Judge Jesse Furman Gives DOJ 3 Pages to Reply to emptywheel’s Bid to Liberate Sealed Transcripts on the Espionage Act

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Some weeks ago, I described that, with the help of National Security Counselors, I was intervening in the Joshua Schulte case to try to liberate transcripts from a May 3 sealed Classified Information Procedures Act hearing in which this exchange took place.

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

CIPA is the means by which the government tries criminal cases involving classified information. It permits the government to ask to hold certain hearings about what evidence will be admitted in sealed hearings to avoid any possibility that classified information will be publicly disclosed at those hearings.

[Note, these transcripts were funded by Calyx Institute with funding provided by Wau Holland Foundation, the latter of which has close ties to WikiLeaks.]

While everyone else was staying up late waiting for the January 6 Committee Report last Thursday, I was staying up late to see the filing that Kel McClanahan submitted in that intervention, which is here.

In the filing, McClanahan argued that the government’s own argument in support of sealing the transcripts attempted to use wiretap precedents to justify their continued sealing of CIPA hearings, even though they were asking to seal something else — hearings at which classified information might or might not be discussed.

It goes without saying that the proceedings in question—and the transcripts thereof—are judicial records for purposes of the common law, and the Government does not make any serious argument to the contrary. Instead, it argues that CIPA established a presumption against disclosure, drawing an analogy to the statutory provision for sealing of wiretap applications at issue in In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009). It then goes beyond that analogy to argue that the presumption is even stronger because Congress allowed for wiretap materials to be unsealed for good cause but provided no comparable mechanism for CIPA proceedings. However, CIPA is not Title III, and the Government’s argument requires that to be the case in order to succeed.

Simply put, In re New York Times dealt with a statute which included a “manifest congressional intent that wiretap applications be treated confidentially,” id. at 408, but only because it includes a provision that the records themselves “shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction.” 18 U.S.C. § 2518(8)(b). In contrast, CIPA only provides that a hearing shall be held in camera because “a public proceeding may result in the disclosure of classified information.” 18 U.S.C. App 3 § 6(a) (emphasis added). It in no way exhibits any intent that the records created from such a hearing should be presumed undisclosable, nor could it, since by its own terms the hearing might actually include no classified information. In other words, CIPA merely provides a protective procedure to guard against the chance that a hearing may include classified information,2 based solely on the Attorney General’s assertion that it may include classified information—hardly a high bar for the Government to clear. Congress voiced no opinion about what should then happen to the unclassified information included in that hearing, let alone a “manifest congressional intent.”

McClanahan laid out how the CIPA discussions at issue played a role in the exercise of Article III power, noting that the transcripts in question address the elements of the charges against Schulte: the very definition of the Espionage Act (and its application to someone like me, who might be held accountable for disseminating unconfirmed classified information).

The key question then becomes, what was the “role of the material at issue in the exercise of Article III judicial power” and its “resultant value . . . to those monitoring the courts?” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). The Court itself addressed both of these issues at various times. Most relevantly, it engaged in open court in an extensive discussion of a colloquy that appears to have taken place in the 3 May hearing, telling Government counsel, “I gave you two hypotheticals” about the Government’s interpretation of the scope of the Espionage Act. (Tr. of 7/6/22 Hrg. at 149:3-151:12.) It did so in the context of a discussion of potential jury instructions, and expressed the sentiment several times that the Government’s assertion that a person sharing National Defense Information (“NDI”) that is already in the public domain would still be liable under that statute was “kind of a striking proposition.” The role, then, of these transcripts—and the information they contain—in the exercise of Article III judicial power is clear, as is the resultant value to people monitoring the judicial process. In this case, according to this Court, the Government has—behind closed doors—pressed an argument that a person can violate the Espionage Act by handing a copy of a New York Times article containing leaked NDI to someone else, which is definitely something that interested persons in the field should know, and what they do not know is the degree to which the Government pressed this point, how it defended it, whether it has actually done so in the past, and what other positions it took when it was not expecting the transcripts to become made public.

By the same token, this convergence of factors also definitively demonstrates that the First Amendment right of access attaches to these records, because unlike the hypothetical CIPA hearing that the Government asks the Court to envision, at least this discussion strayed far from a simple discussion of evidentiary issues, with the Government presenting legal arguments about elements of the crime itself. [McClanahan’s italics, my bold]

He argued that the government’s argument went further than the stance it takes on Prepublication Reviews, insofar as we’re just arguing for a First Amendment right to read these transcripts, not publish them.

Simply put, when courts are put in the position of balancing claims related to national security against a writer’s First Amendment concerns, they consistently and without exception find that only classified information tilts the balance. There is no reason for this dynamic to change when it involves a reader’s First Amendment concerns, and while we acknowledge that some district courts have accepted the Government’s arguments, there is no evidence to show that those courts were presented with our argument and no grounds for this Court to follow suit.

Then McClanahan pointed to Judge Furman’s own comments about the colloquy as proof that the government’s claim — that there is no meaningful way to unseal just the unclassified portions of the transcripts — must be false.

In fact, the very existence of the Court’s 6 July summary of the two hypotheticals discussed above demonstrates the frivolousness of these arguments, since: (a) it was neither incoherent not functionally useless; and (b) the Court presumably did not divulge classified information in discussing it.

Judge Furman must have found something novel or persuasive in this argument. When he ordered the government to formally request the continued sealing of the transcripts on November 21, he said they could only submit a reply with his permission. But he just gave the government three pages to to do so.

This challenge could do more than liberate arguments the government made about the Espionage Act in secret. It could challenge the government’s larger views on secrecy in the context of CIPA.

As McClanahan laid out, “the Government has—behind closed doors—pressed an argument that a person can violate the Espionage Act by handing a copy of a New York Times article containing leaked [classified information] to someone else.” When I saw the argument (as relayed in Furman’s July description), I recognized the import of liberating this transcript.

I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

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Judge Aileen Cannon Dismisses Donald Trump’s Documents Challenge

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Judge Ailenn Cannon has just dismissed Trump’s document challenge for lack of jurisdiction.

After 98 days, DOJ can finally use the unclassified documents seized with a lawful warrant in the investigation of Donald Trump’s stolen documents.

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DOJ Moves for Contempt as Injunction Finally Lifted

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I’m in transit and Google Fi is being useless so won’t say much about the two developing stories in the stolen document case.

But as WaPo and CNN are reporting, DOJ has asked Beryl Howell to hold Trump’s office in contempt for refusing to certify their searches for classified documents.

I guess my instinct that yesterday’s serial disclosures about additional stolen documents was just a cover story turned out to be correct.

Meanwhile, the 11th Circuit’s order vacating the Special Master order will now go into place and over the next day, DOJ will finally get the ability to question Trumpsters about the unclassified documents interspersed with classified documents.

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The Rules Against Keeping Classified Documents in an Unsecure RV Parked alongside Jeremy Brown’s Home

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Several days into the trial of Oath Keeper Jeremy Brown, it continues to provide useful lessons for the case of that other disgruntled former Federal employee who took classified documents home to Florida with him.

In a motion in limine submitted yesterday, the government sought to preclude Brown from taking the stand and explaining why he took one of the classified documents he is accused of storing in his RV.

Count 10 charges the Defendant with violating 18 U.S.C. § 793(e) in connection with his willful retention of the Classified Trip Report. The parties have agreed that in order to prove the Defendant guilty of this offense, the government must establish that (1) the Defendant possessed the Classified Trip Report without authorization, (2) the Classified Trip Report relates to the national defense, and (3) the Defendant willfully retained the Classified Trip Report and failed to deliver it to an officer of the United States entitled to receive it. See Dkt. 230-1 at 19 (joint jury instruction setting forth elements of 18 U.S.C. § 793(e)).

Notably absent from these elements is any requirement that the Defendant intended to harm the United States. Nor does the government need to prove that the Defendant even knew or had reason to know that his conduct would harm the United States. Consequently, evidence of the Defendant’s motive, rationale, or justification for possessing the Classified Trip Report is irrelevant to the elements of this offense—unless he is contending that he was authorized to possess the Report (which he has never and cannot credibly argue).

Such evidence is also not relevant to establishing that the Defendant “willfully” retained the Classified Trip Report. The Defendant either acted willfully—i.e., he knew that his conduct was generally unlawful—or he did not. His reasons or motive for so acting are irrelevant. Here, the Defendant knew that the Trip Report was classified and he knew that it was against the rules to keep classified [sic] in an unsecure RV parked alongside his home. Indeed, he placed the classified markings on the document himself, and chose to include particularly sensitive information in the Report that could jeopardize U.S. national security. The Defendant’s subjective preference that some of the information in the document should have been at a different classification level – as pointed out to the jury during cross-examination of Special Agent Koundarakis – is similarly irrelevant. On these facts, the Defendant acted willfully. The Defendant’s subjective belief that he had good intentions, or his preferred classification level for the information in the document, is entirely immaterial to that analysis.

This is the kind of motive argument that many people accused of 18 USC 793(e) want to argue. Trump (or Kash Patel) himself has argued a form of it by arguing that he should have been able to take the documents about the Russian investigation to prove he was unfairly targeted.

In this case, the government is arguing that doing so (Brown already did so in opening arguments) amounts to jury nullification.

“[T]he potential for jury nullification is no basis for admitting otherwise irrelevant evidence.” Funchesi, 135 F.3d at 1409. The defendant does not have a due process right to present evidence “the only relevance of which is to inspire a jury to exercise its power of nullification.” Id. at 1408. Rather, “[j]ury nullification verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.” Id. at 1409.

If and when Brown’s fellow Floridian is ever charged with 793(e), I expect to see a much more extended version of this argument: That’s it’s okay to bring home classified documents and store them in your RV or leatherbound box of trophies because you had a good motive.

But there will be a whole bunch of precedent ruling such arguments about — possibly even from Brown’s own case! And since the 11th Circuit ruled that Trump isn’t special, I don’t expect any attempt to argue motive will work

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Two Inconsistent Stories on Additional Searches of Trump’s Property

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WaPo and CNN both have stories about searches by a professional firm on additional Trump properties, looking for stolen classified documents.

In addition to at least three paragraphs that are affirmatively misleading (one that does not push back on a bullshit quote about how cooperative Trump has been, one that described Trump’s outright obstruction as a “breakdown … in trust,” and one that claims Trump is trying to avoid another high profile search when the further search was ordered by Chief Judge Beryl Howell) WaPo describes only searches of Bedminster and, later, Trump Tower.

Trump’s legal team hired an outside firm to carry out the search of his golf club in Bedminster, N.J., and, more recently, Trump Tower in New York, according to the people, who spoke on the condition of anonymity to discuss sensitive information.

In one paragraph, it describes that Trump’s lawyers told DOJ they did not turn up more documents, but in a follow-up, WaPo describes an attestation that may or may not apply to just Bedminster.

Trump’s lawyers have told the Justice Department that the outside team did not turn up any new classified information during their search, according to people familiar with the process, and have said they utilized a firm that had expertise in searching for documents.

[snip]

The group first conducted a search of Bedminster, and Trump’s attorneys have now attested to the Justice Department that no further materials were found, two people familiar with the matter said.

CNN’s story, however, describes searches of four properties.

Lawyers for former President Donald Trump recently hired a team to search four of his properties for any potentially remaining classified materials, according to a source familiar the matter.

The team of two searched Trump Tower in New York, the Bedminster golf club and two other properties amid lingering concerns from the Justice Department that not all documents had been returned to the federal government.

And while CNN’s single source would not reveal what Trump’s lawyers told DOJ about the results, it specifically said that “they” did not make an attestation.

The source would not detail what they have told the Justice Department about the search, but did say they have not attested to the Justice Department that no new material was found during the search.

That double negative — have not attested that no new material was found — might either suggest the lawyers or those doing the search have their own questions. Or it might suggest additional documents were found.

If more documents were found, it would change DOJ’s options on venue for charges, making Southern District of New York, New Jersey, or possibly even Northern Virginia, depending on where any additional documents were found.

Update: WaPo has updated their story to reflect that classified documents were found in a storage facility in Florida. Which might explain a good deal of the discrepancy.

People familiar with the matter said the storage unit had a mix of boxes, gifts, suits and clothes, among other things. “It was suits and swords and wrestling belts and all sorts of things,” this person said. “To my knowledge, he has never even been to that storage unit. I don’t think anyone in Trump world could tell you what’s in that storage unit.”

There was no cataloguing of what was put in the storage unit, Trump advisers said — just as there was no cataloguing of what classified documents were taken to a room underneath Mar-a-Lago.

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Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

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In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

  • November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
  • November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
  • December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
  • December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

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Trump Is a Mob Boss Whose Omertà Has Started to Fail

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In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

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11th Circuit to Trump: You’re Not Special

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The 11th Circuit has, as expected, vacated Aileen Cannon’s order enjoining the government from investigating Donald Trump, remanding it with an order to dismiss the suit. (Though they gave Trump seven days to appeal before the order goes into effect.)

The opinion’s key point is that, were they to rule for Trump, it would create an impossible precedent, either halting much pre-indictment access to seized material, or creating an exception only for former Presidents.

In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be  a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

Much of the opinion is an Richey analysis–the analysis Cannon worked so hard to manufacture. It’s not all that interesting. The key point is that, as Jay Bratt told Judge Cannon on August 30, the precedent in the circuit is clear.

But in conducting a Richey analysis, which it ultimately called a “sideshow,” the opinion took repeated swipes at the efforts Cannon went to make shit up to benefit Trump.

The district court was undeterred by this lack of information. It said that “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it,” though it cited only the government’s filings and not Plaintiff’s. But that is not enough. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying “specific” documents and explaining the harm from their “seizure and retention.” See, e.g., Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021) (Harbor did “far more than assert vague allegations” by pointing to “thousands” of privileged documents that the government retained for four years). Neither the district court nor Plaintiff has offered such specifics.

The opinion was even more scathing, though, in dismissing the notion that leaking classified information would harm Trump.

Plaintiff has adopted two of the district court’s arguments, dedicating a single page of his brief to discussing the first and third theories of harm. On the first argument, Plaintiff echoes the district court and asserts that he faces an “unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally. If the former, permitting the United States to review classified documents does not suggest that they will be released. Any official who makes an improper disclosure of classified material risks her own criminal liability. See, e.g., 18 U.S.C. § 798. What’s more, any leak of classified material would be properly characterized as a harm to the United States and its citizens—not as a personal injury to Plaintiff.

The only thing specific to Trump’s status as an ex-President, besides the opinion’s repeated reminder that he is not special, is the way with which the opinion twice dismissed Trump’s claim that if he had designated these documents his personal property under the Presidential Records Act, it would allow him to keep it. That’s nonsense, of course, because warrants authorize the seizure of personal property as a general rule.

Indeed, Plaintiff does not press the district court’s theory on appeal. Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return.3 In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.

[snip]

Plaintiff’s alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course. The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act.

3 During discussion of this factor at oral argument, Plaintiff’s counsel noted that the seized items included “golf shirts” and “pictures of Celine Dion.” The government concedes that Plaintiff “may have a property interest in his personal effects.” While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant.

Here, Jim Trusty’s wails about Celine Dion really served to demonstrate how absurd the grievance was. Ultimately, Trump’s Celine Dion picture was not a sufficiently urgent piece of property to hold up a search warrant.

A very conservative panel, including two Trump appointees, just confirmed that he’s not special anymore.

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How Richard Barnett Could Delay Resourcing of the Trump Investigation

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In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

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Trump Finally Describes How FBI Injured Him: By Taking his Celine Dion Picture

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The most important part of the hearing in the stolen document case before the 11th Circuit Tuesday came when Chief Judge William Pryor asked what the 11th Circuit should do if they find for DOJ.

It seemed to me that because this is an appeal from an injunction for purposes of appellate jurisdiction, what we would do if you’re right we would vacate the injunction, vacate this order on the ground that there is a lack of equitable jurisdiction. But that would be it. What we would have jurisdiction over is not the entire case. We would have jurisdiction, if we have jurisdiction, it’s over that order, granting an injunction. Isn’t that right, technically, instead of reverse and remand, with instructions, it’s really just vacate.

If Pryor’s original view was right, it would allow DOJ to use the documents in a prosecution of Trump, but would leave Judge Aileen Cannon with the authority to still meddle in the case.

Sopan Joshi, arguing for DOJ, disagreed and walked Judge Pryor through a SCOTUS precedent that says that the Court would necessarily have the authority to reverse the decision entirely.

Joshi must have persuaded, to some degree, because Pryor decided,

If you’re right, what we’re really talking about is a middle position, that is, I was right about vacate but you’re right about the authority to remand with instructions to dismiss. Ordinarily if a District Court lacks jurisdiction, that’s what we do. We vacate and remand with instructions to dismiss.

Joshi replied, “Fair enough, and I’m not going to fight you too hard on it.

Judge Britt Grant then piped in to ask Joshi whether,

We, in your view, if we decide there was not equitable jurisdiction in the first place we wouldn’t need to go through the bases of jurisdiction for the injunction and Special Master or anything like that. The lack of jurisdiction as it was brought would resolve all the questions in your mind. Is that right?

Joshi was pretty happy with that too. “I think that’s right.”

This technical debate, which took up about a quarter of the hearing, not only betrays that at least two of the 11th Circuit Court judges are thinking of how to give DOJ what it wants, but how to do so procedurally. And they seemed persuaded, ultimately, that they should just vacate the entire Special Master appointment altogether, ending the entire Special Master process.

Things didn’t go so well for Jim Trusty, Trump’s lawyer. Just as he started to get going on claims about Biden ordering a search on a political candidate’s home (a lie), Grant interrupted and corrected his use of raid: “Do you think ‘raid’ is the right word for execution of a warrant?”

When Trusty tried to claim that this warrant had been a general warrant, Pryor scolded, “but you didn’t establish that it was a general warrant,” the first of multiple times when the judges reminded Trusty he had not made the arguments he presented today before, not before any court. Grant pointed out that Trusty was misstating what their purported goal was, which was originally to review for privilege.

Then, as Trusty reeled off the things FBI seized that, he said, were incredibly personal, Grant asked, “Do you think it’s rare for the target of a warrant to think it’s overreaching?”

Mic drop!

She was back again, a few minutes later, as Trusty tried to argue what he thought the binding precedent should be, rather than what it was. Grant got to the core issue, which was that Trusty was asking for special treatment.

If you set aside, which I understand that you won’t want to do, but if you do for the purposes of this question, set aside the fact that the target of the search warrant was a former president, are there any arguments that would be different than any defendant, any target of a warrant who wished to challenge a warrant before an indictment.

Trusty tried to reframe her question. “We’re not looking for special treatment for President Trump. We are recognizing there is a context here where no President–”

Pryor interrupted.

I don’t know that that’s particularly responsive. The question was, set aside the fact that the subject of the warrant is the President. What’s to distinguish this from any other subject of a criminal investigation?

When Trusty tried to raise the concerns that he claimed Trump had had all along, Pryor responded, “I don’t see where that case has been made.” Again, Trump didn’t make the arguments he needed to, in September, to get the relief he is demanding now.

That’s when Pryor laid out the real practical problem with Trusty’s claims.

We have to determine when it’s proper for a District Court to do this in the first place, which is what we’re looking at now. And the last question was one posed that makes clear that basically, other than the fact that this involves a former President, everything else about this is indistinguishable from any pre-indictment search warrant. And we’ve got to be concerned about the precedent that we would create that would allow any target of a federal criminal investigation to go into a district court and to have a district court entertain this kind of petition, exercise equitable jurisdiction, and interfere with the Executive Branch’s ongoing investigation.

After Trusty started wailing more about personal documents, Pryor described,

You’ve talked about all these other records and property that were seized. The problem is the search warrant was for classified documents and boxes and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.

That’s when Trusty revealed that FBI took a picture of Celine Dion.

Dion, remember, refused Trump’s request to play his inauguration.

Now Trump’s grave injury all begins to make sense! FBI hurt him by taking his Celine Dion picture. All the wailing and screaming since August now begin to make sense.

Trusty went on blathering, claiming — for example — that the injunction hadn’t harmed the government because they had months before and after the seizure to conduct their investigation. When Trusty claimed the injunction was overblown, Pryor invited,

Think of the extraordinary nature from our perspective of an injunction against the Executive Branch in a pre-indictment situation. Under the separation of powers, the judiciary doesn’t interfere with those kinds of prosecutorial and investigatory decisions. Right? That’s the whole nature of this kind of jurisdiction.

After Pryor asked about a new argument Trusty was making, Joshi reeled off the five different arguments that Trump has advanced.

Joshi closed with the practical fear Pryor had raised: If Trump has his way, every “defendant” will demand pre-indictment intervention.

This emphasizes how anomalous and extraordinary what the district court did her was. And I heard Mr. Trusty agree that there was no difference between this and other defendants. And I think that just emphasizes how the anomalous could become commonplace. And we think the court should reverse.

Andrew Brasher seemed more sympathetic to Trusty’s arguments, at one point asking how much more of a delay this would cause, as if he might let this all play out (and that’s what would happen if the 11th didn’t entirely vacate Cannon’s order.

But ultimately, Trump was treated as if not a defendant, then at least someone who could create untenable rights for other defendants, which sounded like something neither Pryor nor Grant were willing to do.

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