Devlin Barrett’s “People Familiar with the Matter”

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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-law, a 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.

I’ll let you decide whether the claim, made in Barrett’s latest report on the stolen documents case, means the FBI is considering the issue very narrowly or Barrett’s sources are bullshitting him.

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.

Barrett has a history of credulously repeating what right wing FBI agents feed him for their own political goals, which means it’s unclear how seriously to take this report. Particularly given several critical details Barrett’s story does not mention:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

To be sure: I think a good many of the documents Trump stole — including the most sensitive ones — were stolen as trophies. We know that’s why Trump stole his love letters with Kim Jong Un. And the visible contents of the FBI’s search photograph show that the most highly classified documents were stored along with Time Magazine covers.

But this report, from sources described as “people familiar with the matter,” bespeaks a partial view of the investigation, one Barrett hasn’t bothered to supplement (or challenge) with public records.

That description, “people familiar with the matter,” is the same one Barrett uses to remind readers that he got the scoop on the Iranian missile documents that his sources don’t think the Saudis would have any interest in, and his scoop that Trump stole documents about some country’s defense system (which, if the country is Iran, Saudi Arabia, or Israel, would be of acute interest to Trump’s golf partners, too).

The Washington Post has previously reported that among the most sensitive classified documents recovered by the FBI from Mar-a-Lago were documents about Iran and China, according to people familiar with the matter.

At least one of the documents seized by the FBI at Mar-a-Lago on Aug. 8 describes Iran’s missile program, according to these people, who spoke on the condition of anonymity to describe an ongoing investigation. Other documents described highly sensitive intelligence work aimed at China, they said. The Post has also reported that some of the material focuses on the defense systems of a foreign country, including its nuclear capabilities.

There’s no guarantee that these “people familiar with the matter” are the same sources for both the information about the most sensitive documents Trump stole and the current understanding about Trump’s motive. It could be that Barrett is using the same vague description to protect his source(s).

But they could be the same sources. Indeed, the blind spots in Barrett’s reporting may stem from having sources familiar with the national security review of the documents, but not necessarily the ongoing investigation into it. Some of the WaPo’s past reporting on this story seems to come from people who’ve seen the unredacted affidavit, but not necessarily the investigative files.

And that’s interesting, among other reasons, because the leak to Barrett about the most sensitive documents has formed the primary harm claimed by Trump’s lawyers in filing after filing after filing, starting literally the day after Judge Aileen Cannon cited leaks in her original order enjoining the criminal investigation.

The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported “classified records,” see, e.g., Devlin Barrett and Carol D. Leonnig, Material on foreign nation’s nuclear capabilities seized at Trump’s Mara-Lago, WASH. POST (Sept. 6, 2022), https://www.washingtonpost.com/nationalsecurity/2022/09/06/trump-nuclear-documents/, and would presumably be prepared to share all such records publicly in any future jury trial. However, the Government advances the untenable position in its Motion that the secure review by a Court appointed and supervised special master under controlled access conditions is somehow problematic and poses a risk to national security.

Trump cites Barrett’s work right alongside EO 13526 as “Other Authorities” central to Trump’s argument:

In any case, given the precedent of Nghia Pho (which may still be the only 18 USC 793 case cited by DOJ in this proceeding), it may not matter if Trump stole all or only some of these documents because he’s a narcissist. Trump brought a stack of classified documents to a foreign intelligence target and left them unprotected as multiple suspect foreigners infiltrated his resort. He continued to hoard such documents even after it was publicly reported that he had brought classified documents home.

During Trump’s Administration two men were sent to prison because, by bringing highly classified documents home for motives that had nothing to do with leaking, they made the documents accessible to Russian-linked sources, actions that ultimately led to a devastating compromise of US intelligence resources. Under Donald Trump’s DOJ, Pho and Hal Martin were not given a pass because they were serving their own ego.

So there’s no reason Trump’s narcissism, alone, should be a basis not to charge him.

Government Asks Raymond Dearie to Recommend Judge Cannon Lift Injunction on 2,794 Documents

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The global issues briefs from DOJ and Trump in the Special Master proceeding have been unsealed (DOJ, Trump).

The focus of both filings address what DOJ calls Trump’s gamesmanship but which is basically the kind of Calvinball that Judge Aileen Cannon appears to love. For many, if not most, of the 2,916 documents at issue, Trump’s argument appears to be:

  • If valuable then Tom Fitton (meaning, the misapplied argument that the President can designate anything “personal” and therefore effectively take possession of Presidential Records merely by sticking it in a box)
  • If not Tom Fitton, then Executive Privilege (meaning, if Raymond Dearie is not impressed by misapplied Tom Fitton logic, then he should allow Trump to withhold documents under a privilege claim)

DOJ provides a lot of reasons that’s nonsense, including that if Trump thinks something is personal then it obviously can’t be privileged.

A key part of the argument, however, is that even if Trump were able to invoke Executive Privilege against the government, DOJ would overcome that here because of the criminal investigation.

Plaintiff’s assertions of executive privilege fail under United States v. Nixon, because the government has a “demonstrated, specific need” for the seized records in its ongoing criminal investigation. 4

4 Because the government satisfies United States v. Nixon’s “demonstrated, specific need” test, which applies to a sitting President, the Court need not consider Plaintiff’s status as a former President for purposes of this analysis. [citations omitted]

Trump dodges addressing the Nixon standard by complaining that he hasn’t seen the unsealed affidavit that authorized the search, and so the government has failed to reach the Nixon standard.

Although crucial to the executive branch’s decision-making processes, executive privilege is neither absolute nor unqualified. Nixon, 418 U.S. at 706. Rather, the Supreme Court has recognized that the privilege must “yield to the demonstrated, specific needs for evidence in a pending criminal trial.” Id. at 713. In providing this standard, the Supreme Court clarified that in order to overcome an assertion of executive privilege, the party seeking the privileged material must “clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.” Nixon, 418 U.S. at 700. The Supreme Court again affirmed this standard in Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004).

Currently, the affidavit in support of the search warrant which authorized the search of Mar-a-Lago is under seal, and, therefore, inaccessible to Plaintiff. Plaintiff is therefore unaware of the specific arguments relied upon by the Magistrate in issuing the warrant authorizing seizure of the documents at issue. Given that, Plaintiff must take the position that the Government has failed to clear the three hurdles articulated by the Court in Nixon.

In other words, in a civil challenge to a lawful warrant, Trump is saying he should be able to retain stuff by default until he has seen the warrant against him.

Which is one reason why something else the government does is so interesting. It asks Dearie to recommend that Judge Cannon lift the injunction on all the documents — 2,794 out of 2,916 — over which Trump has not invoked either Executive and/or Attorney-Client privilege.

Finally, as the government has noted previously, the categorization of the records at issue as Presidential or personal does not ultimately affect the government’s ability to use and review them for criminal investigative purposes. See D.E. 150 at 4 n.*. Plaintiff has asserted attorney-client privilege only as to one document out of 2,916 documents at issue here, and Plaintiff has asserted executive privilege as to only 121 documents. As to the remaining 2,794 documents, Plaintiff does not assert any privilege that would bar the government’s further review and use of these materials for purposes of the ongoing criminal investigation. Although Plaintiff and the government disagree as to the proper categorization of numerous records as “personal” or “Presidential” for the purposes of PRA, neither categorization would supply a basis to restrict the government’s review and use of those records. Indeed, personal records that are not Presidential records or government property are seized every day for use in criminal investigations. Thus, absent any specific justification from Plaintiff for continuing to restrict the government’s review and use of the 2,794 records for which Plaintiff has not asserted any privilege, there is no reason to maintain the Court’s injunction as those those records.

This takes Judge Cannon’s premise on its face, as if this is just a normal Special Master review to ensure that the government doesn’t access any privileged documents for an investigation. If that were the case, she would easily approve the sharing of all documents over which the plaintiff had not made any privilege claim.

It may or may not work. But if Dearie were to act on this request immediately, then Cannon would either have to override it or grant it before the 11th Circuit makes its final decision on the appeal. Judge Cannon’s intervention is inappropriate on its face. But if she refuses to release non-privileged documents to the government, it will become clear that she is doing nothing more than attempting to thwart the criminal investigation of Trump.

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

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

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

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

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

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

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

Stolen documents

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

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

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

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

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

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

January 6 investigation(s)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Georgia investigation

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

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

In the Wake of Trump’s Third Electoral Failure, NYTimes Boasts of Hiring a Third Trump-Whisperer

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His sanction-worthy misrepresentations of the Igor Danchenko indictment notwithstanding, Jonathan Swan is a good reporter. Indeed, his move to the NYT, which frees him to write like a human being rather than a McKinsey consultant (AKA Axios style), will likely be a significant improvement on his coverage of DC politics.

But it is downright insane that, at a time the GOP and Fox News are at least making noise about ditching Trump, the NYT pitched this hire — and their own political reporting — in terms of Trump.

Our insightful, authoritative and addictive coverage of the election this year drove home an essential truth: The Times’s political team is simply the best in the business.

Take our coverage of Republicans and Donald J. Trump.

We have Maggie Haberman, the dominant reporter of the Trump era, whose prolific, revealing and exclusive coverage has become indispensable to millions of readers. We have Michael Bender, whom Maggie admired as her “fierce competitor” from his days at The Wall Street Journal, and who has delivered exclusives on everything from the former president’s plans to buy Greenland to examinations of how Trumpism remade the Republican party.

And today we are thrilled to tell you that Jonathan Swan, a gifted, dogged and high-impact reporter, will be joining The Times. Jonathan, a national political reporter at Axios, is one of the biggest news breakers and best-sourced reporters in Washington.

Even if you have never met Jonathan, you know his stories. He first reported that Trump would recognize Jerusalem as Israel’s capital, that the U.S. would pull out of the Paris climate deal, that Steve Bannon would be fired and that Paul Ryan would retire from Congress.

Or perhaps you watched his riveting interview with then-President Trump in 2020, which won Jonathan an Emmy (and made his facial expressions famous.) Ben Smith, the former media columnist for The Times, wrote at the time that it was “perhaps the best interview of Mr. Trump’s term.’’

Jonathan’s nine-part written series on the final days of the Trump administration won broad acclaim, and the podcast on which it was based rose to No. 1 on the Apple charts. [my emphasis]

Again, I think the Swan hire is a net good for reporting — but aside from the degree to which Swan is an improvement over Jonathan Martin, who just moved to become Politico’s Politics Bureau Chief — that has nothing to do with the NYT.

Particularly accompanied as it is by Maggie’s multiple efforts to suggest Trump is still The One, the pitch of Swan as a Trump-whisperer — rather than simply as a very good reporter of right wing politics — this announcement commits to keeping Trump (as a politician, rather than, for example, a criminal suspect, something none of these three are very good at reporting) the center of attention.

And it comes in a piece that boasts of election reporting it calls, “insightful, authoritative and addictive,” but which had some rather spectacular failures — particularly with the Fettrman debate and a correct Kansas poll they downplay. While in August NYT acknowledged that a Red Wave might not come, their review of why it didn’t still seems to misunderstand what it means to vote to save democracy. If you wanted to understand the election, the NYT was generally unhelpful, and that’s before you consider its focus on horse race coverage rather than policy.

They think they did good a job, or at least are telling themselves they did!

Why would you boast that your political reporting is “addictive,” anyway? unless you’re proud of the way Trump used Maggie’s work to flood the zone with press clippings that had the effect of obscuring larger crimes.

The NYT’s pitch of a good reporter in terms of Trump comes as other outlets have made hires based on their shitty news judgment that there would be a Republican wave the outlet would want access into. Most famously, as early as March, CBS hired Mick Mulvaney in anticipation of a non-existent Red Wave still 8 months in the future.

[A] top network executive seemed to lay the groundwork for the decision in a staff meeting earlier this month, when he said the network needed to hire more Republicans to prepare for a “likely” Democratic midterm wipeout.

“If you look at some of the people that we’ve been hiring on a contributor basis, being able to make sure that we are getting access to both sides of the aisle is a priority because we know the Republicans are going to take over, most likely, in the midterms,” CBS News’s co-president Neeraj Khemlani told the staff of the network’s morning show, according to a recording of his comments obtained by The Washington Post. “A lot of the people that we’re bringing in are helping us in terms of access to that side of the equation.”

The thing is, these shitty expectations for a Republican landslide may distort coverage going forward, because multiple news outlets paid big money to invest in access to people who lost, most of all into a guy who lost fairly spectacularly three times now.

As they did in 2020, voters gave democracy another lifeline. They voted, affirmatively, for democracy. But it’s not clear the press view protecting democracy, as opposed to protecting access, with anywhere near the same urgency.

Update: Just as I published this piece, I saw this NYT column, which not only continues to make everything about Donald Trump, fails to account for how narrow margins in both houses change this calculus (particularly with regards to its facile claim that, “party leaders are asked to declare their allegiances to Mr. Trump or other potential rivals”), and has this incredible paragraph:

 First there was Mr. Trump’s proposed Muslim ban, and then the attacks on a federal judge’s Mexican ancestry, the “Access Hollywood” revelations late in the 2016 campaign, his public declaration that he trusted Vladimir Putin more than he did American intelligence agencies.More recently, Mr. Trump has waged a two-year misinformation campaign, claiming his 2020 defeat was “rigged.” His supporters stormed the U.S. Capitol in a violent attempt to disrupted the peaceful transfer of power. He now faces investigations into efforts to overturn the election results in Georgia, into his company’s finances and into his handling of classified documents.

It gets the chronology of the first sentence wrong. It calls Trump’s lies about 2020 “misinformation,” not “disinformation.” It claims he tried to “disrupted” the peaceful transfer of power and not prevent it. It suggests any investigation into an attempt to overturn the election is limited to Georgia. The description of the stolen document investigation as one into “handling” of classified documents misstates the crime, but it par for the course in legacy media coverage of that investigation. (And it has a typeset — with the missing space after the period — and a tense error that suggests it was not edited, even ignoring the lack of Oxford comma.)

Trump no doubt wants to keep himself as the center of attention. He no doubt will demand loyalty oaths from people willing to bet he’ll succeed. But if he does succeed — with whatever catastrophic effect on the country — it will be significantly because of editorial decisions the NYT made.

Trump’s Secret Document, with the Post-Administration Pollster Communication, in His Desk Drawer

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In Trump’s stolen document case, the two sides have submitted disputes to Special Master Raymond Dearie. Because some earlier documents remain sealed (because of the hurricane, DOJ says), the most descriptive document included is this one, laying out disputes.

The two sides are fighting over whether Trump’s notes on clippings and briefing books are presidential documents (both are squarely within the Presidential Records Act definition).

The most interesting description in the document pertains to one particular item over which the two sides are fighting: a “compilation” of two classified documents, with three communications that post-date when he left the White House.

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended.

This passage explains something I was wondering from the inventory: how DOJ accounted for the classified documents in the Bates numbers. The answer is that FBI included cover sheets to mark where the classified documents were, so they count in the running Bates count.

This particular document (or “compilation”) was in a desk drawer in Trump’s office. (We know that because the Bates number appears in Item 4, the box of stuff from the desk drawer, in the main inventory. Aside from the Roger Stone clemency, this was the only document outside of the leatherbound box with classified documents in Trump’s office.

The compilation, as found in the desk drawer, includes:

  • A Secret document
  • A Confidential document
  • A communication that post-dates Trump’s administration, from a book author
  • A communication that post-dates Trump’s administration, from a religious leader
  • A communication that post-dates Trump’s administration, from a pollster

The secrets involved here are nowhere near as sensitive as the stuff in Trump’s leatherbound box, which stored the most sensitive documents. Confidential documents like the one in this compilation are often State Department cables.

But in some ways this document is more damning: because it shows he was commingling stolen classified documents with his ongoing affairs after leaving the White House. It gets far closer to showing that Trump was using government secrets for his own personal affairs even after he left the White House.

Yes, DOJ Is Reportedly Investigating the 2018 Election that Trump Just Invoked with Ron DeSantis

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In the wake of Tuesday’s shellacking of Democrats in Florida and the losses of winnable seats by Trump endorsees, Republicans are explicitly discussing Ron DeSantis as if he is the head of the party, in lieu of Trump. That set off a temper tantrum on the second shittiest social media site run by a narcissistic billionaire [sic] in which Trump:

  • Accused Fox of fighting him and likened the focus on DeSantis to the 2016 election
  • Claimed his endorsement of DeSantis in 2018 was a “nuclear weapon” that took out Adam Putnam
  • Took credit for DeSantis’s victory over Andrew Gillum
  • Claimed he “sent in the FBI and the U.S. Attorneys, and the ballot theft immediately ended, just prior to them running out of the votes necessary to win”

This last bullet, which seems to claim that Trump deployed DOJ resources to help DeSantis win, has attracted a great of attention.

It would be utterly corrupt to imagine that Trump used DOJ resources to help in an election — though there is evidence he did in 2020: when Bill Barr’s efforts to undermine the Mike Flynn prosecution released altered Peter Strzok notes that Trump used in an attack on Joe Biden. He of course tried to do far more, going so far as attempting to replace Jay Rosen with Jeffrey Clark to give DOJ sanction to frivolous lawsuits.

Plus, people are far too quickly suggesting this claim is made up entirely, and that there’s no evidence of misconduct in 2018. That’s true not just because Trump’s lies generally have some basis, albeit really tenuous, in reality.

Just ten days ago, after all, the NYT reported that prosecutors on at least two investigative teams (which might actually be prosecutors bringing together networked conspiracies as seemed likely for 14 months), implicitly boosted by cooperation from Joel Greenberg, are investigating the 2018 Stop the Steal effort in Broward County.

The NYT article focused on efforts by Trump’s rat-fucker and friends to shut down challenges to the vote count: a Jacob Engels/Proud Boy mob in Broward County.

President Donald J. Trump and other top Republicans were stoking claims that the election had been stolen, and their supporters were protesting in the streets. Members of the far-right group the Proud Boys and people close to Roger J. Stone Jr., including Representative Matt Gaetz, took part in the action as the crowd was chanting “Stop the Steal.”

The time was 2018, the setting was southern Florida, and the election in question was for governor and a hotly contested race that would help determine who controlled the United States Senate.

Now, four years later, the Justice Department is examining whether the tactics used then served as a model for the attack on the Capitol on Jan. 6, 2021.

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

[snip]

The 2018 protests were triggered by the tight outcome of the races for United States Senate and Florida governor. On election night, the Republican Senate candidate, Rick Scott, declared victory over the Democrat, Bill Nelson, but the race was close enough that local officials were set to hold recounts in key locations like Broward County.

Prominent Republicans, including Mr. Trump and Senator Marco Rubio of Florida, suggested on social media that the Democrats were trying to steal the election. Mr. Engels promoted an event in Broward County, writing on Twitter that he was headed there “to handle this situation” and was going to “STOP THE STEAL.”

On Nov. 9, a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

Undoubtedly, the Proud Boys are not the FBI (though the FBI in this phase was far too credulous of the Proud Boys). But given the NYT report, it is nevertheless the case that Trump-related Broward County rat-fuckery in 2018 not only happened but is already under investigation.

It may even be the case that DOJ collected information about such things in near real time. DOJ obtained renewed warrants on three Roger Stone accounts on August 3, 2018. It continued to investigate Stone and associates at least through October 2018. And an investigation into the rat-fucker remained ongoing through his November 2019 trial and into at least April 2020.

Again, that doesn’t mean that Trump’s specific claim — that DOJ was involved in all this — is specifically true. It means that before you dismiss it out of hand, you should ask what bread crumbs of reality this probable lie is based on.

When Trump started threatening DeSantis, I immediately thought of Roger Stone, because collecting dirt with which to exert political pressure is what Trump’s rat-fucker does and because Stone was always active in these same circles. And the Broward County Stop the Steal effort may be the least of it.

After a Year of Executive Privilege Fights, Mike Pence Just Tweeted It Out

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The WSJ has published an excerpt — the parts relating to January 6 — from the Mike Pence book coming out next week. It includes descriptions of the following conversations with the then-President, at least some of which Pence was the only witness:

  1. Lunch on November 16, 2020, at which Trump said, “2024 is so far off.”
  2. A call on December 5, on which Trump raised the possibility of challenging the vote.
  3. A December cabinet meeting.
  4. A December 19 conversation in which Trump mentioned plans for the January 6 rally (which Pence claims to have thought was a “useful” idea).
  5. A January 1, 2021 phone call in which Pence told Trump he opposed Louie Gohmert’s lawsuit arguing that Pence had discretion to decide which votes to count. Trump accused his Vice President of being “too honest” and informed him that, “People are gonna think you’re stupid,” for choosing not to claim the power to throw out votes.
  6. A call on January 2 on which Trump said that if Pence, “wimp[ed] out,” he would be “just another somebody.”
  7. A meeting involving John Eastman and others on January 4.
  8. A meeting involving John Eastman in the Oval Office on January 5.
  9. The call Trump made to Pence on January 6 where he again called Pence a wimp.
  10. A meeting on January 11, where in response to Trump’s question whether he was scared on January 6, Pence said he was angry, purportedly just about the people “tearing up the Capitol.”
  11. An exchange inside the Oval Office during which Trump told Pence “Don’t bother” to pray for him.

Every one of these conversations are ones that would traditionally have been covered by Executive Privilege. Trump claimed such exchanges were covered by Executive Privilege starting over a year ago. Both Pence’s top aides — Greg Jacob and Marc Short — and three White House Counsels claimed such exchanges were covered by Executive Privilege this summer, and only in recent weeks did Beryl Howell override the claims of Pence’s people.

And yet, all the while, this book was in the works, including just on this topic, eleven conversations directly with the former President, many of them conversations to which Pence was the only witness.

Much of this description is self-serving (as most autobiographies are), an attempt to craft his support for challenging the election but not rioting. The excerpt, at least, does not disclose the advice that led him to reject Trump’s demand that he throw out votes.

This passage, in particular, seems to project any testimony that Eastman knew the request of Pence was illegal onto Greg Jacob, not himself.

On Jan. 4, the president’s chief of staff, Mark Meadows, summoned me to the Oval Office for a meeting with a long list of attendees, including the legal scholar John Eastman. I listened respectfully as Mr. Eastman argued that I should modify the proceedings, which require that electoral votes be opened and counted in alphabetical order, by saving the five disputed states until the end. Mr. Eastman claimed I had the authority to return the votes to the states until each legislature certified which of the competing slate of electors for the state was correct. I had already confirmed that there were no competing electors.

Mr. Eastman repeatedly qualified his argument, saying it was only a legal theory. I asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.

On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.

By context, Pence asked Eastman whether Eastman thought Pence had “the authority to reject or return votes.” Eastman’s response, without qualification that he was addressing just one of those two items, was that, “it’s never been tested in the courts.” Then, by Pence’s telling, he directly told the then-President that Eastman had only said that returning votes to the states would be illegal. But that’s not what Eastman responded to! He responded to both, and did so in front of Trump.

By stating that Eastman later told his general counsel, Greg Jacob, that the Supreme Court would overturn any effort to reject the votes, rather than just return them, Pence is making Jacob the key witness, and he’s telling the story in such a way that Trump was not directly a witness to the conversation.

Maybe it really happened like Pence tells it. Maybe not. There were other attendees (including, probably, Jacob), and some of them have likely already described what they saw to the grand jury.

But this protective telling of the story is particularly interesting given this description of how, on January 1, Pence told Trump he didn’t have the authority to decide which votes to count.

Early on New Year’s Day, the phone rang. Texas Rep. Louie Gohmert and other Republicans had filed a lawsuit asking a federal judge to declare that I had “exclusive authority and sole discretion” to decide which electoral votes should count. “I don’t want to see ‘Pence Opposes Gohmert Suit’ as a headline this morning,” the president said. I told him I did oppose it. “If it gives you the power,” he asked, “why would you oppose it?” I told him, as I had many times, that I didn’t believe I possessed that power under the Constitution.

This is the first, in the excerpt, that he describes telling this to Trump. But he also says he had already told him the same, “many times.” The circumstances of those conversations would be really critical for pinpointing the timeline of Trump’s machinations and the extent that Pence warned him they were illegal.

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

As Pre-Election Pause Comes to an End, Look First to Arizona (and Nevada and Georgia)

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Three times — with the Russian investigation, the Ukraine impeachment, and the January 6 insurrection — the GOP had a ready-made opportunity to distance the party from Donald Trump’s corruption. Each time, they not only declined to take that opportunity, but instead consolidated as a party behind Trump.

Given the swirl of investigations around Trump, Republicans will likely will have a fourth opportunity, this time at a moment when Ron DeSantis’ fortunes look more promising than Trump’s own.

That doesn’t mean Republicans will take it. Indeed, there are some Republicans — people like Jim Jordan — whose electoral future remains yoked to Trump’s. There are a even few members of Congress — Scott Perry, above all — whose legal future may lie with Trump.

But the possibility that yesterday’s results will change the Republican commitment to defending Trump at all cost will be an important dynamic in the face of any prosecutorial steps that DOJ takes now that the pre-election pause on such steps is over.

An indictment of Trump is not going to happen today. In the stolen document case, that’s likely true because DOJ will first want to ensure access to the unclassified documents seized in August, something that won’t happen until either the 11th Circuit decision reverses Judge Aileen Cannon’s decision to appoint a Special Master (that will be ripe for a hearing after November 17) or after a judgement from Special Master Raymond Dearie on December 16 that Cannon chooses to affirm. It’s not impossible, however, that DOJ will take significant actions before then — perhaps by arresting one or more of Trump’s suspected co-conspirators in hoarding the documents, or by executing warrants at other Trump properties to find the documents still believed to be missing.

In the January 6 case, DOJ’s unlikely to take action against Trump himself anytime soon because — by my read at least — there’s still a layer of charges DOJ would have to solidify before charging Trump, both in the prong working up from the crime scene (Roger Stone’s name continues to come up regularly in both the Oath Keeper and Proud Boys cases), and in the fake elector plot. With the testimony of Pence’s key aides secured before the election, Trump’s targeting of his Vice President may be the part of the investigation closest to fruition. There are probably phones — like those of Boris Epshteyn and John Eastman — that DOJ has not finished exploiting, which would have to happen before any charges.

Remember that the phone of Scott Perry — one member of that closely divided House — is among those being exploited right now.

In fact, particularly given the outstanding vote, a more interesting step DOJ might soon take would affect Arizona, even as the close election is settling out. There were several states where DOJ subpoenaed the bulk of those involved in the fake elector plot (here are two summary posts — one, two — of the most recent overt investigative steps). There’s one state, and I think it is Arizona (I’m still looking for the report), where everyone blew off these subpoenas. Mark Finchem is one of the people named on the subpoenas (though he appears to have clearly lost his bid to become Secretary of State).

In other words, in several states (NV, GA, and PA are others), DOJ was preparing the work to unpack the role of key Republicans in both states. Unpacking that role almost necessarily precedes a Trump indictment. But it will also significantly affect the electoral aftermath of these close states.

And all that’s before you consider that Fani Willis’ own pre-election pause will also end. Indeed, Newt Gingrich lost a bid to kill a subpoena in that investigation today.

As noted, the GOP calculus on how to respond to these investigations could change now that Trump has proven a loser once again (or maybe not!). But it’s worth remembering that top Republicans in at least four swing states — swing states that are still counting votes — are implicated in that investigation.

Judge Raymond Dearie Prepares to Consult with the Archives

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In his last act before today’s election, Special Master Raymond Dearie issued the following order:

I’ve added the new dates to the timeline below.

The December 1 status conference, which has attracted the most attention, is scheduled for such time as Dearie will have had a chance to review the two sides’ disputes. More importantly, it comes after the 11th Circuit will have this issue fully briefed — and could well have decided to stop the entire process. It will also come after most results of the election will have been decided. It will be public, so Trump will have to make his bid to claw back all the documents he stole before the press.

The notice that he will consult NARA is a bit more interesting. As Dearie notes, this was specifically permitted in Judge Aileen Cannon’s order of appointment. At the first status hearing, Dearie said he would alert Trump before making such consultation. This order serves primarily to tell Trump that this is his chance — while his team is writing their 11th Circuit response and drawing up their general document — to weigh in. But nothing will prevent Dearie from making this consultation.

Dearie knows a good deal about what NARA will say, because the Presidential Records Act is clear. Any document Trump saw as President is a Presidential record. Most of Trump’s claims so far are without merit, even ignoring that the documents were seized with a valid warrant and have evidentiary value.

But the order will ensure that Trump makes a three-page argument about how he is above the PRA. And it’ll provide another authority on which Dearie can rely to rule that Trump cannot convert government documents to his personal property by the mere act of stealing them.

Update: Tweaked timeline.

Timeline

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

October 25: Trump rethinks and submits his version of disputes

October 26: Both sides agree to brief general issues; Dearie resolves the remaining privilege issues and accepts briefing dates

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 7: Dearie reveals he will consult with NARA

November 8: Election Day; Principal briefs due to Dearie

November 10, 2022: Trump revised deadline to 11th Circuit; deadline to complain about consultation with NARA

November 12 (10 days after November 2): Both sides provide disputes to Dearie; response briefs to Dearie

November 17: DOJ revised reply to 11th Circuit

December 1: Status conference

December 16: Dearie provides recommendations to Cannon

Boris Epshteyn’s Clearance Problems

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

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

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

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

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

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

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

[snip]

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

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

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

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

Apparently her testimony described additional contacts she had with Epshteyn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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