Court: No To "Special Master" In Trump Docs Case

In a rebuke to both the Malignant Loser and Federal District Judge Aileen Cannon whom he appointed in the final months of his regime, the 11th Circuit Court of Appeals has stopped the "special master" review of documents seized during a lawful search of his Merde O'Lardo estate for highly classified documents. With Cannon's collusion, the Malignant Loser had hoped to stall the investigation into his possession of top secret classified documents, which involves violations of the Espionage Act, and his subsequent obstruction of the investigation. From the AP report:

"The decision by the three-judge panel represents a significant win for federal prosecutors, clearing the way for them to use as part of their investigation the entire tranche of documents seized during an Aug. 8 FBI search of Mar-a-Lago. It also amounts to a sharp repudiation of arguments by Trump’s lawyers, who for months had said that the former president was entitled to have a so-called 'special master' conduct a neutral review of the thousands of documents taken from the property. [snip]

The decision was a unanimous opinion from the panel of Republican appointees, including two who were selected by Trump. In it, the court rejected each argument by Trump and his attorneys for why a special master was necessary, including his claims that various seized records were protected by attorney-client privilege or executive privilege."

The investigations into the Malignant Loser's handling of highly classified documents, along with his January 6 attempted coup / insurrection, are now in the hands of Special Counsel Jack Smith.  There are signs that both investigations are moving along under his management, and the Court's ruling against the "special master" stall tactic will help greatly.

In a clear slap at Trump's colluding Judge Cannon, the Appeals Court judges wrote:

“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.

Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”

Further appeals, if any, by the Malignant Loser's lawyers are expected to be dismissed.  

 

DOJ Appeals Trump Hack's Lawless Ruling On Mar-a-Lago Documents

As expected:

The Justice Department asked a federal appeals court Friday night to override parts of a judge’s order appointing a special master to review documents seized from former president Donald Trump’s Mar-a-Lago home and club, arguing that some of the terms hamper a critical national security investigation.

The appeals court filing comes a day after U.S. District Court Judge Aileen M. Cannon appointed another federal judge, Raymond J. Dearie, to serve as special master and review the almost 11,000 documents seized in the FBI’s Aug. 8 search.

The new filing from the Justice Department notes that it disagrees with that decision but for the time being is asking the appeals court to intercede on two parts of Cannon’s ruling — one barring criminal investigators from using the seized material while the special master does his work, and another allowing the special master to review the roughly 100 classified documents seized as well as the nonclassified material.

The government filing asks for a stay of “only the portions of the order causing the most serious and immediate harm to the government and the public,” calling the scope of their request “modest but critically important.”

It’s unclear how long the special master review, or the appeals, might take, but the new filing asks the appeals court to rule on their request for a stay “as soon as practicable.” (our emphasis)

In a just world, we wouldn't have Trumpist hacks like Cannon occupying lifetime seats on our courts. But it's not a just world, so we do.  We'll have to see if judges on the 11th Circuit are Trumpist hacks or not, and if they care more about the nation's security and their reputations than the Trumpist hack does.

(Image:  hack and cult leader/ CNN)

Trump Judge Issues Another Lawless Order Protecting Him

 

ICYMI, the Trump hack impeding the criminal investigation of the Mar-a-Lago documents caper does him another solid:

Judge Aileen Cannon, the Trump-appointed judge recently known for twisting the law in knots in ways that undermine one of the Justice Department’s criminal investigations into former President Donald Trump, has issued a new order that, well, twists the law into knots.

Last month, the FBI executed a search warrant at Mar-a-Lago, Trump’s Florida residence, and seized several boxes of documents. They include 103 documents with classified markings, some of them indicating that the information contained in those papers are classified at the highest levels. According to the Washington Post, these papers include “a document describing a foreign government’s military defenses, including its nuclear capabilities.”  [snip]

In her recent order, Cannon essentially says that the FBI cannot be trusted when it claims that these documents are classified. “The Court does not find it appropriate to accept the Government’s conclusions,” Cannon writes, that “all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records.”  [snip]

... Cannon is giving him additional protections that virtually no criminal suspect enjoys, based largely on the fact that he used to be president.  [snip]

How about lifting the order stopping the criminal investigation pending a special master's review of the stolen classified documents?

... Cannon’s original order said that the FBI could continue its national security investigation into how Trump’s possession of these documents may have damaged the nation’s intelligence interests, but that it must pause its criminal investigation. In response to DOJ’s argument that these two investigations are difficult to disentangle, Cannon essentially replies that “difficult” does not mean “impossible.”  [snip]

In practice, however, it is far from clear that the Justice Department can take advantage of this concession by Cannon. Cannon’s new order contains only limited descriptions of what DOJ can and cannot do. And it is possible that the FBI will be unwilling to make its own judgment calls so long as it knows that a seemingly hostile judge may hold them in contempt if she disagrees with the FBI’s judgment. 

And the role of the special master?

One other line in Cannon’s opinion is worth noting. In its motion from last week, the Justice Department argued that “the Court’s order would irreparably harm the government and the public by unnecessarily requiring the government to share highly classified materials with a special master.”

As the Supreme Court held in Department of the Navy v. Egan (1988), “For ‘reasons . . . too obvious to call for enlarged discussion,’” determinations about who should be allowed to see classified documents “must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.”

But Cannon’s order effectively brings the special master, who does not have a “need to know” the information in the classified documents that is grounded in national security concerns, inside the community of individuals who are allowed to see specific highly classified documents. That places her order at odds with Egan, and with ordinary practices governing the nation’s most highly guarded secrets.

The DOJ, as it indicated earlier, will appeal to the 11th Circuit Court.  Professor Tribe weighs in:

 

Hard to imagine Cannon really expects to get away with this garbage, but she evidently thinks the Eleventh Circuit is in the tank with her. Only they can prove her wrong. https://t.co/6uTV4FkQDM

— Laurence Tribe (@tribelaw) September 16, 2022

 

 

Justice Department Appealing Trump Judge Order For Mar-a-Lago Special Master

 

They're not letting the bullshit decision by Trump- appointed lackey Aileen Cannon stand without a fight:

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

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

The Justice Department wrote in a brief filing that it would be appealing the decision to the 11th Circuit Court of Appeals.

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

Ultimately, the Justice Department said that a special master could be appointed, but argued that the judge should prohibit the special master from reviewing classified documents. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.

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

And they argued that by prohibiting investigators from using the classified materials found in the August until a special master has cleared them, Cannon could harm national security by hampering the Justice Department’s ability to recover any other classified papers that may still be outstanding...

Game on.

Trump Had Unsecured Document On Foreign Nuclear Capabilities

 

The bomb du jour from the Mar-a-Lago search:

A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter, underscoring concerns among U.S. intelligence officials about classified material stashed in the Florida property.

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

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

But such documents were stored at Mar-a-Lago, with uncertain security, more than 18 months after Trump left the White House.

Is it irresponsible to speculate?  It is irresponsible not to --

 

If Trump was selling the details of Israel's nuclear program to the Saudis it's going to cause a very funny schism between a bunch of terrible people https://t.co/EbG7eA8SIq pic.twitter.com/foyysduBCW

— Joe (@JoePostingg) September 7, 2022

 

What's next?  You can be sure it will only get worse.

 

Trump's Wants "Special Master" To Obstruct Review Of Purloined Classified Materials

 

Yesterday, the Malignant Loser and his crack F Team of lawyers (insurance claim lawyer, parking garage company lawyer, etc.) filed a motion to have a special master appointed to review classified materials seized by the FBI at Mar-a-Lago on August 8.  Steve Benen:

It might be tempting to scrutinize the filing as if it were a serious legal document, submitted in a credible way. That would be a mistake. Orin Kerr, a conservative law professor at UC Berkeley, noted overnight that many actual lawyers “are giggling at Trump’s motion, and how poorly it was done.”

The chortles are understandable. Team Trump’s court filing is a mess.

Among the many problems is the fact that it’s oddly late. The FBI executed its search warrant on Monday, Aug. 8. At that point, federal law enforcement officials reclaimed classified materials the former president brought to his glorified country club, taking stock of what he improperly took. Two weeks later, Trump’s lawyers went to court, apparently in the hopes that the FBI would stop reviewing the documents.

The idea that the FBI’s search was “shockingly aggressive” is even more difficult to take seriously. The Justice Department tried a series of lesser means, including subpoenas and in-person meetings in the hope of avoiding this step. When Team Trump refused to cooperate, the FBI went to court, obtained a search warrant, and executed it in the least aggressive way possible: The bureau sent plain-clothed agents who coordinated in advance with the Secret Service.  [snip]

Perhaps most entertaining was an accompanying written statement from Trump, which read in part, “This Mar-a-Lago Break-In, Search, and Seizure was illegal and unconstitutional, and we are taking all actions necessary to get the documents back, which we would have given to them without the necessity of the despicable raid of my home, so that I can give them to the National Archives until they are required for the future Donald J. Trump Presidential Library and Museum.” (Ed.:  referring, perhaps, to this presidential liebery)

Giggles and chortles notwithstanding, don't underestimate the potential for District Court Judge -- Federalist Society, Malignant Loser- appointed -- Aileen Cannon, who's in a different District than the District where the magistrate sits, to rule in his favor (if the case isn't transferred).  The Malignant Loser thinks he has a ringer in Judge Cannon, and he may be right. 

Also, never underestimate the willingness of the ever- gullible "mainstream" corporate media to treat this motion as serious, and not a delaying tactic -- a time- honored maneuver by the Trump Organization crime boss when the law's closing in. 

Marcy Wheeler offers those challenged media types the real way to frame the Malignant Loser's motion, depending on their beat:

Again, here are three competent headlines from this filing:

If you're a horse race journalist...

TRUMP FAILS DELIVER PROMISED FOURTH AMENDMENT CHALLENGE.

— emptywheel (@emptywheel) August 22, 2022

 

If you're a legal journalist:

TRUMP LAWYERS ADMIT HE VIOLATED ESPIONAGE ACT.

— emptywheel (@emptywheel) August 22, 2022

 

If you really want to get to the newsworthy bits:

TRUMP CONFESSES HIS LAWYER THREATENED ATTORNEY GENERAL MERRICK GARLAND.

— emptywheel (@emptywheel) August 22, 2022

 

Those are your choices.

"Trump asks for special review"? That's not real!?!?!

If that were real we would have been here 2 weeks ago.

— emptywheel (@emptywheel) August 22, 2022

 

In a normal, sane world we would never have been here, but now that we are, the proposition that institutions (legal, media) will not protect us from autocracy will be put to the test, yet again.

Trump Declassification Claim "Bullshit, "Total Nonsense," Say Former Trump Aides

The Malignant Loser's excuse #9 (or is it #11?) for why it was PERFECT to have highly classified documents in his Mar-a-Lago club has been debunked by those who ought to know:

In the days since the FBI seized classified and top secret documents from Donald Trump's Mar-a-Lago resort, the former President and his allies have claimed that Trump had a "standing order" to declassify documents he took from the Oval Office to the White House residence.

But 18 former top Trump administration officials tell CNN they never heard any such order issued during their time working for Trump, and that they believe the claim to be patently false.

 

Several officials laughed at the notion. One senior administration official called it "bullsh*t." Two of Trump's former chiefs of staff went on the record to knock down the claim.

 

"Nothing approaching an order that foolish was ever given," said John Kelly, who served as Trump's chief of staff for 17 months from 2017 to 2019. "And I can't imagine anyone that worked at the White House after me that would have simply shrugged their shoulders and allowed that order to go forward without dying in the ditch trying to stop it."

 

Mick Mulvaney, who succeeded Kelly as acting White House chief of staff, also dismissed the idea and told CNN he was "not aware of a general standing order" during his tenure.

In addition, CNN spoke with former national security and intelligence officials as well as White House lawyers and Justice Department officials. Taken together, their tenure covers all four years of the Trump administration, and many served in positions where they would either be included in the declassification process, or at the very least, be aware of such orders. 

 

Official after official scoffed at the claim Trump had a standing order to declassify documents that left the Oval Office and were taken to the residence.

 

"Total nonsense," one senior White House official said. "If that's true, where is the order with his signature on it? If that were the case, there would have been tremendous pushback from the Intel Community and DoD, which would almost certainly have become known to Intel and Armed Services Committees on the Hill."   [snip]

 

Former Trump national security adviser John Bolton called the notion of a standing declassification order "a complete fiction."

 

"I was not briefed on anything like that when I started as national security adviser," Bolton said on CNN's "New Day" earlier this week. "I never heard of it, never saw it in operation, never knew anything about it."

 

In addition, Olivia Troye, a former homeland security adviser to then Vice President Mike Pence, called the notion of a blanket declassification "ludicrous." Another former senior intelligence official laughed and said it was "ridiculous."

 

And a source familiar with White House records and declassification said Trump's claim was "laughable" and that if any such order existed, it was "Trump's best kept secret." (our emphasis)

 

Time to throw some more hamberder and ketchup against the wall to see if anything sticks.

 

(Image:  "You want another bullshit excuse? I got more!" /Getty Images) 

"An Invitation To Violence" From The GQP

 

 

The legions of loons comprising the Malignant Loser's supporters have been preparing for the moment the first search warrant, indictment or arrest of their criminal cult leader hit the fan.  Naturally, the predictable, well- orchestrated firestorm has included threats of violence and retribution from Republican officials, media shills and anonymous asshats:

For months, right-wing agitators with millions of followers have peddled the idea that a moment was coming soon when violence would become necessary — a patriotic duty — to save the republic.

With the FBI search Monday of Donald Trump’s compound in Florida, that moment is now, according to enraged commentators’ all-caps, exclamation-pointed screeds urging supporters of the former president to take up arms. Within hours of the search at Mar-a-Lago, a chorus of Republican lawmakers, conservative talk-show hosts, anti-government provocateurs and pro-Trump conspiracy theorists began issuing explicit or thinly veiled calls for violence.

“Today is war. That is all you will get on today’s show,” right-wing podcaster Steven Crowder announced Tuesday to his nearly 2 million followers on Twitter, referring to the program that goes to his YouTube audience of 5.6 million.

Extremism expert Caroline Orr Bueno says this is an opportunity that craven Republican fascists are sure to exploit rather than defuse:

“This whole situation is red meat for their base. They use events like this to feed into this fantasy they’ve co-created with their supporters, and defusing the situation would require stepping out of that alternate reality,” said Orr Bueno, a postdoctoral research associate at the University of Maryland who studies disinformation. “They’re not going to do that, particularly with 2024 right around the corner.”

Aaron Blake reported on much the same thing:

For now, though, we don’t yet know much about what was in the search warrant used to raid Donald Trump’s residence at Mar-a-Lago on Monday. We do know that the raid concerned the removal of classified documents from the White House and that, according to Trump, agents raided his safe.

But we also quickly found out that a lot of influential people are rather uninterested in any of that, reflexively shouting “witch hunt” and baselessly blaming President Biden for the raid in a way that bodes very poorly for whatever comes next in this process. Trump has marshaled his army of supporters to declare, in knee-jerk fashion, any legal scrutiny of him a deep-state operation.  [snip]

Trump immediately likened the raid to what happens in third-world countries. Plenty happily echoed that talking point, including Sen. Marco Rubio (R-Fla.) and the House Judiciary Committee’s Republicans, led by Rep. Jim Jordan (Ohio). “Doesn’t the FBI have better things to do than harass the former PRESIDENT?” read a tweet from the House Judiciary GOP’s account.  [snip]

House Minority Leader Kevin McCarthy (R-Calif.) assured Monday night that Garland had better be prepared to answer questions. But even without any of those questions answered, McCarthy declared: “The Department of Justice has reached an intolerable state of weaponized politicization.” The Republican National Committee declared that “Democrats continually weaponize the bureaucracy against Republicans. This raid is outrageous.”

Of course, protecting their cult leader means, in many instances, self- preservation both in terms of political viability and legal accountability.

After referencing Ruby Ridge, Waco and the Oklahoma City bombing, Dana Milbank points out where all this predictable but irresponsible and unpatriotic rhetoric is likely to lead:

Now, as in both of those cases, we are approaching the midterm elections of an incumbent Democratic president’s first term. Now, as in both cases, right-wing, anti-government groups are ascendant. And now it is easier for a group, or even a single mentally unstable person, to unleash mass carnage. Explosives are lighter. Inexpensive switches made on 3D printers can turn ordinary Glock handguns into fully automatic weapons capable of firing more than 15 rounds per second. The internet and encrypted communications facilitate widespread radicalization and coordination.

Monday’s search of Mar-a-Lago puts us at a perilous moment. NBC News reporter Ben Collins, who tracks pro-Trump online forums, tweeted that the posts Monday night were “as violent as I’ve seen them since before January 6th. Maybe even more so.”

A lot of the faux bravado may "just" be chatter from chickenshits who are safe inside their studios or Capitol Hill offices.  But, all you need is one unhinged loon who takes the hyperventilated rhetoric to heart to have the kind of situation Milbank describes, and that we've already seen in our not- too- distant past. 

Forewarned is forearmed.

(Cartoon: Mike Luckovich, Atlanta Journal-Constitution)

FBI Raids Mar-A-Lago

 

 

Ding-dong! FBI calling!

Former President Donald Trump said Monday that the FBI had raided his Mar-a-Lago estate.

“My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents,” Trump said in a statement released through his political action committee, Save America.

The FBI declined to comment on whether it had conducted a search of the former president’s property.

A person familiar with the investigation said agents were conducting a court-authorized search as they probe the potential mishandling of classified documents that were shipped to Mar-a-Lago.  [snip]

To take such a step would require approval at the highest levels of the Justice Department. A department spokeswoman declined to comment when asked if Attorney General Merrick Garland approved the step.

Lock him up!  Lock him up! 

BONUS:  Former U.S. Attorney Harry Litman had this interesting take --

In Trump’s case, no surprise, the potential offense appears to be particularly brazen and damaging. Among the documents he reportedly took with him and has declined to return are true historical items that belong to the American people, including the letter President Obama left for him when he took office and his bizarre valentines to North Korea dictator Kim Jong-Un.

Further, a documents charge, as presidential accusations go, would be relatively easy to prove and would sidestep issues of 1^st Amendment protected political activity that Trump no doubt would claim if he were indicted in relation to, say, his incendiary speech at the Ellipse on Jan. 6.

And most important, there’s this: Anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” official documents “shall be” disqualified — barred for life — from holding future federal office.

BONUS II:  Predictably, the Malignant Loser's legion of bootlickers and democracy destroyers were in full howl about the raid.  More unhinged howling here and here.  Of course, they were primed to howl the minute a search warrant, indictment or any other legal action threatening their cult leader dropped, so bring it on.

BONUS III: Former Federal prosecutor Andrew Weissmann on MSNBC: "If I were Donald Trump's lawyer right now, thank God I'm not, I would be advising my client to be telling [their] family, 'I am looking at jail time, and we should make plans accordingly.'"

(Photo:  "FBI?!?  Quick, flush all the toilets!")