Posts

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.

When “Lock Her Up!” becomes “Wait Till Later!”

/72 Comments/in , , /by

Last month, I did a post noting the legal significance of two paragraphs in Trump’s indictment, one quoting Trump’s promises to protect classified information during the 2016 election, and another quoting Trump’s rationale for (pretending to) strip John Brennan of clearance for using classified information for his own gain.

Here’s the paragraph quoting just some of the times Trump used a promise to protect classified information to beat Hillary Clinton.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

The two paragraphs played a certain role in proving that Trump understands the import of classified information. But they also, I argued, bundled a public integrity component up inside this Espionage Act trial.

That is, they laid out how Trump himself has argued that voters need to know whether you’re going to mishandle classified information before they cast their votes.

Those paragraphs may come in handy as DOJ attempts to respond to Trump’s opposition to the government’s proposed schedule for trial. Because he is now arguing that he’s too busy running for President to take time out to be tried for stealing classified records.

Note that Trump misrepresents what his filing attempts to do (and few journalists are calling him on it). The filing is titled, “Response in Opposition to the Government’s Motion for Continuance and Proposed Revised Scheduling Order” — that is, it claims to be responding only to the government’s pitch for a December trial. But the first paragraph admits that it is also asking Cannon to entirely withdraw her own orders setting trial in August.

The Defendants, President Donald J. Trump and Waltine Nauta, in the above captioned matter, respectfully request that this Court deny the Government’s proposed scheduling order, withdraw the current Order (ECF No. 28), and postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated. [my emphasis]

As we all hold our breath to see how Cannon will respond to this request, understand that Trump has pitched this (smartly, probably), as him against the government, but there’s a tiny chance Cannon will be miffed Trump is downplaying her own authority both here and (as I note below) on picking a jury.

There are many reasonable parts of this filing:

  • Trump argues this case should get complex case designation, leaving a longer time for pretrial proceedings (though he falsely claims the government is asking for an “expedited” trial)
  • Trump states that CIPA is going to take some time
  • Trump claims that this trial will present a number of matters of first impression — or at least matters of first impression for this Circuit (for example, Trump and Paul Manafort, have already lost on Special Counsel authority in DC, but not in the Eleventh Circuit)
  • Trump unsurprisingly calls all the classified designations as “purported,” which reserves the issue for trial
  • Trump describes that jury selection will be onerous (this is one issue on which Cannon has already issued a ruling)
  • While Trump is bullshitting that he’s being tried by his opponent, it is true that there should be as little secret evidence in this case as possible

Much of it is typical defense attorney argument about the need to adequately review the evidence before figuring out where to go next — though this filing pitches what is actually fairly modest discovery, if you ignore the CCTV footage, as a great burden.

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).

There’s a hilarious line where the same guy who consented to a discovery vendor to turn some of this very same evidence for a Special Master review before this very same judge less than a year ago now says the use of such vendors will be impossible given the “sensitive and high profile” nature of the case.

Since, unlike 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.

And Trump pitches a one year investigation as a totally long time — without mentioning that he, with Judge Cannon’s help, caused three months of that duration by demanding a stay in the investigation, to say nothing of his months of obstruction before that.

The Government’s investigation into the matters at issue in the indictment has been ongoing for over a year.

There’s a funny progression where Trump first says his day job running for President doesn’t leave him time to be prosecuted for stealing documents the last time he was President, then admits that he has found time in his busy schedule for two other trials.

President Trump is running for President of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance

[snip]

Finally, previously scheduled trials in other matters for both President Trump and defense counsel make it nearly impossible to prepare for this trial by December 2023. For example, President Trump and Mr. Blanche are preparing for a March 2024 criminal trial in New York Supreme Court; Mr. Kise and President Trump are preparing for a lengthy civil trial in New York Supreme Court commencing October 2, 2023;

[snip]

The pendency of these other proceedings and their collective impact on the ability of defense counsel to prepare effectively for trial also support granting a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii) & (iv).

But, given that he got elected the last time by promising he would be more careful with classified information than his opponent, the most remarkable paragraph in the filing is this one, where Trump says there is no exigency to scheduling this trial (as opposed to his hush money or corporate fraud trials) before the election.

While the Government appears to favor an expedited (and therefore cursory) approach to this case, it cannot point to any exigency or urgency requiring a rapid adjudication. There is no ongoing threat to national security interests nor any concern regarding continued criminal activity

I suspect the paragraph is designed to elicit a response to the question, “is there any concern regarding continued criminal activity?” That is, I think it is an attempt to probe for what more the government continues to investigate.

And yes, the government may well respond to this by answering, “funny you should mention ongoing threats to national security because we’re still looking for all the things that disappeared up at Bedminster.”

But the underlying premise is even more remarkable, given how Trump’s got elected the last time.

Trump says that there is no exigency in telling the citizens and voters of the United States whether the last time he was President, all the promises he made to get elected were just bullshit, because in fact he used his position of power to steal the nation’s secrets and store them in his chandeliered bathroom.

There is a lot that is reasonable in this filing.

But at its core, it argues that a guy accused of using the access to the nation’s secrets he got by getting elected President on false promises the last time, should get a shot at accessing those secrets again, without first letting a jury decide whether he had abused his position of power the last time.

Trump promised voters in 2016 that he would protect classified secrets; it’s actually a key part of how he got elected. Now he says voters shouldn’t have a chance to find out whether he broke that promise before going to the polls again.

Update: This post originally suggested current Trump lawyer Todd Blanche was on Paul Manafort’s team when he tried to challenge Robert Mueller’s Special Counsel authority. That’s not the venue in which Blanche represented Manafort.

Update: Judge Cannon has reset the CIPA conference for Tuesday afternoon, as all parties had agreed would work.

Stanley Woodward Tests Judge Aileen Cannon’s Patience

/60 Comments/in , /by

Just days into Pro Hac Vice admittance before Judge Aileen Cannon, Walt Nauta’s lawyer, Stanley Woodward, is testing (as in, probing) her patience, to see how much she will play along with obvious attempts to stall this case.

He and the government have submitted dueling filings about whether the CIPA conference scheduled for Friday should be postponed to some uncertain time.

Before I get into what they say, remember that Woodward is being paid by Trump’s PAC, which is also under investigation for raising money promising one thing and then spending it on other things — such as paying for Woodward’s legal fees.

Remember, too, that after months of claiming that DOJ had screwed up by not immunizing Walt Nauta — a strategy that got his client charged in an Espionage Act indictment (in some legal circles, a sign of a legal strategy that has backfired, potentially catastrophically), Woodward then adopted a new strategy: belatedly accusing Jay Bratt of bullying him because Bratt tried to prevent him from setting his client up to be charged.

Finally, consider that we’ve already seen stories suggesting that Trump plans to stall this out past November 4, 2024, so he can pardon both of them.

The pace of hiring an attorney for Nauta has been slow — as has been the speed with which Trump is beefing up his own criminal defense team. Nauta continues to work for Trump’s organization and Trump’s political committee is financing his employee’s legal representation. Inside the former president’s orbit, top aides are prepping for a protracted and litigious fight with prosecutors that draws out the entire legal process through the 2024 general election that Trump hopes to win for a return to the White House.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” said the source familiar with discussions. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

And before I present Woodward’s seven (!!!) excuses for not being able to make Friday’s hearing, consider that according to the government, Woodward hasn’t even submitted his SF-86 form required before he can get clearance.

Nauta’s second justification for a continuance is a claim that Mr. Woodward cannot “meaningfully” participate in a discussion about classified discovery or a CIPA discovery schedule at a Section 2 conference until obtaining a security clearance. Motion at 3. But he cites no case holding that a Section 2 conference is contingent on counsel having clearances, which is unsurprising since such a requirement would be inconsistent with Section 2’s language that “[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” 18 U.S.C. App.3 § 2. Perhaps more to the point, as of this writing, Mr. Woodward has yet to complete his Form SF-86, which is necessary for him to receive both an interim clearance and final adjudication, despite having been put in contact with the Litigation Security Group on June 12, some three-and-a-half weeks ago.

With all that laid out, ready for Woodward’s seven complaints?

1) First, that DOJ charged his client in Trump country rather than in DC.

With little notice to Defendant Nauta, the operative indictment in this matter was returned in this District and only recently, on Wednesday, July 5, 2023, did Defendant Nauta retain local counsel, Sasha Dadan.

2) Then, that he opposed having a CIPA conference at all (a claim the government says is not true).

Although government counsel asked whether Mr. Nauta’s longtime counsel opposed such a hearing – we did – and provided an electronic courtesy copy of the same, the government did not request any dates when defense counsel would be unavailable for such a conference.

3) Then, that Nauta had delayed so long in hiring a Florida lawyer that poor Stan Woodward had no way to object on his own.

At that time, Mr. Nauta, through counsel was not receiving electronic notices through the Court’s CM/ECF filing system, the government did not advise counsel that the pretrial CIPA conference had been scheduled, and even when counsel did learn of the conference, Mr. Nauta had no ability to formally move the Court for relief based upon his counsel’s unavailability. Rather, it was not until Wednesday, July 5, 2023, that Mr. Nauta retained local counsel, Sasha Dadan, and Thursday, July 6, 2023, that Chief Magistrate Judge Torres entered an Order permitting Mr. Nauta, through counsel to file electronically with the Court.

4) Then, that Woodward has a trial for Freddie Klein this week (the government says it — this prosecution team — did not know that — it seems that Woodward is relying on prosecutors on a 1,000 defendant crime scene investigation to track Woodward’s other clients).

As the government has long been aware, Mr. Nauta’s longtime counsel, Mr. Woodward, is scheduled to begin a Bench Trial in the United States District Court for the District of Columbia on July 10, 2023.

5) Woodward then says that even though he’s not required to attend, Nauta should be able to demand that he attend.

Presumably, the government will argue that Mr. Woodward’s appearance is unnecessary. But see Flanagan v. United States, 465 U.S. 259, 268 (1984) (like the Sixth Amendment right to self-representation, the right to counsel of choice, “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding”). And defense counsel is aware of the Court’s admonishment that, “[l]ocal counsel must be ready to adequately represent [Mr. Nauta] at any time.” Paperless Order (July 7, 2023).2 However, as the government notes in its application for the hearing, a pretrial CIPA conference permits the Court to, “consider matters related to classified information that may arise in connection with the prosecution.” Motion at 6 (June 23, 2023) (ECF No. 32) (quoting 18 U.S.C. App. III § 2).

6) Woodward doesn’t see the point of using CIPA in a case charging 31 of the most sensitive documents ever charged in an Espionage Act case.

To that end, the government only broadly describes the basis for its request for a pretrial CIPA conference: “to establish a discovery and motion schedule relating to any classified information.” Motion at 19 (June 23, 2023) (ECF No. 32). Yet, defense counsel cannot meaningfully opine on, “a discovery and motion schedule relating to any classified information,” before their provisional security clearances, let alone complete clearances, have been approved.

7) Even though his brand spanking new co-counsel (who mostly does family law kinds of things but also dog bites) is obligated under local rules to hit the ground running, she’s not ready to hit the ground running.

Nor is it feasible to expect Mr. Nauta’s local counsel to appear at a pretrial CIPA conference and to agree upon, “a discovery and motion schedule relating to any classified information,” barely a week after she has been retained by Mr. Nauta.

2 Mr. Nauta respects the Order of the Court and submits that it was not unreasonable for him to retain local counsel and thereafter request this Court accommodate the unavailability of his longtime counsel, Mr. Woodward insofar as Defense counsel would note that Local Rule 4 of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys for the United States District Court of the Southern District of Florida, which pertains to the admission of out-of-state attorneys pro hac vice does not indicate that the sponsoring attorney be required to, “be ready to adequately represent the defendant at any time.”

Tune in in January, when Presidential candidate Donald Trump says he needs to delay his trial because he has primaries to run in. It won’t be his fault that the lawyer his PAC is paying invented frivolous cause for day, after all.

As I said, Woodward is testing Judge Cannon’s patience. And why wouldn’t he? If she conducts herself like she did last summer, he’ll be able to buy Trump all the time in the world.

Moving the Boxes: Trump’s Valet and Alleged Co-Conspirator Buys the Boss a Three-Week Delay in His Trial

/51 Comments/in , /by

According to the motion to seal filed in his case, DOJ warned Walt Nauta he was a target of the stolen documents case on May 24, 34 days ago.

After he and his boss were indicted on June 8, he was issued a judicial summons, alerting him that his prosecution would take place in the Southern District of Florida, which has strict rules requiring a local attorney to appear and remain counsel, and scheduling a June 13 arraignment. That was 19 days ago.

But Nauta was not arraigned on June 13, as Trump was, because he had not yet arranged for local counsel.

That delay was totally excusable. There aren’t that many people in SDFL who are qualified for a case like this in the first place. And those that are may balk at the pre-existing conflict structure here, with Stan Woodward paid by Trump’s PAC, which itself is under criminal investigation. And those aren’t the only ethical concerns I would have about taking on this case.

But today’s delay is far less defensible. Particularly given the theater Woodward created surrounding the event.

Woodward made much of the fact that poor Walt Nauta was stuck on the tarmack yesterday at Newark Airport with flight delays and cancellations due to the same bad weather that I was planning around last Saturday when I was in New York state.

That was all a distraction. Nauta’s presence wasn’t required at the arraignment. Magistrate Judge Jonathan Goodman excused Nauta’s attendance at today’s hearing during Trump’s arraignment.

You only tell that story in a court room to get credulous journalists — like CNN — to report that as the primary reason for the delay. It had no legal import. (Note: Most initial Twitter coverage parroted Woodward’s weather excuse, but most outlets fixed that on publication of their stories.)

The rain had nothing to do with today’s delay. Nauta’s failure, thus far, to retain a Florida attorney was the only reason for the delay.

And there’s certainly reason to wonder whether that delay is intentional. Marc Caputo’s report on Nauta’s search for a Florida lawyer quotes someone “familiar with the discussions” stating that the trial won’t happen before the election, so (or perhaps, “because”) “there’s no rush to” find a lawyer.

The pace of hiring an attorney for Nauta has been slow — as has been the speed with which Trump is beefing up his own criminal defense team. Nauta continues to work for Trump’s organization and Trump’s political committee is financing his employee’s legal representation.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” said the source familiar with discussions. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

Speaking to the Messenger before Tuesday’s arraignment hearing got delayed, the source said Nauta would likely have a lawyer within the coming weeks.

So now Nauta is not scheduled to be arraigned until July 6 (his personal appearance has again been excused), a full four weeks after his indictment, and the same day on which Judge Cannon has ordered the defense to weigh in on proposed schedule for the trial.

This is, in my opinion, why Jay Bratt proposed a schedule showing that it is possible to try this case such that it would be done — even assuming three weeks of jury selection and three weeks of trial — before the first primary. Any delay past that schedule comes from Trump. And his alleged co-conspirator, Walt Nauta, whose job is to move boxes for the boss.

What is going to happen is that Trump will cause enough of a delay to push this into the primary season, and once that primary season trial happens, he will wail about how the trial interferes with his right to be elected President on false claims again, so he can steal more classified documents.

And his trusty valet, Walt Nauta, has just bought 23 days of delay for his arraignment to help ensure that happens. He’s moving the boxes again to help his boss obstruct justice.

Update: WSJ has since updated a story that included only the storm excuse to note that the real reason for the delay was that Nauta has not yet retained a lawyer.

Aileen Cannon’s Not-Abnormal Orders

/49 Comments/in , /by

Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.

Request 1: Motion to Implement Special Conditions of Release

Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.

Goodman ordered the government to provide defendants with a list of witnesses this covered.

DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.

Trump and Nauta objected to that part of it.

Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.

I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.

After that, a media coalition opposed the government motion, asking that any list be filed unsealed.

Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.

PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]

As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.

Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.

Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.

So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.

Request 2: Motion for a Continuance

On the same day, Friday, DOJ also asked for a multi-part motion for a continuance from the August trial date to a December one.

It laid out the following logic:

  1. The matter is not complex, meaning Trump doesn’t need a year to review discovery
  2. The matter does involve classified information, which will require using the Classified Information Procedures Act (CIPA), which takes some time
  3. Also, Trump will need more time to review discovery than the current schedule allows

DOJ provided some legal requests, as well as a proposed timeline.

In response to this request, Cannon asked the defendants what they think:

On or before July 6, 2023, Defendants shall respond to the Government’s Motion for Continuance 34, either individually or in a combined filing.

This is normal.

Request 3: Motion on CIPA

The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:

  • Schedule a CIPA 2 conference to talk about the classified matters at issue
  • Appoint a Court Information Security Officer

In her order, Cannon cited the defendants’ lack off opposition.

The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,

The Court expresses no view on the other matters addressed in the Government’s Motion.

But those matters are dictated by law.

At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.

Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.

There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.

I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.

Aileen Cannon Issues Another Perfectly Routine Order

/86 Comments/in , /by

Judge Aileen Cannon set Donald Trump’s trial for hoarding 31 highly classified documents for August 14, 2023.

The trial won’t happen that quickly. This is, instead, an order stemming from Speedy Trial Act (and in any case, the trial would be set back a few weeks once Walt Nauta is arraigned, because barring a plea or other unforeseen developments, they will be tried together). Per the boilerplate, the two sides have to file Speedy Trial notices every 21 days from here on out.

Other parts of the boilerplate order are more interesting. For example, Judge Cannon ordered that each side can propose no more than 10 voir dire questions to be used in jury selection. This suggests that Cannon plans to conduct the questioning of the jury (again, this is routine in many places) and that she doesn’t envision the kind of 200 word questionnaire I would have envisioned to weed out bias.

Counsel shall be prepared to conduct limited voir dire following the Court’s questioning of the panel. Prior to Calendar Call, each party may file no more than 10 proposed voir dire questions (including any sub-parts) for the Court to consider asking of the venire. The Court will not permit the backstriking of jurors.

As I understand it, the reference to “backstriking” means that the two sides must issue peremptory challenges against jurors in real time, rather than seeing everyone who is qualified and picking the most disfavorable to kick off the jury.

This part of the order, more than anything else in this filing, could determine Donald J. Trump’s fate before a SDFL jury, because it would limit the degree to which both sides could hand pick a jury.

Another part of the order that may matter pertains to Rule 404(b) notices.

All responses pursuant to the Standing Discovery Order and/or Local Rule 88.10 shall be provided in a timely fashion in accordance with the dates scheduled by the magistrate judge. Noncompliance with the Standing Discovery Order, the Local Rules, or the Federal Rules of Criminal Procedure may result in sanctions. Any notice submitted pursuant to Federal Rule of Evidence 404(b) must be filed as a motion—not as a notice—and must identify with particularity the evidence to be introduced and the factual and legal basis supporting admission. Responses to such motions are due in accordance with the standard timing requirements set forth in Local Rule 7.1(c).

404(b) notices pertain to related conduct that is not itself part of the charges. Often it pertains to events that happened before the crime in question that show a predisposition to commit a crime (but character evidence is prohibited).

In the indictment, for example, the incident in which Trump leaked details of an Iran document may need to be introduced as Rule 404(b), because while it is itself a crime, it is not the crime charged in the indictment. Similarly, DOJ could try to introduce evidence that Trump selectively spilled classified information even as President.

Cannon will have discretion to exclude such information as prejudicial, among other things. And because the Milley incident is key to proving that Trump knew he could no longer declassify information, it could harm the case.

But we honestly don’t know whether she would do that! This order is boilerplate, and all it shows is that Cannon is, thus far, treating the trial of a former President as she would any other trial.

Update: This piece from Kyle Cheney is a useful review of how Judge Cannon has treated the few trials over which she has presided.

Aileen Cannon Did Something Normal

/46 Comments/in , /by

Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.

This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.

In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.

It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.

Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.

So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.