![[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]](https://www.emptywheel.net/wp-content/uploads/2017/08/NationalSecurityAgency_HQ-FortMeadeMD_Wikimedia-1030x687.jpg)
Trust: In Bid for Stay, DOJ Likened Trump to Catastrophic Intelligence Compromise
There’s a detail in DOJ’s request for a stay of Judge Aileen Cannon’s injunction on using stolen Trump documents to investigate Trump that hasn’t gotten enough attention.
A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]
[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4
4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“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.”).
Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.
But the analogy DOJ made between Trump and Pho, by invoking the letter, is even worse.
I’ve written about Pho, who with Hal Martin, is believed to be the source of the files leaked by Shadow Brokers and, with them, two devastating global malware attacks, WannaCry and NotPetya.
Over a month ago, I suggested that the IC likely had Pho and Martin in mind as they considered the damage Trump may have done by doing the same thing; taking highly classified files home from work.
[T]he lesson Pho and Martin offer about how catastrophic it can be when someone brings classified files home and stores them insecurely, no matter their motives — are the background against which career espionage prosecutors at DOJ will be looking at Trump’s actions.
But with the footnote, I’m no longer the only one to make such an analogy. DOJ did so too, in an unsuccessful effort to get Judge Cannon to understand the magnitude of the breach she was coddling.
As you read this letter, replace Pho’s name with Trump’s. It reads almost seamlessly.
That’s the analogy DOJ made between Trump and someone his own DOJ prosecuted aggressively.
Pho retained classified information outside of properly secured spaces and by doing so caused very significant and long-lasting harm to the NSA, and consequently to the national security of the United States.
[snip]
[T]he exposure of the United States’ classified information outside of secure spaces may result in the destruction of intelligence-gathering efforts used to protect this nation. Mr. Pho, who voluntarily assumed this responsibility, ignored his oath to his country and the NSA by taking classified information outside of secure spaces, thereby placing that information in significant jeopardy.
[snip]
Mr. Pho’s conduct in improperly and unlawfully retaining national defense information, which included highly classified information, outside of secure space had significant negative impacts on the NSA mission.
[snip]
Techniques of the kind Mr. Pho was entrusted to protect, yet removed from secure space, are force multipliers, allowing for intelligence collection in a multitude of environments around the globe and spanning a wide range of national security topics. Compromise of one technique can place many opportunities for intelligence collection and national security at risk.
By removing such highly classified materials outside of secure space, Mr. Pho subjected those materials to compromise. It is a fundamental mandate in the Intelligence Community that classified material must be handled and stored in very specific and controlled ways. If classified material is not handled or stored according to strict rules, then the government cannot be certain that it remains secret. 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.
In addition, NSA was faced with the crucial and arduous task of accounting for all of the exposed classified materials, including TOP SECRET information, the unauthorized disclosure of which, by definition, reasonably could be expected to cause exceptionally grave damage to the national security. Accounting for all of the exposed classified material was necessary so that NSA could attempt to assess the damage that resulted from the classified and diverted critical resources away from NSA’s intelligence-gathering mission.
The detrimental impacts of Mr. Pho’s activities are also felt in other less tangible ways, including a loss of trust among colleagues and essential partners who count on NSA to conduct its mission.
[snip]
Trust is an essential component of all of the work that is done by NSA employees. It is affirmed by our sworn oath to uphold and defend the Constitution, sealed by our signed obligations to protect national defense information.
[snip]
This trust extends to a circle with other U.S. intelligence agencies, who share valuable intelligence insights; military personnel, who share details of their operational plans; and international partners, who share their sovereign secrets with us, all for common objectives.
[snip]
Future decisions about sharing will be weighted with considerations of the breach of trust by one party.
There’s little that distinguishes Pho’s compromise from Trump’s. While Trump didn’t load all this stuff online like Pho did, he brought it to a thinly-protected country club aggressively targeted by foreign intelligence services — a more obvious target than Pho’s desktop computer.
And whether the IC knows about the extent of the compromise right now, or whether something he made available will shut down shipping and hospitals and drug manufacturing in two years time, as Pho’s compromises did, the IC has to act as if these files have already been compromised.
That’s what the footnote says.
As I said, Trump’s own DOJ ratcheted up prosecutions in the wake of the Pho and Martin compromises. And now Trump — along with a judge he appointed — are trying to make sure he evades the same justice that his own DOJ demanded of others.
Update: Clarified that Martin and Pho are believed to be the source of the files leaked by Shadow Brokers, but not the leakers themselves.
Go to emptywheel resource page on Trump Espionage Investigation.
The government (rightly) has not shown us enough to make comparisons to other cases. On the other hand, the metadata on that Meadows memo worries me.
Metadata? May I respectfully inquire further? Please
Yep.
Trump is possessed of a transactional nature and so, probably are those he transacts with.
Seymour Hersh wrote of the Jonathan Pollard case, ” I was told by the station chief, who is now retired. “He asked if I knew anything about the Pollard case,” the station chief recalled, and he said that Casey had added, “For your information, the Israelis used Pollard to obtain our attack plan against the U.S.S.R. all of it. The coordinates, the firing locations, the sequences. And for guess who? The Soviets.” Casey had then explained that the Israelis had traded the Pollard data for Soviet emigres. “
If true, horrific. Never heard this. As I understand it he SIOP (single integrated operations plan) and other war plans are normally “sealed” and not available to anyone who doesn’t have a clear need to know. I thought Pollard was just an intelligence analyst, which would not give him need to know. And who is Casey? Bill Casey, the Reagan CIA chief?
And revealing this info would be a horrible breach of security – confirming for the Russians that the information was correct
I think the reaction of the 11th Circuit will be a good gauge of the health of the Republic.
Individuals behaving idiotically is not the same as institutions doing so. My guess is 3 of the 6 Trump appointed judges go with him, the Special Master con is too inept to get all of them
In a certain way it’s hard to not feel the pain of the Trumpy judges: on the one hand they want to bow down and do the bidding of their Orange God; on the other they want to manifest their contempt for due process in the criminal arena. What’s an evil, degenerate piece of shit to do? How does the judiciary let Trump walk without creating a whole new criminal justice jurisprudence much more favorable to defendants?
In New America won’t the King determine guilt or innocence?
Thank you, EW. This seems to me to be the meat of the problem and dwarfs all other issues.
teri has a thread up …
https://twitter.com/Teri_Kanefield/status/1570967096842153984
As a federal defense agency employee with a security clearance, I’ve been following this story from the beginning. It’s so disheartening to see the special treatment that former President Donald Trump has received. Meanwhile, I am not allowed to bring a cellphone with a camera into my workplace. I cannot bring a cellphone (even with a camera removed in compliance with our regulations) into an SCIF, and I must store it outside in a secured locker. Every action regarding classified information is signed, documented, and verified by an additional person.
“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” — I can confirm this is often how leaks and data spills are treated. The government will assume the worst case scenario (i.e. the information has been compromised) and work backwards to determine whether it is still secure. It all depends on the situation, who had access to the material, who may have seen it, how it was taken away from an SCIF, where it was stored afterwards, etc.
Wondering how thorough a security scan has been conducted on MaL for all of those ways to leak information. Since before the trump thing mounted his throne until today.
The means of exfiltrating information are enormous and growing, and the number of conduits entering/exiting MaL seem to be impossible to count.
In my rosy view, the 3-lettered agencies would have every angle covered since day minus 1000. However I’m guessing that only 90 out of 360 degrees are well covered, and even these will have seepage.
I hear MaL has been well wired for several years, so my friends who know say. Not by the Dotard, that is
I truly doubt that Trump and his people will allow a complete scan of MAL. He feels that people that have money are not a security risk and therefore will keep things from being fully investigated. I am not talking about out and out obstruction but not being forthcoming about things that the investigators should know.
I feel your anguish too. In January 2021 alarm bells should have been going off in the agencies because they knew that they had sent classified docs to the WH and that they had not been returned yet.
We don’t know that alarms bells weren’t going off. We shouldn’t, if our intelligence agencies are doing their work appropriately.
What we should be asking ourselves: have any of the nation’s diplomatic and military challenges since January 2021 been exacerbated by Trump’s theft of classified materials? I have wondered, as one example, since Biden began to wrap up in Afghanistan if our intelligence was compromised, especially HUMINT.
Of course Trump’s theft of classified docs is a counterintelligence disaster and I have been as alarmed as anyone else on the site since the search news first broke. Having said that, the weakness and corruption of “our” side in Afghanistan was on vivid display for years, and the small community of independent observers who knew Afghanistan (viz., Sarah Chayes) had sounded warnings that fell on deaf ears, since at least 2012. https://www.sarahchayes.org/post/the-ides-of-august
To the extent that anyone was surprised by the rapidity of the Afghan government collapse, it would seem that they were victims of groupthink rather than leaks from MAL. Lucian Truscott, who has also spent time over there, would seem to have corroborated this point in his discussion of how CIA pretty much stayed in that country’s green zone (sorry, couldn’t find the link for that one.)
But here is Truscott also discussing how the American presence in general was flawed there from the beginning. https://www.salon.com/2021/08/17/lay-off-joe-biden-he-didnt-lose-afghanistan–we-are-finally-leaving-it-alone/
Thanks, really didn’t need the preaching-to-the-choir about the stupidity of military force in Afghanistan.
My point was about specific intelligence failures — like the attack on Afghan aid worker Zemari Ahmadi which the military called a mistake. Or the alleged bounties placed on US troops in Afghanistan the previous two years.
In reading and re-reading your previous post, it was unclear to me exactly which Afghanistan wrap-up related intelligence failures you were discussing. So I don’t think I deserved the smackdown you just meted out. I suspect I am not the only reader who could not divine what you meant in that post.
Having said that I appreciate the clarification and 100% agree with you that TFG’s carelessness (at best) with NDI, both during and after his tenure in office, likely cost the country dearly in the national security space. Nor would I be surprised if that fecklessness had something to do with the specific issues you raised.
You nailed it on the head with your assessment. I have DOD and DOE security clearances, and have to do the same things as you when it comes to phones, securing documents, etc. It truly baffles me how this guy thinks he can get away with things that would have us already in jail.
Based on that reading, I say Pho posting them on line is no different then trump being in possession of the Top Secret documents. Mar A Lago is magnet for foreign nationals. I fully believe trump has compromised national security more than Pho, by being the showoff braggart he is, as demonstrated when he compromised an Israeli intelligence plant to Russia in the White House no less. Any other citizen in possession of Top Secret document would have long been arrested and indicted. It comes to a point when even the obvious can be convicted in a court of law. There is nothing in the Constitution that says a former president can not be arrested. The DoJ should arrest him now. That certainly would change the equation. Let us not tip toe through the daisies at the gravity of the his breach of national security committed by trump. It is literally indefensible.
Yep
The scales of justice is supposed to be blind. The level of violation of the law in this instance is such that the piles of paper would have lifted that blindfold upwards and would now be 1 mile above the judge. This guy broke the law and needs to be in jail. If it was you or I, we would already have been thrown in Leavenworth.
“The DoJ should arrest him now.”
Wrong. The DOJ should arrest him when they decide the time is right. Many people surrounding Trump have to be investigated, not just Trump himself. Arresting hi prematurely would be disastrous.
Cannon willfully ignores the issue of the traceability of the classified information.
She writes as though proof were needed that the classified information has already been seen and used for a malicious purpose by hostile actors, when in fact the issue is whether the classified information has been protected according to protocol.
Because this concept is not particularly hard to grasp, Cannon’s willful blindness to it could cause one to be suspicious of her motives.
Mullet, Marcy has explained in detail why that won’t happen immediately, one reason apropos to this IC discussion is that ODNI hasn’t decided on which 20 classified documents to charge. Remember, the jury will see them, Check her twitter feed for her reasoning.
ODNI does not make charging decisions. And, no, the jury may never see them because CISA. Where did you come up with only “20” documents?
A comment on up-thread bits rather than reply to bmaz:
Elsewhere from EW: “That process of deciding which documents to charge (what Brandon Van Grack revealed recently are called “Goldilocks” documents) takes some time and requires the input of the agencies whose documents would be charged.”
Input =/= Decide
20 might be a very nice number but the number will be whatever it will be. Presumably (if we ever get there), the number of documents for which charges are brought will be however many of the documents can be appropriately redacted/declassified to put before a jury to decide that Trump really shouldn’t have had this stuff in his personal desk and country club storage room. If it turns out to be just one, then it’s just one. If it turns out to be a hundred, it’s a hundred. Presumably, the agencies prefer to keep their secrets very secret so want to minimize the number of documents submitted to court, while the prosecutors would presumably want to maximize the evidence available to prove the offense. Whatever materials are found to be compromised should make it into court, since compromised materials can no longer be relied upon for security purposes and also demonstrate actual realized harms to security. So, while strictly the possession and mishandling of the documents is sufficient for prosecution, if information in a document is determined to *not* be compromised, the tendency will be for agencies to want to keep that information protected and away from the court process. [Caveat to all this is that I have zero expertise.]
I know folks here might dislike Keith Olbermann, but his daily Countdown episodes are damn-fantastic. He is funny too and minces no words. His sports baseball knowledge is an adventure. He has a huge ego but if you are a progressive Democrat what fucking difference does it make.
Arrest the con man now he is a “clear and present danger” to democracy and if you think otherwise then you haven’t read Dante’s Inferno .
I wonder if this story would get Marcy any clicks.
https://www.businessinsider.com/exclusive-fbi-charles-mcgonigal-trump-russia-grand-jury-oleg-deripaska-2022-9
Business Insider??
Yes, they have been doing great reporting for awhile.
Uh huh. Sure.
don’t discount, go with particular journo. me read BI.
Rayne retweeted that same article yesterday.
Also at Military & Defense Insider. He was in FBI’s NY office until late 2016, AIUI.
Precisely
Business Insider has been a good source of news for quite some time. They rank in the 90 percentile when it comes to factual reporting.
https://www.thefactual.com/blog/is-business-insider-reliable/
Dude. This site is NOT about getting any clicks.
But, please buy my book!
You personally write one, I’ll buy one. LOL
Me, too. Smart crank spills beans? I’m there. Just for the attitude. Not enough of it these days, says I
I’d buy that for a dollar!
https://www.youtube.com/watch?v=85cL1HisrNc
I’ll help out with a suggested title:
“Take that Crap Elsewhere: the Polite Lawyerly Musings of Bmaz of Emptywheel”
Works for me, though most of the book would be redacted.
bmaz- Guardian of the Truth (and that actually goes beyond our galaxy!) : – )
EW retweet of the earlier report by Scott Stedman got some likes.
https://twitter.com/WendySiegelman/status/1570442678134874113
https://twitter.com/ScottMStedman/status/1473060055217889281
https://forensicnews.net/retired-top-fbi-counterintelligence-official-worked-with-ex-russian-intelligence-officer-close-to-deripaska-foreign-agent-paperwork-reveals/
“the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.”
I think the concerns of the intelligence community go far beyond physical documents he took home. This article from 2020 about their fears concerning his ability to reveal information in his brain really got me worried back then about what he could do, and it’s awfully chilling.
https://www.washingtonpost.com/national-security/trump-possible-security-risk/2020/11/09/f19c853e-229e-11eb-952e-0c475972cfc0_story.html
I think the even larger issue for the IC than what is still hidden at MAL or Bedford or wherever, is what is in Trump’s skull. And I think his eagerness to play chicken with this particular subset of intelligence may suggest to them he is prepared to start leaking much worse.
I think it is very possible the government’s hope was to trade on his legal jeopardy on the MAL documents for an agreement to contain everything — keep his mouth shut and they’d negotiate an agreement on MAL.
But because he’s fighting so hard now, I think his message is that he”s capable of calling up a Russian TV station and telling them whatever they want to know. And the IC is treating it as a real threat.
“I think it is very possible the government’s hope was to trade on his legal jeopardy on the MAL documents for an agreement to contain everything — keep his mouth shut and they’d negotiate an agreement on MAL.”
He took the oath of office, and look how much good that did. His word is worthless. He can’t be trusted to keep his mouth shut regardless of the law. No amount of additional legal papers requiring his silence could guarantee it.
.
Confinement at the maximum security prison near Canyon City, CO would take care of any worries about Trump talking to Russians. He wouldn’t even be able to gossip with other inmates! Friend was an ER doc in Pueblo, the nearest Trauma One ER to the prison, they got guys wrapped in chains with machine-gun toting guards from time to time.
Hell — my dad was in our home town hospital, founded by the UMWA, and thanks to a medium security federal prison nearby I got to see armed guards on the door to the room next to his. Fully automatic M-16 type guns. So the Federal Corrections folks do not fool around at all.
If Trump is a walking security risk, he should be in pre-trial solitary custody ASAP, once they ask a grand jury to hand up an indictment. Actually, I doubt he can remember enough secret data to be that big a danger, being both fundamentally stupid and suffering from age-related dementia.
Ya know having just finished ” Team of Rivals” by Doris Kearns Goodwin, no matter where or what the guy is sentenced and jailed for, part of his sentence should be someone has to read that book to him every day. He can then spend the rest of his days trying to understand his own mean and smallness. Then, miraculously if it ever takes be worthy of forgiveness.
RE: I think the concerns of the intelligence community go far beyond physical documents he took home. This article from 2020 about their fears concerning his ability to reveal information in his brain really got me worried…
The larger point beyond Trump’s brain is there was no need for the documents at all.
I forget when did they invent the Xerox machine, as we used to call it back in the day? A long time ago for sure. And those new fangled phones even have cameras on them.
No I think this was a provocation and Thomas’s clerks have already collected 2000 pages of possible future Cannon rulings pre written. Or something in that vein.
An agreement predicated on Trump keeping his mouth shut?
There’s no chance he could do so while this side of the grass. Any such agreement would be worth less than the paper it was written on.
One thing to keep in mind with Trump is he never ever, ever, ever, ever admits he is wrong. Not ever. Never. It simply is not in his make-up. It is core to his being. So to think he will EVER agree to something like what is being proposed is simply naive.
The last time he even came close to admitting wrong doing was right after the Grab em by the P***y tape came out. His handlers got in his ear right before the 2016 election and Trump bit through his tongue to even partially admit to having possibly maybe said something sort of not perfect. Never again will he even approach admitting error. Everything he does is perfect and amazing and incredible-just ask him.
The best way to shut him up is to lock him up. Put him in the Reality Winner Memorial wing and search him regularly for contraband electronic devices.
At least, that’s what would happen to me & thee. God, I’m sick of this asstard!
/rant
It does make me wonder why SDFL was selected for issuing the warrant. If Judge Beryl Howell in DC should have done the deed (or one of the DC circuit judges), why would an otherwise competent AG Garland have farmed it out to SDFL?
In terms of rank speculation, would it have anything to do with the possibility that some yahoo ‘constitutional sheriff’ would interfere in some way? Dar Leaf in MI would. Maybe selecting a FL judge would make such a sheriff more amenable, knowing that the deputies would be searching, the FBI would.
Because that is where the warrant was executed. Local Sheriffs are irrelevant. Could things have been done differently? Yes. But Garland was a dope and walked into the wall. That is on him.
As I havre stated before, IANAL, but did the DOJ have to execute the warrant in the jurisdiction closest to the point of action? My apologies if this a Law 101 questions, but it appears to me that the Canon divergence could have been avoided if the warrant was handled by the D.C. courts.
See FRCrP 41(b) “Venue for a Warrant Application.”
[Apologies. I thought I edited that typo! Don’t know what happened. There’s a difference between the rules for civil procedure (FRCP) and criminal procedure (FRCrP). Anyhow, that comment should have been:]
See FRCrP 41(b) “Venue for a Warrant Application.”
Thanks!
bmaz,
Do you have any comments here or on twitter explaining some ways that Garland might have done “things differently” that might have kept this whole process away from Aileen Cannon?
Thanks.
[FYI – You left this comment in two different threads. Duplications are deleted. Please don’t post the same comment twice; we can see all comments across threads in chronological order so duplication is unneeded. /~Rayne]
Yes, and I have relentlessly and repeatedly explained that.
Bmaz, Please link. Thank you. Rayne, I seldom post, if I have used the wrong user name please advise and I promise not to do that again.
This blog is the link. It is all here.
final sentence:
asking court to affirm cost to IC thereby sending msg of confidence and respect.
thank you, marcy, for knowing in 2018 Rogers’ letter would be important in future, and remembering today where you put it. whopper of detailed responsibility to assess damage, made me tremble about where we now stand, who’s pitching and who’s at bat.
Spot on metaphor there. Baseball has been very, very good for that (h/t Garret Morris)
Trump lawyer Corcoran in late August suggested in an email to Eric Herschmann that “an unspecified ‘chief judge’ would ultimately validate their belief that a president’s powers extend far beyond their time in office.”
https://www.nytimes.com/2022/09/16/us/politics/trump-lawyers-herschmann.html
Wonder who ‘chief judge’ is.
Guess which SCOTUS jurist is assigned to the 11th Circuit?
https://www.supremecourt.gov/about/circuitassignments.aspx
Guess which SCOTUS jurist is NOT assigned to any circuit?
Imagine my shock.
Do you know who designates those assignments?
Thank you sanjeevs and rayne:
Apparently Ginni Thomas’s husband is the assigned justice for the Eleventh Circuit. How convenient!
To Rayne: it seems that every justice has an assignment. They look to be somewhat divided up by states that could be in play during elections – is that a fair reading?
Yup. Funny how Kavanaugh has two and Roberts has three, but Ketanji Brown Jackson has none.
Did Breyer have jurisdiction over one of the circuits which was then given to Kavanaugh or taken by Roberts?
I really can’t tell you, would have to dig in Wikipedia or run the site through Internet Archive.
Looks like he was circuit justice for the 1st Circuit – so Roberts took on that job title after Breyer retired.
Not entirely, if you go by the map graphic in Rayne’s link: Take a look at Rhode Island’s pictured circuit assignment.
DOJ has appealed.
H/T Josh Gerstein: https://twitter.com/joshgerstein/status/1570940985450070017
Doc here: https://www.documentcloud.org/documents/22418133-trumpdojstaymotca11091622
Yasssss, I came here to post the same.
DoJ was ready to fire off 29 pages, because it’s been obvious exactly where this was headed for two or three weeks.
Probably had the appeal written out to the point of only needing to copy+paste some of the exact wordings from Cannon’s verbiage last night.
Impressive. ish.
But yes, again, I am deeply worried how this particular appeals court will respond. I think we all are.
source: https://twitter.com/kyledcheney/status/1570948565349896192
https://t.co/zkgFg7FHC4 (to Politico for Josh and Kyle)
not docketed ?
and “A” for supplement is … ?
https://www.courtlistener.com/docket/65351635/donald-trump-v-united-states/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc
Not yet docketed. Possibly because it was after close of business.
Clearer link:
https://www.politico.com/news/2022/09/16/justice-dept-asks-appeals-court-to-restore-access-to-trump-raid-documents-00057329
According to that article, the 11th circuit appeal ruling on a motion for stay by DOJ can’t be appealed to an en banc panel and will have to go to the Supreme Court directly if DOJ doesn’t get its way with the three judge appeals panel. Conversely, is this true if DOJ does get its stay and [the other party] decides to request that Cannon’s order stand?
I’m guessing that this three judge panel might punt this back to Cannon with additional guidance? I mean, that’s the best way to delay everything one assumes…
I’m not really familiar with the 11th Circuit local rules. But, I do know how to find FRAP, 11th Circuit Rules, and IOPs – Effective August 1, 2022 (Current), and via the index, we can get to, on p.149 in the PDF: “11th Cir. R. 35-4 Matters Not Considered En Banc.”
Perhaps someone who is familiar with the 11th Circuit local rules might chime in — if this needs a better answer.
Is there a requirement to keep the panel as representative of the entire circuit as possible? That’d be 2 Trump-appointed judges, and 1 from Obama. I tried ctrl+F’ing around that .pdf nedu linked to, but uhhhhhh it’s a bit lengthy.
Thanks to you both for the resources. :)
A 2017 law review article, “Panel Assignment in the Federal Courts of Appeals“, on p.76, has a reference (54) to a 2011 FJC publication, Case Management Procedures in the Federal Courts of Appeals (2nd ed.). That, in turn, has on p.208 (p.214 in PDF), regarding panel composition:
That may possibly shed a little light on IOP 1 on p.106 of the 11th Circuit Rules linked earlier.
“Drawn by lot” is not a phrase known to this native english speaker, but I’m not in law (obvzly), and I have taken it to mean that it’s a lottery, i.e. random.
So it will tend towards being representative of the entire circuit, but you’re not guaranteed to avoid all three judges being Trump appointees.
Great! I love Russian roulette!
But thank you nedu, that was very helpful.
I agree with what you are saying with respect to the DOJ’s filing, but in practical terms, there’s a big caveat here. If you replace Pho’s name with Trump’s, the text reads almost seemlessly but the message does not. Pho is clearly not a white, European name, and that makes a huge difference.
Just ask Wen Ho Lee.
Martin’s sentence was years longer than Pho’s.
You should look up “national security means”. Do you think that the method of gathering intelligence might be more important than an obsolete nuclear weapon design? Could have the Government stopped the prosecution because they wanted to protect a method or source of intelligence that would be compromised if they continued?
DOJ’s footnote reference to the Pho case is interesting on the heels of Cannon carving out specification of “and the papers attached to such documents” in her special master order yesterday. In her earlier post discussing the Pho case (’18 USC 793e in the Time of Shadow Brokers and Donald Trump’) Marcy provides a link to here, there’s a link to the government sentencing memo in the Albury 793e case, which has this gem in it:
‘The “secret location in his home known only to himself” where the defendant hid the storage device (the one with Reporter A’s telephone number affixed to it) was a shirt pocket in his closet.’
That appears to refer to the former of “two counts of 793e, one for a document about FBI informants that was ultimately published by The Intercept, and another … that Albury merely brought home,” not the latter, about which that memo “described the import of files he brought home but did not share with” reporters. That distinction & pairing seems precariously loaded with importance now.
I get brain freeze when I try to think from a reverse (ie French) and mutual (allied democratic) perspective, about what Putin’s gang in Russia (& cohorts) might have had in mind, in the glimpse between the Mueller Team’s investigation of Stone for both 18 USC 951 & 22 USC 611, and respective prosecutorial distinction between Butina and Manafort. France must have laws that make some sort of corresponding distinction. It is probably different in a pertinent way and less prone to confusion, because France, unlike USA, is part of EU. We should know, but we don’t, do we?
I am weary of how the salacious front of the subsidiary ‘dirt’ collection, fabricating & trafficking sideline of adversaries like Putin’s gang and our own like Stone (Pecker, Epstein) and their amateur tool (the Sharpie) has been so successful in short-circuiting the imagination of our most seasoned & trusty public minds paying attention, between the gag reflex and the triviality of salaciousness. The Sharpie functioned as the imprimatur of our government for four years, among other things.The MacronLeaks operations included “spearfishing and communications with French participants” also targeting “individuals and entities, including those associated with French local government entities” in which “[t]he topics of these campaigns included … software updates for voting machines.” (Marcy and the Barr DOJ indictment against GRU, ‘A Roger Stone Pardon for MacronLeaks Isn’t as Crazy as it Sounds’)
This is where my brain freezes: not the spectre of, “MacronLeaks … openly and proudly, a joint venture between the GRU, far right influencers in Stone’s orbit, and WikiLeaks,” for which Mueller’s GRU indictment “described [Kovalev] as the guy responsible for the hacking that targeted voting infrastructure–the kind of stuff that really could have affected the outcome,” in connection with which Barr seems to have surgically removed Stone, but; wouldn’t Putin love to create the appearance of US-RF govt interference in French elections, and why not the appearance of RF-FR govt interference in US elections too, while they’re at it? We know it because we remember Helsinki. What I would like to know is what Flynn was thinking of plucking when he proposed combing through raw NSA data for ‘proof’ of foreign interference in our last presidential election. We ought to at least be mentally prepared for the fair possibility of something along those lines emerging, with all that Trump’s crew spirited out of US govt depts & agencies, never mind our WH. The NSA notebook Ellis made and scattered multiple copies of, was described as “our most sensitive intelligence that deals with a particular foreign actor,” (Nakasone in Marcy’s piece on that). The public focus has been on the leak about a foreign nation’s nuclear capacity.
All of this brings DOJ’s earlier references to handwriting & clippings, and now ‘breaking’ reports of claims that there were boxes of ‘just’ clippings, today. Timing that makes me wonder again about the timing of Trump’s comingling, and the curious structural placement of the 1-1A Stone Clemency & info regarding the French President items (& the notations themselves) in the FBI’s indexing. That parenthetical comment in the memo on the Asbury case also conjures a less innocuously ironic image in my mind, of Stone in his closet bat cave, where that ‘notebook’ he was said to have with him whenever he met with Trump was said to be kept and tended to, and no one was to touch, which Mueller’s team was so keen on finding.
The handwriting & clippings always reminded me of Trump’s Sharpie signatures and comments on ads & other documents Roger Stone made such a point of getting and saying he got, on every move in his assistance on Trump’s illegal campaign against approval of indigenous casino competition in NYS, which Trump did get busted for, at least by authorities in NYS (unclear whether the IRS ever caught up to them on the tax exempt ‘family values’ nonprofit Stone whipped up for Trump to use in carrying out & concealing that despicable illegal campaign). In the LAT article on that, the fact that this scheme to prevent the establishment of that particular casino in NY appears to have been successful, is treated as unrelated marginalia. The spoils are never unrelated marginalia.
Epshteyn, whom you reference here, is looming ever larger in my mind as a (the?) throughline for much of this. Perhaps even more than Stone, but certainly in cahoots with him.
If true, horrific. Never heard this. As I understand it he SIOP (single integrated operations plan) and other war plans are normally “sealed” and not available to anyone who doesn’t have a clear need to know. I thought Pollard was just an intelligence analyst, which would not give him need to know. And who is Casey? Bill Casey, the Reagan CIA chief?
And confirming the info to Seymour Hersh would likewise be a terrible breach of security – confirming the information for the Soviets.