Poor Kristi Noem spent yesterday morning trying to jumpstart the talking point that the feds might have planted the top-secret documents seen in the now-famous DOJ photo. That’s reeeeeally unlikely when you remember that Trump had already returned two tranches of classified material earlier this year and the DOJ had bent over backward in negotiating with him to try to avoid the optics of showing up to his home. But at least it addressed the core legal problems Trump faces right now. If the FBI planted the docs then Trump isn’t guilty of unlawfully possessing them and he isn’t guilty of obstructing justice by concealing them after the feds first asked for them back.

So here he is yesterday all but confessing that, yeah, the stuff in the photo was in the storage room when the FBI got there.

Former president now admitting the Top Secret/SCI docs in the photograph were found “in cartons” pic.twitter.com/V5SSbn8l2B

— Andrew Feinberg (@AndrewFeinberg) August 31, 2022

Attorney Gabe Malor saw that and quickly updated his expectations about this case:

It appears that Trump has admitted on Truth Social to four of the five elements listed in the Pattern Jury Instructions for § 793(e).

Y’know how I said I still didn’t think Trump would be prosecuted because that just doesn’t happen? I think it’s inevitable now.

— Gabriel Malor (@gabrielmalor) August 31, 2022

Here’s how 18 U.S.C. 793 reads:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it

The only point Trump is disputing now is whether his possession of the material was “unauthorized” or not. It wasn’t unauthorized, he claims, because he issued a standing order while president that any classified material in his possession was declassified. But (a) the statute isn’t limited to material that’s classified, and (b) Trump’s dopey lawyers are now implicitly arguing in court that the material he had is still classified.

If Trump declassified everything, why are his lawyers agreeing with DOJ that any Special Master should have a Top Secret/SCI security clearance??https://t.co/sUf2kgf3Pq pic.twitter.com/4JTtpd3v7G

— Steve Vladeck (@steve_vladeck) September 1, 2022

When information is declassified, it’s not declassified for one person only. It’s declassified for everyone. You and I would have a right to submit a FOIA request for the declassified documents and have the government send us copies. If Trump’s nonsense about a standing order were true, there’d be no reason for his attorneys to request that the special master have a security clearance. No one would need a clearance anymore to read it.

The “Dumb & Dumber” spectacle to which he and his lawyers are treating us reminds me of a memorable analogy Leon Wolf used at the dawn of the Trump era, in August 2015. Trump, said Wolf, is like a fighter jet ejecting “chaff,” small incendiaries designed to fool heat-seeking missiles by blinding them with a sudden array of possible targets. “Each thing he says is so bizarre, or ill informed, or demonstrably false, or unpresidential in tone or character, that it becomes impossible to know which target to lock on to or focus on,” Wolf wrote. That’s what the Mar-a-Lago saga feels like. The documents were planted, except that they were actually in cartons, except that they were actually declassified, except that you need a clearance to be able to read them. If you’re a federal prosecutor used to responding to cogent defense arguments, how do you process that?

How do you process this?

Trump attorney indicates he "frequently" has guests in his personal office at Mar-a-Lago — where the FBI just recovered extraordinarily sensitive national security documents.https://t.co/G6J3SPHl5i

— Kyle Cheney (@kyledcheney) September 1, 2022

I don’t think any of this is part of a deliberate strategy by Trump and his team to confuse people by seeming to stumble into ever greater admissions of guilt. They’re each just winging it because they’re not on the same page, because it’s impossible to remain on the same page as someone as erratic as Trump for very long. And to the extent that it is, it’s not going to be his team of C-list lawyers who manages to do it.

John Bolton raised a point last night that must have crossed a few minds inside the DOJ. If there’s top-secret stuff at Mar-a-Lago, what are the odds that there’s top-secret stuff at Bedminster and Trump Tower?

"I wouldn't be surprised if there were more highly classified documents at Bedminster or some other residence of his."

— Former Trump National Security Adviser John Bolton thinks Donald Trump possibly has more classified documents pic.twitter.com/ske21YcLhA

— The Recount (@therecount) August 31, 2022

Are they quietly working to establish probable cause to search those properties too? Or will Merrick Garland decide that it’s better to have “HSC” material floating around loosely in the residences of a notorious loose cannon than risk further pissing off Trump’s more feral supporters by ordering additional searches?

Two polls were published in the last 24 hours that asked respondents how they’re feeling about the Mar-a-Lago search. One came from the WSJ:

Given a choice between two statements, a 52% majority agreed that the FBI action “was part of a legal and proper investigation to determine whether former President Trump was involved in any wrongdoing,” while 41% viewed it as “just another example of the endless witch hunt and harassment the Democrats and Biden administration continue to pursue against former President Trump.”

Four in five Republican voters agreed with the statement that suggests the search was part of a “witch hunt”—a phrase Mr. Trump often uses himself—while about a third of independents held that view and 5% of Democrats did.

The other came from Quinnipiac and found 59 percent agree that Trump acted inappropriately in how he handled classified documents after leaving the White House. Sixty-four percent believe the allegations against him are at least “somewhat serious.” And when asked whether he should be prosecuted, Americans split 50/41. I can’t guarantee you that he won’t win the 2024 nomination, but I can guarantee you that I was right when I said that this fiasco would end up strengthening Ron DeSantis’s case to GOP primary voters that he’s a far more electable alternative as nominee.

I’ll leave you with this. Even Fox News!

Steve Doocy to Kristi Noem: "Ultimately, it comes down to why did he have all that secret stuff at Mar-a-Lago? I know his team has said they declassified it, but that's news to the agencies that those documents belong to." pic.twitter.com/WVm1LvbiPs

— Aaron Rupar (@atrupar) August 31, 2022