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.



9 thoughts on “Trump Wants His Documents Back

  1. More of the petty juvenile behavior we have learned to expect from Trump who is the scofflaw supreme and the one trick pony.  Always attack even when you are losing or feel hurt is his modus operandi.  I bet he is the type who kicks over the game table when he loses.  

  2. Here's something I tell myself pretty much every day, in order to not lose contact with reality:

    With every one of his attorney's that tRUMP screws with, or embarrasses, there's one less competent lawyer to defend him.

    If I were an attorney, I don't care how badly I needed the money, or how desperate I am for relevance, I wouldn't touch tRUMP as a client.

    First, he's not known to pay his legal bills.

    And second, no matter how good a job I did for him, he'd still whine and complain about my efforts.

    So, there's no reason to try to help him.

  3. "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."

    You recall rightly. Judge Dearie told Team Trump to put up or shut up on the classification issue because Team Trump has never officially declared that any of the documents are declassified. Obviously, if they did, they'd be asked for proof or documentation which does not exist. (Thus, Trump's claim of declassification by telepathy.) I expect Team Trump to claim they can't prove the declassification because the proof of declassification is classified. (snark)

    Dearie decided that if Team Trump could not back up the vague suggestion that "maybe" they aren't classified, Dearie would take the level of classification at face value. 

    But of greater significance, the decision of the 11th Circuit also declared the classification argument "a red herring." Not relevant to the issue. Regardless of classification, the documents are the property of the government by law. If Thomas sides with Team Trump, Dearie will go by the law. In his position as Special Master. Dearie will rule the documents are not Trump's property and there is no grey area in the law that would prevent the documents from being used as evidence. The only way I can see that Team Trump would prevail is if Judge Loose Cannon takes the decision away from the appointed Special Master and issues a decision that has been delegated. And I think Dearie would declare foul.

    It would be like the Commissioner of baseball overruling the decision of an umpire in a World Series game.

    If Thomas reverses the 11th Circuit, DOJ will appeal, requesting the entire Court hear the case. I'd bet that Roberts will side with the three liberals – according to, that would bring the case before the entire court. On that point, DOJ might appeal to the USSC if the 11th rules against them in the expedited motion to have the Special Master dismissed. 

    Team Trump may think/hope that arguments over side issues will delay the criminal trial. I'm not convinced that it has to – DOJ can file criminal charges against Trump in November even if the status of evidence has not been decided. 

    I do not see that the actual Top Secret documents will be submitted as evidence. A list of the documents, a count of the type and level of classification, and a summary description of each that does not divulge content, sources, or methods. Yes, DOJ would have to introduce a witness who had reviewed the documents to attest to the accuracy of the count and the level, but not the content.

    The Rosenbergs were executed for selling atomic secrets to the Russians, the content of what they passed on was not made public. The move by Trump is to recover everything as his personal property OR delay a trial until after the next coup. (The comic at the end of the post nails it.) 

    Problem: the next coup is being designed and arranged to coincide with the 2024 election. Trump will run – he will get the GOP nomination and he can't win the popular vote or (my opinion) the EC vote. He still intends to assume power by force at that time under the pretense that he won. I don't see the circumstances before December 2024 that will make a coup possible.  

    The trial underway now of Stewart Rhodes and his buddies will play a huge part in dampening the fires of a coup if they are convicted and get twenty years each – or even ten. The foot soldiers for Trump's coup attempt were hung out by Trump. They blame Trump for not invoking the Insurrection Act and not giving them pardons when they risked it all for Trump.

    It's important to note that Trump did the bidding of the Federalist Society, not the other way around. Trump gave them the USSC majority who have a pro-business authoritarian ideology that Trump does not comprehend. The Federalist Society has no loyalty to Trump. Given the choice, the money behind the Federalist Society would prefer someone stable and cunning, like DeSantis. If you think the conservatives on the  USSC are political, that does not bode well for Trump. 


    • Yup, it is really the Federalist Society that has been in the driver's seat.  All they care about is plutocratic capture of the entire federal government. They're pretty damn close.


  4. Also OT: Musk will have to close the deal to buy Twitter. It seems likely that Trump's favorite platform will be restored after the midterms. How will this play out?

  5. OT but 10/4/19 Dow was 30,325, unemployment 3.5% and jobs added 7/19 166K, 8/19 168K,9/19 136K and dow went up that day 372.

    Today 10/7/22 Dow is 29,494 down 431.78. Unemployment is 3.5%. Jobs added 7/22 528K, 8/22 315K, 9/22 263K.

    Do you ever notice how the news frames the numbers and worse do you ever notice how republican business people do all they can to undermine the economy and the perception of the economy when a Democrat is in the chair?

    And also foreign actors such as MBS. Etc.

    The forces of autocratic oligarchy never seem to stop do they?

    Also OT when will the press ask Herschel " you say you did not pay for an abortion but if you did there's nothing wrong with that, so why are you running for office to vote for a total abortion ban with no exceptions nationwide? If there's nothing wrong with getting abortion why would you vote to put women and physicians in jail? And when other republicans get on camera and talk what a great guy he is why is it okay for the man but women and physicians should go to jail?


    The pro life lie is dead. Never use term again and don't let them.

    • Heh, no conspiracy, here. Isn't it the case that OPEC, led by Russia and The House of Saud, just cut production to raise prices? These are the pals of Donny Two-scoops.

      Us old-school folks still know what its like to have an enemy that is actually a mortal threat. Not imagined and amplified threat for political punch (and the LOLs).


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