[T]he most inculpatory evidence against the original defendants in United States v. Trump et al—Trump, Nauta, and De Oliveira—will become the most exculpatory evidence for a law enforcement officer accused of violating their constitutional rights. [emphasis original]
That’s the warning buried two-thirds of the way into a motion to intervene that some number of (mostly former) FBI personnel filed in the original Trump stolen documents docket. The personnel ask Judge Aileen Cannon — serving in her role as the judge who issued a series of unprecedented orders killing a Special Counsel investigation and then burying the Special Counsel report, purportedly forever — for guidelines on what they are allowed to say in scheduled interview and grand jury appearances in the Grand Conspiracy investigation over which Judge Cannon presides by dint of the investigation being located in Fort Pierce, so she and only she could preside. This investigation cannot proceed, the mostly-fired FBI personnel lay out, without — in the process — giving those who have already been fired the freedom to speak publicly and to Congress about the most damning details of the Trump stolen document investigation.
The motion to intervene actually goes even further. It lays out why this investigation cannot proceed without putting Cannon in conflict of her own past order and that of the Eleventh Circuit. It probably cannot proceed without exposing the extent to which Cannon has never been adverse to the wishes of Donald Trump, not when presiding over his criminal prosecution and not now, when presiding over his vengeance.
So let’s go back. The filing was submitted on behalf of “multiple current and former Federal Bureau of Investigation (“FBI”) agents and analysts” who worked on the stolen documents case. The filing is quite coy about how many FBI personnel are implicated in this filing, probably to elicit a response that will cover a far greater universe of people. In one place, a footnote using the word “many” refers via this article to this one about Kash Patel firing at least ten people who played a role in the Mar-a-Lago search in February. There are five attorney firms listed on the filing, including Abbe Lowell (listed second), lawyers led by Margaret Donovan from a firm that has done some of the most aggressive challenges of illegal purges under Trump 2, including a number of FBI personnel, as well as Mark Zaid, who has represented federal employees in various fora for years (including some cases with Donovan), who also happens to have a relevant FOIA, which I’ll return to. It could be two people; indeed later, the filing in several places uses the word “each” and describes just two functions in the investigation:
Indeed, one Client currently subpoenaed to appear for testimony reviewed the entirety of Volume II to confirm its factual accuracy. Another Client is the Mar-a-Lago search warrant affiant.
Just one of the attorneys is barred in Florida, and the others will presumably file Pro Hac Vice submissions under them, meaning they may all represent a small universe of people in this case. But it is written such that it could apply more broadly.
The filing is packed with information about the investigation:
But one detail for the following discussion is critical: the temporal scope of the investigation only goes through the search of Mar-a-Lago:
that Clients would be expected to testify about their work on the clasified documents investigation beginning from the date the matter was referred to the FBI, up through and including the execution of the search warrant.
That scope is important because, at least thus far, the investigation purportedly only covers stuff that happened before Jack Smith was appointed. In theory, nothing in Aileen Cannon’s orders claiming Jack Smith was unlawfully appointed and then ordering the entire report killed should be implicated. Except, the filing notes, her order also purports to prohibit sharing any information in the report.
(b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof (their emphasis removed, mine added).
And by Cannon’s own description, the report includes a lot of references to investigative work that would have taken place before Jack Smith was appointed, and so would be “information” referenced in the report. Not only does Cannon’s order prohibit dissemination to anyone outside of Jack Smith’s team at DOJ, including the people leading the Grand Conspiracy, but it prohibits sharing information outside of DOJ, which would include grand jurors. Cannon’s order unlawfully gagged stuff that happened before Smith was involved.
DOJ claims that the interviews would not implicate Cannon’s orders. But, as two paragraphs lay out, they refuse to put any explanation for why not into writing, nor will they share the guidance provided Jack Smith before he testified.
When. counsel. requested clarification of DO!’s interpretation of how its investigation interacts with the Order, the government responded that is “work does not disturb [the] Order.” However, it did not elaborate nor provide any factual or legal basis from which it came to that conclusion As described below, the investigation does appear to implicate the Order clients face.
Undersigned counsel made clear to the government that Clients are willing to voluntarily testify before the grand jury. However, as described below, it is also apparent that the requested interviews and testimony, whether voluntary or compelled by subpoena, risk violating the Order. During preliminary conversations, counsel inquired as to whether DOJ—who is already a named party to the Order—would first clarify with this Court that the interviews and testimony would not violate the terms of this Court’s Order. DOJ declined to do so. Counsel for Clients also requested that DOJ provide a statement as to why the relief sought by this motion was or was not necessary. DOJ.declined to do so, Counsel also requested that DOJ provide its own previously issued opinion which articulates DOJ’s position that disclosure of any non-public information contained in Volume Il constitutes a violation of the Order, even when that information is provided in response to’a subpoena. DOJ has declined to do so. Counsel has attempted to locate the original emailed opinion in publicly available sources to provide a transparent, public citation for this motion, but that search has been unsuccessful.
What seems likely to be going on is that the reason DOJ says testifying won’t implicate Cannon’s orders is that Cannon, overseeing the grand jury investigation, has told them so; that Cannon has, secretly, told DOJ they can ignore her order now in order to pursue vengeance on Trump’s adversaries.
How does DOJ know Cannon doesn’t mind if they do things that contravene her order? She has told them so. Why won’t DOJ put this in writing? Because if they do, then all the people currently gagged by the order will have permission to talk publicly.
So that’s part of what this filing aims to achieve: By demanding something in writing that would cover testimony, it would establish rules that might apply elsewhere.
The treatment of Jack Smith’s testimony to Congress is an important precedent to demonstrate DOJ’s inconsistency. He was only permitted (by that order that DOJ won’t share with these attorneys) to testify to things that were in the search warrant or indictments. The filing notes, if that’s all DOJ needed here, then the FBI Agent leading the case could just read those from the documents to the grand jury. So DOJ is by definition asking for stuff Smith was not permitted to testify to.
But DOJ’s gag on Smith is not the only precedent the filing cites to show that DOJ, elsewhere, is saying such information cannot be shared. They also point to this status report in Zaid’s FOIA which uses Cannon’s order to stall on providing information obtained in the search (and so also from before Smith was appointed). And they also point to their self-snitching that they accidentally shared the Jack Smith report with attorneys for Carmen Linerburger, the woman charged with disseminating the report, (which I’ll link when PACER stops misbehaving).
Everywhere else, DOJ says that they cannot disseminate information from the investigation, including stuff that completely precedes Jack Smith’s appointment. But here, they are compelling that dissemination: by ordering people bound by Cannon’s gag to testify about information covered by it, by ordering the dissemination of that information to grand jurors, by envisioning a criminal prosecution that would require, under Brady, the sharing of exculpatory information with defendants.
It’s in that context that the filing makes the point included above: If DOJ ever tries to charge this, then the witnesses must be permitted to testify to Trump’s dangerous criminality, to the extensive justification for the investigation. DOJ can’t contemplate this prosecution, the filing argues, without eliciting testimony about what a criminal Trump is.
And once DOJ commits to disseminating all this information to a grand jury, the fact that Kash fired all these people means they would not be bound — as government employees are — to keep their grand jury testimony secret. As witnesses, the filing lays out in a footnote, they would be permitted to share the substance of their testimony.
[H]aving been summarily fired by Director Patel, Clients testifying as witnesses in this investigation would. not be government witnesses bound by Fed. R. Crim. P. 6(e)’s confidentiality requirements.
In other words, the main gist of this filing is an attempt to get in writing what the new Calvinball rules are, so that, having been freed to share information with a grand jury, witnesses will be free to share it with Congress or even (assuming they testify to a grand jury) the press.
Be careful of what you wish for.
But it goes further. It establishes a record, on two points, that implicate Aileen Cannon and her presumed permission to DOJ to violate her own order so long as it is in the service of vengeance for Donald Trump. One is that the legal pickle the clients are in here requires, legally, adversity. At least it is supposed to. If the FBI personnel testify, they will violate Cannon’s order, and she can hold them in contempt. If they don’t testify, DOJ can treat that as evidence of incrimination. Worse, Jim Jordan already referred Jack Smith for prosecution by omitting information he was gagged from sharing, and that precedent means witnesses could be treated the same — literally charged because they didn’t share information gagged by Cannon’s order.
The real lack of adversity is implied (no doubt for the Eleventh Circuit’s benefit) by the discussion on immunity. Prosecutors have already discussed immunizing witnesses to compel testimony, but even immunized testimony, protecting them from criminal exposure from Article II, would put them at risk of criminal exposure under Cannon’s order, Article III. If there is true adversity, testifying will put witnesses at risk of prison one way or another, either at the hand of Article II or Article III.
In initial discussions, government counsel indicated DOJ is considering offering Clients immunity for their testimony. As of the date of this filing, such immunity has not been formally offered, However, immunity would not solve the problems raised in this motion. First, as discussed above, Clients do not believe they or anyone who contributed to the information contained in Volume II broke any laws.. Moreover, while immunity would protect Clients from future prosecution, it would not alleviate the risk that their compelled testimony could place them in contempt of court or expose them to public allegations of wrongdoing.
Generally; grants of immunity can be used to compel grand jury testimony.’ See Brown v. United States, 359 US. 41, 45-46 (1959) (“For more than half a century it has been settled that this statute confers immunity from prosecution coextensive with the constitutional privilege against self-incrimination, and that the witness may not therefore lawfully refuse to testify.”), overruled on other grounds by Harris v. United States, 382. U.S. 162, 166-67 (1965). However, immunity does not protect witnesses from court-imposed sanctions: If Clients are granted immunity and still decline to speak for fear of violating the Order, they could be held in contempt. Cf Harris, 382 U.S.at 167 (directing a Rule 42(b) contempt hearing where an immune witness refused to testify to a grand jury).
But this brings us back to the unspoken Cannonball of this filing again: To compel testimony, DOJ would have to ask for Cannon’s approval, in her role presiding over the Grand Conspiracy investigation. But if she granted immunity so DOJ could compel testimony, she would herself by violating her own order, in her role throwing out the criminal case against Donald Trump. And all of this might go — indeed, might be intended to go — to the Eleventh Circuit while they’re already weighing arguments about the lack of adversity in Trump’s fake IRS settlement.
And because Cannon wears both hats — the judge who issued the unprecedented orders, and the judge overseeing the grand jury — clients could have submitted this in either document: a sealed grand jury matter or the existing, public docket. They’re going public.
So, much of this lays the groundwork for an appeal to the Eleventh Circuit, which has admonished Cannon before. The most important such instance attacks the very logic of the investigation, which imagines there was a criminal conspiracy to be mean to Donald Trump by holding him accountable for stealing boxes and boxes of classified documents.
Starting in the Brady discussion section and repeating later, the filing notes that to charge that Conspiracy to be mean to Donald Trump under 18 USC 241 and 242, you would have to argue that those who worked on the search of Mar-a-Lago had the intent to deprive Donny of his Constitutional rights. But as the filing notes, DOJ (under Biden), the Eleventh Circuit, Cannon herself, and even Donny (via his attorney, Todd Blanche) agreed that didn’t happen.
The crimes their testimony will purportedly be “evidence” of — 18 U.S.C. §§ 241 and 242 — require a specific intent to deprive someone of rights. See Screws v. United States, 325 US. 91, 101-04 (1945). Yet here, not only did both this Court and the Eleventh Circuit agree there was no “callous disregard” of citizen Trump’s constitutional rights, but Trump himself conceded this. See Trump v. United States, 54 FAth 689, 698 (11th Cir. 2022) (noting that not even the plaintiff claimed there had been a callous disregard for his constitutional rights in the execution of the search warrant).
[snip]
In other words, the most inculpatory evidence against the original defendants in United States v. Trump et al—Trump, Nauta, and De Oliveira—will become the most exculpatory evidence for a law enforcement officer accused of violating their constitutional rights. See DE 48, at 18 (“Although the former President may have a property interest in. his personal effects, he cannot demonstrate callous disregard of the Fourth Amendment considering the patient exhaustion of less-intrusive methods to obtain retum of documents with classification markings’ from the Premises and FBI Special Agents’ scrupulous adherence to the terms of the search warrant{.]”).
[snip]
Suffice it to say, this inconsistency is part of a continued trajectory of contradiction within the current DOJ. Four years ago, DOJ argued that then-citizen Trump “cannot demonstrate callous disregard of the Fourth Amendment considering the patient exhaustion of less intrusive methods to obtain return of documents with classification markings from the Premises,” hailing “FBI Special Agents’ scrupulous adherence to the terms of the search warrant.”. DE 48 at 18. This Court, the Eleventh Circuit, and Trump himself agreed. DE 64 at 9; Trump, 54 F.Ath 689, 698 (11th Cir. 2022). Yet in 2026, now-President Trump’s DOJ—led by one of his former criminal defense attorneys who previously objected to even an interagency transmittal of Volume Il, see generally DE 685— claims justification to criminally investigate a violation of Trump’s constitutional rights.
Aileen Cannon is presiding over a grand jury investigation that conflicts with her past rulings in the stolen documents case. Todd Blanche is presiding over a grand jury investigation that conflicts with both DOJ’s institutional arguments (to which DOJ is normally bound) and his own concessions. These are the kinds of conflicting stances that can get lawyers in trouble.
And the Eleventh Circuit has not only codified that, but they themselves are already on record that they themselves found no evidence that the subjects and witnesses here did the thing — disregarding Donny’s rights — that the entire investigation presumes.
Aileen Cannon and Todd Blanche are playing Cannonball. But this filing is designed to get the Eleventh Circuit to weigh in and do so publicly.
September 3: Aakash Singh made PADAG
September 9: Joe DiGenova serves a subpoena on John Brennan then quits
September 18: Nieman alerts he will move forward on testimony
September 21: A subpoena is sent to Donovan et al clients
September 22: A subpoena is resent, correcting an error
Week of September 28: First client subpoenaed
Week of October 5: Second client subpoenaed
October 15: John Brennan testimony in Fort Pierce
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