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Brandon Van Grack Profile picture
@BVanGrack
Feb 12 • 3 tweets • 1 min read • Read on X
During the Super Bowl, DOJ filed a motion in Mar-a-Lago case requesting permission to reply to defs' reply to support their motion to compel discovery. DOJ alleges procedural error: defs improperly raised a new claim that discovery is warranted based on selective prosecution. 1/3
In DOJ's response to the motion to compel, DOJ had noted that defs motion failed to properly raise a selective prosecution claim. Rather than file a new motion, defs added it to a reply, which DOJ claims was improper. 2/3
DOJ also alleges defs raised factual assertions for the first time, which is not proper in a reply--it should be part of a new motion. 3/3

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More from @BVanGrack

Brandon Van Grack Profile picture
Jul 17, 2023
Below are five things to look for at Tuesday’s Classified Information Procedures Act (#CIPA) pretrial conference in the Mar-a-Lago case. Although the conference is not intended to decide substantive issues for using classified info, there should be plenty to dissect.🧵
1. Scheduling. Arguably the most important part of the conference will be scheduling future CIPA filings/proceedings. DOJ proposed a schedule; defendants didn't offer any dates. The closer the Court adheres to DOJ’s dates, the more likely we'll have a trial before the election.
2.Magistrate Judges. The US District Court for the Southern District of Florida sits w/in the 11th Circuit, which has an unusual CIPA practice. The 11th Circuit allows magistrate judges to adjudicate CIPA matters; in most other circuits district court judges run the CIPA process.
Read 10 tweets
Brandon Van Grack Profile picture
Jun 11, 2023
The Classified Docs🧵:
There have been lots of questions on why these 31 classified (CL) docs were selected and how they will be used. This thread addresses three questions (1) Why the 31 docs? (2) Will the docs be declassified? (3) How will the CL docs impact the trial?
1. Why so many docs? It’s common in cases involving mishandling of CL docs to charge multiple CL docs to capture extent of harm & protect the case if issues arise w/ a doc—e.g., jury thinks doc doesnt contain “national defense” info (NDI) as required under 18 USC 793(e).
One theme identified by others is that some of the CL docs are grouped by theme and date.

lawfareblog.com/what-are-class…
Read 21 tweets
Brandon Van Grack Profile picture
Jun 9, 2023
Four reactions to this list🧵(1) Listed Espionage Act charge only mentions 'retention' and not disseminating the classified docs. Disseminating would have signaled that FPOTUS caused more serious harm to nat'l security. Curious if indictment nevertheless describes dissemination
(2) The 'retention' reference could be one count or multiple counts. It's not uncommon for each classified doc allegation to be a separate count.
(3) Conspiracy to Obstruct Justice. We will soon learn with whom FPOTUS conspired. Conspiracy allegation will also potentially help DOJ admit certain evidence.
Read 4 tweets
Brandon Van Grack Profile picture
Sep 25, 2022
The Declass Defense 🧵: FPOTUS’s recent stmts that he declassified “everything” and may have done it secretly (“by thinking about it”) merit a review of how a secret declassification order would impact an Espionage Act charge for retaining nat'l defense info (“retention charge").
As a starting point, the fact that a document has been declassified is typically relevant to a retention charge, even though the law does not specifically refer to classified information. The Espionage Act predates our current classification procedures and nomenclature. /1
And although an appellate court just held the declassification question is a “red herring,” that decision concerned the narrow issue of whether FPOTUS could have a personal interest in docs w/ classification markings and thus deprive the DOJ of the docs—he could not. /2
Read 15 tweets
Brandon Van Grack Profile picture
Sep 20, 2022
If ALL docs were actually declassified, which is not supported by the record at this time, it would be RELEVANT to whether DOJ would charge Espionage Act(18 USC 793(e)) even though the law doesn't say classified info. /1
DOJ explained in footnote 2 of affidavit that 793(e) uses the term “national defense information” (NDI) not classified info, and courts have held NDI means the info must be “closely held” and some courts have held disclosure of docs “must be potentially damaging to the US.” /2
If DOJ believed docs had been declassified, it would need to know when, why, and how they were declassified, which would bear on whether they could prove beyond a reasonable doubt that the docs were still “closely held” and that disclosure would be potentially damaging. /3
Read 5 tweets
Brandon Van Grack Profile picture
Sep 18, 2022
One topic left unaddressed in Judge Cannon’s order is the issue w/ providing appropriate clearance for FPOTUS attys (if DOJ’s appeal is denied). It is more complicated than simply providing “necessary clearance requirements,” as ordered by the court. 🧵 1/
In the typical case where classified docs must be provided to defendant's attys, the attys fill out a questionnaire, undergo an expedited clearance review, and obtain a “limited security approval,” as my former colleague notes @secretsandlaws /2
But such a “limited” clearance is for SECRET and TOP SECRET docs. It is normally not sufficient for more highly classified information known as compartmented information, SCI (Sensitive Compartmented Information), some of which was seized at Mar-a-Lago. /3
Read 8 tweets

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