United States v. Trump
(Docs case in FL)
DEFENDANTS’ MOTIONS TO COMPEL DISCOVERY
Exhibits
storage.courtlistener.com/recap/gov.usco…
storage.courtlistener.com/recap/gov.usco…
(Docs case in FL)
DEFENDANTS’ MOTIONS TO COMPEL DISCOVERY
Exhibits
storage.courtlistener.com/recap/gov.usco…
storage.courtlistener.com/recap/gov.usco…
In addition to the 68 pages here, there is a Classified Supplement as well.
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Coming in hot! 😁
"There are 22 FOIA releases from DOJ and NARA attached as exhibits to this brief. Nearly all of these exhibits, though heavily redacted based on FOIA rules that have no application in a criminal case, represent discovery violations in which the Special Counsel’s Office failed to produce documents that support arguments and positions the defense has articulated since at least October 2023."
"...the details reflected in the FOIA releases add force to President Trump’s long-held position regarding the scope of the prosecution team. Thus, these materials should have been disclosed by the Office, in unredacted form, at the outset of the case."
"...the details reflected in the FOIA releases add force to President Trump’s long-held position regarding the scope of the prosecution team. Thus, these materials should have been disclosed by the Office, in unredacted form, at the outset of the case."
"The parties’ dispute regarding the scope of the prosecution team also extends to the Intelligence Community and the National Security Council."
"the Special Counsel’s Office is seeking to avert its eyes from exculpatory, discoverable evidence in the hands of the senior officials at the White House, DOJ, and FBI who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation from its inception such as NARA, the Office of the Director of National Intelligence (“ODNI”), and other politically-charged components of the Intelligence Community."
"...even the Department of Energy has taken up the Biden Administration’s mantle by seeking in June 2023 to terminate President Trump’s active security clearance, which is a highly inconvenient fact relative to the Office’s allegation of “unauthorized” access to classified information under 18 U.S.C. § 739(e), and modifying and amending agency records that support President Trump’s defense."
"the Special Counsel’s Office is seeking to avert its eyes from exculpatory, discoverable evidence in the hands of the senior officials at the White House, DOJ, and FBI who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation from its inception such as NARA, the Office of the Director of National Intelligence (“ODNI”), and other politically-charged components of the Intelligence Community."
"...even the Department of Energy has taken up the Biden Administration’s mantle by seeking in June 2023 to terminate President Trump’s active security clearance, which is a highly inconvenient fact relative to the Office’s allegation of “unauthorized” access to classified information under 18 U.S.C. § 739(e), and modifying and amending agency records that support President Trump’s defense."
"The Office must produce other evidence of bias, including (1) any communications with members, relatives, or associates of the Biden Administration; (2) communications between members of the Biden Administration and the Fulton County District Attorney’s Office during the course of the investigation that led to this case, including but not limited to records relating to meetings involving Nathan Wade that are substantiated by legal invoices appended to congressional filings; and (3) evidence relating to analytic bias harbored by the Intelligence Community that President Trump will use to impeach positions that are relevant to § 793(e)’s requirement relating “national defense” information, or “NDI,” as discussed below and in the Classified Supplement."
"The essential premise of the Classified Supplement is that neither President Trump nor any other party to this action is required to accept the ipse dixit of the Special Counsel’s Office or the biased Intelligence Community regarding the alleged sensitivities associated with the documents and information at issue in this case."
"as explained in today’s separate opposition to the Office’s CIPA § 4 motion, prosecutors and witnesses repeatedly ignored the so-called “need to know” requirement during the investigation to share literal “war stories” that have no relevance to the issues in this case."
"Accordingly, for the reasons set forth below, the Court should conduct fact-finding on any disputed facts relating to the scope of the prosecution team, enter an order resolving the parties’ dispute on that issue, and order the Special Counsel’s Office to produce the requested discovery"
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"as explained in today’s separate opposition to the Office’s CIPA § 4 motion, prosecutors and witnesses repeatedly ignored the so-called “need to know” requirement during the investigation to share literal “war stories” that have no relevance to the issues in this case."
"Accordingly, for the reasons set forth below, the Court should conduct fact-finding on any disputed facts relating to the scope of the prosecution team, enter an order resolving the parties’ dispute on that issue, and order the Special Counsel’s Office to produce the requested discovery"
storage.courtlistener.com/recap/gov.usco…
BACKGROUND: ⬛️
White House Office of Records Management "WH-ORM"
NARA General Counsel Gary Stern
Deputy White House Counsel Jonathan Su
White House Office of Records Management "WH-ORM"
NARA General Counsel Gary Stern
Deputy White House Counsel Jonathan Su
“15 Boxes”
Deputy Archivist Deborah Steidel Wall
“presidential records”
Deputy Archivist Deborah Steidel Wall
“presidential records”
"the Special Counsel’s Office has falsely claimed that NARA independently referred this matter to DOJ on February 9, 2022."
"However, the evidence demonstrates that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"According to an FBI report, Stern and Jay Bosanko, also of NARA, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"However, the evidence demonstrates that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"According to an FBI report, Stern and Jay Bosanko, also of NARA, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
NARA’s Sham “Referral”
January 25, 2022
"NARA-OIG wrote to Thomas Monheim, the Inspector General of the Intelligence Community, that “[o]ur agency just gave us a quick brief on what appears to be a very high level potential spillage and records management issue.” Ex. 12 at OIG000081 (FOIA)."
Three days later, in an apparent effort to paper the file, Stern sent NARA-OIG an email with the subject line “[i]ssue re Potential Destruction of Presidential Records." The document has not been produced in discovery"
But there is a heavily redacted FOIA-released version.
January 25, 2022
"NARA-OIG wrote to Thomas Monheim, the Inspector General of the Intelligence Community, that “[o]ur agency just gave us a quick brief on what appears to be a very high level potential spillage and records management issue.” Ex. 12 at OIG000081 (FOIA)."
Three days later, in an apparent effort to paper the file, Stern sent NARA-OIG an email with the subject line “[i]ssue re Potential Destruction of Presidential Records." The document has not been produced in discovery"
But there is a heavily redacted FOIA-released version.
NARA-OIG fwd'd Stern's email to Thomas Windom.
Windom is not on Special Counsel Smith's team.
"In a text message four days letter, Bosanko explained that “the 15 boxes from mar-a-lago have consummed [sic] all of our discussions” with the White House."archives.gov/files/foia/oig…
Windom is not on Special Counsel Smith's team.
"In a text message four days letter, Bosanko explained that “the 15 boxes from mar-a-lago have consummed [sic] all of our discussions” with the White House."archives.gov/files/foia/oig…
Gonna have to step away from this thread to prepare for tonight's Devolution Power Hour. Will return ASAP.
Excellent Power Hour last night. I touched on this filing somewhere around the midpoint of the show.
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March 2022
"Attorney General Merrick Garland authorized DOJ and the FBI to open a criminal investigation targeting President Trump."
"NARA and NARA-OIG had been providing DOJ and the FBI information relating to the 15 Boxes since January 2022"
"White House Counsel’s Office did not seek President Trump’s permission under the PRA to grant the FBI access to the 15 Boxes until April 2022."
April 29, 2022
Jay Bratt, the Chief of the Counterintelligence and Export Control Section (CES) of the National Security Division at DOJ, asserted to President Trump’s attorney that: ⬛️
Debra Steidel Wall, who that time was NARA's Acting Archivist, "parroted the claim in a May 10, 2022 letter to President Trump's attorney declaring that NARA would disclose the records over President Trump's objection."
(so whatever is redacted is there from Jay Bratt is saying the same thing as what is in the May 10th letter)
"The Special Counsel has [not] produced such damage assessment."
"Biden [deferred] to NARA's determination to overrule President Trump's invocation of executive privilege after having been advised by an ASsistant Attorney General to take that position."
"Attorney General Merrick Garland authorized DOJ and the FBI to open a criminal investigation targeting President Trump."
"NARA and NARA-OIG had been providing DOJ and the FBI information relating to the 15 Boxes since January 2022"
"White House Counsel’s Office did not seek President Trump’s permission under the PRA to grant the FBI access to the 15 Boxes until April 2022."
April 29, 2022
Jay Bratt, the Chief of the Counterintelligence and Export Control Section (CES) of the National Security Division at DOJ, asserted to President Trump’s attorney that: ⬛️
Debra Steidel Wall, who that time was NARA's Acting Archivist, "parroted the claim in a May 10, 2022 letter to President Trump's attorney declaring that NARA would disclose the records over President Trump's objection."
(so whatever is redacted is there from Jay Bratt is saying the same thing as what is in the May 10th letter)
"The Special Counsel has [not] produced such damage assessment."
"Biden [deferred] to NARA's determination to overrule President Trump's invocation of executive privilege after having been advised by an ASsistant Attorney General to take that position."
Wall's May 10th, 2022 letter to Trump's attorneys.
June 3, 2022
Trump's attorneys turn over records with classification markings
August 8, 2022
FBI "raids" Mar-a-Lago
Trump's attorneys turn over records with classification markings
August 8, 2022
FBI "raids" Mar-a-Lago
late-September 2022
Trump informs Court that the Special Counsels Office is deficient in its discovery obligations
"The deficiencies [are] ongoing..."
"In an effort to address these issues without the need for judicial intervention, President Trump sent a series of classified and unclassified discovery requests to the Special Counsel’s Office on..."
October 9
October 19
October 31
November 1
"The Office responded to the requests by letters dated..."
October 16
October 30
November 8
"Although the prosecutors produced some additional materials, they rejected most of the requests."
January 10, 2024
"[Defense] disclosed core defense themes that support the remaining requests. The Special Counsel’s Office has not revised its responses or provided additional information since the call."
"The Special Counsel has yet to produce to defense counsel forensic images of the devices it obtained during the course of its investigation despite having provided such devices to Deloitte for processing in or around March of 2023 according to request for non-FBI processing submitted to the FBI"
Trump informs Court that the Special Counsels Office is deficient in its discovery obligations
"The deficiencies [are] ongoing..."
"In an effort to address these issues without the need for judicial intervention, President Trump sent a series of classified and unclassified discovery requests to the Special Counsel’s Office on..."
October 9
October 19
October 31
November 1
"The Office responded to the requests by letters dated..."
October 16
October 30
November 8
"Although the prosecutors produced some additional materials, they rejected most of the requests."
January 10, 2024
"[Defense] disclosed core defense themes that support the remaining requests. The Special Counsel’s Office has not revised its responses or provided additional information since the call."
"The Special Counsel has yet to produce to defense counsel forensic images of the devices it obtained during the course of its investigation despite having provided such devices to Deloitte for processing in or around March of 2023 according to request for non-FBI processing submitted to the FBI"
"At the core of the pending discovery disputes is the failure of the Special Counsel’s Office to acknowledge the consequences for discovery of prosecutors’ extensive coordination and resource sharing with the White House, senior officials at DOJ and FBI, and numerous agencies in the Intelligence Community and other parts of the government. The Office cannot reap the benefits of these coordinated activities while ignoring exculpatory information and other discoverable evidence in the same offices."
"The resolution of this issue has important ramifications for discovery during the remainder of the case. The Office must conduct the case file reviews mandated by the Justice Manual..."
"The prosecutors must address President Trump’s discovery requests from that perspective..."
"These reviews and responses must include pertinent data from the classified systems used by the agencies, including the classified email accounts used by the prosecutors and their associates that are described in Part 1 of the Classified Supplement."
"prosecutors must conduct a thorough review for Giglio and Jencks Act material before offering trial testimony from one of the agency’s employees..."
"responsive materials may ultimately need to be addressed through additional rounds of CIPA"
"in light of the material evidence uncovered through FOIA, but hidden by the Special Counsel’s Office, the Court should reject any opposition to this motion that lacks a sworn declaration providing assurances that the Office has reviewed and disclosed all communications and evidence that is relevant to the issues of coordination, resource sharing, and investigative alignment that govern the scope of the prosecution team"
"The resolution of this issue has important ramifications for discovery during the remainder of the case. The Office must conduct the case file reviews mandated by the Justice Manual..."
"The prosecutors must address President Trump’s discovery requests from that perspective..."
"These reviews and responses must include pertinent data from the classified systems used by the agencies, including the classified email accounts used by the prosecutors and their associates that are described in Part 1 of the Classified Supplement."
"prosecutors must conduct a thorough review for Giglio and Jencks Act material before offering trial testimony from one of the agency’s employees..."
"responsive materials may ultimately need to be addressed through additional rounds of CIPA"
"in light of the material evidence uncovered through FOIA, but hidden by the Special Counsel’s Office, the Court should reject any opposition to this motion that lacks a sworn declaration providing assurances that the Office has reviewed and disclosed all communications and evidence that is relevant to the issues of coordination, resource sharing, and investigative alignment that govern the scope of the prosecution team"
"Personnel from the agencies discussed below are part of the prosecution team for purposes of the discovery obligations of the Special Counsel’s Office under Brady, Giglio, Rule 16(a)(1)(E), and the Jencks Act."
NARA
including its White House Liaison Division
By Fall 2021
NARA's General Counsel had "⬛️"
January 2022
"NARA communicated with White House Counsel and senior DOJ officials regarding the 15 Boxes, and then acted at the direction of those components by providing details to NARA-OIG, the Inspector General of the Intelligence Community, and the FBI."
NARA
including its White House Liaison Division
By Fall 2021
NARA's General Counsel had "⬛️"
January 2022
"NARA communicated with White House Counsel and senior DOJ officials regarding the 15 Boxes, and then acted at the direction of those components by providing details to NARA-OIG, the Inspector General of the Intelligence Community, and the FBI."
Oops. Those emails above are Exhibit 13 and go with the next post.
I meant to put 12.
Here is Exhibit 12
I meant to put 12.
Here is Exhibit 12
February 2022
"NARA-OIG contacted Assistant Special Counsel Thomas P. Windom, among others, because by that time NARA-OIG was already working with Windom on a related investigation of President Trump."
"About a week later, following a congressional inquiry relating to the 15 Boxes, NARA-OIG sent the sham referral to the Public Integrity Section"
"NARA-OIG contacted Assistant Special Counsel Thomas P. Windom, among others, because by that time NARA-OIG was already working with Windom on a related investigation of President Trump."
"About a week later, following a congressional inquiry relating to the 15 Boxes, NARA-OIG sent the sham referral to the Public Integrity Section"
Ex. 17
"One of the first steps investigative steps taken by the FBI appears to have been the ⬛️⬛️⬛️⬛️⬛️⬛️"
"The partisan gamesmanship by NARA reflected in this report, as well as other documents, puts the lie to NARA’s public claim in April 2023 that “NARA does not consider itself to be involved in the work of, or investigations by, the requestors.”"
"The partisan gamesmanship by NARA reflected in this report, as well as other documents, puts the lie to NARA’s public claim in April 2023 that “NARA does not consider itself to be involved in the work of, or investigations by, the requestors.”"
"the evidence of NARA’s coordination and assistance to the investigation arises largely from FOIA releases. The releases strongly suggest that any factfinding on this issue, in the form of testimony or documents, will further support President Trump’s position."
The Intelligence Community
"The prosecution team includes the Intelligence Community agencies and components that participated in the investigation, such as during classification reviews and damage assessments. This includes the Office of the Director of National Intelligence and the agencies identified in paragraph 22 of the Indictment as “equity” holders of some of the documents at issue: the Central Intelligence Agency, the Defense Department, the National Security Agency, the National Geospatial Intelligence Agency, the National Reconnaissance Office, the Department of Energy, and the Statement Department."
"Though the Special Counsel’s Office has suppressed these communications, we know from FOIA releases that NARA started to coordinate with the Inspector General of the Intelligence Community by January 25, 2022."
"the Intelligence Community’s participation in the classification-review process warrants inclusion within the prosecution team for purposes of discovery obligations."
That classification-review process is absolutely key to this case. Trump says he declassified these docs and that they are his personal records under the PRA.
Assuming they were reclassified by the Biden Admin, at what point were they reclassified and why?
"The prosecution team includes the Intelligence Community agencies and components that participated in the investigation, such as during classification reviews and damage assessments. This includes the Office of the Director of National Intelligence and the agencies identified in paragraph 22 of the Indictment as “equity” holders of some of the documents at issue: the Central Intelligence Agency, the Defense Department, the National Security Agency, the National Geospatial Intelligence Agency, the National Reconnaissance Office, the Department of Energy, and the Statement Department."
"Though the Special Counsel’s Office has suppressed these communications, we know from FOIA releases that NARA started to coordinate with the Inspector General of the Intelligence Community by January 25, 2022."
"the Intelligence Community’s participation in the classification-review process warrants inclusion within the prosecution team for purposes of discovery obligations."
That classification-review process is absolutely key to this case. Trump says he declassified these docs and that they are his personal records under the PRA.
Assuming they were reclassified by the Biden Admin, at what point were they reclassified and why?
August 30, 2022
DOJ:
"DOJ and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of these materials, and ODNI is leading an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of these materials."
September 8, 2022
DOJ:
"[T]he ongoing Intelligence Community (“IC”) classification review and [damage] assessment are closely interconnected with—and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation, as further explained in the attached Declaration of Alan E. Kohler, Jr., Assistant Director of the FBI’s Counterintelligence Division."
“[t]he Intelligence Community’s review and assessment cannot be readily segregated from [DOJ’s] and [FBI’s] activities in connection with the ongoing criminal investigation”
"...classification reviews were conducted “under the supervision of the Director of National Intelligence.”"
FBI Asst Director Kohler confirmed that "the Office of the Director of National Intelligence had “agreed to oversee and help coordinate [with the FBI] the ongoing classification review.”"
“the IC assessments will necessarily inform the FBI’s criminal investigation, including subsequent investigative steps that might be necessary.”
DOJ:
"[T]he IC’s intelligence classification review and national security assessment— which the Court sought to allow to continue in recognition of the vital interests at stake—are closely linked to its criminal investigation, and therefore cannot proceed effectively while the injunction remains in place."
Therefore...
"the discovery obligations of the Special Counsel’s Office extend to the files of the Intelligence Community."
DOJ:
"DOJ and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of these materials, and ODNI is leading an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of these materials."
September 8, 2022
DOJ:
"[T]he ongoing Intelligence Community (“IC”) classification review and [damage] assessment are closely interconnected with—and cannot be readily separated from—areas of inquiry of DOJ’s and the FBI’s ongoing criminal investigation, as further explained in the attached Declaration of Alan E. Kohler, Jr., Assistant Director of the FBI’s Counterintelligence Division."
“[t]he Intelligence Community’s review and assessment cannot be readily segregated from [DOJ’s] and [FBI’s] activities in connection with the ongoing criminal investigation”
"...classification reviews were conducted “under the supervision of the Director of National Intelligence.”"
FBI Asst Director Kohler confirmed that "the Office of the Director of National Intelligence had “agreed to oversee and help coordinate [with the FBI] the ongoing classification review.”"
“the IC assessments will necessarily inform the FBI’s criminal investigation, including subsequent investigative steps that might be necessary.”
DOJ:
"[T]he IC’s intelligence classification review and national security assessment— which the Court sought to allow to continue in recognition of the vital interests at stake—are closely linked to its criminal investigation, and therefore cannot proceed effectively while the injunction remains in place."
Therefore...
"the discovery obligations of the Special Counsel’s Office extend to the files of the Intelligence Community."
Tossing this very apropos thread by @mindnotforrent in here before I go to the next section of the filing.
https://twitter.com/mindnotforrent/status/1558254903419609090
The White House
"The prosecution team includes at least the National Security Council..."
"The Council was responsible for the creation and handling of many of the documents at issue, and the Special Counsel’s Office will be required to rely on personnel from the National Security Council at trial"
"The White House Counsel’s Office and WH-ORM are part of the prosecution team because they repeatedly supported the investigative activities of DOJ, FBI, and NARA."
"In September 2021, NARA General Counsel Stern ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ to weeks later, Stern ⬛️⬛️⬛️⬛️⬛️.
In January 2022, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
"In February 2022, Bosanko wrote to a colleague that NARA’s communications with the White House had been consumed by issues relating to the 15 Boxes."
"In NARA’s May 10, 2022 letter, the Acting Archivist, Wall, disclosed that she was acting based in part on communications with “[t]he Counsel to the President.”"
", these White House components cannot escape the import of these activities for purposes of the prosecution-team analysis. The Special Counsel’s Office must produce discoverable information from the White House’s files."
"The prosecution team includes at least the National Security Council..."
"The Council was responsible for the creation and handling of many of the documents at issue, and the Special Counsel’s Office will be required to rely on personnel from the National Security Council at trial"
"The White House Counsel’s Office and WH-ORM are part of the prosecution team because they repeatedly supported the investigative activities of DOJ, FBI, and NARA."
"In September 2021, NARA General Counsel Stern ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ to weeks later, Stern ⬛️⬛️⬛️⬛️⬛️.
In January 2022, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
"In February 2022, Bosanko wrote to a colleague that NARA’s communications with the White House had been consumed by issues relating to the 15 Boxes."
"In NARA’s May 10, 2022 letter, the Acting Archivist, Wall, disclosed that she was acting based in part on communications with “[t]he Counsel to the President.”"
", these White House components cannot escape the import of these activities for purposes of the prosecution-team analysis. The Special Counsel’s Office must produce discoverable information from the White House’s files."
The Department of Justice
"The prosecution team includes senior DOJ officials at the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Counsel, and the National Security Division, as well as personnel from the U.S. Attorney’s Office for the Southern District of Florida (“USAO-SDFL”) who participated in the investigation—including former Acting U.S. Attorney Juan Antonio Gonzalez."
"NARA’s May 10, 2022 letter overruling President Trump’s objection to providing the 15 Boxes to the FBI was based in part on “a request from the Department of Justice” and “consultation with the Assistant Attorney General for the Office of Legal Counsel.”"
"Just over a week later ⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"The Attorney General “personally approved” the search warrant..."
"August 1, 2022, senior DOJ officials met with FBI leadership at “FBIHQ” for a “Search Warrant Discussion...
...DOJ participants in the meeting included Assistant Attorney General Matthew Olsen, Newman, Toscas, and Bratt."
"August 3, 2022 ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
Ex. 34
"The prosecution team includes senior DOJ officials at the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Counsel, and the National Security Division, as well as personnel from the U.S. Attorney’s Office for the Southern District of Florida (“USAO-SDFL”) who participated in the investigation—including former Acting U.S. Attorney Juan Antonio Gonzalez."
"NARA’s May 10, 2022 letter overruling President Trump’s objection to providing the 15 Boxes to the FBI was based in part on “a request from the Department of Justice” and “consultation with the Assistant Attorney General for the Office of Legal Counsel.”"
"Just over a week later ⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"The Attorney General “personally approved” the search warrant..."
"August 1, 2022, senior DOJ officials met with FBI leadership at “FBIHQ” for a “Search Warrant Discussion...
...DOJ participants in the meeting included Assistant Attorney General Matthew Olsen, Newman, Toscas, and Bratt."
"August 3, 2022 ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
Ex. 34
August 20, 2022
"Newman and Toscas, as well as Rush Atkinson, Austin Evers, and Loeb from the Office of the Deputy Attorney General, reviewed a motion by Judicial Watch to unseal the search warrant."
"Toscas and Bratt kept Olsen, Newman, and Gonzalez apprised of developments in that litigation by forwarding communications with President Trump’s attorneys."
Ex. 36
Ex. 37
"Newman and Toscas, as well as Rush Atkinson, Austin Evers, and Loeb from the Office of the Deputy Attorney General, reviewed a motion by Judicial Watch to unseal the search warrant."
"Toscas and Bratt kept Olsen, Newman, and Gonzalez apprised of developments in that litigation by forwarding communications with President Trump’s attorneys."
Ex. 36
Ex. 37
Ex. 38
August 17, 2022
Re: CNN - Mar-a-Lago CCTV Footage
Ex. 39
Ex. 40
Re: CNN - Mar-a-Lago CCTV Footage
Ex. 39
Ex. 40
Ex. 41
Ex. 42
Ex. 43
Ex. 44
Ex. 42
Ex. 43
Ex. 44
Ex. 45
Ex. 46
Ex. 46
Ex. 47
Ex. 48
Ex. 48
"In sum, senior DOJ officials regularly participated in and consulted on key decisions during the investigation, including the opening of the investigation, advice and counsel to NARA, the decision to raid Mar-a-Lago, deliberations with FBI regarding warrant execution, and post-warrant litigation. Based on those activities, these officials’ components within DOJ are part of the prosecution team, and the Special Counsel’s Office must collect and produce discoverable information from their files."
The Special Counsel's Office
"In accordance with [Attorney General Garland’s Order No. 5559-2022], the Office did not silo its investigative activities or its personnel during the investigations, and it should not be permitted to do so now for purposes of discovery."
"In accordance with [Attorney General Garland’s Order No. 5559-2022], the Office did not silo its investigative activities or its personnel during the investigations, and it should not be permitted to do so now for purposes of discovery."
FBI Headquarters: The Counterintelligence Division
June 2022
"...as discussed in the Classified Supplement, the Counterintelligence Division played a central role in classification reviews."
Cannot overstate the importance of those classification reviews. If Trump team can get access to them they could potentially blow up the entire case with just those.
"..., because the FBI’s Counterintelligence Division was central to several key steps in the investigation, it is part of the prosecution team."
Ex. 34
June 2022
"...as discussed in the Classified Supplement, the Counterintelligence Division played a central role in classification reviews."
Cannot overstate the importance of those classification reviews. If Trump team can get access to them they could potentially blow up the entire case with just those.
"..., because the FBI’s Counterintelligence Division was central to several key steps in the investigation, it is part of the prosecution team."
Ex. 34
The Secret Service
"The Secret Service is part of the prosecution team because agents worked closely with the FBI during at least two important points.
First, the Secret Service ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
Second, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
Specifically, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
"The Secret Service is part of the prosecution team because agents worked closely with the FBI during at least two important points.
First, the Secret Service ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
Second, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
Specifically, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
The Special Counsel’s Office Has An Affirmative Duty To Search For Discoverable Evidence
"The Special Counsel’s Office has an affirmative obligation to collect and produce discoverable evidence in the possession of the entire prosecution team. Because of the evidence of coordination with the Intelligence Community and the Office’s related assertions in Trump v. United States, the Court need not address whether, pursuant to the Justice Manual and as in other cases, the Office must utilize the Prudential Search Request process...
That is because the Office’s obligations are basic applications of actual- and constructive-possession principles under Brady and Rule 16(a)(1)(E) in light of the extensive coordination established by the record."
"The Special Counsel’s Office has an affirmative obligation to collect and produce discoverable evidence in the possession of the entire prosecution team. Because of the evidence of coordination with the Intelligence Community and the Office’s related assertions in Trump v. United States, the Court need not address whether, pursuant to the Justice Manual and as in other cases, the Office must utilize the Prudential Search Request process...
That is because the Office’s obligations are basic applications of actual- and constructive-possession principles under Brady and Rule 16(a)(1)(E) in light of the extensive coordination established by the record."
The Special Counsel’s Office Must Be Compelled To Comply With Their Discovery Obligations
"... whereas in the D.C. Case the Office at least claimed to have “proceeded consistently” with the Justice Manual,13 the Office has not made that assertion in this case. They could not credibly do so based on this record.
Accordingly, the Court should compel the Office to provide materials in the possession of the prosecution team that are responsive to the requests below and in the Classified Supplement."
"... whereas in the D.C. Case the Office at least claimed to have “proceeded consistently” with the Justice Manual,13 the Office has not made that assertion in this case. They could not credibly do so based on this record.
Accordingly, the Court should compel the Office to provide materials in the possession of the prosecution team that are responsive to the requests below and in the Classified Supplement."
Improper Coordination With NARA To Abuse The Grand Jury Process
"... the record suggests that the Special Counsel’s Office coordinated with NARA to use one or more pretextual grand jury subpoenas as an investigative tool designed to circumvent PRA procedures.
The coordination is further evidence of NARA’s role on the prosecution team, and the Office should be required to make further disclosures regarding these issues because they support President Trump’s arguments relating to violations of due process and the PRA."
"A set of notes relating to the May 4, 2023 meeting shed additional light on the discussion.
The notes suggest that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
The notes contain the following additional entries:
⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ Footnote 14
Footnote 14 = The Nunes Memo (!!!!!!!)
intelligence.house.gov/news/documents…
"... the record suggests that the Special Counsel’s Office coordinated with NARA to use one or more pretextual grand jury subpoenas as an investigative tool designed to circumvent PRA procedures.
The coordination is further evidence of NARA’s role on the prosecution team, and the Office should be required to make further disclosures regarding these issues because they support President Trump’s arguments relating to violations of due process and the PRA."
"A set of notes relating to the May 4, 2023 meeting shed additional light on the discussion.
The notes suggest that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
The notes contain the following additional entries:
⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ Footnote 14
Footnote 14 = The Nunes Memo (!!!!!!!)
intelligence.house.gov/news/documents…
Why would they be referencing the Nunes Memo if this whole thing was not about the damn Crossfire Hurricane Binder that Trump declassified on Jan 19, 2021?
trumpwhitehouse.archives.gov/presidential-a…
trumpwhitehouse.archives.gov/presidential-a…
"It is clear from the record that the Special Counsel's Office did not need to use grand jury subpoenas to obtain records from NARA in 2023."
"Some references in the reports and notes suggest that the prosecution team was strategizing on how best to transfer records from the Trump Administration while providing minimal notice under the PRA."
It's material from the Crossfire Hurricane binder.
"Some references in the reports and notes suggest that the prosecution team was strategizing on how best to transfer records from the Trump Administration while providing minimal notice under the PRA."
It's material from the Crossfire Hurricane binder.
"Finally, the notes from the May 4, 2023 meeting suggest that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️.
That request supports President Trump’s position that the Office’s relationship with NARA is anything but arms’ length, which is why, as discussed above, NARA must be considered part of the prosecution team...
Moreover, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️would be even more problematic if any of those materials were favorable to President Trump and have not been produced. For all of these reasons, the Office should be required to identify and disclose ⬛️⬛️⬛️⬛️⬛️referenced in Exhibits 57 and 58, as well as the subset of ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
When you toss in "Crossfire Hurricane" and/or "binder" into those black boxes it makes a lot of sense.
I could be wrong, ofc, but it just fits the context of what is being discussed here, the stories about the binder, etc. It just fits.
That request supports President Trump’s position that the Office’s relationship with NARA is anything but arms’ length, which is why, as discussed above, NARA must be considered part of the prosecution team...
Moreover, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️would be even more problematic if any of those materials were favorable to President Trump and have not been produced. For all of these reasons, the Office should be required to identify and disclose ⬛️⬛️⬛️⬛️⬛️referenced in Exhibits 57 and 58, as well as the subset of ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
When you toss in "Crossfire Hurricane" and/or "binder" into those black boxes it makes a lot of sense.
I could be wrong, ofc, but it just fits the context of what is being discussed here, the stories about the binder, etc. It just fits.
Hahaha, I mean of course Trump has them chasing that binder!
The Attempt To Retroactively Terminate President Trump’s Security Clearance And Related Disclosures
"In June 2023, after the Office filed the lawless charges in this case, the Department of Energy purported to retroactively terminate President Trump’s security clearance. The Office must make further disclosures regarding the circumstances of that decision, as they are probative of President Trump’s bias defense, and potential motions regarding spoliation of evidence relating to database records that previously reflected the clearance."
"August 15, 2023, the Special Counsel’s Office disclosed an exculpatory Department of Energy memorandum relating to President Trump’s security clearance. The memorandum was signed on June 28, 2023, weeks after the Office filed the Indictment"
"Scattered Castles"
dni.gov/files/document…
"In June 2023, after the Office filed the lawless charges in this case, the Department of Energy purported to retroactively terminate President Trump’s security clearance. The Office must make further disclosures regarding the circumstances of that decision, as they are probative of President Trump’s bias defense, and potential motions regarding spoliation of evidence relating to database records that previously reflected the clearance."
"August 15, 2023, the Special Counsel’s Office disclosed an exculpatory Department of Energy memorandum relating to President Trump’s security clearance. The memorandum was signed on June 28, 2023, weeks after the Office filed the Indictment"
"Scattered Castles"
dni.gov/files/document…
Defense Information System for Security (DISS), Defense Counterintelligence and Security Agency
dcsa.mil/Systems-Applic…
dcsa.mil/Systems-Applic…
"All information concerning President Trump’s security clearances, read-ins, and related training is discoverable in light of President Trump’s bias and due process defenses, as well as the allegations in the § 793(e) charges relating to “unauthorized” and “willful[]” possession."
"The Special Counsel’s Office must also make additional disclosures regarding the Department of Energy’s memorandum. On its face, the document supports President Trump’s defenses regarding, inter alia, bias in the Intelligence Community and due process violations arising from improper coordination."
"President Trump’s “Q clearance” relates most specifically to the “Undated” document charged in Count 19 bearing a “Former Restricted Data” marking, and we expect that it will serve as a basis for a motion to dismiss at the appropriate time. ECF No. 85 at 35.
However, evidence of post-presidential possession of a valid security clearance between 2021 and 2023 also supports potential arguments, which President Trump is entitled to explore based on existing evidence, concerning good-faith and non-criminal states of mind relating to possession of classified materials. Accordingly, the Office should be required to produce all records relating to President Trump, including any modified or amended records, from the Energy Department’s Central Personnel Clearance Index and Clearance Action Tracking System."
"President Trump’s “Q clearance” relates most specifically to the “Undated” document charged in Count 19 bearing a “Former Restricted Data” marking, and we expect that it will serve as a basis for a motion to dismiss at the appropriate time. ECF No. 85 at 35.
However, evidence of post-presidential possession of a valid security clearance between 2021 and 2023 also supports potential arguments, which President Trump is entitled to explore based on existing evidence, concerning good-faith and non-criminal states of mind relating to possession of classified materials. Accordingly, the Office should be required to produce all records relating to President Trump, including any modified or amended records, from the Energy Department’s Central Personnel Clearance Index and Clearance Action Tracking System."
Use Of Secure Facilities At President Trump’s Residences
(The Mar-a-Lago SCIF)
"The Special Counsel’s Office should be required to disclose all evidence relating to what the Office previously described to the Court as “temporary secure locations” at Mar-a-Lago, Bedminster, and Trump Tower and related SCIFs at “offsite locations.”"
"President Trump will dispute at trial the contentions by the Special Counsel’s Office that Mar-a-Lago was not secure and that there was a risk that materials stored at those premises could be compromised."
"... in response to the Office’s allegation that the Secret Service “was not responsible for the protection of TRUMP’s boxes or their contents,” id. ¶ 13, President Trump is entitled to present evidence regarding steps the Secret Service took to secure the residences, such as during and after his successful run in the 2016 election."
(The Mar-a-Lago SCIF)
"The Special Counsel’s Office should be required to disclose all evidence relating to what the Office previously described to the Court as “temporary secure locations” at Mar-a-Lago, Bedminster, and Trump Tower and related SCIFs at “offsite locations.”"
"President Trump will dispute at trial the contentions by the Special Counsel’s Office that Mar-a-Lago was not secure and that there was a risk that materials stored at those premises could be compromised."
"... in response to the Office’s allegation that the Secret Service “was not responsible for the protection of TRUMP’s boxes or their contents,” id. ¶ 13, President Trump is entitled to present evidence regarding steps the Secret Service took to secure the residences, such as during and after his successful run in the 2016 election."
Evidence Of Bias And Investigative Misconduct
Special Counsel Coordination With The Biden Administration
"Communications with prosecution team members regarding the underlying investigation by members, relatives, or associates of the Biden Administration are discoverable because they support President Trump’s defense regarding the politically motivated nature of the prosecution."
"Given these circumstances, any communications between members of the prosecution team and members, relatives, or associates of President Biden concerning the investigation are discoverable because they support President Trump’s defense that this prosecution is improper and politically motivated. The Special Counsel’s Office must review the electronic communications of all prosecution team members and produce any such documents."
"Communications with prosecution team members regarding the underlying investigation by members, relatives, or associates of the Biden Administration are discoverable because they support President Trump’s defense regarding the politically motivated nature of the prosecution."
"Given these circumstances, any communications between members of the prosecution team and members, relatives, or associates of President Biden concerning the investigation are discoverable because they support President Trump’s defense that this prosecution is improper and politically motivated. The Special Counsel’s Office must review the electronic communications of all prosecution team members and produce any such documents."
Biden Administration Coordination With Georgia Prosecutors
Sup, Nathan Wade?
"...communications between the Biden Administration and prosecutors in Georgia regarding any of the pending prosecutions of President Trump are similarly supportive of President Trump’s political bias defense and must be disclosed."
Sup, Nathan Wade?
"...communications between the Biden Administration and prosecutors in Georgia regarding any of the pending prosecutions of President Trump are similarly supportive of President Trump’s political bias defense and must be disclosed."
Ex. 63
Intelligence Community Bias
"Subjective assessments by the Intelligence Community concerning the documents at issue are central to this case. The Special Counsel’s Office will be required to present testimony from Intelligence Community witnesses regarding alleged sensitivities associated with the documents, classification status, and claims about potential harm from unauthorized disclosure. One of the ways in which President Trump will challenge that testimony is by demonstrating that the Case 9:23-cr-80101-AMC Document 262 Entered on FLSD Docket 01/16/2024 Page 51 of 68 49 Intelligence Community has operated with a bias against him dating back to at least the 2019 whistleblower complaint relating to his call with Ukrainian President Volodymyr Zelenskyy."
"Evidence of such bias is subject to Giglio and must be disclosed...
This includes classified materials and supporting documentation relating to the January 6, 2021 submission to the Senate Select Committee on Intelligence by the Intelligence Community Analytic Ombudsman, Dr. Barry Zulauf."
Ex. 64reuters.com/article/idUSKB…
"Subjective assessments by the Intelligence Community concerning the documents at issue are central to this case. The Special Counsel’s Office will be required to present testimony from Intelligence Community witnesses regarding alleged sensitivities associated with the documents, classification status, and claims about potential harm from unauthorized disclosure. One of the ways in which President Trump will challenge that testimony is by demonstrating that the Case 9:23-cr-80101-AMC Document 262 Entered on FLSD Docket 01/16/2024 Page 51 of 68 49 Intelligence Community has operated with a bias against him dating back to at least the 2019 whistleblower complaint relating to his call with Ukrainian President Volodymyr Zelenskyy."
"Evidence of such bias is subject to Giglio and must be disclosed...
This includes classified materials and supporting documentation relating to the January 6, 2021 submission to the Senate Select Committee on Intelligence by the Intelligence Community Analytic Ombudsman, Dr. Barry Zulauf."
Ex. 64reuters.com/article/idUSKB…
"The Court should require the Special Counsel’s Office to produce materials relating to the issues raised by Ratcliffe and Dr. Zulauf because it constitutes admissible impeachment of Intelligence Community witnesses."
I very much look forward to @JohnRatcliffe and @DrZulauf providing testimony at trial of CIA and IC bias against Trump. Should be fun.
: )
: )
@JohnRatcliffe @DrZulauf NARA Bias And Improper Coordination
"In pretrial motions and at trial, part of President Trump’s defense will rely upon evidence that NARA established itself as an arm of the prosecution rather than a neutral collector of presidential records by [May 2021]."
🧐
"In pretrial motions and at trial, part of President Trump’s defense will rely upon evidence that NARA established itself as an arm of the prosecution rather than a neutral collector of presidential records by [May 2021]."
🧐
@JohnRatcliffe @DrZulauf Other Prosecution Team Bias
"In light of President Trump’s anticipated defenses, the Special Counsel’s Office should also be required to produce documents and communications reflecting bias and/or political animus toward President Trump by members of the prosecution team."
"In light of President Trump’s anticipated defenses, the Special Counsel’s Office should also be required to produce documents and communications reflecting bias and/or political animus toward President Trump by members of the prosecution team."
Production Of All Correspondence And/Or Communications Concerning Counsel
Lots of ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ and then the tell:
"Considering all of the facts and circumstances surrounding the Office's interactions with Mr. Woodward, including what has now been learned in discovery, it is clear the Office has long been interested in Mr. Woodward's representation. It is therefore likely that the Office is in possession of additional communications concerning Mr. Woodward, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
Lots of ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️ and then the tell:
"Considering all of the facts and circumstances surrounding the Office's interactions with Mr. Woodward, including what has now been learned in discovery, it is clear the Office has long been interested in Mr. Woodward's representation. It is therefore likely that the Office is in possession of additional communications concerning Mr. Woodward, ⬛️⬛️⬛️⬛️⬛️⬛️⬛️"
Production Of All Correspondence And/Or Communications Concerning The Search Of Mar-A-Lago
Okay, I have a theory about this section:
I think they specifically DID NOT SEARCH THE MAL SCIF.
"... we know from communications produced through discovery that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
It is inexplicable that members of the FBI (let along the Office) would have no communications concerning the decision not to search an area of the President's residence- ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
Okay, I have a theory about this section:
I think they specifically DID NOT SEARCH THE MAL SCIF.
"... we know from communications produced through discovery that ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️
It is inexplicable that members of the FBI (let along the Office) would have no communications concerning the decision not to search an area of the President's residence- ⬛️⬛️⬛️⬛️⬛️⬛️⬛️⬛️."
Production Of CCTV Video Footage
"Central to the Special Counsel’s prosecution of President Trump and Messrs. Nauta and De Oliviera is the allegation that the three conspired to hide classified documents from investigators.
...the CCTV footage in this matter is central to the Special Counsel's prosecution and the defense hereto."
"Central to the Special Counsel’s prosecution of President Trump and Messrs. Nauta and De Oliviera is the allegation that the three conspired to hide classified documents from investigators.
...the CCTV footage in this matter is central to the Special Counsel's prosecution and the defense hereto."
"At the outset, in its initial production of discovery in this case, the Special Counsel produced roughly 80 terabytes of data consisting of the CCTV footage obtained in its investigation. In its July 6, 2023, cover letter accompanying the production, the Special Counsel indicated that the CCTV footage was contained in 21 separate folders"
"Each of these folders contained hundreds of individual files that had been compressed using proprietary software, 7-Zip.23 Decompressing these folders required hundreds of hours."
"Of note, defense counsel learned that these files were not produced to the Special Counsel’s office in such a compressed format. Rather, the Special Counsel compressed them and then produced them to defense counsel in a manner requiring hundreds of hours of extraction time before the video could be reviewed."
"In addition, the Special Counsel’s production included, “proprietary players produced by the camera system vendors . . . [and such video] will play exclusively in the player manufactured by the same company.” Upon extraction of the players, however, defense counsel continued to have issues playing the video."
"Each of these folders contained hundreds of individual files that had been compressed using proprietary software, 7-Zip.23 Decompressing these folders required hundreds of hours."
"Of note, defense counsel learned that these files were not produced to the Special Counsel’s office in such a compressed format. Rather, the Special Counsel compressed them and then produced them to defense counsel in a manner requiring hundreds of hours of extraction time before the video could be reviewed."
"In addition, the Special Counsel’s production included, “proprietary players produced by the camera system vendors . . . [and such video] will play exclusively in the player manufactured by the same company.” Upon extraction of the players, however, defense counsel continued to have issues playing the video."
"...internal documentation of the Special Counsel’s receipt and processing of the CCTV confirm that defense counsel was not provided with video that defense counsel can readily access."
"Accordingly, this Court should compel the production of CCTV footage in a manner that is readily accessible to defense counsel."
"Accordingly, this Court should compel the production of CCTV footage in a manner that is readily accessible to defense counsel."
Conclusion
"the Court should:
(1) following any necessary hearing to resolve factual disputes, issue an order setting the appropriate scope of the prosecution team in this case for purposes of the discovery obligations of the Special Counsel’s Office, and
(2) compel the Office to disclose the information requested in this brief and the accompanying Classified Supplement."
"the Court should:
(1) following any necessary hearing to resolve factual disputes, issue an order setting the appropriate scope of the prosecution team in this case for purposes of the discovery obligations of the Special Counsel’s Office, and
(2) compel the Office to disclose the information requested in this brief and the accompanying Classified Supplement."
@JohnRatcliffe @DrZulauf If you are interested, I covered this filing on my show in the last 45mins of episode #238
And then spent the entirety of episode #239 on it
rumble.com/v47ud9n-just-h…
rumble.com/v48f510-just-h…
And then spent the entirety of episode #239 on it
rumble.com/v47ud9n-just-h…
rumble.com/v48f510-just-h…
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