Trump Wants Two Weeks to Review 64 Documents; DOJ Expects Review of 500 Documents a Day

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Yesterday, Judge Raymond Dearie submitted his draft work order to the two sides in the Trump Special Master review and then they responded (DOJ; Trump). Dearie didn’t release his draft publicly but Trump’s wails about it hint at some of its contents.

As a number of people have noted, Trump objects that Dearie has set a deadline for Trump’s initial designation of materials by October 7, thereby allowing the debate over the seized materials to end by November 30. But Trump wants to ignore that there’s going to be an extended debate about this and clearly would like to extend this past Judge Aileen Cannon’s November 30 deadline.

The District Court’s order indicates a presumptive end-date of November 30, 2022. The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022.

To be fair to Trump, the government’s plan seems to envision this process taking an extra week, until October 15 or so.

Trump wails even more shrilly about the fact that Dearie first asked why any Rule 41(g) litigation would happen in this Special Master proceeding rather than the docket where the warrant was issued and then asked for a list of documents Trump had declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Trump’s response to this is telling. He refuses to reveal which documents he declassified because (he claims — remember none of his lawyers are NatSec lawyers) it would be a defense to the merits of any subsequent indictment.

That ignores, of course, the obstruction statute, which asked for documents marked classified, not classified documents. But it’s also a confession that Trump’s lawyers don’t understand how classification works. If these documents were declassified, there would need to be a record.

This effort is significantly an attempt, pre-indictment, to make an argument about the classification status of the documents. If Cannon were to treat Trump’s claims of declassification seriously, for example (and everything we’ve seen from here says she would happily do so to help Trump out of his legal jam), it would make it far harder to sustain a claim that the documents were National Defense Information. But this stunt may soon meet diminishing returns, unless and until Dearie (who knows more about national security than any of Trump’s lawyers and Cannon) is fired.

As I noted in this post, in her order appointing Dearie, Cannon edited the boilerplate language in Special Master orders to give herself the authority to remove Dearie, unrelated to whether his process gets bogged down.

More interesting still: It says Trump won’t submit any declarations until he’s doing so in the process of claiming he owns these formerly classified documents. Cannon, of course, should have demanded that he at least assert that he had declassified some of these documents to sustain her usurpation of Executive Branch authorities, if not a log of which ones. If and when Cannon fires Dearie for overstepping her neat plan to stave off a Trump indictment, this point of dispute will become central. But by then, Cannon’s own nonsensical rulings may also be exposed.

There’s an even more telling dispute between the government and Trump, though. The government’s filing basically enters into this process with so much good faith that it squeaks: not contesting the conflicts of his lawyers, not disclosing what other parts of Cannon’s order they may still appeal, not even suggesting they’ll continue to appeal the order on classified documents if the 11th Circuit does not issue a stay. On that point, they say simply, they’ll return to it.

1 The government applied to the Eleventh Circuit for a stay last week and Plaintiff’s response is due tomorrow at noon, before the Master’s preliminary conference. If the Eleventh Circuit stays Judge Cannon’s order with respect to documents with classification markings, then the Special Master will not review the documents with classification markings. If the Eleventh Circuit does not stay the review of the documents with classification markings, the government will propose a way forward.

The government is approaching this review as if Dearie will quickly resolve all these issues and they can move on with their investigation. It’s worth noting, to the extent that the NSD lawyers involved have been involved in FISA proceedings, they may well understand how Dearie likes to work in consultative discussions not dissimilar from this one.

Much of the rest of the government filing basically addresses practicalities: How to share these documents. It proposes to get Relativity (a legal discovery software tool) to scan and upload everything within days. Trump will have to pay for the license, because he has to pay for all of this.

The government proposes that Trump’s team review 500 documents a day, which will result in a 22-day review time period after the documents are scanned, which would complete them all by around October 15, with a few days to start the scanning process.

But it’s clear Trump wants to do none of this work (indeed, he likely wants to delay until they’ve seen all the documents at once). That’s evident because he’s proposing a two week deadline for the 64 potentially privileged documents that (all sides note) the government provided Trump on September 16.

Plaintiff to create privilege log (with basis) for Exh. A documents: TBD (two weeks?)

This is insane! Trump wants two weeks to delay reviewing 64 documents he had already had three days to review by yesterday. According to both the government and Dearie proposals, Trump should have finished with that document review on Saturday.

I think there’s a non-zero chance Dearie gets fired, and I assume Trump just hopes that happens before the government has won a stay of Cannon’s order prohibiting them from accessing the classified records and before he has admitted that most if not all of these potentially privileged documents are not.

Axios reported that Trump believed Dearie would be suspicious of the FBI based on his experience with the Carter Page order, something I had already contemplated in this thread. Even if he were, though, he’d be suspicious within the context of the law. Moreover, as I noted, there was still plenty in the application to sustain suspicion in Page, including that he seemed to know in advance of the October surprise that WikiLeaks delivered on October 7 and he destroyed a phone as soon as the investigation into him became clear.

And unless and until he gets fired, Dearie seems to plan to make these legal issues public — something that never works out well for Trump.

“The Rule of Law is not assured:” The Cascading Constitutional Crisis Judge Aileen Cannon Deliberately Created

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See the important correction about the scope of DOJ’s motion for a stay, below. I’ve corrected this post in italics.

There will be some timeline clashes this week in the Trump stolen document case, each of which could spiral into a Constitutional crisis.

They arise, in part, from Judge Aileen Cannon’s order that Judge Raymond Dearie start his review of the documents with those marked classified.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate.

That’s because DOJ’s motion for a stay of Cannon’s order enjoining DOJ from doing any investigative work and sharing classified information — which was filed at 9:03PM on Friday — and any other yet-to-be-filed appeal of (parts of) her order will be proceeding even as Dearie scrambles to meet Cannon’s first deadline: to have a schedule in place by September 25.

Within ten (10) calendar days following the date of this Order, the Special Master shall consult with counsel for the parties and provide the Court with a scheduling plan setting forth the procedure and timeline—including the parties’ deadlines—for concluding the review and adjudicating any disputes.

On Saturday at 7:03PM — just over 22 hours after DOJ’s filing — the 11th Circuit ordered Trump to file his opposition to the motion for a stay by Tuesday at 12PM.

That deadline comes just two hours before a first meeting Judge Dearie scheduled in his courtroom in Brooklyn at 2PM on Tuesday.

Counsel are directed to appear before the undersigned in Courtroom 10A-S of the Brooklyn Federal Courthouse on Tuesday, September 20, 2022 at 2:00 PM for a preliminary conference in the above-captioned matter.

Counsel are invited to submit proposed agenda items for discussion by docketed letter to be filed before the close of business on Monday, September 19, 2022.

The 11th Circuit seems poised to move quickly. But unless they granted a stay as quickly as they ordered Trump to file, it would not stay the Special Master process.

Until they rule, though, Dearie will necessarily move towards taking some of the steps laid out in this thread from SecretsAndLaws:

  • Finding a SCIF, probably in Brooklyn, to make the classified files available and transferring them by hand
  • Finding a place to store the remaining seized 12,904 items and shipping them
  • Clearing and providing work facilities for anyone who will have to access the classified documents

SecretsAndLaw didn’t consider one aspect of Cannon’s order. Read literally, with the exception of the 64 potentially privileged documents, she required DOJ to share the originals of the seized material with Dearie, not copies.

That’s likely something DOJ will ask to clarify on Tuesday. It’s solvable, sort of. DOJ can likely find a SCIF in the EDNY Courthouse or US Attorney’s Office. But that’s already a tremendous ask: that the government turn over the original copies of highly sensitive documents lawfully seized with a warrant to another branch of government.

It’s the clearance process that will lead to conflict.

As DOJ noted in their motion for a stay, Trump’s lawyers may be witnesses to the crimes under investigation.

Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

We already know Evan Corcoran is — at least — a witness. But a passage in the warrant affidavit unsealed last week reveals that it called Christina Bobb “PERSON 2” (Mark Meadows is the best candidate to be “PERSON 1,” because we know he was directly involved with returning, or not, documents to NARA earlier this year). Given that it refers to Corcoran as “FPOTUS COUNSEL 1,” there’s the possibility there’s an “FPOTUS COUNSEL 2” discussed as well (the FBI agent did not use numbers for all descriptors; it called Jay Bratt “DOJ COUNSEL,” with no number). If that’s right, it may mean Jim Trusty — the only one of Trump’s lawyers known to have held clearance in recent years and unlike Chris Kise, already representing Trump on August 5 when the affidavit was written — also made himself a witness in this investigation.

Meanwhile in 2020, Kise — the guy Trump just uncharacteristically ponied up a $3 million retainer to — registered under FARA to represent Venezuela on sanctions issues before Treasury. That would normally make him ineligible for a clearance, much less one to access some of the most sensitive documents the US owns.

In other words, it’s possible that none of Trump’s attorneys, not even Jim Trusty, are eligible for clearance in this matter. And when I say ineligible, it’s not a close call. There’s no reason DOJ should be forced to share these materials with someone who was an agent of a foreign power. There’s even less reason to share them with someone who might be implicated in obstruction himself. In a normal situation, Trump would be told to go find a lawyer with clearance (with the added benefit, to him, that they might know a bit about national security law).

DOJ routinely refuses to make classified materials available in civil suits. And anytime someone tries to order them to do so, they jump through a great many hoops to avoid doing so. In the al-Haramain case suing for illegal surveillance under Stellar Wind, one that has many direct applications to this one, that was true even when the plaintiff had already seen the classified document, as Trump has. In al-Haramain, there was even a cleared lawyer, Jon Eisenberg, with no ties to al-Haramain’s suspect activities, whom the government resisted sharing the key document in question.

The government will do — historically, has done — a great deal to avoid the precedent of a District Court judge ruling that it needs to grant even cleared lawyers the Need to Know very classified information.

And I have no reason to believe it will be different here.

All of this wouldn’t necessarily pose a risk of Constitutional crisis if not for a tactic that Judge Cannon has already used to create a harm that she can insist on remedying.

As I’ve noted, twenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

But Cannon prohibited DOJ from doing so, because she wanted to deal with this all “holistically.”

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

In her order denying DOJ’s request for a stay of her injunction (and several times before that), Cannon pointed to precisely these reserved potentially privileged items to find a harm to Trump that she needed to address.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)] [my emphasis]

I’ve written about how Cannon outright invented the claim that the medical and tax records were personal property. Both inventories thus far provided to Trump comply with the law (and, importantly, Custodian of Records Christina Bobb signed the first with no complaint about the accuracy or level of detail, arguably waiving any complaint).

But the single solitary reason why the filter protocol remained unavailable to Trump’s team on September 15, when Cannon wrote this order, is because she prohibited DOJ from sharing it with Trump over two weeks earlier.

Cannon, personally, created the harm, then used that harm to justify her intervention to address it.

And if you don’t think she plans to use the harm she created to justify continued intervention, consider that she still hasn’t ruled on DOJ’s request to unseal the privilege team status report, filed over ten days ago, which would be necessary for DOJ to address this ruse before the 11th Circuit (and rebut her false claims that the filter team missed anything). And she ordered Dearie — “shall” — to first address the classified documents even while acknowledging that her order was going straight to the 11th Circuit.

The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “[i]f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

Ordering Dearie to start with the classified documents feigned reasonableness on Cannon’s part. But what it also did is ensure these separation of powers issues come to a head within days, not weeks, possibly before any 11th Circuit ruling.

A reasonable judge, someone genuinely interested in a third party reviewing this stuff as expeditiously as possible, would start with the items already identified as potentially privileged, because that’s the single set of documents that does not implicate any separation of powers issues (and also the single set of documents that is virtually guaranteed not to be included in DOJ’s appeal).

So in addition to the motion for a stay and, at some point, the actual appeal of other parts of Cannon’s order — with complaints about the order to review classified documents, review for executive privilege, and the order prohibiting criminal charges, all of which Cannon concedes are Executive Branch authorities even while she usurps authority to override the Executive — the way Cannon has set this up may elicit several other appeals of the implementation of her order, separate from the initial appeal of the order itself:

  • To turn over possession of materials owned by the Executive Branch to Dearie
  • To clear Trump’s lawyers and anyone else not otherwise eligible for clearance
  • To grant those people Need to Know the contents of these documents

Ironically, Cannon’s Constitutional arrogance may hasten precisely the thing she claims to be preventing.

That’s because the single quickest way to avoid all these problems would be to charge Trump if and when the 11th Circuit (or SCOTUS) grants a stay of her injunction. As soon as that happens, all of this review would get moved under the District Court judge overseeing the criminal case (and Cannon’s intransigence makes it more likely DOJ would file such a case in DC).

DOJ really could not charge Trump on Espionage until that time (or until they seize other classified documents he has been hoarding, which they allude to in their motion for a stay). That’s because the the key proof that Trump refused to give the classified documents back is the failure to comply with the May 11 subpoena. Even any obstruction charge might require possession of (not just permission to use) the actual documents to prove the case. But DOJ may hasten such a decision at such time as they are permitted, to avoid the other Constitutional problems Cannon deliberately created.

As we have all that to look forward to this week, it’s worth watching or reading the remarkable speech Merrick Garland made with little fanfare at Ellis Island on Saturday, after he administered the Oath of Allegiance to new citizens. After contemplating that his grandmother would not have survived the Holocaust if not for the Rule of Law in the United States, Garland focused on its fragility.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

Having started the speech focused on his forebears, the Attorney General closed by addressing the urgency of “doing what is difficult” for the generations of Americans who come after us.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

And then — even as the former President was riling up his cult in Ohio — the Attorney General was contemplating, on the verge of tears, that the rule of law is not assured.

Things could get really crazy in weeks ahead.

Update: I’ve been corrected about something in DOJ’s motion for a stay: They requested that the 11th Circuit stay both Cannon’s injunction and her order that they share classified information with Trump.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.

In Motion for a Stay, DOJ Raises Prospect that Trump Leaked Classified Documents

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In the government’s motion for a stay submitted to the 11th Circuit last night, it suggested the investigation into Trump’s stolen documents may have expanded to focus on whether the former President shared the content of highly classified documents with others.

It describes that Aileen Cannon’s order only permitted the government to review the classified documents for hypothetical risk of future disclosure. It notes that that would prohibit the government from investigating whether these documents have already been disclosed. It then raises the empty folders as a problem that must be solved, in part by identifying the patterns of Trump’s theft to identify what else he may have stolen.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Significantly, the government doesn’t even use language to suggest that these documents were compromised, without Trump’s involvement — that some fake Rothschild or a hotel valet had snuck into the closet and stolen documents. It suggests these documents may have been disclosed, intentionally and knowingly.

This is not the only hint in the filing that the investigation may have expanded beyond mere unauthorized retention of classified records.

The motion also describes that Trump’s lawyers might be witnesses, plural, suggesting that Jim Trusty could be hidden in the search affidavit as the FPOTUS Counsel 2 implied by the affidavit’s description of Evan Corcoran as FPOTUS Counsel 1 (Christina Bobb is referred to merely as Individual 2).

The government came very close to saying that Judge Cannon has prohibited the government from preventing leaks in process.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Trust: In Bid for Stay, DOJ Likened Trump to Catastrophic Intelligence Compromise

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There’s a detail in DOJ’s request for a stay of Judge Aileen Cannon’s injunction on using stolen Trump documents to investigate Trump that hasn’t gotten enough attention.

A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]

[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4

4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances.”).

Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.

But the analogy DOJ made between Trump and Pho, by invoking the letter, is even worse.

I’ve written about Pho, who with Hal Martin, is believed to be the source of the files leaked by Shadow Brokers and, with them, two devastating global malware attacks, WannaCry and NotPetya.

Over a month ago, I suggested that the IC likely had Pho and Martin in mind as they considered the damage Trump may have done by doing the same thing; taking highly classified files home from work.

[T]he lesson Pho and Martin offer about how catastrophic it can be when someone brings classified files home and stores them insecurely, no matter their motives — are the background against which career espionage prosecutors at DOJ will be looking at Trump’s actions.

But with the footnote, I’m no longer the only one to make such an analogy. DOJ did so too, in an unsuccessful effort to get Judge Cannon to understand the magnitude of the breach she was coddling.

As you read this letter, replace Pho’s name with Trump’s. It reads almost seamlessly.

That’s the analogy DOJ made between Trump and someone his own DOJ prosecuted aggressively.

Pho retained classified information outside of properly secured spaces and by doing so caused very significant and long-lasting harm to the NSA, and consequently to the national security of the United States.

[snip]

[T]he exposure of the United States’ classified information outside of secure spaces may result in the destruction of intelligence-gathering efforts used to protect this nation. Mr. Pho, who voluntarily assumed this responsibility, ignored his oath to his country and the NSA by taking classified information outside of secure spaces, thereby placing that information in significant jeopardy.

[snip]

Mr. Pho’s conduct in improperly and unlawfully retaining national defense information, which included highly classified information, outside of secure space had significant negative impacts on the NSA mission.

[snip]

Techniques of the kind Mr. Pho was entrusted to protect, yet removed from secure space, are force multipliers, allowing for intelligence collection in a multitude of environments around the globe and spanning a wide range of national security topics. Compromise of one technique can place many opportunities for intelligence collection and national security at risk.

By removing such highly classified materials outside of secure space, Mr. Pho subjected those materials to compromise. It is a fundamental mandate in the Intelligence Community that classified material must be handled and stored in very specific and controlled ways. If classified material is not handled or stored according to strict rules, then the government cannot be certain that it remains secret. Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.

In addition, NSA was faced with the crucial and arduous task of accounting for all of the exposed classified materials, including TOP SECRET information, the unauthorized disclosure of which, by definition, reasonably could be expected to cause exceptionally grave damage to the national security. Accounting for all of the exposed classified material was necessary so that NSA could attempt to assess the damage that resulted from the classified and diverted critical resources away from NSA’s intelligence-gathering mission.

The detrimental impacts of Mr. Pho’s activities are also felt in other less tangible ways, including a loss of trust among colleagues and essential partners who count on NSA to conduct its mission.

[snip]

Trust is an essential component of all of the work that is done by NSA employees. It is affirmed by our sworn oath to uphold and defend the Constitution, sealed by our signed obligations to protect national defense information.

[snip]

This trust extends to a circle with other U.S. intelligence agencies, who share valuable intelligence insights; military personnel, who share details of their operational plans; and international partners, who share their sovereign secrets with us, all for common objectives.

[snip]

Future decisions about sharing will be weighted with considerations of the breach of trust by one party.

There’s little that distinguishes Pho’s compromise from Trump’s. While Trump didn’t load all this stuff online like Pho did, he brought it to a thinly-protected country club aggressively targeted by foreign intelligence services — a more obvious target than Pho’s desktop computer.

And whether the IC knows about the extent of the compromise right now, or whether something he made available will shut down shipping and hospitals and drug manufacturing in two years time, as Pho’s compromises did, the IC has to act as if these files have already been compromised.

That’s what the footnote says.

As I said, Trump’s own DOJ ratcheted up prosecutions in the wake of the Pho and Martin compromises. And now Trump — along with a judge he appointed — are trying to make sure he evades the same justice that his own DOJ demanded of others.

Update: Clarified that Martin and Pho are believed to be the source of the files leaked by Shadow Brokers, but not the leakers themselves.

Go to emptywheel resource page on Trump Espionage Investigation.

That Other Bitter Jan6er about to Start Trial for Bringing Classified Documents Home from Work

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There’s a guy in Florida who participated in the attack on democracy on January 6 about to go on trial on October 3 for hoarding classified documents in his home.

No, not that guy.

I’m talking about Jeremy Brown, the Oath Keeper charged with trespassing for January 6, but also charged with possession of illegal weapons and classified documents in Florida. Brown’s is an instructive example of what normally happens when a disgruntled former government employee hoards government secrets and allegedly plots the overthrow of constitutional government.

It started with a misdemeanor arrest warrant arising out of the January 6 grand jury investigation in DC, just for trespassing. Upon searching Brown’s house and RV, FBI agents saw several firearms and some grenades that cooperating Oath Keeper witness Caleb Berry had told investigators that Brown brought to January 6 in his RV. So the FBI got another warrant the next day to seize the weapons.

On October 19, DOJ indicted him for the weapons. They found a bunch of documents in a briefcase in that search, though, and after six months, they superseded Brown, adding four counts of 18 USC 793e, the same crime for which that other guy in Florida is being investigated.

It may have taken them six months to determine whether the 18-year old documents from a deployment to Afghanistan were still classified. Or — as explained below — they may have considered but decided not to charge him for a report Brown bragged about while drunk five yers ago. That process of deciding which documents to charge (what Brandon Van Grack revealed recently are called “Goldilocks” documents) takes some time and requires the input of the agencies whose documents would be charged.

That’s part of the discussion going on right now about the documents Trump took home.

Like many Jan6ers, Brown spent much of the last year challenging his detention and searching for increasingly MAGAt lawyers, ultimately settling on representing himself, pro se. Brown challenged the search of his home — but not the seizure of those classified documents. The two sides have also had a fight about how much of the money that Brown grifted by fund-raising off his arrest he or his girlfriend could access, rather than pay off his court appointed lawyer. Brown’s girlfriend also successfully fought to have a rifle belonging to her returned to her.

It’s not just Trump who tries to get their personal stuff back after an invasive search.

The case has only recently turned to the classified information that will be debated at trial. For example, the government is seeking to admit related evidence (called 404(b)), about the time in 2017 when investigators came to his home based on a suspicion he had classified information. They didn’t find the classified document in the place he permitted them to look, but he refused to let him search his whole house.

On October 17, 2017, Special Agents from the Air Force Office of Special Investigations conducted a voluntary interview of the Defendant at his residence, which was the same residence that was searched in this case. The purpose of the interview was to determine whether the Defendant possessed any classified information and, if so, to retrieve the information and return it to the government entity to which it belonged.

During the interview, the Defendant denied possessing any classified information, and he further stated that he did not recall telling anyone that he possessed classified information. The Defendant admitted that he had drafted a classified trip report about a missing soldier, and that he may have discussed that report with others. The Defendant stated that it was possible that he may have discussed this classified information with one of his friends while he was intoxicated, and that it was possible that his friend had misconstrued that conversation to mean that he had classified information in his home. Agents asked the Defendant whether he had that classified memorandum or any other classified information in his possession, and he stated that he did not.

At the request of the interviewing agents, the Defendant consented to a search of the storage containers in his shed, which he stated contained all of the items that he had removed from his office upon his retirement from the military in 2012. Agents searched the storage containers, and they did not find any classified information. Agents requested permission to search the remaining residence and other areas on the property. The Defendant refused to consent to the search of anywhere else on the property.

The government wants to introduce evidence of this earlier search as proof he knew he had the classified documents, fulfilling one element of the offense — precisely the same thing DOJ would do with the June 3 meeting if they were ever to charge Trump.

What’s more, the Defendant’s 2017 refusal to consent to a search of his residence for classified information further establishes his consciousness of guilt for the charged crimes, which is relevant to proving that he willfully retained the documents, as required by the statute. See 18 U.S.C. § 793(e) (“Whoever having unauthorized possession of, access to, or control over any document . . . . relating to the national defense . . . willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.”).

This is exactly how the June 3 meeting would function in a Trump prosecution. Before that, he might have been able to claim he didn’t know he had the documents or hadn’t refused to hand them back. After that, it’s far easier to make the case. That’s why it’s virtually impossible to charge Trump for 18 USC 793 for the earlier possession of classified documents.

Brown objects to that evidence coming in because, he says, the documents that he did brag about in 2017 aren’t classified in the form in which they were found in his briefcase, because he wrote them himself.

The documents that are the subject of the 404(b) notice allegedly were found in the Defendant’s possession along with the alleged classified documents are the subject of the criminal charges in the Indictment.

[snip]

The 404(b) documents that the Government chose not to charge the Defendant with, probably because in the form they are in, are not classified, were allegedly in the same briefcase as the charged documents. In 2017, the Defendant was discussing documents that he did have in his possession that he himself had marked “SECRET,” that he had authored, and that the Government decided did not warrant criminal charges for him possessing when they found the documents.

That’s probably not true: the documents are probably just harder to prove to be classified and possibly a good deal more sensitive, given that Brown was bragging about them.

Again, this is something we might see with a Trump prosecution: The government might charge less sexy documents that could be shared with a jury, but reference the far more damning ones stored with the charged documents.

The government has also recently turned to how they’ll persuade the jury, which is the ultimate judge, that these documents constitute National Defense Information. Here’s the standard the jury will be asked to consider.

To establish that the Documents contained “information relating to the national defense,” the government need show only that (1) the information is directly and reasonably connected with the national defense, and (2) the information was closely held by the government. See United States v. Campa, 529 F.3d 980, 1004-05 (11th Cir. 2008) (“‘information relating to the national defense’ . . . is limited to information that the government has endeavored to keep from the public”). The Supreme Court has held that “national defense” is a “generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” Id. (quoting Gorin v. United States, 312 U.S. 19, 28 (1941)).

To prove this, the government wants to have a witness attest the documents remain classified.

At trial, the government anticipates calling an expert witness to testify that the Classified Documents were and remain classified, and that, as a result, they were subject to access restrictions, specific handling and storage requirements, and other protections designed to avoid the disclosure of information and material relating to the national security.

They want the witness to explain the documents. While that person testifies, they want to share the documents with the jury under what is called a Silent Witness Rule. They’ll be handed binders — the one time I’ve seen this process, the documents were in the brightly colored classified folders like the ones Trump stole — with the actual documents inside, but then have to return the binders as soon as the witness is done.

As part of this testimony, the government’s expert will testify about the Classified Documents. To enable the jury to adequately weigh this testimony, the government will provide copies of the Classified Documents to the jurors. The Court and the defense will also receive copies of the Classified Documents. However, because public disclosure of the Classified Documents reasonably could cause serious damage to national security, the Classified Documents cannot be declassified for the trial.

[snip]

First, the government would provide each juror, the Court, and the defense with a binder of unredacted copies of the Classified Documents. The same process was followed in Mallory, 40 F.4th at 173, and it would enable the jurors to examine the Classified Documents while the government elicits unclassified testimony about the same from its expert witness. As in Mallory, the defense would be permitted to follow the same procedures during cross examination and/or with its own cleared expert, should the defense choose to retain one. Id. This procedure ensures that the jury has full access to the information it needs to fulfill its obligations. Id. at 178 (“But a review of the record reveals that the silent witness rule denied the jury none of the information on which Mallory based his defense.” (emphasis in original)). Second, the government will have Bates and line numbers added to the Classified Documents to enable the witness, the government, and the defense to direct the jurors to specific portions of the material.

While that happens, the public will have access only to heavily redacted versions of the documents.

The SWR is fairly controversial. In Jeffrey Sterling’s case (the one time I’ve seen it), it accorded the documents a kind of mystique and also limited the amount of time the jury could spend examining the documents, which weren’t related to the charged offenses in the case.

But (as the government explained) the SWR is one of the few tools the government has to prove to a jury that information is classified so they can hold someone accountable for hoarding such documents after he leaves government.

Because the Defendant is charged with violation 18 U.S.C. § 793(e), the government must establish that the Classified Documents found in his RV contain information relating to the national defense. Thus, the Classified Documents will necessarily be a part of the upcoming trial. Declassification of these documents is not an option given the national security risks presented by disclosure. Nor can the Classified Documents be redacted in a manner that would mitigate the national security risks, while also preserving the jury’s ability to meaningfully evaluate whether the Classified Documents relate to the national defense. This is exactly the sort of Hobson’s choice—protecting the national security versus pursuing charges under the Espionage Act—that CIPA was designed to prevent. See, e.g., United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) (“Prior to CIPA, there was no way to evaluate the cost, by way of damage to the national security and the nation’s foreign relations, should the prosecution be initiated or pursued.”).

Brown is just an angry old former Green Beret who has been stewing on his bitterness with all the keepsakes in his RV. He’s not the former President. Though they both seem to spend a lot of time stewing with their treasures.

But the same complexities arise even in his case. And even with Brown, prosecuting someone for hoarding classified documents he brought home from work is not easy.

Update: Added more contextualization of how this would work with Trump.

Update: Another filing in the Brown case provided some context for how, the government claims, he left the Special Forces. He loaded some porn onto a DOD computer, did not contest the charges, and so was not permitted to re-enlist. DOJ ties the incident directly to the classified documents found in his RV.

While in the Special Forces, over the course of eight months from September 2010 to April 2011, the Defendant “knowingly and willfully placed approximately 67 unauthorized files on the [Department of Defense computer system] shared drive.” See Exhibit 1. The military determined that the 67 files that the Defendant had uploaded contained “pornographic photos and videos.”

On September 29, 2011, the Defendant received a General Officer Memorandum of Reprimand (“GOMR”) for these actions, attached hereto as Exhibit 1. The GOMR determined that, but uploading pornography to the military computer systems, the Defendant had “compromised the high standards of personal conduct and exemplary behavior expected of a Senior Noncommissioned Officer and Special Forces.” It further determined that the Defendant’s behavior was “inexcusable and incompatible with the maintenance of high standards of performance, military discipline and readiness,” and had “demonstrated extremely poor judgment, a lack of self-discipline, lack of professionalism and set an extremely poor example for all Soldiers.”

[snip]

The Defendant’s commanding officer, wanting to ensure that the Defendant’s children would not lose their pension, intervened to prevent the Defendant from being dishonorably discharged. As a result of this GOMR, however, the Defendant was barred from reenlistment in the military.

The Defendant was angry about the GOMR, and he later claimed that the GOMR was levied against him in retaliation for the contents of a classified memorandum that he had written. The Defendant finished out his term of enlistment and retired from the Army in 2012.

And it provides more detail on how and where it found the documents.

On September 30, 2021, federal agents executed a search warrant at the Defendant’s residence and recreational vehicle (R.V.). In the bedroom of the R.V., agents located an ammunition carrier containing two M-67 fragmentation grenades. On a couch in the R.V., agents located an illegal short-barrel shotgun. Next to the shotgun, agents located a briefcase. Inside the briefcase, agents located photographs and personal papers of the Defendant. Among those papers, agents found a paper copy of a classified Memorandum concerning a missing soldier that the Defendant had authored, which was marked “SECRET,” as well as a C.D. marked as classified with a red “SECRET” sticker. Subsequent review of that C.D. revealed that it had numerous classified documents that the Defendant had retained from his time in the military.

If you believe the government’s story (though stories of how DOD disposes of guys like Brown are always suspect), he brought these documents home nursing a grievance, certain he was not fired for cause.

It’s another thing he has in common with Trump, I guess.

Aileen Cannon’s Special Master Is Designed to Preempt Decisions Reserved for a Jury

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As I reported, Aileen Cannon denied the government’s motion for a stay and issued her order laying out what she expects Raymond Dearie to do. Having considered her order, I’m fairly certain that this is a plan not for a Special Master, but rather a plan to seize back the materials, and along the way, punish the government for having the audacity to investigate Trump, much less tell him what is and is not classified.

Here are the relevant documents and some other Special Master materials to compare to.

Cannon opinion denying stay

Cannon’s order of appointment

Raymond Dearie declaration

Joint response on Special Master

Trump proposal for Special Master

DOJ proposal for Special Master

Kimba Wood’s order of appointment for Michael Cohen (docket)

Paul Oetken’s order of appointment for Rudy Giuliani (docket)

Analisa Torres’ order of appointment for Project Veritas (docket)

Before I lay out how Cannon has set up this SM review to allow herself the means to steal US government property and punish the government, consider the following:

  • Cannon has already upended the logic of a lawful warrant, in which the government has presumptive retention of the seized materials, by instead assuming that the government can only retain materials they prove ownership of. Cannon has largely ignored the nature of the suspected crimes here, and the degree to which her decisions would claw back materials that are evidence of a crime.
  • Cannon has created the harm she intends to correct, most obviously by refusing to let the government share potentially privileged material, and then pointing to their retention of potentially privileged material as the harm she must address.
  • Cannon has already told the government, repeatedly, that she can override their classification decisions and withhold materials based on an Executive Privilege claim that under the Presidential Records Act, would prove it belongs in NARA (indeed, at each step, Cannon has been more insistent that Trump has EP claims than he has).

Cannon’s order denying the stay continues those three stances. She cited her own claim — based off misrepresentations and inventions — that were disputes about privilege and non-evidentiary personal material.  Rather than demand that Trump show ownership and harm (the standards she needed to find under binding precedent), she instead said he simply hadn’t had a chance to make his case:

Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials

Again, it was Cannon’s own order that forestalled a privilege discussion, and she now cites it to justify her decision. Cause the harm, then fix it. Finally, she lays out a claim that the government does not have a monopoly on determining what is classified.

The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them.

From the very start, Aileen Cannon has asserted — often more aggressively than Trump — that the government cannot make decisions with regards to classification and privilege that, under the Constitution, are reserved for the government.

With all that in mind, consider the following aspects of her order. First, taken literally, her order instructs the government to give Dearie the actual documents seized, not copies.

At a minimum, the Government shall make available to the Special Master the Seized Materials, the search warrant executed in this matter, and the redacted public versions of the underlying application materials for the search warrant. [my emphasis]

Effectively, she took out the government’s use of the word “copy” in this passage.

In particular, the government will provide to the Special Master a copy of the Seized Materials without Classification Markings, the search warrant executed in this matter, and the redacted public version of the underlying application materials for the search warrant.

In both the Rudy and Cohen Special Master reviews, the government provided the Special Master copies. Admittedly, those reviews were largely digital evidence, but her order states the government only needs to give copies of potentially privileged items to Dearie.

The Privilege Review Team shall provide copies of the potentially privileged documents to Plaintiff’s counsel. [my emphasis]

That is, taken literally, Aileen Cannon is ordering the government to deliver 11,258 government documents — the originals — into the possession of a Special Master controlled by her, the disposition of which she will determine. That disposition will, in many ways, pertain to classification and Executive Privilege, topics about which she has already asserted she can override the government.

The first thing Dearie is to do after receiving these materials is to double check the government’s inventory.

Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;

I’ve not seen this in Special Master reviews before. It seems designed to give Trump and Cannon reason to invent a Fourth Amendment harm (again, at the Special Master stage, not at a suppression stage) where there is none.

For each of the reviews she is asking Dearie to conduct, the two sides present their designations. If they agree, the items are disposed of according to the “parties’ agreement.”

If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement.

[snip]

If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement.

The problem with even this part of her order is that the parties don’t agree what happens with the various categories! Trump’s proposal only addresses what happens with Presidential Records. He concedes they should go to NARA, but he wants to be able to challenge access once they get there.

Once the Special Master has completed the review process set forth in this Order and any dispute has been fully adjudicated, any documents identified as Presidential records will be returned to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2204, will be followed to determine the assertion of any restriction on access.

The implication is that personal items — even items responsive to the warrant — will go back to Trump’s possession.

DOJ doesn’t actually address what happens with personal items, aside from giving NARA a chance to dispute Trump’s claim. But it only envisions returning privileged items, and in that case, only those that are attorney-client privileged.

iii. For any documents and items claimed by Plaintiff as personal documents and items – not privileged, the Special Master will review the claim in consultation with NARA;

iv. For any documents claimed by Plaintiff as personal documents – privileged as attorney-client communications or qualified work-product immunity, the Special Master will submit those additional potentially privileged documents to the government’s filter team and follow the process in 4(a);

v. For any documents identified as Presidential records – not claimed by Plaintiff as subject to Executive Privilege, those documents shall remain in custody of the government, with copies sent to the Archivist of the United States, and may be used by the government forthwith for any lawful purpose, including in the government’s criminal investigation;

vi. For any documents identified as Presidential records – claimed by Plaintiff as subject to Executive Privilege, copies of those documents will be sent to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2201 et seq., may thereafter be followed.

Cannon, on her own, gave Dearie authority to make Rule 41(g) determinations, meaning Trump can demand stuff lawfully seized under a warrant rather than waiting until he is charged and suppressing it.

Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;

Because Cannon didn’t decide what will happen with various categories of documents, it is guaranteed there will be disputes.

That may be by design. In cases where there is a disagreement, Dearie makes a decision, but if one side still disagrees, then it goes to Cannon. She will not review his recommendation in such cases, she will make a de novo determination.

If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement. If the Government disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision.

To be clear: both sides asked Cannon to apply a de novo standard in case of a challenge to Dearie’s ruling (it may be standard for that circuit). It is a problem primarily because she hasn’t determined what will happen to various categories of items. And about several of those items — such as classified documents that Trump claims he owns — she has already said she sides with him.  So all Trump has to do to steal classified documents, Aileen Cannon has made clear, is appeal Dearie’s decisions, and she’ll do what she has said she would do from the start: override the government’s decisions about both classification and Executive Privilege.

Cannon’s stated predisposition in the matter is problematic for another reason. There’s boilerplate that appears at the end of Special Master appointments. This is Trump’s version (DOJ’s version has stronger language about a protective order).

15. The Special Master will be discharged or replaced only upon order of this Court.

16. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment and cooperate fully with the Special Master in the performance of their duties.

17. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment, cooperate fully with the Special Master in the performance of their duties, and comply with the judicial protective order that shall follow – which will set forth restrictions on the disclosure by any person with access to Seized Materials and any documents generated in connection with this Order of Appointment.

18. The Court reserves the right to remove the Special Master if the Court finds that the parties are not expeditiously completing this work. [my emphasis]

But in her order, Cannon replaced the boilerplate about removing the Special Master if things are not moving along with language that gives her authority to remove him unbound by any specific reason.

17. The Special Master shall be discharged or replaced only upon order of this Court. The Court reserves the right to remove the Special Master.

18. The parties and their agents and employees shall faithfully observe the requirements of this Order and fully cooperate with the Special Master in the performance of their duties.

19. Consistent with and in furtherance of this Order, the Court will separately enter a judicial protective order that sets forth restrictions on disclosure for both the Special Master and the parties, and any agents or employees thereof. The parties shall submit a proposed protective order within five (5) calendar days following the date of this Order. [my emphasis]

In other words, the same judge who has unilaterally decided that she can override government determinations about classification and Executive Privilege has also reserved for herself the right to replace Dearie for no reason.

And to be honest, while the statement Dearie signed is entirely boilerplate, I am concerned that if there are materials pertaining to Carter Page’s FISA in there (I think it likely that Trump had a copy somewhere, though both earlier batches of documents included FISA information so the government may already have it back), then it would represent a conflict, because it might make him a witness to claims Trump wants to make about injury to himself.

3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

At the very least, the terms of this order, combined with Cannon’s repeated insistence that she has the authority to override the government on issues of classification and privilege means she will decide, herself, issues that would go to the core of the crimes of which Trump is suspected. In Espionage Act trials, juries get to decide whether something is National Defense Information, but Cannon has set this review up such that she can decide all those issues on her own, without a jury, before Trump is ever charged.

But it is really really easy to see how Cannon replaces Dearie with Paul Huck Jr, who is basically a Republican lobbyist, and with him starts to invent more harms she can then adjudicate. And at that point, Judge Cannon would use this Special Master review to make yet more false claims of abuse on the part of DOJ.

Go to emptywheel resource page on Trump Espionage Investigation.

Judge Aileen Cannon Deems Grand Jury Subpoenas Toilet Paper

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In Judge Aileen Cannon’s order blowing off national security in favor of Donald Trump’s claims of being a victim, she never once names the crimes under investigation.

Not the Espionage Act, 18 USC 793.

Not removing government documents, 18 USC 2071.

And definitely not obstruction, 18 USC 1519.

Her silence about the crimes for which a magistrate judge found probable cause is critical to the scheme behind her order.

That’s because — in a breathtaking paragraph — she suggests that the classification marks on the documents Trump stole are up for debate.

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion. [my emphasis]

Had she discussed the Espionage Act, she might consider that it doesn’t matter whether Trump claims to have declassified the documents. What matters is if they are National Defense Information.

Cannon’s silence about obstruction is even more outlandish. No one contests that these documents are marked classified! Trump has not even formally contested they’re classified. But the entire question is what to do about documents marked classified.

If the are marked as classified — which no one contests! — then they were responsive to the May 11 subpoena. And if Trump withheld documents responsive to the May 11 subpoena, he committed the crime of obstruction.

And that’s why Aileen Cannon doesn’t want to talk about the crimes under investigation here. Because once you do, then there’s no question but those documents marked as classified are either evidence of the crime, Espionage Act, or the crime, obstruction — and probably both.

Go to emptywheel resource page on Trump Espionage Investigation.

Aileen Cannon Orders Government to Share Classified Information with Trump’s Counsel

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I’ll have a lot more to say about Judge Aileen Cannon’s order blowing off National Security in favor of Trump’s half-assed claims of being a victim. Her order is a radical assault on national security and rule of law.

But for the moment, I want to look at this part of her work flow order.

Make available for inspection by Plaintiff’s counsel, with controlled access conditions (including necessary clearance requirements) and under the supervision of the Special Master, the documents marked as classified and the papers attached to such documents; and

It orders the government to make the classified documents stolen by Trump available to his attorneys, including Evan Corcoran, who is either a witness or a subject of this investigation. None are known to be cleared. Aside from Jim Trusty, it’s not clear how quickly any of them can be cleared.

In her order, she claims this involves sharing only with the Special Master, Raymond Dearie.

The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless

But these are completely contradictory. One document says the government must share classified information with Trump’s people. The other document says, “it’s only Raymond Dearie, don’t worry your little heads.”

And she just waves her hands and says the government must share this stuff, “including necessary clearance requirements,” without acknowledging that she doesn’t get to decide that. If the government says that none of Trump’s lawyers can be cleared, they get to say that (again, I expect fewer concerns about Trusty, but major concerns about Corcoran).

That’s par for the course of this order.

Go to emptywheel resource page on Trump Espionage Investigation.

Evan Corcoran’s Two May 25 Stall Letters

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A number of people have observed that the language in the newly unsealed parts of the Trump search warrant about what Evan Corcoran told Jay Bratt and others on June 3 emphasizes that “he was advised” certain things that (we now know) turned out to be false.

During receipt of the production, FPOTUS COUNSEL 1 stated he was advised all the records that came from the White House were stored in one location within Mar-a-Lago, the STORAGE ROOM, and the boxes of records in the STORAGE ROOM were “the remaining repository” of records from the White House. FPOTUS COUNSEL 1 further stated he was not advised there were any records in any private office space or other location in Mar-a-Lago. The agents and DOJ COUNSEL were permitted to see the STORAGE ROOM and observed that approximately fifty to fifty-five boxes remained in the STORAGE ROOM. [5 lines redacted] Other items were also present in the STORAGE ROOM, including a coat rack with suit jackets, as well as interior decor items such as wall art and frames. [my emphasis]

For comparison, here’s how that exchange was described in DOJ’s response to Trump’s motion for a stay.

After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched. As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained. [my emphasis]

On August 8, FBI emphasized that Corcoran was simply describing what “he was advised.” By August 30, DOJ summarized what Trump, in the person of his attorney, “represented.”

The earlier emphasis on what Corcoran was told lends weight to the interpretation that DOJ believes he is a witness, not a subject, to an obstruction investigation. Yes, if he genuinely was lied to, then he’s probably safe from any criminal exposure himself, but will likely, eventually, have to explain that to investigators.

But that’s not the only thing notable about the newly unsealed sections, as pertains to Corcoran.

For example, his prohibition on searching boxes was not unsealed. Neither in that passage nor in any other place in the unsealed affidavit does the description of how Corcoran refused to let Bratt and the three FBI agents open any boxes appear (I’ve bolded how it appeared in DOJ’s response). Some of the five redacted lines of the paragraph describing the storage room likely describe all the reasons why the storage room doesn’t comply with the CFR on storing classified documents. The coat rack and the wall art are likely included as evidence that the storage room was not exclusively available to those with a Need to Know the classified information Trump was storing in the room. But somewhere, in that paragraph or in another one, the affidavit almost certainly describes that Corcoran prohibited the FBI from opening the boxes. It would be pertinent to FBI’s request to search what was really in those boxes. So a description that Corcoran prohibited the FBI from looking is almost certainly in the affidavit, but remains redacted, even though DOJ’s claim that Corcoran prohibited the FBI from looking inside the boxes was made public in DOJ’s response.

If that’s right, it suggests the FBI must still consider that refusal to be of investigative interest, and so redacted it.

It’s a third reference to Corcoran, though, where the newly unsealed language provides most interesting new context.

51. DOJ has advised me that, on May 11, 2022 an attorney representing FPOTUS, “FPOTUS COUNSEL 1,” agreed to accept service of a grand jury subpoena from a grand jury sitting in the District of Columbia sent to him via email by one of the prosecutors handling this matter for DOJ “DOJ COUNSEL.” The subpoena was directed to the custodian of records for the Office of Donald J. Trump and it requested the following materials:

Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings including but not limited to the following: Top Secret Secret Confidential Top Secret/SIG/NOFORN/ORCON Top Secret/SI-G/NOFORN Top Secret/HCSO/NOFORN/ORCON Top Secret/HCS-O/NOFORN Top Secret/HCSP/NOFORN/ORCON, Top Secret/HCS-P/NOFORN Top Secret/TK/NOFORN/ORCON Top Secret/TK/NOFORN, Secret/NOFORN, Confidential/NOFORN TS TS/SAP TS/SI-G/NF/OC TS/SI-G/NF TS/HCSO/NF/OC TS/HCS-O/NF TS/HCS-P/NF/OC TS/HCS-P/NF, TS/HCS-P/SI-G TS/HCS-P/SI/TK TS/TKINF/OC, TS/TK/NF S/NF, S/FRD S/NATO S/SI, C, and C/NF.

The return date of the subpoena was May 24, 2022. DOJ COUNSEL also sent FPOTUS COUNSEL 1 a letter that permitted alternative compliance with the subpoena by “providing any responsive documents to the FBI at the place of their location” and by providing from the custodian a “sworn certification that the documents represent all responsive records. ” The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect.

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

The description of the May 11 subpoena and Jay Bratt letter accompanying it got unsealed with this release. None of that description is new, though the fact that this is the first mention of both Bratt and Corcoran in the affidavit means the following earlier discussions, including an April 29 explanation from NSD — probably Bratt — about the national security urgency of reviewing the documents returned in January would not have appeared before that in the affidavit (though could later in it).

April 11, 2022: FBI letterhead memorandum asks NARA for access to Trump documents

April 12, 2022: NARA informs Trump of access request

April 29, 2022: NSD to Evan Corcoran letter laying out NatSec urgency (not public)

April 29, 2022: Evan Corcoran letter to NARA asking for further delay (not public)

May 1, 2022: Evan Corcoran letter to NARA asking for further delay (not public)

May 5, 2022: Evan Corcoran asks for access to the Trump records for representatives (not public)

May 10, 2022: Steidel Wall to Corcoran advising him she would give FBI access starting May 12

The May 10 letter from Steidel Wall to Corcoran was included in the government’s response to Trump’s Special Master request but not among the items that DOJ asked Chief Judge Beryl Howell to unseal as grand jury material. It appears that it has become a focus of the public discussion because John Solomon made it one.

The passage above also unsealed the first sentence of paragraph 25 (the rest of that paragraph was unsealed in the first release). We already knew about one May 25 letter from Corcoran — DOJ diligently included it with the affidavit, as instructed by Corcoran, and so it was unsealed in the first unsealing.

That Corcoran actually sent two letters that day was already made public in this letter to Beryl Howell, though probably few other people noticed. This is probably the first that most people will realize Corcoran sent two letters that day. More importantly, the newly unsealed sentence makes its relation to the subpoena more obvious.

The subpoena deadline was May 24. By that day, document custodians from all of Trump’s properties should have shown up at their local FBI office with the remaining classified documents Trump retained. If they had, we might never have heard of all this. But on May 25 — the day after the subpoena deadline — Corcoran, after having stalled the FBI’s access to the 15 boxes for a month, was still asking for more time to respond to the subpoena issued two weeks earlier. All the while he was making false claims that this aspect of the investigation had leaked.

It’s against that background that Corcoran sent not one but two letters. This one is the second he sent that day. It doesn’t mention the pending subpoena, at all. Rather, it did the following:

  • Argue that because public trust is low (thanks to Donald Trump) any actions by DOJ must not involve politics
  • Complain that the news of the NARA referral (which NARA shared with Congress after warning Trump for months they might resort to doing so) was publicly reported
  • Claim falsely there were, “Leaks about an investigation that involve the residence of a former President”
  • Assert that the President has absolute authority to declassify things (without claiming that Trump had declassified things)
  • Lay out the (IMO) most catastrophically shitty legal advice made public this year, that Corcoran believed only 18 USC 1924 was implicated in this investigation
  • Cite an IG Report stating that DOJ has to remain free of political influence
  • Include two paragraphs that, Corcoran requested, be shared with any judge ruling on a motion or application in connection with this investigation.

Here’s what those paragraphs say:

Long-standing DOJ policy requires that DOJ attorneys be candid in representations made to judges. Pursuant to those policies, we request that DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.

The official policy ofDOJ further requires that prosecutors present exculpatory evidence to a grand jury. Pursuant to that policy, we request that DOJ provide this letter to any grand jury considering evidence in connection with this matter, or any grand jury asked to issue a subpoena for testimony or documents in connection with this matter. [my emphasis]

Effectively, the entire letter — written at a time when Corcoran was trying to negotiate a delayed response to a subpoena — was a pitch to a judge that there could be no probable cause that Trump had committed a crime, because 18 USC 1924 didn’t apply to him (remember, this is the statute Trump made a felony in response to Hillary’s home server) and because he hypothetically could have declassified all the most sensitive secrets.

The reference to Kash Patel, immediately following the mention of this letter, makes more sense now; it might explain that when Debra Steidel Wall told Corcoran on May 10 that no one could review Trump’s papers without proper clearance, he acceded to that.

What’s interesting about this letter (aside from how catastrophically bad that 1924 advice was) is its audience. Corcoran would have known that a judge was already involved; Beryl Howell oversees grand juries in DC, including the one that issued a subpoena to the former President. But he didn’t ask that the letter be shared with any judges who already reviewed subpoenas. Rather, he was asking that it be shared in case of some motion or application.

Corcoran envisioned — at a time he was stalling on compliance with a subpoena — that DOJ might soon go before a judge with some kind of application, something like a search warrant, in hand.

They were playing a game of chicken.

That suggests that DOJ was already threatening to come get the stolen classified documents they knew to remain at Mar-a-Lago. It suggests that this letter, with its catastrophically bad 1924 advice, was an attempt to stave off that, when in fact it instead ensured that DOJ would include a footnote explaining that the Espionage Act (unlike 1924) pertained to National Defense Information, not classified information, which would also make Corcoran’s nod to Trump’s unlimited declassification powers pointless as well.

I continue to get some satisfaction that during the period Corcoran was giving Trump such catastrophically bad legal advice pertaining to stolen classified documents, he was helping write 30-page filings in the Bannon misdemeanor case that also didn’t work, not even with Carl Nichols. But I’m perverse like that.

Anyway, that detail — that Corcoran wrote a letter to a hypothetical judge reviewing a warrant application even while he was negotiating an extension to the already passed subpoena deadline — is important background to whatever search Corcoran did and whatever representations he made on June 3, all a stunt that (he probably assumed) would stave off any search, including his refusal to let the FBI look in the boxes that he claimed to have searched.

I have no idea what Corcoran knew on May 25 and what he knew on June 3. But the fact he sent a letter envisioning a hypothetical judicial review of a search warrant application suggests he knew that he had to stave off a search even before the FBI showed up on June 3, when he refused to permit a consensual search.

Go to emptywheel resource page on Trump Espionage Investigation.

Yes, Trump Was Making Notes on Classified Documents

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When the Trump search warrant was initially unsealed, many commentators focused on the description of documents bearing Trump’s notes.

From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes. [my emphasis]

At the time, I thought that was an overreading of the passage. After all, that paragraph is a description of the contents of fifteen boxes, of which just 184 documents have classification markings. Given the context, I believed it was possible this described other documents in the boxes, hand-written documents that also might also contain classified information. Trump’s notes from calls with foreign leaders, for example, might include classified information or be otherwise particularly sensitive.

But one of the newly unsealed passages from the affidavit released yesterday describes Trump’s handwritten notes on the documents on June 3, as well. (As noted, this passage also revealed that at least one of the documents bore a FISA marking, as the first did.)

A preliminary review of the documents contained in the Redweld envelope produced pursuant to the grand jury subpoena revealed the following approximate numbers: 38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following caveats/compartments, among others: HCS, SI, and FISA. [redacted] Multiple documents also contained what appears to be FPOTUS’s handwritten notes. [my emphasis]

In this case, there cannot be any doubt: the notes are on documents bearing classification marks. That’s because the only things Evan Corcoran handed over on June 3 were documents bearing classified markings.

In fact, of all the sets of documents turned over or seized, that set includes the highest concentration of Top Secret documents. Almost half those documents turned over were marked Top Secret.

(This table includes the contents of the leatherbound box in the total of classified documents seized on August 8, but also breaks it out, which shows the leatherbound box stored the second highest concentration of Top Secret documents.)

So, yeah, at least some of these documents — multiple, not just several — reflect Trump writing on classified documents.

We don’t yet know what that means. Nor is it clear when he wrote those notes. In fact, FBI might be able to use those notes to prove that Trump has gone back and referred to (and written on) these documents since he left the White House, after such time as the current President decided that the former President no longer had a need to know America’s most sensitive secrets.

The confirmation that Trump took notes on documents bearing classification markings is important background to Trump’s attempt to claim that documents marked classified might be his own personal documents, as he made hints of doing in these passages of his response to the government’s motion for a stay.

Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See 18 U.S.C. § 793(e); [ECF No. 69 at 9].7

7 Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA.

[snip]

To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the PRA and cannot possibly form the basis for any criminal prosecution. [my emphasis]

That is, in an attempt to forestall an Espionage Act prosecution (the only time Trump has named the statute), he seems to be entertaining a claim that he first declassified these documents and then, by dint of writing on them, made them his own personal property.

Such an argument raises the stakes on the timing of his notes. If he only wrote on these documents after he left the White House, they would have been declassified government (often, Agency) documents on January 20, 2021, not personal documents. But if he wrote on these as President, then his notations would have been made, “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,” clearly making them Presidential Records under the Act. Either way, the documents belong in government custody.

The government scoffed at the possibility that Trump could have made classified documents personal records (it does not raise his notes on them).

Plaintiff’s suggestion that he “may have categorized certain of the seized materials as personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would only supply another reason that he cannot assert executive privilege with regard to those records. If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. § 2201(3) (defining “personal records” as records “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”). In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information.2

2 Plaintiff’s characterization of the discretion the PRA provides the President to categorize records as “Presidential” or “personal,” D.E. 84 at 14-15 (citing Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012)), is thus irrelevant here. In any event, the district court decision on which Plaintiff relies did not concern classified records and does not support his assertion that a court must accept a former President’s claim that records that indisputably qualify as Presidential records under the PRA are instead personal records. Instead, the court in Judicial Watch concluded that it could not compel the National Archives and Records Administration to revisit a President’s decision about such a categorization. 845 F. Supp. 2d at 300-301. More fundamentally, the district court’s analysis in Judicial Watch has no bearing on the application of criminal law regarding unauthorized retention of national defense information, unauthorized removal of government documents, or obstruction of justice. 18 U.S.C. §§ 793, 2071, 1519.

If Trump claims to have made these classified documents his own personal documents while President (by writing on them), it would more clearly amount to theft, because otherwise any notes he wrote would be part of his official business, as noted above. But that’s currently what Trump is offering up as his defense.

Because he is suggesting that classified documents were declassified and made personal, the notes make it more likely that Trump used America’s secrets for his own private gain either during or after he left the Presidency. In fact, that appears to be the argument he’s offering in his defense!

Update: Tried to clarify my logic in the final two paragraphs per observations from Ariel817.

Go to emptywheel resource page on Trump Espionage Investigation.