Posts

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

/111 Comments/in , /by

NYT published a 1,700-word story on the investigation into Donald Trump that didn’t include the word “obstruction” once. It implied (though the reporting wasn’t entirely clear) that the government has already found about a hundred additional classified documents among the boxes seized on August 8, on top of around 200 already identified from the boxes turned over in January and the meeting with Jay Bratt on June 3.

WaPo published a 2,100-word story on the investigation that likewise failed to mention that “obstruction” was one of the crimes for which DOJ believed they’d find evidence at Mar-a-Lago. The WaPo story treated the ridiculous filing Trump’s attorneys, including Evan Corcoran, submitted yesterday as if it were a serious legal endeavor.

You cannot understand several of the things that appear in these stories without considering the legal import of the fact that after Corcoran and Christina Bobb (who is described alternately in Trump’s filing as, on page 5, the custodian of records and, on page 8, as one of “three attorneys in the general area” who showed up to observe the search) jointly signed a declaration stating that there were no more classified documents at Mar-a-Lago, the FBI found 100 more classified documents at Mar-a-Lago.

Here’s how the NYT story described it.

On June 3, Jay Bratt, the chief of the counterespionage section of the national security division of the Justice Department, went to Mar-a-Lago to meet with two of Mr. Trump’s lawyers, Evan Corcoran and Christina Bobb, and retrieve any remaining classified material to satisfy the subpoena. Mr. Corcoran went through the boxes himself to identify classified material beforehand, according to two people familiar with his efforts.

Mr. Corcoran showed Mr. Bratt the basement storage room where, he said, the remaining material had been kept.

Mr. Trump briefly came to see the investigators during the visit.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Since Corcoran and Bobb created that declaration, and particularly since FBI seized evidence proving it was not true, they became likely witnesses or co-conspirators in this investigation, both in the obstruction side of the investigation (because they might know whether classified documents were deliberately hidden for Bratt’s visit and who knew that declaration to be a lie) and the Espionage Act side (because 18 USC 793 has a conspiracy provision).

So when Bobb arrived during the search on August 8 and “requested the ability to enter the mansion in order to observe what the FBI agents were doing,” the FBI would have viewed her as a potential co-conspirator in obstruction of an Espionage Act investigation.

And when Corcoran signed a filing demanding that the Court (a different court than the one that approved the warrant) appoint a Special Master who will work with lawyers from both sides to review the documents and also demanding that he and Trump’s other lawyers get a detailed list of what was seized, the FBI would view him as a potential co-conspirator in obstruction of an Espionage Act investigation.

Movant requests that this Court appoint a Special Master pursuant to Rule 53(a)(1)(B) of the Federal Rules of Civil Procedure and this Court’s inherent equitable powers and authority. This step — which the Government itself has requested in cases involving the seizure of privileged and/or potentially privileged materials — is needed to preserve the sanctity of executive communications and otherprivileged materials. Furthermore, Movant requests that this Court issue a protective order enjoining the United States from any further review of the items seized until this Court can rule on the present Motion. See Fed.R.Civ.P.26(b)(5)& (c) (1); S.D.Fla.L.R.26.l(g).

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed.R.Crim.P.41(f). The Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

Indeed, one likely goal of this filing is to get a different judge — one who doesn’t know whether Corcoran is named as a suspect on the affidavit — to force DOJ to tell everyone whether he is or not.

One reason the FBI asked for more surveillance footage — which the NYT story that doesn’t mention obstruction says is part of the hunt for more classified documents — is because they need to understand who caused that false filing to be filed in June and what happened in the storage area between Bratt’s visit and the search.

Even after the extraordinary decision by the F.B.I. to execute a search warrant at Mar-a-Lago on Aug. 8, investigators have sought additional surveillance footage from the club, people familiar with the matter said.

It was the second such demand for the club’s security tapes, said the people familiar with the matter, and underscored that authorities are still scrutinizing how the classified documents were handled by Mr. Trump and his staff before the search.

It remains true that we have no idea how narrowly or broadly the FBI scoped the probable cause of obstruction in the warrant affidavit. But what is clear is that DOJ will view both Bobb and Corcoran — the latter of whom remains one of the lawyers in closest contact with Bratt and who is the person who issued what has been viewed as a veiled threat to Merrick Garland — as either witnesses or subjects in this investigation.

And you really can’t explain the significance of that without using the word “obstruction.”

emptywheel Trump Espionage coverage

Mastering Obstruction: Two of Trump’s Attorneys May Be Witnesses or Suspects

Archives Letter Demonstrates Import of Past Kash Patel Claim of Declassification

Trump’s Reneges on Promised Significant Fourth Amendment Filing

Next Steps in the Trump Stolen Documents Investigation

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

 

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

/75 Comments/in /by

As I’ve written in the past, there are several different theories about how DOJ is applying the obstruction statute, 18 USC 1519, in its investigation into Trump’s stolen documents. Three possibilities have been floated:

  1. DOJ is investigating Trump for obstructing the investigation it opened in February of Trump’s theft of classified documents by moving documents at Mar-a-Lago around to hide them from DOJ and his own lawyers
  2. DOJ is investigating Trump for obstructing prior investigations and current January 6 investigations (both the January 6 Committee and DOJ’s own investigation) by trying to keep incriminating Presidential Records out of the Archives, either by destroying documents or hiding them
  3. DOJ is investigating Trump for obstructing the Archives’ ability to fulfill the requirements of the Presidential Records Act

The differences are subtle, but important for assessing how significant Trump’s legal exposure on this count might be.

Two details revealed yesterday seem to rule out theory 3, that DOJ is investigating Trump for obstructing the Archives’ work.

The search authorization tied to obstruction in the warrant was vague, permitting FBI to collect evidence of the knowing alteration, destruction, or concealment of any Presidential or classified documents.

Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

That left open the possibility DOJ was investigating Trump’s obstruction of the Archives generally.

But the cover page unsealed yesterday described obstruction to apply to a federal investigation.

Also, at the hearing on unsealing the affidavit in Palm Beach, DOJ’s head of counterintelligence Jay Bratt raised Trump’s suspected obstruction to highlight the danger that unsealing the warrant affidavit would pose a risk to witnesses.

A Justice Department lawyer said during the hearing that the probable cause affidavit used to get a warrant described how prosecutors might find “evidence of obstruction” on the grounds of the Florida property — a possible crime that the search warrant itself revealed was under investigation. “In this case, the court has found probable cause there’s a violation of one of the obstruction statutes, and that evidence of obstruction would be found at Mar-a-Lago” said Jay Bratt, who heads the Justice Department’s counterintelligence section. Obstruction of justice was one of the three statutes listed on the search warrant for Mar-a-Lago, which was unsealed last week, and Reinhart said during the hearing Thursday that he “found there is probable cause” that the statutes had been violated. Bratt made the comments about obstruction being investigated while he was trying to highlight DOJ’s fear that future witnesses may not be willing to provide information if too much was to come out about the investigation so far.

Both these details — the description on the warrant cover page and Bratt’s own comments — seem to make it clear that DOJ is investigating obstruction of an investigation, not just the Archives’ ordinary work.

Bratt’s comments strongly suggest that the obstruction prong is about efforts to obstruct this investigation.

Three things still suggest it may be broader than that, though.

First, as I’ve noted, the earliest reporting on the criminal referral described two things that would be criminal: retaining classified documents and ripping, burning, or flushing them.

The National Archives and Records Administration has asked the Justice Department to examine Donald Trump’s handling of White House records, sparking discussions among federal law enforcement officials about whether they should investigate the former president for a possible crime, according to two people familiar with the matter.

The referral from the National Archives came amid recent revelations that officials recovered 15 boxes of materials from the former president’s Mar-a-Lago residence in Florida that were not handed back in to the government as they should have been, and that Trump had turned over other White House records that had been torn up. Archives officials suspected Trump had possibly violated laws concerning the handling of government documents — including those that might be considered classified — and reached out to the Justice Department, the people familiar with the matter said.

[snip]

Trump’s years-long defiance of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties, has long raised concerns among historians and legal observers. His penchant for ripping up official documents was first reported by Politico in 2018, but it has drawn new scrutiny in recent weeks because of a House select committee’s investigation of the Jan. 6, 2021, attack on the U.S. Capitol.

The Washington Post reported late last month that some of the White House records the National Archives turned over to the committee appeared to have been torn apart and then taped back together. The Post later found — and the Archives confirmed — that officials had recovered 15 boxes of presidential records from Mar-a-Lago. [my emphasis]

This reporting suggests that Trump’s efforts to destroy documents — including documents pertinent to investigations of January 6 that started the day of the attack — were part of the Archives’ referral from the start, before Trump had an opportunity to start obstructing this investigation.

With Trump, he’s always already obstructing.

In that case, the initial referral would have implicated obstruction of other investigations. And it might not be limited to those ripped up documents provided to the January 6 Committee.

As I laid out, there are multiple known examples where Trump or his aides or his lawyers destroyed or withheld evidence from then-ongoing investigations. So if DOJ were investigating under theory 2, it might provide a way to reopen those earlier investigations under extended statutes of limitation tied to his theft of documents.

Then there are the two receipts, just one of which (if you can believe Fox News) is known to record the seizure of attorney-client privileged materials. There are five boxes plus some other documents on that receipt. It may be that the only distinguisher is attorney-client materials, but if it’s more than that, five boxes is far too much material to relate exclusively to this investigation.

Finally, there’s the statute used, 18 USC 1519 instead of 18 USC 1505, which includes obstructing committee proceedings, or 18 USC 1512, which includes witness tampering and (as applied in the January 6 context) otherwise obstructing a proceeding. A recent SCOTUS decision, Yates v. US, limits the application of 1519 (the one named in the warrant) to evidence, not fish. It squarely applies to things like Presidential Records. But because of that recent ruling, DOJ is not going to try to stretch the bounds of 1519 with the former President. If they were ever to charge Trump with witness tampering — the concern Bratt raised — or more amorphous kinds of obstruction, it would be under 18 USC 1512.

And thus far at least, the obstruction of this current investigation that has been publicly reported has been limited to lying and hiding. Hiding the documents by moving them out of the closet DOJ was about to inspect absolutely qualifies as “concealing” Presidential Records and the lying served that purpose as well. But the FBI was authorized to seize documents more broadly than that, including those that were altered or destroyed (as ripping, flushing, burning, or eating would do). The documents we know Trump has ripped, flushed, burned or eaten were evidence in other investigations, not (thus far at least) this one.

That said, the way in which DOJ refers to 18 USC 2071 in this warrant — removing or concealing records — might suggest DOJ is focusing on that, the concealment of records.

It seems increasingly likely DOJ is investigating Trump’s obstruction of investigations (rather than the normal functions of the Archives). It’s just not clear, yet, which investigations are included in the scope.

Update: I realized something as I was revising this post on the likely contents of the Trump search warrant affidavit: Trump originally withheld the SharpieGate map in which he lied about the path of Hurricane Dorian. That in and of itself would be proof Trump altered or concealed evidence in an investigation, because the Commerce Department Inspector General did a report on the pressure to uphold Trump’s false claims.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

/92 Comments/in /by

I want to look at three ways that Attorney General Merrick Garland and DOJ spoke of Trump yesterday using language that acknowledges the possibility he will be indicted.

They were subtle, but consistent references based in DOJ’s policy, one Garland’s DOJ has adhered to inflexibly, about avoiding discussion of any suspect unless they have been charged.

First there was Garland’s statement. It was short, clocking in at fewer than 500 words.

Remarkably, it adhered to DOJ guidelines prohibiting the naming of uncharged individuals (though the motion to unseal did name Trump). Rather than referring to Donald J. Trump by name, the Attorney General referred to him, exclusively, as “the former President,” just as Tom Barrack’s charging documents do.

Garland reminded that everyone is entitled to the presumption of innocence.

All Americans are entitled to the evenhanded application of the law, to due process of the law, and to the presumption of innocence.

But the Attorney General also said that his DOJ is, using the present tense to describe an investigation of the man who used to be President, “applying the law evenly, without fear or favor.”

Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy.

Upholding the rule of law means applying the law evenly, without fear or favor. Under my watch, that is precisely what the Justice Department is doing.

Applying the law evenly means that if someone steals classified documents and stores it in their basement, they get charged for it. And the invocation of “fear and favor” even as an attack against the Cincinnati FBI office was still being resolved suggests that the actuality of violence will not deter charges, if they are warranted.

After saying that (and rigorously adhering to rules about releasing the name of uncharged persons), Garland suggested that there “will” come a time when he will be able to, under the same rules, provide a more fulsome explanation.

Federal law, longstanding Department rules, and our ethical obligations prevent me from providing further details as to the basis of the search at this time.

[snip]

This is all I can say right now. More information will be made available in the appropriate way and at the appropriate time.

That description — the appropriate way, the appropriate time — is the way DOJ always refers to speaking through indictments.

There’s a third, less surprising instance of this in the motion to unseal. In a footnote to an argument in the body of the motion in favor of a First Amendment right of access to court filings, it notes there’s no 11th Circuit ruling on whether that right extends to sealed search-warrant affidavits “at the preindictment stage.” (Bart Gellman made this observation yesterday.)

2 In addition, the First Amendment provides a basis for the press and the public’s “right of access to criminal trial proceedings.” Chicago Tribune Co., 263 F.3d at 1310. However, this Circuit has not addressed whether the First Amendment right of access applies to sealed search warrant materials. See, e.g., Bennett v. United States, No. 12-61499-CIV, 2013 WL 3821625, at *3 (S.D. Fla. July 23, 2023) (“this Court has found no Eleventh Circuit decisions addressing whether a First Amendment right of access extends to sealed search-warrant affidavits, particularly at the preindictment stage”).

This is normal language in all fights over unsealing search warrants, one we’re seeing in the fight to unseal the Project Veritas warrants in SDNY, among others. DOJ will rely on it heavily come Monday, when it makes a bid for more time before unsealing the affidavit itself.

But like Garland’s own language, it describes this search as one not to collect information Trump forgot to return, but one conducted at a preindictment phase. That envisions at least the possibility of a time when the calculus about providing more information might be different because the former President would have been indicted.

I’m pointing to this language not as a guarantee that Trump will be indicted. And I don’t think Garland is saying that either. For example, he might also approve the release of information at such time that this investigation is closed.

But particularly the language that Garland used is language that lays the groundwork for the possibility that the former President of the United States might, because DOJ was “applying the law evenly,” be indicted.