The Mahablog

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The Mahablog

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.”

Politico:

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.

Trump’s Empty Folders

From the New York Times:

The F.B.I.’s search of former President Donald J. Trump’s Florida club and residence last month recovered 48 empty folders marked as containing classified information, a newly disclosed court filing shows, raising the question of whether the government had fully recovered the documents or any remain missing.

The filing, a detailed list of items retrieved in the search, was unsealed on Friday as part of the court fight over whether to appoint an independent arbiter to review the materials taken by federal agents from Mr. Trump’s estate, Mar-a-Lago, on Aug. 8.

Along with the empty folders with classified markings, the F.B.I. recovered 40 more empty folders that said they contained sensitive documents the user should “return to staff secretary/military aide,” the inventory said. It also said that agents found seven documents marked as “top secret” in Mr. Trump’s office and 11 more in a storage room.

The list and an accompanying court filing from the Justice Department did not say whether all the contents of the folders had been recovered. But the filing noted that the inquiry into Mr. Trump’s handling of the documents remained “an active criminal investigation.”

The empty folders don’t necessarily mean the contents were sold or discarded, IMO. Trump has no respect for record keeping, obviously. He likely pulled things out of folders and never put them back.

Let’s all remember that Trump never had a job. That means he never had a job in  which his career depended on finding the specification sheet that could prove he wasn’t the one who screwed up the work order. Most of the rest of us have been there.

He also probably has a psychological aversion to being told what to do, and he never had to grow out of it. I blame bad parenting.

Lawfare Blog has a fascinating first-person account of what went on in the documents hearing yesterday. Recommended.

In other news — I think President Biden was right to give the speech he gave last night. It’s a shame the networks didn’t air it, though.

 

Today’s News on Trump’s Legal Problems

Judge Aileen Cannon is now hearing Trump’s case for getting a special master to review the documents seized by the FBI at Mar-a-Lago. If she has half a brain she’ll say no. I bet the DoJ already has an appeal ready to file in case she says yes.

Last night Trump’s new lawyers — the old ones are too compromised to continue — filed a response to the DoJ’s argument against a special master. The weirdest thing I’ve read about it is that it argues people should have expected that Trump would be keeping classified documents in his home. CNN:

Former President Donald Trump argued in a court filing Wednesday that the National Archives should have expected to find classified material among the 15 boxes Trump turned over in January from Mar-a-Lago because they were presidential records.

The filing, his closing written legal argument before a critical hearing Thursday, acknowledged that classified material was found at Mar-a-Lago, but argued that it should not have been cause for alarm — and should not have led to the search of Trump’s Florida residence earlier this month.

I believe this is referring to this language on page 3 of Trump’s filing.

The purported justification for the initiation of this criminal probe was the alleged discovery of sensitive information contained within the 15 boxes of Presidential records [recovered in January 2022]. But this “discovery” was to be fully anticipated given the very nature of Presidential records. Simply put, the notion that Presidential records would contain sensitive information should have never been cause for alarm. Rather, as contemplated under the PRA, NARA should have simply followed up with Movant in a good faith effort to secure the recovery of the Presidential records.

The fact that NARA  had been trying to recover those documents since spring of 2021, and continued to try to work with Trump to recover the documents from January until August 8, when the FBI executed the search warrant, kind of plants this statement in the Land of Eternal Giant Face Palms. Here’s a timeline of all the backing-and-forthing between Trump and NARA.

The Presidential Records Act is clear that absolutely none of those records, sensitive or not, should have been taken to Mar-a-Lago. The only correct thing for Trump to have done, beyond not taking the documents in the first place, would have been to turn all government documents over to NARA in May 2021, when NARA first asked for them. But he didn’t. If the judge gives even a glimmer of credence to Trump’s argument here, the judge is corrupt.

Last night’s filing also undermines Trump’s previous arguments that the classified documents had been magically declassified, nor did it try to claim the documents had been planted. Aaron Blake:

Suddenly, they contended that the documents were indeed there, but they were Trump’s “own Presidential records.” And not only did the Trump team again decline to actually claim in court that he had declassified the documents; the team said it would be “appropriate” for the special master it wants to review the documents “to possess a Top Secret” security clearance.

It’s not the first time Trump’s legal strategy hasn’t matched his out-of-court bluster. But it was the most significant indication to date of the asymmetry between the two.

Instead, Trump’s new legal team is arguing that Trump was not doing anything unlawful by hanging on to his presidential records. Aaron Blake:

It begins with a reference to the idea that the FBI is criminalizing “a former President’s possession of personal and Presidential records” and later refers, again, to “the lawful possession of presidential documents.”

It derides the idea that Trump “has ‘no right’ to possess Presidential documents” and that he “illegally” possessed them.

Not enough face palm GIFs in the world, I say. I liked this bit, too, in which Trump’s lawyers argue that Trump does too have standing to object to a search of his home. This is from Trump’s filing:

The convoluted theory, which appears to be that the Biden administration will not allow President Trump to assert executive privilege and consequently he has “no right” to possess Presidential documents, and that, therefore, he has no standing to object to their seizure, is contrary to the well-established doctrine of standing.

The lawyers on MSNBC last night were calling this filing nonsense, or similar. I don’t think they even wanted to waste time and breath making specific objections. It was all too ridiculous.

Other stuff to read: See Steve Benen, MSNBC, What Republicans refuse to grasp about the ‘Clinton standard’. Also see Greg Sargent, A Trump lawyer’s ludicrous spin on ‘Hannity’ unmasks the Fox News ruse. This is about what Fox News viewers are hearing about the legal fight over the document.

Also, too, Trump and his accounting firm have reached a deal to give financial records to the House Oversight Committee. This puts an end to one of the several pending lawsuits Trump is dealing with. However, this isn’t all of the financial records.

Finally, here’s a big headline saying Ginni Thomas pressed Wisconsin lawmakers to overturn Biden’s 2020 victory.

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.

Also,

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.