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Return to Sender: DOJ Seized Evidence that Up to 90 Highly Sensitive Documents May Have Disappeared

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As you read the more detailed inventory unsealed by Judge Aileen Cannon, keep in mind that Trump is under investigation not just for unlawful retention of classified documents, but also under both 18 USC 2071 and 18 USC 1519, for concealing documents and (under just 2071) for removing them.

And one of the most notable details about the inventory (aside from the fact that the Roger Stone pardon is classified Secret) is the number of empty folders:

  • Item 2: The leatherbound box, containing news clippings dated 1/2017 to 10/2018
    • 43 empty folders with CLASSIFIED banners
    • 28 empty folders labeled Return to Staff Secretary/Military Aide
  • Item 15: Box A-28, containing news clippings dated 10/2016 to 11/2018
    • 2 empty folders with CLASSIFIED banners
    • 2 empty folders labeled Return to Staff Secretary/Military Aide
  • Item 18: Box A-35, containing news clippings dated 1/2018 to 12/2019
    • 2 empty folders labeled Return to Staff Secretary/Military Aide
  • Item 23: Box A-39, containing clippings dated 11/2016 to 6/2018
    • 8 empty folders labeled Return to Staff Secretary/Military Aide
  • Item 25: Box A-41, containing clippings dated 10/2016 to 11/2017
    • 1 empty folder with CLASSIFIED banners
  • Item 33: Box A-33 (includes potentially privileged documents), containing clippings dated 2/2017 to 2/2018
    • 2 empty folders with CLASSIFIED banners
    • 2 empty folders labeled Return to Staff Secretary/Military Aide

All told, then, there are 48 empty CLASSIFIED document folders and 42 empty “Return to Staff Secretary/Military Aide” folders. Each of those is a highly sensitive — and now potentially missing — document.

Update: I’ve added the two empty CLASSIFIED folders in Item 15 and adjusted the headline.

Update: Here’s my initial pass at the inventory (I need to proof the numbers; my missing Secret document happened to be Roger Stone!). An important point: Every one of the boxes seized had at least 2 government documents in it. Altogether, the FBI seized over 11,000 documents without classification markings.

 

No One Puts Roger Stone in a Box

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As I noted in my first post on Wednesday’s DOJ response to Trump’s bid to get a Special Master, the filing provides more details about what the FBI found where.

I’ve updated my nifty graphic accordingly.

As a reminder, this graphic attempts to show with horizontal boxes where things were seized, and with vertical boxes, to show where they were cataloged. The original search inventory was catalogued on two different receipts: one — which I refer to as the CLASS receipt — on which all boxes described to contain documents marked as classified were listed, and another — which I refer to as the SSA receipt because the Supervisory Special Agent signed it — which Fox News subsequently reported was where all the potentially privileged materials were catalogued. Once emptywheel gets a graphics department, I’ll update this to reflect 22 boxes were found in the storage room.

While we can’t be entirely certain, it appears that further sorting of the items on the SSA receipt of potentially privileged items has identified two more boxes and 3 additional documents marked as classified.

Another thing I think we can say is that the FBI found Roger Stone in Trump’s desk drawer, not some dusty box stored in a converted bomb shelter.

According to the filing, FBI seized classified materials from just two rooms: Trump’s office and a storage closet.

[C]lassified documents were found in both the Storage Room and in the former President’s office.

The filing also makes clear that the TS/SCI documents in the picture included as an appendix came from a container seized from Trump’s office.

See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).

That helps us sort out the locations of the items seized in the search. The label “2A” in the picture confirms the container in question is item 2 on the inventory, the leatherbound box, which is further confirmed because that box was the only one in the entire inventory described to enclose TS/SCI documents. So that also makes clear (as I suspected) that the leatherbound box was seized in Trump’s office.

In part based on known FBI search processes and the role of proximity in this search protocol, we can surmise that the other items lacking an A-prefix were also seized in Trump’s office (items 1 through 7 here, plus item 4, described only as “documents,” on the SSA receipt that we know lists the items originally identified as potentially including privileged material). It’s hypothetically possible that some of those items were seized in Trump’s residence, but in part because the filter team only searched Trump’s office and in part because there’s not a second series of numbers from a room identified as “B,” I think it more likely this stuff was in Trump’s office.

Given that the only other location from which classified documents were seized was the storage room, it suggests all the A-prefix boxes were seized there. Again, that makes sense given what we know of FBI processes: they label a room with a letter, then label the items in that room by letter and number. There were at least 73 boxes or other items searched in that storage room.

So the first page of what I call the CLASS receipt, the items outlined in red would have been found in Trump’s office, and the items outlined in purple would have been found in the storage room. Everything else on the CLASS receipt, too, would have been seized from the storage room.

And the SSA receipt included some number of documents seized from Trump’s office that filter agents wanted to review some more, as well as five boxes that, for some reason, investigative agents stopped searching and brought to the filter team to handle.

If all that’s right, it means that DOJ seized 26 (out of at least 73) boxes from the storage room, and seven items total (one of which was described as “documents,” plural, on the SSA privileged receipt) from Trump’s office, for a total of 33.

I’ll come back to that number, 33.

From that inventory, according to DOJ’s filing, 13 boxes include documents marked as classified, and all told, the FBI collected over 100 documents marked classified on August 8.

Of the Seized Evidence, thirteen boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were seized.

Those over 100 break down this way, by location:

  • 76 documents found in boxes in the storage room
  • 3 documents (individually) found in desk drawer(s) in Trump’s office
  • At least 22 documents in the leatherbound box (I count around 23 from the picture)

It’s the number of total boxes with documents marked as classified, 13, that can’t be reliably broken down.

That’s because DOJ’s filing describes two more boxes that contain documents marked as classified, 13, than are reflected on the receipts, which show 11. They’ve found two more since August 8. The extra two boxes may come from one of two places: either boxes on the CLASS receipt that were not previously identified to include documents marked as classified but in which one or two classified documents were discovered on closer inspection, or boxes among the five originally on the SSA receipt that, after further filter review, were subsequently discovered to have classified documents.

It doesn’t really matter in the grand scheme of things — two boxes post-privilege review or two boxes in which there’s a stray classified document shorn of its cover sheet.

But it may reflect further processing of materials on the SSA receipt.

The government’s language on this is a bit confusing. In one place, the government seems to suggest the case agents have not reviewed anything in the containers originally designated to include potentially privileged documents (though this may simply mean the investigative team has finished its scrutiny of all boxes known not to contain privileged documents, without commenting on the rest).

The investigative team has reviewed all the materials in the containers that the privilege review team did not segregate as potentially attorney-client privileged.

In another place the government filing seems to suggest that since seizing the documents, a subsequent privilege review may have freed up materials — like some of the contents of those five boxes and documents, plural, from Trump’s office — for subsequent review or, in the case of Trump’s passports, return to the subject of the investigation.

[T]he government’s filter team has already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege.

In a third place, the government’s filing seems to suggest that DOJ has freed up everything not identified as potentially privileged, resulting in a much smaller possible universe of potentially privileged documents than the original five boxes plus “documents” laid out on the SSA receipt.

The privilege review team has completed its review of the materials in its custody and control that were identified as potentially privileged. The privilege review team identified only a limited subset of potentially attorney-client privileged documents.

I don’t so much care about the uncertainty except insofar as the small number might thwart Trump’s efforts to stall things with a Special Master review.

But several other things suggest that after pulling six items (five boxes from the storage room and “documents” from Trump’s office) for closer review on August 8, it has since freed up things that are clearly not privileged, and along the way identified some number of documents marked as classified.

One reason that almost has to be the case is that DOJ has segregated all classified documents because it has to do so to keep them secure (which will also help prove any eventual charges against Trump).

All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information.

This seems to suggest that even for the potentially privileged documents, the filter team has at least identified if they’re classified, so they can be stored someplace more secure than a hotel safe.

Another reason that seems, necessarily, to be true is that DOJ talks about documents marked as classified. While the FBI seized three individual documents from what appears to be Trump’s desk drawer — the Roger Stone clemency, a potential Presidential Record, and a handwritten note — none of those were described as classified, which would be easy to note. They might be classified, but they are not marked as such.

Which is to say that the two boxes not identified on the CLASS receipt that, per DOJ’s filing had classified documents, may be two that also contain potentially privileged documents. And the three documents from the desk drawer that are marked as classified were among those the filter team thought might be privileged. And in fact, Trump seems to know there are potentially privileged documents that are also classified. About the only thing Trump’s lawyers agree with DOJ about, regarding a hypothetical Special Master, is that that person should have TS/SCI clearance. (Which seems to be a confession that Trump broke the law, but Trump and his lawyers are doing that a lot of late.)

That also seems to be the only way to explain the treatment of items from Trump’s office: the filter team identified things that clearly weren’t privileged — such as the leatherbound box and all its contents and two binders of photos — then seized the rest as a category, documents, that they they have since done a more attentive privilege review on.

Three classified documents that were not located in boxes, but rather were located in the desks in the “45 Office,” were also seized. Per the search warrant protocols discussed above, the seized documents included documents that were collectively stored or found together with documents with classification markings.6

6 Plaintiff repeatedly claims that his passports were outside the scope of the warrant and improperly seized, and that the government, in returning them, has admitted as much. See D.E. 1 at 2 & n.2; D.E. 28 at 3, 8, 9. These claims are incorrect. Consistent with Attachment B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion.

That’s how it was possible to seize three passports but not have them show up on the original receipt. They were included along with those documents, plural, on the SSA receipt. But then further review made it clear that Trump’s visa stamps are not classified, and Jay Bratt returned them to Evan Corcoran.

In my nifty graphic above, I’ve put the passports where they belong, in a desk drawer in Trump’s office.

Now let’s return to DOJ’s affirmation that the total number of items seized were 33.

Remember when I wrote an entire post, based on the FBI’s Borgesian counting methods, arguing that others were making a big mistake by assuming there was one item, Roger Stone clemency for things we know about — his lying to cover up how he coordinated with Russia in 2016 — listed as item 1, and another separate item, information about a French President, listed as item 1A?

Well, the people who filed Wednesday’s filing — who presumably have DOJ’s detailed inventory in hand — tell us that the number of items seized equals 33.

During the August 8 Execution of the Search Warrant at the Premises, the Government Seized Thirty-Three Boxes, Containers, or Items of Evidence, Which Contained over a Hundred Classified Records, Including Information Classified at the Highest Levels

Pursuant to the above-described search protocols, the government seized thirty-three items of evidence, mostly boxes (hereinafter, the “Seized Evidence”), falling within the scope of Attachment B to the search warrant because they contained documents with classification markings or what otherwise appeared to be government records.

That’s precisely the number recorded on the inventory. 33.

The only way the people in possession of that more detailed inventory would assert, still, that there were 33 items on the original inventory is if item 1, Executive Grant of Clemency for Roger Jason Stone, Jr., and item 1A, info re: President of France, are the same object.

If there are 33 items, Trump granted clemency to Stone for something to do with a French President.

Let me repeat that: If the people who wrote this filing, who unlike you and I are privy to the detailed inventory of what was taken, say there were 33 items taken, then the Stone clemency itemized as item 1 in the inventory we do have contains — within it — information about a French President.

This is a pardon or some other kind of clemency that, rather than giving it to DOJ for publication, Trump stuck in a desk drawer. Not a box in a storage room. Trump had a pardon (or some other clemency) for his rat-fucker about an unknown subject relating to a French President, stashed in his desk drawer, apparently right next to his passports and three documents marked as classified that may be privileged.

And that’s one of the reasons I found DOJ’s generous offer to unseal the more detailed receipt, in the guise of sharing it with Trump, to be rather delicious.

1 Plaintiff also sought a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant. D.E. 1 at 19-21; see generally D.E. 28. The Court ordered the government to file under seal “[a] more detailed Receipt for Property specifying all property seized pursuant to the search warrant.” D.E. 29 at 2. The government filed today under seal, in accordance with the Court’s order, the more detailed receipt. Although the receipt of property already provided to Plaintiff at the time of the search, see In Re Sealed Search Warrant, No. 22-MJ-8332 (S.D. Fla.) (hereinafter, “MJ Docket”), D.E. 17 at 5-7, is sufficient under Fed. R. Crim. P. 41, the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to Plaintiff. [my emphasis]

Be careful of what you wish for, Donny, especially with the press coalition already asking Judge Cannon to unseal these sealed materials.

If Trump pardoned Roger Stone for something to do with — say — a hack-and-leak campaign, conducted in coordination with the GRU, targeting Emmanuel Macron, but then stuck the pardon in his desk drawer rather than sending it to DOJ to be published along with all his other utterly corrupt pardons, it’s not something he wants to be public. My guess is the potential Presidential Record and the handwritten note, also apparently found in his desk drawer, are similarly things Trump wouldn’t like to be public. Likewise the three classified, potentially privileged documents found in the same desk drawer, which he agrees would require a TS/SCI clearance to review.

Trump stuck his rat-fucker in his desk drawer. And now his efforts to gum up this investigation may make that public.

Update: Judge Cannon has thwarted live coverage of the hearing on this today. But NBC reported that she will not order the release of the more detailed inventory, which may suggest she recognizes it doesn’t help Trump.

How DOJ Continues to Build Its Case that Trump Improperly Retained National Defense Information

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DOJ’s response to Trump’s request for a Special Master last night did a bunch of things — most notably, debunking lies Trump’s camp had been telling.

But I want to point to several details presumably designed not just to impress Judge Aileen Cannon that this is more serious than Trump has made out, but to give Trump and his attorneys notice that they’re dealing with National Defense Information.

As I and others have noted repeatedly, the Espionage Act doesn’t criminalize the refusal to return classified information. It criminalizes the refusal to return National Defense Information. That’s a legacy of how old the law is — it predates the current US classification system.

But it means Trump’s crowing about having declassified documents is simply bluster, irrelevant to his exposure under the statute.

The distinction between classified and National Defense Information not only shows up in Trump’s affidavit, but it shows up in a key spot: modifying a still-redacted paragraph between the discussion of the June 3 meeting (which, because it pertained to grand jury information, is entirely redacted in the affidavit) and the discussion of Jay Bratt’s June 8 follow-up.

2 18 U.S.C. § 793(e) does not use the term “classified information.” but rather criminalizes the willful retention of “information relating to the national defense.” The statute does not define “information related to the national defense.” but courts have construed it broadly. See Gorin, .. United States. 312 U.S. 19. 28 (1941) (holding that the phrase “information relating to the national defense” as used in the Espionage Act is a “generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness”). In addition, the information must be “closely held” by the U.S. government. See United States v. Squillacote. 221 F.3d 542, 579 (4th Cir. 2000) (”[I]nformation made public by the government as well as information never protected by the governent is not national defense information.”); United States, .. Morison. 844 F.2d 1057, 1071-72 (4th Cir. 1988). Certain courts have also held that the disclosure of the documents must be potentially damaging to the United States. See Morison, 844 F.2d at 1071-72. [my emphasis]

In context, when Bratt contacted Evan Corcoran and instructed him to secure the storage room where, DOJ suspected correctly, classified documents were still being stored, he was asking Corcoran to protect the information.

In yesterday’s filing, the government demonstrated what properly protecting NDI looks like in practice. The example that has — deservedly — gotten the most attention is the description of case agents and National Security Division attorneys having to get additional clearances to access this information.

In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.

Trump was storing this stuff in a hotel safe. But when FBI and DOJ got the materials back, they wouldn’t let anyone look at the documents until they got additional clearances first.

DOJ also described that the classified materials that have been seized have been segregated and properly stored.

All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information.

DOJ intends that these special protections will extend to these court proceedings: DOJ demanded that if Judge Cannon decides to appoint a Special Master, she pick someone who is already cleared at the TS/SCI level.

If the special master must be permitted to review classified documents, in order to avoid unnecessary delay, the special master should already possess a Top Secret/SCI security clearance.

And finally, there’s the rationale that DOJ raised over and over again for why it needs to retain access to all the classified materials: The Intelligence Community needs to and has already started the process of assessing what kind of damage Trump did by keeping this stuff in his hotel safe.

The Intelligence Community is also reviewing the seized documents to assess the potential risk to national security that would result if these materials were disclosed while they were unlawfully stored at the Premises.

[snip]

As the government has explained, the Intelligence Community, under the supervision of the Director of National Intelligence, is conducting a classification review of those documents and an assessment of the potential risk to national security that could result from their disclosure.

Thus far, Trump’s lawyers have been oblivious to such warnings.

But if DOJ were to charge this, his attorneys’ obliviousness may be Trump’s downfall. I laid out (most recently in this post) what a jury would be asked to consider if Trump ever were put on trial for his actions. One central question would be whether the jury believed this was NDI, including whether (as bolded above) it was closely held. And one thing prosecutors would demonstrate, at length, is that whatever the former President did with these documents, the rest of the government continued to closely hold the materials.

If Trump’s lawyers were smart, they’d read last night’s filing and realize that every time they make DOJ write up another document, DOJ further documents things that would be key evidence against Trump at trial.

This stunt about a Special Master — whatever else it is — is also helping DOJ strengthen any prosecution of Trump for his actions.

Christina Bobb Claimed No Copies of the Stolen Classified Documents Had Been Made

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I want to look more closely at the actions of Evan Corcoran (described as “counsel” in last night’s filing before Aileen Cannon) and Christina Bobb (described as “Custodian of Records”) surrounding the June 3 meeting a Mar-a-Lago.

DOJ’s filing describes how DOJ served a subpoena on Trump on May 11, with a return date of May 24.

Through its investigation, the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022. See Attachment C; see also D.E. 1 at 5. The subpoena was directed to the custodian of records for the Office of Donald J. Trump, and it requested “[a]ny 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 [list of classification markings].” Attachment C. DOJ also sent the former President’s counsel a letter that suggested they could comply 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.” See Attachment D. The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect. Id.

The subpoena asked for all documents with classification marks, and specified a bunch of classification marks, which suggests what DOJ thought they were looking for:

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/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS-O/NOFORN/ORCON, Top Secret/HCS–O/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TK/NOFORN, 1- Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS0/NF/OC, TS/HCS-0/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TK/NF, S/NF, S/FRD, S/NATO, S/SI, C, and C/NF.

Here’s what some of those markings mean:

  • HSC-P refers to a product of Human Intelligence (HUMINT).
  • HSC-O refers to an operation being conducted with HUMINT.
  • TK refers to satellite collection.
  • SI-G refers to intercepts from Signals Intelligence (SIGINT).
  • FRD refers to former Restricted Data — that is, materials formerly restricted under the Atomic Energy Act. Bill Leonard, the former head of ISOO, explains that this material is still covered by AEA, meaning the President cannot unilaterally declassify it.

FRD is still covered by the Atomic Energy Act.    It primarily refers to the military utilization of nuclear weapons and can be handled as classified NSI but it is not NSI and is still covered by the Atomic Energy Act, thus even the President cannot unilaterally declassify.

At first, Trump stalled, asking for a delay, which DOJ initially refused, then granted. Then, on the evening of June 2, Corcoran contacted DOJ and told them to show up the next day.

The subpoena’s return date was May 24, 2022. Counsel sought an extension for complying. After initially denying the request, the government offered counsel an extension for complying with the subpoena until June 7, 2022. Counsel for the former President contacted DOJ on the evening of June 2, 2022, and requested that FBI agents meet him the following day to pick up responsive documents.

As DOJ describes the June 3 meeting that Trump’s side has been leaking about relentlessly, Jay Bratt and three FBI agents showed up and met with Evan Corcoran (“counsel”) and Bobb (“custodian of records”). Notably, DOJ makes no mention of Trump’s presence. That doesn’t mean Trump wasn’t present. But DOJ is certainly not repeating the tale that Trump waltzed in just before he left for Bedminster to meet his Saudi buddies and told DOJ they could have whatever they wanted.

Corcoran handed the documents over in a folder appropriate to the treatment of classified documents and — as DOJ notes — made no claim about Executive Privilege (even though less than a month earlier he had made expansive Executive Privilege claims in communications with Acting Archivist Debra Steidel Wall).

On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.

Then, Bobb handed over a declaration (I’ll return to the content below).

The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge. See Attachment E. 4

After Bobb handed over the declaration based on “information that has been provided to me,” Corcoran separately made a representation to FBI agents, a representation that would be subject to false statements charges under 18 USC 1001 if it were false.

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.

According to the DOJ, Bratt and the three FBI agents “were permitted” to visit the storage room. They emphasize here (as the Trump filing described an FBI agent doing at the time) that the search of the storage room was consensual. But they were not permitted to open any box.

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.

As DOJ explains, after the meeting, they developed evidence (we know from coverage that this included surveillance video showing boxes being moved in and out of the storage room, as well as witness testimony describing that Trump stored secret materials in his office) that there was more.

[T]he government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.

DOJ describes how the August 8 search proved that their video evidence and witness testimony proved to be correct: There were more classified documents in the storage room, and there were classified documents stored in a place other than the storage room: Trump’s office.

Notwithstanding counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room, classified documents were found in both the Storage Room and in the former President’s office. Moreover, the search cast serious doubt on the claim in the certification (and now in the Motion) that there had been “a diligent search” for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings. All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.

Given the extent of their representations, it is possible that neither Bobb nor Corcoran knowingly lied to the FBI, exposing themselves to false statements charges.

If no one told Corcoran about the stuff in Trump’s office and if all other classified documents had been moved out of the storage room, unbeknownst to Corcoran, he may have believed the following claims to be true:

  • All the records that had come from the White House were stored in one location—a storage room at the Premises
  • The boxes of records in the Storage Room were “the remaining repository” of records from the White House
  • There were no other records stored in any private office space or other location at the Premises
  • All available boxes were searched

It’s certainly possible that Corcoran was a victim of a ruse by his client and his client’s flunkies. After all, he had only recently joined Trump’s defense team (though had been representing Bannon for months). He was not a Mar-a-Lago insider.

DOJ, from their surveillance video, would likely know if Corcoran knew his claims to be true or not. But, given that Corcoran refused to let the FBI open any boxes, DOJ may have reason to believe he knew some of his claims were not true.

Similarly, if Corcoran had done the search on his own, with no involvement from “Custodian of Records Christina Bobb,” it’s possible she believed the following to be true:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

According to reports, she didn’t do the search. She had every reason to believe that Corcoran — who after all is a real lawyer — had done a diligent search.

I mean, it’s possible that Custodian of Records Bobb — who unlike Corcoran has been part of Trump’s crime spree for a while — also wasn’t a part or aware of the effort to remove documents from the storage room before Corcoran did the search.

It’s the following representation that Bobb seemingly offered up unbidden that makes my spidey senses tingle (particularly given the odd metadata on the copy of the Mark Meadows declassification memo I raised in this post).

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

Maybe DOJ asked Bobb to make such representations — but it’s not in the backup DOJ included with its filing. The letter Bratt sent Corcoran along with the subpoena said that if Trump chose to simply drop off the remaining classified documents at the local FBI officer,

The custodian would also provide a sworn certification that the documents represent all responsive records.

Trump’s people decided to type up a declaration even in spite of handing documents off personally, and they seem to have included an odd representation about making copies, unbidden.

Particularly given that weird metadata on the John Solomon document, showing creation of a document on September 27, 2021 and the apparent reproduction of that document on June 23, 2022, after the June 3 meeting, after Trump made Solomon a NARA representative, and days after DOJ subpoenaed the surveillance footage.

Update: Added clarifying language about FRD from Bill Leonard.

One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

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There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.

Key Details about Evan Corcoran that Evan Corcoran Did Not Disclose to Judge Aileen Cannon

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Over the weekend, Judge Aileen Cannon ordered DOJ — which had not yet been formally served in Donald Trump’s civil suit to get a Special Master appointed to conduct a review of the materials seized from his home — to take initial steps towards appointing a Special Master.

There are a lot of procedural reasons why that order is crazy.

But Judge Cannon might be excused for believing some grave wrong has been done against the former President. That’s because the two filings his lawyers submitted — neither of which was accompanied by a sworn declaration — were wildly misleading.

I’d like to lay out a few of those details here. (First filing, Supplemental filing)

One of the lawyers who signed the filings is Evan Corcoran.

Some useful background first. In the Steve Bannon case, Corcoran let Bannon’s earlier attorney, Robert Costello, join his defense team even though Costello was a witness in the case against Bannon. He did so even after DOJ warned that might pose a problem. Ultimately, Costello conceded that might pose a conflict and he dropped off the team. So even in the last year, Corcoran has been rather flexible about where the role of defense attorney ends and the role of witness begins.

Now let’s look at the filings that Evan Corcoran signed, with two others.

One thing that Evan Corcoran didn’t bother to tell Aileen Cannon is that Evan Corcoran plays a lead role in the filing. The following are actions described in the two Trump filings that Evan Corcoran is either known, or by consistent reference, must have done, but which are attributed only to Trump’s counsel:

  • Communicated with DOJ, the White House, and NARA about the documents
  • On June 3, met with Jay Bratt at Mar-a-Lago
  • Told Bratt and three FBI agents that Trump consented to a search of a storage room that contributed to the probable cause that Trump was still refusing to return classified documents
  • Asked Bratt to communicate with him if they needed anything more
  • On June 8, received an email directing Trump to secure the storage room
  • Was the person informed of the search on August 8
  • Engaged in “heated discussion” after being so informed
  • Asked three questions after being informed of the search
  • Refused to turn off surveillance video during the search
  • Was informed on August 11 that the FBI had seized materials that might include privileged material
  • On August 11, stated the following to Jay Bratt:
    • President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is “angry.'” The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.
  • Was informed that filter agents who searched the Former President’s office had taken three passports

Here are some other details regarding events in which Corcoran was involved that he did not disclose to Judge Cannon:

  • After the meeting with Bratt, Trump did not identify and provide all classified documents at Mar-a-Lago to DOJ in response to a subpoena
  • In response to a direction to Corcoran to secure the storage room, Trump did nothing more than add a new lock
  • Corcoran made the comment about “the heat [] building up” in the wake of an attack by an armed Trump supporter on an FBI office
  • After Corcoran was informed on August 11 that DOJ would not use a Special Master, he did nothing for ten days
  • DOJ did, in fact, include a Corcoran letter that the first filing suggested they had not, thereby alerting Bruce Reinhart of Corcoran’s claim that Presidents have absolute authority to declassify documents

Perhaps most critically, in the second filing that quotes from the warrant affidavit, Evan Corcoran did not disclose to Judge Cannon that Evan Corcoran’s own actions are described in the unredacted parts of the warrant affidavit. He is mentioned five times in just in the unredacted section (and the fact that the affidavit refers to FPOTUS COUNSEL 1 strongly suggests there’s an FPOTUS COUNSEL 2, Christina Bobb, mentioned in the redacted sections).

[redacted] 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.”

[snip]

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 [redacted] 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 au 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 farther notice.

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

That makes the other things that Corcoran chose to misrepresent to or conceal from Aileen Cannon far more important:

  • That the warrant provided the reason for the search
  • That the reason for the search was to find documents Trump had refused to return, which amounted to probable cause for violations of the Espionage Act, 18 USC 2071, and obstruction (Corcoran had falsely affirmed the warrant was about the Presidential Records Act, which was not named on the face of the warrant at all)
  • That a quote in the second filing focusing on Presidential Records neglected to mention the evidence of Espionage Act and obstruction in the same paragraph; Corcoran withheld the following bolded language:
    • Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
  • Trump fought for 8 months before he acceded to send the first 15 boxes back
  • Christina Bobb was the custodian of records that accepted service for a subpoena asking for all remaining classified documents
  • Trump didn’t return all classified documents in response to a subpoena for them
  • That custodian of records, Bobb, not some lawyer who happened to be in the neighborhood, signed off on the property receipt
  • Custodian of records Bobb made no objections as to the form of the search warrant receipt — one basis for the claimed action — at the time of the search or since
  • No Special Counsel issued a finding that the FBI agents who investigated Trump were biased; the Inspector General issued a finding that there no evidence bias affected the investigation and a Special Counsel attempted to make similar claims that have thus far all failed (Corcoran makes a slew of other false claims about the Horowitz Report as his basis to suggest the FBI has been mean to Trump)
  • The Acting Archivist Debra Steidel Wall obtained an Executive Privilege waiver for documents inappropriately withheld under the PRA in May and informed Corcoran of that
  • In the ensuing three months after Corcoran was informed of the Executive Privilege waiver, he is not known to have done anything to contest it
  • The National Security Division filter team Corcoran describes and the filter process described in the warrant appear to be different (the former seems to be one described to him by the Acting Archivist)
  • The filter team process in the warrant approved by Reinhart includes the possibility of a Special Master, something Corcoran claims Reinhart could not approve:
    • (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.
  • If the storage of classified materials fit the terms of the CFR guiding storage of classified documents, then the surveillance video Corcoran refused to turn off would have shown to Trump what materials were seized from where
  • That DOJ acknowledged the passports weren’t validly seized under the warrant (they were, and Corcoran even suggests why they were — because they were in the same safe holding classified documents), when DOJ simply said they weren’t included in the scope of the crimes under investigation

Evan Corcoran, in a filing that failed to disclose his own role in the events under investigation, misrepresented to the judge that this was a search about the Presidential Records Act and not an investigation into violations of the Espionage Act and obstruction.

He didn’t even tell her that he is named in the affidavit showing probable cause of obstruction.

Update: DOJ has acknowledged Cannon’s order. As expected, they’ve completed much of the privilege review already.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any. Additionally, the Department of Justice and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of materials recovered pursuant to the search. As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.

Six Days: Trump’s Second Whack Filing Is Too Late

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According to the Trump affidavit, between May 16 and May 18, the FBI conducted a preliminary review of the 15 boxes of materials he returned to NARA in January.

47. 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. Fm1her, 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.

We know from the letter from Acting Archivist Debra Steidel Wall that the FBI first got access to those records no earlier than May 12.

I have therefore decided not to honor the former President’s “protective” claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President “uphold[s]” the claim asserted by the former President, “the Archivist discloses the Presidential record”). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question , as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.

One … two … three … four … five … six.

That’s how many days it took the FBI to process 15 boxes of material and then find 184 unique pieces of evidence that the former President violated the Espionage Act.

Six days.

Now consider a detail included in the affidavit. As I’ve pointed out repeatedly, there was a filter team onsite. The affidavit helpfully explains that the primary job of the filter team was to do the search of Trump’s office.

82. The Case Team will be responsible for searching the TARGET PREMISES. However, the Privilege Review Team will search the “45 Office” and conduct a review of the seized materials from the “45 Office” to identify and segregate documents or data containing potentially attorney-client privileged information.

Probably, the case team brought the privilege review team five other boxes to review. That’s because Fox News told us already that all the items on what I call the SSA receipt include privileged materials, but the numbers for five of those boxes suggest they were found in the proximity of all the rest, likely the storage closet.

So five boxes (and a stash of documents) were identified to include privileged information. The remainder, a total of 22 boxes (one of which is the leatherbound box with the TS/SCI documents), would presumably be subjected to a similar process as that used in May.

Probably, that initial search was done with a limited team, because the investigation was not overt yet (though Trump obviously knew about it). Now, this time around, FBI was undoubtedly assuming that Trump could run to the court to get a Temporary Restraining Order at any time, so they may have thrown additional bodies at the problem. But let’s assume the process took the same amount of time. There are approximately 50% more boxes on the CLASS receipt than FBI first accessed in May. 50% more days would be nine days.

August 8 … August 9 … August 10 … August 11 … August 12 … August 15 … August 16 … August 17 … August 18. Nine days.

Even assuming that the FBI didn’t throw extra bodies at the problem, even assuming they took weekends off — both completely ridiculous assumptions when you’re trying to beat a notoriously litigious suspect trying to hide stuff — they would have been done with that same preliminary review around August 18. Nine days ago.

They could have gone through the entire process twice in the time elapsed since the search of Mar-a-Lago!!!

That timeline is consistent, in fact, with NYT having gotten a leak that the FBI had found maybe 100 more documents with classified markings, just from the 27 (or maybe just 22 of the) boxes seized on August 8, by August 22.

The initial batch of documents retrieved by the National Archives from former President Donald J. Trump in January included more than 150 marked as classified, a number that ignited intense concern at the Justice Department and helped trigger the criminal investigation that led F.B.I. agents to swoop into Mar-a-Lago this month seeking to recover more, multiple people briefed on the matter said.

In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, the people said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.

Every single document with classified markings seized on August 8 is another piece of evidence that the former President took classified documents the Presidential Records Act says must be in the Archives or the agency that generated the documents and refused to give them back. And then refused again. And again. And again. If the DOJ were ever to charge Trump, they might focus on just twenty documents, like they did with Hal Martin.

They’ve got 15 times that to choose from already.

Now let’s go back to the privileged documents — 5 boxes and a pile of other documents, presumably obtained from Trump’s office. For some reason — perhaps because they’re also government records or include classified information — even after identifying them as privileged, FBI still got to seize them.

Five boxes, a third the number as the original batch from Mar-a-Lago. Once you got into those boxes, it might take just two days to do an initial review of them.

Now, we don’t know what DOJ is doing with them (though they did decide to take them). But here’s what, per the affidavit, they were permitted to do:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

They can hold off entirely (option b), they can engage in a sort of a Special Master review (option c), or (option a), they can secretly go to the judge and ask him to decide whether they’re privileged. The way this is written suggests that DOJ imagined that Bruce Reinhart might look at documents the privilege team identified as privileged and decide they weren’t privileged, possibly because they were crime-fraud excepted.

Remember that Fox News report relaying Trump’s complaints that the FBI had taken attorney-client privileged documents? That was published on August 13, six days after the search.

To be sure, Judge Reinhart probably can’t sort through boxes of documents at the pace the FBI can (though, what else was he going to do, given that he was hiding out from Trump’s mob?). Still, by the time Trump learned that the SSA receipt reflecting 5 boxes and some other documents from his office had privileged material in them, DOJ had had five days to do their own filter search and go back to Reinhart and ask him to confirm they could access those materials.

And that was something like fourteen days ago.

Yesterday, five days after their first attempt to submit a whack filing asking for (among other things) a Special Master to review the seized documents — but not for attorney-client privilege, but for Executive Privilege (documents that, by definition, belong at the Archives) — and after some polite prodding from an wildly pro-Trump Judge, Aileen Cannon, they submitted their second attempt.

I’m not going to go through it in depth this time (here’s a typically hilarious thread from Mike Dunford on it). But here are two key details. First, in response to one of the really helpful prods from Judge Cannon, Trump’s lawyers confessed that, no, they hadn’t thought to formally inform DOJ about this lawsuit before she reminded them that’s necessary.

Finally, the Court has directed Movant to address the status of service of process on the Government. Dkt. 10. Movant served the Motion to United States Attorney Juan Antonio Gonzalez and Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, on the date of filing, August 22, 2022, via electronic mail. Counsel for Movant spoke with Mr. Bratt on August 25, 2022, and inquired as to the Government’s position on acceptance of service. Mr. Bratt consulted the U.S. Attorney’s Office for the Southern District of Florida (“SDFL”), and informed counsel for Movant that, consistent with DOJ practice, SDFL adheres to the requirements of Rule 4(i) of the Federal Rules of Civil Procedure for service of process in a civil matter against the United States. Accordingly, counsel for Movant sought an executed copy of a Summons, which has been issued by the Clerk. See Dkt. 26. Movant will promptly serve it, and a copy of the pleadings, on the U.S. Attorney’s Office for SDFL and will promptly file proof of service thereafter.

But, two days after she nudged them to do so, Trump’s lawyers decided to call Jay Bratt, and asked him if he’d really like formal notice that they want to sue him to prevent him from doing his job.

He did.

So sometime on Monday, maybe — that’ll be 21 days after the FBI seized 27 boxes from Trump’s hotel, more than three times as long as it took for FBI to find 184 unique pieces of evidence that Trump violated the Espionage Act back in May — DOJ will have formal notice that this is going on, which would be the earliest that Judge Cannon could conceivably say, “Stop what you’re doing!!”

But she won’t, because first she’s going to give DOJ a chance to weigh in, even if on accelerated schedule.

With that in mind, here’s the second point. On their second attempt, Trump’s lawyers managed to ask for the thing they needed to do if they really wanted a Special Master: to ask for an injunction.

Movant requests two categories of relief in the present proceeding. First, Movant seeks an order directing the appointment of a Special Master to oversee the review of materials seized from Mar-a-Lago on August 8, 2022 and enjoining the Government from engaging in any further review of those materials.

[snip]

The present Motion seeks injunctive relief in the form of an order barring the Government from engaging in any further review of materials seized on August 8, 2022.

I’m not sure they’ve made this ask properly. At this point, 18 days after the search, it’s probably not even worth the effort figuring it out. The point, though, is how this will work. 21 days after the search of Trump’s house, 17 days after DOJ told Trump they’re going to pursue some other option to access the stuff already identified as attorney-client privileged (one of which might be asking Reinhart to allow them to access it), and 14 days after Trump started getting stuff — his passports — that was out of scope of the investigation, is the first moment that they will have formally told a judge, “Emergency!!! We need a Special Master!!!”

Update: Two significant developments. First, Judge Cannon has issued an order to the government — which has not yet been served — to respond to Trump’s motion by Tuesday.

 On or before August 30, 2022, Defendant shall publicly file a Response to the Motion and Supplement, including Plaintiff’s request for the appointment of a special master.

In addition to the Response, on or before August 30, 2022, Defendant shall file under seal the following materials:

i. A more detailed Receipt for Property specifying all property seized pursuant to the search warrant executed on August 8, 2022.

ii. A particularized notice indicating the status of Defendant’s review of the seized property, including any filter review conducted by the privilege review team and any dissemination of materials beyond the privilege review team.

Meanwhile, Director of National Intelligence Avril Haines has told various Committee Chairs and Ranking Members that the IC is conducting a classification review and what sounds like a preliminary damage assessment. That suggests the stolen documents are already out to the agencies.

Update: In DOJ’s initial response, they’ve noted that the privilege review is already done.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any. Additionally, the Department of Justice and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of materials recovered pursuant to the search. As the Director of National Intelligence advised Congress, ODNI is also leading an intelligence community assessment of the potential risk to national security that would result from the disclosure of these materials.