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The Trump Hack Could Extend Far Beyond a Hack-and-Leak

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When news first broke that Donald Trump’s campaign says it has been hacked, I started drafting a post on applying the lessons of past ratfucks.

The alleged hack was first reported by Politico, which says some person using an AOL account reached out and shared documents, including the vetting materials pertaining to JD Vance and Marco Rubio.

On July 22, POLITICO began receiving emails from an anonymous account. Over the course of the past few weeks, the person — who used an AOL email account and identified themselves only as “Robert” — relayed what appeared to be internal communications from a senior Trump campaign official. A research dossier the campaign had apparently done on Trump’s running mate, Ohio Sen. JD Vance, which was dated Feb. 23, was included in the documents. The documents are authentic, according to two people familiar with them and granted anonymity to describe internal communications. One of the people described the dossier as a preliminary version of Vance’s vetting file.

The research dossier was a 271-page document based on publicly available information about Vance’s past record and statements, with some — such as his past criticisms of Trump — identified in the document as “POTENTIAL VULNERABILITIES.” The person also sent part of a research document about Florida Sen. Marco Rubio, who was also a finalist for the vice presidential nomination.

Trump’s bouncer-spox, Steven Cheung, claims the hack was done by Iran, citing a Microsoft report released Friday describing the compromise by Iran of the email account of a “former senior advisor,” which the IRGC then used to attempt to compromise a current high-level official.

Yet another Iranian group, this one connected with the Islamic Revolutionary Guard Corps, or IRGC, sent a spear phishing email in June to a high-ranking official on a presidential campaign from the compromised email account of a former senior advisor. The email contained a link that would direct traffic through a domain controlled by the group before routing to the website of the provided link. Within days of this activity, the same group unsuccessfully attempted to log into an account belonging to a former presidential candidate. We’ve since notified those targeted.

A pity for the Trump campaign that Cheung is a habitual liar, so we can’t trust anything he says, and Politico’s authentication appears to rely exclusively on word of mouth from those who have the documents, not digital authentication.

Still, it’s distinctly possible. The FBI certainly seems to believe the IRGC is trying to assassinate Trump.

The lessons I was going to propose in my draft post were the following:

  • Vice President Harris should eschew assigning her senior-most staff to exploiting these emails like Trump did in 2016.
  • But only after Trump, Don Jr, and Mike Pompeo apologize for their enthusiastic use of hacked emails in 2016.
  • The same 51 former spooks who warned that the Hunter Biden laptop had the earmarks of a foreign influence operation should write a similar letter here, emphasizing (as they did in their Hunter Biden letter) the import of resisting foreign efforts to influence a presidential election. Maybe Peter Strzok and Andy McCabe could join in. Chris Krebs, who already has weighed in validating the seriousness of the threat, but who was fired for telling the truth about the 2020 election, can join too. They should send it to Politico, which first reported this story, but CC Jim Jordan, who says even writing such a letter is an abuse of First Amendment protected free speech.
  • Donald Trump must provide all the affected servers to the FBI, stat.

It’s the last one that was going to be my punch line. Partly because of misleading (arguably inaccurate) Jim Comey testimony, and partly because a wide swath of people had an incentive to do Russia’s bidding, for eight years people, including many in Congress, have been suggesting that a hacking victim must give all the servers that were hacked to law enforcement — the actual servers, not forensic images — otherwise the FBI’s investigation would be suspect.

They were wrong on several counts. But they were loud and insistent.

Fine. Based on that precedent, Trump must hand over his campaign servers to the same FBI that has criminally investigated him, including his campaign finance shenanigans, immediately.

That’s what I was going to write when Politico’s Alex Isenstadt, who is not a journalist competent to report a hack-and-leak story, was the only one who had written this up.

But then WaPo wrote it up, with Trump-whisperer Josh Dawsey and horserace journo Isaac Arnsdorf bylined, but also Ellen Nakashima and Shane Harris, the latter two of whom are exceptional reporters for a story about hacking.

That story had two additional details that made me rethink the potential impact of this. First, it revealed that Trump didn’t tell the FBI about the hack.

People familiar with the matter said the campaign separately concluded earlier this summer its email system had been breached but did not disclose it publicly or to law enforcement. The people said some officials were told to take more protective measures on their email accounts. At the time, campaign officials communicated to others that they weren’t sure who hacked the emails.

It’s not even clear whether Trump got an outside contractor — and if so, if it was someone more competent than Rudy Giuliani, whom Trump once pitched as a cybersecurity expert — to help clean up this mess. It took Crowdstrike and the DNC over a month to attribute the Russian hack, but they never fully cleaned it up. And persistent attacks continued through the election. That is, even with a respected outside contractor, the Democrats were wasting energy on whack-a-mole defense efforts for the remainder of the election.

Against that background, WaPo’s description of what the persona shared becomes more alarming.

On Thursday, The Washington Post was also sent a 271-page document about Vance from a sender who called himself Robert and used an AOL email account. Dated Feb. 23 and labeled “privileged & confidential,” the document highlighted potential political vulnerabilities for the first-term senator. Two people familiar with the document confirmed it was authentic and was commissioned by the campaign from Brand Woodward, a law firm that represents a number of prominent Trump advisers in investigations by state and federal authorities.

The document drew from publicly available information, including past news reports and interviews with the senator. The campaign commissioned several reports of other candidates, too, the advisers said.

The sender would not speak on the telephone with a Post reporter but indicated they had access to additional information, including internal campaign emails and documents related to Trump’s court cases. [my emphasis]

First, Brand Woodward did the campaign’s vetting.

Stan Woodward represents, along with others, Walt Nauta, Kash Patel, and Peter Navarro in various Trump-related criminal investigations, as well as some seditionists. He’s a great fit for Trump insofar as he’s good at generating outrage over manufactured slights — though in front of regular judges, those complaints usually collapse. Multiple filings in the documents case suggest that Woodward has a tenuous relationship with digital technology.

The role of Stan Brand, Woodward’s partner, has been assiduously hidden, except insofar as he has made claims about cases to the press on-the-record without disclosing the tie to Woodward.

Now, WaPo has confirmed that the Microsoft description — of a former advisor pwned and using that person’s email account, an attempt to hack “a high-official” still on the campaign — pertained to the Trump campaign. Given that description, there’s no reason to believe that Woodward or Brand were affected.

But there’s nevertheless a problem with hiring Brand Woodward to do your candidate vetting. To be clear: Brand is absolutely qualified to do that kind of thing. He’s got a long record of doing so in congress. But even Trump appears to have concerns about major issues the vetting process missed, to say nothing of his donors.

Over the past two weeks, Mr. Trump has fielded complaints from donors about his running mate, JD Vance, as news coverage exploring Mr. Vance’s past statements unearthed — and then exhaustively critiqued — remarks including a lament that America was run by “childless cat ladies.”

Mr. Trump dismissed out of hand donors’ suggestions that he replace Mr. Vance on the ticket. But Mr. Trump privately asked his advisers whether they had known about Mr. Vance’s comments about childless women before Mr. Trump chose him.

There were better choices to vet candidates, but if Trump wants to let a thin team vet the surly troll he picked to be his running mate, that’s his own business.

My alarm about the news that Brand Woodward starts, however, by the way that the Trump campaign has muddled various functions, criminal and civil defense with campaign finance and, now, candidate vetting. It creates a legal morass, one that — if Trump loses this election — could lead to more legal trouble down the road.

Maybe that’s why Trump didn’t call the FBI.

But it also means that some people — most notably, Susie Wiles and Boris Epshteyn, along with Woodward and Brand — are playing multiple functions. Wiles is the one who decides who gets their criminal defense bills paid, she’s also the one who decides how to spend campaign cash, and she was a big backer of the JD pick.

When people play overlapping functions like that, it means that a hack targeted at them for one function — say, candidate vetting — may strike a gold mine of documents pertaining to another function — say, criminal defense.

WaPo’s reference to “documents related to Trump’s court cases” — Politico quoted the persona offering a “variety of documents from [Trump’s] legal and court documents to internal campaign discussions” — may ultimately pertain exclusively to Trump’s electoral court cases. If it does, those could be some of the most newsworthy out there, since Trump’s electoral court cases pose a direct threat to democracy.

But what if they don’t? What if these documents pertain to what those overlap people — people like Wiles or Epshteyn, and they’re only two of the most obvious –know about Trump’s criminal cases? What if they pertain to claims that witnesses have made to the FBI about where documents got moved or what was included in them? What if they pertain to the actual documents Trump stole, starting with the US strategic plan against Iran that Trump shared with Mark Meadows’ ghost writers?

Trump has not firewalled his campaign from a criminal case involving the most sensitive documents of the US government, meaning a well-executed hack targeted at his campaign may turn into an intelligence bonanza.

If Iran plans to make things difficult for Trump, the problems may extend well beyond what documents get leaked. As they did in 2016, this could mean that Trump wastes resources having to serially defend against hacking attempts via a range of different platforms. It could mean that Iran does what Russia did, hack key strategic models to optimize other kinds of fuckery later in the election. Because — unlike Russia — Iran is actively trying to kill Trump, not just defeat him, hacked documents may also facilitate efforts like those charged against Asif Merchant, manufacturing fake protests to create distractions to facilitate an assassination attempt.

The question of how to approach this news, if it is further confirmed, goes well beyond the question of whether to publish the documents allegedly stolen by Iran. In significant part because Trump refuses to maintain boundaries between his political life and his criminal life, hacks from Iran could create real damage to the United States beyond what they do to Trump’s campaign.

So by all means, let’s pause for a moment of schadenfreude. Let’s review all the things Trump said and did in 2016 and 2020 (including with the Hunter Biden laptop) that invite his opponents to fully exploit stolen documents this time.

But as you do that, consider that this ratfuck may be far more dangerous to the US than those targeting Hillary and Hunter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

 

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

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

But as described, none of them are charged.

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

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

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

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

Exhibit 3: Additional copies of 2021 spill of four boxes

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

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

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

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

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

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

Exhibit 10: Evidence photo of item 2

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

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

Exhibit 13: Showing where classified documents were found

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

Exhibit 15: Instructions for document handling for Special Master scan

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

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

Trump Motion to Dismiss

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

Exhibit 2: Version of search warrant return

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

Exhibit 4: 230605 documentation of scan process

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

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

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

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

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

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

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

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

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

Exhibit 16: 220830 documentation of evidence split

 

Aileen Cannon Blames Jack Smith That She Fucked Over Stan Woodward

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Aileen Cannon has frothed up the usual suspects with her latest order, in which she suggests that Jack Smith is being inconsistent about his approach to grand jury secrecy.

In closing, the Court deems it necessary to express concern over the Special Counsel’s treatment of certain sealed materials in this case. In two separate filings related to sealing, the Special Counsel stated, without qualification, that he had no objection to full unsealing of previously sealed docket entries related to allegations of prosecutorial misconduct [ECF Nos. 423, 464]. In light of that repeated representation, and in the absence of any defense objection, the Court unsealed those materials consistent with the general presumption in favor of public access [ECF No. 472 (unsealing ECF Nos. 101, 115–116, 118)]. Subsequently, in the course of adjudicating continuing redaction disputesleading to this Order, the Court inquired about those nowunsealed filings, which contain material as to which the Special Counsel has voiced (and continues to voice) objections to unsealing [ECF No. 267–268, 294, 350, 369, 511 (opposing public disclosure of potential witness names, ancillary names, and grand jury matters); see ECF Nos. 506, 533, 542]. 4 In response to those inquiries, counsel explained that the Special Counsel took the position on unsealing in order to publicly and transparently refute defense allegations of prosecutorial misconduct raised in pretrial motions [ECF No. 542 p. 67]. 5 Fair enough. But nowhere in that explanation is there any basis to conclude that the Special Counsel could not have defended the integrity of his Office while simultaneously preserving the witness-safety and Rule6(e) concerns he has repeatedly told the Court, and maintains to this day, are of serious consequence, and which the Court has endeavored with diligence to accommodate in its multiple Orders on sealing/redaction [e.g., ECF Nos. 295, 361, 438, 440, 474]. The Court is disappointed in these developments. The sealing and redaction rules should be applied consistently and fairly upon a sufficient factual and legal showing. And parties should not make requests that undermine any prior representations or positions except upon full disclosure to the Court and appropriate briefing.

3 In addition, subject to further unsealing as becomes necessary, this Order marks the resolution of the limited disclosure issues transferred to this Court by the U.S. District Court for the District of Columbia [ECF No. 512 (sealed)].

4 The Court also notes that the Superseding Indictment contains numerous quotes from grand jury testimony, the balance of which the Special Counsel continues to maintain require sealing under Rule 6(e) [ECF No. 85]. [links added]

Ultimately, this is a complaint from Aileen Cannon that she made Stan Woodward look bad.

This kerfuffle stems from two things.

First, Jack Smith overproduced discovery to Donald Trump and his co-defendants compared to normal defendants, providing most grand jury transcripts from the start, rather than in conjunction with and timed to select witnesses testifying. Under Jencks, he would normally not be required to turn that over until when witnesses testified, but instead, he provided a guy who has serially ginned up threats against witnesses means with which to do so from the start.

Second, Cannon has twice intervened out of course, reading reporting based on leaks and deciding it is her job to expose the underlying dispute.

In this case, it arises from an order she issued days after the superseding indictment, requiring both sides to submit details about a claim reported in the press but not yet raised by Stan Woodard that Jay Bratt had threatened Stan Woodward in an attempt to force Walt Nauta to flip on Donald Trump.

THIS MATTER comes before the Court upon news reports of allegations of potential misconduct related to the investigation of this case and related reports of a review by the United States District Court for the District of Columbia. The Court refers herein to reported allegations raised by Stanley E. Woodward, counsel for Waltine Nauta, against Jay I. Bratt, Counselor to the Special Prosecutor, concerning statements made by Mr. Bratt to Mr. Woodward regarding a judicial application submitted by Mr. Woodward. In service of the Court’s independent obligation to protect the integrity of this judicial proceeding, and to promote transparency in the Court’s oversight of this case, it is ORDERED AND ADJUDGED as follows:

1. On or before August 11, 2023, Counsel for Waltine Nauta shall file under seal with the Court a complete and current account of the accuracy, substance, and status of the reported allegations, and shall attach to the submission any pertinent written materials on the subject, including any materials submitted to the United States District Court for the District of Columbia.

2. Similarly, on or before the same date of August 11, 2023, the Special Counsel shall file under seal with the Court a complete and current report on the status of the referenced allegations, attaching any written materials on the subject in the possession or custody of the Special Counsel or the United States Department of Justice. [my emphasis]

In response to Judge Cannon’s sua sponte intervention, Smith submitted several filings — including almost 200 pages showing that after Trump got warned he was going to be charged, he ginned up a bunch of misconduct allegations, including the one that got shared with the press. Those filings show Trump abusing the legal process, not Smith abusing his prosecutorial position.

These are grand jury proceedings about the investigation, not grand jury testimony of witnesses (though it describes the circumstances of certain witness testimony, including Margo Martin and Kash Patel). This filings show that the public claims Trump associates were making didn’t match the substance of a second dispute that happened before James Boasberg last summer.

The other filings were similar attempts by Trump to make allegations of misconduct (in conjunction with motions to dismiss) that he didn’t have to back publicly, but also to expose grand jury testimony. Smith’s opposition to releasing those materials stemmed from a justified intent not to allow Trump to abuse Smith’s expansive discovery to engage in witness tampering.

Of course, the problem would never have happened if Aileen Cannon hadn’t done something inappropriate in the first place, deciding to chase Fox News allegations in a court of law.

Cannon’s complaint amounts to a complaint that her initial intervention did not provide Trump an opportunity to threaten witnesses.

This is not the first time a little transparency revealed what a hack Cannon is being. In closely related developments last year, for example, the government made it clear she already had notice of Stan Woodward’s potential conflicts when she delayed proceedings for a month pretending it was new.

Ultimately, by the time all this gets unsealed, we’ll be able to reconstruct how Cannon’s serial attempts to put a thumb on the scale actually had the effect of making Woodward (and Trump’s lawyers) look dishonest. It’ll take time to do that, of course, which is likely why Cannon is wailing now, before we can reconstruct it.

Right Wing Propaganda Fail: Julie Kelly’s Troubles with Ten and Two

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As I laid out in this post, Julie Kelly is an important right wing propagandist who has ginned up quite a lot of attention from accused fraudsters for her willingness to lie about Jan6ers and Donald Trump. Her propaganda may have given Aileen Cannon cover to delay trial for Trump’s alleged unlawful retention of National Defense Information, including a nuclear document.

I say she’s a propagandist willing to lie based on an extended discussion we had in 2021 about January 6ers charged with assaulting cops (at a minimum, 18 USC 111(a)). She reviewed my (incomplete) list, challenged a number of people on it — for example, people who had been charged with 18 USC 111 via complaint but charged with something else, like 18 USC 231, upon indictment. There were 112 people on the list. Nevertheless, Julie never retracted her false claim — a foundational one in Jan6 hagiography — that fewer than 100 Jan6ers had been charged with assaulting cops. Having been presented with proof she was wrong, she simply continued to tell the same lie, downplaying the alleged (and since then, adjudicated) violence of the Jan6ers she was claiming were peaceful protestors.

Because trolls keep pointing to her latest work, in which she accused the FBI of doctoring the initial photo released from the Mar-a-Lago search, I wanted to point out how Julie continues to struggle with numbers, this time the difference between ten and two, and as a result has badly deceived all those poor trolls.

She claims that Jay Bratt lied in his description of what the FBI found at Mar-a-Lago, in which he referred to the famous photo from the search, which Bratt specifically described as a photo of documents and classified cover sheets found in a container seized in Trump’s office.

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

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

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

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court. In fact, after being busted recently by defense attorneys for mishandling evidence in the case, Bratt had to fess up about how the cover sheets actually ended up on the documents.

Here is Bratt’s new version of the story, where he finally admits a critical detail that he failed to disclose in his August 2022 filing:

“[If] the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose.”

But before the official cover sheets were used as placeholder, agents apparently used them as props. FBI agents took it upon themselves to paperclip the sheets to documents—something evident given the uniform nature of how each cover sheet is clipped to each file in the photo—laid them on the floor, and snapped a picture for political posterity. [Italics Julie’s, bold emphasis mine]

Julie’s passage starts by quoting from Bratt’s description of the photo in his August 2022 declaration. The contents of the container in question are clearly identified in the picture as 2A — that is, the contents of box 2. In his declaration, Bratt specifically identifies that the box was recovered in the office. Until DOJ learned of the box of presidential schedules Chamberlain Harris had under her desk in various places, that was the only box known to be seized from the office (though some albums and loose documents were found as well).

Then, Julie nods to, but does not cite, Stan Woodward’s description of the appearance of slip sheets in boxes of unclassified documents when she describes Bratt as, “being busted recently by defense attorneys.” I quoted Woodward’s filing at length here.

She then quotes from Jay Bratt’s description of something other than that photo: of how, as the FBI searched individual boxes, the FBI inserted a replacement — sometimes a classified cover sheet, but after they ran out of those, a handwritten piece of paper — when it pulled the classified documents from the boxes. Here’s more of what Bratt said.

The filter team took care to ensure that no documents were moved from one box to another, but it was not focused on maintaining the sequence of documents within each box. If a box contained potentially privileged material and fell within the scope of the search warrant, the filter team seized the box for later closer review. If a box did not contain potentially privileged documents, the filter team provided the box to the investigative team for on-site review, and if the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized. The investigative team seized any box that was found to contain documents with classification markings or presidential records.

So Julie relies on (1) a description of a photo of the documents with classification markings removed from box 2 on August 8, 2022, (2) Woodward’s description of what boxes from which documents with classification markings have been removed currently look like, and then (3) Bratt’s description of the search process used in August 2022. From that, she declares that Bratt’s description of some contents of a single box doesn’t match his description of a process used to search boxes and therefore the evidence in the picture must have been doctored.

Already, poor Julie has a problem. First, Bratt’s descriptions are of different things. The August 2022 declaration describes what they found at Mar-a-Lago after pulling documents with classification markings from boxes. The recent response describes what the FBI did when pulling documents with classification markings from boxes.

Woodward, too, describes something different than what Bratt described in August 2022. In the filing that Julie doesn’t cite, Woodward describes what boxes from which documents with classification markings have already been removed currently look like. Again, there is a difference between what remains in boxes versus what got pulled from boxes.

Plus, Bratt’s description is consistent with the picture; Julie’s is not.

Bratt said that a subset of the documents did have cover-sheets — the bit that she italicizes. Julie simply asserts, as fact, that the FBI attached the seven cover sheets that appear in the picture (but for what she imagines is a doctored photo, did not attach cover sheets to the other documents in the picture). To match Bratt’s later description, all the documents with classification markings in the picture would have cover sheets, which also would have made a more damning photo. Julie doesn’t consider the possibility that the seven or so cover sheets in the picture which she describes to be attached to documents were among those documents that Bratt described that did have cover sheets. She doesn’t puzzle through why, if the FBI were trying to make things look as bad as possible, they didn’t put cover sheets on everything.

And to reiterate, this picture does not depict what Julie thinks she’s describing at all; what she’s describing is what got left after the classified documents were segregated from ones without classification markings. What the picture shows on the floor is only documents with classification markings.

It gets worse.

Poor Julie the propagandist states as fact that, “Classified cover sheets were not ‘recovered’ in the container.”

As I noted here, Stan Woodward bases his description of the troubling box with documents out of place as item 10. He describes, “Box A-15 is a box seized from the Storage Room and is identified by the FBI as Item 10.”

The inventory certified as part of the Special Master process back in September 2022 describes item 10 (identified as box A-15 in the warrant return) this way:

It is, as I noted, the box with the biggest number of classified documents in it, but they were classified at a lower level — Confidential and Secret.

The inventory describes nothing about cover sheets.

But that’s not the box in the picture!! That’s not the box Jay Bratt described back in August 2022!

The box in the picture is box 2, a leatherbound box found in the office.

Here’s how the uncontested description from the Special Master inventory describes that box, the one that Jay Bratt was actually talking about. [my red annotation]

The inventory describes that, in addition to 24 classified documents — 7 of them Top Secret, of which just five are reflected in cover sheets in the picture — there were also 43 empty classified folders.

And yet poor Julie states as fact that, “Classified cover sheets were not “recovered” in the container.” While folders and these cover sheets are different things, they serve to cover classified documents. There were 43 empty classified folders in box 2.

Remember: Tim Parlatore admitted that Trump retained at least one classified cover folder when he was trying to explain why his search team found one marked “Classified Evening Summary” in Trump’s bedroom. Is Julie calling Parlatore a liar now too?

In any case, Julie is talking about an entirely different box, one that the inventory doesn’t record as having any classified cover sheets in it. Based on a claim that item 10 (box A-15) didn’t have cover sheets, Julie stated as fact that item 2 didn’t either.

She simply made it up.

Based on the uncontested inventory, the FBI could have made that picture far more damning than they did, had they paper clipped cover sheets to “each” document with classification marks, as Julie claims they did. They could have put cover sheets on two more Top Secret documents for the picture and added cover sheets on up to 12 more Secret documents. They could have stacked up those 43 empty folders that once had documents in them, but no longer did on August 8, 2022. Instead, they took a picture showing that some of those documents had cover sheets and some did not, which (accurate or not) is precisely what Bratt described, apparently leaving out the 43 damning empty folders altogether.

Poor Julie took a description of a box found in the storage closet, treated it as a description of a box found somewhere else, and then simply never bothered to check what that box — the box Jay Bratt was actually referring to — actually contained.

Julie the propagandist suggests that if the picture were accurate — if there really were seven documents that still had cover sheets in the box that Jay Bratt was actually describing — then it would accurately support an argument that, “the former president is a criminal and threat to national security.” And wow, that may be a problem, conceding that that picture supported an argument that Trump was a national security threat! Because nothing Julie claims in her post describes this box. And her claims that the FBI made this picture as damning as possible is debunked when you look at the actual contents of the box (or even, the picture itself).

So instead, she described something entirely different — something entirely unrelated to the box contents in this picture — and claimed the FBI, and not Julie the propagandist herself, was engaged in deception.

Update: Julie now says that in spite of all the proof she got caught lying, she must still be right because the paperclips in the picture are tidy.

Stan Woodward’s Manufactured Scandal about Box A-15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Location of Classified Documents Within Each Box

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

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

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

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

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

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

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

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

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

But not something substantive to Nauta’s case.

Trump’s Attorney-Client Leak Privilege

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Pursuant to Judge Cannon’s order, her clerk has finally unsealed the substance of a complaint from Stan Woodward floated last summer: That, in a August 24, 2022 meeting, Jay Bratt insinuated that if Walt Nauta didn’t cooperate against Trump, then he’d lose his opportunity to be a Superior Court Judge. Here’s the letter presenting Woodward’s side of the story and here’s Jay Bratt’s explanation.

In his explanation of the dispute for Judge Cannon, Woodward repeatedly denied being the source for leaks to the press because “we litigate our cases in Court.” He even explained that multiple people got ahold of a longer letter including his complaint, but reporters, “agreed not to disclose defense counsel’s identity at defense counsel’s request because, we litigate our cases in Court.” That’s the same reason Woodward provided for not correcting Trump’s Truth Social attacks,

alleging prosecutors with the special counsel’s office had attempted to ‘bribe & intimidate’ a lawyer representing a witness in the case and claimed that the lawyer had been offered an, ‘”important judgship” in the Biden administration’ if the client ‘”flips” on President Trump.’

As Stan Woodward tells it, he spent a whole lot of time instructing journalists precisely how they should report on these allegations, but without correcting any false claims made by Trump.

It turns out, though, that Woodward’s complaint is not the only one Trump used in a bid to get grand jury testimony unsealed back in June 2023, after getting a target letter. Trump made a bunch of allegations:

  • Brett Reynolds was anxious to get Kash Patel to testify under the schedule when Beryl Howell had ordered it to occur even after Patel hired Stan Woodward just as the Oath Keeper trial tied up his schedule for months
  • Prosecutors asked Chamberlain Harris for a password to the laptop on which she had some classified information and she provided it
  • They gave Margo Martin somewhere between 72 hours and six days notice for a grand jury subpoena
  • They obtained a warrant for Carlos De Oliveira’s phone after having issued a subpoena for content because he hadn’t turned over a message from Nauta instructing him to cover up a July 10, 2022 return to Mar-a-Lago by Nauta and Trump
  • Tim Parlatore invoked attorney-client privilege 45 times during a grand jury appearance

It’s the last one that is the most remarkable. As Jack Smith explained — before even addressing the Woodward claims — the reason Parlatore was testifying before the grand jury in the first places was because Trump refused to have a real custodian of records attest to the thoroughness of the searches of Trump’s other properties for remaining stolen documents. As a result, Parlatore agreed to sit for a grand jury interview at which he would make item by item privilege claims about the thoroughness of the search he had overseen.

It was the same stunt Trump pulled with Christina Bobb in June 2022.

That part of Jack Smith’s response provides a ton more details about Parlatore’s efforts to string out prosecutors in fall 2022.

Trump made claims of abuse about one question in particular: whether Trump was the source for false claims Parlatore made about how cooperative Trump was during the June 2022 Jay Bratt visit, at which Parlatore was not present.

At one point, Parlatore ciaimed attorney-client privilege after being asked whether the former President was the source for Parlatore’s testimony about statements the former President purportedly made to government investigators about being cooperative. GJTr.40. The prosecutor then asked if a client could waive privilege and questioned why the former President had not allowed Parlatore to testify as to these conversations if he (the former President) meant to be cooperative, but the government prosecutor also quickly made clear that she was “absolutely not saying” that waiver of privilege is required to be cooperative and that, consistent with her earlier statement, she did not mean to “induce any waivers.”GJTr.40-43. Nonetheless, Parlatore on several occasions accused the government prosecutors of “trying to improperly invade the attorney/client privilege.”GJTr.45. see also GJTr.77. After one such accusation, a government prosecutor conveyed to Parlatore that “if [he] want[ed] to invoke the privilege, [he] can just say that” instead of casting aspersions about “what the people on this side of the table are and are not trying to do.”

In short, it was designed to create the opportunity to claim abuse, and Trump then claimed it.

What’s so interesting about the allegation — besides all the details of Parlatore stringing along prosecutors — is that shortly before this complaint, Parlatore loudly left Trump’s team and fairly routinely ran his mouth about details of Trump’s legal team. That is, Parlatore was more forthcoming with CNN than he was with the grand jury. And per a Hugo Lowell story, Parlatore shared a transcript of this grand jury appearance before Trump demanded a transcript of this grand jury appearance.

It’s all so predictable and obvious.

But … eight months later, it still seems to work wonders for Aileen Cannon.

Trump Spent $50 Million Paying Lawyers But Taxpayers Are Providing Loaner Laptops

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As multiple outlets reported this week, Trump spent over $50 million of the money raised from his supporters to pay for legal representation last year, both for himself and for those whose loyalty and silence he needs to ensure.

That includes upwards of $250,000 to a solicitor in London who filed a lawsuit against Christopher Steele that got dismissed this week.

Meanwhile, the response to Trump’s motion to compel in his stolen documents case reveals that, in October, Jack Smith provided two of the most important lawyers being paid by Trump funds, Carlos De Oliveira attorney, John Irving, and Walt Nauta attorney, Stan Woodward, loaner laptops.

Here’s how the response filing describes the loaners and the attorneys’ delay (and subsequent difficulties) accessing the surveillance footage in the proprietary media player Trump Organization uses.

In an email on October 24, 2023, months after the materials were made available to the defense, counsel for De Oliveira for the first time mentioned problems that he had encountered when attempting to access specific CCTV files that the Government had obtained from the Trump Organization and produced in discovery. The Government immediately arranged a call with counsel and technical personnel from the FBI to help resolve the reported issues. Exhibit E at 2- 3. During the call, counsel for De Oliveira explained that he did not own or have access to a laptop or desktop computer and was instead attempting to review the entirety of the Government’s discovery on a handheld tablet. Id. The Government then offered to lend him a laptop computer to facilitate his review. Id. Counsel for De Oliveira accepted the offer, and on November 1, 2023, the Government hand-delivered a computer to him. Since then, whenever De Oliveira’s counsel has raised technical issues with viewing specific Trump Organization CCTV files, the Government has promptly assisted with resolving these inquiries, providing tips and examples, and offering to set up calls as needed. See ECF No. 252 at 2 n.1.

Counsel for Nauta was copied on the October 24, 2023 email and reported “having the same issues” as counsel for De Oliveira. Exhibit E at 3. The Government extended the same laptop offer to Nauta’s counsel, who accepted the offer but noted that he planned to “return it promptly assuming I have the same issues.” Id. at 2. The Government also emailed defense counsel with additional suggestions to facilitate expedited review of CCTV footage, and counsel for Nauta responded within minutes, explaining that he planned to “run a test to extract data” to a separate drive, “and report back” about how it went. Id. at 1. The computer was delivered to Nauta’s counsel on November 1, and has not been returned. The Government heard nothing from Nauta’s counsel about CCTV for more than two months and thus reasonably believed that defense counsel had watched and was continuing to review the footage.

Then, on January 11, 2024, Nauta’s counsel confirmed that he was able to extract all of the files but had encountered difficulty attempting “to launch the [M]ilestone video application.” Exhibit F. Counsel’s reference to “Milestone” was to a proprietary media player and camera system vendor platform used by the Trump Organization to record, archive, and play video footage. In response, the Government worked with counsel to identify his misstep in attempting to launch the player and provided detailed instructions and screenshots about how to do so. Exhibit G. This most recent problem—the apparent basis for the statement in defendants’ brief that “[d]efense counsel for Mr. Nauta was not able to launch the proprietary video player at all” (ECF No. 262 at 61)—omits that for over two months he did not even attempt to launch the player the Government provided (on the laptop that the Government also provided), and did not do so until days before the motion to compel was due. In any event, once notified of the problem, the Government provided prompt assistance in diagnosing the simple and easily correctable user error that has now been resolved. [my emphasis]

The filing is worth reading for more than the revelation that John Irving doesn’t own a laptop.

It starts with a 15-page section describing the course of the investigation.

As Politico first reported, it describes how upwards of 45,000 people entered Mar-a-Lago during the period when Trump was hoarding the nation’s nuclear secrets without getting their names checked by Secret Service.

of the approximately 48,000 guests who visited Mar-a-Lago between January 2021 and May 2022, while classified documents were at the property, only 2,200 had their names checked and only 2,900 passed through magnetometers;

And it provides details of Trump’s lack of security clearance and his loss of Q Clearance after he got fired by voters.

The defendants next request evidence related to the “attempt to retroactively terminate President Trump’s security clearance and related disclosures.” ECF No. 262 at 38-42. This request includes any information concerning “President Trump’s security clearances, read-ins, and related training,” as well as, “where applicable, the failure to maintain formal documentation and training that is typically required.” ECF No. 262 at 40-41. The defendants specifically assert (ECF No. 262 at 41) that the Government must search the Scattered Castles database (a database of security clearances maintained by the Intelligence Community) and a similar database maintained by the Department of Defense (the Defense Information System for Security, which replaced the Joint Personnel Adjudication System). The Government has produced the results of a search in Scattered Castles, which yielded no past or present security clearances for Trump.

[snip]

First, the Government has already produced all non-privileged, responsive materials. The Government produced to the defendants through discovery a memorandum authored by an assistant general counsel in DOE, dated June 28, 2023. Exhibit 59. The memorandum stated that DOE had granted a Q clearance to Trump on February 9, 2017, “in connection with his current duties” as President, see id., pursuant to a statutory provision that permits DOE to grant clearances without a background check if doing so is in the national interest, see 42 U.S.C. § 2165(b).25 The memorandum further stated that when DOE officials learned that Trump remained listed in DOE databases (its Central Personnel Clearance Index and Clearance Action Tracking System) as possessing a Q clearance after his term ended, they determined that Trump’s clearance had terminated upon the end of his presidency and that the DOE databases should be updated to reflect that termination. Exhibit 59. In response to the defendants’ motion, the Government made a second request for documents to DOE on January 24, 2024, and included the categories of information in Trump’s request described above. The Government is now producing approximately 30 pages of responsive materials, while withholding eight emails under the deliberative-process privilege.

24 The document charged in Count 19 may be viewed by someone holding an active and valid Q clearance. Trump’s Q clearance ended when his term in office ended, even though the database was only belatedly updated to reflect that reality. But even if Trump’s Q clearance had remained active, that fact would not give him the right to take any documents containing information subject to the clearance to his home and store it in his basement or anywhere else at Mar-a-Lago. No Q clearance holder has authorization to remove documents from a proper place of storage and keep them for himself. And a Q clearance would not even permit access to, much less offsite possession of, the documents charged in Counts 1-18 and 20-32.

25 The authority to classify and control access to national defense information rests with the President, see Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), and accordingly, during their terms in office, Presidents are not required to obtain security clearances before accessing classified information, see 50 U.S.C. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter [dealing with access to classified information] shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.”). Those exceptions for the President and other high-ranking officials apply only during their terms of office. See, e.g., Executive Order 13526, § 4.4(a) (authorizing access to classified information by former officials, including former Presidents, only under limited and enumerated circumstances). [my emphasis]

These details should, but won’t, resolve all sorts of confusion about under what authority Presidents and Vice Presidents access classified information.

Peter Navarro and the Office-Seeker Using ProtonMail Challenge

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The two Peter Navarro litigations are drawing to a head in a way that reveal just how difficult it is to prosecute a President who attempts a coup.

First, Navarro is set to be sentenced for his contempt of Congress on Thursday. Navarro has asked for no more than a year’s probation with a request any detention be stayed while he appeals based on his claim that Trump invoked Executive Privilege without saying or doing anything specific with regards to Navarro to assert that. DOJ asked for six months on each count while (deeper in the sentencing memo) noting that each count requires a one month sentence and they can be imposed concurrently. Judge Amit Mehta, who is presiding over this case, is a namby pamby former public defender Democratic appointee, and it’s unlikely he’ll sentence Navarro for longer than Carl Nichols did Steve Bannon.

In his sentencing memo, Navarro’s attorneys, including Stan Woodward (who is party to Trump’s baseless arguments about the Presidential Records Act in the stolen documents case), included Joe Biden’s waiver of Executive Privilege over documents at NARA among his list of firsts tied to this prosecution.

Dr. Navarro’s trial and conviction involves a series of firsts: the first time an incumbent President waived the executive privilege of a former President; the first time a senior presidential advisor was charged with contempt of congress by the Justice Department, let alone the Justice Department of a political rival; the first time a District Court held an evidentiary hearing on whether a former President had properly invoked executive privilege; and the first time a senior presidential advisor was convicted, and now is to be sentenced, for following what that advisor reasonably believed was an instruction by the former President not to comply with the Select Committee’s subpoenas.

I believe I remain the only person who noted how craftily Merrick Garland obtained that waiver, doing so in such a way that adhered to DOJ contact policies and kept Biden shielded from any information about the criminal investigation into his predecessor. The TV lawyers were and remain too busy claiming that Garland dawdled to notice the steps Garland took in July 2021 to negotiate this difficult problem.

Subsequent to those initial filings, DOJ asked to file an extra-long reply. It addresses some of Navarro’s novel theories, but also includes a long passage rebutting Navarro’s bid to stay out of jail pending his appeal that argues that Navarro’s claim that Executive Privilege entitled him to entirely blow off a subpoena could not be sound.

With respect to Court Two, the Department of Justice has made clear that testimonial immunity should apply only with respect to questions seeking information from a close presidential adviser concerning “matters that occur[red] during the course of discharging [the adviser’s] official duties.” See Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. 5 at 7 (July 15, 2014) (“Simas Opinion”); Testimony Before Congress of the Former Counselor to the President, 43 Op. O.L.C. _ (2019) (“McGahn Opinion”) at 19; Conway Opinion at 1. Arguably, no president, current or former, would have the authority to make a categorical invocation of testimonial immunity over all the information sought by the Committee from the Defendant because most of the information the Committee sought did not concern matters that occurred in the course of the Defendant’s discharge of his governmental duties.

For example, the subpoena sought, among other things, “all documents and communications relating in any way to protests, marches, public assemblies, rallies, or speeches in Washington, D.C. on November 14, 2020,” and “all communications, documents and information that are evidence of the claims of purported fraud in the three-volume report you wrote, The Navarro Report.” See Ex 1 at 19-20.

Defendant was a trade adviser, and responsible in part for the Trump administration’s response to the Coronavirus crisis. In contrast, the Select Committee subpoena sought information wholly related to the attack on the Capitol on January 6, 2021, and the threat to the peaceful transition of power between administrations. 7 As with the alleged assertion of executive privilege, any such assertion of testimonial immunity therefore would have been germane only (at most) to the Defendant’s testimony about a fraction of the subjects about which the Committee informed him it wished to inquire at the deposition.

Accordingly, a reasonable assertion of executive privilege or testimonial immunity, had one actually occurred, could not have been grounds for the Defendant to refuse to testify altogether; instead, the most it would have justified would have been an assertion of privilege at the former President’s request regarding particular documents or testimony seeking information about communications between the Defendant and the former President himself (or, in the case of a proper immunity assertion, about testimony concerning matters related to the Defendant’s official duties). Therefore, even if the Defendant could establish that former President Trump instructed him to assert privilege as to all questions that might be asked of him at the deposition, such an assertion would not have been proper. It follows that such an assertion could not preclude the Defendant’s conviction on Count Two of the Indictment.8 But of course, the record is devoid of any assertion at all. As the Defendant’s own testimony at a pretrial hearing made clear, even the Defendant’s conversation with the former President included nothing – not even a wisp – that could constitute an actual invocation of executive privilege.

7 Given his own assertions to the contrary, mostly notably in the press releases accompanying the release of his “reports,” it is not credible to believe that the Defendant thought the subpoena related exclusively to his official responsibilities. See, e.g., ECF No. 79-4 (Press Release).

8 Moreover, as previously briefed, because the Defendant failed to raise an immunity claim with the Committee, he is not allowed to invoke testimonial immunity before this Court or the Court of Appeals after the fact to foreclose prosecution for a violation of Section 192. Such argument has been waived. See United States v. Bryan, 339 U.S. 323, 330-34 (1950) (“[I]f respondent had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that she state her reasons for noncompliance upon the return of the writ. . . . To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of authority and an obstruction of its processes.” (citation omitted)); Hutcheson v. United States, 369 U.S. 599, 608- 611 (1962) (stating that a constitutional objection “must be adequately raised before the inquiring committee if [it] is to be fully preserved for review in this Court. To hold otherwise would enable a witness to toy with a congressional committee in a manner obnoxious to the rule that such committees are entitled to be clearly apprised of the grounds on which a witness asserts a right of any assertion at all. As the Defendant’s own testimony at a pretrial hearing made clear, even the Defendant’s conversation with the former President included nothing – not even a wisp – that could constitute an actual invocation of executive privilege.

Meanwhile, DOJ’s civil suit against Navarro to force him to hand over communications covered under the Presidential Records Act that he conducted using ProtonMail may be drawing to a close. Things hit an impasse last summer when, after a previous attorney had told the government that Navarro had 800 PRA-covered communications on his ProtonMail, while represented by Stanley Woodward, he only turned over 211.

Last August, Judge Colleen Kollar-Kotelly ordered Navarro to provide her records of his search by October.

Partially out of deference to defense counsel’s burgeoning trial calendar, the Court deferred ruling until after it had further opportunity to review the record. After further consideration, and in an effort to finally bring this litigation to a close, the Court will opt for both courses of action. On or before October 15, 2023, Defendant shall file under seal a notice listing all search terms used, the metadata fields searched, and the email accounts searched. Also on or before October 15, 2023, Defendant shall deliver to Chambers a random sample of fifty emails across each account searched that were not identified as responsive in his last review. The Court will maintain these records under seal.

Navarro complied in October.

Then Judge Kollar-Kotelly issued what appears to be an order to the government to weigh in on whether his search was adequate.

Then, last week, Woodward asked to unseal those exchanges so he could submit the government one to Judge Mehta in support of sentencing (I think he only asked to unseal the documents to share with Mehta; thus far, at least, we don’t get to see them).

In Navarro’s own sentencing reply, he described what he was after: the government’s argument, in December (and so after Blassingame — a decision upholding Amit Mehta’s ruling that actions Trump took as a candidate are not immune from civil suit — distinguished between presidential actions taken as a candidate for office and holder of that office), that some of Navarro’s communications pertaining to the attempted coup might include official records.

The government’s betrayal is manifest of its true motive – the prosecution of a senior presidential advisor of a chief political opponent. By way of a second example, consider the position taken by the Department – representing one United States – in its litigation against Dr. Navarro for allegedly refusing to return purportedly presidential records to the National Archives and Records Administration under the Presidential Records Act. 44 U.S.C. §§ 2201- 2209. Here, the government claims that Dr. Navarro’s work related to the 2020 Presidential Election could only have been conducted in his personal capacity.4 Yet there, because it suits their interests, the government recently asserted – originally under seal – that Dr. Navarro, and the Administration of President Trump, could very well have worked to ensure election integrity as part of his official duties. See Notice, at 4 (Dec. 29, 2023) (ECF No. 35) (“However, the United States has not taken the position that every action that Defendant took in connection with the 2020 Presidential Election was done in his personal, and not official, capacity; nor has the United States taken the position that any communications related to the 2020 Presidential Election are not Presidential records.”).

So in the civil suit, Navarro appears to have decided that almost 600 communications sent on ProtonMail — those pertaining to his role in a coup attempt — were not sent in the conduct of his official duties and therefore don’t need to be turned over under the PRA to NARA (whence Jack Smith could subpoena them).

But in the criminal case, Navarro claims to have believed and still believe that everything Congress subpoenaed from Navarro, which would have covered every communication pertaining to his role in a coup attempt, was covered by Executive Privilege.

ProtonMail, because it is less often used on phones and because it is hosted in Switzerland, happens to be among the most difficult platforms from which to obtain communications in a criminal investigation — harder even than the Signal and Telegram apps on which much of this coup was plotted. At least based on what DOJ showed in the Josh Schulte case,  as recently as 2018, FBI didn’t have a means to access Proton content without a password under criminal process. So for a contemnor like Navarro who blows off subpoenas, you’re not going to get his ProtonMail content without his involvement in some way. It seems likely that Navarro has effectively conceded there are almost 600 records about the coup that DOJ still wants, records he refused to give January 6 Committee based on a frivolous claim of Executive Privilege, records that he now refuses to give NARA under a claim they’re not Presidential Records at all.

The facts at this point are fairly clear: along with two aides, Navarro spent much of his last month in office focused not on his trade duties or even his COVID response, but instead on ginning up false claims that the election was stolen. That is, in his apparent claim that his coup communications were not official duties, Navarro seems to confess he spent the last month in office defying the Hatch Act. And the false claims he ginned up played a key role in the coup (and one of those aides, Garrett Ziegler, was one of Ali Alexander’s direct ties to the White House).

The government has been attempting to retrieve the communications Navarro conducted on ProtonMail since December 2021, shortly after a COVID-related investigation surfaced their existence. And over two years later, Navarro apparently continues to withhold almost 600 records relating to the coup.

I assume there are still steps DOJ can take once these two legal cases are resolved — such as subpoenaing Navarro directly for the communications he now claims were not official records (he invoked the Fifth Amendment and demanded immunity from prosecution in refusing to turn them over before). That is, Navarro could end up facing a second criminal contempt charge, which is one reason Stan Woodward keeps making bullshit claims about politicization.

Nevertheless, through a combination of frivolous claims of privilege and reliance on technology that thwarts the FBI, it appears that a significant chunk of coup communications remain outstanding.

Stan Woodward Claims He Doesn’t Know Where the Missing Beautiful Mind Boxes Went

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Perhaps the most amazing detail in the stolen documents transcript of last week’s hearing before Judge Aileen Cannon is that until the summer, Trump still had a Q clearance.

There is a category of documents that it — actually in unclassified discovery, we learned a week or two ago that there is a certain category of documents that require what is called a “Q clearance” and it includes one of the charged documents, and we learned that it’s a Department of Energy program. We learned that President Trump continued to have an active security clearance, even after he was indicted in this case, with the Department of Energy. Now that, in our view, is the definition of Brady. It was — I’m not going to say it was buried, but it was provided to us in discovery as part of miscellaneous materials at some point in the third or fourth production. I mean, it is literally a memo from the Department of Energy dated June — dated late June of this year, June 28th of this year, saying that, oh, we should remove Donald J. Trump from the person who has an active security clearance. He has been charged with possessing a document in violation of federal law, when he has an active security clearance with the holder of that document.

The detail doesn’t help as much as Trump’s attorney, Todd Blanche, would have you think. Whatever clearance Presidents get under the Atomic Energy Act (especially since presidents don’t get clearance; on Bluesky, Cheryl Rofer suggests he may have gotten DOE clearance while still a candidate) obliges them to follow document handling rules that might not have been as meticulously spelled out for Trump under his access to other classified documents. That he still had access when he was found with nuclear documents in August 2022 only means he was affirmatively violating the terms of his Q clearance, not that he could legally store nuclear documents in his gaudy bathroom.

Most people who get charged under the Espionage Act have or had clearances; those clearances actually make it easier to prosecute them.

Though Trump finally added someone appropriate to an Espionage Act trial last month, former SDNY National Security AUSA  Emil Bove, Blanche still seems to have a woefully inadequate understanding of how 18 USC 793 elements of the offense get proven at trial.

And Jay Bratt seems to be unable to conceive that his counterparts (and, probably, Judge Cannon) fail to understand that.

Bratt’s attempt to explain all this — something that makes a lot of sense to me from covering so many of these trials — was just one of two times where (in the transcript at least) Cannon abruptly cut off Bratt, as she often does when she risks embarrassment.

BRATT: I do not — we do not believe that the motion to compel litigation needs to be complete before they can file with the Court their theory of defense with respect to the 793 charges, and it kind of strains credulity that they say they can’t do that. You know, the elements of 793 are unauthorized possession of a document containing national defense information, possessing it willfully, that is with knowledge that what you are doing is unlawful, and failing to return it to a proper person. All that information they can flesh that out for the Court, and there is really — they may have legal — separate legal challenges to the 793 charges, but if you look at the elements, those are the defenses: Either he didn’t possess it, or he was authorized to possess it, or the information doesn’t contain national defense information, or he wasn’t acting willfully, or he returned it before he was being asked to return it. Those are the defenses, and they may have other color they want —

THE COURT: But to some extent, of course, one would have to review the relevant classified discovery in order to formulate a meaningful response, even if maybe not entirely complete, it would be difficult to just sketch out a skeleton, so to speak, of your theory without really doing so rooted in the documents themselves.

MR. BRATT: So I’m not sure that you do need to be able to say, no, we know this doesn’t contain NDI for the Court to rule on whether or not what we are presenting in Section 4 is relevant and helpful to the Defense, I don’t think so. I understand that, you know, they have said in their pleadings that they are going to strongly contest whether or not the information was national defense information, strongly contest whether it was closely held. Our burden is to prove that it was, and we embrace that burden; but these documents, you know, I —

THE COURT: That’s fine. We don’t need to talk about the actual contents of the documents, obviously, given this is a public hearing.

Blanche was pretty obsessed with the classification determinations, marveling over the fact that prosecutors had to talk to the Intelligence Community before deciding what documents to charge, what documents they could charge.

We have seen communications between NARA and the Department of Justice and the White House and the Special Counsel that started way before what has been publicly disclosed and extensive meetings, extensive communications; and so we feel very strongly and expect that we will win on that, when we file the motion that NARA is absolutely part of this prosecution team and that the intelligence communities that they worked very closely with in determining the — well, from what we can tell, the particular documents that they chose to charge, so there is purportedly a tranche of documents that have classified headings on them, and then 32 that they decided to charge. That wasn’t just done in a vacuum. They didn’t just, you know, pick 32 documents out of a hat and say, “We will go with these.” There was a lot of coordination that we can tell from the materials we do have with the intelligence community that ultimately led them to proceed the way they did.

So yes, we have an answer with them. They say very strongly that they view the prosecution team as being limited to the Special Counsel’s Office and the FBI, and we very strongly believe that’s wrong.

That may have been a cynical ploy to treat the IC as part of the prosecution team, which in turn may be an attempt at graymail.

Blanche also claimed that the defense had not yet received all the classification reviews for these documents, and had yet to receive Jencks production for people he imagines will sit on the stand and attest to the classification of each document, in a trial where the standard is National Defense Authorization, not classification.

THE COURT: What about classification reviews, have you received all of those?

MR. BLANCHE: No, Your Honor, we have not received all of them. That is one of the things that we are continuing to ask about. We have received them for — I believe for the charge documents; but as what should be obvious from the volume compared to the 32 counts, there is a tremendous number of documents that are extraordinarily important to our defense that are purportedly classified that we don’t have any information about at this time.

[snip]

A little bit about the classified Jencks material, as was discussed. The issue of whether a particular document is classified or not is something for the jury. And what we are looking for in discovery and what we don’t have is that has to be from a witness. There has to be a witness that is testifying about why a particular document is classified; and as part of that, like any witness, we are entitled to 3500 and Jencks material and we don’t have that. We don’t have that for all the witnesses, and our concern is that there is this class or category of Giglio and Jencks material that we are going to get at some later date which we are then going to — it’s another Section 4 litigation, at that point, because we are going to then ask the Court what we can use to impeach the witness, what information we are allowed to cross-examine him or her on.

Bratt did correct Blanche to say that Trump had already gotten all the classification determinations for all the classified documents retrieved from Mar-a-Lago.

THE COURT: Now, I went through some of these categories with Mr. Blanche, but classification reviews, are those included in the 5,500 and/or the disks?

MR. BRATT: Yes. And just to respond to something Mr. Blanche said, and it may have been oversight, it is not just for the 32 documents. It is for all 340-some documents that were at Mar-A-Lago.

But I just think that Blanche doesn’t get how easy it’ll be to convince jurors that you can’t put nuclear documents in a beach resort shower (and that’s all before the smoke and mirrors that the government uses in all Espionage Act trials, which will be epically contentious here).

I don’t think he understands any of this.

This all brings me to something I’ve been wondering: what the government has been withholding anticipating its CIPA 4 filing, which has been delayed by various Trump games about CIPA. CIPA 4 covers stuff they’ll share with Judge Cannon to have her rule whether the material needs to be turned over to the defense (the standard is whether the material is relevant and helpful to the defense), and if so, whether DOJ can use substitutions for some of the information.

This is my updated track of the universe of classified discovery.

Pretty much everything that should obviously be there is there:

  • The stolen documents themselves
  • All the witness testimony about the documents
  • The discussions about classification reviews of the documents (which Brian Greer has suggested were likely somewhat limited in anticipation of trial)

But there’s one thing not mentioned — at least not obviously — that always proves contentious in 793 cases: The damage assessment.

One way defendants always attempt to prove that things aren’t National Defense Information is by pointing to a report — if they get one — that nothing blew up after they released a document or left it in their beach resort shower.

Often defendants don’t get them.

I’m particularly interested in what kind of damage assessment the Intelligence Community did here because of a footnote included in the 11th Circuit appeal last year, which I wrote about here:

A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]

[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4

4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“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.”).

Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.

You can’t very well do nothing after you learn some of the most sensitive government documents were parked on a stage in a room hosting weddings attended by all manner of foreigner and grifter. You can’t do nothing after learning that Trump freely blabbed about the content of his stolen documents to anyone who bought access to him. You can’t do nothing after a Five Eyes document gets dumped out of a box in a storage closet that musicians and other resort personnel have accessed. You’ve got to go to your Five Eyes allies and explain that America’s former President is a dumbass and so the allies should take measures assuming that some drunken guest got a look at that document.

You might not even be able to charge documents as sensitive as these if the underlying programs hadn’t had to be rolled up. The spooks are going to prefer to protect the programs over vengeance against the dumbass former President.

Which brings me to the most intriguing claim made at the hearing.

Stan Woodward — Walt Nauta’s attorney — claims that neither he nor the government have figured out where all the missing boxes have gone.

[T]he Special Counsel has directed us to certain portions of the CCTV footage that they view as the most relevant, but there is — from what we know and from our defense, there is a tremendous amount of CCTV footage that we believe has been produced that is not what they have identified that is extremely relevant to us. For example, to the extent that boxes were moved on occasions other than what is delineated in the indictment, that is certainly something that matters to us.

[snip]

We have, of course, the benefit of consultation with our clients and are able to talk about what video we should be looking at and what video we should not be looking at. And the entire nature of the allegations, of the charges in this case are about missing boxes, right? The indictment is charging Mr. Nauta — and I’ll just stick with my client, with Mr. Nauta — with having moved boxes. Some number of boxes come out of a storage room, a lesser number of boxes go into the storage room, and Mr. Nauta is charged with hiding those boxes from whether it is Trump’s then counsel or whether it is the Government. And obviously, we are interested in knowing where those boxes are if they are, in fact, missing. The CCTV footage is what is going to help us understand that riddle.

Now, the Government does not know where those boxes went. As far as I can tell, to this day, the Government does not know where the boxes they allege were hidden ended up.

[snip]

I have a whole separate computer that I’m using just to do these extractions so that I can go in and start watching this days of video so that we can make an assessment of what this case is all about and whether it is about missing boxes or about boxes that just weren’t found when the FBI conducted its search of the property.

Now, Woodward has a habit of saying things that I find … shall I say, unpersuasive?

This certainly feels like one of those instances, coming as it did amid a schtick whereby Woodward repeatedly referred to the government, then corrected himself to say Special Counsel, something that seems to mirror Judge Cannon’s own preferences for calling Jack Smith’s office the OSC (John Durham used this abbreviation but no one else does).

Woodward is attempting to claim that he needs to delay the trial past the election because he needs to review all of ten years worth of surveillance video to defend his client. I’ve seen him make similar claims in January 6 trials.

More importantly, this is not a remotely fair representation of the charges against Nauta, which have to do with Nauta claiming to know nothing about moving boxes within days of being caught on surveillance video moving boxes, then allegedly attempting to destroy the video that captured him moving those boxes. Importantly, even if someone else moved a bunch of boxes that aren’t otherwise included in the indictment, it doesn’t exonerate Nauta. It could even inculpate him: if boxes were at Mar-a-Lago for someone else to move because Nauta had taken steps to withhold them from the government, it means his alleged obstruction would have made those other movements possible.

Plus, one big reason why the government charged Nauta, I believe, is because they believe he knows what happened to the missing boxes, including the ones he packed up to go to Bedminster where they disappeared forever.

I don’t doubt that the government hasn’t accounted for all the missing boxes; certainly Bratt did not correct Woodward on this point.

But one reason the government would have had to get ten years of video is to attempt to see who else entered that closet, to see who was in the closet when a Five Eyes document tumbled out, to see whether any of the foreign visitors to Mar-a-Lago seemed to know to look in the closet.

That’s not something that would show up in the indictment, not without proof that Trump willfully told visitors where the documents were.

But if Woodward is telling the truth about needing to see who else was moving boxes around, rather than just using the volume of video to stall, it might suggest he’s trying to find out what you might otherwise learn from a damage assessment. It might suggest that either Nauta hasn’t been entirely forthcoming with Woodward or Trump isn’t being forthcoming with his lawyers or his trusted valet.

Learning what the government saw in the surveillance video about moving boxes is not remotely necessary for defending Nauta against the charges against him. It might have a lot to do with understanding how ugly the story prosecutors will tell at trial will be.

Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

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I noted yesterday that the government claimed that Stan Woodward had conceded he had a duty of loyalty to Yuscil Taveras that would limit what he could do in an eventual trial of Walt Nauta.

In his own response, however, Woodward makes no mention of any duty of loyalty to a former client. Instead, he engages in a great deal of word games to suggest precedents don’t apply to what he repeatedly describes as “[very] limited” representation of Taveras.

Instead, the Special Counsel’s Office seeks to micromanage defense counsel’s handling of any potential conflict arising from the trial testimony of a witness, which such witness benefited from limited former representation, no ongoing dual representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for crossexamination by the counsel in question (as co-counsel is available for the same).2

[snip]

[T]he very limited representation of an individual whom the Special Counsel’s Office wished to question in relation to a matter that later developed into a criminal prosecution of another client.

It’s a ploy used in Woodward’s surreply, as well.

The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale.

Even if it were the case that clients weren’t entitled to privilege if a representation was limited in time or scope, it ignores a very crucial detail of this case.

DOJ told Woodward he had a potential conflict before Taveras testified to the grand jury in March, where he denied knowing about the attempt to delete surveillance video.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

The only way this representation would be so limited would be if Woodward did nothing to figure out what kind of legal exposure Taveras was facing in his March grand jury appearance.

Woodward continued to deny his representation of both Nauta and Taveras created a conflict even after DOJ gave Taveras a target letter — in part because he had advised Taveras that if he wanted to cooperate, he could get a different lawyer.

[T]he government provides no information to support their claim that [Taveras] has provided false testimony to the grand jury. While counsel does not preclude that the government may have provided more information to the Court ex parte, the government’s current representation that [Taveras] has clearly presented false or conflicting information to the grand jury is wholly unsupported by any information available to counsel. Further, even if [Taveras] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him. If [Taveras] wishes to become a cooperating government witness, he has already been advised he may do so at any time.

[snip]

Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government.

Woodward seems to suggest that Taveras has waived his privilege because he told prosecutors what advice Woodward had given him.

Because it appears that the Special Counsel’s Office well knows what was disclosed to defense counsel by Trump Employee 4, the Special Counsel’s Office cannot maintain its position that the revelation of the same is barred. Put differently, the assertion of the Special Counsel’s Office of a presumption of continuing privilege in this context, where the Special Counsel’s Office sought and obtained new counsel for Trump Employee 4 for the purpose of providing a means for Trump Employee 4’s testimony to change, and for his prior assertions to be explained by him—all of which was done not in the District where this case is pending, but in a faraway District, raising separate issues of grand jury misconduct—warrants development of the record at a hearing so as to ascertain to what extent any applicable privilege has been waived by Trump Employee 4’s disclosures to the Special Counsel’s Office. At a minimum, if the Special Counsel’s Office persists in asserting that privileged information remains, an evidentiary hearing is warranted as to what the Special Counsel’s Office is withholding regarding Trump Employee 4, his claims as to prior representation, and whether there has been any failure to disclose such matters to the Special Counsel’s Office.

Here, Woodward fashions privilege to consist only of confidentiality, not loyalty. And he suggests that because Taveras has shown some kind of disloyalty to him, he doesn’t owe any back.

In the filing, Woodward makes an oblique reference to Beryl Howell’s ruling finding Evan Corcoran’s advice to Trump to be crime-fraud excepted (though as he always does, he calls the underlying grand jury investigation in this very case a “faraway” District).

[I]t is noteworthy that in the United States District Court for the District of Columbia the Special Counsel’s Office has taken precisely the opposite position with respect to privileged communications. Specifically, in that District, the Special Counsel’s Office took the position that where a witness represented by counsel in a government compliance matter is not forthcoming with their counsel, a crime-fraud exception applies, voiding the attorney-client privilege. While Mr. Nauta vehemently opposes any application of the crime-fraud rulings made in a faraway District to this case, it is nevertheless impermissible for the Special Counsel’s Office to tailor the positions it takes before courts and/or grand juries in the various Districts where it seeks an advantage in its prosecution of former President Trump and his coconspirators.

This appears to be an attempt to liken Trump’s affirmative lies to Corcoran to Taveras’ own communications with him.

But, particularly with the demand for a hearing to find out what Taveras has told SCO about Woodward’s advice to him, it comes off as flopsweat about his, Woodward’s, own conduct.