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Judge Cannon Blows Off Concerns about Walt Nauta’s Conflicted Representation

Before I attempt to explain the substance of the order that Aileen Cannon issued in response to DOJ’s request for a Garcia hearing, let me point out how it looks on the docket.

Before DOJ filed its motion for a hearing on potential conflicts, it tried to submit something under seal in dockets 95 and 96 — probably details on the two other witnesses whose representation by Stan Woodward may present a conflict. Judge Cannon said the government hadn’t provided sufficient reason to seal, and so ordered the request, and the sealed information, to be struck.

Simultaneously, the Special Counsel moves for leave [ECF No. 95] to file under seal a “Supplement” containing additional information “to facilitate the Court’s inquiry” [ECF No. 96; see ECF No. 97 p. 2 n.2, p. 6]. The Special Counsel states in conclusory terms that the supplement should be sealed from public view “to comport with grand jury secrecy,” but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.

2. The Special Counsel’s motion for leave to file under seal [ECF No. 95] is DENIED.

3. The Clerk is directed to STRIKE from the docket sealed entries 95 and 96.

Before her order, there were two more docket entries missing — numbers 98 and 99. I’m not familiar enough with SDFL’s docketing rules to understand whether there’s something under seal in those dockets or not, but there could be. Perhaps Stan Woodward submitted something?

Then there’s Cannon’s order. Rather than scheduling a Garcia hearing to see whether Woodward can adequately represent Nauta going forward, she instead ordered briefing — adding two more weeks of delay, but more importantly, delaying the question of whether Woodward can represent Nauta without conflict.

Her order for briefing focuses primarily on something else: whether DOJ was pulling a fast one by using a non-SDFL grand jury to pursue matters pertinent to the SDFL matter before her.

Waltine Nauta shall file a response to the Motion for a Garcia hearing [ECF No. 97] on or before August 17, 2023. Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023. The remaining Defendants may, but are not required to, file briefs of their own related to the grand jury issue referenced herein, but any such briefs are due by August 17, 2023, and may be submitted in combined or individual fashion.

1 This request for supplemental briefing is not intended to substitute and/or to limit any future motion brought pursuant to Fed. R. Crim. P. 12(b). [my emphasis]

Contrary to some commentary on this, Cannon did not disclose the continued activity in the DC grand jury (bolded above). That was made clear both in DOJ’s motion for a Garcia hearing and in other materials.

The grand jury in this district and a grand jury in the District of Columbia continued to investigate further obstructive activity, and a superseding indictment was returned on July 27, 2023.

Woodward and Trump’s lawyers have been outspoken that they intend to question whether DOJ should have investigated this from the start in DC, or whether it should always have been in SDFL supervised by SDFL’s chief judge.

That issue was frivolous: DOJ didn’t know when the investigation was predicated where potential crimes happened.

This may be frivolous too. After all, most witnesses who testified before May testified in DC. So if one of them committed perjury, they would have to clean that up in DC (and that may be what happened with Taveras, either on his own or as part of a plea agreement).

But Cannon — perhaps prompted under seal by one of the defendants — seems intent on making it a big deal. And she made it clear that this set of briefing will be in addition to further motion practice, including motions complaining about misuse of a grand jury.

And it may well not be frivolous. DOJ is not permitted to use grand juries to continue to investigate an already charged crime. DOJ was explicit that it was not. It was investigating other kinds of obstruction. But we don’t know. And because Cannon struck DOJ’s sealed motion, she may have struck a perfectly reasonable explanation for all this, and instead left a sealed one from the defense.

This would be not dissimilar to a stunt Woodward pulled before Judge Trevor McFadden a few weeks ago, where he showed up late for Freddie Klein’s representations and — without prosecutors present — made accusations about what went down in a grand jury session that day with another of his clients.

The thing that matters in the short term, though, is Cannon seems to have no interest in walking Nauta through ways that Woodward’s continued representation of him may be a problem. And whatever other inquiry she may feels is necessary — whether frivolous or meritorious — she is causing at least two more weeks of delay before she’ll deal with that potential conflict.

Trump’s Family Is Not in His Prosecution

Chris Hayes made a salient observation yesterday: None of Trump’s family members have accompanied him to attend one after another arraignment.

It’s notable that he’s alone. There’s no posse and there’s no retinue and there’s no family. I would hope if I were to go through the ordeal that this man is currently facing, in my darkest hours, my wife and my kids, my loved ones and my friends, that I would have a crew, people that were standing with me. There’s — his wife is not there, I can’t see any of his kids, his daughter, who worked for him. No one! The guy is alone!

With two of those arraignments book-ending a persistent campaign from the far right, boosted by an A1 story in the NYT, politicizing Joe Biden’s decision to not to recognize Hunter’s illegitimate child until after the contentious paternity suit was settled, Hayes may be the first person in the press to note that Trump’s family has failed to attend his court hearings.

Sure, Eric and Don Jr are making speeches to rile up the base.

But why won’t Melania support her spouse as he faces three — and soon to be four — criminal prosecutions?

Are Ivanka and Jared too busy gulping down Saudi blood money to support their former boss?

Has Boris Epshteyn, who attended at least two of three arraignments and who is one of two likely candidates to be co-conspirator 6 in the January 6 indictment, become Trump’s symbolic son?

The failure of a single family member to accompany Trump to an arraignment — and the general silence on it — matches another detail of this latest prosecution.

A female Trump family member makes a cameo appearance in his stolen documents indictment, instructing Walt Nauta that there’s no space in the plane headed to Bedminster for all of Trump’s boxes.

On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:

Good afternoon Walt,

Happy Memorial Day!

I saw you put boxes to Potus room. Just FYI and I will tell him as well:

Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage. Thank you!

NAUTA replied:

Good Afternoon Ma’am [Smiley Face Emoji]

Thank you so much.

I think he wanted to pick from them. I don’t imagine him wanting to take the boxes.

He told me to put them in the room and that he was going to talk to you about them.

Whichever female family member this was will not have to testify. Nauta’s own words will be admissible at trial. And they’re in the indictment primarily to situate where the documents were: in “Potus room.”

But, unless I’m missing it, the January 6 indictment doesn’t include references to family members — not Don Jr or Eric, who both gave speeches, not Jared, who was involved in some campaign-related events.

And especially not Ivanka.

There are two key parts of the indictment where Ivanka should show up.

First, the indictment describes the call Trump made to Pence the morning of January 6, while hanging around the Oval Office with his family, Eric Herschmann, and Keith Kellogg, this way.

102. At 11: 15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.

The January 6 Committee spent a great deal of investigative focus obtaining witnesses who heard Trump’s side of the call. Keith Kellogg and Eric Herschmann (the latter of whose presence in the “family” meeting raises such interesting questions) both told part of the story. One of the most useful, it turns out, was Ivanka’s Chief of Staff, Julie Radford, who told the committee how Ivanka returned from that meeting deeply upset because Trump had called Mike Pence something like a “pussy.”

In fact, in their referrals section, the J6C Report specifically noted that Ivanka’s version of this story was so much less credible than Radford’s.

But in this telling, the indictment relies — appropriately, from an evidentiary standpoint — solely on Mike Pence, the only person, besides Trump, involved in both sides of the conversation.

There’s another passage where Ivanka was far more directly involved: in the efforts to get Trump to call off the rioters.

This passage describes that “his most senior advisors,” including Pat Cipollone, Pat Philbin, Mark Meadows, probably Dan Scavino, and almost certainly Eric Herschmann, tried to get Trump to write a tweet directing the mob to vacate the building.

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:

a. At 2:38 p.m., “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

b. At 3:13 p.m., “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” [my emphasis]

These statements are another thing on which J6C focused a lot of attention, particularly the first. And they obtained a good deal of evidence about how Herschmann had come to Ivanka’s office and brought her to the Dining Room to get her help in convincing Trump to release the 2:38PM tweet.

Indeed, Sarah Matthews was quite certain that the language about “staying peaceful” — the language the indictment includes among Trump’s many false claims — came from Ivanka.

Yet even though Ivanka was, in the Trump White House, every bit as important an advisor to Trump as Pat Cipollone, Pat Philbin, Mark Meadows, Dan Scavino, and Eric Herschmann, she’s not mentioned, neither as “his daughter,” nor as “Assistant to the President,” her formal title.

Just 15 minutes after the “stay peaceful” tweet, Don Jr also attempted to get Dad to call off the mob, but there’s no mention of that in this indictment either.

But the silence about Ivanka’s even more central role in all this is really telling given the recent NYT report — posted just over two weeks before the grand jury voted out this indictment — that she had never been asked to testify to the grand jury (technically this does not exclude an interview).

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Trump is alone at the defendant’s table, with none of his family members.

But even more striking, Trump is alone in his indictment, without any of the key roles played, including by his daughter and most trusted advisor, laid out in the overt acts.

Three of Stan Woodward’s Eight Current and Former Clients Prepare to Testify against Each Other

It turns out that Stan Woodward has or still is representing enough witnesses in the stolen document case to field an ultimate frisbee team (seven people).

He would have even had a sub before Yuscil Taveras got a new lawyer on July 5.

Those are the details DOJ included in a motion for a Garcia hearing in the stolen documents case, asking Judge Cannon to conduct a colloquy with Walt Nauta and two witnesses the government may call to testify against Nauta, to make sure they’re all cool with the conflicts that representing clients with adverse interests may pose.

According to the filing, DOJ first told Woodward about the potential conflict that representing both Taveras and Nauta might pose in February, then again in March.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

Taveras’ testimony that he told Carlos De Oliveira to call the guys who could give him permissions to start deleting things provides critical context for the text that Nauta sent Matthew Calamari Sr. around the same time.

For his part, Taveras is okay with Woodward staying on the case so long has he doesn’t use any confidences he shared to cross-examine him.

The Government has conferred with Trump Employee 4’s new counsel, and Trump Employee 4 does not intend to waive his rights to confidentiality, loyalty, and conflict-free representation with respect to his earlier representation by Mr. Woodward.

[snip]

Trump Employee 4’s presence at the hearing is not required. As set forth above, Trump Employee 4 has informed the Government, through his new counsel, that he takes no position as to Mr. Woodward’s continuing representation of Nauta (or anyone else) but does not consent to the use or disclosure of his client confidences and expects Mr. Woodward to comport with the ethical rules regarding maintenance of client confidences.

That would mean that Woodward may not be able to defend Nauta as vigorously as he otherwise might, because he might pull his punches against Taveras.

That’s part of the reason prosecutors want Cannon to make sure Nauta understands the limitations this may put on Woodward’s representation of him.

But that’s not all. Of the eight total witnesses in this investigation that Woodward has represented, two other people he still represents may also testify against Nauta, and their interests may conflict as well.

Nauta is represented by Stanley Woodward, Jr., who has represented at least seven other individuals who have been questioned in connection with the investigation. Those individuals include the director of information technology for Mar-a-Lago (identified in the superseding indictment as Trump Employee 4) and two individuals who worked for Trump during his presidency and afterwards (hereafter Witness 1 and Witness 2).

[snip]

Witness 1 worked in the White House during Trump’s presidency and then subsequently worked for Trump’s post-presidential office in Florida. Mr. Woodward has represented Witness 1 in connection with this case and, to the Government’s knowledge, continues to do so.

Witness 2 worked for Trump’s reelection campaign and worked for Trump’s political action committee after Trump’s presidency ended. Mr. Woodward has represented Witness 2 in connection with this case and, to the Government’s knowledge, continues to do so.

I told you I was missing some of the people he represents on the list I included in this post!

So on top of being paid by the PAC that’s under criminal investigation as part of a fraud scheme, Woodward is now representing an ultimate frisbee team’s worth of witnesses who may have to testify against each other.

This is the problem with omertàs: when they start to fail, they can collapse quickly.

I have argued that Woodward has done several things in this case — most recently, in demanding that Nauta get access to the classified documents he doesn’t have a need to know — designed to test how much Judge Cannon will let get the defense away with.

This one is a pretty big test of Judge Cannon, however.

Discoveries in the Stolen Document Discovery

As I noted in this post, the government provided a supplemental discovery notice yesterday. It included the following:

  • CCTV provided by Trump Org on May 9 and May 12 in response to an April 27 subpoena
  • CCTV obtained after June 8 pertaining to new obstruction allegations (DOJ does not confirm whether this came from Trump Org or not)
  • All 302s finalized by yesterday (302s are what the FBI calls interview reports)
  • All grand jury transcripts in government’s possession

The discovery confirms that the government took certain steps after June 8 to add Carlos De Oliveira to the indictment. There are two kinds of surveillance footage that appear in that section of the indictment: from De Oliveira and Walt Nauta’s stomping around trying to understand what surveillance footage there would be, including looking right at the key cameras in the hallway outside the storage room, as well as their discussions in the bushes just off Mar-a-Lago property.

The reference to location data may mean they obtained De Oliveira’s phone account.

The discovery also means that, if DOJ was using another grand jury, in addition to the DC and SDFL ones, Trump is now aware of it, because DOJ has turned over all transcripts in their possession (past notices had specified the two grand juries).

Finally, the discovery also describes that DOJ subpoenaed Trump Organization for yet more surveillance footage in April, which Trump Org turned over on May 9 and 12. That subpoena was already public; NYT reported it in May.

Prosecutors have also issued several subpoenas to Mr. Trump’s company, the Trump Organization, seeking additional surveillance footage from Mar-a-Lago, his residence and private club in Florida, people with knowledge of the matter said. While the footage could shed light on the movement of the boxes, prosecutors have questioned a number of witnesses about gaps in the footage, one of the people said.

The timing is interesting though. It comes after — per this WaPo report — Carlos De Oliveira was informed he might be charged after he claimed not to remember the dates when Trump returned to Mar-a-Lago in July 2022 (note: this “proffer” session sounds more like an interview conducted under a limited proffer before a grand jury appearance).

For one thing, De Oliveira said he did not remember his boss coming back to Mar-a-Lago in July, the people said. Trump tended to stay away from the Florida summer heat, and it did not seem likely to some investigators that De Oliveira would forget the former president showing up twice in two weeks.

The prosecutors’ dissatisfaction came to a head in mid-April, when De Oliveira was given a proffer session — an interview in which a prosecutor and a defense lawyer meet with a person to decide if they have valuable information to offer an investigation, the kind that could lead to a plea deal.

If prosecutors grew convinced De Oliveira was lying, they may have pulled his grand jury appearance. His charged false statements were in a January 13, 2023 interview at his Florida residence, not this appearance in what may still have been DC.

In the same time frame as this subpoena for additional surveillance footage, DOJ also subpoenaed Trump’s business records from the Saudi LIV tournament.

One of the previously unreported subpoenas to the Trump Organization sought records pertaining to Mr. Trump’s dealings with a Saudi-backed professional golf venture known as LIV Golf, which is holding tournaments at some of Mr. Trump’s golf resorts.

A later NYT story reported that the subpoenas were broader: to include foreign deals with a variety of countries.

The subpoena — drafted by the office of the special counsel, Jack Smith — sought details on the Trump Organization’s real estate licensing and development dealings in seven countries: China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman, according to the people familiar with the matter. The subpoena sought the records for deals reached since 2017, when Mr. Trump was sworn in as president.

And then, after those subpoenas but before Trump Org complied with them, the Matthews Calamari testified about why Walt Nauta sent Calamari senior a text in the time frame when he and De Oliveira were allegedly stomping around Mar-a-Lago attempting to implement Trump’s order to destroy surveillance footage.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

In that same April time frame, DOJ was also asking about loyalty oaths before being given Trump-paid attorneys to represent them — the fruit of which questions likely show up in ¶91 of the superseding indictment.

Another line of inquiry that prosecutors have been pursuing relates to how Mr. Trump’s aides have helped hire and pay for lawyers representing some of the witnesses in investigations related to the former president. They have been trying to assess whether the witnesses were sized up for how much loyalty they might have to Mr. Trump as a condition of providing assistance, according to people briefed on the matter.

It was after that, though, after the first indictment on June 8 which may have helped demonstrate the seriousness of this inquiry, when per CNN reporting the following happened with Yuscil Taveras, the IT guy who said he didn’t have the rights, on his own, to delete surveillance footage:

  • Receives a target letter
  • Decides he wants to be more forthcoming
  • Gets a new lawyer (reportedly after a conflict review instigated by a judge)
  • Testifies about the request De Oliveira made inside the sound room and his own response that De Oliveira would have to call people who might be one of the Calamaris

In that same period, per yesterday’s discovery letter, that DOJ obtained more surveillance footage and possibly the warrant tracking location data.

One note: If people testified before the grand jury in DC before Jack Smith moved to present charges in SDFL, they would have separate exposure for perjury there.

Here’s my track of what DOJ has turned over when (with links to the documents below).

 

June 21, 2023: Response Discovery Order

June 23, 2023: Motion to Implement Special Conditions

July 6, 2023: Supplemental Response Discovery Order

July 10, 2023: Defendants Response Motion for Continuance

July 13, 2023: Government Reply Motion for Continuance

July 17, 2023: Supplemental Response Discovery Order

July 18, 2023: Status Hearing (Lawfare account)

July 31, 2023: Supplemental Response Discovery Order

Update: Answered two questions I’ve gotten up in the text above: First, I used “provided by Trump Org” and “obtained” in the bullets above because that’s how the filing describes these. As I’ve noted, the video showing De Oliveira and Nauta in the bushes might well have come from a different property owner.

Second, I defined 302s, which are what the FBI calls interview reports.

How Trump Clouded Journalists’ Heads about Surveillance Video

In a story demoting Trump’s alleged co-conspirators to “minor characters” and omitting Yuscil Taveras’ reference to “the supervisor of security for TRUMP’s business organization” who could provide him the rights allowing him to delete security footage, NYT states as fact that Trump’s corporate person did turn over the surveillance tapes.

The Trump Organization ultimately turned over the surveillance tapes, and the indictment does not accuse any Mar-a-Lago employees of destroying the footage.

Until I noted it, NYT also reported that Taveras said he didn’t have the “right,” as opposed to “rights” to do so.

NYT is not the only outlet making this conclusion, noting that prosecutors obtained video and so concluding that Trump must have turned it over.

Such conclusions are wildly premature.

Trump, certainly, is making the claim.

But Trump’s tweet includes one demonstrable falsehood: any video turned over was compelled via subpoena, not handed over voluntarily (this repeats a false claim Trump made last summer about voluntarily turning over early tranches of documents). And Trump’s claim that he “never told anybody to delete them” conflicts with Taveras’ testimony about Carlos De Oliveira’s instruction, that “‘the boss’ wanted the server deleted.”

So, even ignoring he’s a pathological liar, there’s no reason we should credit Trump’s claim the tapes (at least some parts of them) were not deleted.

It is true that the current indictment does not yet charge Trump and his corporate person with deleting video. It is also true that the indictment stops at 3:55PM on June 27, 2022, more than a week before some surveillance footage was turned over on July 6, 2022. We only know part of what happened during the first five days after Trump Org was alerted to the subpoena. That leaves a lot of time for shenanigans.

There’s a lot of this story that prosecutors have not yet told.

Even in what prosecutors have revealed so far, it is clear Trump’s initial subpoena response fell short of complying with the subpoena, though there may be reasonable explanations for that. DOJ had subpoenaed five months of footage, from January 10 through the date of subpoena, June 24 (which would have captured the days leading up to Trump’s return of 15 boxes in January 2022). But Trump Org only provided footage from April 23 through June 24.

That’s a curious length of time: 62 days. It suggests Trump Org normally deletes surveillance footage after 60 days, not the 45 days Taveras believed they kept. But if that’s the case, to have 62 days of footage, Trump Org started preserving footage when Jay Bratt first alerted them to the subpoena on June 22. Importantly, if Trump Org’s surveillance footage is automatically written over after 60 days, then someone would have had to take action to start preserving it on June 22 for April 23 and 24 to have been included. That action would have happened before (at least as portrayed in the superseding indictment) anyone spoke to Taveras at Mar-a-Lago. Probably, then, that action occurred in New York.

More suspect is Trump’s failure to provide video footage of all the locations subpoenaed.

There’s a redaction in the citation of the subpoena in the warrant affidavit where it describes the locations requested.

It was never clear before last week whether the redaction hid another subpoenaed location. But the superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, one of which was the basement hallway.

The search affidavit describes that the disk provided on July 6 included footage only from four cameras in the basement hallway. Here, too, though, there could be a reasonable explanation: it may be Mar-a-Lago simply didn’t have cameras in the other requested positions. There’s another redaction in the search affidavit that might provide that explanation.

Certainly, when Walt Nauta and De Oliveira scouted out surveillance cameras with a flashlight on June 25, they’re only described as doing so in the basement hallway.

Many outlets are concluding that Trump Org must have turned over everything from that hallway since the search affidavit relied heavily on security footage to describe Nauta (then referred to as Witness 5) moving in and out of the storage room. But even that may overstate things. As I noted, there’s one movement of boxes that appears in the indictment but does not appear in the search affidavit: When Nauta entered the storage room on May 22, spent 34 minutes in there, and then left carrying a single box.

53. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

This is not proof that the footage wasn’t on the disk turned over on July 6. Perhaps the FBI wasn’t all that interested in this single box retrieval and so didn’t include it in the search affidavit. But it is a piece of footage the prosecutors may have obtained later, perhaps via other means.

This was only the first subpoena for video, however. Earlier this year, CNN described follow-up subpoenas after the August search, followed later by a preservation request before De Oliveira flooded the server room in October. The second subpoena, which may have been an attempt to learn when and how the remainder of the boxes were moved back into the storage closet, where they were found on August 8, might have obtained the footage of De Oliveira and Nauta scouting out the surveillance cameras. Once the FBI saw that, I’m sure they scrutinized what they had obtained far more closely, if they hadn’t already.

But there must be more than that: some weeks ago, the defense said they had received “approximately nine months” of surveillance 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).

If DOJ never got footage before April, they may have footage from some part of every month through December, when the last known search occurred (and if DOJ got a video of the search conducted at Bedminster, it may explain why the FBI hasn’t conducted their own search).

Importantly, defense attorneys don’t know how much surveillance footage they’ll eventually get. If all of it was coming from Trump Org, they would. (Though even the superseding indictment appears to rely on surveillance footage, capturing Nauta and De Oliveira in bushes just off Mar-a-Lago property, that could have come from a neighboring property owner.)

That’s why NYT’s earlier reporting may indicate that Trump Org didn’t “ultimately turn[] over all the surveillance tapes.” As NYT reported in May, DOJ also subpoenaed the software company that handles Trump’s surveillance footage.

But hoping to understand why some of the footage from the storage camera appears to be missing or unavailable — and whether that was a technological issue or something else — the prosecutors subpoenaed the software company that handles all of the surveillance footage for the Trump Organization, including at Mar-a-Lago.

Once DOJ identified suspected gaps they would do what DOJ does in all criminal investigations: find another source.

Especially when dealing with an entity, Trump Org, that in recent years had what the Senate Intelligence Committee described as “known deficiencies in [] document responses.”

When SSCI subpoenaed Trump Org for any documents showing ties between the campaign and Russia in 2016, Trump’s corporate person didn’t turn over everything. For example, they didn’t turn over (to Congress at least) an email from Paul Manafort describing how to “secure the victory,” predicting that Hillary “would respond to a loss by ‘mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results'” — precisely the strategy Trump used in 2020, albeit with the true statement that Russia was tampering with election facilities, though not the vote tallies.

I keep coming back to this, but one of those deficiencies — one of the things Trump Org didn’t provide in 2017, at least to the two congressional committees investigating Trump’s ties to Russia — were the emails showing that Michael Cohen directly contacted the Kremlin in January 2016 and got a response from Dmitri Peskov’s assistant. Mueller got a copy of it, though. He cited it in the report.

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350

There’s a ready explanation for how Mueller got an email showing that Trump’s fixer was in direct contact with the Kremlin during the election when it wasn’t included in Trump Org’s subpoena responses, at least to Congress: because on August 1, 2017, Mueller obtained Cohen’s Trump Org emails using a warrant served on Microsoft.

At least in 2017, as laid out in the warrant affidavit, Microsoft was the enterprise provider for Trump Org’s email.

55. On or about July 20,2017 and again on or about July 25, 2017, in response to a grand jury subpoena, Microsoft confirmed that the Target Account was an active account associated with the domain trumporg.com. Microsoft also provided records indicating that email accounts associated with the domain “trumporg.com” are being operated on a Microsoft Exchange server. According to publicly available information on Microsoft’s website, Microsoft hosts emails for clients on Microsoft Exchange servers, while allowing customers to use their own domain (as opposed to the publicly available email domains supplied by Microsoft, such as hotmail.com). According to information supplied by Microsoft, the domain trumporg.com continues to operate approximately 150 active email accounts through Microsoft Exchange, meaning that data associated with trumporg.com still exists on Microsoft’s servers.

That meant that, even though Trump Org didn’t turn over those damning emails (and Cohen testified to Congress as if they didn’t exist), Mueller got a copy anyway from the vendor, Microsoft, providing the cloud services to Trump Org.

The same may have happened with Trump’s surveillance footage: DOJ went to a cloud provider to obtain their version of it, without any gaps.

That warrant was, in part, a Foreign Agent warrant, so people in DOJ’s National Security Division working with Jay Bratt likely would have had a heads up. Bratt and Julie Edelstein, both on this investigative team, may well remember Trump Org’s recent, “known deficiencies in [] document responses,” and so knew to look for another source.

If that happened, then Nauta and De Oliveira may have initially testified believing certain events weren’t on surveillance footage turned over to DOJ when DOJ actually had such footage, just like Michael Cohen testified to Congress (and initially, to Mueller) as if those emails didn’t exist.

Here’s a point I keep coming back to. The surveillance footage turned over on July 6 had really damning footage: showing Nauta first emptying then half refilling the storage room. That footage, showing Trump withholding documents from Evan Corcoran’s search, was central to DOJ’s probable cause to obtain the warrant to search Trump’s beach resort on August 8.

If there are or were gaps, they served to hide something still more damning than proof that Trump was playing a shell game with his own attorney.

What we know (and Jay Bratt and Julie Edelstein likely knew when they started this investigation) is that in 2017 during the Russian investigation, all the known “deficiencies in [] document responses” in Trump Org’s subpoena compliance pertained to precisely the thing investigators most feared they would find: Direct ties between Trump and Russia.

Which undoubtedly would have made them all the more determined to fill any real or perceived gaps in Trump Org’s production of surveillance video.

Update: The government reveals it was still obtaining surveillance until recently, pointing to both footage obtained with an April 27 subpoena and footage — it doesn’t say from where — after the June 8 indictment.

Included in Production 3 is additional CCTV footage from The Mar-a-Lago Club that the Government obtained from the Trump Organization on May 9 and May 12, 2023, in response to a grand jury subpoena served on April 27. On July 27, as part of the preparation for the superseding indictment coming later that day and the discovery production for Defendant De Oliveira, the Government learned that this footage had not been processed and uploaded to the platform established for the defense to view the subpoenaed footage. The Government’s representation at the July 18 hearing that all surveillance footage the Government had obtained pre-indictment had been produced was therefore incorrect. See 7/18/2023 Tr. at 8. With this production, which also contains CCTV footage obtained after the original indictment was returned that pertains to the new obstruction allegations in the superseding indictment, the Government has produced all the CCTV footage it obtained during its investigation.

And if there’s a non-public grand jury, then Trump knows about it.

With the completion of Production 3, the Government has also now disclosed all unclassified memorialization of witness interviews finalized by today’s date and all grand jury transcripts in the Government’s possession.

Stan Woodward Wants to Give Walt Nauta a Need to Know the Contents of the Stolen Documents

The headline revelation in DOJ’s renewed bid for a classified protective order in the Trump case is that Trump wants to be able to discuss classified documents with his attorneys in his offices, which the government correctly notes, “seeks permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

I’m sure we’ll come back to that, particularly if Judge Aileen Cannon entertains Trump’s demand seriously (under CIPA the government could immediately appeal any decision to the 11th Circuit).

But I’ve been more interested in Walt Nauta’s demand: that he get to see all the stolen classified documents charged in the indictment.

Defendant Nauta objects to language that limits his personal access to classified information, as opposed to access by his cleared counsel;

[snip]

Defendant Nauta is charged only with obstruction and false statement offenses related the movement and concealment of Defendant Trump’s boxes; the contents of the classified documents contained in the boxes, and the national defense information that they contain, are not material to proving or defending against those charges. Moreover, Defendant Nauta’s counsel will have the opportunity to review the classified discovery, and should they see a need to share any particular classified documents with Defendant Nauta, counsel will have an opportunity to raise the issue with the Government and the Court.1

1 The Government intends to provide to Defendant Nauta’s counsel all classified discovery identified to date.

[snip]

As explained, Defendant Nauta has no need to review the contents of the classified information. His cleared counsel will have full access to the documents in preparing his defense, and the protective order will allow Nauta to seek permission to review classified information personally if he establishes a need to know. The procedure set forth in the Government’s proposed protective order appropriately balances the need to protect classified information while allowing Defendant Nauta’s counsel the ability to assess the documents.

I assume this is one more effort from Stan Woodward — who is being paid by Trump’s PAC — to test the boundaries of Judge Cannon’s indulgence, a tactical move to figure out how much the defense team can get away with.

This is, in my opinion as someone who has been covering Espionage Act cases for over 15 years, an ill-considered move.

As I noted in my first review of the original indictment, Nauta’s alleged overt acts already then fulfilled all the elements of the offense of 18 USC 793(g), conspiring with Trump to hoard classified documents, which would dramatically increase Nauta’s legal jeopardy. Already then, Nauta was at risk of being superseded with charges that expose him to over a decade of prison time, possibly two.

That’s all the more true given the additional acts in the superseding indictment.

Effectively, this demand from Woodward is a request: Please give my client a Need to Know what is in those 32 highly classified documents that Nauta wouldn’t even have had the Need to Know when he was working in the White House.

The one thing that would give Nauta a Need to Know what’s in the stolen documents — as the government intimates — is if Nauta were charged under the Espionage Act, as he could be under 18 USC 793(g).

Which brings me to a key detail in this WaPo story — which reveals that, tomorrow, Trump will disclose he has spent $40M on lawyers, eating up his campaign cash (which makes Will Hurd’s quip from the other night — that Trump is running for President to stay out of prison — pretty timely).

That’s a really important story (and will create still more damning, unprivileged documents for prosecutors to find). But WaPo’s story confirms what I suspected when I focused on ¶91 of the superseding indictment — the one that describes Trump assessing Carlos De Oliveira’s loyalty before he offered to pay for a lawyer — as, potentially, its most important.

Stan Woodward — the lawyer who has decided it’d be a good idea to ask that his client be given a Need to Know what’s in the stolen classified documents — has started to face very serious conflict problems that have been inevitable for months.

Woodward represents at least the following people (I’ll add more when I remember them):

  • Peter Navarro (who goes on trial for contempt in September)
  • Dan Scavino
  • Kash Patel
  • Walt Nauta
  • Will Russell, who testified on July 20
  • Taylor Budowich, who testified in Florida
  • Brad Parscale in AJ Delgado’s pregnancy discrimination suit against the Trump campaign
  • Kelly Meggs, who has already been sentenced for sedition
  • Freddie Klein, the former State Department official who was part of the Tunnel battle, also recently sentenced
  • Ryan Samsel, who kicked off the entire riot on January 6

Critically, Woodward was representing Yuscil Taveras, whose recent testimony is one of the things that made it possible to add Carlos De Oliveira (represented by a different Trump paid lawyer) to the indictment and include the Keystone Cops effort to delete footage. That created a conflict between Nauta’s interests and Taveras’, and someone — presumably Chief Judge James Boasberg — appointed a conflict counsel for Taveras, which is what led to Taveras becoming dramatically more forthcoming.

Nauta, who investigators long considered a key witness in the classified documents investigation, has been represented for many months by lawyer Stan Woodward, with Save America footing the bills. Woodward also represents several other Trump-linked clients who have been subpoenaed as part of Smith’s investigations, including an IT worker named Yuscil Taveras.

For much of the classified documents probe, there did not appear to be a conflict between Nauta and Taveras.

After Trump and Nauta were indicted in June, however, Taveras decided he had more he wanted to tell the authorities about his conversations with De Oliveira, according to people familiar with the investigation who spoke on the condition of anonymity to describe private discussions.

Taveras offered information implicating all three defendants in an alleged conspiracy to cover up evidence, these people said.

Legal ethics rules bar attorneys from arguing adverse positions in a case — such as defending one client by cross-examining another client, or advising one person who is testifying to investigators or a grand jury against another.

Once Taveras’s position put him potentially at odds with Nauta’s defense, a judge reviewed the issue, a person familiar with the matter said. A second lawyer — not paid by the PAC — was brought in to provide legal advice to Taveras, who then spoke to investigators, according to people familiar with the matter. [my emphasis]

I’ve been waiting for the moment when DOJ would ask for a conflict counsel to be appointed for Nauta: because Woodward getting paid by a PAC that is under investigation for this spending is, by itself, a potential conflict. But this describes that a judge, probably Boasberg, brought in a conflict counsel for Taveras.

It’s not clear whether Taveras has flipped or just gotten far more cooperative — he fits the description of a person who had received a target letter, so the decision to be more forthcoming may have been entirely about self-preservation.

But Taveras has not only provided damaging testimony about Nauta, De Oliveira, and Trump, but he likely can explain who from Trump Organization in New York participated in the still uncharged successful efforts to delete surveillance footage, who might be able to give someone the rights to do that.

That is, he likely has testimony that could implicate the Matthews Calamari, key players in Trump’s corporate empire.

More importantly, prosecutors will do with Taveras what DOJ did with Cassidy Hutchinson after she described that Stefan Passantino was discouraging her from being all that forthcoming: ask more about the nature of that legal arrangement. They may also ask about Susie Wiles’ role in it (which is also laid out in the WaPo article), which also came up in even Hutchinson’s publicly released testimony about these matters.

And Wiles, of course, is not only the person arranging all this conflicted legal representation for people and now running Trump’s campaign, but she’s also someone who has been involved in the use of the documents; she is also reportedly the person to whom Trump showed a classified document in Bedminster she was not cleared to see.

It’s not just that Trump is spending more on lawyers than he is taking in. But he’s spending on lawyers whose conflicts make this entire scheme a fragile game of jenga.

One that may have started to fall apart.

Update: Trump Employee 5 in the superseding indictment must also have given testimony, which may also be fairly recent. Given that he’s the kind of person who’d be consulted about loyalty, he presumably also was part of the in-house lawyering team.

Update: NYT has their own version of this preemptive limited hangout of Trump’s financial shell game. It mentions the potential legal problem with using funds raised for election security to pay lawyers, but steers clear of the ongoing investigation into it.

The PAC was the entity in which Mr. Trump had parked the more than $100 million raised when he sought small-dollar donations after losing the 2020 election. Mr. Trump claimed he needed the support to fight widespread fraud in the race. Officials, including some with his campaign, turned up no evidence of widespread fraud.

Mr. Trump used some of that $100 million for other politicians and political activities in 2022, but he also used it to pay more than $16 million in legal fees, most of them related to investigations into him, and at least $10 million of which was for his own personal fees.

Save America began 2023 with just $18 million in cash on hand, which is less than half of what was spent on legal bills this year.

Campaign finance experts are divided on whether Mr. Trump is even able to continue to use the PAC to pay for his personal legal bills, as he became a candidate last November.

Update: CNN has confirmed the timeline: Taveras got a target letter after the first indictment, then ditched Woodward, then testified.

Yuscil Taveras, a Mar-a-Lago employee who oversees the property’s surveillance cameras, received a target letter from federal prosecutors after former President Donald Trump was first indicted in June on charges related to his alleged mishandling of classified documents after leaving office, sources told CNN.

[snip]

After receiving the target letter, Taveras changed lawyers because his attorney, Stan Woodward, also represented Nauta, which presented a conflict, sources said.

Update: Added two more Woodward clients.

Update: Added another Woodward client.

“Rights” and Wrongs: Where the Stolen Documents Investigation Is Headed

I want to start this post about where the stolen documents investigation may be headed with an observation a commenter here made about this passage of the superseding indictment: the import of the word, the “rights,” coming from an IT guy who would think in terms of access privileges.

The passage comes in the midst of the Keystone Cops routine where Walt Nauta and Carlos De Oliveira try to figure out how to achieve Trump’s apparent order — probably given during a 24-minute phone call to De Oliveira on June 23 and to Nauta face-to-face at Bedminster sometime between 3:44 and 5:02PM on June 24 — to delete the surveillance server. They were stomping around, squawking about how sensitive this mission was. Nauta sent someone texts with shush emojis and De Oliveira told a valet Nauta’s visit should remain secret.

The evening of June 25 — one day after DOJ sent Trump Organization a subpoena for surveillance video — they get a flashlight and go to inspect what the surveillance cameras would pick up; by moving in front of the surveillance cameras, which we now know are motion activated, they would have triggered the cameras, thereby creating more damning surveillance footage.

Imagine the video exhibit at trial, as both Nauta and De Oliveira point a flashlight at the surveillance camera that, weeks earlier, caught both of them moving just half the boxes full of classified documents back into the storage room, two earnest faces looking straight into the camera. That footage wouldn’t be covered by the subpoena they were, at that moment, trying to defy; it would probably be covered by the next subpoena.

Two days later (there’s no indication of how Nauta spent his day on Sunday June 26), on June 27, De Oliveira walks into the IT room and asks Yuscil Taveras in front of a witness (possibly in front of another security camera) to step away so they could speak. They go to what they call an “audio closet” (which could be the decommissioned SCIF) and De Oliveira tells Taveras that “the boss” wants the surveillance server deleted.

Taveras says three things in response:

  1. He doesn’t know how to accomplish that
  2. He doesn’t have the “rights” to do that
  3. To accomplish the task, De Oliveira would have to reach out to one of the Matthew Calamaris

The words, “rights,” here hasn’t gotten enough attention. Taveras was saying that he did not have the computer privileges to just delete the surveillance server: one of the Matthew Calamaris in New York would have to be involved to make such a thing happen.

So after that, De Oliveira checks back in with Nauta (who has flown to Florida to accomplish this task, along with whatever he did on June 26), they stomp around some more in suspicious ways that are visible to yet more surveillance cameras, and then two hours later Trump speaks to De Oliveira for 3.5 minutes. As described, Trump calls De Oliveira, not the other way around.

Remember how I said — of the January 6 investigation — that the January 6 investigation would take more time than the Watergate investigation because, unlike Nixon, Trump is not known to have wiretapped himself?

Well, on the stolen documents investigation, he did, effectively, wiretap himself, or at least all the employees he sent to accomplish his corrupt mission. And then Trump tried, over and over, to Rosemary Woods away incriminating video, at least this first time, captured on video again.

But amid all the Keystone Cops stomping around talking about secrets while on surveillance camera and sending shush texts, what Taveras said is an important hint of where this investigation may go next (as I laid out here).

Thus far, this story — and the conspiracy as charged so far — is just a story of a failed attempt to destroy surveillance video. De Oliveira: Can you delete the server? Taveras: Nope. I don’t have the rights. Stomp stomp stomp, almost all of it on surveillance video.

The Keystone Cops caper ends with Trump calling De Oliveira at 3:55PM on June 27, with no word of what led Trump to call De Oliveira and no word of whether whatever video got deleted was deleted in Florida or New York, or somewhere else.

The superseding indictment doesn’t mention, for example, the text that Nauta sent Calamari Sr — possibly even between 1:50PM when he and De Oliveira were stomping in bushes adjacent to Mar-a-Lao and the phone call that Trump made to De Oliveira at 3:55PM.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

Calamari was the guy, Taveras told De Oliveira, who would have the privileges to delete surveillance footage. And sometime in that period, Nauta texted him about the surveillance request.

Thus far, this is a story and a crime about an alleged attempt to delete surveillance footage. But we can be pretty certain that surveillance video was, in fact, deleted. That’s because reporters have reported on witnesses being asked that for months. There would be no reason to obtain nine months of surveillance video — 57 terabytes of raw video, if you can believe the defense attorneys — unless there was a whole bunch more to learn from the surveillance videos.

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).

And there would be no reason for Trump, on August 26, to get Nauta to verify De Oliveira’s loyalty (stomp stomp stomp) before arranging to provide him a lawyer if what came next, what happened after Trump’s phone call to De Oliveira on June 27 isn’t even more damning.

Indeed, that’s why it matters that — buried in a Devlin Barrett story opining that De Oliveira’s, “alleged actions could bolster the obstruction case against the former president” because apparently Devlin hasn’t learned his lesson about presenting evidence of more serious crimes and calling it obstruction — Trump (unusually) came back to Mar-a-Lago twice between June 3 and August 8: once from July 10 to 12, and once again on July 23, and that De Oliveira told the FBI he had given away the key to storage when they showed up on August 8.

The Keystone Cop caper, in part because it is so colorful and in part because it is charged as an unsuccessful attempt, has distracted most commentators from the fact that there was a more successful attempt, and that more successful attempt didn’t hide the movement of boxes in and out of the storage closet. As I’ve noted, all the movement of boxes in May and June shows up in the search affidavit relying on what DOJ did get from Trump, save one: Nauta’s retrieval of a single box on May 22.

The superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, of which the basement hallway is just one. And the most recent unsealing of the affidavit reveals that the only cameras included on the hard drive of surveillance footage turned over on July 6 were four cameras in the basement hallway. So one way or another, footage of those other locations was not turned over in response to the first subpoena.

Everyone treats this indictment as a terminal indictment — and if that’s as far as Jack Smith gets, it’s still far more damning than most everyone imagined on June 8. But multiple public references — the discussion on July 13 of continued efforts to fully exploit Nauta’s phone, the reference in DOJ’s descriptions of discovery that suggest there’s a grand jury somewhere other than DC or SDFL, and the suggestion that interviews have continued after June 23 — suggests that the current instantiation of the indictment is intended to be part of an ongoing investigation.

I noted from the first indictment that it was a “tactical nuke” designed to persuade Nauta to cooperate. Not only hasn’t the effort worked, but Stan Woodward has adopted a position on classified discovery — that Nauta, in addition to his attorneys, should get to see all the stolen classified documents — that I think makes it more likely DOJ would supersede to add a conspiracy to retain classified documents charge with him, because the elements of offense are all satisfied in the existing indictment.

Here are the obvious things that obtaining credible cooperation from Nauta would obtain:

  • ¶25: Details of Trump’s intent as Nauta helped pack up documents from the White House
  • ¶46: Why Trump was trying to hide when he instructed Nauta to replace the lids of the boxes
  • ¶54: What he was sent for on May 22
  • ¶61: What Trump instructed Nauta before he moved half the boxes back into storage for Evan Corcoran to search
  • ¶73: What boxes got loaded on the plane to Mar-a-Lago on June 3
  • ¶78: What Trump told him at Bedminster that led him to fly to Florida and try to bury the surveillance video (as well as what else he did on June 26, which is not accounted for)
  • ¶86: What both men discussed in the bushes
  • How Nauta came to text Matthew Calamari
  • ¶91: How Trump came to ask Nauta to ascertain De Oliveira’s loyalty and whether Trump had similarly offered him legal representation
  • What Nauta witnessed as Trump’s bodyman, especially in Bedminster

Here are the obvious things that obtaining credible cooperation from De Oliveira would obtain:

  • ¶76: Details of the 24-minute call he had with Trump, while Trump was at Bedminster
  • ¶86: What both men discussed in the bushes
  • ¶87: What Trump said on the phone call and whether De Oliveira had a role in the successful deletion of video, and how he knew what to delete
  • ¶91: What the terms of his representation are and whether it led him to lie (a question, other reports have made clear, many witnesses have been asked)
  • Why Trump returned to Mar-a-Lago twice before the August 8 search
  • To whom he gave the key to the storage room and on whose orders
  • Whether the October flood of the server room was an(other) attempt to destroy surveillance footage and if so, whether he was instructed to do so

De Oliveira might be a key witness to lead Nauta to reconsider his decision to protect Trump.

More importantly, one or both might be irreplaceable witnesses to answer a number of closely intertwined questions:

  • How is Trump is using lawyers to command loyalty and does it create conflict or obstruction issues
  • What surveillance footage has Trump prioritized for destruction and why
  • Why did Trump steal the documents, how has he used them, and where did the ones that went to Bedminster disappear to
  • What role does Trump’s PAC have in exploitation of the documents
  • What role does Trump Organization have in exploitation of the documents
  • Who else has had ready access to these documents

All this superseding indictment shows is that Trump had something to hide that goes beyond his desire to hoard the classified documents. Jack Smith may require the cooperation of one or both of these men to fully understand what Trump is really hiding.

This fairly remarkable post from the WSJ opinion page demonstrates the stakes of trying to answer it. It’s a pitch to elect someone other than Trump in the GOP primary, and premised on an utterly bullshit claim that Biden has politicized justice. But it gets a good distance of the way to an important discovery: even the Keystone Cops attempt already included in the indictment totally debunks Trump’s public defense, because if he believed in June 2022 that he had the right to keep these, he wouldn’t have dug himself — and thus far two staffers — deeper into a legal hole.

If Mr. Trump sought to destroy evidence, it undercuts his defense on the document charges. He contends that the Presidential Records Act gives him the right to retain documents from his time in office. But if Mr. Trump believed that, he would have played it straight. If the indictment is right that he hid the files from his own lawyers and tried to wipe the security video to stop anybody from finding out, then he didn’t buy his own defense.

From a Murdoch rag, this is a really important insight. But then WSJ predictably refuses to take the next logical step: That Trump’s obstruction makes it clear he didn’t just do this out of pigheadedness.

Prudential questions about the wisdom of this prosecution remain. Mr. Trump appears to have kept the files out of pigheadedness, not because he wanted to do something nefarious like sell them to an adversary. The FBI raided Mar-a-Lago to recover the documents.

The episode reflects poorly on Mr. Trump. But is this conduct that truly gives President Biden no choice except to ask a jury to jail his leading political opponent in next year’s election? At least Watergate involved a burglary.

We can’t even rule out a burglary, if Trump learned that he compromised these documents by storing them in his beach resort! Especially since De Oliveira claimed he had given the key away to others. We can’t rule out selling them to an adversary! We sure as hell can’t rule out trying to exploit them for the success of his PAC.

The indictment and an attempt to try this before the general election is an important goal, though potentially unrealistic given the CIPA challenges.

But it really is important to learn what Trump did do with these documents, who got the key, where they disappeared to.

This indictment doesn’t answer the question of why Trump stole these documents or what he did with them. All the superseding indictment did is make the question more urgent.

Update: Fixed Trump’s location from whence he called De Oliveira — the first call would have been Bedminster.

Carlos De Oliveira’s Uncharged Suspected Obstruction Happened on Aileen Cannon’s Watch

I’d like to make something explicit that’s implicit in this post. Some of Carlos De Oliveira’s suspected obstruction of the investigation into stolen documents happened on Aileen Cannon’s watch.

To be sure, it’s not charged, and the timing of all this is not made explicit in the indictment. De Oliveira is charged with four counts:

  • Count 33: Conspiracy to Obstruct Justice (18 USC 1512(k)) from May 11, 2022 until August 2022
  • Count 40: Corruptly asking Trump Employee 4 to destroy surveillance footage (18 USC 1512(b)(2) from June 22, 2022 until August 2022
  • Count 41: Corruptly attempting to alter surveillance footage (18 USC 1512(c)(1)) from June 22, 2022 until August 2022
  • Count 42: False statements in a January 13, 2023 interview with the FBI at his residence

The timeline of this is actually quite interesting. All the conspiracy charges go through August 2022, with no specific end date. That adopts the convention used in the first indictment.

By description, the conspiracies described in the first indictment might otherwise have ended on August 8, 2022, when the FBI seized the documents the obstruction attempted to hide. There was no overt act that post-dates August 8 in the first indictment.

There is in the superseding indictment. There’s this key paragraph, which describes that on August 26, 2022, after Trump confirmed De Oliveira’s loyalty, Trump called him and told him he would get him an attorney.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

That paragraph is important to prove the conspiracy because Trump Employee 5 appears to have testified independently about it. But it’s not about the June 2022 effort to destroy the surveillance footage. It’s an apparent effort to keep De Oliveira quiet about the June 2022 effort.

Witness tampering, a different kind of obstruction. But it is not charged as such.

At least not yet.

So the overt acts on the three conspiracies appear to go from May and June until August 26, 2022. But the indictment doesn’t include that as the specific end date.

On August 27 — the day after the last overt act in the three alleged conspiracies charged against De Oliveira — Judge Aileen Cannon issued an order providing preliminary notice that she would intervene in the case. On September 5, Judge Cannon issued an order enjoining the government from further investigation of the materials seized on August 8.

De Oliveira’s other alleged crime happened on January 13, 2023.

It happened after, on December 1, 2022, the 11th Circuit ruled that Aileen Cannon “improperly exercised equitable jurisdiction” to — among other things — stay any investigation using non-classified documents.

[T]he district court lacked jurisdiction to consider Plaintiff’s initial motion or to issue any orders in response to it.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

It happened after, on December 12, Aileen Cannon dismissed the civil suit before her.

De Oliveira’s first three alleged crimes happened before Aileen Cannon intervened, up through the day she did, in fact. All of Trump’s and Nauta’s alleged crimes ended before or on the day before she intervened.

De Oliveira’s fourth charge happened after the 11th Circuit ruled that she had improperly halted any investigation using unclassified materials seized from Mar-a-Lago from September 5 to December 1, a total of 87 days.

De Oliveira was not charged for something else, though, that — according to CNN’s report of it — was suspected to be another attempt to damage surveillance equipment, a flood of the IT room that, by description, happened in October.

An employee at Donald Trump’s Mar-a-Lago residence drained the resort’s swimming pool last October and ended up flooding a room where computer servers containing surveillance video logs were kept, sources familiar with the matter told CNN.

While it’s unclear if the room was intentionally flooded or if it happened by mistake, the incident occurred amid a series of events that federal prosecutors found suspicious.

At least one witness has been asked by prosecutors about the flooded server room as part of the federal investigation into Trump’s handling of classified documents, according to one of the sources.

The incident, which has not been previously reported, came roughly two months after the FBI retrieved hundreds of classified documents from the Florida residence and as prosecutors obtained surveillance footage to track how White House records were moved around the resort. Prosecutors have been examining any effort to obstruct the Justice Department’s investigation after Trump received a subpoena in May 2022 for classified documents.

Prosecutors have heard testimony that the IT equipment in the room was not damaged in the flood, according to one source.

Yet the flooded room as well as conversations and actions by Trump’s employees while the criminal investigation bore down on the club has caught the attention of prosecutors. The circumstances may factor into a possible obstruction conspiracy case, multiple sources tell CNN, as investigators try to determine whether the events of last year around Mar-a-Lago indicate that Trump or a small group of people working for him, took steps to try to interfere with the Justice Department’s evidence-gathering.

Agents first subpoenaed the Trump Organization for Mar-a-Lago surveillance footage last summer, before the August search by the FBI. But as more classified documents were found through the end of last year, investigators sought more surveillance footage from the Trump Organization, sources tell CNN. That included an additional subpoena after the FBI search in August and a request from the Justice Department for the Trump Organization to preserve additional footage in late October, according to one of the sources.

[snip]

Prosecutors from the special counsel’s office have focused their obstruction inquiries around Trump, Trump’s body man Walt Nauta and a maintenance worker who helped Nauta move boxes of classified documents ahead of federal agents searching the property last summer, and potentially others, sources told CNN.

The sources say that the maintenance worker is the person who drained the pool that led to the flooding of the IT room where the surveillance footage was held. [my emphasis]

If that really happened, if it really was another attempt to destroy surveillance video (as I noted, video that might show De Oliveira and Nauta’s earlier attempt to destroy the surveillance video, a cover up of the cover up), then it happened during the period when DOJ’s investigation was largely halted thanks to Aileen Cannon’s improperly exercised equitable jurisdiction.

It’s not yet clear whether Cannon’s injunction required DOJ to delay the January 13, 2023 interview until after the 11th Circuit ended it. After all, DOJ interviewed Christina Bobb in October and Kash Patel in November.

As of now, the overt acts in the apparent overlapping conspiracies to obstruct the investigation stop one day short of the moment when Aileen Cannon got involved, improperly, according to the 11th Circuit. And if DOJ were to substantiate the flooded server room was yet another attempt to tamper with surveillance footage, it would mean the obstruction happened on Judge Cannon’s watch.

Thus far, Cannon has issued one after another after another and yet one more not unreasonable order.

But we are butting against the date when Trump’s continued conspiracy to obstruct the investigation happened during the window she created by improperly intervening in the case.

Chekhov’s Alan Garten: The Human Gaps in the Surveillance Footage Gap

This post noted, shortly after Trump’s first stolen documents indictment, that the indictment included nothing about the gaps in surveillance footage DOJ spent much of the last year investigating. It also noted that the indictment did not name the maintenance guy who had played a role in moving boxes around.

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

As Jay Bratt’s notice to Aileen Cannon of the new details in the superseding indictment released last night explained, those paragraphs now identify newly-charged Carlos De Oliveira by name.

Paragraphs 62 and 63 now identify De Oliveira as the person who helped Nauta move approximately 30 boxes from Trump’s residence to the Storage Room on June 2, 2022, whereas paragraph 61 of the earlier indictment referred to De Oliveira as “an employee of The Mar-a-Lago Club”;

Paragraph 73 alleges that De Oliveira was one of the “others” identified in paragraph 72 of the original indictment who, on June 3, 2022, with Nauta, “loaded several of Trump’s boxes along with other items on aircraft that flew Trump and his family north for the summer”;

Yet even with the inclusion of De Oliveira in the indictment, the gaps about the gaps in the surveillance footage remain.

The conspiracy added to the indictment, laid out in ¶74 through ¶87, describes an attempt to destroy surveillance footage. As described, Walt Nauta and De Oliveira asked someone, identified in the indictment as Trump Employee 4 but who is likely Yuscil Taveras (identified in this story from NYT), to delete the surveillance server, but he said he could not. He told De Oliveira to contact the supervisor of security for Trump Organization.

83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.

84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an “audio closet” near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:

a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.

b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.

c. DE OLIVEIRA told Trump Employee 4 that “the boss” wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was the supervisor of security for TRUMP’s business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that “the boss wanted the server deleted and asked, “what are we going to do?” [my emphasis]

But that section ends with Nauta and De Oliveira meeting in the bushes just off Mar-a-Lago property the next day, then walking to the IT office, then walking back to the bushes again. There’s no allegation that Nauta and De Oliveira succeeded in deleting the video.

The entire section is bookended with these paragraphs, which — and I say this as a PhD in Comparative Literature — are narratively brilliant.

74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.

75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP’s business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras “on ground floor (basement),” where the Storage Room was located.

76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.

[snip]

87. [On June 27] At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes. [my emphasis]

The section starts and ends with a call to Trump. But never explains how the gaps ended up in the surveillance footage.

Let me go back.

As noted, and as Bratt noted, the original indictment didn’t identify De Oliveira at all. He was just some “other” guy involved, an employee of the club. In fact, in its first indictment, DOJ used a curious dual form of naming. The following people are clearly identified:

  • Trump and Nauta
  • Trump Employee 1
  • Trump Employee 2 (Molly Michael)
  • PAC Representative (reportedly Susie Wiles)
  • Trump Representative 1 (probably Alex Cannon)
  • Trump Attorney 1 (Evan Corcoran)
  • Trump Attorney 2 (possibly Boris Epshteyn)
  • Trump Attorney 3 (Christina Bobb)

Then there are people who are not identified by name:

  • ¶6a, ¶34: the people to whom he showed the Iran document, and the two staffers (reportedly Margo Martin, who recorded it, and Liz Harrington) who witnessed the interview
  • ¶19: the high level intelligence officials who briefed Trump
  • ¶24: other members of Trump’s White House staff, in addition to Nauta, who helped pack up boxes
  • 58c: A female Trump family member
  • ¶61: an employee of The Mar-a-Lago Club (De Oliveira)
  • ¶72: others, including De Oliveira, who helped load up boxes to go to Bedminster

This new indictment adds three identified Trump employees:

  • Trump Employee 3: the co-worker — who would have been at Bedminster — who alerted Nauta that Trump wanted to see him
  • Trump Employee 4: the IT worker, probably Taveras
  • Trump Employee 5: a valet who was asked — and confirmed in a Signal chat with Nauta — that De Oliveira was loyal

And the indictment adds several more unidentified Trump employees, several of which (like the reference to the female Trump family member in the first) could be sourced entirely to communications obtained from Nauta’s phone.

  • ¶77: The attorney for TRUMP’s business organization
  • ¶79: The people to whom Nauta gave inconsistent explanations of why he was making a secret trip to Florida: one person Nauta told he would not travel with Trump and a Secret Service agent
  • ¶83: Another employee in the IT department
  • ¶84c: Supervisor of Security for Trump’s business organization

Significantly, the original indictment describes how DOJ obtained surveillance footage this way:

In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.

Though the search warrant affidavit had described that “counsel for the Trump Organization” had a role, the original indictment made no mention of that. It was like a virgin birth of surveillance footage, delivered to the FBI with no explanation.

The other figures described but not named in the superseding indictment may or may not appear in later installments of this tale, like a gun shown in an early act of a play that later goes off.

The last — supervisor of security — is almost certainly Matthew Calamari, Sr, who was one of the very last people to appear before the DC grand jury before this case was moved to Florida and charged. Both Calamari and his son were asked why Nauta texted one of them (it turns out to have been Sr.) to call him about the subpoena request.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

But that exchange is for another indictment, possibly even another venue.

In this indictment, though, the attorney for Trump Organization, almost certainly Alan Garten, plays two roles. First, he received the draft subpoena from Jay Bratt on June 22 (this begins to explain the discrepancy regarding the date of the subpoena that I’ve been obsessed with from the start). And he’s the most likely explanation for why, the next day, Trump called De Oliveira and spoke for 24 minutes.

That is, Garten likely told Trump about the subpoena, which set off a process by which employees attempted to destroy surveillance footage in Florida.

According to Michael Cohen’s testimony, Alan Garten is the one responsible for Cohen’s document production to Congress, which ended up withholding documents showing him contacting Dmitri Peskov’s office. And according to the SSCI Report, there were other, “known deficiencies in the Trump Organization’s document responses.”

While DOJ has interviewed Calamari (and so may or may not have gotten honest testimony about what happened when he called Nauta), they are not known to have interviewed Alan Garten, the bar for which would be very high. They have, however, interviewed Alina Habba, who played a role in a suspected Alan Garten shell game to withhold documents from New York State, and in the process did a search of both Bedminster and Mar-a-Lago before DOJ served a subpoena for classified documents.

In spite of all these new details and new players, we still don’t know what happened between June 27, 2022, when Trump Employee 4 told De Oliveiras to reach out to Matthew Calamari and when Trump spoke to De Oliveira for three and a half minutes, and July 6, when Trump Organization turned over two months of video that reportedly had gaps in it.

There are still gaps in this story about how the reported gaps got into the surveillance footage. Indeed, there are still gaps about what the gaps attempted to hide!

As I showed here, the surveillance footage the FBI did get appears to have shown virtually all of Nauta’s box movements — and would have shown De Oliveira helping Nauta move 30 boxes back into storage on June 2 — because the search warrant affidavit relies on it. But they may not have shown Walt Nauta remove a single box from storage on May 22.

That, of course, was just the first subpoena for surveillance footage. There were more, undoubtedly including for footage showing Nauta and De Oliveira checking out the surveillance cameras with a flashlight on June 25, 2022, entering the IT department, walking through a basement tunnel and into an “audio closet,” then walking back into the IT office on June 27, and possibly, still on June 27, walking into the bushes just off of Mar-a-Lago property for two discussions. This superseding indictment must rely on a later subpoena for more surveillance footage from which the specific times of these movements would have been obtained.

Indeed, when De Oliveira allegedly flooded the IT room in October — at a time when Judge Aileen Cannon had put a stay on the investigation of these activities — he may have been attempting to thwart a second or third subpoena attempt, a cover up of the attempted cover up, an attempt to destroy the surveillance footage that ended up in this indictment.

Altogether, the surveillance footage that DOJ has since obtained covers nine different months.

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).

DOJ claims to have pinpointed which cameras they wanted and on what specific dates.

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage.

But there’s something in that surveillance footage that has made Trump very concerned about leaks, more so than he was about the documents seized last August.

This indictment provides shocking new details about Nauta and De Oliveiras’ alleged efforts to comply with Trump’s orders to destroy surveillance footage.

But it does not yet explain how reported gaps ended up in the surveillance footage.

And it doesn’t yet explain what Trump was trying to hide — what was worse than video showing Nauta emptying out the storage closet and then only half-filling it before Evan Corcoran did a search.

The Superseding Stolen Documents Indictment: Buying Loyalty

While all the journalists were in Prettyman Courthouse in DC, Jack Smith superseded the Florida stolen documents indictment to add Trump employee Carlos De Oliveira — the property manager — to the indictment.

He’s the guy who helped Walt Nauta move boxes around, including loading them to go to Bedminster. Nauta also allegedly asked him to help destroy surveillance footage.

The superseding indictment adds another stolen document count — the Iran document he showed others, which is classified Top Secret — and another obstruction count for attempting to destroy the video footage.

This passage describes how Nauta flew to Florida to attempt to destroy security footage.

This is a key paragraph of the superseding indictment. It shows how Trump uses legal representation to secure loyalty. It’s a fact pattern that crosses both of Trump’s crimes, and may well be in the expected January 6 indictment. It may help to break down the omerta currently protecting Trump.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

Several uncharged Trump employees have been added to the indictment.

  • Trump Employee 3, who simply passed on the information that Trump wanted to speak to Nauta on the day Trump Organization received a subpoena
  • Trump Employee 4, who is the Director of IT who had control of the surveillance footage; according to some reports, he had received a target letter
  • Trump Employee 5, who is a valet, but from whom DOJ seems to have firsthand testimony

The passage above seems to rely on testimony from Trump Employee 5 and the final exploitation of Walt Nauta’s phone.

It remains to be seen how DOJ learned the specifics of Trump’s conversation with De Oliveira.

And the PAC Representative — to whom Trump showed an Iran document — has been referred to as Susie Wiles. She’s a pivotal person in the alleged misuse of PAC-raised money.

This superseding indictment substantiates the obstruction more. But it also starts chipping away at the dangling of lawyers to obstruct the investigation.

Update: Here’s Jack Smith’s description of the additions.