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

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

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

 

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

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

All that under the bubble wrap and the Christmas pillow!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aileen Cannon’s Not-Abnormal Orders

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Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.

Request 1: Motion to Implement Special Conditions of Release

Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.

Goodman ordered the government to provide defendants with a list of witnesses this covered.

DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.

Trump and Nauta objected to that part of it.

Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.

I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.

After that, a media coalition opposed the government motion, asking that any list be filed unsealed.

Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.

PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]

As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.

Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.

Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.

So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.

Request 2: Motion for a Continuance

On the same day, Friday, DOJ also asked for a multi-part motion for a continuance from the August trial date to a December one.

It laid out the following logic:

  1. The matter is not complex, meaning Trump doesn’t need a year to review discovery
  2. The matter does involve classified information, which will require using the Classified Information Procedures Act (CIPA), which takes some time
  3. Also, Trump will need more time to review discovery than the current schedule allows

DOJ provided some legal requests, as well as a proposed timeline.

In response to this request, Cannon asked the defendants what they think:

On or before July 6, 2023, Defendants shall respond to the Government’s Motion for Continuance 34, either individually or in a combined filing.

This is normal.

Request 3: Motion on CIPA

The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:

  • Schedule a CIPA 2 conference to talk about the classified matters at issue
  • Appoint a Court Information Security Officer

In her order, Cannon cited the defendants’ lack off opposition.

The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,

The Court expresses no view on the other matters addressed in the Government’s Motion.

But those matters are dictated by law.

At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.

Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.

There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.

I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

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In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.