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Happy Crime-Fraud Exception Day, for Those Who Celebrate

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Today marks the calendar start of celebration season for Mr. EW and I; all our big dates are squished into a short period that, this year, might well culminate in the first of several indictments for the former President.

For the US political world, though, today marks crime-fraud exception day, the day that at least one of Trump’s attorneys will be obliged to testify about how Trump lied to his lawyers to try to get away with hoarding stolen classified documents.

Because Evan Corcoran (and possibly Georgia attorney Jennifer Little) will testify today, I thought it a good day to update the list of attorneys who were or have been witnesses or who may be subjects in one or more investigations into Trump.

Since the Stormy Daniels payment may lead to Trump’s first indictment, Michael Cohen gets pride of place at number one on this list, a reminder that for seven years, Trump lawyers have been exposing themselves to legal jeopardy to help him cover things up.

The following lawyers have all — at a minimum — appeared in subpoenas pertinent to one or another of the investigations into Donald Trump, and a surprising number have testified before grand juries, including at least three with (Executive Privilege) waivers. To be clear: Many have no legal exposure themselves, but are instead simply witnesses to the efforts made to keep Trump in line before they were replaced with lawyers who were willing to let Trump do whatever he wanted, legal or no. But some of these lawyers have had legal process served against them, and so may themselves be subjects of one or multiple investigations.

  1. Michael Cohen (hush payment): convicted felon whose phones were seized April 9, 2018
  2. Rudolph Giuliani (Ukraine, hush payment, Georgia, coup attempt): phones seized in Ukraine investigation April 28, 2021, received subpoena for billing records in fundraising investigation around December 2022
  3. John Eastman (Georgia, coup attempt): communications deemed crime-fraud excepted March 28, 2022; phone seized June 22, 2022
  4. Boris Epshteyn (stolen documents, coup attempt, Georgia): testified in Georgia grand jury; phone seized in September after which he retroactively claimed to have been doing lawyer stuff
  5. Sidney Powell (fraud, coup attempt, Georgia): Subpoenas sent in fraud investigation starting in September 2021; testified before Georgia grand jury; appeared in November subpoena
  6. Jeffrey Clark (coup attempt): May 26 warrant for cloud accounts and phone seized June 22, 2022
  7. Ken Klukowski (coup attempt): May 26 warrant for cloud accounts
  8. Victoria Toensing (Ukraine, coup attempt): Phone seized in Ukraine investigation April 28, 2021, on June and November subpoenas
  9. Brad Carver (Georgia and fake elector): phone contents seized June 22
  10. Jenna Ellis (coup attempt and Georgia): Rudy’s sidekick, censured by CO Bar for lying serial misrepresentations, on June and November subpoenas
  11. Kenneth Cheesbro (fake elector, Georgia): included in June and November subpoenas
  12. Evan Corcoran (stolen documents): testified before grand jury in January, testifies under crime-fraud exception on March 24
  13. Christina Bobb (coup attempt, Georgia, stolen documents): interviewed in October 2022 and appeared before grand jury in January, belatedly asked for testimony in Georgia
  14. Stefan Passantino (coup attempt obstruction and financial): included in November subpoenas, alleged to have discouraged full testimony from Cassidy Hutchinson
  15. Tim Parlatore (stolen documents): appeared before grand jury in December 2022
  16. Jennifer Little (Georgia and stolen documents): ordered to testify under crime-fraud exception
  17. Alina Habba (stolen documents, NYS tax fraud): testified before grand jury in January
  18. Bruce Marks (coup attempt): included in November subpoena
  19. Cleta Mitchell (coup attempt and Georgia): included in November subpoenas
  20. Joshua Findlay (coup attempt): included in June subpoenas
  21. Kurt Olsen (coup attempt): included in November subpoenas
  22. William Olson (coup attempt): included in November subpoenas
  23. Lin Wood (coup attempt): included in November subpoenas
  24. Alex Cannon (coup attempt, financial, stolen documents)
  25. Eric Herschmann (coup attempt, Georgia, financial, stolen documents)
  26. Justin Clark (coup attempt and financial): included June and November subpoenas
  27. Joe DiGenova (coup attempt): included in June and November subpoenas
  28. Greg Jacob (coup attempt): grand jury appearances, including with Executive Privilege waiver
  29. Pat Cipollone (coup attempt): grand jury appearances in summer and — with Executive Privilege waiver — December 2
  30. Pat Philbin (coup attempt and stolen documents): grand jury appearances in summer and — with Executive Privilege waiver — December 2
  31. Matthew Morgan (coup attempt): included in November subpoenas

Tim Parlatore is the latest addition to this list, based off someone’s decision to reveal Parlatore’s testimony to the stolen documents grand jury in December. As ABC reported, Beryl Howell ordered him to testify after he belatedly revealed that investigators he hired had found four documents with classification marks in a box brought back to Mar-a-Lago after the August 2022 search (he emphasizes that he did so without a subpoena, but this was an effort to stave off a finding of contempt).

The Dec. 22 testimony from attorney Timothy Parlatore was ordered after months of wrangling between Trump’s attorneys and officials in the Justice Department, who had grown increasingly concerned that Trump still continued to hold onto classified documents after more than 100 were discovered in the August 8 search, sources said.

In fact, just days before his testimony, Parlatore revealed to the DOJ and D.C. district court Judge Beryl Howell that a search of Mar-a-Lago conducted by Trump’s legal team on Dec. 15 and 16 had discovered four additional documents with classification markings, according to sources.

[snip]

While Judge Howell declined to hold Trump or his legal team in contempt at a Dec. 9 hearing, sources said, she did order Parlatore to testify on issues surrounding a signed certification he had provided that outlined the results of his team’s searches of locations where records responsive to the DOJ’s original subpoena could be located.

Howell also suggested at the hearing that Trump’s legal team include Mar-a-Lago in their list of locations to be searched again, despite the FBI’s previous court-authorized search of the property months earlier, sources said.

On Dec. 16, following a two-day search of Mar-a-Lago, Parlatore submitted a revised certification that acknowledged the discovery of the four additional documents in a closet near Trump’s office, sources said.

This explanation makes no mention of the classified folder found — presumably during the same search of Mar-a-Lago done at Howell’s suggestion — in Trump’s bedroom. Parlatore, who was brought in to do searches to give the patina of reliability to the earlier subpoena non-compliance, did not voluntarily hand over that folder; instead, DOJ subpoenaed it. In the wake of disclosures about that, Parlatore went on TV and made the ridiculous claim that the former President has nothing better to use to cover up a light on his bedside phone than random folders that once contained classified records, random folders that were not found during the FBI’s August 8 search.

Nor does this explanation mention the laptop with the documents marked classified (now numbered as four) also turned over.

Perhaps the most important detail this Parlatore-friendly story left out, however, is the way Trump’s team fought unsuccessfully to keep the names of the people who did the searches secret. After Howell ordered them to share those names in January, they testified before the grand jury, after Parlatore had already done so.

In this story, seeded the day before Corcoran testifies before the grand jury, that belatedly reveals Parlatore’s testimony before the grand jury, he makes claims of prosecutorial misconduct.

Parlatore, when reached for comment by ABC News, said, “I voluntarily and happily chose to go into the grand jury so that I could present my client’s case to them in the context of our search efforts. During my testimony, it was clear that the government was not acting appropriately and made several improper attempts to pierce privilege and, in my opinion, made several significant misstatements to the jury which I believe constitutes prosecutorial misconduct.”

Had Parlatore really believed something amounted to prosecutorial misconduct, we would have heard about it in December — though that would have required revealing how documents marked as classified got moved back to Mar-a-Lago after the August search. Had Parlatore really believed something amounted to prosecutorial misconduct, he would have said that on TV instead of sharing his bullshit story about covering up the light on a phone.

He didn’t. He didn’t make this claim until the night before Corcoran is set to testify about the adequacy of Mar-a-Lago searches Corcoran did six months before the one Parlatore did.

In between the time Parlatore testified to the grand jury in December and today, though, Parlatore made this bizarre claim about the possibility that Boris Epshteyn, described here as the gatekeeper between Trump and the lawyers, could be a subject of the investigation. (This story, dated March 14, followed the February 12 bullshit claim about the light by the side of the bed by just over a month.)

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

As I’ve noted, DOJ almost certainly believes that Trump still has classified documents. DOJ almost certainly believes that the searches Parlatore did in November and December not only weren’t adequate, but were proven to be inadequate when his investigators found classified documents that had been moved back to Mar-a-Lago after the initial search.

They tried to obtain those documents by holding lawyers who had attested to searches in contempt back in December. Instead, Beryl Howell made them do more investigation first, culminating in what may be the last order she issued as Chief Judge ordering Corcoran to testify.

One possible outcome of today’s testimony is that someone finally gets held in contempt, someone finally risks jail time until such time as an adequate search of all of Trump’s properties is conducted. And that may be why Tim Parlatore chose this moment to announce his inclusion on the ever-growing lists of Trump lawyers who may be witnesses or may be subjects of his investigations.

Update: Going through old posts and thought I’d link this one from August 23, 2022, where I noted that two of Trump’s lawyers were either witnesses or co-conspirators in the stolen document case. It seemed prescient then, but jeebus, the number turns out to be at least 11 by now.

Remember: DOJ May Still Suspect Trump Is Hoarding Classified Documents

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When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.

In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.

As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.

The six things Corcoran has been ordered to testify about, per ABC, are:

  1. “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
  2. Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
  3. “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
  4. “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
  5. “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
  6. What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room

Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?

Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?

Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.

“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.

And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.

She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.

But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.

As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.

Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.

But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.

Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.

Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.

Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.

If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.

It may also finally provide the basis to hold Trump in contempt for withholding further documents.

Lordy, There Are [Transcribed] Tapes

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ABC News reports that among the things Beryl Howell ordered Trump’s lawyer, Evan Corcoran, to turn over were “transcriptions of personal audio recordings” involving his representation of Donald Trump.

Sources added that Howell also ordered Corcoran to hand over a number of records tied to what Howell described as Trump’s alleged “criminal scheme,” echoing prosecutors. Those records include handwritten notes, invoices, and transcriptions of personal audio recordings.

It also reported that Howell ordered Jennifer Little, an Atlanta attorney who signed a big challenge to Fani Willis’ investigation into Trump’s attempts to cheat in Georgia, to testify further as well.

Sources told ABC News that Howell ordered Little’s testimony as well, with the exception of one of the topics for which she sought to assert attorney-client privilege.

CNN reports that Trump is appealing this decision.

Pavlov’s Press Corps: Trump Once Again Got Journalists to Willingly Serve as His Incitement Mules

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When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.

At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.

Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:

  • An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
  • An attack on Alvin Bragg’s record on crime
  • A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
  • An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
  • An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
  • A day, Tuesday, when he would be “arrested”
  • A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”

The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.

NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe

This is historic: he would be the first former president to be indicted

He urges his supporters to “Protest, take our nation back!”

The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:

It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.

As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.

By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.

It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.

Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.

In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.

His indictment by a Manhattan grand jury is expected, but its timing is unclear.

[snip]

Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,

[snip]

Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.

One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.

The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.

A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,

CNN, including Kaitlan Collins, who was among the first to help disseminate this incendiary tweet, later reported on the legal discussions going on inside Trump’s camp.

Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.

Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.

Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.

Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.

Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.

But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.

The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.

[snip]

Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.

“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.

In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.

Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.

It worked.

It works every single fucking time Trump does this.

Every. Single. Time.

And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.

It’s the other effect the tweet had on reporting about Trump.

First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.

And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.

In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.

Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.

To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.

But the substance of it stems from Trump fucking a sex worker.

He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.

This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.

We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.

That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.

Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.

Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.

And it could well get people killed.

Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.

Evan Corcoran: You’re the Next Contestant on Trump’s Crime-Fraud Reality Show

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Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

 

How Would You Arrest a Former President?

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As I was reading the four-journalist WaPo story noting what I noted (and provided far more details about) almost three months ago — that the investigation into Trump has been greatly complicated by the involvement of lawyers in his suspected crimes — I thought about how one might arrest Donald Trump. WaPo is interested in whether it can be done before the first debates in August. I’m interested in the logistics of it.

Especially given another temporal complication that WaPo, with all those reporters, doesn’t mention: That the DC Circuit, a panel including two Trump appointees, is taking its own sweet time ruling on DOJ’s application of obstruction to January 6, which was argued back in December. The January 6 Committee referred Trump for 1512(c)(2), which also happens to be the framework DOJ has been using since summer 2021. It’s virtually certain that no matter how the DC Circuit rules, the application can still be applied to Trump (because he corruptly sought a personal benefit involving documents). But if I were Jack Smith, I’d wait to see the guideposts Trump’s own appointees put on the application before I charged it. I have also long said that certain steps may be contingent on the Proud Boy trial, which seems like it’ll go on forever.

I’m not promising Trump will be arrested. But think about the logistical complexities of the task, if Smith were to decide to do it. How do you arrest a rich man — if not quite a billionaire — with access to several planes and his own MAGA army? How do you stage it, given all the potential or likely co-conspirators?

The question of how to arrest Trump is likely also a pressing issue given the likelihood that DOJ still hasn’t obtained all the documents Trump stole, given the multiple properties that haven’t been searched (including Trump’s jet).

One way you might do that is to arrest him first on a limited set of charges tied to the crime scene, one that wouldn’t obligate DOJ to turn over discovery on all the other things Jack Smith is still investigating, such as the targeting of Mike Pence, the defrauding of MAGAts and related campaign finance crimes, and the fake elector plots involving at least a dozen other top Republicans. Arrest him on a crime scene charge, and get it over with.

You arrest Trump and maybe one or two other people, get them in a pretrial release situation limiting their direct contact with other potential co-conspirators (and requiring a truthful statement of net worth to prosecutors, a statement that may reveal useful evidence about Trump’s income from fraudulent claims and Saudi golf tournaments). Ground his plane … and then search it. Search the other properties during the period when Trump is being processed. Prevent Trump, legally, from singing duets with other January 6 thugs.

And then you continue to investigate, superseding the initial charges after you get the testimony of Mike Pence and Evan Corcoran.

Again, this is just a thought experiment. But I thought I’d get ahead of where four-journalist teams from the WaPo will be in three months time.

Did Steven D’Antuono Make It Easier for Trump to Steal 47 Classified Documents?

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There are two things that are not mentioned in this long explanation of how the FBI refused, for months, to treat Donald Trump like anyone else suspected of hoarding highly classified information.

First, WaPo doesn’t mention that Trump got an injunction that lasted from shortly after the search, September 5, until December 12, over three weeks after Jack Smith was appointed.

Because the WaPo doesn’t mention that fact — doesn’t mention that DOJ was prevented from using classified evidence to investigate Trump’s crimes for several weeks in September, doesn’t mention that DOJ was prevented from using unclassified evidence to investigate Trump’s crimes for 98 days — WaPo envisions any damage FBI did by resisting taking investigative steps against Trump as a shortening of the time when DOJ could charge Trump.

Some inside the probe argued the infighting delayed the search by months, ultimately reducing the time prosecutors had to reach a decision on possible charges. Others contend the discussions were necessary to ensure the investigation proceeded on the surest footing, enabling officials to gather more evidence before they executed the search, people familiar with the dynamics said.

In November, before prosecutors had finished their work and decided whether to charge Trump or anyone else, he announced his campaign to retake the White House in 2024, leading Garland to appoint a special counsel, Jack Smith, to complete the investigation.

[snip]

Meanwhile, in late October, amid news reports that Trump was looking to soon announce another bid for the presidency, Garland told aides he was seriously contemplating appointing a special counsel to take over the investigation, as well as a separate criminal probe looking at Trump and his allies’ effort to overturn the results of the 2020 election — a rare procedure designed to ensure public faith in fair investigations.

On Nov. 15, Trump took the stage in the Mar-a-Lago ballroom — at the same property where FBI agents had searched three months earlier — and announced that he would run for president again in 2024. The Justice Department’s national security division leaders who had pushed the FBI to be more aggressive pursuing Trump did not finish the investigation or reach a charging decision before a new chief took over.

On Nov. 18, Garland sent word to the prosecutors working on both of the probes to come to Justice Department headquarters for a meeting that morning. He wanted to privately inform them that he planned later that day to appoint a special counsel. Garland told them they could choose their next steps, but he hoped they would join the special counsel’s team for the good of the two investigations, people familiar with the conversation said.

Even that risk assumes Trump’s announcement was determined by anything other than making it harder for DOJ to charge him; he was discussing announcing his run still earlier, before he got the injunction. But the risk ignores the opportunity that FBI’s delay provided Trump and others last summer.

The other thing WaPo doesn’t mention is the real damage the FBI, led by the now-retired head of the Washington Field Office, Steven D’Antuono, may have done by stalling: FBI may have made it impossible to recover all the documents Trump took.

Well before the injunction on using unclassified documents in the investigation was lifted, multiple outlets revealed that DOJ suspected Trump still had classified documents. Trump’s lawyers have paid investigators to search some — but not all — of Trump’s properties since. And for months, Trump’s lawyers publicly lied about the results, publicly lied to hide that an aide moved new documents with classification marks to Mar-a-Lago after the August 8 search by the FBI.

There are still 47 empty classified document folders, found in two different searches of Trump’s property, that remain unexplained.

Perhaps those folders were not yet empty in May 2022, when DOJ first proposed doing a surprise search of Mar-a-Lago.

But FBI agents viewed a Mar-a-Lago search in May as premature and combative, especially given that it involved raiding the home of a former president. That spring, top officials at FBI headquarters met with prosecutors to review the strength of evidence that could be used to justify a surprise search, according to two people familiar with their work.

Perhaps those folders were not yet empty in June 2022, after Evan Corcoran raised more suspicions on June 3, when Jay Bratt came to pick up a folder of classified documents, the same day that Trump departed for Bedminster.

Perhaps those folders were not yet empty when DOJ served another subpoena to obtain the surveillance footage showing Walt Nauta moving boxes to evade the search.

Some FBI field agents then argued to prosecutors that they were inclined to believe Trump and his team had delivered everything the government sought to protect and said the bureau should close down its criminal investigation, according to some people familiar with the discussions.

But they said national security prosecutors pushed back and instead urged FBI agents to gather more evidence by conducting follow-up interviews with witnesses and obtaining Mar-a-Lago surveillance video from the Trump Organization.

The government sought surveillance video footage by subpoena in late June. It showed someone moving boxes from the area where records had been stored, not long after Trump was put on notice to return all such records, according to people familiar with the probe.

Perhaps those folders were not yet empty when D’Antuono — who was appointed head of the DC field office in October 2020 and who retired last November; his replacement was named in late December — continued to stall shortly before the search.

Against that backdrop, Bratt and other senior national security prosecutors, including Assistant Attorney General Matt Olsen and George Toscas, a top counterintelligence official, met about a week before the Aug. 8 raid with FBI agents on their turf, inside an FBI conference room.

The prosecutors brought with them a draft search warrant and argued that the FBI had no other choice but to search Mar-a-Lago as soon as practically possible, according to people with knowledge of the meeting. Prosecutors said the search was the only safe way to recover an untold number of sensitive government records that witnesses had said were still on the property.

Steven M. D’Antuono, then the head of the FBI Washington field office, which was running the investigation, was adamant the FBI should not do a surprise search, according to the people.

D’Antuono said he would agree to lead such a raid only if he were ordered to, according to two of the people. The two other people said D’Antuono did not refuse to do the search but argued that it should be a consensual search agreed to by Trump’s legal team.

We have no reason to believe that DOJ got all the documents back and plenty of reason to believe it didn’t. Trump’s lawyers are still dicking around, offering ridiculous explanations for why a new empty folder showed up sometime between August and December.

What we do know is that Steven D’Antuono treated Trump differently than FBI would have treated any other person suspected of stealing classified documents, he treated Trump differently because he had been trained to understand that Trump could ruin his career if he dared investigate Trump.

And by treating Trump differently, D’Antuono may have given Trump the opportunity to steal another 47 documents.

Pence’s Previously Redacted Documents and The Corcoran Scapegoating

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Time for another update on the various investigations into stolen and mishandled documents.

Start with Mike Pence, who thus far, the press has assumed, is the safest among the three men being investigated from legal exposure.

The Friday before a holiday weekend, Pence’s team revealed FBI searched Pence’s office. The topline result was that they didn’t find any documents with classification markings, but the FBI did seize three “previously redacted documents.”

Federal agents removed three “previously redacted documents” — but none with classified markings — during an hours-long search of the office of former Vice President Mike Pence’s public policy organization Friday, Advancing American Freedom, according to a Pence spokesman.

That detail raises more questions than answers: It’s hard to understand why, even under the Presidential Records Act, FBI would seize previously redacted documents.

Further in, the same story hinted at one possible reason: if certain no-longer classified documents reveal the import of other documents marked as classified. For example, consider the possibility of a tie between the debate prep materials from Pence’s office and the package of documents seized from Pence’s home.

The documents taken Friday are believed to be materials used for 2020 debate preparation, a person familiar with the matter said.

Last week, the FBI removed one classified document and six other documents during a voluntary search of Pence’s Indiana home. A person familiar with the search told NBC News earlier this week that at least one other item was taken at that time because the relevant materials “were kept in a place that required the FBI to take more than just the documents.”

Such a tie might be exculpatory, for example: it might suggest that documents with classification markings had already been declassified in advance of some prepared debate line. Much of the debate between Pence and Kamala Harris focused on COVID response and China. It would be unsurprising for Trump to declassify information on China’s role in COVID in advance of that debate; nor would it be surprising to find such papers at Pence’s home, given his role in COVID response.

Two other topics from the debate potentially implicating classified materials might be resonate with the Trump investigation, though. To defend Trump’s national security record, for example, Pence raised the execution of Qasim Soleimani, claiming Trump ordered the attack, “when Qasim Soleimani was traveling to Baghdad, to harm two Americans.” Given the visible dates of the highly classified documents at Trump’s home, it would be unsurprising if one or several of those documents related to this decision, stolen as trophies of Trump’s most self-satisfying order as President.

Also in the debate, as part of a false claim that he and Trump had been spied on by the FBI, Pence raised a CIA document unsealed and submitted to the Mike Flynn docket days earlier.

[T]he FBI actually spied on President Trump and my campaign. I mean there were documents released this week that the CIA actually made a referral to the FBI documenting that those allegations were coming from the Hillary Clinton campaign

If these were among the previously redacted documents at Pence’s home, it would suggest that Trump’s obsession with stealing documents pertaining to the Russian investigation had spilled (heh) over into documents in Pence’s possession.

This is all speculative. But the report that FBI took documents that would not obviously substantiate either the mishandling of classified documents or a violation of the Presidential Records Act for the first time suggests that FBI may be pursuing some more interesting explanation for the classified documents at Pence’s home.

Things get more interesting when you turn to Mar-a-Lago.

Also on Friday, Rolling Stone told a tale that suggests Trump is being advised to ditch Evan Corcoran as a lawyer because he’ll soon be charged. To be clear: neither Rolling Stone nor I are claiming Corcoran will be charged.

The story, by Asawin Suebsaeng and Adam Rawnsley, is likely legal nonsense. But the two have reported a series of insider stories on Trump world that capture — perhaps more than any other journalistic team — the batshittery going on close to the former President. This is not bad reporting. Rather, it seems to be accurate reporting that captures the batshittery and bullshit of Trump’s inner circle. One story that is a close analogue of this one described how Trump wanted to expose the IDs of people involved in the Russian investigation, on that piggybacked off a NYT story that served as cover for the centrality of Russian documents in Trump’s obsession with stealing documents.

Anyway, this story may be explained by two earlier reports.

On February 14, the NYT version of the story that DOJ was seeking a crime-fraud waiver for Corcoran’s testimony included the detail — amid reports that multiple witnesses have been asked about Boris Epshteyn’s role in withholding the stolen documents — that Epshteyn once sought to establish a joint representation.

Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump, according to multiple people briefed on the matter. It was Mr. Epshteyn who first brought Mr. Corcoran into Mr. Trump’s orbit.

At least three lawyers have sat for interviews with the Justice Department during which questions about Mr. Epshteyn were asked — among them Ms. Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Mr. Trump, Jesse Binnall, has also spoken with prosecutors about Mr. Epshteyn, the people said.

One person briefed on the interviews said that investigators were interested in discussions between Mr. Epshteyn and others about establishing a possible common-interest privilege in the documents case. A common-interest privilege creates a kind of umbrella privilege allowing groups of lawyers and clients to communicate with each other confidentially.

Such common-interest agreements are frequently used in cases with multiple lawyers and multiple witnesses. But prosecutors are asking questions indicating they’re interested in whether Mr. Epshteyn was trying to improperly influence witness testimony, the person briefed on the interviews said.

The NYT story bears the same markers of MAL bullshit that some others on this story do, notably, claiming that Beryl Howell has always ruled against Trump when (among other things) she has deferred certain decisions, like holding Trump in contempt, forcing DOJ to do more work. There’s good reason to believe the claim is just the regurgitated bullshit claims made by Trump’s lawyers.

On February 17, Reuters reported (and thus far, they appear to be alone with this scoop) that Corcoran’s firm hired an attorney to represent him.

A lawyer for former President Donald Trump retained an attorney to represent himself as prosecutors step up their inquiry into the handling of sensitive documents at Trump’s Florida residence, two people familiar with the matter told Reuters on Thursday.

Evan Corcoran, who has represented Trump in interactions with the government over presidential records taken to his Mar-a-Lago resort, has turned to Michael Levy, a prominent white-collar lawyer in Washington, according to people familiar with the matter.

Levy was hired by Corcoran’s law firm, Silverman Thompson Slutkin & White, to represent Corcoran in the probe, according to one of the people.

This is not surprising. It’s grown up lawyering. But it provides important context of Epshteyn’s call to adopt a joint defense, in part because it explains with whom Epshteyn might want to form a mutual defense, in addition to the lawyer representing Christina Bobb and Alina Habba.

With that background in mind, take a look at the Rolling Stone piece. It describes not that Corcoran will be charged, but that Trump is being advised he will be.

In at least three meetings this year, according to two sources familiar with the matter, legal and political counselors to Trump have urged him to dump Evan Corcoran, one of the ex-president’s top attorneys in the federal probe into Trump’s handling of classified documents.

Some of the former president’s lawyers have explicitly told Trump that, based on information they have privately reviewed, they believe the Department of Justice has a strong case against Corcoran, arguing charges — including potentially for obstruction of justice — are “very likely,” the sources said. These advisers have argued that if the Justice Department indeed does come for Corcoran, it’s imperative for Trump to distance himself to avoid being dragged into possible further legal jeopardy by his own attorney.

Trump, the sources say, sounded “receptive” to their perspective. However, as of mid-February, it appears he wasn’t as receptive as they had hoped: Corcoran is still on Trump’s legal team.

As RS describes it, this is explicitly an attempt to pin the blame for what happened last summer on Corcoran.

Several of Trump’s close advisers who’ve recently spoken to him about this have argued to the ex-president that any potential wrongdoing on this matter could, somehow, be pinned entirely on Corcoran, and not Trump himself.

Even better, it includes this claim — that excludes Epshteyn from the list of lawyers whom DOJ might be targeting.

“These types of motions [requesting that a judge nullify attorney-client privilege based on the crime-fraud exception] would only be served upon the attorneys who’ve appeared in the case: Jim Trusty, John Rowley, Evan Corcoran, Tim Parlatore, and Lindsey Halligan; the five of them would be the only people who have access to these documents,” says a person familiar with the internal proceedings of Trump’s legal team. “Any source other than that would not be speaking from a position of access and would likely be speaking based on their own personal agenda, rather than actual facts. [Furthermore], when DOJ targets lawyers, it is often being done from a position of weakness in their underlying case, as a method of undermining the integrity of the defense legal team. Removal of Evan Corcoran … would serve the purpose of giving DOJ exactly what it wanted.” [bracket original]

Epshteyn has been at the center of these discussions from the start — he’s the guy who brought in Corcoran, he’s the guy who called up Christina Bobb and had her show up to be a fallgal for a misleading declaration on June 3. To exclude him from this comment — either because he’s the one you’re talking to or because someone is trying to obscure his centrality in all of it — is telling.

Trump’s lawyers believe that they can wait out the end of Beryl Howell’s term and they’ll be the ones who decide whether DOJ can get a crime-fraud exception for Corcoran’s testimony. That may not even be the case if Corcoran plays along. But if he doesn’t — if his own lawyer advises him that fighting a crime-fraud determination puts him in legal risk he’s not currently in — then it may explain why people at MAL are trying to preemptively claim Corcoran was behind a lot of epically shitty legal advice last summer and not Epshteyn.

Some People Have Sex Toys; Trump [Claims He] Has Empty Classified Evening Briefing Folders

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I’d like to situate the details about an empty folder marked, “Classified Evening Briefing,” from this Guardian story into what we know about the searches of Mar-a-Lago. It describes that the folder was first observed, in Trump’s residence, and recorded in a report shared with DOJ by the investigators who did the search of Trump’s properties. But Trump didn’t return the folder because it, itself, was not classified information.

The folder was seen in Trump’s residence by a team of investigators he hired to search his properties last year for any remaining documents marked as classified. The team transparently included the observation in an inventory of Mar-a-Lago and Trump properties in Florida, New Jersey and New York.

[snip]

The folder is understood to have not been initially returned because the lawyers thought “Classified Evening Briefing” did not make it classified, nor is it a formal classification marking.

“Weeks after” DOJ got the report on Trump’s properties in December, DOJ subpoenaed the folder in January.

Donald Trump’s lawyers turned over an empty manilla folder marked “Classified Evening Briefing” after the US justice department issued a subpoena for its surrender once prosecutors became aware that it was located inside the residential area of the former president’s Mar-a-Lago resort, two sources familiar with the matter said.

The previously unreported subpoena was issued last month, the sources said, as the recently appointed special counsel escalates the inquiry into Trump’s possible unauthorized retention of national security materials and obstruction of justice.

[snip]

Weeks after the report was sent to the justice department, the sources said, federal prosecutors subpoenaed the folder.

Here’s the story Trump told to DOJ about the empty classified folder:

The backstory the justice department was told about the folder was that Trump would sometimes ask to keep the envelopes, featuring only the “Classified Evening Briefings” in red lettering, as keepsakes after briefings were delivered, one of the sources said.

It’s just some kink that Trump has, his lawyers want DOJ to believe, that he wants to have “Classified Evening Briefing” folders strewn around his personal residence.

It’s not entirely ridiculous. After all, just two days after the search of Mar-a-Lago, reporters found a folder just like that one at a shrine to the Donald in Trump’s Wine and Whiskey Bar in Manhattan.

There are several problems with this story, though.

Let’s review some chronology of Trump’s stolen document scandal. In May, Trump’s lawyer Evan Corcoran accepted a subpoena for all documents with classified markings at any Trump property. Trump stalled for almost a month, but then the day before Trump was set to leave for Bedminster, Corcoran told the FBI to come to Mar-a-Lago the next day to retrieve documents. On June 3, Jay Bratt showed up with some FBI agents, and Corcoran handed over a folder of documents — certified by Christina Bobb, not himself — and also showed the people from DOJ the storage room where many, but not all, of Trump’s presidential records were stored. Trump’s story does not match DOJ’s story about whether Trump interacted with Jay Bratt when the senior DOJ official was at Mar-a-Lago.

On June 24, DOJ subpoenaed surveillance footage that, subsequent reporting has made clear, showed Walt Nauta moving boxes out of the storage facility, thereby preventing Corcoran from finding the documents inside in the search he did in advance of June 3. Prior to obtaining the video, Nauta had testified that he didn’t move any documents; afterwards, he testified he had moved boxes to Trump’s residence.

Then, on August 5, DOJ obtained a warrant to search Mar-a-Lago. The affidavit for the search specifically mentioned Trump’s residence, “Pine Hall.” And the search warrant authorized the search of “the ’45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored,” which particularly given DOJ’s knowledge that Trump already had hidden stolen documents in his residence, surely would include the residence. In the weeks after the search, Trump claimed publicly that the FBI had searched Melania’s closet, implying that the FBI did search the residence. But the only way Trump would know what the FBI searched or not would be if those rooms were covered by his own surveillance camera.

Let’s assume, however, that the FBI did at least go through the residence closely enough to ensure no documents remained there after Nauta had stashed them there while Corcoran conducted a search.

The FBI seized no documents from the residence on August 8. Documents were seized from just the storage room (those marked with an “A-” preface on the search warrant return) and Trump’s office (those without).

One thing supports Trump’s claim that he took this — and all the other — empty classified folders, as well as 42 empty aide folders, as trophies. There were 43 empty classified folders and 28 empty aide folders in his leatherbound box, which also had the most sensitive documents. Particularly given the appearance of those documents in the photo the FBI released, it is not inconceivable that Trump stole them as trophies of some events he think reflect well on his presidency, just like he stole the Kim Jong Un letters.

Plus, by appearances, Trump stored those super secret documents right next to his Time Magazine covers. All of which supports his claim that he stole these items as trophies of his time as President.

But that’s not the only place the FBI found empty folders in their August 8 search. They also found them in five other boxes, all stored in the storage room.

With one exception — box A-33 — all the boxes with empty folders also had classified records, though mostly just one or two classified documents.

In other words, even indulging Trump’s excuse — that he stole these empty classified folders as keepsakes — that only explains one of the motives and means by which he stole them. It only explains the folders stored with his other trophies, in the leatherbound box. It doesn’t account for the fact that Trump also stole files that weren’t keepsakes per se, but were boxes of other records, among which some classified records remained. It doesn’t account for the fact that hoarding large amounts of documents, as Trump did, along with sloppy treatment of classified documents while in the White House, will result in the theft of classified documents. Along with some empty classified folders.

More importantly, the discovery of an empty classified briefing folder in his residence, which was not found during the no-notice search on August 8, but was found during the search for which Trump would have had advance notice, could not readily be explained by the kink trophy explanation.

Which is why this currently operative story — and the fact that Trump’s lawyers have decided to share it publicly now — should focus on the other investigative steps that took place in the same time.

Back in October, before Attorney General Garland appointed Jack Smith, Trump was reportedly still considering letting the FBI do a further search of his property, like Joe Biden and Mike Pence have since done. But then, probably after the appointment of Smith and the 11th Circuit ruling overturning the Special Master, Trump decided to have a private firm do the search instead. After the search of (some of) Trump’s properties — this probably happened at the end of November and beginning of December — the contractors provided an inventory to DOJ, which is how DOJ learned of the empty folder. Because Trump’s lawyers refused to certify the searches themselves, DOJ immediately tried to hold Trump in contempt for violating the May 11 subpoena. That request — to hold Trump’s lawyers in contempt — happened at the same time (around December 6) as a bunch of inconsistent stories serially revealed the search of four of Trump’s properties and, the stories claimed, the discovery of just two more classified documents.

We now know those stories were false, classic Trump limited hangout. Yesterday’s stories reveal that when Trump’s lawyers told journalists the search firm had only found two documents marked as classified in December, they were hiding the Trump calendars and the classified folder. They were lying to hide the stuff just revealed yesterday.

Beryl Howell did not make a final decision on contempt, though the same Trump lawyers also falsely told journalists she had made a final decision.

Then, after some back in forth, early in January, DOJ got Beryl Howell to require Trump to turn over the names of the people who did the search. That’s the first we learned that, contrary to the headlines you’d read based on the December 2022 stories, Howell had not made a final decision on contempt.

That’s all background to the mad set of stories yesterday, announced even as Pence admitted FBI found one more classified document at his house. It should tell you something that the leaks yesterday resemble the ones from December 7, when Trump’s lawyers told two lies: That Howell had already decided not to hold them in contempt, and that the search firm had found only two more classified documents. Based on past experience, we should assume yesterday’s stories, like the ones in December, had as their primary goal to tell a false story.

What we know, though, is that after attempting to hold Trump’s lawyers in contempt in early December, DOJ took steps that would be necessary preparation for interviewing the people who did the search. First, forcing Trump to share the names. Then, interviewing two of three lawyers involved in Trump’s obstruction last June, Evan Corcoran and Christina Bobb. And then, obtaining the things found in the search that weren’t immediately turned over as positive search results, which would be necessary preparation to interviewing those who did the search.

Trump told DOJ in December that this empty folder, which the FBI didn’t find when they showed up to MAL unannounced on August 8, 2022, had found its way to Trump’s residence in time for the contracted search, because he has an empty folder fetish.

He certainly does appear to have an empty folder fetish.

But that cannot explain why the folder — full or empty — was not found in August but was found in December.

I’ve updated my resource page on Trump’s stolen documents here.

Timeline

May 11, 2022: Subpoena for all documents bearing classification marks

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

October 19: Trump still considering letting FBI search his properties for further classified documents

November 18: Merrick Garland appoints Jack Smith Special Counsel

December 7: A series of inconsistent stories reveal, serially, the search of four properties and the discovery of just two more classified documents

Late 2022: DOJ reaches out to Alina Habba, who last summer claimed to have done a thorough search of Trump’s properties

December: Trump returns box of presidential schedules, which includes classified information

January 4, 2023: Beryl Howell orders Trump to turn over names of investigators to DOJ

Early January: Trump turns over aide’s laptop and DOJ subpoenas both empty folder and

Early January: Evan Corcoran and Christina Bobb appear before the grand jury

February 2: Tom Fitton appears before grand jury

February: Robert O’Brien subpoenaed for both stolen documents and attempted stolen election investigations

“Classified Evening Briefing:” Mishandled and Stolen Documents Update

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There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.

Biden

On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.

NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.

Pence

Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.

The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.

The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”

“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”

A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.

The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.

Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.

Pence has another weekend home in IN that has not been searched.

Trump

Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:

  • An empty folder marked “Classified Evening Briefing”
  • Some additional classified files
  • The laptop and thumb drive onto which digital versions of those files were copied

Here’s how ABC described the new materials:

The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.

Separately, there have been reports of at least three witnesses who have testified in the stolen document case:

  • In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
  • Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
  • On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
  • Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.