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.

9 thoughts on “What the Affadavit Changed

  1. "I will apply the law without fear or favor"

    To my mind that kinda sets up the dynamic of what is to come. Garland has put it all on the line as to whether he's going down in history as the biggest joke or a profile in courage. The FBI found that crime at Mar-a-Lago that the search warrant was looking for. The table has been set. And the scripture says: Putting your hands to the plow, don't look back!

    • I think Merrick Garland understands what it means to prosecute a case, and what you have to have to do so.

      I also think he is quite capable of doing what the facts and law require, and not worrying about how those who aren't involved in the actual  process will judge him.    

  2. To fully understand Trump's legal position you have to listen to the strenght of the argument from Trump's defenders.

    What’s so outrageous about the Trump affidavit: Stephen Miller | Watch (msn.com)

     Wow, Stephen Miller is just like Abraham Lincoln with his ability to use irony and sarcastic humor to express a profound truth. I never knew he was such a gifted speaker. Remember the time he put the shoe polish on his head to make himself appear more debonair? Little did people realize it wasn't an act of vanity gone wrong. It was a non verbal rhetorical device designed to distract listeners to the nonsense he was putting out. It worked like a charm.

    • Thank goodness the world has "a" (former) President who has a sense of humor in these preposterous times indeed! Did I deserve him?

  3. At the risk of stating the obvious, Miller and other defenders of FPOTUS are saying that an agency of the government can not tell FPOTUS what to do. This reflects how individual members of the cult feel. The government can't tell THEM what to do. The rights of whites exceed the power of the government except in rare cases.

    They aren't just fighting for an Imperial Presidency. They want their white supremacy restored. Am I twisting things to suggest white supremacy is a factor and objective? 

    In 2018, Florida voters passed by ballot a Constitutional Amendment that restored the rights of felons to vote after they have served time. (With a prohibition on murder and sexual offenses.) The state legislature responded with a law that says only those felons who have completely paid back anything they owe will be allowed to vote, but there is no mechanism in the law to know if there's a balance on the books. So you might or might not be allowed to vote as a felon, but as a felon, you don't know. In 2022, Florida created an Office of Election Crimes and Security and in a highly publicized announcement by the governor, 20 arrests were announced – all for voting "fraud" by felons – all reportedly black.  Consider who was NOT charged for voting fraud: Derek Chauvin who was living in Minnesota as a permanent resident (and cop) but voted in 2020 in Florida as a registered Republican. If I was black, I'd say there's a not-too-subtle message.

    The arguments side-by-side are unmistakable. The FPOTUS, now living in FL, is above the law, even when the government warns him of the exact potential violation a year before they finally search his home. If you are black, the law is deliberately convoluted – you might be prosecuted for a voting rights violation – and the odds are substantially higher you WILL be investigated and prosecuted if you are black. All power to privileged whites and a biased, indistinct application of the law if you try to vote and are black, 

  4. That cartoon reminds me of Jon Lovitz's Michael Dukakis on SNL: “I can't believe I'm losing to this guy."

  5. Here's what the sniveling little butt weasel has to say.

    Sen. Lindsey Graham said if Trump is prosecuted for mishandling classified information 'there will be riots in the streets' (msn.com)

    I hope there is roiting in the streets.. Maybe we'll get to refresh the tree of liberty with the blood of  psuedo-patriots. Linsey is trying to cover his own ass by injecting fear into the proper administration of justice. Trump and the lies that he spews are a cancer on our democracy that need to be rooted out.

    • There's a disturbing amount of crazy out there. I'm not sure they will do more than "demonstrate" with their favorite weapon. (I usually carry a sign – they will hold an AR-15.)  But a gun is a threat unless you are willing to shoot it. At who?  Cops?  The guys who assaulted cops without guns are getting seven years. These are bullies – they want to inflict pain, not suffer pain. 

      I'm not sure they are waiting for another call to arms like J6. They know the cops will stand in defense of the government, the Constitution and the people.  A shooting war can't do anything but solidify opposition against the cultists. 

  6. In normal times the F***ing, F***up, FPOTUS (hereafter referred to as F*POTUS) would have conceded and the republican party would be reengineering itself around what went wrong.  Not so in these abnormal times.  The F*POTUS remains in power as the commander in chief of the Kraken Army and the party war chest, as underground and underhanded operations continue.  Up to a couple of weeks ago, they had government top secret material with which to conduct their own foreign relations around and who knows what else is in that volume of redacted affidavit.  We do know that Lindsey Graham is putting the Kraken Army on high alert and is on call to testify to a grand jury in Georgia investigating election tampering as a RICO type crime by the active criminal wing of the republican party it seems.

    That investigation was the feature today of a NYT podcast.  It contends that state laws are simple and clear about election tampering.  Also, it notes state prosecution avoids the perils of national politics, as the State Prosecutor is elected rather than appointed.  The article contends this might be the big, overlooked proceedings in the long run.  The authors could have a solid argument.  

    In the long run the future of the republican party is Liz Cheaney.  This is contingent on the United States remaining a democracy which remains a doubt.  The ides of September are almost upon us, and they may replace, we hope, the ides of march in an et tu sort of way.  

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