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What’s Next in Trump Classified Docs Case? What Should Defense Strategy Be?

What happens now after the arraignment of former President Donald Trump in the classified-documents case? Will there be pre-trial motions? What will the government do? Is the defense team fully formed, and who should be on it? Why should the defense wait before filing a motion to dismiss?

And what do we know about the audio recordings of conversations between the Bidens and the owner of Burisma that Sen. Chuck Grassley (R-Iowa) has been talking about?

We discuss all this and more on this week’s episode of Kash’s Corner.

 

Interview trailer:

 

FULL TRANSCRIPT

Kash Patel: Hey everybody, welcome back to Kash’s Corner. We hope everyone tuned in last week for our live show from Arizona. It was a heater of an episode. If you didn’t see it, please tune in to Epoch TV and you can catch it anytime. Jan, what are we going to do on the heels of that great episode?

Jan Jekielek: I want to highlight why it’s really valuable to watch it, because you and I went through all sorts of nuances around the Trump indictment. Just a few days later on Tuesday, Trump was arraigned. And now, we’re filming this show Wednesday. He gave a speech explaining what his plan is now, and we want to dive into that. What does that actually mean? What does this mean logistically? What can happen here? Let’s dive into all of that.

Mr. Patel: Just so our audience knows, I was in attendance last night, Tuesday night, at Bedminster. I heard the former president and current candidate give his equivalent of a rebuttal to the indictment, informally, of course, since he gave the formal one in court. You’re talking more about what happens now procedurally. Lots of things.

President Trump was arraigned in the southern district of Florida, my former home shop where I was a federal public defender for a long time. An arraignment is where you simply enter a plea, either not guilty, or guilty. I’ve almost never seen someone just walk in and say they’re guilty on the first day, because you want due process. Even the prosecutors want that. The defense attorneys want that, with all the evidence.

President Trump entered his not guilty plea to all 37 counts. There’s a couple of things that start to happen. One; discovery is supposed to start coming in from the government, discovery being evidence. In this case, it seems from the indictment that we covered, the evidence is quite voluminous, with a lot of documents, and a lot of paperwork.

Are they going to get the documents in true, unredacted form? Is the government going to claim state secrets or say it’s classified, “We can’t show the defense attorneys X, Y, or Z.” Do the defense attorneys have clearance? That’s a whole other issue.

The president maintains his security clearance for life. But counsel, while they have an unlimited right to counsel per the Constitution in terms of your criminal defense, they have to be given a security clearance, because most people don’t have them.

Most lawyers don’t have them. 98 percent of lawyers don’t have a security clearance. That process has to be worked out between the defense attorneys and DOJ. If the court has to get involved it’s an awkward situation, because the executive branch controls security clearances, not the judicial branch. The judge couldn’t even order one, if for some reason the DOJ says to one of the lawyers in the case, “We’re not going to give you one. This is a problem. You get to pick who your attorneys are in this case.”

Let’s see how that shakes out. But we’ve seen how security clearances have been handled for people in the past, and we’ve seen some of them revoked for political reasons. We’ve seen a lot of people denied flat out for political reasons. In this case, that would be a way that the government takes a stab at due process.

Mr. Jekielek: What are examples of clearances being denied for political reasons?

Mr. Patel: I know a number of people that applied to the FBI. To be a special agent, you have to have a security clearance. You have to go through the process. They were supporters of one political movement versus the other. They had a perfect background, no criminal history, no credit problems, and no issues of residency or anything like that. They were basically told, “At this time, you don’t meet the mark for a security clearance. Please try back.”

When you see it over and over and over and over again, you think, “These are really good people. These are great candidates.” Then, you see the people who are supposed to have their security clearances revoked if they do commit a crime or lie to the American public, like Clapper, Brennan and Comey, who’ve gone into Congress and lied under oath, not to mention leaked sensitive information during and after their tenures.

Again, you’re seeing the two-tier system of justice in the administrative state of security clearances. Those are just a few examples, but it’s going to be interesting to see. We don’t yet fully know the final composition of Donald Trump’s entire defense team. I imagine it’s going to be more than one person, and it probably should be. We’re going to have to see how that one shakes out.

It could require some litigation. I’ve had to go through it when I was a federal public defender, when we had no national security cases. There’s only very few people in my office who would receive either a temporary or partial security clearance, instead of top secret, to handle the discovery and the evidence in the case.

But this is a very extensive matter, and as the government has portrayed, involves some very sensitive, highly classified materials. I don’t know how they’re going to meet the due process burdens in this case. It’s going to be pretty tricky.

Mr. Jekielek: Another nuance may be that the classification of those documents is in question.

Mr. Patel: Yes, that’s a great point.

Mr. Jekielek: So what does that mean?

Mr. Patel: That’s the thing. President Trump’s attorneys can go in there and say, “Wait a second. They didn’t charge my client with anything about unlawfully possessing classified documents.” We covered that extensively last week. If they’re not charging him with classified documents being possessed unlawfully, then why don’t you just turn them over? It would seem logical.

I don’t know what the government’s going to claim. They might claim, “No, they’re still classified.” Then, you have to go before the court and say, “We have to litigate this.” It’s going to be one of the many pretrial motions that are going to come up. You could have a pretrial motion over every single document, with thousands and thousands of documents. Should we do this one? Should we do that one? Did the government overly redact on this one or not? Is this one classified or not? What about the next step? This can take time.

I don’t know what the government’s approach will be. When I was a national security prosecutor, in order to bring a prosecution involving classified information, you as the prosecutor first had to do the intergovernmental process to have that declassified beforehand, before you went to the grand jury. This is a good reminder, grand jurors can’t ever be shown classified information. None of them have a clearance.

You would think the documentation they showed to the grand jury was declassified, at least in part. What I mean by that is, and not to really geek out, but CIPA, the Classified Information Procedures Act, governs the dissemination and adjudication of classified information in criminal proceedings. The government can go ahead and get substitutes. They can get summaries of the document, of the classified information.

Say there was something on North Korea launching an arsenal of attacks in an in-depth intelligence report, and the collection was so sensitive and so limited that we didn’t want it out in any way, shape or form. The government could petition the judge and say, “We think this summary substitutes sufficiently for this information. Please go ahead and issue that.” I understand the mechanisms and the reasoning behind the CIPA statutes. A lot of times it works, and it does protect sensitive information.

But in a case as overly political as this one, being examined by literally the world, people are going to say, “Wait a second. The DOJ and FBI have a track record and these prosecutors have a track record of withholding evidence of innocence, Brady information, and overly redacting information. How are they, the prosecutors, supposed to know what the defense needs to prepare defense in this case? That’s supposed to be on the defense attorney, not dictated by the prosecutor.

There’s a whole lot that’s going on, and the CIPA stuff usually happens during the pre-trial litigation. Then, the defense attorneys have their turn. If they are given all the documents and the government still says they’re classified or classified in part when they want to use the document in the defense of their client, they have to petition for that document to be declassified either in whole, or in part, or by substitute.

You can see how just having one criminal prosecution with national security implications with one document could take months to litigate and months to get the inter-agency governmental approval necessary for the declass or the summary substitution. Because they just can’t say, “Let’s call the CIA and just see if this is declassified and we can use it.”

It’s every agency that has an equity in that document. Usually it’s a multitude of agencies; the FBI, the CIA, the NSA, or the DOD. Everybody’s got to sign off on it. It’s not like the lower levels. This has to go to the director or the cabinet secretary level of each agency and department to sign off on, because the DOJ is requesting that use, or the defense attorneys are requesting that use. That’s how the CIPA statute works for production of information for both the prosecution and the defense in this case.

Mr. Jekielek: It could be a very long time. How you think this works out strategically for both the defense and the prosecution. Do they want a speedy trial? Do they want a protracted trial? It feels like people could make it go in one direction or the other.

Mr. Patel: Yes, it goes either way, for either side. I’m sure politics will weigh into it, even though they say it won’t. Do they want President Trump off the campaign trail for a 45-day trial next year? Do they want that to happen this year? Do they want to try and convict him earlier rather than later? That’s from the prosecutorial standpoint.

From the defense standpoint, do they want the exoneration earlier? Do they want the exoneration later? Do they want the pretrial motions to go out extensively, so they can inform the media as they come up with their findings and rulings from the judge to say, “This is fair. That is not fair. Look at what’s being kept from our client. We don’t have access to these documents.” These are the decisions that you have to make as the individual case proceeds. We faced the same issues when I was a federal public defender. Sometimes it was very advantageous to go right to trial just knowing the position of the government, the pieces of evidence, and if they had witness problems. We would say, “Yes, we’re ready pretty much right now, judge. Give us a week and we’ll go.”

Other times I was in there for two years before I said, “Judge, I’m ready for trial,” because I had to do a whole host of stuff to figure out how to best defend my client. Sometimes it was in the middle. Actually, a lot of times, in federal court especially, a judge will say, “You get one continuance per side, 30 days and 30 days. After that, we’re going to trial.” This other district of Florida is known for being what we call a rocket docket. They don’t slow roll criminal cases, they move them.

Now, everyone will say this is a different case, and it is. It’s a former president who’s running to be president again. I don’t know if those seasonal rules will apply in this case. But it will be interesting to see what positions the defense and the prosecution take as to who wants a fast one, who wants a slow one, who wants to do a lot of pretrial motions, and who doesn’t want to do a lot of pretrial motions.

The clock actually hasn’t even really started yet, and let me tell you why. People might forget that President Trump has a co-defendant in this case. We’ve all heard of this thing called speedy trial. State law says speedy trial must occur within, and I’m making up the number, 180 days of arraignment. If it does not, and there’s no good cause for a delay, the case is thrown out.

In the federal system, pursuant the Constitution, there is no number assigned to speedy trial. There is a constitutional right for the defendant to have a speedy trial, but that delay is not defined by the courts. It’s more on a case by case basis. Is there undue delay by the prosecution? Did they say they were ready, then they had a witness problem? Did they lie about evidence? Did they withhold evidence? Did they not produce everything?

That speedy trial clock doesn’t start in any co-defendant case until all co-defendants are arraigned. As far as I know, yesterday in Miami, only President Trump was arraigned. I don’t believe the co-defendant was arraigned at the same time. Who knows when that’s set for? It could be a month, it could be two weeks.

In essence, maybe the prosecution will use that to say that the clock hasn’t really started for our discovery obligations. Now, you get into all this stuff where you ask, “Where’s our information?” They say, “Oh, we’ll start when everybody’s arraigned.”

Mr. Jekielek: You mentioned some of the possible pretrial motions, so walk us through those.

Mr. Patel: As a former public defender, what I would personally recommend is an extensive pretrial motion order from the defense. In order to vigorously defend your client, in this instance, the former President of the United States who is up for reelection, there’s just too much at stake to rush it. There’s so much information in a 37-count indictment.

They’re talking about however many documents. We don’t know if it’s hundreds or thousands of photos of different places. Different states are involved in terms of geographic location of information and witnesses that you have to locate and use this court process to get them in there if you want them as a defense. That process in and of itself takes time. You have to put together the appropriate defense team in this case.

Everybody knows there are civil cases and criminal cases. What most people don’t know is that a national security case is different. Yes, it’s a criminal case, but it has to do with a whole different set of laws and classified information that we’ve been talking about. It’s almost this third animal. You do need a brilliant criminal defense lawyer, but you also need a national security expert who has litigated CIPA and these pretrial motions.

You need someone who’s very good at the Classified Information Procedures Act, because they’re going to need to be involved and litigate this stuff along the way. I don’t really know too many singular people that can perform all those duties at the A+ level. There’s a couple, and maybe they can find that one person, and maybe they become President Trump’s attorney. But it’s a massive lift.

Then, you have to review all the documents. You can’t even start filing pretrial motions. I heard people say, “There should be a motion to dismiss right away.” Okay, if you’ve got good cause to dismiss, sure. But you want to make that motion after you’ve done all your homework, in my opinion.

You want to go in there and see what they got. Because you also want to look at the substantiated allegations of prosecutor misconduct by some members on this team. You want to look at if they did it before, did they do it again? That’s not at all improper if you are the defense attorneys in this case.

That’s a different line of effort to follow than just the straight pretrial motions based on discovery and due process. This is a whole other branch that shoots out to say, “Judge, not only did they fail to produce the proper discovery and overly redact and withhold a witness, but the prosecutor is unethical.

That’s a whole—wow. Unfortunately, it happens. It’s happened to some of the prosecutors on this special counsel team. Those questions should be raised, in my opinion, not just the evidentiary ones. Then, you present motions to suppress evidence, “Judge, Mar-a-Lago was unlawfully raided. He replies, “Okay, tell me why.”

You say, “Fourth Amendment, search and seizure.” Everybody knows the basics. You have the right to privacy in your home against your effects and person, unless there is a measure met by the government to say you no longer have that right, because you are committing a crime or have evidence of a crime, and that’s a probable cause standard.

The agents or lawyers may have lied on the application, or they may have omitted relevant evidence, it happens not too infrequently on those motions to suppress evidence. I’ve litigated hundreds of them. I would say probably 15 percent of mine were granted in some form or in full. That means the evidence that the government got from that unlawful search and seizure is out.

I’m not saying this is going to happen, but just let’s say for instance, the judge rules that the raid at Mar-a-Lago was unlawful. Then, everything found at Mar-a-Lago is now out. It’s excluded from the trial. It’s as if it never existed and cannot be used against Donald Trump and the co-defendant in the prosecution. That’s one instance.

Then, you have all the other locations. They went to Bedminster, they being the government and the feds. I thought there was a third location somewhere, but I can’t really remember. There’s a whole NARA [The National Archives and Records Administration] component to it. We haven’t got any lucid details from NARA as to what they have and what they gave back in terms of all these documents.

I would litigate, in a pretrial motion fashion, to get a definitive answer from NARA, because part of the defense is going to involve the Presidential Records Act. It should involve the Presidential Records Act coupled with legal precedent from NARA involving the Clinton sock drawer case, which we’ve discussed before, and involving Sandy Berger from the DOJ, which we’ve discussed before.

You want definitive positions from the other components of government involved in this case. The good thing about being in federal court is you could put it all before federal judges and they have to decide. That’s when the rubber meets the road. In some instances, this pretrial motion calendar could be very extensive, and it should be. But that’s a trial tactic that the defense attorneys must decide with their clients.

Mr. Jekielek: With respect to the Mar-a-Lago raid, there were all sorts of documents taken which were not relevant. There’s a question about whether it was okay to take those.

Mr. Patel: What the government will usually say is, “We take everything. We’ll give you the stuff back that we don’t use.” Yes, most of the stuff they took, it’s safe to say, won’t be used in this prosecution. Right now we know they’re using 32 pieces of evidence. I don’t know how long those pieces of evidence are, to substantiate the first 32 counts. It doesn’t match up with what we’ve been told publicly about the boxes and boxes and boxes of evidence. But they took it all.

Mr. Jekielek: There was a discussion among a number of commentators at Epoch Times, that the indictment has to do with material which was thought to be under attorney-client privilege.

Mr. Patel: Yes.

Mr. Jekielek: How do you understand this? How does that become an issue or not?

Mr. Patel: We touched upon that last week, and you raised a great point. In my opinion, that should be one of the first motions, because you don’t have to go to law school to know there is an attorney-client privilege; civil, criminal, or national security. Even if you just consult with an attorney, and you’re saying, “I want to open a business,” or “I think the government might come after me for my money,” or “They might actually charge me with a crime,” that’s all attorney-client privilege.

Those conversations are sacrosanct. They can’t be found out by the prosecutor except for one exception, if the attorney and the client get together to commit a crime like, “Hey, let’s go rob a bank. Okay, you’re my attorney, here’s 10 bucks, so the government can never know what we’re doing.” Obviously, that’s the whole purpose of the one exception to the attorney-client privilege.

In this instance, if the stakes couldn’t be any higher already, you now have the former chief judge here in DC, Howell, who was responsible for all the grand jury issues. They litigated this before her when she was chief judge. Basically, one of President Trump’s former attorneys was brought before her.

The judge, upon motion by the government, said, “Yes, I’m going to allow you to break attorney-client privilege and look at conversations.” I don’t know what types, if there were notes or conversations or recordings, we don’t really fully yet know all the substance of that. But she allowed the government to go get them. That is shocking. It almost never happens.

I would challenge that very motion immediately out of the gate. How can you break attorney client privilege when people are going to say he was working in consultation with his lawyer to discuss his options? I haven’t seen the indictment. What they presented in the indictment doesn’t look sufficient to break attorney-client privilege. They could have more. They probably do, but I don’t know.

But it would have a drastically chilling effect on the American legal system entirely if this is the precedent the DOJ is setting when they just want to get a target and have a judge that goes their way. This judge can review that pursuant to a defense motion and say, “No, that was improper.” Because remember, this is the trial judge.

On a side note, the trial judge makes the trial record. The trial judge does not have to accept any rulings that came before them. They can be reviewed, with very minor exceptions. One of these motions involving attorney-client privilege is of such great consequence to the trial, the trial judge’s job is to protect the trial record.

With a case like this which will almost definitely go up on appeal, the job of the trial judge is to produce a record that cannot be overturned, because they issued all the rulings properly based on law, they reviewed all the facts and evidence, got both lawyers from both sides to produce all their motions in a timely fashion, and didn’t forget to do something. Remember, federal judges don’t like one thing, and that is being overruled by the appellate court.

It’s pretty simple. It doesn’t matter if you’re appointed by a Democrat or Republican, none of them like being overruled. When I overturned federal judges on appeal and I reappeared before them for resentencing or retrial or remotion, none of them were happy with me. It wasn’t personal, they made a mistake. The appellate courts said, “You made a mistake, fix it.”

In this instance, just think about all the motions that could come in. Every one of those could be an appellate issue for the defense. With rare exception, the government doesn’t really have the opportunity to appeal, because then it basically goes in direct contrast with double jeopardy. You can’t keep trying someone over and over and over and over again. You get one shot at it. With very, very rare exceptions, can they appeal certain rulings during the trial process. Most likely it will come from the defense if there’s a conviction. If there’s no conviction, there’s no appeal, and then that’s it.

Mr. Jekielek: There’s material now that has been taken out of attorney-client privilege. It’s not clear to me that the lawyer in question has been charged with anything or have they been?

Mr. Patel: Not that I know of. We don’t know.

Mr. Jekielek: Right. This is something the defense would presumably get some eyes on to understand.

Mr. Patel: Yes. In this instance, since it’s already a co-defendant case, you would think that they would have charged that attorney in this case, because it’s a continuation or an aggravating factor to the conspiracy. But they could have charged him separately and earlier. He could have pleaded out and said, “I promise to cooperate.” I have no idea. I don’t know how they did that. We don’t know yet. One of these pretrial motions will help shed light on that.

Mr. Jekielek: There is also this question. There are calls for Judge Aileen Cannon to recuse herself. But let’s say that Cannon does rule that it was wrong to waive this attorney-client privilege. That’s a massive thing. Just imagine what will happen in the legacy media with that scenario.

Mr. Patel: I haven’t seen calls from the government for recusal. I haven’t seen calls from the defense. Those are the only two people.

Mr. Jekielek: No. These are calls from the peanut gallery, let’s say.

Mr. Patel: The rule is pretty simple. If, for some reason, a federal judge is in a position where they cannot be a neutral arbiter of the law and the facts in a case, because they have a personal relationship with the defendant or the prosecutor, as friends and neighbors, and they go away on vacation together every year with all their kids, or they have a financial stake in the bank that’s in front of them on a fraud charge, those are righteous recusals.

I don’t know of a situation where federal judges appointed by presidents recused themself because a matter appeared before them that involved the president that appointed them. Of course, there really hasn’t been a case like this before. But that is not an appropriate precedent to set, because then you’re allowing other judges to be subjected to the same ruling.

“You were appointed by Obama? Well, that guy is best friends with Obama, and he was his business partner, so you can no longer be the judge.” That would never amount to a recusal, ever. In this instance, you are right. It’s a peanut gallery, and a legacy media talking point. I don’t think that will get very far.

If the government makes that motion in this case, I don’t know what the basis would be. It can’t just be that President Trump appointed you, and then, you have to recuse. Let’s remember, Judge Cannon was the federal judge in President Trump’s case involving the Mar-a-Lago raid and the special master. She didn’t recuse then, so why would she recuse now?

Mr. Jekielek: That’s a very good point. We’re in it for a long haul, is that what you’re telling me?

Mr. Patel: Yes. I think so. But we’ll see.

Mr. Jekielek: Senator Grassley is saying, and he’s pretty good on the things that he says publicly, that there are 17 recordings that a Russian oligarch took of discussions with President Biden as, “insurance policies.”

Mr. Patel: Yes, we’ve talked about the FBI, FD-1023 before. Congress, as an investigator said, “Chris Wray, director of the FBI, we’re doing an investigation and we found out about this document, please give it to us.” Chris Wray initially said, “No, it doesn’t exist.” Then, a whistleblower comes forward and says, “Actually, this document does exist.”

It’s proven to exist, Congress issues a subpoena, and then, there’s a whole back and forth. There’s a possibility of holding Director Wray in contempt, which literally got to the 11th hour. What was interesting to me as the guy that did the Russiagate investigation, the first in congressional history to subpoena the FBI for 1023s, the ones related to Christopher Steele and other source reporting from back then, was the fashion in which the FBI mounts their defense to this constitutional oversight.

First, they say, “No.” Then, they say, “We can’t give it to you.” Then, they provide a heavily redacted copy. Then, they lift some redactions. Then, they say, “Okay, we’ll meet the chairman in ranking and they can have some of it. Not all of it, but we’ll give them a briefing.” There’s all sorts of variations they layer in there. It’s one of the problems I have with this institutional response to congressional oversight.

It’s now been publicly reported, not just that these 17 possible recordings exist, but who they involve. They involve people from overseas ventures and possibly President Biden and his family. Whatever your position is on that, what’s important is that it’s now been revealed that the FBI redacted the portion of the 1023.

I know where it is, because I know where to look. But none of these folks really have that kind of federal prosecutor or national security experience. They redacted the portion that revealed that these recordings existed to the committees when they finally turned over this document at the end. It was later revealed that they finally lifted that redaction, just for Chairman Comer and Senator Grassley. Then, Senator Grassley comes forward and says, “This is in the document.”

It will be interesting to see what Congress does. I imagine they will go get those recordings, or try to. I imagine that will be a pretty big fight, just like we saw with the production of the document itself. There’s got to be a way those recordings get out to the public. I am a guy wanting to know what’s on them, like pretty much everybody else.

To meet constitutional oversight responsibility from committees of jurisdiction, concerning the FBI and the DOJ, and all other agencies for that matter, they either submit to that constitutional oversight or they don’t. They, the agencies, can’t be the ones to pick and choose which oversight they submit to. That’s not how it works over there.

It will be interesting to see where this goes. I imagine it will probably be covered in the media as the week goes along here. Probably by the time this show airs on Friday, there will probably be more information on it.

Mr. Jekielek: Kash, so how do you know that there’s some sort of recording attached to a 1023?

Mr. Patel: That’s a great point. From their perspective, they were looking at a partially redacted document. You can sort of see it sometimes, just from the out build, A is talking to B and they’re in this room and it sounds like they were setting up a recording or it sounds like it was like a confidential human source. If you run sources like I have, you can read into the materials.

There are specific parts in the paperwork that are called sections A, B, or C. You have to think of it like this and rewind the clock a little bit. Do you remember when you used to go to the library and they had those big wheels on the bookcases, and when you turned them, the big wheels would move back and forth because they wanted to make space for all the extra books?

When the FBI first started doing 1023s, you can’t staple a cassette tape to a piece of paper or a VHS tape to a piece of paper. You can’t pin the computer drive to the sheet. There’s different classifications of the different types of evidence. You go into the FBI repository and you get the file and then it tells you on the file, “Go to the corresponding location to get the piece of evidence; videotape, cassette, or computer hard drive.”

It sounds a bit antiquated. But now, pretty much everything is digitized. Similarly, they’re usually not sticking drives onto the sheets of paper. They will reference them and they’ll say they have a portion A, B, or C. At least that’s how we used to do it, unless they have updated the system. That’s the best way that you’re able to glean if this information exists.

Mr. Jekielek: All right. Kash, it’s time for our shout-out.

Mr. Patel: This week’s shout-out goes to Richard Laro. Thanks so much for watching our live presentation of Kash’s Corner last week from Prescott, Arizona. We appreciate the audience there that was in person, but as always, we appreciate our audience that viewed online, live, and later on the replay. If you missed it, please tune in for last week’s special episode. Thanks Richard, for your comments. We thank everybody for their comments on the board of Kash’s Corner. Don’t forget, the weekly live chat keeps growing and growing and growing. Please join us if you haven’t tried that yet, and bring a friend. Next week, we’ll see you on Kash’s Corner.

This interview has been edited for clarity and brevity.


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