[Updated unexpectedly] Three Questions Brought Up By The DOJ Filing & Trump’s Reaction
Just when I think I'm out, they pull me back in again... [update: x2]
Last night’s filing by the DOJ of their motion to dismiss the Trump legal team’s request to have a Special Master appointed by the courts has, so far, inspired two posts from me: one that’s a mostly serious analysis of the document and a second one that points out the ridiculousness of the defenses currently being raised by Trump supporters. I had planned that would be it until the release of a response from the Trump team, most likely at or near midnight tonight. However, fate intervened as I came across two questions that were both worth sharing to help expand the conversation.
Question #1: Assuming Trump’s team does not mount a “he declassified these documents” defense, what is the implication for people who spent time in those unsecured rooms with classified documents?
First, I fully expect that the Trump team is going to finally use that defense. I personally don’t think it’s a strong one, but it’s the best option they have to slow down the overall process. However, let’s ask ourselves what happens if they don’t. We know that one of the locations the documents were stored was in the “45 Office” (i.e. the former President’s office) at Mar-A-Lago. That wasn’t a secure room. Beyond the former President’s staff, there were others who had access and were regularly in that room (the housekeeping staff for example). Most likely none of those people had the level of security clearance to have direct access to those documents. How does that impact the case moving forward?
There is an argument, that those people might never have seen the documents because the drawers they were in were normally locked. However, one of Trump’s other attorneys might have some exposure. A little while ago, journalist Yashar Ali made the following connection:
In sworn testimony, attorney Alina Habba, told a New York State court that she conducted a search of Trump’s office at Mar-a-Lago on May 5th that included “all desks, drawers, [and] closets” in Trump’s “private residence and personal office” (with his permission). Given the timeline, it is well within the realm of possibility that some of those documents were in the drawers at that time. I expect that if things move forward, the DOJ will have some questions for Ms. Habba.
BTW, I’d love the thoughts from readers with direct experience with classified documents.
Question #2: If the DOJ was to move forward with prosecution, when might that happen?
This answer to this one is a little more clear: almost certainly not until after the election. Generally speaking, the DOJ has a policy limiting politically controversial decisions that begins between 60 and 90 days from the election day. We’re already past the 90-day mark and will be hitting the 60-day mark next week. In theory, everything should be going dark on the Government’s side until after the first Tuesday in November.
In theory.
There is a caveat here: I honestly don’t think that if the Trump team had not pushed a variety of legal issues we would have seen these disclosures from the DOJ in the last few weeks. Every one of them, including last night’s, was in response to legal action taken by Trump attorneys.
If Trump attornies continue to file motions, then I fully expect the DOJ to continue to respond to them. We still expect a filing from that team tonight (and I am expecting to finally get both an affirmative declassification and executive privilege defense–the latter of which will be DOA thanks to Nixon). So there is a greater than zero chance that this could continue to unfold between now and Election Day (especially if Trump feels that would benefit him).
As usual with the former President, we are in uncharted territory.
[Reluctant Update, 8/31 at 6:30 PM ET]
I swore to myself that, other than replying to comments, I wouldn’t post more on this. Then the former President decided to go on Truth Social.
Question #3: Is former President Trump a good client for a lawyer to have?
No.
No, he isn’t. Especially as this is essentially confirming that those documents marked classified were (1) in fact on-premises and (2) outside of the secured space, which (3) his attorneys had previously sworn wasn’t the case. Not to mention (4) not planted by the FBI.
This can potentially be used as evidence against his attorney in any obstruction trial. It probably can be used against Trump as well in terms of acknowledging that he knew the documents were on-premises.
See you all tomorrow morning to parse the Trump team’s filing.
PS. By all accounts, even his own legal team, they did have a representative present during the search as they received the copy of the warrant and the inventory. Beyond that, he was (apparently to his chagrin) being treated like any other person who has had a search warrant served on them. Given the number of former associates who have experienced search warrants, you think he would have learned that by now.
Another caveat to #2 (hehehehe) is that Trump is not on any ballot for this November’s elections. The DOJ’s moratorium, as I understand it, is to prevent the appearance of trying to affect an election. That’s a harder argument to make if the person in question is not running.
The whole DOJ filing reads to me like “Your Honor, here are a dozen reasons you don’t want to touch the special master and executive privilege things with a ten-foot stick. We’ve done all your legal homework for you. You can just copy and paste most of your ruling.” If the judge chooses to move forward and appoint a special master, ignore the warnings about that master requiring high-level security clearances, halt the IC review of the classified material, and makes up a new personal privilege for former presidents out of whole cloth, well, there might not be an indictment but the DOJ will be very busy with very visible appeals.
In Jan 2021, Trump stole top secret documents that allegedly includes information on confidential informants and sources.
In Oct 2021, CIA Counterintelligence sent a top secret cable warning an unusually high number of confidential informants were being killed, captured, or compromised.
Things that make you go, hmmmmm.
@Jon:
He is still the de facto head of the national party in a way that no former President has been in recent memory (including both 1-termers Carter and Bush). There is no evidence (and significant counter-evidence) that this department and this AG would never move against him unless Trump’s attorney’s forced their hands.
@Michael Cain:
Ok, so again, I’m a notoriously bad prognosticator, so get a hefty grain of salt ready.
From what I know of the average Federal Judge (which is actually more than the usual zero), I think this is a case where the motion went forward in deference to the fact he was a former President. And I think the Judge probably wants some degree of cover from the DOJ (which they amply provided) to quash this on the merits (hence giving the DOJ more pages).
So I predict at this point a quick rejection (in part for the reasons that you raise).
@Matt Bernius:
All very true. That said expanding the moratorium to apply to people who are not actively running seems like a bad precedent and potentially opens things up to a lot of abuse.
Still, I agree with you that the DOJ will most likely wait, both for the reasons you stated and because it gives them more time to develop their case(s). And really, a lot of the potential damage has already been done with everything that has happened the last couple weeks. We know that Trump can’t keep his mouth shut so, as you point out, there’s a good chance DOJ will have to respond to filings from the Trump camp before then anyway.
@Daryl and his brother Darryl: I
Where is the basis for this?
Not only were there uncleared people handling the classified material at MAL but the entire chain of custody has to be determined from the packers to the movers to the unpackers.
@Lost in Quebec:
There have been reports about this circulating. See for example:
https://www.nytimes.com/2021/10/05/us/politics/cia-informants-killed-captured.html
I, at this point, think that connecting this with Trump’s document possession currently is wishcasting (and trying to seek patterns where they do not exist). As always, I reserve the right to say I was wrong (that happens a lot FWIW). But this currently has the trappings of more conspiracy theories and confirmation bias than anything else.
@Matt Bernius:
That’s what the internet is for! (after porn, of course)
@Matt Bernius: I think assuming that Trump proactively handed the information over is wishcasting. I think the sloppy way in which highly classified documents about human sources were handled at a GOLF CLUB where people were in and out all of the time means that even if Trump didn’t put a bow on this information and hand it over, it’s at very least possible. I certainly hope that any security footage from January 2021-on is being reviewed closely.
No doubt he will insist they do, (“I’m paying you to fight! Not sit around on your hands keeping quiet!”) and while the lawyers who have been handling this were certainly silly enough to follow his orders, his new hires appear to be of a higher caliber. I would expect them to be a little smarter. If they prove not to be, DOJ will certainly respond.
@Matt Bernius:
I suppose we shall see. Maybe we never will.
But Trump had that shit for a reason.
A reason no one has explained yet.
I don’t buy your explanation (in a previous thread) that he had them to look cool.
Trump is all about money. And he knows that this stuff is worth lots of it to the friends he made in office – Putin, Xi, Netan-yahoo, Orban.
To me selling these documents IS the Occam’s Razor explanation.
@Daryl and his brother Darryl:
I think this is core of why we have a difference of opinion. I actually don’t think Trump is all about money.
Based on coming of age in the tristate area in the 80’s and early 90’s (i.e. the Robin Leach and Art of the Deal era), I don’t think he’s all about money. He’s actually all about status and brand. Even folks like David Kay Johnston who have studied him for years have noted he doesn’t care about things like debt. What he cares about is people believing he is wealthy and powerful and keeping that image going. And I believe he thinks he can keep that grift going indefinitely (there is always a bank).
So that’s why I go in one direction (this is all about showing status) where you go in a different direction (this is about money).
@Jen:
That is an entirely different possibility and one that is more likely (assuming the documents that were taken are related). That gets back to the issues raised in item #1.
@Matt Bernius:
It could be for Trump that status equals money.
HarvardLaw92 and I years ago agreed that the defining factor of Trump’s life is that he was never accepted by Manhattan’s upper crust. He’s always been the street kid with his nose pressed up against the window watching the haut monde cavort. But he was too ludicrous a spectacle ever to have any remote chance of infiltrating those azure ranks. So he decided to make a public spectacle of himself to get the attention he craves.
If they were just in the room and did not access the documents and did not know the documents were there, nothing. The issue is not the sort of magical emanation that Trump is invoking in saying that he declassified the documents but didn’t tell anyone. The issue is the safeguarding of the information, which is the point of classification. A lot of this discussion is clearer when you keep in mind that it is the information that is classified.
If they accessed the documents, and particularly if they took photos of them or copied them, well then, DOJ would like to talk to them.
@CSK:
While I agree with the second sentence, I don’t agree with the first. Or rather, I’d say that for Trump its “status equals the *perception* of money.”
There’s a key and important difference there.
If Trump cared about money in the way that people think he did, then he would go a different route (think someone like Warren Buffet or Bill Gates). What I (and others) believe he cares about most is being thought of as rich and powerful.
While similar, there are critical differences. People who care about being rich spend a lot of resources on being seen that way. From what I can tell, people who care about money don’t waste money on getting external validation about how much money they have.
The challenge for some in the first category is that they also have that nagging voice in the back of their head that reminds them that ultimately, they are not as rich or powerful as they appear and so they need external trappings to help tamp that voice down.
Aside: I am definitely curious for if/when HL92 shows up to give us his perspective (and critique my analysis).
Hey @Cheryl Rofer, I was hoping you’d chime in. Question on this:
What about the case where, conducting a search for other materials, they opened a drawer, saw those cover pages, and then closed the drawer and didn’t mention it to anyone?
That’s honestly what I’m the most interested in analysis on. We know there were docs in unsecured rooms. What is expected of an average citizen in those cases? And what about someone who is a legal professional?
Would LOVE your perspective on this.
@Matt Bernius:
Sooo…my other theory of the case is that no one has ever been busted for Secret Documents and it turned out they were just showing them off to their friends.
Or so I thought – then I found this guy.
https://www.npr.org/2019/07/19/743345689/ex-nsa-contractor-who-stole-top-secret-documents-sentenced-to-9-years-in-prison
@Matt Bernius: The “didn’t mention it to anyone” is the problematic issue. Maybe they didn’t know what they should do or what classified material is. This would be the case, for example, with movers or cleaners. I would think that would be right down there with people being in the room with the documents.
Ms. Bobb seeing the documents, however, would be a different matter. I say “DOJ would like to talk to them” because there are many possibilities of how much they knew and what kind of access they had. Also the nature of the documents.
@Cheryl Rofer:
TY for that.
That was my sense too. I am sure this scales depending on perceptions about what someone should know as well. And in the case of Trump’s other lawyer, it might be a hard case to prove that the docs were there at the time due to the lack of document tracking.
Agreed. As I wrote in a different post, Ms. Bobb better find an attorney that is far better than she is because she is in real jeopardy.
@Daryl and his brother Darryl:
I think the two questions that should be asked before citing that case is “was that rando the former President of the United States who successfully survived two impeachment hearings?” and “what are the chances that said ‘former President of the United States who successfully survived two impeachment hearings’ actually hand any notion that this case ever happened?”
Again, this isn’t a defense of Trump, just that he’s going to be treated differently (though I also believe that the runway on that is fast disappearing).
@Matt Bernius:
There seem to be video recordings of some aspects of people accessing the room. DOJ has requested them – subpoenaed I think.
As to tracking, I don’t expect that anyone at MAL signed the sheets that one must under more secure circumstances. I get a bit impatient with people commenting on the chain of custody. It is true that the procedures for handling classified documents are basically chain of custody procedures. THE CHAIN OF CUSTODY WAS BROKEN WHEN TRUMP HAD THOSE DOCUMENTS PACKED UP. Maybe before.
Something can be constructed as to who had something to do with the documents when, but it never will be a chain of custody. It will be evidence for the trials.
@Matt Bernius:
True. But Trump lacks Gates’ or Buffett’s brains and acumen. He confused the perception with the reality. At this point, he may not be able to distinguish between the two.
@Matt Bernius:
@Cheryl Rofer:
Matt, I really appreciate the post, answers, and thoughts on what’s ramping up to be arguably the greatest fuster-cluck since 3rd rate yahoos were taping doors in the Watergate.
A few random thoughts from a (mostly) retired E3 in Puddletown versions of Crane, Poole & Schmidt.
1. Vis-a-vis [Bobb] signing documents attesting that they’d given everything over, I fully expect the attorney (and her firm) to exercise the time-honored diversion of saying “Della Street wrote this, I just signed it.” As Cheryl, Beth, and HarvardLaw92 can attest, this argument never holds water. Hey, I wrote lots of things in 35 years, but the person signing was the one with the bar number (and malpractice insurance). Paralegals and staff are junior assistant spear chuckers (and we are reminded of that at every opportunity).
2. If she doesn’t roll over and beg to cooperate, she’s too stupid to be allowed access to communal oxygen.
3. The SC of 2022 is a far cry from the SC of 1970-74. If this comes before the present August Body, I’m betting on them creating new privilege out of whole cloth (or a used diaper, your pick)
Matt, as a sidebar, I’m not taking my ADHD meds, and I’ve tapered off my anti-anxiety meds (prescribed for chemo). That said, this comes to mind: https://youtu.be/ZDO3kEB_t8I
[MB edit: because there are multiple “shes” in the current situation. I wanted to make sure we were all clear about which one we are talking about.]
[MBx2: It totally has been the wrong decade for it.]
@Flat Earth Luddite:
(1) Thanks, Matt! Well caught and clarified.
(2) oh, completely the wrong decade!!
@Cheryl Rofer:
Yeah, probably not…and I’d “LOL” here if this weren’t so horribly serious.
This. There can be no document tracking for these documents. None of the proper controls or procedures were followed. It’s almost certain they were not packed properly, and we 100% know they were not stored properly. We don’t know if 10 people had access or 10,000, and certainly whoever had access was not authorized access to classified. Including Trump himself.
I’d like to get a count of how many times Trump has bloviated about Hillary’s e-mails since he stole all that TS from the White House. As always, every accusation he makes is actually a confession.
Oh holy shit hahahahaha what a bloody fucking imbecile he is. Like, “But I wore the juice!” level stupid.
Again, shouldn’t be hard. Her last two jobs, in order, were 1) presenter for OANN and 2) worker for the FG campaign.*
*Whether she hired on before the election or during the “stolen election” campaign, I’m no longer clear on (nor do I particularly care, the point is that he can’t even hire actual working lawyers anymore).
If Ms. Habba saw classified materials while performing other duties (looking for documents related to another legal matter), and she does not have a security clearance, then this is called an “inadvertent disclosure.”
These happen from time to time due to improperly following the procedures for securing classified material.
Usually, this is a lot more mundane than the situation with Trump – For example, someone accidentally puts classified in the regular trash, and someone finds it in the dumpster. Or, in one incident I dealt with, a person was carrying a briefcase of classified between two buildings to do a briefing, they bumped into someone accidentally, dropped the briefcase, which popped open, and a couple of pages blew away in the wind.
The person who finds something they shouldn’t have isn’t in any trouble, and at least from your description, that should be the case with Ms. Habba. Generally, they will be asked what they saw, informed about the various laws related to classified information, told they could be subject to those laws if they share any information they saw, and then will be asked to sign an NDA. AFAIK (IANAL), a private citizen cannot be made to answer questions and can’t be forced to sign an NDA.
There are times inadvertent disclosure is planned for – generally emergencies. For example, if there’s a fire in a SCIF, or a medical emergency, then life and safety take priority over protecting classified information. After the emergency is over, first responders are asked if they saw anything, are informed about the laws regarding classified info and are asked to sign an NDA. At least these were the procedures in the DoD – other agencies might be different.
Normally with an inadvertent disclosure, there would be an investigation to determine why the disclosure happened, and then procedures might be changed to prevent that from happening again. But of course, that isn’t going to happen with Trump because the documents were not properly secured in the first place.
The problem here is obviously Trump, but it is also the White House generally, which operates much differently than the rest of the federal government when it comes to handling classified. As I explained in a comment on an earlier post, the WH relies heavily on paper documents so the President and principles don’t have to live in the SCIF. And I’ve already discussed the President’s plenary authority – he doesn’t have to follow the rules and even with the principal political appointees, it’s run on trust more than procedure. This is why it is so easy for reams of printed classified material with cover sheets to be put in boxes and simply carted away – something that would be near impossible anywhere else in the federal government.
And – people here will not like to hear this, but Clinton’s emails were also a potential case of inadvertent disclosure, although since it was on a computer system, it’s called a classified data “spillage “. I don’t remember if there was any reporting on this, but I would not be surprised if Anthony Weiner, the people who managed Clinton’s servers, and possibly others were at least asked if they saw anything and warned not to disclose anything they may have seen.
@Matt Bernius:
and
Depending on the material, document tracking is usually not required. Plus, document tracking was ended for even most types of finished documents quite a while ago including SCI. Looking at the latest SCI Manual that covers the DoD:
Even though this is DoD guidance, these are intelligence-community-wide standards.
This was done to lessen the administrative burden of tracking and auditing billions of pieces of paper – and in conjunction with that, there was a big move to put everything on networks so there wouldn’t be any more paper and to focus on physical security for what paper there is.
The vast majority of worker bees in the intel community these days don’t deal with much paper at all, and this is by design because it’s easy for paper to walk or get misplaced.
After Snowden and Manning, most portable electronic media was banned and the community started moving toward a client-server system where no information is stored on the client’s computer – that way all data is kept centralized and controlled.
Again, the White House operates very differently from the rest of the federal government.
@Cheryl Rofer:
The chain of custody is what I focus on, because it seems obvious that the intelligence agencies have to now assume that every single document has been compromised, and since MAL is such a fetid swamp of international influence peddlers, the documents have been seen or sold to nearly any hostile foreign power.
We need to focus on that fact, since I’ve seen defenses asserting that well, since he didn’t actually sell them its just a minor paperwork oversight.
Late to the 3rd update party but wanted to remind you that he is just so special, not an ordinary plebe like all those peons he’s hired over the years.
And yes, I’m being sarcastic. Nobody actually needs that reminder.
WRT the debate over TFG’s intentions vis-a-vis the classified documents (i.e., self-protection, monetization of information in them, etc.), I think it’s safe to say that Trump will never be cited as a good example when someone takes it into their head to write The Billionaire Next Door.
Just to add to the discussion of Trump and wealth, I think John Mulaney captured him fairly well when he described him as a hobo’s idea of a rich man. Or a horse in a hospital.