Thread by @harrylitman

An explainer on what seems to be going on with the hearing yesterday, and the judge's decision not to hold Team Trump in contempt.
1. It seems clear that the DOJ has good info that not all docs have been returned.The reports of what was missing when the latest two were found

described for example docs w/ N Korea that don't seem to be the ones that turned up in the storage locker.
2. On the one hand, that is a completely intolerable and bizarre state of affairs. The absolute routine, whoever is being investigated, is DOJ serves a subpoena and

the person or the company's custodian of records turns the evidence over and certifies compliance.
3. Here recall that back in May Team Trump gathered together a woefully incomplete set of docs and then had low-woman-on-the-totem-pole Christina Bob, who had just arrived, sign

certificate of compliance that turned out to be flagrantly false. She now has her own criminal lawyer and is dealing with DOJ. Fortunately for her she did add something like based on what others told me.
4. Since then, nobody wants to step up to the custodian role, which would

put their own necks on the line. Understandable, since among other things they know they have an inveterate liar as a client and one whom they can't woodshed and say cut the crap to, as defense lawyers normally could do here.
5. This produces a crazy stalemate in which no lawyer

will act as custodian, even though typically custodians don't swear that everything has been produced but just that they've done a diligent search etc.
6. We shouldn't lose sight of the underlying cause, which is that the former President of the United States lies all the time.

7. So why not just subpoena Trump directly. I think it's because of 5th Am doctrine known as the "act of production" defense. Normally there's no defense to turning over documents in your possession that have inculpatory information about you; you're not being forced to testify

but just to produce docs. However, in rare instances in which the actual production would tend to incriminate you, you can assert 5th Am rights.
8. Given that the nature of the investigation is that Trump has taken and concealed docs illegally, it does seem to me that he has a

good act of production defense.
9.Thus the impasse: DOJ has strong suspicions not all the docs have been returned, and remember: that has independent national security implications, which is what triggered the August search in the first place.

10. But Team Trump refuses to designate a custodian or any person who will say under penalty of perjury that there's been compliance. You might have thought that would be a situation in which Howell would jump in and say cut this nonsense; somebody needs to certify compliance

or I'm going to hold you in contempt and start assessing fines.
11. But without someone to actually find fault with -- there's no legal requirement of having a custodian of docs--it's hard for her to do that.
12. it's possible to hold an organization or entity in contempt, but

not clear one is involved here and in any event they have to act through their officer. Back to the same problem.
13. What happens next? DOJ can try to jawbone Team Trump but it's hard to see they're gaining much ground, and at least as of now they don't have probable cause

to do their own searches, b/c the Constitution requires it to be specific to time and place and fresh evidence. So we have the outrageous situation where the former President has absconded with national security docs and is keeping them illegally and the gov. can't get them back

14 .However, assuming the stalemate remains, it's ultimately bad for Trump. That's because evid that he is STILL--after nearly 2 years and multiple rounds--not complying with the subpoena adds a whole new layer to the prospective charges and increases DOJ's resolve to bring them.