When “Lock Her Up!” becomes “Wait Till Later!”

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Last month, I did a post noting the legal significance of two paragraphs in Trump’s indictment, one quoting Trump’s promises to protect classified information during the 2016 election, and another quoting Trump’s rationale for (pretending to) strip John Brennan of clearance for using classified information for his own gain.

Here’s the paragraph quoting just some of the times Trump used a promise to protect classified information to beat Hillary Clinton.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

The two paragraphs played a certain role in proving that Trump understands the import of classified information. But they also, I argued, bundled a public integrity component up inside this Espionage Act trial.

That is, they laid out how Trump himself has argued that voters need to know whether you’re going to mishandle classified information before they cast their votes.

Those paragraphs may come in handy as DOJ attempts to respond to Trump’s opposition to the government’s proposed schedule for trial. Because he is now arguing that he’s too busy running for President to take time out to be tried for stealing classified records.

Note that Trump misrepresents what his filing attempts to do (and few journalists are calling him on it). The filing is titled, “Response in Opposition to the Government’s Motion for Continuance and Proposed Revised Scheduling Order” — that is, it claims to be responding only to the government’s pitch for a December trial. But the first paragraph admits that it is also asking Cannon to entirely withdraw her own orders setting trial in August.

The Defendants, President Donald J. Trump and Waltine Nauta, in the above captioned matter, respectfully request that this Court deny the Government’s proposed scheduling order, withdraw the current Order (ECF No. 28), and postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated. [my emphasis]

As we all hold our breath to see how Cannon will respond to this request, understand that Trump has pitched this (smartly, probably), as him against the government, but there’s a tiny chance Cannon will be miffed Trump is downplaying her own authority both here and (as I note below) on picking a jury.

There are many reasonable parts of this filing:

  • Trump argues this case should get complex case designation, leaving a longer time for pretrial proceedings (though he falsely claims the government is asking for an “expedited” trial)
  • Trump states that CIPA is going to take some time
  • Trump claims that this trial will present a number of matters of first impression — or at least matters of first impression for this Circuit (for example, Trump and Paul Manafort, have already lost on Special Counsel authority in DC, but not in the Eleventh Circuit)
  • Trump unsurprisingly calls all the classified designations as “purported,” which reserves the issue for trial
  • Trump describes that jury selection will be onerous (this is one issue on which Cannon has already issued a ruling)
  • While Trump is bullshitting that he’s being tried by his opponent, it is true that there should be as little secret evidence in this case as possible

Much of it is typical defense attorney argument about the need to adequately review the evidence before figuring out where to go next — though this filing pitches what is actually fairly modest discovery, if you ignore the CCTV footage, as a great burden.

The Government anticipates producing discovery in stages due to the sheer volume of documents collected and because of procedural mechanisms necessary to protect against the unlawful production of classified information. The Government produced its “first production of unclassified discovery” on June 21, 2023. 1 That initial production was substantial and voluminous. Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians. The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

There’s a hilarious line where the same guy who consented to a discovery vendor to turn some of this very same evidence for a Special Master review before this very same judge less than a year ago now says the use of such vendors will be impossible given the “sensitive and high profile” nature of the case.

Since, unlike most cases, all the discovery materials are sensitive and high-profile, the Defendants are unable to utilize contract or other third-party reviewers to the extent such resources would normally be available.

And Trump pitches a one year investigation as a totally long time — without mentioning that he, with Judge Cannon’s help, caused three months of that duration by demanding a stay in the investigation, to say nothing of his months of obstruction before that.

The Government’s investigation into the matters at issue in the indictment has been ongoing for over a year.

There’s a funny progression where Trump first says his day job running for President doesn’t leave him time to be prosecuted for stealing documents the last time he was President, then admits that he has found time in his busy schedule for two other trials.

President Trump is running for President of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance

[snip]

Finally, previously scheduled trials in other matters for both President Trump and defense counsel make it nearly impossible to prepare for this trial by December 2023. For example, President Trump and Mr. Blanche are preparing for a March 2024 criminal trial in New York Supreme Court; Mr. Kise and President Trump are preparing for a lengthy civil trial in New York Supreme Court commencing October 2, 2023;

[snip]

The pendency of these other proceedings and their collective impact on the ability of defense counsel to prepare effectively for trial also support granting a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii) & (iv).

But, given that he got elected the last time by promising he would be more careful with classified information than his opponent, the most remarkable paragraph in the filing is this one, where Trump says there is no exigency to scheduling this trial (as opposed to his hush money or corporate fraud trials) before the election.

While the Government appears to favor an expedited (and therefore cursory) approach to this case, it cannot point to any exigency or urgency requiring a rapid adjudication. There is no ongoing threat to national security interests nor any concern regarding continued criminal activity

I suspect the paragraph is designed to elicit a response to the question, “is there any concern regarding continued criminal activity?” That is, I think it is an attempt to probe for what more the government continues to investigate.

And yes, the government may well respond to this by answering, “funny you should mention ongoing threats to national security because we’re still looking for all the things that disappeared up at Bedminster.”

But the underlying premise is even more remarkable, given how Trump’s got elected the last time.

Trump says that there is no exigency in telling the citizens and voters of the United States whether the last time he was President, all the promises he made to get elected were just bullshit, because in fact he used his position of power to steal the nation’s secrets and store them in his chandeliered bathroom.

There is a lot that is reasonable in this filing.

But at its core, it argues that a guy accused of using the access to the nation’s secrets he got by getting elected President on false promises the last time, should get a shot at accessing those secrets again, without first letting a jury decide whether he had abused his position of power the last time.

Trump promised voters in 2016 that he would protect classified secrets; it’s actually a key part of how he got elected. Now he says voters shouldn’t have a chance to find out whether he broke that promise before going to the polls again.

Update: This post originally suggested current Trump lawyer Todd Blanche was on Paul Manafort’s team when he tried to challenge Robert Mueller’s Special Counsel authority. That’s not the venue in which Blanche represented Manafort.

Update: Judge Cannon has reset the CIPA conference for Tuesday afternoon, as all parties had agreed would work.

Stanley Woodward Tests Judge Aileen Cannon’s Patience

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Just days into Pro Hac Vice admittance before Judge Aileen Cannon, Walt Nauta’s lawyer, Stanley Woodward, is testing (as in, probing) her patience, to see how much she will play along with obvious attempts to stall this case.

He and the government have submitted dueling filings about whether the CIPA conference scheduled for Friday should be postponed to some uncertain time.

Before I get into what they say, remember that Woodward is being paid by Trump’s PAC, which is also under investigation for raising money promising one thing and then spending it on other things — such as paying for Woodward’s legal fees.

Remember, too, that after months of claiming that DOJ had screwed up by not immunizing Walt Nauta — a strategy that got his client charged in an Espionage Act indictment (in some legal circles, a sign of a legal strategy that has backfired, potentially catastrophically), Woodward then adopted a new strategy: belatedly accusing Jay Bratt of bullying him because Bratt tried to prevent him from setting his client up to be charged.

Finally, consider that we’ve already seen stories suggesting that Trump plans to stall this out past November 4, 2024, so he can pardon both of them.

The pace of hiring an attorney for Nauta has been slow — as has been the speed with which Trump is beefing up his own criminal defense team. Nauta continues to work for Trump’s organization and Trump’s political committee is financing his employee’s legal representation. Inside the former president’s orbit, top aides are prepping for a protracted and litigious fight with prosecutors that draws out the entire legal process through the 2024 general election that Trump hopes to win for a return to the White House.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” said the source familiar with discussions. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

And before I present Woodward’s seven (!!!) excuses for not being able to make Friday’s hearing, consider that according to the government, Woodward hasn’t even submitted his SF-86 form required before he can get clearance.

Nauta’s second justification for a continuance is a claim that Mr. Woodward cannot “meaningfully” participate in a discussion about classified discovery or a CIPA discovery schedule at a Section 2 conference until obtaining a security clearance. Motion at 3. But he cites no case holding that a Section 2 conference is contingent on counsel having clearances, which is unsurprising since such a requirement would be inconsistent with Section 2’s language that “[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” 18 U.S.C. App.3 § 2. Perhaps more to the point, as of this writing, Mr. Woodward has yet to complete his Form SF-86, which is necessary for him to receive both an interim clearance and final adjudication, despite having been put in contact with the Litigation Security Group on June 12, some three-and-a-half weeks ago.

With all that laid out, ready for Woodward’s seven complaints?

1) First, that DOJ charged his client in Trump country rather than in DC.

With little notice to Defendant Nauta, the operative indictment in this matter was returned in this District and only recently, on Wednesday, July 5, 2023, did Defendant Nauta retain local counsel, Sasha Dadan.

2) Then, that he opposed having a CIPA conference at all (a claim the government says is not true).

Although government counsel asked whether Mr. Nauta’s longtime counsel opposed such a hearing – we did – and provided an electronic courtesy copy of the same, the government did not request any dates when defense counsel would be unavailable for such a conference.

3) Then, that Nauta had delayed so long in hiring a Florida lawyer that poor Stan Woodward had no way to object on his own.

At that time, Mr. Nauta, through counsel was not receiving electronic notices through the Court’s CM/ECF filing system, the government did not advise counsel that the pretrial CIPA conference had been scheduled, and even when counsel did learn of the conference, Mr. Nauta had no ability to formally move the Court for relief based upon his counsel’s unavailability. Rather, it was not until Wednesday, July 5, 2023, that Mr. Nauta retained local counsel, Sasha Dadan, and Thursday, July 6, 2023, that Chief Magistrate Judge Torres entered an Order permitting Mr. Nauta, through counsel to file electronically with the Court.

4) Then, that Woodward has a trial for Freddie Klein this week (the government says it — this prosecution team — did not know that — it seems that Woodward is relying on prosecutors on a 1,000 defendant crime scene investigation to track Woodward’s other clients).

As the government has long been aware, Mr. Nauta’s longtime counsel, Mr. Woodward, is scheduled to begin a Bench Trial in the United States District Court for the District of Columbia on July 10, 2023.

5) Woodward then says that even though he’s not required to attend, Nauta should be able to demand that he attend.

Presumably, the government will argue that Mr. Woodward’s appearance is unnecessary. But see Flanagan v. United States, 465 U.S. 259, 268 (1984) (like the Sixth Amendment right to self-representation, the right to counsel of choice, “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding”). And defense counsel is aware of the Court’s admonishment that, “[l]ocal counsel must be ready to adequately represent [Mr. Nauta] at any time.” Paperless Order (July 7, 2023).2 However, as the government notes in its application for the hearing, a pretrial CIPA conference permits the Court to, “consider matters related to classified information that may arise in connection with the prosecution.” Motion at 6 (June 23, 2023) (ECF No. 32) (quoting 18 U.S.C. App. III § 2).

6) Woodward doesn’t see the point of using CIPA in a case charging 31 of the most sensitive documents ever charged in an Espionage Act case.

To that end, the government only broadly describes the basis for its request for a pretrial CIPA conference: “to establish a discovery and motion schedule relating to any classified information.” Motion at 19 (June 23, 2023) (ECF No. 32). Yet, defense counsel cannot meaningfully opine on, “a discovery and motion schedule relating to any classified information,” before their provisional security clearances, let alone complete clearances, have been approved.

7) Even though his brand spanking new co-counsel (who mostly does family law kinds of things but also dog bites) is obligated under local rules to hit the ground running, she’s not ready to hit the ground running.

Nor is it feasible to expect Mr. Nauta’s local counsel to appear at a pretrial CIPA conference and to agree upon, “a discovery and motion schedule relating to any classified information,” barely a week after she has been retained by Mr. Nauta.

2 Mr. Nauta respects the Order of the Court and submits that it was not unreasonable for him to retain local counsel and thereafter request this Court accommodate the unavailability of his longtime counsel, Mr. Woodward insofar as Defense counsel would note that Local Rule 4 of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys for the United States District Court of the Southern District of Florida, which pertains to the admission of out-of-state attorneys pro hac vice does not indicate that the sponsoring attorney be required to, “be ready to adequately represent the defendant at any time.”

Tune in in January, when Presidential candidate Donald Trump says he needs to delay his trial because he has primaries to run in. It won’t be his fault that the lawyer his PAC is paying invented frivolous cause for day, after all.

As I said, Woodward is testing Judge Cannon’s patience. And why wouldn’t he? If she conducts herself like she did last summer, he’ll be able to buy Trump all the time in the world.

Walt Nauta and the Single Box

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The section of the less redacted search warrant affidavit showing when Walt Nauta moved boxes in and out of the storage room differs from the timeline shown in the indictment in one key way.

The search warrant affidavit used to demonstrate probable cause doesn’t describe how, on May 22 of last year, the former valet spent over half an hour in the storage room, and then left carrying a single box.

53. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

There are several possible explanations why that description may not be in the search warrant affidavit.

Perhaps investigators didn’t think it important — though that would be hard to believe, given that the affidavit observes something that the indictment does not as explicitly: that all this box moving happened in the same period when Nauta disavowed any knowledge of box movement.

On May 30, 2022, four days after WITNESS 5’s interview with the FBI during which the location of boxes was a significant subject of questioning, WITNESS 5 is observed exiting the ANTEROOM doorway with approximately fifty Bankers boxes, consistent with the description of the FPOTUS BOXES. [my emphasis]

Perhaps investigators simply didn’t see Nauta and the single box on May 22. But note that the surveillance video was motion activated, so any movement on May 22 should show up just like all the other movement did, and in close proximity to his movements captured two days later.

[T]he FBI determined that the drive contained video footage from four cameras in the basement hallway of the PREMISES in which the door to the STORAGE ROOM is located. The footage on the drive begins on April 23, 2022, and ends on June 24, 2022. The recording feature of the cameras appears to be motion activated, so that footage is only captured when motion is detected within each camera’s field of view.

Or perhaps this movement, Nauta spending half an hour in the storage room then leaving with a single box, is one of the surveillance footage gaps that investigators spent much of a year trying to fill and explain.

The different treatment of this one box is more interesting given other details of the timeline.

For example, Nauta retrieved that single box just two days before the original deadline for the subpoena, May 24.

The return date of the subpoena was May 24, 2022.

Nauta retrieved that box the day before Trump met with Corcoran and another attorney who hasn’t been IDed yet, but who may be Boris Epshteyn. At the meeting, a day after presumably getting a box that didn’t show up in the search warrant affidavit, Trump whined that, “I don’t want anybody looking through my boxes!”

54. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

Amidst all that whining, Trump agreed to let Corcoran search for documents, but only after a ten day delay. And then Trump delayed his departure to Bedminster so he would be at Mar-a-Lago to sort boxes and to see the scheme through.

56. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP’s boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.

57. After meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP delayed his departure from The Mar-a-Lago Club to The Bedminster Club for the summer so that he would be present at The Mar-a-Lago Club on June 2, when Trump Attorney 1 returned to review the boxes.

Something that doesn’t show up in the indictment but does in the affidavit is that Corcoran then pushed for an extension on the subpoena deadline.

On May 25, 2022, while negotiating for an extension of the subpoena, FPOTUS COUNSEL 1 sent two letters to DOJ COUNSEL. In the second such letter, which is attached as Exhibit 1, FPOTUS COUNSEL 1 asked DOJ to consider a few “principles,” which include FPOTUS COUNSEL 1’s claim that a President has absolute authority to declassify documents. In this letter, FPOTUS COUNSEL 1 requested, among other things, that “DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.”

Just one of the two letters Corcoran sent that day has been released — the one falsely claiming Trump had returned documents in good faith earlier that year, though Corcoran may not have known that was false. Nauta would repeat a version of that claim the next day, on May 26, in his FBI interview, though unlike Corcoran, he is credibly accused of knowing well that was a lie.

All the other movement of boxes, then, occurs during that subpoena extension (and this might be another reason why the May 22 movement is not included on the affidavit — perhaps investigators focused on what happened during the subpoena extension). Nauta empties the storage closet of 64 more boxes, moving all these boxes in the same week when, in an FBI interview, he allegedly denied knowing anything about an earlier scheme to sort through boxes.

On May 24, 2022, WITNESS 5 is observed exiting the ANTEROOM doorway with three boxes.

On May 30, 2022, four days after WITNESS 5’s interview with the FBI during which the location of boxes was a significant subject of questioning, WITNESS 5 is observed exiting the ANTEROOM doorway with approximately fifty Bankers boxes, consistent with the description of the FPOTUS BOXES. FBI did not observe this quantity of boxes being returned to the STORAGE ROOM through the ANTEROOM entrance in its review of the footage.

The next day, on June 1, 2022, WITNESS 5 is observed carrying eleven brown cardboard boxes out the ANTEROOM entrance. One box did not have a lid on it and appeared to contain papers.

And then, after Nauta told a female Trump that Trump wanted to pick from all those boxes, Nauta loaded up several of the boxes withheld from Corcoran’s search onto Trump’s plane to take to Bedminster, never to be seen again.

72. Earlier [on June 3], NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.

So it may or may not be a significant detail, but the day before Trump orchestrates this scheme to keep 35 boxes shielded from Corcoran’s search, Nauta spent half an hour in the storage room retrieving a single box.

Some weeks after this scheme, on June 21, the day before DOJ asked Trump Organization for surveillance footage, per the discovery letter, Nauta appeared before a grand jury, his second (and only other) interview with investigators.

A bunch of reports last year, such as this one from Devlin Barrett that likely confuses Nauta with Molly Michael, described that Nauta changed his testimony in what would be this grand jury appearance, admitting that Trump ordered him to move boxes.

When FBI agents first interviewed Nauta, he denied any role in moving boxes or sensitive documents, the people familiar with the situation said in interviews before Nauta’s name became public. But as investigators gathered more evidence, they questioned him a second time and he told a starkly different story — that Trump instructed him to move the boxes, these people said.

But those reports came at a time when DOJ was still trying to get more testimony from Nauta.

Prosecutors have indicated they are skeptical of an initial account Mr. Nauta gave investigators about moving documents stored at Mar-a-Lago and are using the specter of charges against him for misleading investigators to persuade him to sit again for questioning, according to two people briefed on the matter.

So, particularly given that a grand jury appearance would have been in — and so would be charged — in DC, it’s not really clear whether Nauta did correct his story before the grand jury. If he didn’t, Jack Smith could prosecute Nauta individually on a perjury charge that might go to trial within months, not the year the Espionage Act trial is expected to take.

Whether or not he cleaned up his testimony, on June 21, Nauta appeared before the grand jury.

Having locked that testimony in, on June 22 prosecutors asked Trump Organization — probably Alan Garten, from whom discovery has been deficient in past investigations — for surveillance footage.

DOJ COUNSEL has advised me that on or about June 22, 2022, counsel for the Trump Organization, a group of business entities associated with FPOTUS, confirmed that the Trump Organization maintains security cameras in the vicinity of the STORAGE ROOM and that on June 24, 2022, counsel for the Trump Organization agreed to accept service of a grand jury subpoena for footage from those cameras.

Shortly after that, per reporting on some of the last grand jury testimony banked in DC before DOJ took steps to charge the Espionage charges in Florida, Nauta called Chief of Operations for Trump Organization, Matthew Calamari Sr.

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

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request, one of the people said – initially a point of confusion for the justice department, which appears to have thought the text was to Calamari Jr.

Then, less than two weeks later, on July 6, Trump Organization provided DOJ with surveillance footage showing Nauta moving a great many boxes out of the storage room, and moving fewer than half of them back in before Evan Corcoran searched them. That’s pretty damning stuff! It provided some of the most compelling evidence in the affidavit justifying a search on the former President’s beach resort.

DOJ only got two months of footage, not the five they had asked for (which would have covered the tail end of the earlier sort of boxes). That’s unsurprising: even normal businesses only retain such footage for a limited period of time.

But in addition to obtaining fewer months than they had requested, the footage Trump Org turned over reportedly had other gaps, gaps that have not yet been charged or even mentioned, at least in unsealed form, in any official DOJ filing.

What’s unclear is whether that May 22 footage, showing that Nauta spent half an hour in the storage closet only to come out with a single box, was originally one of those surveillance gaps or not.

Trump’s Stolen Documents: Newly Unsealed Numbers

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DOJ has unsealed more of the original August 5, 2022 search warrant to search Mar-a-Lago. Here are some interesting numbers:

  • At one point there were 85 to 95 boxes of documents in the storage room
  • Walt Nauta was called “Witness 5” in the affidavit, meaning in addition to the enumerated lawyers and persons there are at least four other people described in the affidavit; now he’s alleged co-conspirator 1
  • DOJ’s math on how many boxes Walt Nauta had moved in and out of the storage room was pretty close, estimating he had moved 15 to 30 boxes back into storage — per the indictment, the number was 30
  • On first request, DOJ only obtained two months worth of surveillance footage showing what was being moved in and out of the anteroom to the storage room
  • Evan Corcoran’s search of boxes lasted 2.5 hours
  • Trump may have waited three weeks after Jay Bratt’s request on June 8 to secure the storage room to put a padlock on the door

One other detail of interest is that DOJ started tracking what was in a banker’s box, and what had been moved into a plain cardboard box.

Susie Wiles Named in A(nother?) Trump-Related Indictment

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ABC has identified two more people referred to in Trump’s Espionage Act indictment.

In addition to confirming earlier reports that Molly Michael is Trump Employee 2 — the person who, with Walt Nauta, helped Trump sort through boxes in advance of returning a subset of boxes in January 2022 — ABC describes that Trump Employee 1 is Hayley (née D’Antuono) Harrison.

Sources have also further identified some of the other figures mentioned by Smith’s team in the indictment. Hayley Harrison and Molly Michael are said to be “Trump Employee 1” and “Trump Employee 2,” respectively.

Michael, whose name was previously reported as an individual identified in the indictment, is Trump’s former executive assistant who no longer works for him, while Harrison is currently an aide to Trump’s wife, Melania Trump.

The role of Trump Employee 1 in the indictment is fairly minor: in a discussion with Michael she suggested moving other stuff to storage to make space in the gaudy bathroom for boxes of documents.

People often raise questions about whether she has familial ties with Steve D’Antuono, the former FBI Assistant Director who kept thwarting investigations into Trump; they share a last name but no known familial ties.

More interesting is the role of her spouse, Beau, whom she married last year. Both Beau and Hayley were employed by Trump’s PAC, and Beau was represented (as Cassidy Hutchinson had been) by Stephen Passantino. Beau made two appearances before the January 6 Committee, in the second of which his testimony evolved to match Tony Ornato’s testimony disclaiming Trump’s efforts to go to the Capitol on January 6. Harrison was interviewed in the January 6 investigation late last year.

The Harrisons are a couple in the thick of things.

ABC’s other identification is a much bigger deal — and Trump is making it one. According to ABC, Susie Wiles is the PAC Representative to whom Trump is described as showing a classified map in September 2021.

Susie Wiles, one of Trump’s most trusted advisers leading his second reelection effort, is the individual singled out in Smith’s indictment as the “PAC Representative” who Trump is alleged to have shown a classified map to in August or September of 2021, sources said.

Trump, in the indictment, is alleged to have shown the classified map of an unidentified country to Wiles while discussing a military operation that Trump said “was not going well,” while adding that he “should not be showing the map” to her and “not to get too close.”

[snip]

If the identification of Wiles by sources is accurate, it also raises the prospect that should Trump’s case go to trial prior to the 2024 election, one of the top figures leading his reelection bid could be called to testify as a key witness. Wiles, who previously helped lead Trump’s now-GOP primary opponent Ron DeSantis’s two campaigns for governor, is seen as one of Trump’s most trusted confidants.

She also led Trump’s campaign operations in Florida in 2016, and was later CEO of Trump’s Save America political action committee.

Note that Trump could not be surprised by Wiles’ inclusion in the indictment; the map-sharing incident was widely reported before the indictment.

Still, Wiles’ ID is important for several reasons. Even more than the prospect that Wiles might have to testify during the campaign, which ABC notes, consider how the primary release condition — that Trump not discuss the facts of the case with any witnesses — would affect this. Trump wants to turn being an accused felon into a key campaign plank. He’s running on being a victim. But the contact prohibition would make it more difficult for Trump and Wiles to discuss the best way to do that. And it would make any false claims the Trump campaign made about the prosecution legally problematic, because Wiles is a witness.

That would be true irrespective of Wiles’ role in running Save America PAC, which is the key subject of the fundraising prong of the investigation. But there’s a non-zero likelihood that Wiles’ conduct is being scrutinized for spending money raised for one purpose and spent on another. One way or another, Wiles was involved in a suspected Trump scheme to raise money based off a promise to spend it on election integrity, only to use the money for lawyers representing Trump in other matters.

More interesting still: this may not be Wiles’ first inclusion in a Trump-related indictment. At the very least, Wiles was the former 2016 campaign staffer who had to answer for the multiple contacts Yevgeniy Prigozhin’s trolls made with Trump’s Florida campaign as laid out in the Internet Research Agency indictment, and she may well have been one of the three campaign officials referred to in it.

74. On or about August 15, 2016, Defendants and their co-conspirators received an email at one of their false U.S. persona accounts from a real U.S. person, a Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county. The activist identified two additional sites in Florida for possible rallies. Defendants and their co-conspirators subsequently used their false U.S. persona accounts to communicate with the activist about logistics and an additional rally in Florida.

75. On or about August 16, 2016, Defendants and their co-conspirators used a false U.S. persona Instagram account connected to the ORGANIZATION-created group “Tea Party News” to purchase advertisements for the “Florida Goes Trump” rally.

76. On or about August 18, 2016, the real “Florida for Trump” Facebook account responded to the false U.S. persona “Matt Skiber” account with instructions to contact a member of the Trump Campaign (“Campaign Official 1”) involved in the campaign’s Florida operations and provided Campaign Official 1’s email address at the campaign domain donaldtrump.com. On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

77. On or about August 18, 2016, Defendants and their co-conspirators sent money via interstate wire to another real U.S. person recruited by the ORGANIZATION, using one of their false U.S. personas, to build a cage large enough to hold an actress depicting Clinton in a prison uniform.

78. On or about August 19, 2016, a supporter of the Trump Campaign sent a message to the ORGANIZATION-controlled “March for Trump” Twitter account about a member of the Trump Campaign (“Campaign Official 2”) who was involved in the campaign’s Florida operations and provided Campaign Official 2’s email address at the domain donaldtrump.com. On or about the same day, Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

79. On or about August 19, 2016, the real “Florida for Trump” Facebook account sent another message to the false U.S. persona “Matt Skiber” account to contact a member of the Trump Campaign (“Campaign Official 3”) involved in the campaign’s Florida operations. On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3. [my emphasis]

In the wake of the indictment, Wiles insisted, convincingly, that no official staffer wittingly cooperated with the trolls.

Susie Wiles, who was co-chair of the Trump campaign in Florida in August 2016 and later became the campaign’s chief Florida staffer, said no campaign official was aware of the Russian effort.

“It’s not the way I do the business; it’s not the way the Trump campaign in Florida did business,” she said. “It is spooky. It is awful. It makes you look over your shoulder. It shouldn’t happen. I’m anxious for this to be uncovered so this never happens again.”

Indeed, ultimately, DOJ argued that Prigozhin’s trolls had made approximately 26 real US persons unwittingly serve as agents of Russia, who otherwise should have registered under FARA. Had the Concord Consulting case gone to trial, the interactions of those real people with Prigozhin’s trolls would have been introduced as evidence.

But the focus on Florida led to a real focus on the Wiles family’s real actions tied to Russia. Notably, just days after the June 9, 2016 meeting with Natalia Veselnitskaya and Rinat Akhmetshin, Susie’s spouse Lanny arranged for Veselnitskaya to get a prominent seat at a Magnitsky sanctions hearing.

In fact, her seat had been reserved for her by a Republican consultant with close ties to the Trump campaign.

Lanny Wiles, whose wife, Susie, was then chairing the Trump campaign in Florida, said in an interview that he came early to scout out the seat and was there at the request of Akhmetshin, with whom he was working as a consultant on the sanctions-related adoption issue.

Lanny and Susie Wiles both said she was unaware of his role in the lobbying effort. Lanny Wiles said he was unaware that the Russian lawyer whose seat he was saving had just days earlier met with Trump Jr.

“I wasn’t part of it,” Susie Wiles said.

First Politico, then BuzzFeed, reported that Lanny Wiles had some kind of financial role in Akhmetshin’s anti-Magnitsky lobbying. And the Wiles’ daughter, Caroline, had to be moved from a job in the White House to Treasury after she failed a background check.

That back story is what makes it more interesting that Trump was sharing a classified map with Wiles in 2021.

Update: CNN matches ABC’s identification of Wiles, and adds that Wiles has been interviewed several times.

The campaign adviser, Susie Wiles, has spoken to federal investigators numerous times as part of the special counsel’s Mar-a-Lago documents probe, multiple sources told CNN.

[snip]

During her interviews, sources say that prosecutors repeatedly asked Wiles about whether Trump showed her classified documents. They also inquired about a map and whether she had any knowledge regarding documents related to Joint Chiefs Chairman, Gen. Mark Milley, one source added.

[snip]

Wiles, one of Trump’s closest advisers, is effectively running his third bid for the presidency and has taken an active role in Trump’s legal strategy, including helping find lawyers and helping arrange payment to attorneys representing Trump associates being questioned in the multiple federal and state investigations into the former president.

Wiles is also a close associate of Chris Kise, who is on Trump’s legal team and appeared in court earlier this month when Trump was indicted.

Sources in Trump’s inner circle tell CNN they were blindsided by the news.

Wiles declined to comment to CNN.

Trump campaign spokesperson Steven Cheung told CNN that Wiles would not be taking a step back from the campaign.

“Jack Smith and the Special Counsel’s investigation is openly engaging in outright election interference and meddling by attacking one of the leaders of President Trump’s re-election campaign,” said Cheung.

Perhaps the most interesting detail in the CNN piece is that “sources in Trump’s inner circle” didn’t know this.

Update: A Trump rival (remember that Wiles used to work for DeSantis) finally finds something to attack Trump on — and in a Murdoch rag, no less: Wiles’ ties to China.

Susie Wiles works on Donald Trump’s 2024 campaign and is co-chair of Mercury Public Affairs, which has taken millions of dollars in recent years from Chinese companies such as Yealink, Hikvision and Alibaba.

[snip]

If confirmed, the episode is further complicated by both Wiles’ high standing in the Trump campaign and her firm’s lobbying for potential hostile entities — though a search of the Justice Department’s registry of foreign agents indicated Wiles had not worked directly for those clients.

“Susie could put Trump away for years in just one minute of testimony to Jack Smith,” a rival GOP operative told The Post. “She’s got Trump by the balls, which means she can name her price for her loyalty and Trump can’t say no.”

Moving the Boxes: Trump’s Valet and Alleged Co-Conspirator Buys the Boss a Three-Week Delay in His Trial

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According to the motion to seal filed in his case, DOJ warned Walt Nauta he was a target of the stolen documents case on May 24, 34 days ago.

After he and his boss were indicted on June 8, he was issued a judicial summons, alerting him that his prosecution would take place in the Southern District of Florida, which has strict rules requiring a local attorney to appear and remain counsel, and scheduling a June 13 arraignment. That was 19 days ago.

But Nauta was not arraigned on June 13, as Trump was, because he had not yet arranged for local counsel.

That delay was totally excusable. There aren’t that many people in SDFL who are qualified for a case like this in the first place. And those that are may balk at the pre-existing conflict structure here, with Stan Woodward paid by Trump’s PAC, which itself is under criminal investigation. And those aren’t the only ethical concerns I would have about taking on this case.

But today’s delay is far less defensible. Particularly given the theater Woodward created surrounding the event.

Woodward made much of the fact that poor Walt Nauta was stuck on the tarmack yesterday at Newark Airport with flight delays and cancellations due to the same bad weather that I was planning around last Saturday when I was in New York state.

That was all a distraction. Nauta’s presence wasn’t required at the arraignment. Magistrate Judge Jonathan Goodman excused Nauta’s attendance at today’s hearing during Trump’s arraignment.

You only tell that story in a court room to get credulous journalists — like CNN — to report that as the primary reason for the delay. It had no legal import. (Note: Most initial Twitter coverage parroted Woodward’s weather excuse, but most outlets fixed that on publication of their stories.)

The rain had nothing to do with today’s delay. Nauta’s failure, thus far, to retain a Florida attorney was the only reason for the delay.

And there’s certainly reason to wonder whether that delay is intentional. Marc Caputo’s report on Nauta’s search for a Florida lawyer quotes someone “familiar with the discussions” stating that the trial won’t happen before the election, so (or perhaps, “because”) “there’s no rush to” find a lawyer.

The pace of hiring an attorney for Nauta has been slow — as has been the speed with which Trump is beefing up his own criminal defense team. Nauta continues to work for Trump’s organization and Trump’s political committee is financing his employee’s legal representation.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” said the source familiar with discussions. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

Speaking to the Messenger before Tuesday’s arraignment hearing got delayed, the source said Nauta would likely have a lawyer within the coming weeks.

So now Nauta is not scheduled to be arraigned until July 6 (his personal appearance has again been excused), a full four weeks after his indictment, and the same day on which Judge Cannon has ordered the defense to weigh in on proposed schedule for the trial.

This is, in my opinion, why Jay Bratt proposed a schedule showing that it is possible to try this case such that it would be done — even assuming three weeks of jury selection and three weeks of trial — before the first primary. Any delay past that schedule comes from Trump. And his alleged co-conspirator, Walt Nauta, whose job is to move boxes for the boss.

What is going to happen is that Trump will cause enough of a delay to push this into the primary season, and once that primary season trial happens, he will wail about how the trial interferes with his right to be elected President on false claims again, so he can steal more classified documents.

And his trusty valet, Walt Nauta, has just bought 23 days of delay for his arraignment to help ensure that happens. He’s moving the boxes again to help his boss obstruct justice.

Update: WSJ has since updated a story that included only the storm excuse to note that the real reason for the delay was that Nauta has not yet retained a lawyer.

The Milley Tape: “Bring Some Cokes in Please!”

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CNN obtained copies of the recording described in ¶34 of Trump’s Espionage Act indictment. This is my take.

“This thing just came up.”

Shortly after the CNN clip starts, Trump says, “I have a big pile of papers, this just came up.” He’s saying that, remember, after having transported the documents from Mar-a-Lago to Bedminster for the summer. His comment that, “this just came up,” suggests he was not only carrying these documents around, but reviewing them.

Given the fact that Trump’s lawyers weren’t able to find this document, it means he was reviewing them … before they disappeared forever.

“These are bad sick people”

Trump compulsively shared this document for revenge — the same reason he put together the dumbass Russian binder. It not just speaks to intentional retention of documents, but it shows that he intended, from the start, to retain documents to exact revenge on his perceived detractors.

Note that this is the same reason he released classified information at least once while President — when he shared details about the Josh Schulte investigation with Tucker Carlson on the same day the FBI planned to search Schulte’s home. He did so because of false claims he had been wiretapped, but also did so to blame President Obama for the leak.

Trump’s pathological need for revenge would be very very easy to exploit by anyone willing to push Trump’s buttons.

“You probably almost didn’t believe me, but now you believe me”

As multiple reports regarding this document explained, Trump was lying. This document didn’t come from Milley, it dated back to Milley’s predecessor, sometime in 2019. Nevertheless he kept saying, “this was him, this totally wins my case.”

So it didn’t prove his case. Milley didn’t want to attack Iran, but Trump was using an unrelated document to claim that he did.

But Trump was using it — waving a document he described as highly confidential — to substantiate a false claim.

“She’d send it to Anthony Weiner, the pervert”

Trump and his aide joke about Hillary printing this out and sending it to Anthony Weiner. That’s unsurprising: Trump always rationalized his own mistreatment of information by pointing to Hillary’s email server (this Roger Parloff post is a remarkably thorough debunking of Trump’s claims).

But understand how this comment will appear against the context of the five attacks on Hillary Trump used to get elected, cited in the indictment.

Jack Smith plans to use Trump’s past condemnation of Hillary to show that Trump knew this was wrongful. So even his false quip about Weiner will make this evidence more valuable.

And then, at the end of this recording, Trump called a staffer to bring some cokes, emphasizing how banal sharing classified information was for Trump.

Update: Several people questioned who leaked this in comments. Remember that at an equivalent point in Michael Cohen’s prosecution — when SDNY was about to get the recording Cohen made of Trump ordering a hush payment — Trump released the tape to preempt damage. In that case, Trump would have gotten the recording via discovery, because he was participating in the Special Master review. In this case, Trump independently owns copies of the recording, which was made for his own purpose.

It’s certainly possible someone else (perhaps the journalists who took it) released it. But Trump releasing it — then blaming Jack Smith just as Aileen Cannon gets involved in such issues — would be the most predictable thing ever.

Update: Fixed my misuse of avenge.

Aileen Cannon’s Not-Abnormal Orders

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Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.

Request 1: Motion to Implement Special Conditions of Release

Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.

Goodman ordered the government to provide defendants with a list of witnesses this covered.

DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.

Trump and Nauta objected to that part of it.

Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.

I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.

After that, a media coalition opposed the government motion, asking that any list be filed unsealed.

Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.

PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]

As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.

Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.

Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.

So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.

Request 2: Motion for a Continuance

On the same day, Friday, DOJ also asked for a multi-part motion for a continuance from the August trial date to a December one.

It laid out the following logic:

  1. The matter is not complex, meaning Trump doesn’t need a year to review discovery
  2. The matter does involve classified information, which will require using the Classified Information Procedures Act (CIPA), which takes some time
  3. Also, Trump will need more time to review discovery than the current schedule allows

DOJ provided some legal requests, as well as a proposed timeline.

In response to this request, Cannon asked the defendants what they think:

On or before July 6, 2023, Defendants shall respond to the Government’s Motion for Continuance 34, either individually or in a combined filing.

This is normal.

Request 3: Motion on CIPA

The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:

  • Schedule a CIPA 2 conference to talk about the classified matters at issue
  • Appoint a Court Information Security Officer

In her order, Cannon cited the defendants’ lack off opposition.

The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,

The Court expresses no view on the other matters addressed in the Government’s Motion.

But those matters are dictated by law.

At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.

Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.

There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.

I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.

The Approach to Classification in Trump’s Stolen Document Case

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The government has submitted materials in support of a requested continuance until December in Trump’s stolen documents case:

The Motion to Implement Special Conditions is basically a bid to get a list of 84 witnesses submitted, via sealed filing, to docket, and so subject to Judge Aileen Cannon’s discipline. Under the order issued by Magistrate Judge Jonathan Goodman, both Trump and Walt Nauta will be prohibited from speaking about the facts of the case with any of the 84 witnesses — a great many of whom are Trump employees — except through counsel.

Even at the arraignment, Todd Blanche balked at this condition, which Goodman imposed without DOJ requesting it. In particular, I think Blanche wants people to be able to discuss the case without counsel present so long as counsel has advised about that.

But per the filing, defense attorneys may yet object to the condition itself.

2 The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have authorized government counsel to represent the following: “Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.” Counsel for defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

I would love to see briefing on this, because I think Blanche has specific concerns about preserving the nesting gatekeeping that has existed from the start of this. But this condition, if upheld, will also stymie Trump’s efforts to fundraise by lying about this case.

The other request is a motion to delay the trial — which Aileen Cannon initially scheduled for August — until December, largely for CIPA to play out. This is totally normal, and given Cannon’s past history in criminal cases — which Kyle Cheney reviewed here — there’s no reason to expect she would object (indeed, legally, CIPA requires her to work through this process).

The proposed schedule would envision a trial before the first primary, but it triggers everything to Trump (and Nauta’s) responsiveness. I suspect it was crafted to undermine any claims from Trump that DOJ is responsible for a trial as people are voting, but some of these deadlines are really aggressive.

Most interesting, though, is DOJ’s treatment of clearances. According to Jay Bratt’s declaration, once defense attorneys get their SF-86 filing in, the Litigation Security Group has committed to turning around their initial clearances unbelievably quickly: two days. And it has likewise committed to sharing SIGINT documents based just off that interim clearance.

To be granted an interim security clearance, defense counsel must submit a Standard Form 86 – Questionnaire for National Security (“SF-86”) and supporting documentation. To date, not all of the defense counsel have submitted their SF-86s. Once an SF-86 and supporting documentation are submitted, absent complicating circumstances, an interim clearance may be granted within a matter of days. In this case, LSG has committed to reaching an eligibility determination within 24-48 hours of the completed submission. Once defense counsel are granted interim security clearances, the government will be able to provide the vast majority of classified discovery, consisting of documents marked CONFIDENTIAL, SECRET, and TOP SECRET, including documents within the following Sensitive Compartmented Information Compartments: SI, SI-G, and TK. [my emphasis]

You can see from the list of charged documents, that would encompass many of the charged documents (some of the redacted classifications are probably SI-G).

But there are others that require further read-in.

However, interim security clearances are not sufficient for the government to provide in classified discovery a small number of documents-including some documents whose unauthorized retention is charged in the indictment-that contain restricted compartments for which a final security clearance and additional read-ins are required. LSG estimates that final clearances may be granted within 45 to 60 days of submission of the SF-86 and related documentation, depending upon the content of the applicant’s SF-86. The additional read-ins can be conducted promptly upon access approval. [my emphasis]

Among the unredacted classification marks not included among those Bratt listed are FR (Formerly Restricted, a nuclear designation under the Atomic Energy Act and one Presidents can’t declassify alone) and HCS-P (HUMINT product). The bolded language suggests that DOJ is planning to share all classified documents Trump stole; based on the redaction marks in the May 11 subpoena, I would be unsurprised if there were HCS-C, HUMINT collection, documents included as well.

This is an incredibly aggressive approach. As I’ve said, I think DOJ would prefer to find a way to get Trump to plead out, however unlikely that would be. The sooner they share documents with Trump and Nauta’s lawyers, the sooner they might be in a position to persuade Trump how bad this will look if he goes to trial.

But note the two caveats: At least one of three known defense attorneys has not yet submitted his SF-86, the list of foreign contacts needed to obtain clearance. At least one of them — Chris Kise, who worked for Venezuela’s government — may not be eligible.

So one other underlying context to this is that until Trump can find cleared attorneys, he may be responsible for delays that would result in a trial during the primary season.

Walt Nauta Testified to the Grand Jury before DOJ Obtained Surveillance Video

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DOJ has turned over the first tranche of unclassified discovery in the Trump stolen documents case. It includes recordings, plural, of interviews Trump did, complete copies of the surveillance footage DOJ obtained, and pictures even beyond those included in the indictment.

The second part includes a reproduction of “key” documents and photographs included in Production 1 that are referenced in the Indictment and others determined by the government to be pertinent to the case. The third part consists of complete copies of closed-circuit television (CCTV) footage obtained by the government in its investigation. To facilitate review, the government also identified and separately produced for the defense “key” excerpts from the CCTV footage, including excerpts referenced in the Indictment or otherwise determined by the government to be pertinent to the case.

As I’ve suggested, DOJ would prefer to get Trump to plead out. It’s possible there is discovery that will make him decide going to trial will be more damaging for him than pleading out.

The discovery memo also reveals that Walt Nauta testified to the grand jury on June 21 of last year.

The June 21, 2022 grand jury testimony of Defendant Nauta.

This was days before DOJ subpoenaed surveillance footage on June 24. That puts the alleged conflict between Jay Bratt and Nauta’s attorney, Stan Woodward, in different light.

Nauta was not charged with perjury for that appearance, suggesting he already fixed his testimony before DOJ obtained the surveillance footage.

But not before his alleged lies in May helped Trump abscond to Bedminster with more classified documents.