Thread by @petestrzok

I used both consent and search warrants dozens of times over the course of my career to recover classified govt info - but never a subpoena. Let’s talk subpoenas and why they’re not used to recover classified material from those not authorized to have it.

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/1

I’m talking here about information produced by the USG containing national defense information and appropriately classified in accordance with EO 13526. Not someone’s after-the-fact book, or classified information in a news article.

archives.gov/isoo/policy-do…

2/

Someone not authorized to possess it, in this thread, refers to former President Trump. Presidents to not “get” security clearances. They gain access to classified info by virtue of their election, and are the USG’s ultimate classification (and declassification) authority.

3/

That goes away the moment their successor is sworn in. By tradition, incumbent Presidents extend access to classified info, as needed, to their successors. Notably, Biden did not, citing Trump’s “erratic behavior.”

amp.cnn.com/cnn/2021/02/05…

4/

At least 3 reasons make a subpoena inappropriate to recover classified docs. First, classified documents are the property of the USG. In the hands of an unauthorized person, they are contraband. Imagine using a subpoena to demand the return of $10k stolen by a bank robber.

5/

In the words of @AshaRangappa_, a subpoena implies the recipient is the lawful custodian or bailor of the property. That’s why the govt has to clear a hurdle and provide a reason to get it. If you are an unauthorized possessor, you are simply a thief holding stolen property.

6/

Second, by definition, the disclosure of classified information could reasonably be expected to cause damage to national security. A subpoena does not limit the receiving party’s use additional people (attorneys, clerks, mail rooms) to fulfill the production.

7/

Third, the govt may need to prove the expected damage. A defense attorney might argue, well, if these documents are so sensitive, why did you allow my client and all these other unauthorized people to sort through them? They’re obviously not really that potentially damaging.

8/

Additionally, a similar argument might apply to the speed of the government’s action: you say these documents are so terribly sensitive? Then why did you wait a year to come and get them when you believed they were in an unauthorized place?

nytimes.com/2022/08/09/us/…

9/

A caveat: I’m not an attorney, just a investigator practitioner. Welcome the thoughts of #LawTwitter (@Popehat, @BradMossEsq, @steve_vladeck, @benjaminwittes have all commented or expressed interest on this topic)

/end

“Predecessors” not “successors” in 4/

cnn.com/2022/08/11/pol…

Really interesting. As I said earlier in the thread, I’ve never seen a subpoena used in this circumstance, where it’s sensitive USG info that’s being recovered.

Maybe an initial good faith effort to treat Trump with deference due to his prior position?