Initial Analysis Of Yesterday’s DOJ Filing In Trump Document Investigation
It appears that the DOJ has enough evidence to indict someone.
![[Photo of documents marked tclassifed taken in August search of Mar-A-Lago]](https://otb.cachefly.net/wp-content/uploads/2022/08/FbdY32sX0AEIBa0-1024x690.jpg)
Last night the Department of Justice responded to the Trump legal team’s petition to have a Judicial Special Master appointed to review the documents it recovered in the August Search on Mar-A-Lago. Having scanned the filing and read analysis from a variety of experts (I highly recommend these two Twitter threads from Gabriel Malor and Renato Mariotti), here are my current takeaways from the document.
#1. Not a lot new in it, but what is new is significant.
Thanks to the release of various documents about the lead-up to and the search, the filing largely confirms and expands on things we already knew. It confirms what was taken in the search and the nature of the documents while providing some additional details (over 100 documents marked classified were recovered during the August search). The statement also confirms that classified documents were found outside of the “storage room” (more on that below). It also verifies the timeline laid out by the National Archive and again documents the stonewalling from the Trump legal team. For the sake of brevity, the rest of this post will focus on the new details and what they could mean.
#2. The document confirms that in May former President Trump was served with a grand jury subpoena seeking documents bearing classification markings.
This is an important reminder that while the specific charges listed on the Search Warrant were NOT directly tied to the topic of classification, this issue still remains at the heart of this case (more on that below). This is what led to the June turnover of documents. This grand jury was convened by the Justice Department based on a referral from the National Archives. The key takeaway: Trump’s legal team has had time to prepare for this since May.
#3. The Trump legal team knowingly or unknowingly misled the Government over where documents were stored and the existence of remaining documents
After the June removal of the classified documents, one of Trump’s attorney’s signed the following statement:
Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.
I swear or affirm that the above statements are true and correct to the best of my knowledge.
https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.48.0_1.pdf
The filing notes that over 100 documents marked classified were recovered in the August search (double the amount turned over in June).
Even worse for that attorney, they said the following to the government agents:
[C]ounsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched.
ibid.
Additionally, on that day the attorney in question “explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room.”
Taken with what we have learned since then, I would say this attorney is in a LOT of trouble (and most likely going to be “Fall Guy” (or “Fall Gal”) #1). All of this taken together should establish adequate mens rae for a “lying to the FBI” charge if not full-out obstruction.
Additionally, including this in the filing can be taken as implying to the Federal District judge reviewing the order that Trump’s legal team has a history of not acting in good faith. In fact, they hang a lampshade on this fact:
That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.
ibid.
For more on the topics of Trump’s attorneys and what they have said to have taken responsibility for, see this analysis at Empty-Wheel.
#4. It turns out Trump’s Passports matter after all.
Shortly after the search, it was revealed that the FBI had taken Trump’s passports along with other evidence. There was a lot of speculation as to why. Then the passports were quickly returned. The filing provides more detail and points to the implication of why the seizure of the passports was so important.
Consistent with Attachment B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion.
ibid.
The passports were seized because they were found, outside of the storage room, in the draw of a desk located within Trump’s personal “45 Office” that contained documents marked classified and other government records. This is really important for two reasons. First, it demonstrates that after the June document handover, classified documents (none of which were supposed to be there based on the attorney’s statement) were being intermingled with the former President’s personal effects outside of the Storage Room. And because this was in the former President’s office, it makes it even harder to indicate that he had no knowledge of the presence of the documents (and note from the picture at the top of the post that the markings on said document’s cover pages are not exactly subtle).
Ironically, the GOP House Judiciary committee tried to joke about how the box containing the classified documents pictured at the top of this post also contained a framed picture of Time Magazine. However, all that does is demonstrate how intermingled these documents were with personal items. Again, that is not a great look–especially if these were not declassified, which gets us to…
#5. Despite advancing the claim the documents were declassified in the media, the Trump team has yet to make that argument in filings
Again, I realize that some people consider the classified issue to be a distraction, but the DOJ clearly has other feelings. They confirm something I observed a few days ago–that the Trump legal team has never assertedly made the argument that the former President actually used his power to declassify these documents.
The filing actually takes this point a step further and argues that if anything, the actions of the President’s attorney’s in June suggest they still believed the documents to be classified:
On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.
ibid
This is a bit of reading the tea leaves, but it appears that the DOJ is building a case to defend against claims of blanket declassification.
Additionally, they note that at no time did Trump’s attorney directly invoke executive privilege (they only suggested it as a possibility).
So what does this all mean?
First, despite Trump and his supporter’s protestations, the fact this document exists is proof of how much deference the former President has gotten through this process. The request for a Special Master in this case (coming weeks after the search) is absurd (in addition to the DOJ’s reasoning see also this amicus brief filed today). If this was any other person, it’s doubtful that a Federal Judge would have let it get this far. And more importantly, the DOJ would never respond to such an absurd request.
Second, the DOJ is taking this very, very, seriously. This level of detail (they had to get the court’s permission to submit a filing that was 15 pages over the allowed limit) is very usual for one of these responses. I think a strong argument can be made that they are using this as a way to demonstrate the strength of their case and the underlying evidence (or at least what has been shared with the public). I (and my live-in legal expert) read as them engaging in a PR game, not to mention communicating to the Trump legal team the level of jeopardy that are in.
Finally, as the subhead suggests, what has already been made public is significant enough to indict on. At a minimum, I hope the Trump lawyer who was referenced in the filing has a good lawyer. And, based on all of this, and in particular the discovery of documents marked classified in the draw of a desk in the former President’s office, comingled with personal documents, they most likely have enough to indict the former President.
Of course, having the evidence and choosing to act are two different things entirely. And while indicting Trump remains a possibility, it’s still, in my mind, a low probability. However, I will also admit that with each new document release, the probability will get higher and higher.
And, who knows what might happen if the DOJ decided to go hard after a Trump attorney who they most likely have dead to rights? Thanks to the new laws signed by President Trump, they are potentially facing a felony conviction with a not insignificant amount of prison time associated with it.
Two quick addendums:
- The Trump legal team has until midnight tonight to respond to this filing. That document will be one to watch for (and in particular if they finally affirmatively assert that the former President believes he declassified these documents).
- No, I don’t think any of this will sway any of the former President’s core supporters. I do think it’s going to eat into some support at the margins. I think Lindsey Graham is one to watch.
One more addendum that I should have thought of earlier…. Like the Republican House Judiciary Account, we’re about to see a lot of people publicly demonstrate how either deeply and willfully ignorant they are or that they have absolutely no defense for what has been revealed. Here is one example of that from a Trump 2020 campaign strategist desperately trying to throw up covering flack.
This fails to “understand” that (1) this was evidence documenting the contents of box A2 from the search in August, (2) the fact that all it shows are the cover sheets (which are enough to demonstrate what the documents were marked as), and (3) that at least some of those documents contents were concealed–Andy, I’m curious if you could speak to why those were handled in that way (I’m guessing no cover sheet).
I do welcome any of the former President’s supporters who are most likely reading this article to offer any alternative explanations or defenses that they think excuse what we are seeing.
I believe that is Christina Bobb, a former OAN news anchor who is a complete Trump sycophant.
@Daryl and his brother Darryl:
That’s been the speculation. If that is the case, I hope she finds a lawyer who is better at their job than she is.
Trump is a criminal. Not yet convicted, but there is no reasonable explanation for any of this.
However, what all this highlights most of all is the complete and utter corruption of the GOP.
I’m old enough to remember being told by various GOP representatives that Clinton’s email practices disqualified her from office and warranted a serious criminal investigation.
Just look at these clowns now.
Good post.
I think Trump is probably fucked – for obstruction if nothing else. The evidence here seems to me to be much stronger than anything with Russiagate.
The actions (and inactions) that he and his people took do not make much sense because they seem to be about as stupid as one could imagine.
IANAL, but I wonder if the lawyer who made false certifications can claim they were lied to. Could they, in other words, be forced/given a deal to testify against Trump, similar to Cohen.
I think you left out an n’t there.
@Matt Bernius:
I’m beginning to think that regardless of what they do to Trump that Atty needs to be stomped out with both feet, publicly and hard. She needs to be jailed and disbarred. She should be used as a warning to all other attorneys that this shit isn’t tolerated at all.
I don’t care if she’s a lickspittle flunky nobody. Her professional execution should be used to terrify other attorneys into good behavior.
Agreed on this point.
Linky please?
Good post Matt, lays it all out rather well.
A properly loyal trump lackey knows to throw herself under the bus, in order to spare Benito the effort.
@Andy:
I had a similar thought: either the lawyer takes the fall for clearly lying and therefore obstructing justice, or they end up testifying that they were told to lie by someone else activiley trying to obstruct justice.
I’m still waiting for the WHY?
What in the fuq was the former guy doing with this stuff?
Some of it was in his desk drawer…so it was in active use.
For what?
Has he already sold pieces of it?
@Andy & @Steven L. Taylor:
I had talked with my live-in legal expert about this and she said it is possible for a lawyer to mount that defense. However, as lawyer Greg Doucette pointed out when he answered a question for me on the topic back when the search happened, it does require the laywer in question to IMMEDIATELY stop representing the client.
There is also the question of who they will cite as responsible for lying to them.
And even if the lawyer mounts this defense, that doesn’t mean they still would not be prosecuted. I expect their only hope in that case would be to turn State’s witness (which I think is something that DOJ is testing the waters with here).
@OzarkHillbilly:
I did in fact do so… corrected!
@OzarkHillbilly:
oops!: https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.41.1_1.pdf
And added to the post. Thank you for the real-time editing!
This report : EEEK!
Well, call me Mr. Nervous Nellie, but were I in position of possible legal liability, and the actual, real, live, and right there Department of Justice Head of Counterintelligence! were to ask me, in effect:
“Are you sure these are ALL the classified document? This one envelope?” I would consider my next words very carefully indeed.
And they would probably, after contemplation of possible years wearing orange overalls, be something like:
“To hell with Donald, the rest are in these here boxes!”
@Daryl and his brother Darryl:
So, from an Occum’s Razor perspective, I think the simplest answer is still the best one:
@Andy:
I think, based on everything we know about Trump, he believed these were “his” documents* and mementos/proof that he was for a four-year period one of the most powerful men in the world. I think those documents were in the desk because he liked showing them to people to prove that.
To me at least that makes far more sense than some people’s speculation that he was selling the secrets or anything else.
It also demonstrates how mishandled these documents were.
* – note that this is also in keeping with the way that Trump has publicly (and by some reports privately) talked about his understanding of how Obama handled his documents from his presidency as well.
@Daryl and his brother Darryl: We might never know the “why,” unfortunately.
Trump is a perfect example of someone who, in normal circumstances (meaning, not being elected president) would never qualify for a security clearance. He is a waddling/bloviating blackmail threat and security risk.
Did he hand over names of operatives to Putin or others, either in response to threats or for payment?
Did he hold onto certain documents because he thought they might have value later?
Did he just like being in possession of something considered of high value?
Mementos?
Hiding something dumb that he’d done?
The possibilities are unfortunately many.
@Matt Bernius: I tend to agree with you that Occam’s Razor is probably most likely (with a healthy heaping serving of Hanlon’s Razor).
The only thing that gives me pause and a deep sense of unease is the notification sent out by CIA about the number of missing/dead operatives. Something happened there, and the timing is awfully coincidental.
@Matt Bernius:
But why THOSE? Anything with the Presidential Seal would do then, or perhaps show he had the most powerful people in the world on speed dial. He could have notes from private convos with leaders of nations but instead he’s got NOC lists and nuclear secrets to flash. These are actionable secrets – valuable secrets. It all goes back to money with him, as he believes money gives him power since he can’t get it any other way. Even if he never meant to sell them, they’re an investment that doubles as bragging rights. “Look at this priceless thing I got by being the most powerful man in America! It’s worth a fortune and makes me a big shot! Oh, you want it? ….. how much we talkin’ about?”
Seriously, he could have easily stole trinkets from the Oval Office & WH to serve as souvenirs and show pieces. These are valuable because someone WANTS them and is willing to pay dearly for it; their street cred isn’t that he got access to them, it’s that he kept them when he wasn’t supposed to and they’re available for… perusal.
This x 1000. It’s time for lawyers signing as officers of the Court with the tire tracked body of Attorney Bobb still visible in their rear view mirror to say that Trump actually declassified these documents while he was still the POTUS. . . . or, we are done with that bull shit.
@Matt Bernius: Thanx Matt.
Also, I wanted to share this article that was written prior to these disclosures to premptively address the “but her email” folks:
https://grossman.arcdigital.media/p/ok-fine-what-about-hillary?triedSigningIn=true
While I don’t have and answer to “why those specific documents,” I think the “why not just trinkets” is easy to explain. Trinkets are exactly that–trinkets. Anyone can have/get them. Top Secret documents (that he has the power over)–that’s something only a President can have. That’s authentic power.
And that might also get into why something like the supposed Macron document might have been taken. To demonstrate not only his power as a former President but also the “leverage” he had over another world leader. I would bet good money particular file got shown to special Mar-A-Lago guests that Trump wanted to impress.
@Matt Bernius:
Bragging rights. trump is a very shallow and insecure man who needs the adulation of those around him. This classified material is one certain way to demonstrate to all just how important a man he was/is.
@Matt Bernius:
From Marcy’s place.
@KM:
Because Benito is a self-destructive, narcissist moron.
He had months to prepare his transition out of office. If he had wanted to declassify documents, he could have done so. He didn’t. Now he’s pretending he did.
Mark my words: if he’s indicted, he’ll claim to have granted himself a pardon no one else knew about.
@Matt Bernius:
Didn’t Trump brag that the intelligence he had on Macron involved the latter’s sex life?
And yet, many Rs are hell bent on defending Trump and his claim on election fraud/malfeasance.
Not many in Washington outside of the usual idiots like MTG and Gaetz and, oddly, Graham who has backed himself into a hole, but out in the state elections some of these jackholes are going to be duly elected as Governors or Secretaries Of State.
Gods’ preserve us. This will get nasty.
I am cursed to live in interesting times when treason and sedition is part and parcel of one party’s quiver of tactics.
They gave us a republic and we are pissing it away on Donald fucking Trump of all things possible. Mind fucking blown. Ramping towards a civil war over an obvious idiot blowhard like Donald fucking Trump.
Are they insane?!? It’s buffoonish self-owning idiotic Donald fucking Trump?!? That’s their hill?!?
OMFG our enemies are fucking idiots….
Dang! I need to buy another create of popcorn before watching this unfold.
@de stijl:
To which you can add that Trump despises the very people who’d die for him.
The two parts of the filing that really jumped out at me were in the arguments against a special master. First, the DOJ screening team has finished its work and the intelligence community is already working its way through the classified documents in order to determine what immediate actions need to be taken, and that would have to stop if a special master were appointed. Second, the whole argument that whatever privilege Trump might be claiming under the name “executive privilege”, there is zero precedent for (and considerable against) the notion that a president can claim executive privilege as it is understood against actions by the executive branch. Part of me is looking forward to hearing the argument that former presidents have some sort of personal privilege that protects them once they’re out the door.
@Daryl and his brother Darryl: Given that we have lost a number of agents 9 months after he left office, I think the real questions are “how many and for how much?”
@de stijl:
We might still be spared this future, as I think a silent rage is building against Trump. I also feel that Graham’s call to riot if Trump is arrested will lead to a sad trombone when it is determined that many of the folks who voted for Trump have no interest in potentially dying/being arrested on behalf of Trump. Folks have said that a lot of Trump’s support is a mile wide but an inch deep, I believe that.
We’ve got a lot of life transforming going on right now (getting the house ready for selling, me fully retiring by end of November, son getting married in January) so I’m not reading much past headlines and first 2-3 paragraphs on this story, as I’m waiting for full details in months ahead.
But I have a question that I’m not sure has been addressed: who packed the boxes?
I just can’t see Trump doing more than sweeping everything that was on his desk at a given moment into a cardboard box on the floor. The idea of him examining documents to decide which ones to keep is – unbelievable. So who made that decision for him, who vetted all the docs, and who packed the boxes?
Apologies if it’s out there and I missed it.
They should charge him or stop bothering with the spectacle. The entire thing was so predictable. The usual consternation over whether or not Trump was being treated unfairly (obviously, at any point, no) followed by mindless speculation over whether or not he declassified anything (again, obviously no) and now we are going to hear the point/counterpoint over whether it’s wise to go after him.
And I’m not surprised that Trump behaves like this. He’s like an old socialite who has been shoplifting for years at Saks which the store tolerates because it’s easier than dealing with her. To me, the mystification of every aspect of an obvious process is bizarre. Just charge him and enjoy the trial and care nothing about the fallout with his idiot base instead of agonizing over every monotonous detail.
As I said a couple weeks ago: the question is why?
A lot of focus was wasted following Trump’s rabbit down the hole. They wanted to talk de-classification, but the question was always: why?
There will be a paper trail. POTUS does not normally store dozens of boxes in the Oval, someone requested these docs, someone brought them to Trump. Why? What details were on the request for docs?
Why? Possibly because the ‘Russia hoax’ was never a hoax. Trump was compromised long before he was elected. The Russians worked hard to get him elected and tried to get him re-elected. Their troll farm has been busy all along pushing Trump’s lies. Because Trump is, in effect, a Russian intelligence asset.
These were not boxes of docs that just happened to be innocently sitting in the White House. Trump collected them, for a purpose. I believe that purpose was to continue serving Putin so as to avoid Putin releasing catastrophically bad intel on Trump. The pee tape that didn’t exist? It or something like it does exist. Trump was owned by Putin, still is.
I speculate that it is no accident that so many covert US agents have been picked up. I suspect Trump knowingly shopped them to Putin in exchange for Putin’s continued support, and likely, silence.
It’s not too late for Trump to flee the country. It’s looking more and more like the smart move, because the walls are closing in. I now believe Trump will be charged, and I suspect (that word again) that it will be something much worse than stealing documents.
Ok, so one of Trump’s longtime defenders took to Twitter to mount a defense… and it was good enough to deserve it’s own post:
https://www.outsidethebeltway.com/when-this-is-the-best-defense-turley-can-raise-things-are-really-bad/
@Matt Bernius:@Matt Bernius:
You’re much better person than I am. I hope she decides to represent herself.
@Matt Bernius:
Why? On what basis do you think it unlikely Trump
Was using these documents for personal gain?
@Michael Reynolds:
Well, he has his passports back. Is his private plane out of mothballs and ready to go?
@Not the IT Dept.:
It hasn’t been disclosed. If things move toward prosecution (or the Trump team decides to look for scapegoats) I expect that will be coming soon. There has been speculation that if things go that route Trump is likely to hang all of this on Mark Meadows.
The problem that they will have is the significant evidence that at some point someone at Mar-A-Lago *unpacked* those boxes and moved documents around.
@Matt Bernius:
Considering that she wasn’t even working as a lawyer when FG hired her, that shouldn’t be a problem.
@Not the IT Dept.: The answer is not out there, but it is a question on everybody’s lips.
More like “just charge him and let him go without even a trial because you didn’t take the time to dot every ‘i’ and cross every ‘t’ and make sure that everything was as perfect as you could make it because there is no room for error in a prosecution as politically loaded as this.”
@MarkedMan:
Ask yourself this – if you were a former President who wanted to use these documents for personal gain, is this how you would do it? Make no effort to hide them, leave them unorganized and scattered among random stuff? Would you not care and not do anything when the government came looking for them and subpoenaed them?
I think this theory should not be completely rejected from the basket of possibilities, but there are multiple ways that it doesn’t make much sense.
@Andy:
This could be Trump’s “clever” idea of a way to hide things: by mixing the trivial with the significant.
In any case, he’s always had a reputation for being chaotically disorganized.
@CSK:
It could be a lot of things, and we could endlessly speculate and make up reasons to support a particular theory. As it stands, there’s currently zero evidence Trump has sold any of this information or intended to sell it. That doesn’t mean that such evidence might not exist, or come to light in the future. But this theory is currently entirely speculative and the focus on this one theory above all the other alternatives is at best misplaced and, at worst, wish-casting.
What we really need is more information, which will come out over the course of time.
@Michael Reynolds:
Let’s not forget the revelation to Bone Saw about his people who were seeking to undermine him, who were being tortured just a week after Jared paid MBS a personal visit. The net profit of that was about a billion. Cohen’s revelations about using the spying paparazzi of the National Enquirer show this has been Trump’s MO for quite some time.
Unfortunately a detailed assessment of intent is only possible for those who know the contents of what Trump tried to steal, and being SCI, the public never will. The best we can hope for is a heavily redacted version of the damage assessment which the Select Committee is entitled to, and sworn never to reveal the details of.
I favor the “documents were mementos to Trump of being the most powerful person in the world” thesis forwarded by @MattBernius and @Andy
Less likely, but possible, and not contradictory to this thesis is that Trump had material that he thought would deter or preclude any prosecution of him. I’ve been wondering about this for some time, and not saying much about it because it, too, is very speculative at this point. Trump’s Razor favors the “they’re mine!” theory.
I put more active espionage explanations at a lower probability, much lower. And it’s also likely that we won’t ever hear about it. I mean, if the FBI counterintel folks have some evidence of this, it’s likely to have been obtained from highly confidential sources and methods. Stuff they had to keep hidden from Trump when he was president. That’s a hell of a job, right?
But that means pretty much everyone who touched it is tainted in some way, and whatever evidence they have will never come to light. So, it’s best to just let this rest.
Likewise, blackmailing the govt could be a very difficult sell to a jury. However, the mishandling of documents isn’t really, nor is the lying to the government about those documents.
@Just nutha ignint cracker: I just read this over at TOM and my jaw dropped:
If this is accurate, i.e. that Bobb swore that she had conducted a diligent search when that is obviously untrue, it’s hard to conclude anything other than that she knew he had such documents and was deliberately trying to help Trump hide them. I’m having trouble wrapping my head around that. Not that he could have found a moron willing to risk a jail term based on some whim that he had, but that it is so chaotic and out of control over there that such a clown was the one representing him to the DOJ.
@Andy:
The answer is yes. The crime-fraud exception waives the attorney client privilege. The attorney cannot repeat a client communication the attorney knows to be false. Not only is it an ethical violation which can result in sanctions such as disbarment it can also be a crime.
[fixed — mb]
@MarkedMan:
Alina Habba also said she searched Mar-a-Lego thoroughly and found absolutely nothing.
@CSK: It looks to me as though they are making the defense that the FBI planted the docs because it’s all they’ve got. Nothing else will work, not even with the public.
@Andy:
But Andy, you and Matt are just as guilty of “speculating and making up reasons to support a particular theory.” In your case, it is that Trump viewed them as memorabilia, or that Trump would have been too smart to handle incriminating documents so sloppily if he was committing a crime. And, by the way, we don’t have “zero evidence” Trump was selling or sharing these documents with enemies of the country. We don’t have strong evidence, but it’s not zero.
FWIW, I don’t think we have enough information to judge either way, which is why I question. both your and Matt’s assertions that things are unlikely or improbable. And apologies to you Matt, but the idea that Trump couldn’t have criminal intent with these documents because no one would be so stupid as to mishandle them so blatantly if he was doing something nefarious, well, that flies in the face of forty years of Trump experience. It can never be said too often: the most important thing to understand about Trump is that he is a moron. That’s not hyperbole or snark, that’s just the god’s honest truth.
@Andy:
That is Trump’s Razor, isn’t it? It’s always the stupidest thing you can imagine.
I’m going with disorganized ADHD with poor coping skills. He doesn’t clean up after himself, no one has the clearance to clean up after him with this stuff, it all gets comingled and he cannot deal with it because it is overwhelming. And too proud to accept help when offered.
(If I had the National Archives looking for documents among my piles of crap, I’d be negotiating for them to organize what is left over…)
And then convincing himself that he is the victim. All the while turning a few problems that people were bending over backwards to accommodate into multiple serious felonies.
@Jay L Gischer:
Yes, I think you’re right.
But then again, Trump and his kids watched the search on closed circuit tv, and must know that the FBI planted nothing. Are they going to argue that the FBI mixed the documents in with Trump’s personal papers, and then brought them back to MaL to photograph them on his rug? With evidence markers?
I don’t think that will fly, somehow.
@CSK:
Reading through the first story about Habba that came up in a google search–and looking at the accompanying photo–I’m guessing she and Bobbs weren’t hired for their legal acumen.
@MarkedMan:
Speaking for myself, I completely agree it’s speculation. And I gave the reasons for my theory of what happened.
For the record the issue I have with more complicated theories of the crime (like MR’s) is that while they make for a great and compelling story, they also rely on Quantum Trump. By that I mean a Trump who is always at once both playing Nth dimensional Chess and Nth dimensional Candyland (and cheating at both).
Like @Andy said here, I’m not discounting it as a possibility, but based on the facts at hand, it hasn’t raised itself to a serious probability in my mind so far. And with Trump so many of the “good stories” haven’t bourne out (search “Michael Avanetti” on OTB to get a sense of people’s bullish predictions in the past).
And I also hold that could change tomorrow.
I am, to some degree, small “c” conservative and skeptical by nature (having made WAY too many wrong big predictions in my life; for example, I seriously expected that Republicans–or rather McConnell–would use the 2nd impeachment to get Trump out of their hair for good).
That said, I never thought we would remotely be close to this DOJ charging the former President. And that’s now at least a 10% possibility in my mind.
@Mu Yixiao:
Oh, I think Habba’s and Bobb’s looks had something to do with Trump hiring them, but as I said elsewhere, no halfway decent lawyer is going to touch Trump with a ten foot pole at this point.
@CSK:
A very fixed pattern with the Trump family is that they say things in the court of public opinion that they *never* raise in court. The entire “Election was stolen” fraud was built on that. They are smart enough to know not to say things in venues where they have legal accountability for what they say.
This is exactly why I am focusing on the topic of “declassification.” Its an untested theory until they actually use it as an affirmative defense. And in less than 10 hours, we’ll find out if they are willing to roll the dice on that one.
Prediction: if they reply (and they do not have to) they will make that argument. If they do not, then that is a sign about how they think it is anything but a “slam dunk” for them.
@Matt Bernius:
Hah! My viewpoint is exactly the opposite. Everything I assumed would happen did happen. He proved himself, over and over and over again to be exactly the same person he was all along: shambolic, immoral, corrupt, and profoundly stupid, which led exactly to the consequences one would expect from a president with those qualities. And so if I had to guess, I think it more likely than not that he was attempting to see how he could benefit financially from the documents in an immoral and corrupt way, and without regard for anyone or anything else. But I don’t have to bet, and so reserve judgement for now.
As far as I can remember I was wrong about one significant thing, but it was a big one: during the 2016 primary I said that while Trump was stupid, even he wasn’t so stupid as to invite the focus a presidential nomination would bring on his life, given that it has consisted entirely of one con after another, one crime after another. I broke my own rule with that prediction: that the most important thing to consider when deciding what actions Trump will take is that he is a moron.
A long thread that makes a good summation:
https://twitter.com/renato_mariotti/status/1564826490612731906
(Also mixed with personal property, passports etc. which accordingly have evidentiary value)
@MarkedMan:
He once was stupid and choosing to be ignorant. He now has the additional special sauce of progressing senile dementia – thus absurd crap like executive privilige, ridiculous on its face..
@Matt Bernius:
No, it doesn’t at all. Trump is not above selling secrets either for money, or as extortion payment. Nor is he above using documents for extortion, himself. All it demands of Trump is that he be what he’s always been: a two-bit crook. Saw something he could monetize and took it.
In addition to the WHY question I’ve been harping on, there’s the who and the when.
Were requests made through channels to retrieve boxes of documents? Is there a record? Who executed the request, what were they told? When were these docs placed in the WH? This is a crime, the questions are the same as every criminal investigation: motive, means, opportunity.
Try to look at Trump as a common thief caught with a bag full of jewelry. Ask those questions. Why did you steal the documents? Did anyone help you? When did you obtain the docs? What did you intend to do with the docs? Were you aware that the docs were secret?
Memorabilia? Two dozen boxes of stolen docs he can’t show to anyone, or admit he possesses? Odd notion of memorabilia. I don’t dismiss it – stupid can be hard to predict. But in a test of motives – you say status and I say money – the problem is that your supplied motive makes no sense in that status would come with a hefty dose of self-incrimination. Again, Trump is quite capable of doing things that make no sense. But my suggested motive – money – does make sense because he absolutely can monetize the docs, whether directly or indirectly.
Means and opportunity are simple: yes and yes. Motive remains the question. Why?
@Matt Bernius: I also think that it’s important to note/remember/realize that when Trump was President, and even before, he had a coterie of folks around him who had a very specific personal interest in keeping him out of trouble and not following through on some of his more base instincts. A lot of those people are no longer around.
I’m not sure where my opinion falls on the malice vs. stupidity axis, but let’s not pretend that Trump wouldn’t sell one of his own kids if he thought he’d personally benefit (or get him out of a mess).
@Michael Reynolds:
Here is exactly where your and my minds move in two different directions, Michael. I think he totally reveled in showing people those docs (particularly those in his office) and loved possessing them because it demonstrated how power he was (or still is). And that matches with past behavior: https://thehill.com/homenews/administration/319211-mar-a-lago-guest-posts-pics-with-nuclear-football-carrier/
And that he never thought the DOJ would come after him because of his status.
Time will (potentially) demonstrate which of either of us is right. And probably neither of will be (at least fully) when everything comes out.
I do have to point out that revisiting those Avinatti threads that I mentioned before, you also made a LOT of predictions back then about all the things that Trump was doing that have still not bourne themselves out. That said, I’ll always be the first to acknowledge that you have a far better sense of a story that will grip people and bring them in than I do. 🙂
@charon:
Completely agree. Its part of where my analysis comes from. There’s a thread reader app link at the top of the page (for folks who do not use twitter). I’ll also leave it here. I completely agree with charon that’s worth a read (especially given Mariotti’s background as a federal prosecutor):
https://threadreaderapp.com/thread/1564821334579941376.html
Just want to point out that malice and stupidity are not on opposite ends of the same axis. trump has shown time and again that he can act stupidly with malice.
@Matt Bernius:
Shall we make it more interesting? Something involving a bottle, perhaps? Joyner and/or Taylor to decide who came closest?
@OzarkHillbilly: That was shorthand pointing to my earlier reference of Hanlon’s Razor: “Never attribute to malice that which is adequately explained by stupidity.”
@OzarkHillbilly:
He’s an ignorant, impulse-driven churl who has no desire–nor probably the ability–to learn much of anything. But he has one great gift granted to those without morals or ethics, which is that he knows precisely how to exploit people stupider than he is. He said it himself: “I love the poorly educated.”
@Michael Reynolds:
Given Trump’s Razor (everything will turn out to be stupider than you can imagine), you cannot rule out that there really isn’t a why that would make any sense.
This could well be Trump simply hanging onto shit out of a pique of spite.
Because once you start asking why he kept these documents, you also have to ask why he kept the physical documents rather than photos of them, and why he didn’t destroy the physical copies.
You’re assuming a plan done very stupidly (the coup would be precedent), rather than stupid actions done for no reason (telling people to inject bleach…)
Seems like a big assumption. Could go either way.
If he were selling documents, someone who was helping him (let’s say the Russians) would explain that it’s easier to cover up the Russians acting as if they have information that was on documents that were lost rather than the pile of documents sitting around Mara Lago. Could have been anyone if we don’t know where the documents went!
If I had to guess, I would say the reality lies in a mix of Matt and Michael.
He took them to show off. And after showing them off, someone suggested they could be valuable in other ways. Say… to help out his good friend Vlad, and “show the wimps in DC how power is really used”.
@Michael Reynolds:
Game on sir!
I love the idea of a bottle. I can’t remember if you are a wine drinker or not. Though I definitely am all up for spirits. Any thoughts on price range? I need to be able to justify it to my live-in-legal-expert if I lose… 😉
And I am sure our other hosts would be happy to judge (though they might need a bottle themselves as well).
Also, do you want to work out the details in public? I’m fine with that FWIW.
@Mu Yixiao: Agreed. The likeliest scenario in my mind is that he showed them to someone who understood what else might be literally lying around or tucked in a drawer, and passed that information on.
Even National Review Online seems to realize the jig is up:
https://www.nationalreview.com/2022/08/why-yesterdays-doj-filing-suggests-a-trump-indictment-is-coming/
@Jen:
This brief excerpt from the NRO piece is compatible with my assessment of senile dementia:
(Note the part in bold text).
How does someone not cognitively impaired continue criming he already knows is being investigated.
@charon:
This is no justification for Trump’s actions, but he could be following Bannon’s advice to “flood the zone with shit.”
@MarkedMan:
The “memorabilia” theory isn’t one I’m wedded to, it just seems to be the least bad current explanation for why Trump and his people would act so weirdly stupidly. I am not making any definitive claims here and as I keep repeating in just about every post on this topic, we need more evidence to determine what the truth is. Note that in my original comment here I said: “The actions (and inactions) that he and his people took do not make much sense because they seem to be about as stupid as one could imagine.”
…which is an observation, not a theory.
Secondly, no there is no evidence that Trump was selling these documents. That he had the documents is a fact – why he had them is something we don’t have evidence for. There is a range of possibilities for why he had them, and there’s no particular piece of evidence (that I’m aware of at present) pointing to that theory over any of the other explanations.
@Matt Bernius:
This has long been a problem, and you’d think people would have learned by now to be wary of maximalist theories regarding Trump’s intentions and behavior.
@Gustopher:
Don’t forget, Trump is a notorious Luddite. Never uses email. And anything made digital ceases to belong to you.
Intriguing question: some documents were in the same file as his passports. What were those documents? And why were they kept with the passports?
The thing is that this had been just about anyone else, maybe even Pence, they’d be sitting in some Club Fed, or out on bail and in marathon sessions with every lawyer in D.C.
Here is a third lawyer the DOJ may have some questions for:
https://twitter.com/kyledcheney/status/1565019066213056512
https://www.politico.com/news/2022/08/31/days-before-mar-a-lago-subpoena-trump-lawyer-claimed-she-scoured-trumps-office-closets-00054369
@Andy:
Maximalist? I don’t know about you, but ‘Launches an attempted coup using a mob of fuckwits trying to kill his Veep,’ was not on my list. Neither was, ‘Steals two dozen boxes of classified material, then lies to the FBI about it.’
I very much doubt that random boxes of top secret documents are kept in the Oval. They weren’t piled around the Resolute desk. They must have been requested. They would have been assembled for a purpose. Who requested them? Or flip the question: who but Trump could conceivably ordered that two dozen boxes of secrets be shipped to Mar-a-Lago?
Only Trump could have willed this to happen. Did he order someone to ‘bring me two dozen random boxes of secrets, whatever you’ve got on-hand?’ Really? Or, were the boxes perhaps curated by Trump, the parameters defined by Trump. Forethought, not accident.
Forethought equals motive. We’re back to why? And why were some of those docs filed with his letters of transit, er, passports? What would that suggest to you if, instead of Trump, we were talking about a random embezzler?
Again, @charon, great minds clearly think something something…
I posted about this a bit ago (btw, @Andy, given your history with classified docs, I’d love your perspective on this):
https://www.outsidethebeltway.com/two-additional-issues-brought-up-by-the-doj-release/
This raises an interesting question about the volume and scope of materials that were repatriated from MAL.
There have been lots of stories about how the IC in general and CIA in particular went to lengths to keep Trump from tucking things away in his pockets. I sort of got the impression that anyone who really cared about keeping this information protected kept fairly close track of what went in and out of the Oval Office. While I realize they can’t keep watch over every scrap of paper, for someone for whom it was an open secret (ha) that you had to watch closely lest he wander off with something that managed to catch his interest, isn’t this a LOT of information for them to not realize was missing?
Aren’t these folders numbered?
I’ve long been of the opinion that Trump just had everything that was in his office boxed up and shipped out. My mental picture is that every time he had a photo opp or something in his office, someone (probably lacking the appropriate clearance) would come in, box up everything that was cluttering a flat surface, and that would all get stuffed into a closet. Same with the residence.
How did nobody miss SO MUCH sensitive information, especially knowing who had it?
@Mu Yixiao: I’ll go the next step. I don’t think anyone with legal acumen is likely to be willing to work for FG anymore. Why wade into a briar patch when you don’t have to?
@Michael Reynolds: I have a hypothesis about how he got them. He would get briefed on something, and shown this material. Some of it he would like, and look at and hang on to. He would take it back to the residence with him. All this is documented. After that, we don’t know, but probably he stuck it in a box of memorabilia. All jumbled in with all the other memorabilia.
There are other possibilities, of course. Now the stuff with his passports wasn’t in a file box, it was in a desk drawer, if memory serves. That’s kind of a WTF? It is noteworthy because it makes it really hard for him to claim he didn’t know he had it. Which he isn’t claiming, he’s claiming its a plant.
@Kathy:
The resemblance is striking…