Newspaper & online reporters and analysts explore the cultural and news stories of the week, with photos frequently added by Esco20, and reveal their significance (with a slant towards Esco 20's opinions)
Showing posts with label TRUMP DOCUMENTS. Show all posts
Showing posts with label TRUMP DOCUMENTS. Show all posts
Yesterday the Department of Justice (DOJ) filed a motion to request a partial stay of Judge Aileen Cannon’s order last week, the one that said the DOJ couldn’t use the items the FBI seized when they searched the Trump property at Mar-a-Lago on August 8.
In her Civil Discourse newsletter, law professor, host of the Sisters In Law podcast, and former U.S. attorney Joyce White Vance explained that the DOJ has asked for that order to be stayed as far as it concerns the classified records. That request is separate from an appeal of the order itself to the Eleventh Circuit Court of Appeals, which the DOJ has indicated it will undertake. With the motion it filed yesterday, the DOJ wants the court to hold off on enforcing the judge’s order that the government can’t review and use the materials seized “for criminal investigative purposes,” and the part that says the government must turn the records over to a special master.
The DOJ pointed out that the intelligence community’s assessment of the damage done to our national security is tied together with the ongoing criminal investigation. Because the FBI is central to both, the judge’s order has shut down the national security review, which is vitally important to the country.
“In plain English,” Vance writes, “DOJ is asking how the guy who took the classified nuclear secrets he wasn’t entitled to have is harmed if law enforcement gets to look at those materials to protect our national security.”
The judge has given Trump’s lawyers until Monday to respond.
Today, on the federal holiday of Labor Day, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida granted former president Trump’s request for a special master to review the nearly 11,000 documents FBI agents seized in their search of the Trump Organization’s property at Mar-a-Lago on August 8.
The special master will examine the documents, some of which have the highest classification markings, to remove personal items or those covered by attorney-client privilege or those that might be covered by executive privilege (although President Joe Biden, who holds the presidency and thus should be able to determine that privilege, has waived it). The order temporarily stops the Department of Justice from reviewing or using the materials as part of their investigation into Trump’s mishandling of classified information.
That is, a Trump-appointed judge, confirmed by the Senate on November 13, 2020, after Trump had lost the election, has stepped between the Department of Justice and the former president in the investigation of classified documents stolen from the government.
Legal analysts appear to be appalled by the poor quality of the opinion. Former U.S. acting solicitor general Neal Katyal called it “so bad it’s hard to know where to begin.” Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was “an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.” Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was “a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.” Duke University law professor Samuel Buell added: “To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged.”
The judge justified her decision because she was “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”
Energy and politics reporter David Roberts of Volts pointed out that this is a common pattern for MAGA Republicans. First, they spread lies and conspiracy theories, then they act based on the “appearance” that something is shady. “So this… judge says Trump deserves extraordinary, unprecedented latitude because of the ‘extraordinary circumstances’ and the ‘swirling questions about bias.’ But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop,” and one the right wing has perfected over “voter fraud.”
As political scientist Brendan Nyhan points out, bad-faith attacks on our democratic processes open the door for changing those processes.
Something else jumps out about the judge’s construction, though: it makes MAGA Republicans the only ones whose sentiments matter. This is the same construction President Andrew Johnson used to justify his plan to end Reconstruction and remove troops from the South in December 1865. He told Congress that using the army to protect new governments there “would have divided the people into the vanquishers and the vanquished, and would have envenomed hatred rather than restored affection.” Missing from Johnson’s equation were the four million Black southerners who, in fact, welcomed the injection of the weight of the federal government into the former Confederate states.
The idea that Cannon felt obliged to reassure MAGA Republicans that Trump is being treated fairly, rather than the rest of us that the rule of law is being protected, redefines the American public and American principles.
The neutrality of the law is central to democracy. But it is increasingly under question as Republican-appointed judges make decisions that disregard settled law, and Cannon’s decision will not help. She actually singles out Trump as having a different relationship to the law than the rest of us in a number of ways, but especially when she expresses concern over how his reputation could be hurt by an indictment: “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.”
This attack on the rule of law—the idea that the laws apply to everyone equally—has been underway since the administration of Ronald Reagan, when Attorney General Edwin Meese set out to, as he said, “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.” Contrary to established procedures at the Department of Justice, Reagan appointees began to quiz candidates for judgeships about their views on abortion and affirmative action, to tilt the direction in which the courts would rule.
The 1982 establishment of the Federalist Society, made up of lawyers determined to roll back the legal decisions of the post–World War II era, made it easier to tilt the courts. Those lawyers stood against what they called “judicial activism,” decisions that justified the expansion of a federal government that regulated business, provided a basic social safety net, protected civil rights, and promoted infrastructure.
As Republican policies grew less popular, party leaders focused not on adjusting their policies, but on filling judgeships with judges who would rule in their favor in lawsuits. This focus was so strong by the time of Trump’s predecessor, President Barack Obama, that then–Senate majority leader Mitch McConnell (R-KY) stalled confirmations for Obama’s nominees, banking on leaving vacancies for a new president to fill. Most dramatically, of course, he refused to permit a hearing for Obama’s nominee for a Supreme Court seat in March 2016, inventing a new rule that that date was too close to the upcoming November election to allow the nomination to proceed.
This left the seat free for Trump to appoint Neil Gorsuch, who could not make it through the Senate until McConnell used the so-called “nuclear option” to get rid of the filibuster for Supreme Court appointments, which enabled him to squeak through with just 51 votes.
Trump and McConnell—who was known for saying, “Leave no vacancy behind”—made reshaping the federal judiciary their top priority. McConnell approved the new judges with vigor, keeping the Senate confirming them during the pandemic, for example, even when all other business stopped. And he continued to push through appointments—like that of Judge Cannon—even after Trump lost the election.
Philosopher Jason Stanley of Yale University, best known for his 2018 book How Fascism Works, tweeted today: “Once you have the courts you can pretty much do whatever you want.”
Cannon’s decision addresses only the criminal investigation of the former president by the Department of Justice, and it is not clear how much of a delay it will create. While that is on hold, at least temporarily, the intelligence assessment by the Office of the Director of National Intelligence will proceed without check. It is still unclear what documents are missing, and who has had unauthorized access to the information Trump took.
This breach of our national security has the potential to be catastrophic.
Trump certainly appears to think the game is not yet over. Once again today, he attacked the FBI and the DOJ and demanded the results of the 2020 election be overturned.
In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
August 26, 2022
Release of affidavit in FBI search of Trump's Mar-a-Lago estate
The Department of Justice (DOJ) today released the redacted affidavit that persuaded a judge to agree to issue a search warrant for FBI agents to look for classified documents at Mar-a-Lago, the property owned by the Trump Organization in Florida.
It was bad.
The affidavit explained to the judge the history behind the FBI’s request. On February 9, 2022, the National Archives and Records Administration told the DOJ that after seven months of negotiations, on January 18 it had received 15 boxes of material that former president Trump had held at Mar-a-Lago. Those boxes contained “highly classified documents,” including some at the very most secret level of our intelligence: those involving our spies and informants.
In those initial 15 boxes, FBI personnel found 184 classified documents. Sixty-seven were labeled CONFIDENTIAL, 92 were SECRET, 25 were TOP SECRET. Some were marked SCS, FISA, ORCON, NOFORN, and SI, the very highest levels of security, involving human intelligence, foreign surveillance, intelligence that cannot be shared with foreign governments, and intelligence that is compartmented to make sure no one has full knowledge of what is in it. The former president had made notes on “several” of the documents.
On June 8, 2022, a DOJ lawyer wrote to Trump’s lawyer to reiterate that Mar-a-Lago was not authorized to store classified information, and warned that the documents were not being handled properly. The DOJ lawyer asked that the material be secured in a single room at Mar-a-Lago “in their current condition until further notice.”
Trump’s lawyers told the DOJ that presidents have the absolute authority to declassify documents—this is not true, by the way—but did not assert he had done so.
The FBI opened a criminal investigation “to, among other things,” figure out how the classified records were taken from the White House and ended up at Mar-a-Lago, and to determine if other classified records might have been improperly taken and stored, and to figure out who might have taken and mishandled them.
They concluded that there was good reason to think that more classified records remained at Mar-a-Lago and that investigators would find evidence that Trump and his allies were obstructing the government’s effort to recover the material. The person who made the affidavit said they were a special agent with the FBI, “familiar with efforts used to unlawfully collect, retain, and disseminate sensitive government information, including classified N[ational] D[efense] I[nformation].” They swore that “there is probable cause to believe” that locations at Mar-a-Lago “contain evidence, contraband, fruits of crime, or other items illegally possessed.”
The affidavit confirmed that the Department of Justice is “conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records,” and asked for the affidavit to be sealed because “the items and information to be seized are relevant to an ongoing investigation and the FBI has not yet identified all potential criminal confederates nor located all evidence related to its investigation.”
Sidestepping Trump’s insistence that he could declassify whatever he wished when president, the affidavit specifies that the documents could cause damage even if they are not classified, and it notes that retaining “information related to the national defense” is illegal.
The information that Trump stole classified documents itself was eye-popping, and then that he refused to return them was astonishing. Now, the knowledge of the extent of it, and that it included information from our human sources, is stunning.
AND THIS WAS JUST THE AFFIDAVIT TO GET A SEARCH WARRANT TO GET MORE RETAINED DOCUMENTS… which the FBI did on August 8.
We still don’t know what was in those more recently recovered boxes.
We have to wonder, who else now knows the secrets designed to keep Americans safe? Multiple news stories during Trump’s presidency noted that even then, Mar-a-Lago was notoriously insecure. And, unthinkable though it should be but sadly is not, what if secret documents have already been given or sold into the hands of foreign actors whose interests conflict with ours?
Trump complains about redactions — and attacks the judge
“WE GAVE THEM MUCH,” Trump wrote before attacking the federal judge who approved the warrant.
“Judge Bruce Reinhart should NEVER have allowed the Break-In of my home,” Trump added. “He recused himself two months ago from one of my cases based on his animosity and hatred of your favorite President, me. What changed? Why hasn’t he recused himself on this case? Obama must be very proud of him right now!”
The former president and his lawyers never formally requested Reinhart recuse himself from the case, and Trump and his team did not participate in legal arguments over the affidavit’s release.
Trump has claimed without evidence that the investigation is a politically motivated “weaponization” of the Justice Department. He’s also suggested that the FBI planted evidence and insisted that he had a “standing order” to declassify documents that were brought to his residence from the Oval Office.
A court motion submitted by Donald Trump’s legal team Monday concerning the FBI raid on his Florida resort to recover unlawfully retained official government documents may have inadvertently implied an admission of guilt. This raises the question of what, exactly, the former president may have been planning to do with those documents.
Trump’s lawyers argue some of the documents recovered by the FBI could be protected by executive privilege. However, such a case would confirm that he did indeed collect classified information that he was not authorized to keep following the end of his presidential term. This has invited speculation as to Trump’s overall intentions.
“I can’t help but think about and ask the question, why did he want these documents? What’s the purpose?” Eddie Glaude Jr., Princeton University professor, said on MSNBC’s “Morning Joe” Wednesday morning. “Aren’t we worried that he would monetize this? He’s an expert-level grifter. The danger here is out of bounds, it seems to me.”
The Guardian’s Hugo Lowell then added to Glaude’s comments by noting that Trump was “very secretive about his packing” when leaving the White House. The former president reportedly sifted through documents personally to decide what to take with him to Mar-a-Lago. He also reportedly screened which documents should go back to the National Archives and which he wanted to keep after the FBI became involved.
Some of the “Morning Joe” guests speculated as to what Trump might do with these classified documents.
“Given his nature, given his history, given his lack of character, you can’t help but think that he would look at a document and wonder, ‘I wonder how much they’d pay to know this in Riyadh,” columnist Mike Barnicle said.
August 22, 2022
The Final Days of the Trump White House: Chaos and Scattered Papers
Maggie Haberman, Katie Benner and Glenn Thrush
In this article:
Donald Trump
45th President of the United States
Donald Trump holds a rally at the county fairgrounds in Waukesha, Wis. on Aug. 5, 2022. (Jamie Kelter Davis/The New York Times)
Four days before the end of the Trump presidency, a White House aide peered into the Oval Office and was startled, if not exactly surprised, to see all of the president’s personal photos still arrayed behind the Resolute Desk as if nothing had changed — guaranteeing that the final hours would be a frantic dash mirroring the prior four years.
In the area known as the outer Oval Office, boxes had been brought in to pack up desks used by President Donald Trump’s assistant and personal aides. But documents were strewed about, and the boxes stood nearly empty. The table in Trump’s private dining room off the Oval Office was stacked high with papers until the end, as it had been for his entire term.
Upstairs in the White House residence, there were, however, a few signs that Trump had finally realized his time was up. Papers he had accumulated in his last several months in office had been dropped into boxes, roughly two dozen of them, and not sent to the National Archives. Aides had even retrieved letters from North Korean leader Kim Jong Un and given them to Trump in the final weeks, according to notes described to The New York Times.
Where all of that material ended up is not clear. What is plain, though, is that Trump’s haphazard handling of government documents — a chronic problem — contributed to the chaos he created after he refused to accept his loss in November 2020, unleashed a mob on Congress and set the stage for his second impeachment. His unwillingness to let go of power, including refusing to return government documents collected while he was in office, has led to a potentially damaging, and entirely avoidable, legal battle that threatens to engulf the former president and some of his aides.
Although the White House counsel’s office had told Mark Meadows, Trump’s last chief of staff, that the roughly two dozen boxes’ worth of material in the residence needed to be turned over to the archives, at least some of those boxes, including those with the Kim letters and some documents marked highly classified, were shipped to Florida. There they were stored at various points over the past 19 months in different locations inside Mar-a-Lago, Trump’s members-only club, home and office, according to several people briefed on the events.
Those actions, along with Trump’s protracted refusal to return the documents in Florida to the National Archives, prompted the Justice Department to review the matter early this year. This month, prosecutors obtained a warrant to search Mar-a-Lago for remaining materials, including some related to sensitive national security matters. The investigation is active and expanding, according to recent court filings, as prosecutors look into potentially serious violations of the Espionage Act and obstruction of justice.
Many questions about the mishandling of the documents lead to Trump, who often treated the presidency as a private business. But people in his orbit also highlight the role of Meadows, who oversaw what there was of a presidential transition. Meadows assured aides that the harried packing up of the White House would follow requirements about the preservation of documents, and he said he would make efforts to ensure that the administration complied with the Presidential Records Act, according to people familiar with those conversations.
But as the clock ticked down, Trump focused on pushing through last-minute pardons and largely ignored the transition he had tried to forestall.
A spokesperson for Trump did not respond to a request for comment. Trump has denounced the FBI search of Mar-a-Lago as a “witch hunt.” His office has said he had a “standing order” that materials removed from the Oval Office and taken to the White House residence were deemed to be declassified the moment he removed them, although none of the three potential crimes cited in the FBI search warrant depend on whether removed documents are classified.
A lawyer for Meadows declined to comment.
Flouting Records Rules
In his final speech as president, Trump declared, “We were not a regular administration.”
His statement was indisputably accurate. From his first hours in office, Trump had always taken a proprietary view of the presidency, describing government documents and other property — even his staff — as his own personal possessions. “They’re mine” is how he often put it, former aides said.
But that was not the case. Under the Presidential Records Act, the law that strictly governs the handling of records generated in the Oval Office, every document belonged to taxpayers. Whether the materials were national security briefings, reams of unclassified documents automatically uploaded to a secure server in Pennsylvania or notes that Trump routinely ripped up or flushed down the toilet — all were government property to be assessed and, in most cases, transferred as part of the nation’s history to the National Archives.
Trump’s lawyers and aides were well versed in the records act, even if Trump routinely flouted it. Donald McGahn, Trump’s first White House counsel, instituted a protocol for the proper handling of materials and gave presentations on the law to staff members, former officials said. After the 2020 election, White House officials held conversations about the fact that someone needed to retrieve documents that Trump had accumulated in the residence over many months, according to former officials.
By the end of the administration, White House counsel Pat Cipollone and his deputy, Patrick Philbin, were keenly aware that Trump’s handling of documents was a potential problem, according to people in their orbit.
But it is unclear how much bandwidth either man had to deal with the issue. Trump was on contentious terms with Cipollone after the election, and often berated the lawyer for objecting to his attempts to subvert Joe Biden’s victory, according to former officials.
Adding to the disarray was the absence of White House staff secretary Derek Lyons, who managed paperwork inside the executive complex but had stepped down Dec. 18, 2020. That left Meadows, a former House member with no significant executive experience before joining Trump’s staff, responsible for overseeing a transition process the president wanted no part of.
Meadows’ immediate predecessors in that role — President Barack Obama’s last chief of staff, Denis McDonough, and President George W. Bush’s final chief of staff, Joshua Bolten — had created teams to scrub West Wing offices of anything that belonged to the archives and made the stewardship of government records a priority.
It is unclear whether Meadows took the same measures, former aides said. But in the administration’s final weeks, the White House emailed all of its offices detailed instructions about returning documents and cleaning out their spaces. Meadows followed up on those notes and encouraged offices to comply, according to a person familiar with those conversations.
Meadows also assured White House staff members that he would talk to Trump about securing records, including ones stashed in the residence, according to two people with knowledge of the situation.
Regardless of whether Meadows followed through on those promises, by early 2021, after Trump had left the White House, officials with the archives realized they were missing significant material.
They reached out to, among others, Scott Gast, who had been a lawyer in the White House counsel’s office under Trump, and Philbin. The two men, along with Meadows and four other Trump officials, had been appointed by Trump on his last full day in office to work with the National Archives.
The archivists were particularly insistent about getting back the missing correspondence from the North Korean leader and a letter left on the Resolute Desk for Trump by Obama, both of significant historical value.
Archives officials also asked Gast and Philbin about the roughly two dozen boxes that had been in the residence during the Trump administration’s final days. Philbin responded that he would work to get them in the hands of the archives and reached out to Meadows, who said he would help make it happen, according to former officials.
But archives officials did not get what they wanted until they traveled to Mar-a-Lago and retrieved 15 boxes of material this past January. Subsequently, archives officials told Trump’s team that they had identified social media records that had not been preserved, and that they had learned White House staff members had not preserved official business they had conducted on their personal electronic messaging accounts.
They referred the matter to the Justice Department. In the spring, Philbin and Gast were questioned by the FBI about the boxes; Cipollone was also interviewed at some point. A grand jury was formed.
In June, one of Trump’s lawyers signed a statement asserting that all relevant documents with classified markings from the boxes that had been requested — by then they were stored in a basement area at Mar-a-Lago — had been returned. The Justice Department would later file a detailed affidavit to a federal judge in Florida, revealing that the department believed possible crimes had been committed, precipitating the search Aug. 8 at the club.
Declassifying FBI Materials
One of the few robust discussions about government documents at the end of the Trump administration focused on Crossfire Hurricane, the FBI investigation into whether the Trump campaign conspired with Russian officials. While that inquiry, which began in 2016, did not ultimately accuse Trump of criminal behavior, he remained obsessed with it throughout his term.
In Trump’s last weeks in office, Meadows, with the president’s blessing, prodded federal law enforcement agencies to declassify a binder of Crossfire Hurricane materials that included unreleased information about the FBI’s investigative steps and text messages between two former top FBI officials, Peter Strzok and Lisa Page, who had sharply criticized Trump in their private communications during the 2016 election.
The FBI worried that releasing more information could compromise the bureau, according to people familiar with the debate. Meadows dismissed those arguments, saying that Trump wanted the information declassified and disseminated, they said.
Three days before Trump’s last day in office, the White House and the FBI settled on a set of redactions, and Trump declassified the rest of the binder. Meadows intended to give the binder to at least one conservative journalist, according to multiple people familiar with his plan. But he reversed course after Justice Department officials pointed out that disseminating the messages between Strzok and Page could run afoul of privacy law, opening officials up to suits.
None of those documents, or any other materials pertaining to the Russia investigation, were believed to be in the cache of documents recovered by the FBI during the search of Mar-a-Lago, according to a person with knowledge of the situation.
Trump’s final hours in office were in large part consumed by pardons. On the evening of Jan. 19, 2021, he pardoned Steve Bannon, his former chief strategist who had been indicted by federal prosecutors in New York for defrauding Trump’s supporters.
The next morning, during his last minutes in office, he pardoned Al Pirro, the former husband of Fox News host Jeanine Pirro, who in 2000 had been convicted of tax evasion and conspiracy and sentenced to 29 months in prison.
Amid the pardons, many or all of the boxes in Trump’s residence were shipped off — it is not clear precisely when or by what means — to Mar-a-Lago.
If Trump or Meadows needed a paradigm for the appropriate handling of government documents, they needed to look no further than Vice President Mike Pence’s office.
Two of Pence’s senior aides — Marc Short, his chief of staff, and Greg Jacob, his counsel — oversaw the indexing and boxing up of all of his government papers, according to three former officials with knowledge of the work.
Their goal: ensuring that Pence left office without a single paper that did not belong to him, one of the officials said.
