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.
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.
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?
