At one point there were 85 to 95 boxes of documents in the storage room
Walt Nauta was called “Witness 5” in the affidavit, meaning in addition to the enumerated lawyers and persons there are at least four other people described in the affidavit; now he’s alleged co-conspirator 1
On first request, DOJ only obtained two months worth of surveillance footage showing what was being moved in and out of the anteroom to the storage room
I’m really not surprised that former Bill Barr flunky Seth DuCharme is trying to graymail the government in the SDNY case of his client, Charles McGonigal. That’s a legal strategy whereby you demand so many highly classified documents for trial that the government is faced with the prospect of dismissing a criminal case rather than going to trial.
As a reminder, former Special Assistant in Charge of Counterintelligence in FBI’s NY’s Field Office McGonigal was charged in two indictments: A DC indictment charging him for hiding some meetings with and payments from an Albanian associate while still at the FBI, and a SDNY indictment charging him and Sergey Shestakov with money laundering and conspiring to violate the sanctions imposed on Oleg Deripaska after McGonigal left theFBI.
Not so the SDNY case. That case has been headed for CIPA from the start.
But something funky is going on with the CIPA process, as if there’s a CIPA filter team backstopping the prosecution team.
SDNY must have planned this from the start, and it is driving McGonigal’s team nuts.
It started on February 8, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.
Often, these letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case last week, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.
Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.
The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.
In response, on March 1, McGonigal’s lawyers submitted their own CIPA letter, laying out Sections 1 through 8. Along the way, it described how important Section 4 is and informed Judge
Section 4, which is in many ways the heart of CIPA, governs the methods of disclosure of classified information by the government to the defendant, pursuant to its constitutional and statutory obligations. See 18 U.S.C. § App. III § 4. Section 4 is implicated when the head of the department with control over the matter, and after personal consideration of the matter, invokes the states-secrets privilege to withhold classified information from the defendant in the interests of national security. Doe v. C.I.A., No. 05 CIV. 7939 LTSFM, 2007 WL 30099, at *1 (S.D.N.Y. Jan. 4, 2007); see also United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008). The states-secrets privilege however is not absolute: it “must—under some circumstances—give way . . . to a criminal defendant’s right to present a meaningful defense.” United States v. Abu-Jihaad, 630 F.3d 102, 141 (2d Cir. 2010). (internal quotations omitted).
Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate. [my emphasis]
This effectively flipped CIPA on its head, alerting Judge Jennifer Rearden they planned to tell the government what classified discovery should look like, not vice versa.
On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY wrote to note how McGonigal had flipped on its head.
Although much of McGonigal’s general discourse on CIPA is unobjectionable, the Government believes several points require correction or supplementation.
The whole thing is worth reading: for the description that the US Attorney’s Manual does not convey rights, for the observation that McGonigal had conflated the prosecution team and the Intelligence Community, for the challenge to McGonigal’s claim that the IC must have information about “a recently retired FBI intelligence official being corrupted by a Russian oligarch” (there’s even a long footnote distinguishing the Scooter Libby case, in both Circuit and victim, from this), and for McGonigal’s claim to do in an ex parte Section 2 hearing what normally comes later, in Section 5.
But notably SDNY’s response letter describes that while DOJ must comply with Brady, it doesn’t have to tell a defendant how it is doing so.
Second, although legal rules such as Brady and Federal Rule of Criminal Procedure 16 do obligate the Government to disclose particular information, they do not oblige the Government to explain to defendants how they have satisfied that obligation.
The next day, McGonigal had his CIPA hearing.
On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.
At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.
In saying they didn’t anticipate making a filing pursuant to Section 4, they were undercutting the premise McGonigal’s team had made back on March 1.
Given the letter McGonigal submitted last Friday, June 23, such an approach seems to be driving McGonigal nuts. It describes that it is puzzling and concerning and hard to imagine that there isn’t more.
With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.
It explains that both McGonigal and Seth DuCharme can be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years!
Not mishandling classified information.
And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets.
Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.
Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.
DuCharme then invoked the Nejad case where, under his former boss’ tenure, a sanctions case blew up because DOJ failed to meet its discovery obligations.
Given DuCharme’s helpful offer to meet in a secure hearing or to submit a more highly classified brief, he’s clearly got something specific in mind.
In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.
[snip]
To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.
To be sure: I’m not sure which side is right here, and CIPA always sucks for defendants.
But both sides are dancing around something awfully interesting, as if the circumstances that led to McGonigal’s compromise are different — potentially even significantly worse — than anyone is letting on.
McGonigal’s team repeatedly invoked State Secrets. And DuCharme was the Barr flunky who ran interference so that Rudy Giuliani (whose close associate implicated McGonigal) could seek out dirt from known Russian agents without getting arrested. So the background here could indeed be quite interesting.
Thus far, at least, SDNY is refusing to play that game.
May 8: SDNY writes to confirm it has declassified the materials described at March 6 CIPA hearing and does not believe it will need a CIPA 4 hearing
June 23: DuChare writes again saying it’s not possible for SDNY to have fulfilled its obligations
https://www.emptywheel.net/wp-content/uploads/2023/02/Deripaska_Oleg_September_2020_cropped.jpg13431024emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-29 14:14:502023-06-29 14:26:25Seth DuCharme Really, Really Wants to Graymail Charles McGonigal’s Path to Freedom
According to the motion to seal filed in his case, DOJ warned Walt Nauta he was a target of the stolen documents case on May 24, 34 days ago.
After he and his boss were indicted on June 8, he was issued a judicial summons, alerting him that his prosecution would take place in the Southern District of Florida, which has strict rules requiring a local attorney to appear and remain counsel, and scheduling a June 13 arraignment. That was 19 days ago.
But Nauta was not arraigned on June 13, as Trump was, because he had not yet arranged for local counsel.
That delay was totally excusable. There aren’t that many people in SDFL who are qualified for a case like this in the first place. And those that are may balk at the pre-existing conflict structure here, with Stan Woodward paid by Trump’s PAC, which itself is under criminal investigation. And those aren’t the only ethical concerns I would have about taking on this case.
But today’s delay is far less defensible. Particularly given the theater Woodward created surrounding the event.
Woodward made much of the fact that poor Walt Nauta was stuck on the tarmack yesterday at Newark Airport with flight delays and cancellations due to the same bad weather that I was planning around last Saturday when I was in New York state.
That was all a distraction. Nauta’s presence wasn’t required at the arraignment. Magistrate Judge Jonathan Goodman excused Nauta’s attendance at today’s hearing during Trump’s arraignment.
You only tell that story in a court room to get credulous journalists — like CNN — to report that as the primary reason for the delay. It had no legal import. (Note: Most initial Twitter coverage parroted Woodward’s weather excuse, but most outlets fixed that on publication of their stories.)
The rain had nothing to do with today’s delay. Nauta’s failure, thus far, to retain a Florida attorney was the only reason for the delay.
And there’s certainly reason to wonder whether that delay is intentional. Marc Caputo’s report on Nauta’s search for a Florida lawyer quotes someone “familiar with the discussions” stating that the trial won’t happen before the election, so (or perhaps, “because”) “there’s no rush to” find a lawyer.
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.
“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?’”
Speaking to the Messenger before Tuesday’s arraignment hearing got delayed, the source said Nauta would likely have a lawyer within the coming weeks.
So now Nauta is not scheduled to be arraigned until July 6 (his personal appearance has again been excused), a full four weeks after his indictment, and the same day on which Judge Cannon has ordered the defense to weigh in on proposed schedule for the trial.
This is, in my opinion, why Jay Bratt proposed a schedule showing that it is possible to try this case such that it would be done — even assuming three weeks of jury selection and three weeks of trial — before the first primary. Any delay past that schedule comes from Trump. And his alleged co-conspirator, Walt Nauta, whose job is to move boxes for the boss.
What is going to happen is that Trump will cause enough of a delay to push this into the primary season, and once that primary season trial happens, he will wail about how the trial interferes with his right to be elected President on false claims again, so he can steal more classified documents.
And his trusty valet, Walt Nauta, has just bought 23 days of delay for his arraignment to help ensure that happens. He’s moving the boxes again to help his boss obstruct justice.
Update: WSJ has since updated a story that included only the storm excuse to note that the real reason for the delay was that Nauta has not yet retained a lawyer.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-27 11:24:482023-06-27 14:45:09Moving the Boxes: Trump’s Valet and Alleged Co-Conspirator Buys the Boss a Three-Week Delay in His Trial
Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.
Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.
Goodman ordered the government to provide defendants with a list of witnesses this covered.
DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.
Trump and Nauta objected to that part of it.
Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.
I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.
After that, a media coalition opposed the government motion, asking that any list be filed unsealed.
Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.
PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]
As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.
Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.
Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.
So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.
The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:
Schedule a CIPA 2 conference to talk about the classified matters at issue
Appoint a Court Information Security Officer
In her order, Cannon cited the defendants’ lack off opposition.
The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.
Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,
The Court expresses no view on the other matters addressed in the Government’s Motion.
But those matters are dictated by law.
At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.
Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.
There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.
I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.
The Motion to Implement Special Conditions is basically a bid to get a list of 84 witnesses submitted, via sealed filing, to docket, and so subject to Judge Aileen Cannon’s discipline. Under the order issued by Magistrate Judge Jonathan Goodman, both Trump and Walt Nauta will be prohibited from speaking about the facts of the case with any of the 84 witnesses — a great many of whom are Trump employees — except through counsel.
Even at the arraignment, Todd Blanche balked at this condition, which Goodman imposed without DOJ requesting it. In particular, I think Blanche wants people to be able to discuss the case without counsel present so long as counsel has advised about that.
But per the filing, defense attorneys may yet object to the condition itself.
2 The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have authorized government counsel to represent the following: “Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.” Counsel for defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.
I would love to see briefing on this, because I think Blanche has specific concerns about preserving the nesting gatekeeping that has existed from the start of this. But this condition, if upheld, will also stymie Trump’s efforts to fundraise by lying about this case.
The other request is a motion to delay the trial — which Aileen Cannon initially scheduled for August — until December, largely for CIPA to play out. This is totally normal, and given Cannon’s past history in criminal cases — which Kyle Cheney reviewed here — there’s no reason to expect she would object (indeed, legally, CIPA requires her to work through this process).
The proposed schedule would envision a trial before the first primary, but it triggers everything to Trump (and Nauta’s) responsiveness. I suspect it was crafted to undermine any claims from Trump that DOJ is responsible for a trial as people are voting, but some of these deadlines are really aggressive.
Most interesting, though, is DOJ’s treatment of clearances. According to Jay Bratt’s declaration, once defense attorneys get their SF-86 filing in, the Litigation Security Group has committed to turning around their initial clearances unbelievably quickly: two days. And it has likewise committed to sharing SIGINT documents based just off that interim clearance.
To be granted an interim security clearance, defense counsel must submit a Standard Form 86 – Questionnaire for National Security (“SF-86”) and supporting documentation. To date, not all of the defense counsel have submitted their SF-86s. Once an SF-86 and supporting documentation are submitted, absent complicating circumstances, an interim clearance may be granted within a matter of days. In this case, LSG has committed to reaching an eligibility determination within 24-48 hours of the completed submission. Once defense counsel are granted interim security clearances, the government will be able to provide the vast majority of classified discovery, consisting of documents marked CONFIDENTIAL, SECRET, and TOP SECRET, including documents within the following Sensitive Compartmented Information Compartments: SI, SI-G, and TK. [my emphasis]
You can see from the list of charged documents, that would encompass many of the charged documents (some of the redacted classifications are probably SI-G).
But there are others that require further read-in.
However, interim security clearances are not sufficient for the government to provide in classified discovery a small number of documents-including some documents whose unauthorized retention is charged in the indictment-that contain restricted compartments for which a final security clearance and additional read-ins are required. LSG estimates that final clearances may be granted within 45 to 60 days of submission of the SF-86 and related documentation, depending upon the content of the applicant’s SF-86. The additional read-ins can be conducted promptly upon access approval. [my emphasis]
Among the unredacted classification marks not included among those Bratt listed are FR (Formerly Restricted, a nuclear designation under the Atomic Energy Act and one Presidents can’t declassify alone) and HCS-P (HUMINT product). The bolded language suggests that DOJ is planning to share all classified documents Trump stole; based on the redaction marks in the May 11 subpoena, I would be unsurprised if there were HCS-C, HUMINT collection, documents included as well.
This is an incredibly aggressive approach. As I’ve said, I think DOJ would prefer to find a way to get Trump to plead out, however unlikely that would be. The sooner they share documents with Trump and Nauta’s lawyers, the sooner they might be in a position to persuade Trump how bad this will look if he goes to trial.
But note the two caveats: At least one of three known defense attorneys has not yet submitted his SF-86, the list of foreign contacts needed to obtain clearance. At least one of them — Chris Kise, who worked for Venezuela’s government — may not be eligible.
So one other underlying context to this is that until Trump can find cleared attorneys, he may be responsible for delays that would result in a trial during the primary season.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-7.53.48-PM.png832954emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-24 06:44:402023-06-24 07:03:29The Approach to Classification in Trump’s Stolen Document Case
DOJ has turned over the first tranche of unclassified discovery in the Trump stolen documents case. It includes recordings, plural, of interviews Trump did, complete copies of the surveillance footage DOJ obtained, and pictures even beyond those included in the indictment.
The second part includes a reproduction of “key” documents and photographs included in Production 1 that are referenced in the Indictment and others determined by the government to be pertinent to the case. The third part consists of complete copies of closed-circuit television (CCTV) footage obtained by the government in its investigation. To facilitate review, the government also identified and separately produced for the defense “key” excerpts from the CCTV footage, including excerpts referenced in the Indictment or otherwise determined by the government to be pertinent to the case.
As I’ve suggested, DOJ would prefer to get Trump to plead out. It’s possible there is discovery that will make him decide going to trial will be more damaging for him than pleading out.
The discovery memo also reveals that Walt Nauta testified to the grand jury on June 21 of last year.
The June 21, 2022 grand jury testimony of Defendant Nauta.
This was days before DOJ subpoenaed surveillance footage on June 24. That puts the alleged conflict between Jay Bratt and Nauta’s attorney, Stan Woodward, in different light.
Nauta was not charged with perjury for that appearance, suggesting he already fixed his testimony before DOJ obtained the surveillance footage.
But not before his alleged lies in May helped Trump abscond to Bedminster with more classified documents.
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Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.
This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.
In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.
It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.
Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.
So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.
https://www.emptywheel.net/wp-content/uploads/2022/09/Cannon.webp509916emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-15 15:32:322023-06-15 15:32:32Aileen Cannon Did Something Normal
According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.
That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.
A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.
Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.
From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.
By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.
I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).
Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.
But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.
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.”
Andrew Kaczynski put together all the instances of it.
Donald Trump has repeatedly called for lengthy jail sentences for those who he claimed mishandled classified information. My report tonight on @OutFrontCNN, pic.twitter.com/D4P3EGhzj9
In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.
Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.
23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:
As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.
The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.
Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.
But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.
And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.
Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.
To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.
34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:
TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.
WRITER: Wow.
TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.
STAFFER: Mm.
TRUMP: Wait a minute, let’s see here.
STAFFER: [Laughter] Yeah.
TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.
STAFFER: Mm-hm.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: Secret. This is secret information. Look, look at this. You attack, and—
Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.
This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.
Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.
In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.
Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.
Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.
I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.
But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.
I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.
But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.
Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-10 08:59:282023-06-10 12:09:17Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information
I’ve become convinced that what I will call the Mar-a-Lago indictment — because I doubt this will be the only stolen documents one — is a tactical nuke: A massive tool, but simply a tactical one.
As I’ve laid out, it charges 31 counts of Espionage Act violations, each carrying a 10-year sentence and most sure to get enhancements for how sensitive the stolen documents are, as well as seven obstruction-related charges, four of which carry 20-year sentences. The obstruction-related charges would group at sentencing (meaning they’d really carry 20 year sentence total), but Espionage Act charges often don’t and could draw consecutive sentences: meaning Trump could be facing a max sentence of 330 years. Walt Nauta is really facing 20 years max — though probably around three or four years.
Obviously, Trump won’t serve a 330 year sentence, not least because Trump is mortal, already 76, and has eaten far too many burgers in his life.
For his part, Nauta should look on the bright side! He has not, yet, been charged with 18 USC 793(g), conspiring with Trump to hoard all those classified documents, though the overt acts in count 32, the conspiracy to obstruct count, would certainly fulfill the elements of offense of a conspiracy to hoard classified documents. If Nauta were to be charged under 793(g), he too would be facing a veritable life sentence, all for helping his boss steal the nation’s secrets. And for Nauta, who is in his 40s and healthy enough to lug dozens of boxes around Trump’s beach resort, that life sentence would last a lot longer than it would for Trump.
And that’s something to help understand how this is tactical.
I first started thinking that might be true when I saw Jack Smith’s statement.
He emphasized:
A grand jury in Florida voted out the indictment
The gravity of the crimes
The talent and ethics of his prosecutors
That Trump and Walt Nauta are presumed innocent
He will seek a Speedy Trial
A Florida jury will hear this case
The dedication of FBI Agents
He packed a lot in fewer than three minutes, but the thing that surprised me was his promise for a Speedy Trial. He effectively said he wants to try this case, charging 31 counts of the Espionage Act, within 70 days.
That means the trial would start around August 20, and last — per one of the filings in the docket — 21 days, through mid-September. While all the other GOP candidates were on a debate stage, Trump would be in South Florida, watching as his closest aides described how he venally refused to give boxes and boxes of the nation’s secrets back.
There’s not a chance in hell that will happen, certainly not for Trump. Even if Trump already had at least three cleared attorneys with experience defending Espionage Act cases, that wouldn’t happen, because the CIPA process for this case, the fight over what classified evidence would be available and how it would be presented at trial, would last at least six months. And as of yesterday, he has just one lawyer on this case, Todd Blanche, who is also defending Trump in the New York State case.
In fact, even though I understand how CIPA works, I’m not convinced this case can be tried. Before the indictment was unsealed, I imagined that Smith would charge about six documents, classified Secret, each of which demonstrated that Trump was exploiting the nation’s secrets, and just nod to the sensitivity of all the more sensitive secrets he was storing in an unlocked bathroom. Boy howdy was I wrong! Peter Strzok does the math to show that DOJ actually charged all but 13 of the Top Secret documents obtained either with the May 11, 2022 subpoena or in the August 8, 2022 search. And these are not just Top Secret. Of those documents whose compartments themselves are not classified, the documents include satellite intelligence, human intelligence, nuclear intelligence. Brandon Van Grack, one of the few other people who has been interested in the CIPA aspect of this case, seemed to struggle to describe the documents charged in this case.
One of the only ways I can imagine taking this to trial easily would be if the government had simply burned all the collection involved (including on the two Five Eyes documents), meaning presenting the documents he stole at trial would consist of one after another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho. That letter described how, after discovering that Pho had compromised a bunch of NSA programs, the NSA had had to abandon much of it.
Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.
For the moment, then, consider the possibility that this indictment is, as far as it involves Trump, simply a messaging document to alert Republicans who can still be reasoned with that Trump left the most sensitive secrets on a stage at Mar-a-Lago while weddings were going on and as a result, the IC simply shut down all the programs he had compromised.
My comment about the difficulty of taking this to trial is not, however, true for Nauta. Because he wasn’t (yet) charged with conspiring to steal these secrets, you could make it all the way to sentencing without having to expose the secrets Trump destroyed.
So let’s talk about Nauta.
As the indictment describes, he was interviewed on May 26, 2022. As ¶53 through ¶62 show, that interview happened in the middle of the scheme to fool Evan Corcoran into submitting a false verification that Trump had returned everything (Corcoran, in turn, fooled Christina Bobb into signing it). Nauta moved boxes on the following days before and after his first interview:
May 22: One box out of storage
May 24: 3 boxes out of storage
May 26: Interview
May 30: 50 boxes out of storage
June 1: 11 boxes out of storage
June 2: 30 boxes from Trump’s residence to storage
As the indictment describes, Nauta moved 64 boxes out of storage and 30 back. This had the effect of ensuring that at least 34 boxes of classified documents were not reviewed by Corcoran.
There’s also this paragraph, one of the most important in the indictment:
72. Earlier that same day, 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.
That paragraph makes it clear that some of those 34 boxes went to Bedminster, never to be seen again. I’ll count later and figure how many it was.
So in the middle of this scheme to keep 34 boxes of classified documents away from Corcoran, Nauta was interviewed by the FBI and asked about the last time Trump personally asked Nauta to sort through boxes of classified documents so he could hoard some. Several things in this indictment establish that Nauta knew this involved classified documents, including this picture from when Nauta arrived in the supposedly locked storage room to find one of the boxes had been knocked over by who knows what force and spilled open.
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much
When whatever force was in the storage room to knock over that box, they were labeled with their contents, because Nauta had sorted and labeled them.
With all that in mind, go back to Count 38 and read about the answers Nauta gave in an interview in the middle of a second effort to sort classified documents so some of them could be taken to Bedminster, never to be seen again. He was asked about the first time that happened. And days after he had moved boxes to Trump’s residence again, he claimed he was unaware of bringing them to the suite in the first place.
Question: Does any – are you aware of any boxes being brought to his home – his suite?
Answer: No.
The alleged lies go on — but they were enormous.
With all that in mind, I’d like to return to a story that was floating in the press until a few weeks ago about the second time Nauta was interviewed. As parroted by the NYT on May 4 (and not for the first time), DOJ made a mistake last fall because, when Nauta refused to cooperate, they didn’t choose to immunize him. They were simply helpless to get the information Nauta could share via any other means!
Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.
Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.
The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.
The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.
More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.
The story was always obvious bullshit. As I noted on May 23,
If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).
Since Nauta got a target letter, the story has dramatically changed. It changed into a story in which Jay Bratt said something that Stan Woodward — the guy paid by Trump’s PAC whose legal advice to Nauta has left him facing obstruction charges — said something that seemed like coercion to Woodward.
At issue is an incident that took place last year, around November, when prosecutors were trying to gain the cooperation of valet Walt Nauta, who has been under scrutiny because prosecutors suspected he helped the former president conceal classified documents that had been subpoenaed.
Nauta had already spoken to prosecutors in the investigation when they called his lawyer Stanley Woodward and summoned him to a meeting at justice department headquarters for an urgent matter that they were reluctant to discuss over the phone, the letter said.
When Woodward arrived at the conference room, he was seated across from several prosecutors working on the investigation, including the chief of the counterintelligence section, Jay Bratt, who explained that they wanted Nauta to cooperate with the government against Trump, the letter said.
Nauta should cooperate with the government because he had given potentially conflicting testimony that could result in a false statements charge, the prosecutors said according to the letter. Woodward is said to have demurred, disputing that Nauta had made false statements.
Bratt then turned to Woodward and remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing”, before noting that he knew Woodward had submitted an application to be a judge at the superior court in Washington DC that was currently pending, the letter said.
The allegation, in essence, is that Bratt suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump. The letter was filed after Trump’s lawyers submitted a motion on Monday seeking grand jury transcripts, because of what they viewed as potential misconduct.
Significantly, that story changed on June 5, the same day as Trump’s lawyers, at least two of whom have subsequently left the team, met with Jack Smith.
When Nauta wasn’t going to get charged, Jay Bratt’s decision to play hardball was stupid, a mistake. A missed opportunity to get cooperation. When he was going to get charged, Bratt’s efforts to help Nauta avoid 20 or 330 year legal exposure became an ethical issue.
When Smith noted the integrity of his investigative team yesterday, he was signaling that he thinks this story is bullshit.
He may not be the only one, either. Jim Trusty made a really big deal about this new story on Thursday, when he had seen the summons but not the indictment. After he saw the indictment, he quit.
Which brings me to one other detail that I can’t get out of my head, given the uncharged examples of Trump disseminating classified information at Bedminster and the two instances when classified documents went to New Jersey never to be seen again.
One other reason Jack Smith gave to unseal the indictment was so he could share it to, among other entities, “sealed entities” and the grand jury in DC.
To the United States District Court of the District of Columbia, under seal, in relation to grand jury and sealed matters in that jurisdiction.
Among those sealed entities are the complaint that Woodward belatedly filed, after learning that Nauta got a target letter. Jack Smith needs to show Chief Judge James Boasberg that when Bratt strongly encouraged Woodward to advise his client to cooperate last November, DOJ already had really damning information showing he conspired to hoard these documents.
But the sealed entities aren’t the only entity that needs to see this indictment. So does a grand jury.
The investigation didn’t move, entirely, to Florida. Part of it was presented to a grand jury in Florida. But there are other parts that remain in DC, and those parts that remain in DC had to be told this indictment was coming.
This indictment is, in very significant part, a renewed invitation to Walt Nauta to cooperate in an ongoing grand jury investigation into what happens to documents when they go to Bedminster and disappear forever.
A very persuasive invitation.
Update: Fixed Stan Woodward’s last name.
Update: NYT has now done a piece covering these issues. They do not mention that just weeks ago, they were telling another story about this, fail to note that Trump routinely claims to believe things that he clearly does not, and treats the allegation itself as a set of “facts” that Trump got wrong, rather than an allegation only belatedly made months after the incident.
Around the same time, according to two people familiar with the matter, Mr. Woodward had a meeting about Mr. Nauta with prosecutors in the documents investigation, including Jay Bratt, from the Justice Department’s national security division, who was running the inquiry at the time.
During the meeting, the people said, Mr. Bratt tried to persuade Mr. Woodward to get Mr. Nauta to cooperate and then brought up the fact that he knew Mr. Woodward had a pending application to be a judge in the superior court in Washington. Mr. Trump’s lawyers and advisers believe that Mr. Bratt was effectively trying to cajole, even threaten, Mr. Woodward to counsel his client to help the government — an allegation that Mr. Trump later made himself on social media, albeit with his facts slightly wrong.
Trump’s own press secretary couldn’t have written a more favorable spin.
Update: I forgot I promised to go back and try to figure out how many boxes went to Bedminster to disappear forever. We can’t know because the universe of boxes was in flux throughout this process. But here’s what we do know:
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-10 05:16:492023-06-11 06:41:57The Mar-a-Lago Indictment Is a Tactical Nuke
There’s a detail that may provide important context to new reporting from CNN and NYT about Jack Smith’s pursuit of more information about the surveillance video obtained from Mar-a-Lago. Both pieces report that Smith recently obtained the testimony of Mathew Calamari Jr., the head of security for Trump Org , and Sr., the Chief Operating Officer for Trump’s company (the latter of whom was included in Alvin Bragg’s investigation of the company).
Both outlets describe how that testimony is linked to an investigation into Walt Nauta, whom (per NYT) DOJ chose to investigate rather than seek further cooperation after he gave incomplete testimony last summer and fall. Both describe those subpoenas in the context of a larger effort, absent cooperation from Nauta, to understand the surveillance footage obtained in response to a June 24, 2022 subpoena. From NYT:
[P]rosecutors appear to be trying to fill in some gaps in their knowledge about the movement of the boxes, created in part by their handling of another potentially key witness, Mr. Trump’s valet, Walt Nauta. Prosecutors believe Mr. Nauta has failed to provide them with a full and accurate account of his role in any movement of boxes containing the classified documents.
[snip]
Prosecutors have also issued several subpoenas to Mr. Trump’s company, the Trump Organization, seeking additional surveillance footage from Mar-a-Lago, his residence and private club in Florida, people with knowledge of the matter said. While the footage could shed light on the movement of the boxes, prosecutors have questioned a number of witnesses about gaps in the footage, one of the people said.
But hoping to understand why some of the footage from the storage camera appears to be missing or unavailable — and whether that was a technological issue or something else — the prosecutors subpoenaed the software company that handles all of the surveillance footage for the Trump Organization, including at Mar-a-Lago.
Remember that Trump originally claimed he was subpoenaed on June 22, only to have Beryl Howell correct that claim. Such inconsistencies — such as whether Jay Bratt sent Evan Corcoran a note asking him to put a lock on the storage room, or informing it that it did not comply with CFR requirements for storing classified materials — have often reflected a stupid Trump cover story.
Among the things under investigation, per CNN, is a text message Nauta sent Calamari Sr. after DOJ first subpoenaed surveillance footage from Trump Organization.
The Calamaris are among several witnesses expected to testify in Smith’s investigation on Thursday, sources said. Prosecutors have previously brought in lower-level Trump employees for questioning about the surveillance footage, including how it may have been handled in response to the subpoena for it and if it could have been tampered with, two sources told CNN this week.
Investigators also have previously asked about a text message from Nauta to Calamari Sr. and subsequent conversations about the surveillance footage, according to two of the sources. The Justice Department questioned Nauta months ago about the handling of the boxes, and he told the FBI about being directed by Trump, CNN previously reported.
[Update] The Guardian reports that Nauta asked Calamari Sr. to call him about the DOJ subpoena.
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.
DOJ likely would never have learned of this text message if Nauta had fully cooperated last summer. But they learned about it, and partly as a result, men who know Trump’s most cherished secrets had to testify before a grand jury.
Trump was at his Irish property this week, tentatively scheduled to stay overnight last night, but he left Ireland yesterday, around 12:30 ET, falsely claiming he was doing so to testify in his rape trial. Learning details of the testimony from the Calamaris is a more likely explanation than the rape trial, but with as many investigations as there are into Trump, it could be anything.
One thing coverage of the stolen documents investigation doesn’t emphasize enough, though, is that 18 USC 793 has a conspiracy clause. Anyone — like Nauta, and potentially even the Calamaris — who conspires with someone else to hoard classified documents is exposed to the same punishment — ten years per document — as the guy refusing to give those documents back.
Plopped in the middle of the NYT story, with little explanation, is a reference to the Trump Org’s ties to the Saudi LIV golf tournament.
It is unclear what bearing Mr. Trump’s relationship with LIV Golf has on the broader investigation, but it suggests that the prosecutors are examining certain elements of Mr. Trump’s family business.
Back to inconsistencies between the DOJ and Trump story: Another discrepancy in the stories DOJ and Trump have told is whether or not Trump greeted Jay Bratt on June 3 at Mar-a-Lago. But no one contests that Trump went from there — that very same day! — to Bedminster, where he was hosting the Saudis, who not only are paying him an undisclosed amount for the golf tournaments, but who have funded a project in Oman and gave Trump’s son-in-law $2 billion to mismanage. When investigators directed by Tim Parlatore searched Bedminster for documents last year, they found none.
When I think about the way Trump went from that subpoena response stunt to Bedminster, I can’t help but think of the way the Biden Administration was blindsided by Saudi involvement in China’s effort to normalize relations between the Kingdom and Iran. That’s the kind of surprise that might reflect some surveillance had gone dark.
Here’s something to remember about the video, though. DOJ asked for over five months of surveillance footage, starting on January 10, 2022.
The subpoena was served on counsel on June 24 2022 directed to the Custodian of Records for the Trump Organization, and sought:
Any and all surveillance records videos images, photographs, and/or CCTV from internal cameras located on ground floor (basement) [redacted second location] on the Mar-a-Lago property located at 1100 S Ocean Blvd. Palm Beach, FL 33480 from the time period of January 10, 2022 to present.
And DOJ seems to have asked for surveillance video from two locations: outside the storage room, and somewhere else. That second location might explain the redacted parts of the search warrant affidavit that provided explanations for why DOJ thought Trump might have documents stored in his residence or his office.
More importantly, the subpoena starts eight days before NARA took possession of 15 boxes of documents and covers over five months. That is, if Trump Org had fully complied (and not everyone keeps surveillance footage that long), DOJ would have surveillance footage covering at least two curation processes: the one in January that resulted in Trump only returning 15 boxes of documents, and the one in June, deciding which 38 documents to return and which to retain.
But absent gaps, that surveillance footage would also show something else: any other people, besides Walt Nauta and the maintenance guy who helped him move boxes, walking in and out of that storage room.
As both CNN and NYT report, there are gaps.
DOJ got enough information from those videos to know that, sometime after DOJ sent a subpoena on May 11, Nauta moved boxes out of the storage room. They may have video showing him moving the boxes back sometime after June 3. That’s what they used to get the August search warrant in the first place. But as noted, DOJ provided some reason to believe that documents might be found in Trump’s office or residence, which might reflect a second surveillance angle.
All of which leaves open the possibility that DOJ thinks something else may have happened during those surveillance footage gaps, other than Nauta walking in and out of the storage room.
https://www.emptywheel.net/wp-content/uploads/2022/08/Screen-Shot-2022-08-31-at-6.40.53-AM.png11481718emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-05-05 11:00:582023-05-05 17:46:10DOJ Subpoenaed Over Five Months of Mar-a-Lago Surveillance Video
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:
