“Classified Evening Briefing:” Mishandled and Stolen Documents Update
There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.
Biden
On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.
NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.
Pence
Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.
The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.
The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”
“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”
A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.
The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.
Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.
Pence has another weekend home in IN that has not been searched.
Trump
Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:
- An empty folder marked “Classified Evening Briefing”
- Some additional classified files
- The laptop and thumb drive onto which digital versions of those files were copied
Here’s how ABC described the new materials:
The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.
ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.
Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.
Separately, there have been reports of at least three witnesses who have testified in the stolen document case:
- In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
- Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
- On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
- Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.
“the stolen documents and the attempted stolen election case”
That makes all posts on these issues a Steal Dossier.
I don’t believe Pence had any reason to deliberately hang onto classified documents, and it’s not likely that Biden had any illegal intentions, either.
On the other hand, our former president denied having any such documents, refused to return them, then ignored a subpoena for them. There is testimony and video evidence showing Trump’s plane being loaded with boxes and boxes of papers, and then Trump whining about being a victim of the FBI and Justice Dept. as they found still more documents stashed in desk drawers and unlocked closets. The empty folders beg the question of where the once-enclosed documents are, and we must find out just what the hell Trump planned to use them for. Trump exploited his position as president to an illegal degree; he demanded that he be “reinstalled” as POTUS and organized an insurrection to make it happen, and those pilfered documents were meant to be weaponized or sold to foreign governments. If you don’t believe it, you were born yesterday.
In the wonderful world of security classification, those bits and bobs of papers ‘discovered’ in Biden’s house(s) and Pence’s house(s) are called ‘spillage’. They are not unexpected and are unexceptional. Once retrieved and put in their proper place, they have no further relevance.
Now, when it comes to the material from TFG – well that’s another story altogether.
We really don’t know that as yet. It’s likely but not clear what all these documents contained and who might have had access to them that shouldn’t have.
From the Pence blockquote above: “The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.”
My first thought from the way it was reported (one doc and six additional unmarked pages) was that the six additional pages were notes about the classified document, which would therefore have been classified themselves (though not marked as such).
Perhaps, but there’s nothing in the reporting to indicate they weren’t simply unclassified vice-presidential records subject to the PRA.
Because the laptop and thumb drive create the possibity that digital copies could have been transmitted electronically or physically to places beyond where those devices were retrieved, how do the guidelines apply to obtaining a search warrant of, say, the Save America PAC and anyone who is affiliated with that PAC?
From the CNN article linked in the original post:
“A Trump aide had previously copied those same pages onto a thumb drive and laptop, not realizing they were classified, sources said. The laptop, which belonged to an aide, who works for Save America PAC, and the thumb drive were also given to investigators in January.”
Anyone think the aide could be Kash Patel, give limited immunity around his GJ testimony in January?
Save America PAC reportedly paid Patel’s legal bills related to the stolen classified documents investigation, but where has it been reported that he works for the PAC?
No.
It’s not. The name of the aide has been shared, but it wasn’t supposed to be out there yet.
Analysis of a forensic image of the thumb drive will show to what devices it was attached, and when. Likewise, analysis of a forensic image of the laptop will show whether other external devices were attached (by make, model & serial number, and when), and should be able to uncover when the classified documents were accessed, whether they were uploaded to a cloud storage account or emailed, etc.
That information should be sufficient to determine whether the classified documents were further disseminated/if further investigation is warranted.
Huh? How will they trace the thumb drive back to a particular device exactly?
Isn’t O’Brien’s assertion of EP moot since SCOTUS has already ruled against any EP claims regarding the Trump administration? IIRC, even Trump’s WH lawyers only waited for a ruling re-affirming the SCOTUS ruling before complying with their Grand Jury subpoenas last fall.
Also, isn’t the seizure of the aide’s laptop potentially a BFD? Scanning classified documents is pretty clear evidence of intent, is it not? The aide also worked in the WH for a time- what else is on that laptop?
May or may not be evidence of intent. Can it be established he knew they were classified? I will bet that may be difficult.
bmaz, I need help in following your comment, “Can it be established he knew they were classified? I will bet that may be difficult.”
Having once held a level of clearance for managing a USIA grant, the chain of custody and related document formatting of papers and contracts made it impossible for me to NOT realize when I was looking at a classified document. So how could it be difficult to establish? Short of claiming someone cannot read? IANAL
I just don’t think it will be that easy. The claim is already that he did not know.
This is always the problem with Trump, intent intent intent. So difficult to prove.
I guess my positive takeaways on it being difficult to determine Trump’s intent and that claims have been made that he did not understand what “classified” meant are:
1) He can neither read nor comprehend the word classified.
2) He is incapable of following directions on how a document or information should be treated when involving classified material.
3) Since 1& 2 above must be true in order to make the argument that his intent is based on “he didn’t know or understand,” it opens the reality that he cannot uphold nor did uphold his oath of office.
4) Lacking capacity to process the import as well as way to handle classified documents makes him incapable of having a leadership role in our national security; therefore, he should never hold the office of President or any office that provides him access to classified information.
5) Making the argument for intent one of “ did not understand” should sink his current campaign due to his demonstrated lack of national security leadership skill set.
There is almost no chance this particular incident sinks Trump. the only question is “the aide”, and that too seems unlikely. People, as usual, are getting way over their skis.
Not understanding classified document handling and that lack of understanding being threat to national security, will make great campaign ads against him.
It really won’t. Nobody that will vote for Trump gives a tinker’s damn about that.
You noted “Pence has another weekend home in IN that has not been searched,” but the last row says “100%” for Pence. Do the percentages for Pence and Biden in the last row need to be switched? Or am I misunderstanding what you mean by “percentage of homes and offices searched by FBI”? If I’m remembering correctly, some of the Biden documents were from his time as a Senator. Should his U of DE Senate documents also be searched?
That was my thought as well, that the 50% of places searched for Biden and the 100% of places searched for Pence should be switched.
FWIW, CNN is reporting that the FBI has also carried out two consensual searches of Biden’s U of DE docs: https://www.cnn.com/2023/02/15/politics/biden-delaware-search/index.html
“Investigators retrieved materials from two university locations on two different days. The material did not appear to have classified markings, according to the source, but they are now being reviewed by the FBI.”
I think it’s safe to say there was total disregard of security protocols during the trump admin led by trump’s disdain for US security and defiance of the law post term so anything is possible and the fallout could affect many people. But they made their beds…Same deal for the insurrectionists, they aren’t martyrs,
With Pence and Biden both VPs at the time my guess would be there was nothing overly nefarious about having the documents at home; if anything shady, it would be more likely for the documents to have been of political significance rather than monetary significance.
With Trump, there seems to be only two reasons: ego gratification or transaction.
Why couldn’t they have been of sentimental or trophy value to either VP? That is, they may only have been weakly political related in the sense of being able to impact US or world politics but value in some other ways to either VP or some of their close aids.
CNN reported, “Corcoran declined to answer some questions in the grand jury that would have divulged his advice to Trump and their conversations, citing attorney-client privilege, the person familiar added.” However, he was there about 4 hours, which means he did provide a lot of testimony.
Because EW readers are interested in all things Haberman, note that she tweeted today: “It’s unclear if Trump knew his lawyer Evan Corcoran went before the grand jury prior to tonight’s news breaking (he’ll know now, if he didn’t before).”
How would Haberman know unless she has a spy inside the Justice Dept willing to be prosecuted for providing information on grand jury proceedings to the NYT?
The problem with the mainstream media is that it depends on Maggie Haberman for its information, just like NYT readers.
From witnesses and/or their attorneys, who are free to talk to anybody.
this line just filled my heart with joy: “Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep”
I think I remind more than once per day that Fitton is not a lawyer… but is, in fact, a disgrace. (recall, Tommy wrote the ill-fated copy for tfg to declare he “won by a lot”, and the facts of that memo prove, again, he’s not a lawyer)
Even after reading through all the comments, I’m still chuckling over “catastrophically stupid advice.”
Note that if DOJ can prove that Trump somehow made the box of schedules unavailable for the August 8 search, then they can charge Trump with 18 USC 783(f) for making the docs available to his aide.
So noted!