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Donald Trump Confesses He Can’t Distinguish His Own Influence Ops from that of a Russian Spy

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To understand the startling confession at the core of Donald Trump’s motion to compel discovery submitted last night, it helps to read a caveat included in Trump’s discovery request, but not included in this motion.

In a letter requesting the same things described in the motion to compel in discovery, Trump’s team admitted it was using a different definition of “foreign influence” than the one he himself adopted in Executive Order 13848 requiring the Intelligence Community to provide a report on any, “foreign interference that targeted election infrastructure materially affect[ing] the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results.”

Rather than just reports of attempts to tamper with election infrastructure to alter the vote count, Trump intended his discovery request to include efforts by foreign governments and non-state actors to influence US policy.

As used herein, the term “foreign influence” is broader than the definition of the term “foreign interference” in Executive Order 13848 and includes any overt or covert effort by foreign governments and non-state actors, as well as agents and associates of foreign governments and non-state actors, intended to affect directly or indirectly a US person or policy or process of any federal, state, or local government actor or agency in the United States.

A vast majority of Trump’s discovery requests claim to need backup about intelligence on potential compromises that could not have affected the election tabulation. Not a single one in the 37-page motion addresses the specific lies the January 6 indictment accuses him of telling:

dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden.

Here are some of the totally irrelevant things Trump is demanding:

  • The classified backup to the 2016 Intelligence Community assessment, which Trump claims was the source of his purported genuine concern about elections that led him to issue Executive Order 13848, when instead he was probably attempting to stave off a law, proposed by Marco Rubio and Chris Van Hollen, requiring stronger election protection measures
  • The backup to the Cybersecurity and Infrastructure Security Agency statement asserting that the election was the most secure in history (which led Trump to fire Chris Krebs by Tweet)
  • Details about the Solar Winds hack, which was made public after the CISA statement, and which is not known to have compromised any election infrastructure, but which Patrick Byrne offered as an excuse in real time to start seizing voting machines
  • Debates about the findings in the 2020 election report ultimately released that pertain to China’s influence operations, not interference operations
  • Details of a January 2 briefing John Ratcliffe gave Jeffrey Clark (which is not described in the indictment), which Trump insinuates is the reason that Clark strengthened language about election irregularities totally unrelated to the things described in the election report, even though — as the indictment notes — Ratcliffe, “disabused the Defendant of the notion that the Intelligence Community’s findings regarding foreign interference would change the outcome of the election”
  • The FISA Court opinion describing improper efforts to query 702 information regarding possible foreign influence — possibly directed at things like Nick Fuentes’ cryptocurrency donation and Charles Bausman’s ties to Russia — which wouldn’t have affected Trump’s lies at all

Not a single one of these items pertains to whether Ruby Freeman added votes in Fulton County, Georgia, whether 10,000 dead people voted in one or another state, whether non-citizens voted in Arizona, whether there was a vote dump of 149,772 illegal votes in Detroit, whether Pennsylvania received 700,000 more absentee ballots than they had sent out.

That is, not a single one of Trump’s main demands pertains to the specific lies he is accused of telling.

This stunt might have been effective if Trump were charged with moving to seize voting machines after the famous December 18 meeting, at which Byrne and Sidney Powell urged Trump to use EO 13848 and the discovery of the Solar Winds hack to seize voting machines. But that’s not in the indictment — the famed meeting is unmentioned. As I’ve previously noted, Powell is only in the indictment for the way in which Trump adhere to her views about Dominion, not for the December 18 meeting. In this request, Trump repeats an earlier request for investigations into Dominion in passing, but focuses his attention instead on Solar Winds.

Instead of asking for evidence pertaining to the actual lies Trump told, Trump argues that because he had the same goal and effect that Russia pursued in 2016 — to erode faith in democracy — it somehow means his own lies weren’t cynical, knowing lies.

Moreover, whereas the Special Counsel’s Office falsely alleges that President Trump “erode[d] public faith in the administration of the election,” the 2016 Election ICA uses strikingly similar language to attribute the origins of that erosion to foreign influence—that is, foreign efforts to “undermine public faith in the US democratic process.” Compare Indictment ¶ 2, with Ex. A at 1; see also id. at 6 (describing “Kremlin-directed campaign to undermine faith in the US Government and fuel political protest”).

The problem is that the lies Russia and Trump told in common in 2020 — primarily a false claim that Joe Biden corruptly fired a Ukrainian prosecutor — don’t have anything to do with the specific lies that Trump told to mobilize thousands of his followers to attack the Capitol.

That both Russia and Trump want to undermine democracy is not a specific defense to the charges against him.

In an Attempt to Claim Vindictive Prosecution, Trump Confesses Biden Hasn’t Interfered Like He Has

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To substantiate a claim that Joe Biden ginned up the twin prosecutions against him (motion, reply), Donald Trump picked two clauses (in italics) in an article (live link) that repeatedly describes the various ways that Biden and Merrick Garland have restored the independence to the Department of Justice from what it had been under Trump.

The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

[snip]

In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. Garland had “decisively restored” the independence of the Justice Department.

“President Biden is immensely proud of the attorney general’s service in this administration and has no role in investigative priorities or decisions,” Mr. Bates said.

A Justice Department spokesman declined to comment.

The Jan. 6 investigation is a test not just for Mr. Garland, but for Mr. Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Mr. Trump had tried to weaponize for political gain.

[snip]

Complicating matters for Mr. Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs or risk being seen as interfering for his own family’s gain.

The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled
his affairs appropriately.

Justice Department officials do not keep Mr. Biden abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president, including Dana Remus, the White House counsel, have no visibility into them, those people said.

[snip]

Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general, particularly Mr. Trump and his last attorney general, William P. Barr.

Some officials see their limited interactions as an overcorrection on the part of Mr. Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Mr. Garland to take, particularly given that both of Mr. Biden’s children are involved in active investigations by the Justice Department.

The distance between the two men is a sharp departure from the previous administration, when Mr. Trump would often call Mr. Barr to complain about decisions related to his political allies and enemies. Such calls were a clear violation of the longtime norms governing contact between the White House and the Justice Department.

Mr. Biden, a former chairman of the Senate Judiciary Committee, came to his job as president with a classical, postWatergate view of the department — that it was not there to be a political appendage. [my bold and italics]

Since the two clauses on which Trump relies conform with the evidence presented in the rest of the article — which is to say, they show that Biden has taken no steps to share his views with the Attorney General — Trump simply invents something that’s not in the article: a claim that Biden deliberately planted these quotes as a way to give Garland an order to prosecute Trump.

The Biden administration intentionally leaked these comments to the media in early 2022 so that President Biden could improperly provide instructions to and exert pressure on prosecutors and investigators without engaging in direct communications, as is clear from the fact that the article sourced the operative remark to “two people familiar with his comments.” Id.

Trump then dismisses prosecutors’ argument that such anonymous claims are not evidence by likening the misrepresentation of the article to three times Jack Smith prosecutors cited newspaper reports.

The reports at issue are not, as the prosecution claims, based on “rumor and innuendo.” Doc. 141 at 6. The Washington Post article is “based on internal documents, court files, congressional records, handwritten contemporaneous notes, and interviews with more than two dozen current and former prosecutors, investigators, and others with knowledge of the probe.” Doc. 116-1 at 3. The New York Times article is attributed to “interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.” Doc. 116-2 at 2. For example, President Biden’s instruction that President Trump “should be prosecuted” is sourced to “two people familiar with his comments.” Id

7 See, e.g., Doc. 97 at 10; Doc. 109 at 30; Doc. 140 at 11.

Those three reports are:

A citation to a threat included in a WaPo report.

6 See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/nationalsecurity/2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an online post stating, “These jurors have signed their death warrant by falsely indicting President Trump”)

A reference to the fact that Clinton entered into a deal to avoid indictment when he left office:

The same is true for President Clinton’s “forthright admission that he gave false testimony under oath” about matters occurring during his presidency in order to avoid indictment after his presidency. See John F. Harris & Bill Miller, In a Deal, Clinton Avoids Indictment, Washington Post (Jan. 20, 2001). 12

12 https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/.

Factual details about the identities and now proven — all have now either been convicted or pled guilty — crimes of members of the J6 choir with whom Trump made a video.

The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/

This insane argument, which effectively insists on the truth value of the NYT article that states over and over that Biden has not done what Trump did to politicize investigation as part of a bid to claim that Biden has politicized this investigation comes after Hunter Biden made a bid to subpoena Trump for evidence of how he did interfere in the investigation of Joe Biden’s son.

Instead of anonymous quotes that actual confirm Biden hasn’t spoken with Garland about these investigations, Abbe Lowell relied on eight public tweets, including one blasting David Weiss and calling for a death sentence for Hunter.

D. Trump Truth Social post on July 11, 2023: “Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”

Another of the tweets in the bid for subpoenas denied any involvement in the prosecution ten days before — notes from Richard Donoghue show — Trump interjected a complaint about Hunter Biden’s treatment amid complaints that DOJ wasn’t backing Trump’s false claims about election fraud, both of which led up to a threat to replace Jeffrey Rosen with Jeffrey Clark.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”

[snip]

D. Trump tweet on December 17, 2020: “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. It is just more Fake News. . . .” [emphasis original]

Side note: Lowell very graciously didn’t point out that Donoghue, in his January 6 testimony, tried to spin these notes to make them less damning then they are, possibly up to including adding an “H” after the fact to pretend that Trump didn’t also consider the investigation of the son to be an effort to get to the father, as Trump’s earlier tweet made clear he did and does.

It wasn’t just Jeffrey Rosen with whom Trump raised the Biden investigation. Lowell also cited the passage from Barr’s book where Trump raised Hunter directly with the Attorney General.

Additionally, former Attorney General Barr’s latest book recalls an instance in mid-October 2020 in which President Trump called Mr. Barr and inquired about the investigation of Mr. Biden, which Mr. Barr says ended with Mr. Barr yelling at Mr. Trump, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

And Lowell cited the reference to the briefing Scott Brady’s team did with David Weiss’ team to share an allegation Mikola Zlochevsky made sometime close to the time when, according to Chuck Grassley, Barr’s DOJ shut down an investigation into Zlochevsky.

Gary Shapley Aff. 3, attach. 6 (IRS CI Memorandum of Conversation, Oct. 22, 2020), (“Pittsburgh read out on their investigation was ordered to be received by this prosecution team by the PDAG.”), available at https://gopwaysandmeans.house.gov/wp-content/uploads/2023/09/T87-Shapley-3_Attachment-6_WMRedacted.pdf.

Lowell did not close the loop on this to show Barr confessing to personal knowledge of Brady’s project and the details of how the FD-1023 memorializing the Zlochevsky allegation got shared with Weiss, tantamount to a confession that he lied in his book. Nor did Lowell mention the Perfect Phone Call in which Trump asked the President of Ukraine to work with Barr to investigate the Bidens or the allegation that Trump’s handlers had removed a damning reference to Burisma.

You’re with me so far, right? In support of a claim that Joe Biden has interfered in the prosecutions of Trump, Trump demands that DOJ treat as reliable an article that says, in about seven different ways, that Biden doesn’t do that. And Trump did that a week after Hunter’s lawyer laid out eight tweets, two memorializations of conversations with Trump, two primary documents, and two congressional depositions, all of which show high level involvement and, at least on Trump’s part, attempted interference in the Hunter investigation, which ignores some of the most important public documents memorializing Trump’s interference.

But it gets crazier!

In response to AUSA Thomas Windom’s observation that, “the defendant does not provide the Court with even the roughest sketch of what this ‘fact finding’ would entail or uncover,” Trump says his discovery request already laid that out.

Finally, the Special Counsel’s Office professes confusion about what the fact finding “would entail” and claims that it requires a “rough[] sketch.” Doc. 141 at 14. The Supreme Court has provided one, in a case the Office cited: “the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim.” Armstrong, 517 U.S. at 464. So too have our discovery requests. See Ex. 2 (10/23/23 Requests 10-12, 24, 39-40, 43, 55).

The requests he points to are:

Conduct alleged in the indictment, and responses by witnesses described in the indictment (as well as a letter he includes with this filing, showing two prosecutors in this case attempted to persuade Bill Barr to adhere to normal procedures after the election).

11. Please provide all documents related to views and opinions expressed by Department of Justice personnel, including from the Public Integrity Section and National Security Division, discouraging, disagreeing with, or resisting investigations of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

12. Please provide all documents related to or reflecting decisions by the Department of Justice, federal law enforcement, state law enforcement, election officials, or other government officials declining or refusing a review or investigation of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

Advice from Steve Engel (who would go on to join in an effort to thwart Trump’s efforts to replace Jeffrey Rosen with Jeffrey Clark), any of which Trump relied upon he could cite specifically.

24. Please provide all documents, including communications, memorandums, and opinions (whether formal written opinions, drafts thereto, or informal analyses), of the Department of Justice Office of Legal Counsel concerning the Electoral Count Act, election fraud, any litigation related to the 2020 election, or any advice provided directly or indirectly to any Executive Branch official concerning the outcome of the 2020 election.

Any discipline DOJ pursued for Michael Sherwin for violating rules that were routinely violated under Trump.

40. Please provide all documents relating to the March 2021 “60 Minutes” interview of Michael Sherwin, including all documents relating to investigations of potential violations of applicable rules, policies, or procedures resulting from Mr. Sherwin’s participation in the interview.

A known referral of fake electors from Dana Nessel.

39. Please provide all documents relating to the “referrals” referenced by Lisa Monaco during an interview on or about January 25, 2022.

A fishing expedition to get the kind of inflammatory texts that were selectively released during the Russian investigation, to obtain the texts everyone sent on their FBI cell phones).

55. Please provide all documents reflecting statements by any member of the prosecution team indicating an intent or effort to stop or hinder President Trump from becoming President of the United States.

Complaints that, broadly interpreted, could include those from Gary Shapley and Joseph Ziegler that instead show the high level involvement of Trump’s DOJ in the Hunter Biden investigation and the investigators own efforts to conduct the investigation in such a way that it might become public.

10. Please provide all documents relating to complaints or concerns by any prosecutor from DOJ, the Special Counsel’s Office, or any federal law enforcement agent relating to the conduct of the investigations of President Trump, the 2020 election, or President Biden.

A request for communications that, the NYT article he relies on, says don’t exist: “coordination” between Biden and DOJ or the Special Counsel’s office. But also a request for communications that might, broadly interpreted, cover the entirety of Hunter Biden’s defense counsel communications with DOJ. (It would also include any victim interviews with Ashley Biden regarding her diary and other personal belongings stolen by Trump supporters.)

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden. [my emphasis]

DOJ’s criminal prosecutors are not communicating with Joe Biden. They are, however, communicating with Hunter Biden (via his counsel) because Trump’s own US Attorney, now bolstered with Special Counsel status, is prosecuting Hunter Biden. And after having attacked Weiss publicly, Trump is now claiming that he needs Hunter Biden’s communications to prove Donald Trump is being treated unfairly.

The primary thing on which Trump relies to make a claim he’s being treated unfairly instead supports the opposite claim: That Merrick Garland is treating him better than he and his DOJ treated Joe Biden’s son. But in his effort to claim he wasn’t simply inventing all this, Trump revealed that even in this prosecution, he’s attempting to interfere in Hunter Biden’s prosecution.

The Former President’s Spaghetti-Wall Assault on the Truth

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Donald Trump’s team has submitted its reply briefs on motions to dismiss:

I reiterate the analysis I have made here and here: these motions (plus the Motion to Strike that Judge Chutkan already rejected), taken together, don’t so much attempt to argue about Trump’s conduct. Instead, they try to separate out the conspiracies alleged and the mob that was central to it from a claim that Trump has a right to lie, a right to repeat false claims about the 2020 election no matter how many times those false claims have been debunked in court.

Trump made no effort to address certain key claims. As one example, Trump didn’t mention prosecutors’ observation that Trump couldn’t have a Double Jeopardy claim from Impeachment given that this indictment does not charge him with what Congress did, incitement.

Perhaps recognizing what I pointed out here — that Trump had simply ignored the way in which he used the mob to obstruct the vote certification, he includes a new section in it. But it was lifted from his reply brief on the Motion to Strike that already failed.

January 6.

The prosecution next repeats its false claim that President Trump “directed a large crowd of supporters, whom he knew to be ‘angry’ based on his election fraud lies, to go to the Capitol and obstruct the proceeding.” Doc. 139, at 19. But the indictment does not charge President Trump with any responsibility for the events of January 6, and rightly so. As set forth in detail in Doc. 156, President Trump encouraged the crowd marching to the Capitol to “peacefully and patriotically make your voices heard” and to “cheer on our brave senators and congressmen and women.”6 President Trump made clear that he expected to watch the electoral certification proceedings take place as planned that day. Id. And President Trump repeatedly denounced destruction of monuments and other symbols of American democracy, and he reminded the crowd that criminal penalties he signed into law for such actions. Id.

As the indictment itself alleges, the crowd gathered at the Capitol before President Trump finished speaking. Doc. 1, ¶ 107. The crowd already at the Capitol “broke through barriers cordoning off the Capitol grounds and advanced on the building” while President Trump was speaking. See id. The indictment does not mention that the 1,200 people who entered the Capitol was less than 1% the size of the crowd gathered to listen to President Trump, and that at least 99% of the crowd gathered to listen to President Trump did not enter the Capitol. William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec 23, 2021), https://www.newsweek.com/exclusive-classified-documents-reveal-number-january6-protestors-1661296. 7

And having belatedly attempted to address the mob, Trump nevertheless shamelessly claimed that the people he lied to were sophisticated enough to see through his lies.

President’s Trump’s listeners—including the sophisticated elected officials described in the indictment—were free to agree or disagree with President Trump’s views, and the prosecution does not allege otherwise.

Hundreds of January 6 defendants — conservatively — have explained that they pissed away their lives that day because they believed Trump’s lies. Trump’s reply briefs effectively amount to the argument that his First Amendment rights extend to being completely unmoored from any anchor to the truth, his First Amendment rights permit him to deliberately unmoor the truth to mobilize an attack on the country.

Perhaps unsurprisingly, I came away from a quick read of these filings exhausted, the exhaustion deliberately cultivated by the gaslighter. I could — I still might — go back and unpack every one of the gimmicks his attorneys have thrown at Judge Chutkan, like spaghetti at a wall. But ultimately it amounts to a demand that Trump be treated not just as above the law that the hundreds of his mobsters have already been held accountable to, but also above the truth.

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.

Lurid Realities: Trump Implies That Selling Nuclear Secrets Is Treason

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In this post, I noted that two passages from DOJ’s response to Trump’s Motion to Dismiss for Absolute Immunity — one pertaining to exchanging pardons as part of a quid pro quo, another describing otherwise official acts that would clearly be illegal — actually described things that may have or likely happened under Trump.

Here’s the latter discussion:

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record. [my emphasis]

Trump’s reply to that response addresses this second passage — at least, two items from it — in what it deems to be “lurid hypotheticals.”

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

Since Trump doesn’t include the entire list, here are the four items in it:

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

This footnote seems to suggest more than one and possibly all of these things — in a list including an order to the National Guard and an order to an FBI Agent — would be private acts.

That’s a consistent stance with the claim, in a footnote that concludes on this very same page, that Nixon’s suspected involvement in the DNC burglary as part of an attempt to win an election would also be a private act.

9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon. (Both of these points apply equally to President Clinton’s admitted perjury in the Paula Jones litigation, for which he was never prosecuted. Response, at 19.)

FWIW, I agree with this reply’s argument that DOJ doesn’t aggressively lay out the extent to which Trump’s alleged acts in the January 6 indictment are private acts. But if Trump concedes that Nixon’s suspected role in the DNC break-in to win an election was a private act, then it seems to concede that Trump’s own actions to reverse the outcome of an election he lost would also be a private act.

And Trump’s extension of private acts to this list of four “lurid hypotheticals” would seem to swallow up the entire argument about Presidential immunity.

But it seems to do something else.

There is nothing on that list resembling treason.

Accepting a bribe from Saudi Arabia to win a $2 billion contract for your son-in-law? Not treason.

Ordering the FBI to alter records to gin up an investigation against Joe Biden? Not treason.

Ordering 10,000 National Guard members to protect your mob as it attacks Congress? Not treason — at least not until it kicks off Civil War.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

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John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

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Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

How 9 Months of Camera Footage became 8 Years

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Even while Trump’s attorneys argued that he should be permitted to discuss classified information on private property that was already targeted by foreign spies before it became clear he was hoarding boxes of classified records there and may not have turned everything back, they argued that to investigate what happened with the stolen classified documents while in Trump’s custody, the FBI had to get 8 years worth of camera footage.

Actually, more than that. Trump’s response claimed that three-quarters of the total surveillance video turned over to date makes up 8 years, meaning the total would amount to around 128 months of surveillance footage.

To be sure, this is part of competing efforts to inflate (Trump) or understate (DOJ) the amount of discovery in this case.

I’m tracking those competing claims about what has been turned over in this table.

The latest claims — that would suggest that DOJ had turned over around 128 months worth of surveillance footage — reflect an evolving methodology on Trump’s part. On July 10, Trump’s lawyers described the initial batch of surveillance footage to be “approximately nine months of CCTV footage.”

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

On July 18, Todd Blanche described that the footage Trump’s discovery vendor had uploaded as of that morning amounted to 1,186 days — or “over three years” worth of video.

Your Honor, just starting with a question you asked Mr. Bratt a while ago about just one part of the discovery, which is the CCTV footage, which is extraordinarily significant to this case, not only as what’s obvious from the indictment, but it also in part gave rise to the search warrant, the affidavit, and the probable cause to search Mar-a-Lago. As of this morning, there’s 1,186 days of footage that we have uploaded so far, and our vendor is not finished uploading it. And again, I’m not questioning Mr. Bratt’s position about the time period, but there’s multiple cameras that were subpoenaed and that have been produced to us as Rule 16 discovery; and as of today, it’s over three years’ worth of video.

Now, I’m not suggesting to the Court that we’re going to sit for three years and watch three years’ worth of video, but it’s a tremendous amount of data and information, and we’re just — I’m just talking right now about the CCTV footage. While the Government is correct that they have pointed us to the few days that they believe are the most significant to them as it relates to the charges in the indictment and presumably the search warrant, they’re not the most significant to us. I mean, the movement of boxes and where boxes were on given days is extraordinarily significant not only to the justification for the search warrant of the President’s residence but also to the defense of the case. And so the CCTV footage alone, over 1,186 days, makes the schedule the Government proposed pretty disingenuous, Your Honor.

Yesterday’s filing describes that when Trump’s vendor finished uploading that first batch of surveillance footage — which was 57 terabytes out of 76 total — it amounted to 8 years of footage.

Furthermore, the government has produced approximately 76 terabytes of compressed raw CCTV footage, which is itself an incredible volume of material. Last week defense counsel finally finished processing the intake of CCTV footage that the government produced on June 21—the 57 terabytes of CCTV footage produced on June 21 totals nearly eight years of video. On July 31, the government produced an additional 19 terabytes of CCTV footage, including, according to the government’s production letter, “footage that was produced to the government in May that was not included in the government’s first discovery production.” Counsel recently received a hard drive with CCTV footage referenced in the government’s July 31 letter, and we are still processing that discovery to assess the total length of additional video the government produced.

That’s where my 128 months estimate comes from: if 57 terabytes amounted to eight years, then 76 might amount to 10.66.

To be sure, this effort to maximize the scope of the surveillance footage is just meant to impress Judge Cannon and it might well work.

But it also provides some way to reverse engineer what the scope of the surveillance footage really is.

For example, if the scope of this includes footage spanning 9 months of time, as Trump originally claimed, then 10.66 years of footage might suggest 10 cameras were ultimately obtained; according to the search affidavit, there were 4 cameras — from the hallway outside the storage room — covered by the initial production, and by counting using Trump’s new method, 2 months of footage from four cameras would amount to eight months of surveillance footage.

It’s funny math, but now there’s more than 16 times that.

Note that in July, Bratt confirmed the unsurprising detail that some of the footage is from Bedminster (which is probably why DOJ hasn’t done a search on Bedminster — because they could validate the thoroughness of the search done in November or December).

MR. BRATT: So it covers a nine-month period, but not all the cameras were — but it is not all the cameras at Mar-a-Lago or Bedminster; not all the cameras were always running. And the retention period that the Trump organization had varied from camera to camera, so it is not a solid nine months of video footage.

Now, I’m interested in the scale of the footage for several reasons. Yesterday’s motion pointed to the 8 years of footage as proof that nothing ever got deleted.

As relevant here, the charges allege various obstruction-related conduct arising out of false claims of efforts to destroy certain video tapes. No videotapes were deleted or destroyed and the government does not so allege; indeed, President Trump has produced to the Special Counsel’s Office what amounts to more than eight years of CCTV footage.

It’s certainly possible that when DOJ started the investigation that led to multiple obstruction charges, they were just trying to figure out why Trump totally blew off the part of the initial subpoena that asked for locations in addition to the hallway outside the storage room (which I laid out here).

Particularly given that the claim accompanied the suggestion that the alleged attempt to delete footage in June 2022 was “false,” I certainly wouldn’t credit the amount of footage eventually obtained by the government as proof that nothing was deleted. It’s not even clear that all the footage comes from Trump Organization, much less the guy who used to be President.

But the other reason I remain obsessed about the amount and types of surveillance footage here (besides, perhaps, my PhD in literature), has to do with the types of questions investigators may have been trying to answer.

Take, for example, the claim by Bratt on July 18 that the movement of boxes key to the initial obstruction conspiracy happened on May 24 through June 2.

With respect to the closed circuit television and the movement of boxes, I would just note that the movement of boxes occurred between May 24th and June 2nd. So it’s not years’ worth of video with respect to the movement of boxes.

If so, that would suggest Nauta’s movement of a single box on May 22 was something besides an attempt to obstruct the subpoena response.

Or consider the way Trump’s lawyers boast about what an unusual place Mar-a-Lago is.

We similarly reminded the government of the uniqueness of President Trump’s residence, including that it is in a highly protected location guarded by federal agents that previously housed a secure facility approved for not only the discussion, but also the retention, of classified information. The government’s Motion suggesting we anticipated discussing classified information in an unsecure area is wrong, and they are fully cognizant of that fact. Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

This neglects to explain why no sane person would want to restore a SCIF at Mar-a-Lago as explained very easily in the indictment.

The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP’s residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.

Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.

Mar-a-Lago shouldn’t be compared to the residence of “any private citizen,” sure, but for entirely different reasons than Trump’s lawyers want to admit: it’s a counterintelligence nightmare, and was long before Trump started hoarding classified documents in the gaudy shower, and was even ignoring the known targeting of the compound by foreign spy services.

One thing those surveillance videos are going to show is people besides Walt Nauta who got into the storage closet, perhaps to stash their guitar there, and in the process knocking over and discovering classified records that as a result have to be burned.

If there really is over 10 years worth of video surveillance, spread across a bunch of cameras and two properties, it’s likely some of the surveillance will show stuff Trump didn’t control, but stuff for which he should be held accountable.

Update: Added the quote about Bedminster bc as coalesced notes, Bratt’s comment about retention period is also worth noting.

Shorter DJT: Mexico Will Pay for My New SCIF

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In Trump’s response to DOJ’s motion for a classified protective order in the stolen documents case, his lawyers clarified that they didn’t so much want to discuss classified documents with Trump while sitting in his offices, which is how the government represented their request, but instead wanted to restore the SCIF at one or another of his resorts.

Even there, the response itself says that Trump wants to review classified materials in a restored SCIF, while a footnote disavows that, then says he wants the space where he used to review such material, with another footnote disavowing a plan to transport classified documents there now.

President Trump opposes any portion of the Proposed CIPA Protective Order that prohibits counsel from simply discussing the relevant purportedly classified material with President Trump inside an approved secure location other than the designated SCIFs in the Southern District of Florida where the classified discovery will be housed. President Trump respectfully requests that the Proposed CIPA Protective Order be modified to approve re-establishment of a secure facility in which President Trump was permitted previously to discuss (and review2 ) classified information during his term as President of the United States.3

2 To be clear, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to or reviewed or stored in, this location.

3 Counsel can provide additional information about President Trump’s proposed secure location but respectfully request that such information be provided in camera because of security concerns.

[snip]

So that President Trump and his legal team may discuss classified information in a substantive manner as regularly as necessary to prepare an adequate defense, we respectfully request that the Court approve re-establishment of a secure facility in which President Trump previously discussed (and reviewed5 ) classified information during his term as President of the United States.

5 Again, President Trump is not requesting that any classified materials be transported to or reviewed or stored in this location. [my emphasis]

Throughout this filing, Trump refers to purportedly classified material in the body of his argument, then disavows wanting to transport classified material in a footnote.

To that end, President Trump requests that the Court approve the renewed use of the previously approved and appropriately secure location so that he is then able to discuss the relevant classified information with his counsel without the need to mobilize his security detail and state and local law enforcement every time he has a conversation regarding his defense as it relates to purportedly classified information.8

8 Again, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to, or stored in, this location.

[snip]

Indeed, the government has the authority to discuss the purported classified material in other approved facilities outside of a Court designated SCIF, and we anticipate it does so regularly. That is not inconsistent with the law so long as they are having those discussions in a secure, approved facility. Our request is to have the same opportunity. We are seeking the Court’s permission to discuss classified information in a secure facility that was long approved for such use and met then, and could easily meet now, the standard required by our nation’s intelligence community to ensure protection of information deemed classified. [my emphasis]

All the reassurances that Trump doesn’t want to store classified material back at Mar-a-Lago modify claims that it might not be classified. Given those caveats, there’s a big question whether stolen classified documents will end up right back at Mar-a-Lago.

Put aside the gimmick here — Trump is demanding that the government make his home a legal place for classified information, which still amounts to seeking, “permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

This is also a filing about Secret Service. The response and Todd Blanche’s related declaration describes that this proposal is based on, “multiple communications with several individuals who are familiar with the required security protocols surrounding President Trump and his family.” But it doesn’t describe any consultation with the people whose job it is to protect classified records.

6. When President Trump was in office, there was a designated, secure location where classified information was approved to be housed and discussed. We have had discussions with officials familiar with this arrangement.

Blanche says that because he had discussions with the Secret Service agents who know where the SCIF was, it’s the same as discussing security arrangements for building and maintaining one.

That is, this filing is about conflating the protection of Trump with the protection of classified records.

Indeed, Trump repeatedly minimizes the risk of storing classified records at Mar-a-Lago, with all the spies targeting it (which I’ll return to), because of the Secret Service detail there.

Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

[snip]

President Trump objects to the Proposed Protective Order insofar as it does not allow him and his counsel to discuss the relevant purportedly classified material inside an appropriate secure facility at or near his personal residence. Limiting any discussions with counsel to the government offered SCIFs is an inappropriate, unnecessary, and unworkable restriction, given the unique circumstances of President Trump’s access to security—namely that he resides and works in a secure location that is protected at all times by members of the United States Secret Service, and that the proposed alternate location previously housed an area approved for not only the discussion, but also the storage and review, of classified information

[snip]

The government’s Motion dismisses this fact and compares President Trump’s request herein to any other defendant’s request to discuss classified information in their “private” or “personal residences” or offices. (See ECF No. 84 ¶¶ 13–14). This characterization is misleading and misconstrues the facts of this case. Donald J. Trump served as President of the United States for four years, and he, along with other Presidents and senior government officials, have had access to remote facilities for the purposes of reviewing and discussing sensitive information while in office, and at times after leaving office.

Of course, Trump didn’t have access to classified information after he left office, at least not after Biden ended Trump’s classified briefings in February 2021.

But this dispute is likely partly an attempt to manufacture some conflict between the President and the guy who wants to replace him.

The argument here is based on inflated claims about how hard it is for Trump and his Secret Service detail — who are making multiple trips a week to give speeches in places like New Hampshire high school gymnasia — to travel from Mar-a-Lago to a SCIF in South Florida.

2. If President Trump travels to a public facility in the Southern Division of this District, most circumstances would require an overnight stay in the local area by his protective detail, including members of the Secret Service, as well as an overnight stay by President Trump, due to the distance between his residence and the public facility.

[snip]

5. In any of these scenarios, the required security measures take significant planning and effort, as well as financial resources.

6. The alternate secure location in which President Trump seeks to discuss (but not review) classified information is under 24-hour a day full security protection, whether President Trump is present or not. Furthermore, the government can re-establish a restricted area within the proposed secure location in which President Trump and his legal team can discuss classified information in a manner that is consistent with government security protocols.

7. Between 2017 and 2021, with reasonable effort and expense, a secure facility was established and approved at President Trump’s residence in the Southern District of Florida. In that facility, President Trump was permitted to review and discuss classified information. Reestablishing this secure facility is readily possible if the Court so directs.

Donald J. Trump — the same guy who never missed a chance to bilk the Secret Service for space in his own residences or hotels — is demanding that the US Government minimize the inconvenience of secure travel by him to defend himself for stealing classified information even as he is traveling all over the country — incurring the same costs and inconveniences for those around him — campaigning with nary a care about the cost that imposes on tax payers.

And he’s not offering to pay the US government to rebuild the SCIF in his beach resort.

Multiple people on Xitter joked that he’ll probably just ask Mexico to pay for it, and that’s about right: Trump is promising that the government can build something instantaneously without cost.

But given that Aileen Cannon is involved, it may well work.

This is not a good faith offer. It is an attempt to create a conflict that, if and when it is appealed to the 11th Circuit, will present closer calls than the ones on which Judge Cannon got her ass handed to her last year.

Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

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There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.

[snip]

Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.

[snip]

The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

  • The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
  • Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
  • The death threats that followed Trump’s public attack on Al Schmidt.
  • Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
  • In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.