrangements for building and maintaining one.

That is, this filing is about conflating the protection of Trump with the protection of classified records.

Indeed, Trump repeatedly minimizes the risk of storing classified records at Mar-a-Lago, with all the spies targeting it (which I’ll return to), because of the Secret Service detail there.

Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

[snip]

President Trump objects to the Proposed Protective Order insofar as it does not allow him and his counsel to discuss the relevant purportedly classified material inside an appropriate secure facility at or near his personal residence. Limiting any discussions with counsel to the government offered SCIFs is an inappropriate, unnecessary, and unworkable restriction, given the unique circumstances of President Trump’s access to security—namely that he resides and works in a secure location that is protected at all times by members of the United States Secret Service, and that the proposed alternate location previously housed an area approved for not only the discussion, but also the storage and review, of classified information

[snip]

The government’s Motion dismisses this fact and compares President Trump’s request herein to any other defendant’s request to discuss classified information in their “private” or “personal residences” or offices. (See ECF No. 84 ¶¶ 13–14). This characterization is misleading and misconstrues the facts of this case. Donald J. Trump served as President of the United States for four years, and he, along with other Presidents and senior government officials, have had access to remote facilities for the purposes of reviewing and discussing sensitive information while in office, and at times after leaving office.

Of course, Trump didn’t have access to classified information after he left office, at least not after Biden ended Trump’s classified briefings in February 2021.

But this dispute is likely partly an attempt to manufacture some conflict between the President and the guy who wants to replace him.

The argument here is based on inflated claims about how hard it is for Trump and his Secret Service detail — who are making multiple trips a week to give speeches in places like New Hampshire high school gymnasia — to travel from Mar-a-Lago to a SCIF in South Florida.

2. If President Trump travels to a public facility in the Southern Division of this District, most circumstances would require an overnight stay in the local area by his protective detail, including members of the Secret Service, as well as an overnight stay by President Trump, due to the distance between his residence and the public facility.

[snip]

5. In any of these scenarios, the required security measures take significant planning and effort, as well as financial resources.

6. The alternate secure location in which President Trump seeks to discuss (but not review) classified information is under 24-hour a day full security protection, whether President Trump is present or not. Furthermore, the government can re-establish a restricted area within the proposed secure location in which President Trump and his legal team can discuss classified information in a manner that is consistent with government security protocols.

7. Between 2017 and 2021, with reasonable effort and expense, a secure facility was established and approved at President Trump’s residence in the Southern District of Florida. In that facility, President Trump was permitted to review and discuss classified information. Reestablishing this secure facility is readily possible if the Court so directs.

Donald J. Trump — the same guy who never missed a chance to bilk the Secret Service for space in his own residences or hotels — is demanding that the US Government minimize the inconvenience of secure travel by him to defend himself for stealing classified information even as he is traveling all over the country — incurring the same costs and inconveniences for those around him — campaigning with nary a care about the cost that imposes on tax payers.

And he’s not offering to pay the US government to rebuild the SCIF in his beach resort.

Multiple people on Xitter joked that he’ll probably just ask Mexico to pay for it, and that’s about right: Trump is promising that the government can build something instantaneously without cost.

But given that Aileen Cannon is involved, it may well work.

This is not a good faith offer. It is an attempt to create a conflict that, if and when it is appealed to the 11th Circuit, will present closer calls than the ones on which Judge Cannon got her ass handed to her last year.

Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

August 8, 2023/88 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.

[snip]

Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.

[snip]

The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
The death threats that followed Trump’s public attack on Al Schmidt.
Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

Aileen Cannon’s Not-Abnormal Orders

June 26, 2023/49 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.

Request 1: Motion to Implement Special Conditions of Release

Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.

Goodman ordered the government to provide defendants with a list of witnesses this covered.

DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.

Trump and Nauta objected to that part of it.

Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.

I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.

After that, a media coalition opposed the government motion, asking that any list be filed unsealed.

Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.

PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]

As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.

Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.

Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.

So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.

Request 2: Motion for a Continuance

On the same day, Friday, DOJ also asked for a multi-part motion for a continuance from the August trial date to a December one.

Motion for Continuance

It laid out the following logic:

The matter is not complex, meaning Trump doesn’t need a year to review discovery
The matter does involve classified information, which will require using the Classified Information Procedures Act (CIPA), which takes some time
Also, Trump will need more time to review discovery than the current schedule allows

DOJ provided some legal requests, as well as a proposed timeline.

In response to this request, Cannon asked the defendants what they think:

On or before July 6, 2023, Defendants shall respond to the Government’s Motion for Continuance 34, either individually or in a combined filing.

This is normal.

Request 3: Motion on CIPA

The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:

Schedule a CIPA 2 conference to talk about the classified matters at issue
Appoint a Court Information Security Officer

In her order, Cannon cited the defendants’ lack off opposition.

The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,

The Court expresses no view on the other matters addressed in the Government’s Motion.

But those matters are dictated by law.

At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.

Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.

There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.

I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.

The Approach to Classification in Trump’s Stolen Document Case

June 24, 2023/114 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

The government has submitted materials in support of a requested continuance until December in Trump’s stolen documents case:

The Motion to Implement Special Conditions is basically a bid to get a list of 84 witnesses submitted, via sealed filing, to docket, and so subject to Judge Aileen Cannon’s discipline. Under the order issued by Magistrate Judge Jonathan Goodman, both Trump and Walt Nauta will be prohibited from speaking about the facts of the case with any of the 84 witnesses — a great many of whom are Trump employees — except through counsel.

Even at the arraignment, Todd Blanche balked at this condition, which Goodman imposed without DOJ requesting it. In particular, I think Blanche wants people to be able to discuss the case without counsel present so long as counsel has advised about that.

But per the filing, defense attorneys may yet object to the condition itself.

2 The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have authorized government counsel to represent the following: “Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.” Counsel for defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

I would love to see briefing on this, because I think Blanche has specific concerns about preserving the nesting gatekeeping that has existed from the start of this. But this condition, if upheld, will also stymie Trump’s efforts to fundraise by lying about this case.

The other request is a motion to delay the trial — which Aileen Cannon initially scheduled for August — until December, largely for CIPA to play out. This is totally normal, and given Cannon’s past history in criminal cases — which Kyle Cheney reviewed here — there’s no reason to expect she would object (indeed, legally, CIPA requires her to work through this process).

The proposed schedule would envision a trial before the first primary, but it triggers everything to Trump (and Nauta’s) responsiveness. I suspect it was crafted to undermine any claims from Trump that DOJ is responsible for a trial as people are voting, but some of these deadlines are really aggressive.

Most interesting, though, is DOJ’s treatment of clearances. According to Jay Bratt’s declaration, once defense attorneys get their SF-86 filing in, the Litigation Security Group has committed to turning around their initial clearances unbelievably quickly: two days. And it has likewise committed to sharing SIGINT documents based just off that interim clearance.

To be granted an interim security clearance, defense counsel must submit a Standard Form 86 – Questionnaire for National Security (“SF-86”) and supporting documentation. To date, not all of the defense counsel have submitted their SF-86s. Once an SF-86 and supporting documentation are submitted, absent complicating circumstances, an interim clearance may be granted within a matter of days. In this case, LSG has committed to reaching an eligibility determination within 24-48 hours of the completed submission. Once defense counsel are granted interim security clearances, the government will be able to provide the vast majority of classified discovery, consisting of documents marked CONFIDENTIAL, SECRET, and TOP SECRET, including documents within the following Sensitive Compartmented Information Compartments: SI, SI-G, and TK. [my emphasis]

You can see from the list of charged documents, that would encompass many of the charged documents (some of the redacted classifications are probably SI-G).

But there are others that require further read-in.

However, interim security clearances are not sufficient for the government to provide in classified discovery a small number of documents-including some documents whose unauthorized retention is charged in the indictment-that contain restricted compartments for which a final security clearance and additional read-ins are required. LSG estimates that final clearances may be granted within 45 to 60 days of submission of the SF-86 and related documentation, depending upon the content of the applicant’s SF-86. The additional read-ins can be conducted promptly upon access approval. [my emphasis]

Among the unredacted classification marks not included among those Bratt listed are FR (Formerly Restricted, a nuclear designation under the Atomic Energy Act and one Presidents can’t declassify alone) and HCS-P (HUMINT product). The bolded language suggests that DOJ is planning to share all classified documents Trump stole; based on the redaction marks in the May 11 subpoena, I would be unsurprised if there were HCS-C, HUMINT collection, documents included as well.

This is an incredibly aggressive approach. As I’ve said, I think DOJ would prefer to find a way to get Trump to plead out, however unlikely that would be. The sooner they share documents with Trump and Nauta’s lawyers, the sooner they might be in a position to persuade Trump how bad this will look if he goes to trial.

But note the two caveats: At least one of three known defense attorneys has not yet submitted his SF-86, the list of foreign contacts needed to obtain clearance. At least one of them — Chris Kise, who worked for Venezuela’s government — may not be eligible.

So one other underlying context to this is that until Trump can find cleared attorneys, he may be responsible for delays that would result in a trial during the primary season.

Trump and Nauta’s Release Conditions

June 14, 2023/91 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Going into yesterday’s arraignment, I believed the release conditions would be the only thing of note.

I was wrong. Alleged Trump co-conspirator Walt Nauta wasn’t even arraigned! It seems he may be having difficulty finding local counsel to add to his Trump-funded lawyer, Stan Woodward.

Still, the release conditions were newsworthy, but it took until Anna Bower wrote up her 27-hour wait for the 30-minute hearing before what happened became fully clear: on the summons, the government asked for no release conditions besides the order that neither man commit any more crimes (!!!), something Trump attorney Todd Blanche optimistically assured his client could do.

But then magistrate judge Jonathan Goodman imposed an additional one: a limited restriction on talking to witnesses.

Goodman had attempted to impose a no-contact rule, as well as prohibiting Trump from speaking to Nauta about the case. But Trump attorney Todd Blanche objected, noting that some of the witnesses are members of Trump’s personal detail.

[Prosecutor David] Harbach continues, the prosecution is not seeking a restriction requiring Trump to avoid contact with his co-defendant, witnesses, or victims.

Now Goodman is ready to make a ruling. As to Trump’s release, he agrees with the government’s recommendation: “I’m going to authorize a personal surety bond with no financial component,” he announces.

But Goodman isn’t willing to be as lenient as the government is with respect to the special conditions of that release. “Despite the parties recommendations,” he says, “I’m going to impose special conditions.” Specifically, Goodman wants Trump to avoid contact with witnesses and victims in the case except through counsel. He asks the government to submit a list of witnesses and victims so that Trump would know whom to avoid by way of abiding by the restriction.

Continuing to enumerate the special conditions of Trump’s release, Goodman further says that Trump should avoid talking to Nauta about the case. He emphasizes that he customarily would require no contact whatsoever between co-defendants. But here he recognizes that Nauta works for Trump, and it would thus be “impossible” for the usual condition to apply in this case. For that reason, Goodman says the restriction will only apply to Trump and Nauta’s communications about the case itself.

Blanche successfully attempted to narrow the contact order still further, allowing contact but not discussion about the case.

Here Blanche interjects: “Your honor,” he asks, “may I be heard on the special conditions?”

After receiving permission to continue, Blanche says that the “problem” with the conditions enumerated by the judge is that many of the likely witnesses in the case are part of Trump’s protective detail or long-time employees. “For him not to be allowed to have contact with them would in our view be inappropriate,” he stresses. To emphasize this point, he notes that the same challenges that exist in restricting Trump’s communications with Nauta similarly apply to Trump’s communications with his security detail and employees. “As one example,” he continues, a “key witness” is the President’s lawyer. For those reasons, Blanche urges the court to reconsider its restriction on communications with witnesses.

Then Harbach, rising at the judge’s request for a response, offers the government’s view. Noting that the government is “cognizant” of the issues raised by Blanche, Harbach suggests that the prosecution come up with a non-exhaustive, narrowed list of witnesses that could “accommodate” Blanche’s concerns. After producing the list, he advises, the government could confer with Trump’s legal team to work through any practical difficulties. Further, he says, the government would suggest that—as with Nauta—the restriction could be limited to communications with these witnesses about the case.

Responding to these representations, Judge Goodman momentarily toys with the idea of requiring the government to make up a two-category list of witnesses: a category of witnesses with whom there should be no contact at all, and a category of witnesses with whom there should be no contact about the case. For example, he says, members of Trump’s protective detail would fall within the second category.

Blanche, however, remains unsatisfied with this proposed arrangement. He suggests that it would be “unfair” to people who rely on Trump for their livelihoods if the government were to place them on the “no contact” list. Moreover, he says, these restrictions on communications with witnesses are not necessary because “all of these witnesses” have their own counsel, which Blanche seems to consider sufficient to guard against any improper communications with Trump.

Harbach, whom I suspect is keen to let the court impose this restriction now that it has been proffered by someone other than him, jumps in. He wants to “reiterate,” he says, that the magistrate’s special conditions are “workable.”

Judge Goodman agrees. Discarding the idea of the two-tiered list of no-contact witnesses that he had considered moments ago, he decides on a simpler course of action: The government should produce of list of witnesses, but the “no contact” restriction will be limited to no communications “about the facts of the case other than through counsel.”

“So that will be a special condition,” he declares with an air of finality.

This decision is what it is — and I have every expectation that Trump will violate the restriction on talking about the case. But this is a testament that Trump was charged based on the testimony of his closest aides. These people practically live with Trump. And their testimony could put him in prison.

A lot of people are upset that Trump and his alleged co-conspirator didn’t receive stronger conditions.

With respect to Nauta, of course, he’s got no record and he’s just charged with obstruction, so a personal recognizance bond is not that surprising.

With respect to Trump, most Espionage Act defendants are jailed pre-trial.

But there are recent examples where Espionage Act suspects remained out on pretrial release after their compromises were discovered. Both Robert Birchum and Kendra Kingsbury, for example, who like Trump collected hundreds of documents over years and took them home, remained at large (and according to the government sentencing memo filed just this week in Kingsbury’s case, she was less than helpful during the investigation). If the government hopes to find a way to get Trump to plead out of this charge, the comparison is not inapt.

More importantly, Trump has a full-time security detail, so he will be in immediate reach of Federal law enforcement at all times. Plus, there’s a strong preference for pre-trial defendants to be permitted to continue to work. His job is lying to rubes and running for President.

More generally, though, everything the government has done thus far — both by filing the case in Florida, and by doing nothing to impede Trump’s campaign (to say nothing of giving him an ankle bracelet to show off) — undercuts Trump’s claims that this is a political prosecution.

That won’t — and hasn’t — stopped him from claiming it is one.

But already, there are a number of Republicans who, once they’ve read the indictment, have started coming around to the gravity of Trump’s crime. There are a number of Republicans who agree that the decision to prosecute Trump was not political.

And that’s as important a part of this prosecution as anything else: to get a majority of the country to understand that the charges are merited.

SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

January 28, 2020/136 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Impeachment /by emptywheel

Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

January 17: Parnas asks to modify the protective order a third time
January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
January 24: Bondy responds to Fruman letter at more length
January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone — anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests.

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.