Stan Woodward Wants to Give Walt Nauta a Need to Know the Contents of the Stolen Documents

/114 Comments/in , /by

The headline revelation in DOJ’s renewed bid for a classified protective order in the Trump case is that Trump wants to be able to discuss classified documents with his attorneys in his offices, which the government correctly notes, “seeks permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

I’m sure we’ll come back to that, particularly if Judge Aileen Cannon entertains Trump’s demand seriously (under CIPA the government could immediately appeal any decision to the 11th Circuit).

But I’ve been more interested in Walt Nauta’s demand: that he get to see all the stolen classified documents charged in the indictment.

Defendant Nauta objects to language that limits his personal access to classified information, as opposed to access by his cleared counsel;

[snip]

Defendant Nauta is charged only with obstruction and false statement offenses related the movement and concealment of Defendant Trump’s boxes; the contents of the classified documents contained in the boxes, and the national defense information that they contain, are not material to proving or defending against those charges. Moreover, Defendant Nauta’s counsel will have the opportunity to review the classified discovery, and should they see a need to share any particular classified documents with Defendant Nauta, counsel will have an opportunity to raise the issue with the Government and the Court.1

1 The Government intends to provide to Defendant Nauta’s counsel all classified discovery identified to date.

[snip]

As explained, Defendant Nauta has no need to review the contents of the classified information. His cleared counsel will have full access to the documents in preparing his defense, and the protective order will allow Nauta to seek permission to review classified information personally if he establishes a need to know. The procedure set forth in the Government’s proposed protective order appropriately balances the need to protect classified information while allowing Defendant Nauta’s counsel the ability to assess the documents.

I assume this is one more effort from Stan Woodward — who is being paid by Trump’s PAC — to test the boundaries of Judge Cannon’s indulgence, a tactical move to figure out how much the defense team can get away with.

This is, in my opinion as someone who has been covering Espionage Act cases for over 15 years, an ill-considered move.

As I noted in my first review of the original indictment, Nauta’s alleged overt acts already then fulfilled all the elements of the offense of 18 USC 793(g), conspiring with Trump to hoard classified documents, which would dramatically increase Nauta’s legal jeopardy. Already then, Nauta was at risk of being superseded with charges that expose him to over a decade of prison time, possibly two.

That’s all the more true given the additional acts in the superseding indictment.

Effectively, this demand from Woodward is a request: Please give my client a Need to Know what is in those 32 highly classified documents that Nauta wouldn’t even have had the Need to Know when he was working in the White House.

The one thing that would give Nauta a Need to Know what’s in the stolen documents — as the government intimates — is if Nauta were charged under the Espionage Act, as he could be under 18 USC 793(g).

Which brings me to a key detail in this WaPo story — which reveals that, tomorrow, Trump will disclose he has spent $40M on lawyers, eating up his campaign cash (which makes Will Hurd’s quip from the other night — that Trump is running for President to stay out of prison — pretty timely).

That’s a really important story (and will create still more damning, unprivileged documents for prosecutors to find). But WaPo’s story confirms what I suspected when I focused on ¶91 of the superseding indictment — the one that describes Trump assessing Carlos De Oliveira’s loyalty before he offered to pay for a lawyer — as, potentially, its most important.

Stan Woodward — the lawyer who has decided it’d be a good idea to ask that his client be given a Need to Know what’s in the stolen classified documents — has started to face very serious conflict problems that have been inevitable for months.

Woodward represents at least the following people (I’ll add more when I remember them):

  • Peter Navarro (who goes on trial for contempt in September)
  • Dan Scavino
  • Kash Patel
  • Walt Nauta
  • Will Russell, who testified on July 20
  • Taylor Budowich, who testified in Florida
  • Brad Parscale in AJ Delgado’s pregnancy discrimination suit against the Trump campaign
  • Kelly Meggs, who has already been sentenced for sedition
  • Freddie Klein, the former State Department official who was part of the Tunnel battle, also recently sentenced
  • Ryan Samsel, who kicked off the entire riot on January 6

Critically, Woodward was representing Yuscil Taveras, whose recent testimony is one of the things that made it possible to add Carlos De Oliveira (represented by a different Trump paid lawyer) to the indictment and include the Keystone Cops effort to delete footage. That created a conflict between Nauta’s interests and Taveras’, and someone — presumably Chief Judge James Boasberg — appointed a conflict counsel for Taveras, which is what led to Taveras becoming dramatically more forthcoming.

Nauta, who investigators long considered a key witness in the classified documents investigation, has been represented for many months by lawyer Stan Woodward, with Save America footing the bills. Woodward also represents several other Trump-linked clients who have been subpoenaed as part of Smith’s investigations, including an IT worker named Yuscil Taveras.

For much of the classified documents probe, there did not appear to be a conflict between Nauta and Taveras.

After Trump and Nauta were indicted in June, however, Taveras decided he had more he wanted to tell the authorities about his conversations with De Oliveira, according to people familiar with the investigation who spoke on the condition of anonymity to describe private discussions.

Taveras offered information implicating all three defendants in an alleged conspiracy to cover up evidence, these people said.

Legal ethics rules bar attorneys from arguing adverse positions in a case — such as defending one client by cross-examining another client, or advising one person who is testifying to investigators or a grand jury against another.

Once Taveras’s position put him potentially at odds with Nauta’s defense, a judge reviewed the issue, a person familiar with the matter said. A second lawyer — not paid by the PAC — was brought in to provide legal advice to Taveras, who then spoke to investigators, according to people familiar with the matter. [my emphasis]

I’ve been waiting for the moment when DOJ would ask for a conflict counsel to be appointed for Nauta: because Woodward getting paid by a PAC that is under investigation for this spending is, by itself, a potential conflict. But this describes that a judge, probably Boasberg, brought in a conflict counsel for Taveras.

It’s not clear whether Taveras has flipped or just gotten far more cooperative — he fits the description of a person who had received a target letter, so the decision to be more forthcoming may have been entirely about self-preservation.

But Taveras has not only provided damaging testimony about Nauta, De Oliveira, and Trump, but he likely can explain who from Trump Organization in New York participated in the still uncharged successful efforts to delete surveillance footage, who might be able to give someone the rights to do that.

That is, he likely has testimony that could implicate the Matthews Calamari, key players in Trump’s corporate empire.

More importantly, prosecutors will do with Taveras what DOJ did with Cassidy Hutchinson after she described that Stefan Passantino was discouraging her from being all that forthcoming: ask more about the nature of that legal arrangement. They may also ask about Susie Wiles’ role in it (which is also laid out in the WaPo article), which also came up in even Hutchinson’s publicly released testimony about these matters.

And Wiles, of course, is not only the person arranging all this conflicted legal representation for people and now running Trump’s campaign, but she’s also someone who has been involved in the use of the documents; she is also reportedly the person to whom Trump showed a classified document in Bedminster she was not cleared to see.

It’s not just that Trump is spending more on lawyers than he is taking in. But he’s spending on lawyers whose conflicts make this entire scheme a fragile game of jenga.

One that may have started to fall apart.

Update: Trump Employee 5 in the superseding indictment must also have given testimony, which may also be fairly recent. Given that he’s the kind of person who’d be consulted about loyalty, he presumably also was part of the in-house lawyering team.

Update: NYT has their own version of this preemptive limited hangout of Trump’s financial shell game. It mentions the potential legal problem with using funds raised for election security to pay lawyers, but steers clear of the ongoing investigation into it.

The PAC was the entity in which Mr. Trump had parked the more than $100 million raised when he sought small-dollar donations after losing the 2020 election. Mr. Trump claimed he needed the support to fight widespread fraud in the race. Officials, including some with his campaign, turned up no evidence of widespread fraud.

Mr. Trump used some of that $100 million for other politicians and political activities in 2022, but he also used it to pay more than $16 million in legal fees, most of them related to investigations into him, and at least $10 million of which was for his own personal fees.

Save America began 2023 with just $18 million in cash on hand, which is less than half of what was spent on legal bills this year.

Campaign finance experts are divided on whether Mr. Trump is even able to continue to use the PAC to pay for his personal legal bills, as he became a candidate last November.

Update: CNN has confirmed the timeline: Taveras got a target letter after the first indictment, then ditched Woodward, then testified.

Yuscil Taveras, a Mar-a-Lago employee who oversees the property’s surveillance cameras, received a target letter from federal prosecutors after former President Donald Trump was first indicted in June on charges related to his alleged mishandling of classified documents after leaving office, sources told CNN.

[snip]

After receiving the target letter, Taveras changed lawyers because his attorney, Stan Woodward, also represented Nauta, which presented a conflict, sources said.

Update: Added two more Woodward clients.

Update: Added another Woodward client.

“Rights” and Wrongs: Where the Stolen Documents Investigation Is Headed

/194 Comments/in , , /by

I want to start this post about where the stolen documents investigation may be headed with an observation a commenter here made about this passage of the superseding indictment: the import of the word, the “rights,” coming from an IT guy who would think in terms of access privileges.

The passage comes in the midst of the Keystone Cops routine where Walt Nauta and Carlos De Oliveira try to figure out how to achieve Trump’s apparent order — probably given during a 24-minute phone call to De Oliveira on June 23 and to Nauta face-to-face at Bedminster sometime between 3:44 and 5:02PM on June 24 — to delete the surveillance server. They were stomping around, squawking about how sensitive this mission was. Nauta sent someone texts with shush emojis and De Oliveira told a valet Nauta’s visit should remain secret.

The evening of June 25 — one day after DOJ sent Trump Organization a subpoena for surveillance video — they get a flashlight and go to inspect what the surveillance cameras would pick up; by moving in front of the surveillance cameras, which we now know are motion activated, they would have triggered the cameras, thereby creating more damning surveillance footage.

Imagine the video exhibit at trial, as both Nauta and De Oliveira point a flashlight at the surveillance camera that, weeks earlier, caught both of them moving just half the boxes full of classified documents back into the storage room, two earnest faces looking straight into the camera. That footage wouldn’t be covered by the subpoena they were, at that moment, trying to defy; it would probably be covered by the next subpoena.

Two days later (there’s no indication of how Nauta spent his day on Sunday June 26), on June 27, De Oliveira walks into the IT room and asks Yuscil Taveras in front of a witness (possibly in front of another security camera) to step away so they could speak. They go to what they call an “audio closet” (which could be the decommissioned SCIF) and De Oliveira tells Taveras that “the boss” wants the surveillance server deleted.

Taveras says three things in response:

  1. He doesn’t know how to accomplish that
  2. He doesn’t have the “rights” to do that
  3. To accomplish the task, De Oliveira would have to reach out to one of the Matthew Calamaris

The words, “rights,” here hasn’t gotten enough attention. Taveras was saying that he did not have the computer privileges to just delete the surveillance server: one of the Matthew Calamaris in New York would have to be involved to make such a thing happen.

So after that, De Oliveira checks back in with Nauta (who has flown to Florida to accomplish this task, along with whatever he did on June 26), they stomp around some more in suspicious ways that are visible to yet more surveillance cameras, and then two hours later Trump speaks to De Oliveira for 3.5 minutes. As described, Trump calls De Oliveira, not the other way around.

Remember how I said — of the January 6 investigation — that the January 6 investigation would take more time than the Watergate investigation because, unlike Nixon, Trump is not known to have wiretapped himself?

Well, on the stolen documents investigation, he did, effectively, wiretap himself, or at least all the employees he sent to accomplish his corrupt mission. And then Trump tried, over and over, to Rosemary Woods away incriminating video, at least this first time, captured on video again.

But amid all the Keystone Cops stomping around talking about secrets while on surveillance camera and sending shush texts, what Taveras said is an important hint of where this investigation may go next (as I laid out here).

Thus far, this story — and the conspiracy as charged so far — is just a story of a failed attempt to destroy surveillance video. De Oliveira: Can you delete the server? Taveras: Nope. I don’t have the rights. Stomp stomp stomp, almost all of it on surveillance video.

The Keystone Cops caper ends with Trump calling De Oliveira at 3:55PM on June 27, with no word of what led Trump to call De Oliveira and no word of whether whatever video got deleted was deleted in Florida or New York, or somewhere else.

The superseding indictment doesn’t mention, for example, the text that Nauta sent Calamari Sr — possibly even between 1:50PM when he and De Oliveira were stomping in bushes adjacent to Mar-a-Lao and the phone call that Trump made to De Oliveira at 3:55PM.

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

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

Calamari was the guy, Taveras told De Oliveira, who would have the privileges to delete surveillance footage. And sometime in that period, Nauta texted him about the surveillance request.

Thus far, this is a story and a crime about an alleged attempt to delete surveillance footage. But we can be pretty certain that surveillance video was, in fact, deleted. That’s because reporters have reported on witnesses being asked that for months. There would be no reason to obtain nine months of surveillance video — 57 terabytes of raw video, if you can believe the defense attorneys — unless there was a whole bunch more to learn from the surveillance videos.

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

And there would be no reason for Trump, on August 26, to get Nauta to verify De Oliveira’s loyalty (stomp stomp stomp) before arranging to provide him a lawyer if what came next, what happened after Trump’s phone call to De Oliveira on June 27 isn’t even more damning.

Indeed, that’s why it matters that — buried in a Devlin Barrett story opining that De Oliveira’s, “alleged actions could bolster the obstruction case against the former president” because apparently Devlin hasn’t learned his lesson about presenting evidence of more serious crimes and calling it obstruction — Trump (unusually) came back to Mar-a-Lago twice between June 3 and August 8: once from July 10 to 12, and once again on July 23, and that De Oliveira told the FBI he had given away the key to storage when they showed up on August 8.

The Keystone Cop caper, in part because it is so colorful and in part because it is charged as an unsuccessful attempt, has distracted most commentators from the fact that there was a more successful attempt, and that more successful attempt didn’t hide the movement of boxes in and out of the storage closet. As I’ve noted, all the movement of boxes in May and June shows up in the search affidavit relying on what DOJ did get from Trump, save one: Nauta’s retrieval of a single box on May 22.

The superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, of which the basement hallway is just one. And the most recent unsealing of the affidavit reveals that the only cameras included on the hard drive of surveillance footage turned over on July 6 were four cameras in the basement hallway. So one way or another, footage of those other locations was not turned over in response to the first subpoena.

Everyone treats this indictment as a terminal indictment — and if that’s as far as Jack Smith gets, it’s still far more damning than most everyone imagined on June 8. But multiple public references — the discussion on July 13 of continued efforts to fully exploit Nauta’s phone, the reference in DOJ’s descriptions of discovery that suggest there’s a grand jury somewhere other than DC or SDFL, and the suggestion that interviews have continued after June 23 — suggests that the current instantiation of the indictment is intended to be part of an ongoing investigation.

I noted from the first indictment that it was a “tactical nuke” designed to persuade Nauta to cooperate. Not only hasn’t the effort worked, but Stan Woodward has adopted a position on classified discovery — that Nauta, in addition to his attorneys, should get to see all the stolen classified documents — that I think makes it more likely DOJ would supersede to add a conspiracy to retain classified documents charge with him, because the elements of offense are all satisfied in the existing indictment.

Here are the obvious things that obtaining credible cooperation from Nauta would obtain:

  • ¶25: Details of Trump’s intent as Nauta helped pack up documents from the White House
  • ¶46: Why Trump was trying to hide when he instructed Nauta to replace the lids of the boxes
  • ¶54: What he was sent for on May 22
  • ¶61: What Trump instructed Nauta before he moved half the boxes back into storage for Evan Corcoran to search
  • ¶73: What boxes got loaded on the plane to Mar-a-Lago on June 3
  • ¶78: What Trump told him at Bedminster that led him to fly to Florida and try to bury the surveillance video (as well as what else he did on June 26, which is not accounted for)
  • ¶86: What both men discussed in the bushes
  • How Nauta came to text Matthew Calamari
  • ¶91: How Trump came to ask Nauta to ascertain De Oliveira’s loyalty and whether Trump had similarly offered him legal representation
  • What Nauta witnessed as Trump’s bodyman, especially in Bedminster

Here are the obvious things that obtaining credible cooperation from De Oliveira would obtain:

  • ¶76: Details of the 24-minute call he had with Trump, while Trump was at Bedminster
  • ¶86: What both men discussed in the bushes
  • ¶87: What Trump said on the phone call and whether De Oliveira had a role in the successful deletion of video, and how he knew what to delete
  • ¶91: What the terms of his representation are and whether it led him to lie (a question, other reports have made clear, many witnesses have been asked)
  • Why Trump returned to Mar-a-Lago twice before the August 8 search
  • To whom he gave the key to the storage room and on whose orders
  • Whether the October flood of the server room was an(other) attempt to destroy surveillance footage and if so, whether he was instructed to do so

De Oliveira might be a key witness to lead Nauta to reconsider his decision to protect Trump.

More importantly, one or both might be irreplaceable witnesses to answer a number of closely intertwined questions:

  • How is Trump is using lawyers to command loyalty and does it create conflict or obstruction issues
  • What surveillance footage has Trump prioritized for destruction and why
  • Why did Trump steal the documents, how has he used them, and where did the ones that went to Bedminster disappear to
  • What role does Trump’s PAC have in exploitation of the documents
  • What role does Trump Organization have in exploitation of the documents
  • Who else has had ready access to these documents

All this superseding indictment shows is that Trump had something to hide that goes beyond his desire to hoard the classified documents. Jack Smith may require the cooperation of one or both of these men to fully understand what Trump is really hiding.

This fairly remarkable post from the WSJ opinion page demonstrates the stakes of trying to answer it. It’s a pitch to elect someone other than Trump in the GOP primary, and premised on an utterly bullshit claim that Biden has politicized justice. But it gets a good distance of the way to an important discovery: even the Keystone Cops attempt already included in the indictment totally debunks Trump’s public defense, because if he believed in June 2022 that he had the right to keep these, he wouldn’t have dug himself — and thus far two staffers — deeper into a legal hole.

If Mr. Trump sought to destroy evidence, it undercuts his defense on the document charges. He contends that the Presidential Records Act gives him the right to retain documents from his time in office. But if Mr. Trump believed that, he would have played it straight. If the indictment is right that he hid the files from his own lawyers and tried to wipe the security video to stop anybody from finding out, then he didn’t buy his own defense.

From a Murdoch rag, this is a really important insight. But then WSJ predictably refuses to take the next logical step: That Trump’s obstruction makes it clear he didn’t just do this out of pigheadedness.

Prudential questions about the wisdom of this prosecution remain. Mr. Trump appears to have kept the files out of pigheadedness, not because he wanted to do something nefarious like sell them to an adversary. The FBI raided Mar-a-Lago to recover the documents.

The episode reflects poorly on Mr. Trump. But is this conduct that truly gives President Biden no choice except to ask a jury to jail his leading political opponent in next year’s election? At least Watergate involved a burglary.

We can’t even rule out a burglary, if Trump learned that he compromised these documents by storing them in his beach resort! Especially since De Oliveira claimed he had given the key away to others. We can’t rule out selling them to an adversary! We sure as hell can’t rule out trying to exploit them for the success of his PAC.

The indictment and an attempt to try this before the general election is an important goal, though potentially unrealistic given the CIPA challenges.

But it really is important to learn what Trump did do with these documents, who got the key, where they disappeared to.

This indictment doesn’t answer the question of why Trump stole these documents or what he did with them. All the superseding indictment did is make the question more urgent.

Update: Fixed Trump’s location from whence he called De Oliveira — the first call would have been Bedminster.

Carlos De Oliveira Added a Lock to the Storage Facility Then (Claimed He) Gave Away the Key

/95 Comments/in , /by

My second favorite bullshit spin of the entire stolen documents investigation (the first being claims about Walt Nauta’s cooperation) is the way, in the days after the search of Mar-a-Lago, Trump got journalists to repeat his claim that the fact he replaced the lock on the storage room at Mar-a-Lago proved he was entirely cooperative with DOJ before the search.

Here’s how WSJ presented the claim in one of its first instances:

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” according to what was read to The Wall Street Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

[snip]

Mr. Trump and his lawyers contend they have cooperated with a monthslong effort by the government to retrieve some of the material he took from the White House and expressed outrage with Monday’s unannounced visit to Mar-a-Lago. A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

Here’s how John Solomon presented the claim in a post that first broke the news of the surveillance video subpoena.

Trump signaled his full cooperation, telling the agents and prosecutor, “Look, whatever you need let us know,” according to two eyewitnesses. The federal team was surprised by the president’s invitation and asked for an immediate favor: to see the 6-foot-by-10-foot storage locker where his clothes, shoes, documents and mementos from his presidency were stored at the compound.

Given Trump’s instruction, the president’s lawyers complied and allowed the search by the FBI before the entourage left cordially. Five days later, DOJ officials sent a letter to Trump’s lawyers asking them to secure the storage locker with more than the lock they had seen. The Secret Service installed a more robust security lock to comply.

Around the same time, the Trump Organization, which owns Mar-a-Lago, received a request for surveillance video footage covering the locker and volunteered the footage to federal authorities, sources disclosed.

It was always clear this was bullshit, not least because CFR guidelines about storing classified documents are really strict. But journalists repeated it credulously for several weeks, until the affidavit was unsealed, showing that in Jay Bratt’s request that Trump secure the storage room, he never mentioned a lock.

On June 8, 2022, DOJ COUNSEL sent FPOTUS COUNSEL 1 a letter, which reiterated that the PREMISES are not authorized to store classified information and requested the preservation of the STORAGE ROOM and boxes that had been moved from the White House to the PREMISES. Specifically, the letter stated in relevant part:

As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents (the ones recently provided and any and all others) were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.

On June 9, 2022, FPOTUS COUNSEL 1 sent an email to DOJ COUNSEL, stating, “I write to acknowledge receipt of this letter.”

But buried in this Devlin Barrett story about how prosecutors warned Carlos De Oliveira’s attorney, John Irving, that they believed he was lying way back in April is the BREAKING NEWS that after De Oliveira put a new lock on the door — the thing that Trump bragged about for a month, and a tale that Barrett repeats here — he gave away the key.

Or at least that’s the excuse he gave to the FBI when they showed up in August to seize the documents inside and he refused to let them into the storage closet.

Agents had another concern: The lock on the door to the storage room was flimsy. The officials urged staff to put a better lock on the door, which De Oliveira did — using a hasp and a padlock to keep it secure, the people said. If there were still highly sensitive classified documents in the room, such a lock was far from sufficient, but it was better than nothing.

[snip]

When FBI agents arrived at Mar-a-Lago the morning of Aug. 8 with a court-issued search warrant, De Oliveira was one of the first people they turned to. They asked him to unlock a storage room where boxes of documents were kept, people familiar with what happened said. De Oliveira said he wasn’t sure where the key was, because he’d given it to either the Secret Service agents guarding the former president or staffers for Trump’s post-presidency office, the people said.

Frustrated, the agents simply cut the lock on the gold-colored door. [snip]

Imagine how outraged investigators must have been last August when Trump was publicly bragging about the new lock when the currently operative story at the time — one that may still be operative — is that within weeks, Oliveira had given away the key.

To whom, he did not know.

I’ve got a lot of guesses about who may really have gotten that key.

But the stunning news from this story is that Trump put a new lock on the storage facility and promptly gave away the key.

Carlos De Oliveira’s Uncharged Suspected Obstruction Happened on Aileen Cannon’s Watch

/153 Comments/in , /by

I’d like to make something explicit that’s implicit in this post. Some of Carlos De Oliveira’s suspected obstruction of the investigation into stolen documents happened on Aileen Cannon’s watch.

To be sure, it’s not charged, and the timing of all this is not made explicit in the indictment. De Oliveira is charged with four counts:

  • Count 33: Conspiracy to Obstruct Justice (18 USC 1512(k)) from May 11, 2022 until August 2022
  • Count 40: Corruptly asking Trump Employee 4 to destroy surveillance footage (18 USC 1512(b)(2) from June 22, 2022 until August 2022
  • Count 41: Corruptly attempting to alter surveillance footage (18 USC 1512(c)(1)) from June 22, 2022 until August 2022
  • Count 42: False statements in a January 13, 2023 interview with the FBI at his residence

The timeline of this is actually quite interesting. All the conspiracy charges go through August 2022, with no specific end date. That adopts the convention used in the first indictment.

By description, the conspiracies described in the first indictment might otherwise have ended on August 8, 2022, when the FBI seized the documents the obstruction attempted to hide. There was no overt act that post-dates August 8 in the first indictment.

There is in the superseding indictment. There’s this key paragraph, which describes that on August 26, 2022, after Trump confirmed De Oliveira’s loyalty, Trump called him and told him he would get him an attorney.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

That paragraph is important to prove the conspiracy because Trump Employee 5 appears to have testified independently about it. But it’s not about the June 2022 effort to destroy the surveillance footage. It’s an apparent effort to keep De Oliveira quiet about the June 2022 effort.

Witness tampering, a different kind of obstruction. But it is not charged as such.

At least not yet.

So the overt acts on the three conspiracies appear to go from May and June until August 26, 2022. But the indictment doesn’t include that as the specific end date.

On August 27 — the day after the last overt act in the three alleged conspiracies charged against De Oliveira — Judge Aileen Cannon issued an order providing preliminary notice that she would intervene in the case. On September 5, Judge Cannon issued an order enjoining the government from further investigation of the materials seized on August 8.

De Oliveira’s other alleged crime happened on January 13, 2023.

It happened after, on December 1, 2022, the 11th Circuit ruled that Aileen Cannon “improperly exercised equitable jurisdiction” to — among other things — stay any investigation using non-classified documents.

[T]he district court lacked jurisdiction to consider Plaintiff’s initial motion or to issue any orders in response to it.

[snip]

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

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

It happened after, on December 12, Aileen Cannon dismissed the civil suit before her.

De Oliveira’s first three alleged crimes happened before Aileen Cannon intervened, up through the day she did, in fact. All of Trump’s and Nauta’s alleged crimes ended before or on the day before she intervened.

De Oliveira’s fourth charge happened after the 11th Circuit ruled that she had improperly halted any investigation using unclassified materials seized from Mar-a-Lago from September 5 to December 1, a total of 87 days.

De Oliveira was not charged for something else, though, that — according to CNN’s report of it — was suspected to be another attempt to damage surveillance equipment, a flood of the IT room that, by description, happened in October.

An employee at Donald Trump’s Mar-a-Lago residence drained the resort’s swimming pool last October and ended up flooding a room where computer servers containing surveillance video logs were kept, sources familiar with the matter told CNN.

While it’s unclear if the room was intentionally flooded or if it happened by mistake, the incident occurred amid a series of events that federal prosecutors found suspicious.

At least one witness has been asked by prosecutors about the flooded server room as part of the federal investigation into Trump’s handling of classified documents, according to one of the sources.

The incident, which has not been previously reported, came roughly two months after the FBI retrieved hundreds of classified documents from the Florida residence and as prosecutors obtained surveillance footage to track how White House records were moved around the resort. Prosecutors have been examining any effort to obstruct the Justice Department’s investigation after Trump received a subpoena in May 2022 for classified documents.

Prosecutors have heard testimony that the IT equipment in the room was not damaged in the flood, according to one source.

Yet the flooded room as well as conversations and actions by Trump’s employees while the criminal investigation bore down on the club has caught the attention of prosecutors. The circumstances may factor into a possible obstruction conspiracy case, multiple sources tell CNN, as investigators try to determine whether the events of last year around Mar-a-Lago indicate that Trump or a small group of people working for him, took steps to try to interfere with the Justice Department’s evidence-gathering.

Agents first subpoenaed the Trump Organization for Mar-a-Lago surveillance footage last summer, before the August search by the FBI. But as more classified documents were found through the end of last year, investigators sought more surveillance footage from the Trump Organization, sources tell CNN. That included an additional subpoena after the FBI search in August and a request from the Justice Department for the Trump Organization to preserve additional footage in late October, according to one of the sources.

[snip]

Prosecutors from the special counsel’s office have focused their obstruction inquiries around Trump, Trump’s body man Walt Nauta and a maintenance worker who helped Nauta move boxes of classified documents ahead of federal agents searching the property last summer, and potentially others, sources told CNN.

The sources say that the maintenance worker is the person who drained the pool that led to the flooding of the IT room where the surveillance footage was held. [my emphasis]

If that really happened, if it really was another attempt to destroy surveillance video (as I noted, video that might show De Oliveira and Nauta’s earlier attempt to destroy the surveillance video, a cover up of the cover up), then it happened during the period when DOJ’s investigation was largely halted thanks to Aileen Cannon’s improperly exercised equitable jurisdiction.

It’s not yet clear whether Cannon’s injunction required DOJ to delay the January 13, 2023 interview until after the 11th Circuit ended it. After all, DOJ interviewed Christina Bobb in October and Kash Patel in November.

As of now, the overt acts in the apparent overlapping conspiracies to obstruct the investigation stop one day short of the moment when Aileen Cannon got involved, improperly, according to the 11th Circuit. And if DOJ were to substantiate the flooded server room was yet another attempt to tamper with surveillance footage, it would mean the obstruction happened on Judge Cannon’s watch.

Thus far, Cannon has issued one after another after another and yet one more not unreasonable order.

But we are butting against the date when Trump’s continued conspiracy to obstruct the investigation happened during the window she created by improperly intervening in the case.

Chekhov’s Alan Garten: The Human Gaps in the Surveillance Footage Gap

/125 Comments/in , , /by

This post noted, shortly after Trump’s first stolen documents indictment, that the indictment included nothing about the gaps in surveillance footage DOJ spent much of the last year investigating. It also noted that the indictment did not name the maintenance guy who had played a role in moving boxes around.

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

As Jay Bratt’s notice to Aileen Cannon of the new details in the superseding indictment released last night explained, those paragraphs now identify newly-charged Carlos De Oliveira by name.

Paragraphs 62 and 63 now identify De Oliveira as the person who helped Nauta move approximately 30 boxes from Trump’s residence to the Storage Room on June 2, 2022, whereas paragraph 61 of the earlier indictment referred to De Oliveira as “an employee of The Mar-a-Lago Club”;

Paragraph 73 alleges that De Oliveira was one of the “others” identified in paragraph 72 of the original indictment who, on June 3, 2022, with Nauta, “loaded several of Trump’s boxes along with other items on aircraft that flew Trump and his family north for the summer”;

Yet even with the inclusion of De Oliveira in the indictment, the gaps about the gaps in the surveillance footage remain.

The conspiracy added to the indictment, laid out in ¶74 through ¶87, describes an attempt to destroy surveillance footage. As described, Walt Nauta and De Oliveira asked someone, identified in the indictment as Trump Employee 4 but who is likely Yuscil Taveras (identified in this story from NYT), to delete the surveillance server, but he said he could not. He told De Oliveira to contact the supervisor of security for Trump Organization.

83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.

84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an “audio closet” near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:

a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.

b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.

c. DE OLIVEIRA told Trump Employee 4 that “the boss” wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was the supervisor of security for TRUMP’s business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that “the boss wanted the server deleted and asked, “what are we going to do?” [my emphasis]

But that section ends with Nauta and De Oliveira meeting in the bushes just off Mar-a-Lago property the next day, then walking to the IT office, then walking back to the bushes again. There’s no allegation that Nauta and De Oliveira succeeded in deleting the video.

The entire section is bookended with these paragraphs, which — and I say this as a PhD in Comparative Literature — are narratively brilliant.

74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.

75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP’s business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras “on ground floor (basement),” where the Storage Room was located.

76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.

[snip]

87. [On June 27] At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes. [my emphasis]

The section starts and ends with a call to Trump. But never explains how the gaps ended up in the surveillance footage.

Let me go back.

As noted, and as Bratt noted, the original indictment didn’t identify De Oliveira at all. He was just some “other” guy involved, an employee of the club. In fact, in its first indictment, DOJ used a curious dual form of naming. The following people are clearly identified:

  • Trump and Nauta
  • Trump Employee 1
  • Trump Employee 2 (Molly Michael)
  • PAC Representative (reportedly Susie Wiles)
  • Trump Representative 1 (probably Alex Cannon)
  • Trump Attorney 1 (Evan Corcoran)
  • Trump Attorney 2 (possibly Boris Epshteyn)
  • Trump Attorney 3 (Christina Bobb)

Then there are people who are not identified by name:

  • ¶6a, ¶34: the people to whom he showed the Iran document, and the two staffers (reportedly Margo Martin, who recorded it, and Liz Harrington) who witnessed the interview
  • ¶19: the high level intelligence officials who briefed Trump
  • ¶24: other members of Trump’s White House staff, in addition to Nauta, who helped pack up boxes
  • 58c: A female Trump family member
  • ¶61: an employee of The Mar-a-Lago Club (De Oliveira)
  • ¶72: others, including De Oliveira, who helped load up boxes to go to Bedminster

This new indictment adds three identified Trump employees:

  • Trump Employee 3: the co-worker — who would have been at Bedminster — who alerted Nauta that Trump wanted to see him
  • Trump Employee 4: the IT worker, probably Taveras
  • Trump Employee 5: a valet who was asked — and confirmed in a Signal chat with Nauta — that De Oliveira was loyal

And the indictment adds several more unidentified Trump employees, several of which (like the reference to the female Trump family member in the first) could be sourced entirely to communications obtained from Nauta’s phone.

  • ¶77: The attorney for TRUMP’s business organization
  • ¶79: The people to whom Nauta gave inconsistent explanations of why he was making a secret trip to Florida: one person Nauta told he would not travel with Trump and a Secret Service agent
  • ¶83: Another employee in the IT department
  • ¶84c: Supervisor of Security for Trump’s business organization

Significantly, the original indictment describes how DOJ obtained surveillance footage this way:

In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.

Though the search warrant affidavit had described that “counsel for the Trump Organization” had a role, the original indictment made no mention of that. It was like a virgin birth of surveillance footage, delivered to the FBI with no explanation.

The other figures described but not named in the superseding indictment may or may not appear in later installments of this tale, like a gun shown in an early act of a play that later goes off.

The last — supervisor of security — is almost certainly Matthew Calamari, Sr, who was one of the very last people to appear before the DC grand jury before this case was moved to Florida and charged. Both Calamari and his son were asked why Nauta texted one of them (it turns out to have been Sr.) to call him about the subpoena request.

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

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

But that exchange is for another indictment, possibly even another venue.

In this indictment, though, the attorney for Trump Organization, almost certainly Alan Garten, plays two roles. First, he received the draft subpoena from Jay Bratt on June 22 (this begins to explain the discrepancy regarding the date of the subpoena that I’ve been obsessed with from the start). And he’s the most likely explanation for why, the next day, Trump called De Oliveira and spoke for 24 minutes.

That is, Garten likely told Trump about the subpoena, which set off a process by which employees attempted to destroy surveillance footage in Florida.

According to Michael Cohen’s testimony, Alan Garten is the one responsible for Cohen’s document production to Congress, which ended up withholding documents showing him contacting Dmitri Peskov’s office. And according to the SSCI Report, there were other, “known deficiencies in the Trump Organization’s document responses.”

While DOJ has interviewed Calamari (and so may or may not have gotten honest testimony about what happened when he called Nauta), they are not known to have interviewed Alan Garten, the bar for which would be very high. They have, however, interviewed Alina Habba, who played a role in a suspected Alan Garten shell game to withhold documents from New York State, and in the process did a search of both Bedminster and Mar-a-Lago before DOJ served a subpoena for classified documents.

In spite of all these new details and new players, we still don’t know what happened between June 27, 2022, when Trump Employee 4 told De Oliveiras to reach out to Matthew Calamari and when Trump spoke to De Oliveira for three and a half minutes, and July 6, when Trump Organization turned over two months of video that reportedly had gaps in it.

There are still gaps in this story about how the reported gaps got into the surveillance footage. Indeed, there are still gaps about what the gaps attempted to hide!

As I showed here, the surveillance footage the FBI did get appears to have shown virtually all of Nauta’s box movements — and would have shown De Oliveira helping Nauta move 30 boxes back into storage on June 2 — because the search warrant affidavit relies on it. But they may not have shown Walt Nauta remove a single box from storage on May 22.

That, of course, was just the first subpoena for surveillance footage. There were more, undoubtedly including for footage showing Nauta and De Oliveira checking out the surveillance cameras with a flashlight on June 25, 2022, entering the IT department, walking through a basement tunnel and into an “audio closet,” then walking back into the IT office on June 27, and possibly, still on June 27, walking into the bushes just off of Mar-a-Lago property for two discussions. This superseding indictment must rely on a later subpoena for more surveillance footage from which the specific times of these movements would have been obtained.

Indeed, when De Oliveira allegedly flooded the IT room in October — at a time when Judge Aileen Cannon had put a stay on the investigation of these activities — he may have been attempting to thwart a second or third subpoena attempt, a cover up of the attempted cover up, an attempt to destroy the surveillance footage that ended up in this indictment.

Altogether, the surveillance footage that DOJ has since obtained covers nine different months.

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ claims to have pinpointed which cameras they wanted and on what specific dates.

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage.

But there’s something in that surveillance footage that has made Trump very concerned about leaks, more so than he was about the documents seized last August.

This indictment provides shocking new details about Nauta and De Oliveiras’ alleged efforts to comply with Trump’s orders to destroy surveillance footage.

But it does not yet explain how reported gaps ended up in the surveillance footage.

And it doesn’t yet explain what Trump was trying to hide — what was worse than video showing Nauta emptying out the storage closet and then only half-filling it before Evan Corcoran did a search.

The Superseding Stolen Documents Indictment: Buying Loyalty

/205 Comments/in , /by

While all the journalists were in Prettyman Courthouse in DC, Jack Smith superseded the Florida stolen documents indictment to add Trump employee Carlos De Oliveira — the property manager — to the indictment.

He’s the guy who helped Walt Nauta move boxes around, including loading them to go to Bedminster. Nauta also allegedly asked him to help destroy surveillance footage.

The superseding indictment adds another stolen document count — the Iran document he showed others, which is classified Top Secret — and another obstruction count for attempting to destroy the video footage.

This passage describes how Nauta flew to Florida to attempt to destroy security footage.

This is a key paragraph of the superseding indictment. It shows how Trump uses legal representation to secure loyalty. It’s a fact pattern that crosses both of Trump’s crimes, and may well be in the expected January 6 indictment. It may help to break down the omerta currently protecting Trump.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

Several uncharged Trump employees have been added to the indictment.

  • Trump Employee 3, who simply passed on the information that Trump wanted to speak to Nauta on the day Trump Organization received a subpoena
  • Trump Employee 4, who is the Director of IT who had control of the surveillance footage; according to some reports, he had received a target letter
  • Trump Employee 5, who is a valet, but from whom DOJ seems to have firsthand testimony

The passage above seems to rely on testimony from Trump Employee 5 and the final exploitation of Walt Nauta’s phone.

It remains to be seen how DOJ learned the specifics of Trump’s conversation with De Oliveira.

And the PAC Representative — to whom Trump showed an Iran document — has been referred to as Susie Wiles. She’s a pivotal person in the alleged misuse of PAC-raised money.

This superseding indictment substantiates the obstruction more. But it also starts chipping away at the dangling of lawyers to obstruct the investigation.

Update: Here’s Jack Smith’s description of the additions.

May 20, 2024: Aileen Cannon’s Still Not Totally Unreasonable Order

/149 Comments/in , /by

Judge Aileen Cannon has set a date for Donald Trump’s second criminal trial: May 20, 2024, to follow a second rape trial (in December) and a hush payments cover-up trial (in March).

Rape, sex workers, and then stolen classified documents, that’s what Trump will be doing as he tries to run for President.

Her order is not, on its face, unreasonable. It sets a CIPA trial for 49 weeks after it was charged, which is solidly within the scope of what it normally takes to bring these cases to trial. She has made this a complex case which is similarly not unreasonable.

The most unreasonable part of her order, thus far, is that she set the trial to be held in her tiny courtroom in Fort Pierce, making it utterly unworkable for the press.

Calendar call in this matter will be held on Tuesday, May 14, 2024, at 1:45 p.m. in the Fort Pierce Division. The case is set for Jury Trial in the Fort Pierce Division during the two-week trial period commencing on May 20, 2024.

The second most unreasonable part of her order is that she has treated the classified protective order as a month-long fully briefed affair, effectively absolving Trump and his co-defendant of conferring like grown-ups, such that classified discovery might not begin until after August 25, two months of delay she is adding to this timeline on top of the three months of delay she created last year.

Finally, she deferred on the question of whether the election will make jury selection next May impossible.

Defendants identify various additional factors the Court deems unnecessary to resolution of the Government’s motion at this juncture, most principally the likelihood of insurmountable prejudice in jury selection stemming from publicity about the 2024 Presidential Election [ECF No. 66 p. 9].

Again, this is not unreasonable, at least thus far. But she is letting Trump and Walt Nauta stall by obstructing from the outset.

Poof! How Jack Smith Made 800,000 Pages into 4,500

/55 Comments/in , /by

This post talks about what the government filing in the Trump stolen documents case says about the evidence. This other post talks about the legal argument against a delay.

As I noted, Trump’s response to DOJ’s bid for a December trial made an argument for complex designation, based in part on the volume of evidence involved. If that argument convinces Aileen Cannon, Trump is more likely to get her to order a significant delay.

It’s a reasonable argument — and would be more so were the discovery burden as onerous as Trump laid out.

But at least according to the government’s reply, it’s not. Not even close. The government reply shows how Trump inflated these numbers and how the government has streamlined the discovery process.

Whereas Trump claimed there were 800,000 pages of evidence,

Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians.

DOJ noted that only about 4,500 of that is “key” to the case and a third of that consists of email headers involving two people.

Although the Government’s production included over 800,000 pages, the set of “key” documents was only about 4,500 pages. 2

2 Nearly one-third of the over 800,000 pages consists of non-content email header and footer information obtained pursuant to 18 U.S.C. § 2703(d) for two account holders.

Whereas Trump complained about 57 terabytes of surveillance footage,

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ explained that while the footage might be selected from across nine months of time, here, too, DOJ has selected the key bits and “many” of the cameras don’t record continuously (which means some do, which would be stuff obtained since the August search).

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage

This argument may well make or break the government’s bid for a timely trial, because they’ll need to refute Trump’s complex designation bid to keep on a tight schedule.

And that’s one of many reasons (another is to make sure Trump and, especially, Walt Nauta can see what else they might be looking forward to) why they’re basically providing everything up-front, include Jencks production reflecting what witnesses have said about this case, which they’re not obligated to turn over until the morning of trial. And they’re providing every witnesses’ testimony, not just those they’re calling at trial.

The Defendants also rely on the Government’s statement in its discovery letter that “there will be additional productions of discovery” related to some devices and search warrant returns, and note that “the Government has not produced all interview-related materials, including certain witness statements and associated memorialization of those statements.” Resp. at 4. Defendants omit representations in the Government’s discovery letter about the timing of discovery that has been and will be provided. The Government has informed the defense that it intends to disclose promptly all witness statements and associated memorialization of those statements, even if they would not be discoverable under 18 U.S.C. § 3500. To that end, the Government has already produced all unclassified witness statements and the associated memorialization of those statements for interviews that occurred prior to May 12, 2023, and transcripts of all grand jury testimony from the District of Columbia and the Southern District of Florida through the present. See ECF No. 30 at 1. In the next week, the Government will produce unclassified witness statements and associated memorialization for interviews conducted between May 12, 2023, and June 23, 2023. The Government has made these productions promptly following arraignment despite having no obligation to do so. See ECF No. 28 at 4, obligating the Government to turn over Jencks Act material no later than “the morning of the first day of trial.”

With respect to the devices and search warrant returns, the Government has produced all applications for search warrants and the warrants themselves, in order to facilitate the Defendants’ ability to file pretrial motions. The Government has also produced all relevant content from devices it obtained, except for (a) three devices that were produced voluntarily, the relevant content of which will be produced in the next week; and (b) two of Defendant Nauta’s devices. For Defendant Nauta’s devices, the Government has already produced much of the responsive filtered, scoped content based on the Government’s earlier review of the devices’ content in a different form. In short, the Government has promptly produced thorough discovery in an organized manner, to include early production of Jencks Act materials. It also bears emphasis that the Government has already sought a nearly four-month continuance of trial, in part because of the need for both sides to review and process discovery. Mot. at 3. There is no discovery-related reason to further delay the jury selection in this case beyond December 2023. [my emphasis]

The government really did have this prosecution all prepped to go.

The rest of this, while also intended to help persuade Judge Cannon that the government has done everything it can to facilitate discovery here, provides a few interesting details about the case.

First, one of the last things the government is turning over are the three devices produced voluntarily. These probably came from a cooperating witness or witnesses, and if that’s right, DOJ may have held them until everyone had filed their appearance and signed a protective order, since any cooperating witnesses are most likely to be targeted for harassment.

The government seems to have seized two of Walt Nauta’s devices recently, possibly with arrest. The government seems to think they had most of this content already (perhaps from a backup). The phones themselves might include Signal or other encrypted app primarily available from the phones themselves.

The timing described is the most interesting thing:

  • The first batch of discovery included everything prior to May 12, around when Jack Smith decided to charge this in Florida
  • The government is about to turn over everything between May 12 and June 23
  • It has already provided all grand jury testimony from grand juries in DC and SDFL

Note the last bullet: You don’t need to specify that you’re referring to the DC and SDFL grand juries if they are the only ones.

Indeed, the scope of that discovery suggests DOJ may have started with a third grand jury after June 23. It’s not even — necessarily — New Jersey (though that’s the most obvious possibility). If evidence was altered in New York, it could be there too.

The government has provided Trump and Nauta virtually every unclassified thing they’d need to defend this case and bundled it up to make it easy (which, again, will also make it easier for Nauta to decide whether he really wants to risk his future on Trump winning the 2024 election).

The hold-up now is that at least two attorneys have not submitted their SF-86 forms to get clearance — which, the government helpfully notes, are due today: “The Court has set a deadline of today for them to do so. ECF No. 57.”

Meanwhile, any other hypothetical grand juries can keep working.

Update: Both Trump and Nauta’s lawyers have submitted their certificates of compliance with Judge Cannon’s order that they submit their SF-86 forms by yesterday. Chris Kise, who is the lawyer who may be disqualified from clearance (because he has recently worked as an agent of Venezuela’s government), technically did not comply: he still has to be fingerprinted, though promises that will be done by next Monday. Meanwhile, Nauta’s lawyers have laid the groundwork for a 6th Amendment challenge to the requirement that they get clearance. It’s an interesting issue, but he’s being disingenuous about why Judge Cannon (separation of powers) and the jury (because they only see things after CIPA has been finished) don’t need clearance.

Update: ABC reports that the guy who handled the surveillance video has received a target letter.

Special counsel Jack Smith in recent weeks transmitted a target letter to the staffer indicating that he might have perjured himself during a May appearance before the federal grand jury hearing evidence in the classified documents probe, the sources told ABC News.

[snip]

Reached Thursday by ABC News, the employee declined to answer questions about a possible target letter and his discussions with investigators, saying only, “It’s none of your business.”

Stanley Woodward, a lawyer who has represented the employee and who represents several other Trump advisers, declined to comment to ABC News.

By description (see this post for background), this is the IT contractor Yuscil Taveras (whom NYT described to be represented by Woodward) not longtime maintenance guy Carlos Deoliveira (whom WaPo described to be represented by John Rowley).

This makes the timing of the discovery more interesting. The government is about to turn over DC grand jury materials and other interviews from after May 12 — that is, they haven’t yet turned over Taveras’ to Woodward. That suggests they may be about to charge him before they turn that over.

Taveras testified to the DC grand jury, so if he is charged with perjury, he’ll be charged there.

This likely complicates Woodward’s life significantly.

Jay Bratt to Chris Kise: You Already Made that Frivolous Presidential Records Act Argument

/23 Comments/in , , /by

This post talks about the government’s legal argument against delay in the Trump stolen documents case. This other post talks about the filing’s description of the evidence in the case. 

My favorite part of the government’s reply to Trump’s request to put off his Espionage Act trial indefinitely comes in how they rebut Trump’s argument that there are novel issues that will require more time.

DOJ dismisses Trump’s suggestion that there’s a question about whether the Special Counsel could prosecute him by pointing to the appeal from the key witness protecting Roger Stone, Andrew Miller.

In re Grand Jury, 916 F.3d 1047, 1052–54 (D.C. Cir. 2019), the D.C. Circuit held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.

More hilarious is the way they dismiss the claim that Trump needs a lot of time to make the Presidential Records Act argument he lifted from (noted non-attorney) Tom Fitton. They do so in several ways: noting that the argument really isn’t going to work and that even if they want to try it, the only thing they need to try is the indictment.

But then they note that Trump, with one of his existing counsel — Chris Kise, already made that argument, before Judge Cannon.

As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it.

[snip]

As with any pretrial dispositive motion, all that is necessary is the Indictment—which the Defendants have had for over a month. And in fact, Trump (including his current counsel) has already briefed in this Court a variation of this argument. See, e.g., No. 22-CV-81294-CANNON, ECF No. 171 (filed Nov. 8, 2022). The legal issues Defendants raise do not justify deviation from a speedy trial date, much less open-ended deferral of considering one.

Jay Bratt went easy on Trump: He doesn’t bother reminding Kise (and Aileen Cannon) how that worked out before the 11th Circuit the last time they tried it.

Ultimately, though, the core nugget of the filing is this: The Speedy Trial Act requires a judge to set a trial date.

Any discussion of setting a trial date must begin with the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–3174 (the “Act”). The very first sentence of the Act forecloses Defendants’ proposal here:

In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, … so as to assure a speedy trial.

18 U.S.C. § 3161(a). The Defendants chide the Government for seeking an “expedited” trial (Resp. at 1, 2, 8), but in doing so they have it exactly backward. A speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified. See U.S. Const. amend. VI; 18 U.S.C. Ch. 208 (captioned “Speedy Trial”).

[snip]

“That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely,” id., which the Defendants effectively try to do here by requesting an indefinite adjournment of the trial, for a minimum of some fifteen months.1 See Barker v. Wingo, 407 U.S. 514, 519 (1972) (noting the “societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.”).

This filing doesn’t get very deep into Trump’s claims about the election. It side-steps the issues I pointed to — voters’ need to know whether Trump reneged on the promises he made the last time he got elected. It acknowledges picking a jury may be tough but says that’s good reason to get started on it earlier. It even notes that Trump’s busy work schedule, like those of a lot of powerful people charged with a crime, is not an excuse to put off trial indefinitely.

[T]he demands of Defendants’ professional schedules do not provide a basis to delay trial in this case. Many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel. The Speedy Trial Act contemplates no such factor as a basis for a continuance, and the Court should not indulge it here.

While I find several of these arguments persuasive, ultimately, it’s unclear whether this filing will work. We’re at the point where we’ll get the first hint of how Judge Cannon plans to approach this case.

But by laying out that she cannot do what Trump has asked, simply delay the case indefinitely, it simplifies her choices.

Nine Months of Surveillance Video: Trump’s Newfound Worries His Discovery Will Leak

/115 Comments/in , /by

As I alluded to here, hidden in Trump’s bid to push his trial out past the November 2024 election is a confession that the discovery he has gotten in the case is really damning — more damning than the documents seized last August.

In his filing, his attorneys say that the discovery is so sensitive, it is impossible to use contractors to help review the discovery.

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

It’s hard to explain what a stunning claim this is, particularly given that Trump was perfectly happy to trust just such a third-party service in his Special Master bid before Judge Aileen Cannon last year, as evidenced by a series of filings last September and October.

Consistent with Judge Cannon’s order (ECF 125, at 3), the parties entered contracts with thirdparty vendors to scan, process, host, and provide a review platform for the Seized Materials.

Even though a key argument in Trump’s bid for that Special Master pertained to leaks, he nevertheless let a third party handle every unclassified document seized from Mar-a-Lago in August.

1 The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported “classified records,” see, e.g., Devlin Barrett and Carol D. Leonnig, Material on foreign nation’s nuclear capabilities seized at Trump’s Mara-Lago, WASH. POST (Sept. 6, 2022), https://www.washingtonpost.com/nationalsecurity/2022/09/06/trump-nuclear-documents/, and would presumably be prepared to share all such records publicly in any future jury trial. However, the Government advances the untenable position in its Motion that the secure review by a Court appointed and supervised special master under controlled access conditions is somehow problematic and poses a risk to national security.

That’s not surprising: such vendors are involved in every legal case involving voluminous digital discovery. And their business model is so wrapped up in signing and upholding protective orders, they don’t leak.

Yet Trump’s lawyers imply they might here.

With that in mind, I want to look at what Trump says he has seen in discovery so far.

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

In addition, “there will be additional productions of discovery” provided by the Government, as it continues to process “some devices and search warrant returns.” Notably, the Government has not produced all interview-related materials, including certain witness statements and associated memorialization of those statements. [my emphasis]

Some of this doesn’t look that burdensome, or surprising. Trump mentioned 90 separate custodians. Well, DOJ has a list of 84 witnesses with whom it doesn’t want Nauta and Trump to speak, so this is partly saying that witnesses who testified were asked for discovery. The likely additional custodians are going to be entities like Trump’s own corporation, NARA, and the Secret Service.

Some of those records will include texts. The list of Bates stamps released last year shows 21,792 pages of unclassified documents seized last August that Trump’s lawyers already got to review in detail. The government may be obliged to turn over copies of some or all of the 15 boxes returned in January 2021, too, since Trump’s sort through them is part of the indictment.

It’s a lot. But it wouldn’t be a lot if Trump were using a discovery vendor.

What I find more interesting are the “devices and search warrant returns” that Jack Smith’s team is still processing. There are phones or computers that the government has not yet finished searching. And there are witness statements that — whether for ongoing investigative reasons or other sensitivities — DOJ has yet to turn over. That’s interesting!

Then there are the nine months of surveillance footage. As I noted in this post, in response to the original June subpoena for five months of surveillance footage, Trump turned over just two months. It’d be easy to see how DOJ came to request surveillance footage through December of last year (because documents kept moving around), and it’s unclear whether this includes footage from Bedminster in addition to Mar-a-Lago.

Still, all that footage came from Trump’s own properties! He’s just getting what he already owns back.

DOJ obtained far, far more surveillance footage after that original batch focused just on a basement hallway. And it’ll show the much more mundane stuff of Trump’s corrupt flunkies wandering around his properties — and possibly who knows what foreign parties nosing through boxes in the gaudy bathroom to see what kind of documents Trump brought home. DOJ will undoubtedly point Trump to what they consider the highlights. But I can understand why Trump wouldn’t want that video in the hands of anyone he couldn’t trust implicitly, often for reasons entirely unrelated to the case at hand.

All that said, DOJ has had this information for months and months.

And contrary to what leaks to that favorite right wing outlet Devlin Barrett would have you believe, it hasn’t leaked. Trump says a vendor whose entire business model depends on keeping secrets can’t be entrusted with these secrets. But the FBI has been sitting on some of them for almost a year and they haven’t leaked.

Trump’s lawyers may just be bullshitting here because it is the surest route to get this case declared a complex matter, entitling them to expanded pretrial delays. But the claims about the sensitivity of the discovery they’re making to support that argument are fairly astonishing.