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The “Wow, Pictures!” Tabloid Coverage of Trump’s Stolen Documents Is as Bad as Conspiracy Mongering

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The other day, I mined the documents and photographs released in the government’s response to Trump’s bid to throw out his indictment based on a complaint that the FBI failed to preserve the order of documents in boxes.

Doing so, I showed that Trump had stored ten of the documents charged against him — including one classified under the Atomic Energy Act — under bubble wrap and a Christmas pillow.

 

I had to do a fair amount of work to figure that out, building on work I did years ago. I had to cross-reference the item number (28, as shown in the picture) with the box number (A-73, which you can find on the warrant return) to determine which box this was. I then cross referenced that with the table of charged documents in the filing.

Then I annotated the picture to describe which charged documents were found in the box myself. You can cross reference that with the indictment to learn what kind of documents are included in the stack in the picture.

All that under the bubble wrap and the Christmas pillow!

But that’s not why DOJ included the picture in its filing. DOJ included this picture, along with the two other pictures in that exhibit and the two in this exhibit, “to provide a sense of the variety of items in the boxes.” And Jack Smith’s team did that to show that FBI agents who conducted the search had no way of knowing that Trump knew (according to the interview of a former White House aide of his) precisely what was stored in which box, and therefore no way of knowing he might cite document order in his own defense.

Furthermore, this is not a case where reams of identically-sized documents were stacked neatly in file folders or redwelds, arrayed perfectly within a box. To anyone other than Trump, the boxes had no apparent organization whatsoever. The boxes contained all manner of items, including, for example, papers of varying sizes, from folded large-format items to tiny notes; clothing; picture frames; shoes; magazines; newspapers; newspaper clippings; correspondence; greeting cards; binders; and Christmas ornaments. The photographs attached as Exhibits 3, 8, and 16 provide a sense of the variety of items in the boxes. The notion that the precise ordering of materials within these boxes possessed any exculpatory value that would be apparent to the Filter Team when they opened the boxes is absurd.

These pictures also corroborate what filter team agents said about their efforts to retain the order of items in these boxes as they searched them for any potentially privileged documents, such as Agent 5’s description that it was impossible to retain the order because of the “[loafers], newspapers, post-it notes, golf balls, etc” she found in the boxes. For the most part, these were not boxes of file folders (like the one found in Joe Biden’s garage, the order of which FBI also disrupted; they were boxes of Christmas pillows and bubble wrap, and that’s one of several reasons why the document order within boxes was not maintained in all boxes.

There was a purpose to these photos, and it went well beyond slob-shaming the former President or just showing how DOJ released these pictures to portray Trump as chaotic. The photos and other exhibits make a specific rebuttal to an argument Trump is making: that FBI willfully mixed up document order to undermine a foreseeable future defense that was radically different to the one — that he knew the documents were there, but had declassified everything — he had been making before the August 8, 2022 search.

There was a purpose to these photos: To rebut a range of conspiracy theories designed to undermine rule of law and truth itself.

The coverage from most mainstream journalists (I excuse those who were stuck in Aileen Cannon’s courtroom who just threw up a post after that tedium) consisted of little more than “ooh, pictures!” which quickly turned into slob-shaming that failed to provide any context about the legal significance of the exhibits or the chain of custody they depicted.

There were several other things the filing and pictures were meant to explain: notably, what and how cover sheets got put into boxes, and — because Julie Kelly is a shameless propagandist — whether the FBI brought cover sheets for the sole purpose of framing Donald Trump.

This conspiracy theory started when Stan Woodward spent 1:50 examining physical document boxes. He took this picture, of Box A-14, which has only around 35 documents in it, all stacked up neatly, but otherwise spent little time examining this box — just 6 minutes.

This box was originally segregated because it had potentially privileged documents in it. Days later, an FBI agent discovered a single document marked with Top Secret markings. That document, dated May 6, 2019 and describing a White House intelligence briefing, is charged in Count 4 of the indictment.

Woodward made no claim that the cover sheet in this box, wherever it is, was out of place.

Woodward spent more time reviewing box A-15: 18 minutes. He didn’t take a picture (but the FBI did). Box A-15 was found with a binder in it, containing 21 Secret documents and 11 Confidential documents.

When Woodward inspected this box, he discovered that the order of the cover sheets marking classified documents reflected in the scan done for the Special Master review conflicted with the order he discovered them when he reviewed the box itself.

For this box, because it was one originally inspected after the FBI ran out of cover sheets they brought with them (they didn’t expect so many classified documents!), there were three sets of cover sheets used with the document. The generic cover sheet marking the highest level of classification mark found in the box, depicted in the picture above, which the FBI took to document its search; hand-written cover sheets they used to mark individual documents after they ran out of the normal cover sheets the day of the search;

And cover sheets marked with each individual document index ID (the “ccc” in the picture) after they indexed everything.

The documents in this box were indexed as “ccc” through “iii” and then “www” through “tttt.”

For this box, each of those three cover sheets served a different purpose. The first played a role in an evidentiary picture, to document the search, and yes, the FBI put that cover sheet there on purpose to both cover up classified information and to mark how sensitive it was.

The second was a place marker for each document taken from the box and kept more securely, and the third was a cover sheet to track each individual classified document.

But this box, in particular, ended up getting particularly jumbled because there were so many classified documents all appearing in a binder.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

I don’t excuse that — the FBI flubbed boxes in both the Biden and Trump investigations. But as noted, in this case, it won’t be relevant to any defense Trump will offer because these documents aren’t charged.

The fact that FBI used cover sheets to mark and cover the contents of classified documents when documenting the search (as in the two pictures above) led propagandist Julie Kelly to imagine that the original photo released in an exhibit back in August 2022 must be a set-up, with the FBI using a bunch of classified cover sheets solely to make Donald Trump look worse than he was.

Julie got way over her skis claiming that Jay Bratt lied when he introduced a reference to the picture by saying that, “Certain of the documents had colored cover sheets indicating their classification status.”

The photo was a stunt, and one that adds more fuel to this dumpster-fire case.

Jay Bratt, who was the lead DOJ prosecutor on the investigation at the time and now is assigned to Smith’s team, described the photo this way in his August 30, 2022 response to Trump’s special master lawsuit:

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court.

The frothy right has been trying to claim this photo was a frame job from the start. But Julie’s theory was a particularly stupid version of the conspiracy theory. If the idea was that cover sheets make the documents look worse than, say, visible classification marks like the ones visible if you look more closely, and the more cover sheets the more useful for framing Donald Trump, why not use cover sheets on all of them? In a piece that otherwise struggled with the difference between [Box] Two and [Box] Ten, Julie counted seven cover sheets in the picture. I think there are at least eight (plus another form of cover sheet) but — another data point that undermines her conspiracy theory — a Secret cover sheet is buried in the middle of the stack, useless for the propaganda value Julie’s conspiracy theory has dreamt up.

While last week’s filing didn’t take on Julie’s conspiracy theory head on (notably, Trump has not adopted her conspiracy theory, which should tell you something), it did include the materials to understand how the initial evidentiary picture got put together.

As noted in the Jay Bratt language Julie quotes, the contents in that picture were found in a container in the “45 Office,” what Mar-a-Lago staffers called Trump’s office. The warrant return described the box holding the most sensitive documents, item 2, as a “leatherbound box of documents.”

That’s one of many ways we can be sure that this picture — which the “ooh pictures! people were very excited about mostly on account of the Diet Coke bottles, which I think short-changes the cult Donald Trump picture in the right side — depicts the same box.

The next picture in that exhibit shows how that same box got labeled Box 2, the box that Julie the Propagandist would one day confuse with Item 10.

Another picture shows what the top of the box looked like (since this is post taint search — the unsigned Sandy Hook letter that some “ooh photos” journalists claimed must be a super sensitive document, on account of hiding the name of the child gunned down at Sandy Hook — may not have been on the top of the stack when the FBI first found it).

The filing even includes the photo log showing how the photographer took pictures first of the closet (Room F), then of the box, then of the contents of the box.

Here’s that evidence photo again, which would have been taken in the foregound of the wide view picture above, with the rolled up paper and the seeming book now appearing at the top of the picture, and the tacky dresser on the left.

The picture was misleading when released, but not for the reason Julie the Propagandist suggests. It was misleading because it suggested that Trump put his Top Secret documents in with his Time Magazine covers. He didn’t. He put them in a different box, a few feet away, also in his office closet with the awful carpeting.

The filing that Julie the Propagandist claimed vindicated her conspiracy theory does the opposite. The government filing reiterates the claim — the claim that Julie the Propagandist claims caught Jay Bratt in a lie — that “Certain of the documents had colored cover sheets indicating their classification status.”

The 45 Office consisted of the “ante room,” where Trump staff members had desks (Room B); Trump’s office (Room C); a closet attached to Trump’s office (Room F); and two bathrooms (Rooms D and E). Ex. 9. Entry photos were taken of the ante room, Trump’s office, and both bathrooms. Id. Filter Team agents then discovered in the closet a blue, covered, leatherbound box full of various papers, including numerous newspapers, newspaper clippings, magazines, note cards of various sizes, presidential correspondence, empty folders, and loose cover sheets for classified information, as well as documents marked classified. Ex. 10. FBI 13 conducted the privilege review of this box, with some brief assistance from FBI 5. ECF No. 612-11 at USA01291471. FBI 13 was careful to return all items to the box after reviewing them, but did not maintain the order of the items. Id. at USA-01291472; Ex. 11 at USA-01291691. FBI 13 found no potentially privileged materials in the box. ECF No. 612-1 at USA-01291485. After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. The Case Team agents seized the documents marked classified (as well as any cover sheets already attached) and segregated them. As they extracted the seized documents, they inserted placeholder sheets where they found them. [my emphasis]

To be sure, there’s still a step of this progression that the government didn’t include in its filing (again, this is not the primary focus of the filing because Trump has not adopted Julie the Propagandist’s conspiracy theory, at least not yet, and — one exhibit included last week also made it clear– Trump’s people had turned on CCTV surveillance before the search started, and investigators knew that).

Trump’s initial MTD included notes and last week’s filing includes a follow-up interview with Agent 13. Agent 13 was the primary person who did the filter search of the closet. The original notes describe the agent, “does recall seeing cover sheets inside box[,] don’t know one way or other if cover sheets in photo came from box.” In the follow-up, the agent described that the lid to the leatherbound box was on the box when they found it (meaning the evidence pictures thereafter reflect what happened after the filter search).

That testimony is utterly consistent with the picture: that at least some of the cover sheets in the picture are the ones Agent 13 found when they did the search. But you’d need to add the testimony of the photographer and the two investigative agents to learn whether all of them were, or learn whether any of the loose cover sheets in the box were also used in the photo.

Nevertheless, it’s a pointless conspiracy theory. Julie the Propagandist has made a big deal out of cover sheets used in the way cover sheets are supposed to be used: to convey that something is classified and prevent any incidental exposure. But the picture doesn’t, primarily, show cover sheets. Indeed, it shows at least ten documents without classified cover sheets (covered instead with blank cover sheets), virtually all with classification markings visible.

More importantly, what the filing and the original photo both show the chain of custody of a box that — no amount of squealing about cover sheets disputes — clearly shows at least 22 of the 24 documents alleged to have been found in the box, most with classification markings visible.

Tracking what these exhibits do explicitly and — with more effort — implicitly takes time. But responding to conspiracy theories with facile reporting squealing, “Ooohh pictures” serves nobody, except media outlets looking for free reporting and conspiracy theorists hoping to turn truth into a both-sides dispute.

Aileen Cannon Confesses She’s Unable to Distinguish between Golf Balls and Nuclear Weapons

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Depending on how you count, Aileen Cannon issued three or four decisions yesterday.

The most telling is an order letting Trump have a mulligan on whether his false attacks on the FBI pose a danger to society.

As Jack Smith’s team described in a filing, after a hearing on the matter on June 24, Judge Cannon permitted more evidence of what a menace Trump is, but ordered no additional briefing would be permitted.

During the hearing on June 24, 2024, the Court discussed with the parties (Hearing Transcript 6/24/2024 at 27) the potential need to supplement the evidentiary record regarding the Government’s Motion to Modify Conditions of Release, ECF No. 592. After the conclusion of the hearing, the Court issued a minute order setting the schedule and resolving the issue that the Court and the parties had discussed regarding the need for additional briefing. The minute order states: “Consistent with the instructions provided in open court, the evidentiary record on this Motion will be open until June 26, 2024, for the parties to file any additional evidentiary attachments/exhibits in support of, or in opposition to, the Motion 592. Any attachments/exhibits shall be docketed as a “Notice of Filing” (separated by exhibits) and limited to specific evidentiary submissions only. No additional briefing will be permitted.”

But then on Wednesday, Smith’s team brought out a bazooka, providing all the records showing Trump poses a threat to society (which I’ve linked below).

In advance of that, when Trump submitted a bunch of exhibits that seem totally off point, they requested leave — in two weeks — to say more.

President Trump respectfully requests leave to file a response to the expected Notice to be filed tonight by the Special Counsel’s Office. See 6/24/2024 Tr. at 27 (“If the defense requests an opportunity to file additional briefing, then you should make that very clear in — in any response that you file to the motion for additional evidence.”). The defense conferred with the Special Counsel’s Office today and understands that the Special Counsel intends to file numerous exhibits not previously relied upon in seeking its Motion for Modification of Conditions of Release. President Trump respectfully requests two weeks to file a response to the newly submitted evidence.

So Judge Cannon pinky swore, invented a reason to retract one of the only definitive orders she issued against Trump, and created another five weeks of delay over the question of whether Trump is a menace.

PAPERLESS ORDER: In light of the extensive, newly submitted materials filed by the Special Counsel and Defendant Trump in support of and/or in opposition to the Special Counsel’s Motion to Modify Conditions of Release 592, the Court will permit the parties to file one final supplemental brief in response to those newly submitted materials, not to exceed 10 double-spaced pages, on or before July 5, 2024. The Court takes note of the additional court orders included in composite exhibit 11 to the Special Counsel’s recently filed Notice 652 . Consistent with the Court’s statements during the July 25, 2024, afternoon hearing 649, the Court will consider such orders as cited legal authority on the Motion, not as part of the developed evidentiary record in this proceeding, and not for the factual findings set forth in those separate proceedings. The evidentiary record on the Motion is closed. Absent leave of Court, no further exhibits shall be attached to the authorized final supplemental briefs.

Cmon Aileen. You just gave this man five weeks to declare that his own texts aren’t what his own texts say.

At this point, journalists covering Judge Cannon need to put aside all pretense of normality, all pretense that one or another decision will doom Jack Smith’s case (never mind that what they often say misunderstands the evidence). That’s a category error.

That’s true because, the way things are going, this thing will never go to trial. And it’s also true because puff coverage of the actual substantive filings does nothing to rebut the very intentional propaganda that this effort is designed to generate, but only serves the cause of using this case to discredit rule of law and reality.

Which brings me to the other quasi-decisions Judge Cannon made yesterday.

On paper, she denied Trump a Franks hearing for his claim that the warrant to search his beach resort in any way lacked probable cause, dismissing one after another thing that Trump argued should have been included in the affidavit (and debunking that several were, as Trump claimed, misrepresentations).

Except for the last one. Judge Cannon ruled that a warrant searching a home for documents with classification markings and Presidential Records Act documents didn’t have anything to do with probable cause.

The final cited omission concerns the absence of a definition of “personal records” under the Presidential Records Act (PRA) and related caselaw on a former President’s authority to designate records as “personal” under that Act [ECF No. 566 p. 9 (citing Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 300–304 (D.D.C. 2012))]. According to Defendant Trump, the affidavit offered the reviewing magistrate some guidance on the relevant legal statutes and definitions, including the definition of “Presidential records” under the PRA, but it did not include a definition for “personal records” under the Act, which is “significant” in light of the affiant’s decision “to include caselaw regarding the NDI [national defense information] element [in 18 U.S.C. § 793(e)]” [ECF No. 566 p. 9 (referencing ECF No. 566-2 p. 27 ¶ 60 & n.2)]. As with the earlier items in the Franks request, the Motion fails to explain how inclusion of more legal provisions or supporting caselaw on a contested legal question such as the applicability of the Presidential Records Act would have defeated probable cause given the content of the affidavit. Nor does the Motion offer legal authority to suggest that inclusion of further discussion in the affidavit of a potential affirmative defense was legally required to be included as a matter of the Fourth Amendment.

But it did have to do with whether the particularity of Attachment B of the warrant was sufficient, which question she will hold — you guessed it — a hearing on!

To be sure, the Special Counsel raises compelling arguments that Attachment B satisfies the Fourth Amendment’s particularity requirement given its reference to “classification markings” and “classified material” in certain subparagraphs of that document [see ECF No. 567]. But the Court determines that some of the terms in that document (e.g., “national defense information” and “Presidential Records”), do not carry “generally understood meaning[s]” such that a law enforcement agent, without further clarification, would have known to identify such material as “seizable” property pursuant to Attachment B. Wuagneux, 683 F.2d at 1350; [see ECF Nos. 325, 377, 398, 402, 444 (briefing and argument on the term “national defense information”)].6 This argument also relates to Defendant Trump’s claim that searching agents had impermissible discretion in executing the search because of the ambiguity of “certain terms on the illustrative list in the warrant’s subparagraphs” [ECF No. 566 p. 13]. Under these circumstances, even accepting the need for practical flexibility in weighing particularity challenges, the Court is satisfied that further factual development is warranted related to Defendant Trump’s particularity challenge as to Attachment B. 7

This is yet another attempt, by Cannon, to undermine what really are accepted definitions, because it hurts her feelings that she ruled differently in September 2022 and the 11th Circuit reversed her, soundly.

Put another way, though, Judge Cannon is making the argument that FBI agents can’t distinguish between golf balls and documents about nuclear weapons — a distinction that agents who conducted the search seem to have had no problem with. To prove that this is a problem, you would need to prove that any single box was seized with nothing that was obviously covered by the Presidential Records Act.

The part of this order that got far more attention than it merits, however, is that Judge Cannon also granted Trump another hearing on whether Beryl Howell ruled that Trump’s efforts to get Evan Corcoran to conduct an inadequate search merited a crime-fraud exception.

Much of that part of the decision is whiny insistence from Judge Cannon has the authority to revisit Judge Howell’s decision. She does!

Where it gets hysterical is where, almost a year of time-wasting after the indictment, Cannon tries to deny this is not about resource and time wasting.

This is not to say that the necessary evidentiary suppression hearing will devolve into a “mini trial,” as the Special Counsel suggests. The concern about crime-fraud “mini-trials” has been expressed by courts in the grand jury context, e.g., In re Grand Jury Investigation, 842 F.2d at 1226, and it makes sense that such a concern reasonably would apply in the post-indictment context, too, at least in a general way. But there is a difference between a resource-wasting and delay-producing “mini-trial,” on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress, on the other. More practically, the parties can meaningfully confer beforehand on the scope and timing of the hearing, raising appropriate objections with the Court as necessary; the parties can (and will) file exhibit and witness lists as is customary in federal criminal suppression litigation; and the Special Counsel can request the Court to impose reasonable limitations on the evidence produced to ensure efficiency and control. So too, for example, would it be appropriate to submit as an exhibit to the hearing the transcript of the District of Columbia grand jury proceeding (not yet received by this Court); any attachments already filed in connection with the Motion in this Court or in the grand jury proceeding; and any evidence submitted for review by the court that oversaw the grand jury proceeding (it appears no such exhibits were presented, although the matter is unclear).5 But it is an evidentiary hearing nonetheless, and it is before this Court—in this post-indictment context— to make factual findings on contested questions pertinent to the second prong of the crime-fraud exception.

Again, treating this as a serious legal opinion is a category error.

Aileen Cannon is sitting in her little court room in Fort Pierce denying the danger of Donald Trump — whether it involves storing nuclear documents under a Christmas pillow or whether it involves disseminating false claims about the FBI to people bound to respond with violence — all the while whining that her time-wasting is valuable.

Catalog of all the reasons Donald Trump is a menace

Exhibit No. 1: The Statements Giving Rise to the Motion to Modify Release Conditions— Trump’s Statements Alleging a Plan by the FBI to Kill Him and His Family in Connection with the August 8, 2022 Search of Mar-a-Lago

[link]

A. Trump Truth Social Post (May 21, 2024) [ECF No. 592-1]

B. Trump Fundraising Email (May 23, 2024) [ECF No. 592-2]

C. Trump Truth Social Post (May 23, 2024) [ECF No. 592-3]

D. Trump Truth Social Repost (May 24, 2024) [cited in ECF No. 592 at 7 n.3]

E. Trump Truth Social Post (May 25, 2024) [ECF No. 592-5]

Exhibit No. 2: Examples of Trump’s Surrogates Amplifying His Statements Alleging an FBI Plan to Kill Him

[link]

A. @patriottakes X Post Embedding Stephen Bannon Podcast Excerpt (May 21, 2024) [ECF No. 592-4]

B. @MZHemingway X Post (May 21, 2024)

Exhibit No. 3: Examples of Trump’s Statements Regarding the FBI

[link]

A. Trump Statement Regarding the Execution of the Mar-a-Lago Search Warrant (Aug. 8, 2022) [ECF No. 638-3]

B. Select Trump Truth Social Posts Regarding the FBI (Aug. 9, 2022 to June 9, 2023)

Exhibit No. 4: Examples of Threats Against the FBI Following Trump’s Statements

[link]

A. Select Ricky Shiffer Truth Social Posts (Aug. 9 to Aug. 11, 2022) [ECF No. 638-4]

B. In re: Search of Information Associated with Truth Social Profile with Username @rickywshiffer or Ricky Shiffer That is Stored at Premises Controlled by Truth Social, No. 1:22-mj-481 (S.D. Ohio Aug. 12, 2022; unsealed June 20, 2024) (Search Warrant Application) [ECF No. 638-1]

C. FBI Cincinnati Statement (Aug. 11, 2022; updated Aug. 12, 2022)

D. In re: Sealed Search Warrant, No. 9:22-mj-08332-BER (S.D. Fla. Aug. 22, 2022) (Order on Motions to Unseal) (highlighting added at 8-9)

E. United States v. Timothy Muller, No. 4:24-mj-479 (N.D. Tex. June 14, 2024) (Criminal Complaint) [ECF No. 638-2]

Exhibit No. 5: Examples of Trump’s Statements Regarding Judges and Court Staff

[snip]

A. Trump Truth Social Post (Aug. 4, 2023) [ECF No. 638-5] 1

B. Select Trump Truth Social Posts Regarding a United States District Judge for the District of Columbia Presiding Over a Criminal Case in Which Trump is the Defendant (Aug. 6 to Dec. 8, 2023)

C. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Civil Case Involving Trump (Oct. 28, 2022 to Nov. 29, 2023)

D. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Criminal Case in Which Trump is the Defendant (Mar. 26 to Apr. 30, 2024)

Exhibit No. 6: Examples of Threats Against Judges and Court Staff Following Trump’s Statements

[link]

A. United States v. Abigail Jo Shry, No. 4:23-cr-413 (S.D. Tex. Aug. 11, 2023) (Criminal Complaint)

B. Alan Feuer, Apparent ‘Swatting’ Incidents Target Judge and Prosecutor in Trump Election Case, N.Y. Times (Jan. 8, 2024)

C. Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (Affirmation in Opposition)

1. Ex. A: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (10/3/23 Trial Transcript)

2. Ex. B: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 20, 2023) (Other Order—Non-Motion)

3. Ex. C: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (Other Order—Non-Motion)

4. Ex. D: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Nov. 3, 2023) (Supplemental Limited Gag Order)

5. Ex. E: Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (11/21/23 Affidavit of Charles Hollon)

D. Peter Eisler, et al., Trump Blasts His Trial Judges. Then His Fans Call for Violence, Reuters (May 14, 2024)

Exhibit No. 7: Examples of Trump’s Statements Regarding Prosecutors

[link]

A. Select Trump Truth Social Posts Regarding the New York District Attorney (Jan. 31 to Mar. 24, 2023)

B. Select Trump Truth Social Posts Regarding the Fulton County District Attorney (Mar. 23 to Aug. 24, 2023)

Exhibit No. 8: Examples of Threats Against Prosecutors Following Trump’s Statements

[link]

A. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Feb. 26, 2024) (2/22/24 Affidavit of Nicholas Pistilli)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 21, 2024) (6/20/24 Affidavit of Nicholas Pistilli)

C. United States v. Craig Deleeuw Robertson, No. 2:23-mj-722 (D. Utah Aug. 8, 2023) (Criminal Complaint)

D. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Darin Schierbaum)

E. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Gerald Walsh)

F. United States v. Arthur Ray Hanson, No. 1:23-cr-343 (N.D. Ga. Oct. 25, 2023) (Criminal Indictment) Exhibit

No. 9: Examples of Trump’s Statements Regarding Potential Witnesses in the District of Columbia Case and Threats Following Trump’s Statements

[link]

A. United States v. Trump, No. 1:23-cr-257 (D.D.C. Sept. 15, 2023) (Motion to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings)

B. Trump X Post Regarding a City Election Commissioner (Nov. 20, 2020) and Excerpt of the Commissioner’s Public Testimony Before the House Select Committee to Investigate the January 6th Attack on the United States Capitol (June 13, 2022)2

C. Trump Truth Social Post Regarding a Former Chairman of the Joint Chiefs of Staff (Sept. 22, 2023) [ECF No. 638-5]

Exhibit No. 10: Trump’s Awareness of the Link Between His Statements and His Followers’ Responses

[link]

A. Select Trump Truth Social Posts (Apr. 4, 2024) [ECF No. 642, GX1]

B. Excerpt of Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023)

C. Trump Truth Social Post (Apr. 29, 2023) [ECF No. 642, GX2]

Exhibit No. 11: Relevant Court Orders Not Cited in the Government’s Pleadings

[link]

A. United States v. Trump, No. 1:23-cr-257, ECF No. 124 (D.D.C. Oct. 29, 2023) (Opinion and Order)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Mar. 26, 2024) (Decision and Order on People’s Motion for an Order Restricting Extrajudicial Statements)

C. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Apr. 1, 2024) (Decision and Order on People’s Motion for Clarification or Confirmation of an Order Restricting Extrajudicial Statements)

D. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 25, 2024) (Decision and Order on Defendant’s Motion to Terminate Order Restricting Extrajudicial Statements)

E. United States v. Taranto, No. 1:23-cr-229, ECF No. 27 (D.D.C. Sep. 12, 2023) (Order of Detention) (highlighting added at 4-6)

The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

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As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

“Nobody ever slept on that side of the bed usually so he would have it all full of boxes”

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The government has filed their response to Trump’s argument that, because some of the contents of Trump’s boxes have shifted during the investigation, the entire indictment must be dismissed. I’ll do a long post describing what new details it reveals of Trump’s hoarding and of the investigation.

For now, I wanted to point to a fragment of an interview report (302) from someone who might be one of Trump’s White House valets. The witness repeated a point made by other loyal Trump staffers: They joked about Trump’s obsession being akin to that in My Beautiful Mind.

The witness described that one time, after Derek Lyons instructed the witness to go search Trump’s boxes for something, Trump knew things were out of place.

[Person 81]: There were conversations — like, he knew which ones had what in them. We had conversations with the Staff Secretary for us to, quote, go into the boxes and get things out. So he wanted us to go shuffle through the boxes —

Mr. Raskin: He the Staff —

[Person 81]: The Staff Secretary.

Mr. Raskin: [Person 45] or [Derek Lyons].

[Person 81]: [Lyons] was the one that informed me to do it. Go through, shuffle through, see what we could find about schedules, specific documents that they had, which I can’t remember off hte top of my head exactly what those were, but find specific documents and pull those out and then give them to them so that they could have them —

Mr. Raskin: And did you do that?

[Person 81]: — for tracking purposes.

Mr. Raskin: And you said [Lyons] wanted you to do it; did you do it?

[Person 81]: We only did that — I did that one time and the President realized that it happened and I told [Lyons] that I won’t do that again because I don’t want the President to think that I was snooping through his stuff.

But the more interesting detail is that Person 81 described how there was a cluster of boxes right next to Trump’s bed at the White House.

So if you walk into the room, his bed — there’s a nightstand, his bed, and then there’s, like, a — where another nightstand was but nobody ever slept on that side of the bed usually so he would have it all full of boxes.

Now, I get the impetus. Back in the days when most of my reading was still dead tree books, there’d be a stack of them there, next to my side of the bed, maybe two stacks. There are still four or five in-process books on the bookshelf by the bed.

But Trump’s White House aide was describing boxes and boxes of White House documents, including classified documents.

They were right there by the side of the bed because (usually) no one slept on that side of the bed.

The Document Found with Roger Stone’s Clemency Did Pertain to Emmanuel Macron

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Just days before the snap election Emmanuel Macron recklessly called after Marine Le Pen shellacked his party in the EU elections, we are one step closer to showing a tie between the still unexplained grant of executive clemency to Roger Stone found in the search of Mar-a-Lago and the French President.

As I have described in the past, the first thing listed on the non-privileged search warrant return was an executive grant of clemency for Trump’s rat-fucker. Most people have always assumed that it was one of the known grants of clemency — either the commutation or the later pardon — for Stone’s lying to cover up his 2016 ties to Russia.

Except as listed, it is associated with, “Info re: President of France.”

There had been reports that the President of France in question was Macron. Trump’s defense attorneys seem to have confirmed that.

That confirmation comes as part of a Trump bid to dismiss the entire stolen documents prosecution because the FBI jumbled the order in which documents were found during and after the search. Both before and after the problem with the order of the documents first became understood, in March and then May, Jack Smith’s office did some interviews with the Miami-based agents who did the filter process, which Trump included as exhibits.

As described, the agents exercised varying diligence about maintaining the order of documents in each box; as Agent 5 explained, keeping the order intact was made more difficult because of the contents of the boxes, in which Post-It notes and golf balls were stashed in the same boxes with potentially privileged documents (I can’t make out the first word in this series).

As Agent 17 described, he and Agent 5 did the filter search of Trump’s own desk together as another agent found the box in the closet where the most sensitive classified documents were found (note: it’s clear agents were also being asked about the 43 classified cover sheets allegedly found in that box; Trump’s silence on this point suggests others gave clear answers about it).

As Agent 17 described it, Agent 5 found “Macron doc in desk,” though makes no mention of the clemency associated with it.

Note there was a set of “KJU letters” — the love letters from Kim Jon Un to Trump — in a desk then occupied by Molly Michael, identified as Person 34 in other releases. Trump had returned at least some of these in the January 2022 boxes.

It’s not yet clear how the Macron document, classified Secret, relates to the Stone clemency. But as I wrote here, such a tie could be quite significant: when Scott Brady (the MAGAt US Attorney whose claims to have vetted the Alexander Smirnov hoax were just referred to DOJ for potential prosecution as a false claim to Congress) indicted GRU hackers for operations that included the 2017 MacronLeaks that attempted to help Le Pen in her election against Macron, the indictment claimed to be ignorant of the public details tying Roger Stone associates to the dissemination of the stolen documents.

The Macron document does not appear to be among those charged, so we may never learn more about why Trump had a Stone grant of clemency — and possibly a bunch of other pardons — in his desk drawer.

Note, in addition to exhibits documenting the Mar-a-Lago search, Trump’s lawyers helpfully provided this description of the documents found among the boxes Trump returned in January 2022, two of which required especially sensitive treatment.

Jack Smith Invites Aileen Cannon to Protect the Country Rather than Just Donald Trump

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Jack Smith has asked Judge Aileen Cannon to prevent Trump from lying about a plot to assassinate him, as he has done since propagandist Julie Kelly made a stink about a routine Use of Force form Trump himself released and misrepresented and created a false scandal. But there’s a detail about how he asked the deserves attention.

The motion describes how Trump filed that routine form, without tying to his demand for suppression, and then started lying about it, only to have other propagandists (it includes an example from Steve Bannon’s show) join in.

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. See ECF No. 566. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Id. at 4. Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission. The motion also left out language explaining that deadly force is necessary only “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Compare ECF No. 566-3 at 11 with ECF No. 566 at 6. Notwithstanding the misleading characterization of the use-of-force provision when describing the search, the motion did not seek suppression based on the policy, claim that the agents had acted inappropriately in following that standard protocol, or otherwise rely on the policy as part of the argument. See ECF No. 566 at 12-13.

On May 21, 2024, Trump filed a redacted version of his suppression motion and exhibits on the public docket. See ECF No. 566. The next day, Trump publicly claimed that he was just “shown Reports that Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mara-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.” Exhibit 1. Trump also sent an email stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” Exhibit 2. Trump also publicly claimed that, “[s]hockingly,” the Department of Justice “authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’” Exhibit 3. Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump. See Exhibit 4. [my emphasis]

Now, that could have been all that Smith needed to do. As he lays out, Judge Cannon has the authority under the Bail Reform Act to modify Trump’s release conditions to protect the safety of the community.

Under the Bail Reform Act, a “judicial officer shall issue an order that, pending trial, the [defendant] be” either released on personal recognizance or an unsecured bond, 18 U.S.C. § 3142(a)(1), released “on a condition or combination of conditions under subsection (c),” id. § 3142(a)(2), temporarily detained pending revocation, deportation, or exclusion, id. § 3142(a)(3), or detained, id. § 3142(a)(4). Here, Trump was released on conditions under subsection (c). ECF No. 17.

Subsection (c) provides that, if a person is released on conditions, the “judicial officer shall order the pretrial release of the person” subject to (1) “the condition that the person not commit a Federal, State, or local crime during the period of release,” and (2) “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(A), (B). The statute then lists several “further condition[s]” that the release order “may include.” As relevant here, those further conditions include that the defendant “satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv). Subsection (c) further provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” Id. § 3142(c)(3).

The Court should exercise its authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case

But Smith didn’t stop there. Even before that, Smith invoked an argument Judge Cannon made herself last year, when choosing to stick her nose into the public reports that Jay Bratt was mean to Stan Woodward.

The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

This is, at the very least, a subtle dig. Cannon has gone out of her way (with the original search, and then on two of these such occasions) at least three times to protect Trump.

But she has done nothing as Trump, “irresponsibly put a target on the backs of the FBI agents involved in this case,” as the filing describes.

At least one attorney has suggested that Cannon could ding Chris Kise for leaving out the limitations and thereby giving the Use of Force policy the opposite meaning than it really has (bolded above), setting up this propaganda attack.

Instead, Smith has used it as an opportunity to either force Cannon to rein Trump in — or to demonstrate that her bias in this case is contributing to a very dangerous situation.

How We Got to a Place Where Right Wingers Cheer Stealing Nuclear Documents

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When Aileen Cannon issued her order delaying Trump’s stolen documents trial indefinitely, I posted this on Xitter.

The post was factual. Trump nominated Judge Cannon on May 21, 2020. Judge Cannon’s order ceded to the requests of Trump and his co-defendants for hearings on all sorts of requests that, before any other judge, would be deemed frivolous. She adopted deadlines Trump asked for last year. The order undoubtedly delayed accountability in this case, with the next deadlines set for a month after the original trial date. And Trump is alleged to have stolen nuclear documents. In the original 15 boxes returned in January 2022, there were three documents classified FRD, for a total of 57 pages and charged document 19, which was seized on August 8, 2022, is also classified FRD, formerly restricted, a classification used for nuclear stockpiles and targeting. All would have been covered by the Presidential Records Act and so belong to the US Government; Trump could declassify none of them on his own.

By 11 my time (plus-5 from ET), it had gone viral, with 200k views, 47 QTs, 4.4k likes, 1.6k RTs, and 300 responses.

The post is a good way to start thinking about the information economy that led us to a place where a Republican judge helps delay accountability for stealing nuclear documents and storing them in a closet normally storing campaign swag. This information economy creates an environment in which a former prosecutor like Aileen Cannon either believes, or claims to believe, outlandish claims of bias and ill-treatment solely because career national security officials — rebranded by Trump as the Deep State — did their job.

Take the responses. In addition to a bunch of lefty responses — including a bunch imagining there was some quick fix switch that Jack Smith can hit to remove Aileen Cannon — there were a range of MAGAt responses, including a bunch doubting that there were really nuclear documents.

One of those was a full Pepe meme invoking Obama’s birth certificate.

Several used the superbly inane retort MAGAts like to use with me: that my moniker should be “emptyhead” instead of “emptywheel.”

Several of the responses in the thread came from Alexander Sheppard, a Jan6er convicted of obstruction whom John Bates ordered released part way through a 19-month sentence pending the outcome of Joseph Fischer’s challenge to the application of 18 USC 1512(c)(2) over government objections that Sheppard still insists he’s a political prisoner.

This kind of viral response on Xitter is the point — right wingers have deliberately stoked such toxic viral responses for years. This is the kind of “engagement” Xitter’s billionaire owner has chosen to foster.

The point is not rational discussion, but instead the replacement of it with brainless mob-think, a mob-think designed to reinforce unquestioning partisan identity, a mob-think designed to drown out rational consideration of what it means that Judge Cannon has intervened in this way.

A mob-think that can be wielded to drown out the basic fact that Trump is accused of refusing to give back a nuclear document.

Of course, Elon Musk’s decision to grant people with a certain sized following, which includes me, checkmark status some months ago helps to ensure that anything I say will be visible to and therefore subject to this kind of mob treatment. Because of that involuntary checkmark, anything I say will be a magnet for this kind of mob response.

One reason the comment went viral is because of a few QTs from right wing influencers, not least Julie Kelly, who plays a key role in the right wing propaganda world. (The first post here is a QT, claiming that I am an example of the people invoked in her prior Tweet who (she falsely claims) hasn’t covered things I have covered; that is, Julie made my post go viral based on an outright lie, on top of the lie that I have never advocated that Smith ask Cannon to recuse because I doubt it would work.)

Julie has spent her time since January 6 running a PR campaign for the defendants, falsely claiming they were treated differently than other similarly situated defendants. I have repeatedly showed that Julie has refused to correct lies she has told about the number of January 6 defendants charged with assault and in some but by no means all cases, detained pre-trial. I’ve also had to explain really basic things to poor Julie, like how white people get charged with terrorism.

Julie has moved on from January 6 to Trump’s cases, providing the same kind of inflammatory, factually flawed claims she did for men who attacked cops. And she’s effective. Indeed, she spun the latest development that Aileen Cannon may use as political cover for shutting down the prosecution of a guy who stole nuclear documents. Julie has claimed that because FBI replaced certain documents with slip sheets, all the slip sheets were planted there by the FBI. That’s not remotely what the evidence shows (indeed, the evidence shows that a number of boxes had cover sheets without any documents, something even Tim Parlatore has backed). Nor does it convey the one place where altered box order will matter, which is for Trump — except that the altered document order shown thus far is almost certainly not implicated in any of the charged documents, because it involves Confidential, not Top Secret, documents.

Here is Julie’s coverage of the Robert Hur report, in which she spins Biden granting permission for the FBI to just come and grab boxes as somehow worse than Trump stalling, refusing to let the FBI actually look in boxes when they arrive, then withholding boxes and boxes.

Unlike the expansive raid of Mar-a-Lago, however, the bureau came unprepared. “The FBI dispatched two agents to retrieve the boxes in the garage the following day,” Hur wrote of the FBI’s visit to Delaware on December 21, 2022. “[The] agents conducted a limited search of the garage intended to determine whether it contained other classified documents. The two agents lacked sufficient resources to conduct a comprehensive search of the entire garage given the volume of material stored there.”

Authorities waited for Biden’s consent–he apparently did not want to turn over his notebooks–to search his home; agents were sent to Delaware on January 20, 2023. One item retrieved by the FBI, according to Hur, was Biden’s 2009 “handwritten memo [to President Obama detailing his opposition to the troop surge in Afghanistan] that contains information that remains classified up to the Secret level.”

But Biden and his associates will be spared prosecution. The same media echo chamber that raged for months about Trump’s threat to national security instead is condemning Hur for his “gratuitous” remarks about Biden’s faulty mental faculties.

In the meantime, Trump and his co-defendants are preparing for a tentative May 20 trial date in Florida, embroiled in costly and time-consuming legal battles with the DOJ.

Another example of the two-tiered standard of justice in Joe Biden’s America.

In spite of Julie’s close coverage of the Hur report, she has not told her rubes that the FBI similarly reordered documents in the most important box seized from Biden, nor gone back to admit that the problem she is now misrepresenting — that there were so many classified documents at Mar-a-Lago that FBI ran out of slip sheets — is evidence that the FBI was similarly unprepared for the Trump search.

Julie has similarly spun documents that show Mark Meadows was significantly responsible for getting the Biden White House involved in efforts to retrieve documents (because he tried to reach out to WHORM personally), and show key players at NARA hesitating before asking for further involvement of DOJ as the opposite, an aggressive effort to get Trump.

It doesn’t have to be true. It only has to feed the rubes.

And by feeding the rubes shamelessly false claims, Julie has become quite the celebrity, speaking at CPAC and regularly appearing on Steve Bannon’s show. Bannon knows a useful propagandist when he sees one!

Now, I’m not begrudging Julie the fame she has carefully cultivated with her shamelessness. She has earned it! The right wing propaganda network — the deliberate fostering of lies masterminded by people like accused fraudster Bannon — always rewards people who will tell the rubes what they want to hear.

What I’m trying to explain is how her role gives Aileen Cannon cover to do truly astonishing things, like entertain the notion that  putting a non-partisan in charge of the investigation of Trump for classified documents while putting a Trump appointee who had already deprived a Trump target of due process in charge of the Biden investigation is instead proof of selective prosecution against Trump.

In addition to that premise — that investigating Trump in the same way as investigating Biden is proof of selective prosecution against Trump — Aileen Cannon’s order yesterday and earlier orders signalled she is entertaining the following claims:

  • That Walt Nauta, who doesn’t claim to have sorted through any documents, must have the ability to sort through classified documents
  • That because the document investigation, which included crimes in DC, started in DC, and used DC SCIFs for the investigation, it’s proof that Jack Smith was deliberately attempting to bypass SDFL
  • That because Mark Meadows and Pat Philbin got the White House involved in document response, it’s proof that Biden improperly intervened
  • That even though multiple Trump-friendly witnesses testified that Trump didn’t even know Tom Fitton’s Clinton socks theory until 2022, he should be able to argue to jurors he applied it in 2021
  • That because NARA informed DOJ about classified documents, the same way they did with Joe Biden, it’s proof that NARA are part of the prosecution team as opposed to the victim
  • That because Trump’s surveillance system uses difficult software and one of the defense lawyers only uses an iPad, prosecutors have failed to meet discovery obligations
  • That Trump has immunity to steal nuclear documents that he couldn’t even declassify on his own

These are all, individually and collectively, crazy. It’s unclear whether Cannon truly believes them or simply doesn’t care. She has chosen to treat Trump’s claims according to the reality his propaganda bubble has created rather than the actual facts before her.

A lot of the responses to my Tweet were lefties imagining that Jack Smith has some kind of button he can press to get Aileen Cannon replaced; he doesn’t.

But even if he did, it wouldn’t solve the problem. Because the problem before us is that Trump’s mob and his judges have been trained to believe that applying any law to him amounts to a two-tiered system of justice by a very comprehensive propaganda machine.

Trump’s propaganda machine has drowned out facts and replaced it with grievance.

And until something starts cutting through that grievance, mere trials aren’t going to fix this.

Aileen Cannon Bows to Donald Trump

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Aileen Cannon has made official what has been obvious for some time. She has no intention of moving forward on Donald Trump’s stolen documents trial with any kind of order or speed.

The Court also determines that finalization of a trial date at this juncture—before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming—would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury.6 The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.

Instead, she will entertain every one of his frivolous motions for months and months and months.

Again, none of this is surprising. But it is Cannon’s commitment to let a man accused of stealing hundreds of classified documents potentially regain the White House with no accountability for his alleged theft.

Stan Woodward’s Manufactured Scandal about Box A-15

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As I have noted, the FBI agents who searched Joe Biden’s garage rearranged the contents of the single box which Robert Hur attempted to prove Joe Biden had deliberately curated when they moved the contents from the beat-up box found in the garage to a new one.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Had Hur been able to prove that the contents of this box had been in Biden’s Virginia home when he mentioned classified records to his ghost writer in 2017, and had Hur been able to disprove that that reference wasn’t to other documents Biden had recently returned to the White House or to the letter Biden sent Obama about Afghanistan, and had Hur been able to rule out Biden simply losing track of those files, and had Hur been able to prove that Biden himself and not staffers had been packing and repacking the box, then the order of the box would have been crucial to proving a case against Biden.

Hur hung much of his theory of willful retention on the other documents found with two folders containing classified Afghan documents.

Which is to say, the FBI’s sloppiness would have doomed the case if there were ever a case to bring.

Now, Walt Nauta attorney Stan Woodward is trying to claim the same with regards to the documents seized from Mar-a-Lago, to great effect among right wing propagandists.

He made the claim in a bid to get a delay in filing his CIPA 5 notices (which describe what classified information he’d need to release at trial).

Following defense counsel’s review of the physical boxes, the unclassified scans of the contents of the boxes, and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information. For example, Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10. The FBI Index indicates that the classified documents removed from the box (and where a cover sheet was inserted in its place) appear in the order listed below. The contents of the unclassified discovery pertaining to Box A-15 begins at USA-00340924, with the first inserted at the second page of the scan, or Bates labeled USA-00340925:

Per the FBI Index, the first purportedly classified document removed from box A-15 was assigned FBI Index code “ccc,” its classified bates begins at 0079, is one page, and bears the classification marking of “CONFIDENTIAL.” For reference, the physical cover sheet from the actual box for document “ccc” appears as depicted in the below image:

To state the obvious, a “Secret” document is not the same as a “Confidential” document. To be sure, a slip sheet in in Box A-15 does match the one scanned as part of unclassified discovery (at USA-00340925):

However, there is no way for defense counsel to know that the slip sheet depicted above actually corresponds with USA-00340925. And the slipsheet labeled “ccc” does not appear for several hundreds of pages later than the FBI Index indicated it would. Defense counsel’s review of these materials calls into question the likelihood that the contents of the physical boxes remains the same as when they were seized by the FBI on August 8, 2022.

Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time. Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.

Jack Smith claims this is all a delay tactic invented because Woodward’s other recent delay tactics fell through.

But he concedes, first of all, that after the search team ran out of cover sheets because there were far more classified documents than they imagined, they used hand-written papers to mark where classified records had been found.

The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

And then they made sure that each box was handled separately, to ensure that the contents of each individual box remained separate. They failed, however, to keep all the boxes in the same order.

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

3 The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court’s question of whether the boxes were “in their original, intact form as seized” by stating “[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents”).

While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient. Unlike Biden and Trump, Nauta is not alleged to have curated any boxes. He is not accused of willfully retaining classified documents at all.

So the order of documents within the particular boxes is meaningless to his defense (though Trump, who has asked to file a sur-reply piling on, might make great use of this argument if this ever goes to trial).

Plus, it’s worth noting which box Woodward is focused on, A-15. That box happens to have, easily, the biggest number of classified documents in it, 32; a third of the items originally in the box were marked classified. And probably 11 of them, those marked Confidential, have since been declassified and provided in unclassified discovery.

In total, the FBI seized 77 documents with classification markings from the 12 boxes that were seized from the Storage Room, but of those 77 documents, 26 have now been produced in unclassified discovery.

No documents already declassified would be pertinent to a CIPA filing.

In other words, Woodward has selected a box that includes both official and handwritten slip sheets, had no Top Secret documents, but a lot of less classified documents.

Something (he knows from his Jan 6 crime scene cases) a shameless propagandist will wail about.

But not something substantive to Nauta’s case.

Mark Meadows’ Proffer

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I continue to dig through the document dump Judge Aileen Cannon finally released the other day.

The dump included 70 exhibits (some FOIAed documents) submitted in conjunction with Trump’s motion to compel discovery and a few exhibits submitted with the government’s response.

The most titillating of the latter set is a November 2022 interview with Person 16 (whom I suspect to be Eric Herschmann, in part because Herschmann relishes giving titillating interviews in which he calls other lawyers morons).

But for the moment, I want to look at Person 27’s December 2022 proffer.

While the government is coy about the identity of Person 16, they’re not hiding Person 27’s identity: It is Mark Meadows.

The passages below, matched to the corresponding exhibits, makes it clear that Person 27 is Trump’s former Chief of Staff. Said Chief of Staff briefly got involved in the document recovery effort after NARA first threatened to make a referral to DOJ, then threatened to deem the boxes Trump had taken destroyed. Said Chief of Staff traveled to Mar-a-Lago in October 2021 (at a time when discussing the January 6 investigation would have been fruitful) and while there asked if Trump wanted help searching boxes, only to be told that Trump didn’t need help returning documents he wanted to keep.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

These passages, collectively, serve to rebut Trump’s claim that the involvement of Biden White House attorney Jonathan Su was in any way investigative or improper; the passage shows that Patrick Philbin involved Su, his successor as White House Deputy Counsel, and the White House had to further intervene when Meadows tried to reach out to a White House Office of Records and Management person, Person 40, directly.

This ABC story describing Meadows’ testimony, describing offering to help but being rebuffed, further corroborates that Person 27 is Meadows.

The former chief of staff also told investigators that shortly after the National Archives first requested the return of the official documents taken to Mar-a-Lago in 2021, he offered to Trump that he would go through the former president’s boxes to retrieve the official records and send them back to Washington. Meadows told investigators Trump did not accept his offer, according to sources.

So Government Exhibit C is a December 6, 2022 proffer from Mark Meadows.

I’m not so much interested in the content of that proffer. As ABC has reported, Meadows’ testimony was iterative, slowly evolving over at least three interviews as he was presented with more evidence of details that Jack Smith knew. Aside from a mostly redacted reference to Trump’s delegation of declassification authority (which may relate to the effort to declassify the Crossfire Hurricane binder and which might not be entirely true), the description of his trip to Mar-a-Lago to offer to help is the most interesting bit in this proffer.

But that’s the thing about proffers, offered by one of the best attorneys representing any Trumpster, George Terwilliger, offered before Beryl Howell overruled any Executive Privilege claims, and offered before the Georgia indictment made Meadows’ operative January 6 story told in DC less sustainable.

Proffers are the story you want to tell, not the full story.

As I wrote last August, after the first of ABC’s big scoops,

[T]his is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise.

There are a number of things to which Meadows eventually testify, per ABC’s reporting, that are not in this proffer. The most notable pertains to his ghost writers, on which topic his testimony evolved to accept that they were probably right that Trump was sharing classified documents in 2021.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said. Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

According to ABC, where Meadows’ other testimony would evolve to is that he would have been more diligent than Trump returning stolen documents.

Meadows also told investigators that he would have responded differently than Trump when the National Archives first asked Trump to return all remaining presidential records in his possession, and would have been very diligent in his handling of the initial search for documents to return to NARA, sources familiar with the matter said.

It’s unclear if there’s an “if” involved in this conditional statement, such as “if he knew Trump was stealing classified documents.”

That’s interesting, because in that proffer, Meadows claimed not to believe Trump had Presidential Records at all.

In July 2021, [Philbin] informed [Meadows] that NARA had contacted [Philbin] regarding missing boxes of documents. [Meadows] was already planning to travel to Mar-a-Lago for an unrelated meeting and offered to look for the missing boxes while [he] was there. [Meadows] was skeptical there were any presidential records as [he] believed, based on [his] experience with FPOTUS at the White House, that the boxes likely only contained newspapers.

Again, there’s a pretty big chance that this particular claim evolved, just like Meadows’ explanation for why he edited a really damning description from his ghost writers. The proffer is a baseline, a place from which prosecutors could slowly coax testimony closer to the truth, all the while locking in useful testimony to rebut Trump’s most outlandish claims. In this case, after all, the testimony is critical to rebutting Trump’s complaints about the involvement of Su, whether or not the testimony was entirely forthcoming, even while not giving anything away.

And I’m interested in it for that reason as well.

This proffer doesn’t tell us how Meadows would later testify. It doesn’t give anything away.

Robert Mueller’s team tried to flip witnesses against Trump, only to find that Trump bought them off with pardons — something that Person 16 describes already got promised to Walt Nauta. Here, there’s a far larger cast of characters, including people like Meadows who are central to all of Trump’s suspected crimes and also likely to welcome an offer of a pardon in exchange for loyalty. This slow squeeze is a different approach.

And along the way, Jack Smith got useful testimony — testimony that will give him what he needs to go to trial — but testimony that also can be used to inch closer to the truth.