Posts

Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

/32 Comments/in , , /by

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:

[snip]

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.

Kash Patel’s Immunized Testimony Is about Premeditation, Not (Just) about Declassification

/85 Comments/in , /by

Thankfully, the NYT has written a second story reporting that DOJ is considering asking Beryl Howell to give Kash Patel use immunity in the Trump stolen document investigation, because I was about to go back and write about the first one.

Earlier this month, the prosecutors summoned Mr. Patel to testify before a grand jury in Washington hearing evidence about whether Mr. Trump had mishandled classified documents and obstructed justice when he refused to return the records to the government.

Mr. Patel repeatedly invoked his Fifth Amendment right against self-incrimination. In response, prosecutors asked a top federal judge in Washington to compel Mr. Patel to answer questions — a move Mr. Patel’s lawyers have strenuously opposed. The question now is whether the Justice Department will grant him immunity in order to secure his testimony.

The first was newsworthy — as I laid out in this thread and as Jay Kuo wrote up in this piece — for its silence about the fact that Stanley Woodward is the defense attorney for both people described in the story (the other was Walt Nauta, the valet who moved documents around before Evan Corcoran did a search of what was left).

Woodward represents a slew of key defendants who might serve as firewalls in a larger and much more damning crime: in addition to Patel and Nauta, Dan Scavino, Peter Navarro, Oath Keeper Kelly Meggs (who has ties to Roger Stone), and the guy who kicked off the entire riot, Ryan Samsel. Woodward’s a decent defense attorney (not least because, unlike many Trump attorneys, he is a defense attorney), but he’s got a conspiracy streak that should be accounted for when reporting on his representation of events.

Both NYT stories portray Patel’s unnamed attorneys as resisting the move to immunize him.

In response, prosecutors asked a top federal judge in Washington to force Mr. Patel to testify — a move fought by Mr. Patel’s lawyers, who are concerned the government wants to use Mr. Patel’s own statements to incriminate him. [first]

[snip]

The push for the testimony has also created friction between the Justice Department and Mr. Patel’s lawyers, who have argued that the department could use his statements against him if they build out a larger obstruction investigation. [second]

This is, frankly, silly reporting. Stanley Woodward doesn’t get a choice in whether Patel is immunized. That’s the point: You immunize a witness to compel his testimony. And defense attorneys and prosecutors are adversarial; there is supposed to be “friction” between them. That’s the nature of an adversarial system.

Including these claims in the story without explaining the import of compelled testimony does a disservice to readers and makes the story far more of vehicle for obstruction.

Best as I can tell (it’s hard to tell, because the part of the earlier story addressing immunity was so muddled), this version of the story adds no new news except for the self-congratulatory detail that Trump only learned that Kash took the Fifth from the earlier story.

Mr. Trump first learned that Mr. Patel had invoked the Fifth Amendment when The New York Times reported it on Monday, according to person briefed on the matter.

This is not actually interesting unless you’re a NYT reporter or someone like Stanley Woodward wanting to make clear he’s not directly consulting on these defense issues in advance with Trump himself, which is different than consulting with someone like Boris Epshteyn, who (unlike Woodward) is not a defense attorney but nevertheless is purportedly in charge of Trump’s defense. It just so happens that these anonymously sourced stories provide all the details that Trump would need and Woodward would want public to make sure he still got paid. (Not addressed, however, is a reference in the earlier story boasting about the treatment of the video surveillance that would have led to changed testimony from Nauta.)

Sadly, this story utterly misses several key points about the import of Kash Patel’s testimony.

First, consider Kash’s potential responses if Beryl Howell does grant him use immunity. Either he testifies truthfully, he lies, or he still refuses to testify and gets jailed for contempt. This is the real tension that Woodward is getting at — what should Kash do if he is immunized, as if the story is begging for directions from those paying the bills. While Trump was still President, the answer was easy: lie and await a pardon. It’s more complicated when you’re firewalling someone who may not return to the presidency anytime soon.

More importantly, consider possible reasons why Kash might have invoked the Fifth, if it was anything more than an attempt to avoid testifying in the absence of Executive Privilege claims.

NYT — which has spread the cover story that the only Russian documents Trump attempted to disseminate as he left office were the unclassified Strzok-Page texts (ABC had a detailed story about what really happened) — says that this is all about whether Kash’s claims that Trump declassified the documents he stole are true.

Federal prosecutors investigating former President Donald J. Trump’s handling of national security documents want to question one of his confidants about a claim that Mr. Trump had declassified national security documents he took when he left the White House.

[snip]

But the Justice Department’s interest in questioning Mr. Patel about the claim shows that prosecutors see it as potentially relevant to their investigation into the handling of the documents and whether Mr. Trump or his aides obstructed the government’s efforts to reclaim them.

If all Kash was asked about was whether — at a time when he was supposed to be running the Pentagon but instead happened to be at the White House at the precise moment Trump waved a magic wand to mass declassify documents he intended to steal — Trump had really declassified those documents, there’d be little cause to invoke the Fifth and he would have invoked Executive Privilege instead. If Trump didn’t declassify the documents, Kash would be admitting to lying in Breitbart, which is not only not a crime, but it is generally assumed of columns that appear in Breitbart.

If Trump actually did declassify these documents with Kash as a witness, Kash has no legal exposure whatsoever.

So (again assuming Kash invoked the Fifth because he believed he had real exposure himself, which may not be the case), what might be those possible areas of exposure? Some possibilities include [these are hypotheticals]:

  • At some time before January 20, 2021, Kash and Trump coordinated to select a group of documents — including the Russian binder, but also (per the Breitbart piece quoted in the search affidavit) the Ukraine quid pro quo and other topics of national security import — that Trump would steal when he left; this is consistent with a great deal of what Kash has said publicly.
  • The Russian binder did circulate and because the declassification process was never finalized before Trump left office — and appears not to have been finalized at all — any classified documents in it would expose the person circulating the binder to Espionage Act charges himself. If an unredacted Carter Page application were included, it would expose the person to FISA violations as well, as I noted in August.
  • Trump and Kash both know that he never declassified the documents he stole, but leading up to May 5 — at a time when Trump was trying to stave off further investigation and even before FBI reviewed the boxes returned in January — they coordinated the false Breitbart column and the false claims about declassification since.
  • The decision to make Kash and John Solomon Trump’s representatives to the Archives was an effort to assess what was stolen.
  • Kash was in some way part of the curating process of choosing which stolen classified documents to retain after 2021, effectively a continuation of the role he started to play in 2017, for which he was rewarded handsomely.

Again, all of these are strictly hypothetical! But they more closely match the known facts than the cover story that Trump was only disseminating unclassified Strzok texts.

And for all the NYT’s focus on obstruction — goddamnit, Mike Schmidt, will you never tire of reporting that Trump is primarily exposed to obstruction?!?! — many of these actions would expose Patel not just to obstruction, but to charges under the Espionage Act himself (and, as I noted, potentially FISA).

I described on August 12 — four days after the search — that if Trump asked Kash or John Solomon to access the stolen classified documents at Mar-a-Lago, then it would expand Trump’s exposure under the Espionage Act.

If Trump and Kash worked together while still in the White House to select a bunch of classified documents to steal and further disseminate, it might expose one or both to 793d.

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

If, before DOJ started making the more formalized requests for Trump to return the stolen documents (and so at a time when Trump might plausibly claim he was still sorting through his documents), Kash disseminated them forward from Mar-a-Lago, it might expose one or both to 793f.

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

If Kash coordinated with Trump to try to create post hoc justification to keep the stolen classified documents — including with the Breitbart column and his subsequent claims about declassification — it might expose both to 793g.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Again, this post involves a lot of hypotheses (though with the advantage that, unlike the NYT, I’m not under the illusion that the only Russian documents Trump planned to disseminate were unclassified Strzok texts). But this is an absolutely critical thought experiment (especially when trying to assess venue, as Brandon Van Grack did here) because the question before DOJ is not, and never was, solely whether a former President refused to return documents he might implausibly claim to have declassified.

The question has always been about whether Trump had a premeditated plan to steal classified documents, and what Trump did with the classified documents after he stole them. Every single one of Kash’s claims to be privy to a purported declassification are also claims about premeditation and dissemination to people not authorized to have classified documents.

And that’s why he’d have a credible Fifth Amendment claim.

It would be unprecedented to charge a former President with violating 18 USC 793e for refusing to return classified documents — though I think DOJ has a clear case (with the South Florida venue that Van Grack explains in his piece) for documents retained between June 3 and August 8.

But if DOJ had evidence that Trump had a premeditated plan to steal classified documents and disseminate them to frothers — some with suspect associates — it would expand his exposure into crimes that are not close calls at all.

And that’s why the decision whether to immunize Kash is not the hard trade-off that people are making it out to be. DOJ may or may not be able to mount a case against Kash himself. But if he were a key witness in a 793g case, it would make the gravity of crimes charged under the Espionage Act far more clearcut, even if charged in Florida. It would make any case against Trump far easier to prove.

Kash Patel is not primarily a witness about whether Trump declassified the documents he stole. He’s a witness about whether Trump had a premeditated plan to steal classified documents and disseminate them to people not entitled to have them. And that’s why the serial reports about DOJ seeking to immunize Kash’s testimony are interesting.

On Steve Bannon’s Epically Bad Faith

/56 Comments/in , /by

The government’s sentencing memo for Steve Bannon, which asks Judge Carl Nichols to sentence Bannon to six months in prison for blowing off the January 6 Committee subpoena, mentions his bad faith thirteen times (and his failure to make any good faith effort once).

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.

[snip]

The factual record in this case is replete with proof that with respect to the Committee’s subpoena, the Defendant consistently acted in bad faith and with the purpose of frustrating the Committee’s work.

[snip]

For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

[snip]

When his quid pro quo attempt failed, the Defendant made no further attempt at cooperation with the Committee—speaking volumes about his bad faith.

[snip]

Throughout the pendency of this case, the Defendant has exploited his notoriety—through courthouse press conferences and his War Room podcast—to display to the public the source of his bad-faith refusal to comply with the Committee’s subpoena: a total disregard for government processes and the law.

[snip]

The Defendant’s contempt of Congress was absolute and undertaken in bad faith.

[snip]

The Defendant’s claim for acceptance of responsibility is contradicted by his sustained bad faith.

[snip]

As Mr. Costello informed the Select Committee on July 9, 2022, “[the Defendant] has not had a change of posture or of heart.” Ex. 17. Mr. Costello could not have put it more perfectly: the Defendant has maintained a contemptuous posture throughout this episode and his bad faith continues to this day.

[snip]

Not once throughout this episode has the Defendant even tried to collect a document to produce, and he has never attempted in good faith to arrange to appear for a deposition.

[snip]

The Defendant hid his disregard for the Committee’s lawful authority behind bad-faith assertions of executive privilege and advice of counsel in which he persisted despite the Committee’s—and counsel for the former President’s—straightforward and clear admonishments that he was required to comply.

[snip]

Here, the Defendant’s constant, vicious barrage of hyperbolic rhetoric disparaging the Committee and its members, along with this criminal proceeding, confirm his bad faith.

[snip]

The Defendant here, by contrast, has never taken a single step to comply with the Committee’s subpoena and has acted in bad faith throughout by claiming he was merely acting on former President Trump’s instructions—even though former President Trump’s attorney made clear he was not.

[snip]

And any sentence below the six-month sentence imposed in Licavoli would similarly fail to account for the full extent of the Defendant’s bad faith in the present case.

[snip]

The Defendant’s bad-faith strategy of defiance and contempt deserves severe punishment

To substantiate just how bad his bad faith is, the memo includes a list of all the public attacks he made on the process, just three of which are:

On June 15, 2022, after a motions hearing, the Defendant exited the courthouse and announced that he looked forward to having “Nancy Pelosi, little Jamie Raskin, and Shifty Schiff in here at trial answering questions.” See “Judge rejects Bannon’s effort to dismiss criminal case for defying Jan. 6 select committee,” Politico, June 15, 2022, available at https://www.politico.com/news/2022/06/15/judge-rejects-bannons-effortto-dismiss-criminal-case-for-defying-jan-6-select-committee-00039888 (last viewed Oct. 16, 2022).

Shortly before trial, on a July 12 episode of his podcast, the Defendant urged listeners to pray for “our enemies” because “we’re going medieval on these people, we’re going to savage our enemies. See Episode 1996, War Room: Pandemic, July 12, 2022, Minute 16:37 to 17:46, available at https://warroom.org/2022/07/12/episode-1996- pfizer-ccp-backed-partners-elon-musk-trolls-trump-alan-dershowitz-on-partisanamerica-and-the-constitution-informants-confirmed-at-j6/ (episode webpage last accessed Oct. 16, 20222 ).

During trial, on July 19, the Defendant gave another courthouse press conference, in which he accused Committee Chairman Rep. Bennie Thompson of “hiding behind these phony privileges,” ridiculed him as “gutless” and not “man enough” to appear in court, and mocked him as a “total absolute disgrace.” The Defendant also teased Committee member Rep. Adam Schiff as “shifty Schiff” and another member of Congress, Rep. Eric Swalwell, as “fang fang Swalwell.” He went on to say that “this show trial they’re running is a disgrace.” See “Prosecutors say Bannon willfully ignored subpoena,” Associated Press Archive, July 24, 2022, available at https://www.youtube.com/watch?v=3SR_EJL5nkw (last accessed Oct. 16, 2022).

It also describes how Bannon refused to tell the Probation office how much money he had; DOJ used that refusal to ask for a $200,000 fine as a result.

Even now that he is facing sentencing, the Defendant has continued to show his disdain for the lawful processes of our government system, refusing to provide financial information to the Probation Office so that it can properly evaluate his ability to pay a fine. Rather than disclose his financial records, a requirement with which every other defendant found guilty of a crime is expected to comply, the Defendant informed Probation that he would prefer instead to pay the maximum fine. So be it. This Court should require the Defendant to comply with the bargain he proposed when he refused to answer standard questions about his financial condition. The Court should impose a $100,000 fine on both counts—the exact amount suggested by the Defendant.

The most interesting details about the memo, however, are the inclusion of an effort Bannon made in July to get the Committee to help him delay the trial for immediate cooperation. DOJ included both an interview report and the notes Committee investigative counsel Tim Heaphy took after Evan Corcoran — the lawyer Bannon shares with Trump — tried to get the Committee to help him out in July.

HEAPHY described the overall “vibe” of his conversation with CORCORAN as defense counsel’s attempt to solicit the Select Committee’s assistance in their effort to delay BANNON’s criminal trial and obtain a dismissal of the Contempt of Congress charges pending against him.

In his notes, Heaphy suggested that DOJ might offer Bannon a cooperation plea in July.

My takeaway is that Bannon knows that this proposal for a continuance and ultimate dismissal of his trial is likely a non-starter, which prompted him to call us to explore support as leverage. I expect that DOJ will not be receptive to this proposal, as he is guilty of the charged crime and cannot cure his culpability with subsequent compliance with the subpoena. I won’t be surprised if DOJ is willing to give Bannon a cooperation agreement as part of a guilty plea. In other words, DOJ may allow Bannon to plead to one count and consider any cooperation in formulating their sentencing recommendation.

What I find most interesting about this is the date: the interview was October 7. Either DOJ did this interview just for sentencing. Or they conducted the interview as part of an ongoing investigation.

Update: Here’s Bannon’s memo. His bid for probation is not good faith given the mandatory sentence. But his request for a stay of sentence pending appeal is virtually certain to work because, as Bannon quotes heavily, Nichols thinks Bannon has a good point about relying on advice from counsel.

“I think that the D.C. Circuit may very well have gotten this wrong; that makes sense to me, what you just said. The problem is, I’m not writing on a clean slate here.” Hr’g Tr. 35:25-36:3, Mar. 16, 2022.

“The defendant was charged with violating 2 US Code Section 192. As relevant here, that statute covers any individual who “willfully makes default” on certain Congressional summonses. The defendant argues he’s entitled to argue at trial that he cannot have been “willfully” in default, because he relied in good faith, on the advice of counsel, in not complying with the Congressional subpoena. He points to many Supreme Court cases defining “willfully,” including Bryan v. United States, 524 U.S. 184, 1998, to support his reading of the statute. If this were a matter of first impression, the Court might be inclined to agree with defendant and allow this evidence in. But there is binding precedent from the Court of Appeals, Licavoli v. United States, 294 F.2d 207, D.C. Circuit 1961, that is directly on point.” Id. at 86:25-87:15.

“Second, the defendant notes that in the sixth [sic] decade since Licavoli, the Supreme Court has provided clarity on the meaning of “willfully” in criminal statutes. Clarity that favors defendant. That might very well be true. But none of that precedent dealt with the charge under 2 U.S. Code, Section 192. Licavoli did. Thus, while this precedent might furnish defendant with arguments to the Court of Appeals on why Licavoli should be overruled, this court has no power to disregard a valid and on-point or seemingly onpoint holding from a higher court.” Id. at 89:3-12.

“I noted in my prior decision that I have serious questions as to whether Licavoli correctly interpreted the mens rea requirement of “willfully”, but it nevertheless remains binding authority.” Hr’g Tr. 126:6-9, June 15, 2022.

Boris Epshteyn Enters the Three-Person Chat

/103 Comments/in , /by

Yesterday, both NBC and the Guardian reported that Christina Bobb was interviewed by investigators last Friday. The stories describe that her testimony confirms what we already knew, generally: Evan Corcoran did the search and wrote the declaration but Bobb signed it. Here’s NBC.

Bobb, who was Trump’s custodian of record at the time, did not draft the statement, according to the three sources who do not want to comment publicly because of the sensitive nature of the sprawling federal investigation.

Instead, Trump’s lead lawyer in the case at the time, Evan Corcoran, drafted it and told her to sign it, Bobb told investigators according to the sources.

[snip]

Before Bobb signed the document, she insisted it be rewritten with a disclaimer that said she was certifying Trump had no more records “based upon the information that has been provided to me,” the sources said of what she told investigators. Bobb identified the person who gave her that “information” as Corcoran, the sources said.

“She had to insist on that disclaimer twice before she signed it,” said one source who spoke with Bobb about what she told investigators.

The source said she spoke freely without an immunity deal.

“She is not criminally liable,” the source said. “She is not going to be charged. She is not pointing fingers. She is simply a witness for the truth.”

[snip]

“People made [Bobb] the fall guy — or fall gal, for what it’s worth — and it’s wrong,” the source said. “Yes, she signed the declaration. No one disputes that. But what she signed is technically accurate. … The people who told her to sign it should know better.” [my emphasis]

In addition to describing that Corcoran did the search, the Guardian corrects a point NBC made: Bobb wasn’t, actually, the custodian of records, which makes the decision to have her sign the declaration all the more suspect.

The certification was drafted by Corcoran, who also searched Mar-a-Lago for documents demanded by the subpoena, and sent it to Bobb before the justice department’s counterintelligence chief, Jay Bratt, arrived on 3 June to collect a folder of responsive records, the sources said.

[snip]

It was not clear why Bobb was willing to sign the declaration – as required by the subpoena in lieu of testimony – as the “custodian of records” when she never fulfilled such a role, the sources said, and appeared to know there was risk in attesting to a search she had not completed.

It is common for people friendly to a criminal suspect to immediately tell the press what they told investigators, so these stories are unsurprising.

They’re interesting in their form, however.

First, normally these stories are based on someone’s lawyer quietly telling the press the substance of her interview (which, because Bobb testified to investigators, not the grand jury, her competent attorney would have attended and taken notes). Here, Guardian seems to explicitly rule out Bobb’s attorney (though not, perhaps, someone who is not specifically the “criminal defense attorney”).

Bobb and her criminal defense attorney also did not respond to requests for comment, though Bobb has told associates since the FBI’s search of the property on 8 August that the certification she signed was truthful, the sources said.

NBC doesn’t rule that out.

Represented by Tampa attorney John Lauro, Bobb gave her testimony Friday in Washington and spoke to federal investigators, not the grand jury investigating Trump, the source with knowledge of her testimony said.

Regardless of whether someone close to John Lauro was one source for this story, at least two more people, aside from the typical lawyer source that would be all such stories normally require, have knowledge and are blabbing to the press. It’s totally okay for a lawyer to share this, but having three different people share knowledge of the interview means Bobb has shared details with people who are not her lawyer — something that sounds more like witnesses comparing stories.

The entire point of going to the press, after all, is it’s a way to share details without directly sharing details with other potential witnesses. These stories almost make it sound like people spent the weekend comparing notes.

More interestingly, this effort to share her testimony includes, in each story, that investigators asked about Boris Epshteyn, whose phone the FBI happens to have seized last month based off what is believed to be a January 6 warrant.

Bobb also spoke to investigators about Trump legal adviser Boris Epshteyn, who she said did not help draft the statement but was minimally involved in discussions about the records, according to the sources.

Epshteyn’s cellphone was seized last month by the FBI, according to a New York Times report, citing sources familiar with the matter. Two sources confirmed to NBC News that his phone was seized.

Since the phone was seized, more stories (including both of these) have started claiming Epshteyn played some kind of legal role in Trump’s entourage. That’s a bit nutty, because for six years of association with Trump, Epshteyn has served as a propagandist and a political organizer, not a lawyer.  But these stories and a few recent ones are labeling him as a counsel even as Bobb, who claims to be a Trump lawyer but not on this topic, proves one can be a JD and not be acting as an attorney at any given time. For whatever reason, we’ve heard nary a peep about privilege claims from Epshteyn regarding the earlier seizure, but these stories, at least, seem to want to retroactively claim this stuff involves a privilege claim.

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

All that’s just tea leaves about how to read these kinds of stories.

The piece of news, however, is that DOJ appears to have gotten Bobb to specify precisely what caveat she demanded in the statement, which reads as follows:

I hereby certify as follows:

1. I have been designated to serve as Custodian of Records for The Office of Donald J. Trump, for purposes of the testimony and documents subject to subpoena #GJ20222042790054.

2. I understand that this certification is made to comply with the subpoena, in lieu of a personal appearance and testimony.

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

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

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

c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge. [both emphases mine]

Both stories appear to confirm that Bobb insisted on the bolded language limiting the declaration to the “information that [was] provided to [her].” That suggests she’s not the one (I had mistakenly suspected) — and she just told DOJ she’s not the one — who included the language limiting the declaration to documents moved from the White House to Florida.

The subpoena didn’t ask for all records bearing classification marks that got moved from the White House to Florida. The subpoena asked for, “Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” The letter Jay Bratt sent to Evan Corcoran specifically envisioned custodians of record all over the country going to their local FBI office to drop documents off.

the custodian may comply with the subpoena by providing any responsive documents to the FBI at the place of their location

That caveat — limiting the declaration just to those documents in Florida — was an even more damning caveat than the one Bobb insisted on. The one Bobb insisted on was just testament to the obvious refusal by anyone with personal knowledge of the search to sign a declaration affirming its diligence. It was basically a big flag saying, “This declaration is toilet paper!!”

But the caveat limiting the declaration to just the documents in Florida is a different flag, one saying, “There are documents in other states!!!”

And that caveat was written not by someone ignorant of the whole scam, like Bobb says she was, but by someone who at least believed there was a good chance there were documents in other states.

On Thursday, the day before Bobb’s interview, outlets started reporting that Jay Bratt had told Trump’s people that they suspected he still had more documents. NYT’s version of that describes that as the source of tension between Evan Corcoran and Jim Trusty on one hand, and Chris Kise, on the other.

The outreach from the department prompted a rift among Mr. Trump’s lawyers about how to respond, with one camp counseling a cooperative approach that would include bringing in an outside firm to conduct a further search for documents and another advising Mr. Trump to maintain a more combative posture.

The more combative camp, the people briefed on the matter said, won out.

[snip]

After the call from Mr. Bratt, who has led the Justice Department’s investigation into Mr. Trump’s handling of the documents, Mr. Trump initially agreed to go along with the advice of one of his lawyers, 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.

Bloomberg’s version of this story describes that Trump’s lawyers are worried DOJ will require more declarations, which might be a trap!

But the department’s communications have generated doubt and debate for Trump’s lawyers about whether the department actually knows documents are missing and wants the lawyers to make written declarations in response. Some of Trump’s lawyers apparently view that as a potential trap that could land them in legal jeopardy, further exacerbating tensions on Trump’s team.

Based off Bobb’s testimony on Friday — which Bobb seemed to have been inviting for weeks — DOJ may have already set that trap.

Update: In a piece suggesting, without evidence, that Bobb is a subject in this investigation, not a witness, NYT provides more detail of Epshteyn’s role.

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.

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

/70 Comments/in , , , /by

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.

What Happened with the Potentially Privileged Documents Seized from Mar-a-Lago

/26 Comments/in , /by

Yesterday, SDFL AUSA Anthony Lacosta filed a sealed letter to Special Master Raymond Dearie along with the log laying out any disputes between the government and Trump over his potentially privileged documents.

Subsequent to that, Judge Aileen Cannon ordered unsealed the status report that Lacosta and Benjamin Hawk filed back on August 30. I will explain the two kinds of damage Judge Cannon did to Donald Trump in order to create an excuse to intervene in this matter — as I keep saying, Cannon caused the harm she intervened to fix.

For now, I want to talk about what happened with the potentially privileged material. Here’s a table of what we know about those documents.

Note that one page privileged document, item B-33. At least per the filter team, it may be the only clearly privileged document seized, one page out of 11,000 documents.

The warrant to search Trump’s beach resort required a privilege team to search his office. But (as members of that team explained in the hearing on September 1), they instead did the initial search of both the storage room and Trump’s office. As a result, the privilege team segregated 6 sets of information, which were catalogued on what I’ve called the SSA Receipt. The revised detailed inventory describes these boxes this way (note, these descriptions probably exclude the potentially privileged material, which is inventoried separately):

Item 4, which the status report describes as “the entire contents of a single drawer” in Trump’s office.

Three passports were originally in this drawer, which is why they were seized. They were returned on August 15. These documents were appropriately seized under the warrant because there were two classified documents in the drawer.

Items 29 through 33, which were in the Storage Room.

These boxes would have been appropriately seized under the warrant because all were stored in the place where boxes storing classified documents were stored. In fact, Item 29 had a Top Secret document in it and Item 33 has two empty staff secretary folders in it. Additionally, all are described to contain government documents, which were also authorized for seizure.

Two days after the search, on August 10, a Case Agent found a 3-page letter from law firm Morgan Lewis, “comingled with newspapers;” Morgan Lewis’ Sherri Dillon was named in Tish James’ motion to compel Trump’s deposition. So they sent the entire box to the privilege team, as described in the warrant. The box also included 4 pages of government documents treated as potentially privileged, including an email from the Air Force Academy’s coach.

By August 11, the privilege team had segregated out anything that  met their over-inclusive standard for potentially privileged documents from the rest of the documents, then sent the 7 boxes to the investigative team (which is, presumably, what led to the return of the passports days later).

On August 25, a case agent provided one more document to the privilege team:

39-page set of materials that appears to reflect the former President’s calls. (The majority of pages are titled “The President’s Calls” and include the Presidential Seal.) Specifically, the document contains handwritten names, numbers, and notes that primarily appear to be messages, as well as several pages of miscellaneous notes.

One of these messages was from “Rudy,” though did not appear to constitute legal advice.

The privilege team separated all these potentially privileged documents into two categories:

Category A

This category includes 21 sets of documents for a total of 138 pages. Most are, “primarily government records, public documents, and communications from third parties,” which could not qualify as privilege. One document is a 3-page email to a White House email account, which the government maintains constitutes a waiver to attorney-client privilege. As noted, another is a printed email from the Air Force Academy’s head baseball coach with the word “PatC” on it.

For example, the Privilege Review Team agents identified and segregated a printed email exchange between the U.S. Air Force Academy’s head baseball coach and the White House because “PatC” (perhaps a reference to White House Counsel Pat Cipollone) was written on the document in black marker (Item Number 4 in Exhibit A at FILTER A-005).

Another, as noted above, is one of the phone messages from the President’s Calls (we know this is a phone message because both are described as Item 21 in Category A), from “Rudy” and appearing to be a topic unrelated to legal advice.

Category B

This category consists of 43 sets of documents, for a total of 382 pages. The status report describes those as,

legal in nature (e.g., settlement, non-disclosure, and retainer agreements) or otherwise potentially sensitive, and they do not appear to be themselves government or Presidential Records or classified documents.

According to the privilege team, just one of those documents appeared to be privileged. But way back on August 30, they proposed to give the originals of all these documents back to Trump. Then they tried again on September 1. Trump had to wait two more weeks before receiving these documents, so that Judge Cannon could use them as her basis for intervening in the case.

September 26 email

According to Trump’s objections, on September 26, the government provided an email newly identified by case agents (presumably in the course of reviewing the inventory). The government maintains the email is not privileged but Jim Trusty claims it is.

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

In addition to the document sorting, before the filter team shared any photographs documenting the search, both the filter agents and the filter attorneys reviewed the photographs to ensure no privileged documents were captured in the photo.

Update: Added explanation for Morgan Lewis letter, h/t Simon. Added observation that there may be only a single privileged page in the whole seizure. Corrected numerical error.

Trump’s Shaky Privilege to Hide His Pence Pressure

/139 Comments/in , , /by

CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

DOJ Raises Prospect that Trump Continues to Obstruct Investigation, Including of Empty Folders

/314 Comments/in , /by

DOJ submitted its reply in its request for the 11th Circuit to stay parts of Aileen Cannon’s order pertaining to documents marked classified. The matter is fully briefed, so the 11 Circuit could rule at any time.

There’s little that’s new in the reply, except for DOJ’s response to Trump’s claim that the 11th Circuit cannot hear an interlocutory appeal as to whether DOJ has to share the classified files with Judge Raymond Dearie and Trump’s lawyers. The government cites three bases for appeal: a claim that they are appealing Cannon’s initial order on September 5 stating she would appoint a Special Master, an assertion that an order to share classified information would be appealable by itself, and if all that fails, a writ of mandamus.

2 If the Court harbors any doubts about its jurisdiction over portions of the September 5 order, it should construe the government’s appeal and stay motion as a petition for a writ of mandamus with respect to those portions and grant the petition. See SuarezValdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988).

This jurisdictional dispute is, in my opinion, getting too little attention, because it’s one way Trump could succeed even though all the facts are against him. That said, as the government suggested, they believe they could separately appeal the order to share information (and so they could just turn around and file another appeal to address that order). Moreover, in yesterday’s hearing, Dearie indicated that, absent any affirmative claim that Trump has declassified any documents, he would resolve that issue without looking at the documents. (See also Adam Klasfeld’s report on the hearing.)

DOJ also points to Trump’s proposed topics for yesterday’s hearing to note that he refuses to say that he declassified any of the documents at issue (and that he’s already seeking to draw out this process).

Plaintiff again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step. And Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence. D.E. 97 at 2-3.

[snip]

To the contrary, after persuading the district court to grant injunctive relief and appoint a special master to adjudicate purportedly “disputed issues” about the records’ status, A6-A7, Plaintiff has now reversed course: In response to the special master’s invitation to identify any records he claims to have declassified and offer evidence to support such claims, Plaintiff objected to “disclos[ing] specific information regarding declassification to the Court and to the Government.” D.E. 97 at 2.

The timing of these filings serves the government’s case well, because Trump is refusing to make the kind of affirmative claims that a plaintiff would need to make for relief (though with another day, DOJ could have relied upon a transcript of the Dearie hearing as well, in which Jim Trusty asserted that with his Top Secret — but not SCI — clearance he should not be denied the Need to Know to access the documents).

The ease with which DOJ rebutted Trump’s factual claims is downright funny in places (or would be, if not for the possibility that some nutjob panel on the 11th won’t see the humor). For example, DOJ noted what I did — Trump invoked notes he had written on documents to claim Executive Privilege over some of the documents with classification marks. But those were documents turned over in June, not documents seized in August.

Indeed, except for a brief footnote, his response does not mention executive privilege at all. And the footnote states only that other classified documents recovered before the search contained Plaintiff’s handwritten notes and that those notes “could” contain privileged information. Resp. 13 n.5; see A73. But the question is not whether the records at issue here might contain material that in other circumstances could give rise to valid claims of executive privilege against disclosure to Congress or the public. Instead, it is whether Plaintiff can assert the privilege to prevent the Executive Branch itself from reviewing records that are central to its investigation.

DOJ doesn’t note here that these were documents turned over in response to a subpoena, but elsewhere, it notes that he didn’t raise such privilege claims when he turned over the records.

Plaintiff should not be heard to assert a privilege that he failed to raise in response to a grand-jury subpoena.

In other words, Trump is relying on documents that he turned over with no privilege claim to suggest he might withhold documents based on an Executive Privilege claim.

DOJ similarly notes that Trump pointed to a portion of the seized materials he might own as his basis for a claim DOJ shouldn’t have access to files he cannot own.

Plaintiff asserts (at 10) that he owns other seized evidence, such as “personal effects.” He may well have standing to seek return of that “portion” of the seized evidence. United States v. Melquiades, 394 Fed. Appx. 578, 584 (11th Cir. 2010). But he cites no authority supporting a claim for return of records that do not belong to him.

Both these areas are where Trump is stuck trying to make Cannon’s gimmicks to justify intervening hold up under scrutiny.

I’m most interested in how DOJ repeats something it has already said. It asserted that it may need to use additional search warrants to hunt down  any files disclosed to others.

As the government explained—and as supported by a sworn declaration from the Assistant Director for the FBI’s Counterintelligence Division—the Intelligence Community’s (IC’s) classification review and national-security assessment cannot uncover the full set of facts needed to understand which if any records bearing classification markings were disclosed, to whom, and in what circumstances. Mot. 18; A41-A42. The FBI has a critical role in using criminal investigative tools such as witness interviews, subpoenas, and search warrants in pursuit of these facts. A42. The injunction bars the FBI from using the seized records bearing classification markings to do just that. Plaintiff asserts that the government has shown only “that it would be easier . . . to conduct the criminal investigation and national security assessment in tandem.” Resp. 17. But the injunction prohibits DOJ and the FBI from taking these investigative steps unless they are “inextricable” from what the court referred to as the IC’s “Security Assessments,” A11-A12—a standard that the government must discern on pain of contempt.

Plaintiff next dismisses the government’s national-security concerns as “hypothetical.” Resp. 17 (citing A11). But the injunction is preventing the government from taking some of the steps necessary to determine whether those concerns have or may become a reality. Moreover, Plaintiff fails to address the harms caused by the injunction’s interference in the expeditious administration of the criminal laws, and by the possibility that the government’s law-enforcement efforts will be obstructed (or perhaps further obstructed). Mot. 19-20. Plaintiff states only that the injunction will last for a “short period,” Resp. 19. At the same time, Plaintiff is already attempting to delay proceedings before the special master. See D.E. 97 at 1-2 (seeking to extend deadlines and set hearings “on any Rule 41 or related filings” in “Late November”). [my emphasis]

As noted, DOJ made this argument — relying on Alan Kohler’s declaration, the only sworn declaration in the docket — in its motion for a stay before Cannon. But when they suggested that Trump may have leaked documents in their initial filing before the 11th, they only mentioned compulsory process, not warrants specifically.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

This is all couched in the language of hypothetical possibilities. DOJ is not saying that they currently have plans to execute further warrants in search of the documents Trump stole and, possibly, leaked to others.

But they are suggesting that may be a step they would take — before such time as the Special Master process ends in November — to try to hunt down the contents that used to be in those empty folders or other files Trump leaked to people not cleared to have them.

Christina Bobb, whom (according to the NYT) investigators already asked to interview, amended the declaration that Evan Corcoran wrote, possibly to limit her own certification to files still at Mar-a-Lago. If DOJ has since learned why that declaration did not incorporate all documents in Trump’s possession — something that has been a focus for weeks — the injunction really might be preventing further action, including search warrants to get them back.

Go to emptywheel resource page on Trump Espionage Investigation.

Don’t Analyze Trump Legal Filings Based on the Law, Analyze Them Based on Power

/138 Comments/in , /by

I think people are making a grave mistake of applying principles of law to Trump’s legal maneuvering.

Trump’s lawyers are not making arguments about law.

If there were lawyers concerned about principles of justice participating in his defense, they’d be stridently advising him to work on a plea deal admitting guilt to 18 USC 2071, removing government documents, maybe even agreeing to the probably unconstitutional part of the law that would prohibit him from running for President again, in exchange for removing the more serious 18 USC 793 and 1519 charges from consideration. Such a plea deal is never going to happen. Win or lose, Trump is pursuing power, not adjudication under the law, not even recognition of the law.

One way you can be certain about that is because Evan Corcoran, who got his and Steve Bannon’s asses handed to them in Carl Nichols’ courtroom making legally ridiculous arguments that treat Executive Privilege as a theory of impunity applicable to everyone who is loyal to Trump, has taken from that setback not that his claims about Executive Privilege are ignorant and wrong. Instead, he has doubled down on that approach with Eric Herschmann (and probably the Two Pats, Cipollone and Philbin), undoubtedly believing that so long as he can delay the time until Bannon reports to prison and Trump’s former White House Counsels testify about what really went down on January 6, his people can reclaim Executive authority and make all this go away.

He’s definitely not wrong that he can delay the time until Bannon is jailed, and he may not be wrong about the rest of it.

Four years ago last week, Paul Manafort entered into a plea agreement with Mueller’s team and then promptly started lying about matters to which he had already confessed to get the plea deal in the first place. Manafort managed to sustain the appearance of cooperation through the mid-term election, after which Trump took action that would have been politically problematic before it — firing Jeff Sessions and hiring Billy Barr. Amy Berman Jackson ruled that Manafort had lied during his plea deal. But it didn’t matter. Trump and Barr spent the next two years erasing every legal judgment against him and the Trump flunkies that had remained loyal, erasing Manafort’s conviction and even his forfeiture. They erased a good deal of evidence that he conspired with Russia to get elected in the process. In the end, everyone who played a part in this process ended up better off — in significant part because the process, especially Barr’s part in it, has never been fully reported for what it was. Trump even used the ensuing process of discrediting the Russian investigation as a means to train Republicans — along with likely Fox viewers like Aileen Cannon — to believe he was mistreated in the Russian investigation, when the opposite is the case.

Along the way, Trump did grave damage to rule of law and undermined trust in US institutions. For him, that was a side benefit of the process, but a very important and lasting benefit, indeed.

He’s undoubtedly trying to play the same trick again: Stall the investigation past the election, and then (seemingly confident that Republicans will win at least one house of Congress, by democracy or by deceit) flip the entire investigation into yet another example where Trump has not flouted the law, but instead the law has failed to recognize Trump’s impunity from it.

Consider the analysis of Trump’s objections to Judge Raymond Dearie’s draft Special Master plan. As noted, Trump wailed about two things: that Dearie asked whether Judge Aileen Cannon’s inclusion of any Rule 41(g) claims (which is basically a legal way to demand property back before an indictment) in her order accorded with law and asked Trump to provide a list of the documents he claims to have declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Virtually everyone has suggested that the reason that Trump is balking at the order to tell Dearie which documents he declassified is because his lawyers want to avoid lying and they know Trump hasn’t declassified any of these documents. Such observations apparently apply even to Evan Corcoran, who (according to the NYT) suckered Christina Bobb into signing a declaration he wrote about a search he had done that claimed a diligent search was done that has since been proven not to be a diligent search.

Suffice it to say I’m skeptical that these lawyers — at least some of them — would be averse to filing a declaration saying, “Our client tells us he declassified it all,” if it would serve Trump’s purposes. All the more so given that none of them were in a position to know whether Trump declassified them all or not, and Trump not only doesn’t care whether he lies to his lawyers, he’s probably constitutionally incapable of doing anything but.

That’s not the reason why they’re balking about Dearie’s request for a list of documents Trump declassified.

Consider the schedule Trump proposed.

This schedule ensures that key decisions come to a head in mid-November, after the election.

Trump’s goal here is not any final determinations from Dearie (absent a determination that the FBI was mean to Trump just like they were to Carter Page). Cannon’s order fairly obviously invites Trump to contest Dearie’s ultimate decisions so she can de novo decide the issues. Trump’s goal is undoubtedly (because it always is) to create conflict, to sow an invented narrative that DOJ is out to get him. And Trump’s optimal outcome is not necessarily even that Cannon will say Trump declassified all these documents, including some of the Intelligence Community’s crown jewels. Such a proposition might even piss off a few of the Republicans who’ve not entirely lost their mind, until such time as Trump convinces them through the process of repetition and demonization that the IC should never have been spying on (say) Russia in the first place.

Trump’s goal here is to sustain the conflict until such time as Jim Jordan can save him, and the two of them can resume their frontal assault on rule of law again.

All Cannon needs to do to serve that end is at some point, after the election, declare that Trump’s claims about classification, even if incorrect and foolish, are reasonable for a former President. That’s all it would take to make it prohibitively difficult for future prosecutors to indict the 793 charges. This is the same way Barr made it prohibitively difficult for prosecutors to charge outstanding Mueller charges, notwithstanding the number of self-imagined liberals who blame Merrick Garland for that damage.

A more obvious tell comes earlier in Trump’s proposed schedule.

He wants the classified documents shared with his team — none of whom currently has the requisite clearance — this week. Only after that does he want to create the privilege log for the 64 documents his lawyers have had for four days; he wants another two weeks (so 18 days out of a 75 day process, total) before he makes such privilege determinations.

To be fair, that may be what Judge Cannon intended, too. She, meanwhile, will have to review at least one protective order this week, and may use that as further opportunity to muck in the process, to reinforce her demand that DOJ start the process of sharing classified documents even before the 11th Circuit weighs in.

There are probably two very good reasons why Trump wants classified documents in hand before they make any privilege claim. First because (as I have repeatedly pointed out), Cannon used those potentially privileged documents as the harm she hung her authority to wade in on. If Dearie rules that — as DOJ has repeatedly claimed — these documents were pulled out not because they really are privileged, but only because they set the bar for potential privilege so low as to ensure nothing was reviewed, then it takes one of the three harms that Cannon has manufactured off the table. Every time a claimed harm is taken off the table, another basis for Cannon’s power grab, and another basis from which to claim conflict, is eliminated.

Trump needs to forestall that from happening until such time as he has created more conflict, more claimed injury.

The other reason, I suspect, that Trump wants the classified documents in hand before the potentially privileged documents is because he knows that some of the classified documents he stole involve either his White House Counsel (which would be the case if documents pertaining to his Perfect Phone Call with Volodymyr Zelenskyy were in the stash) or his Attorney General (which might be the case with the clemency for Roger Stone). DOJ has always limited its comments about attorney-client privilege to those involving Trump’s personal lawyers, and that approach has continued since then, even in their motion for a stay before the 11th Circuit. They’re not wrong on the law: classified documents involving White House or DOJ lawyers are obviously government documents. But that wouldn’t prevent Trump from claiming they are privileged (or Cannon agreeing with him on that point).

Thus the delay. Trump needs to delay the potentially privileged review until such time as he has those classified documents in hand and can claim that DOJ didn’t include all the potentially privileged ones because they assumed that government lawyers work for taxpayers, not for Trump.

It doesn’t have to be true or legally sound. It needs to be a conflict that can be sustained long enough to let Cannon decide, and decide in such a way that Trump keeps claiming he’s the victim.

Like I said, Corcoran may not be wrong that this will work. A lot depends on what the 11th Circuit decides. But a lot, too, depends on commentators continuing to treat this as a good faith legal dispute when instead it’s just more manufactured conflict.

“The Rule of Law is not assured:” The Cascading Constitutional Crisis Judge Aileen Cannon Deliberately Created

/246 Comments/in , , /by

See the important correction about the scope of DOJ’s motion for a stay, below. I’ve corrected this post in italics.

There will be some timeline clashes this week in the Trump stolen document case, each of which could spiral into a Constitutional crisis.

They arise, in part, from Judge Aileen Cannon’s order that Judge Raymond Dearie start his review of the documents with those marked classified.

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.

That’s because DOJ’s motion for a stay of Cannon’s order enjoining DOJ from doing any investigative work and sharing classified information — which was filed at 9:03PM on Friday — and any other yet-to-be-filed appeal of (parts of) her order will be proceeding even as Dearie scrambles to meet Cannon’s first deadline: to have a schedule in place 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.

On Saturday at 7:03PM — just over 22 hours after DOJ’s filing — the 11th Circuit ordered Trump to file his opposition to the motion for a stay by Tuesday at 12PM.

That deadline comes just two hours before a first meeting Judge Dearie scheduled in his courtroom in Brooklyn at 2PM on Tuesday.

Counsel are directed to appear before the undersigned in Courtroom 10A-S of the Brooklyn Federal Courthouse on Tuesday, September 20, 2022 at 2:00 PM for a preliminary conference in the above-captioned matter.

Counsel are invited to submit proposed agenda items for discussion by docketed letter to be filed before the close of business on Monday, September 19, 2022.

The 11th Circuit seems poised to move quickly. But unless they granted a stay as quickly as they ordered Trump to file, it would not stay the Special Master process.

Until they rule, though, Dearie will necessarily move towards taking some of the steps laid out in this thread from SecretsAndLaws:

  • Finding a SCIF, probably in Brooklyn, to make the classified files available and transferring them by hand
  • Finding a place to store the remaining seized 12,904 items and shipping them
  • Clearing and providing work facilities for anyone who will have to access the classified documents

SecretsAndLaw didn’t consider one aspect of Cannon’s order. Read literally, with the exception of the 64 potentially privileged documents, she required DOJ to share the originals of the seized material with Dearie, not copies.

That’s likely something DOJ will ask to clarify on Tuesday. It’s solvable, sort of. DOJ can likely find a SCIF in the EDNY Courthouse or US Attorney’s Office. But that’s already a tremendous ask: that the government turn over the original copies of highly sensitive documents lawfully seized with a warrant to another branch of government.

It’s the clearance process that will lead to conflict.

As DOJ noted in their motion for a stay, Trump’s lawyers may be witnesses to the crimes under investigation.

Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

We already know Evan Corcoran is — at least — a witness. But a passage in the warrant affidavit unsealed last week reveals that it called Christina Bobb “PERSON 2” (Mark Meadows is the best candidate to be “PERSON 1,” because we know he was directly involved with returning, or not, documents to NARA earlier this year). Given that it refers to Corcoran as “FPOTUS COUNSEL 1,” there’s the possibility there’s an “FPOTUS COUNSEL 2” discussed as well (the FBI agent did not use numbers for all descriptors; it called Jay Bratt “DOJ COUNSEL,” with no number). If that’s right, it may mean Jim Trusty — the only one of Trump’s lawyers known to have held clearance in recent years and unlike Chris Kise, already representing Trump on August 5 when the affidavit was written — also made himself a witness in this investigation.

Meanwhile in 2020, Kise — the guy Trump just uncharacteristically ponied up a $3 million retainer to — registered under FARA to represent Venezuela on sanctions issues before Treasury. That would normally make him ineligible for a clearance, much less one to access some of the most sensitive documents the US owns.

In other words, it’s possible that none of Trump’s attorneys, not even Jim Trusty, are eligible for clearance in this matter. And when I say ineligible, it’s not a close call. There’s no reason DOJ should be forced to share these materials with someone who was an agent of a foreign power. There’s even less reason to share them with someone who might be implicated in obstruction himself. In a normal situation, Trump would be told to go find a lawyer with clearance (with the added benefit, to him, that they might know a bit about national security law).

DOJ routinely refuses to make classified materials available in civil suits. And anytime someone tries to order them to do so, they jump through a great many hoops to avoid doing so. In the al-Haramain case suing for illegal surveillance under Stellar Wind, one that has many direct applications to this one, that was true even when the plaintiff had already seen the classified document, as Trump has. In al-Haramain, there was even a cleared lawyer, Jon Eisenberg, with no ties to al-Haramain’s suspect activities, whom the government resisted sharing the key document in question.

The government will do — historically, has done — a great deal to avoid the precedent of a District Court judge ruling that it needs to grant even cleared lawyers the Need to Know very classified information.

And I have no reason to believe it will be different here.

All of this wouldn’t necessarily pose a risk of Constitutional crisis if not for a tactic that Judge Cannon has already used to create a harm that she can insist on remedying.

As I’ve noted, twenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

But Cannon prohibited DOJ from doing so, because she wanted to deal with this all “holistically.”

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

In her order denying DOJ’s request for a stay of her injunction (and several times before that), Cannon pointed to precisely these reserved potentially privileged items to find a harm to Trump that she needed to address.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)] [my emphasis]

I’ve written about how Cannon outright invented the claim that the medical and tax records were personal property. Both inventories thus far provided to Trump comply with the law (and, importantly, Custodian of Records Christina Bobb signed the first with no complaint about the accuracy or level of detail, arguably waiving any complaint).

But the single solitary reason why the filter protocol remained unavailable to Trump’s team on September 15, when Cannon wrote this order, is because she prohibited DOJ from sharing it with Trump over two weeks earlier.

Cannon, personally, created the harm, then used that harm to justify her intervention to address it.

And if you don’t think she plans to use the harm she created to justify continued intervention, consider that she still hasn’t ruled on DOJ’s request to unseal the privilege team status report, filed over ten days ago, which would be necessary for DOJ to address this ruse before the 11th Circuit (and rebut her false claims that the filter team missed anything). And she ordered Dearie — “shall” — to first address the classified documents even while acknowledging that her order was going straight to the 11th Circuit.

The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “[i]f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

Ordering Dearie to start with the classified documents feigned reasonableness on Cannon’s part. But what it also did is ensure these separation of powers issues come to a head within days, not weeks, possibly before any 11th Circuit ruling.

A reasonable judge, someone genuinely interested in a third party reviewing this stuff as expeditiously as possible, would start with the items already identified as potentially privileged, because that’s the single set of documents that does not implicate any separation of powers issues (and also the single set of documents that is virtually guaranteed not to be included in DOJ’s appeal).

So in addition to the motion for a stay and, at some point, the actual appeal of other parts of Cannon’s order — with complaints about the order to review classified documents, review for executive privilege, and the order prohibiting criminal charges, all of which Cannon concedes are Executive Branch authorities even while she usurps authority to override the Executive — the way Cannon has set this up may elicit several other appeals of the implementation of her order, separate from the initial appeal of the order itself:

  • To turn over possession of materials owned by the Executive Branch to Dearie
  • To clear Trump’s lawyers and anyone else not otherwise eligible for clearance
  • To grant those people Need to Know the contents of these documents

Ironically, Cannon’s Constitutional arrogance may hasten precisely the thing she claims to be preventing.

That’s because the single quickest way to avoid all these problems would be to charge Trump if and when the 11th Circuit (or SCOTUS) grants a stay of her injunction. As soon as that happens, all of this review would get moved under the District Court judge overseeing the criminal case (and Cannon’s intransigence makes it more likely DOJ would file such a case in DC).

DOJ really could not charge Trump on Espionage until that time (or until they seize other classified documents he has been hoarding, which they allude to in their motion for a stay). That’s because the the key proof that Trump refused to give the classified documents back is the failure to comply with the May 11 subpoena. Even any obstruction charge might require possession of (not just permission to use) the actual documents to prove the case. But DOJ may hasten such a decision at such time as they are permitted, to avoid the other Constitutional problems Cannon deliberately created.

As we have all that to look forward to this week, it’s worth watching or reading the remarkable speech Merrick Garland made with little fanfare at Ellis Island on Saturday, after he administered the Oath of Allegiance to new citizens. After contemplating that his grandmother would not have survived the Holocaust if not for the Rule of Law in the United States, Garland focused on its fragility.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

Having started the speech focused on his forebears, the Attorney General closed by addressing the urgency of “doing what is difficult” for the generations of Americans who come after us.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

And then — even as the former President was riling up his cult in Ohio — the Attorney General was contemplating, on the verge of tears, that the rule of law is not assured.

Things could get really crazy in weeks ahead.

Update: I’ve been corrected about something in DOJ’s motion for a stay: They requested that the 11th Circuit stay both Cannon’s injunction and her order that they share classified information with Trump.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.