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Are you wondering what’s shaking with that whole Mar-a-Lago raid thing? Jonesing for your lawsplainer fix? Your Wonkette is here to help!
When last we left these assholes, the government had filed notice of its intent to appeal Judge Aileen Cannon’s order appointing a Special Master to sort through the items seized during the execution of a search warrant at Mar-a-Lago on August 8, including upwards of 100 documents marked “classified.” The Special Master was empowered to filter out not just records covered by attorney client privilege, but also those over which Trump might potentially claim executive privilege. Judge Cannon also told prosecutors to stop using the seized records as part of their criminal investigation, although she allowed the damage assessment of the loss of classified documents being led by the Director of National Intelligence to continue.
The whole thing is fuckbonkers, because everyone here concedes that any document over which Trump might assert privilege is by definition the property of the US government. Trump can have no proprietary interest in it, and thus Judge Cannon’s claim to have equitable jurisdiction over the disposition of those records is preposterous on its face. And anyway, Trump hasn’t actually invoked the privilege with respect to a single document. Is the Special Master supposed to invoke it for him? Flag any document over which he might invoke it? Like, seriously, what the fuck?
At the same time it noticed the appeal, the government filed a motion to stay the Special Master order insofar as it blocks the DOJ from using the classified documents to investigate Trump. In that motion it argued that it can’t possibly separate the criminal inquiry from the intelligence one, particularly since the FBI is part of the intelligence community.
The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work.
On Monday, Trump responded to the stay request by accusing prosecutors of lying about the impossibility of separating out the two investigations. Team Trump also made a bunch of facially nonsensical claims about Trump’s right to possess the seized documents.
“In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records,” they snark.
“Indeed, if any seized documents (including any purported ‘classified records’) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA,” they go on, adding that “under the [Presidential Records Act], President Trump has specified rights to restrict access to his Presidential records.”
Not to put too fine a point on it, but that’s all bullshit. If you rob a bank and stash the money in your freezer, it doesn’t become a “cash storage issue.” You’re just a thief! And Trump may have a right to access his presidential records, but that access entitles him to come and visit them at the National Archives. He certainly doesn’t have the right to exclude the sitting president or other members of the executive branch from looking at those documents, and anyway the PRA has specific provisions allowing the Archivist to release them pursuant to a subpoena from law enforcement.
His lawyers also suggest that Trump could have declassified the documents, and/or unilaterally declared them to be personal records. As to the first, declassification by telepathic incantation, or whatever preposterous theory Trump’s minions are floating right now, would mean that these items were still the property of the federal government. As to the second, the PRA lays out a process for the president to declare something a personal record, and stuffing it down his pants and hightailing it to Florida ain’t it. (Here’s a good thread on that one.)
Along the way, both sides submitted their preferred Special Master candidates as well as proposed instructions. Unsurprisingly, the parties agreed on nothing. Team Trump wants to drag this process out as long as possible, presenting every item seized by the government for review. Prosecutors, who’d like to get back to their case in chief, have no interest in wasting time having the master adjudicate in absence of disagreement between the parties. What is the point of paying a retired judge $1,000 an hour to say that golf cleats are personal property and letters from Trump to Rudy Giuliani are attorney-client privileged?
In its filing, the government came pretty close to saying YEAH, NO to Judge Cannon’s executive order instruction, pointing out that the PRA vests jurisdiction over that decision in the US District Court in DC. But weirdly, both parties appear to agree that all the government documents should go back to NARA at the conclusion of the Special Master process — at which point Trump is going to make this executive privilege argument to a competent judge in DC, and he’s going to lose, because it’s not a close case.
Also weird: Trump wants the court to authorize unlimited back channels, i.e. ex parte communications with the Special Master. At the end of the process, the master will submit a finished product to the government and tell them to like it or lump it. LOL!
Not weird at all: Trump wants the government to pick up half the bill for the Special Master review he insisted on and seeks to drag out for three months.
Yesterday, the government filed its response to Trump’s motion to continue the stay as to classified documents, making it very clear that Uncle Merrick and his merry band of career prosecutors are ALL OUT OF FUCKS TO GIVE. They’d already said in their initial motion that they plan to file an emergency appeal if the stay request isn’t granted by Thursday — the implication being that they’ll appeal the entire order, not just the parts pertaining to classified documents. But now they’re making it really clear that, if the court continues to go along with Trump’s ridiculous legal theories, they are going to do their best to embarrass the shit out of her at the Eleventh Circuit. Because her ruling is so bad, and so totally without legal precedent, that she risks being humiliated even by a conservative panel.
Noting “this Court’s acknowledgement of its ‘limited power in this domain’ involving the exercise of equitable jurisdiction in connection with an ongoing criminal investigation,” prosecutors remind Judge Cannon that “The Court did not—and could not—appoint a special master to exercise roving ‘supervisory authority’ over the government’s ongoing criminal investigation … or to adjudicate matters ultimately irrelevant to Plaintiff’s potential privilege claims, such as whether Plaintiff might have declassified seized documents that bear classification markings or whether Plaintiff might have designated those documents as his ‘personal’ records for purposes of the PRA.”
As for Trump’s scare quotes around “classified” and implications that somehow he locked himself in a closet and said magic words making Top Secret classified documents into personal records, prosecutors called his lawyers’ bluff.
“Plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified,” they write, noting that “Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion.”
Which is lawtalk for, “You know you’re not going to put shit in affidavit, because you’d risk going to jail for perjury and getting disbarred. So cut the crap with the hypotheticals that you know damn well you aren’t going to argue in court. And by the way, your honor, we see you letting them get away with this nonsense.”
So, that’s fun! Guess we’ll find out tomorrow if Judge Cannon takes the off-ramp the DOJ has built for her.
[Trump v. United States, Docket via Court Listener]
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