If and when former President Trump goes on trial, the Classified Information Procedures Act will govern what information gets submitted at trial and in what form. I wrote about CIPA in conjunction with the Igor Danchenko case here. Former National Security Division prosecutor David Aaron wrote about it the other day.
I’d like to give three examples of what documents that have gone through the CIPA process look like.
First, here’s one of the many CIA cables introduced at Jeffrey Sterling’s trial (here’s a larger set). Sterling was convicted of leaking details about a scheme to use a former Russian nuclear scientist to deal fake blueprints to Iran in an attempt to bollox their nuclear program. The cables would include substitutions for all the organizational details of how CIA works, as well as for the names of the Russian — Merlin — and all the covert CIA officers involved. Entire paragraphs that weren’t crucial to the meaning of the document were redacted.
This particular document was 15 years old when it was used at trial. Most if not all of the Sterling exhibits were classified Secret.
This exhibit includes the parts of Josh Schulte’s prison notebook introduced at trial. This was tied to the allegation that he was launching an Information War from jail, planning to leak further classified information to damage the CIA.
The government was able to substitute the name of a cybersecurity company that had IDed one of the CIA’s hacking tools, so as to avoid confirming that the tool referred to as Bartender in the WikiLeaks release was the malware discussed in the vendor report. But several other things were entirely redacted — such as details of the role that Schulte played at the CIA.
Some of these redactions cover other information — such as his privileged material or stuff that’s particularly inflammatory.
Schulte wrote these notes in 2018; they were first introduced for his 2020 trial, then again for his trial last year.
The case that may present the most analogous challenges to a trial against Trump is the Scooter Libby case, which — like the documents charged against Trump — involved a lot of classified communications to the White House. Here are the exhibits used in his 2nd Grand Jury appearance, at which he lied to cover up the orders Dick Cheney gave him.
Many of these are CIA documents from which the classification markings and entire sentenced were redacted. Like two of the exhibits charged against Trump, these have hand-written notes — sometimes Libby’s, sometimes Cheney’s — which were important to the case. One HUMINT report involving Joe Wilson redacted all the front-matter, including the classification marks (in this case, the notation of Wilson’s name was the important bit).
Even still, the vast majority of the documents introduced at trial were still just classified Secret, not Top Secret with compartments like most of the documents charged against Trump.
The exceptions were often Libby’s notes of Daily Briefings (including PDBs), which he used as part of a gray-mail campaign to try to make the case impossible to try. Though they didn’t have any classification marks (as is true of a document charged against Trump), they were treated as TS/SCI.
Here’s one example of from Libby’s own notes:
The vast majority of this had to be declassified because it was central to the defense Libby was mounting. Just the Foreign Leader and the US official were masked.
The Libby documents are similar to those charged against Trump in another way. These were just 4 years old when presented at trial. If Trump were to go to trial next year, the most recent documents, from 2020, would be four years old.
These cases are all in different circuits than Trump would be prosecuted in. Nevertheless, given the scant number of CIPA cases, it’s possible that the case of Josh Schulte — about whose case was one of the first times Trump shared classified information — and Scooter Libby, whom Trump pardoned, will serve as precedents for his prosecution.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-12-at-2.47.17-PM.png698954emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-12 10:01:282023-06-12 10:01:28Scooter Libby, Whom Trump Pardoned, Serves as Precedent for the CIPA Challenge His Prosecution Presents
In days ahead, there’ll be a heated discussion of what kind of sentence Espionage Act defendant Donald Trump might face. But even among the really experienced people — who correctly point out that Trump’s sentence would be a tiny fraction of the total 400 max he faces — I think the discussions are wrongly conceived. To explain why, I plan to return to my argument that the Mar-a-Lago indictment is tactical.
But first, I want to emphasize the magnitude of the fact DOJ charged Trump with hoarding 31 documents, each charged as an individual count and described, with classification markings, in the indictment. Virtually all of these documents are the type that the government is normally loathe to include at trial, and yet DOJ piled them on, compartmented document on top of compartmented document. The decision to commit to presenting all of them at trial is really remarkable, and must be (and is not being) accounted for in discussions of potential sentencing.
As background I’d like to review five similar prosecutions.
Daniel Hale
First consider two recent prosecutions (Chelsea Manning’s court martial, after which she was sentenced 35 years, is a third) where the indictments listed a long catalog of stolen documents like DOJ did with Trump: Hal Martin and Daniel Hale.
In Hale’s case, the indictment first listed all 23 documents he printed out from his job at a defense contractor, only four of which were as sensitive as most of the documents Trump was charged for hoarding.
DOJ only described the 11 documents that were published by The Intercept (document H, the fourth TS document, was not published by The Intercept and so not included in the charged documents). It then charged five counts:
18 USC 793(c) for taking the 11 documents ultimately published
18 USC 793(e) for taking and sharing the files with Jeremy Scahill
18 USC 793(e) for causing to be published the files
18 USC 798(a)(3) for sharing 4 SIGINT documents (documents A, D, E, and K, above)
18 USC 641 for taking the files, charged to include the 11 that got published and a few other unclassified documents that they had proof he had taken
Hale pled guilty to one count without a plea agreement immediately before trial and got a 45 month sentence. He is due to be released in July 2024.
Had Hale gone to trial, the government wouldn’t have had to expose any new information (though it would need to declassify it), because every charged document had been published already. So DOJ really risked very little by charging all 11 documents published by The Intercept. Any damage was already done.
Hal Martin
The way DOJ charged Hal Martin, though, is more akin to how DOJ has charged Trump.
Martin, remember, was arrested, guns-a-blazing, immediately after Shadow Brokers pegged him as the source of the documents being released in 2016. When the FBI searched his home, they found stacks and stacks of documents, including in his car. It took six months to charge Martin, presumably because DOJ had to do an investigation into what and why he had taken — including whether he was Shadow Brokers or had wilfully leaked the documents to Shadow Brokers. Unlike Trump, he was in pre-trial custody that whole time.
In the end, there were no dissemination charges (ultimately, the public record in his case is inconclusive whether he wilfully leaked these documents or not, but if he did, DOJ either couldn’t prove it or chose not to try). As DOJ did with Trump, each of a bunch of documents, a total of 20, were charged as separate counts.
There are descriptions of each of these 20 documents in the indictment, but not classification markers. The indictment describes that they were a mix of Secret, Top Secret, and SCI.
DOJ presumably got sign-off from the agencies to present these documents at trial, but after a very long pre-trial process, Martin ultimately pled guilty in March 2019 to one count of 18 USC 793(e) as part of a plea agreement, with an agreed on sentence of 9 years, one year short of the 10-year max. He’s scheduled for release in May 2024.
Nghia Pho
By comparison, Nghia Pho — the other presumed source of Shadow Brokers, from whom hackers stole a bunch of NSA files loaded onto his home computer — entered into a plea agreement from the start. His Information didn’t describe any of the documents he took home, though suggested many were TS/SCI. Pho was sentenced to 66 months. Pho, who was in his 60s when he was sentenced and is now 72, is due for release in September.
This is the way DOJ normally prefers to treat those responsible for leaks and other compromises, because the prosecution does little additional damage. Of course, there was never a chance in hell such an approach would work for Trump.
Note that Thomas Windom, who is one of the lead January 6 prosecutors, was on the Pho prosecution team.
Jeremy Brown
Two other relevant cases involve Floridians prosecuted in the last year. With Oath Keeper Jeremy Brown, the government did list and present the five documents, all classified Secret, he was accused of hoarding. They used the Silent Witness rule to present the classified documents at trial, all of which were far more dated and less sensitive than the ones Trump is accused of stealing. Here’s how they described that process in the pre-trial process.
First, the government would provide each juror, the Court, and the defense with a binder of unredacted copies of the Classified Documents. The same process was followed in Mallory, 40 F.4th at 173, and it would enable the jurors to examine the Classified Documents while the government elicits unclassified testimony about the same from its expert witness. As in Mallory, the defense would be permitted to follow the same procedures during cross examination and/or with its own cleared expert, should the defense choose to retain one. Id. This procedure ensures that the jury has full access to the information it needs to fulfill its obligations. Id. at 178 (“But a review of the record reveals that the silent witness rule denied the jury none of the information on which Mallory based his defense.” (emphasis in original)). Second, the government will have Bates and line numbers added to the Classified Documents to enable the witness, the government, and the defense to direct the jurors to specific portions of the material.
Brown was only convicted of one of five Espionage Act counts, but nevertheless was sentenced to 87 months for the document as well as the illegal weapons he was convicted of hoarding.
Robert Birchum
Finally, there’s Robert Birchum, a retired Lieutenant Colonel who was just sentenced to 36 months a few weeks ago. Birchum was found hoarding over 300 documents he had collected before 2008, in 2017, six years ago. The Air Force declined to court martial him, and he was honorably discharged (it sounds like the Air Force really valued the counterinsurgency work he did). The first his case was made public was in January, when he was charged by Information with one count of 793(e). That Information did describe two documents he was charged with:
two documents classified at the TOP SECRET/SCI level from the National Security Agency (NSA) relating to the national defense that discuss the NSA’s capabilities and methods of collection of information.
The government asked for a bottom of guidelines sentence of 78 months, emphasizing Birchum’s abuse of a position of trust and the sensitivity of the documents he took. Among other things Birchum raised at sentencing is that he was so important to the Air Force, they sent him back to Afghanistan even after diagnosing him with PTSD. He also invoked all the high ranking people, including Trump, who had brought classified records home.
Among others, Mr. Birchum’s case now shares a stage with the current President of the United States, the former President and Vice-President of the United States, and a former Secretary of State. Looking a bit further back in time, one can see examples of other high-level government executives involved in the same type of offenses, including a former national security adviser who pled guilty to knowingly removing classified documents from the National Archives and a former CIA director and retired four-star general who pled guilty to sharing classified documents with his biographer and mistress. Both the former national security adviser and the former CIA director were sentenced to pay a fine and probation. No charges have been bought against any of the other individuals noted above. Similar cases involving lower-level government employees that did result in prison sentences typically involved attempts to obstruct the investigation or actual dissemination of the information or both.
He was sentenced to 36 months.
The reason I laid all this out is to suggest how remarkable it was that DOJ listed 31 documents Trump allegedly stole. Of the cases above, they did so with less sensitive, dated records that Brown was charged with, with the 11 documents already published in Hale’s case, and then the catalog of documents charged against Martin, some of which may also have been compromised as part of the Shadow Brokers release. If Martin’s charged documents were already compromised as part of the Shadow Brokers case, it means that among these cases, there is no precedent for the government choosing to charge a catalog of incredibly sensitive documents like they have with Trump.
That’s one reason I keep harping on the footnote in a DOJ filing in the Trump case from last September, invoking the Pho case (where we know the documents were badly compromised) to suggest that sometimes the Intelligence Community has to operate on the assumption that programs have been compromised and shut them down.
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.
We know one of the 31 documents charged against Trump — the document described in Count 8 that fell out of a box in the storage closet — would be treated as compromised, particularly if someone knocked the box over or is believed to have found it (remember that there are no cameras inside the storage room).
I can’t emphasize this point enough: One possible explanation for the catalog of charges against Trump is that the IC knows, or made a decision last September to assume, that all of these documents have been compromised. It’s one of the most likely ways to explain DOJ’s willingness to include all of them in charges, just like they did with the documents charged against Hale.
That possibility is not being factored into any of the discussions about sentencing, and it should be. The IC likely has to assume that the many intelligence services that targeted Mar-a-Lago, including two known Chinese infiltrators, found some of these documents, or maybe just the musicians and partygoers who could have had access while they were taking a shit.
Importantly, all the documents charged remained in an unsecured storage room after it became public that there were classified documents among the ones that Trump had delivered to NARA in January 2022. (Note, among the really sensitive documents that weren’t included in Trump’s charges are ones classified HCS-O, describing HUMINT operations.)
The Pho and Birchum examples show that DOJ would far prefer negotiating a plea agreement in advance, to minimize further damage to national security. But Trump made quite clear after the search last year, he was unwilling to go quietly.
The only one of these five who went to trial was Brown, and DOJ used the Silent Witness rule for him. That rule is rightly controversial even with disfavored shithole defendants like Brown (or Kevin Mallory, who was convicted of spying for China using it). I simply can’t imagine using the Silent Witness rule in a trial with a former President. The issues of legitimacy are too great. And so, if this thing goes to trial, I assume redacted copies of all these documents would be introduced as evidence that would get shared with the public.
Which is why I point to the Martin case as the one most similar to Trump. My read of that case is that DOJ charged so many documents — just 20, though, rather than 31 — as part of the coercion process to get Martin to plead.
The problem, in Donald Trump’s case, is that he has more incentive to start a civil war than plead guilty to these charges.
Those are some of the assumptions — not to mention that by charging this in West Palm Beach, where Aileen Cannon was likely to and did get the assignment — that Jack Smith must have had in mind when he charged the MAL case like he did.
With every other similarly situated defendant, DOJ has pursued strategies to get the defendant to plead before exacerbating the damage of the compromise at trial. But with Donald Trump, they’re facing a uniquely intransigent defendant. And that is what Jack Smith was facing when he decided to charge this case this way.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-7.53.48-PM.png832954emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-12 06:23:252023-06-12 12:19:2731 Flavors of Stolen Classified Documents
The indictment against Trump and Walt Nauta reflects many of the public reports based off what witnesses or their lawyers have shared with journalists. For example:
¶12 describes that the Secret Service had no knowledge of or responsibility for protecting Trump’s boxes of stolen classified documents, which is likely based in part on interviews of past and current Secret Service Agents
¶24 describes that Nauta helped Trump pack up in January 2021, something based on interviews of others who helped as well
¶34 provides a transcript of the meeting at which Trump boasted about an Iran document in an attempt to attack Mark Milley, about which Margo Martin was interviewed in March
¶35 describes how Trump showed someone from his PAC a classified map, another topic of interviews that got reported to the press
Details of all these interviews have made press reports, and we can now understand some of why DOJ needed those interviews (though that doesn’t explain why Trump wasn’t charged for disseminating classified information in Bedminster).
But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).
For key days, there aren’t gaps, at least not for the storage room. These descriptions of movement into and out of the storage room, which come with time stamps, likely come from surveillance footage:
May 22, 2022: After spending 34 minutes in the storage room, Nauta moves one box out
These are the videos that led Nauta to revise his testimony last November. After that revised testimony, though, he refused further cooperation. Since Nauta got a target letter, the Trump camp has released a revised story about why Nauta refused to cooperate, a story that Maggie and others dutifully parroted today without notice that it is a revised story, and therefore suspect.
So we still can’t be sure whether those gaps were put there intentionally and if so what they serve to hide.
One potential gap is outside Trump’s residence. The search warrant affidavit has a redaction that might obscure a request for a second location (or a more detailed description of the storage room). The only description in the indictment of boxes moving from Trump’s residence is the June 2 move, which reportedly involved the maintenance guy, and so is based on witness testimony. Other descriptions of his residence were obtained from texts. We know the boxes were in there, for example, because a female family member texted Nauta about them on May 30 last year, but there are no time stamp descriptions of the boxes arriving.
If DOJ tried, and failed, to obtain surveillance footage from outside Trump’s residence, it would have prevented them from learning how many boxes went with Trump to Bedminster that same day, which the indictment describes to be “several.”
There’s also no description of how and when the remainder of the boxes were moved back to the storage closet, even though the subpoena compliance should have gone through June 24. Again, that footage might help identify how many boxes went to Bedminster, only to disappear forever.
Just 12 of the boxes seized from the storage closet on August 8, 2022, had classified records in them, though, so Trump may have pulled any classified records from the remaining 22 boxes that were in his residence.
There’s another gap, though, that I find more interesting.
As I have noted, the first subpoena for surveillance footage requested footage starting on January 10, 7 days before Nauta and another employee loaded his personal car up with 15 boxes, 14 of which included classified records, to turn them over to a standard shipping company to return to NARA.
On January 13 and 15, Nauta and Employee 2 were still actively engaged in the two month process of helping Trump personally sort through upwards of 80 boxes to curate a set of 15 he was willing to send back.
44. On January 13, 2022, NAUTA texted Trump Employee 2 about TRUMP’s “tracking” of boxes, stating, “He’s tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow.” Trump Employee 2 replied, “Thank you!”
45. On January 15, 2022, NAUTA sent Trump Employee 2 four successive text messages:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much Trump Employee 2 replied, “Yes, I will get that!”
If Nauta or Employee 2 were in the storage closet at all on those days, it should have shown up on surveillance footage.
Maybe it did and it just wasn’t that interesting. Maybe MAL doesn’t keep surveillance footage that long.
But that’s why I’m interested in how DOJ did learn about that curation process (which, after all, is what the lie Nauta is charged with covered up — that first post-presidential curation process). Indeed, that first curation process is critical to ten of the Espionage Act charges, documents 22 through 31, the ones that were turned over in response to the May 11 subpoena. The former spooks who’ve done the most work trying to reverse engineer these documents have suggested this set of documents (all but one of which are from fall 2019, amidst impeachment) might be related; Matt Tait has speculated that three of them pertain to Turkey’s invasion of Syria and Trump’s decision to withdraw from most of Syria. You couldn’t charge those documents without solid proof that Trump affirmatively chose to hold onto them after he returned a first set in January 2022. So this sorting process is key to doing so.
In addition to interviews, the information about how the boxes moved around Mar-a-Lago came from text messages between Nauta, Employee 1, and Employee 2. A picture taken on June 24, 2021 shows how the boxes looked that day, when any boxes that weren’t spending the summer at Bedminster got moved there. Employee 2 took a picture on November 12, 2021 to show Trump how many boxes were there, then sent the picture to Nauta five days later, which seems to have been the beginning of their mutual effort to facilitate Trump’s personal sort of these documents.
It’s the picture taken on December 7, 2021 that I find particularly interesting — especially since Trump raised it yesterday at one of his rallies:
Somehow somebody turned over one of the boxes. Did you see that? I said, I wonder who did that. Did the FBI do that?
The FBI didn’t do it.
Walt Nauta discovered the box overturned with this document sticking out, which now makes up one of the 31 documents charged, long before the FBI had gotten involved.
Document dated October 4, 2019, concerning military capabilities of a foreign country (SECRET//REL TO USA, FVEY)
He took two pictures and sent them to Employee 2, the other person involved in facilitating this curation process.
On December 7, 2021, NAUTA found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked “SECRET//REL TO USA, FVEY,” which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, “I opened the door and found this…” NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, “Oh no oh no,” and “I’m sorry potus had my phone.” One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted. TRUMP’s unlawful retention of this document is charged in Count 8 of this Indictment. [my emphasis]
That person’s phone at first said, “Oh no oh no.” But then explained that “potus had my phone.”
I’m not sure what to make of either of those comments.
Though the indictment said the boxes fell, of their own accord, Trump, in front of his mob, seems to think someone knocked them over. In fact he made a point of blaming others, the FBI.
Because the indictment puts the picture in the initial section about how the boxes got placed in this storage room, before things like the guitar and coat rack visible in the December 7 picture got added, and not the section describing how Nauta and Employee 2 were moving boxes back and forth from the storage room to Trump’s residence so he could sort them, it obscures that Nauta would have discovered the spill during the time when he and Employee 2 were already starting this sorting process. All this movement had to have attracted a good deal of attention. And as I noted, as part of helping Trump sort through these documents, Nauta took notes on the boxes, which necessitated swapping out lids for those that ultimately did get sent back to NARA. So if anyone was in that storage closet to put a guitar there, or if someone wanted to use this item that was in the room in June 2021, or if someone decided to go in to see what all the fuss was about, then the boxes with the good stuff might be easily found.
This is the kind of thing the FBI would have wanted to check with surveillance footage — whether someone was in that closet and either inadvertently knocked over the boxes with a guitar or something else, or dug into the boxes themselves.
Those are the kinds of gaps that might lead Trump to preemptively blame the FBI.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-11 12:56:082023-06-11 13:08:56Mind the Gap: It Was the Musician, in the Storage Closet, with the Five Eyes Secrets
Justice Robert H. Jackson, lead US prosecutor at Nuremberg
Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.
The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.
Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.
But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:
We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.
[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]
As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.
Books and records . . .
Vanity and photographs . . .
“You will see their own conduct and hear their own voices . . .”
What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.
It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:
On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]
You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.
In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:
The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.
“Men of station and rank . . .”
“men who knew how to use lesser folk as tools . . .”
“reach the planners and designers, inciters and leaders . . .”
Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.
Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-06-at-2.43.26-PM.png774770Peterrhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngPeterr2023-06-10 11:03:342023-06-10 13:26:14Jack Smith Knows his Justice Robert Jackson
According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.
That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.
A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.
Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.
From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.
By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.
I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).
Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.
But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.
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.”
Andrew Kaczynski put together all the instances of it.
Donald Trump has repeatedly called for lengthy jail sentences for those who he claimed mishandled classified information. My report tonight on @OutFrontCNN, pic.twitter.com/D4P3EGhzj9
In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.
Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.
23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:
As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.
The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.
Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.
But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.
And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.
Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.
To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.
34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:
TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.
WRITER: Wow.
TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.
STAFFER: Mm.
TRUMP: Wait a minute, let’s see here.
STAFFER: [Laughter] Yeah.
TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.
STAFFER: Mm-hm.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: Secret. This is secret information. Look, look at this. You attack, and—
Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.
This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.
Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.
In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.
Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.
Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.
I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.
But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.
I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.
But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.
Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-10 08:59:282023-06-10 12:09:17Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information
I’ve become convinced that what I will call the Mar-a-Lago indictment — because I doubt this will be the only stolen documents one — is a tactical nuke: A massive tool, but simply a tactical one.
As I’ve laid out, it charges 31 counts of Espionage Act violations, each carrying a 10-year sentence and most sure to get enhancements for how sensitive the stolen documents are, as well as seven obstruction-related charges, four of which carry 20-year sentences. The obstruction-related charges would group at sentencing (meaning they’d really carry 20 year sentence total), but Espionage Act charges often don’t and could draw consecutive sentences: meaning Trump could be facing a max sentence of 330 years. Walt Nauta is really facing 20 years max — though probably around three or four years.
Obviously, Trump won’t serve a 330 year sentence, not least because Trump is mortal, already 76, and has eaten far too many burgers in his life.
For his part, Nauta should look on the bright side! He has not, yet, been charged with 18 USC 793(g), conspiring with Trump to hoard all those classified documents, though the overt acts in count 32, the conspiracy to obstruct count, would certainly fulfill the elements of offense of a conspiracy to hoard classified documents. If Nauta were to be charged under 793(g), he too would be facing a veritable life sentence, all for helping his boss steal the nation’s secrets. And for Nauta, who is in his 40s and healthy enough to lug dozens of boxes around Trump’s beach resort, that life sentence would last a lot longer than it would for Trump.
And that’s something to help understand how this is tactical.
I first started thinking that might be true when I saw Jack Smith’s statement.
He emphasized:
A grand jury in Florida voted out the indictment
The gravity of the crimes
The talent and ethics of his prosecutors
That Trump and Walt Nauta are presumed innocent
He will seek a Speedy Trial
A Florida jury will hear this case
The dedication of FBI Agents
He packed a lot in fewer than three minutes, but the thing that surprised me was his promise for a Speedy Trial. He effectively said he wants to try this case, charging 31 counts of the Espionage Act, within 70 days.
That means the trial would start around August 20, and last — per one of the filings in the docket — 21 days, through mid-September. While all the other GOP candidates were on a debate stage, Trump would be in South Florida, watching as his closest aides described how he venally refused to give boxes and boxes of the nation’s secrets back.
There’s not a chance in hell that will happen, certainly not for Trump. Even if Trump already had at least three cleared attorneys with experience defending Espionage Act cases, that wouldn’t happen, because the CIPA process for this case, the fight over what classified evidence would be available and how it would be presented at trial, would last at least six months. And as of yesterday, he has just one lawyer on this case, Todd Blanche, who is also defending Trump in the New York State case.
In fact, even though I understand how CIPA works, I’m not convinced this case can be tried. Before the indictment was unsealed, I imagined that Smith would charge about six documents, classified Secret, each of which demonstrated that Trump was exploiting the nation’s secrets, and just nod to the sensitivity of all the more sensitive secrets he was storing in an unlocked bathroom. Boy howdy was I wrong! Peter Strzok does the math to show that DOJ actually charged all but 13 of the Top Secret documents obtained either with the May 11, 2022 subpoena or in the August 8, 2022 search. And these are not just Top Secret. Of those documents whose compartments themselves are not classified, the documents include satellite intelligence, human intelligence, nuclear intelligence. Brandon Van Grack, one of the few other people who has been interested in the CIPA aspect of this case, seemed to struggle to describe the documents charged in this case.
One of the only ways I can imagine taking this to trial easily would be if the government had simply burned all the collection involved (including on the two Five Eyes documents), meaning presenting the documents he stole at trial would consist of one after another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho. That letter described how, after discovering that Pho had compromised a bunch of NSA programs, the NSA had had to abandon much of it.
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.
For the moment, then, consider the possibility that this indictment is, as far as it involves Trump, simply a messaging document to alert Republicans who can still be reasoned with that Trump left the most sensitive secrets on a stage at Mar-a-Lago while weddings were going on and as a result, the IC simply shut down all the programs he had compromised.
My comment about the difficulty of taking this to trial is not, however, true for Nauta. Because he wasn’t (yet) charged with conspiring to steal these secrets, you could make it all the way to sentencing without having to expose the secrets Trump destroyed.
So let’s talk about Nauta.
As the indictment describes, he was interviewed on May 26, 2022. As ¶53 through ¶62 show, that interview happened in the middle of the scheme to fool Evan Corcoran into submitting a false verification that Trump had returned everything (Corcoran, in turn, fooled Christina Bobb into signing it). Nauta moved boxes on the following days before and after his first interview:
May 22: One box out of storage
May 24: 3 boxes out of storage
May 26: Interview
May 30: 50 boxes out of storage
June 1: 11 boxes out of storage
June 2: 30 boxes from Trump’s residence to storage
As the indictment describes, Nauta moved 64 boxes out of storage and 30 back. This had the effect of ensuring that at least 34 boxes of classified documents were not reviewed by Corcoran.
There’s also this paragraph, one of the most important in the indictment:
72. Earlier that same day, 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.
That paragraph makes it clear that some of those 34 boxes went to Bedminster, never to be seen again. I’ll count later and figure how many it was.
So in the middle of this scheme to keep 34 boxes of classified documents away from Corcoran, Nauta was interviewed by the FBI and asked about the last time Trump personally asked Nauta to sort through boxes of classified documents so he could hoard some. Several things in this indictment establish that Nauta knew this involved classified documents, including this picture from when Nauta arrived in the supposedly locked storage room to find one of the boxes had been knocked over by who knows what force and spilled open.
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much
When whatever force was in the storage room to knock over that box, they were labeled with their contents, because Nauta had sorted and labeled them.
With all that in mind, go back to Count 38 and read about the answers Nauta gave in an interview in the middle of a second effort to sort classified documents so some of them could be taken to Bedminster, never to be seen again. He was asked about the first time that happened. And days after he had moved boxes to Trump’s residence again, he claimed he was unaware of bringing them to the suite in the first place.
Question: Does any – are you aware of any boxes being brought to his home – his suite?
Answer: No.
The alleged lies go on — but they were enormous.
With all that in mind, I’d like to return to a story that was floating in the press until a few weeks ago about the second time Nauta was interviewed. As parroted by the NYT on May 4 (and not for the first time), DOJ made a mistake last fall because, when Nauta refused to cooperate, they didn’t choose to immunize him. They were simply helpless to get the information Nauta could share via any other means!
Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.
Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.
The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.
The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.
More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.
The story was always obvious bullshit. As I noted on May 23,
If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).
Since Nauta got a target letter, the story has dramatically changed. It changed into a story in which Jay Bratt said something that Stan Woodward — the guy paid by Trump’s PAC whose legal advice to Nauta has left him facing obstruction charges — said something that seemed like coercion to Woodward.
At issue is an incident that took place last year, around November, when prosecutors were trying to gain the cooperation of valet Walt Nauta, who has been under scrutiny because prosecutors suspected he helped the former president conceal classified documents that had been subpoenaed.
Nauta had already spoken to prosecutors in the investigation when they called his lawyer Stanley Woodward and summoned him to a meeting at justice department headquarters for an urgent matter that they were reluctant to discuss over the phone, the letter said.
When Woodward arrived at the conference room, he was seated across from several prosecutors working on the investigation, including the chief of the counterintelligence section, Jay Bratt, who explained that they wanted Nauta to cooperate with the government against Trump, the letter said.
Nauta should cooperate with the government because he had given potentially conflicting testimony that could result in a false statements charge, the prosecutors said according to the letter. Woodward is said to have demurred, disputing that Nauta had made false statements.
Bratt then turned to Woodward and remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing”, before noting that he knew Woodward had submitted an application to be a judge at the superior court in Washington DC that was currently pending, the letter said.
The allegation, in essence, is that Bratt suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump. The letter was filed after Trump’s lawyers submitted a motion on Monday seeking grand jury transcripts, because of what they viewed as potential misconduct.
Significantly, that story changed on June 5, the same day as Trump’s lawyers, at least two of whom have subsequently left the team, met with Jack Smith.
When Nauta wasn’t going to get charged, Jay Bratt’s decision to play hardball was stupid, a mistake. A missed opportunity to get cooperation. When he was going to get charged, Bratt’s efforts to help Nauta avoid 20 or 330 year legal exposure became an ethical issue.
When Smith noted the integrity of his investigative team yesterday, he was signaling that he thinks this story is bullshit.
He may not be the only one, either. Jim Trusty made a really big deal about this new story on Thursday, when he had seen the summons but not the indictment. After he saw the indictment, he quit.
Which brings me to one other detail that I can’t get out of my head, given the uncharged examples of Trump disseminating classified information at Bedminster and the two instances when classified documents went to New Jersey never to be seen again.
One other reason Jack Smith gave to unseal the indictment was so he could share it to, among other entities, “sealed entities” and the grand jury in DC.
To the United States District Court of the District of Columbia, under seal, in relation to grand jury and sealed matters in that jurisdiction.
Among those sealed entities are the complaint that Woodward belatedly filed, after learning that Nauta got a target letter. Jack Smith needs to show Chief Judge James Boasberg that when Bratt strongly encouraged Woodward to advise his client to cooperate last November, DOJ already had really damning information showing he conspired to hoard these documents.
But the sealed entities aren’t the only entity that needs to see this indictment. So does a grand jury.
The investigation didn’t move, entirely, to Florida. Part of it was presented to a grand jury in Florida. But there are other parts that remain in DC, and those parts that remain in DC had to be told this indictment was coming.
This indictment is, in very significant part, a renewed invitation to Walt Nauta to cooperate in an ongoing grand jury investigation into what happens to documents when they go to Bedminster and disappear forever.
A very persuasive invitation.
Update: Fixed Stan Woodward’s last name.
Update: NYT has now done a piece covering these issues. They do not mention that just weeks ago, they were telling another story about this, fail to note that Trump routinely claims to believe things that he clearly does not, and treats the allegation itself as a set of “facts” that Trump got wrong, rather than an allegation only belatedly made months after the incident.
Around the same time, according to two people familiar with the matter, Mr. Woodward had a meeting about Mr. Nauta with prosecutors in the documents investigation, including Jay Bratt, from the Justice Department’s national security division, who was running the inquiry at the time.
During the meeting, the people said, Mr. Bratt tried to persuade Mr. Woodward to get Mr. Nauta to cooperate and then brought up the fact that he knew Mr. Woodward had a pending application to be a judge in the superior court in Washington. Mr. Trump’s lawyers and advisers believe that Mr. Bratt was effectively trying to cajole, even threaten, Mr. Woodward to counsel his client to help the government — an allegation that Mr. Trump later made himself on social media, albeit with his facts slightly wrong.
Trump’s own press secretary couldn’t have written a more favorable spin.
Update: I forgot I promised to go back and try to figure out how many boxes went to Bedminster to disappear forever. We can’t know because the universe of boxes was in flux throughout this process. But here’s what we do know:
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-10 05:16:492023-06-11 06:41:57The Mar-a-Lago Indictment Is a Tactical Nuke
As I noted here, Trump was charged with 31 counts of stealing highly classified documents. Each of those charges carries a 10 year max sentence, and because they are Top Secret and beyond, they will draw draconian sentences.
I’d like to talk about the seven kinds of obstruction with which Jack Smith has charged Trump and Walt Nauta.
Effectively, in addition to the stolen documents, DOJ charges Trump and Nauta jointly with six different crimes involved in withholding classified documents. The obstruction charges all carry a 20 year sentence. But if convicted, they would likely group as the same scheme.
The false statements charges carry a 5 year sentence. Because they’re less serious than the obstruction, the obstruction would set the sentence.
In most of these, Nauta is either charged as a co-conspirator or included in an abetting theory (all the 2s in the indictment). While the obstruction charges backstop the classified documents charges for Trump, much of this is directed at inducing Nauta to flip.
This charges Trump and Nauta with conspiring to evade the May 11 subpoena by moving the boxes and getting Evan Corcoran to claim he had done a diligent search.
18 USC 1512(b)(2)(a): inducing someone to withhold testimony (possibly asking Nauta to withhold testimony, or setting Evan Corcoran up to make incorrect statements)
18 USC 1512(c)(1): concealing a document (possibly altering surveillance video)
18 USC 1519: concealing a document (probably for hiding docs from Evan Corcoran)
18 USC 1001(a)(1): concealing a material fact (possibly false statements to NARA and DOJ)
Until we see the indictment, this is a game of telephone through lawyers who are woefully inappropriate for this kind of investigation. For example, DOJ often charges multiple counts of 18 USC 793(e), one for each stolen classified document they want to tell a story about. Here’s how DOJ did it in the case of Hal Martin:
Similarly, we know of several instances that might be charged under the inducement charge, 18 USC 1512(b)(2)(a): including at least Evan Corcoran, Alex Cannon, and Walt Nauta. Each could be charged separately.
So until we see an indictment, it will be unclear what story DOJ is telling.
Update: Corrected Trump’s summons date.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-06-at-2.43.26-PM.png774770emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-09 00:54:502023-06-09 01:57:10Lock Him Up! Trump Charged with Crimes He Believes Candidates Can Be Charged With
This article claiming that a grand jury in DC might vote on Espionage Act charges against Trump as soon as today, from a reporter who hasn’t focused closely on the stolen documents case, has gotten far more attention than this WaPo story, saying that the bulk of charges will be filed against Trump in Florida.
The preference for the former over the latter likely stems from the fact that it tells people what they want to hear.
But you should treat the WaPo story, from Spencer Hsu and three others, including Mar-a-Lago scribe Josh Dawsey, as more reliable. Hsu is a very cautious journalist; he’s highly unlikely to get ahead of himself on the report that the bulk of charges will be in Florida, which conflicts with the Indy claim. Plus, WaPo uses none of the caveats that Feinberg uses. WaPo’s story also matches what we know about venue for the suspected crimes.
You should treat the WaPo story as more credible, most of all, because WaPo’s description of Taylor Budowich’s testimony yesterday that makes it clear the grand jury in Florida is considering Espionage Act charges.
As it describes, Budowich withheld a statement Trump wanted to release last year, claiming he had returned all documents.
Prosecutors were at least partially interested in Budowich because of his role in an episode involving Trump in early 2022, according to people familiar with the matter who spoke on the condition of anonymity because grand jury proceedings are secret. After sending boxes of materials from his Mar-a-Lago home and private club to the National Archives and Records Administration, which catalogues and preserves presidential records, Trump drafted a lengthy statement saying he had given “everything” back to the federal government, The Washington Post has reported.
But Budowich did not release Trump’s statement after consulting with lawyers and advisers for the former president, people familiar with the episode said, speaking on the condition of anonymity to discuss internal conversations. At least some of Trump’s advisers did not believe he had returned “everything” at the time, the people said, even though the archives had been asking for months for Trump to give back any government material in his possession, as required by federal law.
Several days later, Trump issued a different statement that did not include the claim that everything had been returned.
Around the same time, a Trump lawyer rebuffed the former president’s request to tell the archives he had returned everything, The Post has reported, because the lawyer was not sure such an assertion was true.
Prosecutors have reviewed a draft of Trump’s statement, which contains at least one tangent about Germany and an overseas oil pipeline, the people familiar with the matter said. Multiple witnesses have been questioned by prosecutors about the statement, the people said, and asked whether Trump ever asked them to lie or mislead anyone about whether he continued to maintain classified information in his possession. [my emphasis]
The discussion over the statement — which WaPo suggests, with their link to their earlier report, included Alex Cannon — suggests multiple people at Mar-a-Lago believed he was hoarding documents. WaPo focuses on the way Trump’s people edited out his claim that he had returned all the documents. That statement wouldn’t present the same legal jeopardy as his later claim, issued via Evan Corcoran and Christina Bobb, to have complied with a subpoena. But it would have ceded NARA’s claim to any remaining documents.
The process of having this discussion left a paper trail for prosecutors to show a more generalized awareness that Trump retained documents — one that may fill in gaps if there is surveillance footage from the “dress rehearsal” missing.
All those people (many of whom would also be key witnesses in Jack Smith’s investigation of Trump’s fundraising fraud) are now on the hook to come clean about their knowledge or go down with Trump. Given the target notice, they may be especially motivated to do so in coming weeks.
I’m interested, though, in WaPo’s mention of the reference to what sounds like the Nord Stream pipeline. In what was likely the statement that Trump did release, he raised the imminent invasion of Russia and claimed credit for preventing any such invasion while he was President.
Because Trump doesn’t have a filter, and because Trump had just sorted through which documents he wanted to retain, any mention of something specific like the Nord Stream may match documents that he held onto. And that would, in addition, tie to some pretty interesting motives, which prosecutors could use at a hypothetical trial.
https://www.emptywheel.net/wp-content/uploads/2023/06/220218-Trump-Archives-845x1030-1.jpeg1030845emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-08 06:00:022023-06-08 06:04:00Prosecutors Interviewing Witnesses Who Knew Trump Was Hoarding Documents
After Trump propagandaist John Solomon published that Trump had been told he was a target of the Espionage Act investigation that has targeted him since last August, Trump did a post on his failing social media site. I’ve edited it down to the key bits:
Trump’s first response to the first public confirmation that he will soon be charged was not, as it turned out, to bellow, “Lock him up!” or even reconsider his past obstruction, but instead demand that the insurrectionists in Congress do something.
His first response was to demand that Republicans turn their focus — as they have for much of the last five years — on defending him at all costs, to the detriment of anything that better serves their interests (to say nothing of the interests of their constituents).
I’m not surprised. At some point, I will finally write a post describing how brilliantly Trump used the Russian investigation — assisted by a great deal of Russian disinformation — to successfully demand GOP loyalty to him over country. In the end, the Russian investigation was a tremendous tool Trump used to accrue power, all the while doing grave damage to the US.
His response to the public report he’ll soon be indicted was to attempt to do the same thing: make his own legal woes those of the entire GOP.
But this indictment — if it indeed gets filed in the next two weeks or so — may come too early for Trump.
That’s because, as I laid out here, there’s still plenty of time in the GOP primary for other Republicans to take advantage of Trump’s legal woes. Republicans seem to be sensing this opportunity. Chris Christie kicked off his undoubtedly doomed presidential race by focusing on Trump’s epic corruption. Mike Pence kicked off his equally doomed presidential run by emphasizing that he did his duty on January 6, unlike Trump (the presence of his brother Greg at the event undermined that message, because even after Trump almost got both he and the Vice President killed, Greg still challenged the election and voted against impeaching Trump). Asa Hutchinson called on Trump to step aside, noting he may be charged with Espionage [Act violations].
The point is not that these men will win the election. It’s that they’re using their candidacy to oppose Trump at a time when Christie and Pence and Hutchinson can anticipate that Jack Smith will soon give each a lot of material to work with. Many — not most, but many — Republicans are looking for permission to break with Trump and the timing of a potential indictment and the primary may give a way to do it.
Meanwhile, Joe Biden’s success at giving Kevin McCarthy a way out of the hostage situation he was forced to create just before the US credit rating was affected is having a remarkable effect on the House GOP.
Insurrectionists in Congress, who briefly considered trying to replace McCarthy, seem to have realized they don’t have the votes, and so have been trying to do something — anything — to look like they are tough. But it has only made them, and Republicans, look more ridiculous.
There are increasing reports that less radical Republicans want nothing to do with this chaos.
Greg Sargent wrote up what he describes as Biden’s deliberate attempt to marginalize the MAGAts, which is a good way of understanding it.
[I]n promising to restore “the soul of the nation” in the face of this threat, Biden has continually distinguished between MAGA Republicans and more conventional ones. This approach has been criticized by those of us who see much of the GOP as extreme and dangerous — after all, many elected Republicans helped whitewash Trump’s insurrection — and think Biden’s characterization of non-MAGA Republicans plays down that broader threat.
But Biden’s reading served him well in the debt limit standoff. Contrary to much criticism, Bidenworld believes that refusing to negotiate at the outset was key: It forced Republicans to offer their own budget, which created an opening to attack the savage spending cuts in it.
Notably, Biden and other Democrats relentlessly characterized those cuts as destructive and dangerous in the MAGA vein. Bidenworld did believe that some MAGA Republicans were willing to default and force global economic cataclysm to harm the president’s reelection, a senior Biden adviser tells me, but also that many non-MAGA Republicans ultimately could be induced not to go that far.
There’s no guarantee it’ll work. There’s no way to prevent some of the damage that Marjorie Taylor Greene, Matt Gaetz, Jim Jordan, and James Comer intend to do.
But there’s always the threat that if ten Republicans decide they’ve had enough of this chaos, it creates the opportunity for a Fred Upton or similar to come in to lead a House that will function as a legislative body again.
If Trump weren’t indicted until September or October — still a realistic timeline for January 6, particularly if interim charges must occur first — Trump might have had an opportunity to seal the GOP primary and force the GOP to defend whatever crimes he gets charged with, to own and normalize those crimes as their own, as the GOP has chosen to do for the past six years.
But at the moment, there are hints of a mood change, one in which at least a critical handful of Republicans will choose against the chaos they’ve been gripped by for six years.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-07-at-9.00.34-PM.png5321170emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-08 04:42:132023-06-08 05:20:48This Indictment Will Likely Come Too Early for Trump to Consolidate the Party
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:
