Trophy Documents: The Entire Point Was to Make FBI Obedient

/68 Comments/in , , , , /by

Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

During his testimony, Curtis Heide (who played a key role in the George Papadopoulos investigation) explained how the FBI Inspection Division investigation into Crossfire Hurricane Agents, including him, remained pending, 6 years after the events in question. He noted that, three years after the DOJ IG Report, he was still being investigated even though he, “didn’t author any of the affidavits or any of the materials related to the applications in question.”

The same was true in the Danchenko case. Brian Auten, a key intelligence analyst on Crossfire Hurricane, described how, after having met with agents from DOJ IG four times, having done a long report for FBI’s Internal Affairs Division, and having met with the Senate Judiciary Committee — all with no concerns raised about his own conduct — the first time he met with Durham’s team, he was told he was a subject of the investigation. After Auten gave testimony that confirmed Danchenko’s reliability — seriously damaging his case — Durham himself raised investigations that undermined his own witness’ testimony.

Q. Do you recall that there was a reporter that the OIG had written concerning the Carter Page FISAs?

A. Yes.

Q. And how would you characterize that report?

A. The report was quite extensive and it discussed characterizing a number of errors and omissions.

Q. And with respect to the errors and omissions, were they tick-tacky kinds of omissions or were they significant omissions and errors that had been committed?

A. I believe the OIG described them as significant.

Q. And then with respect to the investigation done by the OIG, separate and apart from that, would it be a fair statement that you and your colleagues were under investigation by the inspection division by the FBI?

A. Yes.

Q. And would it be a fair statement that your conduct in connection with that is, you, yourself, based on the investigation done by the inspection division of the FBI, have some issues, correct?

A. I — be a little bit more specific. I’m sorry. I don’t — I have issues?

Q. Isn’t it, in fact, true that you’ve been recommended for suspension as the result of the conduct?

A. It is currently under appeal.

That line of testimony immediately preceded a hilarious failed attempt from Durham to get Auten to agree that George Papadopoulos was simply a young man with no contact to Trump who was only investigated for his suspect Israeli ties, not for his Russian ties. But it was a palpable example of the way that Trump’s minions used criminalizing FBI investigations into Trump as a way to create a makebelieve world that negates real evidence of Trump’s corruption.

About the only two FBI agents who weren’t portrayed as somehow tainted by the events of 2016 in Durham’s two failed prosecutions were two agents who fucked up investigations: Scott Hellman, who correctly told a junior agent that she would face zero repercussions of she botched the Alfa Bank investigation, and Ryan James, an FBI agent who started his career in Connecticut, who nevertheless failed to pull the evidence necessary to test Sergei Millian’s claims.

Durham rewarded the incompetence that served his purpose and attempted to criminalize what he considered the wrong answers or at least to use the threat of adverse consequences to invent a false record exonerating Trump.

And Durham came in after Jim Comey, Peter Strzok, Andrew McCabe, and Bruce Ohr had already been fired, and Lisa Page, with Strzok, deliberately humiliated on a global stage serially. He came in and exploited the uncertain status — the Inspection Division review left pending while Durham worked — of everyone involved. Such efforts didn’t end with the conclusive acquittals debunking Durham’s theories of conspiracy. Since then, Jim Baker has been dragged back through the mud — publicly and in Congress — as part of Twitter Files, Chuck Grassley passed on “whistleblower” complaints about Auten identifying Russian disinformation as such, and Timothy Thibault was publicly berated because some of the same so-called whistleblowers feeding Jim Jordan shit had complained to Chuck Grassley he was discouraging GOP conspiracy theories about Hunter Biden.

It was never just Strzok and McCabe. The entire Republican Party has relentlessly focused on punishing anyone involved in the Trump investigation, using both unofficial and official channels. When Trump promised “retribution” the other day at CPAC, this kind of relentless effort to criminalize any check on Trump’s behavior is what he was talking about.

That kind of background really helps to understand the WaPo story that described Washington Field Office FBI agents quaking at the prospect of searching Donald Trump’s beach resort.

[P]rosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBIofficials that some agents were simply afraid: They worried takingaggressive steps investigatingTrump could blemish or even end their careers, according to somepeople with knowledge of the discussions. One official dubbed it “the hangover of Crossfire Hurricane,” a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russiacase.

[snip]

FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.

Since I wrote my piece wondering whether the FBI hesitation gave Trump the chance to steal 47 documents, Strzok himself, Joyce Vance, and Jennifer Rubin have weighed in.

Rubin, I think, adopts the position of someone who hasn’t followed the plight of all the people not named Strzok who were targeted for investigating Donald Trump. She attributes the reluctance to investigate Trump (and the intelligence failures leading up to January 6, which I’ll return to) to Wray.

After a debacle of this magnitude, that sort of passivity should alarm all Americans. Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable. Yet Wray has never been held to account for this delinquency.

[snip]

[O]ne is left wondering why the FBI seems disinclined to stand up to right-wing authoritarian movements and figures. Whatever the reason, the pattern reveals an unmistakable lack of effective leadership. And that in turn raises the question:Why is Wray still there?

It is absolutely the case that Wray did far too little to protect FBI agents in the face of Trump’s attacks. Wray created the opportunity for pro-Trump FBI agents and Durham to criminalize investigating Trump. I think Wray attempted to avoid rocking the boat at all times, which led the FBI to fail in other areas (including the investigation of Brett Kavanaugh). Though I’m also cognizant that if Wray had been fired during the Trump administration, he might have been replaced by someone like Kash Patel, and having a Trump appointee in charge right now may provide cover for the ongoing investigations into Trump.

But you could fire Wray tomorrow and not eliminate the effects of this bureaucratic discipline, the five year process to teach everyone in the FBI that investigating Trump can only lead to career disaster, if not criminal charges.

Also under Wray, though, the Bureau had already increased its focus on domestic terrorism, with key successes both before and after January 6. Steven D’Antuono, the chief voice of reluctance to search Mar-a-Lago, presided over the really troubled but ultimately successful effort to prevent a kidnapping attempt targeting Gretchen Whitmer, a plot that arose out of anti-lockdown protests stoked by Trump (though unusually, D’Antuono let a subordinate take credit for the arrests).

I think the specific failures in advance of January 6 lay elsewhere. Wray has not done enough in the aftermath to understand the FBI’s failures, but FBI has also been overwhelmed with the case load created by the attack. But, as I hope to return to, I think the specific failure in advance of January 6 lies elsewhere.

Whatever the merit in blaming Wray for FBI’s failure to prepare for January 6, there’s a bigger problem with Rubin’s attempt to blame him on the MAL search. Strzok sketched out in great detail something I had seen, too. The dispute about searching Trump’s house wasn’t between the FBI and DOJ. It wasn’t just what Vance and Strzok both describe as a fairly normal dispute between the FBI and DOJ with the former pushing the latter to be more aggressive.

It was between the WFO on one side and DOJ and FBI HQ on the other.

[A] careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other.

Indeed, a key part of the drama surrounding the pre-August search meeting described by the WaPo involved the conflict between FBI General Counsel Jason Jones — whom WaPo makes a point of IDing as a Wray confidant, thereby marking him as Wray’s surrogate in this fight — and WFO Assistant Director Steven D’Antuono.

Jason Jones, the FBI’s general counsel who isconsidered a confidant of FBI Director Christopher A.Wray, agreed the team had sufficient probable cause to justify a searchwarrant.

[snip]

Jones, the FBI’s general counsel, said he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search, the people said. D’Antuono replied that he would recommend that they not.

This, then, was partly a fight within FBI, one in which Wray’s surrogate sided with prosecutors.

Strzok makes a compelling argument that this story may have come from pushback necessitated by people at WFO floating bullshit claims, not dissimilar from — Strzok doesn’t say this, but I will — the leak by right wing agents to Devlin Barrett about the Clinton Foundation investigation in advance of the 2016 election, which led Andrew McCabe to respond in a way that ultimately gave Trump the excuse he wanted to fire him.

Indeed, Strzok’s post includes a well-deserved dig on the WaPo’s claim about, “the fact that mistakes in prior probes of Hillary Clinton … had proved damaging to the FBI,” an unsubstantiated claim I also called out.

[E]ven journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms.

Strzok right suggests that DOJ IG’s Report disproved WaPo’s claim about the Hillary investigation, but he seems to have forgotten that the DOJ IG Report into McCabe’s response on the Clinton Foundation didn’t fully air the FBI spox’s exculpatory testimony.

All of which is to say that, in the same way that WFO agents have an understandable visceral concern about getting involved in an investigation targeting Trump, people at HQ might have an equally visceral concern about stories seeded to Devlin Barrett alleging internal conflict that might create some flimsy excuse for firing.

But there’s something still unexplained about the WaPo story. Vance notes, as I did, that D’Antuono may have given Trump the opportunity to steal 47 documents.

[T]he delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

But Vance still accepts WaPo’s specious claim about timing, the claim that the delay (from June to August) in searching Trump’s resort led the investigation to bump up against a Trump campaign announcement that would surely have happened earlier had Trump not gotten an injunction. There’s nothing to support that temporal argument, and the public record on the injunction (which, again, lasted until almost a month after Jack Smith’s appointment) disproves it.

The timing issue is one of many reasons why I keep thinking about this earlier Devlin Barrett story, one that did bump up against the appointment of a Special Counsel. On November 14, the day before Trump formalized his 2024 run and so four days before the appointment of Jack Smith, Barrett and WaPo’s Mar-a-Lago Trump whisperer, Josh Dawsey, published a story suggesting that maybe Trump shouldn’t be charged because he just stole a bunch of highly classified documents to keep as trophies.

Federal agents and prosecutors have come to believe former president Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos, according to people familiar with the matter.

As part of the investigation, federal authorities reviewed the classified documents that were recovered from Trump’s Mar-a-Lago home and private club, looking to see if the types of information contained in them pointed to any kind of pattern or similarities, according to these people, who spoke on the condition of anonymity to discuss an ongoing investigation.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

[snip]

The analysis of Trump’s likely motive in allegedly keeping the documents is not, strictly speaking, an element of determining whether he or anyone around him committed a crime or should be charged with one. Justice Department policy dictates that prosecutors file criminal charges in cases in which they believe a crime was committed and the evidence is strong enough to lead to a conviction that will hold up on appeal. But as a practical matter, motive is an important part of how prosecutors assess cases and decide whether to file criminal charges.

As I showed, that story, like this one, simply ignored stuff in the public record, including:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

Since then, other details have become clear. Not only was that story written after DOJ told Trump they believed he still had some classified documents, but it was written in the period between the time Trump considered letting the FBI do a consensual search and the time he hired people to do the search for him, a debate inside the Trump camp that parallels the earlier investigative fight between WFO and DOJ. Indeed, when DOJ alerted Trump’s lawyers in October that they believed Trump still had classified documents, that may have reflected WFO winning the debate they had lost before the August search: to let Trump voluntarily comply.

That’s important background to where we are now. Trump’s team has misrepresented to the press how cooperative they have been since. First, Trump’s people misleadingly claimed that Beryl Howell had decided not to hold Trump in contempt (rather than just deferred the decision) and Trump lied to the press for several months, hiding the box with documents marked classified and the additional empty classified folder. Those public lies should only make investigators wonder what Trump continues to hide.

We know Trump blew off the subpoena that WFO agents were sure would work in June, and there’s good reason to believe DOJ finds Trump’s more recent claims of cooperation to be suspect as well.

So let’s go back to that earlier Devlin story. As I noted at the time, I don’t dispute that the most classified documents have the appearance of trophies, but that’s because of the Time Magazine covers they were stored with, not because of any halfway serious scrutiny of Trump’s potential financial goals. Particularly given the presence of 43 empty classified folders in the leatherbound box along with the most sensitive documents, no thorough investigator could rule out Trump already monetizing certain documents, particularly given Trump and Jared Kushner’s financial windfalls from the Saudi government, particularly given the way that Trump’s Bedminster departure coincided with Evan Corcoran’s turnover of classified documents, particularly given that the woman who carted a box including some marked classified around various offices had been in Bedminster with Trump during the summer. I don’t dispute that’s still a likely explanation for some — but in no way all — of the documents, but no competent investigator could have made that conclusion by November 14, when Devlin published the story.

Unless Devlin’s sources — perhaps the same or similar to the sources who know that WFO agents were cowed by the treatment of Crossfire Hurricane agents — were working hard to avoid investigating those potential financial ties.

Unless the timing of the story reflected an attempt to win that dispute, only to be preempted by the appointment of Jack Smith. The earlier dispute could not have been impacted by the appointment of Jack Smith. If there was a later dispute about how to make sure Trump wasn’t still hoarding classified documents, though, it almost certainly was.

Someone decided to leak a story to Devlin Barrett suggesting that investigators had already reached a conclusion about Trump’s motive, even though as the story acknowledged, “even the nonclassified documents” — better described as documents without classification marks that not only hadn’t been reviewed yet, which could have included unmarked classified information — “taken in the search may include relevant evidence.” (Note, these are the same unclassified documents that, the recent story  describes D’Antuono, insanely from an investigative standpoint, scoffing at collecting because, “We are not the presidential records police.”) Devlin’s sources decided to leak that story at a time when DOJ was trying to figure out how to get the remaining documents from Trump, and yet his sources presented a working conclusion that it didn’t matter if DOJ got the remaining documents: it had already been decided, Devlin’s sources told him, that Trump was just a narcissist fighting to keep his trophies from time as President and probably that shouldn’t be prosecuted anyway.

The story of the earlier dispute is alarming because it confirms that WFO agents remain cowed in the face of the prospect of investigating Trump, as some did even six years ago. The later story, though, is alarming because leaks to Devlin have a habit of creating political firestorms that are convenient for Trump. But it is alarming because it suggests even after the August search proved the WFO agents’ efforts to draw premature conclusions wrong, someone still decided to make — and force, by leaking to Devlin Barrett — some premature conclusions in November, an effort that genuinely was thwarted by the appointment of Jack Smith.

Share this entry

How Would You Arrest a Former President?

/165 Comments/in , , /by

As I was reading the four-journalist WaPo story noting what I noted (and provided far more details about) almost three months ago — that the investigation into Trump has been greatly complicated by the involvement of lawyers in his suspected crimes — I thought about how one might arrest Donald Trump. WaPo is interested in whether it can be done before the first debates in August. I’m interested in the logistics of it.

Especially given another temporal complication that WaPo, with all those reporters, doesn’t mention: That the DC Circuit, a panel including two Trump appointees, is taking its own sweet time ruling on DOJ’s application of obstruction to January 6, which was argued back in December. The January 6 Committee referred Trump for 1512(c)(2), which also happens to be the framework DOJ has been using since summer 2021. It’s virtually certain that no matter how the DC Circuit rules, the application can still be applied to Trump (because he corruptly sought a personal benefit involving documents). But if I were Jack Smith, I’d wait to see the guideposts Trump’s own appointees put on the application before I charged it. I have also long said that certain steps may be contingent on the Proud Boy trial, which seems like it’ll go on forever.

I’m not promising Trump will be arrested. But think about the logistical complexities of the task, if Smith were to decide to do it. How do you arrest a rich man — if not quite a billionaire — with access to several planes and his own MAGA army? How do you stage it, given all the potential or likely co-conspirators?

The question of how to arrest Trump is likely also a pressing issue given the likelihood that DOJ still hasn’t obtained all the documents Trump stole, given the multiple properties that haven’t been searched (including Trump’s jet).

One way you might do that is to arrest him first on a limited set of charges tied to the crime scene, one that wouldn’t obligate DOJ to turn over discovery on all the other things Jack Smith is still investigating, such as the targeting of Mike Pence, the defrauding of MAGAts and related campaign finance crimes, and the fake elector plots involving at least a dozen other top Republicans. Arrest him on a crime scene charge, and get it over with.

You arrest Trump and maybe one or two other people, get them in a pretrial release situation limiting their direct contact with other potential co-conspirators (and requiring a truthful statement of net worth to prosecutors, a statement that may reveal useful evidence about Trump’s income from fraudulent claims and Saudi golf tournaments). Ground his plane … and then search it. Search the other properties during the period when Trump is being processed. Prevent Trump, legally, from singing duets with other January 6 thugs.

And then you continue to investigate, superseding the initial charges after you get the testimony of Mike Pence and Evan Corcoran.

Again, this is just a thought experiment. But I thought I’d get ahead of where four-journalist teams from the WaPo will be in three months time.

Share this entry

Did Steven D’Antuono Make It Easier for Trump to Steal 47 Classified Documents?

/113 Comments/in , /by

There are two things that are not mentioned in this long explanation of how the FBI refused, for months, to treat Donald Trump like anyone else suspected of hoarding highly classified information.

First, WaPo doesn’t mention that Trump got an injunction that lasted from shortly after the search, September 5, until December 12, over three weeks after Jack Smith was appointed.

Because the WaPo doesn’t mention that fact — doesn’t mention that DOJ was prevented from using classified evidence to investigate Trump’s crimes for several weeks in September, doesn’t mention that DOJ was prevented from using unclassified evidence to investigate Trump’s crimes for 98 days — WaPo envisions any damage FBI did by resisting taking investigative steps against Trump as a shortening of the time when DOJ could charge Trump.

Some inside the probe argued the infighting delayed the search by months, ultimately reducing the time prosecutors had to reach a decision on possible charges. Others contend the discussions were necessary to ensure the investigation proceeded on the surest footing, enabling officials to gather more evidence before they executed the search, people familiar with the dynamics said.

In November, before prosecutors had finished their work and decided whether to charge Trump or anyone else, he announced his campaign to retake the White House in 2024, leading Garland to appoint a special counsel, Jack Smith, to complete the investigation.

[snip]

Meanwhile, in late October, amid news reports that Trump was looking to soon announce another bid for the presidency, Garland told aides he was seriously contemplating appointing a special counsel to take over the investigation, as well as a separate criminal probe looking at Trump and his allies’ effort to overturn the results of the 2020 election — a rare procedure designed to ensure public faith in fair investigations.

On Nov. 15, Trump took the stage in the Mar-a-Lago ballroom — at the same property where FBI agents had searched three months earlier — and announced that he would run for president again in 2024. The Justice Department’s national security division leaders who had pushed the FBI to be more aggressive pursuing Trump did not finish the investigation or reach a charging decision before a new chief took over.

On Nov. 18, Garland sent word to the prosecutors working on both of the probes to come to Justice Department headquarters for a meeting that morning. He wanted to privately inform them that he planned later that day to appoint a special counsel. Garland told them they could choose their next steps, but he hoped they would join the special counsel’s team for the good of the two investigations, people familiar with the conversation said.

Even that risk assumes Trump’s announcement was determined by anything other than making it harder for DOJ to charge him; he was discussing announcing his run still earlier, before he got the injunction. But the risk ignores the opportunity that FBI’s delay provided Trump and others last summer.

The other thing WaPo doesn’t mention is the real damage the FBI, led by the now-retired head of the Washington Field Office, Steven D’Antuono, may have done by stalling: FBI may have made it impossible to recover all the documents Trump took.

Well before the injunction on using unclassified documents in the investigation was lifted, multiple outlets revealed that DOJ suspected Trump still had classified documents. Trump’s lawyers have paid investigators to search some — but not all — of Trump’s properties since. And for months, Trump’s lawyers publicly lied about the results, publicly lied to hide that an aide moved new documents with classification marks to Mar-a-Lago after the August 8 search by the FBI.

There are still 47 empty classified document folders, found in two different searches of Trump’s property, that remain unexplained.

Perhaps those folders were not yet empty in May 2022, when DOJ first proposed doing a surprise search of Mar-a-Lago.

But FBI agents viewed a Mar-a-Lago search in May as premature and combative, especially given that it involved raiding the home of a former president. That spring, top officials at FBI headquarters met with prosecutors to review the strength of evidence that could be used to justify a surprise search, according to two people familiar with their work.

Perhaps those folders were not yet empty in June 2022, after Evan Corcoran raised more suspicions on June 3, when Jay Bratt came to pick up a folder of classified documents, the same day that Trump departed for Bedminster.

Perhaps those folders were not yet empty when DOJ served another subpoena to obtain the surveillance footage showing Walt Nauta moving boxes to evade the search.

Some FBI field agents then argued to prosecutors that they were inclined to believe Trump and his team had delivered everything the government sought to protect and said the bureau should close down its criminal investigation, according to some people familiar with the discussions.

But they said national security prosecutors pushed back and instead urged FBI agents to gather more evidence by conducting follow-up interviews with witnesses and obtaining Mar-a-Lago surveillance video from the Trump Organization.

The government sought surveillance video footage by subpoena in late June. It showed someone moving boxes from the area where records had been stored, not long after Trump was put on notice to return all such records, according to people familiar with the probe.

Perhaps those folders were not yet empty when D’Antuono — who was appointed head of the DC field office in October 2020 and who retired last November; his replacement was named in late December — continued to stall shortly before the search.

Against that backdrop, Bratt and other senior national security prosecutors, including Assistant Attorney General Matt Olsen and George Toscas, a top counterintelligence official, met about a week before the Aug. 8 raid with FBI agents on their turf, inside an FBI conference room.

The prosecutors brought with them a draft search warrant and argued that the FBI had no other choice but to search Mar-a-Lago as soon as practically possible, according to people with knowledge of the meeting. Prosecutors said the search was the only safe way to recover an untold number of sensitive government records that witnesses had said were still on the property.

Steven M. D’Antuono, then the head of the FBI Washington field office, which was running the investigation, was adamant the FBI should not do a surprise search, according to the people.

D’Antuono said he would agree to lead such a raid only if he were ordered to, according to two of the people. The two other people said D’Antuono did not refuse to do the search but argued that it should be a consensual search agreed to by Trump’s legal team.

We have no reason to believe that DOJ got all the documents back and plenty of reason to believe it didn’t. Trump’s lawyers are still dicking around, offering ridiculous explanations for why a new empty folder showed up sometime between August and December.

What we do know is that Steven D’Antuono treated Trump differently than FBI would have treated any other person suspected of stealing classified documents, he treated Trump differently because he had been trained to understand that Trump could ruin his career if he dared investigate Trump.

And by treating Trump differently, D’Antuono may have given Trump the opportunity to steal another 47 documents.

Share this entry

Trump’s “Receptionist of the US” Deletes Her Trip to Russia

/101 Comments/in , , /by

When Chamberlain Harris’s name first started getting bandied about as the woman in whose possession additional documents with classified markings were found last year at Mar-a-Lago, her LinkedIn bio described how, in addition to a trip to Spain in summer 2018, she also made a trip to St. Petersburg in Summer 2019, immediately before she took an internship at the White House.

Since then — perhaps today, after the Guardian published a follow-up on the story of those classified documents — the reference to Russia was removed.

In its first story on the documents, Guardian described that Molly Michael, then Trump’s Executive Assistant, ordered the woman in question to make a digital copy of the documents.

Then, at Mar-a-Lago in December, the contractors found a box that mainly contained presidential schedules, in which they found a couple of classified-marked documents to also be present and alerted the legal team to return the materials to the justice department, the sources said.

The exact nature of the classified-marked documents remains unclear, but a person with knowledge of the search likened their sensitivity to schedules for presidential movements – for instance, presidential travel to Afghanistan – that are considered sensitive until they have taken place.

After the Trump legal team turned over the box of schedules, the sources said, they learned that a junior Trump aide – employed by Trump’s Save America political action committee who acted as an assistant in Trump’s political “45 Office” – last year scanned and uploaded the contents of the box to a laptop.

The junior Trump aide, according to what one of the sources said, was apparently instructed to upload the documents by top Trump aide Molly Michael to create a repository of what Trump was doing while in office and was apparently careless in scanning them on to her work laptop.

Today’s update, in addition to identifying the woman as ROTUS — a made-up title that Harris has not yet deleted from her LinkedIn bio — described that the aide in question first had the box at a bungalow at Mar-a-Lago, then brought it to an off-site office, then brought it with her to occupy the desk that Molly Michael once had (in which at least two classified documents likely were found during the August 2022 search).

Known internally as ROTUS, short for Receptionist of the United States, the junior aide initially kept the box at a converted guest bungalow at Mar-a-Lago called the “tennis cottage” after Trump left office, and she soon took it with her to a government-leased office in the Palm Beach area.

The box remained at the government-leased office from where the junior aide worked through most of 2022, explaining why neither Trump’s lawyer who searched Mar-a-Lago in June for any classified-marked papers nor the FBI agents who searched the property in August found the documents.

Around the time that Trump returned to Mar-a-Lago from his Bedminster golf club in New Jersey at the end of the summer, the junior aide was told that she was being relocated to a desk in the anteroom of Trump’s own office at Mar-a-Lago that was previously assigned to top aide Molly Michael.

The junior aide retrieved her work belongings – including the box – from the government-leased office and took them to her new Mar-a-Lago workspace around September. At that time, the justice department’s criminal investigation into Trump’s retention of national security documents was intensifying.

[snip]

But the justice department was not satisfied, and it pressed the Trump legal team to get the contractors to conduct the third known search of Mar-a-Lago in early December – at which point the contractors discovered the box of presidential schedules, some with classified markings.

The Trump legal team alerted the FBI, which sent federal agents down to collect the box and its contents the following day.

A few weeks later, Trump’s lawyers started exploring whether they could get a better understanding of the sensitivity of the small number of schedules marked as classified, for the junior aide had kept sole custody of the box throughout that period.

It was at that point that the junior aide revealed for the first time that she could find out exactly what they were, because Michael – who left the Trump political team at the end of the summer – had told her to scan all of the schedules to her laptop.

Trump’s people are trying to shift the blame to her — but the documents were in Trump’s possession when he was subpoenaed last summer, so the failure to find them still arises from Trump’s failure to do a thorough search of the offices he controlled.

And this woman — whom Trump tried to forestall being subpoenaed in the laptop handover — just gave the FBI reason to look a whole lot more closely at her.

Update: Some have mentioned the report that this got uploaded to the cloud. That’s from this CNN report.

Share this entry

Pence’s Previously Redacted Documents and The Corcoran Scapegoating

/38 Comments/in , /by

Time for another update on the various investigations into stolen and mishandled documents.

Start with Mike Pence, who thus far, the press has assumed, is the safest among the three men being investigated from legal exposure.

The Friday before a holiday weekend, Pence’s team revealed FBI searched Pence’s office. The topline result was that they didn’t find any documents with classification markings, but the FBI did seize three “previously redacted documents.”

Federal agents removed three “previously redacted documents” — but none with classified markings — during an hours-long search of the office of former Vice President Mike Pence’s public policy organization Friday, Advancing American Freedom, according to a Pence spokesman.

That detail raises more questions than answers: It’s hard to understand why, even under the Presidential Records Act, FBI would seize previously redacted documents.

Further in, the same story hinted at one possible reason: if certain no-longer classified documents reveal the import of other documents marked as classified. For example, consider the possibility of a tie between the debate prep materials from Pence’s office and the package of documents seized from Pence’s home.

The documents taken Friday are believed to be materials used for 2020 debate preparation, a person familiar with the matter said.

Last week, the FBI removed one classified document and six other documents during a voluntary search of Pence’s Indiana home. A person familiar with the search told NBC News earlier this week that at least one other item was taken at that time because the relevant materials “were kept in a place that required the FBI to take more than just the documents.”

Such a tie might be exculpatory, for example: it might suggest that documents with classification markings had already been declassified in advance of some prepared debate line. Much of the debate between Pence and Kamala Harris focused on COVID response and China. It would be unsurprising for Trump to declassify information on China’s role in COVID in advance of that debate; nor would it be surprising to find such papers at Pence’s home, given his role in COVID response.

Two other topics from the debate potentially implicating classified materials might be resonate with the Trump investigation, though. To defend Trump’s national security record, for example, Pence raised the execution of Qasim Soleimani, claiming Trump ordered the attack, “when Qasim Soleimani was traveling to Baghdad, to harm two Americans.” Given the visible dates of the highly classified documents at Trump’s home, it would be unsurprising if one or several of those documents related to this decision, stolen as trophies of Trump’s most self-satisfying order as President.

Also in the debate, as part of a false claim that he and Trump had been spied on by the FBI, Pence raised a CIA document unsealed and submitted to the Mike Flynn docket days earlier.

[T]he FBI actually spied on President Trump and my campaign. I mean there were documents released this week that the CIA actually made a referral to the FBI documenting that those allegations were coming from the Hillary Clinton campaign

If these were among the previously redacted documents at Pence’s home, it would suggest that Trump’s obsession with stealing documents pertaining to the Russian investigation had spilled (heh) over into documents in Pence’s possession.

This is all speculative. But the report that FBI took documents that would not obviously substantiate either the mishandling of classified documents or a violation of the Presidential Records Act for the first time suggests that FBI may be pursuing some more interesting explanation for the classified documents at Pence’s home.

Things get more interesting when you turn to Mar-a-Lago.

Also on Friday, Rolling Stone told a tale that suggests Trump is being advised to ditch Evan Corcoran as a lawyer because he’ll soon be charged. To be clear: neither Rolling Stone nor I are claiming Corcoran will be charged.

The story, by Asawin Suebsaeng and Adam Rawnsley, is likely legal nonsense. But the two have reported a series of insider stories on Trump world that capture — perhaps more than any other journalistic team — the batshittery going on close to the former President. This is not bad reporting. Rather, it seems to be accurate reporting that captures the batshittery and bullshit of Trump’s inner circle. One story that is a close analogue of this one described how Trump wanted to expose the IDs of people involved in the Russian investigation, on that piggybacked off a NYT story that served as cover for the centrality of Russian documents in Trump’s obsession with stealing documents.

Anyway, this story may be explained by two earlier reports.

On February 14, the NYT version of the story that DOJ was seeking a crime-fraud waiver for Corcoran’s testimony included the detail — amid reports that multiple witnesses have been asked about Boris Epshteyn’s role in withholding the stolen documents — that Epshteyn once sought to establish a joint representation.

Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump, according to multiple people briefed on the matter. It was Mr. Epshteyn who first brought Mr. Corcoran into Mr. Trump’s orbit.

At least three lawyers have sat for interviews with the Justice Department during which questions about Mr. Epshteyn were asked — among them Ms. Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Mr. Trump, Jesse Binnall, has also spoken with prosecutors about Mr. Epshteyn, the people said.

One person briefed on the interviews said that investigators were interested in discussions between Mr. Epshteyn and others about establishing a possible common-interest privilege in the documents case. A common-interest privilege creates a kind of umbrella privilege allowing groups of lawyers and clients to communicate with each other confidentially.

Such common-interest agreements are frequently used in cases with multiple lawyers and multiple witnesses. But prosecutors are asking questions indicating they’re interested in whether Mr. Epshteyn was trying to improperly influence witness testimony, the person briefed on the interviews said.

The NYT story bears the same markers of MAL bullshit that some others on this story do, notably, claiming that Beryl Howell has always ruled against Trump when (among other things) she has deferred certain decisions, like holding Trump in contempt, forcing DOJ to do more work. There’s good reason to believe the claim is just the regurgitated bullshit claims made by Trump’s lawyers.

On February 17, Reuters reported (and thus far, they appear to be alone with this scoop) that Corcoran’s firm hired an attorney to represent him.

A lawyer for former President Donald Trump retained an attorney to represent himself as prosecutors step up their inquiry into the handling of sensitive documents at Trump’s Florida residence, two people familiar with the matter told Reuters on Thursday.

Evan Corcoran, who has represented Trump in interactions with the government over presidential records taken to his Mar-a-Lago resort, has turned to Michael Levy, a prominent white-collar lawyer in Washington, according to people familiar with the matter.

Levy was hired by Corcoran’s law firm, Silverman Thompson Slutkin & White, to represent Corcoran in the probe, according to one of the people.

This is not surprising. It’s grown up lawyering. But it provides important context of Epshteyn’s call to adopt a joint defense, in part because it explains with whom Epshteyn might want to form a mutual defense, in addition to the lawyer representing Christina Bobb and Alina Habba.

With that background in mind, take a look at the Rolling Stone piece. It describes not that Corcoran will be charged, but that Trump is being advised he will be.

In at least three meetings this year, according to two sources familiar with the matter, legal and political counselors to Trump have urged him to dump Evan Corcoran, one of the ex-president’s top attorneys in the federal probe into Trump’s handling of classified documents.

Some of the former president’s lawyers have explicitly told Trump that, based on information they have privately reviewed, they believe the Department of Justice has a strong case against Corcoran, arguing charges — including potentially for obstruction of justice — are “very likely,” the sources said. These advisers have argued that if the Justice Department indeed does come for Corcoran, it’s imperative for Trump to distance himself to avoid being dragged into possible further legal jeopardy by his own attorney.

Trump, the sources say, sounded “receptive” to their perspective. However, as of mid-February, it appears he wasn’t as receptive as they had hoped: Corcoran is still on Trump’s legal team.

As RS describes it, this is explicitly an attempt to pin the blame for what happened last summer on Corcoran.

Several of Trump’s close advisers who’ve recently spoken to him about this have argued to the ex-president that any potential wrongdoing on this matter could, somehow, be pinned entirely on Corcoran, and not Trump himself.

Even better, it includes this claim — that excludes Epshteyn from the list of lawyers whom DOJ might be targeting.

“These types of motions [requesting that a judge nullify attorney-client privilege based on the crime-fraud exception] would only be served upon the attorneys who’ve appeared in the case: Jim Trusty, John Rowley, Evan Corcoran, Tim Parlatore, and Lindsey Halligan; the five of them would be the only people who have access to these documents,” says a person familiar with the internal proceedings of Trump’s legal team. “Any source other than that would not be speaking from a position of access and would likely be speaking based on their own personal agenda, rather than actual facts. [Furthermore], when DOJ targets lawyers, it is often being done from a position of weakness in their underlying case, as a method of undermining the integrity of the defense legal team. Removal of Evan Corcoran … would serve the purpose of giving DOJ exactly what it wanted.” [bracket original]

Epshteyn has been at the center of these discussions from the start — he’s the guy who brought in Corcoran, he’s the guy who called up Christina Bobb and had her show up to be a fallgal for a misleading declaration on June 3. To exclude him from this comment — either because he’s the one you’re talking to or because someone is trying to obscure his centrality in all of it — is telling.

Trump’s lawyers believe that they can wait out the end of Beryl Howell’s term and they’ll be the ones who decide whether DOJ can get a crime-fraud exception for Corcoran’s testimony. That may not even be the case if Corcoran plays along. But if he doesn’t — if his own lawyer advises him that fighting a crime-fraud determination puts him in legal risk he’s not currently in — then it may explain why people at MAL are trying to preemptively claim Corcoran was behind a lot of epically shitty legal advice last summer and not Epshteyn.

Share this entry

Where Alina Habba Didn’t Personally Search

/28 Comments/in , /by

Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.

Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.

But it wasn’t.

Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.

But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.

The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.

5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:

a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.

b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.

c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena

[snip]

It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.

Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.

Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.

Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.

f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.

So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.

And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.

But even the two properties Habba did search include gaps.

b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.

But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.

While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.

But there’s no way Habba would have found most documents, because most documents were still in that storage room.

They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.

Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.

Share this entry

Some People Have Sex Toys; Trump [Claims He] Has Empty Classified Evening Briefing Folders

/45 Comments/in , /by

I’d like to situate the details about an empty folder marked, “Classified Evening Briefing,” from this Guardian story into what we know about the searches of Mar-a-Lago. It describes that the folder was first observed, in Trump’s residence, and recorded in a report shared with DOJ by the investigators who did the search of Trump’s properties. But Trump didn’t return the folder because it, itself, was not classified information.

The folder was seen in Trump’s residence by a team of investigators he hired to search his properties last year for any remaining documents marked as classified. The team transparently included the observation in an inventory of Mar-a-Lago and Trump properties in Florida, New Jersey and New York.

[snip]

The folder is understood to have not been initially returned because the lawyers thought “Classified Evening Briefing” did not make it classified, nor is it a formal classification marking.

“Weeks after” DOJ got the report on Trump’s properties in December, DOJ subpoenaed the folder in January.

Donald Trump’s lawyers turned over an empty manilla folder marked “Classified Evening Briefing” after the US justice department issued a subpoena for its surrender once prosecutors became aware that it was located inside the residential area of the former president’s Mar-a-Lago resort, two sources familiar with the matter said.

The previously unreported subpoena was issued last month, the sources said, as the recently appointed special counsel escalates the inquiry into Trump’s possible unauthorized retention of national security materials and obstruction of justice.

[snip]

Weeks after the report was sent to the justice department, the sources said, federal prosecutors subpoenaed the folder.

Here’s the story Trump told to DOJ about the empty classified folder:

The backstory the justice department was told about the folder was that Trump would sometimes ask to keep the envelopes, featuring only the “Classified Evening Briefings” in red lettering, as keepsakes after briefings were delivered, one of the sources said.

It’s just some kink that Trump has, his lawyers want DOJ to believe, that he wants to have “Classified Evening Briefing” folders strewn around his personal residence.

It’s not entirely ridiculous. After all, just two days after the search of Mar-a-Lago, reporters found a folder just like that one at a shrine to the Donald in Trump’s Wine and Whiskey Bar in Manhattan.

There are several problems with this story, though.

Let’s review some chronology of Trump’s stolen document scandal. In May, Trump’s lawyer Evan Corcoran accepted a subpoena for all documents with classified markings at any Trump property. Trump stalled for almost a month, but then the day before Trump was set to leave for Bedminster, Corcoran told the FBI to come to Mar-a-Lago the next day to retrieve documents. On June 3, Jay Bratt showed up with some FBI agents, and Corcoran handed over a folder of documents — certified by Christina Bobb, not himself — and also showed the people from DOJ the storage room where many, but not all, of Trump’s presidential records were stored. Trump’s story does not match DOJ’s story about whether Trump interacted with Jay Bratt when the senior DOJ official was at Mar-a-Lago.

On June 24, DOJ subpoenaed surveillance footage that, subsequent reporting has made clear, showed Walt Nauta moving boxes out of the storage facility, thereby preventing Corcoran from finding the documents inside in the search he did in advance of June 3. Prior to obtaining the video, Nauta had testified that he didn’t move any documents; afterwards, he testified he had moved boxes to Trump’s residence.

Then, on August 5, DOJ obtained a warrant to search Mar-a-Lago. The affidavit for the search specifically mentioned Trump’s residence, “Pine Hall.” And the search warrant authorized the search of “the ’45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored,” which particularly given DOJ’s knowledge that Trump already had hidden stolen documents in his residence, surely would include the residence. In the weeks after the search, Trump claimed publicly that the FBI had searched Melania’s closet, implying that the FBI did search the residence. But the only way Trump would know what the FBI searched or not would be if those rooms were covered by his own surveillance camera.

Let’s assume, however, that the FBI did at least go through the residence closely enough to ensure no documents remained there after Nauta had stashed them there while Corcoran conducted a search.

The FBI seized no documents from the residence on August 8. Documents were seized from just the storage room (those marked with an “A-” preface on the search warrant return) and Trump’s office (those without).

One thing supports Trump’s claim that he took this — and all the other — empty classified folders, as well as 42 empty aide folders, as trophies. There were 43 empty classified folders and 28 empty aide folders in his leatherbound box, which also had the most sensitive documents. Particularly given the appearance of those documents in the photo the FBI released, it is not inconceivable that Trump stole them as trophies of some events he think reflect well on his presidency, just like he stole the Kim Jong Un letters.

Plus, by appearances, Trump stored those super secret documents right next to his Time Magazine covers. All of which supports his claim that he stole these items as trophies of his time as President.

But that’s not the only place the FBI found empty folders in their August 8 search. They also found them in five other boxes, all stored in the storage room.

With one exception — box A-33 — all the boxes with empty folders also had classified records, though mostly just one or two classified documents.

In other words, even indulging Trump’s excuse — that he stole these empty classified folders as keepsakes — that only explains one of the motives and means by which he stole them. It only explains the folders stored with his other trophies, in the leatherbound box. It doesn’t account for the fact that Trump also stole files that weren’t keepsakes per se, but were boxes of other records, among which some classified records remained. It doesn’t account for the fact that hoarding large amounts of documents, as Trump did, along with sloppy treatment of classified documents while in the White House, will result in the theft of classified documents. Along with some empty classified folders.

More importantly, the discovery of an empty classified briefing folder in his residence, which was not found during the no-notice search on August 8, but was found during the search for which Trump would have had advance notice, could not readily be explained by the kink trophy explanation.

Which is why this currently operative story — and the fact that Trump’s lawyers have decided to share it publicly now — should focus on the other investigative steps that took place in the same time.

Back in October, before Attorney General Garland appointed Jack Smith, Trump was reportedly still considering letting the FBI do a further search of his property, like Joe Biden and Mike Pence have since done. But then, probably after the appointment of Smith and the 11th Circuit ruling overturning the Special Master, Trump decided to have a private firm do the search instead. After the search of (some of) Trump’s properties — this probably happened at the end of November and beginning of December — the contractors provided an inventory to DOJ, which is how DOJ learned of the empty folder. Because Trump’s lawyers refused to certify the searches themselves, DOJ immediately tried to hold Trump in contempt for violating the May 11 subpoena. That request — to hold Trump’s lawyers in contempt — happened at the same time (around December 6) as a bunch of inconsistent stories serially revealed the search of four of Trump’s properties and, the stories claimed, the discovery of just two more classified documents.

We now know those stories were false, classic Trump limited hangout. Yesterday’s stories reveal that when Trump’s lawyers told journalists the search firm had only found two documents marked as classified in December, they were hiding the Trump calendars and the classified folder. They were lying to hide the stuff just revealed yesterday.

Beryl Howell did not make a final decision on contempt, though the same Trump lawyers also falsely told journalists she had made a final decision.

Then, after some back in forth, early in January, DOJ got Beryl Howell to require Trump to turn over the names of the people who did the search. That’s the first we learned that, contrary to the headlines you’d read based on the December 2022 stories, Howell had not made a final decision on contempt.

That’s all background to the mad set of stories yesterday, announced even as Pence admitted FBI found one more classified document at his house. It should tell you something that the leaks yesterday resemble the ones from December 7, when Trump’s lawyers told two lies: That Howell had already decided not to hold them in contempt, and that the search firm had found only two more classified documents. Based on past experience, we should assume yesterday’s stories, like the ones in December, had as their primary goal to tell a false story.

What we know, though, is that after attempting to hold Trump’s lawyers in contempt in early December, DOJ took steps that would be necessary preparation for interviewing the people who did the search. First, forcing Trump to share the names. Then, interviewing two of three lawyers involved in Trump’s obstruction last June, Evan Corcoran and Christina Bobb. And then, obtaining the things found in the search that weren’t immediately turned over as positive search results, which would be necessary preparation to interviewing those who did the search.

Trump told DOJ in December that this empty folder, which the FBI didn’t find when they showed up to MAL unannounced on August 8, 2022, had found its way to Trump’s residence in time for the contracted search, because he has an empty folder fetish.

He certainly does appear to have an empty folder fetish.

But that cannot explain why the folder — full or empty — was not found in August but was found in December.

I’ve updated my resource page on Trump’s stolen documents here.

Timeline

May 11, 2022: Subpoena for all documents bearing classification marks

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

October 19: Trump still considering letting FBI search his properties for further classified documents

November 18: Merrick Garland appoints Jack Smith Special Counsel

December 7: A series of inconsistent stories reveal, serially, the search of four properties and the discovery of just two more classified documents

Late 2022: DOJ reaches out to Alina Habba, who last summer claimed to have done a thorough search of Trump’s properties

December: Trump returns box of presidential schedules, which includes classified information

January 4, 2023: Beryl Howell orders Trump to turn over names of investigators to DOJ

Early January: Trump turns over aide’s laptop and DOJ subpoenas both empty folder and

Early January: Evan Corcoran and Christina Bobb appear before the grand jury

February 2: Tom Fitton appears before grand jury

February: Robert O’Brien subpoenaed for both stolen documents and attempted stolen election investigations

Share this entry

A Book Author, A Religious Leader, and A Pollster Walk into Trump’s Classified Document Bar

/45 Comments/in , , /by

As noted, yesterday Trump took the opportunity created by news of an additional document with classification marks at Mike Pence’s house to make a series of disclosures. Lawyers found another empty classified document folder, marked Classified Evening Briefing, as well as a laptop and a thumb drive with a classified document on it. The latter, described here by CNN, has generated a really inflammatory response.

Former President Donald Trump’s legal team turned over more materials with classified markings and a laptop belonging to an aide to federal prosecutors in recent months, multiple sources familiar with the investigation told CNN.

The Trump attorneys also handed over an empty folder marked “Classified Evening Briefing,” sources said.

The previously undisclosed handovers – from December and January – suggest the protracted effort by the Justice Department to repossess records from Trump’s presidency may not be done.

The Trump attorneys discovered pages with classified markings in December, while searching through boxes at the former president’s Mar-a-Lago residence. The lawyers subsequently handed the materials over to the Justice Department.

A Trump aide had previously copied those same pages onto a thumb drive and laptop, not realizing they were classified, sources said. The laptop, which belonged to an aide, who works for Save America PAC, and the thumb drive were also given to investigators in January.

Pete Strzok, popularizing my nifty (and now outdated) table, raised a lot of predictable questions about the thumb drive and laptop.

He’s not wrong that these are the kinds of questions FBI will now be asking. All the more so given the ABC report that the laptop, at least, was not found at Mar-a-Lago.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

But the answers may be somewhat simpler, particularly if — as I suspect — Trump’s lawyers went and found this laptop as a response to one of the other most-pressing questions about Trump’s stolen documents.

After all, there must be some reason why Trump’s lawyers went to look for this document, after having investigators search Mar-a-Lago already. There must be a specific reason they were looking for these documents, given that investigators had done a seemingly thorough search of everything.

And Trump’s lawyers have no doubt been scrambling to answer one of the most important questions revealed in the Special Master review: who had compiled a document — after Trump left the White House — with a Secret and a Confidential document. That document was described in one of the last Special Master filings. It’s a document that includes messages from a book author, a religious leader, and a pollster, probably something from a lawyer, and what were upon seizure a Secret and a Confidential document.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

It was, as I’ve been describing, a mini-smoking gun: Two classified documents “compiled” with a bunch of documents that post-date Trump’s Administration, seeming proof that someone accessed classified documents after they were removed from the White House.

The mini-smoking gun is a political document: it includes a message from a pollster. But what FBI meant by a “compilation” was never clear: Was it just two classified documents paper clipped onto messages from a pollster, a religious leader, and a book author? Was this digitally compiled, in which case it might appear to be one 11-page document with passages that were classified?

What would have happened after DOJ and Trump’s lawyers agreed that the messages post-dated Trump’s presidency is that Trump’s lawyers would have scrambled to come up with a non-criminal explanation for the document.

And one possible story to explain it is the one Trump is now offering: an entire box of documents were scanned, and an aide  — CNN appears to know who she is — took copies, not knowing they were classified. And then the aide used the classified documents in her job at Trump’s PAC.

Both the removal of the document, including some classified documents, and this aide’s integration of the documents into some kind of political document, could both be unwitting, and therefore not a crime. Particularly if she were represented by lawyers paid for by Trump, as is his habit.

Given that FBI only found one document like this, the story is not implausible.

And it would answer the really pressing question of the “compiled” classified document (which Trump lawyers have undoubtedly treated as a very pressing question, given that this is a mini-smoking gun). And it would answer the question of why they were searching an aide’s laptop and thumb drive.

Only, if that’s Trump’s final answer — and it may well be! — then it will raise other questions. Such as why Trump had Presidential Records Act documents that he would go on to use for his PAC in the first place.

Particularly at a time when his fundraising is under scrutiny for the other criminal investigation of Donald Trump, the answer to that question might get awkward quickly.

Update: Here is the Guardian’s explanation for the aide and the laptop (none of which makes sense):

[A]t Mar-a-Lago in December, the contractors found a box that mainly contained presidential schedules, in which they found a couple of classified-marked documents to also be present and alerted the legal team to return the materials to the justice department, the sources said.

The exact nature of the classified-marked documents remains unclear, but a person with knowledge of the search likened their sensitivity to schedules for presidential movements – for instance, presidential travel to Afghanistan – that are considered sensitive until they have taken place.

After the Trump legal team turned over the box of schedules, the sources said, they learned that a junior Trump aide – employed by Trump’s Save America political action committee who acted as an assistant in Trump’s political “45 Office” – last year scanned and uploaded the contents of the box to a laptop.

The junior Trump aide, according to what one of the sources said, was apparently instructed to upload the documents by top Trump aide Molly Michael to create a repository of what Trump was doing while in office and was apparently careless in scanning them on to her work laptop.

When the Trump legal team told the justice department about the uploads, federal prosecutors demanded the laptop and its password, warning that they would otherwise move to obtain a grand jury subpoena summoning the junior aide to Washington to grant them access to the computer.

To avoid a subpoena, the Trump legal team agreed to turn over the laptop in its entirety last month, though they did not allow federal prosecutors to collect it from Mar-a-Lago.

 

Share this entry

“Classified Evening Briefing:” Mishandled and Stolen Documents Update

/35 Comments/in , /by

There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.

Biden

On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.

NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.

Pence

Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.

The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.

The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”

“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”

A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.

The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.

Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.

Pence has another weekend home in IN that has not been searched.

Trump

Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:

  • An empty folder marked “Classified Evening Briefing”
  • Some additional classified files
  • The laptop and thumb drive onto which digital versions of those files were copied

Here’s how ABC described the new materials:

The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.

Separately, there have been reports of at least three witnesses who have testified in the stolen document case:

  • In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
  • Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
  • On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
  • Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.
Share this entry

The Trump-Biden-Pence Documents Story Is Not (Yet) about Overclassification

/40 Comments/in /by

It is my belief that had Eric Holder appointed a Special Counsel to investigate David Petraeus’ hoarding of classified information, the retired General might have been charged with 18 USC 793(e) and maybe even 793(d).

That’s true, first of all, because the facts he admitted to as part of his wrist-slap plea largely cover the elements of the offense. That’s true, too, because everyone but Holder seemed to support charging Obama’s CIA Director. Ultimately, the decision would have remained Holder’s. Holder might have overruled a Special Counsel even still, as he is reported to have overruled prosecutors. Holder may have calculated that Petraeus’ years-long cultivation of Congress would mitigate any blowback for overriding the recommendation to prosecute.

Certainly Holder paid no price for making the decision he did make: Congress believed that Petraeus could do no wrong.

Instead, Petraeus is (with Sandy Berger) one of the two poster children for the premise that the powerful will never be held accountable for mishandling classified information the way lower ranking personnel will be. That could change with at least two Special Counsels involved.

Yet even as powerful as he was during the period he was leaking to his biographer, David Petraeus is still differently situated than Trump, Biden, and Pence, starting with the fact that even in his case, DOJ relied on his clearance and nondisclosure agreements to prosecute him.

By comparison, all three of the men currently under investigation were Original Classification Authorities under EO 13526, the Executive Order governing classification during the period in question. None of those men would ever have been required to get any security clearance beyond the courtesy clearance given to formers after their tenure (of which Trump was stripped). And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files in boxes to decide what he was permitted to take home and what he was obligated to turn over to the Archives.

That process was at least part of what went wrong in all three cases, even Biden’s possession of documents from when he was a powerful Senate Chair. One minute, they were virtually immune from rules pertaining to classification, and literally the next minute — before they had finished that sorting process! — they were subject to the rule of law again.

Indeed, because all three are explicitly subject to the Presidential Records Act, the basis by which they lack authorization to possess the documents in question stems, in significant part, from an entirely different basis than it does for other people, which arises from the clearances they were never required to get.

And that’s one reason why all the punditry (here, here, here, here) — almost all from people who haven’t followed the details even of the Trump case, where we’ve got the most facts available — claiming that this is a problem with overclassification is, at best, wildly premature.

Indeed, with Trump, we can say with some certainty that this is not about overclassification. The classification markings from the subpoena DOJ served on him, understood to be based in part on what they had already found in the boxes he turned over, are not trivial. Nor are the likely contents of the documents we see in the FBI picture of his stolen documents. Even some of the documents from the Russian investigation that Trump wanted to declassify and disseminate rely on either human source and/or intelligence collection targeting Russia’s spy service, and the reporting was just five years old at the time (a brand new must read from the NYT also reveals the intelligence came from the Dutch, so it wasn’t our intelligence to declassify).

These men were the President and Vice President. They had access to highly sensitive information, and Trump, at least, had a well-established history of releasing it with abandon.

Until we have evidence that the documents in question were simply materials that some agency was bigfooting (as was the case in most of the classification pertaining to Hillary’s emails), we should not assume this is about overclassification. There’s no evidence of that.

Chuck Rosenberg argues that it also should not matter.

One place we might see overclassification is in classification reviews of the hand-written notes that both Trump and Biden took, though even there, Trump was reportedly waving around his private love letters with a nuclear-armed dictator as a party trick, and that probably did have the ability to make it harder to manage a very difficult threat. But with Trump, at least, the possibility that some of his hand-written notes won’t turn out to be as sensitive as the spooks will declare them doesn’t mitigate that he had documents that are almost certainly unbelievably sensitive sitting in a beach resort known to be targeted by intelligence services.

Thus far, we have no evidence that this is about overclassification. We do have abundant evidence that these three specific compromises have to do with the wacky way Presidents and Vice Presidents (and to a lesser degree, Members of Congress) operate outside the system of clearances that leads virtually everyone else with access to classified information to exercise a great deal of caution when handling it. One day they’re immune, the next day they’re sorting documents to try to sort out what needs to go to the Archives.

That’s a different problem than overclassification.

Crazier still, most of the people who are out there claiming this about overclassification are using (at least partly) as their examples people who sought out documents that were not part of their work and then leaked those documents. Those cases are also not about overclassification.

And amid all the talk of overclassification, none of the pundits have mentioned a case that is a far more apt example of overclassification and the way the Executive uses classification to punish people: Jeremy Brown, the Oath Keeper recently found guilty of unlawfully retaining — right next to some grenades for which he was also convicted — one document that Brown wrote himself in 2011, classified Secret, believed to be about the Bowe Bergdahl case.

Brown was acquitted on 793 charges for four other documents, also classified Secret, that were even older.

Brown’s case in many ways parallels Trump’s. Like Trump, the Feds showed up and asked him to return the document and he lied to hide it. Like Trump, the FBI found the documents with a warrant.

But it’s far more likely these documents, all of which were at least ten years old, are overclassified.

Don’t get me wrong: I think Brown is a dangerous shithole. I’m not unhappy he’s going to prison.

I also think DOJ believed, correctly, they could use these classified documents (along with the grenades) as a way to neutralize a dangerous loose canon.

Want to make a case about overclassification? Jeremy Brown is the dangerous shithole you should be defending. Want to prevent the grave disparities in how powerful people are treated, as compared to dangerous shitholes like Jeremy Brown?

You need to address that magic process by which Presidents are treated with immunity and then — in an instant!! — purportedly subjected to the same rules as everyone else.

Share this entry