The Mahablog

Politics. Society. Group Therapy.

The Mahablog

The News This Week, So Far

Getting slammed with news today.

First, from the WTF Is He Thinking department — Lindsey Graham TODAY introduced a nationwide abortion ban bill to the Senate. He claims this will help Republicans in the midterms.

All together now — WTF Is He Thinking?

It’s called the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.” It would ban abortions after 15 weeks gestation, which is way before “late-term” status. Also,

The bill includes exceptions for “situations involving rape, incest, or risks to the life and physical health of the mother,” Graham’s office said. It also “leaves in place state laws that are more protective of unborn life” — indicating that it would not supersede more draconian bans in red states, but would hypothetically impose new restrictions in blue ones.

If he thinks this is some kind of compromise that would be broadly accepted, I think he’s nuts.

In the medical world, “late-term” is used to describe the very end of a pregnancy; births can stretch from early term at around 37 weeks to late around 41. The anti-abortion world has successfully hijacked the phrase to apply to much earlier abortions, implying that the procedure would be done on a virtually fully developed fetus. The gambit goes hand-in-hand with the long anti-abortion tradition of using imagery of very advanced fetuses on its signage and promotional material, even while the vast majority of abortions happen in the first trimester.

The notion of “fetal pain” is another popular one in anti-abortion circles, and the legislation for which they lobby. The medical consensus is that fetuses don’t develop the necessary structures to feel pain until the third trimester — well past Graham’s 15 weeks. 

This isn’t going to satisfy the True Believer Abortion Criminalizers at all. And some Republicans are still going with the “Dobbs just returned it to the states” talking point, and this messes them up. Never mind being bad law; politically this was a purely boneheaded move on Graham’s part. Politico is reporting the bill is not being well received by GOP senators.

Mar a Lago News. The usual people I can usually count on to write smart legal analysis of things filed in court haven’t yet addressed yesterday’s response from the Trumpers I posted about yesterday. This best I could find is Jennifer Rubin

The Trump legal brain trust’s latest filing has been met with proper ridicule. From its characterization of the documents retrieved from Donald Trump’s Mar-a-Lago estate as “purported ‘classified records’ ” (Is there some doubt?) to its contention that the former president had the power to declassify documents (even though the absence of classification would not protect him from prosecution under the Espionage Act), the brief is incoherent, to put it mildly. Former FBI special agent Asha Rangappa tells me, “It literally contradicts itself in several places.”

Nevertheless, the filing is quite revealing, even if any rational judge would dismiss it out of hand. It demonstrates that Trump really has no excuse for having highly classified documents unsecured at Mar-a-Lago. …

… There is a risk of overanalyzing the brief. Constitutional scholar Laurence Tribe explains, “His defense comes down to ‘I’m President Trump.’ ” Trump seems to balk at the suggestion that he has to explain to the FBI which documents he considers privileged. “To me, that’s equivalent to: ‘Shut up, I explained.’ ” Tribe says. “Not much of a defense.”

General Trump Corruption News. If you saw Rachel Maddow’s last night you heard the interview with Geoffrey S. Berman, who was U.S. attorney for the Southern District of New York from 2018 through June 2020, when he was fired by Trump. (Here’s a 2020 article from Vox with background.) See also the New York Times. The basic charge is that Trump’s White House, through AG Bill Barr, pressured the SDNY to be a political tool — for example, by bringing charges (any charges) against Democrats Trump didn’t like, and especially before the 2018 midterm election. When people on Trump’s side faced investigations, pressure was brought to drop the investigations or even reverse convictions.

Investigations into this have been announced.

January 6 News. Also yesterday, the New York Times reported that in the past week the Justice Department has issued 40 subpoenas in regard to its investigation of January 6. They also seized phones of a couple of Trump advisers I don’t think I’ve heard about before — “Boris Epshteyn, an in-house counsel who helps coordinate Mr. Trump’s legal efforts, and Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020.” It is alleged they are connected to the fake electors scheme.

There’s more! Greg Sargent:

The Associated Press adds more, reporting that subpoenas have been issued to seek “information about the political action committee’s fundraising practices.”

This is of interest because the Save America PAC’s “fundraising practices” seem to represent the moment when the “big lie” monetized itself into the “big grift” in spectacular fashion.

As the Jan. 6 House select committee documented, Trump and his allies raised as much as $250 million with countless texts and emails that were full of lies about the 2020 election. Some missives, which were sent out in the run-up to Jan. 6, 2021, called for donations to an “Official Election Defense Fund.”

But that fund didn’t exist, the committee demonstrated. Much of the money flowed to the newly created Save America PAC, not “election-related litigation.” That PAC donated millions to groups connected to top Trump advisers, the committee claimed, such as former White House chief of staff Mark Meadows.

I may be caught up now.

Trump Fights to Keep “His” Documents

Trump didn’t take the hint. Instead of letting his judge, Aileen Cannon, disentangle from the mess she made with her bonehead Labor Day decision, he and his lawyers still want to block the feds from reviewing the classified documents.

Lawyers for former president Donald Trump filed court papers Monday arguing against any pause in a judge’s order for a special master to review documents seized at Mar-a-Lago last month, suggesting that some of the documents marked classified may not be, and that Trump may have the right to keep the materials in his possession.

“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” the Trump lawyers wrote, arguing that prosecutors are trying to limit any outside review of “what it deems are ‘classified records.’ ”

In brief, Trump is saying Nyah nyah nyah! So send it to the 11th Circuit Court of Appeals. I’ve packed it with my judges already. They’ll sit on it forever.

Josh Kovensky says at TMP:

For months, former President Trump and his allies have claimed that, at the end of his term in office, he issued a broad declassification order.

Some of these statements — from Trump acolytes such as the former Rep. Devin Nunes (R-CA) staffer Kash Patel — came even before the FBI executed search warrants at Mar-a-Lago last month.

Now, in a Monday court filing, Trump is repeating those claims, except for one key point: he won’t say in court that he actually declassified the records seized by the FBI.

Trump’s attorneys stopped short of that defense. Instead, they claimed that, hypothetically, Trump had the power to declassify the records in question, and that he very well may have done so. Besides, they argued, isn’t the burden on the government to prove that the records themselves were no longer classified?

“The Government contends that President Trump can have no such interest in the purported ‘classified records,’” the filing reads. “But, again, the Government has not proven these records remain classified. That issue is to be determined later.”

Exactly what part of “Trump has created a national security crisis” are they not getting? Oh, never mind.

It’s my understanding that the government documents are stolen property, classified or not. Even if Trump were able to persuade a court that he really had declassified everything, he doesn’t get them back.

Trump’s lawyers also argue that the government can’t possibly be all that concerned about the allegedly classified information. Colin Kalmbacher at Law and Crime:

The 22-page motion in opposition the DOJ’s motion for a partial stay pending appeal attempted to undercut the government’s “serious harms” position by pointing to recent “unauthorized leaks” of information about the allegedly “classified records” in question.

“The Government is apparently not concerned with unauthorized leaks regarding the contents of the purported ‘classified records,’ and would presumably be prepared to share all such records publicly in any future jury trial,” the motion argues in a footnote – which contains a link to a Sept 6, 2022 Washington Post story titled: “Material on foreign nation’s nuclear capabilities seized at Trump’s Mar-a-Lago.” …

… “[F]or the record, these leaks are very problematic,” national security attorney Kel McClanahan, who has generally been critical of Trump’s legal position in the case, tweeted on Monday morning. “They already formed the basis of Cannon’s original order. I understand why the person is leaking them, but they need to keep in mind that if they end up losing this fight, it will be in large part because of them.”

Trump’s lawyers also argue that “President Trump clearly has an individual interest in and need for the seized property.” Yeah, he needs to know another country’s nuclear secrets.

I’m sure there will be more commentary popping up about this as the day goes on.

Update: Emptywheel, who is smarter than most of us, says that the authority Trump’s lawyers cite in their filing today — an Executive Order signed by President Obama in 2009 — actually makes the DoJ’s argument that ex-Presidents have no rights to classified documents.

Russians Are Routed, Maybe

It appears the Russian army was routed out of some key areas in eastern Ukraine. There was a huge loss of Russian equipment, reports say, as the Russians appear to have just abandoned everything to run for their lives. Not all news sources are using the word “rout,” but it does sound like a rout.

The Russians are saying it’s just a redeployment.

The Russian Defense Ministry on Saturday confirmed that it had pulled forces out of Balakliya and Izyum, after a decision to “regroup” and transfer them toward the regional capital of Donetsk in the south “in order to achieve the goals of the special military operation.”

Here’s the warning label:

The stunning rout of Russian forces by Ukraine’s flash counteroffensive in the Kharkiv region does not, on its own, signal a decisive shift in the war to Ukraine’s advantage.

Radio Free Europe is reporting that Moscow Municipal Lawmakers Demand Putin’s Resignation. They’ve got more courage than the Russian army.

And something funky is going on in Moscow.

And that’s all I know about Russia and Ukraine.

Trump Having a Bad Day in Court

Lawrence O’Donnell had a really good discussion about the DoJ’s motion of yesterday asking Judge “Loose” Cannon to rethink her robustly ridiculed decision. Worth watching.

Queen Elizabeth’s passing is eating regular news coverage so there is not as much commentary on the motion as there might normally have been.

Regarding the judge’s Labor Day decision, I do like this line from Lawfare Blog: “Cannon’s opinion actually defies defense. It is an epic mess, one that manages to do violence to a remarkable number of distinct areas of law in an admirable economy of only 24 pages.”

Today we’re learning that the empty folders are a big issue. Aaron Blake at WaPo writes that in its motion yesterday, “the Justice Department served notice that the empty folders are of significant interest. And it argued that tracing them to specific classified documents is among the urgent reasons that its review should be allowed to continue.”

So they really are concerned about what might have been in the empty folders.

Trump’s reaction to yesterday’s motion:

The judge gave Team Trump a deadline of Monday morning to respond to the motion for a partial stay, though on his Twitter-like platform, the former president didn’t feel the need to wait nearly that long.

In a pair of unhinged missives, the Republican condemned the appeal, celebrated the judge he nominated to the bench, peddled familiar lies about the FBI “spying” on his campaign, pointed to “record setting corruption” that does not exist in reality, and generally threw an online tantrum that seemed to reflect deep anxiety.

But just as notably, Trump once again added that federal law enforcement officials “plant fake evidence” — a bizarre claim that the former president embraced, then abandoned, and then re-embraced.

I guess Trump missed this meme, which has been all over social media for several days:

Trump was handed a defeat by another Florida judge today. This is Josh Kovensky at TPM:

A South Florida federal judge (not that one) on Friday dismissed a complaint filed earlier this year from President Trump in which he accused everyone who had offended him during his political career of wrongdoing.

U.S. District Judge Donald Middlebrooks for the Southern District of Florida found that Trump and his attorneys might be eligible for judicial sanctions as a punishment for filing the lawsuit, which he described as “inadequate in nearly every respect.”

Trump sued in March 2022, alleging in civil court what he could never coax, cajole, or coerce the Justice Department to do: claim that the Trump-Russia investigation was the product of an elaborate conspiracy with Hillary Clinton, the DNC, and various other malefactors at the top.

“At its core, the problem with Plaintiff’s Amended Complaint is that Plaintiff is not attempting to seek redress for any legal harm,” Judge Middlebrooks wrote. “Instead, he is seeking to flaunt a two hundred-page political manifesto outlining his grievances against those that have opposed him, and this Court is not the appropriate forum.”

Throughout the ruling, the judge laces his writing with seeming annoyance at having been presented with the complaint in the first place.

See also Azi Paybarah at WaPo: “What the Amended Complaint lacks in substance and legal support it seeks to substitute with length, hyperbole, and the settling of scores and grievances,” Middlebrooks wrote.

This week Trump threatened more, and similar, lawsuits against Fox News (for running a Lincoln Project ad) and CNN. Judges needs to start slapping big sanctions on these suits.

It’s an Appeal!

This just in at WaPo:

The Justice Department said it would appeal a federal judge’s decision to appoint a special master to sift through thousands of documents the FBI seized from Donald Trump’s Florida residence on Aug. 8, according to a Thursday court filing.

The notice of appeal arrived three days after Judge Aileen M. Cannon ruled in favor of Trump and said she would appoint a special master, slowing — at least temporarily — an investigation into the possible mishandling of extremely sensitive classified information, as well as possible hiding, tampering or destruction of government records.

The Justice Department wrote in a brief filing that it would be appealing the decision to the 11th Circuit Court of Appeals. The notice paves the way for federal prosecutors to submit a detailed appeals brief to the 11th Circuit Court in Atlanta.

In a separate, simultaneous court filing, government prosecutors asked Cannon to stay her Sept. 5 decision on two key points: her order to temporarily halt a significant portion of the FBI investigation into the potential mishandling of classified information, and to allow a special master to review the classified material that is among the documents seized as part of a court-authorized search at Trump’s Mar-a-Lago club on Aug. 8.

In the filing, prosecutors say that allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” noting that those documents have already been moved to a secure facility, separate from the rest of the seized Trump papers. …

… Justice Department lawyers told Cannon they had already sorted through the documents, using a “filter team” to separate out more than 500 pages of documents potentially covered by attorney-client privilege. That arrangement was approved by the U.S. magistrate judge who authorized the search warrant for Mar-a-Lago, Trump’s Florida home and private club, after the government tried for months to get Trump and his advisers to return all the government documents kept at the property.

The Justice Department also argued that a former president cannot assert executive privilege after he leaves office, and that it is not possible for one part of the executive branch to assert privilege to shield documents from another part.

The chief risk here is that the appeal process could take forever. And there’s no guarantee the government would win.

What to Do About the Corrupted Courts

The new news is that Steve Bannon has been indicted by New York state on charges that he defrauded donors who gave money to a campaign he co-organized to build a border wall. He was pardoned by Trump for similar federal charges, but a presidential pardon doesn’t apply to states. Heh. He’s expected to surrender tomorrow.

So last night we learned that the Mar-a-Lago search warrant turned up a document about some other country’s nuclear weapons.  In sum:

We don’t know if the nuclear secrets were in the basement or the office or a linen closet or spread under a leaky chafing dish in some banquet hall. What we do know:

Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

Documents about such highly classified operations require special clearances on a need-to-know basis, not just top-secret clearance. Some special-access programs can have as few as a couple dozen government personnel authorized to know of an operation’s existence. Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.

There has been robust criticism of Judge Cannon’s special master decision. Legal scholars like Andrew Weissmann were driven nearly speechless by what a steaming pile of crap the decision is. For now I’d like to just point to what Dahlia Lithwick and Mark Joseph Stern write at Slate.

The judiciary, they write, has been deeply corrupted with Trump-appointed Federalist Society judges, like  Aileen M. Cannon. And this is going to be a huge impediment to the United States for many years, because these lawyers are not just corrupt; they are also young.

So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

In short, lawyering alone is not going to help us. Playing by the rules is going to leave us vulnerable. The first and most reasonable solution is expanding the courts.

Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

Republicans will scream about “court packing,” but after the Dobbs decision I don’t think a majority of Americans will mind at all. I think this has to be done, And all we need is a Senate majority to do it.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

Term limits would require a constitutional amendment, I’m pretty sure. I assume Congress could put limits on courts’ jurisdiction to strike down democratically enacted laws, but I’d have to think about that one. What if some future Congress passes some crap right-wing laws?

But, yeah, our future depends on the midterms and enough Democrats with spines to do what needs to be done.

Today’s Links

I just have time today to point to some links. Do read Philip Bump, Why did Trump want Judge Cannon for his Mar-a-Lago challenge? You should be able to read it without bumping into a paywall.

And Philip Bump again, In praise of iron fists: Trump leans into his authoritarian instincts.

Here’s a Twitter thread by Neal Katyal about how screwed up the special master decision is.

At The Atlantic, see Andrew Weissmann, A Ruling Untethered to the Law.

And Greg Sargent, A longtime conservative insider warns: The GOP can’t be saved. This is an interview with Bill Kristol, of all people.

Judge Gives Trump a Special Master

I expect an appeal. See “Judge Grants Trump’s Request for Special Master.”


A federal judge on Monday ordered a halt to the Justice Department’s review of materials seized from former President Donald Trump’s Mar-a-Lago estate, describing a threat to institutions and the risk of media leaks that could cause harm to Trump.

“Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public,” U.S District Court Judge Aileen Cannon wrote in a 24-page ruling issued on Labor Day.

I haven’t read it yet, but here’s the ruling. And it’s a bit rich that the judge is so concerned about “improper disclosure of sensitive information to the public” after Trump may have been using classified documents as party favors at his country club.

The New York Times is saying that the judge’s order does not affect “a separate review of the documents being led by the Office of the Director of National Intelligence.” So the damage assessment is continuing.

It’s not clear to me if any consideration has been given to show this special master might be and what sort of security clearance the special master must have. (Update: I see here that Judge Cannon has ordered both camps to submit their proposed candidates for special master by September 9th. What happens if Trump proposes somebody who may be a security risk? What happens if the judge goes with Trump’s pick?)

Jennifer Rubin wrote last week,

 U.S. District Court Judge Aileen Cannon, a last-minute Trump nominee jammed through during the 2020 lame-duck session, seems to be contemplating a special master to review the documents one by one to see whether there is some basis for blocking them from prosecutors, even as the intelligence community feverishly conducts a national security review. (Trump is bizarrely asking the court to block the Justice Department from seeing what intelligence reviewers already are examining. One longs for the “unitary executive theory” to be applied consistently.)

But the real issue, Rubin says, is that Trump’s actions have created a national security crisis, and the nation needs to start acting like it. This is not primarily just a political story or even a legal story.

Trump and the Right Respond to President Biden

Digby wrote a post about the Right’s response to President Biden’s speech this week. This says everything I want to say. Just go read it. Then come back.

(Among other things, righties are outraged there were Marines standing behind the Preisdent. Yes, of course no American president has ever before used military personnel as a prop for a political speech. How outrageous.)

Trump responded to the speech by claiming he is financially supporting some of the J6 defendants, and I hope there are reporters following up on that to see if it’s true. Trump has a history of claiming to have donated to or promising to donate to some cause or another, and then not doing it. I’m guessing that he hasn’t given a dime to a J6 defendant. He just said something that popped into his head that sounded good at the moment.