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“Rights” and Wrongs: Where the Stolen Documents Investigation Is Headed

I want to start this post about where the stolen documents investigation may be headed with an observation a commenter here made about this passage of the superseding indictment: the import of the word, the “rights,” coming from an IT guy who would think in terms of access privileges.

The passage comes in the midst of the Keystone Cops routine where Walt Nauta and Carlos De Oliveira try to figure out how to achieve Trump’s apparent order — probably given during a 24-minute phone call to De Oliveira on June 23 and to Nauta face-to-face at Bedminster sometime between 3:44 and 5:02PM on June 24 — to delete the surveillance server. They were stomping around, squawking about how sensitive this mission was. Nauta sent someone texts with shush emojis and De Oliveira told a valet Nauta’s visit should remain secret.

The evening of June 25 — one day after DOJ sent Trump Organization a subpoena for surveillance video — they get a flashlight and go to inspect what the surveillance cameras would pick up; by moving in front of the surveillance cameras, which we now know are motion activated, they would have triggered the cameras, thereby creating more damning surveillance footage.

Imagine the video exhibit at trial, as both Nauta and De Oliveira point a flashlight at the surveillance camera that, weeks earlier, caught both of them moving just half the boxes full of classified documents back into the storage room, two earnest faces looking straight into the camera. That footage wouldn’t be covered by the subpoena they were, at that moment, trying to defy; it would probably be covered by the next subpoena.

Two days later (there’s no indication of how Nauta spent his day on Sunday June 26), on June 27, De Oliveira walks into the IT room and asks Yuscil Taveras in front of a witness (possibly in front of another security camera) to step away so they could speak. They go to what they call an “audio closet” (which could be the decommissioned SCIF) and De Oliveira tells Taveras that “the boss” wants the surveillance server deleted.

Taveras says three things in response:

  1. He doesn’t know how to accomplish that
  2. He doesn’t have the “rights” to do that
  3. To accomplish the task, De Oliveira would have to reach out to one of the Matthew Calamaris

The words, “rights,” here hasn’t gotten enough attention. Taveras was saying that he did not have the computer privileges to just delete the surveillance server: one of the Matthew Calamaris in New York would have to be involved to make such a thing happen.

So after that, De Oliveira checks back in with Nauta (who has flown to Florida to accomplish this task, along with whatever he did on June 26), they stomp around some more in suspicious ways that are visible to yet more surveillance cameras, and then two hours later Trump speaks to De Oliveira for 3.5 minutes. As described, Trump calls De Oliveira, not the other way around.

Remember how I said — of the January 6 investigation — that the January 6 investigation would take more time than the Watergate investigation because, unlike Nixon, Trump is not known to have wiretapped himself?

Well, on the stolen documents investigation, he did, effectively, wiretap himself, or at least all the employees he sent to accomplish his corrupt mission. And then Trump tried, over and over, to Rosemary Woods away incriminating video, at least this first time, captured on video again.

But amid all the Keystone Cops stomping around talking about secrets while on surveillance camera and sending shush texts, what Taveras said is an important hint of where this investigation may go next (as I laid out here).

Thus far, this story — and the conspiracy as charged so far — is just a story of a failed attempt to destroy surveillance video. De Oliveira: Can you delete the server? Taveras: Nope. I don’t have the rights. Stomp stomp stomp, almost all of it on surveillance video.

The Keystone Cops caper ends with Trump calling De Oliveira at 3:55PM on June 27, with no word of what led Trump to call De Oliveira and no word of whether whatever video got deleted was deleted in Florida or New York, or somewhere else.

The superseding indictment doesn’t mention, for example, the text that Nauta sent Calamari Sr — possibly even between 1:50PM when he and De Oliveira were stomping in bushes adjacent to Mar-a-Lao and the phone call that Trump made to De Oliveira at 3:55PM.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

Calamari was the guy, Taveras told De Oliveira, who would have the privileges to delete surveillance footage. And sometime in that period, Nauta texted him about the surveillance request.

Thus far, this is a story and a crime about an alleged attempt to delete surveillance footage. But we can be pretty certain that surveillance video was, in fact, deleted. That’s because reporters have reported on witnesses being asked that for months. There would be no reason to obtain nine months of surveillance video — 57 terabytes of raw video, if you can believe the defense attorneys — unless there was a whole bunch more to learn from the surveillance videos.

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

And there would be no reason for Trump, on August 26, to get Nauta to verify De Oliveira’s loyalty (stomp stomp stomp) before arranging to provide him a lawyer if what came next, what happened after Trump’s phone call to De Oliveira on June 27 isn’t even more damning.

Indeed, that’s why it matters that — buried in a Devlin Barrett story opining that De Oliveira’s, “alleged actions could bolster the obstruction case against the former president” because apparently Devlin hasn’t learned his lesson about presenting evidence of more serious crimes and calling it obstruction — Trump (unusually) came back to Mar-a-Lago twice between June 3 and August 8: once from July 10 to 12, and once again on July 23, and that De Oliveira told the FBI he had given away the key to storage when they showed up on August 8.

The Keystone Cop caper, in part because it is so colorful and in part because it is charged as an unsuccessful attempt, has distracted most commentators from the fact that there was a more successful attempt, and that more successful attempt didn’t hide the movement of boxes in and out of the storage closet. As I’ve noted, all the movement of boxes in May and June shows up in the search affidavit relying on what DOJ did get from Trump, save one: Nauta’s retrieval of a single box on May 22.

The superseding indictment describes that the subpoena asked for footage from “certain locations,” plural, of which the basement hallway is just one. And the most recent unsealing of the affidavit reveals that the only cameras included on the hard drive of surveillance footage turned over on July 6 were four cameras in the basement hallway. So one way or another, footage of those other locations was not turned over in response to the first subpoena.

Everyone treats this indictment as a terminal indictment — and if that’s as far as Jack Smith gets, it’s still far more damning than most everyone imagined on June 8. But multiple public references — the discussion on July 13 of continued efforts to fully exploit Nauta’s phone, the reference in DOJ’s descriptions of discovery that suggest there’s a grand jury somewhere other than DC or SDFL, and the suggestion that interviews have continued after June 23 — suggests that the current instantiation of the indictment is intended to be part of an ongoing investigation.

I noted from the first indictment that it was a “tactical nuke” designed to persuade Nauta to cooperate. Not only hasn’t the effort worked, but Stan Woodward has adopted a position on classified discovery — that Nauta, in addition to his attorneys, should get to see all the stolen classified documents — that I think makes it more likely DOJ would supersede to add a conspiracy to retain classified documents charge with him, because the elements of offense are all satisfied in the existing indictment.

Here are the obvious things that obtaining credible cooperation from Nauta would obtain:

  • ¶25: Details of Trump’s intent as Nauta helped pack up documents from the White House
  • ¶46: Why Trump was trying to hide when he instructed Nauta to replace the lids of the boxes
  • ¶54: What he was sent for on May 22
  • ¶61: What Trump instructed Nauta before he moved half the boxes back into storage for Evan Corcoran to search
  • ¶73: What boxes got loaded on the plane to Mar-a-Lago on June 3
  • ¶78: What Trump told him at Bedminster that led him to fly to Florida and try to bury the surveillance video (as well as what else he did on June 26, which is not accounted for)
  • ¶86: What both men discussed in the bushes
  • How Nauta came to text Matthew Calamari
  • ¶91: How Trump came to ask Nauta to ascertain De Oliveira’s loyalty and whether Trump had similarly offered him legal representation
  • What Nauta witnessed as Trump’s bodyman, especially in Bedminster

Here are the obvious things that obtaining credible cooperation from De Oliveira would obtain:

  • ¶76: Details of the 24-minute call he had with Trump, while Trump was at Bedminster
  • ¶86: What both men discussed in the bushes
  • ¶87: What Trump said on the phone call and whether De Oliveira had a role in the successful deletion of video, and how he knew what to delete
  • ¶91: What the terms of his representation are and whether it led him to lie (a question, other reports have made clear, many witnesses have been asked)
  • Why Trump returned to Mar-a-Lago twice before the August 8 search
  • To whom he gave the key to the storage room and on whose orders
  • Whether the October flood of the server room was an(other) attempt to destroy surveillance footage and if so, whether he was instructed to do so

De Oliveira might be a key witness to lead Nauta to reconsider his decision to protect Trump.

More importantly, one or both might be irreplaceable witnesses to answer a number of closely intertwined questions:

  • How is Trump is using lawyers to command loyalty and does it create conflict or obstruction issues
  • What surveillance footage has Trump prioritized for destruction and why
  • Why did Trump steal the documents, how has he used them, and where did the ones that went to Bedminster disappear to
  • What role does Trump’s PAC have in exploitation of the documents
  • What role does Trump Organization have in exploitation of the documents
  • Who else has had ready access to these documents

All this superseding indictment shows is that Trump had something to hide that goes beyond his desire to hoard the classified documents. Jack Smith may require the cooperation of one or both of these men to fully understand what Trump is really hiding.

This fairly remarkable post from the WSJ opinion page demonstrates the stakes of trying to answer it. It’s a pitch to elect someone other than Trump in the GOP primary, and premised on an utterly bullshit claim that Biden has politicized justice. But it gets a good distance of the way to an important discovery: even the Keystone Cops attempt already included in the indictment totally debunks Trump’s public defense, because if he believed in June 2022 that he had the right to keep these, he wouldn’t have dug himself — and thus far two staffers — deeper into a legal hole.

If Mr. Trump sought to destroy evidence, it undercuts his defense on the document charges. He contends that the Presidential Records Act gives him the right to retain documents from his time in office. But if Mr. Trump believed that, he would have played it straight. If the indictment is right that he hid the files from his own lawyers and tried to wipe the security video to stop anybody from finding out, then he didn’t buy his own defense.

From a Murdoch rag, this is a really important insight. But then WSJ predictably refuses to take the next logical step: That Trump’s obstruction makes it clear he didn’t just do this out of pigheadedness.

Prudential questions about the wisdom of this prosecution remain. Mr. Trump appears to have kept the files out of pigheadedness, not because he wanted to do something nefarious like sell them to an adversary. The FBI raided Mar-a-Lago to recover the documents.

The episode reflects poorly on Mr. Trump. But is this conduct that truly gives President Biden no choice except to ask a jury to jail his leading political opponent in next year’s election? At least Watergate involved a burglary.

We can’t even rule out a burglary, if Trump learned that he compromised these documents by storing them in his beach resort! Especially since De Oliveira claimed he had given the key away to others. We can’t rule out selling them to an adversary! We sure as hell can’t rule out trying to exploit them for the success of his PAC.

The indictment and an attempt to try this before the general election is an important goal, though potentially unrealistic given the CIPA challenges.

But it really is important to learn what Trump did do with these documents, who got the key, where they disappeared to.

This indictment doesn’t answer the question of why Trump stole these documents or what he did with them. All the superseding indictment did is make the question more urgent.

Update: Fixed Trump’s location from whence he called De Oliveira — the first call would have been Bedminster.

Carlos De Oliveira Added a Lock to the Storage Facility Then (Claimed He) Gave Away the Key

My second favorite bullshit spin of the entire stolen documents investigation (the first being claims about Walt Nauta’s cooperation) is the way, in the days after the search of Mar-a-Lago, Trump got journalists to repeat his claim that the fact he replaced the lock on the storage room at Mar-a-Lago proved he was entirely cooperative with DOJ before the search.

Here’s how WSJ presented the claim in one of its first instances:

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” according to what was read to The Wall Street Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

[snip]

Mr. Trump and his lawyers contend they have cooperated with a monthslong effort by the government to retrieve some of the material he took from the White House and expressed outrage with Monday’s unannounced visit to Mar-a-Lago. A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

Here’s how John Solomon presented the claim in a post that first broke the news of the surveillance video subpoena.

Trump signaled his full cooperation, telling the agents and prosecutor, “Look, whatever you need let us know,” according to two eyewitnesses. The federal team was surprised by the president’s invitation and asked for an immediate favor: to see the 6-foot-by-10-foot storage locker where his clothes, shoes, documents and mementos from his presidency were stored at the compound.

Given Trump’s instruction, the president’s lawyers complied and allowed the search by the FBI before the entourage left cordially. Five days later, DOJ officials sent a letter to Trump’s lawyers asking them to secure the storage locker with more than the lock they had seen. The Secret Service installed a more robust security lock to comply.

Around the same time, the Trump Organization, which owns Mar-a-Lago, received a request for surveillance video footage covering the locker and volunteered the footage to federal authorities, sources disclosed.

It was always clear this was bullshit, not least because CFR guidelines about storing classified documents are really strict. But journalists repeated it credulously for several weeks, until the affidavit was unsealed, showing that in Jay Bratt’s request that Trump secure the storage room, he never mentioned a lock.

On June 8, 2022, DOJ COUNSEL sent FPOTUS COUNSEL 1 a letter, which reiterated that the PREMISES are not authorized to store classified information and requested the preservation of the STORAGE ROOM and boxes that had been moved from the White House to the PREMISES. Specifically, the letter stated in relevant part:

As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents (the ones recently provided and any and all others) were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.

On June 9, 2022, FPOTUS COUNSEL 1 sent an email to DOJ COUNSEL, stating, “I write to acknowledge receipt of this letter.”

But buried in this Devlin Barrett story about how prosecutors warned Carlos De Oliveira’s attorney, John Irving, that they believed he was lying way back in April is the BREAKING NEWS that after De Oliveira put a new lock on the door — the thing that Trump bragged about for a month, and a tale that Barrett repeats here — he gave away the key.

Or at least that’s the excuse he gave to the FBI when they showed up in August to seize the documents inside and he refused to let them into the storage closet.

Agents had another concern: The lock on the door to the storage room was flimsy. The officials urged staff to put a better lock on the door, which De Oliveira did — using a hasp and a padlock to keep it secure, the people said. If there were still highly sensitive classified documents in the room, such a lock was far from sufficient, but it was better than nothing.

[snip]

When FBI agents arrived at Mar-a-Lago the morning of Aug. 8 with a court-issued search warrant, De Oliveira was one of the first people they turned to. They asked him to unlock a storage room where boxes of documents were kept, people familiar with what happened said. De Oliveira said he wasn’t sure where the key was, because he’d given it to either the Secret Service agents guarding the former president or staffers for Trump’s post-presidency office, the people said.

Frustrated, the agents simply cut the lock on the gold-colored door. [snip]

Imagine how outraged investigators must have been last August when Trump was publicly bragging about the new lock when the currently operative story at the time — one that may still be operative — is that within weeks, Oliveira had given away the key.

To whom, he did not know.

I’ve got a lot of guesses about who may really have gotten that key.

But the stunning news from this story is that Trump put a new lock on the storage facility and promptly gave away the key.

Carlos De Oliveira’s Uncharged Suspected Obstruction Happened on Aileen Cannon’s Watch

I’d like to make something explicit that’s implicit in this post. Some of Carlos De Oliveira’s suspected obstruction of the investigation into stolen documents happened on Aileen Cannon’s watch.

To be sure, it’s not charged, and the timing of all this is not made explicit in the indictment. De Oliveira is charged with four counts:

  • Count 33: Conspiracy to Obstruct Justice (18 USC 1512(k)) from May 11, 2022 until August 2022
  • Count 40: Corruptly asking Trump Employee 4 to destroy surveillance footage (18 USC 1512(b)(2) from June 22, 2022 until August 2022
  • Count 41: Corruptly attempting to alter surveillance footage (18 USC 1512(c)(1)) from June 22, 2022 until August 2022
  • Count 42: False statements in a January 13, 2023 interview with the FBI at his residence

The timeline of this is actually quite interesting. All the conspiracy charges go through August 2022, with no specific end date. That adopts the convention used in the first indictment.

By description, the conspiracies described in the first indictment might otherwise have ended on August 8, 2022, when the FBI seized the documents the obstruction attempted to hide. There was no overt act that post-dates August 8 in the first indictment.

There is in the superseding indictment. There’s this key paragraph, which describes that on August 26, 2022, after Trump confirmed De Oliveira’s loyalty, Trump called him and told him he would get him an attorney.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.

That paragraph is important to prove the conspiracy because Trump Employee 5 appears to have testified independently about it. But it’s not about the June 2022 effort to destroy the surveillance footage. It’s an apparent effort to keep De Oliveira quiet about the June 2022 effort.

Witness tampering, a different kind of obstruction. But it is not charged as such.

At least not yet.

So the overt acts on the three conspiracies appear to go from May and June until August 26, 2022. But the indictment doesn’t include that as the specific end date.

On August 27 — the day after the last overt act in the three alleged conspiracies charged against De Oliveira — Judge Aileen Cannon issued an order providing preliminary notice that she would intervene in the case. On September 5, Judge Cannon issued an order enjoining the government from further investigation of the materials seized on August 8.

De Oliveira’s other alleged crime happened on January 13, 2023.

It happened after, on December 1, 2022, the 11th Circuit ruled that Aileen Cannon “improperly exercised equitable jurisdiction” to — among other things — stay any investigation using non-classified documents.

[T]he district court lacked jurisdiction to consider Plaintiff’s initial motion or to issue any orders in response to it.

[snip]

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

It happened after, on December 12, Aileen Cannon dismissed the civil suit before her.

De Oliveira’s first three alleged crimes happened before Aileen Cannon intervened, up through the day she did, in fact. All of Trump’s and Nauta’s alleged crimes ended before or on the day before she intervened.

De Oliveira’s fourth charge happened after the 11th Circuit ruled that she had improperly halted any investigation using unclassified materials seized from Mar-a-Lago from September 5 to December 1, a total of 87 days.

De Oliveira was not charged for something else, though, that — according to CNN’s report of it — was suspected to be another attempt to damage surveillance equipment, a flood of the IT room that, by description, happened in October.

An employee at Donald Trump’s Mar-a-Lago residence drained the resort’s swimming pool last October and ended up flooding a room where computer servers containing surveillance video logs were kept, sources familiar with the matter told CNN.

While it’s unclear if the room was intentionally flooded or if it happened by mistake, the incident occurred amid a series of events that federal prosecutors found suspicious.

At least one witness has been asked by prosecutors about the flooded server room as part of the federal investigation into Trump’s handling of classified documents, according to one of the sources.

The incident, which has not been previously reported, came roughly two months after the FBI retrieved hundreds of classified documents from the Florida residence and as prosecutors obtained surveillance footage to track how White House records were moved around the resort. Prosecutors have been examining any effort to obstruct the Justice Department’s investigation after Trump received a subpoena in May 2022 for classified documents.

Prosecutors have heard testimony that the IT equipment in the room was not damaged in the flood, according to one source.

Yet the flooded room as well as conversations and actions by Trump’s employees while the criminal investigation bore down on the club has caught the attention of prosecutors. The circumstances may factor into a possible obstruction conspiracy case, multiple sources tell CNN, as investigators try to determine whether the events of last year around Mar-a-Lago indicate that Trump or a small group of people working for him, took steps to try to interfere with the Justice Department’s evidence-gathering.

Agents first subpoenaed the Trump Organization for Mar-a-Lago surveillance footage last summer, before the August search by the FBI. But as more classified documents were found through the end of last year, investigators sought more surveillance footage from the Trump Organization, sources tell CNN. That included an additional subpoena after the FBI search in August and a request from the Justice Department for the Trump Organization to preserve additional footage in late October, according to one of the sources.

[snip]

Prosecutors from the special counsel’s office have focused their obstruction inquiries around Trump, Trump’s body man Walt Nauta and a maintenance worker who helped Nauta move boxes of classified documents ahead of federal agents searching the property last summer, and potentially others, sources told CNN.

The sources say that the maintenance worker is the person who drained the pool that led to the flooding of the IT room where the surveillance footage was held. [my emphasis]

If that really happened, if it really was another attempt to destroy surveillance video (as I noted, video that might show De Oliveira and Nauta’s earlier attempt to destroy the surveillance video, a cover up of the cover up), then it happened during the period when DOJ’s investigation was largely halted thanks to Aileen Cannon’s improperly exercised equitable jurisdiction.

It’s not yet clear whether Cannon’s injunction required DOJ to delay the January 13, 2023 interview until after the 11th Circuit ended it. After all, DOJ interviewed Christina Bobb in October and Kash Patel in November.

As of now, the overt acts in the apparent overlapping conspiracies to obstruct the investigation stop one day short of the moment when Aileen Cannon got involved, improperly, according to the 11th Circuit. And if DOJ were to substantiate the flooded server room was yet another attempt to tamper with surveillance footage, it would mean the obstruction happened on Judge Cannon’s watch.

Thus far, Cannon has issued one after another after another and yet one more not unreasonable order.

But we are butting against the date when Trump’s continued conspiracy to obstruct the investigation happened during the window she created by improperly intervening in the case.

Chekhov’s Alan Garten: The Human Gaps in the Surveillance Footage Gap

This post noted, shortly after Trump’s first stolen documents indictment, that the indictment included nothing about the gaps in surveillance footage DOJ spent much of the last year investigating. It also noted that the indictment did not name the maintenance guy who had played a role in moving boxes around.

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

As Jay Bratt’s notice to Aileen Cannon of the new details in the superseding indictment released last night explained, those paragraphs now identify newly-charged Carlos De Oliveira by name.

Paragraphs 62 and 63 now identify De Oliveira as the person who helped Nauta move approximately 30 boxes from Trump’s residence to the Storage Room on June 2, 2022, whereas paragraph 61 of the earlier indictment referred to De Oliveira as “an employee of The Mar-a-Lago Club”;

Paragraph 73 alleges that De Oliveira was one of the “others” identified in paragraph 72 of the original indictment who, on June 3, 2022, with Nauta, “loaded several of Trump’s boxes along with other items on aircraft that flew Trump and his family north for the summer”;

Yet even with the inclusion of De Oliveira in the indictment, the gaps about the gaps in the surveillance footage remain.

The conspiracy added to the indictment, laid out in ¶74 through ¶87, describes an attempt to destroy surveillance footage. As described, Walt Nauta and De Oliveira asked someone, identified in the indictment as Trump Employee 4 but who is likely Yuscil Taveras (identified in this story from NYT), to delete the surveillance server, but he said he could not. He told De Oliveira to contact the supervisor of security for Trump Organization.

83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.

84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an “audio closet” near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:

a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.

b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.

c. DE OLIVEIRA told Trump Employee 4 that “the boss” wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was the supervisor of security for TRUMP’s business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that “the boss wanted the server deleted and asked, “what are we going to do?” [my emphasis]

But that section ends with Nauta and De Oliveira meeting in the bushes just off Mar-a-Lago property the next day, then walking to the IT office, then walking back to the bushes again. There’s no allegation that Nauta and De Oliveira succeeded in deleting the video.

The entire section is bookended with these paragraphs, which — and I say this as a PhD in Comparative Literature — are narratively brilliant.

74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.

75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP’s business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras “on ground floor (basement),” where the Storage Room was located.

76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.

[snip]

87. [On June 27] At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes. [my emphasis]

The section starts and ends with a call to Trump. But never explains how the gaps ended up in the surveillance footage.

Let me go back.

As noted, and as Bratt noted, the original indictment didn’t identify De Oliveira at all. He was just some “other” guy involved, an employee of the club. In fact, in its first indictment, DOJ used a curious dual form of naming. The following people are clearly identified:

  • Trump and Nauta
  • Trump Employee 1
  • Trump Employee 2 (Molly Michael)
  • PAC Representative (reportedly Susie Wiles)
  • Trump Representative 1 (probably Alex Cannon)
  • Trump Attorney 1 (Evan Corcoran)
  • Trump Attorney 2 (possibly Boris Epshteyn)
  • Trump Attorney 3 (Christina Bobb)

Then there are people who are not identified by name:

  • ¶6a, ¶34: the people to whom he showed the Iran document, and the two staffers (reportedly Margo Martin, who recorded it, and Liz Harrington) who witnessed the interview
  • ¶19: the high level intelligence officials who briefed Trump
  • ¶24: other members of Trump’s White House staff, in addition to Nauta, who helped pack up boxes
  • 58c: A female Trump family member
  • ¶61: an employee of The Mar-a-Lago Club (De Oliveira)
  • ¶72: others, including De Oliveira, who helped load up boxes to go to Bedminster

This new indictment adds three identified Trump employees:

  • Trump Employee 3: the co-worker — who would have been at Bedminster — who alerted Nauta that Trump wanted to see him
  • Trump Employee 4: the IT worker, probably Taveras
  • Trump Employee 5: a valet who was asked — and confirmed in a Signal chat with Nauta — that De Oliveira was loyal

And the indictment adds several more unidentified Trump employees, several of which (like the reference to the female Trump family member in the first) could be sourced entirely to communications obtained from Nauta’s phone.

  • ¶77: The attorney for TRUMP’s business organization
  • ¶79: The people to whom Nauta gave inconsistent explanations of why he was making a secret trip to Florida: one person Nauta told he would not travel with Trump and a Secret Service agent
  • ¶83: Another employee in the IT department
  • ¶84c: Supervisor of Security for Trump’s business organization

Significantly, the original indictment describes how DOJ obtained surveillance footage this way:

In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.

Though the search warrant affidavit had described that “counsel for the Trump Organization” had a role, the original indictment made no mention of that. It was like a virgin birth of surveillance footage, delivered to the FBI with no explanation.

The other figures described but not named in the superseding indictment may or may not appear in later installments of this tale, like a gun shown in an early act of a play that later goes off.

The last — supervisor of security — is almost certainly Matthew Calamari, Sr, who was one of the very last people to appear before the DC grand jury before this case was moved to Florida and charged. Both Calamari and his son were asked why Nauta texted one of them (it turns out to have been Sr.) to call him about the subpoena request.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

But that exchange is for another indictment, possibly even another venue.

In this indictment, though, the attorney for Trump Organization, almost certainly Alan Garten, plays two roles. First, he received the draft subpoena from Jay Bratt on June 22 (this begins to explain the discrepancy regarding the date of the subpoena that I’ve been obsessed with from the start). And he’s the most likely explanation for why, the next day, Trump called De Oliveira and spoke for 24 minutes.

That is, Garten likely told Trump about the subpoena, which set off a process by which employees attempted to destroy surveillance footage in Florida.

According to Michael Cohen’s testimony, Alan Garten is the one responsible for Cohen’s document production to Congress, which ended up withholding documents showing him contacting Dmitri Peskov’s office. And according to the SSCI Report, there were other, “known deficiencies in the Trump Organization’s document responses.”

While DOJ has interviewed Calamari (and so may or may not have gotten honest testimony about what happened when he called Nauta), they are not known to have interviewed Alan Garten, the bar for which would be very high. They have, however, interviewed Alina Habba, who played a role in a suspected Alan Garten shell game to withhold documents from New York State, and in the process did a search of both Bedminster and Mar-a-Lago before DOJ served a subpoena for classified documents.

In spite of all these new details and new players, we still don’t know what happened between June 27, 2022, when Trump Employee 4 told De Oliveiras to reach out to Matthew Calamari and when Trump spoke to De Oliveira for three and a half minutes, and July 6, when Trump Organization turned over two months of video that reportedly had gaps in it.

There are still gaps in this story about how the reported gaps got into the surveillance footage. Indeed, there are still gaps about what the gaps attempted to hide!

As I showed here, the surveillance footage the FBI did get appears to have shown virtually all of Nauta’s box movements — and would have shown De Oliveira helping Nauta move 30 boxes back into storage on June 2 — because the search warrant affidavit relies on it. But they may not have shown Walt Nauta remove a single box from storage on May 22.

That, of course, was just the first subpoena for surveillance footage. There were more, undoubtedly including for footage showing Nauta and De Oliveira checking out the surveillance cameras with a flashlight on June 25, 2022, entering the IT department, walking through a basement tunnel and into an “audio closet,” then walking back into the IT office on June 27, and possibly, still on June 27, walking into the bushes just off of Mar-a-Lago property for two discussions. This superseding indictment must rely on a later subpoena for more surveillance footage from which the specific times of these movements would have been obtained.

Indeed, when De Oliveira allegedly flooded the IT room in October — at a time when Judge Aileen Cannon had put a stay on the investigation of these activities — he may have been attempting to thwart a second or third subpoena attempt, a cover up of the attempted cover up, an attempt to destroy the surveillance footage that ended up in this indictment.

Altogether, the surveillance footage that DOJ has since obtained covers nine different months.

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ claims to have pinpointed which cameras they wanted and on what specific dates.

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage.

But there’s something in that surveillance footage that has made Trump very concerned about leaks, more so than he was about the documents seized last August.

This indictment provides shocking new details about Nauta and De Oliveiras’ alleged efforts to comply with Trump’s orders to destroy surveillance footage.

But it does not yet explain how reported gaps ended up in the surveillance footage.

And it doesn’t yet explain what Trump was trying to hide — what was worse than video showing Nauta emptying out the storage closet and then only half-filling it before Evan Corcoran did a search.

May 20, 2024: Aileen Cannon’s Still Not Totally Unreasonable Order

Judge Aileen Cannon has set a date for Donald Trump’s second criminal trial: May 20, 2024, to follow a second rape trial (in December) and a hush payments cover-up trial (in March).

Rape, sex workers, and then stolen classified documents, that’s what Trump will be doing as he tries to run for President.

Her order is not, on its face, unreasonable. It sets a CIPA trial for 49 weeks after it was charged, which is solidly within the scope of what it normally takes to bring these cases to trial. She has made this a complex case which is similarly not unreasonable.

The most unreasonable part of her order, thus far, is that she set the trial to be held in her tiny courtroom in Fort Pierce, making it utterly unworkable for the press.

Calendar call in this matter will be held on Tuesday, May 14, 2024, at 1:45 p.m. in the Fort Pierce Division. The case is set for Jury Trial in the Fort Pierce Division during the two-week trial period commencing on May 20, 2024.

The second most unreasonable part of her order is that she has treated the classified protective order as a month-long fully briefed affair, effectively absolving Trump and his co-defendant of conferring like grown-ups, such that classified discovery might not begin until after August 25, two months of delay she is adding to this timeline on top of the three months of delay she created last year.

Finally, she deferred on the question of whether the election will make jury selection next May impossible.

Defendants identify various additional factors the Court deems unnecessary to resolution of the Government’s motion at this juncture, most principally the likelihood of insurmountable prejudice in jury selection stemming from publicity about the 2024 Presidential Election [ECF No. 66 p. 9].

Again, this is not unreasonable, at least thus far. But she is letting Trump and Walt Nauta stall by obstructing from the outset.

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

This post talks about what the government filing in the Trump stolen documents case says about the evidence. This other post talks about the legal argument against a delay.

As I noted, Trump’s response to DOJ’s bid for a December trial made an argument for complex designation, based in part on the volume of evidence involved. If that argument convinces Aileen Cannon, Trump is more likely to get her to order a significant delay.

It’s a reasonable argument — and would be more so were the discovery burden as onerous as Trump laid out.

But at least according to the government’s reply, it’s not. Not even close. The government reply shows how Trump inflated these numbers and how the government has streamlined the discovery process.

Whereas Trump claimed there were 800,000 pages of evidence,

Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians.

DOJ noted that only about 4,500 of that is “key” to the case and a third of that consists of email headers involving two people.

Although the Government’s production included over 800,000 pages, the set of “key” documents was only about 4,500 pages. 2

2 Nearly one-third of the over 800,000 pages consists of non-content email header and footer information obtained pursuant to 18 U.S.C. § 2703(d) for two account holders.

Whereas Trump complained about 57 terabytes of surveillance footage,

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ explained that while the footage might be selected from across nine months of time, here, too, DOJ has selected the key bits and “many” of the cameras don’t record continuously (which means some do, which would be stuff obtained since the August search).

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage

This argument may well make or break the government’s bid for a timely trial, because they’ll need to refute Trump’s complex designation bid to keep on a tight schedule.

And that’s one of many reasons (another is to make sure Trump and, especially, Walt Nauta can see what else they might be looking forward to) why they’re basically providing everything up-front, include Jencks production reflecting what witnesses have said about this case, which they’re not obligated to turn over until the morning of trial. And they’re providing every witnesses’ testimony, not just those they’re calling at trial.

The Defendants also rely on the Government’s statement in its discovery letter that “there will be additional productions of discovery” related to some devices and search warrant returns, and note that “the Government has not produced all interview-related materials, including certain witness statements and associated memorialization of those statements.” Resp. at 4. Defendants omit representations in the Government’s discovery letter about the timing of discovery that has been and will be provided. The Government has informed the defense that it intends to disclose promptly all witness statements and associated memorialization of those statements, even if they would not be discoverable under 18 U.S.C. § 3500. To that end, the Government has already produced all unclassified witness statements and the associated memorialization of those statements for interviews that occurred prior to May 12, 2023, and transcripts of all grand jury testimony from the District of Columbia and the Southern District of Florida through the present. See ECF No. 30 at 1. In the next week, the Government will produce unclassified witness statements and associated memorialization for interviews conducted between May 12, 2023, and June 23, 2023. The Government has made these productions promptly following arraignment despite having no obligation to do so. See ECF No. 28 at 4, obligating the Government to turn over Jencks Act material no later than “the morning of the first day of trial.”

With respect to the devices and search warrant returns, the Government has produced all applications for search warrants and the warrants themselves, in order to facilitate the Defendants’ ability to file pretrial motions. The Government has also produced all relevant content from devices it obtained, except for (a) three devices that were produced voluntarily, the relevant content of which will be produced in the next week; and (b) two of Defendant Nauta’s devices. For Defendant Nauta’s devices, the Government has already produced much of the responsive filtered, scoped content based on the Government’s earlier review of the devices’ content in a different form. In short, the Government has promptly produced thorough discovery in an organized manner, to include early production of Jencks Act materials. It also bears emphasis that the Government has already sought a nearly four-month continuance of trial, in part because of the need for both sides to review and process discovery. Mot. at 3. There is no discovery-related reason to further delay the jury selection in this case beyond December 2023. [my emphasis]

The government really did have this prosecution all prepped to go.

The rest of this, while also intended to help persuade Judge Cannon that the government has done everything it can to facilitate discovery here, provides a few interesting details about the case.

First, one of the last things the government is turning over are the three devices produced voluntarily. These probably came from a cooperating witness or witnesses, and if that’s right, DOJ may have held them until everyone had filed their appearance and signed a protective order, since any cooperating witnesses are most likely to be targeted for harassment.

The government seems to have seized two of Walt Nauta’s devices recently, possibly with arrest. The government seems to think they had most of this content already (perhaps from a backup). The phones themselves might include Signal or other encrypted app primarily available from the phones themselves.

The timing described is the most interesting thing:

  • The first batch of discovery included everything prior to May 12, around when Jack Smith decided to charge this in Florida
  • The government is about to turn over everything between May 12 and June 23
  • It has already provided all grand jury testimony from grand juries in DC and SDFL

Note the last bullet: You don’t need to specify that you’re referring to the DC and SDFL grand juries if they are the only ones.

Indeed, the scope of that discovery suggests DOJ may have started with a third grand jury after June 23. It’s not even — necessarily — New Jersey (though that’s the most obvious possibility). If evidence was altered in New York, it could be there too.

The government has provided Trump and Nauta virtually every unclassified thing they’d need to defend this case and bundled it up to make it easy (which, again, will also make it easier for Nauta to decide whether he really wants to risk his future on Trump winning the 2024 election).

The hold-up now is that at least two attorneys have not submitted their SF-86 forms to get clearance — which, the government helpfully notes, are due today: “The Court has set a deadline of today for them to do so. ECF No. 57.”

Meanwhile, any other hypothetical grand juries can keep working.

Update: Both Trump and Nauta’s lawyers have submitted their certificates of compliance with Judge Cannon’s order that they submit their SF-86 forms by yesterday. Chris Kise, who is the lawyer who may be disqualified from clearance (because he has recently worked as an agent of Venezuela’s government), technically did not comply: he still has to be fingerprinted, though promises that will be done by next Monday. Meanwhile, Nauta’s lawyers have laid the groundwork for a 6th Amendment challenge to the requirement that they get clearance. It’s an interesting issue, but he’s being disingenuous about why Judge Cannon (separation of powers) and the jury (because they only see things after CIPA has been finished) don’t need clearance.

Update: ABC reports that the guy who handled the surveillance video has received a target letter.

Special counsel Jack Smith in recent weeks transmitted a target letter to the staffer indicating that he might have perjured himself during a May appearance before the federal grand jury hearing evidence in the classified documents probe, the sources told ABC News.

[snip]

Reached Thursday by ABC News, the employee declined to answer questions about a possible target letter and his discussions with investigators, saying only, “It’s none of your business.”

Stanley Woodward, a lawyer who has represented the employee and who represents several other Trump advisers, declined to comment to ABC News.

By description (see this post for background), this is the IT contractor Yuscil Taveras (whom NYT described to be represented by Woodward) not longtime maintenance guy Carlos Deoliveira (whom WaPo described to be represented by John Rowley).

This makes the timing of the discovery more interesting. The government is about to turn over DC grand jury materials and other interviews from after May 12 — that is, they haven’t yet turned over Taveras’ to Woodward. That suggests they may be about to charge him before they turn that over.

Taveras testified to the DC grand jury, so if he is charged with perjury, he’ll be charged there.

This likely complicates Woodward’s life significantly.

Jay Bratt to Chris Kise: You Already Made that Frivolous Presidential Records Act Argument

This post talks about the government’s legal argument against delay in the Trump stolen documents case. This other post talks about the filing’s description of the evidence in the case. 

My favorite part of the government’s reply to Trump’s request to put off his Espionage Act trial indefinitely comes in how they rebut Trump’s argument that there are novel issues that will require more time.

DOJ dismisses Trump’s suggestion that there’s a question about whether the Special Counsel could prosecute him by pointing to the appeal from the key witness protecting Roger Stone, Andrew Miller.

In re Grand Jury, 916 F.3d 1047, 1052–54 (D.C. Cir. 2019), the D.C. Circuit held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.

More hilarious is the way they dismiss the claim that Trump needs a lot of time to make the Presidential Records Act argument he lifted from (noted non-attorney) Tom Fitton. They do so in several ways: noting that the argument really isn’t going to work and that even if they want to try it, the only thing they need to try is the indictment.

But then they note that Trump, with one of his existing counsel — Chris Kise, already made that argument, before Judge Cannon.

As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it.

[snip]

As with any pretrial dispositive motion, all that is necessary is the Indictment—which the Defendants have had for over a month. And in fact, Trump (including his current counsel) has already briefed in this Court a variation of this argument. See, e.g., No. 22-CV-81294-CANNON, ECF No. 171 (filed Nov. 8, 2022). The legal issues Defendants raise do not justify deviation from a speedy trial date, much less open-ended deferral of considering one.

Jay Bratt went easy on Trump: He doesn’t bother reminding Kise (and Aileen Cannon) how that worked out before the 11th Circuit the last time they tried it.

Ultimately, though, the core nugget of the filing is this: The Speedy Trial Act requires a judge to set a trial date.

Any discussion of setting a trial date must begin with the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–3174 (the “Act”). The very first sentence of the Act forecloses Defendants’ proposal here:

In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, … so as to assure a speedy trial.

18 U.S.C. § 3161(a). The Defendants chide the Government for seeking an “expedited” trial (Resp. at 1, 2, 8), but in doing so they have it exactly backward. A speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified. See U.S. Const. amend. VI; 18 U.S.C. Ch. 208 (captioned “Speedy Trial”).

[snip]

“That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely,” id., which the Defendants effectively try to do here by requesting an indefinite adjournment of the trial, for a minimum of some fifteen months.1 See Barker v. Wingo, 407 U.S. 514, 519 (1972) (noting the “societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.”).

This filing doesn’t get very deep into Trump’s claims about the election. It side-steps the issues I pointed to — voters’ need to know whether Trump reneged on the promises he made the last time he got elected. It acknowledges picking a jury may be tough but says that’s good reason to get started on it earlier. It even notes that Trump’s busy work schedule, like those of a lot of powerful people charged with a crime, is not an excuse to put off trial indefinitely.

[T]he demands of Defendants’ professional schedules do not provide a basis to delay trial in this case. Many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel. The Speedy Trial Act contemplates no such factor as a basis for a continuance, and the Court should not indulge it here.

While I find several of these arguments persuasive, ultimately, it’s unclear whether this filing will work. We’re at the point where we’ll get the first hint of how Judge Cannon plans to approach this case.

But by laying out that she cannot do what Trump has asked, simply delay the case indefinitely, it simplifies her choices.

When “Lock Her Up!” becomes “Wait Till Later!”

Last month, I did a post noting the legal significance of two paragraphs in Trump’s indictment, one quoting Trump’s promises to protect classified information during the 2016 election, and another quoting Trump’s rationale for (pretending to) strip John Brennan of clearance for using classified information for his own gain.

Here’s the paragraph quoting just some of the times Trump used a promise to protect classified information to beat Hillary Clinton.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

The two paragraphs played a certain role in proving that Trump understands the import of classified information. But they also, I argued, bundled a public integrity component up inside this Espionage Act trial.

That is, they laid out how Trump himself has argued that voters need to know whether you’re going to mishandle classified information before they cast their votes.

Those paragraphs may come in handy as DOJ attempts to respond to Trump’s opposition to the government’s proposed schedule for trial. Because he is now arguing that he’s too busy running for President to take time out to be tried for stealing classified records.

Note that Trump misrepresents what his filing attempts to do (and few journalists are calling him on it). The filing is titled, “Response in Opposition to the Government’s Motion for Continuance and Proposed Revised Scheduling Order” — that is, it claims to be responding only to the government’s pitch for a December trial. But the first paragraph admits that it is also asking Cannon to entirely withdraw her own orders setting trial in August.

The Defendants, President Donald J. Trump and Waltine Nauta, in the above captioned matter, respectfully request that this Court deny the Government’s proposed scheduling order, withdraw the current Order (ECF No. 28), and postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated. [my emphasis]

As we all hold our breath to see how Cannon will respond to this request, understand that Trump has pitched this (smartly, probably), as him against the government, but there’s a tiny chance Cannon will be miffed Trump is downplaying her own authority both here and (as I note below) on picking a jury.

There are many reasonable parts of this filing:

  • Trump argues this case should get complex case designation, leaving a longer time for pretrial proceedings (though he falsely claims the government is asking for an “expedited” trial)
  • Trump states that CIPA is going to take some time
  • Trump claims that this trial will present a number of matters of first impression — or at least matters of first impression for this Circuit (for example, Trump and Paul Manafort, have already lost on Special Counsel authority in DC, but not in the Eleventh Circuit)
  • Trump unsurprisingly calls all the classified designations as “purported,” which reserves the issue for trial
  • Trump describes that jury selection will be onerous (this is one issue on which Cannon has already issued a ruling)
  • While Trump is bullshitting that he’s being tried by his opponent, it is true that there should be as little secret evidence in this case as possible

Much of it is typical defense attorney argument about the need to adequately review the evidence before figuring out where to go next — though this filing pitches what is actually fairly modest discovery, if you ignore the CCTV footage, as a great burden.

The Government anticipates producing discovery in stages due to the sheer volume of documents collected and because of procedural mechanisms necessary to protect against the unlawful production of classified information. The Government produced its “first production of unclassified discovery” on June 21, 2023. 1 That initial production was substantial and voluminous. Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians. The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

There’s a hilarious line where the same guy who consented to a discovery vendor to turn some of this very same evidence for a Special Master review before this very same judge less than a year ago now says the use of such vendors will be impossible given the “sensitive and high profile” nature of the case.

Since, unlike most cases, all the discovery materials are sensitive and high-profile, the Defendants are unable to utilize contract or other third-party reviewers to the extent such resources would normally be available.

And Trump pitches a one year investigation as a totally long time — without mentioning that he, with Judge Cannon’s help, caused three months of that duration by demanding a stay in the investigation, to say nothing of his months of obstruction before that.

The Government’s investigation into the matters at issue in the indictment has been ongoing for over a year.

There’s a funny progression where Trump first says his day job running for President doesn’t leave him time to be prosecuted for stealing documents the last time he was President, then admits that he has found time in his busy schedule for two other trials.

President Trump is running for President of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance

[snip]

Finally, previously scheduled trials in other matters for both President Trump and defense counsel make it nearly impossible to prepare for this trial by December 2023. For example, President Trump and Mr. Blanche are preparing for a March 2024 criminal trial in New York Supreme Court; Mr. Kise and President Trump are preparing for a lengthy civil trial in New York Supreme Court commencing October 2, 2023;

[snip]

The pendency of these other proceedings and their collective impact on the ability of defense counsel to prepare effectively for trial also support granting a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii) & (iv).

But, given that he got elected the last time by promising he would be more careful with classified information than his opponent, the most remarkable paragraph in the filing is this one, where Trump says there is no exigency to scheduling this trial (as opposed to his hush money or corporate fraud trials) before the election.

While the Government appears to favor an expedited (and therefore cursory) approach to this case, it cannot point to any exigency or urgency requiring a rapid adjudication. There is no ongoing threat to national security interests nor any concern regarding continued criminal activity

I suspect the paragraph is designed to elicit a response to the question, “is there any concern regarding continued criminal activity?” That is, I think it is an attempt to probe for what more the government continues to investigate.

And yes, the government may well respond to this by answering, “funny you should mention ongoing threats to national security because we’re still looking for all the things that disappeared up at Bedminster.”

But the underlying premise is even more remarkable, given how Trump’s got elected the last time.

Trump says that there is no exigency in telling the citizens and voters of the United States whether the last time he was President, all the promises he made to get elected were just bullshit, because in fact he used his position of power to steal the nation’s secrets and store them in his chandeliered bathroom.

There is a lot that is reasonable in this filing.

But at its core, it argues that a guy accused of using the access to the nation’s secrets he got by getting elected President on false promises the last time, should get a shot at accessing those secrets again, without first letting a jury decide whether he had abused his position of power the last time.

Trump promised voters in 2016 that he would protect classified secrets; it’s actually a key part of how he got elected. Now he says voters shouldn’t have a chance to find out whether he broke that promise before going to the polls again.

Update: This post originally suggested current Trump lawyer Todd Blanche was on Paul Manafort’s team when he tried to challenge Robert Mueller’s Special Counsel authority. That’s not the venue in which Blanche represented Manafort.

Update: Judge Cannon has reset the CIPA conference for Tuesday afternoon, as all parties had agreed would work.

Stanley Woodward Tests Judge Aileen Cannon’s Patience

Just days into Pro Hac Vice admittance before Judge Aileen Cannon, Walt Nauta’s lawyer, Stanley Woodward, is testing (as in, probing) her patience, to see how much she will play along with obvious attempts to stall this case.

He and the government have submitted dueling filings about whether the CIPA conference scheduled for Friday should be postponed to some uncertain time.

Before I get into what they say, remember that Woodward is being paid by Trump’s PAC, which is also under investigation for raising money promising one thing and then spending it on other things — such as paying for Woodward’s legal fees.

Remember, too, that after months of claiming that DOJ had screwed up by not immunizing Walt Nauta — a strategy that got his client charged in an Espionage Act indictment (in some legal circles, a sign of a legal strategy that has backfired, potentially catastrophically), Woodward then adopted a new strategy: belatedly accusing Jay Bratt of bullying him because Bratt tried to prevent him from setting his client up to be charged.

Finally, consider that we’ve already seen stories suggesting that Trump plans to stall this out past November 4, 2024, so he can pardon both of them.

The pace of hiring an attorney for Nauta has been slow — as has been the speed with which Trump is beefing up his own criminal defense team. Nauta continues to work for Trump’s organization and Trump’s political committee is financing his employee’s legal representation. Inside the former president’s orbit, top aides are prepping for a protracted and litigious fight with prosecutors that draws out the entire legal process through the 2024 general election that Trump hopes to win for a return to the White House.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” said the source familiar with discussions. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

And before I present Woodward’s seven (!!!) excuses for not being able to make Friday’s hearing, consider that according to the government, Woodward hasn’t even submitted his SF-86 form required before he can get clearance.

Nauta’s second justification for a continuance is a claim that Mr. Woodward cannot “meaningfully” participate in a discussion about classified discovery or a CIPA discovery schedule at a Section 2 conference until obtaining a security clearance. Motion at 3. But he cites no case holding that a Section 2 conference is contingent on counsel having clearances, which is unsurprising since such a requirement would be inconsistent with Section 2’s language that “[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” 18 U.S.C. App.3 § 2. Perhaps more to the point, as of this writing, Mr. Woodward has yet to complete his Form SF-86, which is necessary for him to receive both an interim clearance and final adjudication, despite having been put in contact with the Litigation Security Group on June 12, some three-and-a-half weeks ago.

With all that laid out, ready for Woodward’s seven complaints?

1) First, that DOJ charged his client in Trump country rather than in DC.

With little notice to Defendant Nauta, the operative indictment in this matter was returned in this District and only recently, on Wednesday, July 5, 2023, did Defendant Nauta retain local counsel, Sasha Dadan.

2) Then, that he opposed having a CIPA conference at all (a claim the government says is not true).

Although government counsel asked whether Mr. Nauta’s longtime counsel opposed such a hearing – we did – and provided an electronic courtesy copy of the same, the government did not request any dates when defense counsel would be unavailable for such a conference.

3) Then, that Nauta had delayed so long in hiring a Florida lawyer that poor Stan Woodward had no way to object on his own.

At that time, Mr. Nauta, through counsel was not receiving electronic notices through the Court’s CM/ECF filing system, the government did not advise counsel that the pretrial CIPA conference had been scheduled, and even when counsel did learn of the conference, Mr. Nauta had no ability to formally move the Court for relief based upon his counsel’s unavailability. Rather, it was not until Wednesday, July 5, 2023, that Mr. Nauta retained local counsel, Sasha Dadan, and Thursday, July 6, 2023, that Chief Magistrate Judge Torres entered an Order permitting Mr. Nauta, through counsel to file electronically with the Court.

4) Then, that Woodward has a trial for Freddie Klein this week (the government says it — this prosecution team — did not know that — it seems that Woodward is relying on prosecutors on a 1,000 defendant crime scene investigation to track Woodward’s other clients).

As the government has long been aware, Mr. Nauta’s longtime counsel, Mr. Woodward, is scheduled to begin a Bench Trial in the United States District Court for the District of Columbia on July 10, 2023.

5) Woodward then says that even though he’s not required to attend, Nauta should be able to demand that he attend.

Presumably, the government will argue that Mr. Woodward’s appearance is unnecessary. But see Flanagan v. United States, 465 U.S. 259, 268 (1984) (like the Sixth Amendment right to self-representation, the right to counsel of choice, “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding”). And defense counsel is aware of the Court’s admonishment that, “[l]ocal counsel must be ready to adequately represent [Mr. Nauta] at any time.” Paperless Order (July 7, 2023).2 However, as the government notes in its application for the hearing, a pretrial CIPA conference permits the Court to, “consider matters related to classified information that may arise in connection with the prosecution.” Motion at 6 (June 23, 2023) (ECF No. 32) (quoting 18 U.S.C. App. III § 2).

6) Woodward doesn’t see the point of using CIPA in a case charging 31 of the most sensitive documents ever charged in an Espionage Act case.

To that end, the government only broadly describes the basis for its request for a pretrial CIPA conference: “to establish a discovery and motion schedule relating to any classified information.” Motion at 19 (June 23, 2023) (ECF No. 32). Yet, defense counsel cannot meaningfully opine on, “a discovery and motion schedule relating to any classified information,” before their provisional security clearances, let alone complete clearances, have been approved.

7) Even though his brand spanking new co-counsel (who mostly does family law kinds of things but also dog bites) is obligated under local rules to hit the ground running, she’s not ready to hit the ground running.

Nor is it feasible to expect Mr. Nauta’s local counsel to appear at a pretrial CIPA conference and to agree upon, “a discovery and motion schedule relating to any classified information,” barely a week after she has been retained by Mr. Nauta.

2 Mr. Nauta respects the Order of the Court and submits that it was not unreasonable for him to retain local counsel and thereafter request this Court accommodate the unavailability of his longtime counsel, Mr. Woodward insofar as Defense counsel would note that Local Rule 4 of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys for the United States District Court of the Southern District of Florida, which pertains to the admission of out-of-state attorneys pro hac vice does not indicate that the sponsoring attorney be required to, “be ready to adequately represent the defendant at any time.”

Tune in in January, when Presidential candidate Donald Trump says he needs to delay his trial because he has primaries to run in. It won’t be his fault that the lawyer his PAC is paying invented frivolous cause for day, after all.

As I said, Woodward is testing Judge Cannon’s patience. And why wouldn’t he? If she conducts herself like she did last summer, he’ll be able to buy Trump all the time in the world.

Walt Nauta and the Single Box

The section of the less redacted search warrant affidavit showing when Walt Nauta moved boxes in and out of the storage room differs from the timeline shown in the indictment in one key way.

The search warrant affidavit used to demonstrate probable cause doesn’t describe how, on May 22 of last year, the former valet spent over half an hour in the storage room, and then left carrying a single box.

53. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

There are several possible explanations why that description may not be in the search warrant affidavit.

Perhaps investigators didn’t think it important — though that would be hard to believe, given that the affidavit observes something that the indictment does not as explicitly: that all this box moving happened in the same period when Nauta disavowed any knowledge of box movement.

On May 30, 2022, four days after WITNESS 5’s interview with the FBI during which the location of boxes was a significant subject of questioning, WITNESS 5 is observed exiting the ANTEROOM doorway with approximately fifty Bankers boxes, consistent with the description of the FPOTUS BOXES. [my emphasis]

Perhaps investigators simply didn’t see Nauta and the single box on May 22. But note that the surveillance video was motion activated, so any movement on May 22 should show up just like all the other movement did, and in close proximity to his movements captured two days later.

[T]he FBI determined that the drive contained video footage from four cameras in the basement hallway of the PREMISES in which the door to the STORAGE ROOM is located. The footage on the drive begins on April 23, 2022, and ends on June 24, 2022. The recording feature of the cameras appears to be motion activated, so that footage is only captured when motion is detected within each camera’s field of view.

Or perhaps this movement, Nauta spending half an hour in the storage room then leaving with a single box, is one of the surveillance footage gaps that investigators spent much of a year trying to fill and explain.

The different treatment of this one box is more interesting given other details of the timeline.

For example, Nauta retrieved that single box just two days before the original deadline for the subpoena, May 24.

The return date of the subpoena was May 24, 2022.

Nauta retrieved that box the day before Trump met with Corcoran and another attorney who hasn’t been IDed yet, but who may be Boris Epshteyn. At the meeting, a day after presumably getting a box that didn’t show up in the search warrant affidavit, Trump whined that, “I don’t want anybody looking through my boxes!”

54. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

Amidst all that whining, Trump agreed to let Corcoran search for documents, but only after a ten day delay. And then Trump delayed his departure to Bedminster so he would be at Mar-a-Lago to sort boxes and to see the scheme through.

56. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP’s boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.

57. After meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP delayed his departure from The Mar-a-Lago Club to The Bedminster Club for the summer so that he would be present at The Mar-a-Lago Club on June 2, when Trump Attorney 1 returned to review the boxes.

Something that doesn’t show up in the indictment but does in the affidavit is that Corcoran then pushed for an extension on the subpoena deadline.

On May 25, 2022, while negotiating for an extension of the subpoena, FPOTUS COUNSEL 1 sent two letters to DOJ COUNSEL. In the second such letter, which is attached as Exhibit 1, FPOTUS COUNSEL 1 asked DOJ to consider a few “principles,” which include FPOTUS COUNSEL 1’s claim that a President has absolute authority to declassify documents. In this letter, FPOTUS COUNSEL 1 requested, among other things, that “DOJ provide this letter to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation.”

Just one of the two letters Corcoran sent that day has been released — the one falsely claiming Trump had returned documents in good faith earlier that year, though Corcoran may not have known that was false. Nauta would repeat a version of that claim the next day, on May 26, in his FBI interview, though unlike Corcoran, he is credibly accused of knowing well that was a lie.

All the other movement of boxes, then, occurs during that subpoena extension (and this might be another reason why the May 22 movement is not included on the affidavit — perhaps investigators focused on what happened during the subpoena extension). Nauta empties the storage closet of 64 more boxes, moving all these boxes in the same week when, in an FBI interview, he allegedly denied knowing anything about an earlier scheme to sort through boxes.

On May 24, 2022, WITNESS 5 is observed exiting the ANTEROOM doorway with three boxes.

On May 30, 2022, four days after WITNESS 5’s interview with the FBI during which the location of boxes was a significant subject of questioning, WITNESS 5 is observed exiting the ANTEROOM doorway with approximately fifty Bankers boxes, consistent with the description of the FPOTUS BOXES. FBI did not observe this quantity of boxes being returned to the STORAGE ROOM through the ANTEROOM entrance in its review of the footage.

The next day, on June 1, 2022, WITNESS 5 is observed carrying eleven brown cardboard boxes out the ANTEROOM entrance. One box did not have a lid on it and appeared to contain papers.

And then, after Nauta told a female Trump that Trump wanted to pick from all those boxes, Nauta loaded up several of the boxes withheld from Corcoran’s search onto Trump’s plane to take to Bedminster, never to be seen again.

72. Earlier [on June 3], NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.

So it may or may not be a significant detail, but the day before Trump orchestrates this scheme to keep 35 boxes shielded from Corcoran’s search, Nauta spent half an hour in the storage room retrieving a single box.

Some weeks after this scheme, on June 21, the day before DOJ asked Trump Organization for surveillance footage, per the discovery letter, Nauta appeared before a grand jury, his second (and only other) interview with investigators.

A bunch of reports last year, such as this one from Devlin Barrett that likely confuses Nauta with Molly Michael, described that Nauta changed his testimony in what would be this grand jury appearance, admitting that Trump ordered him to move boxes.

When FBI agents first interviewed Nauta, he denied any role in moving boxes or sensitive documents, the people familiar with the situation said in interviews before Nauta’s name became public. But as investigators gathered more evidence, they questioned him a second time and he told a starkly different story — that Trump instructed him to move the boxes, these people said.

But those reports came at a time when DOJ was still trying to get more testimony from Nauta.

Prosecutors have indicated they are skeptical of an initial account Mr. Nauta gave investigators about moving documents stored at Mar-a-Lago and are using the specter of charges against him for misleading investigators to persuade him to sit again for questioning, according to two people briefed on the matter.

So, particularly given that a grand jury appearance would have been in — and so would be charged — in DC, it’s not really clear whether Nauta did correct his story before the grand jury. If he didn’t, Jack Smith could prosecute Nauta individually on a perjury charge that might go to trial within months, not the year the Espionage Act trial is expected to take.

Whether or not he cleaned up his testimony, on June 21, Nauta appeared before the grand jury.

Having locked that testimony in, on June 22 prosecutors asked Trump Organization — probably Alan Garten, from whom discovery has been deficient in past investigations — for surveillance footage.

DOJ COUNSEL has advised me that on or about June 22, 2022, counsel for the Trump Organization, a group of business entities associated with FPOTUS, confirmed that the Trump Organization maintains security cameras in the vicinity of the STORAGE ROOM and that on June 24, 2022, counsel for the Trump Organization agreed to accept service of a grand jury subpoena for footage from those cameras.

Shortly after that, per reporting on some of the last grand jury testimony banked in DC before DOJ took steps to charge the Espionage charges in Florida, Nauta called Chief of Operations for Trump Organization, Matthew Calamari Sr.

To resolve the issue about the gaps in the surveillance footage, the special counsel last week subpoenaed Matthew Calamari Sr, the Trump Organization’s security chief who became its chief operating officer, and his son Matthew Calamari Jr, the director of corporate security.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request, one of the people said – initially a point of confusion for the justice department, which appears to have thought the text was to Calamari Jr.

Then, less than two weeks later, on July 6, Trump Organization provided DOJ with surveillance footage showing Nauta moving a great many boxes out of the storage room, and moving fewer than half of them back in before Evan Corcoran searched them. That’s pretty damning stuff! It provided some of the most compelling evidence in the affidavit justifying a search on the former President’s beach resort.

DOJ only got two months of footage, not the five they had asked for (which would have covered the tail end of the earlier sort of boxes). That’s unsurprising: even normal businesses only retain such footage for a limited period of time.

But in addition to obtaining fewer months than they had requested, the footage Trump Org turned over reportedly had other gaps, gaps that have not yet been charged or even mentioned, at least in unsealed form, in any official DOJ filing.

What’s unclear is whether that May 22 footage, showing that Nauta spent half an hour in the storage closet only to come out with a single box, was originally one of those surveillance gaps or not.