Thread by @secretsandlaws

So what comes next in the Trump DOJ investigation? One critical initial step will be conducting a classification review of any potentially classified records that were seized at MAL. How will that work? Follow along... 1/

After the filter team completes its review, FBI agents will comb through the materials to ID any potentially classified records. Some records should be clear from their markings, but FBI will closely review handwritten notes & everything else, which could also be classified. /2

Even though the Espionage Act refers to "national defense" info instead of "classified" info, DOJ will still want to determine whether a given document is currently and properly classified. You can't trust markings for this, which may have been misapplied or become outdated. /3

Documents are typically derivatively classified by officials who aren't classification experts, and they often get it wrong. And even when they get it right, it's possible that subsequent events or disclosures will mean that the document is no longer classified. /4

For this reason, DOJ will likely want to know what the documents' classification status was on both Jan. 20, 2021 and today. DOJ can't make this determination itself, so it will need to farm the docs out the agencies with "equities" in the information contained in the docs. /5

Sounds easy in theory, but it gets complicated quickly when documents contain multiple agency equities. Intel docs prepared for POTUS are typically all-source, and could contain classified info from CIA (HUMINT), NSA (SIGINT), NGA (GEOINT), State (FGI), DoD, and others. /6

It's even more complicated here bc of the sensitivity of this investigation. DOJ will rightly want the docs to be extremely close hold - only going to the min. necessary number of people. There's a trade-off to this though - more secrecy means key SMEs might get left out. /7

For these reasons, I suspect DOJ will look to ODNI to help lead the classification review. If they can find the right classification expert at ODNI, that person(s) will be able to identify individual agency equities and consult with the right people at each agency. /8

Agency lawyers will help quarterback this effort. 1. They are the appropriate POCs for DOJ. 2. They help ensure that people don't unnecessarily create discoverable material. 3. They help ensure rigor on the classification review -- good lawyers are great at quality control. /9

The "classification experts" will do their work, but it's possible they'll need to consult with operators/analysts to understand the current state of play with the subject matter in the real world. They wouldn't do this for a FOIA case, but they might here given the stakes. /10

Throughout, DOJ and agency lawyers will be nervous about creating discoverable materials. Pretty much everything about the reviews will be discoverable if there's a prosecution, and that's fine, but the lawyers will want to prevent the reviewers from doing stupid shit. /11

That means telling the people involved: 1. Don't email or instant message about the reviews - meetings and phone calls only. 2. Keep in mind that each draft is discoverable - limit the number of versions you make. 3. Don't speculate or opine on things beyond your purview. /12

Oh, the White House/NSC will have zero involvement in all this. Really. It's also best if the political appointees at the agencies don't get involved as well -- leave it to the career professionals (plus, this means you don't get subpoenaed by Jim Jordan next year). /13

The end result will be informing DOJ of the classified status of each doc as Jan. 20 and today (assuming no Trump declass order). It's possible they'd portion mark the docs too, identifying the class. level of each paragraph, to allow DOJ to zero in on the sensitive aspects. /14

Notwithstanding what some have said, there will be no formal "damage assessment" (more on that later). The standard for classification under EO 13526 is "reasonably could be expected" to damage national security. It's theoretical. Actual damage is irrelevant under the EO. /15

There still may be "damage control" efforts, however. Agency CI professionals will want to understand what's in the docs so they can protect sources, take down platforms/devices, etc., if they think they've been compromised. This is different from a damage assessment though. /16

As you can tell, the number of people who ultimately get involved (reviewers, lawyers, SMEs) is quite large. These are not folks who leak things (and most are poly'd), so if you start seeing leaks about the results, my guess would be FBI (sorry FBI friends). /17

Sadly, everyone involved - career professionals just doing their jobs - will be a target for harassment by GOP-controlled committees if they take over. For this reason, the agencies will likely offer professional liability insurance to everyone, to help pay for their lawyers. /18

All-in-all, it's a very professional effort, and very complicated. It could take at least 2-3 weeks or so, as every step will be deliberate (e.g., the docs will likely be transported by hand only). Most importantly, I can guarantee you that the process will be free of politics. /