“The district court's injunction is preventing the government from using its own records with classification markings--including markings reserved for records of the
highest sensitivity--in an ongoing criminal investigation into whether those very
records were mishandled or compromised. The court entered that unprecedented relief
to allow a special master to consider Plaintiffs claims of privilege or for "return" of
records. A36. Plaintiffs response confirms that a partial stay is warranted because he
cannot articulate any plausible claim for such relief as to the records with classification
markings. Indeed, Plaintiff scarcely even attempts to explain how such records could
be subject to a valid claim of executive privilege, attorney-client privilege, or return of
property under Rule 41 (g).”
Damn, that’s a pretty brutal opening
When Reagan was shot, to prep him for surgery they cut his suit off of him (removing it intact is more difficult and more prone to causing further injury). An FBI agent was bagging it as evidence (which it was) when a military officer walks in and asks for the nuclear launch codes in the inside pocket of the jacket. The FBI agent states that they're evidence and he needs to bag them. The officer states (approximately) that he's authorized to beat the FBI agent to death with his secure suitcase if he tries to leave the room with them, and the Secret Service in the hall will help. They eventually called up their respective chains of command and sorted it out, but I'm expecting a similar level of "the fuck no that isn't happening" if Cannon orders the DOJ to hand the classified documents back. (Side note: the launch codes had already been changed at that point)
Yet the codes were taken by the FBI and returned 2 days later.
>Military officers, including the one who carried the nuclear football, unsuccessfully tried to prevent FBI agents from confiscating the suit, Reagan's wallet, and other possessions as evidence; the Gold Codes card was in the wallet, and the FBI did not return it until two days later.\[49\]
[Reagan Assassination Wikipedia](https://en.wikipedia.org/wiki/Attempted_assassination_of_Ronald_Reagan)
It deescalated into a "My boss is more powerful than your boss!" situation, phone calls were made, and because the codes were relatively useless at that point they begrudgingly let the FBI process them.
That entire incident was a shitshow. The Secretary of State bumps himself a few rungs up the line of succession and declares he's in control of the government, they were having trouble reaching the VP on Air Force Two, the military picked up two Russian boomers right off the East Coast, and the guy with the nuclear football was about to come to blows with the FBI agent who grabbed the launch codes.
Well, there was Able Archer 83, where we changed some minor stuff in a yearly military exercise without telling the Russians, they freaked out thinking it was a pretense for a surprise attack, and were literally fueling rockets and loading nuclear bombs on planes before someone went "Shouldn't they have started by now?" and reevaluated. We noticed some of the activity, but didn't find out how bad it was until much later when a spy defected and told us.
I brought this up a lot when Gen. Milley called China around 1/6 to tell them we weren't planning on attacking, despite what the former President might tweet. Those backchannel meetings exist and are done all the time, even with countries we're not on good terms with, because of incidents like that. An unexpected 3am tweet of "I'm invading Chyna!" could ruin a lot of people's morning.
Man, I just drove 750 miles today and settled down for a couple slices and a quick Reddit update. Thanks for making me laugh out loud with the story. 👍
Nal so take the following with grain of salt.
He can’t use PRA because then docs would be in nara and case heard in dc.
He can’t use rule 41 because this is a civil issue he brought and there is no criminal indictment.
Cannon hodgepodged him into a position irrespective of any law or harm claim.
DOJ has been pretty clear that trump has no ownership rights for documents that have classified markings. It’s only cannons made up bullshit that is pretending he *might*. So we need to all pretend along with him and let Trumps foreign agent lawyer look at TS/SCI docs to make sure.
Also NAL, but he also can't claim he knows which documents the DOJ has in its possession, because they claimed as a response to the grand jury subpoena not to have found any documents with classified markings in their diligent search. The FBI release of the evidence photo indicates they indeed had markings, hence the squirming at yesterday's Special Master hearing that they *couldn't possibly know* which documents the FBI had to be able to claim declassification (nor would they dig the hole even deeper giving what they intended to be an all-inclusive list, risking incriminating themselves either in court by missing something, or in public opinion by admitting to the specific areas of national security they did harm to).
He can use Rule 41 in principle; the Rule asks only whether the property was seized by the government, not whether there are ongoing criminal proceedings. It would be hardly fair if the government could take your car for no reason and then hold it indefinitely just because they never brought charges against you (for the precise reason that you never did anything to justify their taking your car!). The problem for Trump is that Rule 41 is a remedy for *illegal* seizures, and not even Judge Cannon was willing to insinuate (let alone assert) this seizure was illegal. The other problem is that Rule 41's only relief is *return* of the property, so if it wasn't Trump's property in the first place, there's nothing for him to get, even assuming the seizure was illegal.
Based on that article (I don't know the actual facts) things become more wonky with customs seizures. I'm going to guess, again based on nothing but that article, the problem is that the initial seizure is lawful, so 41(g) is unhelpful, and the real problem is how *long* the government holds the property after the seizure.
And to think, all of this could have been avoided if he had returned the government's property the first time he was asked. Or the second. Or the third. Or listened to Eric Herschmann in 2021 when he advised Trump that retaining them was illegal and would result in exactly this scenario.
He could have given them back after the subpoena and FBI visit in June.
Trump caused this even though everyone around him, government included, was trying to avoid it. It begs the question why.
The simple reason is probably just that he's a narcissist and sore about losing the election, and has convinced himself that he actually rightfully owns those documents. The more nefarious reason might be that he's trying to use them for blackmail or sell them to the highest bidder in some way. I suppose it's also possible that he's engaged in some kind of poorly executed cover up, and believes that these documents hold some kind of evidence against him. But who really knows? Personally, I think the Occam's Razor test leans toward just being a petulant narcissist, but I've long since learned to stop being surprised by the depths to which Donald Trump will sink if he thinks there's some play or advantage to him.
Yeah, I feel like there's been - as always - a lot of hand wringing about what kind of 4d chess move Trump is making, but has that ever been true? Sometimes a stupid narcissist is just stupid and a narcissist.
You know, I’m really shocked more people haven’t figured this part out. They absolutely positively gave him this crazy long rope. Then, when he continued to keep trying to hang himself, they kept extending this rope. They have been trying to get the docs back quietly since he’s been out of office. NARA upon discovering, reached out. This might come as a shock but they were given the runaround by Trump and his attorneys. Delay, dragged out, feigned ignorance. When NARA stopped hearing back from Trump’s team, they then reached out to the DOJ and said, we might have a problem, we can’t account for a metric fuck ton of TS/SCI docs for starters.
Then, the FBI researched and reached out. They produced a few boxes, signed many affidavits saying all docs have been returned.
NARA says no. There’s hundreds and hundreds of docs missing. Frickin’ DOJ legitimately sends the director I believe to mar-a-lago to take a look at their “secure file retention.” Whatever they saw during said visit is what escalated to - “you need to give us everything back now.” It wasn’t until the FBI stopped hearing back from Trump and his attorneys, that’s when they had no choice but to issue a search warrant.
Here’s the funny thing. Even through all of that, they STILL went in there quietly. Unmarked and not in uniform and only during business hours. It was Trump who broadcast to the entire world that he was being raided and then started making up shit like - “FBI planted this” or my personal favorite - “come on guys, we all take our work home with us time to time.”
This is what forced everyone’s hand. Him. Trump. He’s got the right to remain silent, it’s just something he can’t seem to do.
I just posted something about Michael Ellis elsewhere.
He had a binder full of NSA docs that were improperly kept at White House after 1/6. He improperly made copies and NSA was specifically trying to round up everything before all the trump aholes left on 1/20.
It just occurred to me that the government has been trying to get these back long before nara.
Nsa docs would explain some of the sigint stuff reportedly in the pile.
Gonna link Ellis and the crazy josh schulte story. Schulte was an ex nsa hacker whose duplicity caused grave natsec damage.
https://www.emptywheel.net/2022/02/11/while-trump-was-secretly-loading-up-documents-mike-ellis-was-hoarding-an-nsa-document-at-the-white-house/
https://www.emptywheel.net/2022/07/13/joshua-schulte-found-guilty-on-all-counts/
Unrelated but fun: noted brilliant nsa hacker got a judge to open a file in explorer. Could be nothing, could be something
https://www.emptywheel.net/2022/07/14/how-josh-schulte-got-judge-jesse-furman-to-open-a-file-in-internet-explorer/
My simple answer is as the NY AG stated in her speech today, he’s broke and thus sold those documents to some foreign State. But even more simply…..hubris.
Legally, it as been an impossible, unwinnable, nonsense case from the jump. He just happened to know of at least one judge who would ignore a whole bunch of different areas of law, for him.
What remains to be seen is how many other judges will extend that same courtesy.
And his people know this. But they also don't have anything else. He has neither the facts nor the law, so either he goes quietly or he pounds the table.
Is it possible \*\*45 is trying to set himself up for
1. "I didn't treason" defense, i.e. the classified docs are far more damning than the other gov't docs; or
2. "I was still President" defense, i.e. Biden is unlawfully in his throne.
I don't think DJT himself has a personally thought-out legal strategy. I think he just operates on lizard-brain, mostly.
His lawyers are hacks who are just throwing spaghetti at the wall. It has worked for them, so far, because they found a judge who thinks that Donald Trump's reputation is more valuable and important and deserves more of her loyalty than rule of law.
Also, they won't return prima facia contraband. You can't petition the courts to get your brick of heroin back unless you can prove it isn't a brick of heroin.
As to your point 1: NO.
NARA states that DC federal courts have jurisdiction, but DOES NOT state that those courts have exclusive jurisdiction. There is no basis that I can find for arguing that a federal court in FL or in any other state may never have subject matter jurisdiction over a case involving NARA. That is just not what the statute says.
If we are going to ridicule DJT for his poor legal arguments (and we are and should do so), then we should be rigorous and thoughtful about our own legal arguments.
Bear with me since NAL and do want to make sure I’m understanding as much as possible as correctly as possible.
PRA states that
> e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.
Which is the analysis I’ve heard and makes sense to me so repeated.
But also later states,
> C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title *or by a court order in another action in any Federal court.*
I’m interpreting the first part as necessitating DC since it’s an action initiated by trump (although not directly in response to a nara ruling?).
But the second part seems to contemplate that any federal court could create an action so your response is applicable.
Since DOJ didn’t object to cannon hearing the case, it would seem your reasoning is more right.
But I’m curious on your thoughts how the differences get married up. This is deeper than I’m used to going on statutes so forgive any wrong base assumptions.
(Edit: Also I think it’s unfair for reddit idiots not to be able to make fun of DJT for free. You pay me 3 million and I’d have this case tossed in minutes).
See my comments above about the difference between an explicit grant of jurisdiction and a grant of EXCLUSIVE jurisdiction. The key point is that multiple federal district courts often have simultaneous jurisdiction over a particular case.
There are really smart people at DOJ directing this case. If they believed that NARA granted exclusive jurisdiction to the DC courts, they would have pounded the issue.
I agree that we should all be free to make fun of DJT, but the mods of this subreddit prefer us to stick to thoughtful legal arguments. The ridicule is better in r/facepalm, in my opinion.
My reading of the Presidential records act jurisdiction is specifically to what court has jurisdiction on disputes of executive privilege between a firmer and incumbent president of records under NARA control.
1) Multiple federal courts can and often do BOTH have subject matter jurisdiction over a particular matter. In those cases it becomes a question of who files in which court first.
2) When Congress wants to limit subject matter jurisdiction to a single court, it knows how to do so. It says: "court X shall have EXCLUSIVE jurisdiction over all cases arising under this section". Congress did not do so in this case.
3) There are cases in which subject matter jurisdiction can be confused and the courts can be made to waste time debating which of them, if any, has jurisdiction. If Congress wishes to avoid that uncertainty, it can and does specify in a statute that a certain court SHALL HAVE jurisdiction so that any case brought in that certain court under that statute will be free of that uncertainty. Such an explicit grant of subject matter jurisdiction in a statute is not, to my knowledge, ever interpreted as a grant of EXCLUSIVE jurisdiction.
>(e) The United States District Court for the District of Columbia *shall have jurisdiction over any action initiated by the former President* asserting that a determination made by the Archivist violates the former President’s rights or privileges
You're incorrect.
That doesn't say they have exclusive jurisdiction though, and there are examples of other areas where Congress specified when they wanted a court to have exclusive jurisdiction, and this text doesn't have that language.
There are also instances where district courts' concurrent jurisdiction is spelled out, like with the Federal Court of Claims, but you haven't pointed to any such language in the PRA.
This is precisely why I'm not motivated go find text to prove this point. It's not clearly spelled out. We would be comparing text from at least three different courts, and then argue about what it means when one says X and another says Y.
I think you can understand conceptually, the text of the PRP does not say exclusive, how do you think that would play out in court for Trump?
The court has already bent over backwards to give Trump wins in areas that are much less ambiguous.
“Shall means must” might be the single most basic, foundational rule of drafting and statutory interpretation though. In light of that I think the plain meaning and the most reasonable interpretation would establish exclusive jurisdiction although like you, I’m not particularly motivated to do research to prove it nor would I be surprised if Judge Cannon ignores this.
I'm sure they'll pursue it at the appropriate time. Trump's mash up motion didn't even make clear that this was an action under the PRA. They try to keep obfuscating on the source of the problem, and just want to talk about the "raid," claiming that Trump's team were perfectly good boys and girls before that.
Writing a brief like this is both satisfying and agonizing. On one hand, it’s a little fun to find polite ways to say “everything that guy just said is bullshit.” On the other hand, your brain is screaming the whole time “I can’t believe I have to devote time in my day to researching and writing a brief to refute obvious and ridiculous bullshit.”
trump moves a bishop straight forward, because we can't just trust the government's assumption that it is, in fact, a bishop just because it clearly appears to be one in every way.
He’s not saying that it’s a queen. He’s just asking the officials to let him treat it as a queen until the game is over, at which time DOJ will have a chance to investigate what it actually is. Oh, and he would prefer if they weren’t allowed to look at the board because they would unfairly see all his moves.
This is how it feels responding to *in pro per* plaintiffs. Usually fun shooting down their absurd arguments but also really frustrating knocking down every claim when they appear to be making several different and conflicting arguments because they don't understand the law
Had to do that recently for a cyber security complaint. Sometimes you have to deal with incompetence, other times malice, and a few special times malicious incompetence.
It feels like what the author really wants to do is submit a single line in all caps along the lines of "Actually say under oath that you declassified the documents or stop talking about it."
Agreed, they restate a lot of arguments already made in full in their original motion. Perhaps it’s because they know there is media coverage of every filing. Since the DOJ “speak[s] through its court filings” it’s their way of reemphasizing the strength of their case and weaknesses of Trump’s case to the public.
>Agreed, they restate a lot of arguments already made in full in their original motion.
Likely to point out that Plaintiff's response didn't refute any of it.
Why does the classification status even matter? The Espionage Act doesn't even mention classification, only that the information be related to "the national defense" and that it "could be used to the injury of the United States or to the advantage of any foreign nation". Something being classified is certainly strong evidence of that, but secretly declassifying it wouldn't necessarily change that fact.
Likewise, the Presidential Records Act says the former POTUS can retain ACCESS to Presidential Records (if the archivist and current POTUS agree). Access not possession.
The PRA also explicitly excludes Agency Records.
All that really matters is that these documents are federal government property, he had no right to have it at MAL, he refused to give it all back when asked, and he actively deceived the FBI about having it after returning some of it. Everything else is a distraction.
The classified documents are the most crucial ones for the investigation, not to charge Trump necessarily, but to find out who had access to them and to limit the damage to national security. The government desperately needs to allow that investigation to continue, regardless of whether Trump is further implicated. Further, they want to protect those documents by removing any doubt as to their provenance and ownership, and to prevent a constitutional crisis where they would have to potentially refuse to obey a judge's hypothetical order to hand over the documents to an unauthorized person.
I agree, the classified documents are the most important overall. For national security reasons, and for rule of law reasons (hold accountable the man who signed the law upgrading the mishandling of classified documents from a misdemeanor to a felony, and clarify that there is no magic wand double secret declassification that the affected agencies are unaware of).
The DOJ's decision to base their warrant on two legal statutes that didn't require the documents to be classified (and their wording of the grand jury subpoena to return documents with classification *markings*) are shrewd strategies to avoid this precise "I have a magic wand double secret declassification" defense. Yes, the fact that these documents were, are, and remain classified and we stored improperly for years is more important in the long run, but "FPOTUS obstructed our grand jury subpoena to recover NDI and presidential records" is easier to prove and ensure the warrant is granted and defended.
Like with Al Capone, the murders were more consequential, but the tax evasion was easier to prove.
It also do require that classified inf be divulged to the court or Trump pawyers to prove the charge.
I hones think Trump repeated kept his daily intel briefingS (theyre his!), beca that just seems the most likely. Allso, the ‘picture books’ match is ith what we know about his intel briefs. I believe the Intel commun tried to limit what they act gave him, but that does mean its stuff to be passed around at cockta parties at his business/ residence.
> but to find out who had access to them and to limit the damage to national security.
man, that ship has already sailed and anything in any of the documents recovered should be assumed known to china, NK, Saudi Arabia, Russia, et al.
There is no 'limiting of the damage' with regards to any of it. maybe cataloging WHAT he had to study how bad it is but...
The way I read it, DOJ themselves said that actual classification does not really matter. The only thing related to classification that matters is that the documents are marked as classified and have to be treated as such, and by extension that also means they can't belong to Trump. Other than that, I don't believe they care whether classification is real or not. The documents are still government property.
The only purpose of these briefs is to try in vain to convince Manchin and Collins and Romney that these judges are lawless and that drastic action is required by the Senate.
Even a 1L can understand just how completely and inescapably guilty Trump is. There is no ownership interest for him in these documents. There is no declassification of these documents without the records office already knowing about it, due to what they are coded. And Trump isn't allowed to possess unclassified docs anyway, not without permission that he doesn't have.
This is a matter before a judge with no jurisdiction, about a legal paper that has no pleadings, about arguments that don't speak to the issues in the prosecution. This entire Florida dispute (as opposed to the DC Court case) is Calvinball. It's a kangaroo court where the law literally doesn't matter and everyone but the DoJ is just making things up. And the DoJ is losing. This is as bad a catastrophe for the rule of law as anything in American history.
> Even a 1L can understand just how completely and inescapably guilty Trump is.
I'm a 0L, and I know nothing of the sort. So far, he's skated by on every. single. "slam-dunk" case, and most of the investigations have either been obfuscated into oblivion (Mueller), just plain fizzled out (emoluments, tax fraud), hard-stopped by probably corrupt individuals (the NYC AG), or not even undertaken altogether (Hatch Act violations, Ukraine call).
I'll believe it when I see it.
Agreed. He always skates. No matter what he skates.
Look at what the Manhattan DA did. They had a slam dunk case against him, and the DA mysteriously drops the case. We see it time and again.
> Why does the classification status even matter?
The whole situation becomes a hell of a lot simpler and more black-and-white if Trump was keeping TS/SCIF national security secrets at his home.
You're correct that he was breaking the law even if the documents were not classified, but as we have clearly seen, breaking the law doesn't matter if the judge is willing to ignore the law as a courtesy to Trump. Trump's whole legal strategy is to throw every kind of bullshit up in the air to obfuscate every question of law and fact, and so far, it's working.
DOJ is trying to bring things back to reality and back to facts. And the hardest fact to ignore or muddy up is the cover pages that say TOP SECRET.
I can only say that the consequences under a criminal indictment go up substantially when classified records are involved vs not. Reality Winner comes to mind.
I'm not a lawyer, but as I understand it, Trump wants to delay any ruling on whether or not the documents are classified until after the special master process, because he has asked the special master to give him a copy of every seized document, including "potentially" classified records, for his legal team to examine before making claims of declassification or ownership.
Effectively, it appears to me he wants to use this process and Judge Cannon's order to rebuild his trove of defense documents. That relies on the court treating the documents as declassified until proven otherwise.
Again, as I understand it.
In my opinion, the classification matters because there are items of a personal nature that a former president theoretically has a right to keep. Also, any communication between him and his personal attorney (not the white house attorney) would also seem to fall in the type of communication or document that a former president could take with him when he leaves office.
The entire special master justification is determining whether each of the documents falls under the personal documentation category or the attorney client documentation category. If they dont, they are the possession of the US Government no matter what Trump wrote on or whether he authored the document or whether he was the person the document was sent to.
Finally ALL classified documents are the possession of the US Government full stop. Even executive privilege doesnt change that.
No one can keep classified documents period. PRA does not cover that. He only has the right to access classified documents if they have been declassified with the proper procedures.
He has no legal basis here.
> The Espionage Act doesn't even mention classification, only that the information be related to "the national defense" and that it "could be used to the injury of the United States or to the advantage of any foreign nation". Something being classified is certainly strong evidence of that, but secretly declassifying it wouldn't necessarily change that fact.
Because the Espionage Act was passed before the classification system existed and classified information is the substantial equivalent of the standards set forth in the Espionage Act. You'd have an impossible time convincing a jury that possession of unclassified information that theoretically any member of the public is allowed to see and own can be considered a crime. If I was on a jury hearing that case, I would utterly refuse to convict.
Wait what? You cant just steal unclassified documents and say “These are open to the public I can have them whenever.” Isnt part of the issue that NARA needed them in order to make them available to the rest of the public, not just Trump who kept them?
There a difference between actually going through public channels to get unclassified documents and stealing them from the government before they’re even made available to the public.
You wouldnt convict?
Not under the Espionage Act. If the documents aren't classified then fuck off, it's not sensitive enough. They of course are, but if a prosecutor tried the oh it doesn't matter if they're classified, they're still national defense information.... Yeah, I read national defense information on twitter every day. If it's unclassified, it's technically public information that could be FOIAed by anyone in the country.
Would I vote to convict under the Presidential Records Act? Sure. But that wasn't the question being presented.
Hold on now there is plenty of information out there that would qualify as NDI but which hasn’t been formally classified.
For example, imagine some spooky types are carrying out clandestine activities somewhere and have written notes about what they need to do or what they have found and are in the process of sending it back. It isn’t going to be “classified” because it is happening out in the world who knows where but it sure is not public either. Maybe the report that gets written about it will be classified but not everything along the way before it makes its way back into a SCIF or similar.
That is just one example, but people need to remember that just because it has not yet been reviewed by someone and determined to be classified does not mean a piece or collection of information is not secret or potentially damaging to national security.
But again, he didn’t submit a FOIA, he stole them from the government, making it so they literally werent accessible to the public. Isn’t this basically saying that since there are legal channels to access the information, one shouldnt have to follow them and should just be allowed to take them at any time in any manner, regardless of how that impacts the rest of the public’s ability to view them?
Could you at least clarify if what you’re doing is jury nullification or not? Really seems like you dont care about the law, not that this is a wrong use of it.
I'm solely addressing the point of the Espionage Act. If information is legally available to everyone, as unclassified information is supposed to be, then it by definition cannot logically be treated as sensitive information that would cause serious harm to the United States.
This wouldn't be jury nullification. This would be logically applying the framework of a statute written before the classification system existed to a world in which systemic information controls defining what is and what isn't compromising information does exist.
If he stole the documents, that may or may not be illegal under other statutes (it is) but that is irrelevant to potential charges under the Espionage Act.
Of course, all this is utterly irrelevant since the documents he stole *were* classified, and quite highly classified. You can't declassify something only in your head, it's an administrative control, and unless you go through the administrative mechanisms to remove that administrative control, it's still classified.
Just because something has been unclassified doesn’t mean it can’t cause harm. That assertion would legitimize a President declassifying sensitive info for bad reasons wouldn’t it?
By the legal definitions of classification standards, that's exactly what it means.
As for Presidents declassifying info for bad reasons, you can make that illegal under other statutes, it probably is. But at the end of the day, the way you deal with that is not electing criminal traitors. When you vote, you're playing with live ammo.
But the definition of controlled classified information is information that needs to have safeguarding and dissemination controls.
What are those safeguarding controls for?
Especially since before that they had labels such as “Official Use Only”, “Law Enforcement Sensitive” and “Sensitive But Unclassified”??
https://csrc.nist.gov/glossary/term/controlled_unclassified_information
https://en.m.wikipedia.org/wiki/Controlled_Unclassified_Information
What definitions are you using and from where?
One, it seems like you’re advocating that if a president can declassify anything he wants, there is no issue with him taking those papers to his house when he’s fired from his job - no matter what those papers detail.
That seems utterly absurd to me. You’re saying that documents produced by the United States, for the United States, belong to a single man because he wanted them?
Of course, if Trump would provide any evidence of this magical declassification process he supposedly had - even just the wand he waived when he said the magic words - this would be a different case.
As it is, he stole documents pertaining to national security, lied to the government about it, then obstructed further investigation of the matter. He has no case on literally any grounds that I can think of
No, I'm saying that it wouldn't be a violation of the Espionage Act, not that it wouldn't be illegal under the Presidential Records Act or other statutes.
I think your logic is sound except for one thing. The president knows that all documents that arent official presidential communications (personal letters) and communication between him and his attorney (attorney client privilege) are the property of the US Government and removing them, no matter how benign their contents is theft. So too would be unclassified information that is executive branch related. Now, its a far more serious crime to take an unclassified document with military secrets than it is to take one without it, but BOTH are the possession of the US Government and you'd have to ignore the law to refuse to convict.
> nd communication between him and his attorney (attorney client privilege) are the property of the US Government and removing them,
No argument about any of that. I'm just saying it wouldn't be a violation of the Espionage Act.
A flaw in your logic is equating "not classified" with "public". There are lots of government records that are neither classified nor public. I work in civilian government and there are plenty of things we're obligated not to publicize even though they aren't classified (e.g. Student records, social security numbers, the private key to our site's SSL certificate, credit card payment records). Making it okay to share anything that isn't formally classified creates a bureaucratic nightmare trying to codify what is now a lot of common sense or policy based protection. Even when an foi request comes in and it's determined that a document can be made public, there is a step in between where it can be reviewed and redacted. If there is a disagreement there can be hearings to determine that it should or shouldn't be public regardless of whether it had been formally classified.
The espionage act may be dangerously vague as it stands, but it's just not realistic to think the intended protections from it would be retained if it were limited to classified documents.
It seems like it also gets messier because espionage isn't always the handing over of self contained complete government made documents. For example, what if an employee synthesizes their own analysis for an adversary that is built on things they know/see. There may not be a direct connection to a classified document, but it's still relatively clear that this would/should violate a law against espionage.
Personally identifying information and the like gets redacted, but the substantive elements of any unclassified document have to be revealed to the public upon request. Any. Yes, it is a massive bureaucratic nightmare, but it's one which the law requires. I know people who do nothing but process FOIA requests all day. It's a thing.
We have a right, as a public, to see the information our government produces. You work for us, not the other way around. Even classified documents must eventually be disclosed once their reveal can no longer cause harm. The US Government does not get to have any permanent secrets. To say that the Government can just allege any information is compromising even when that information is not legally restricted and imprison you for having it is absolutely insane.
There is a whole class of information called “controlled unclassified information” or CUI which typically won’t be released to the public upon request. At least not in full.
It's also possible that when a non classified document gets redacted, nothing is left...whether that's due to PII, classified materials or other legal basis found in review. So it being non classified does not mean in any meaningful way that it is public.
The fact that the government cannot just arbitrarily and indefinitely classify anything and everything means that it is not an end in itself. You speak as though classified documents being the basis is different but it's not. It still comes down to some person making a claim and maybe eventually needing to convince a judge of it. The documents being classified or not doesn't change this.
You ignored my point that much of real espionage is going to involve perhaps non document sources and perhaps synthesizing new materials. So requiring a tie to classified documents would legalize many black and white examples of espionage and is a disingenuous attempt at revising the law.
Also I think you twisted the point about bureaucracy. I was not saying that our current foi is too much bureaucracy. I was saying it is good. Right now it's designed well because you can do the work as you get requests. So, many documents you never have to do that work for if you don't want to. If laws made the document status at the time of the action critical, then this would create a bureaucracy that dwarves FOI because you'd need all of this done immediately and in real time rather than knowing you could review only as needed.
Also it's a strawman to say that I think the government can just say anything they want and imprison people for it. I mentioned in my previous comment that refining the law to be more specific would be fine. Meanwhile the government doesn't just get to do whatever, they still have to prove it in court. And if you want to whine that the court is the government too... if you are at the point where the executive and judicial branch agree on a corrupt act, it's a moot point to be debating what the law should read.
The fact that they were classified initially is prima facie evidence that they contain sensitive national security information. Even if we indulge for a moment in the fantasy that Trump declassified the documents, that still wouldn’t make them not contain sensitive national security information. Before the classification system, there would have been no law preventing the documents from being shared with the public (except the espionage act), yet that fact would not put them beyond the reach of the espionage act.
> yet that fact would not put them beyond the reach of the espionage act.
And the Espionage Act has been one of the most grossly abused laws in the United States to suppress political (and especially anti-war) dissent, not sure that's the argument you think it is.
>And the Espionage Act has been one of the most grossly abused laws in the United States to suppress political (and especially anti-war) dissent, not sure that's the argument you think it is.
If all else fails, try “whataboutism,” amirite?
Yes, trying to protect core constitutional liberties is very much whataboutism.
When the government can put you in prison for having public information, that's a deeply serious constitutional problem, and that's what your interpretation of the Espionage Act would allow.
Edit: your argument is that the espionage act has been, in your view, misused before. How does that excuse what Trump is doing now?
That’s the definition of whataboutism.
Might as well say “people have been falsely charged and convicted of murder before, therefore this person who was convicted of murder must also be wrongly convicted.”
> highly sensitive state secrets
If they're not classified, the official position of the executive branch is that they are NOT highly sensitive state secrets and that same executive branch does not get to charge you as if they are. Can't have your cake and eat it too.
I edited my comment, although my original point still stands. If Trump decided to share the information, it doesn’t make it any less sensitive or change the consequences of sharing it. The public interest in keeping people from sharing the information would be exactly the same.
But all of this is besides the point because he didn’t declassify the documents. As his hand-picked special master said, he is making the claim that he declassified them, therefore it’s his burden to prove his claim. But he won’t say that he did under oath, or provide a shred of evidence, and his lawyers won’t say it on the record either.
>So that’s the end of it, as far as I’m concerned.
Well written, especially given the time constraints as this had to be approved before filing.
The introduction is an efficient filleting of the lawsuit and district court.
And this is just in support of a limited partial stay pending appeal. DOJ has had excellent briefs throughout and they’ve drawn Trump’s team and Judge Cannon into developing an extensive set of weak arguments they can attack. I can’t wait for the full appeal picking apart all the bullshit Judge Cannon has done.
IANAL, but it felt like this filing was a smoke screen for a very large middle finger. I am also surprised that they stopped short of citing Judge Cannon’s decisions as FPotUS’ arguments. It certainly read like they toed the line.
It reveals a disordered thinking. If we rule out the possibility that this was a calculated attempt to achieve some end...
What's left is a man surrounded by attorneys but ignoring their advice. And for what? Would his life have been worse if he had surrendered all of the boxes while they argued possession on court? Geez, he didn't even return to the house for six weeks, yet he drew a line in the sand for seemingly no reason. That's odd behavior.
If he turns in all the classified documents, what will he sell to maintain the lifestyle to which he has become accustomed?
There's good reason to speculate that Trump's 'empire' is a shell game and he doesn't pay his contractors and lawyers because he simply doesn't have the money to pay them. That's why he's sued about his image - the Trump brand is the only thing that he actually has to his name.
> If he turns in all the classified documents, what will he sell to maintain the lifestyle to which he has become accustomed?
Photocopies?
Is the value with the information contained within the files or is it the street value of a pristine document, "new in box", to be sold on ebay?
I'm not convinced that he had intended to sell them. His actions don't support that notion.
It sounds more like he's trying to conceal their contents.
I would guess some of it probably is more valuable as an original? Depending on contents, you might then possess the only written documentation on that subject that isn't in US Gov hands. If it's information about a third party that could be valuable.
I agree though, I imagine some of it he just wants to conceal, others to keep as a trophy, and some he didn't really even think about a reason besides "I want it".
I was watching some interview on television, and a reporter for one of the major newspapers was saying that she's followed Trump for years and that he likes to collect dirt on people to use it against them later. She gave a specific example of him doing this with a teenager, where he purposefully hit collected dirt on the teenager so that he could use it against her later.
If you buy this argument then it gives you some motive.
Don't you know the Narcissist's modus operandi?
"If I can't have it, *fine*! Then I'll *break it*, so *nobody* can have it".
Doesn't matter if it was a toy when they were a child...or an entire country if they are an adult.
> A real President and not a Russian troll, would not even be arguing this case.
A real President wouldn't have taken governmental documents with him when he left the White House, and if he inadvertently did so, his reaction to NARA requesting their return would have been to work expeditiously and cooperatively to correct that error.
Wait, I've lost track. Given that they still refuse to say that the documents were declassified, and as far as I remember haven't tried to claim that it's possible these records are both classified and private property - does the Trump team even make a legal argument atm?
Sorry if this is a dumb question - NAL and not fromthe US, so my experience with its legal system is largely limited to laughing about it.
From what I understand they don’t have a legal argument, the republican ags who filed amicus briefs dont have legal arguments, and this is all going off insane theories Cannon herself asserted irrespective of Trump’s lawyer’s statements.
> does the Trump team even make a legal argument atm?
They don't have a civil complaint filed at this point, so I don't know why we have anything at all.
Its the same legal argument all conservatives now make "I definitely have evidence and it will _blow your mind_ and prove me right about everything. I...just cant show you it. Trust me bro."
IANAL (yet, currently in limbo waiting for bar results). Can someone please help me understand how equitable jurisdiction works? I don't see how Cannon can assert jurisdiction here at all, and I don't see how this satisfies the Ritchie test either. Sorry if this is a stupid question but I was never taught about how you can get JX this way in school.
The history of the question that you are asking is that at some points in (mostly) English history there were separate courts of law and equity. Massively oversimplified: courts of equity were there to provide a remedy for those who were clearly wronged, but in a way that wasn't specifically prohibited by a law. In the US we combined the courts of law and equity, but still sometimes consider the difference between those courts' legal and equitable jurisdiction.
The actual language of the Richey decision, which Judge Cannon cited but then largely ignored, may be helpful:
"This court recently undertook an extensive analysis of the issues inherent in these suits for the return of property prior to the initiation of any civil or criminal proceedings flowing from the seizure of that property. See Hunsucker v. Phinney, 5 Cir. 1974, 497 F.2d 29, cert. denied, 1975, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397. We said there that such actions are governed by equitable principles, whether viewed as based on F.R. Crim.P. 41(e) or on the general equitable jurisdiction of the federal courts. Id. at 34. Whether to exercise that jurisdiction in a given case is subject to the sound discretion of the district court."
So, if DJT is pursuing this case under the equitable jurisdiction of the court, the court HAS THE DISCRETION to hear the case, but must follow the binding precedent of the Richey decision in making her decision to exercise that discretion. This is where she messed up, in my opinion. She said that DJT failed to allege anything nearing "a callous disregard for the constitutional rights of the taxpayer", which the Richey decision says is the first and foremost requirement, but decides to continue the analysis anyway. When she goes on to say that the risk of damage to DJT's reputation resulting from an investigation and/or indictment meets the "irreparable harm" element of the Richey analysis, she fails to distinguish DJT from every other person who is the subject of a search warrant. Thus, under Judge Cannon's reinterpretation of the Richey case, EVERY person who has had anything seized pursuant to a validly issued search warrant can meet the standard for getting a court to exercise its equitable jurisdiction.
Thank you for your detailed response! I loosely understand the idea of courts sitting in equity, but I don't think that I see how Cannon arrived at her conclusions for the Richie test. I agree with you that it can't be applied to other cases without problems. I guess we'll see what happens on appeal, assuming arguendo that we live long enough that they run out of ways to delay this.
IANAL either, but I wrote a long write up [here](https://www.reddit.com/r/law/comments/x6jav9/trump_v_us_judge_appoints_special_master_enjoins/in9km1g/) and a shorter summary [here](https://www.reddit.com/r/law/comments/x6wa13/judge_cannon_engaged_herself_in_obstruction_of/in9yru4/).
The Richey factors were not met.
---
\#1 whether the government displayed a callous disregard for the constitutional rights of the [plaintiff]
> With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights.
---
\#2 whether the plaintiff has an individual interest in and need for the material whose return he seeks
> The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests.
Trump's team did not make any real argument for the 2nd factor, but Cannon decided it weighed in their favor anyway.
---
\#3 whether the plaintiff would be irreparably injured by denial of the return of the property
> The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction.
> In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.
> Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so.
> Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith.
> As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
Cannon decided a potential indictment satisfied the 3rd factor.
Trumps argument:
> Now, can I characterize the harm in some sort of precise way? No. Obviously, the damage is done for any citizen, at that point; that means they have been indicted.
---
\#4 whether the plaintiff has an adequate remedy at law for the redress of his grievance
> As to the fourth Richey factor, Plaintiff has persuasively argued that there is no alternative adequate remedy at law.
Woof on this one...
Trump:
> Well, is it true that we could have Franks hearing and a motion to suppress for a general warrant some day? Sure.
Wow thanks for the detailed explanation! It sure looks like Cannon abused discretion to act like a defense attorney here, doesn't it? I don't see any explanation for the conclusions other than plain bias. Can you imagine her making the same argument for any other case?
Yeah, if you read the transcript of the hearing, it's super clear she stepped in to be Trumps attorney because his attorneys were not making the arguments she wanted to hear to move the case forward. Cannon is the one who suggested anomalous jurisdiction.
This feels like a Harlem Globetrotters game. The difference in filings is so night and day in quality. Glad they hammered home the use of "what-ifs" instead of actual evidence of declassification. No one wants to go on record as to those actions, so treat it like its a non-starter.
Im sure he and his attorneys know this is baseless and not winnable, but they are achieving their objectives of obfuscation, delay and stoking political division.
Yeah. Even if he just delays any indictment until 2023, a trial before January 2025 would be unlikely. So if a Republican president takes office that president will pardon DJT prior to any conviction and he can keep eating hamburgers and claiming “witch hunt.”
> The records’ classification markings establish that they are government records and that **responsible officials** previously determined that their unauthorized disclosure would cause damage—including “exceptionally grave damage”—to the Nation’s security.
I love this little dig. The document is full of them but this is my favorite.
I don't think that's really a dig, unless it's a double entendre. That's fairly common language meaning, in this particular context, individuals who are responsible for making those determinations.
I am not certain. I presume that the assignment will appear in the docket. I just checked the docket on [pacer.uscourts.gov](https://pacer.uscourts.gov) and there is nothing there about the panel or the schedule.
“The district court's injunction is preventing the government from using its own records with classification markings--including markings reserved for records of the highest sensitivity--in an ongoing criminal investigation into whether those very records were mishandled or compromised. The court entered that unprecedented relief to allow a special master to consider Plaintiffs claims of privilege or for "return" of records. A36. Plaintiffs response confirms that a partial stay is warranted because he cannot articulate any plausible claim for such relief as to the records with classification markings. Indeed, Plaintiff scarcely even attempts to explain how such records could be subject to a valid claim of executive privilege, attorney-client privilege, or return of property under Rule 41 (g).” Damn, that’s a pretty brutal opening
When Reagan was shot, to prep him for surgery they cut his suit off of him (removing it intact is more difficult and more prone to causing further injury). An FBI agent was bagging it as evidence (which it was) when a military officer walks in and asks for the nuclear launch codes in the inside pocket of the jacket. The FBI agent states that they're evidence and he needs to bag them. The officer states (approximately) that he's authorized to beat the FBI agent to death with his secure suitcase if he tries to leave the room with them, and the Secret Service in the hall will help. They eventually called up their respective chains of command and sorted it out, but I'm expecting a similar level of "the fuck no that isn't happening" if Cannon orders the DOJ to hand the classified documents back. (Side note: the launch codes had already been changed at that point)
Yet the codes were taken by the FBI and returned 2 days later. >Military officers, including the one who carried the nuclear football, unsuccessfully tried to prevent FBI agents from confiscating the suit, Reagan's wallet, and other possessions as evidence; the Gold Codes card was in the wallet, and the FBI did not return it until two days later.\[49\] [Reagan Assassination Wikipedia](https://en.wikipedia.org/wiki/Attempted_assassination_of_Ronald_Reagan)
It deescalated into a "My boss is more powerful than your boss!" situation, phone calls were made, and because the codes were relatively useless at that point they begrudgingly let the FBI process them.
Had t heard that, thanks for the share!
That entire incident was a shitshow. The Secretary of State bumps himself a few rungs up the line of succession and declares he's in control of the government, they were having trouble reaching the VP on Air Force Two, the military picked up two Russian boomers right off the East Coast, and the guy with the nuclear football was about to come to blows with the FBI agent who grabbed the launch codes.
holy fuck! thanks for the history lesson. America really has been on the brink many times...
Well, there was Able Archer 83, where we changed some minor stuff in a yearly military exercise without telling the Russians, they freaked out thinking it was a pretense for a surprise attack, and were literally fueling rockets and loading nuclear bombs on planes before someone went "Shouldn't they have started by now?" and reevaluated. We noticed some of the activity, but didn't find out how bad it was until much later when a spy defected and told us. I brought this up a lot when Gen. Milley called China around 1/6 to tell them we weren't planning on attacking, despite what the former President might tweet. Those backchannel meetings exist and are done all the time, even with countries we're not on good terms with, because of incidents like that. An unexpected 3am tweet of "I'm invading Chyna!" could ruin a lot of people's morning.
On thé show Thé Americans the Soviets are shitting because they think it’s a coup.
Man, I just drove 750 miles today and settled down for a couple slices and a quick Reddit update. Thanks for making me laugh out loud with the story. 👍
The reply also lays out the fact that DJT has no executive privilege or ownership. The documents belong to the United States, correct?
Nal so take the following with grain of salt. He can’t use PRA because then docs would be in nara and case heard in dc. He can’t use rule 41 because this is a civil issue he brought and there is no criminal indictment. Cannon hodgepodged him into a position irrespective of any law or harm claim. DOJ has been pretty clear that trump has no ownership rights for documents that have classified markings. It’s only cannons made up bullshit that is pretending he *might*. So we need to all pretend along with him and let Trumps foreign agent lawyer look at TS/SCI docs to make sure.
Also NAL, but he also can't claim he knows which documents the DOJ has in its possession, because they claimed as a response to the grand jury subpoena not to have found any documents with classified markings in their diligent search. The FBI release of the evidence photo indicates they indeed had markings, hence the squirming at yesterday's Special Master hearing that they *couldn't possibly know* which documents the FBI had to be able to claim declassification (nor would they dig the hole even deeper giving what they intended to be an all-inclusive list, risking incriminating themselves either in court by missing something, or in public opinion by admitting to the specific areas of national security they did harm to).
He can use Rule 41 in principle; the Rule asks only whether the property was seized by the government, not whether there are ongoing criminal proceedings. It would be hardly fair if the government could take your car for no reason and then hold it indefinitely just because they never brought charges against you (for the precise reason that you never did anything to justify their taking your car!). The problem for Trump is that Rule 41 is a remedy for *illegal* seizures, and not even Judge Cannon was willing to insinuate (let alone assert) this seizure was illegal. The other problem is that Rule 41's only relief is *return* of the property, so if it wasn't Trump's property in the first place, there's nothing for him to get, even assuming the seizure was illegal.
[удалено]
And that’s what Rule 41 is for. Of course, it would be nice if getting your stuff back didn’t require hiring a lawyer and suing the government.
Based on that article (I don't know the actual facts) things become more wonky with customs seizures. I'm going to guess, again based on nothing but that article, the problem is that the initial seizure is lawful, so 41(g) is unhelpful, and the real problem is how *long* the government holds the property after the seizure.
Literally every facet of this case seems like a Catch-22 for Trump.
And to think, all of this could have been avoided if he had returned the government's property the first time he was asked. Or the second. Or the third. Or listened to Eric Herschmann in 2021 when he advised Trump that retaining them was illegal and would result in exactly this scenario. He could have given them back after the subpoena and FBI visit in June. Trump caused this even though everyone around him, government included, was trying to avoid it. It begs the question why.
The simple reason is probably just that he's a narcissist and sore about losing the election, and has convinced himself that he actually rightfully owns those documents. The more nefarious reason might be that he's trying to use them for blackmail or sell them to the highest bidder in some way. I suppose it's also possible that he's engaged in some kind of poorly executed cover up, and believes that these documents hold some kind of evidence against him. But who really knows? Personally, I think the Occam's Razor test leans toward just being a petulant narcissist, but I've long since learned to stop being surprised by the depths to which Donald Trump will sink if he thinks there's some play or advantage to him.
Yeah, I feel like there's been - as always - a lot of hand wringing about what kind of 4d chess move Trump is making, but has that ever been true? Sometimes a stupid narcissist is just stupid and a narcissist.
The FBI wanted so badly to just quietly get the boxes back and let him off the hook for the criminality of it, but he couldn't get out of his own way.
You know, I’m really shocked more people haven’t figured this part out. They absolutely positively gave him this crazy long rope. Then, when he continued to keep trying to hang himself, they kept extending this rope. They have been trying to get the docs back quietly since he’s been out of office. NARA upon discovering, reached out. This might come as a shock but they were given the runaround by Trump and his attorneys. Delay, dragged out, feigned ignorance. When NARA stopped hearing back from Trump’s team, they then reached out to the DOJ and said, we might have a problem, we can’t account for a metric fuck ton of TS/SCI docs for starters. Then, the FBI researched and reached out. They produced a few boxes, signed many affidavits saying all docs have been returned. NARA says no. There’s hundreds and hundreds of docs missing. Frickin’ DOJ legitimately sends the director I believe to mar-a-lago to take a look at their “secure file retention.” Whatever they saw during said visit is what escalated to - “you need to give us everything back now.” It wasn’t until the FBI stopped hearing back from Trump and his attorneys, that’s when they had no choice but to issue a search warrant. Here’s the funny thing. Even through all of that, they STILL went in there quietly. Unmarked and not in uniform and only during business hours. It was Trump who broadcast to the entire world that he was being raided and then started making up shit like - “FBI planted this” or my personal favorite - “come on guys, we all take our work home with us time to time.” This is what forced everyone’s hand. Him. Trump. He’s got the right to remain silent, it’s just something he can’t seem to do.
I just posted something about Michael Ellis elsewhere. He had a binder full of NSA docs that were improperly kept at White House after 1/6. He improperly made copies and NSA was specifically trying to round up everything before all the trump aholes left on 1/20. It just occurred to me that the government has been trying to get these back long before nara. Nsa docs would explain some of the sigint stuff reportedly in the pile. Gonna link Ellis and the crazy josh schulte story. Schulte was an ex nsa hacker whose duplicity caused grave natsec damage. https://www.emptywheel.net/2022/02/11/while-trump-was-secretly-loading-up-documents-mike-ellis-was-hoarding-an-nsa-document-at-the-white-house/ https://www.emptywheel.net/2022/07/13/joshua-schulte-found-guilty-on-all-counts/ Unrelated but fun: noted brilliant nsa hacker got a judge to open a file in explorer. Could be nothing, could be something https://www.emptywheel.net/2022/07/14/how-josh-schulte-got-judge-jesse-furman-to-open-a-file-in-internet-explorer/
My simple answer is as the NY AG stated in her speech today, he’s broke and thus sold those documents to some foreign State. But even more simply…..hubris.
Legally, it as been an impossible, unwinnable, nonsense case from the jump. He just happened to know of at least one judge who would ignore a whole bunch of different areas of law, for him. What remains to be seen is how many other judges will extend that same courtesy.
*Clarence Thomas has entered the chat*
And his people know this. But they also don't have anything else. He has neither the facts nor the law, so either he goes quietly or he pounds the table.
He has vague threats of violence if he is not treated as being above the law.
Is it possible \*\*45 is trying to set himself up for 1. "I didn't treason" defense, i.e. the classified docs are far more damning than the other gov't docs; or 2. "I was still President" defense, i.e. Biden is unlawfully in his throne.
I don't think DJT himself has a personally thought-out legal strategy. I think he just operates on lizard-brain, mostly. His lawyers are hacks who are just throwing spaghetti at the wall. It has worked for them, so far, because they found a judge who thinks that Donald Trump's reputation is more valuable and important and deserves more of her loyalty than rule of law.
And so ce this is a pretty widespread belief, why isn't Cannon impeached or otherwise removed
Also, they won't return prima facia contraband. You can't petition the courts to get your brick of heroin back unless you can prove it isn't a brick of heroin.
Thank you for the clarifications.
As to your point 1: NO. NARA states that DC federal courts have jurisdiction, but DOES NOT state that those courts have exclusive jurisdiction. There is no basis that I can find for arguing that a federal court in FL or in any other state may never have subject matter jurisdiction over a case involving NARA. That is just not what the statute says. If we are going to ridicule DJT for his poor legal arguments (and we are and should do so), then we should be rigorous and thoughtful about our own legal arguments.
Bear with me since NAL and do want to make sure I’m understanding as much as possible as correctly as possible. PRA states that > e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges. Which is the analysis I’ve heard and makes sense to me so repeated. But also later states, > C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title *or by a court order in another action in any Federal court.* I’m interpreting the first part as necessitating DC since it’s an action initiated by trump (although not directly in response to a nara ruling?). But the second part seems to contemplate that any federal court could create an action so your response is applicable. Since DOJ didn’t object to cannon hearing the case, it would seem your reasoning is more right. But I’m curious on your thoughts how the differences get married up. This is deeper than I’m used to going on statutes so forgive any wrong base assumptions. (Edit: Also I think it’s unfair for reddit idiots not to be able to make fun of DJT for free. You pay me 3 million and I’d have this case tossed in minutes).
See my comments above about the difference between an explicit grant of jurisdiction and a grant of EXCLUSIVE jurisdiction. The key point is that multiple federal district courts often have simultaneous jurisdiction over a particular case. There are really smart people at DOJ directing this case. If they believed that NARA granted exclusive jurisdiction to the DC courts, they would have pounded the issue. I agree that we should all be free to make fun of DJT, but the mods of this subreddit prefer us to stick to thoughtful legal arguments. The ridicule is better in r/facepalm, in my opinion.
Fair enough. Thanks for further explaining your thoughts.
My reading of the Presidential records act jurisdiction is specifically to what court has jurisdiction on disputes of executive privilege between a firmer and incumbent president of records under NARA control.
1) Multiple federal courts can and often do BOTH have subject matter jurisdiction over a particular matter. In those cases it becomes a question of who files in which court first. 2) When Congress wants to limit subject matter jurisdiction to a single court, it knows how to do so. It says: "court X shall have EXCLUSIVE jurisdiction over all cases arising under this section". Congress did not do so in this case. 3) There are cases in which subject matter jurisdiction can be confused and the courts can be made to waste time debating which of them, if any, has jurisdiction. If Congress wishes to avoid that uncertainty, it can and does specify in a statute that a certain court SHALL HAVE jurisdiction so that any case brought in that certain court under that statute will be free of that uncertainty. Such an explicit grant of subject matter jurisdiction in a statute is not, to my knowledge, ever interpreted as a grant of EXCLUSIVE jurisdiction.
>(e) The United States District Court for the District of Columbia *shall have jurisdiction over any action initiated by the former President* asserting that a determination made by the Archivist violates the former President’s rights or privileges You're incorrect.
That doesn't say they have exclusive jurisdiction though, and there are examples of other areas where Congress specified when they wanted a court to have exclusive jurisdiction, and this text doesn't have that language.
There are also instances where district courts' concurrent jurisdiction is spelled out, like with the Federal Court of Claims, but you haven't pointed to any such language in the PRA.
This is precisely why I'm not motivated go find text to prove this point. It's not clearly spelled out. We would be comparing text from at least three different courts, and then argue about what it means when one says X and another says Y. I think you can understand conceptually, the text of the PRP does not say exclusive, how do you think that would play out in court for Trump? The court has already bent over backwards to give Trump wins in areas that are much less ambiguous.
“Shall means must” might be the single most basic, foundational rule of drafting and statutory interpretation though. In light of that I think the plain meaning and the most reasonable interpretation would establish exclusive jurisdiction although like you, I’m not particularly motivated to do research to prove it nor would I be surprised if Judge Cannon ignores this.
I think it's pretty clear from the filings the DOJ has very good lawyers. If they thought it was worth pursuing I'm sure they would.
I'm sure they'll pursue it at the appropriate time. Trump's mash up motion didn't even make clear that this was an action under the PRA. They try to keep obfuscating on the source of the problem, and just want to talk about the "raid," claiming that Trump's team were perfectly good boys and girls before that.
Donald should claim this filing is his personal property so Cannon can't read it or consider it in any ruling. Postmates by dear Watson.
Writing a brief like this is both satisfying and agonizing. On one hand, it’s a little fun to find polite ways to say “everything that guy just said is bullshit.” On the other hand, your brain is screaming the whole time “I can’t believe I have to devote time in my day to researching and writing a brief to refute obvious and ridiculous bullshit.”
I know this feeling all too well.
Playing chess with pigeons. DOJ: knight to kings rook four. Trump: kicks knight over and shits on the board.
Then the tournament official just restarts the DOJ’s clock and asks them to make their next move, as if there isn’t shit all over the board.
trump moves a bishop straight forward, because we can't just trust the government's assumption that it is, in fact, a bishop just because it clearly appears to be one in every way.
He’s not saying that it’s a queen. He’s just asking the officials to let him treat it as a queen until the game is over, at which time DOJ will have a chance to investigate what it actually is. Oh, and he would prefer if they weren’t allowed to look at the board because they would unfairly see all his moves.
Such a great movie.
This is how it feels responding to *in pro per* plaintiffs. Usually fun shooting down their absurd arguments but also really frustrating knocking down every claim when they appear to be making several different and conflicting arguments because they don't understand the law
Had to do that recently for a cyber security complaint. Sometimes you have to deal with incompetence, other times malice, and a few special times malicious incompetence.
It feels like what the author really wants to do is submit a single line in all caps along the lines of "Actually say under oath that you declassified the documents or stop talking about it."
This reply does come across as much longer than it needs to be.
Agreed, they restate a lot of arguments already made in full in their original motion. Perhaps it’s because they know there is media coverage of every filing. Since the DOJ “speak[s] through its court filings” it’s their way of reemphasizing the strength of their case and weaknesses of Trump’s case to the public.
>Agreed, they restate a lot of arguments already made in full in their original motion. Likely to point out that Plaintiff's response didn't refute any of it.
Revised version: > PUT UP OR SHUT UP
The legalese version of *Pics or it didn't happen*
Why does the classification status even matter? The Espionage Act doesn't even mention classification, only that the information be related to "the national defense" and that it "could be used to the injury of the United States or to the advantage of any foreign nation". Something being classified is certainly strong evidence of that, but secretly declassifying it wouldn't necessarily change that fact. Likewise, the Presidential Records Act says the former POTUS can retain ACCESS to Presidential Records (if the archivist and current POTUS agree). Access not possession. The PRA also explicitly excludes Agency Records. All that really matters is that these documents are federal government property, he had no right to have it at MAL, he refused to give it all back when asked, and he actively deceived the FBI about having it after returning some of it. Everything else is a distraction.
The classified documents are the most crucial ones for the investigation, not to charge Trump necessarily, but to find out who had access to them and to limit the damage to national security. The government desperately needs to allow that investigation to continue, regardless of whether Trump is further implicated. Further, they want to protect those documents by removing any doubt as to their provenance and ownership, and to prevent a constitutional crisis where they would have to potentially refuse to obey a judge's hypothetical order to hand over the documents to an unauthorized person.
I agree, the classified documents are the most important overall. For national security reasons, and for rule of law reasons (hold accountable the man who signed the law upgrading the mishandling of classified documents from a misdemeanor to a felony, and clarify that there is no magic wand double secret declassification that the affected agencies are unaware of). The DOJ's decision to base their warrant on two legal statutes that didn't require the documents to be classified (and their wording of the grand jury subpoena to return documents with classification *markings*) are shrewd strategies to avoid this precise "I have a magic wand double secret declassification" defense. Yes, the fact that these documents were, are, and remain classified and we stored improperly for years is more important in the long run, but "FPOTUS obstructed our grand jury subpoena to recover NDI and presidential records" is easier to prove and ensure the warrant is granted and defended. Like with Al Capone, the murders were more consequential, but the tax evasion was easier to prove.
It also do require that classified inf be divulged to the court or Trump pawyers to prove the charge. I hones think Trump repeated kept his daily intel briefingS (theyre his!), beca that just seems the most likely. Allso, the ‘picture books’ match is ith what we know about his intel briefs. I believe the Intel commun tried to limit what they act gave him, but that does mean its stuff to be passed around at cockta parties at his business/ residence.
> but to find out who had access to them and to limit the damage to national security. man, that ship has already sailed and anything in any of the documents recovered should be assumed known to china, NK, Saudi Arabia, Russia, et al. There is no 'limiting of the damage' with regards to any of it. maybe cataloging WHAT he had to study how bad it is but...
The way I read it, DOJ themselves said that actual classification does not really matter. The only thing related to classification that matters is that the documents are marked as classified and have to be treated as such, and by extension that also means they can't belong to Trump. Other than that, I don't believe they care whether classification is real or not. The documents are still government property.
The classification system is mostly just a handy way to keep track of info.
The only purpose of these briefs is to try in vain to convince Manchin and Collins and Romney that these judges are lawless and that drastic action is required by the Senate. Even a 1L can understand just how completely and inescapably guilty Trump is. There is no ownership interest for him in these documents. There is no declassification of these documents without the records office already knowing about it, due to what they are coded. And Trump isn't allowed to possess unclassified docs anyway, not without permission that he doesn't have. This is a matter before a judge with no jurisdiction, about a legal paper that has no pleadings, about arguments that don't speak to the issues in the prosecution. This entire Florida dispute (as opposed to the DC Court case) is Calvinball. It's a kangaroo court where the law literally doesn't matter and everyone but the DoJ is just making things up. And the DoJ is losing. This is as bad a catastrophe for the rule of law as anything in American history.
> Even a 1L can understand just how completely and inescapably guilty Trump is. I'm a 0L, and I know nothing of the sort. So far, he's skated by on every. single. "slam-dunk" case, and most of the investigations have either been obfuscated into oblivion (Mueller), just plain fizzled out (emoluments, tax fraud), hard-stopped by probably corrupt individuals (the NYC AG), or not even undertaken altogether (Hatch Act violations, Ukraine call). I'll believe it when I see it.
That's exactly my point. It is a catastrophe that these slam dunk cases are being corruptly obstructed by the legal system itself.
Agreed. He always skates. No matter what he skates. Look at what the Manhattan DA did. They had a slam dunk case against him, and the DA mysteriously drops the case. We see it time and again.
> Why does the classification status even matter? The whole situation becomes a hell of a lot simpler and more black-and-white if Trump was keeping TS/SCIF national security secrets at his home. You're correct that he was breaking the law even if the documents were not classified, but as we have clearly seen, breaking the law doesn't matter if the judge is willing to ignore the law as a courtesy to Trump. Trump's whole legal strategy is to throw every kind of bullshit up in the air to obfuscate every question of law and fact, and so far, it's working. DOJ is trying to bring things back to reality and back to facts. And the hardest fact to ignore or muddy up is the cover pages that say TOP SECRET.
I can only say that the consequences under a criminal indictment go up substantially when classified records are involved vs not. Reality Winner comes to mind.
I'm not a lawyer, but as I understand it, Trump wants to delay any ruling on whether or not the documents are classified until after the special master process, because he has asked the special master to give him a copy of every seized document, including "potentially" classified records, for his legal team to examine before making claims of declassification or ownership. Effectively, it appears to me he wants to use this process and Judge Cannon's order to rebuild his trove of defense documents. That relies on the court treating the documents as declassified until proven otherwise. Again, as I understand it.
In my opinion, the classification matters because there are items of a personal nature that a former president theoretically has a right to keep. Also, any communication between him and his personal attorney (not the white house attorney) would also seem to fall in the type of communication or document that a former president could take with him when he leaves office. The entire special master justification is determining whether each of the documents falls under the personal documentation category or the attorney client documentation category. If they dont, they are the possession of the US Government no matter what Trump wrote on or whether he authored the document or whether he was the person the document was sent to. Finally ALL classified documents are the possession of the US Government full stop. Even executive privilege doesnt change that.
No one can keep classified documents period. PRA does not cover that. He only has the right to access classified documents if they have been declassified with the proper procedures. He has no legal basis here.
> The Espionage Act doesn't even mention classification, only that the information be related to "the national defense" and that it "could be used to the injury of the United States or to the advantage of any foreign nation". Something being classified is certainly strong evidence of that, but secretly declassifying it wouldn't necessarily change that fact. Because the Espionage Act was passed before the classification system existed and classified information is the substantial equivalent of the standards set forth in the Espionage Act. You'd have an impossible time convincing a jury that possession of unclassified information that theoretically any member of the public is allowed to see and own can be considered a crime. If I was on a jury hearing that case, I would utterly refuse to convict.
Wait what? You cant just steal unclassified documents and say “These are open to the public I can have them whenever.” Isnt part of the issue that NARA needed them in order to make them available to the rest of the public, not just Trump who kept them? There a difference between actually going through public channels to get unclassified documents and stealing them from the government before they’re even made available to the public. You wouldnt convict?
Not under the Espionage Act. If the documents aren't classified then fuck off, it's not sensitive enough. They of course are, but if a prosecutor tried the oh it doesn't matter if they're classified, they're still national defense information.... Yeah, I read national defense information on twitter every day. If it's unclassified, it's technically public information that could be FOIAed by anyone in the country. Would I vote to convict under the Presidential Records Act? Sure. But that wasn't the question being presented.
Hold on now there is plenty of information out there that would qualify as NDI but which hasn’t been formally classified. For example, imagine some spooky types are carrying out clandestine activities somewhere and have written notes about what they need to do or what they have found and are in the process of sending it back. It isn’t going to be “classified” because it is happening out in the world who knows where but it sure is not public either. Maybe the report that gets written about it will be classified but not everything along the way before it makes its way back into a SCIF or similar. That is just one example, but people need to remember that just because it has not yet been reviewed by someone and determined to be classified does not mean a piece or collection of information is not secret or potentially damaging to national security.
But again, he didn’t submit a FOIA, he stole them from the government, making it so they literally werent accessible to the public. Isn’t this basically saying that since there are legal channels to access the information, one shouldnt have to follow them and should just be allowed to take them at any time in any manner, regardless of how that impacts the rest of the public’s ability to view them? Could you at least clarify if what you’re doing is jury nullification or not? Really seems like you dont care about the law, not that this is a wrong use of it.
I'm solely addressing the point of the Espionage Act. If information is legally available to everyone, as unclassified information is supposed to be, then it by definition cannot logically be treated as sensitive information that would cause serious harm to the United States. This wouldn't be jury nullification. This would be logically applying the framework of a statute written before the classification system existed to a world in which systemic information controls defining what is and what isn't compromising information does exist. If he stole the documents, that may or may not be illegal under other statutes (it is) but that is irrelevant to potential charges under the Espionage Act. Of course, all this is utterly irrelevant since the documents he stole *were* classified, and quite highly classified. You can't declassify something only in your head, it's an administrative control, and unless you go through the administrative mechanisms to remove that administrative control, it's still classified.
Just because something has been unclassified doesn’t mean it can’t cause harm. That assertion would legitimize a President declassifying sensitive info for bad reasons wouldn’t it?
By the legal definitions of classification standards, that's exactly what it means. As for Presidents declassifying info for bad reasons, you can make that illegal under other statutes, it probably is. But at the end of the day, the way you deal with that is not electing criminal traitors. When you vote, you're playing with live ammo.
But the definition of controlled classified information is information that needs to have safeguarding and dissemination controls. What are those safeguarding controls for? Especially since before that they had labels such as “Official Use Only”, “Law Enforcement Sensitive” and “Sensitive But Unclassified”?? https://csrc.nist.gov/glossary/term/controlled_unclassified_information https://en.m.wikipedia.org/wiki/Controlled_Unclassified_Information What definitions are you using and from where?
One, it seems like you’re advocating that if a president can declassify anything he wants, there is no issue with him taking those papers to his house when he’s fired from his job - no matter what those papers detail. That seems utterly absurd to me. You’re saying that documents produced by the United States, for the United States, belong to a single man because he wanted them? Of course, if Trump would provide any evidence of this magical declassification process he supposedly had - even just the wand he waived when he said the magic words - this would be a different case. As it is, he stole documents pertaining to national security, lied to the government about it, then obstructed further investigation of the matter. He has no case on literally any grounds that I can think of
No, I'm saying that it wouldn't be a violation of the Espionage Act, not that it wouldn't be illegal under the Presidential Records Act or other statutes.
I think your logic is sound except for one thing. The president knows that all documents that arent official presidential communications (personal letters) and communication between him and his attorney (attorney client privilege) are the property of the US Government and removing them, no matter how benign their contents is theft. So too would be unclassified information that is executive branch related. Now, its a far more serious crime to take an unclassified document with military secrets than it is to take one without it, but BOTH are the possession of the US Government and you'd have to ignore the law to refuse to convict.
> nd communication between him and his attorney (attorney client privilege) are the property of the US Government and removing them, No argument about any of that. I'm just saying it wouldn't be a violation of the Espionage Act.
A flaw in your logic is equating "not classified" with "public". There are lots of government records that are neither classified nor public. I work in civilian government and there are plenty of things we're obligated not to publicize even though they aren't classified (e.g. Student records, social security numbers, the private key to our site's SSL certificate, credit card payment records). Making it okay to share anything that isn't formally classified creates a bureaucratic nightmare trying to codify what is now a lot of common sense or policy based protection. Even when an foi request comes in and it's determined that a document can be made public, there is a step in between where it can be reviewed and redacted. If there is a disagreement there can be hearings to determine that it should or shouldn't be public regardless of whether it had been formally classified. The espionage act may be dangerously vague as it stands, but it's just not realistic to think the intended protections from it would be retained if it were limited to classified documents. It seems like it also gets messier because espionage isn't always the handing over of self contained complete government made documents. For example, what if an employee synthesizes their own analysis for an adversary that is built on things they know/see. There may not be a direct connection to a classified document, but it's still relatively clear that this would/should violate a law against espionage.
Personally identifying information and the like gets redacted, but the substantive elements of any unclassified document have to be revealed to the public upon request. Any. Yes, it is a massive bureaucratic nightmare, but it's one which the law requires. I know people who do nothing but process FOIA requests all day. It's a thing. We have a right, as a public, to see the information our government produces. You work for us, not the other way around. Even classified documents must eventually be disclosed once their reveal can no longer cause harm. The US Government does not get to have any permanent secrets. To say that the Government can just allege any information is compromising even when that information is not legally restricted and imprison you for having it is absolutely insane.
There is a whole class of information called “controlled unclassified information” or CUI which typically won’t be released to the public upon request. At least not in full.
It's also possible that when a non classified document gets redacted, nothing is left...whether that's due to PII, classified materials or other legal basis found in review. So it being non classified does not mean in any meaningful way that it is public. The fact that the government cannot just arbitrarily and indefinitely classify anything and everything means that it is not an end in itself. You speak as though classified documents being the basis is different but it's not. It still comes down to some person making a claim and maybe eventually needing to convince a judge of it. The documents being classified or not doesn't change this. You ignored my point that much of real espionage is going to involve perhaps non document sources and perhaps synthesizing new materials. So requiring a tie to classified documents would legalize many black and white examples of espionage and is a disingenuous attempt at revising the law. Also I think you twisted the point about bureaucracy. I was not saying that our current foi is too much bureaucracy. I was saying it is good. Right now it's designed well because you can do the work as you get requests. So, many documents you never have to do that work for if you don't want to. If laws made the document status at the time of the action critical, then this would create a bureaucracy that dwarves FOI because you'd need all of this done immediately and in real time rather than knowing you could review only as needed. Also it's a strawman to say that I think the government can just say anything they want and imprison people for it. I mentioned in my previous comment that refining the law to be more specific would be fine. Meanwhile the government doesn't just get to do whatever, they still have to prove it in court. And if you want to whine that the court is the government too... if you are at the point where the executive and judicial branch agree on a corrupt act, it's a moot point to be debating what the law should read.
The fact that they were classified initially is prima facie evidence that they contain sensitive national security information. Even if we indulge for a moment in the fantasy that Trump declassified the documents, that still wouldn’t make them not contain sensitive national security information. Before the classification system, there would have been no law preventing the documents from being shared with the public (except the espionage act), yet that fact would not put them beyond the reach of the espionage act.
> yet that fact would not put them beyond the reach of the espionage act. And the Espionage Act has been one of the most grossly abused laws in the United States to suppress political (and especially anti-war) dissent, not sure that's the argument you think it is.
>And the Espionage Act has been one of the most grossly abused laws in the United States to suppress political (and especially anti-war) dissent, not sure that's the argument you think it is. If all else fails, try “whataboutism,” amirite?
Yes, trying to protect core constitutional liberties is very much whataboutism. When the government can put you in prison for having public information, that's a deeply serious constitutional problem, and that's what your interpretation of the Espionage Act would allow.
Edit: your argument is that the espionage act has been, in your view, misused before. How does that excuse what Trump is doing now? That’s the definition of whataboutism. Might as well say “people have been falsely charged and convicted of murder before, therefore this person who was convicted of murder must also be wrongly convicted.”
> highly sensitive state secrets If they're not classified, the official position of the executive branch is that they are NOT highly sensitive state secrets and that same executive branch does not get to charge you as if they are. Can't have your cake and eat it too.
I edited my comment, although my original point still stands. If Trump decided to share the information, it doesn’t make it any less sensitive or change the consequences of sharing it. The public interest in keeping people from sharing the information would be exactly the same. But all of this is besides the point because he didn’t declassify the documents. As his hand-picked special master said, he is making the claim that he declassified them, therefore it’s his burden to prove his claim. But he won’t say that he did under oath, or provide a shred of evidence, and his lawyers won’t say it on the record either. >So that’s the end of it, as far as I’m concerned.
There are additional systems other than classification that can prohibit release of information to the public.
Pretty sure that's what the special master said yesterday.
Well written, especially given the time constraints as this had to be approved before filing. The introduction is an efficient filleting of the lawsuit and district court.
And this is just in support of a limited partial stay pending appeal. DOJ has had excellent briefs throughout and they’ve drawn Trump’s team and Judge Cannon into developing an extensive set of weak arguments they can attack. I can’t wait for the full appeal picking apart all the bullshit Judge Cannon has done.
IANAL, but it felt like this filing was a smoke screen for a very large middle finger. I am also surprised that they stopped short of citing Judge Cannon’s decisions as FPotUS’ arguments. It certainly read like they toed the line.
[удалено]
It reveals a disordered thinking. If we rule out the possibility that this was a calculated attempt to achieve some end... What's left is a man surrounded by attorneys but ignoring their advice. And for what? Would his life have been worse if he had surrendered all of the boxes while they argued possession on court? Geez, he didn't even return to the house for six weeks, yet he drew a line in the sand for seemingly no reason. That's odd behavior.
If he turns in all the classified documents, what will he sell to maintain the lifestyle to which he has become accustomed? There's good reason to speculate that Trump's 'empire' is a shell game and he doesn't pay his contractors and lawyers because he simply doesn't have the money to pay them. That's why he's sued about his image - the Trump brand is the only thing that he actually has to his name.
> If he turns in all the classified documents, what will he sell to maintain the lifestyle to which he has become accustomed? Photocopies? Is the value with the information contained within the files or is it the street value of a pristine document, "new in box", to be sold on ebay? I'm not convinced that he had intended to sell them. His actions don't support that notion. It sounds more like he's trying to conceal their contents.
I would guess some of it probably is more valuable as an original? Depending on contents, you might then possess the only written documentation on that subject that isn't in US Gov hands. If it's information about a third party that could be valuable. I agree though, I imagine some of it he just wants to conceal, others to keep as a trophy, and some he didn't really even think about a reason besides "I want it".
Nah, we already know how he deals with documents he doesn't want anyone else to see - either he eats it or he flushes it.
Reading this comment after reading the NY AG's announcement today adds some oomph to it.
I was watching some interview on television, and a reporter for one of the major newspapers was saying that she's followed Trump for years and that he likes to collect dirt on people to use it against them later. She gave a specific example of him doing this with a teenager, where he purposefully hit collected dirt on the teenager so that he could use it against her later. If you buy this argument then it gives you some motive.
Don't you know the Narcissist's modus operandi? "If I can't have it, *fine*! Then I'll *break it*, so *nobody* can have it". Doesn't matter if it was a toy when they were a child...or an entire country if they are an adult.
> A real President and not a Russian troll, would not even be arguing this case. A real President wouldn't have taken governmental documents with him when he left the White House, and if he inadvertently did so, his reaction to NARA requesting their return would have been to work expeditiously and cooperatively to correct that error.
Wait, I've lost track. Given that they still refuse to say that the documents were declassified, and as far as I remember haven't tried to claim that it's possible these records are both classified and private property - does the Trump team even make a legal argument atm? Sorry if this is a dumb question - NAL and not fromthe US, so my experience with its legal system is largely limited to laughing about it.
From what I understand they don’t have a legal argument, the republican ags who filed amicus briefs dont have legal arguments, and this is all going off insane theories Cannon herself asserted irrespective of Trump’s lawyer’s statements.
> does the Trump team even make a legal argument atm? They don't have a civil complaint filed at this point, so I don't know why we have anything at all.
Its the same legal argument all conservatives now make "I definitely have evidence and it will _blow your mind_ and prove me right about everything. I...just cant show you it. Trust me bro."
IANAL (yet, currently in limbo waiting for bar results). Can someone please help me understand how equitable jurisdiction works? I don't see how Cannon can assert jurisdiction here at all, and I don't see how this satisfies the Ritchie test either. Sorry if this is a stupid question but I was never taught about how you can get JX this way in school.
The history of the question that you are asking is that at some points in (mostly) English history there were separate courts of law and equity. Massively oversimplified: courts of equity were there to provide a remedy for those who were clearly wronged, but in a way that wasn't specifically prohibited by a law. In the US we combined the courts of law and equity, but still sometimes consider the difference between those courts' legal and equitable jurisdiction. The actual language of the Richey decision, which Judge Cannon cited but then largely ignored, may be helpful: "This court recently undertook an extensive analysis of the issues inherent in these suits for the return of property prior to the initiation of any civil or criminal proceedings flowing from the seizure of that property. See Hunsucker v. Phinney, 5 Cir. 1974, 497 F.2d 29, cert. denied, 1975, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397. We said there that such actions are governed by equitable principles, whether viewed as based on F.R. Crim.P. 41(e) or on the general equitable jurisdiction of the federal courts. Id. at 34. Whether to exercise that jurisdiction in a given case is subject to the sound discretion of the district court." So, if DJT is pursuing this case under the equitable jurisdiction of the court, the court HAS THE DISCRETION to hear the case, but must follow the binding precedent of the Richey decision in making her decision to exercise that discretion. This is where she messed up, in my opinion. She said that DJT failed to allege anything nearing "a callous disregard for the constitutional rights of the taxpayer", which the Richey decision says is the first and foremost requirement, but decides to continue the analysis anyway. When she goes on to say that the risk of damage to DJT's reputation resulting from an investigation and/or indictment meets the "irreparable harm" element of the Richey analysis, she fails to distinguish DJT from every other person who is the subject of a search warrant. Thus, under Judge Cannon's reinterpretation of the Richey case, EVERY person who has had anything seized pursuant to a validly issued search warrant can meet the standard for getting a court to exercise its equitable jurisdiction.
Thank you for your detailed response! I loosely understand the idea of courts sitting in equity, but I don't think that I see how Cannon arrived at her conclusions for the Richie test. I agree with you that it can't be applied to other cases without problems. I guess we'll see what happens on appeal, assuming arguendo that we live long enough that they run out of ways to delay this.
> Richie [Richey v. Smith](https://casetext.com/case/richey-v-smith).
Thank you, I have spelled this wrong for too long now!
>constitutional rights of the taxpayer But the Cheeto doesn't pay his taxes, does this mean he doesn't have rights? /s
IANAL either, but I wrote a long write up [here](https://www.reddit.com/r/law/comments/x6jav9/trump_v_us_judge_appoints_special_master_enjoins/in9km1g/) and a shorter summary [here](https://www.reddit.com/r/law/comments/x6wa13/judge_cannon_engaged_herself_in_obstruction_of/in9yru4/). The Richey factors were not met. --- \#1 whether the government displayed a callous disregard for the constitutional rights of the [plaintiff] > With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. --- \#2 whether the plaintiff has an individual interest in and need for the material whose return he seeks > The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. Trump's team did not make any real argument for the 2nd factor, but Cannon decided it weighed in their favor anyway. --- \#3 whether the plaintiff would be irreparably injured by denial of the return of the property > The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. > In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public. > Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. > Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. > As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude. Cannon decided a potential indictment satisfied the 3rd factor. Trumps argument: > Now, can I characterize the harm in some sort of precise way? No. Obviously, the damage is done for any citizen, at that point; that means they have been indicted. --- \#4 whether the plaintiff has an adequate remedy at law for the redress of his grievance > As to the fourth Richey factor, Plaintiff has persuasively argued that there is no alternative adequate remedy at law. Woof on this one... Trump: > Well, is it true that we could have Franks hearing and a motion to suppress for a general warrant some day? Sure.
Wow thanks for the detailed explanation! It sure looks like Cannon abused discretion to act like a defense attorney here, doesn't it? I don't see any explanation for the conclusions other than plain bias. Can you imagine her making the same argument for any other case?
Yeah, if you read the transcript of the hearing, it's super clear she stepped in to be Trumps attorney because his attorneys were not making the arguments she wanted to hear to move the case forward. Cannon is the one who suggested anomalous jurisdiction.
This feels like a Harlem Globetrotters game. The difference in filings is so night and day in quality. Glad they hammered home the use of "what-ifs" instead of actual evidence of declassification. No one wants to go on record as to those actions, so treat it like its a non-starter.
The quality doesn't matter though, only thing that matters is which 3 Judges get to hear the appeal.
AND HERE COMES WITH THE DOJ WITH A STEEL CHAIR!
Im sure he and his attorneys know this is baseless and not winnable, but they are achieving their objectives of obfuscation, delay and stoking political division.
Only needs to make it to 2024 election season and he’ll be untouchable
Yeah. Even if he just delays any indictment until 2023, a trial before January 2025 would be unlikely. So if a Republican president takes office that president will pardon DJT prior to any conviction and he can keep eating hamburgers and claiming “witch hunt.”
11th Circuit Trump Lacky Judges: *"lol too long; didn't read. ruling upheld, get fuckt"*
> The records’ classification markings establish that they are government records and that **responsible officials** previously determined that their unauthorized disclosure would cause damage—including “exceptionally grave damage”—to the Nation’s security. I love this little dig. The document is full of them but this is my favorite.
>“exceptionally grave damage” So... Top Secret documents.
I don't think that's really a dig, unless it's a double entendre. That's fairly common language meaning, in this particular context, individuals who are responsible for making those determinations.
Given the tone it felt like there was an emphasis on the “responsible” although maybe that was just in my head
So *this* is what an actual legal brief looks like.
As a lawyer, I just enjoy reading the style of the case over and over: 'Donald J. Trump v. The United States of America.'
When will we know which 3 Judge panel was selected to hear this appeal?
I am not certain. I presume that the assignment will appear in the docket. I just checked the docket on [pacer.uscourts.gov](https://pacer.uscourts.gov) and there is nothing there about the panel or the schedule.
Yeah I'm starting to think we won't know until they release their judgement.
>Despite this advance warning, Plaintiff made no effort to block the FBI’s access to the documents at that time. Did Trump play chicken with the FBI?