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“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

October 10, 2023/120 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Why Reality TV Star Donald Trump Is More Trusted than Most News Outlets

October 2, 2023/211 Comments/in Financial Fraud, Press and Media /by emptywheel

Today, Donald Trump is attending the first day of the fraud trial that he already substantially lost.

Depending on who you believe, he is either attending because he’s using his attendance to delay a deposition in his own lawsuit against Michael Cohen (who will also be a key witness in this fraud trial).

He cited this as his excuse for skipping out on 2 deposition days in his federal case against ex-lawyer Michael Cohen.

If he didn’t show up, he’d be in contempt of court.

Or, he’s using it as a way to affect the outcome — the outcome that was already substantially determined by Judge Engoron’s ruling last week, a ruling addressed in passing, without explaining how he can affect something that has already occurred.

For Mr. Trump, his attendance at trial is far more personal than political, according to a person familiar with his thinking. The former president is enraged by the fraud charges and furious with both the judge and the attorney general. And Mr. Trump, who is a control enthusiast, believes that trials have gone poorly for him when he hasn’t been present, and he hopes to affect the outcome this time, according to the person.

In his courthouse remarks, Mr. Trump lashed out at the judge’s earlier fraud ruling on his property valuations. “I didn’t even put in my best asset, which is the brand,” he said.

I think Trump is attending to spin a judgment that has already been issued as, instead, an outcome he predicted.

Today.

Days after the ruling.

Here’s how it works. On the way into the trial, Reality TV Star Donald Trump made a public statement in which he told his cult followers that the judge that the judge was rogue and the prosecutor was racist. He renewed his claim that Judge Engoron erred by using Palm Beach’s valuation (the one they made in 2011, not in 2021) rather than his boast that Mar-a-Lago is worth a billion dollars.

Few outlets reported that 77-year old Reality TV Star Donald Trump had slurred his words.

No one asked why his spouse hadn’t accompanied him to this trial. (Though this time, one of his co-defendant sons accompanied him to the courthouse.)

Few outlets reported Tish James’ comments about how no one is above the law.

Many outlets were so busy reporting on Reality TV Star Donald Trump’s statements that they didn’t explain that Trump’s Parking Garage Lawyer, Alina Habba, didn’t even try to push for a jury trial, something Judge Engoron confirmed as the trial started.

At least some of the outlets that reported Chris Kise’s arguments about valuation did not explain that those issues were already decided, in a ruling last week.

Most outlets reported that Reality TV Star Donald Trump glared at The Black Woman Prosecutor on his way out for lunch. Some also reported that she laughed that off.

On the way back in the courthouse, Reality TV Star Donald Trump made even more incendiary comments about the judge who already did and will decide his fate. Reality TV Star Donald Trump told his followers that the judge presiding over a trial that might lead him to lose his iconic Trump Tower should be prosecuted and was guilty of election interference.

Many observers clucked that such a stunt would lead the judge — the one who already ruled against Trump — to rule against him.

Trump is going to lose this trial. Know how I know? Judge Engoron already ruled against him!

But most of Trump’s followers don’t know that. Most of Trump’s followers believe that Chris Kise’s comments about valuation were still at issue. Most cult members will see Trump’s comments today — it won’t be hard, because every outlet is carrying them — and remember that before the trial, Trump “predicted” that The Corrupt Judge and The Black Woman Prosecutor would gang up on him.

Reality TV Show Actor Donald Trump used his presence at the trial to create a reality in which he will have correctly predicted a loss that was baked in last week. Because he “predicted” such an outcome, his millions of cult followers will not only treat him as more trustworthy than the journalists playing some role in Trump’s Reality TV Show, cluck-clucking about his attacks on justice without focusing on the fraud and the more fraud and the already adjudged fraud.

Not only will Reality TV Show Actor Donald Trump have “predicted” the outcome, leading his followers to renew their faith in his reliability, but they will implicitly trust his explanation: that he lost the trial not because he is, and has always been, a fraud, but instead because Corrupt Judges and Black Prosecutors continue to gang up on him.

And in the process, Reality TV Show Actor Donald Trump will have continued the big con, the very same fraud of which he has already been adjuged. He will have once again distracted from his own fantasy self-worth and instead led people to report on his golden brand.

When you let Reality TV Show Actor Donald Trump to set the stage, as journalists, you are yet more actors in his Reality TV creation.

It’s not that journalists are bad or biased or corrupt (though some of their editors are). It’s just that Trump already cast them in a role and they’re playing it to a T.

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

July 13, 2023/55 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

July 13, 2023/23 Comments/in 2020 Presidential Election, 2024 Presidential Election, Leak Investigations /by emptywheel

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.

The Approach to Classification in Trump’s Stolen Document Case

June 24, 2023/114 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

The government has submitted materials in support of a requested continuance until December in Trump’s stolen documents case:

The Motion to Implement Special Conditions is basically a bid to get a list of 84 witnesses submitted, via sealed filing, to docket, and so subject to Judge Aileen Cannon’s discipline. Under the order issued by Magistrate Judge Jonathan Goodman, both Trump and Walt Nauta will be prohibited from speaking about the facts of the case with any of the 84 witnesses — a great many of whom are Trump employees — except through counsel.

Even at the arraignment, Todd Blanche balked at this condition, which Goodman imposed without DOJ requesting it. In particular, I think Blanche wants people to be able to discuss the case without counsel present so long as counsel has advised about that.

But per the filing, defense attorneys may yet object to the condition itself.

2 The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have authorized government counsel to represent the following: “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.” 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.

I would love to see briefing on this, because I think Blanche has specific concerns about preserving the nesting gatekeeping that has existed from the start of this. But this condition, if upheld, will also stymie Trump’s efforts to fundraise by lying about this case.

The other request is a motion to delay the trial — which Aileen Cannon initially scheduled for August — until December, largely for CIPA to play out. This is totally normal, and given Cannon’s past history in criminal cases — which Kyle Cheney reviewed here — there’s no reason to expect she would object (indeed, legally, CIPA requires her to work through this process).

The proposed schedule would envision a trial before the first primary, but it triggers everything to Trump (and Nauta’s) responsiveness. I suspect it was crafted to undermine any claims from Trump that DOJ is responsible for a trial as people are voting, but some of these deadlines are really aggressive.

Most interesting, though, is DOJ’s treatment of clearances. According to Jay Bratt’s declaration, once defense attorneys get their SF-86 filing in, the Litigation Security Group has committed to turning around their initial clearances unbelievably quickly: two days. And it has likewise committed to sharing SIGINT documents based just off that interim clearance.

To be granted an interim security clearance, defense counsel must submit a Standard Form 86 – Questionnaire for National Security (“SF-86”) and supporting documentation. To date, not all of the defense counsel have submitted their SF-86s. Once an SF-86 and supporting documentation are submitted, absent complicating circumstances, an interim clearance may be granted within a matter of days. In this case, LSG has committed to reaching an eligibility determination within 24-48 hours of the completed submission. Once defense counsel are granted interim security clearances, the government will be able to provide the vast majority of classified discovery, consisting of documents marked CONFIDENTIAL, SECRET, and TOP SECRET, including documents within the following Sensitive Compartmented Information Compartments: SI, SI-G, and TK. [my emphasis]

You can see from the list of charged documents, that would encompass many of the charged documents (some of the redacted classifications are probably SI-G).

But there are others that require further read-in.

However, interim security clearances are not sufficient for the government to provide in classified discovery a small number of documents-including some documents whose unauthorized retention is charged in the indictment-that contain restricted compartments for which a final security clearance and additional read-ins are required. LSG estimates that final clearances may be granted within 45 to 60 days of submission of the SF-86 and related documentation, depending upon the content of the applicant’s SF-86. The additional read-ins can be conducted promptly upon access approval. [my emphasis]

Among the unredacted classification marks not included among those Bratt listed are FR (Formerly Restricted, a nuclear designation under the Atomic Energy Act and one Presidents can’t declassify alone) and HCS-P (HUMINT product). The bolded language suggests that DOJ is planning to share all classified documents Trump stole; based on the redaction marks in the May 11 subpoena, I would be unsurprised if there were HCS-C, HUMINT collection, documents included as well.

This is an incredibly aggressive approach. As I’ve said, I think DOJ would prefer to find a way to get Trump to plead out, however unlikely that would be. The sooner they share documents with Trump and Nauta’s lawyers, the sooner they might be in a position to persuade Trump how bad this will look if he goes to trial.

But note the two caveats: At least one of three known defense attorneys has not yet submitted his SF-86, the list of foreign contacts needed to obtain clearance. At least one of them — Chris Kise, who worked for Venezuela’s government — may not be eligible.

So one other underlying context to this is that until Trump can find cleared attorneys, he may be responsible for delays that would result in a trial during the primary season.

11th Circuit Showdown: The Fight to Get the Documents to Charge against Trump

November 22, 2022/15 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:

Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.

For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).

Two documents that are likely to be charged also include unclassified information:

The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.

Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.

That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).

Before SCOTUS, DOJ Argues Trump Has Shown No Harm

October 11, 2022/92 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

DOJ offered about a jillion jurisdictional reasons why Trump’s appeal to the Supreme Court should fail (I’ll circle back and catalog them in a bit). Because Trump’s was largely a jurisdictional complaint (arguing that the 11th Circuit did not have jurisdiction over the scope of the Special Master review), that’s the meat of the legal issue if SCOTUS decides to review this.

As they note, SCOTUS doesn’t even have to reach that issue because Trump has made no compelling argument that he will be irreparably injured unless SCOTUS intervenes to force DOJ to share highly classified documents with Special Master Dearie and Trump’s lawyers.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29. As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)).

[snip]

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm — much less irreparable injury — on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits. See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion — that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 — is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

As smarter people than I have said, Trump’s failure to argue irreparable harm should end things — and it may well, particularly when counterposed against Navy v. Egan, the Supreme Court precedent giving the (current) Executive great authority to determine who can have classified information.

But with this court, we can never know.

There’s a far briefer section addressing the likelihood that Trump might prevail before the 11th Circuit (again, that’s not the primary argument Trump is making here). But it’s more interesting for our purposes, because these are the issues that SCOTUS might one day review in more substantive fashion, either an appeal of the merits decision before the 11th or, just as likely, as part of a criminal case against Trump.

That section repeats the still-uncontested point that Trump has claimed no violation of his constitutional rights (the standard under Richey).

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged — much less shown — a violation of his constitutional rights. Id. at 17.

Trump has instead demanded a Special Master to assert the closest thing he has to a defense — that there’s no criminal enforcement mechanism for the Presidential Records Act, and back before he was fired by voters, he had the authority to declassify documents.

Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

As DOJ has laid out before, his PRA claim fails because he has failed to comply with the PRA.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1).

And besides, DOJ finally notes, if Trump has a complaint under the PRA, he needs to take it to Beryl Howell in the DC District.

Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court — which would be yet another reason the government is likely to succeed on the merits here.

DOJ dismisses Trump’s claims that he could have declassified these documents by noting he has not claimed he did, much less presented evidence that he had.

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19.

DOJ notes that, for the purposes of this appeal, that doesn’t matter because these documents could not be his personal property, the ostensible point of the Special Master (DOJ does not note here what they did before the 11th Circuit, that even if these documents had been declassified, they would be responsive to the subpoena — though it does note earlier than he did not fully respond to the subpoena).

And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

Then, in a footnote, DOJ notes that Trump has largely given up the Executive Privilege claims (though he appears to be asserting them before Cannon).

7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.

This claim on privilege is one that SCOTUS might see on an appeal.

Again, little of this stuff would be before SCOTUS in substantive fashion any time soon. But they’re all the topics that the lower courts will be grappling with for the next several months until this comes back to SCOTUS (if it ever does). And this is what they’ll look like for SCOTUS’ first glimpse of them.

How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

October 4, 2022/70 Comments/in 2020 Presidential Election, Gitmo Show Trials, Leak Investigations, SCOTUS /by emptywheel

Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

Aileen Cannon’s Calvinball Special Master

October 1, 2022/100 Comments/in 2020 Presidential Election, emptywheel, Leak Investigations /by emptywheel

In the first paragraph of her order reversing Raymond Dearie’s order that Trump verify the inventory DOJ provided, Aileen Cannon identified three documents by name: Dearie’s amended case management plan, dated September 23, Trump’s objections, which were originally sent to Dearie on September 25 but which she may have only seen on September 28, and a government filing she renames, which was originally titled, “Motion to Modify and Adopt the Amended Case Management Plan with Comments on the Amended Plan and Plaintiff’s Objections.” That was filed on September 27.

THIS CAUSE comes before the Court upon the Amended Case Management Plan (the “Plan”) [ECF No. 112], filed on September 23, 2022. The Court has reviewed the Plan, Plaintiff’s Objections [ECF No. 123-1], Defendant’s Response to Plaintiff’s Objections and Motion to Modify and Adopt the Plan [ECF No. 121], and the full record.

Later in her order, when she discusses Dearie’s own order that Trump confirm the inventory before the start of the designations, she describes the deadline he set for the inventory verification as September 30, then notes in a footnote that he modified that deadline in an interim report to her on September 27.

In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Those two details are a tell to understand what, bureaucratically, Cannon imagines she did on Thursday. On Thursday, she was overruling Dearie’s plan as it existed on September 23, not as it existed on September 27. She was effectively taking over the review starting on September 23, but without telling anyone that or explaining what deadlines applied.

It’s a way — and was used as a way in this instance — to make Dearie entirely superfluous, a mere showpiece to give her own direct intervention to give Trump his way the patina of legitimacy.

Start with Cannon’s order appointing Dearie, dated September 15. It required that Dearie submit a plan to her within ten days, so by September 25.

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

She set a five day deadline for the parties to object to that order, after which she would review the matter de novo.

The parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations no later than five (5) calendar days after the service of each, and the Court shall review those objections or motions, and any procedural, factual, or legal issues therein, de novo. Failure to timely object shall result in waiver of the objection.

The day after the 11th Circuit overruled her injunction on classified documents, on September 22, Cannon issued an order that everyone thought was just her acknowledging that the classified documents were no longer covered by the order (that’s not technically true, and I think she doesn’t believe it’s true even now, but it took the classified documents out of Dearie’s work plan). In taking out the reference to classified documents, it also took out this entire paragraph, including the bolded language about interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary. [my emphasis]

I raised it at the time, people poo pooed my concern (and scolded Dearie for raising it later). But this was the moment when Cannon told Dearie to fuck off, only without telling him she had done that.

Shortly after that, on day 7 after his appointment, Dearie submitted to the two sides his original plan. He gave them until September 27 to raise objections.

This Case Management Plan shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing Case Management Plan by September 27, 2022. Failure to timely object shall result in waiver of the objection. See Appointing Order, ¶ 11; Fed. R. Civ. P. 53(f).1

1. To the extent the parties file objections with the Court as to this Case Management Plan, the deadlines set forth above shall remain in effect while such objections are pending.

Clearly, at that point, he believed he would have time to address any concerns himself. The work plan included his plan to use (and pay, as the only paid employee) retired Magistrate Judge James Orenstein to help with the review.

On September 23, DOJ informed Dearie that Trump still hadn’t contracted with a vendor to scan the documents, and asked for a one business day extension, but still with the expectation that Trump would arrange the contract (since he is paying). DOJ also asked him to tweak his order to make it clear the inventory would not include the potentially privileged documents. They noted that Trump still hadn’t provided his proposed protective order, which had been due September 20, which would have held up the document scanning anyway.

Later that day, Trusty filed a protective order.

Dearie issued an updated work order, with the same September 27 deadline for changes. It also still included his plan to hire Orenstein. I believe this is the work order Cannon took as operative on Thursday.

Also on September 23, Dearie issued a protective order that (the docket entry noted) had been approved by Cannon. It sided with Trump that he didn’t have to share the name of his reviewers, something that was made less urgent after the 11th Circuit had taken the classified documents out of the work plan.

On September 25, on Dearie’s original deadline for filing a work plan with Cannon (but before the date he provided for changes), Jim Trusty emailed Dearie his three objections: they didn’t want to affirmatively confirm the inventory, they didn’t want to distinguish between Executive Privilege that could and could not be shared with the Executive Branch, and they didn’t think they had to brief the appropriateness of filing a Rule 41(g) motion to Cannon rather than to Reinhart. This was not docketed and Judge Cannon is not listed as a recipient of this email. Chris Kise was on the signature block of this letter.

The next day, September 26, the second public deadline (after the protective order, which Trump missed), DOJ filed a revised and sworn affidavit. That was also the deadline for Trump to designate all the potentially privileged files he had had since September 16.

A bunch of things happened on September 27. I’ll treat them in the order they appear in the docket, which looks like this:

First, Dearie filed a staffing proposal to Cannon, noting that the window for the two sides to object to it had expired. This was the first moment that the staffing got separated from his work plan.

No party has submitted any comment to the foregoing proposal, and the time for such comment has lapsed. Accordingly, the undersigned respectfully submits the foregoing proposal to the Court for approval.

Then Dearie filed an interim report to Cannon. In it, he recommended Cannon add back in the language authorizing interim reports that she struck along with language about classified documents.

Interim Reports and Adjustments to Prior Orders. In the original Appointing Order, the Court directed that “the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.” Appointing Order ¶ 6. However, the Court later struck that language as part of its order implementing an unrelated ruling by the Eleventh Circuit. As the language quoted above as to interim reports and adjustments to prior orders is consistent with the Eleventh Circuit’s ruling and the efficient administration of the Appointing Order as amended, the undersigned respectfully recommends that the Court issue an order reinstating that language.

His interim report clearly expected he’d get one more shot to resolve disputes. In it, he said the parties would have until October 2 to respond.

This Interim Report and Recommendation shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing report and recommendation by October 2, 2022

Next, there’s a sealed (and still sealed) order.

Then Cannon approved Dearie’s staffing plan, but declined to replace the language in her original order that permitted interim reports.

The Court takes no other action at this time, recognizing that the Order Appointing Special Master authorizes the Special Master to file reports and make recommendations as appropriate.

It was not clear at the time, but this effectively told Dearie that his understanding of how things would work — that he could issue interim reports and only after that Cannon would intervene — had been changed in the wake of the 11th Circuit ruling on classified documents. Effectively, Cannon told Dearie on September 27 she had taken over the work plan on September 23. That’s why, I suspect, that she only cited his September 27 Interim Report in a footnote. She basically ignored everything he did after September 23.

After that, DOJ filed its request for another deadline extension, along with its objections to Trump’s objections received two days earlier.

On September 28, Trump for the first time raised timeline concerns in writing, also claiming that DOJ had told Trump there were 200,000 pages (as I’ve written here, that’s virtually impossible; I suspect it came from the work order DOJ provided to solicit the vendor). The letter was not signed by Kise, and raised a lot of bogus claims about privilege (and also seemed to indicate that Trump had already missed the privilege deadline). Along with those concerns about timing, Trump filed his complaints, which (at least based on the public record) was the first time Cannon would have seen the complaints; the docket exhibit is what she cited in her order.

Working under Dearie’s deadline, DOJ had four more days to respond to Trusty’s probably bogus claims of 200,000 documents and to rebut the privielge claims. Working off a five day deadline from Dearie’s submission of his amended work order on September 27, DOJ also had four more days. Working under Cannon’s original deadline — five days after Dearie’s original deadline of September 25 — they had two more days. Under Dearie’s September 23 order, the final deadline was September 27.

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

Timeline

September 15, 2022: Cannon opinion denying stay; Cannon’s order of appointment; Raymond Dearie declaration

September 16, 2022: DOJ motion for a stay

September 19, 2022: DOJ topics for initial Dearie conference; Trump topics for initial Dearie conference

September 20, 2022: Trump 11th Circuit response; DOJ 11th Circuit reply

September 21, 2022: 11th Circuit opinion granting stay

September 22, 2022: Cannon order removing documents marked as classified from Seized Materials covered by her order; Dearie proposed work plan

September 23, 2022: Protective order; amended case management plan; motion for extension of time

September 25, 2022: Trump objections to Dearie order (released on September 28)

September 26, 2022: Sworn affidavit with more detailed inventory; Julie Edelstein

September 27, 2022: Dearie interim report; Staffing proposal; Government motion for extension and to adopt case management plan

September 28, 2022: Trump objection that DOJ didn’t ask for enough additional time

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to accelerate 11th Circuit appeal

The Claimed 200,000 Pages Trump Stole Include Press Clippings

September 29, 2022/56 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Yesterday, Trump filed the complaints he had originally filed under seal as well as another bid to delay the Special Master process.

I’ll return to both. But I want to look at the basis Trump offers to request a delay: that the documents seized from Trump amount to 200,000 pages.

At the status conference before the Special Master, the Plaintiff suggested that the dates put forth in the Draft Case Management Plan were unlikely to prove feasible in terms of both the likely start of the document flow and the man-hours necessary to review more than 11,000 pages or documents. Indeed, the Plaintiff suggested that a rough rule of thumb in document reviews is 50 pages per hour. Building into his calculations the review and categorization of the filter team documents; the successful recruitment, retention, and start-up operation of a data vendor; and the requisite review and categorization of that many documents led the Plaintiff to suggest mid-October as a completion date. Government counsel assured Your Honor that a minimal adjustment of “a couple of days” was all that was needed, but that otherwise the Plan was perfectly acceptable.

Trump has, so far, never shied away from spinning the facts. And this is the first filing made without Chris Kise’s signature, increasing the likelihood of shenanigans.

This universe of documents reflects the contents of 27 boxes plus the contents of Trump’s desk drawer (ignoring the 520 pages of potentially privileged documents, some of which came from the desk drawers, and all but one email of which Trump has had for 13 days). If the 200,000 number were accurate, every box and the drawer would have, on average, over 7,000 pages of documents, which is far more than even a large case of paper would include (10 reams of paper at 500 pages each, or 5,000). And some of these boxes include books (33 altogether) and clothing or gifts (19 total), which would fill space really quickly.

But even assuming that someone in government told him that the 27 boxes of documents plus the contents of Trump’s desk drawer amount to 200,000 pages of material, even assuming Trump would need to review every page of every government document he stole, this is still misleading.

That’s because the boxes also include clippings, up to 121 in a box, for 1,671 total. A typical news article printed out can run 10 pages or more (recall that Trump’s White House cut his NYT subscription). One “clipping” — in box 27 — spans over four years, July 2016 to September 2020.

This is not a single newspaper article. It might well be an entire blog or website, printed out.

And if these boxes resemble the ones delivered to NARA at all, they are largely clippings, with documents interspersed.

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.”

In other words, there’s a lot of fluff in these boxes. Fluff that will not need extensive review, because they’ve been seized because they help investigators understand the other items in those boxes.

And Trump is using that fluff to draw out the Special Master process.

Posts

January 6 Election Intelligence

Stolen Documents

Timeline

Interesting links

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