Trump lashes out at Gov. Doug Ducey following certification

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Dempsey Calls on Americans to Discuss Civil-Military Relations
by Jim Garamone
Joint Chiefs of Staff
9/6/22
https://www.jcs.mil/Media/News/News-Dis ... relations/

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WASHINGTON — America's all-volunteer military has been a success, but society at large and service members must ensure a shared understanding exists between them, Army Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, wrote in a commentary in the Washington Post today.

Dempsey described the all-volunteer force as one of America's finest achievements. The military is so good, he wrote, that many Americans take it for granted.

"The last decade of war has affected the relationship between our society and the military," Dempsey wrote. "We can't allow a sense of separation to grow between us. As the all-volunt
eer force enters its fifth decade, civilians and the military need to maintain the shared understanding necessary for a healthy relationship."

Dempsey wrote that the nation needs to discuss the military-civil relationship, as well as the nation's relationship with its service members.

"As a nation, we've learned to separate the warrior from the war," he wrote. "But we still have much to learn about how to connect the warrior to the citizen."

Since the end of conscription in July 1973, those entering the military have served as volunteers. In his commentary, Dempsey urged America's civilians to establish a dialogue with their fellow citizens who serve in the all-volunteer force.

"As citizens, we must listen to our veterans," the chairman wrote. "If we do, we'll hear stories of pride and courage, anger and pain, laughter and joy. We'll hear of actions that humble and inspire us. We'll also hear of moments that break our hearts. These stories represent the best of our nation."

Service members also bear a responsibility to communicate with their fellow citizens, Dempsey wrote. "We should tell our stories and recognize that those who aren't in uniform might not know what to say or ask," he added. "We also have a duty to listen. Our fellow citizens may have different perspectives that we need to hear and understand."

The services as well as veterans understand the need for fiscal change, the general wrote. Cuts in funding, he added, are not an attack on veterans and their families.

"Modest reforms to pay and compensation will improve readiness and modernization," Dempsey wrote. "They will help keep our all-volunteer force sustainable and strong. Keeping faith also means investing sufficient resources so that we can uphold our sacred obligations to defend the nation and to send our sons and daughters to war with only the best training, leadership and equipment. We can't shrink from our obligations to one another. The stakes are too high."

Service members and veterans must remember that public service takes many forms, Dempsey wrote.

"Across our country, police officers, firefighters, teachers, coaches, pastors, scout masters, business people and many others serve their communities every day," he added. "Military service makes us different, but the desire to contribute permeates every corner of the United States."

The nation cannot afford allowing the military to disconnect from American society, Dempsey wrote.

"We must guard against letting military service become a job for others," he added. "Children of those in the military are far more likely to join than the children of those who are not. And young men and women in some areas never even consider the military as one of many ways to serve our nation."

Some fault for this, Dempsey said, lies with the military. Service members, he added, cannot just stay on bases and remain in their own world.

"But we didn't stop being citizens when we put on the uniform," Dempsey wrote. "We came from small towns and big cities across our country, and we'll go back one day. Civilians aren't an abstraction; they're our parents, grandparents, siblings and friends."

An all-volunteer force is actually the norm for the United States, the chairman wrote, noting that since 1787, the nation used conscription for only 35 years.

"Except in times of great crisis, we have relied on a tradition of selfless service," Dempsey wrote. "The all-volunteer force continues that tradition. It has served our nation well for the past 40 years. To do so for the next 40, we'll have to work at it together."

****************

'I Would Be In Handcuffs' If I Had Taken Documents Out Of Office, Says Fmr. Defense Sec. Former Defense Secretary William Cohen joins Morning Joe to discuss new reporting on the documents seized from Mar-a-Lago.
Sep 7, 2022



Transcript

0:01
SECRETARY WILLIAM COHEN.
0:02
ALSO WITH US MSNBC CONTRIBUTOR,
0:04
MIKE BARNICLE.
0:06
AND POLITICO'S JONATHAN LEMIRE.
0:09
SECRETARY COHEN, LET ME ASK YOU
0:10
A SIMPLE QUESTION, IF YOU HAD
0:12
TUCKED EVEN ONE TOP SECRET
0:14
DOCUMENT IN YOUR BRIEFCASE WHEN
0:15
YOU WERE DEFENSE SECRETARY AND
0:16
TAKEN IT HOME WITH YOU, WHAT
0:18
WOULD HAVE BEEN THE
0:19
CONSEQUENCES?
0:19
>> WELL, IF I HAD STILL BEEN IN
0:22
OFFICE, I THINK THE CONSEQUENCES
0:22
WOULD HAVE BEEN LIMITED, BUT THE
0:25
PRACTICE WAS FOR ME TO NEVER
0:28
TAKE ANYTHING HOME.
0:32
EVERY TIME A TOUCHED A TOP
0:33
SECRET DOCUMENT IN MY OFFICE OR
0:34
IN THE CAR IN THE LIMOUSINE
0:37
TAKING ME TO THE OFFICE.
0:38
IT WAS ALWAYS UNDER WATCH OF
0:39
SOMEONE IN THE CAR.
0:40
AND I HAD TO TURN IT OVER
0:43
IMMEDIATELY UPON GOING INTO THE
0:44
DEFENSE DEPARTMENT.
0:45
SO, I MIGHT HAVE HAD A DOCUMENT
0:46
AT MY HOME, PROVIDED THERE WAS
0:49
SOMEONE THERE TO TAKE IT BACK TO
0:50
THE PENTAGON WHERE IT COULD BE
0:52
SAFE PUT.
0:53
ONCE I LEFT THE PENTAGON THERE
0:55
WAS NO TAKING ANYTHING OUT.
0:58
>> AND SO WHAT IS YOUR REACTION
1:01
WHEN YOU JUST HEAR THE DETAIL,
1:02
THE LIST OF HUNDREDS OF
1:06
CLASSIFIED DOCUMENTS, THE LATEST
1:07
REPORTING FROM "THE WASHINGTON
1:08
POST" THAT DONALD TRUMP NOW
1:09
PRIVATE CITIZEN OUT OF OFFICE
1:11
HAD ALL OF THIS AT HIS BEACH
1:14
RESORT IN FLORIDA?
1:15
>> I THINK YOU'VE BEEN ASKING
1:16
IT'S QUESTION WHY.
1:17
I DON'T THINK IT MATTERS WHY.
1:19
THE FACT THAT HE HAD THOSE
1:21
DOCUMENTS IN HIS POSSESSION IS
1:22
OFFENSE ENOUGH, SUBJECT TO
1:24
PERHAPS CRIMINAL PROSECUTION.
1:26
IF I HAD HAD THOSE IN MY HOUSE
1:28
AFTER LEAVING OFFICE, I WOULD BE
1:29
IN HAND CUFFS BY THIS TIME.
1:31
SO, I THINK THAT THE JUSTICE
1:32
DEPARTMENT HAS GONE OUT OF ITS
1:38
WAY TO SHOW DEFERENCE TO THE
1:41
FORMER PRESIDENT THAT NO OTHER
1:42
PRESIDENT IN HISTORY WOULD HAVE
1:43
BEHAVED IN THIS FASHION.
1:45
OR HAVE BEHAVED IN THIS FASHION.
1:47
I THINK THE JUSTICE DEPARTMENT
1:48
GOING ABOUT IT VERY METHODICALLY
1:52
AND VERY DEFERENTIALLY.
1:55
I THINK THAT TIME HAS COME TO AN
1:58
END.
1:58
WE GO BACK TO THE JANUARY 6th
2:00
COMMITTEE WHERE A JUDGE, RUDY, A
2:06
VERY CONSERVATIVE JUDGE, HE SAID
2:08
THAT DONALD TRUMP IS A CLEAR AND
2:12
PRESENT THREAT TO DEMOCRACY.
2:15
THAT'S BEEN CONFIRMED OVER AND
2:17
OVER.
2:17
THE NOTION THAT THE FORMER
2:19
PRESIDENT HAD HIGHLY CLASSIFIED
2:21
DOCUMENTS IN UNSAFE
2:22
CIRCUMSTANCES, OR ANY
2:23
CIRCUMSTANCES, PUTS OUR NATION
2:25
AT RISK, POTENTIALLY.
2:27
SO, I THINK THERE'S NO
2:28
JUSTIFICATION.
2:28
THERE'S NO WAY THEY CAN SAY, OH,
2:30
IT WAS A MISTAKE.
2:31
I THINK THAT'S BEEN DISPROVED.
2:34
AND ANYONE WHO SAYS THAT I'D
2:36
LIKE TO FIND OUT WHY.
2:37
>> MR. SECRETARY, YOU'VE HAD
2:39
YEARS OF LONG SERVICE TO THE
2:40
UNITED STATES.
2:41
AND WE THANK YOU FOR THAT.
2:42
AND THE UNITED STATES SENATE, AS
2:44
WELL AS SECRETARY OF DEFENSE.
2:45
AND YOU'VE RECENTLY COSIGNED A
2:47
LETTER WITH SEVERAL OTHER FORMER
2:49
SECRETARIES OF DEFENSE OUTLINING
2:50
THE NEED FOR SOME REALLY STRICT
2:52
CIVILIAN CONTROL OF THE
2:55
MILITARY.
2:55
TO KEEP THE MILITARY OUT OF
2:58
POLITICS.
2:58
MY QUESTION TO YOU IS, WERE YOU
2:59
SURPRISED AT ALL, DURING THE
3:00
PAST FIVE YEARS, THAT MORE
3:03
FORMER SECRETARIES OF DEFENSE OR
3:06
MORE FORMER RETIRED GENERALS OR
3:08
WHATEVER RANK THEY HAVE IN THE
3:10
MILITARY SERVICE, DID NOT SPEAK
3:12
OUT DURING THE TRUMP PRESIDENCY
3:14
ABOUT WHAT THEY KNEW AND SAW AND
3:16
HEARD AND WITNESSED A SEVERE,
3:18
SEVERE LACK OF CONTROL OF THE
3:20
PRESIDENT OF THE UNITED STATES?
3:23
>> I WAS NOT SURPRISED BECAUSE
3:25
THOSE IN THE MILITARY,
3:29
ESPECIALLY THOSE DEALING AT THIS
3:34
LEVEL OF SECURITY INFORMATION,
3:35
THEY ARE NOT INCLINED TO SPEAK
3:37
OUT UNTIL IT BECOMES SO
3:40
EGREGIOUS THAT THEY HAVE NO
3:42
CHOICE EITHER TO SPEAK OUT OR TO
3:44
RESIGN.
3:45
WE SAW THAT WITH GENERAL MATTIS,
3:49
HE CAME TO THE POINT WHERE HE
3:51
SAID I CAN NO LONGER SERVE THIS
3:53
PRESIDENT.
3:53
I THINK IT TAKES A LOT ON THE
3:56
REIGN OF JIM MATTIS' RECORD AND
4:00
HEROISM TO SAY I CAN'T CARRY OUT
4:03
THIS MISSION ANY LONGER BECAUSE
4:06
MY WORLD VIEW IS QUITE DIFFERENT
4:09
THAN WHAT THE PRESIDENT DOING.
4:11
THOSE TO FOLLOW THE LEAD AND
4:12
ORDERS OF THE PRESIDENT OF THE
4:13
UNITED STATES, UNLESS THEY DEEM
4:14
THEM TO BE EITHER ILLEGAL OR SO
4:17
EGREGIOUS THAT THEY CAN'T IN
4:20
GOOD CONSCIENCE CARRY OUT THE
4:23
ORDER.
4:23
SO IT DOESN'T SURPRISE ME.
4:24
IT SURPRISES ME NOW THAT SO MANY
4:26
ARE STEPPING FORWARD.
4:27
IF YOU GO BACK ON THIS, MIKE,
4:29
RIGHT AFTER THE ELECTION, THERE
4:31
WERE TEN FORMER SECRETARIES OF
4:33
DEFENSE WHO WROTE AN OPEN LETTER
4:35
TO THE DEFENSE DEPARTMENT SAYING
4:36
DON'T GET INVOLVED IN PARTISAN
4:39
POLITICS, BECAUSE YOU MAY RECALL
4:44
AT THAT TIME THERE WERE RUMORS
4:45
COMING FROM MICHAEL FLYNN AND
4:46
OTHERS THAT THE INSURRECTION ACT
4:48
COULD BE INVOKED.
4:49
SO THAT THE THEN PRESIDENT COULD
4:50
TAKE OVER THE VOTING MACHINES
4:52
AND ALTER THE ELECTION.
4:55
TEN FORMER SECRETARIES OF
4:56
DEFENSE AT THAT TIME WERE IN A
4:58
LETTER WRITING CAMPAIGN.
4:59
BECAUSE JUST ABOUT A YEAR AGO,
5:01
ALMOST 100 NATIONAL SECURITY
5:03
OFFICIALS, MILITARY AND
5:05
CIVILIAN, AGAIN, WROTE AN OPEN
5:06
LETTER THAT THE JANUARY 6th
5:08
INSURRECTION CONSTITUTED AN
5:11
UNDERMINING OF DEMOCRACY
5:12
THROUGHOUT THE WORLD.
5:13
THAT WE WERE BEING UNDERMINED
5:17
OURSELVES, DOING IT TO
5:19
OURSELVES, WHERE OTHER COUNTRIES
5:20
COULD LOOK AND SAY, I GUESS
5:22
DEMOCRACY IS NOT A ROLE MODEL WE
5:24
WANT TO FOLLOW.
5:25
A WEEK OR SO AGO, JUDGE WILLIAM
5:28
WEBSTER, FORMER CIA DIRECTOR,
5:29
FBI DIRECTOR, FORMER APPEAL LET
5:32
JUDGE CONTACTED ME AND SAID CAN
5:34
WE WRITE AN OP-ED TO TALK ABOUT
5:36
WHAT IS HAPPENING TO THIS
5:37
COUNTRY.
5:37
THAT THE PRESIDENT OF THE UNITED
5:38
STATES IS PUTTING A TARGET ON
5:39
THE BACKS OF OUR FBI AGENTS?
5:42
WE NEED TO SPEAK OUT AGAINST
5:44
THAT.
5:44
AND NOW FINALLY COMES THIS
5:47
MONTH'S RECENT LETTER THAT WAS
5:49
INITIATED BY GENERAL MARTIN
5:51
DEMPSEY, BECAUSE HE SAID WE'RE
5:54
IN EXCEPTIONALLY TREACHEROUS
5:55
WATERS.
5:56
AND WE NEED TO CLARIFY WHAT THE
5:57
NATURE OF THIS RELATIONSHIP IS
5:59
BETWEEN OUR CIVILIAN LEADERS AND
6:00
OUR MILITARY.
6:01
AND IT WAS JUST A 16-POINT
6:06
PRESENTATION THAT YOU WOULD GIVE
6:07
TO A HIGH SCHOOL CLASS.
6:08
IT WAS NECESSARY TO GIVE THAT
6:10
BECAUSE WHAT PRESIDENT TRUMP,
6:11
AND AGAIN, THIS IS NOT DIRECTED
6:13
SPECIFICALLY AT HIM, BUT I'M
6:15
SPEAKING FOR MYSELF NOW, IT IS
6:17
CLEAR TO ME THAT PRESIDENT TRUMP
6:19
IS DOING GRAVE DAMAGE TO THAT
6:21
CIVILIAN MILITARY RELATIONSHIP.
6:23
AND I THINK IT WAS NECESSARY.
6:26
THEY FELT, FIVE FORMER CHAIRMEN
6:30
OF JOINT CHIEFS FELT COMPELLED
6:34
TO JOIN EIGHT FORMER SECRETARIES
6:36
OF DEFENSE.
6:36
I THOUGHT WAS UNPRECEDENTED.
6:39
>> MR. SECRETARY, I WANT TO
6:41
UNDERLINE SOMETHING, AND YOU CAN
6:42
DO IT SO MUCH BETTER THAN I'VE
6:44
BEEN ABLE TO DO.
6:45
I WAS JUST A MEMBER OF THE HOUSE
6:48
OF REPRESENTATIVES, ARMED
6:49
SERVICES COMMITTEE, WE WOULD GET
6:52
BRIEFINGS, CLASSIFIED BRIEFINGS.
6:56
AND WE ALWAYS UNDERSTOOD, AND IT
7:00
WAS MADE VERY CLEAR IF WE
7:03
REVEALED THAT THERE WOULD BE
7:05
LEGAL CONSEQUENCES.
7:06
MY GOD, IF I TOOK A DOCUMENT
7:09
BACK TO MY OFFICE OR HOME, THERE
7:12
WOULD BE EVER REASON TO BELIEVE
7:13
THAT WASHINGTON WOULD BE
7:14
KNOCKING ON MY WASHINGTON
7:16
APARTMENT WITHIN THE DAY.
7:17
AND I WOULD BE QUESTIONED.
7:18
AND SO, YOU'VE REPEATED THE SAME
7:20
THING.
7:20
BUT I JUST -- IT'S IMPORTANT FOR
7:23
ME TO ASK YOU, IN THIS WAY,
7:26
BECAUSE WE DO HAVE PEOPLE THAT
7:29
WATCH THIS SHOW THAT VOTED FOR
7:31
DONALD TRUMP THAT SUPPORT DONALD
7:33
TRUMP.
7:34
THAT STILL THINK THAT SOMEHOW
7:35
THIS IS A DEEP STATE CONSPIRACY
7:38
AGAINST DONALD TRUMP.
7:40
THAT YOUR LETTER, THAT THERE'S
7:42
ALL SOME SORT OF DEEP STATE
7:44
FIGHT AGAINST DONALD TRUMP.
7:46
WHEN IN FACT ALL WE'RE TALKING
7:48
ABOUT IS THE FACT THAT THE LAW
7:51
SHOULD APPLY TO EVERYONE
7:53
EQUALLY.
7:53
EQUAL JUSTICE UNDER THE LAW.
7:55
YOU WERE A MEMBER OF THE BANGOR
7:57
CITY COUNCIL.
7:59
YOU WERE A MEMBER OF THE UNITED
8:01
STATES HOUSE OF REPRESENTATIVES.
8:03
YOU WERE A MEMBER OF THE UNITED
8:04
STATES SENATE, YOU WERE
8:06
SECRETARY OF DEFENSE.
8:08
ON ALL LEVELS.
8:10
IF YOU HAD TAKEN A FRACTION OF
8:15
WHAT DONALD TRUMP REMOVED FROM A
8:17
GOVERNMENT BUILDING OF
8:19
GOVERNMENT DOCUMENTS, SECRET
8:23
DOCUMENTS, CLASSIFIED DOCUMENTS,
8:24
TOP SECRET DOCUMENTS, COULD YOU
8:27
PLEASE EXPLAIN HOW YOU, A FORMER
8:32
CIA DIRECTORS OR FORMER HEADS OF
8:34
THE NATIONAL SECURITY AGENCY
8:39
WOULD BE THROWN IN JAIL?
8:40
>> YES.
8:43
I THINK ANYONE OTHER THAN THE
8:45
FORMER PRESIDENT CURRENTLY, AT
8:46
LEAST, WOULD BE BEHIND BARS FOR
8:49
DOING ANY OF WHAT YOU JUST
8:51
OUTLINED.
8:51
I WANT TO GO BACK TO JUST RAISE
8:54
THE ISSUE ABOUT THIS NOTION THAT
8:56
THE FORMER PRESIDENT JUST WAVED
8:58
A WAND, AS IF HE'S A JEDI
9:03
WARRIOR AND DECLASSIFIED ALL
9:05
THIS INFORMATION.
9:06
I WANT EVERYBODY TO THINK ABOUT
9:08
THIS, WE SPEND AND THE NUMBER IS
9:09
PRETTY EASY TO REMEMBER, $777.7
9:14
BILLION ON NATIONAL SECURITY,
9:17
OUR DEFENSE DEPARTMENT.
9:18
OF THAT, ALMOST $780 BILLION, A
9:21
GOOD CHUNK OF THAT ALSO IS FOR A
9:24
COLLECTION OF INFORMATION,
9:25
INTELLIGENCE.
9:26
BECAUSE WE HAVE THE FINEST
9:27
FIGHTING FORCE IN THE WORLD.
9:28
BUT AS GOOD AS WE ARE, IF WE ARE
9:31
BLIND OR CAN'T HEAR, THAT
9:37
FIGHTING FORCE I THERE IN GRAVE
9:40
PERIL.
9:40
SO WE NEED ALL-AROUND VISION,
9:43
ALL-AROUND HEARING, TO KNOW
9:45
WHERE WE ARE IN THE WORLD WHAT
9:46
IS COMING AT US IN WHAT
9:48
DIRECTION.
9:49
AND THE NOTION THAT A PRESIDENT
9:50
CAN SAY I'M DECLASSIFYING IT ALL
9:52
AND GIVE THAT INFORMATION TO THE
9:55
NORTH KOREANS TO HIS FRIEND
9:56
PRESIDENT PUTIN, TO THE CHINESE,
9:58
TO IRAN, THAT'S ABSURD THAT HE
10:01
WOULD CARRY -- I TOTALLY
10:03
DECLASSIFIED IT.
10:04
SO, YOU'RE OPENING UP A $777
10:07
BILLION BUDGET TO YOUR
10:09
ADVERSARIES?
10:10
IT'S ABSURD.
10:12
>> MR. SECRETARY, I'M CURIOUS
10:15
JUST CAN THE DOJ WAIT FOR A
10:18
SPECIAL MASTER TO SIFT THROUGH
10:20
ALL OF THIS?
10:21
I MEAN, YOU MENTIONED THE
10:25
EGREGIOUSNESS OF WHAT HAS BEEN
10:27
DISCOVERED SO FAR.
10:28
I CAN'T THINK OF ANYTHING, CAN
10:31
YOU THINK OF ANYTHING, MORE
10:32
ILLEGAL, EGREGIOUS AND DANGEROUS
10:34
TO OUR COUNTRY THAN A
10:36
LOOSE-LIPPED FORMER PRESIDENT
10:37
HAVING NUCLEAR INFORMATION ON A
10:39
FOREIGN COUNTRY?
10:41
I MEAN, ISN'T THIS SOMETHING
10:43
THAT REQUIRES SWIFT ACTION?
10:48
>> WELL, AS I MENTIONED BEFORE,
10:54
THE JUSTICE DEPARTMENT IS GOING
10:55
VERY CAUTIOUSLY ON THIS.
10:56
GIVEN THE POLITICAL WORLD THAT
10:58
WE'RE LIVING IN.
10:59
IN THAT LETTER THAT WAS
11:01
INITIATED BY GENERAL DEMPSEY AND
11:04
OTHERS, HE SAID WE'RE IN
11:07
EXCEPTIONALLY TREACHEROUS
11:08
WATERS.
11:08
AND SO, WE ARE TRYING TO TAKE
11:11
INTO ACCOUNT THE POLITICAL
11:13
ENVIRONMENT IN WHICH WE'RE NOW
11:14
BEING FORCED TO OPERATE.
11:15
IT'S NEVER HAPPENED LIKE THIS
11:17
BEFORE.
11:17
I THINK YOU CAN GO BACK TO THE
11:20
DAYS OF JOE McCARTHY.
11:22
THIS IS JOE McCARTHY-ISM ON
11:26
STEROIDS.
11:26
NO PRESIDENT IN THE HISTORY OF
11:28
OUR COUNTRY HAS EVER
11:29
DELIBERATELY TRIED TO ATTACK AND
11:31
UNDERMINE THE INSTITUTIONS OF
11:33
LAW ENFORCEMENT.
11:34
CERTAINLY, AT THE FBI, OF THE
11:36
JUSTICE DEPARTMENT, OUR
11:37
INTELLIGENCE COMMUNITY.
11:38
DON'T FORGET FORMER PRESIDENT
11:40
TRUMP UNDERMINED THE ENTIRE
11:42
INTELLIGENCE COMMUNITY IN FAVOR
11:44
OF RUSSIAN PRESIDENT PUTIN.
11:46
SO THE DAMAGE IS BEING DONE.
11:49
AND HAS BEEN DONE.
11:50
AND THAT'S WHY I QUOTED FROM JUDGE LUTTIG WHO SAID THAT THE FORMER PRESIDENT CONSTITUTES A CLEAR AND PRESENT DANGER TO DEMOCRACY AND TO THIS COUNTRY.

[admin]

The Trump ‘special master’ ruling violates the principle that no-one is above the law: Judge Aileen Cannon’s opinion screams out that she applies more lenient rules to Donald Trump
by Laurence H Tribe and Dennis Aftergut
The Guardian
Wed 7 Sep 2022 05.18 EDT

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

The best thing one can say about Judge Aileen Cannon’s decision Monday appointing a special master to review the documents seized from Trump’s Mar-a-Lago resort is that it’s not the end of the world: the Justice Department can continue its investigation of Donald Trump’s apparent theft and retention of highly sensitive defense-related documents, at least those that weren’t seized in the August 6 search. The Washington Post reported that those documents included nuclear secrets of other nations.

It can also continue to investigate his efforts to overturn the presidential election, culminating in his role in the violent insurrection of January 6, keeping in mind the historic holding of a New Mexico state court this September 6 that the 14th Amendment bars all who played such a role from ever again holding public office in the United States.

That said, Cannon’s ruling has to rank high in the annals of the worst reasoned judicial decisions in American history. Even former Trump Attorney General Bill Barr called it “deeply flawed.” If it signals that judicial Trumpism has spread more broadly than we thought, there may be danger ahead to our entire system of equal justice.

Apart from its abysmal reasoning, her ruling gives the Justice Department no good options. The need to prosecute Trump as soon as possible after this November’s midterm elections points to avoiding the delay an appeal could cause and just moving forward with the special master’s document review.

But with Judge Cannon’s order in place, it’s anyone’s guess when a reasonably neutral special master who can be cleared to review top secret material will emerge from the selection process and how expeditiously any such theoretical paragon might proceed. Moreover, any special master is bound to generate fights over specific documents that the judge will then need to resolve, leading to decisions that in turn could be subject to appeal. So appeal-related delays might be in the offing whatever the Justice Department opts to do.

Moreover, leaving Cannon’s order in place would set an abysmal precedent unless we could be assured it would be politely disregarded as an aberrant capitulation to a would-be tyrant.

But for the extreme stacking of the 11th Circuit Court of Appeals with right-wing Trump-appointed judges much like Cannon herself, any competent lawyer would take an immediate appeal.

First and foremost, the decision violates the first principle of the rule of law: that no one is above the law.

Cannon’s opinion screams out that she applies more lenient rules to Donald Trump. She writes, for example, that “the stigma associated with the subject seizure is in a league of its own” due to Trump’s “former position as President of the United States.”

She is acknowledging that none of us would be entitled to a special master or to a special pause in the investigation if we improperly took or held onto sensitive national security materials in our homes, much less a country club with open access to apparent Chinese intelligence agents.

To undermine the rule of law this way requires extending every favor to Trump, including bending facts and breaching fundamental legal rules.

Just take Cannon’s treatment of executive privilege as an example. She excuses Trump’s failure even to assert “executive privilege as to any specific materials” on the bizarre ground that he had been “denied an opportunity to inspect the seized documents” – even though he has possessed them for 19 months at his beachfront resort.

And she blithely concedes that the Presidential Records Act, on which Trump rests his claim to judicial relief, gives the federal courts for the District of Columbia, not Florida, exclusive jurisdiction over executive privilege determinations regarding presidential records like those in this case.

Instead of dismissing the case on that basis, she improperly proceeded to seize jurisdiction and to hold, for the first time ever, that a former president can successfully assert executive privilege not in a dispute with Congress or the Judiciary but with the Executive Branch itself – and over the contrary determination of the current head of that branch, the incumbent president.

To do that, she had to ignore the fact that the executive privilege determination had already been made: the acting National Archivist wrote in a letter to Trump lawyer Evan Corcoran that there was no executive privilege and that it wasn’t even “a close question.” That letter, which the DOJ had submitted to Judge Cannon, made clear that the archivist was writing after consulting with the Justice Department, which speaks in court for the Executive Branch.

Beyond ignoring all that, Cannon took the further unprecedented step of enjoining the Department from using anything seized in the court-approved August 8 search of Mar-a-Lago in its investigation of associated crimes until the Special Master completed review and determined what to do. And she volunteered that any “future indictment, based to any degree on property that ought to be returned, would result in reputational harm” so unique as to justify some further relief – casting a cloud over any future prosecution related to Trump’s Mar-a-Lago crimes!

Remarkably, Trump hadn’t even asked for so sweeping an injunction, much less for a hint about future prosecution; he moved only to bar use of the seized materials pending a special master’s appointment. Courts are not supposed to do more than parties ask. In this case, her doing so likely extended the delay from days to months and opened up questions about whether Trump could ever be held accountable for stealing national secrets!

Even when Congress has authorized federal judicial relief from blatantly unconstitutional police behavior, the Supreme Court has insisted scrupulously that courts not interfere with ongoing criminal investigations and prosecutions absent the most extraordinary showing of irreparable harm, including the clear insufficiency of post-conviction relief. But in this case, Judge Cannon casually bypassed any rigorous examination of the supposed harm Mr. Trump would suffer by having to await the result of the Justice Department’s investigation and challenging the use of any improperly seized evidence if and when it is introduced against him.

In this case, all Judge Cannon could cite as supposedly irreparable injury was the former president’s temporary deprivation of access to the seized items. Along with the government records, the FBI apparently seized Time magazine covers, clothing and other materials to show how they were intermingled insecurely with classified documents. Presumably, the irrelevant materials could be returned upon his request, as were his passports.

To appoint a special master to separate the wheat from the chaff is an extraordinary overreach. On that basis, as Berkeley Law School Professor Orin Kerr has pointed out, we can expect every target of a court approved search and seizure to demand a special master to help maintain access to whatever law enforcement agents seized.

And, as Asha Rangappa, the former FBI counterintelligence special agent and current Yale law school assistant dean has stated, the most bizarre thing is that “neither Trump nor his lawyers contest that he illegally possessed government and classified records! This isn’t even a case where they are protesting his innocence.”

So what is going on here? Let’s start by recognizing that Trump’s lawyers apparently went judge-shopping for Aileen Cannon in hopes of her being assigned the case and granting them the stall tactic they sought. Instead of going to the judge already overseeing the search warrant and located close by Mar-a-Lago, they filed the case 70 miles away – where Judge Cannon sits.

They’ve tried the tactic before, with less success, but this time they hit pay dirt.

She could have seen through the maneuver and transferred the case to the judge familiar with it. But she kept it, giving Trump the delay he sought and more. She also gave him a positive political narrative – a court victory – at a time when many Republicans had gone silent defending him because of the toxicity of his holding in an insecure location the nation’s most sensitive secrets.

To have done Trump these favors on the most transparently vacuous legal rationale leaves one with an obvious conclusion: that the same politicization that has infected the Supreme Court has also spread to the lower courts.

Indeed, anyone paying attention to Trump’s nomination process during his term can’t help suspecting an even greater corrupting phenomenon at work. The road to judicial elevation under Trump was paved by the Federalist Society’s recommendation lists. To qualify, judges must demonstrate via decisions their right wing bona fides.

Our constitutional republic requires that judicial decision making stay within the bounds of common sense, reason, precedent and the rule of law and outside the realm of extremist, results-driven irrationality. When it fails to do so, no explanation suffices short of abject political bias or personal ambition.

With Trump having appointed a wide swath of the federal judiciary, time will tell how far the corruption of law extends beyond this latest and most disturbing judicial intervention in the process of criminal justice. After all, we saw Trump-appointed judges perform well in many of his baseless challenges to the 2020 election.

In the end, Judge Cannon’s ruling may prove to be a one-off, another instance of Trump being treated as a class of one. There is every reason to hope that such treatment will end with a jury verdict in Fulton County, Georgia or in Washington, DC, for Donald Trump’s many crimes against the people of one state and the entire nation.

Laurence H Tribe is the Carl M Loeb University Professor and Professor of Constitutional Law at Harvard Law School

Dennis Aftergut, a former federal prosecutor, is of counsel to Lawyers Defending American Democracy

[admin]

Highlights, From ORDER
by Judge Aileen M. Cannon
Donald J. Trump, Plaintiff, v. United States of America, Defendant
9/5/22

THIS CAUSE comes before the Court upon Plaintiff’s Motion for Judicial Oversight and Additional Relief (the "Motion")...

Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence ("ODNI") as described in the Government’s Notice of Receipt of Preliminary Order ...

the Court finds resolution of the Motion sufficient and prudent on the present record....

On August 8, 2022, pursuant to the search warrant, the Government executed an unannounced search of Plaintiff’s residence. As reflected in the "Detailed Property Inventory" submitted by the Government in this action, agents seized approximately 11,000 documents and 1,800 other items from the office and storage room...

on August 22, 2022, Plaintiff filed the Motion for Judicial Oversight and Additional Relief, seeking (1) the appointment of a special master to oversee the review of seized materials regarding identification of personal property and privilege review; (2) the enjoinment of further review of the seized materials until a special master is appointed; (3) a more detailed receipt for property; and (4) the return of any items seized in excess of the search warrant...

Consistent with Rule 53(b)(1) of the Federal Rules of Civil Procedure, the Court issued a preliminary order indicating its intent to appoint a special master [ECF No. 29]. Shortly thereafter, the Government appeared in this action...

On August 30, 2022, the Government filed the Response to Plaintiff’s Motion [ECF No. 48], and on August 31, 2022, Plaintiff filed the Reply [ECF No. 58]....

Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure.6 Though somewhat convoluted, this filing is procedurally permissible7 ...[Rule 41(g) allows movants, prior to the return of an indictment, to initiate standalone actions "in the district where [their] property was seized."] ...and creates an action in equity. ... In other words, to entertain Plaintiff’s requests, the Court first must decide to exercise its equitable jurisdiction... To the extent the Motion seeks relief totally distinct from the return of property itself, the Motion invokes the Court’s inherent supervisory authority directly. ... In general, Rule 41(g) proceedings are "rooted in equitable principles" and served by "flexibility in procedural approach."...

Importantly, equitable jurisdiction is reserved for "exceptional" circumstances, see Hunsucker, 497 F.2d at 32, and must be "exercised with caution and restraint,"... Mindful of its limited power in this domain, the Court endeavors to fulfill its obligations under the law with due care....

the Court deems the exercise of equitable jurisdiction over this action to be warranted.... the former Fifth Circuit counseled courts to consider, for equitable jurisdiction purposes, whether the government displayed a callous disregard for the movant’s constitutional rights, whether the movant has an individual interest in and need for the seized property, whether the movant would be irreparably injured by denial of the return of the seized property, and whether the movant otherwise has an adequate remedy at law. ... Those factors, although mixed, ultimately counsel in favor of exercising jurisdiction....

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. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information ... The Government also has acknowledged that it seized some "[p]ersonal effects without evidentiary value" and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege ... the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date....

deprived of potentially significant personal documents, which alone creates a real harm,... an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.... When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press. ... Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials... Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith.... although some courts have rejected Richey’s observation as to the harm posed by indictments, Richey remains binding on district courts in the Eleventh Circuit). 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.... reputational harm of a decidedly different order of magnitude....

Plaintiff has persuasively argued that there is no alternative adequate remedy at law.... the Government might indefinitely retain the property without any opportunity for the movant to assert . . . his right to possession")..."that the state should not be permitted to deny individuals their property without recourse simply because there is no jurisdiction at law"—applies even when the seizure was lawful)....

these guideposts favor the careful exercise of equitable jurisdiction... the realm of equity "may properly be influenced by considerations of the public interests involved"...the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.... considerations pertinent to a holistic equitable analysis, the scales tip decidedly in favor of exercising jurisdiction.... At the hearing, the Government argued that the equitable concept of "unclean hands" bars Plaintiff from moving under Rule 41(g), citing United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) ("[ i]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands."). Howell involved a defendant who pled guilty to conspiring to distribute cocaine and then sought the return of $140,000 in government-issued funds that were seized from him following a drug sale to a confidential source. Id. at 972–73. That case is not factually analogous to the circumstances presented and does not provide a basis to decline to exercise equitable jurisdiction here. Plaintiff has not pled guilty to any crimes; the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized; and in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material, as in the case of the sale of cocaine. ..

the circumstances surrounding the seizure in this case and the associated need for adequate procedural safeguards are sufficiently compelling to at least get Plaintiff past the courthouse doors.....

The Government posits that Plaintiff lacks standing to bring a Rule 41(g) action or even to seek a special master, because the seized property consists of "Presidential records" over which Plaintiff lacks a "possessory interest"...

In Plaintiff’s view, what matters now is his authority to seek the appointment of a special master—not his underlying legal entitlement to possess the records or his definable "possessory interest" under Rule 41(g)... under the Fourth Amendment, settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable ...

the Court concludes that Plaintiff is not barred as a matter of standing from bringing this Rule 41(g) action or from invoking the Court’s authority to appoint a special master more generally. To have standing to bring a Rule 41(g) motion, a movant must allege "a colorable ownership, possessory or security interest in at least a portion of the [seized] property."... Once that preliminary showing is made, the standing requirement is satisfied, because "[the] owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property."... Contrary to the Government’s reading of Howell, Plaintiff need not prove ownership of the property but rather need only allege facts that constitute a colorable showing of a right to possess at least some of the seized property.... the Government concedes that the seized property includes "personal effects," 520 pages of potentially privileged material, and at least some material that is in fact privileged ... This is sufficient to satisfy the standing requirement for the Rule 41(g) request and the request for a special master....

a party has standing to seek review by a special master when at least some of the seized materials are privileged...

the parties’ submissions suggest the existence of genuine disputes as to (1) whether certain seized documents constitute personal or presidential records, and (2) whether certain seized personal effects have evidentiary value. Because those disputes are bound up with Plaintiff’s Rule 41(g) request and involve issues of fact, the Court "must receive evidence" from the parties thereon.... That step calls for comprehensive review of the seized property....

the Government’s position is that another round of screening would be "unnecessary" [ECF No. 48 p. 22]. The Court takes a different view on this record....

the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here.... the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material ... In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) ("In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.")....

the value added by an outside reviewer in terms of, at a minimum, the appearance of fairness.... DOJ filter review teams... are not always perceived to be as impartial as special masters.... "It is a great leap of faith to expect that members of the general public would believe any [wall between a filter review team and a prosecution team] would be impenetrable... the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct-reporting purposes on this specific matter. "...A commitment to the appearance of fairness is critical, now more than ever... The Government implies that additional independent review for attorney-client privilege, such as by a special master, is appropriate only when a search of a law firm occurred [ECF No. 48 pp. 30–32]. Whatever the extent of this argument, it fails decisively here. True, special masters ordinarily arise in the more traditional setting of law firms and attorneys’ offices. But the Court does not see why these concerns would not apply, at least to a considerable degree, to the office and home of a former president. Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. ...

Though the foregoing analysis focuses on attorney-client privilege, the Court is not convinced that similar concerns with respect to executive privilege should be disregarded in the manner suggested by the Government. The Government asserts that executive privilege has no role to play here because Plaintiff—a former head of the Executive Branch—is entirely foreclosed from successfully asserting executive privilege against the current Executive Branch... In the Court’s estimation, this position arguably overstates the law. In Nixon v. Administrator of General Services, ... the Supreme Court expressly recognized that (1) former Presidents may assert claims of executive privilege... the incumbent President is "in the best position to assess the present and future needs of the Executive Branch" for purposes of executive privilege, id. at 449. The Supreme Court did not rule out the possibility of a former President overcoming an incumbent President on executive privilege matters. Further, just this year, the Supreme Court noted that, at least in connection with a congressional investigation, "[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns." Trump v. Thompson,... "A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.")... On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion. ... even if any assertion of executive privilege by Plaintiff ultimately fails in this context, that possibility, even if likely, does not negate a former President’s ability to raise the privilege as an initial matter. Accordingly, because the Privilege Review Team did not screen for material potentially subject to executive privilege, further review is required for that additional purpose.... The Court recognizes that, under the PRA, "[t]he 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" to permit public dissemination of presidential records "violates the former President’s [constitutional] rights or privileges." ...

Rule 53(a) of the Federal Rules of Civil Procedure empowers courts to appoint a special master to "address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district."... a special master would be better suited than this Court to conduct the review.... Nor is the appointment of a special master unheard of in the context of potentially executive privileged material.... courts recognize that special masters uniquely promote "the interests and appearance of fairness and justice."... ("The Court agrees that the appointment of a special master is warranted here to ensure the perception of fairness."). Special effort must be taken to further those ends here....

the Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—...is appropriate and equitable to uphold the value of the special master review.... Although the Motion asks the Court to enjoin the Government’s review of the seized materials pending the appointment of a special master, it is clear that this request is meant to cover the Government’s temporary use of the seized materials and extend into the special master’s review process as appropriate. Any uncertainty on this point was clarified by Plaintiff’s presentation at the hearing.... several circuit courts have remarked on a district court’s authority to fashion an equitable remedy[] when appropriate . . . .").... a temporary restraint on use naturally furthers and complements the appointment of a special master. See, e.g., Stewart, 2002 WL 1300059, at *10 (instructing the government not to review the seized documents pending further instruction). To appoint a special master to make privilege determinations while simultaneously allowing the Government, in the interim, to continue using potentially privileged material for investigative purposes would be to ignore the pressing concerns and hope for the best.... Even without a temporary injunction as described herein, the Court would exercise its discretion to appoint a special master despite the considerably diminished utility of such an appointment. ...

Rule 65 recognizes the power of courts to issue injunctive relief. Such relief is considered "extraordinary," and to obtain it, a movant must "clearly carr[y] the burden of persuasion" as to the following factors: (1) a substantial likelihood of success on the merits; (2) irreparable injury unless the injunction is issued; (3) the threatened injury to the movant outweighs whatever damage the injunction may cause to the opposing party; and (4) the injunction would not be adverse to the public interest....

the Court is satisfied that Plaintiff has "a likelihood of success on the merits of [his] challenge to the [Privilege Review Team] and its [p]rotocol."... the risk that the Government’s filter review process will not adequately safeguard Plaintiff’s privileged and personal materials in terms of exposure to either the Investigative Team or the media—Plaintiff has sufficiently established irreparable injury....

the Government contends that the timing of the Motion—filed two weeks after the subject seizure occurred—"militates against a finding of irreparable harm"...The Court disagrees.... courts have held that delays of two or three weeks are not sufficiently long to undercut a showing of irreparable harm.... On balance, the Court is not persuaded.... In view of... Plaintiff’s inability to know the extent of what was seized, the Court is satisfied that Plaintiff did not "slumber[] on [his] rights."...

the public and private interests at stake support a temporary enjoinment on the use of the seized materials for investigative purposes, without impacting the Government’s ongoing national security review. As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.... circumstances supports the ‘strong public interest’ in the integrity of the judicial system."... The Government’s principal objection is that an injunction pending resolution of the special master’s review would delay the associated criminal investigation and national security risk assessment... with respect to the Government’s ongoing criminal investigation, the Court does not find that a temporary special master review under the present circumstances would cause undue delay.20 "[E]fficient criminal investigations are certainly desirable," In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust. "[T]he [G]overnment chose to proceed by securing a search warrant for [the former President’s home and office] and seeking and obtaining [a] magistrate judge’s approval of the [f]ilter [p]rotocol. The [G]overnment should have been fully aware that use of a filter team in these circumstances was ripe for substantial legal challenges, and should have anticipated that those challenges could delay its investigations."...

upon full consideration of the Rule 65 factors, the Court determines that a temporary injunction on the Government’s use of the seized materials for criminal investigative purposes pending resolution of the special master’s review process is warranted. The Court is mindful that restraints on criminal prosecutions are disfavored21 ... See Younger v. Harris, 401 U.S. 37, 43–44 (1971) ("[C]ourts of equity should not . . . act to restrain a criminal prosecution[] when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."); Stefanelli v. Minard, 342 U.S. 117, 120 (1951) (explaining that "[t]he maxim that equity will not enjoin a criminal prosecution" applies with greatest force in the context of the federal government interfering with state prosecutions). .... but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards....

it is hereby ORDERED AND ADJUDGED as follows:...

b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order...,

The Court RESERVES RULING on Plaintiff’s request for return of property pending further review.

[admin]

Trump Appointee Judge Cannon Gives Him Every Little Thing His Heart Desires, And Then Some: Laws are for the little people. And Democrats.
by Liz Dye
AboveTheLaw.com
September 6, 2022 at 2:13 PM

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

The wackassery continued this holiday weekend in Trump’s desperate effort to throw a wrench in the investigation of the mountain of expropriated government documents he was keeping in a storage locker by the pool at his country club. Yesterday, US District Judge Aileen Cannon agreed to appoint a special master to filter out not just attorney-client records, but anything which might be covered by executive privilege, as well as the former president’s personal property. And for good measure, she ordered the Justice Department to stop using the information it already reviewed in its ongoing criminal investigation.

How can a judge in a civil suit enjoin the federal government from conducting a criminal probe, particularly when there’s been exactly zero finding that prosecutors did anything other than strictly by the books?

Good question!

Over the past two weeks, Trump’s lawyers have deposited several indignant piles of word vomit, heavy on innuendo and light on legal reasoning, on the South Florida docket. But Team Trump’s failure to make a coherent legal argument was no deterrent to Judge Cannon, who filled in all the blanks for them, and even spared them the trouble of going through the hassle of filing a Rule 41 motion for the return of personal property, under the guise of ensuring “at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

“Settled law permits him, as the owner of the premises searched, to object to the seizure as unreasonable,” she tut-tuts, invoking a Fourth Amendment claim never asserted and ignoring the fact that such an objection should properly have been lodged with US Magistrate Judge Bruce Reinhart, who approved the original warrant.

The first bit of Trump’s homework that Judge Cannon completes for him is to go through the four-part analysis from Richey v. Smith, 515 F.2d 1239, to justify her own equitable jurisdiction. While conceding that “at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights,” the court invents “an individual interest in and need for the seized property” and “irreparable injury” from deprivation thereof that was never argued in Trump’s motions and is certainly not established by the evidence on the record.

Normal criminal suspects are accorded no such deference — it’s pretty much axiomatic that the government gets to keep your shit, even when the warrant is somehow defective. And here, it wasn’t. Indeed, US Magistrate Judge Bruce Reinhart specifically authorized agents to seize items adjacent to the government documents because they are evidence of improper storage and possession. That’s why Trump’s passports got confiscated in the search when the FBI “seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents.” It’s pretty hard to blame the General Services Administration, or the coffee boy, or gremlins for stashing government property in your desk drawer commingled with your personal documents.

Nonetheless, Judge Cannon tasked the special master with weeding out the former president’s “personal effects,” treating his lawyers’ gobbledygook filings as a motion for the return of property under Rule 41 of the Federal Rules of Criminal Procedure, even though no such motion was ever filed, and anyway, this is civil proceeding.

The court also made much of the fact that the DOJ’s filter team misclassified one document as not attorney-client privileged, only to have prosecutors catch the mistake and give it back. She not only cites the acknowledgement of the error as evidence that the process is fatally flawed, but huffs in a footnote that the government hasn’t removed the agents who caught the goof from the investigatory team.

Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team.

This order invents a set of entirely new judicial standards for the person who appointed her to the bench, and Judge Cannon makes no effort to hide it.

“Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith,” she says, invoking a legally cognizable interest in not getting prosecuted that regular investigatory targets could only dream of.

“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,” she added later. “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.”

Why anything other than attorney-client materials collected pursuant to a duly executed warrant “ought to be returned” is not entirely clear, and certainly not based on arguments put forward by Trump’s lawyers. Nevertheless, Judge Cannon appears to be contemplating giving government property back to Trump, tasking the special master with filtering out material subject to a claim of executive privilege.

Any such document would appear to be the property of the executive branch by definition. Nevertheless, the Judge Cannon focuses on the theoretical residual privilege interest acknowledged by the Supreme Court in Nixon v. Administrator of General Services, 433 U.S. 425 (1977) in support of the proposition that “arguably” Trump’s invocation of executive privilege might override Biden’s waiver of it. She similarly gestures toward dicta in the denial of cert for Trump’s challenge to the National Archives disclosure of his presidential records to the January 6 Select Committee. But Nixon lost that case, and so did Trump, so it seems highly unlikely that any privilege claim invoked to shield his own criminal activity from investigation by the DOJ, which is a part of the executive branch, is totally doomed. And not for nothing, but the Presidential Records Act sets out a procedure and venue for the invocation of executive privilege, and it doesn’t involve absconding with documents and lucking onto the friendly docket of a 41-year old denizen of the Federalist Society parked in South Florida.

So now the Justice Department is foreclosed from using any of the evidence seized, as the parties are instructed to confer and come up with proposed candidates and procedures for the special master order.

it is hereby ORDERED AND ADJUDGED as follows:...

b. a detailed proposed order of appointment in accordance with Rule 53(b), outlining, inter alia, the special master’s duties and limitations consistent with this Order...

-- ORDER, by Judge Aileen M. Cannon, DONALD J. TRUMP, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, 9/5/22

And prosecutors have to decide whether to appeal this batshit order, at least insofar as it enjoins them from doing their jobs. In a normal world, we’d just be looking at a delay of a few weeks, since the subset of documents covered by attorney-client and executive privilege is probably relatively small. But considering Judge Cannon’s gift to her patron, and Trump’s prior efforts to describe virtually every activity undertaken by his administration as presumptively privileged, God only knows what’s going to happen here.

Special Master Sidney Powell? Could be!

[admin]

The Solution to the Trump Judge Problem Nobody Wants to Talk About
by Dahlia Lithwick and Mark Joseph Stern
Slate
SEPT 06, 20225:20 PM

Mark Joseph Stern
@mjs_DC / Se[ 5. 2022

I predicted an outcome like this when the case got assigned to Judge Cannon -- and was assured that no judge would take Trump's absurd filing seriously. The problem, of course, is that Cannon is not a real judge, but a Trump judge, and one of the most corrupt of the bunch.

Legal analysts lit up social media on Monday in response to the broad and potentially devastating order by Judge Aileen M. Cannon, a Donald Trump appointee to the Southern District of Florida, temporarily halting the criminal investigation of the former president and his alleged pilfering of classified documents. Her order further authorized a special master to identify and return the small fraction of materials seized in last month’s court-approved search of Trump’s Mar-a-Lago residence that may belong to him. One analyst after another meticulously detailed the failings of Cannon’s reasoning: It was “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.” At some point, one truly runs out of euphemisms for lawless partisan hackery.

It’s possible to agree with every one of these criticisms but still find them less than satisfying. Because at the end of the day, no matter how much withering criticism she faces, Cannon still gets to put on the black robe and run interference for her benefactor. She will still get a standing ovation at some future Federalist Society gathering. She remains in control of this case. But it’s not just Cannon: Many smart lawyers also noted that the Justice Department now faces the unenviable task of having to appeal this decision up to higher courts that are filled with Trump appointees, which takes the sting out of the opprobrium: For all we know, the Trump-stacked 11th U.S. Circuit Court of Appeals or five radical justices on the Supreme Court may also greet her outrageous decision with a standing ovation.

So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

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We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before their judges or others, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.

It is not a stand-alone answer to point out that Cannon was a Trump pick—a member of the extremely not-neutral Federalist Society, seated after Trump lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in D.C., where Cannon has no jurisdiction and where Trump did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.

Until and unless those of us who are shocked and horrified at lawless rulings by lawless Trump judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of Donald Trump’s lifetime-appointed hacks for many decades.

There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of Trump’s judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force Trump judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.

We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go. Every one of us is going to need to decide how long we can continue to operate that way.

There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with Trump’s judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.

[admin]

Trump Appointed U.S. District Judge Aileen Cannon Needs To Be Impeached For Political Favors From The Bench (Updated)
by AZ BlueMeanie
Blog for Arizona
September 5th, 2022

Remember that Donald Trump and his corrupt lawyers went forum shopping for a Trump appointed judge – who was not the magistrate judge who issued the search warrant for his home in exile at Mar-a-Lago, the proper venue and jurisdiction for any challenge to the search warrant – whom they were confident would deliver a political favor from the bench, and that she did. Trump has corrupted the federal judiciary to be as corrupt as him. U.S. District Judge Aileen Cannon needs to be impeached for political favors from the bench. She is unfit to serve a lifetime appointment on the bench.

Norman Ornstein
@NormOrnstein·Follow
A reminder that Judge Cannon never should have taken this case. It was in the hands of the magistrate judge, she was picked by Trump’s lawyers solely because she was a Trumpist, in a jurisdiction nowhere near Mar-a-Lago. She has an effect engaged herself in obstruction of justice
10:04 AM · Sep 5, 2022

NBC News reports, Judge grants Trump’s special master request, delays parts of criminal probe:

In a major blow for the government, a [corrupt] federal judge approved former President Donald Trump’s request for a special master to oversee all the evidence the FBI seized last month from his Mar-a-Lago estate and temporarily blocked parts of the Justice Department’s investigation.

U.S. District Judge Aileen Cannon — a Trump appointee — said in her ruling Monday that the special master should be able to review the seized documents both to address questions of attorney-client privilege and to litigate claims of executive privilege.

Neal Katyal
@neal_katyal·Follow
This special master opinion is so bad it’s hard to know where to begin:
1. She says Biden hasn’t weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this is privileged. Archivist says it is “not a close” question.
2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Priv isn’t some post-presidential privilege that allows Presidents to keep documents after they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen docs.
3. She says the “reputational” harm to Trump justifies a special master. That’s insane–every crim deft has reputational harm. Are we now going to have special masters in every crim investigation?
4. She says the Special Master should screen materials for exec privilege, without ever once explaining what specific material is subject to exec priv, particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate Q out?
5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That’s a bazooka when one needs at most a scalpel.
6. She tries to enjoin the Exec Branch from using these materials in an investigation, but the govt has already reviewed all the materials. It makes no sense.
7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won’t have the docs back during the investig. That’s not irreparable, he can get them back later &if they are improperly used to bring an indictment, he can move to dismiss the indictment.
8. Her analysis of standing is terrible. Trump wouldn’t own these docs anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client docs, that handful of material can be separately dealt with–you don’t enjoin the entire investig for that.
9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.
That’s just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.
3:48 PM · Sep 5, 2022

https://twitter.com/TheBeatWithAri/stat ... _w5b4rAAAA

Government employees screening the documents had set aside only ones that might have been protected by attorney-client privilege and [correctly] argued that executive privilege was not at play here.

“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,” she wrote.

Trump had requested that a special master, a third-party attorney, review the material seized Aug. 8 to assess it for potential attorney-client or executive privilege issues.

Trump’s attorneys argued in a recent court filing that “left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse for [Trump] but to somehow trust the self-restraint of currently unchecked investigators.”

The Justice Department had argued against the special master request, saying a special master “is unnecessary and would significantly harm important governmental interests, including national security interests.” Justice Department spokesman Anthony Coley said in a statement Monday, “The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.”

Cannon allowed a national security review of the records to continue but temporarily blocked the government from reviewing and using them for its “investigative purposes.” She systematically rejected the Justice Department’s arguments that Trump’s special-master request was filed too late, that it was superfluous and that Trump had no right for review because he didn’t own the documents in question that were seized.

Norman Ornstein
@NormOrnstein·Follow
Judge single-handedly blocks criminal investigation, usurping clear cut executive power. This is a clear-cut impeachable offense.
11:05 AM · Sep 5, 2022

Cannon did not immediately grant Trump’s request to get back more of “his” property more quickly.

These classified documents are NOT his property! They are the property of the National Archives.

In a statement posted on his [QAnon conspiracy mongering] Truth Social website after the ruling, Trump attacked the Justice Department and the FBI as “totally corrupt.”

Psychological projection is a favorite tool of The Authoritarian Playbook: a media guide.

It is Donald Trump, his lawyers, and U.S. District Judge Aileen Cannon who are “totally corrupt” – the fix was in with this forum shopped corrupt judge. Our national security is at risk, as are U.S. intelligence assets overseas.

Steve Vladeck
@steve_vladeck·Follow
This ruling is preposterous—especially the part where it blocks the government from continuing to use materials already in its possession.

At the very least, that last ruling creates an immediately appealable injunctive-like order, which DOJ can now take to the Eleventh Circuit.
Chris “Subscribe to Law Dork!” Geidner

@chrisgeidner
BREAKING: Judge Aileen Cannon grants Trump’s request and orders the appointment of a special master to review questions over the materials seized at Mar-a-Lago. She also halts use of the materials for “criminal investigative purposes” pending the special master’s review.

10:16 AM · Sep 5, 2022

Please support independent journalism on Blog for Arizona!

[admin]

Trump Used His Department of Justice to Target Foes Who ‘Annoyed’ Him, Fired U.S. Attorneys, Book Says: Geoffrey S. Berman, the U.S. attorney for the Southern District of New York fired by Trump in 2020, makes a series of bombshell allegations.
by Allison Quinn
News Editor
Published Sep. 08, 2022 9:22AM ET

Justice Department officials under Donald Trump pursued criminal cases against critics of the-then president who “annoyed” him, according to a new book.

Geoffrey S. Berman, the U.S. attorney for the Southern District of New York fired by Trump in 2020, makes a series of bombshell allegations in his new book Holding the Line, excerpts of which were published by The New York Times on Thursday.

Berman describes federal prosecutors pursuing politically charged investigations when they’d be advantageous to Trump, and blocking them in cases where they’d be damaging. In one incident, according to the book, officials at the U.S. attorney’s office in Manhattan unsuccessfully pushed to remove all references to Trump in charging documents related to his former fixer Michael Cohen, who ultimately pleaded guilty to campaign-finance violations related to alleged “hush money” payments made to women who alleged they’d had affairs with Trump.

Berman alleges that when he was prosecutor in 2018, he was informed of interference in the case against Cohen. Then-Attorney General William Barr tried to squash investigations into campaign-finance violations by figures in Trumpworld in 2019, and even suggested Cohen’s conviction could be tossed despite him already having pleaded guilty, Berman wrote.

Barr did not respond to a request to comment on the allegation, according to the Times.

Berman also described pressure to charge a prominent Democratic lawyer, Gregory Craig, in connection with work he’d done in Ukraine potentially in violation of the Foreign Agents Registration Act. He said a Justice Department official had urged prosecutors to “even things out” and charge Craig before the November 2018 midterm elections.

After Berman’s office declined, he wrote, Trump officials “peddled” the case to another office, which indicted Craig but failed to secure a conviction in court.

A similar scenario played out in the case of former Secretary of State John Kerry, Berman alleged. After Kerry sparked the wrath of Trump on Twitter by trying to save the nuclear deal with Iran that Trump pulled out of, Berman wrote, Justice Department officials tasked his office with pursuing an investigation into Kerry.

“The conduct that had annoyed the president was now a priority of the Department of Justice,” he wrote, adding that: “No one needed to talk with Trump to know what he wanted. You could read his tweets.”

Despite DOJ officials imposing pressure with what Berman described as questions along the lines of “Why aren’t you going harder and faster at this enemy of the president?” the investigation ultimately went nowhere.

[admin]

Reply in Support of Its Motion to Stay Pending Appeal
by Juan Antonio Gonzalez, United States Attorney
Donald J. Trump, Plaintiff, v. United States of America, Defendant.
September 13, 2022

THE UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO STAY PENDING APPEAL
DONALD J. TRUMP, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
September 13, 2022

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

CASE NO. 22-CV-81294-CANNON

DONALD J. TRUMP,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
________________________________/

THE UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO STAY PENDING APPEAL

The United States’ motion for a stay pending appeal of this Court’s September 5, 2022 Order, Docket Entries (“D.E.”) 69, 64, seeks limited but critical relief. The government seeks a stay only as to a discrete set of just over 100 records marked as classified—that is, records that were specifically sought by a prior grand jury subpoena, whose unauthorized retention may constitute a crime, 18 U.S.C. § 793, and with markings signifying that their unauthorized disclosure “reasonably could be expected to result in damage to the national security,” including “exceptionally grave damage,” Exec. Order 13526 §§ 1.1(4), 1.2(1) (Dec. 29, 2009).1

The government’s stay motion demonstrates that the government is likely to succeed on the merits because Plaintiff cannot plausibly establish any property interest in or privilege claim as to the seized records marked as classified, that the government and the public are irreparably harmed while the Court’s Order as to those records remains in effect, and that a partial stay would impose no cognizable harm on Plaintiff. Plaintiff’s Response, D.E. 84, largely ignores those showings. Instead, Plaintiff principally seeks to raise questions about the classification status of the records and their categorization under the Presidential Records Act (“PRA”). But Plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified. More importantly, the issues Plaintiff attempts to raise are ultimately irrelevant. Even if Plaintiff had declassified these records, and even if he somehow had categorized them as his “personal” records for purposes of the PRA—neither of which has been shown—nothing in the PRA or any other source of law establishes a plausible claim of privilege or any other justification for an injunction restricting the government’s review and use of records at the center of an ongoing criminal and national security investigation. And nothing in Plaintiff’s Response rebuts the compelling public interest in granting the limited stay the government seeks. DISCUSSION I. The Government Is Likely to Succeed on the Merits First, Plaintiff has failed to rebut the government’s showing that the Court lacks equitable jurisdiction as to seized records bearing classification markings because Plaintiff categorically has no “property” interest in those records and no “need for” their return. D.E. 69 at 6-7 (citing Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975)). Plaintiff instead references other seized records that contain personal information or could be subject to attorney-client privilege, none of which are at issue in this stay motion. D.E. 84 at 7-8. As to the records marked as classified, Plaintiff asserts that the government has not “proven” their classification status. Id. at 8. But even if Plaintiff had declassified any of these records while he was President—a proposition that Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property. Furthermore, although Plaintiff observes that the PRA generally entitles him to access Presidential records created during his tenure, see id.; 44 U.S.C. § 2205(1), (3) (records “in the custody of the Archivist” “shall be available” to a former President or his designee), the PRA does not establish that a former President has any property right in Presidential records. To the contrary, it makes clear that “[t]he United States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. Plaintiff thus has no plausible property interest that would justify compelling this discrete set of records to be returned to him. The government is thus likely to succeed on jurisdictional grounds alone.

Second, Plaintiff has no viable claim of privilege as to the records bearing classification markings. He does not contest that he lacks a viable personal attorney-client privilege claim with regard to records marked as classified, because such records would not contain communications between Plaintiff and his personal attorneys. See D.E. 69 at 8. And Plaintiff offers no response to the government’s multiple arguments demonstrating that he cannot plausibly assert executive privilege to prevent the Executive Branch itself from reviewing records that Executive Branch officials previously marked as classified. The government explained that Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (“Nixon v. GSA”), precludes a successful assertion of executive privilege against the Executive Branch; that any assertion here would in any event be overcome under United States v. Nixon, 418 U.S. 683 (1974), given the government’s compelling need for these records, the unauthorized retention of which is the very subject matter of the government’s criminal investigation; that any claim of privilege over these records is further foreclosed because the Constitution vests the incumbent President with the authority to control access to classified information; and that Plaintiff failed to raise any purported executive privilege claims when responding to a grand jury subpoena for all documents in his possession bearing classification markings. D.E. 69 at 8-12. Plaintiff does not address any of those arguments.

Instead, Plaintiff notes only that this Court “expressed skepticism” about the government’s executive privilege arguments in its prior Order. D.E. 84 at 10. But the Court’s observations focused on whether a former President is entirely foreclosed from asserting executive privilege against the Executive Branch. D.E. 64 at 17. The Court did not address the government’s arguments specifically establishing that no plausible assertion of privilege could bar the review by the Executive Branch of the discrete set of seized records bearing classification markings in the context of an ongoing criminal and national security investigation. In any event, it is Plaintiff—not the Court and not a special master—who would need to make an assertion of executive privilege and supply reasons supporting that assertion. He has provided none.

Plaintiff’s attempts to change the subject by holding out the possibility that he could have declassified some of the seized records and/or that he could have designated them as “personal” records, D.E. 84 at 11-15, fare no better. As already noted, 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. In light of the classification markings, official cover sheets, and other indicia of classification attendant to these materials, see, e.g., D.E. 48-1, Attachment F, such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence.

In any event, even if Plaintiff had declassified any of the approximately 100 seized records bearing classification markings while he was still in office, the government’s “demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would easily overcome any asserted claim of privilege. For obvious reasons, the Intelligence Community (“IC”) would have a compelling need to understand which formerly-classified records have now been declassified, why and how they were declassified, and the impact of any such declassification, including on the IC’s protection of its sources and methods and on the classification status of related records or information. The Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”) would also have a compelling need to review any purportedly declassified records as part of the government’s investigation into the adequacy of the response to the May 2022 grand jury subpoena, which sought “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” D.E. 48-1 Attachment C (emphasis added). Furthermore, the government would need to consider the records’ prior declassification as relates to the application of 18 U.S.C. § 793. See D.E. 69 at 14 (explaining the relevance of classification status in such matters).

Plaintiff’s suggestion that he “may have categorized certain of the seized materials as personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would only supply another reason that he cannot assert executive privilege with regard to those records. If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. § 2201(3) (defining “personal records” as records “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”). In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information.2

More generally, Plaintiff’s Response disregards this Court’s acknowledgement of its “limited power in this domain” involving the exercise of equitable jurisdiction in connection with an ongoing criminal investigation. D.E. 64 at 8. The Court ordered the appointment of a special master solely to “manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” Id. at 23. The Court did not—and could not—appoint a special master to exercise roving “supervisory authority” over the government’s ongoing criminal investigation, contra D.E. 84 at 4, 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. Because Plaintiff cannot plausibly assert executive privilege (or attorney-client privilege, see supra p. 3) as to any seized records bearing classification markings, the Court should not enjoin the government’s use of those records or order those records reviewed by a special master pending the government’s appeal.

II. The Government and the Public Will Suffer Irreparable Harm Absent a Stay

The Court’s injunction against the government’s review of seized records bearing classification markings for purposes of its criminal investigation has caused and will continue to cause irreparable harm. As the government has explained, the IC’s intelligence classification review and national security assessment—which the Court sought to allow to continue in recognition of the vital interests at stake—are closely linked to its criminal investigation, and therefore cannot proceed effectively while the injunction remains in place. D.E. 69 at 12-16; see generally D.E. 69-1 (Declaration of Alan E. Kohler, Jr.). Plaintiff suggests various potential methods for drawing a distinction, such as by allowing the government to use the records for “forward looking” assessments regarding the protection of “vital national interests” but not “backwards looking” inquiries into violations of law, D.E. 84 at 15-16, or by distinguishing between the government’s subjective “purpose” for reviewing or using the records, id. at 17. Plaintiff thus implicitly acknowledges that the government and the public would be irreparably harmed by an injunction that bars the effective conduct of a classification review and national security assessment. But as the government has demonstrated, its “forward looking” mission of protecting national security necessarily requires it to understand the extent to which classified information may have recently been compromised. D.E. 69 at 14-15. And to the extent the Court’s injunction were to turn on the subjective “purpose” motivating individual government personnel, such an injunction could be subject to serious challenge for failure to “state its terms specifically” and to “describe in reasonable detail . . . the act or acts restrained.” Fed. R. Civ. P. 65(d)(1). In attempting to draw what are ultimately unworkable distinctions, Plaintiff only underscores that the government’s national security and criminal investigative missions are overlapping and mutually reinforcing.

Furthermore, even if the IC, which includes the FBI, were permitted to resume its classification review and national security assessment in some limited manner, Plaintiff fails to address DOJ’s and the FBI’s inability, under the Court’s injunction, to use the seized records to investigate whether or to what extent the seized records were accessed by unauthorized individuals or whether other classified records remain missing. D.E. 69 at 14- 17. Those are criminal investigative functions, and the government is irreparably harmed while it is enjoined from using the seized records bearing classification markings for those purposes.

For that and other reasons, the delay of the government’s criminal investigation constitutes its own irreparable harm. The government and the public unquestionably have an interest in the timely enforcement of criminal laws, particularly those involving the protection of highly sensitive information, and especially where, as here, there may have been efforts to obstruct its investigation. The government’s ability to perform other investigative tasks that do not require its review or use of the records marked as classified does not “refute[]” this irreparable harm. D.E. 84 at 18. These records are at the core of the government’s investigation, and the government’s inability to review and use them significantly constrains its investigation. The compelled disclosure of records marked as classified to a special master further harms the Executive Branch’s interest in limiting access to such materials absent any valid purpose served by their review. See United States v. Reynolds, 345 U.S. 1, 10-11 (1952) (courts should be cautious before requiring judicial review, even ex parte and in camera, of documents whose disclosure would jeopardize national security).

Finally, Plaintiff’s submissions to the Court indicate that Plaintiff contemplates a prolonged 90-day review period by the special master. Thus, even assuming that a special master begins that review immediately, the review would not be complete until December under Plaintiff’s proposed timeline. All the while, the Intelligence Community would (at best) be limited in its ability to address and fully mitigate any national security risks presented by the storage and handling of the classified records at issue here, and DOJ and the FBI would be unable to perform critical parts of their criminal investigatory functions.

III. Plaintiff Has Failed to Establish Any Cognizable Harm

Plaintiff has not described any cognizable harm that he would incur from a partial stay. He states only that “enhanced vigilance” in this investigation will serve a public interest in fairness and transparency, going so far as to suggest that this investigation “must be conducted in public view.” D.E. 84 at 19-20. But the public is best served by evenhanded adherence to established principles of civil and criminal procedure, regardless of the identity of the parties or the degree of public attention. Here, the seized records bearing classification markings are the government’s own documents and are evidence obtained pursuant to a duly authorized search warrant in the course of a criminal investigation. The government and the public have a compelling interest in that investigation continuing. And Plaintiff is not entitled to restrict the government’s investigation pending a review of these records for privilege claims that cannot prevail.

Conclusion

The Court should stay its September 5, 2022 Order pending appeal to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings and (2) requires the government to disclose those classified records to a special master.

Respectfully submitted,

/s Juan Antonio Gonzalez
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
Florida Bar No. 897388
99 NE 4th Street, 8th Floor
Miami, FL 33132
Tel: 305-961-9001
Email: [email protected]

MATTHEW G. OLSEN
Assistant Attorney General
National Security Division
/s Jay I. Bratt
JAY I. BRATT
CHIEF
Counterintelligence and Export Control
Section
National Security Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Illinois Bar No. 6187361
Tel: 202-233-0986
Email: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 13, 2022, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF.

s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

___________

Notes:

1 Plaintiff has characterized the government’s criminal investigation as a “document storage dispute” or an “overdue library book scenario.” D.E. 84 at 1; 9/1/22 Hrg. Tr. at 31:20-21. In doing so, Plaintiff has not addressed the potential harms that could result from mishandling classified information or the strict requirements imposed by law for handling such materials. See 32 C.F.R. § 2001.43 (describing detailed requirements for the storage of TOP SECRET information, including approved vaults, alarm systems, and construction specifications).

2 Plaintiff’s characterization of the discretion the PRA provides the President to categorize records as “Presidential” or “personal,” D.E. 84 at 14-15 (citing Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012)), is thus irrelevant here. In any event, the district court decision on which Plaintiff relies did not concern classified records and does not support his assertion that a court must accept a former President’s claim that records that indisputably qualify as Presidential records under the PRA are instead personal records. Instead, the court in Judicial Watch concluded that it could not compel the National Archives and Records Administration to revisit a President’s decision about such a categorization. 845 F. Supp. 2d at 300-301. More fundamentally, the district court’s analysis in Judicial Watch has no bearing on the application of criminal law regarding unauthorized retention of national defense information, unauthorized removal of government documents, or obstruction of justice. 18 U.S.C. §§ 793, 2071, 1519.

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'Outrageous And Stupid': Legal Experts Excoriate Trump Judge's New Ruling
by Lawrence O'Donnell
MSNBC
Sep 15, 2022

Legal experts Neal Katyal, Andrew Weissmann and Bradley Moss join MSNBC’s Lawrence O’Donnell to discuss why a Trump-appointed judge’s ruling that classified docs seized from Donald Trump’s Florida home are not classified is “the end of the rule of law.”



Transcript

[Lawrence O'Donnell] ANDREW WEISSMANN, LET ME BEGIN WITH YOU. I'M GOING TO GIVE EACH OF YOU JUST AN OPEN MIC TO GIVE US WHATEVER YOU ARE THINKING ABOUT WHAT YOU HAVE READ TONIGHT FROM THIS JUDGE.

>> [Andrew Weissmann] WELL, LAWRENCE, THERE IS SO MUCH TO CHOOSE FROM. I AM CERTAINLY GOING TO LEAVE A LOT ON THE TABLE FOR NEAL AND BRAD, BECAUSE THERE ARE SO MANY OUTRAGEOUS AND STUPID, FRANKLY, PIECES OF THIS DECISION. IT IS REMARKABLE BECAUSE YOU NEVER THOUGHT THAT [THERE COULD BE] SOMETHING WORSE THAN HER LAST DECISION, AND THIS ACTUALLY TOPPED IT. BUT LET ME FOCUS ON SOMETHING I THOUGHT WAS PARTICULARLY IMPORTANT, AND THEN ALSO GO TO SOMETHING THAT IS MAYBE POSITIVE. SO, ONE OF THE THINGS THAT I THOUGHT WAS PARTICULARLY EGREGIOUS IS THAT SHE COMES RIGHT OUT AND SAYS, AT THE END OF HER DECISION, THAT SHE IS GIVING EXTRA WEIGHT TO TRUMP BECAUSE HE WAS THE PRESIDENT. SHE JUST COMES RIGHT OUT AND SAYS IT. IF ANYONE WANTS TO SEE THE END OF THE RULE OF LAW, IT IS, JUST READ THE DECISION. IF JOHN LOCKE FAMOUSLY SAID, "WHERE LAW ENDS, TYRANNY BEGINS," YOU READ THIS DECISION AND WHAT SHE SAID, AND SHE IS ADMITTING THAT A POSITION THAT THE PERSON HELD IS GOING TO CARRY EXTRA WEIGHT IN TERMS OF HOW HE IS TREATED IN COURT. THAT IS A VIOLATION OF HER OATH AS A JUDGE, TO TREAT EVERYONE THE SAME. I FOUND THAT JUST SO SHOCKING. AND I WILL LEAVE TO NEAL AND TO BRAD, ALL SORTS OF OTHER THINGS, BUT NOW WE TURN TO SOMETHING POSITIVE, WHICH YOU MENTIONED, WHICH, IS BECAUSE SHE IS ALSO, FRANKLY, I THINK, A CHICKEN -- SHE COULD BE DOING ALL THIS REVIEW HERSELF, BUT SHE HAS DECIDED TO HAVE A SPECIAL MASTER. WELL, THAT IS A BIG PLUS FOR THE DEPARTMENT HERE, BECAUSE RAYMOND DEARIE IS A REAL STEP UP, IN A COMPLETE DIFFERENT LEAGUE THAN THIS JUDGE. AND SO BY HER SUBCONTRACTING OUT HER OWN DUTIES AND ACTUALLY, AND I THINK SHE IS THINKING, "LET HIM BE THE FALL GUY; LET HIM HAVE TO SAY THAT DONALD TRUMP IS WRONG," BECAUSE THEN HER HANDS ARE SOMEWHAT CLEAN. I THINK THAT IS WHAT IS GOING ON HERE. AND IT'S REALLY DISGRACEFUL, THAT THAT IS THE WAY SHE IS APPROACHING HER JOB. BUT FROM THE DEPARTMENT OF JUSTICE'S POINT OF VIEW, I THINK THAT THERE IS A LOT OF HOPE THAT THEY SHOULD HAVE, GIVEN JUDGE DEARIE'S TRACK RECORD, AND HIS COMMON SENSE AND INTEGRITY.

>> [Lawrence O'Donnell] NEAL KATYAL, GO.

>> [Neal Katyal] SO, LAWRENCE, YOU'VE HEARD OF OLIVER WENDELL HOLMES, JOHN MARSHALL, RUTH BADER GINSBURG. THIS IS LIKE THE POLAR OPPOSITE OF THEM. AND WE USED TO SAY AT THE SOLICITOR GENERAL'S OFFICE THAT SOME APPEALS WIRTE THEMSELVES. THIS IS ON., AND IT IS A TERRIBLE, TERRIBLE ABUSE OF OUR LEGAL SYSTEM, FOR REASONS THAT ANDREW JUST MENTIONED A MOMENT AGO. IT WAS ALSO ENTIRELY UNNECESSARY. THE JUSTICE DEPARTMENT GAVE THIS JUDGE AN OPPORTUNITY TO WALK BACK HER NOT-SO-EARLIER OPINION. AND INSTEAD, SHE CHOSE TO DIG HER HEELS IN. I MEAN, BILL BARR CALLED THIS REQUEST FOR A SPECIAL MASTER, "A CROC OF S-WORD". AND WHILE I THOUGHT THAT WAS KIND OF MEAN TO CROCS, THIS OPINION IS LIKE A CROC OF CROC OF THE S-WORD. AND THE JUSTICE DEPARTMENT GAVE HER A LIFELINE, AND SHE JUST BLEW IT OFF. AND I CAN TELL, YOU THIS DECISION SHOULD BE REVERSED WITHIN A WEEK. AND THE JUSTICE DEPARTMENT GAVE HER THAT SENSIBLE PROPOSAL SAYING, "LOOK, THERE'S 100 DOCUMENTS. HE HAS NO, TRUMP HAS NO PLAUSIBLE CLAIM TO OWNERSHIP OF THESE DOCUMENTS. THEY ARE OBVIOUSLY GOVERNMENT DOCUMENTS. AT LEAST SEPARATE THAT OUT." SHE HAS NO REAL ARGUMENT AGAINST THAT. SO IF I'M THE SOLICITOR GENERAL, WHAT I WOULD DO IS GO TO THE 11TH CIRCUIT TONIGHT, OR TOMORROW MORNING, SEEK AN EMERGENCY STAY OF THIS DECISION, AND I WAS ALWAYS RELUCTANT TO SEEK EMERGENCY STAYS WHEN I WAS AT THE JUSTICE DEPARTMENT, BUT IN RARE CIRCUMSTANCES YOU WOULD. THIS IS THAT CIRCUMSTANCE. YOU STAY THIS RULING ABOUT THE HUNDRED OR SO DOCUMENTS. YOU LET THE CRIMINAL INVESTIGATION PROCEED. AND THEN YOU APPEAL THE ENTIRE BALL OF WAX, WHICH IS CRAZY, JUST SLIGHTLY LESS CRAZY THAN THE OTHER PARTS OF HER DECISION. AND LET ME JUST ISOLATE ONE REASON WHY I THINK THAT STRATEGY MAKES SENSE. THERE IS A WHOLE THING IN THE LAW ABOUT IRREPARABLE HARM, WHICH IS, IF THIS INVESTIGATION GOES FORWARD, WHO IS HARMED? AND THE JUSTICE DEPARTMENT PROVIDED THIS AFFIDAVIT THAT SAID "JUDGE, YOUR SPECIAL MASTER RULING IS GOING TO ENDANGER NATIONAL SECURITY," AND SHE SAYS, IN HER RULING TONIGHT, "WELL, I JUST DON'T SEE THAT," BASED ON I GUESS, HER EXTENSIVE NATIONAL SECURITY EXPERIENCE. LET ME JUST SAY IN A CONCRETE WAY, EXPLAIN HOW THIS MATTERS. BECAUSE BEFORE I WAS ACTING SOLICITOR GENERAL, I WAS NATIONAL SECURITY ADVISER FOR THE JUSTICE DEPARTMENT. SOME OF THESE DOCUMENTS ARE MARKED WITH "HCS", THAT'S "HUMAN SOURCE MATERIAL." AND WHAT THAT IS, IS LIKE SOMEONE WHO IS A SPY, WHO IS MAYBE WORKING IN A FOREIGN GOVERNMENT SPYING. SOMETHING LIKE THAT. THEY ARE IN THE FIELD. NOW, IF YOU'RE THAT PERSON IN THE FIELD RIGHT NOW, YOU HAVE NO IDEA WHETHER THOSE DOCUMENTS THAT TRUMP BROUGHT TO HIS GOLF CLUB ARE ABOUT YOU, AND WHO GOT TO SEE THOSE DOCUMENTS. IF YOU'RE THAT PERSON, YOU'VE GOT TO BE FREAKING OUT RIGHT NOW. NOW WHAT KIND OF INTELLIGENCE DO YOU THINK WE'RE GOING TO BE GETTING FROM THAT PERSON IN THE INTERIM, WHILE WE WAIT FOR THE SPECIAL MASTER TO REACH HIS DECISION? AND WOULDN'T WE WANT TO REASSURE EVERYONE ELSE IN THE FIELD THAT, YOU KNOW, "LOOK, THESE DOCUMENTS AREN'T ABOUT YOU, THEY'RE ABOUT SOMETHING ELSE. AND YOU DON'T HAVE TO WORRY." WOULDN'T YOU WANT THAT ASSESSMENT TO HAPPEN RIGHT NOW? SHE JUST BLOWS IT OFF! EASY APPEAL, EASY STAY.

>> [Lawrence O'Donnell] BRADLEY MOSS, YOU'VE SERVED AS A DEFENCE CRIMINAL ATTORNEY IN CLASSIFIED DOCUMENTS CASES. THE PART OF THE ORDER THAT IS CURIOUS TO ME IS, WHEN THE JUDGE ORDERS THAT THE SPECIAL MASTER WILL SHOW ALL OF THE CLASSIFIED DOCUMENTS TO DONALD TRUMP'S LAWYER. NONE OF THEM HAVE EVER SEEN A CLASSIFIED DOCUMENT. NONE OF THEM HAVE ANY SECURITY CLEARANCES. HOW IS THAT DONE IN THAT SITUATION?

>> [Bradley Moss] YEAH, SO, THEY'RE GOING TO HAVE TO GET SECURITY CLEARANCE. THEY ARE GOING TO HAVE TO GO THROUGH THE PROCESS, WHICH CAN BE EXPEDITED, TO BE FAIR. THEY'LL HAVE TO FILL OUT THE STANDARD FORM 86. IT WILL GET A QUICK RUN THROUGH ASSUMING NO IMMEDIATE RED FLAGS SHOW UP. THEY WILL REVIEW AND INSPECT THE DOCUMENTS IN A SECURE FACILITY, IN THE PRESENCE OF THE SPECIAL MASTER. THEY WON'T BE ABLE TO TAKE ANYTHING OUT. ANY NOTES THEY TAKE WILL HAVE TO BE REVIEWED FOR DE- CLASSIFICATION, AND IF THEY ARE CLASSIFIED, THEY WILL STAY IN THE CUSTODY OF THE SPECIAL MASTER. BUT HERE IS THE PART THAT MAKES NO SENSE TO ME WHEN I AM READING THIS SPECIAL MASTER ORDER. WHAT IS THE SPECIAL MASTER GOING TO DO WITH THESE MARKED DOCUMENTS WITH CLASSIFICATION MARKS? HE'S GONNA LOOK AT THEM, HE'S GOING TO SAY OKAY, I SEE TOP SECRET, SCI, WITH HCS AS, NEIL SAID,.WHAT DO YOU WANT ME TO DO WITH THAT? THAT'S PROPER CLASSIFICATION MARKING. ALL DONALD TRUMP CAN THEORETICALLY SAY IS, "WELL, I VERBALLY DECLASSIFIED THEM." AND LET'S ASSUME, FOR THE MOMENT, HE GETS KASH PATEL, AND WHOEVER, TO SUBMIT A SWORN DECLARATION SAYING "YES, I STOOD THERE WHILE HE DECLASSIFIED THEM VERBALLY." SO WHAT? THE RELEVANT STATUTES DON'T CARE. THE ESPIONAGE ACT DOESN'T CARE! THE TWO OBSTRUCTION PROVISIONS DO NOT CARE IF THE DOCUMENTS WERE STILL CLASSIFIED. THEY STILL HAVE CLASSIFICATION MARKINGS. HE JERKED DOJ AROUND, AS NO OTHER THAN BILL BARR SAID. AND HE DIDN'T TURN OVER, AND MADE HIS LAWYERS LIE TO THE FBI. WHETHER OR NOT HE VERBALLY, OR IN HIS MIND, WHILE PLAYING GOLF, DECLASSIFIED THESE RECORDS, IS ULTIMATELY GOING TO BE IRRELEVANT. AND I DON'T KNOW WHAT THE SPECIAL MASTER IS SUPPOSED TO SAY THERE OTHER THAN "THESE CLASSIFICATION MARKINGS ARE VALID." END OF DISCUSSION!

[admin]

DOJ Has No Option But To Appeal’: Brandon Van Grack
by Nicole Wallace
MSNBC
Sep 16, 2022

Former senior national security official at the Department of Justice Brandon Van Grack reacts to Judge Aileen Cannon yet again denying the Department of Justice access to roughly 100 classified documents



Transcript

[Nicole Wallace] TAKE TRUMP OUT OF IT JUST FOR A SECOND. WHAT IS CANNON GETTING WRONG ABOUT THE MATERIAL THAT'S BEEN SEIZED?

>> [Brandon Van Grack] WELL, PART OF IT IS IN TERMS OF HER AUTHORITY TO DETERMINE WHAT THAT MATERIAL IS. IT IS IN TERMS OF DEFINING WHAT IS CLASSIFIED INFORMATION, WHAT IS NATIONAL SECURITY INFORMATION, THAT SHOULD BE RESTRICTED, THAT SHOULD BE CONTROLLED. THAT'S THE PURVIEW OF THE PRESIDENT OF THE UNITED STATES, BECAUSE HE OR SHE IS COMMANDER IN CHIEF. AND THE SUPREME COURT HAS CODIFIED THAT. THAT'S SORT OF A LONG-STANDING PRINCIPLE. AND IN HER OPINION, SHE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE AND SAYS ULTIMATELY, "I DON'T KNOW IF I SHOULD TRUST THIS REPRESENTATION AND, THEREFORE, WE SHOULD PROVIDE THIS CLASSIFIED INFORMATION TO A SPECIAL MASTER. AND ULTIMATELY, AFFORD THIS JUDGE THE ABILITY TO DETERMINE WHAT IS CLASSIFIED." AND THAT'S JUST NOT THE ROLE OF THE JUDICIAL BRANCH. THAT'S NOT THE ROLE OF THIS JUDGE.

>> [Nicole Wallace] AND I SAID TAKE TRUMP OUT OF IT FOR A SECOND, BECAUSE I THINK, LIKE EVERYTHING INVOLVING TRUMP, IT MUDDLES EVERYTHING. BUT I THINK IT'S AN IMPORTANT DISTINCTION. YOU'RE SAYING CLASSIFIED INFORMATION BELONGS TO THE GOVERNMENT THAT CLASSIFIED IT. AND WHETHER TRUMP DECLASSIFIED CERTAIN THINGS OR NOT, IS IRRELEVANT TO WHAT HAS BEEN SEIZED. TALK ABOUT THE CHAIN OF CUSTODY NOW BEFORE IT COULD EVEN GET BACK INTO THE HANDS OF THE GOVERNMENT.

>> [Brandon Van Grack] RIGHT NOW THE GOVERNMENT STILL HAS THAT INFORMATION.

>> [Nicole Wallace] BUT CAN'T USE IT.

>> [Brandon Van Grack] IT CAN'T -- WELL, IT CAN'T USE IT FOR ITS CRIMINAL INVESTIGATION, AND THIS IS WHERE THE JUDGE SORT OF SPLIT HAIRS, AND SAID, "FOR THE NATIONAL SECURITY ASSESSMENT, TO DETERMINE WHAT DAMAGE HAS BEEN CAUSED, IT CAN BE USED." BUT THE GOVERNMENT'S POINT IS, YOU CANNOT SEPARATE THAT FROM THE CRIMINAL INVESTIGATION. WHAT THE FBI IS DOING RIGHT NOW IS ESSENTIAL TO DETERMINING WHAT DAMAGE MAY HAVE OCCURRED, AND HOW TO -- HOW TO MITIGATE IT. THEY NEED TO KNOW WHO MAY HAVE HAD ACCESS TO THAT CLASSIFIED INFORMATION. WHERE WAS IT STORED. THAT IS -- THAT IS ESSENTIAL, BECAUSE DAMAGE OCCURS IF THIS CLASSIFIED INFORMATION WAS -- SOMEONE HAD UNAUTHORIZED ACCESS TO IT. AND THE MORE SPECIFICITY THEY HAVE, THE BETTER THEY CAN DETERMINE THE DAMAGE, THE BETTER THEY CAN MITIGATE IT. AND RIGHT NOW THE GOVERNMENT DOES NOT HAVE THE ABILITY TO MAKE THAT DETERMINATION.

>> [Nicole Wallace] WHEN YOU WERE AT DOJ, THIS CASE WOULD HAVE BEEN SOMETHING YOU WOULD HAVE BEEN INVOLVED IN. HAVE THEY ARGUED THIS AS PLAINLY AS YOU THINK THEY CAN? WHAT IS THE BEST ARGUMENT TO MAKE?

>> [Brandon Van Grack] I THINK THE LAST TWO FILINGS THAT THE DEPARTMENT OF JUSTICE HAS MADE, IT'S ELEGANT IN TERMS OF ITS TONE AND SUBSTANCE, AND WHAT YOU HAVE HERE IS, EVEN THOUGH WE'RE TALKING ABOUT A SPECIAL MASTER, THEY HAVE SUBSTANTIALLY NARROWED THE QUESTION HERE. AND THAT'S WHAT MADE, TO USE YOUR WORDS, THE DECISION LAST NIGHT "ASTONISHING." THEY HAVE NARROWED IT IN SAYING, "EVEN THOUGH WE DISAGREE WITH THE IMPOSITION OF A SPECIAL MASTER -- IT'S UNNECESSARY, UNREASONABLE -- PUTTING THAT ASIDE, YOU CANNOT TELL THE EXECUTIVE BRANCH, AND BY EXTENSION THE PRESIDENT OF THE UNITED STATES, THEY CANNOT CONTROL ACCESS TO CLASSIFIED INFORMATION. THAT THEY" -- REMEMBER, THE SPECIAL MASTER, THE PURPOSE OF THE SPECIAL MASTER IS TO DETERMINE, "IS THERE INFORMATION THAT THE DEPARTMENT OF JUSTICE AND FBI SHOULD NOT HAVE." FOR EXAMPLE, ATTORNEY-CLIENT INFORMATION, SENSITIVE INFORMATION BETWEEN ATTORNEY AND HIS OR HER CLIENT.

>> [Nicole Wallace] TRUMP AND RUDY OR TRUMP AND WHOEVER --

>> [Brandon Van Grack] YOU KNOW, EVEN IN -- YOU'RE TAKING AWAY TRUMP FROM THE CONVERSATION. LET'S TAKE TRUMP AWAY FROM THE CONVERSATION. THE POINT IS THERE ARE COMMUNICATIONS BETWEEN AN ATTORNEY AND HIS OR HER CLIENT. THE GOVERNMENT SHOULD NOT HAVE ACCESS TO, AND A SPECIAL MASTER IS SUPPOSED TO DETERMINE THIS INFORMATION SHOULD NOT BE PROVIDED. AND THAT'S WHAT MAKES THIS DECISION SO ASTONISHING, WHICH IS IT SETS UP THE POSSIBILITY THAT THE SPECIAL MASTER AND THE JUDGE COULD SAY, "THE DEPARTMENT OF JUSTICE AND THE EXECUTIVE BRANCH CANNOT HAVE ACCESS TO THIS CLASSIFIED INFORMATION. I MEAN, IT IS -- IT'S AN UNTENABLE CIRCUMSTANCE. AND THE REASON WE'RE THERE, IS BECAUSE THE DEPARTMENT OF JUSTICE HAD NARROWED THE SCOPE OF THEIR REQUEST, AND PUT THE JUDGE IN A SITUATION TO PRESUMABLY NOT REACH THIS DECISION. BUT IT'S THE REASON WHY I THINK WE'RE GOING TO SEE AN APPEAL, YOU KNOW, ANY MINUTE NOW.

>> [Nicole Wallace] WHAT DO YOU THINK WILL HAPPEN ON APPEAL?

>> [Brandon Van Grack] WELL, I'M NOT NEAL KATYAL, SO I DON'T WANT TO TAKE TOO MANY STEPS AHEAD. I THINK WE WILL SEE THE DEPARTMENT OF JUSTICE SEEKING AN IMMEDIATE EMERGENCY APPEAL AS QUICKLY AS POSSIBLE. AND I THINK IN DOING SO, WE'RE PROBABLY GOING TO CONTINUE TO SEE A NARROWING OF THE ISSUE, AS OPPOSED TO A CHALLENGING THE PRINCIPLE OF A SPECIAL MASTER BEING OPPOSED. AND THEY WOULD HAVE THE RIGHT TO DO THAT, NARROWING IT TO JUST THE CLASSIFIED DOCUMENTS, JUST THIS LIMITED PRINCIPLE, BECAUSE I THINK IT IS -- AS MEMBERS OF THE EXECUTIVE BRANCH, IT'S NOT TENABLE.

>> [Nicole Wallace] WHAT'S NOT TENABLE? I WANT TO MAKE SURE I UNDERSTAND. WHAT'S NOT TENABLE IS A PRIVATE CITIZEN SAYING IT'S MINE, AND YOU CAN'T HAVE IT BACK, TO PROCEED WITH THE DAMAGE ASSESSMENT, OR PROCEED WITH THE CASE?

>> [Brandon Van Grack] I ACTUALLY --

>> [Nicole Wallace] WHAT I'M TRYING TO KNOW IS, WHY DO YOU HAVE EVERYONE, YOU KNOW, EVERYONE FROM THE LEFT, TO THE CENTER, TO JOHN YOO AND BILL BARR SAYING THAT TRUMP'S CASE IS GARBAGE?

>> [Brandon Van Grack] YOU'RE TALKING ABOUT A PRIVATE CITIZEN. I'M ACTUALLY SAYING THE JUDICIAL BRANCH IS NOT IN A POSTION, SHOULD NOT BE IN A POSITION, TO TELL THE EXECUTIVE BRANCH AND THE PRESIDENT HOW TO CONTROL ACCESS TO CLASSIFIED MATERIAL. THAT IS THE PURVIEW OF THE EXECUTIVE BRANCH. AGAIN, THAT'S THE REASON WHY THE DEPARTMENT OF JUSTICE HAS NO OPTION BUT TO APPEAL THIS. BECAUSE THERE ARE PRINCIPLES HERE THAT GO FAR BEYOND WHAT IS HAPPENING IN THIS CASE. SO I THINK YOU'RE GOING TO SEE A VERY VIGOROUS DEFENSE OF PRESERVING THE EXECUTIVE BRANCH'S ABILITY TO PROTECT AND CLASSIFY INFORMATION.

>> [Nicole Wallace] THAT'S INTERESTING. THAT'S A FIRST SORT OF WINDOW INTO UNDERSTANDING WHY YOU HAVE THE FAR RIGHT, LEGAL MINDS LIKE JOHN YOO AND BILL BARR, MAKING THE SAME ARGUMENT THAT SOME ON THE LEFT ARE. IS THAT THE PRINCIPLE?

>> [Brandon Van Grack] WHAT'S REMARKABLE IS LIKE, THERE IS NO RIGHT AND LEFT HERE.

>> [Nicole Wallace] RIGHT.

>> [Brandon Van Grack] THESE ARE NOT LEGAL PRINCIPLES THAT ARE IN DISPUTE. I MEAN, THERE'S A FAMOUS CASE FROM THE 1980s WHERE THE SUPREME COURT EXPLAINED ALL THIS. AND FOR YEARS, FOR DECADES, INCLUDING FILINGS I DID, EVERYONE JUST CITES TO THIS ONE CASE, BECAUSE IT HAS TO BE TRUE. AND I'LL SORT OF MAKE A FURTHER EXTENSION. THERE'S A PIECE IN THE OPINION WHERE THE JUDGE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE WHEN THE DEPARTMENT OF JUSTICE SAYS THAT IT WOULD CAUSE IRREPARABLE HARM TO BE COMPELLED TO DISCLOSE THIS CLASSIFIED INFORMATION TO THE SPECIAL MASTER, BECAUSE IT'S HIGHLY CLASSIFIED.

>> [Nicole Wallace] RIGHT.

>> [Brandon Van Grack] AND THE EXECUTIVE BRANCH KNOWS WHAT IS CLASSIFIED. THEY KNOW -- THE JUDGE AND THE SPECIAL MASTER HAS NO WINDOW INTO THAT, HAS NO BACKGROUND. IT HAS TO BE THAT THE EXECUTIVE BRANCH CAN DETERMINE WHAT IS SENSITIVE, AND WHAT CAN BE DISCLOSED. AND THE JUDGE SAYS, "THAT POSITION IS MERITLESS."

>> [Nicole Wallace] HOW DID WE GET HERE? HOW DID -- HOW DID TRUMP END UP BEFORE THE ONE JUDGE THAT SEES THIS VERY BLACK AND WHITE, AS YOU JUST SAID, NONPARTISAN, NONPOLITICAL ISSUE ABOUT ACCESS TO CLASSIFIED INFORMATION, IN SUCH A TRUMP-FRIENDLY MANNER?

>> [Brandon Van Grack] IT IS NOT UNCOMMON FOR LITIGANTS TO TRY TO FIND FAVORABLE COURTS, AND FOR THE DEPARTMENT OF JUSTICE TO CHARGE CASES IN FAVORABLE COURTS. I THINK MORE SO THAN EVEN DETERMINING HOW -- LIKE WAS THIS STRATEGICALLY DONE AND HOW. WE'RE AT A POINT RIGHT NOW WHERE THERE ARE REALLY SERIOUS CONCERNS IN TERMS OF THE SEPARATION OF POWERS. THERE ARE REALLY SERIOUS CONCERNS ABOUT NATIONAL SECURITY BASED ON THIS OPINION. AND SO IT DOESN'T MATTER WHO SAID IT. IT DOESN'T MATTER WHO APPOINTED THAT? THE DEPARTMENT OF JUSTICE, AND BY EXTENSION ALL OF US, WHO NEED THIS INVESTIGATION TO BE CONDUCTED, THOROUGHLY AND COMPLETELY, AND QUICKLY, THIS OPINION, THIS ORDER, THIS LIMITATION, IT JUST CANNOT CONTINUE. IT HAS TO BE APPEALED AND OVERTURNED.

>> [Nicole Wallace] LET'S PULL TRUMP BACK INTO THE CONVERSATION. WHAT DOES IT SAY -- OBVIOUSLY IF YOU'RE STILL IN THE DEPARTMENT, AND IF YOU WERE WORKING ON THIS CASE YOU COULDN'T WEIGH IN ON THIS. BUT SORT OF INFORMED ANALYSIS. WHAT IS YOUR SENSE OF TRUMP'S END GAME? HE JUST WANTS TO HANG ON TO CLASSIFIED STUFF INDEFINITELY TO SHOW IT TO HIS FRIENDS?

>>[ Brandon Van Grack] YOU KNOW, I DON'T -- I DON'T THINK THE DEPARTMENT OF JUSTICE RIGHT NOW IS EVEN FOCUSING ON THE END GAME, BECAUSE IN TERMS OF THE NATIONAL SECURITY ISSUE, IT DOESN'T MATTER. WHAT MATTERS IS THAT FOR 19 MONTHS, HUNDREDS OF DOCUMENTS, OF SOME OF THE MOST HIGHLY CLASSIFIED AND SENSITIVE INFORMATION, HAVE BEEN UNSECURED AND UNMONITORED AND UNCONTROLLED. THAT IN AND OF ITSELF IS A SIGNIFICANT NATIONAL SECURITY ISSUE, EVEN IF THE MOTIVATION WAS SLOPPY RECORDKEEPING. EVEN IF IT IS THE MOST GENERAL --

>> [Nicole Wallace] YOU'RE SAYING, TAKE THE MOTIVE AND END GAME OUT, THE ALLEGED CRIMES HAVE ALREADY TAKEN PLACE?

>> [Brandon Van Grack] WHETHER THEY'RE CRIMES OR NOT, FROM A NATIONAL SECURITY PERSPECTIVE, IT IS -- WHILE IT'S RELEVANT, EVEN REGARDLESS OF WHAT THOSE MOTIVES ARE, IT IS SIGNIFICANT AND IT IS SERIOUS. AND for THE CHARGES THAT ARE BEING CONTEMPLATED, IT IS COMPLETELY IRRELEVANT WHAT THE MOTIVE IS. IN TERMS OF THE ESPIONAGE ACT, IT IS THE RETENTION, SOLELY THE RETENTION OF THAT INFORMATION THAT IS UNLAWFUL. THERE'S NOTHING -- THERE ARE LAWS THAT MAKE IT UNLAWFUL TO DISCLOSE AND TRANSMIT. THE DEPARTMENT OF JUSTICE HAS NOT INDICATED THAT THAT'S WITHIN THE PURVIEW OF THIS INVESTIGATION AT THIS TIME.

>> [Nicole Wallace] THEY'VE SENT A LOT OF TEA LEAVES, TEA LEAVES ISN'T THE RIGHT WAY TO DESCRIBE IT -- THE DEPARTMENT DOESN'T WRITE IN TEA LEAVES. BUT THERE'S A LOT OF PUBLIC-FACING EVIDENCE ABOUT OBSTRUCTION. HOW WOULD YOU EVALUATE WHAT'S IN THE PUBLIC SPHERE ABOUT THE OBSTRUCTION?

>> [Brandon Van Grack] THE OBSTRUCTION IS INEXTRICABLY LINKED TO THE FACT THAT RIGHT NOW WE HAVE THIS CRIMINAL INVESTIGATION. IT'S IMPORTANT TO CONTINUE TO TAKE A STEP BACK. THE FORMER PRESIDENT OF THE UNITED STATES HAD CLASSIFIED INFORMATION FOR OVER A YEAR, THEN TURNED IT OVER TO THE ARCHIVES. AND EVEN THOUGH WE KNOW RIGHT NOW THAT THE FBI, THERE WAS A REFERRAL MADE IN THE OPEN INVESTIGATION, I DON'T THINK WE WOULD BE TALKING ABOUT THIS IF ALL THE CLASSIFIED INFORMATION WAS SIMPLY PROVIDED TO THE DEPARTMENT OF JUSTICE THEN. AND THEN IN JUNE THE DEPARTMENT OF JUSTICE GOES DOWN TO MAR-A-LAGO, HAS A SUBPOENA, AND COLLECTS ADDITIONAL CLASSIFIED INFORMATION. IF ALL OF THE CLASSIFIED INFORMATION WAS PROVIDED AT THAT TIME, I DON'T THINK WE WOULD BE TALKING ABOUT CRIMINAL CHARGES. WE WOULD NOT BE HAVING THIS DISCUSSION. BUT SOMETHING HAPPENED, AND THAT'S WHERE THE OBSTRUCTION COMES INTO PLAY. THERE WERE REPRESENTATIONS MADE TO THESE -- THESE ATTORNEYS AND THESE AGENTS FROM THE DEPARTMENT OF JUSTICE. THEIR MISSION, THEIR -- THEY ARE TASKED TO PROTECT CLASSIFIED INFORMATION. THIS IS WHAT THEY DO. THIS IS -- AND THE OBSTRUCTIVE ELEMENT, IT WASN'T JUST OBSTRUCTING AN INVESTIGATION. LIKE SORT OF A -- THAT WAS, BUT IT WAS OBSTRUCTING AN INVESTIGATION TO ENSURE THAT CLASSIFIED INFORMATION THAT COULD DAMAGE NATIONAL SECURITY WAS OBTAINED AND ANY DAMAGE RECTIFIED. THAT'S THE OBSTRUCTIVE ACT. AND SO IT REALLY ELEVATES, I THINK, THE CONCERN. AND REALLY THE LEVEL OF SERIOUSNESS OF THE CONDUCT WE'RE TALKING ABOUT.

>> [Nicole Wallace] WHEN YOU LOOK AT THE PUBLIC-FACING EVIDENCE OF OBSTRUCTION, DO YOU SEE THINGS THAT A NORMAL PERSON WOULDN'T? I MEAN, DO YOU SEE THAT THERE'S SOMEBODY COOPERATING THAT HAD ACCESS TO THIS MISHANDLING OF CLASSIFIED DOCUMENTS? DO YOU SEE THAT THERE'S A FLOW OF INFORMATION TO DOJ?

>> [Brandon Van Grack] I WISH I COULD SAY I KNEW WHAT, YOU KNOW, REDACTED PARAGRAPH 65 REFERRED TO.

>> [Nicole Wallace] ME, TOO.

>> [Brandon Van Grack] I THINK MORE TO THE POINT, I THINK WHAT IT SHOWS THAT THERE ARE CERTAINLY KEY PEOPLE WHO ARE, IN FACT, COOPERATING, KEY WITNESSES WHO ARE PARTICIPATING. AND I THINK WHEN YOU TALK ABOUT SORT OF THE END GAME, WHAT THIS LOOKS LIKE, REALLY THE ULTIMATE QUESTION IS GOING TO BE WHO IS -- WHO WITH DIRECT KNOWLEDGE OF WHAT HAPPENED TO THIS INFORMATION, WHO HANDLED THE INFORMATION, WHO DIRECTED THAT CERTAIN INFORMATION BE PROVIDED TO THE ARCHIVES AND THE DEPARTMENT AND WHO DIDN'T -- IF THOSE INDIVIDUALS HAVEN'T, WITH THAT KNOWLEDGE, COOPERATED AND PARTICIPATED, THAT'S WHEN YOU WOULD SEEK CRIMINAL CHARGES.