The Mahablog

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The Mahablog

Trump Keeps Digging the Hole Deeper

Every time Trump tries to throw a wrench into the vast justice machine coming toward him, he makes things worse for himself. Last night’s court filing by the Department of Justice in response to his request for a special master is an example.

First, here is everybody’s favorite photograph today.

Photograph attached to Department of Justice court filing.

Eric Lutz writes at Vanity Fair,

Donald Trump’s legal problems appear to have gone from bad to worse overnight. In a court filing late Tuesday, the Department of Justice alleged that the former president and his associates not only failed to turn over highly classified materials he’d taken after leaving office —they concealed the documents and lied to officials who were seeking their return. Investigators “developed evidence that government records were likely concealed and removed from the storage room,” the DOJ wrote in the filing, “and that efforts were likely taken to obstruct the government’s investigation.”

The filing includes some of the most damning evidence of obstruction the government has made public so far, including a photo of classified documents — some gathered by human intelligence sources — recovered from a box in Trump’s Mar-a-Lago office, “commingling” with personal items like framed magazine covers.

See also Philip Bump at WaPo, The photo of classified documents at Trump’s Mar-a-Lago resort, annotated. Bump says that according to the filing, this particular box of stuff was taken from Trump’s office in Mar-a-Lago. The office, mind you, which is probably not all that off limits to employees and guests. It’s not certain where the photograph was taken, but some people have said they recognize the carpet from Mar-a-Lago. 

As for the documents in the photo, we can see the from the cover page that some of this stuff is as classified as classifed gets. But Bump points out something a bit hinky:

Document 3 is more interesting. First, its classification marking was obscured by the government before publishing the photograph. Then there’s the date, which appears to be Wednesday, May 9, 2018. That day, Bloomberg News notes, was one day after Trump announced that the United States would be pulling out of the Iran nuclear agreement.

You have to look at Bump’s article to see the numbering system, but I believe “document 3” is the one behind the “2A” card with a little gold eagle-seal at the top.

We also learned that the FBI searchers found three classified documents in Trump’s office desk at Mar-a-Lago. We know this now because, the filing says, that’s where Trump also kept the passports that were seized.

See also. This is a real tweet. This must be the best excuse the House GOP could muster today.

From the Independent (UK):

Mr Trump has accused the department of staging the photo.

“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see,” he wrote on Truth Social this morning. “Thought they wanted them kept Secret? Lucky I Declassified!”

As I understand it, had the documents been legitimately declassified they would have been returned to whatever agency had classified them to begin with and reissued without the designation. And there would have been a record of this. Also, the POTUS’s powers to request declassification do have some limits. And I don’t think the DOJ was claiming that’s how the documents were found. They were demonstrating how the documents were just shoved into random boxes with non-classified stuff.

Greg Sargent:

At key moments in the Mar-a-Lago saga, you could squint at emerging revelations and conclude that Donald Trump himself might not be directly implicated. Perhaps his aides botched the transfer of documents to the National Archives. Or perhaps they failed to fully account for documents when archives officials came knocking, and fumbled things again when the FBI followed suit.

The key takeaway from the Justice Department’s latest filing in the case is that this notion is getting impossible to sustain. The new filing implicates Trump himself in the hoarding of national security secrets more directly than anything yet.

He was keeping classified stuff in his home office mixed with personal keepsakes like the framed Time magazine cover in the box. That’s proof he knew good and well he was keeping classified stuff, unless somebody can document he never actually used his office. It’s hard to imagine, as Greg Sargent says, that Trump wasn’t intentionally involved in putting that stuff in his office, including his own desk. Obstruction, anyone?

Back to Greg Sargent:

Here’s a really critical point in the filing: Investigators executed the search because that evidence of those still-stored documents pointed to obstruction, i.e., obstruction of the ongoing FBI investigation into the hoarding of documents.

That strongly suggests Trump held classified documents even after his lawyers swore on his behalf that a full search had been executedand that some were held in his office as part of that effort to obstruct, says former FBI counsel Andrew Weissmann.

“Is it really the case that for 18 months, nobody, including counsel, ever discussed this with the president or took direction from him?” Weissmann asked rhetorically, noting that the filing says some of these documents were “interspersed with personal items.”

Weissmann told me prosecutors can now ask the court for permission to subpoena Trump’s lawyers, in order to directly ask whether Trump authorized the original statement misleading investigators about classified documents still held at Mar-a-Lago.

See also Aaron Blake’s analysis of the difference between the Clinon email flap and Trump’s current mess. Yeah, they’re way different.

That leaves us with the mystery of why Trump was hanging on to this stuff. I offered my best guess a few days ago. Today David Von Drehle offered an explanation similar to mine. Drehle says he had observed that Trump took jumbled piles of documents with him just about everywhere and used them as props.

He described interviewing Trump on his private plane during the 2016 campaign. On the seat next to Trump was a large stack of papers. Trump complained that “they” made him read things, but during the flight all he did was occasionally pluck a paper from the pile, look at it quizzically, and put it back. The only things in the pile that engaged his interest were photographs, such as one of Michael Jackson. One suspects a photo of Michael Jackson was not a pressing business or campaign concern in 2016. Trump just liked showing it off. He knew Michael Jackson, you know.


The most plausible explanation comes from former White House press secretary Stephanie Grisham, who stopped apologizing for her old boss on the afternoon of Jan. 6, 2021.

Grisham noted that Trump simply has a thing for paper — heaps of it, the more jumbled, the better. He even hauled boxes of assorted materials with him when he traveled on Air Force One. “There was no rhyme or reason — it was classified documents on top of newspapers on top of papers people printed out of things they wanted him to read. The boxes were never organized,” Grisham told The Post. “He’d want to get work done on long trips so he’d just rummage through the boxes. That was our filing system.”

He didn’t have any sort of work process or discipline; this was just a long-standing habit of how he made a show of working. And as I wrote in my earlier post, he may have wanted to keep the classified stuff because that made him feel he was still POTUS. There have also been some suggestions that some of the documents contained dirt on various people (Emmanuel Macron’s sex life? Does anyone care?).

So we’ll see if the judge goes through with appointing a special master. If this judge has any brains and self-preservation instincts at all, she’ll say no.

Trump Can’t Get Out of the Way

A lot of Republicans want Trump to shut up. They want to run on inflation, on border security, on whatever they can spin into an outrage against Joe Biden. But Trump keeps stepping on the message and making everything all about him.

In case you missed it, this happened yesterday.

From Huffpost: “Constitutional expert and Harvard Law Professor Lawrence Tribe quipped that if Trump is trying for an ‘insanity defense’ against the various investigations against him, ‘it won’t work.'”

Steve Benen at MSNBC:

That was shortly before noon. In the middle of the night — according to the timestamp, 1:46 a.m. eastern — Trump returned to the subject. After more incoherent FBI/laptop whining, the former president again wrote, “Declare the rightful winner, or hold a new Election, NOW!”

He never gives up.

In May 2021, by way of his now-defunct blog, he celebrated a poll showing most Republican voters “believe Donald Trump is the true president.” In June 2021, The New York Times’ Maggie Haberman reported that Trump “has been telling a number of people he’s in contact with that he expects he will get reinstated” to the presidency by August 2021.

Around the same time, CNN ran a related piece, reporting that Trump has “been asking advisers in recent weeks if he could somehow reassume the presidency this year after listening to farfetched suggestions from conservative commentators and allies.”

Sometime around September 2021, Trump allegedly asked Republican Rep. Mo Brooks of Alabama to work on rescinding the 2020 results and “immediately” putting him back in the White House.

In October 2021, referencing a weird election conspiracy theory out of Arizona that has long since been forgotten, Trump wrote, “Either a new Election should immediately take place or the past Election should be decertified and the Republican candidate declared the winner.”

For reasons unknown, he’s apparently become fixated on this anew.

The reason unknown, I suspect, is that he knows the feds could be closing in on him this time.

Nikki McCann Ramirez at Rolling Stone reports that “Trump spent Tuesday morning feverishly sharing content from supporters on his social media platform Truth Social, posting or re-posting more than 60 times since early Tuesday morning, including content from QAnon accounts and the far-right message board 4chan.”

Molly Olmstead writes at Slate that “Donald Trump went on what can only be described as a meltdown on his social media platform TruthSocial.” Among the “crazy even for Trump” stuff was a QAnon claim that the military is investigating the FBI, CIA, and NSA. Again, it isn’t that mysterious why he’d want to believe that.

As Steve Benen reminds us, “The Justice Department warned last year that the former president’s delusional claims about returning to office could fuel more political violence from his most rabid followers. The Department of Homeland Security raised related concerns.” I suspect that’s exactly what he’s doing; he’s priming his culties to be ready to rumble at the first sign of indictment.

Fortunately, the reach of Truth Social is somewhat limited by the fact that Google Play won’t distribute its Android app.

But all of this ranting from Trump is throwing the Republican Party off its game. More sober heads in the party want to be talking about what they see as the failures of President Biden and congressional Democrats more than the 2020 election or even Hunter Biden’s laptop. (Frankly, if there were anything that incriminating on the laptop we would have heard about it by now.)

From Politico:

Some top Republicans acknowledge the growing angst and concern, as it’s become clearer that Trump may have been warehousing some of America’s most sensitive secrets in an unsecured basement — and even refused to turn them over when the National Archives and Justice Department tried to recover them. One top Republican fundraiser asked to describe the mood among donors, said, “There is enormous frustration.”

“The question is, is there willingness to express that frustration,” the fundraiser added. “I don’t know the answer to that. But there is real frustration, and with the exception of people who are too stupid to understand the need to be frustrated, it is nearly universal.”

Greg Sargent writes that the GOP seems to be ripped in half:

As Donald Trump’s legal travails deepen, a strange split-screen effect has taken hold throughout the GOP. On one screen, Republicans are increasingly anxious about revelations involving Trump, while concocting ever more inventive ways to achieve distance from them.

On the other, GOP candidates in crucial midterm contests are, if anything, getting more Trumpy. They’re not just aggressively defending Trump; they’re also enthusiastically embracing the many pathologies he brought to our politics, and even imitating his mannerisms.

This captures an essential tension about this moment. Many Republicans apparently remain deeply convinced that Trump and his preoccupations are an indispensable source of political energy for their 2022 campaigns. Yet coming revelations about Trump might keep rendering that energy more toxic in swing states and districts.

A lot of the Republican candidates who won the midterm before the Mar-a-Lago document search didn’t have anything else to run on except how Trumpy they were. By the time we get to the general, that may or may not work for them.




What Dahlia Lithwick Says

Why I love Dahlia Lithwick

Long after the time had passed for male GOP officials to stop, to just stop, pretending they know or understand anything about female anatomy, reproductive organs, medical emergencies and basic preventative health care, they have continued to talk. They have continued to talk and talk and talk even when the massive blowback after the Dobbs decision proved it was an error; Kansas proved it was an error; and after the surprise election of Pat Ryan in a New York special election proved it was an error. Every time a Republican man opens his mouth to talk about women’s bodies, ten new female voters get their wings. Yet somehow, they cannot seem to stop themselves! …

…  One analysis of the Kansas’ voter registration list showed that in the week after Dobbs, more than 70 percent of newly registered voters in that state were women. Those numbers, according to an Upshot analysis of 10 states with available voter registration data, show consistently higher registration for women after the Dobbs leak in May. As Jennifer Rubin recently notedThe Philadelphia Inquirer reported that, “62 percent of women registering since Dobbs registered as Democrats, 15 percent as Republicans and that 54 percent were younger than 25.” And a Pew Research Center poll indicates that “a majority of registered voters (56 percent) say the issue of abortion will be very important in their midterm vote, up from 43 percent in March.” Tom Bonier, CEO Of TargetSmart recently posted on Twitter: “We are seeing early signs of what could lead to a huge increase in women voting in November. …This surge is young and female.” Both Mitch McConnell and RNC Chair Ronna McDaniel are panicking about the GOP’s odds in Congress, directly connected to fundraising around abortion.

See also Persuadable voters are breaking for the Democrats, NBC News poll finds.

Lithwick also discusses Sam Alito.

It is surely the very textbook definition of “privilege” to find yourself unbothered by protests, polling numbers, and voter registration data. Justice Samuel Alito actually laughed in the face of outraged females who called out the bad history, bad economics, and bad medicine in his leaked draft opinion—their complaints were numerous and well-founded, yet he didn’t change a thing. 

Margaret Talbot has a long article about Alito at the New Yorker, Justice Alito’s Crusade Against a Secular America Isn’t Over. Alito is angry, Talbot says, and the article is a search for the source of the anger. It concludes, “In the end, Alito may be angry for the same reasons that many conservatives of his demographic are angry—because they find their values increasingly contested; because they feel less culturally authoritative than they once were; because they want to exclude whom they want to exclude, and resent it when others push back.”

Update: Paul Waldman writes that the great Republican abortion backtrack has begun.

Here are the new rules: First, stop saying you’re “100 percent pro-life.” That might be what Republican primary voters once wanted to hear, but now it’s radioactive.

Next, make the absurd and unsupportable claim that nothing has really changed when it comes to abortion. Instead, say that the realization of a decades-long Republican goal is less a legal revolution than an opportunity for some heartfelt, respectful conversation.

Then, stress your deep commitment to the welfare of all women. Stop talking about any particular pieces of legislation or constitutional amendments to ban abortion that you used to support. And if you have to say anything at all about policies and particulars, talk about the exceptions to abortion bans you support — even if you didn’t used to support them.

Finally, say Democrats are the real extremists by pretending that they support babies being aborted literally during delivery, something that, by the way, never happens.

Waldman says the award for fastest U-turn on abortion, so far, goes to Blake Masters of Arizona. Masters scrubbed his website of his positions on abortion.

In other news — Over the weekend a U.S. district court judge said she would hold a hearing on Donald Trump’s request for a special master to review the documents seized at Mar-a-Lago. Trump is still arguing a lot of it is “privileged.” Today the DoJ informed the judged that it had already reviewed all of the documents. An FBI “filter team” that routinely does this stuff has reviewed everything seized from Trump and determined which documents shouldn’t be part of a criminal investigation. This includes communications that might fall under lawyer-client privilege.

What the Affadavit Changed

Rolling Stone has a good timeline of the whole stolen document saga, beginning on January 20, 2021, the day Trump transitioned from POTUS to FPOTUS. And at Slate, Fred Kaplan provides a clear explanation of the legal trouble Trump has gotten himself into.

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

Finally, mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.

There is much that we still don’t know. But one thing is, or at least should be, clear: Trump is in a heap of legal trouble.

In brief, the documents still had security designations and therefore were not declassified; it would still be illegal for Trump to possess them even if they had been declassified; and he has no executive privilege. He lost that at noon on January 20, 2021.

There are a number of opinion pieces today that declare there is no way Trump will not be indicted. This one by Brad Moss seems to be getting the most buzz. I assume the feds will want to conclude their assessment of the damage done to national security before that happens, or perhaps they will wait until after the midterms, although I don’t think they should have to wait until after the midterms because Trump is not a bleeping candidate for anything in the midterms.

Of course, the Right does not believe Trump will be indicted. The editorial board of the Wall Street Journal has an opinion piece up headlined “The Mar-a-Lago Affidavit: Is That All There Is?” The blurb under the headline says, “The redacted 38-pages add to the evidence that the FBI search really was all about a dispute over documents.”  The editorial completely ignores the whole threat to national security thing. Commenters to the op ed are having a fine time quoting from 2016 editorial board articles about how Hillary Clinton needs to face a reckoning.

On the right-wing Hot Air site, Alan Dershowitz is quoted as saying that there is enough evidence to indict Trump, but he probably won’t be. The blogger Allahpundit, falling back on the “Spanky did it first” defense,” then says,

The “Nixon standard” he describes is a stupid anachronism in the context of febrile modern American partisanship. As Trump himself would excitedly tell you, there’s no crime so foul that he could commit that would convince Republicans to turn against him. If the “Nixon standard” is the standard for indicting a former president, Trump is completely above the law. The “Clinton standard” is more trenchant, however. Certainly, Trump should be held to the same standard that Hillary Clinton was when the feds declined to prosecute her in 2016. 

Which, I suspect, is the reasoning Merrick Garland will use when he ultimately decides not to bring charges here.

You know I’m no fan of Hillary Clinton, but there is a huge magnitude of difference between Clinton’s email issues and Trump’s deliberate keeping of stolen, highly sensitive documents in his basement. Here’s a Politifact article from August 9 that explains it. “Hillary Clinton used a private email address for exchanges with her State Department staff. In three instances, email chains included information with ambiguous classification markings,” it says. Trump was sitting on documents with the highest security designation, keeping them in a very much not secured place, and refusing to return them to the National Archives after being asked several times to do so.

Clinton did have a system for keeping clearly marked sensitive information within the State Department’s email servers that was followed most of the time. Clinton was an idiot, however, to ever mix State Department and personal business, classified or not, in a private email account. She also was an idiot to have her own lawyers, and not the State Department or some other authority, review the emails and decide what was personal and what was official, and then delete the personal stuff. But as far as anyone can tell this was all sloppiness and bad judgment more than anything else, and there is no indication that the classified information in the errant email chains was of the top secret, national-security-related level of the stuff Trump was sitting on.

Allahpundit continues,

But let’s be real. The reason Trump won’t be prosecuted isn’t because of “the Clinton standard,” which may or may not be apt depending on what the feds know about what was going on at Mar-a-Lago and we the general public don’t. The reason he won’t be prosecuted is because some of his most fanatic supporters would take to jihad as a result, with Trump egging them on in barely veiled terms on social media. People who were willing to hang Mike Pence to try to keep Trump in power won’t need much convincing to kill FBI agents to try to keep him out of prison. And they’re not shy about admitting it.

No, if Trump is not indicted that won’t be the reason. Or, at least, it’s the absolutely last reason for not indicting Trump. The United States cannot allow a bunch of thugs and bullies to dictate the rule of law. If that’s allowed, you might as well rename the country the United Fascist States of America. If the meatballs carry out any more acts of insurrection, let them face large numbers of National Guard. With tanks. One suspects they will soil their camo pants and surrender quickly enough.

And, tangential to this, do see Behind the American Right’s Fascination With Viktor Orbán by Jacob Heilbrunn at The Atlantic. It’s a discussion of the history of the American Right’s approval of thuggish right-wing dictators.

As far as the official Republican response to the affadavit, so far there hasn’t been much of one from those in the GOP hierarchy. Immediately after its release there was much screeching about redactions. And then they read the unredacted stuff and shut up.

One does suspect they’re thinking that Trump is going to cost them the Senate, again. Between Trump fatigue and the Dobbs decision, the anticipated Red Wave doesn’t seem to be wavin’ much.

The Affadavit Is Damning, as Expected

The affadavit is out. I’ve been listening to MSNBC, where a panel of security/legal experts has been reading and interpreting the affadavit in real time.

They’re talking a lot about obstruction of justice. At one point the affadavit says there is evidence of obstruction within Mar-a-Lago. They’re talking a lot about “signal intelligence” and “human sources,” which I understand refers to top secret expionage and the identities of spies still working as spies.

Large parts of the affadavit are redacted. The affadavit was accompanied by another document explaining the redactions, which itself contained redactions. This was to protect the identies of witnesses as well as methodologies being used in an ongoing criminal investigation. This ain’t over.

Emails, documents and interviews show that the search followed months of conflict between the former president and law enforcement agencies about getting the documents — which are protected under the Presidential Records Act — into the custody of the National Archives and Records Administration.

The search intensified Trump’s long-standing animus toward the Justice Department and the FBI. Senior government officials say the investigation and search were necessary to prevent grave damage to national security.

The affadavit also juxtaposes events in this investigation with some of Trump’s public statements, including on Truth Social, that reveals (as if we didn’t know) Trump was lying his ass off. For example, after the recovery of 15 boxes of documents in January 2022, Trump “truthed” that “The National Archives did not ‘find’ anything, they were given, upon request, Presidential Records in an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Recordds Act.” But that was bullshit, because the feds had been asking for this stuff since May 2021, and Trump was still hanging on to highly sensitive classified material after this.

Seriously. This is like asking the teenage kid to stop playing Minecraft and do his homework 27 times. And then after some number of hours, when you finally confiscate the Gameboy, he whines “that’s so unfaaaaaair. I was gonna do my homework as soon as I got the magic shovel of power” or whatever they do in Minecraft.

In June 2022, the archivists told Trump he needed to leave the documents remaining at Mar-a-Lago to be kept in their current location “until further notice.” No moving them around. Trump interpreted this to mean they were okay with him keeping the documents as long as he put a padlock on the basement door, which he did, but really the feds were thinking in terms of preserving evidence until they were able to retrieve the boxes. I infer this is when the feds began to put together a case for a warrant, so they could just come and take it all and stop playing the bleeping moron’s ego games.

The wonder isn’t that the DoJ got a search warrant; the wonder is why the DoJ didn’t get a search warrant a whole lot sooner.

In the affadavit, Trump is referred to as FPOTUS. We’ll be charitable and assume the F is for “former.”

I’ll link to more comments as they become available.

Update: Greg Sargent, 3 Big Things We Learned from the Mar-a-Lago Affadavit. The three things are:

  1. “Trump improperly hoarded a large amount of documents, including ones potentially identifying human intelligence sources.”
  2. “This could get much bigger.” It’s clear from the affadavit that this is an ongoing investigation, and there’s a lot the DoJ doesn’t yet know.
  3. “Trump’s conspiracy-theorizing is baloney.” But you know that.

It’s Dangerous to Be a Woman in Texas

As troglodyte state legislatures trip all over themselves to criminalize all abortions, the Biden Administration is insisting on enforcement of federal guidelines that require hospitals to provide abortions if the health of the mother is at risk.

But the righties aren’t having it. This week a U.S. district judge in Texas named James Wesley Hendrix blocked the enforcement of the federal guidelines in the Lone Braincell state. His argument seems to be that the life and health of the mother cannot be prioritized over the life and health of a fetus.

It’s a real shame if a pregnancy creates an emergency medical condition in a woman, but erforming an abortion creates an “emergency medical condition” in the fetus or embryo, the judge wrote.

“Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child,” the judge’s order said. “Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized.”

Someone might explain to this bozo that if the mama dies, the fetus dies too.

USA Today:

The administration threatened to fine or strip Medicare status from hospitals that failed to follow the guidance, which was issued in the aftermath of the U.S. Supreme Court ending federal constitutional protections for abortion.

Texas Attorney General Ken Paxton said the Biden administration was attempting to use federal healthcare regulations to “transform every emergency room in the country into a walk-in abortion clinic.”

“Last night, the court ruled in favor of Texas!” he said in a tweet. “A WIN for mothers, babies & the TX healthcare industry.”

Hendrix ruled that the guidance, issued under the Emergency Medical Treatment and Labor Act, goes beyond the scope of federal law and fails to appropriately balance the interests of a pregnant person and their unborn child.

“To the extent that the Guidance would require abortion where Texas would not, Texas law does so to ‘provide the best opportunity for the unborn child to survive’,” the order reads. “The Court will not interject itself in balancing the health of an unborn child and the health of his mother when that balancing is left to the people and their elected representatives.”

Since when do “the people and their elected representatives” make life and death medical decisions? Yeah, next time Hendrix needs a ruptured spleen removed, let’s put it up to a vote. I say no.

I wrote years ago, and probably have repeated this several times — “I’ve long believed that whether one is pro-choice or anti-choice does not depend on whether one thinks embryos are human beings. It depends on whether one recognizes that women are human beings. Not archetypes, but real, individual human beings. Including women who get abortions.”

Obviously, women are not real human beings to them. We are just ambulatory major appliances.

These are the kinds of judgments, weighing the risks to mother and fetus, that medical professionals make all the time. The medical people have worked out best practices over periods of many years. We should trust them to do their jobs, not put it up to popular vote by people who don’t know a fallopian tube from a toaster.

In other news — this should cheer you up — the people who took Ashley Biden’s diary and gave it to Project Veritas have been identified, and one of them has reached a plea deal to testify against the “organization” that received the diary. And that woule be Project Veritas. Josh Marshall is celebrating already.

The Red Wave May Be Down to a Ripple

From Politico:

It would have been easy to write Nebraska off as a fluke, after Democrats ran better than expected in a House race there last month. But then came Minnesota, where Democrats again beat expectations. And then, in New York on Tuesday, the dam broke.

“Well, shit,” one Republican strategist texted late Tuesday, as results from a Hudson Valley special election filtered in.

It would have been a victory for Democrats if they’d even kept it close. Instead, Democrat Pat Ryan beat Republican Marc Molinaro in a district that Joe Biden narrowly won in 2020, but that would have appeared to favor Republicans in a normal midterm climate.

This race was considered a bellweather. Ryan’s television ads promoted his support for abortion rights, while Molinaro ran on inflation and crime (for the record, he’s against them). Abortion rights won.

And, may I add, any day that both Carl Paladino and Laura Loomer lose elections is a pretty good day.

“It can be tempting to read too much into special elections,” the Politico piece continues. And the Hudson Valley is not the Midwest. But since the end of Roe, “it’s been nothing but one sign after another that Democrats — while still widely expected to lose the House in November — might not be in for the all-out drubbing once predicted.”

Nathaniel Rakich at FiveThirtyEight writes that Yes, Special Elections Really Are Signaling A Better-Than-Expected Midterm For Democrats. There’s still time for that to change before the November midterms, of course, but there’s no question that the political landscape has shifted in Dems’ favor since Sam Alito’s Dobbs decision was handed down.

If something happens to cause gas and food prices to go up again, things could change. But it’s also the case that Trumpworld may be at the beginning of a meltdown.

Immediately after the FBI raid on Mar-a-Lago, the MAGA faithful and their Republican fellow travelers rallied to Trump’s cause of perpetual outrage and bottomless grievance. But Trump and his immediate circle appear to be having a hard time keeping it together. How could any of them thought that releasing the National Archives letter was a good idea, for example? And the so-called lawyers working for him now can’t manage to fill out basic legal paperwork correctly.

Maggie Haberman, Glenn Thrush and Alan Feuer write for the New York Times,

The documents investigation represents the greatest legal threat Mr. Trump has faced in years, and he is going into the battle shorn of the protective infrastructure and constitutional armor of the presidency. After years of burning through lawyers, he has struggled to hire new ones, and has a small group of lawyers of varying experience.

He is facing a Justice Department he no longer controls, run by a by-the-book attorney general, Merrick B. Garland, who has pursued various investigations into Mr. Trump methodically and quietly.

Mr. Trump is serving as his own communications director and strategic adviser, seeking tactical political and in-the-moment public relations victories, sometimes at the risk of stumbling into substantive legal missteps.

The National Archive letter debacle appears to be an example of Trump seeking a public relations victory while making a huge legal misstep. He, or somebody, was so eager to prove that President Biden was behind the FBI raid (and the National Archive letter didn’t say he was) that he failed to notice the letter made Trump’s hoarding of classified documents look much more serious. This was a boneheaded move, made by a guy who is no longer sitting in the Oval Office where he was surrounded by at least some smart advisers.

And at this point Trump isn’t about to get any smarter. He may yet avoid criminal indictments, but if he does it won’t be because he’s so good at 12-dimensional chess.

Update: We’re getting some clues of one possible reason Trump was hanging on to classified documents. He thought they were cool stuff he wanted to put in his presidential library. From the Wall Street Journal:

The former president asserted early on, in a monthslong back-and-forth with National Archives officials seeking to recover the material, that it was his property and destined for his presidential library, said a person familiar with the matter.

“He has said, ‘People put this stuff in their library. How can they put it in their library if it has to go back to the Archives? I don’t understand why I can’t have these things,’ ” the person recalled. Mr. Trump has said he declassified all the material.

Trump: Why Is Everyone So Mean to Me?

Over the last several hours we’ve seen more evidence that Trumpers and “normies” do not live in the same reality.

The weirdest thing is that Trump, or someone working for Trump, released a letter from the National Archives to Trump lawyer Evan Corcoran, dated May 10, 2022, regarding the ongoing issue of Trump’s hanging on to classified documents. The letter was published on a right-wing site. Trumpers seem to think this letter is good for Trump’s side of the argument.

It is not.

For example, the righties are claiming the letter “proves” the White House facilitated the DOJ proble into the missing documents and quashed Trump’s rightful executive privilege. In fact, what the letter says is that White House counsel was informed of what was going on, but that the White House deferred to the judgment of the National Archive person who wrote the letter, Debra Steidel Wall, and is staying out of it. And then Wall clearly explains why Trump cannot legally claim executive privilege to keep the files. He just can’t. Wall wrote,

It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are “sensitive to executive concerns.” Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking.” Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.

Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege,” which the Assistant Attorney General informs me has never been made outside the context of a congressional demand for information from the Executive Branch. Even assuming for the sake of argument that a former President may under some circumstances make such a “protective assertion of executive privilege” to preclude the Archivist from complying with a disclosure otherwise prescribed by 44 U.S.C. § 2205(2), there is no predicate for such a “protective” assertion here, where there is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the “protective” assertion here would be to delay those very important reviews.

Among other considerations, even if these documents safely remained in Trump’s basement and no foreign agent or drunk wedding guest or disgruntled employee or Kash Patel got past the padlock to take some of them, if they’re in Trump’s basement they are not available to current government officials who might need to know what’s in them. Duh.

Seriously, there is no valid argument that Trump had any right to hang on to the documents. And the feds aren’t sure they have them all even now.

Yesterday Trump filed a lawsuit asking that the Department of Justice cease reviewing the documents and instead appoint a special master to decide if they fall within the scope of the FBI’s search warrant. And any documents that don’t should be returned to Trump.

From Salon:

The lawsuit argues that the raid was politically motivated, claiming that Trump is the “clear frontrunner” in the 2024 election “should he decide to run.” The lawsuit accuses the feds of violating Trump’s Fourth Amendment rights against unreasonable search and seizure and asks that the court block “further review of seized material” until they are reviewed by a special master. …

… Weissmann, the former federal prosecutor, said Trump’s filing has a “fatal flaw” because it doesn’t reckon with the fact that the documents legally belong to the National Archives, not the president.

“Nothing needs to be sifted because none of the documents are actually the former president’s. These all belong, whether classified or not classified, to the national archives,” he told MSNBC. He went on to describe the court filing as a “press release masquerading (tenuously) as a legal brief.”

Orin Kerr, a conservative law professor at UC Berkeley, noted that “lawyers are giggling at Trump’s motion, and how poorly it was done.”

“Reading Trump legal filings you imagine a lawyer who doesn’t quite know what he’s doing and then Trump taking a Sharpie to the draft and insisting on passages that read like tweets,” he tweeted.

Harvard Law Professor Laurence Tribe described the filing as “very strange,” questioning why it took Trump two weeks to call for the intervention.

“It’s sort of too late to ask for some new special master,” he told MSNBC.

Tribe argued that any other citizen who took classified documents home “would be prosecuted under the Espionage Act.”

“So he is sort of asking Merrick Garland to prosecute him,” Tribe said. “If he’s being treated not as president but as a citizen, he’s got to be indicted,” he added. “Otherwise, the rule of law just doesn’t mean anything.”

Another amusing document was posted by Trump on Truth Social. The concluding paragraph is a hoot:

This Mar-a-Lago Break-In, Search, and Seizure was illegal and unconstitutional, and we are taking all actions necessary to get the documents back, which we would have given them without the necessity of the despicable raid of my home, so that I can give them to the National Archives until they are required for the future Donald J. Trump Presidential Library and Museum.

Yeah, I was gonna give everything back to the National Archives but the FBI raid got in the way. Yeah, I was gonna do my homework as soon as I’m done playing Minecraft. You don’t have to me so mean to me. It’s not my fault it’s past my bedtime.

Greg Sargent:

Legal experts say a “special master” isn’t applicable, because such outside experts typically examine whether attorney-client-privileged information was implicated in searches. They note that the court will likely rule that the inventory already released — which showed the search found highly classified documents — is sufficient to honor the law.

See also Josh Marshall, What Is Executive Privilege?

GOP Senate Candidates Struggle

This seems to have been the week that the Republican Party realized its midterm Senate candidates are a pack of bozos. Mehmet Oz? Herschel Walker? Seriously? (In a sane world Eric Schmitt of Missouri would be on that list too, except he’ll probably win.) FiveThirtyEight has Democrats slightly favored to keep the Senate.

Mitch McConnell nearly admitted that Republicans are unlikely to take back the Senate. And “candidate quality has a lot to do with the outcome.”

At National Review, Jim Geraghty asks, Are Republicans Blowing Their Chances of Winning Control of the Senate? The very conservative Geraghty tries for several paragraphs to put the best possible GOP spin on current polling data.

But overall . . . yeah, the narrative that Republicans are blowing their chances in what should be winnable races because they nominate deeply flawed, relatively unknown, far-too-Trumpy or extreme candidates has a lot of evidence to support those contentions. Blake Masters has yet to look all that strong against incumbent Democrat Mark Kelly in Arizona’s Senate race, which was expected to be one of the most competitive races of the cycle. The hopes that Joe O’Dea would give incumbent Democrat Michael Bennet a serious run for his money in Colorado have yet to bear fruit. In a year like this, you would think a North Carolina Senate race would be a relatively easy win for Republicans, but that doesn’t appear to be the case yet, and it’s a similar story in Nevada, where incumbent Democrat Catherine Cortez Masto is hanging in there against GOP nominee Adam Laxalt.

Winning Ohio was supposed to be a snooze for J.D. Vance, but this week a PAC associated with Mitch McConnell announced it was making a $28 million ad buy in Ohio on Vance’s behalf. Vance, a newbie to politics, turned out to be inept at the campaigning thing. Nate Silver still considers Tim Ryan to be a long shot, however.

Speaking of ad buys, do see ‘It’s a rip-off’: GOP spending under fire as Senate hopefuls seek rescue by Isaac Arnsdorf at the Washington Post.

Republican Senate hopefuls are getting crushed on airwaves across the country while their national campaign fund is pulling ads and running low on cash — leading some campaign advisers to ask where all the money went and to demand an audit of the committee’s finances, according to Republican strategists involved in the discussions

In a highly unusual move, the National Republican Senatorial Committee this week canceled bookings worth about $10 million, including in the critical states of Pennsylvania, Wisconsin and Arizona. A spokesman said the NRSC is not abandoning those races but prioritizing ad spots that are shared with campaigns and benefit from discounted rates. Still, the cancellations forfeit cheaper prices that came from booking early, and better budgeting could have covered both.

Here’s where it gets weird:

The NRSC’s retreat came after months of touting record fundraising, topping $173 million so far this election cycle, according to Federal Election Commission disclosures. But the committee has burned through nearly all of it, with the NRSC’s cash on hand dwindling to $28.4 million by the end of June.

As of that month, the committee disclosed spending just $23 million on ads, with more than $21 million going into text messages and more than $12 million to American Express credit cardpayments, whose ultimate purpose isn’t clear from the filings. The committee also spent at least $13 million on consultants, $9 million on debt payments and more than $7.9 million renting mailing lists, campaign finance data show.

How do you spend $21 million on bleeping text messages? Never mind. Obviously money is disappearing somehow. As far as I know the RNC is still covering Trump’s legal fees, and they were nuts to agree to that. But that’s separate from the NRSC, or it’s supposed to be.

Part of the problem, the article says, is that the NRSC put a lot of money into digital fundraising and building up a database of small-dollar donors. But this has not gotten the results they had hoped for. It’s not known whether the small-dollar donors are feeling penny-pinched or whether they are sending their small dollars to Trump, who fundraises incessantly.

The Trouble Trump Is In

Bess Levin at Vanity Fair has a handy-dandy guide to all the legal trouble lined up against Trump. (Vanity Fair gives you one free article, and when that’s used up try an incognito window or another browser and you can usually get to read another one.) Here is the list.

*The Classified Document/Mar-a-Lago investigation

*The Justice Department investigation into January 6/plot to overturn the election

*Fulton County district attorney Fani Willis’s criminal investigation into election interference

*The Manhattan District Attorney’s Criminal Case Against the Trump Organization, Etc.

*The New York Attorney General’s Civil Investigation Into the Trump Organization

*The Westchester County district attorney’s Criminal Investigation of the Trump Organization

*The DC Attorney General’s Criminal Investigation of January 6

*The E. Jean Carroll Defamation Suit

*Mary Trump’s lawsuit for defrauding her out of millions of dollars

*The House of Representatives’ January 6 Lawsuit

*The Eric Swalwell Suit over the attempt to stop the Electoral College certification

*The Capitol Police January 6 lawsuits

*The Metropolitan Police January 6 lawsuit

*The Michael Cohen lawsuit

*The Class Action Lawsuit Against the Trump Biz and the Trumps

*The NAACP Legal Defense Fund Voting Rights Lawsuit

*The Trump Tower Assault Lawsuit filed by five people who said Trump’s security assalted them while they were protesting in 2015

I’d forgotten about some of those. All are still pending.

Rolling Stone reports that the FBI is questioning Trump’s National Security Staff about his top secret document alibi.

Two people familiar with the matter tell Rolling Stone that the FBI has begun asking former Trump administration officials whether they’ve heard of the so-called “standing order” Trump claims to have given. In recent days, the sources say, the feds have sent interview requests to the ex-officials, including former National Security Council personnel. The FBI has asked some of them to visit local FBI field offices to answer follow-up questions concerning the ex-president, classified and highly sensitive documents, and the alleged “order.” That order, Trump’s office insisted last week, dictated that any “documents removed from the Oval Office and taken into the residence were deemed to be declassified.”

CNN reports,

18 former top Trump administration officials tell CNN they never heard any such order issued during their time working for Trump, and that they believe the claim to be patently false.

Several officials laughed at the notion. One senior administration official called it “bullsh*t.” Two of Trump’s former chiefs of staff went on the record to knock down the claim.

“Nothing approaching an order that foolish was ever given,” said John Kelly, who served as Trump’s chief of staff for 17 months from 2017 to 2019. “And I can’t imagine anyone that worked at the White House after me that would have simply shrugged their shoulders and allowed that order to go forward without dying in the ditch trying to stop it.”

Of course, we don’t know that anyone working for Trump really would have died in a ditch trying to stop Trump from taking secret documents to his residence — I am hugely skeptical, actually — but that’s the story they’re going with now.