A Likely Looming Battle in the Stolen Document Case: Classified White House Counsel Documents

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In this post, I argued that DOJ hopes to use a motion to stay Judge Aileen Cannon’s injunction against using materials seized from Donald Trump in any criminal investigation tactically — basically, to highlight she’s just stalling the investigation.

But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.

In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.

But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

[snip]

The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. [my emphasis]

DOJ is right that any classified documents obviously belong to the government.

But Trump’s lawyers don’t even want to cede that point. They refused the motion for a stay with respect to classified documents (which is not surprising, because in the hearing Jim Trusty said they could just make copies of all the classified records).

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.

The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.

As I have noted, there are three known classified documents that were put in the potentially privileged bucket, at least at the start.

There’s one document marked Confidential and another marked Secret seized from drawer(s) in Trump’s office.

And there’s a Top Secret document stashed along with clippings dating back to 1995 in box 29.

Plus, the packet involving clemency for Roger Stone — while it was not treated as potentially privileged — does include information marked as Secret.

If that involved communications with DOJ or the White House Counsel, I could see Trump trying to claw it back as well.

DOJ says that none of these involve Trump’s personal lawyers. But they’re not ruling out that they involve lawyers you and I paid for, the White House Counsel. And those documents are among the ones I can imagine Trump might care the most about.

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62 replies
  1. earlofhuntingdon says:

    One would think that the A/C privilege between the Office of the President and its White House Counsel, like EP, also belongs to the current incumbent. The relationship is not personal but institutional. In fact, one could argue that A/C privilege in this context appears to be a subset of EP.

    • Rugger9 says:

      Individual-1 will conflate the attorneys since it helps muddy the waters for Judge Cannon. However, I think this is a very apt question, because if the WHC is the office’s lawyer (not POTUS personally) then Biden’s got the decision on what is privileged or not.

      Is there an exact job description or scope for the White House Counsel? I would expect there is one, and that would determine whether 45 or 46 decides whether EP is invoked specifically. If the claim is that Corcoran’s ‘diligent search’ was sloppy and therefore Individual-1 doesn’t know what he had, too bad. He had 18 months to find out before the legally warranted search.

    • Yogarhythms says:

      Ew, Eh,
      “The relationship is not personal but institutional”.
      This is exactly the concept that hurts the most when your self perception won’t open the door and accept it’s a new day.

  2. John Paul Jones says:

    Possibly ignorant question: wouldn’t such documents as the pardon have been classified secret inappropriately in the first place, i.e., doing so might violate EO 13526, maybe 1.7 (a)?

  3. Jbryan says:

    EO 13526 was incorporated into the CFRs and is very much still in effect.

    An issue worth consideration is original classification vs derivative classification. A derivative classifier will mark a document with the relevant classification guidance and cannot simply classify a document. An original classification authority should not classify a single document but should issue a class guide for the subject. In any case there would be a documentation trail as to why the subject area and the document is classified. Lack of such documentation would be evidence of intent to hide.

    • TinMan says:

      It looks like someone forgot someone’s predilection to placing entries into the classified system in an effort to avoid discovery** in FOIA lawsuits.

      ** I’m drawing a blank now on the system name or the particulars of what brought this aspect of his WH management to the public’s visibility. Essentially references and/or notes about WH comings and goings were entered into a classified system instead of the usual/expected unclassified system. This was done by subordinates of (at the time) CoS Mulvaney and might have been perpetuated by Meadows. There were FOIA efforts early in the 45 admin to uncover visits to the OO (for a multitude of reasons) and they purportedly stymied these efforts by (improperly) placing those records into the classified system (shielding them) when they shouldn’t have been.

      And I could be wildly off-base with this recollection too so I’m happy to be corrected.

      [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have community members named “tinman1967” and “Tin Man.” Perhaps you’re one of these two but you forgot your username; “TinMan” may still be confusing to others. Thanks. /~Rayne]

      • Critter7 says:

        I believe that was the transcript of the Zelensky phone call, the one that led to first impeachment, that was entered into the classified document system, apparently for the purpose of hiding it.

        • earlofhuntingdo says:

          There might be lots of reasons not to declassify it, beyond whether embarrasses Trump or could be used to investigate him.

        • earlofhuntingdon says:

          There might be lots of reasons not to declassify it, beyond whether embarrasses Trump or could be used to investigate him.

        • Carole says:

          According to this WaPo article, John Eisenberg moved the transcript of the Zelensky call to a “highly classified server and restricted access to it, contrary to the usual procedure.

          Could it still be there?

          ETA; https://wapo.st/3Df08pD

  4. Paulka says:

    “DOJ is right that any classified documents obviously belong to the government.”

    This is the primary issue, as I see it. I believe you are correct and it would appear established law sides with that.

    BUT, it is the most important item to Trump. If he can’t prove he had a right to have those documents he is dead in the water. There is no other defense. He HAS to make the argument he had a right to those documents, which means he owned them. And I believe that is where the case will go.

    I think it somewhat naive to think that established law and precedent will stand against an investigation or prosecution of Trump. Parts of the judiciary (Cannon and Thomas at least) have shown an inordinate deference to Trump where they may try to create something that shields him.

    Just my opinion and IANAL.

    • Patrick Carty says:

      Obviously Trump doesn’t own national security documentation, but beyond that it would be a crime in and of itself to return them to Mar a Lago, where the legally mandated storage requirements simply do not exist. I am not a lawyer but I have a hard time wrapping my head around Cannon’s possible order that the USG commit one crime to appease Trump’s other.

      • earlofhuntingdon says:

        Any document that required being closely held should never have been at MAL, or any other Trump property, except in the hands of a qualified official, who promptly returned it to a secure facility.

        In that regard, I suspect a lot of minions are worrying about their own liability, because Trump had a treasure trove of stuff he should not have.

    • Artemis says:

      So the question is now that if Trump classified things to shield himself that shouldn’t have been classified, does that give him an argument in court? Could he argue that for whatever reason (his cronies did it but he was totally unaware or led astray on the proper process) that some papers are mis-marked as classified (and might include attorney-client privilege items) so thus all classified documents should be checked by the special master? Just trying to anticipate/game out what route Trump’s team might take.

    • timbo says:

      The issue of PRA vs personal vs government record has arisen in this scandal. Your question, and many others like it, gives Congress good standing to continue its investigation into this matter…unless SCOTUS strikes down the PRA? There’s also the issue of the Hatch Act et al. May PRA and Hatch be strengthened at the end of this thing…else another day might never come.

  5. Peterr says:

    And those documents are among the ones I can imagine Trump might care the most about.

    Yes. Something tells me he will throw damn near anyone under the bus to get them back.

    Similarly, I think the DOJ knows this too, and — even better — knows *why* he wants them so badly. That’s where the criminal investigation is going.

    Trump’s problem is that while he can *call* WHCO lawyers “my lawyers” in the same way he refers to “my generals” at the Pentagon, that doesn’t make it so.

    • emptywheel says:

      Oh, I don’t think that’s where THIS criminal investigation is going. It may be where OTHER criminal investigations might be going.

      • Peterr says:

        Yes.

        But that difference does not matter to Trump, who conflates any investigation involving him into a conspiracy of the yuge number of jealous folks who are out to get him for no legitimate reason at all.

        • Willis Warren says:

          I think the “trump doesn’t know the difference” is overstated, though. He knows enough to grab the docs

        • timbo says:

          He certainly knows enough to keep the dumpster fire burning when any normal person, conscientious of national security concerns, etc, would have put it out long ago.

  6. John Paul Jones says:

    Could it be a slightly different issue? Trump inappropriately classifies stuff to hide it, maybe from Congressional or IG scrutiny, but because he’s done so, now he has no right to claim that stuff back? Or is my training in literature making me see irony everywhere?

    • Patrick Carty says:

      As President he has the authority to make derivative classification decisions, but the process also requires marking each and every piece of the document to the appropriate classification level. Likewise, declassifying something requires the same process markings. It is not legit to simply mentally change classification levels, as there is homework involved. And I’m guessing Donald Trump was never big on completing homework.

      • timbo says:

        The Executive Branch has a right to know what the Executive Branch has done…unless we’ve entered Twitlerland already.

    • earlofhuntingdon says:

      Government and presidential records were never his to claim back. But, “Everything is Mine!” is one of TFG’s defining attitudes, however reckless or illegal it may be.

      • Ginevra diBenci says:

        Would, say, a letter from MBS saying “I look forward to continuing our fruitful relationship in the future,” dated January 2021, be classified?

        I imagine Trump would think it’s “his.” But it’s a presidential record. It seems like these types of items would fixate him.

    • Savage Librarian says:

      Also, jury selection is set to begin on Sept. 19 for Tom Barrack. So, maybe we’ll learn some interesting things if that trial proceeds.

    • Ginevra diBenci says:

      Also the Bannon pardon, when his WeBuildTheWall co-conspirators got no such free pass. Indicating that Bannon’s pardon was not for that particular crime.

    • Nick Barnes says:

      I was feeling quite relaxed about those, on the basis that they didn’t tell us anything we didn’t already know. We already know that TFG stole (at least) hundreds of classified documents. Beyond the 325 recovered so far, the government can’t deduce what *other* documents he stole, from review of the returned and subpoena’d and seized property, although maybe they have already figured it out from the surviving audit trail *inside the government* – the library cards, essentially – or have some hope of doing so.

      The folders, I reasoned, don’t help with that deductive process, because there’s no guarantee either that he kept the folder of any particular document, or that he stole the classified documents that the stolen folders once contained.

      Then I saw the motion to stay, which *does* draw attention to the folders, and I am now having to re-think.

      Of course, now that it is clearly demonstrated that the POTUS stole classified documents and held them insecurely, the intelligence community has to assume that *every* document ever shown to him has been in the hands of foreign powers for several years. Their collective hair must have been on fire since NARA’s first alert in February.

      • Pete T says:

        I most likely do not completely understand…Is it true that the empty folders contain information that clearly identifies what was in them at one time? I assume (ass-u-me) that there are master indices of classified documents that may also include who last had access to them? But if such indices exist then it might be relatively EZ to determine if loose documents at MAL were separated from the empty folders found at MAL. Or if the empty folder does indicate truly missing documents.

        • Ddub says:

          This has been my thinking. Maybe one/each empty folder in some cases represents all the classified material requested or provided to the President on a given day, and so would have a variety of TS documents. Then TFG would fail to return the entire daily folder.
          This might also obscure to some extent the desired docs in the clutter.

      • timbo says:

        It’s been demonstrated that someone stole those covers and put them in those boxes pretty clearly. I note this because there’s a bar in one of Trump’s buildings that displays such a cover. If that’s a real cover, Twitler, as ex-President or otherwise, has no legal claim to it and it should be returned. Period. Government records are not the personal property of Trump under the current understanding of law. Refusing to return any of this, particularly for any profit motive (like drawing folks to your bar to ogle a top secret cover—one concrete example already) is basically theft and for a venal reason. The President cannot make up the law as he goes along (mostly). Certainly it can’t be the case that he can tell anyone that it’s okay for him to profit from Top Secret document covers he takes for his own personal business use.

  9. Bay State Librul says:

    Clear case of Occam’s Razor

    First, find the simplest possible explanation.
    Second, Eliminate all unnecessary factors.
    Third, Boil the water down to one logical line
    Fourth, Take a hard look at the situation

    Take out the razor and sever the threads.

    Blackmail.

    Help from Haruki Murakami in 1Q84

  10. ApacheTrout says:

    Would Cipollone have been involved with classification or have post-classification knowledge of WHC documents?

    • timbo says:

      Seems like. Some of his hesitancy to step out of EP in testimony might be around these subjects? The thing is though, the Executive is due his work product while WHC. So, anything before he left government that is lawyering related is almost certainly part of due government records…assuming that he wasn’t “moonlighting”, of course? ;/

  11. Critter7 says:

    On the subject of documents that “Trump might care the most about” (quoting from Marcy’s post) and in which White House Counsel, I can’t but notice the Trump team’s original filing to Cannon (22 Aug) makes quite an issue of the Russia probe (starts on p. 13, two paragraphs following “The Government Has Long Treated President Trump Unfairly”), dredging up a litany of his grievances and even invoking Strzok & Page. In fact, FBI’s supposed anti-Trump bias during the Russia probe is the basis upon which Trump and his lawyers claim that DOJ should not receive the court’s trust and deference.

    Where Trump’s squeals the loudest is usually where he is most vulnerable. Could it be that Russia probe docs are part of this also?

  12. Puriya says:

    This is getting confusing for the non lawyers :-)

    The original mess of a filing made by Trump in Cannon’s court referred only to executive privilege and not to A-C privilege, right? That seemed odd at that time because SCOTUS had ruled that Trump could not shield Presidential records from the Executive branch.

    However, as I understand it, in the Watergate ruling re: EP, there is a mention (though not a ruling) of the possibility that documents that are communications between the ex-President and his advisers may be shielded even from the incumbent. Gorsuch seems to have referenced this in a judgement. Is that correct? So was Trump going for that?

    All the classified documents will likely not fall in this category, but the fact that there may be a few could be used to hold up all examination, right? Is this one of the important open questions? Whether Cannon/11th Circuit/SCOTUS, when reviewing the stay, will hold that classified communications between an ex-President and his advisers may be shielded from the incumbent? If so, it’s scary that there is a plausible path here and not simply rhetoric.

    DoJ would do well then, to brief the Legislative Branch to further establish the Executive’s claim of ownership (as they appear to be saying in the stay filing)? They should do as much as they can, at this stage? Would that help their case: “it is understood, by the Executive and the Legislature, including elected Republican representatives, that this information belongs to the current Executive”.

    Hope I didn’t confuse others. I’ve been doing that in the physical world, so I thought I’d give them a break.

    • timbo says:

      They’ve apparently already started the process of informing the Intelligence principles in the Congress of what these documents might contain.

    • Operandi says:

      The original Trump filing played real fast and loose with the word “privilege” and intentionally conflated executive and attorney/client privilege at every step possible by just referring to docs as “privileged” without elaborating. It’s not hard to be confused, because his team’s strategy thus far has been to broadly hand wave about potential executive privilege issues to get that issue inside the special master’s domain, while simultaneously carefully avoiding committing to any specific claims or theories of said privilege that could be challenged.

  13. Bruce Stewart says:

    Does anyone have more information about this: via Seth Abramson on Twitter I just learned about video of Trump leaving MAL on May 10, 2021 for Bedminster, showing several bankers boxes carried by aides to his plane. One video segment shows Trump getting on the plane, another segment (identical background) shows aides carrying boxes. The videos were posted May 10, 2021 by Reportajes El Molinon Photo Agency on their Twitter feed “at RMolinon.” This is now today posted on the Twitter feed of a self-described Jan 6 investigative journalist I don’t care to mention; that post includes a screen capture of the RMolinon posting via the Internet Archive. The RMolinon feed does indeed have such a tweet on May 10, 2021; there are several tweets and the videos are still there. RMolinon says their reporting was done for The Daily Mail. (No links out of an abundance of caution.)
    Is this legit? What am I missing?

    • timbo says:

      It’s all ‘legit’ in this country until the final gavel. The country was founded by smugglers and roustabouts. With a heavy dose of land-pirates, grifters, and slavers to round out the situation.

    • Bruce Stewart says:

      Sorry I was not clear. I was not asking if Trump’s conduct is legit. I was asking if the Molinon reporting is legit, as it seems to be. There has been speculation that Trump’s other residences should be searched, but I had not run across this reporting before.

    • Bruce Stewart says:

      The videos are now being widely noted. Of course it’s not proof of anything, but possibly an investigative lead.

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