The Mahablog

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The Mahablog

Trump Wants His Documents Back

Regarding Trump’s appeal to Clarence Thomas to get the 11th Circuit out of his documents case — this can go either way, IMO. In a sane world Trump’s request wouldn’t have a chance, so we may see how corrupted Clarence Thomas truly is.

First, this is what Trump wrote on his social media platform yesterday:

“NARA lost a whole hard drive full of HIGHLY SENSITIVE information from the Clinton White House — more than 100,000 Social Security numbers and addresses, Secret Service and White House operating procedures (EXTREMELY SENSITIVE!), political records, and who knows what else. They left the hard drive in an unsecured location, and didn’t realize it was gone for months — some say the data could have filled millions of books, and NARA admitted the material was ‘personally identifiable,’ impacting thousands of White House staffers, visitors, and even one of Al Gore’s daughters. NARA actually had to offer a large ($50,000!) reward to try and get the information back. What else have they ‘lost’? How can Americans trust a system like this? There is no security at NARA. I want my documents back!”

In other words, he’s saying that because NARA lost an external hard drive with personal information (but not national security secrets) on it thirteen years ago, Trump can demand to get “his” documents back. Government documents are still not “his” documents.

Here’s some information on Trump’s arguments to Clarence Thomas at SCOTUSblog:

Trump contended that the court of appeals lacked the power to put Cannon’s order on hold because the Biden administration had not specifically appealed that order and because, in any event, it was not the kind of order that can be immediately appealed.

Even if the court of appeals did have the power to review Cannon’s order, Trump added, it should have allowed her ruling to stand. Alleging that Trump “had sole discretion to classify” documents generated during his presidency, he argued that Cannon properly referred the issue to a special master “to determine whether documents bearing classification markings are in fact classified.”

As I recall, Judge Dearie determined that unless anyone could prove otherwise, all documents marked classified are in fact classified. Trump’s recollections of what he might have done, or wish he had done, do not count.

See also Marcy Wheeler’s interpretation. I’m going to quote a big chunk of it.

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

On one hand, Trump’s case is weak. On the other hand, Clarence Thomas and the Federalist Society majority at SCOTUS..

On one hand, surely all of the justices have read the hand-wringing over Aileen Cannon’s judicial incompetence by the nation’s legal scholars. They must realize that if they side with Trump they will lose even more of their extremely flimsy legitimacy.

On the other hand, Clarence Thomas and the Federalist Society majority at SCOTUS. I am making no predictions.



Today on the Eastern and Southern Fronts

Worth watching. The Russian “military” may be about to implode.

Also, this is what retired Lt. Gen. H.R. McMaster said on Face the Nation on Sunday.

LT. GENERAL H.R. MCMASTER: Hey, good morning, Margaret. It’s great to be with you. Well, this is a tremendous victory for – for the Ukrainians. And it’s a victory that I think that they could turn into a cascading series of defeats of Russian forces. This is the – the encirclement of Lyman and the- and the Russian forces pulling back, but also, in the last two days, the Ukrainians also simultaneously defeated a Russian- a Russian counterattack and also made progress further in the south near the strategically important city of Kherson. And I think, Margaret, what we might be at here is really at the precipice of- of really the collapse of the Russian army in Ukraine, a moral collapse. And- and I think they must really be at a breaking point. If you look at just the numbers of casualties, the vast area that they’re trying to defend, and now, of course, Russia is trying to mobilize conscripts and send them to- to the front untrained. And I think it’s very important to- to also understand that these forces that are in full retreat now out of Lyman were really the first round of mobilization. Remember when Putin was trying to recruit more and more people with paying about three-times the- the average wages to get so-called volunteers to go forward. Those forces were hastily trained, thrown into that front, and these are the forces that are collapsing just right right now.

Today’s big headline at the Washington Post is Ukraine hammers Russian forces into retreat on east and south fronts. Ukrainian troops are pushing further into the areas Russia allegedly “annexed.”

Meanwhile, Tucker “Axis Sally” Carlson is a big hit on Russian television for blaming  everything on Joe Biden, saying that if there is nuclear war it will be entirely Biden’s fault.  At least CPAC recognized it had gone too far —

I haven’t seen any recent polling on U.S. public opinion on the Ukraine War, but I have a real hard time believing that anyone not plugged into Fox News half the time has much sympathy for Russia in this, or blames President Biden.

This is going to drag on for a while, but in the long run I don’t see any way this is going to end that doesn’t involve some variation of bye bye, Vlad.

An Out of Control Supreme Court

According to Mark Joseph Stern at Slate, law school professors are having apoplexy over the Supreme Court’s recent decisions.

At law schools across the country, thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. Six conservative justices are steering the court head-oninto the most controversialdebates of the dayand consistently sidingwith the Republican Party. Increasingly, the conservative majority does not even botherto provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade. Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?

About a month ago I was reading that Republicans in Congress want a new constitutional convention so that the Constitution can be rewritten. This is rich, considering that Republians for years have pretended they revere the Constitution as something like Holy Writ, and they say it’s Democrats who want to violate it. It’s notable that Trump, in his infamous January 6 “fight like hell” rally speech, mentioned the Constitution more than a dozen times. For example:

“What an absolute disgrace that this can be happening to our Constitution.”

“We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.”

“And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.”

“Today, for the sake of our democracy, for the sake of our Constitution, and for the sake of our children, we lay out the case for the entire world to hear. You want to hear it?”

“I hope you’re going to stand up for the good of our Constitution and for the good of our country.”

Trump, of course, doesn’t know the Constitution from ketchup, and I doubt many in the crowd could pass a high-school level test on it, either. “Constitution” in this case is more of a mystical invocation of whatever they think “Americanism” is rather than the actual Constitution. The truth is that the Right hates the Constitution as written, because it protects the nation from the kind of thuggish authoritarianism they’d like to impose.

Back to Mark Joseph Stern:

The problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It’s that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it’s only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

“It’s hard to think about your own profession—the things you were taught, the things you believed in—abruptly coming to an end in rapid succession,” said Tiffany Jeffers, a professor at Georgetown University Law Center. “It’s hard to ask a law professor to dismantle all the training they had. It’s a difficult, emotional, psychological transformation process. It’s not easy to upend your life’s work and not trust the Supreme Court.”

It’s been a while since I quoted Charles Pierce:

I, for one, am happy to see Justice Elena Kagan slugging back at Justice Sammy “Strip-Search” Alito and his Federalist Society love-monkeys. While Dobbs gets all the attention, the final weeks of the last term were a veritable orgy of conservative policy dreamshots, and there very well might be a truckload of them to follow. 

Justice Kagan has been speaking publicly but generally about the legitimacy of courts. She’s not naming names or citing specific decisions, but she’s been saying things like this:

“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said in New York earlier this month.

“And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences,” she added.

Roberts and Alito both pushed back. Roberts tried to re-frame the issue as a simple disagreement about the law, but Alito said,

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito, who penned the decision reversing Roe v. Wade last term, told The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line,” he said.

Alito needs some correcting, I say.

Ruth Marcus warns that the next term could be worse than the past one.

Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way.

Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state. …

…“They’re impatient,” Harvard Law School professor Richard Lazarus said of the conservative justices, especially the longest-serving, Clarence Thomas and Samuel A. Alito Jr. “They’ve spent a lot of time waiting for this majority to happen, and they don’t plan to waste it.”

If so, that is a perilous course for an institution whose very authority is grounded on the presumption of stability. If the majority insists on its current and hurried path, it risks deepening the very questions about the court’s legitimacy that have tormented the justices — divisions reflected in the bellicosity of their written work and that have erupted, in recent weeks, into their public debate. At a moment of extreme and increasing national division, change of such velocity and breadth is unhealthy not only for the court but also for a nation being asked to abide by its rulings.

See also SCOTUS Threatens the Planet from three months ago.

E.J. Dionne:

I know, I know, we are regularly lectured by justices that we are supposed to think of the court as nonpartisan. But that sentiment is belied by the ferociously partisan nature of the court’s recent rulings — and the highly partisan way this conservative majority was created.

It’s also laughable that conservatives, including the ones on the court, should be shocked that their bellicose use of the confirmation process and judicial power should inspire such fury from Democrats. For decades, it was Republicans who ran against liberal courts — and “judicial activism” and judges who “legislate from the bench.” It turned out they were happy to legislate away once they got the votes.

For what it’s worth, Justice Ketanji Brown Jackson disagreed with Gorsuch already. See also The Supreme Court Is On The Verge Of Killing The Voting Rights Act at FiveThirtyEight.  And for a good laugh, see Alexandra Petri.

My hope is that if the Democrats have the majority in Congress next year, they will at least try to increase the number of justices on the court. A message needs to be sent that the Court is not untouchable.

Our Ongoing Disasters

Josh Marshall has a very good essay about Putin and the war in Ukraine that I recommend. It doesn’t seem to be behind a paywall.

Also at TPM, see Josh Kovensky’s latest on the outrageously partisan Judge Aileen Cannon and also Josh’s commentary on how corrupt she is.

A publication called the Business Standard that I am not familiar with is saying that Cannon could be removed from the case. I’m not seeing this elsewhere, so take it with a grain of salt. But here it is:

Former federal prosecutor Robert Katzberg made the case that US District Judge Aileen Cannon’s continued interference in the work being done by special master Raymond Dearie in the matter of government documents allegedly stolen by  could lead to the 11th US Circuit Court of Appeals stepping in and taking the case from her, media reports here said.

Earlier in the week, the Trump-appointed Cannon gave Donald Trump’s legal team an assist by ruling that they did not need to comply with an order from Dearie and reply in a filing whether they believe the FBI agents lied about documents recovered at the former president’s Mar-a-Lago resort almost two months ago.

As Katzberg sees it, the Department of Justice could appeal, which they did late Friday, and that they may have a compelling case to ask for Cannon’s removal — although such moves rarely occur.

Adding that the 11th Circuit has already stepped in to curb some of Cannon’s excesses, Katzberg claimed it might be open to stepping in in a more forceful way.

“The 11th US Circuit Court of Appeals has already filed a stinging opinion that contains ample criticism of Cannon to quote in support,” he wrote.

“Appeals courts are hesitant to remove judges from a case, but here, there is a clear record of questionable decisions that have stymied an extremely significant criminal investigation and, per the DOJ, undermined national security. Under these unusual circumstances, reassignment might well be an appropriate solution,” he said.

In other news, Marjorie Taylor Green is telling her followers that Democrats are killing Republicans.


Putin Is Backed Into a Corner

The  day after Vladimir Putin proclaimed the annexation of Donetsk and three other regions of Ukraine, Russian troops abandoned Lyman, a strategic city in eastern Donetsk. Ukrainian forces have retaken the city. They are expected to advance further east from there.

This Washington Post map shows what Russia occupied yesterday. The red stripes indicate areas dominated by pro-Russian separatists since 2014, and the pink parts show where Russian troops were in control yesterday. This is after seven months of fighting.

Back on August 8, the U.S. Defense Department estimated that as many as 80,000 Russian troops had been killed or wounded in Ukraine. A month ago it was estimated that Russia had lost more than 2,000 tanks and almost 49,000 military personnel. That pink territory has been very expensive. I don’t know how much Russians understand about what’s going on, but I suspect that if they were shown the map above and asked if the “gains” were worth the sacrifices their nation is making, they would say no.

Last spring a lot of commenters were saying that Putin wouldn’t back down, although that was before everyone knew how incompetent his military was. Now that Putin has made his big annexation declaration, along with a big, splashy public rally about it, he hasn’t exactly given himself a graceful way to step back. I fear the only way this war can possibly end is with Putin’s removal from power.

I fear Putin may have become something like a cult leader. Think Jim Jones, David Koresh. Having given themselves godlike status, when the outside world started closing in they chose destruction, taking themselves and their followers with them. They couldn’t bear being ordinary human beings again. I have no idea how rational Putin may be. The speech he gave yesterday isn’t reassuring.

During the 37-minute address, Putin decried “Satanism” in the U.S., referring to transgender issues in a tone suggesting a seasoned viewer of stateside conservative media. “The repression of freedom is taking on the outlines of a ‘reverse religion,’ of real Satanism,” he said, adding that the open attitudes toward gender identity are a “denial of man.” In a question posed to “all citizens of Russia,” he asked, “Do we really want to see perversions that lead to degradation and extinction be imposed on children in our schools from the earliest years, for it to be drilled into them that there are supposedly some genders besides women and men, and offered the chance to undergo sex-change operations?”

The invasion of Ukraine, in this light, is a battle against these values and the “the ruling circles of the so-called West,” which Putin referred to as “the enemy” and “deceitful and hypocritical through and through.” He paused for applause as he condemned western colonialism in Asia, from the Opium Wars to the bombing of Hiroshima and Nagasaki. “They created a precedent,” he said in a terrifying addition, referring to the nuclear attacks. In more recent aggressions, he also blamed the U.S. and allies for blowing up the Nord Stream pipelines connecting Russian natural gas to the European Union.

(Here in the U.S., our own Tokyo Rose is also pushing the theory that the U.S. sabotaged the Nord Stream pipeline. See Russian TV is very excited about ????? ???????’s Nord Stream theory.)

See also Putin Is Trying to Outcrazy the West.


Trump Learns Lawsuits Can Require Effort

I almost feel guilty about the weather. Where I am, it’s lovely. Bright sunshine, temperatures in the 60s. This is my favorite kind of weather, sunny but not hot. I hope everyone in Florida is getting through the storm okay.

Trump doesn’t want to have to do his homework. Reuters reports,

Lawyers for former President Donald Trump are resisting a federal judge’s instruction to submit a sworn declaration on whether they believe the government’s list of property taken from Trump’s Florida estate is accurate.

According to a letter publicly filed by Trump’s lawyers on Wednesday, the former president’s legal team told Senior U.S. Judge Raymond Dearie, who is reviewing the materials taken in the federal raid of the Florida property, that they don’t believe Dearie has the authority to require them to make such a filing.

I am not a lawyer. But if you’re the one bringing a lawsuit claiming the FBI took things from you that you should get back, and/or that some of the stuff the feds say they took wasn’t really in your house, this doesn’t seem like an outrageous request. Put up or shut up.

The Trump lawyers’ letter, dated Sept. 25, says the order by another federal judge appointing Dearie to conduct the outside review of the materials only requires that the government file a declaration on the accuracy of the inventory list, and not Trump.

Trump’s lawyers also said they could not verify the accuracy of the property list because they do not currently have access to information taken in the raid that was marked as classified.

The Trump lawyers are complaining that the records they are supposed to review make up 200,000 pages of material. That’s a fantasy number they came up with, I believe. That’s plenty to keep them busy without dealing with the classified material that Trump is not ever going to get back, anyway.

The lawyers also are complaining because Dearie wants the review done by October 7. Originally he wanted it done by September 30, but with the delays in producing digital files for everyone to review (since no one would work for Trump) it’s been moved to October 7.

Marcie Wheeler:

This universe of documents reflects the contents of 27 boxes plus the contents of Trump’s desk drawer (ignoring the 520 pages of potentially privileged documents, some of which came from the desk drawers, and all but one email of which Trump has had for 13 days). If the 200,000 number were accurate, every box and the drawer would have, on average, over 7,000 pages of documents, which is far more than even a large case of paper would include (10 reams of paper at 500 pages each, or 5,000). And some of these boxes include books (33 altogether) and clothing or gifts (19 total), which would fill space really quickly.

But even assuming that someone in government told him that the 27 boxes of documents plus the contents of Trump’s desk drawer amount to 200,000 pages of material, even assuming Trump would need to review every page of every government document he stole, this is still misleading.

That’s because the boxes also include clippings, up to 121 in a box, for 1,671 total. A typical news article printed out can run 10 pages or more (recall that Trump’s White House cut his NYT subscription). One “clipping” — in box 27 — spans over four years, July 2016 to September 2020.

See also Mark Sumner at Daily Kos. No way there are 200,000 pages. And I’m guessing that the bulk of the non-classified documents, however many pages there are of them, can be dealt with in a glance. They don’t have to read old New York Times stories all the way through. Trump’s lawyers should shut up and get ready to start glancing.

In other news: The sedition trial of Stewart Rhodes and some other Oath Keepers is about to begin. The defense intends to claim that they believed they’d been ordered to attack the Capitol by Donald Trump.

They intend to tell the jury that when armed teams of Oath Keepers made plans to rush into Washington from Virginia on Jan. 6, 2021, they believed they would be following legal orders from the president himself.

Lawyers for the five defendants are set to argue at the trial — which began on Tuesday with jury selection — that the Oath Keepers were waiting on Jan. 6 for President Donald J. Trump to invoke the Insurrection Act, a Revolutionary-era law that grants the president wide powers to deploy the military to quell unrest in emergencies.

As the trial in Federal District Court in Washington moves forward, lawyers in the case have said, Mr. Rhodes intends to take the stand himself and testify that even though Mr. Trump never did invoke the act, the Oath Keepers believed that he was going to do so. Their preparations for violence on Jan. 6, he will argue, should be thought of as a lawful attempt to help the president, not as an illegal attack against the United States.

This seems lame as a defense. The Oath Keepers are not “the military,” and the Insurrection Act, invoked or not, doesn’t apply to them. But it does seem to throw Trump under the bus. It suggests Trump really did instigate the violence because his followers were doing what they thought he wanted them to do.


Trump’s Special Master Follies

Trump may have lost interest in the fight with the DOJ over hoarded documents. Initially the special master gambit seemed to work in his favor. But now, it isn’t.

Charlie Savage writes in the New York Times,

But Mr. Trump’s apparent triumph would prove short-lived. An appeals court ruling last week and a letter the Justice Department filed late Tuesday about subsequent complaints his legal team has apparently filed under seal to Judge Dearie suggest that the upsides to obtaining a special master are eroding and the disadvantages swelling.

So the appeals court said that the DoJ could go ahead and assess the classified documents. But that means that “an outside arbiter would still assess some 11,000 unclassified records and other items seized from Mr. Trump’s Florida compound, Mar-a-Lago.” And it’s not clear how doing that benefits Trump.

Indeed, it’s going to cost him a ton of money to have those 11,000 records processed. The one favor Judge Loose Cannon didn’t grant Trump was to have taxpayers foot the bill for that. Instead, he has to pay for it.

That includes the full cost of a vendor who will scan all the materials, as well as support staff for Judge Dearie, like an assistant who bills $500 an hour. Mr. Trump will also have to pay his own lawyers’ fees as they filter thousands of pages of records and then litigate disputes about which ones can be withheld as privileged.

Initially all the qualified companies that do this kind of work refused to do it, because they know Trump’s record for not paying vendors. But then the government guaranteed payment and will bill Trump for it. They have ways of making people pay.

Judge Dearie is doing other things the Trumpers didn’t anticipate but probably should have.

For example, the judge has ordered Mr. Trump to submit by Friday a declaration or affidavit that lists any items on the inventory “that plaintiff asserts were not seized” in the search.

But if Mr. Trump acknowledges that the F.B.I. took any documents marked as classified from his personal office and a storage room at Mar-a-Lago, as the inventory says, that would become evidence that could be used against him if he were later charged with defying a subpoena.

Requiring Mr. Trump’s lawyers to verify or object to the inventory also effectively means making them either affirm in court or disavow a claim Mr. Trump has made in public: his accusation that the F.B.I. planted fake evidence. While it is not a crime to lie to Fox News viewers or on social media, there are consequences to lying to a court.

Essentially, Judge Dearie is telling Mr. Trump’s legal team “to put up or shut up,” said Julie O’Sullivan, a Georgetown University professor of white-collar law.

Late Tuesday, the Justice Department indicated to Judge Dearie that Mr. Trump’s lawyers were balking at his request that their client verify the property inventory at this stage, before the documents could be categorized or reviewed for privilege. They apparently expressed such objections in a document filed under seal.

“They thought it was a win to win the first battle, but they didn’t think through what winning that battle would mean with any reputable judge who is appointed as special master,” Ms. Sullivan said. “They can’t anticipate that every judge will give them a complete pass despite the law. It was a political or a public relations strategy, not a legal one.”

.Judge Dearie also wants the Trumpers to classify each item according to whether they’re asking for attorney-client privilege or executive privilege.  “If they claim executive privilege, then they must distinguish between records that are merely shielded from disclosure to people outside the executive branch and those the executive branch itself supposedly cannot review. They must also explain why each document qualifies for such status.” For 11,000 items. Up until now, the lawyers have just been claiming “privilege” without specifying what they mean.

Some commenters are speculating that Trump might abandon the fight.

Update: See Emptywheel, Under Seal, Trump Accuses Hand-Picked Special Master of Not Following Orders.

Junk American History Threatens America

History is important. Right now it seems a lot of our national issues stem from forgetting history.

Take Christian Nationalism. Sarah Posner has a piece at TPM on the The Key Ingredients Of Christian Nationalism. A big chunk of the Republican Party, plus a majority of Supreme Court justices, are determined to erase separation of church and state based on a mythical version of U.S. history. Here’s something I wrote elsewhere recently on The Myth of the Christian Nation that explains the actual history.

Easily verifiable fact: The guys who wrote the Constitution deliberately made it non-religious. And they deprived the federal government of the power to recognize a state religion or favor one religion over another deliberately in order to avoid the dangers of religious factionalism. They remembered Europe’s devastating religious wars, in which soldiers and civilians slaughtered each other over whether nations would be Protestant or Catholic.

A book I read recently,  Inventing a Christian America: The Myth of the Religious Founding (Oxford University Press, 2015) by Steven K. Green, documents that the “Christian Nation” myth began in the early 19th century. “In short, the idea of America’s religiously inspired founding was a consciously created myth constructed by the second generation of Americans in their quest to forge a national identity, one that would reinforce their ideals and aspirations for the new nation,” Green writes. This coincided with the Second Great Awakening (roughly, 1795 to 1835), which was a period of Protestant revivalism that spread everywhere. Most of American-style evangelicalism was a product of the Second Great Awakening.

At the New York Times today, Rep. Jamie Raskin has a piece explaining that the 2nd Amendment does not protect a right to overthrow the government. No paywall. This is worth reading.

As the historian Garry Wills long ago explained: “A people can overthrow a government it considers unjust. But it is absurd to think that it does so by virtue of that unjust government’s own authority. The appeal to heaven is an appeal away from the earthly authority of the moment, not to that authority.”

Junk science and junk history do real damage. I’m not even going into the whitewashing of slavery and the Civil War here, because I’ve ranted about those enough in the past. I am saying that getting history right needs to be a priority.

Mark Meadows Is in Trouble

Here’s today’s big headline, as explained in Rolling Stone:

In a text exchange from Dec. 23, 2020, mere days before a riotous mob attempted to sabotage the Electoral College certification of President Joe Biden’s win, conspiracy theorist and former Army colonel Phil Waldron updated Meadows on his efforts to have voting machines in Maricopa County, Arizona, seized and examined.

Complaining that a judge had dismissed a lawsuit brought by MAGA legislators demanding the machines be turned over, Waldron texted Meadows that the decision removed “our lead domino we were counting on to start the cascade,” of rulings in other states. “Pathetic,” Meadows replied.

Waldron was deeply involved in the scheme to seize voting machines in states with close electoral margins. He allegedly drafted an executive order for the White House instructing the seizure of voting machines but the order never came to fruition, as it was very clearly illegal. Waldron additionally communicated to Meadows that he had allegedly reviewed troves of suspect electoral data constituting what he described as a “southern steal.”

That’s kind of a big deal, seems to me. The other phone news is that on January 6 there was a 9-second call from the White House to one of the insurrectionists, a 26-year-old Trump supporter from Brooklyn named Anton Lunyk. Lunyk was in the Capitol building and was sentenced to a few months of home confinement, probation, and a small fine. He appears to be a minor player in that event. This may come to nothing.

Yesterday there were several stories in the right-wing press that claimed FBI SWAT teams with drawn assault weapons had raided the home of a nice Catholic man in Pennsylvania named Mark Houck. Several different accounts (example) claimed he was arrested in front of his seven traumatized children and this is OVERREACH by BIDEN. This article claims “A pro-life leader is calling for a Congressional investigation of a bogus FBI raid that resulted in the arrest of a peaceful pro-life advocate of a minor incident outside an abortion center and a federal charge that could put him in prison for up to 11 years.”

So I looked it up. Houck is a long-time abortion clinic terrorist, one of those thugs who gets off on intimidating and harassing women seeking medical care. In the “minor incident” he twice assaulted a 72-year-old man acting as a patient escort, knocking him to the ground. Houck has been charged with two counts of violating the Freedom of Access to Clinic Entrances (FACE) Act, which makes it a federal crime to use force with the intent to “injure, intimidate, and interfere with anyone because that person is a provider of reproductive health care.”

The FBI said no SWAT teams were involved in the raid. They did send armed agents to make the arrest, but said “FBI agents knocked on Mr. Houck’s front door, identified themselves as FBI agents and asked him to exit the residence. He did so and was taken into custody without incident pursuant to an indictment.”

Don’t do the crime if you can’t do the time. I hope Houck gets the eleven years, but he probably won’t.

Have We Reached Peak Farce Yet?

Here’s the moment at which Trump declares he could declassify documents “just by thinking about it.” He didn’t even have to tell anyone, apparently.

I don’t know about you, but random secret declassifications seem a tad dysfunctional to me.

Jennifer Rubin:

In a pre-recorded interview with Fox News’s Sean Hannity, he insisted: “If you’re the president of the United States, you can declassify just by saying, it’s declassified. Even by thinking about it, because you’re sending it to Mar-a-Lago or to wherever you’re sending it.” This, of course, acknowledges that the documents he hoarded were highly sensitive, that Trump knew they were and that he sent them to Mar-a-Lago anyway.

It’s probably not possible to understand how Trump understands this. He has the mind of a small child, and a dimwitted small child at that. But he seems to be clinging to the idea that as long as the documents had been declassified, he did nothing wrong by hoarding them in the basement. Which is not how any of this works.

Yesterday it felt as if the whole planet was declaring it was out of bleeps to give. Massive street protests broke out in Iran over the death of Mahsa Amini, 22, at the hands of the morality police. Amini had been detained because of “unsuitable attire,” by which I understand her hijab wasn’t properly adjusted. And she died in custody, apparently beaten to death. Women in Iran are burning their hijabs.

Yesterday Russians took to the streets to protest the war in Ukraine. This happened after Putin initiated a draft, apparently.

Images and videos show police cracking down on demonstrators in multiple cities,with footageshowing several protesters at a demonstration in central Moscow being carried away by the police and authorities in St. Petersburg attempting to contain a crowd chanting “no mobilization” outside Isakiivskiy Cathedral.

Police detained the protesters across 38 cities in Russia on Wednesday, according to figures released shortly after midnight by independent monitoring group OVD-Info. The group’s spokeswoman Maria Kuznetsova told CNN by phone that at at least four police stations in Moscow, some of the protesters arrested by riot police were being drafted directly into Russia’s military.

Yeah, that will so not help Putin win his war. The Russian “military” is a big enough mess already without adding antiwar draftees to the mix.

And then, yesterday, NY AG Tish James smacked Trump with a $250 million lawsuit and the 11th Circuit federal appeals sided with the Department of Justice against Trump. You can read the decision here. It’s interesting.

See Aaron Blake, A thorough rebuke of Judge Aileen Cannon’s pro-Trump order and Greg Sargent, Appeals court slams Judge Cannon: No, Trump is not above the law.