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Aileen Cannon Issues Another Perfectly Routine Order

Judge Aileen Cannon set Donald Trump’s trial for hoarding 31 highly classified documents for August 14, 2023.

The trial won’t happen that quickly. This is, instead, an order stemming from Speedy Trial Act (and in any case, the trial would be set back a few weeks once Walt Nauta is arraigned, because barring a plea or other unforeseen developments, they will be tried together). Per the boilerplate, the two sides have to file Speedy Trial notices every 21 days from here on out.

Other parts of the boilerplate order are more interesting. For example, Judge Cannon ordered that each side can propose no more than 10 voir dire questions to be used in jury selection. This suggests that Cannon plans to conduct the questioning of the jury (again, this is routine in many places) and that she doesn’t envision the kind of 200 word questionnaire I would have envisioned to weed out bias.

Counsel shall be prepared to conduct limited voir dire following the Court’s questioning of the panel. Prior to Calendar Call, each party may file no more than 10 proposed voir dire questions (including any sub-parts) for the Court to consider asking of the venire. The Court will not permit the backstriking of jurors.

As I understand it, the reference to “backstriking” means that the two sides must issue peremptory challenges against jurors in real time, rather than seeing everyone who is qualified and picking the most disfavorable to kick off the jury.

This part of the order, more than anything else in this filing, could determine Donald J. Trump’s fate before a SDFL jury, because it would limit the degree to which both sides could hand pick a jury.

Another part of the order that may matter pertains to Rule 404(b) notices.

All responses pursuant to the Standing Discovery Order and/or Local Rule 88.10 shall be provided in a timely fashion in accordance with the dates scheduled by the magistrate judge. Noncompliance with the Standing Discovery Order, the Local Rules, or the Federal Rules of Criminal Procedure may result in sanctions. Any notice submitted pursuant to Federal Rule of Evidence 404(b) must be filed as a motion—not as a notice—and must identify with particularity the evidence to be introduced and the factual and legal basis supporting admission. Responses to such motions are due in accordance with the standard timing requirements set forth in Local Rule 7.1(c).

404(b) notices pertain to related conduct that is not itself part of the charges. Often it pertains to events that happened before the crime in question that show a predisposition to commit a crime (but character evidence is prohibited).

In the indictment, for example, the incident in which Trump leaked details of an Iran document may need to be introduced as Rule 404(b), because while it is itself a crime, it is not the crime charged in the indictment. Similarly, DOJ could try to introduce evidence that Trump selectively spilled classified information even as President.

Cannon will have discretion to exclude such information as prejudicial, among other things. And because the Milley incident is key to proving that Trump knew he could no longer declassify information, it could harm the case.

But we honestly don’t know whether she would do that! This order is boilerplate, and all it shows is that Cannon is, thus far, treating the trial of a former President as she would any other trial.

Update: This piece from Kyle Cheney is a useful review of how Judge Cannon has treated the few trials over which she has presided.

Filling the Surveillance Footage Gaps: Place and Payments

The government has asked for — and Trump and Walt Nauta’s lawyers have not objected — to a protective order in the stolen documents case. That’s utterly routine — though sometimes there is a stink about the terms of a protective order, which didn’t happen here.

The actual protective order itself does not include extra restrictions to prevent Trump from tweeting shit out — as his Alvin Bragg protective order did — but it does require the defense to make everyone who reviews discovery to sign a protective order as well (sometimes defendants unsuccessfully object to this on Sixth Amendment grounds because it provides a way to track a defendant’s own investigation).

The motion itself has attracted a good deal of attention because of this language, describing why they need to keep the discovery confidential: There’s an ongoing investigation.

The materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals

This makes more explicit what a description of needing to send this indictment back to a grand jury in DC, in the motion to seal the indictment, already implied. DOJ needed to tell grand jurors in DC a story about how much work Donald Trump and Walt Nauta did to withhold documents from the FBI and the Archives, in part so they could load them on a plane to Bedminster.

Which is why I want to look more closely at what else — besides information on an ongoing investigation — DOJ is trying to protect.

  • personal identifiable information covered by Rule 49.1 of the Federal Rules of Criminal Procedure
  • information that reveals sensitive but unclassified investigative techniques
  • non-public information relating to potential witnesses and other third parties (including grand jury transcripts and exhibits and recordings of witness interviews)
  • financial information of third parties
  • third-party location information
  • personal information contained on electronic devices and accounts

The first and second are routine — things like social security numbers and FBI techniques. The last, personal information on devices and accounts, is a nod to a great deal of content obtained in this investigation (including the pictures of stolen documents that appear in the indictment). Maggie Haberman reported that Trump hated those pictures in the indictment. A review of the pictures yet to come may prove sobering to Trump.

DOJ is, from the start, providing grand jury transcripts, but that’s likely a testament to the number of people who testified under a subpoena (normally, there would be more interview reports and DOJ might provide grand jury transcripts closer to trial).

It’s the remaining two I find interesting: financial information, and location data, particularly given the documents that went to Bedminster, never to be heard from again, and the gaps in surveillance footage.

Location data showing that someone was standing in front of a known surveillance camera at a particular time might help to fill the gaps that currently exist in the footage. Their bank account might provide more context.

These details may give Trump’s attorneys — and perhaps more importantly, Nauta’s — a sense of where DOJ thinks this investigation might head. In other circumstances, DOJ might try to obscure that an Espionage Act indictment charging 31 different highly sensitive documents is just the appetizer in a larger investigation. But in this case, they want Trump — and perhaps more importantly, Nauta — to know that from the start.

Aileen Cannon Did Something Normal

Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.

This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.

In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.

It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.

Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.

So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.

Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.

[snip]

In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.

[snip]

Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).

Trump and Nauta’s Release Conditions

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.

Mind the Gap: It Was the Musician, in the Storage Closet, with the Five Eyes Secrets

The indictment against Trump and Walt Nauta reflects many of the public reports based off what witnesses or their lawyers have shared with journalists. For example:

  • ¶12 describes that the Secret Service had no knowledge of or responsibility for protecting Trump’s boxes of stolen classified documents, which is likely based in part on interviews of past and current Secret Service Agents
  • ¶24 describes that Nauta helped Trump pack up in January 2021, something based on interviews of others who helped as well
  • ¶34 provides a transcript of the meeting at which Trump boasted about an Iran document in an attempt to attack Mark Milley, about which Margo Martin was interviewed in March
  • ¶35 describes how Trump showed someone from his PAC a classified map, another topic of interviews that got reported to the press

Details of all these interviews have made press reports, and we can now understand some of why DOJ needed those interviews (though that doesn’t explain why Trump wasn’t charged for disseminating classified information in Bedminster).

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).

For key days, there aren’t gaps, at least not for the storage room. These descriptions of movement into and out of the storage room, which come with time stamps, likely come from surveillance footage:

These are the videos that led Nauta to revise his testimony last November. After that revised testimony, though, he refused further cooperation. Since Nauta got a target letter, the Trump camp has released a revised story about why Nauta refused to cooperate, a story that Maggie and others dutifully parroted today without notice that it is a revised story, and therefore suspect.

So we still can’t be sure whether those gaps were put there intentionally and if so what they serve to hide.

One potential gap is outside Trump’s residence. The search warrant affidavit has a redaction that might obscure a request for a second location (or a more detailed description of the storage room). The only description in the indictment of boxes moving from Trump’s residence is the June 2 move, which reportedly involved the maintenance guy, and so is based on witness testimony. Other descriptions of his residence were obtained from texts. We know the boxes were in there, for example, because a female family member texted Nauta about them on May 30 last year, but there are no time stamp descriptions of the boxes arriving.

If DOJ tried, and failed, to obtain surveillance footage from outside Trump’s residence, it would have prevented them from learning how many boxes went with Trump to Bedminster that same day, which the indictment describes to be “several.”

There’s also no description of how and when the remainder of the boxes were moved back to the storage closet, even though the subpoena compliance should have gone through June 24. Again, that footage might help identify how many boxes went to Bedminster, only to disappear forever.

Just 12 of the boxes seized from the storage closet on August 8, 2022, had classified records in them, though, so Trump may have pulled any classified records from the remaining 22 boxes that were in his residence.

There’s another gap, though, that I find more interesting.

As I have noted, the first subpoena for surveillance footage requested footage starting on January 10, 7 days before Nauta and another employee loaded his personal car up with 15 boxes, 14 of which included classified records, to turn them over to a standard shipping company to return to NARA.

On January 13 and 15, Nauta and Employee 2 were still actively engaged in the two month process of helping Trump personally sort through upwards of 80 boxes to curate a set of 15 he was willing to send back.

44. On January 13, 2022, NAUTA texted Trump Employee 2 about TRUMP’s “tracking” of boxes, stating, “He’s tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow.” Trump Employee 2 replied, “Thank you!”

45. On January 15, 2022, NAUTA sent Trump Employee 2 four successive text messages:

One thing he asked

Was for new covers for the boxes, for Monday m.

Morning

*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much Trump Employee 2 replied, “Yes, I will get that!”

If Nauta or Employee 2 were in the storage closet at all on those days, it should have shown up on surveillance footage.

Maybe it did and it just wasn’t that interesting. Maybe MAL doesn’t keep surveillance footage that long.

But that’s why I’m interested in how DOJ did learn about that curation process (which, after all, is what the lie Nauta is charged with covered up — that first post-presidential curation process). Indeed, that first curation process is critical to ten of the Espionage Act charges, documents 22 through 31, the ones that were turned over in response to the May 11 subpoena. The former spooks who’ve done the most work trying to reverse engineer these documents have suggested this set of documents (all but one of which are from fall 2019, amidst impeachment) might be related; Matt Tait has speculated that three of them pertain to Turkey’s invasion of Syria and Trump’s decision to withdraw from most of Syria. You couldn’t charge those documents without solid proof that Trump affirmatively chose to hold onto them after he returned a first set in January 2022. So this sorting process is key to doing so.

In addition to interviews, the information about how the boxes moved around Mar-a-Lago came from text messages between Nauta, Employee 1, and Employee 2. A picture taken on June 24, 2021 shows how the boxes looked that day, when any boxes that weren’t spending the summer at Bedminster got moved there. Employee 2 took a picture on November 12, 2021 to show Trump how many boxes were there, then sent the picture to Nauta five days later, which seems to have been the beginning of their mutual effort to facilitate Trump’s personal sort of these documents.

It’s the picture taken on December 7, 2021 that I find particularly interesting — especially since Trump raised it yesterday at one of his rallies:

Somehow somebody turned over one of the boxes. Did you see that? I said, I wonder who did that. Did the FBI do that?

The FBI didn’t do it.

Walt Nauta discovered the box overturned with this document sticking out, which now makes up one of the 31 documents charged, long before the FBI had gotten involved.

Document dated October 4, 2019, concerning military capabilities of a foreign country (SECRET//REL TO USA, FVEY)

He took two pictures and sent them to Employee 2, the other person involved in facilitating this curation process.

On December 7, 2021, NAUTA found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked “SECRET//REL TO USA, FVEY,” which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, “I opened the door and found this…” NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, “Oh no oh no,” and “I’m sorry potus had my phone.” One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted. TRUMP’s unlawful retention of this document is charged in Count 8 of this Indictment. [my emphasis]

That person’s phone at first said, “Oh no oh no.” But then explained that “potus had my phone.”

I’m not sure what to make of either of those comments.

Though the indictment said the boxes fell, of their own accord, Trump, in front of his mob, seems to think someone knocked them over. In fact he made a point of blaming others, the FBI.

Because the indictment puts the picture in the initial section about how the boxes got placed in this storage room, before things like the guitar and coat rack visible in the December 7 picture got added, and not the section describing how Nauta and Employee 2 were moving boxes back and forth from the storage room to Trump’s residence so he could sort them, it obscures that Nauta would have discovered the spill during the time when he and Employee 2 were already starting this sorting process. All this movement had to have attracted a good deal of attention. And as I noted, as part of helping Trump sort through these documents, Nauta took notes on the boxes, which necessitated swapping out lids for those that ultimately did get sent back to NARA. So if anyone was in that storage closet to put a guitar there, or if someone wanted to use this item that was in the room in June 2021, or if someone decided to go in to see what all the fuss was about, then the boxes with the good stuff might be easily found.

This is the kind of thing the FBI would have wanted to check with surveillance footage — whether someone was in that closet and either inadvertently knocked over the boxes with a guitar or something else, or dug into the boxes themselves.

Those are the kinds of gaps that might lead Trump to preemptively blame the FBI.

The Mar-a-Lago Indictment Is a Tactical Nuke

I’ve become convinced that what I will call the Mar-a-Lago indictment — because I doubt this will be the only stolen documents one — is a tactical nuke: A massive tool, but simply a tactical one.

As I’ve laid out, it charges 31 counts of Espionage Act violations, each carrying a 10-year sentence and most sure to get enhancements for how sensitive the stolen documents are, as well as seven obstruction-related charges, four of which carry 20-year sentences. The obstruction-related charges would group at sentencing (meaning they’d really carry 20 year sentence total), but Espionage Act charges often don’t and could draw consecutive sentences: meaning Trump could be facing a max sentence of 330 years. Walt Nauta is really facing 20 years max — though probably around three or four years.

Obviously, Trump won’t serve a 330 year sentence, not least because Trump is mortal, already 76, and has eaten far too many burgers in his life.

For his part, Nauta should look on the bright side! He has not, yet, been charged with 18 USC 793(g), conspiring with Trump to hoard all those classified documents, though the overt acts in count 32, the conspiracy to obstruct count, would certainly fulfill the elements of offense of a conspiracy to hoard classified documents. If Nauta were to be charged under 793(g), he too would be facing a veritable life sentence, all for helping his boss steal the nation’s secrets. And for Nauta, who is in his 40s and healthy enough to lug dozens of boxes around Trump’s beach resort, that life sentence would last a lot longer than it would for Trump.

And that’s something to help understand how this is tactical.

I first started thinking that might be true when I saw Jack Smith’s statement.

He emphasized:

  • A grand jury in Florida voted out the indictment
  • The gravity of the crimes
  • The talent and ethics of his prosecutors
  • That Trump and Walt Nauta are presumed innocent
  • He will seek a Speedy Trial
  • A Florida jury will hear this case
  • The dedication of FBI Agents

He packed a lot in fewer than three minutes, but the thing that surprised me was his promise for a Speedy Trial. He effectively said he wants to try this case, charging 31 counts of the Espionage Act, within 70 days.

That means the trial would start around August 20, and last — per one of the filings in the docket — 21 days, through mid-September. While all the other GOP candidates were on a debate stage, Trump would be in South Florida, watching as his closest aides described how he venally refused to give boxes and boxes of the nation’s secrets back.

There’s not a chance in hell that will happen, certainly not for Trump. Even if Trump already had at least three cleared attorneys with experience defending Espionage Act cases, that wouldn’t happen, because the CIPA process for this case, the fight over what classified evidence would be available and how it would be presented at trial, would last at least six months. And as of yesterday, he has just one lawyer on this case, Todd Blanche, who is also defending Trump in the New York State case.

In fact, even though I understand how CIPA works, I’m not convinced this case can be tried. Before the indictment was unsealed, I imagined that Smith would charge about six documents, classified Secret, each of which demonstrated that Trump was exploiting the nation’s secrets, and just nod to the sensitivity of all the more sensitive secrets he was storing in an unlocked bathroom. Boy howdy was I wrong! Peter Strzok does the math to show that DOJ actually charged all but 13 of the Top Secret documents obtained either with the May 11, 2022 subpoena or in the August 8, 2022 search. And these are not just Top Secret. Of those documents whose compartments themselves are not classified, the documents include satellite intelligence, human intelligence, nuclear intelligence. Brandon Van Grack, one of the few other people who has been interested in the CIPA aspect of this case, seemed to struggle to describe the documents charged in this case.

One of the only ways I can imagine taking this to trial easily would be if the government had simply burned all the collection involved (including on the two Five Eyes documents), meaning presenting the documents he stole at trial would consist of one after another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho. That letter described how, after discovering that Pho had compromised a bunch of NSA programs, the NSA had had to abandon much of it.

Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.

For the moment, then, consider the possibility that this indictment is, as far as it involves Trump, simply a messaging document to alert Republicans who can still be reasoned with that Trump left the most sensitive secrets on a stage at Mar-a-Lago while weddings were going on and as a result, the IC simply shut down all the programs he had compromised.

My comment about the difficulty of taking this to trial is not, however, true for Nauta. Because he wasn’t (yet) charged with conspiring to steal these secrets, you could make it all the way to sentencing without having to expose the secrets Trump destroyed.

So let’s talk about Nauta.

As the indictment describes, he was interviewed on May 26, 2022. As ¶53 through ¶62 show, that interview happened in the middle of the scheme to fool Evan Corcoran into submitting a false verification that Trump had returned everything (Corcoran, in turn, fooled Christina Bobb into signing it). Nauta moved boxes on the following days before and after his first interview:

  • May 22: One box out of storage
  • May 24: 3 boxes out of storage
  • May 26: Interview
  • May 30: 50 boxes out of storage
  • June 1: 11 boxes out of storage
  • June 2: 30 boxes from Trump’s residence to storage

As the indictment describes, Nauta moved 64 boxes out of storage and 30 back. This had the effect of ensuring that at least 34 boxes of classified documents were not reviewed by Corcoran.

There’s also this paragraph, one of the most important in the indictment:

72. Earlier that same day, NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.

That paragraph makes it clear that some of those 34 boxes went to Bedminster, never to be seen again. I’ll count later and figure how many it was.

So in the middle of this scheme to keep 34 boxes of classified documents away from Corcoran, Nauta was interviewed by the FBI and asked about the last time Trump personally asked Nauta to sort through boxes of classified documents so he could hoard some. Several things in this indictment establish that Nauta knew this involved classified documents, including this picture from when Nauta arrived in the supposedly locked storage room to find one of the boxes had been knocked over by who knows what force and spilled open.

One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:

One thing he asked

Was for new covers for the boxes, for Monday m.

Morning

*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much

When whatever force was in the storage room to knock over that box, they were labeled with their contents, because Nauta had sorted and labeled them.

With all that in mind, go back to Count 38 and read about the answers Nauta gave in an interview in the middle of a second effort to sort classified documents so some of them could be taken to Bedminster, never to be seen again. He was asked about the first time that happened. And days after he had moved boxes to Trump’s residence again, he claimed he was unaware of bringing them to the suite in the first place.

Question: Does any – are you aware of any boxes being brought to his home – his suite?

Answer: No.

The alleged lies go on — but they were enormous.

With all that in mind, I’d like to return to a story that was floating in the press until a few weeks ago about the second time Nauta was interviewed. As parroted by the NYT on May 4 (and not for the first time), DOJ made a mistake last fall because, when Nauta refused to cooperate, they didn’t choose to immunize him. They were simply helpless to get the information Nauta could share via any other means!

Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.

Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.

The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.

The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.

More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.

The story was always obvious bullshit. As I noted on May 23,

If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny  of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).

The very next day, May 24, Nauta got a target letter.

Since Nauta got a target letter, the story has dramatically changed. It changed into a story in which Jay Bratt said something that Stan Woodward — the guy paid by Trump’s PAC whose legal advice to Nauta has left him facing obstruction charges — said something that seemed like coercion to Woodward.

At issue is an incident that took place last year, around November, when prosecutors were trying to gain the cooperation of valet Walt Nauta, who has been under scrutiny because prosecutors suspected he helped the former president conceal classified documents that had been subpoenaed.

Nauta had already spoken to prosecutors in the investigation when they called his lawyer Stanley Woodward and summoned him to a meeting at justice department headquarters for an urgent matter that they were reluctant to discuss over the phone, the letter said.

When Woodward arrived at the conference room, he was seated across from several prosecutors working on the investigation, including the chief of the counterintelligence section, Jay Bratt, who explained that they wanted Nauta to cooperate with the government against Trump, the letter said.

Nauta should cooperate with the government because he had given potentially conflicting testimony that could result in a false statements charge, the prosecutors said according to the letter. Woodward is said to have demurred, disputing that Nauta had made false statements.

Bratt then turned to Woodward and remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing”, before noting that he knew Woodward had submitted an application to be a judge at the superior court in Washington DC that was currently pending, the letter said.

The allegation, in essence, is that Bratt suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump. The letter was filed after Trump’s lawyers submitted a motion on Monday seeking grand jury transcripts, because of what they viewed as potential misconduct.

Significantly, that story changed on June 5, the same day as Trump’s lawyers, at least two of whom have subsequently left the team, met with Jack Smith.

When Nauta wasn’t going to get charged, Jay Bratt’s decision to play hardball was stupid, a mistake. A missed opportunity to get cooperation. When he was going to get charged, Bratt’s efforts to help Nauta avoid 20 or 330 year legal exposure became an ethical issue.

When Smith noted the integrity of his investigative team yesterday, he was signaling that he thinks this story is bullshit.

He may not be the only one, either. Jim Trusty made a really big deal about this new story on Thursday, when he had seen the summons but not the indictment. After he saw the indictment, he quit.

Which brings me to one other detail that I can’t get out of my head, given the uncharged examples of Trump disseminating classified information at Bedminster and the two instances when classified documents went to New Jersey never to be seen again.

One other reason Jack Smith gave to unseal the indictment was so he could share it to, among other entities, “sealed entities” and the grand jury in DC.

To the United States District Court of the District of Columbia, under seal, in relation to grand jury and sealed matters in that jurisdiction.

Among those sealed entities are the complaint that Woodward belatedly filed, after learning that Nauta got a target letter. Jack Smith needs to show Chief Judge James Boasberg that when Bratt strongly encouraged Woodward to advise his client to cooperate last November, DOJ already had really damning information showing he conspired to hoard these documents.

But the sealed entities aren’t the only entity that needs to see this indictment. So does a grand jury.

The investigation didn’t move, entirely, to Florida. Part of it was presented to a grand jury in Florida. But there are other parts that remain in DC, and those parts that remain in DC had to be told this indictment was coming.

This indictment is, in very significant part, a renewed invitation to Walt Nauta to cooperate in an ongoing grand jury investigation into what happens to documents when they go to Bedminster and disappear forever.

A very persuasive invitation.

Update: Fixed Stan Woodward’s last name.

Update: NYT has now done a piece covering these issues. They do not mention that just weeks ago, they were telling another story about this, fail to note that Trump routinely claims to believe things that he clearly does not, and treats the allegation itself as a set of “facts” that Trump got wrong, rather than an allegation only belatedly made months after the incident.

Around the same time, according to two people familiar with the matter, Mr. Woodward had a meeting about Mr. Nauta with prosecutors in the documents investigation, including Jay Bratt, from the Justice Department’s national security division, who was running the inquiry at the time.

During the meeting, the people said, Mr. Bratt tried to persuade Mr. Woodward to get Mr. Nauta to cooperate and then brought up the fact that he knew Mr. Woodward had a pending application to be a judge in the superior court in Washington. Mr. Trump’s lawyers and advisers believe that Mr. Bratt was effectively trying to cajole, even threaten, Mr. Woodward to counsel his client to help the government — an allegation that Mr. Trump later made himself on social media, albeit with his facts slightly wrong.

Trump’s own press secretary couldn’t have written a more favorable spin.

Update: I forgot I promised to go back and try to figure out how many boxes went to Bedminster to disappear forever. We can’t know because the universe of boxes was in flux throughout this process. But here’s what we do know:

 

The Flavors of Trump’s Obstruction

As I noted here, Trump was charged with 31 counts of stealing highly classified documents. Each of those charges carries a 10 year max sentence, and because they are Top Secret and beyond, they will draw draconian sentences.

I’d like to talk about the seven kinds of obstruction with which Jack Smith has charged Trump and Walt Nauta.

Effectively, in addition to the stolen documents, DOJ charges Trump and Nauta jointly with six different crimes involved in withholding classified documents. The obstruction charges all carry a 20 year sentence. But if convicted, they would likely group as the same scheme.

The false statements charges carry a 5 year sentence. Because they’re less serious than the obstruction, the obstruction would set the sentence.

In most of these, Nauta is either charged as a co-conspirator or included in an abetting theory (all the 2s in the indictment). While the obstruction charges backstop the classified documents charges for Trump, much of this is directed at inducing Nauta to flip.

Honest, it could get worse for him!

Count 32: 18 USC 1512(k)

This charges Trump and Nauta with conspiring to evade the May 11 subpoena by moving the boxes and getting Evan Corcoran to claim he had done a diligent search.

20 year max.

Count 33: 18 USC 1512(b)(2)(a) and abetting

This charges Trump and Nauta with withholding documents from the subpoena.

20 year max.

Count 34: 18 USC 1512(c)(1) and abetting

This charges Trump and Nauta with withholding documents from Evan Corcoran so he would submit a false subpoena response.

20 year max.

Count 35: 18 USC 1519 and abetting

This charges Trump and Nauta with withholding the documents from the FBI investigation.

20 year max.

Count 36: 18 USC 1001(a)(1) and abetting

This charges Trump and Nauta with scheming to conceal things from a Federal investigation.

5 year max.

Count 37: 18 USC 1001(a)(2) and abetting

This charges Trump with causing Christina Bobb to make false statements to the FBI.

5 year max.

Count 38: 18 USC 1001(a)(2)

This charges Nauta, by himself, for making false claims in an interview to the FBI on May 26, 2022.

5 year max.

In March, DOJ Asked Trump for the Iran Document; In April, DOJ Asked for His Saudi Business Records

Remember how I responded to CNN’s scoop that DOJ had recordings of Trump bragging about a document describing a plan to attack Iran that he acknowledged remained classified?

I suggested that if DOJ knew he had the document in July 2021, but didn’t find it in the documents returned in January 2022 or June 2022 or August 2022, then we’d have problems.

If it is, then it would be a document that Trump transported back and forth from Florida — something that would make it easier for DOJ to charge this in DC instead of SDFL.

If it’s something DOJ didn’t obtain in the search, but also didn’t obtain among the documents Trump returned in either January or June 2022, then … then we have problems. If this is among the documents that DOJ thinks Trump didn’t return, then we have problems, especially given Jack Smith’s focus on Trump’s LIV golf deal, because this is the kind of document that the Saudis would pay billions of dollars for.

CNN has a follow-up, revealing that after Margo Martin was asked about the recording in her March grand jury appearance, DOJ subpoenaed Trump for the document.

His lawyers couldn’t find it.

Attorneys for Donald Trump turned over material in mid-March in response to a federal subpoena related to a classified US military document described by the former president on tape in 2021 but were unable to find the document itself, two sources tell CNN.

[snip]

Prosecutors sought “any and all” documents and materials related to Mark Milley, Trump’s chairman of the Joint Chiefs of Staff, and Iran, including maps or invasion plans, the sources say. A similar subpoena was sent to at least one other attendee of the meeting, another source tells CNN.

The sources say prosecutors made clear to Trump’s attorneys after issuing the subpoena that they specifically wanted the Iran document he talked about on tape as well as any material referencing classified information – like meeting notes, audio recordings or copies of the document – that may still be Trump’s possession.

That was in March.

In April, DOJ asked Trump for records on — among other things — his business ties to the Saudis.

The Trump Organization swore off any foreign deals while he was in the White House, and the only such deal Mr. Trump is known to have made since then was with a Saudi-based real estate company to license its name to a housing, hotel and golf complex that will be built in Oman. He struck that deal last fall just before announcing his third presidential campaign.

The push by Mr. Smith’s prosecutors to gain insight into the former president’s foreign business was part of a subpoena — previously reported by The New York Times — that was sent to the Trump Organization and sought records related to Mr. Trump’s dealings with a Saudi-backed golf venture known as LIV Golf, which is holding tournaments at some of his golf clubs. (Mr. Trump’s arrangement with LIV Golf was reached well after he removed documents from the White House.)

Collectively, the subpoena’s demand for records related to the golf venture and other foreign ventures since 2017 suggests that Mr. Smith is exploring whether there is any connection between Mr. Trump’s deal-making abroad and the classified documents he took with him when he left office.

In March, DOJ asked for this Iran document Trump boasted on tape of having at Bedminster in July 2021, but his lawyers couldn’t find it.

In April, DOJ asked for records describing how and when he made a deal to host Saudi golf tournaments, and for how much.

In May, DOJ got Trump’s Chief Operating Officer to explain what he knew about gaps in the five months of surveillance footage Trump Organization turned over.

The Potential International Grift Hiding behind the Stolen Documents Investigation

Back in November, Devlin Barrett (along with WaPo’s Trump-whisperer, Josh Dawsey) published a column claiming investigators had found nothing to suggest that Trump was trying to monetize the documents he stole.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

I mocked Devlin’s credulity at the time. His story was utterly inconsistent with — and made no mention of — several details we (or I) already knew about the documents. It also showed no consideration of the value that the already-described documents would have for Trump’s business partners, the Saudis.

As Devlin Barrett’s sources would have it, a man whose business ties to the Saudis include a $2 billion investment in his son-in-lawa golf partnership of undisclosed value, and a new hotel development in Oman would have no business interest in stealing highly sensitive documents describing Iran’s missile systems.

The story was transparently an attempt by someone to prematurely cement an investigative conclusion, almost a month before the stay on DOJ’s access to the unclassified documents seized last August was lifted. Just two days later, Trump announced his bid for another Presidential term, and two days after that, Merrick Garland appointed Jack Smith, someone who had no partisan stake in issuing premature exoneration for Trump.

Yesterday, as the NYT published a second substantive story about Jack Smith’s subpoena for information about Trump’s business deals, Devlin published a perfunctory one. Even before he describes the subpoena, Devlin reports a single source concluding, as his sources concluded last November, “nothing to see here.”

But the inquiry produced little that wasn’t already publicly known, this person said, speaking on the condition of anonymity to discuss an ongoing criminal investigation.

Prosecutors sought information on any real estate and development deals reached in China, France, Turkey, Saudi Arabia, Kuwait, the United Arab Emirates and Oman, the person said.

The Trump Organization’s public website lists only one deal in that time frame in one of those countries, Oman, and that deal was done after Trump left the White House.

Devlin’s story notes his earlier report, but not how wildly it conflicted with even the events known at the time, emphasizing China not Iran.

The Washington Post reported last year that while the classified documents included sensitive information about U.S. intelligence-gathering aimed at China, among other subjects, investigators did not see an obvious financial motive in the type of documents recovered from Mar-a-Lago.

NYT’s more substantive story on this inquiry expresses far less certainty than Devlin’s single attributed source about what the subpoena obtained, much less what Smith already had to support this line of inquiry.

The Trump Organization swore off any foreign deals while he was in the White House, and the only such deal Mr. Trump is known to have made since then was with a Saudi-based real estate company to license its name to a housing, hotel and golf complex that will be built in Oman. He struck that deal last fall just before announcing his third presidential campaign.

The push by Mr. Smith’s prosecutors to gain insight into the former president’s foreign business was part of a subpoena — previously reported by The New York Times — that was sent to the Trump Organization and sought records related to Mr. Trump’s dealings with a Saudi-backed golf venture known as LIV Golf, which is holding tournaments at some of his golf clubs. (Mr. Trump’s arrangement with LIV Golf was reached well after he removed documents from the White House.)

Collectively, the subpoena’s demand for records related to the golf venture and other foreign ventures since 2017 suggests that Mr. Smith is exploring whether there is any connection between Mr. Trump’s deal-making abroad and the classified documents he took with him when he left office.

It is unclear what material the Trump Organization has turned over in response to the subpoena or whether Mr. Smith has obtained any separate evidence supporting that theory.

Neither story describes whether the subpoena listed which crimes are under investigation. On that topic, the NYT, as part of boilerplate, repeats the same thing I do when I make boilerplate recitations of the crimes under investigation: 18 USC 793(e), refusing to return classified documents, and 18 USC 1519, obstruction of the efforts to get those classified documents back.

While establishing a motive for why Mr. Trump kept hold of certain documents could be helpful to Mr. Smith, it would not necessarily be required in proving that Mr. Trump willfully maintained possession of national defense secrets or that he obstructed the government’s repeated efforts to get the materials back. Those two potential crimes have long been at the heart of the government’s documents investigation.

Devlin uses similar boilerplate.

The Mar-a-Lago investigation has centered on two potential crimes — possible obstruction for not complying with the subpoena, and possible mishandling of national security secrets for keeping classified documents in an unauthorized location

We are — all of us, myself included — forgetting the third statute included on the search warrant that once seemed a mere backstop to the others, 18 USC 2071, intentionally removing government documents. That statute, which once upon a time might have been used as the crime to which Trump could plead down in a plea agreement, carries only a three year max sentence. But along with that sentence, it disqualifies someone convicted of it from holding public office, something that would be challenged constitutionally following any jury verdict but which would be waived under any plea deal.

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

I’ve always believed (as have experts I trust) that this would be a particularly hard crime with which to charge a former President, largely because a President has legal access to these documents until noon on January 20. But asking about business deals Trump might have been pursuing while in the presidency, all the way back to 2017, might provide evidence of intent that predates the actual removal of the documents.

And learning about Trump’s business deals with, especially, the Saudis, might develop evidence for 18 USC 794, the far more serious crime of providing intelligence to help a foreign government.

Let me caution, I still think it exceedingly unlikely that Smith is pursuing 794 charges against Trump for stealing documents and then selling them to the Saudis, to be paid in the form of golf tournaments and branding deals in Oman. Please don’t take from my mention of this that I’m predicting Smith is going to Go There. Rather, I suspect Smith is thinking of a package of potential charges that would give Trump an option to plead down quietly, one sufficiently ugly to make Republican politicians not want to join him in his fight. I’m merely stating that taking documents and refusing to give them back — which is the currently known lead charge in this investigation– is a dramatically different fact set than taking them and sharing them with a foreign government that pays you a lot of money, especially one that subsequently engaged in multiple actions — keeping gas prices high during the election and chumming up to China — that seem to have surprised the US intelligence community, as if some intelligence visibility had gone dark before those happened.

But let me go back to Devlin’s source’s certainty that there’s nothing to see there. It’s an odd claim to make given the number of other gaps in understanding that seem to exist in the understanding of those not directly participating in the investigation.

The story where NYT first broke the Trump business deal subpoena described at least five different subpoenas to Trump Org (though way down at the bottom of the story, it describes “numerous” subpoenas):

  1. The subpoena including the golf deal and — we now learn — all business deals Trump has chased since 2017
  2. A subpoena to Trump Organization seeking additional surveillance footage
  3. A subpoena to “the software company that handles all of the surveillance footage for the Trump Organization, including at Mar-a-Lago”
  4. First, a subpoena to Matthew Calamari, Jr.
  5. Then, a subpoena to Matthew Calamari, Sr.

Matthew Sr., at least, would have visibility on business deals with the Saudis and others. But all the reports on the two interviews with the Calamaris suggest they were focused, instead, on why Walt Nauta contacted them after DOJ first subpoenaed surveillance footage.

To resolve the issue about the gaps in the surveillance footage, the special counsel last week subpoenaed Matthew Calamari Sr, the Trump Organization’s security chief who became its chief operating officer, and his son Matthew Calamari Jr, the director of corporate security.

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, one of the people said – initially a point of confusion for the justice department, which appears to have thought the text was to Calamari Jr.

Most reporters assume the gaps DOJ is trying to close pertain to Nauta’s own actions in advance of Evan Corcoran’s search of the storage closet. I’m not sure. That’s because DOJ got sufficient visibility from what they did receive to list the storage closet, Trump’s office, and Trump’s residence in the search warrant supporting the August search of Mar-a-Lago. They got sufficient visibility to lead Nauta to revise his testimony afterwards. That’s why I emphasized in my last post on this that DOJ asked for five months of surveillance video, predating the day, by eight days, that Trump sent boxes to NARA in January 2022. The gaps in question might have shown other people, not Nauta, entering the storage closet, or have shown Nauta entering at times entirely removed from the date of the subpoena. If — strictly hypothetically — those gaps coincided with business meetings with foreigners at Mar-a-Lago, it would be a flashing siren saying, “look here for the good stuff.” It might also explain why Nauta immediately reached out to Calamari about the video, if he knew some of that video would show things that were far more damning than the mere attempt to obstruct a subpoena response.

If Nauta had involvement in earlier sketchy activities, predating the subpoena, it might explain why — as Hugo Lowell reported — Nauta fairly obviously attempted to monitor Evan Corcoran’s own search.

The notes described how Corcoran told Nauta about the subpoena before he started looking for classified documents because Corcoran needed him to unlock the storage room – which prosecutors have taken as a sign that Nauta was closely involved at essentially every step of the search.

Corcoran then described how Nauta had offered to help him go through the boxes, which he declined and told Nauta he should stay outside. But going through around 60 boxes in the storage room took longer than expected, and the search ended up lasting several days.

The notes also suggested to prosecutors that there were times when the storage room might have been left unattended while the search for classified documents was ongoing, one of the people said, such as when Corcoran needed to take a break and walked out to the pool area nearby.

One more thing that might explain prosecutors’ concerns about gaps in the surveillance footage is if they coincided with the times when Corcoran had left the room unattended.

Yet every time someone writes about Nauta, they include language that might come from the vicinity of Stanley Woodward, the lawyer that Nauta shares with Kash Patel (as well as Peter Navarro and convicted seditionist Kelly Meggs and his wife), suggesting that it was a mistake not to immunize Nauta, as DOJ did with Kash, because it has prevented them from substantiating an obstruction case. The version of this in the NYT — which reflects the kind of internal DOJ dissent that WaPo has reported regarding a push to adopt a more cooperative stance in advance of the search — is especially unpersuasive.

Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.

Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.

The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.

The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.

More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.

If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny  of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).

And there’s something that is routinely missed in all of this coverage. The Guardian’s Lowell rightly suggests that because Trump didn’t directly tell Corcoran to search only the storage closet, it might present challenges to an obstruction case. But Trump’s choice to use Nauta as an obvious gatekeeper makes it far easier to charge Nauta with 18 USC 793(g), conspiring to hoard classified documents. So the observation that DOJ hasn’t chosen to charge Nauta with just false statements in the interim six months should in no way be taken as solace by Nauta, because what has happened in the interim puts him at risk of charges that carry a ten year sentence for each document in question rather than the few months he might face for lying to the FBI.

Nauta’s not the only one who might insulate Trump from obstruction charges but expose all of them to greater Espionage Act danger.

Witness the evolution of how Tim Parlatore described Boris Epshteyn’s role in the investigation. In March, Parlatore described that, until such time as Boris started being treated as a target, his access to people “inside the palace gates” was useful.

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

But in the wake of Parlatore’s departure from Trump’s legal team a week ago, he went on Paula Reid’s show (on whose show he had earlier told an utterly ridiculous story about Trump using classified folders to block a light by the side of his bed) and lambasted Boris as an impediment to communication between Trump and his lawyers.

Boris Epshteyn [] had really done everything he could to try to block us [the lawyers], to prevent us from doing what we could to defend the President, and ultimately it got to a point where — it’s difficult enough fighting against DOJ and, in this case, Special Counsel, but when you also have people within the tent that are also trying to undermine you, block you, and really make it so that I can’t do what I know that I know that I need to do as a lawyer, and when I’m getting in the fights like that, that’s detracting from what is necessary to defend the client and ultimately was not in the client’s best interest, so I made the decision to withdraw.

[snip]

He served as kind of a filter to prevent us from getting information to the client and getting information from the client. In my opinion, he was not very honest with us or with the client on certain things. There were certain things — like the searches that he had attempted to interfere with, and then more recently, as we’re coming down to the end of this investigation where Jack Smith and ultimately Merrick Garland is going to make a decision as to what to do – as we put together our defense strategy to help educate Merrick Garland as to how best to handle this matter, he was preventing us from engaging in that strategy. [my emphasis]

At one level, this publicity stunt appears to be an attempt to persuade Trump that he should fire Boris. WaPo’s coverage of this clash describes that Parlatore’s public appearance followed what seems to have been a “he goes or we go” meeting with Trump a week ago (though Jim Trusty, at least thus far, has not chosen to follow Parlatore).

Before this weekend’s public feud, members of Trump’s legal team tried to settle the conflict quietly. Parlatore and another lawyer for Trump, James Trusty, recently traveled to Florida to advise Trump that he needed to remove Epshteyn from the document case and the 2020 election case, according to a person familiar with the matter who spoke on the condition of anonymity to reveal private deliberations. Smith, the special counsel, is tasked with investigating both cases.

[snip]

Trump did not appear to take Parlatore and Trusty’s advice, as Epshteyn remained in his role as a key legal adviser and coordinator to Trump.

Parlatore has said he’d be willing to return if Boris were gone.

At another level, Parlatore seems to be getting out while the getting is good, shortly before any charges are filed, so he’s not stuck defending an uncooperative client who won’t pay his bills. (Update: WSJ reports that the investigation is all but done and some associates are prepping for Trump to be charged.) The publicity stunt gives him the first say on who is responsible for what comes next, too. If Trump gets charged, Tim Parlatore didn’t fuck up, Boris did.

The publicity stunt, with its claim that Boris lied to both him and Trump, may also be an attempt to insulate Trump. As such it may be little different than the ridiculous folder-on-the-bedside-light story.

But Parlatore’s response to Reid’s follow-up on Parlatore’s claim that Boris interfered with searches may be more than that.

Reid: What searches are those?

Parlatore: This is the searches at Bedminster, um, initially. There was a lot of pushback from him where he didn’t want us doing the search and we had to, eventually, overcome him.

Reid: Why didn’t he want you to do the search?

Parlatore: I don’t know.

Trump’s lawyer do not know — never have! — why Boris was so reluctant to allow a search of the property to which Trump flew to host a Saudi golf tournament directly after failing to comply with a subpoena.

Immediately after that exchange, Reid invited Parlatore to clarify that when he testified to the grand jury in December, he did so in lieu of any custodian of records for the searches done on Mar-a-Lago. Parlatore clarified he did not testify in response to a subpoena and on several occasions, when he offered to come back and clarify, prosecutors declined his generous offer.

Reid then gave him an opportunity to explain why the claims Parlatore made to Congress (which conflicted with known facts and which Epshteyn declined to sign) didn’t fundamentally conflict with the insta-declassification story Boris has told. Parlatore left me convinced that everyone is lying, meaning by choosing to retain Boris over Parlatore, Trump is just picking which lie he finds more convenient.

Nevertheless, Parlatore got his story out. He got to describe how the story he planned to tell Merrick Garland doesn’t conflict with the currently operative declassification story and more importantly, that if his December testimony to the grand jury was incomplete in any way, it’s all Boris’ fault.

Parlatore said, midway between his testimony and now, that if Boris started looking like a target, he might be in trouble. But in the wake of a two day interview between Boris and Smith’s attorneys and in the wake of subpoenas that raise increased questions about why Boris may have tried to prevent any search of the property at which Trump hosted the Saudis immediately after Trump blew off a subpoena, Parlatore took to the TV and offered his defense. If Jack Smith finds the Bedminster obstruction interesting enough, Parlatore may well have earned himself a subpoena.

The belated, convenient description of Boris as a filter rather than worthwhile access “inside the palace gates” is particularly interesting given WaPo’s description about what kind of advice Boris gave, in lieu of legal advice.

Epshteyn, a lawyer, had helped guide communications for Trump’s campaign and the White House.

According to the source, Parlatore and Trusty argued that the lawyers needed to focus on protecting Trump legally, not politically.

A source close to the Trump campaign who spoke on the condition of anonymity to disclose the team’s private thinking defended Epshteyn and said he is focused on protecting Trump from a variety of angles, whether it’s legal, political or related to the media.

Parlatore imagines he was trying to defend Trump legally. Boris thinks he’s defending Trump from a “variety of angles,” one of which is politics. That’s consistent with how Boris billed his time, which until after the August search he billed as political consulting. But it also suggests Boris was not just a gap in Parlatore’s knowledge, but also a gap in any privilege claims Trump can make over the others.

If Trump’s own ex-lawyer says that Boris was lying to both sides about what went on there’s a big gap in anyone’s knowledge — at least outside the team that has been investigating for a year.

Plus there’s all the stuff — even beyond the evidence collected in this investigation that DOJ would have obtained about these particular documents — that DOJ already knows.

During the Mueller investigation, for example, DOJ spent some time investigating how Trump shared highly classified Israeli intelligence with Russia just days after he fired Jim Comey. That includes the way in which White House staffers altered the MemCon of that meeting (much as, years later, the White House would alter the MemCon of Trump’s perfect phone call with Volodymyr Zelenskyy). That particular leak of classified information did not violate US law, because as President, Trump could declassify it. But it is precedent for Trump sharing the secrets of America and its allies with foreign countries that have helped him.

More directly on point, DOJ has abundant evidence regarding Trump’s approval of Tom Barrack’s efforts to tailor US policy to serve the Emirates and, secondarily, the Saudis, including to treat Mohammed bin Salman with full diplomatic status. On Barrack’s request, during the course of discovery, DOJ obtained a great deal of information from other agencies about Trump’s policy towards the Gulf Kingdoms. DOJ’s prosecution of Barrack ended in failure. But what it showed is that from the very start, the guy who got Paul Manafort hired did so knowing he could use it to promise to shape US policy to the Emirates’ interests. Like sharing classified information with Russia in 2017, Trump’s choice to shape US policy to serve the Emiratis and Saudis is not illegal. It’s only after he left the presidency where a quid pro quo could be important.

Unless, of course, such business discussions started earlier.

Again, I want to emphasize that I’m not saying Jack Smith is about to indict Trump for selling US secrets to the Saudis. But investigative developments reported out in the last several weeks have suggested that this investigation may not be the obstruction investigation everyone is treating it as.

Instead, Jack Smith may get to obstruction via a conspiracy to hoard classified documents.

Update: Corrected date on NARA document return.