Trump lashes out at Gov. Doug Ducey following certification

Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Sep 21, 2022 12:38 am

Special master to Trump’s lawyers: ‘You can't have your cake and eat it’: Judge Raymond Dearie pushed Trump’s lawyers repeatedly for not backing up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.
by Josh Gerstein and Kyle Cheney
Politico
09/20/2022 03:05 PM EDT
Updated: 09/20/2022 05:41 PM EDT

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NEW YORK — The senior federal judge tasked with reviewing the materials seized by the FBI from Donald Trump’s Mar-a-Lago estate sharply questioned the former president’s attorneys Tuesday during their first hearing in his courtroom.

Judge Raymond Dearie repeatedly challenged Trump’s lawyers for refusing to back up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.

“My view of it is: you can’t have your cake and eat it,” said Dearie
, the “special master” picked by U.S. District Court Judge Aileen Cannon to vet Trump’s effort to reclaim the materials taken by federal investigators.

Trump has argued that the 11,000 documents taken from Mar-a-Lago by the FBI pursuant to a search warrant last month were rightfully in his possession, including about 100 bearing classification markings that suggest they contain some of the nation’s most closely guarded intelligence.

But Dearie bristled at the effort by Trump’s lawyers to resist his request for proof that Trump actually attempted to declassify any of the 100 documents that the Justice Department recovered from his estate. Without evidence from Trump, Dearie said his only basis to judge the classification level of the records was the fact that they all bear markings designating them as highly sensitive national security secrets — including some that indicate they contain intelligence derived from human sources and foreign intercepts.

From the outset of the 40-minute hearing, Dearie signaled that he was determined that Trump’s “litigation strategy” would not interfere with the review Dearie has agreed to do. The judge appeared to be referring to vague assertions of declassification by Trump’s side, without so far any facts to back that up.

“I can’t allow litigation strategy to dictate the outcome of my recommendations to Judge Cannon,” Dearie said.

The judge, a veteran of the Foreign Intelligence Surveillance Court, expressed puzzlement about what his role would be if the government says certain documents are classified and Trump’s side disagrees but doesn’t offer proof to challenge that.

”What am I looking for?....As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?”

James Trusty, one of Trump’s attorneys, called it “premature” for Dearie to consider that issue right now. “It’s going a little beyond what Judge Cannon contemplated in the first instance,” he said.

In one of several moments of palpable tension with the Trump team, Dearie replied: “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. … I think I’m doing what I’m told.”


However, Trusty complained that the former president shouldn’t have to mount a defense now to criminal charges that have yet to be filed.

“It’s not about gamesmanship. It’s about not having seen the documents. ... We are not in a position, nor should we be in a position at this juncture, to fully disclose a substantive defense,” Trusty said. “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”

That prompted Dearie’s retort that the former president’s team was seeking to “have your cake and eat it.”

No cameras are allowed in federal court, but Trusty later launched into an attack on the National Archives, arguing that it should be denied any role in Dearie’s review because the government recordkeeping agency is “very politicized.”

Trusty told the judge that the Archives’ “political, partisan” bent was evident in a trigger warning for “harmful” content it posted on the nation’s founding documents and for what he said was the Archives’ role in permitting a former national security adviser to President Bill Clinton, Sandy Berger, to remove top-secret documents from a secure facility.


Berger, who pleaded guilty to a misdemeanor charge of mishandling classified information over the episode, died in 2015.

“We think their conduct in this case is politicized as well,” Trusty said.

Dearie again noted his disagreement with the Trump team, saying those statements painted the Archives’ personnel with a “broad brush,” although he also said he understood the Trump side’s concerns about the issue.


After Trusty asked Dearie to jump start the process of getting the proper security clearances for Trump’s lawyers, the judge said he takes national security concerns “very seriously” and that it might not be necessary as he’d like to resolve the dispute without looking at the classified information if he can.

“It’s not just a matter of having the clearance. It’s a matter of need to know,” Dearie said. “If you need to know, you will know.”


After prosecutor Julie Edelstein also raised the “need-to-know” standard, Trusty suggested that the Justice Department is quibbling about details in a case involving a former president.

“It’s kind of astounding to hear the government say the president’s lawyers don’t have a need to know,” he said. ”I believe we have a need to know, absolutely.”

The several instances of tension between Dearie and Trump’s legal team was an ominous sign for the former president, who demanded the special master review the documents taken from Mar-a-Lago and who proposed Dearie — a 1986 appointee of Ronald Reagan — to perform the task. Prosecutors had offered two other names, but acceded to Trump’s choice of Dearie.

Trump’s legal team entered the Brooklyn courthouse about a half hour before the hearing, braving jeers from a smattering of protesters, including one shouting, “Indict Trump!”

A more subdued atmosphere prevailed inside Dearie’s courtroom. Members of the press were seated in the jury box, prompting one of Trump’s attorneys to joke before the session got underway that the former president’s team had not agreed to this set of jurors.

Dearie, 78, engaged succinctly with the parties during the session. He noted that the current litigation filed by Trump is civil in nature, since no criminal charges have been filed, so the burden of proof is on Trump to back up any assertion of privilege or other protected interest in the documents.

Trump’s lawyers asked Dearie to set in motion the process of getting security clearances so they can review the allegedly classified documents.

But Edelstein told the judge that some papers seized from Trump’s Florida home were classified beyond the “Top Secret” level. “Some of the documents are so sensitive that members of the team investigating possible offenses here have not yet been able to see them,” she said.


Whether any of the records seized from Trump’s home are classified may ultimately be a side issue. The Justice Department has emphasized that the three potential crimes it is investigating don’t hinge on whether the material held at Mar-a-Lago was classified.

Still, Dearie’s comments on classification of the records were particularly notable in light of a separate court filing by Trump, who is urging a federal appeals court to keep in place Cannon’s order blocking the Justice Department from advancing its criminal investigation into the seized records.

In that filing, Trump’s attorneys argued that it was the Justice Department — not Trump — that bore the burden of showing the documents seized last month were classified. Dearie rejected that argument in his courtroom, saying that all that mattered were the markings on the documents unless Trump presents evidence to the contrary.

When Dearie asked how the government planned to handle document sharing with the Trump lawyers and the court if the 11th Circuit declines to carve out the documents with classification markings from the special master process, Edelstein signaled that the Justice Department might take the issue to the Supreme Court.

Officials would “most likely ... consider other appellate options at that point,” she said.


Dearie did offer Trump’s team one concession Tuesday on a minor matter: the schedule to pick a contractor to scan the 11,000 documents so both sides can review potential privilege claims. Under the terms of Cannon’s order, Trump has to foot that bill.

Dearie initially insisted that Trump’s side pick a vendor from a government-approved list by Wednesday, but after Trusty pleaded for more time to assess the costs and run them by Trump, Dearie relented.

“You’ve got it. Friday, it is,” Dearie declared.


Dearie made clear, however, that he’s determined to plow through the documents and get his recommendations to Cannon on the schedule she set that runs through the end of November.

“We’re going to proceed with what I call responsible dispatch,” the veteran judge said. “We’re not going to hurry, but we’ve got a lot to do in a … short period of time.”
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Sep 21, 2022 1:33 am

Brief of the States of Texas, Florida, Indiana, Kentucky, Mississippi, Missouri, Montana, Louisiana, South Carolina, Utah, and West Virginia as Amici Curiae in Support of Plaintiff-Appellee
Donald J. Trump, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.
September 20, 2022

No. 22-13005

In the United States Court of Appeals
for the Eleventh Circuit

Donald J. Trump,
Plaintiff-Appellee,
v.
United States of America,
Defendant-Appellant.

On Appeal from the United States District Court
for the Southern District of Florida

BRIEF OF THE STATES OF TEXAS, FLORIDA, INDIANA, KENTUCKY, MISSISSIPPI, MISSOURI, MONTANA, LOUISIANA, SOUTH CAROLINA, UTAH, AND WEST VIRGINIA AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE

Ken Paxton
Attorney General of Texas

Brent Webster
First Assistant Attorney General

Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697

Judd E. Stone II
Solicitor General

Ari Cuenin
Deputy Solicitor General

William F. Cole
Assistant Solicitor General
William.Cole@oag.texas.gov

Attorneys for Amici Curiae

Certificate of Interested Persons

No. 22-13005

Donald J. Trump,
Plaintiff-Appellee,
v.
United States of America,
Defendant-Appellant.

Amici Curiae certify that the following is a complete list of interested persons as required by Federal Rule of Appellate Procedure 26.1, and Eleventh Circuit Rules 26.1-1, 28-1(b), and 29-2:

1. American Broadcasting Companies, Inc. (DIS)
2. Associated Press
3. Ayer, Donald B.
4. Bloomberg, LP
5. Bellinger III, John B.
6. Bratt, Jay I.
7. Brill, Sophia
8. Brower, Gregory A.
9. Cable News Network, Inc. (WBD)
10. Cameron, Daniel J.
11. Cannon, Hon. Aileen M.
12. Caramanica, Mark Richard
13. CBS Broadcasting, Inc. (CBS)
14. Cole, William F.
15. Corcoran, M. Evan
16. Cornish, Sr., O’Rane M.
17. Cuenin, Ari
18. Cunningham, Clark
19. Dearie, Hon. Raymond, J.
20. Democracy 21
21. Dow Jones & Company, Inc. (DJI)
22. Edelstein, Julie
23. Eisen, Norman L.
24. E.W. Scripps Company (SPP)
25. Farmer Jr., John J.
26. Fischman, Harris
27. Finzi, Roberto
28. Fitch, Lynn
29. Fry, Samantha C.
30. Fugate, Rachel Elise
31. Gerson, Stuart M.
32. Gonzalez, Juan Antonio
33. Gray Media Group, Inc. (GTN)
34. Griffith, Hon. Thomas B.
35. Gupta, Angela D.
36. Halligan, Lindsey
37. Huck, Jr., Paul
38. Inman, Joseph M.
39. Jones, Hon. Barbara S.
40. Karp, Brad S.
41. Keisler, Peter D.
42. Kessler, David K.
43. Kise, Christoper M.
44. Knopf, Andrew Franklin
45. Knudsen, Austin
46. Lacosta, Anthony W.
47. Landry, Jeff
48. LoCicero, Carol Jean
49. McElroy, Dana Jane
50. Minchin, Eugene Branch
51. Moody, Ashley
52. Morrisey, Patrick
53. NBC Universal Media, LLC (CMCSA)
54. Norman Eisen PLLC
55. Olsen, Matthew G.
56. Patel, Raj K.
57. Paul, Weiss, Rifkind, Wharton & Garrison LLP
58. Paxton, Ken
59. Raikita, Philip
60. Raul, Alan Charles
61. Reeder, Jr., L. Martin
62. Reinhart, Hon. Bruce E.
63. Reyes, Sean
64. Rokita, Todd
65. Rosenberg, Robert
66. Schmitt, Eric
67. Seidlin-Bernstein, Elizabeth
68. Shapiro, Jay B.
69. Shullman, Deanna Kendall
70. Smith, Jeffrey M.
71. State of Florida
72. State of Indiana
73. State of Kentucky
74. State of Mississippi
75. State of Missouri
76. State of Montana
77. State of Louisiana
78. State of South Carolina
79. State of Texas
80. State of Utah
81. State of West Virginia
82. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
83. Stone, Judd E.
84. The New York Times Company (NYT)
85. The Palm Beach Post
86. Times Publishing Company
87. Tobin, Charles David
88. Troye, Olivia
89. Trump, Donald J.
90. Trusty, James M.
91. United States of America
92. Webster, Brent
93. Weld, William F.
94. Wertheimer, Fred
95. Whitman, Christina Todd
96. Wilson, Alan
97. WP Company LLC

No publicly traded company or corporate entity has an interest in the outcome of this case or appeal.

/s/ William F. Cole
William F. Cole
Counsel of Record for
Amici Curiae

Table of Contents

Page

Certificate of Interested Persons ............................................................................... i
Table of Authorities ............................................................................................... vii
Interests of Amici Curiae ......................................................................................... 1
Argument ................................................................................................................. 2
Conclusion .............................................................................................................. 11
Certificate of Compliance ...................................................................................... 12
Certificate of Service .............................................................................................. 12

Table of Authorities

Page(s)

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,
141 S. Ct. 2320 (2021) ......................................................................................... 6

Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,
141 S. Ct. 2485 (2021) (per curiam) .................................................................... 6

BST Holdings, L.L.C. v. OSHA,
17 F.4th 604 (5th Cir. 2021) ................................................................................ 7

City & Cnty. of S.F. v. U.S.C.I.S.,
992 F.3d 742 (9th Cir. 2021) ........................................................................... 4, 5

DHS v. New York,
140 S. Ct. 599 (2020) .......................................................................................... 4

DHS v. New York,
141 S. Ct. 1370 (2021) .......................................................................................... 4

Heckler v. Cmty. Health Servs. of Crawford Cnty.,
467 U.S. 51 (1984) ............................................................................................... 2

NFIB v. Dep’t of Labor,
142 S. Ct. 661 (2022) ........................................................................................... 7

Rock Island A. & L. R. Co. v. United States,
254 U.S. 141 (1920) ............................................................................................ 2

Texas v. Biden,
20 F.4th 928 (5th Cir. 2021) ........................................................................... 3, 4

Texas v. United States,
No. 6:21-cv-00016, 2022 WL 2109204 (S.D. Tex. June 10, 2022) ................. 7, 8

United States v. Armstrong,
517 U.S. 456 (1996) ............................................................................................. 2

United States v. Chem. Found., Inc.,
272 U.S. 1 (1926) ................................................................................................. 2

United States v. Winstar Corp.,
518 U.S. 839 (1996) ............................................................................................. 2

Wolf v. Cook County, Ill.,
140 S. Ct. 681 (2020) .......................................................................................... 4

Other Authorities

Carl Zimmer & James Gorman, Fight Over Covid’s Origins Renews
Debate on Risks of Lab Work, N.Y. Times (Oct. 12, 2021) ................................... 9

Dustin Volz, DHS Folds Disinformation Board After Criticism Over
Threat to Free Speech, Wall Street Journal (Aug. 25, 2022) ................................. 9

Eileen Sullivan & Miriam Jordan, Illegal Border Crossings, Driven by Pandemic
and Natural Disasters, Soar to Record High, N.Y. Times (Oct. 22, 2021) ............ 9

Joshua Lee, Newly released emails show coordination between social media
companies and Biden administration on COVID information, Deseret
News (Sept. 7, 2022) .......................................................................................... 8

Meet the Press, NBC News television broadcast Sept. 11, 2022,
Transcript at https://tinyurl.com/yzdcwvme .................................................... 9

President Biden, Remarks on Fighting the COVID-19 Pandemic, The
White House (Aug. 03, 2021) ............................................................................. 6

Press Secretary Jen Psaki, Press Briefing, The White House (July 23, 2021) ........... 7

Santiago Perez & Michelle Hackman, Record Number of Migrants
Arrested at Southern Border, with Two Million Annual Total in Sight,
Wall Street Journal (Aug. 15, 2022) .................................................................. 10

Sharon Lerner & Mara Hvistendahl, New Details Emerge About
Coronavirus Research at Chinese Lab, The Intercept (Sept. 6, 2021) .................... 9

Steven Nelson, Joe Biden says he won’t mandate getting COVID-19
vaccine, wearing masks, N.Y. Post (Dec. 4, 2020) ................................................ 7

Southwest Land Border Encounters, U.S. Customs & Border Patrol,
https://tinyurl.com/kh8ycxu7 (last accessed Sept. 17, 2022) ........................... 10

Interests of Amici Curiae

In response to the Biden Administration’s unprecedented nine-hour search of former President Donald J. Trump’s private residence and its seizure of more than 10,000 documents, President Trump filed a lawsuit seeking the return of privileged and potentially privileged documents that were taken during the Biden Administration’s raid. In the light of the extraordinary circumstance of a presidential administration ransacking the home of its one-time—and possibly future—political rival, President Trump filed a motion to appoint a special master to adjudicate potential claims of attorney-client and executive privilege and to temporarily enjoin the Biden Administration from utilizing these materials for investigative purposes until the special master completes his review.

After a full round of briefing and two hearings, the district court issued a carefully reasoned order appointing a special master and temporarily enjoining the Biden Administration from utilizing a discrete subset of the documents seized for criminal investigative purposes. The court concluded that such measures were warranted to respect “the interests and appearance of fairness and justice,” which were paramount given the “swirling allegations of bias and media leaks” and deficiencies in the Biden Administration’s screening process for potentially privileged materials.

Throughout this litigation the Biden Administration has attempted to trade on the reputation of the Department of Justice and the Intelligence Community to thwart the appointment of a neutral special master. But the district court twice rejected that gambit, and this Court should too. Amici States have been frequent litigants against the Biden Administration, and they offer this amicus brief to highlight how the Administration’s conduct in connection with this case is of a piece with the gamesmanship and other questionable conduct that have become the hallmarks of its litigating, policy-making, and public-relations efforts. At a minimum, this Court should view the Administration’s assertions of good-faith, neutrality, and objectivity through jaundiced eyes. Consequently, this Court should reject the Administration’s request to stay the district court’s order pending appeal and instead permit this document dispute to proceed before a neutral special master.

Argument

It is a well-established axiom that “[m]en must turn square corners when they deal with the Government.” Rock Island A. & L. R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). But an important corollary to this principle is that “‘the Government should turn square corners in dealing with the people.’” United States v. Winstar Corp., 518 U.S. 839, 886 n.31 (1996) (quoting Heckler v. Cmty. Health Servs. of Crawford Cnty., 467 U.S. 51, 61 n.13 (1984)). The latter principle is a key assumption undergirding the “‘presumption of regularity’” that courts afford government officials, and which “presume[s]” such officials “have properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).

In this sui generis case, however, there is reason to doubt that this presumption of regularity should be afforded to the decisions of the Biden Administration in connection with the raid of, and seizure of documents from, the personal residence of President Trump. The district court recognized as much by appointing a special master to review the set of documents at issue, by refusing “to accept the Government’s conclusions” about the contents of the seized documents, and by observing that “evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.” A6-7, 12. This approach was particularly necessary here given the “undeniably unprecedented nature of the search of a former President’s residence” coupled with the “swirling allegations of bias and media leaks.” A24, 32; see also A23 n.11 (noting the Government’s counsel’s “candid[] acknowledge[ment] [of] the unfortunate existence of leaks to the press”). But in addition to these compelling circumstances, the Administration’s questionable conduct in the litigation and policy-making spheres—which has provoked the ire of several federal judges— further supports affirming the district court’s sound decision to proceed with caution via a special master.

1. Take the Administration’s resort to procedural gamesmanship to overcome adverse judicial decisions. In Texas v. Biden, for example, a district court vacated two memoranda issued by the Secretary of the Department of Homeland Security, concluding, after a bench trial, that those agency actions violated the Administrative Procedure Act and relevant provisions of the Immigration and Naturalization Act. 20 F.4th 928, 941-44 (5th Cir. 2021), vacated on other grounds by 142 S. Ct. 2528 (2022). The Biden Administration appealed that final judgment, but just two business days before oral argument in the Fifth Circuit, it issued two new memoranda purporting to supersede the already-vacated ones. Id. at 942. Hours later, it filed a twenty-six-page motion arguing that the case was moot and that the Administration was entitled to vacatur of the district court’s order—the precise remedy it had hoped to obtain on appeal. Id.

The Fifth Circuit rejected the Biden Administration’s eleventh-hour ploy. It held that the Administration’s conduct was marred by “repeated[]. . . gamesmanship in its decision-making” at all phases, including through the administrative process, in the district court, and on appeal. Id. at 962-63. Accordingly, the Court concluded that the Administration could not take advantage of the voluntary-cessation exception to mootness; its attempt to moot the case was mere “litigation posturing.” Id. at 962. Furthermore, the Court held that, even if the case were moot, the Biden Administration would not be entitled to the “equitable remedy” of vacatur because it “is unavailable to parties with unclean hands” and the Biden Administration’s “litigation tactics disqualify it from such equitable relief.” Id. at 942; see also id. at 998 (holding that “DHS’s litigation tactics tilt the equities decidedly against vacatur”).

2. Or consider the Biden Administration’s collusion with private parties to circumvent ordinary rules for administrative rulemaking. Upon taking office, the Biden Administration stopped defending a host of rules that had been promulgated by the Trump Administration and challenged in court; one such rule was the Trump Administration’s rule defining a “public charge” under federal immigration law.
See City & Cnty. of S.F. v. U.S.C.I.S., 992 F.3d 742, 743 (9th Cir. 2021) (VanDyke, J., dissenting). The Supreme Court had previously stayed lower-court orders preliminarily enjoining the Trump Administration’s “public charge” rule, see DHS v. New York, 140 S. Ct. 599, 599 (2020); Wolf v. Cook County, Ill., 140 S. Ct. 681, 681 (2020), and later granted certiorari in one of those cases, see DHS v. New York, 141 S. Ct. 1370 (2021). Yet just two months after taking office, the Biden Administration, in coordination with the plaintiffs, began rapidly dismissing those cases (including the one pending at the Supreme Court) and entered into a joint stipulation with one set of plaintiffs that “acquiesced in a single judge’s nationwide vacatur of the rule.” City & Cnty. of S.F., 992 F.3d at 743 (VanDyke, J., dissenting). Thereafter, the Biden Administration “leveraged that now-unopposed vacatur to immediately remove the rule from the Federal Register” and “quickly engaged in a cursory rulemaking stating that the federal government was reverting back to the Clinton-era guidance—all without the normal notice and comment typically needed to change rules” under the APA. Id.

As one Circuit Judge explained, this “coordinated settlement” was highly “inequitable.” Id. at 754. It was “a transparent attempt by a new federal administration and its prior litigation opponents to not only rid the federal government of a now-disfavored rule, but also to avoid the APA’s procedures in changing that rule and force any future administration that wants to enact a similar rule to fight against the strong headwinds of dubious . . . precedent” that the Supreme Court was poised to address. Id. Such “collusive actions” by the Administration were an affront to “good government” and robbed the public of “participation in rule changes.” Id. at 749- 50.

3. When it is unable to engage in procedural gamesmanship to cast aside unfavorable judicial decisions or engineer a collusive settlement to preempt them, the Biden Administration has resorted to blinding itself to adverse precedent and its prior representations altogether. For example, in June 2021, the Supreme Court declined to vacate a stay of a district court’s order holding that the Centers for Disease Control (“CDC”) exceeded its statutory authority when it imposed a nationwide eviction moratorium for certain properties. See Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2320 (2021) (mem.). Although five Justices agreed that the challengers were likely to succeed on the merits of their claim that the CDC exceeded its statutory authority, Justice Kavanaugh voted to deny the application to vacate the stay only “[b]ecause the CDC plans to end the moratorium in a few weeks.” Id. at 2321 (Kavanaugh, J., concurring).

Undaunted by the disagreement of a majority of the Supreme Court with its operative legal theory, however, the Biden Administration boldly reimposed the eviction moratorium just three days after the prior version expired. Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2488 (2021) (per curiam). The President candidly admitted that “[t]he bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” President Biden, Remarks on Fighting the COVID-19 Pandemic, The White House (Aug. 03, 2021), available at https://tinyurl.com/3dx6knmh. Nevertheless, he justified the reimposition of the eviction moratorium by resort to principles of realpolitik: “by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.” Id. Less than a month after those remarks, the Supreme Court granted an application to vacate a stay of a district court’s order finding the new moratorium unlawful and holding that the CDC lacked statutory authority to impose the eviction moratorium. 141 S. Ct. at 2490.

The Biden Administration took a similar approach—and was greeted with a similar fate—less than two months later when it attempted to impose a nationwide COVID-19 vaccine mandate. The President had insisted that he lacked the authority to impose such a nationwide mandate.
See, e.g., Steven Nelson, Joe Biden says he won’t mandate getting COVID-19 vaccine, wearing masks, N.Y. Post (Dec. 4, 2020), https://tinyurl.com/46prps23 (“No, I don’t think it should be mandatory. I wouldn’t demand it be mandatory.”); see Press Secretary Jen Psaki, Press Briefing, The White House (July 23, 2021), https://tinyurl.com/75frsdeb (“[T]hat’s not the role of the federal government.”). But after the Administration’s patience wore thin with the slowing rate of voluntary vaccination, it devised the vaccine mandate, implemented in November 2021 by the Occupational Safety and Health Administration (“OSHA”), as a “legislative ‘work around.’” NFIB v. Dep’t of Labor, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring) (quoting BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 612 (5th Cir. 2021)). After a flurry of challenges by States and private parties, the Fifth Circuit stayed the vaccine mandate’s implementation. BST Holdings, 17 F.4th at 609. The Supreme Court later agreed that the Biden Administration lacked statutory authority for its vaccine mandate. NFIB, 142 S. Ct. at 665-66.

The Biden Administration’s penchant for taking litigation positions that contradict its actions is typified by its conduct in Texas v. United States, No. 6:21-cv-00016, 2022 WL 2109204 (S.D. Tex. June 10, 2022), denying motion for stay pending appeal, 40 F.4th 205 (5th Cir. 2022), granting certiorari before judgment, No. 22-58, 2022 WL 2841804 (U.S. July 21, 2022). There, a district court set aside several immigration memoranda setting priorities for apprehending and removing classes of aliens. 2022 WL 2109204 at *2. The court held that the Biden Administration’s attempt to set “priorities” for apprehension and removal flouted the mandatory duties that Congress imposed on the executive branch under the Immigration and Naturalization Act. Id.

Relevant here, the district court rejected the Administration’s argument that its statutory duties could not be mandatory because the government had “insufficient resources and limited detention capacity.” Id. at *30. The court found that the Biden Administration had “not acted in good faith” in making this argument. Id. After all, despite repeatedly “trumpet[ing]” its lack of resources to detain aliens and pointing the finger at Congress, the district court found that “[a]t the same time” the Administration “ha[d] submitted two budget requests in which it ask[ed] Congress to cut those very resources and capacity by 26%.” Id. (emphasis original). Moreover, the court found that the Administration had “persistently underutilized existing detention facilities.” Id. As the district court put it, “[t]o say that this is incongruous is to say the least.” Id.

4. The Biden Administration’s knack for gamesmanship and other questionable conduct has not been cabined to courtrooms, but it has also infected its policymaking and public-relations efforts.

For example, the Biden Administration has reportedly been working hand-in-glove with social-media companies—applying pressure where necessary—to censor online content that it believes constitutes “disinformation.” See Joshua Lee, Newly released emails show coordination between social media companies and Biden administration on COVID information, Deseret News (Sept. 7, 2022), https://tinyurl.com/k8rpcf95. The Administration even attempted to set up a dystopian “Disinformation Governance Board,” ostensibly designed to “counter disinformation deemed a threat to homeland security,” until public outrage over the threats the Board posed to freedom of speech forced the Administration to shelve the idea.
Dustin Volz, DHS Folds Disinformation Board After Criticism Over Threat to Free Speech, Wall Street Journal (Aug. 25, 2022), https://tinyurl.com/2p834teu.

Likewise, the Biden Administration has insisted—both on television and in congressional hearings—that the government did not fund so-called “gain of function” research into coronaviruses in China’s Wuhan Institute of Virology. See Carl Zimmer & James Gorman, Fight Over Covid’s Origins Renews Debate on Risks of Lab Work, N.Y. Times (Oct. 12, 2021), https://tinyurl.com/bdc5mfa7. Yet internal government documents uncovered through a FOIA request revealed that the government did, in fact, award more than half-a-million dollars to at least one non-profit for research at the Wuhan lab into “bat coronaviruses likely to infect humans.” Sharon Lerner & Mara Hvistendahl, New Details Emerge About Coronavirus Research at Chinese Lab, The Intercept (Sept. 6, 2021), https://tinyurl.com/2p8arbwd.

And just last week Vice-President Kamala Harris, in a nationally televised interview on “Meet the Press,” asserted that the United States’ Southern border is “secure.” Meet the Press, NBC News television broadcast Sept. 11, 2022, Transcript at https://tinyurl.com/yzdcwvme. Yet the facts gathered by her own administration are decidedly contrary to this puzzling statement: last year Customs and Border Patrol (“CBP”) recorded 1.7 million illegal border crossings—a level not seen since the 1960s. Eileen Sullivan & Miriam Jordan, Illegal Border Crossings, Driven by Pandemic and Natural Disasters, Soar to Record High, N.Y. Times (Oct. 22, 2021), https://tinyurl. com/3n46psxp. And this year, illegal border crossings are all but certain to surpass 2 million. See Santiago Perez & Michelle Hackman, Record Number of Migrants Arrested at Southern Border, with Two Million Annual Total in Sight, Wall Street Journal (Aug. 15, 2022), https://tinyurl.com/34t979kn; see also Southwest Land Border Encounters, U.S. Customs & Border Patrol, https://tinyurl.com/kh8ycxu7 (last accessed Sept. 17, 2022) (listing fiscal year-to-date southwest land border encounters as totaling 1,946,780 through July 2022).

* * *

The Biden Administration’s track record supports the district court’s refusal to credit the Administration’s ipse dixit about the contents of documents it seized during its raid of President Trump’s private residence. Under the extraordinary circumstances of this case, the court correctly set aside the presumption of regularity usually afforded to government officials. This Court should affirm that careful decision.

Conclusion

The Court should deny the Biden Administration’s request to stay the district court’s order pending appeal.

Ashley Moody
Attorney General of Florida

Todd Rokita
Attorney General of Indiana

Daniel Cameron
Attorney General of Kentucky

Jeff Landry
Attorney General of Louisiana

Lynn Fitch
Attorney General of Mississippi

Eric Schmitt
Attorney General of Missouri

Austin Knudsen
Attorney General of Montana

Alan Wilson
Attorney General of South Carolina

Sean Reyes
Attorney General of Utah

Patrick Morrisey
Attorney General of West Virginia

Respectfully submitted.

Ken Paxton
Attorney General of Texas

Brent Webster
First Assistant Attorney General

Judd E. Stone II
Solicitor General

Ari Cuenin
Deputy Solicitor General

/s/ William F. Cole
William F. Cole
Assistant Solicitor General
William.Cole@oag.texas.gov

Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
Attorneys for Amici Curiae

Certificate of Compliance

This brief complies with: (1) the type-volume limitation of Federal Rule of Appellate Procedure 29(a)(5) because it contains 2,580 words, excluding the parts of the brief exempted by Rule 32(f); and (2) the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point Equity) using Microsoft Word (the same program used to calculate the word count).

/s/ William F. Cole
William F. Cole

Certificate of Service

On September 20, 2022, this brief was served via CM/ECF on all registered counsel and transmitted to the Clerk of the Court.

/s/ William F. Cole
William F. Cole
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Sep 21, 2022 6:27 am

Ifrah Law
Hands-on Counsel, Gloves-off Litigation
ifrahlaw.com
1717 Pennsylvania Ave., N.S., Suite 650, Washington, D.C. 20006

Via CM/ECF

September 19, 2022

Raymond J. Dearie
Special Master
United States District Court
Southern District of Florida
701 Clematis Street
West Palm Beach, FL 33401

RE: Trump v. United States, No. 22-81294 (S.D. Fla.)

Dear Judge Dearie:

On September 16, 2022, Your Honor invited the parties to the above-captioned litigation to provide a docketed letter with suggestions regarding the agenda for tomorrow’s hearing before Your Honor. ECF 94. This afternoon, Your Honor provided the parties with a Draft Case Management Plan (the “Draft Plan”). By way of responding to the invitation for agenda topics and as an initial request for consideration of modifying the Draft Plan, the Plaintiff states as follows:

The District Court’s order indicates a presumptive end-date of November 30, 2022. The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022. We respectfully suggest that all of the deadlines can be extended to allow for a more realistic and complete assessment of the areas of disagreement.
Along those lines, and to assure this Court that the parties are operating with appropriate urgency, we would suggest a status conference in roughly two weeks to gauge how long the inspection process and rolling categorizations are taking and to take a fact-based measure of the likely duration of these events.

In the meantime, we provide below an informal “grid” of party obligations under Judge Cannon’s order and possible deadlines to be discussed tomorrow or soon after:

Responsibility / Deadline

Government to provide copies of filter team documents considered possibly privileged (Exh. A) / Complete

Government to provide copies of all other documents except those marked classified (largest cache) / TBD

Government to make available documents marked “classified” and attached papers (prioritized in Order) / TBD (next week?)

Plaintiff to create privilege log (with basis) for Exh. A documents / TBD (two weeks?)

Plaintiff to categorize (four categories) remaining seized documents (largest cache) / Mid-October

Special Master to provide logs to DOJ to identify disputed areas / --

Special Master to make report and recommendations on areas of disagreement / Late October

Special Master to establish deadline for Plaintiff filings under Rule 41(g) or related to Rule 41(g) / Early November

Special Master deadlines for reply and responses to any pleadings / Mid-November

Hearing on any Rule 41 or related filings / Late November


Finally, although we recognize the time for full objections on the Draft Plan is not today, we are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.


In short, the Plaintiff has every interest in expeditiously moving forward on the document review, characterizations, and any ensuing litigation. With the Government’s help, in terms of access to the materials and clearance for Plaintiff’s attorneys, we believe the parties can meet the expected deadline of November 30. While we have concerns about the inclusion of two aspects within the Draft Plan (timing of any declassification disclosures and briefing regarding reversion to the issuing magistrate), we are otherwise in general agreement with Your Honor’s proposed sequencing but suggest addressing the potential deadlines at tomorrow’s status conference.

Thank you for the opportunity to present some of these issues by way of assisting with tomorrow’s agenda.

Sincerely,

James M. Trusty
Ifrah Law PLLC
1717 Pennsylvania Ave. NW
Suite 650
Washington, D.C. 20006
Telephone: (202) 524-4176
Email: jtrusty@ifrahlaw.com

Christopher M. Kise
Chris Kise & Associates, P.A.
201 East Park Avenue, 5th Floor
Tallahassee, FL 32301
Telephone: (850) 270-0566
Email: chris@ckise.net

Lindsey Halligan
Florida Bar No. 109481
511 SE 5th Avenue
Fort Lauderdale, FL 33301
Email: lindseyhalligan0@gmail.com

M. Evan Corcoran
SILVERMAN|THOMPSON| SLUTKIN|WHITE, LLC
400 East Pratt Street – Suite 900
Baltimore, MD 21202
Telephone: (410) 385-2225
Email: ecorcoran@silvermanthompson.com

Counsel for Plaintiff Donald J. Trump

CC: Juan Antonio Gonzalez, Jr., juan.antonio.gonzalez@usdoj.gov
Anthony W. Lacosta, anthony.lacosta@usdoj.gov
Julie A. Edelstein, julie.edelstein@usdoj.gov
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Sep 21, 2022 11:55 pm

New York AG announces lawsuit against Trump and his kids
Sep 21, 2022
CNN

The New York state attorney general filed a sweeping lawsuit against former President Donald Trump, three of his adult children and the Trump Organization, alleging they were involved in an expansive fraud lasting over a decade that the former President used to enrich himself. #CNN

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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Sep 22, 2022 8:40 am

Opinion of the Court
In the United States Court of Appeals, For the Eleventh Circuit
DONALD J. TRUMP, Plaintiff-Appellee, versus UNITED STATES OF AMERICA, Defendant-Appellant.
USCA11 Case: 22-13005
Date Filed: 09/21/2022

[DO NOT PUBLISH]

In the United States Court of Appeals
For the Eleventh Circuit

____________________
No. 22-13005

____________________

DONALD J. TRUMP,
Plaintiff-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cv-81294-AMC

____________________

Opinion of the Court

22-13005

Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Following the execution of a search warrant at the residence of Plaintiff-Appellee, former President Donald J. Trump, Plaintiff moved for the appointment of a special master to review the documents that Defendant-Appellant United States of America seized. The district court granted that motion in substantial part. Now, the United States moves for a partial stay of the district court’s order as it relates to the roughly one-hundred documents bearing classification markings. We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.

We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies.

For the reasons we explain below, we grant the United States’s motion for a partial stay pending appeal.

I. BACKGROUND

A. Factual Background


Plaintiff left the White House in January 2021, after serving as President of the United States. Upon leaving office, movers transferred boxes of documents to his personal residence in southern Florida. Doc. No. 1 at 4.

The record reveals that, throughout 2021 (and consistent with its responsibilities under the Presidential Records Act, 44 U.S.C. §§ 2201–09), the National Archives and Records Administration sought to obtain records in Plaintiff’s possession. Doc. No. 48- 1 at 2, 6.

In response to these requests, in January 2022, Plaintiff transferred fifteen boxes of documents to the National Archives. Id. The National Archives reviewed the contents of the boxes and found inside “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes” but also “presidential correspondence, personal and post-presidential records, and a lot of classified records.” Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize ¶ 24, In re Sealed Search Warrant , No. 22-MJ-8332 (S.D. Fla. Sept. 12, 2022) (“Warrant Affidavit”) (quotation omitted). Consequently, the National Archives sent a referral by email to the Department of Justice on February 9, 2022. Id.

Upon learning about the classified materials, the Department sought access to the fifteen boxes in part “so that the FBI and others in the Intelligence Community could examine them.” Doc. No. 48-1 at 6. The National Archives responded by advising Plaintiff, on April 12, 2022, that it intended to provide the FBI access to the records the week of April 18, 2022. Id. at 7. When Plaintiff requested an extension of the production date to April 29, 2022, the National Archives held off on sending the documents to the FBI. Id.

On that date, Plaintiff asked for another extension of time and informed the National Archives that, if it declined to grant the extension, he would make a protective assertion of executive privilege over the documents. Doc. No. 48 at 6. On May 10, the National Archives informed Plaintiff’s representatives that it had decided not to honor Plaintiff’s protective claim of executive privilege, and that it would provide the FBI access to the records as early as May 12, 2022. Id. at 9. That letter noted that President Biden had deferred to the National Archives’s determination that executive privilege did not apply. Id. at 7. Despite this advance warning, Plaintiff made no effort to block the FBI’s access to the documents at that time. Doc. No. 48 at 6–7.

During a preliminary review of the documents between May 16–18, 2022, the FBI found 184 documents marked at varying levels of classification (including twenty-five documents marked top secret). Id. at 7; Warrant Affidavit ¶ 47.

The FBI also developed evidence that more boxes containing classified information remained at Plaintiff’s residence. Doc. No. 48 at 7. The Department obtained a grand-jury subpoena directed to Plaintiff’s custodian of records, and requested all documents or writings in Plaintiff’s custody or control bearing classification markings. Doc. No. 48 at 7–8. Plaintiff’s counsel was served with the subpoena on May 11, 2022. Id. at 8.

Plaintiff sought (and received) an extension of time to produce the subpoenaed documents. Id. After initially denying the request, the government extended the compliance deadline until June 7, 2022. Id. On June 3, 2022, in response to the subpoena, Plaintiff’s representatives produced an envelope containing thirty-eight such documents. Warrant Affidavit ¶ 58. At the same time, his representative stated that she was authorized to certify that a “diligent search was conducted” and that “[a]ny and all responsive documents” accompanied the certification. Doc. No. 48 at 9. The envelope contained classified documents, including seventeen marked top secret, and was double-wrapped in tape, consistent with handling procedures for classified documents. Warrant Affidavit ¶¶ 58, 60. Plaintiff made no claims of privilege with his production in response to the subpoena. Doc. No. 48 at 8.

Despite Plaintiff’s production in response to the subpoena and counsel’s representation that a diligent search had occurred and all responsive documents had been produced, the FBI developed evidence that more classified documents remained at Plaintiff’s residence. Id. at 10. In August 2022 the Department, through an FBI agent’s sworn affidavit, informed a magistrate judge of the evidence it had developed, and the magistrate judge agreed that probable cause existed that evidence of possible violations of the law would be found in Plaintiff’s residence. Id. at 11; see also Warrant Affidavit at 1, 32. Based on this evidence, the magistrate judge issued a search warrant for Plaintiff’s residence. When the FBI executed the search warrant, it seized thirty-three items of evidence (mostly boxes) containing approximately 11,000 documents and 1,800 other items. Doc. No. 48 at 4, 12–13. Among the boxes, thirteen contained documents with classification markings, and three classified documents were found in Plaintiff’s desks. All told, the search uncovered over one-hundred documents marked confidential, secret, or top secret. Id. at 13.

In accordance with the protocol that the magistrate judge had approved in the search warrant, the Department directed a “Privilege Review Team”—composed of agents not otherwise participating in the investigation—to review certain seized documents for attorney-client privilege. Doc. No. 48 at 14; see Warrant Affidavit ¶¶ 81–84.

Based on its review, the Privilege Review Team identified (and segregated) an initial subset of about 520 pages (not documents) that might contain privileged material. Doc. No. 64 at 14. Within the remaining documents, members of the investigative team found at least two instances of potentially privileged material, which they delivered to the Privilege Review Team. Id. at 15.

B. Procedural History

Two weeks after the execution of the search warrant, Plaintiff filed a motion in the district court asking for it to (1) appoint a special master, (2) enjoin further review of the seized materials until a special master was appointed, (3) require the United States to supply a more detailed Receipt for Property, and (4) require the United States to return any item seized that was not within the scope of the search warrant. Doc. No. 28 at 10.

Regarding jurisdiction, among other bases, Plaintiff asserted that the district court could appoint a special master under its “supervisory authority” and its “inherent power” and could enjoin the government’s review under its “equitable jurisdiction.” Doc. No. 28 at 5–6.

The United States made three primary arguments in opposition. First, the United States argued that Plaintiff lacked Fourth Amendment “standing” to seek relief because he did not have a possessory interest in the seized property. In support of this position, the United States asserted that the seized records were Presidential records, which properly belonged to the people of the United States, not to Plaintiff.

Second, as to the appointment of a special master, the United States contended that (1) appointment of a special master was the exception, not the rule; (2) a special master was neither necessary nor appropriate to address whether certain documents were subject to executive privilege because Plaintiff could not assert executive privilege against the Executive Branch; (3) even if he could, the privilege would yield to the United States’s need to investigate a possible crime and the United States’s compelling interest in sensitive and highly classified documents; (4) appointment of a special master would be inconsistent with equitable principles given that Plaintiff had not, as required, turned the records over to Archives in the first instance; and (5) the case did not involve complex or voluminous records, so a privilege filter team was appropriate.

Third, as to injunctive relief, the United States argued that (1) Plaintiff had waited too long to seek relief, and the Department’s review of the documents, which Plaintiff sought to avoid, had already occurred; (2) Plaintiff was not likely to succeed on the merits of his claims of executive privilege because he did not have any cognizable claim of executive privilege over the documents; and (3) the harm to the United States—in the delay in its investigation— far outweighed any injury to Plaintiff because of the risk to national security.

Plaintiff replied that he had Fourth Amendment standing because the characterization of the documents (whether personal or Presidential records) went to the merits of his claim—not his standing to raise it. While Plaintiff appears to view appointment of a special master as a predicate to filing a motion under Rule 41(g) (which allows a person to seek return of seized items), he disclaimed reliance on that Rule for the time being, saying that he “h[ad] not yet filed a Rule 41(g) motion, and [so] the standard for relief under that rule [wa]s not relevant to the issue of whether the Court should appoint a Special Master.” Doc. No. 58 at 6.

The district court granted Plaintiff’s motion in part. As to jurisdiction, the district court first concluded that it enjoyed equitable jurisdiction because Plaintiff had sought the return of his property under Rule 41(g), which created a suit in equity.1 Because its jurisdiction was equitable, the district court explained, it turned to the Richey factors to decide whether to exercise equitable jurisdiction.2

For the first Richey factor—callous disregard for Plaintiff’s constitutional rights—the district court found no evidence that the United States had engaged in that type of behavior. As to the second factor—Plaintiff’s interest in and need for the seized property— the district court determined that Plaintiff had an interest in at least some of the documents, like his medical documents, tax correspondence, and accounting information. But it made no finding that Plaintiff had a need for the classified documents. The third factor, the district court reasoned, weighed in favor of exercising jurisdiction because, in its view, Plaintiff suffered a likelihood of irreparable injury in the form of improper disclosure of sensitive information to the public and the threat of future prosecution and the associated stigma. Finally, the district court concluded that Plaintiff had no alternative remedy at law because otherwise, the United States might just retain the property indefinitely. Based on the four Richey factors, the district court agreed to exercise equitable jurisdiction.

Next, the district court held that Plaintiff had Fourth Amendment standing to seek a special master because he potentially had a possessory interest in the records. The district court reached this determination because, the court said, it was still undetermined whether the seized records were personal or Presidential.

On the merits, the district court deemed a special master warranted, given that (1) the United States had found at least two instances in which the Privilege Review Team reported that members of the investigative team had been exposed to privileged material, and (2) a special master might be perceived to be more impartial than the Privilege Review Team. As to executive privilege, the district court posited that Plaintiff might be able to assert executive privilege against the current President. And, the court continued, the fact that the Privilege Review Team hadn’t screened for executive privilege further militated towards appointment of a special master.

Finally, the district court enjoined the United States from further review and use of the seized materials for criminal investigative purposes—but allowed it to review and use the materials for the “purposes of intelligence classification and national security assessments.”


After the district court issued its order, the United States moved for a partial stay of that order pending appeal as to the limited set of documents (just over one hundred) that were marked as classified. The United States argued that (1) Plaintiff did not have a possessory interest in the classified documents (because they belonged to the United States, not to him); (2) such documents could not possibly contain attorney-client privileged information; and (3) even if Plaintiff could exert executive privilege over some of the records, that privilege would be overcome by the United States’s demonstrated, specific need to review the classified documents to see if and how much of a risk to national security existed.

As to executive privilege, the United States noted, Plaintiff had not asserted executive privilege in response to the May subpoena; instead, he had produced documents and his custodian had certified that he had produced all responsive documents, which meant that he could not assert executive privilege over documents that he was supposed to have already produced (but did not). The United States argued that it needed a stay of the district court’s injunction against the criminal investigation; the criminal investigation and national security were intertwined, the government emphasized, so the district court’s order prevented the United States from effectively reviewing the documents for national-security risk.

In support of that position, the United States attached a declaration from Alan E. Kohler, Jr., the Assistant Director of the Counterintelligence Division of the FBI. Kohler’s declaration explained that “since the 9/11 attacks, the FBI has integrated its intelligence and law enforcement functions when it exercises its national security mission.” Declaration of Alan E. Kohler, Jr., Asst. Dir., Counterintelligence Div., FBI (“Kohler Decl.”), Doc. No. 69- 1 ¶ 8. Kohler explained that, as part of a classification review to assess the existence and extent of damage to the national-security interests of the United States from disclosure of the documents marked classified, the FBI needed to access evidence and disseminate it to other intelligence agencies to assess potential harm. See id. ¶ 7. Those assessments, Kohler continued, would “necessarily” inform the FBI’s criminal investigation. Id. ¶ 9. For example, if an Intelligence agency were to obtain intelligence indicating that a classified document in the seized materials might have been compromised, the FBI would be responsible for taking some of the necessary steps to evaluate that risk. Id. Plus, Kohler attested, “the FBI is the only [Intelligence Community] element with a full suite of authorities and tools to investigate and recover any improperly retained and stored classified information in the United States.” Id.

Not only that, but as a practical matter, Kohler explained, “the same senior [Department of Justice] and FBI officials, such as [Kohler], are ultimately responsible for supervising the criminal investigation and for ensuring that the FBI is coordinating appropriately with the rest of the [Intelligence Community] on its classification review and assessment.” Id. ¶ 10.

Plaintiff responded that “there still remains a disagreement as to the classification status of the documents.” He emphasized that special-master review was temporary and asserted that he had a statutory right to access the documents.

On September 15, the district court denied a stay pending appeal and appointed a special master. Doc. No. 89. In explaining the basis for its decision, the district court first reasoned that it was not prepared to accept, without further review by a special master, that “approximately 100 documents isolated by the Government . . . [were] classified government records.” Doc. No. 89 at 3. Second, the district court declined to accept the United States’s argument that it was impossible that Plaintiff could assert a privilege for some of the documents bearing classification markings. Doc. No. 89 at 3–4.

The next day, the United States moved in this Court for a partial stay pending appeal, seeking to stay the district court’s orders with respect to only the roughly one-hundred documents bearing classification marks. Based on the United States’s contention that these documents and the corresponding criminal investigation are “essential to the government’s effort to identify and mitigate potential national-security risks,” the United States asked this Court to “act on [its] motion as soon as practicable.”

We directed Plaintiff to file an expedited response to the United States’s motion for partial stay. Plaintiff responded that (1) we lack jurisdiction over the order appointing a special master; (2) he has Rule 41(g) standing; (3) that the United States has not proved that the documents that are marked “classified” are actually “classified”; and (4) the district court properly balanced the harms in enjoining the United States.

The United States replied that (1) Plaintiff’s jurisdictional argument lacks merit; (2) Plaintiff lacks Rule 41(g) standing as it pertains to the classified documents; (3) The records bearing classification markings have no plausible case for being privileged, and even if Plaintiff had claimed to have declassified them, the United States would still need to assess them and (4) without a stay of the district court’s order as it regards the classified documents, the government and the public will be irreparably harmed.


We have carefully reviewed the parties’ briefs and the record.

II. JURISDICTION

We have appellate jurisdiction through 28 U.S.C. § 1292(a)(1), which provides courts of appeals with jurisdiction over interlocutory orders granting injunctions.3 Ala. v. U.S. Army Corps of Eng’rs , 424 F.3d 1117, 1127 (11th Cir. 2005).

III. DISCUSSION

When deciding whether to grant a stay pending appeal, we evaluate four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). After considering the four factors here, we conclude that the United States is entitled to a stay.

A. The United States has established a substantial likelihood of success on the merits.

The United States argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review. We agree.

Our binding precedent states that when a person seeks return of seized property in pre-indictment cases, those actions “are governed by equitable principles, whether viewed as based on [Federal Rule of Criminal Procedure] 41[(g)] or on the general equitable jurisdiction of the federal courts.” Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975). Here, while Plaintiff disclaimed that his motion was for return of property as specified in Rule 41(g), he asserted that equitable jurisdiction existed. And the district court relied on both Rule 41(g) and equitable jurisdiction in its orders. Doc. No. 64 at 8–12. Either way, Richey teaches that equitable principles control.

Whether a court should exercise its equitable jurisdiction in this context “is subject to the sound discretion of the district court.” Richey, 515 F.2d at 1243. But that discretion is not boundless. The factors a court should consider when deciding whether to exercise jurisdiction include (1) whether the government “displayed a callous disregard for . . . constitutional rights” in seizing the items at issue; (2) “whether the plaintiff has an individual interest in and need for the material whose return he seeks;” (3) “whether the plaintiff would be irreparably injured by denial of the return of the property;” and (4) “whether the plaintiff has an adequate remedy at law for the redress of his grievance.” Id. at 1243–44 (footnotes and quotation omitted). We consider each in turn.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman , 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman , 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors.

The second Richey factor considers “whether the plaintiff has an individual interest in and need for the material whose return he seeks.” 515 F.2d at 1243. The district court concluded that Plaintiff had an interest in some of the seized material because it included “medical documents, correspondence related to taxes, and accounting information.” Doc. No. 64 at 9. But none of those concerns apply to the roughly one-hundred classified documents at issue here. And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.

For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings. Classified documents are marked to show they are classified, for instance, with their classification level. Classified National Security Information , Exec. Order No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. § 3161 app. at 290–301. They are “owned by, produced by or for, or . . . under the control of the United States Government.” Id. § 1.1. And they include information the “unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security.” Id. § 1.4. For this reason, a person may have access to classified information only if, among other requirements, he “has a need-to-know the information.” Id. § 4.1(a)(3). This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement. Id. § 4.4(3).

Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents.

Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.
See Doc. No. 97 at 2–3., Sept. 19, 2022, letter from James M. Trusty, et al., to Special Master Raymond J. Dearie, at 2–3. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.

This factor—the Plaintiff’s personal interest (or lack thereof) in the documents—also weighs against exercising jurisdiction.


Third, Richey asks “whether the plaintiff would be irreparably injured by denial of the return of the property.” 515 F.2d at 1243. The district court identified potential harm that could arise based on (1) improper disclosure of “sensitive information” to the public; (2) the United States’s retention and use of privileged materials; and (3) the stigma associated with future prosecution. See Doc. No. 64 at 9–10.

We cannot conclude that Plaintiff would be irreparably injured by a stay regarding the documents marked classified. Plaintiff suggests that he could be harmed by the disclosure of sensitive information. Doc. No. 84 at 8. But permitting the United States to retain the documents does not suggest that they will be released; indeed, a purpose of the United States’s efforts in investigating the recovered classified documents is to limit unauthorized disclosure of the information they contain. Not only that, but any authorized official who makes an improper disclosure risks her own criminal liability. See, e.g. , 18 U.S.C. § 798. We also doubt that Plaintiff risks irreparable injury in the form of disclosure of privileged information; he has not, for example, asserted attorney-client privilege over any of the classified documents.

The remaining potential injury identified by the district court is “the threat of future prosecution and the serious, often indelible stigma associated therewith.” Doc. No. 64 at 10. No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.” United States v. Search of Law Office, Residence, and Storage Unit Alan Brown , 341 F.3d 404, 415 (5th Cir. 2003) (quotation omitted). If this concern were sufficient to constitute irreparable harm, courts’ “exercise of [their] equitable jurisdiction would not be extraordinary, but instead quite ordinary.” Id.

“It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.” Douglas v. City of Jeannette , 319 U.S. 157, 163 (1943); see also Deaver v. Seymour , 822 F.2d 66, 71 (D.C. Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin government from indicting plaintiff and explaining that “[p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.”); United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016) (“In almost all federal criminal prosecutions, injunctive relief . . . will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.”).4

In sum, the third Richey factor also weighs against exercising equitable jurisdiction.

Finally, Richey asks “whether the plaintiff has an adequate remedy at law for the redress of his grievance.” 515 F.2d at 1243– 44. The district court found that this factor weighed in favor of Plaintiff because otherwise, “Plaintiff would have no legal means of seeking the return of his property for the time being.” Doc. No. 64 at 10. But Plaintiff has been clear that he is not seeking the return of the classified documents. See Doc. No. 58 at 6 (“In general, the Government’s argument is premature. Movant has not yet filed a Rule 41(g) motion, and the standard for relief under that rule is not relevant to the issue of whether the Court should appoint a Special Master.”). And even if he were, he has not identified any reason that he is entitled to them.

This factor then, also weighs against exercising equitable jurisdiction.

In sum, none of the Richey factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion as it concerns the classified documents.
5

B. The United States would suffer irreparable injury in the absence of a stay.

We next consider the second Nken factor: whether the United States would suffer irreparable injury in the absence of a stay. See 556 U.S. at 426. We conclude that it would.

The motion for a partial stay distinguishes the roughly one-hundred seized records with classification markings from the remaining seized materials without any such markings. Because the classified nature of these documents bears on our analysis, we begin with a (brief) overview of the United States’s system of classification.

Since World War I, the Executive Branch “has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity.” Dep’t of the Navy v. Egan , 484 U.S. 518, 527 (1988). In practice, Presidents have often used Executive Orders to “protect sensitive information and to ensure its proper classification throughout the Executive Branch.” Id. at 528.6 The current operative classification protocols are described in Executive Order 13,526. Exec. Order No. 13,526, 3 C.F.R. 298.

Under Executive Order 13,526, there are three classification levels: Confidential, Secret, and Top Secret. Id. § 1.2. The standard for the level at which particular information should be classified turns on whether “the unauthorized disclosure” of the information “reasonably could be expected to cause” either “damage” (Confidential), “serious damage” (Secret), or “exceptionally grave damage” (Top Secret) to national security. Id. Once so designated, classified materials may remain classified for up to ten years, unless the original classification authority determines that the duration should be extended up to twenty-five years. Id. § 1.5.

Executive Order 13,526 also sets forth how documents can be declassified. In general, information can be declassified or downgraded by the official who authorized the original classification, her successor, her supervisor, or other officials with express declassification authority. Id. § 3.1(b). Classified records are also subject to automatic declassification if they are more than twenty-five years old and have permanent historical value, unless they fall into certain enumerated categories such that their declassification could harm national security. Id. § 3.3. For example, information that could reveal the identity of a confidential human source or that relates to weapons of mass destruction is exempted from automatic disclosure. See id.

Returning to the case before us, under the terms of the district court’s injunction, the Office of the Director of National Intelligence is permitted to continue its “classification review and/or intelligence assessment” to assess “the potential risk to national security that would result from disclosure of the seized materials.” Doc. No. 64 at 1–2, 6. But the United States is enjoined “from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process.” Id. 23–24.

This distinction is untenable.
Through Kohler’s declaration, the United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation. When matters of national security are involved, we “must accord substantial weight to an agency’s affidavit.” See Broward Bulldog, Inc. v. U.S. Dep’t of Justice , 939 F.3d 1164, 1182 (11th Cir. 2019) (quoting Am. Civil Liberties Union v. U.S. Dep’t of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011)).

The engrained principle that “courts must exercise the traditional reluctance to intrude upon the authority of the Executive in military and national security affairs” guides our review of the United States’s proffered national-security concerns. United States v. Zubaydah , 142 S. Ct. 959, 967 (2022) (alteration and citation omitted). No party has offered anything beyond speculation to undermine the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review. See Kohler Decl. ¶ 9. According to the United States, the criminal investigation will seek to determine, among other things, the identity of anyone who accessed the classified materials; whether any particular classified materials were compromised; and whether additional classified materials may be unaccounted for. As Plaintiff acknowledges, backwards-looking inquiries are the domain of the criminal investigators. Doc. No. 84 at 15–16. It would be difficult, if not impossible, for the United States to answer these critical questions if its criminal investigators are not permitted to review the seized classified materials.

Precisely because the United States’s criminal investigation is focused on past events, Plaintiff responds that the United States is not irreparably harmed because it can be distinguished from prospective national-security review. We are not persuaded.

The United States explains that there are circumstances where its national-security assessment of the classified materials is inextricably intertwined with the criminal investigation. Plaintiff acknowledges that the two “may relate,” but contends that any tension between these functions can be resolved because the district court’s order permits national-security assessments that “truly are, in fact, inextricable from criminal investigative use of the seized materials.” But discerning when an assessment becomes “truly” inextricable is far more easily said than done. Under that theory, officials charged with overseeing both national security and criminal investigations would risk contempt of court, undoubtedly chilling their national-security duties. Thus, an injunction delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public.

Third, as noted above, to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the September 5 Order does not enjoin the Government from taking actions necessary for the Security Assessments.5 [5 Needless to say, the Court is confident that the Government will faithfully adhere to a proper understanding of the term “inextricable” and, where possible, minimize the use and disclosure of the seized materials in accordance with the Court’s orders. Because the Court is not privy to the specific details of the Government’s investigative efforts and national security review, the Court expects that the Government, in general, is best suited to assess whether contemplated actions are consistent with the standard described herein.]

-- Order Denying Motion for Partial Stay Pending Appeal, by Judge Aileen M. Cannon, U.S. District Judge, Donald J. Trump, Plaintiff, v. United States of America, Defendant, September 15, 2022


The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Egan 484 U.S. at 529 (quotation omitted). As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.

In sum, given the long-recognized “compelling interest in protecting . . . the secrecy of information important to our national security,” Snepp v. United States , 444 U.S. 507, 509 n.3 (1980), we conclude that the United States would suffer irreparable harm from the district court’s restrictions on its access to this narrow—and potentially critical—set of materials, as well as the court’s requirement that the United States submit the classified records to the special master for review.

C. Plaintiff has not shown that he will suffer a substantial injury as a result of the limited stay.

We next turn to the third Nken factor, “whether issuance of the stay will substantially injure the other parties interested in the proceeding.” 556 U.S. at 426. Here, we analyze whether Plaintiff would be “substantially injure[d]” by a stay. Largely for reasons we have already discussed, we conclude that he would not.

First, as we have explained, Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.

Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation. “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”
Cobbledick v. United States, 309 U.S. 323, 325 (1940).

Third, because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States’s use of these records imposes the risk of disclosure to the United States of Plaintiff’s privileged information.

Given the limited scope of the stay—applying to only approximately one-hundred classified documents—we conclude that Plaintiff has not shown he will be substantially injured by a stay.

D. The public interest favors a stay.

We now come to the fourth and final Nken factor: “where the public interest lies.” 556 U.S. at 426. The documents at issue contain information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.” Exec. Order No. 13,526, § 1.2(a)(1), 3 C.F.R. 298. It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in “exceptionally grave damage to the national security.” Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised. See Kohler Decl. ¶¶ 6–9. For these reasons, we conclude that the public interest favors a stay.

IV. CONCLUSION

For the reasons we have explained, we GRANT the stay pending appeal. The district court order is STAYED to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.

_______________

Notes:

1 As we have noted, Plaintiff disclaimed having already filed a Rule 41(g) motion in his initial reply to the government. Doc. No. 58 at 6. Yet in the same filing, Plaintiff stated that he “intends” to assert that records were seized in violation of the Fourth Amendment and the Presidential Records Act and are “thus subject to return” under Rule 41(g). Id. at 8; see also id. at 18 (“Rule 41 exists for a reason, and the Movant respectfully asks that this Court ensure enough fairness and transparency, even if accompanied by sealing orders, to allow Movant to legitimately and fulsomely investigate and pursue relief under that Rule.”). The district court resolved this situation by classifying Plaintiff’s initial filing as a “hybrid motion” that seeks “ultimately the return of the seized property under Rule 41(g).” Doc. No. 64 at 6–7.

2 Richey v. Smith, 515 F.2d 1239, 1243–44 (5th Cir. 1975) (outlining the standard for entertaining a pre-indictment motion for the return of property under Rule 41(g)). Because the Fifth Circuit issued this decision before the close of business on September 30, 1981, it is binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

3 Plaintiff argues that we “lack[] jurisdiction to review the special master’s authority.” But our order does not address the special master’s authority; it addresses the district court’s orders as they require the United States to act and to refrain from acting. Nevertheless, we note that the district court “enjoin[ ed] the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order,” “in natural conjunction with [the appointment of the special master].” Doc. No. 64 at 1. And our pendent jurisdiction allows us to address an otherwise nonappealable order when it is inextricably intertwined with an appealable decision, or when review of an otherwise-nonappealable order “is necessary to ensure meaningful review” of an appealable decision. Jones v. Fransen , 857 F.3d 843, 850 (11th Cir. 2017) (citation omitted).

4 The Supreme Court has recognized an exception to this general rule— where “the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants.” Younger v. Harris, 401 U.S. 37, 48 (1971) (citing Dombrowski v. Pfister, 380 U.S. 479, 482 (1965)). Plaintiff has not made such an allegation here, nor do we see any evidence in the record to support one. And though Younger involved a state prosecution, many courts have applied the basic principles in Younger to federal prosecutions. See, e.g., Deaver, 822 F.2d at 69–70 (“[ i]n no case that we have been able to discover has a federal court enjoined a federal prosecutor’s investigation or presentment of an indictment. . . . Because these defendants are already guaranteed access to a federal court, it is not surprising that subjects of federal investigation have never gained injunctive relief against federal prosecutors.”).

5 The district court referred fleetingly to invoking its “inherent supervisory authority,” though it is unclear whether it utilized this authority with respect to the orders at issue in this appeal. Doc. No. 64 at 1, 7 n.8. Either way, the court’s exercise of its inherent authority is subject to two limits: (1) it “must be a reasonable response to the problems and needs confronting the court’s fair administration of justice,” and (2) it “cannot be contrary to any express grant of or limitation on the district court’s power contained in a rule or statute.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (quotation omitted). The district court did not explain why the exercise of its inherent authority concerning the documents with classified markings would fall within these bounds, other than its reliance on its Richey-factor analysis. We have already explained why that analysis was in error.

6 For its part, Congress has recognized the importance of a national security classification system and has directed that “the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government.” 50 U.S.C. § 3161.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Sep 22, 2022 9:51 am

Trump says presidents can declassify docs ‘even by thinking about it’: Donald Trump claimed in a Fox News appearance that documents taken to Mar-a-Lago were declassified while he was in office
by Julian Mark
The Washington Post
September 22, 2022 at 4:19 a.m. EDT

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. See Doc. No. 97 at 2–3., Sept. 19, 2022, letter from James M. Trusty, et al., to Special Master Raymond J. Dearie, at 2–3. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.

-- Opinion of the Court, In the United States Court of Appeals, For the Eleventh Circuit, DONALD J. TRUMP, Plaintiff-Appellee, versus UNITED STATES OF AMERICA, Defendant-Appellant, 09/21/2022


In his first TV appearance since a court-authorized search of his Florida home last month, Donald Trump reasserted Wednesday that any documents taken from the White House to Mar-a-Lago were declassified while he was in office, adding that a president can carry that out “even by thinking about it.”

“There doesn’t have to be a process, as I understand it,”
Trump told Fox News host Sean Hannity. Prosecutors have said that about 100 of the documents taken from Mar-a-Lago were marked classified, including some labeled top secret.

“If you’re the president of the United States, you can declassify just by saying it’s declassified,” the former president added.

“You’re the president — you make that decision.”


Trump’s comments followed an announcement earlier in the day that New York Attorney General Letitia James was filing a lawsuit accusing him and his three children of manipulating property values to deceive lenders, insurance brokers and tax officials. On Hannity’s program, Trump called the lawsuit part of a politically motivated “witch hunt” that has been brewing since he first ran for office.

Trump’s legal team has so far not produced evidence that the documents at Mar-a-Lago had been declassified, the three-judge panel of the appeals court noted in the Wednesday ruling. His lawyers have resisted doing so in front of special master Raymond Dearie, the U.S. district judge who pressed the team this week to provide such evidence, the panel wrote.

“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” the court wrote.

Following the court-authorized search of Mar-a-Lago on Aug. 8, the former president’s legal team has claimed that Trump issued a “standing order” while in office that documents taken to his residence would instantly be declassified.

In an interview with CNN in August, John Bolton, Trump’s former national security adviser, called that assertion “complete fiction.”

“There was no standing order,” Bolton said. “I was not briefed on anything like that when I started as national security adviser, I never heard of it, never saw it in operation, never knew anything about it.”


Devlin Barrett contributed to this report.

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

Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation
by President Donald J. Trump
January 19, 2021

PRESIDENTIAL MEMORANDA

Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation
Issued on: January 19, 2021

MEMORANDUM FOR THE ATTORNEY GENERAL, THE DIRECTOR OF NATIONAL INTELLIGENCE, THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY

SUBJECT: Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation

By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Declassification and Release. At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form.

I determined that the materials in that binder should be declassified to the maximum extent possible. In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.

I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.

My decision to declassify materials within the binder is subject to the limits identified above and does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court and does not require the disclosure of certain personally identifiable information or any other materials that must be protected from disclosure under applicable law. Accordingly, at my direction, the Attorney General has conducted an appropriate review to ensure that materials provided in the binder may be disclosed by the White House in accordance with applicable law.


Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Attorney General is authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

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

Part 3 - Declassification and Downgrading

Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(b) Information shall be declassified or downgraded by:

(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;

(2) the originator’s current successor in function, if that individual has original classification authority;

(3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.

(c) The Director of National Intelligence (or, if delegated by the Director of National Intelligence, the Principal Deputy Director of National Intelligence) may, with respect to the Intelligence Community, after consultation with the head of the originating Intelligence Community element or department, declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.

(d) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(e) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the National Security Advisor. The information shall remain classified pending a prompt decision on the appeal.

(f) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.

(g) No information may be excluded from declassification under section
3.3 of this order based solely on the type of document or record in which it is found. Rather, the classified information must be considered on the basis of its content.

(h) Classified nonrecord materials, including artifacts, shall be declassified as soon as they no longer meet the standards for classification under this order.

(i) When making decisions under sections 3.3, 3.4, and 3.5 of this order, agencies shall consider the final decisions of the Panel.

-- The President Executive Order 13526, Classified National Security Information, by Information Security Oversight Office, National Archives

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

Despite Trump's claims, experts say there's no 'magic wand' for a president to declassify documents
The president "can't do it in secret," an expert says about declassification.

by Mike Levine and Lucien Bruggeman
abc news
August 17, 2022, 8:04 AM

Former President Donald Trump isn't the first White House veteran to claim -- in the midst of a criminal probe looking at their handling of government secrets -- that the president can declassify almost anything he wants, whenever he wants, and however he wants.

"If the president says to talk about [a] document, it is then a declassified document," the former chief of staff to then-Vice President Dick Cheney, Lewis "Scooter" Libby, told a federal grand jury in 2004. "There's no ... process, according to counsel, that has to be gone through."

At the time, federal investigators were looking into the leak of the identity of a covert CIA operative -- but they were also interested in learning more about how parts of a classified document summarizing Iraq's purported efforts to obtain weapons of mass destruction in Africa had also become public.

Libby admitted to investigators that he "showed" portions of the Iraq document to a New York Times reporter, but he insisted that then-President George W. Bush "had already declassified" those portions by granting permission for Libby to share them with the press.

When transcripts of Libby's testimony were later released, it sparked a public debate over how presidents can -- and should -- wield their declassification authority.

"When the president determines that classified information can be made public ... can that supplant the declassification process?" a reporter asked White House spokesperson Scott McClellan on April 7, 2006. "Is it de facto declassified, by that determination?"

"The president is authorized to declassify information as he chooses," McClellan responded, without offering additional details.

A rigorous review

Nearly two decades later, after FBI agents last week executed a search warrant at Trump's Mar-a-Lago estate and removed several sets of classified documents, there is still little clarification on what a president must do -- if anything -- before a government secret he wants to release is no longer deemed classified.

For most government employees who seek to have information declassified, their requests must go through a rigorous review process that can span the entire U.S. intelligence community, in order to ensure that sources, methods and other national security interests are protected. "[But] there's no formal process that a president is required to follow when declassifying information," Brian Greer, a former CIA attorney who specialized in classification issues, told ABC News.

Nevertheless, Greer noted, "there has to be evidence that a declassification order occurred." And in Trump's case, "the Trump team has yet to produce any credible evidence," he said
.

In January, National Archives officials retrieved 15 boxes of records that had been improperly taken to Mar-a-Lago when Trump left the White House last year -- then, two months ago, federal agents visited Mar-a-Lago to retrieve additional materials that they believed Trump had failed to turn over. Shortly after that visit, an attorney for Trump signed a statement saying that all classified documents at Mar-a-Lago had been turned over to federal investigators, sources familiar with the matter told ABC News. But authorities believed Trump continued to possess classified documents, leading to last week's raid.

It's unclear exactly what records were recovered from Trump's residence last week, but court documents filed by the Justice Department indicate that it is investigating, among other things, potential violations of the Espionage Act, which makes it a crime to disclose sensitive national security information that could harm the United States -- even if it's not classified.

After the raid, Trump's team issued a statement to one media outlet claiming that, while still in office, Trump had issued "a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them." On social media, Trump himself insisted that the documents at Mar-a-Lago were "all declassified."

"The president is the ultimate classifier and de-classifier -- but he can't just wave a magic wand, and he can't do it in secret," said Douglas London, a 34-year CIA veteran and author of the "The Recruiter: Spying and the Lost Art of American Intelligence."

"So if [Trump] and his allies are defending his handling of these documents by claiming that they're no longer classified, they need to show the paper trail," London said.

'Nothing short of laughable'

Jeh Johnson, who served as the Defense Department's top lawyer before becoming Homeland Security secretary under the Obama administration, agreed in a piece he published for Lawfare.

"[P]art and parcel of any act of declassification is communicating that act to all others who possess the same information, across all federal agencies," Johnson wrote. "This point holds true regardless of whether the information exists in a document, an email, a power point presentation, and even in a government official's mental awareness. Otherwise, what would be the point of a legitimate declassification?"

Accordingly, Johnson said, the Trump team's claim of a "standing order" that all documents taken to Trump's residence were therefore "declassified" is "nothing short of laughable."


In Libby's case, no information was publicly released confirming that Bush had given Libby permission to share classified information with a reporter -- but at the time, the Bush administration was looking to release the information more broadly, and had initiated an inter-agency review to declassify it.

Amid growing questions over the unfolding war in Iraq, Bush and his allies wanted to bolster their previous claims that Iraq's regime had looked to acquire weapons of mass destruction in Africa. Those claims had come under intense scrutiny at the time after the former ambassador sent to investigate Iraq's alleged efforts, Joe Wilson, publicly disclosed that he found no evidence to support the Bush administration's claims and accused U.S. officials of exaggerating intelligence.

"And so the vice president thought we should get some of these facts out to the press," Libby testified to the grand jury. "But before it could be done, the document [summarizing the intelligence community's conclusions] had to be declassified."

Libby said Vice President Cheney "then undertook to get permission from the president to talk about this to a reporter. He got the permission. Told me to go off and talk to the reporter."

'In the public interest'

Ten days after Libby's meeting with the New York Times reporter, the U.S. government publicly released the document, known as a National Intelligence Estimate.

"What do you say to critics who argue that the president's decision to disclose this information, to effectively declassify it ... [was] a political use of intelligence information?" a reporter asked McClellan, the White House spokesperson, after the document was released.

"It was in the public interest that this information be provided," McClellan insisted.

Libby was ultimately charged -- and convicted -- of something else: lying to the grand jury and federal investigators about his role in leaking the identity of Wilson's wife, Valerie Plame, who was a covert CIA operative. Libby was sentenced to more than two years in federal prison, but his sentence was commuted by Bush in 2007, before Bush left office.

He was then fully pardoned by Trump in 2018.

ABC News' Alex Mallin and Will Steakin contributed to this report.

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

Trump claims presidents can declassify documents ‘by thinking about it’: Ex-president tells Sean Hannity: ‘Because you’re sending it to Mar-a-Lago or wherever … There doesn’t have to be a process’
by Martin Pengelly in New York @MartinPengelly
The Guardian
Thu 22 Sep 2022 09.32 EDT

Donald Trump has claimed presidents can declassify documents by the power of thought alone.

Speaking to Sean Hannity of Fox News in an interview broadcast on Wednesday, the former US president said: “Different people say different things but as I understand it, if you’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.

“Because you’re sending it to Mar-a-Lago or wherever you’re sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be.

“You’re the president – you make that decision.”
Acyn @Acyn ·Follow
Trump says you can declassify documents by just thinking about it

7:46 PM · Sep 21, 2022


The FBI searched Mar-a-Lago in August. Prosecutors have said about 100 documents found at Trump’s Florida resort were marked classified. Some were labeled top secret. Some reportedly concerned nuclear weapons.

Many observers think an indictment is looming. Trump has attempted to delay the investigation but on Wednesday appeals judges said it could continue while a document review goes on.

The judge carrying out the review, Raymond Dearie, this week told Trump lawyers they must provide evidence documents in question were declassified – or he will presume they were not.

Dearie said: “I guess my view of it is, you can’t have your cake and eat it.”

Trump has consistently claimed he declassified the documents by presidential fiat, whether physically, by taking them to the White House residence, verbally or, he now claims, by the power of telepathy alone.

“In other words, when I left the White House, they were declassified,” he told Hannity.

Experts doubt it. In August, Steven Aftergood of the Federation of American Scientists, a secrecy specialist, told the New York Times: “Hypothetical questions like ‘What if a president thinks to himself that something is declassified? Does that change its status?’ are so speculative that their practical meaning is negligible.

“It’s a logical mess. The system is not meant to be deployed in such an arbitrary fashion.”

Trump also told Hannity “there was nothing that was hiding” when boxes were packed to be taken to Mar-a-Lago from the White House in Washington.

The former president said he did not pack any boxes himself.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Sep 23, 2022 12:09 am

Part 1 of 2

Donald Trump speaks out on the FBI's raid on Mar-a-Lago: Fox News host Sean Hannity sits down with former President Trump in an exclusive interview to discuss the Mar-a-Lago raid and the two-tiered system of justice.
by Sean Hannity
Fox News
Sep 21, 2022



"'I just want you to know I've declassified everything in the world. I'm President, I can do it' — C'mon," Biden said shortly before departing the White House.

-- Biden mocks Trump's claims that he declassified documents found at Mar-a-Lago: 'C'mon', by John L. Dorman, Business Insider, Aug 27, 2022

[Glenn Kirschner, Justice Matters] So Donald Trump tells us that he can just imagine in his mind that things are Declassified, and poof, they're Declassified. Well, the 11th Circuit Court of Appeals opinion had a little something to say about declassification as well. "Plaintiff Trump suggests that he may have Declassified these documents when he was president, but the record contains no evidence that any of these records were Declassified, and the declassification argument is a red herring, because declassifying an official document would not change its content or render it personal." In other words, that wouldn't magically convert it into the personal property belonging to Donald Trump. They still belong to the government. They still belong to We the People. And whether he thought them Declassified or not, he was still unlawfully concealing them at Mar-A-Lago. But you know, let Donald Trump continue to talk about his magical thinking regarding declassification, because his every word is admissible evidence as a statement of a party opponent. When he says things like, "Maybe I Declassified them magically in my mind," what is he actually communicating to us -- and ultimately, when we introduce those statements at his trial to the jury? That he didn't declassify anything! Because if he did, every copy of the document would have to be stamped "Declassified." Every copy of the document, either hard copy, or in electronic form, in the government's possession, would have to be marked as "Declassified." None of that happened! And by Donald Trump saying, "Well, yeah, I just thought, I thought magically, that everything was Declassified, so it was," what he's communicating is "I didn't actually declassify anything." And yes, those statements will come back to haunt him in a courtroom when we are trying this case to 12 citizens in a jury box sitting as the conscience of the community, listening to all of the evidence of Donald Trump's guilt. And they will be persuaded, Beyond A Reasonable Doubt, to hold Donald Trump accountable for his crimes. Because Justice matters.


13:16 >> President Trump: THE PROBLEM THAT YOU HAVE IS THEY GO INTO ROOMS -- THEY WON'T LET ANYBODY NEAR THEM, THEY WOULDN'T EVEN LET THEM IN THE SAME BUILDING. DID THEY DROP ANYTHING INTO THOSE FILES? OR DID THEY DO IT LATER? THERE'S NO CHAIN OF CUSTODY HERE WITH THEM.

>> Sean: WOULDN'T THAT BE ON VIDEOTAPE POTENTIALLY?

>> President Trump: NO, I DON’T THINK SO. THEY ARE IN A ROOM.

>> Sean Hannity: OKAY, SO LET ME ASK YOU THIS QUESTION, BECAUSE I THINK THIS IS THE NEXT LOGICAL QUESTION. BECAUSE THE PRESIDENT OF THE UNITED STATES -- YOU, UNLIKE SAY HILLARY CLINTON IN HER CASE -- A PRESIDENT HAS THE POWER TO DECLASSIFY. OKAY, YOU SAID ON TRUTH SOCIAL A NUMBER OF TIMES YOU DID DECLASSIFY THEM. OKAY, IS THERE A PROCESS? WHAT WAS YOUR PROCESS?

>> President Trump: THERE DOESN’T HAVE TO BE A PROCESS AS I UNDERSTAND IT. DIFFERENT PEOPLE SEE DIFFERENT THINGS. BUT AS I UNDERSTAND IT, IF YOU’RE THE PRESIDENT OF THE UNITED STATES YOU CAN DECLASSIFY JUST BY SAYING IT’S DECLASSIFIED. EVEN BY THINKING ABOUT IT, BECAUSE YOU ARE SENDING IT TO MAR-A-LAGO, OR TO WHEREVER YOU’RE SENDING IT. THERE DOESN’T HAVE TO BE A PROCESS. IT CAN BE A PROCESS, BUT IT DOESN’T HAVE TO BE. THERE CAN BE A PROCESS, BUT THERE DOESN'T HAVE TO BE. YOU’RE THE PRESIDENT. YOU MAKE THAT DECISION. SO WHEN YOU SEND IT, IT’S DECLASSIFIED. I DECLASSIFIED EVERYTHING. NOW I DECLASSIFIED THINGS THAT -- WE WERE HAVING A LOT OF PROBLEMS WITH NARA. YOU KNOW, NARA IS A RADICAL LEFT GROUP OF PEOPLE RUNNING THAT THING. AND WHEN YOU SEND DOCUMENTS OVER THERE, I WOULD SAY THAT THERE’S A VERY GOOD CHANCE THAT A LOT OF THOSE DOCUMENTS WILL NEVER BE SEEN AGAIN. THERE’S ALSO A LOT OF SPECULATION BECAUSE OF WHAT THEY DID, THE SEVERITY OF THE FBI COMING AND RAIDING MAR-A-LAGO. WERE THEY LOOKING FOR THE HILLARY CLINTON EMAILS THAT WERE DELETED, BUT THEY ARE AROUND SOMEPLACE. WERE THEY LOOKING FOR THE --

>> Sean Hannity: WAIT, WAIT. YOU'RE NOT SAYING YOU HAD IT?

>> President Trump: NO, NO, THEY MAY BE SAYING, THEY MAY HAVE THOUGHT THAT IT WAS IN THERE.

>> Sean Hannity: OKAY.

>> President Trump: AND A LOT OF PEOPLE SAID THE ONLY THING THAT WOULD GIVE THE KIND OF SEVERITY THAT THEY SHOWED BY ACTUALLY COMING IN AND RAIDING WITH MANY, MANY PEOPLE, IS THE HILLARY CLINTON DEAL, THE RUSSIA, RUSSIA, RUSSIA STUFF. OR, I MEAN, THERE ARE A NUMBER OF THINGS: THE SPYING ON TRUMP'S CAMPAIGN. SO THEY SPIED ON MY CAMPAIGN. SO WHY DID THEY COME IN AND DO THAT? ESPECIALLY SINCE WE WERE HAVING SUCH GREAT CONVERSATIONS, SEAN.  


Transcript

>> Sean: WELCOME BACK TO HANNITY REPORTING FROM MAR-A-LAGO, AND HERE IS MORE OF MY INTERVIEW FROM EARLIER TODAY WITH PRESIDENT TRUMP. LET’S TALK ABOUT WHERE WE ARE RIGHT NOW. WE'RE AT MAR-A-LAGO. WHERE WERE YOU WHEN YOU HEARD THAT YOUR PERSONAL HOME WAS BEING RAIDED? AND WHAT DID YOU THINK?

>> President Trump: I WAS IN NEW JERSEY. I GOT A CALL IN THE MORNING FROM SOMEBODY THAT IS HERE, A PERSON WHO WORKS, "SIR, THE FBI JUST CAME IN." I SAID, "WHAT? THE FBI WHO?" AND THEY GO, "THE FBI." AND I SAID, "HOW MANY PEOPLE?" "MANY, MANY PEOPLE, SIR. MANY, MANY PEOPLE." AND I COULDN’T BELIEVE IT. AND THEY WANTED TO DO IT QUIETLY, SILENTLY. AND I SAID, "WHAT DO YOU MEAN, 'SILENT'?" THEY’RE NOT SILENT, BECAUSE I WATCH THE WAY THEY WERE SO HORRIBLE TO SO MANY PEOPLE THAT YOU KNOW, AND THAT I KNOW, THAT ARE GOOD PEOPLE, WHERE THEY JUST ATTACKED THEM AT THEIR HOUSE. AND THEY WANTED TO DO IT QUIETLY. AND BY 4:00 IN THE AFTERNOON WE STARTED GETTING LITTLE STRANGE CALLS, LIKE FROM THE GROUP CALLED THE MEDIA, IF YOU’VE EVER HEARD OF THEM? AND THEY SAID, "SOMETHING STRANGE IS HAPPENING AT MAR-A-LAGO. THERE ARE PEOPLE STANDING AT THE GATES WITH AK-47s OR SOME KIND OF A VERY SOPHISTICATED GUN. AND WHAT IS HAPPENING AT MAR-A-LAGO?" AND WHEN I HEARD THAT I SAID, "WELL LET’S PUT OUT A NOTICE THAT WE WERE ATTACKED, OR RAIDED, OR BROKEN IN BY THE FBI. I COULDN’T BELIEVE IT.

>> Sean: THEY WOULDN’T ALLOW YOUR LAWYERS TO GO WITH THEM AS THEY WENT THROUGH THIS ENTIRE FACILITY?

>> President Trump: NO, THEY WOULDN'T ALLOW. WE SENT LAWYERS TO THE PROPERTY.

>> Sean: SO HERE'S MY QUESTION, BUT THEY DID ASK YOU TO TURN OFF YOUR SECURITY CAMERA?

>> President Trump: THAT'S RIGHT.

>> Sean: BUT YOU DIDN’T DO IT?

>> President Trump: THAT'S RIGHT.

>> Sean: WILL YOU RELEASE THOSE TAPES PUBLICLY?

>> President Trump: WELL, THEY’VE ASKED ME NOT TO DO IT, BECAUSE THEY FEEL THE FBI AGENTS MIGHT BE IN PHYSICAL HARM AND DANGER. BECAUSE THERE IS A FERVOR IN THIS COUNTRY. THIS COUNTRY IS SO TIRED OF THIS STUFF. SO I HAVE NOT DONE IT.

>> Sean: YOU COULD PIXEL OUT THEIR FACES TO PROTECT THEIR IDENTITY.

>> President Trump: I GUESS I COULD DO THAT. LOOK, I REALLY BELIEVE THAT MOST OF THE PEOPLE WITHIN THE FBI OUT OF THE TOP GROUPS, MOST OF THE PEOPLE IN THE FBI, THEY PROBABLY VOTED FOR TRUMP. I DON’T WANT TO HAVE ANYBODY HURT. BUT THEY CAME ONTO THE SITE, THEY WOULDN’T ALLOW ANY LEGAL REPRESENTATION OR REPRESENTATION. SO THEY GO INTO THE ROOMS, LIKE MY BEDROOM, MY OFFICE, THEY GO INTO THE ROOMS --

>> Sean: YOUR WIFE’S CLOSET?

>> President Trump: WIFE’S CLOSET.

>> Sean: YOUR SON’S BEDROOM?

>> President Trump: MY SON’S BEDROOM, YEAH. THERE’S A PICTURE OF HUNTER BIDEN AND BARRON TRUMP. BARRON LOOKS SO INNOCENT, AND HUNTER DOESN’T LOOK SO INNOCENT. THEY SAID HIS ROOM WAS RAIDED, BUT HIS WASN’T. IT'S A TERRIBLE THING.

>> Sean: OKAY, SO THEY WENT TO A MAGISTRATE. MERRICK GARLAND HAS SAID, HE CAME OUT AND HE SAID, "I AUTHORIZED THIS." NOW IT’S INTERESTING, IS THEY WENT TO A MAGISTRATE, RIGHT HERE IN FLORIDA. A MAGISTRATE WHO HAD ALREADY PREVIOUSLY RECUSED HIMSELF FROM A CASE INVOLVING YOU BECAUSE OF, HE WAS PREJUDICED AGAINST YOU. OKAY, I UNDERSTAND THAT WAS, WHAT, MONTHS EARLIER? WHY THEN DIDN'T HE RECUSE HIMSELF IN THIS CASE? AND PART TWO TO THIS QUESTION IS THIS: THEY TOOK YOUR PASSPORT, THEY TOOK YOUR MEDICAL RECORDS, THEY TOOK YOUR TAX RECORDS. AND PROBABLY THE SCARIEST PART TO ME, AND THIS IS WHY A BROAD WARRANT LIKE THIS, TO ME WOULD BE DANGEROUS -- WE DO HAVE A FOURTH AMENDMENT -- THEY ALSO TOOK, WHAT, 500 PAGES OF ATTORNEY CLIENT PRIVILEGED INFORMATION? HAVE YOU GOTTEN THAT BACK, BY THE WAY?

>> President Trump: A LOT. I DON'T KNOW. I REALLY DON'T KNOW. THEY TOOK A LOT. I THINK THEY TOOK MY WILL. I FOUND OUT YESTERDAY. I SAID, "WHERE IS IT?" I THINK THEY TOOK MY WILL.

>> Sean: AM I IN IT?

>> President Trump: THAT COULD CAUSE A LOT OF PROBLEMS IF THAT GETS PUBLISHED, AND PEOPLE WHO WON’T BE SO HAPPY, OR MAY BE VERY HAPPY. I THINK THEY TOOK MY WILL. IT'S A HORRIBLE THING. THEY SHOPPED. THEY WENT TO A MAGISTRATE THAT HATES ME, A MAGISTRATE THAT RECUSED HIMSELF NOT LONG AGO IN ANOTHER CASE BECAUSE HE HATED TRUMP. HE IS A CLINTON PERSON, AND AN OBAMA PERSON. AND I UNDERSTAND THAT, BUT HE HATED TRUMP. AND FOR A SMALLER CASE THAT WAS LESS MEANINGFUL, HE DECIDED TO RECUSE HIMSELF. FOR A VERY IMPORTANT CASE FOR THE COUNTRY, HE DECIDED THAT, "I’LL TAKE THIS ONE." NOW HE DIDN’T DO IT BECAUSE OF HIS HATRED OF TRUMP. I DON'T KNOW WHY HE HATES ME, BUT HE HATES ME. MAYBE HE DOESN’T LIKE A STRONG MILITARY, LOW TAXES, GOOD EDUCATION.

>> Sean: HE MIGHT LIKE $6 A GALLON GASOLINE.

>> President Trump: WELL, HE'S GOT IT.

Magistrate Judge Bruce Reinhart's recusal from former President Donald Trump's RICO lawsuit against Hillary Clinton, the Democratic National Committee and others has become a major talking point among Trump's attorneys and supporters, who have cast doubt over Reinhart's ability to sign off on the search warrant for Trump's Mar-a-Lago home.  

Former federal prosecutors who spoke to Newsweek said that the recusal does raise questions about Reinhart's impartiality regarding Mar-a-Lago and argued that it would benefit the public interest for the judge to disclose what grounds prevented him from presiding over the Clinton suit.  

In the civil case, Trump is accusing dozens of actors of conspiring with Clinton to topple his presidency.  

In a June 22 filing, Reinhart recused himself from the case and asked that it be reassigned pursuant to subsection 455 under Title 28 of the U.S. Code, which states that any justice, judge or magistrate shall disqualify themselves from "any proceeding in which his impartiality might reasonably be questioned."

Reasons for recusal based on impartiality can range from personal bias concerning a party to financial interests in the litigation to having served in private practice on the matter in the case. However, the code does not require judges to specify exactly why they believe their impartiality could be questioned. So, Reinhart's recusal does not provide any information as to why he disqualified himself in Trump v. Clinton et. al.

"There's a tremendous lack of transparency about the reasons [for recusal]," former federal prosecutor Shanlon Wu told Newsweek. "It's opaque, it's a black box."


Wu explained that while the code "pretty much leaves it up to the judge when to recuse," it's the appearance of impartiality that judges are supposed to be concerned with. He said that if the American public doesn't believe the judicial system is impartial, it essentially loses its effectiveness in society.  

"So a lot of the reason for that lack of stating-all-the-reasons-out is to put a bigger burden on the judiciary to police itself," he said. "It's not just your financial disclosures that somebody's overseeing. Instead, you need to oversee it."

Neama Rahmini, a former federal prosecutor, said that from some of Reinhart's previous statements, it seems like the perception of bias caused him to recuse himself. If the bias was against Trump, Rahmini said, "logic would suggest that he should recuse himself in both cases."

"It is surprising that a judge was recused themselves in a case involving one party, but not a second case involving the same party," he said. "The only logical way it would make sense is if he has some pro-Hillary Clinton bias, but he's neutral when it comes to Trump."

Wu said if Reinhart were to be more detailed and specific about why he recused himself in the Clinton suit, it would stop a lot of speculations, but he noted that it is very uncommon for judges to offer additional reasoning for a recusal from a case.


-- Judge in Trump Raid Should Explain Recusal in Clinton Case: Ex-Prosecutors, by Katherine Fung ON 8/23/22 AT 6:00 AM EDT, Newsweek


28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge

U.S. Code


(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii)Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv)Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1)“proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(2 )the degree of relationship is calculated according to the civil law system;

(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;

(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

(June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93–512, § 1, Dec. 5, 1974, 88 Stat. 1609; Pub. L. 95–598, title II, § 214(a), (b), Nov. 6, 1978, 92 Stat. 2661; Pub. L. 100–702, title X, § 1007, Nov. 19, 1988, 102 Stat. 4667; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.)


>> Sean: LEMME GO THROUGH THIS. BEFORE YOU LEFT THE WHITE HOUSE, PLEASE EXPLAIN THE PROCESS. MY UNDERSTANDING, WHAT I’VE READ, YOU HAVE THE GSA, THEY PACK ALL THE BOXES. OKAY. DID YOU PACK ANY BOXES?

>> President Trump: NO, THEY WORK TOGETHER WITH PEOPLE IN THE WHITE HOUSE. I DON’T KNOW HOW YOU WOULD CLASSIFY THEM, BUT GSA WAS INVOLVED. THAT'S GOVERNMENT SERVICES. THEY ARE FANTASTIC PEOPLE. AND THEY PACKED THEM. AND NOT ONLY THAT, AND THEY BROUGHT THEM IN, ALONG WITH PEOPLE IN THE WHITE HOUSE. I DON’T KNOW WHO THEY ARE, BUT THERE ARE A LOT OF PEOPLE WORKING IN THE WHITE HOUSE. THEY PACKED THEM UP, BUT NOT THAT -- CLOTHING, MASSIVE AMOUNTS OF PICTURES, YOU KNOW. THEY TAKE SO MANY PICTURES EVERY DAY, AND THEY GIVE YOU COPIES OF ALL THE STUFF. AND IT’S BOXES AND BOXES OF PICTURES. NEWSPAPER ARTICLES, TREMENDOUS -- EVEN KITCHEN THINGS. YOU HAVE TREMENDOUS AMOUNTS OF DIFFERENT ITEMS. MUCH CLOTHING. I MEAN, SHIRTS, AND EVERYTHING. SPORTS GEAR. SO ALL OF THE STUFF. NOW, JUST TO SHOW YOU, THERE ARE MANY PICTURES OF THIS STUFF STANDING ON THE SIDEWALK OUTSIDE. NOT IN THE BASEMENT. NOT IN THE BASEMENT. THEY’RE STANDING OUTSIDE. I WAS GOING TO SAY, "LIKE JOE", BUT I DECIDED NOT TO, BECAUSE I WANT TO BE A VERY NICE PERSON. BUT LISTEN, SEAN, STANDING OUTSIDE, BOXES, GETTING READY TO BE PUT BY THE GSA, I ASSUME, INTO A TRUCK, AND BROUGHT DOWN TO PALM BEACH. THERE WAS NOTHING THAT WAS HIDING. AND IF YOU LOOK AT THE PRESIDENTIAL RECORDS ACT, THIS IS WHAT HAPPENS. YOU GET TOGETHER WITH GSA. NOW YOU HAVE TO UNDERSTAND, THEY BRING IT DOWN, BUT NARA, AND YOU TALK, AND YOU WORK, AND YOU NEGOTIATE. I MEAN, THEY DID IT. IT’S NOT THAT OLD. I THINK IN THE 1970s EXACTLY FOR THIS. AND WE WERE HAVING VERY NICE DISCUSSIONS. NO PROBLEM. AND THEN ALL OF A SUDDEN, WE GOT HIT VERY HARD BY THE FBI.

>> Sean: LET’S BACKTRACK A LITTLE. IN JANUARY OF THIS YEAR, THE NATIONAL ARCHIVES RECORD ADMINISTRATION, I GUESS THEY HAD BEEN NEGOTIATING, THEY CAME AND GOT 15 BOXES. MY UNDERSTANDING IS THAT THEY SENT YOU A LETTER, THANKING YOU AND YOUR TEAM FOR YOUR COOPERATION.

>> President Trump: THEY ACTUALLY THANKED US, YEAH.


Archives asked for records in 2021 after Trump lawyer agreed they should be returned, email says
by Josh Dawsey and Jacqueline Alemany
The Washington Post
Updated August 24, 2022 at 6:56 p.m. EDT| Published August 24, 2022 at 4:47 p.m. EDT

About two dozen boxes of presidential records stored in then-President Donald Trump’s White House residence were not returned to the National Archives and Records Administration in the final days of his term even after Archives officials were told by a Trump lawyer that the documents should be given back, according to an email from the top lawyer at the record-keeping agency.

“It is also our understanding that roughly two dozen boxes of original presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the administration that they need to be,” wrote Gary Stern, the agency’s chief counsel, in an email to Trump lawyers in May 2021, according to a copy reviewed by The Washington Post.


The email shows NARA officials were concerned about Trump keeping dozens of boxes of official records even before he left the White House — concerns that only grew in the coming months as Trump repeatedly declined to return the records. It also showed that Trump’s lawyers had concerns about Trump taking the documents and agreed that the boxes should be returned — at least according to the top Archives officials — while Trump kept the documents.

The previously unreported email — sent about 100 days after the former president left office with the subject line “Need for Assistance re Presidential Records” — also illustrates the myriad efforts Archives officials made to have documents including classified material returned over an 18-month period
, culminating with an FBI raid this month at Trump’s Mar-a-Lago Club in Florida.

Cipollone was the White House counsel for Trump and was designated by Trump as one of his representatives to the Archives. A spokeswoman for Cipollone declined to comment Wednesday.

Stern does not say in the email how he determined that the boxes were in Trump’s possession. He wrote that he also had consulted another Trump lawyer during the final days of Trump’s presidency — without any luck. “I had also raised this concern with Scott in the final weeks,” Stern writes in the email, referring to Trump lawyer Scott Gast, who is also copied on the email.

In the email, Stern again asks for the documents to be returned.


Gast did not respond to a request for comment. A Trump spokesman did not immediately respond to a request for comment. The Archives did not respond to a request for comment.

Stern’s email to three Trump lawyers takes an almost pleading tone at times. Cipollone is not copied on the email, which is sent to Gast and two longtime Cipollone deputies.

Stern cites at least two high-profile documents that the Archives knew at the time were missing — letters from North Korean leader Kim Jong Un and a letter from former president Barack Obama at the beginning of Trump’s presidency.

“We know things are very chaotic, as they always are in the course of a one-term transition,” Stern wrote. “ … But it is absolutely necessary that we obtain and account for all presidential records.”

Stern did not state in the email what the Archives believed had been in the boxes kept in the White House residence. But he did cite the correspondence between Trump and Kim as an example of an item the former president requested “just prior to the end of the administration.”

Stern wrote, “it is our understanding that in January 2021, just prior to the end of the administration, the originals were put in a binder for the president, but were never returned to the office of Records Management for NARA.”

Throughout the fall of 2021, Stern continued to urge multiple Trump advisers to help the Archives get the records back, according to people familiar with the conversations, who spoke on the condition of anonymity to describe private conversations. Trump only decided to give some of the documents back after Stern told Trump officials that the Archives would soon have to notify Congress, and Stern told Trump advisers that he did not want to escalate and notify Congress, these people said.

“‘We just want everything back’ was his message,” according to one Trump adviser.

Trump then returned 15 boxes of documents to the Archives in early 2022, and Archives officials urged Trump’s team to continue looking for more material at the beachfront club. But they also referred the matter to the Justice Department after realizing there were hundreds of pages of classified material in the boxes returned to the National Archives.


After extensive interviews with Trump aides, FBI officials raided Mar-a-Lago on Aug. 8 and seized an additional 11 sets of classified records after executing a search warrant — adding to the large volume of secret government documents recovered from the former president’s club.

The Post has previously reported on the former president’s long-standing habit of retiring to his private residence in the White House with official documents that regularly piled up. In interviews with former White House staffers, they recalled sending boxes of disorganized materials to the residence with Trump’s body man, at the then-president’s request.

Trump and his advisers have claimed that there was a standing declassification order for all documents taken to the residence, but multiple senior former administration officials have said they knew of no such order. Trump has also lamented to friends that he did not give the documents back because they were his personal property and did not belong to the U.S. government.


***

WaPo: White House Lawyer Told Archives That Trump Was Squirreling Away Docs While He Was In Office: This story goes from bad to worse.
by LIZ DYE
Abovethelaw.com
August 25, 2022 at 2:14 PM

Another day, another hugely damaging revelation about Trump’s deliberate removal (cough, cough theft) of government documents, as the Washington Post reveals that the National Archives (NARA) was already trying to retrieve material Donald Trump had squirreled away in his residence before he even left office. And they knew he had it because White House Counsel Pat Cipollone told them they should collect that stuff before Trump made off with it.

“It is also our understanding that roughly two dozen boxes of original presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the administration that they need to be,” NARA’s General Counsel Gary Stern wrote to Trump’s lawyers in May 2021.

The email was part of a long campaign to get back government property
, including not only the highly classified documents which prompted the Justice Department to open a grand jury investigation and execute that search warrant on August 8, but also items of a purely sentimental value, such as a “love letter” from North Korean dictator Kim Jong Un and a mock-up bollard from his “F U Mexico” wall.

The Post reports that Stern spent months trying to get the documents back, to no avail, despite the intercession of Cipollone and his former deputy Pat Philbin.

“We know things are very chaotic, as they always are in the course of a one-term transition,” Stern wheedled, “ … But it is absolutely necessary that we obtain and account for all presidential records.”

In fact, Trump only started returning some of the stuff he improperly retained (cough, cough stole) when NARA said it was going to have to refer the matter to Congress.


Kinda gives the lie to Team Trump’s shouting from the rooftops and then in that garbage motion they filed Monday that “All facts laid out herein show that there was complete cooperation between President Trump, his team, and the appropriate agencies.”

So perhaps it’s not surprising that Cipollone and Philbin, as well as John Eisenberg, all of whom had dutifully worked to flout congressional oversight and hide the fact that Trump had attempted to extort the President of Ukraine for dirt on Joe Biden, refused to play along when NARA went looking for a Trumpland lawyer to review the seized documents before they could be released to DOJ as part of its investigation.

But you know who did play along? Evan Corcoran, the Baltimore lawyer who put his name on that ridiculous motion claiming total cooperation, despite the fact that he, as one of the the only lawyers willing to do it, had been negotiating with the Justice Department and the Archives for months, even as his client retained numerous top secret government documents after being subpoenaed for their return. Although props for describing Trump as “voluntarily accept[ing] service of a grand jury subpoena,” while glossing over the fact that he never complied with it.

Not a great look, TBH.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Sep 23, 2022 10:27 pm

PART 2 OF 2

>> Sean: SO AT THAT POINT, WHAT WAS YOUR INVOLVEMENT IN THE PROCESS?

>> President Trump: NOT MUCH OF AN INVOLVEMENT, OTHER THAN WE HAD BOXES. AND AGAIN, MANY OF THESE BOXES HAD OTHER THINGS, YOU KNOW. MANY, MANY NEWSPAPERS. LITERALLY, MASSIVE AMOUNTS OF NEWSPAPERS, AND PICTURES. BUT THERE WERE A LOT OF BOXES FOR A LOT OF DIFFERENT THINGS. BUT THEY ACTUALLY WROTE A LETTER, "THANK YOU VERY MUCH FOR YOUR COOPERATION," EFFECTIVELY, AND WE WERE DOING THAT, WHICH IS EXACTLY WHAT WE'RE SUPPOSED TO DO BASED ON THE PRESIDENTIAL RECORDS ACT. AND SEAN, WE WERE DOING THAT. AND WE CONTINUE TO DO IT. AND THEN WE GOT HIT BY ...

>> Sean: IS IT BECAUSE IT WAS SO VOLUMINOUS, THE NUMBER OF PAPERS?

>> President Trump: WE HAVE PICTURES OF IT. ACTUALLY WE HAVE PICTURES OF IT, PRETTY MUCH I THINK, MANY PICTURES OF PEOPLE -- I THINK THEY WERE GSA MOSTLY, PEOPLE, SOME PEOPLE IN THE WHITE HOUSE, STANDING OUTSIDE OF THE WHITE HOUSE. OTHER PEOPLE WERE COMING UP AND TAKING PICTURES. IF WE WANTED TO DO THIS, WE'D DO IT THROUGH THE BASEMENT, AND WE WOULDN’T LET ANYBODY TAKE PICTURES. WE HAD NOTHING TO HIDE.

>> Sean: DID YOU EVER, AT ANY POINT, DENY ANY ACCESS FROM ANYONE FROM NARA, OR FOR THE DOJ, OR THE FBI ACCESS, BECAUSE IN JUNE, MY UNDERSTANDING IS THE DOJ, THE FBI GUYS WERE HERE. AND THEY SAW A REMAINING TEN BOXES, WHICH THEY ENDED UP TAKING IN THE RAID. AND A COUPLE DAYS LATER THEY ASKED YOU AND YOUR TEAM TO PUT A PADLOCK ON IT. AND THAT DAY, WERE THEY FREE TO TAKE THOSE DOCUMENTS WITH THEM? WAS THERE ANY DISAGREEMENT ABOUT THAT?

>> President Trump: YOU SAID, "ACCESS." I'M NOT SURE THEY ASKED FOR ACCESS PER SE.
On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents. The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge./quote]

See Attachment E.4

After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched. As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.

-- UNITED STATES’ RESPONSE TO MOTION FOR JUDICIAL OVERSIGHT AND ADDITIONAL RELIEF, DONALD J. TRUMP, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, by Juan Antonio Gonzalez, UNITED STATES ATTORNEY and Jay I. Bratt, CHIEF, Counterintelligence and Export Control Section, National Security Division


I THOUGHT WE WERE HAVING A VERY GOOD CONVERSATION, EVEN WHEN THEY WENT DOWNSTAIRS, THE ATTORNEYS WENT DOWNSTAIRS AND SHOWED THEM THE ROOM, SHOWED THEM THE BOXES. I THOUGHT IT WAS VERY ROUTINE THING. AND AGAIN, IF YOU LOOK AT THE LAW, OR THE ACT, OR WHATEVER THE PRESIDENTIAL RECORDS ACT, IT BASICALLY SAID EVERYTHING THAT WE WERE DOING WE SHOULD BE DOING. WE CAN TALK TO THEM. NOW, WHEN THEY ARE HERE, WE CAN DO LOTS OF THINGS. I THINK WE HAD GOOD SECURITY. WE HAD, AS YOU KNOW, WE HAD TREMENDOUS SECRET SERVICE. THEY ARE UNBELIEVABLE PEOPLE. AND THEY ARE ALL OVER MAR-A-LAGO, AS HAPPENS TO A FORMER PRESIDENT, ET CETERA, ET CETERA. I HATE TO USE THE WORD "FORMER", BECAUSE I HAVE A LOT OF PROBLEMS WITH WHAT HAPPENED. BUT THE FACT IS, WE WOULDN’T BE HAVING ALL THESE PROBLEMS THAT WE HAVE RIGHT NOW, BY THE WAY, WITH UKRAINE, AND RUSSIA TALKING ABOUT NUCLEAR WEAPONS NOW, AND ALL OF THAT. BECAUSE WHAT IS HAPPENING IN THE WORLD IS HORRIBLE. BUT WE HAD GOOD DISCUSSIONS AS PER THE WHOLE RECORDS ACT, PRESIDENTIAL RECORDS ACT. AND THEN ALL OF A SUDDEN, WE WERE SUPPRESSED. I WAS VERY SURPRISED. BY THE WAY, IF WE DON’T HAVE GOOD DISCUSSIONS, IF YOU CAN'T AGREE WITH THEM, THERE'S LIKE A PROCESS THAT YOU GO THROUGH. AND I THINK THAT THE PRESIDENT PREDOMINATES IN THE END. IT’S HIS CHOICE IN THE END.

>> Sean: LET ME STOP HERE. I STARTED THIS SHOW WITH A MONOLOGUE. IN THAT MONOLOGUE, I POINTED OUT HILLARY CLINTON, WHICH I GUESS IS THE CLOSEST CASE IN MODERN HISTORY, THAT THIS MIRRORS YOUR CASE. EXCEPT HERS WERE ELECTRONIC. AND YOU HEARD JIM COMEY. I JUST PLAYED IT, YOU KNOW. TOP SECRET CLASSIFIED INFORMATION ON HER SERVER, ALL THESE EMAIL CHAINS. THEN WE HAVE THE DELETED EMAILS, THE BLEACH BIT OF THE OTHER 33,000 EMAILS, THE HAMMERS, THE DEVICES, THE SIM CARDS -- ALL THOSE THINGS THAT I MENTIONED. SO WE HAVE A SIMILAR CASE. AND THEN YOU HEARD JAMES COMEY SAY, "NO PROSECUTOR WOULD EVER PROSECUTE." BUT THEY'RE THREATENING TO PROSECUTE YOU. WHAT IS THE DIFFERENCE BETWEEN WHAT YOU’RE DESCRIBING WITH HAVING -- THEY FOUND APPARENTLY A HUNDRED AND ONE CLASSIFIED DOCUMENTS IN THE BOXES THAT THEY FOUND. THEY FOUND 11,000 PAGES THAT WEREN'T CLASSIFIED.

During her tenure as United States Secretary of State, Hillary Clinton drew controversy by using a private email server for official public communications rather than using official State Department email accounts maintained on federal servers. After a years-long FBI investigation, it was determined that Clinton's server did not contain any information or emails that were marked classified. Federal agencies did, however, retrospectively determine that 100 emails contained information that should have been deemed classified at the time they were sent, including 65 emails deemed "Secret" and 22 deemed "Top Secret". An additional 2,093 emails were retroactively designated confidential by the State Department.

Some experts, officials, and members of Congress contended that Clinton's use of a private messaging system and a private server violated federal law, specifically 18 U.S. Code § 1924, regarding the unauthorized removal and retention of classified documents or materials, as well as State Department protocols and procedures, and regulations governing recordkeeping. Clinton claimed that her use complied with federal laws and State Department regulations, and that former secretaries of state had also maintained personal email accounts (however Clinton was the only secretary of state to use a private server). News reports by NBC and CNN indicated that the emails discussed "innocuous" matters already available in the public domain. For example, the CIA drone program has been widely discussed in the public domain since the early 2000s; however, the existence of the program is technically classified, so sharing a newspaper article that mentions it would constitute a security breach, according to the CIA.

The controversy was a major point of discussion and contention during the 2016 presidential election, in which Clinton was the Democratic nominee. In May, the State Department's Office of the Inspector General released a report about the State Department's email practices, including Clinton's. In July, FBI director James Comey announced that the FBI investigation had concluded that Clinton had been "extremely careless" but recommended that no charges be filed because Clinton did not act with criminal intent, the historical standard for pursuing prosecution.

On October 28, 2016, eleven days before the election, Comey notified Congress that the FBI had started looking into newly discovered emails. On November 6, Comey notified Congress that the FBI had not changed its conclusion. Comey's timing was contentious, with critics saying that he had violated Department of Justice guidelines and precedent, and prejudiced the public against Clinton. The controversy received more media coverage than any other topic during the presidential campaign. Clinton and other observers argue that the reopening of the investigation contributed to her loss in the election. Comey said in his 2018 book A Higher Loyalty that his decision may have been unconsciously influenced by the fact that he considered it extremely likely that Clinton would become the next president.

On June 14, 2018, the Department of Justice's Office of the Inspector General released its report on the FBI's and DOJ's handling of Clinton's investigation, finding no evidence of political bias and lending support for the decision to not prosecute Clinton. A three-year State Department investigation concluded in September 2019 that 38 individuals were "culpable" in 91 instances of sending classified information that reached Clinton's email account, though it found "no persuasive evidence of systemic, deliberate mishandling of classified information". Yet a September 2022 "Fact Checker" analysis by The Washington Post, which followed a tweet by Clinton claiming, "I had zero emails that were classified", also quotes the same 2019 State Department report as having noted, "None of the emails at issue in this review were marked as classified."

-- Hillary Clinton email controversy, by Wikipedia, accessed 9/23/22


>> President Trump: WE DON’T KNOW WHAT THEY FOUND, BECAUSE THEY WOULDN’T LET ANY REPRESENTATIVE -- THEY HAD OUR LAWYERS, IT WAS A HUNDRED DEGREES OUT. THEY HAD OUR LAWYERS STANDING OUTSIDE, NOT EVEN ALLOWING THEM INTO A BUILDING WHERE THEY HAD AIR CONDITIONING. IT'S A BIG COMPLEX. AND YOU A HUNDRED, YOU HAD A LOT OF PEOPLE HERE. I DON'T KNOW HOW MANY. YOU HAD A LOT OF PEOPLE. THEY WOULDN'T LET ANYONE INSIDE. AND YOU KNOW, IF YOU LOOK AT NARA, AND IF YOU LOOK AT THE FBI OVER THE LAST 10-15 YEARS, AND IF YOU LOOK AT ALL OF THE THINGS THAT THE JUSTICE DEPARTMENT, WHAT'S TAKEN PLACE, WHEN YOU LOOK AT WHAT TOOK PLACE WITH THE RUSSIA, RUSSIA, RUSSIA HOAX. SEAN, THEY SPIED ON MY CAMPAIGN. WHAT COULD BE WORSE? COULD YOU IMAGINE? TAKE OBAMA. IF WE SPIED ON HIS CAMPAIGN, IT WOULD PROBABLY BE A DEATH SENTENCE. THEY SPIED ON MY CAMPAIGN EVEN WHEN I WAS IN THE WHITE HOUSE. AND WHO WOULD THINK THAT THIS IS POSSIBLE? BUT THEY SPIED. SO, YOU KNOW, WE'RE NOT DEALING WITH A LOT OF TRUST HERE. AND THE PUBLIC ISN'T EITHER. THE AMERICAN PUBLIC IS REALLY ANGRY.

>> Sean: SO THEN, THIS IS A BIG PART OF WHAT I WANT TO GET INTO, AND THAT IS, OKAY, I MENTION, FOR EXAMPLE, 33,000 DELETED EMAILS. WE TALKED ABOUT HUNTER BIDEN’S LAPTOP. WE TALKED ABOUT IN THAT LAPTOP, JOE BIDEN IS IMPLICATED MANY TIMES BY HIS OWN SON. HE DIDN’T WANT TO PAY ALL OF DAD’S BILLS, HE DIDN’T WANT TO PAY FOR HIS REPAIRS. THE BIG GUY GETS HIS CUT. TONY BOBULINSKI CONFIRMED THE BIG GUY IS JOE BIDEN. HE MET WITH, WE NOW KNOW, ABOUT 14 OF THE FOREIGN BUSINESS PARTNERS, WHICH MEANS HE LIED DURING THE CAMPAIGN. YOU DON’T SEE ANYTHING HAPPEN THERE.

Publication by the New York Post two weeks ago of emails from Hunter Biden's laptop, relating to Vice President Joe Biden's work in Ukraine, and subsequent articles from other outlets concerning the Biden family's pursuit of business opportunities in China, provoked extraordinary efforts by a de facto union of media outlets, Silicon Valley giants and the intelligence community to suppress these stories.

One outcome is that the Biden campaign concluded, rationally, that there is no need for the front-running presidential candidate to address even the most basic and relevant questions raised by these materials. Rather than condemn Biden for ignoring these questions -- the natural instinct of a healthy press when it comes to a presidential election -- journalists have instead led the way in concocting excuses to justify his silence.

After the Post’s first article, both that newspaper and other news outlets have published numerous other emails and texts purportedly written to and from Hunter reflecting his efforts to induce his father to take actions as Vice President beneficial to the Ukrainian energy company Burisma, on whose board of directors Hunter sat for a monthly payment of $50,000, as well as proposals for lucrative business deals in China that traded on his influence with his father.

Individuals included in some of the email chains have confirmed the contents' authenticity. One of Hunter’s former business partners, Tony Bubolinski, has stepped forward on the record to confirm the authenticity of many of the emails and to insist that Hunter along with Joe Biden's brother Jim were planning on including the former Vice President in at least one deal in China. And GOP pollster Frank Luntz, who appeared in one of the published email chains, appeared to confirm the authenticity as well, though he refused to answer follow-up questions about it.

Thus far, no proof has been offered by Bubolinski that Biden ever consummated his participation in any of those discussed deals. The Wall Street Journal says that it found no corporate records reflecting that a deal was finalized and that "text messages and emails related to the venture that were provided to the Journal by Mr. Bobulinski, mainly from the spring and summer of 2017, don’t show either Hunter Biden or James Biden discussing a role for Joe Biden in the venture."

But nobody claimed that any such deals had been consummated -- so the conclusion that one had not been does not negate the story.
Moreover, some texts and emails whose authenticity has not been disputed state that Hunter was adamant that any discussions about the involvement of the Vice President be held only verbally and never put in writing.

Beyond that, the Journal's columnist Kimberly Strassel reviewed a stash of documents and "found correspondence corroborates and expands on emails recently published by the New York Post," including ones where Hunter was insisting that it was his connection to his father that was the greatest asset sought by the Chinese conglomerate with whom they were negotiating. The New York Times on Sunday reached a similar conclusion: while no documents prove that such a deal was consummated, "records produced by Mr. Bobulinski show that in 2017, Hunter Biden and James Biden were involved in negotiations about a joint venture with a Chinese energy and finance company called CEFC China Energy," and "make clear that Hunter Biden saw the family name as a valuable asset, angrily citing his 'family’s brand' as a reason he is valuable to the proposed venture."

These documents also demonstrate, reported the Times, "that the countries that Hunter Biden, James Biden and their associates planned to target for deals overlapped with nations where Joe Biden had previously been involved as vice president." Strassel noted that "a May 2017 'expectations' document shows Hunter receiving 20% of the equity in the venture and holding another 10% for 'the big guy'—who Mr. Bobulinski attests is Joe Biden." And the independent journalist Matt Taibbi published an article on Sunday with ample documentation suggesting that Biden's attempt to replace a Ukranian prosecutor in 2015 benefited Burisma.

All of these new materials, the authenticity of which has never been disputed by Hunter Biden or the Biden campaign, raise important questions about whether the former Vice President and current front-running presidential candidate was aware of efforts by his son to peddle influence with the Vice President for profit, and also whether the Vice President ever took actions in his official capacity with the intention, at least in part, of benefitting his son's business associates.

-- The Real Scandal: U.S. Media Uses Falsehoods to Defend Joe Biden From Hunter's Emails
Article on Joe and Hunter Biden Censored By The Intercept: An attempt to assess the importance of the known evidence, and a critique of media lies to protect their favored candidate, could not be published at The Intercept, by Glenn Greenwald, Oct 29, 2020


>> President Trump: NOTHING IS GONNA HAPPEN THERE.

>> Sean: SO DO WE HAVE EQUAL JUSTICE IN THIS COUNTRY?

>> President Trump: NO, WE DON'T. AND IT’S VERY UNFAIR. IT’S A VERY UNFAIR SITUATION. YOU MENTIONED THE WORD "PROSECUTE." I DON'T THINK PROSECUTE, I DON'T THIS THIS IS PROSECUTABLE. UNDER THE PRESIDENTIAL RECORDS ACT, THERE IS NO RETRIBUTION, OR PROSECUTION. YOU’RE SUPPOSED TO NEGOTIATE. WE'RE TALKING ABOUT DOCUMENTS. WE'RE TALKING ABOUT DOCUMENTS THAT ACTUALLY ARE BEING WATCHED OVER, TO A CERTAIN EXTENT, AND I WOULD SAY TO A LARGE EXTENT, BY THE SECRET SERVICE IF YOU THINK ABOUT IT. BUT I CAN'T IMAGINE THE WORD, YOU MENTIONED THE WORD "PROSECUTION." I DON'T HEAR THE WORD "PROSECUTION."

>> Sean: NO, I’M SAYING THAT THEY DIDN'T PROSECUTE THEM.

>> President Trump: NO, NO, BUT I DON'T SEE HOW THEY COULD PROSECUTE ME. HOW DO YOU PROSECUTE SOMEBODY IF THEY DIDN'T RAID THEIR HOME?

>> Sean: NO, THEY RAIDED THIS HOME!

>> President Trump: THEY CERTAINLY DIDN'T RAID THEIR HOMES. THEY CERTAINLY DIDN'T RAID THEIR HOMES. AND WHEN HILLARY BROKE THEM UP, BROKE UP ALL HER PHONES WITH THE HAMMERS, AND THEY DID THE BLEACH -- ALL THE THINGS THAT HAPPENED WERE INCREDIBLE. WELL, YOU COULD ALSO SAY 33 MILLION DOCUMENTS, OR PAGES, WITH PRESIDENT OBAMA. THAT’S VERY QUESTIONABLE. 33 MILLION, NOT 33,000. IT HAPPENS TO BE A SIMILAR NUMBER. 33 MILLION. THEY ARE FIGHTING OVER THEM, OR ARGUING OVER THEM.

NARA Press Release Statement on Obama Presidential Records
AUGUST 12, 2022


The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA). NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration. For more information, please visit https://www.archives.gov/press/press-re ... 2/nr22-001


>> President Trump: THE PROBLEM THAT YOU HAVE IS THEY GO INTO ROOMS -- THEY WON'T LET ANYBODY NEAR THEM, THEY WOULDN'T EVEN LET THEM IN THE SAME BUILDING. DID THEY DROP ANYTHING INTO THOSE FILES? OR DID THEY DO IT LATER? THERE'S NO CHAIN OF CUSTODY HERE WITH THEM.

>> Sean: WOULDN'T THAT BE ON VIDEOTAPE POTENTIALLY?

>> President Trump: NO, I DON’T THINK SO. THEY ARE IN A ROOM.  

>> Sean Hannity: OKAY, SO LET ME ASK YOU THIS QUESTION, BECAUSE I THINK THIS IS THE NEXT LOGICAL QUESTION. BECAUSE THE PRESIDENT OF THE UNITED STATES -- YOU, UNLIKE SAY HILLARY CLINTON IN HER CASE -- A PRESIDENT HAS THE POWER TO DECLASSIFY. OKAY, YOU SAID ON TRUTH SOCIAL A NUMBER OF TIMES YOU DID DECLASSIFY THEM. OKAY, IS THERE A PROCESS? WHAT WAS YOUR PROCESS?

>> President Trump: THERE DOESN’T HAVE TO BE A PROCESS AS I UNDERSTAND IT. DIFFERENT PEOPLE SEE DIFFERENT THINGS. BUT AS I UNDERSTAND IT, IF YOU’RE THE PRESIDENT OF THE UNITED STATES YOU CAN DECLASSIFY JUST BY SAYING IT’S DECLASSIFIED. EVEN BY THINKING ABOUT IT, BECAUSE YOU ARE SENDING IT TO MAR-A-LAGO, OR TO WHEREVER YOU’RE SENDING IT. THERE DOESN’T HAVE TO BE A PROCESS. IT CAN BE A PROCESS, BUT IT DOESN’T HAVE TO BE. THERE CAN BE A PROCESS, BUT THERE DOESN'T HAVE TO BE. YOU’RE THE PRESIDENT. YOU MAKE THAT DECISION. SO WHEN YOU SEND IT, IT’S DECLASSIFIED. I DECLASSIFIED EVERYTHING. NOW I DECLASSIFIED THINGS THAT -- WE WERE HAVING A LOT OF PROBLEMS WITH NARA. YOU KNOW, NARA IS A RADICAL LEFT GROUP OF PEOPLE RUNNING THAT THING. AND WHEN YOU SEND DOCUMENTS OVER THERE, I WOULD SAY THAT THERE’S A VERY GOOD CHANCE THAT A LOT OF THOSE DOCUMENTS WILL NEVER BE SEEN AGAIN. THERE’S ALSO A LOT OF SPECULATION BECAUSE OF WHAT THEY DID, THE SEVERITY OF THE FBI COMING AND RAIDING MAR-A-LAGO. WERE THEY LOOKING FOR THE HILLARY CLINTON EMAILS THAT WERE DELETED, BUT THEY ARE AROUND SOMEPLACE. WERE THEY LOOKING FOR THE --

>> Sean Hannity: WAIT, WAIT. YOU'RE NOT SAYING YOU HAD IT?

>> President Trump: NO, NO, THEY MAY BE SAYING, THEY MAY HAVE THOUGHT THAT IT WAS IN THERE.

>> Sean Hannity: OKAY.

>> President Trump: AND A LOT OF PEOPLE SAID THE ONLY THING THAT WOULD GIVE THE KIND OF SEVERITY THAT THEY SHOWED BY ACTUALLY COMING IN AND RAIDING WITH MANY, MANY PEOPLE, IS THE HILLARY CLINTON DEAL, THE RUSSIA, RUSSIA, RUSSIA STUFF. OR, I MEAN, THERE ARE A NUMBER OF THINGS: THE SPYING ON TRUMP'S CAMPAIGN. SO THEY SPIED ON MY CAMPAIGN. SO WHY DID THEY COME IN AND DO THAT? ESPECIALLY SINCE WE WERE HAVING SUCH GREAT CONVERSATIONS, SEAN.
 

>> Sean: ALRIGHT, SO LET ME GO, YOU MENTIONED RUSSIA A NUMBER OF TIMES. LET'S TALK ABOUT THAT. ANDREW MCCABE, THE DEPUTY FBI DIRECTOR, FAMOUSLY SAID, "WITHOUT HILLARY’S BOUGHT-AND-PAID-FOR DOSSIER. NOW REMEMBER, SHE USED HER MONEY AND DNC MONEY. SHE FUNNELLED IT TO A LAW FIRM. THE LAW FIRM HIRES FUSION GPS AND OP RESEARCH FIRM. IT WAS IN 2016. THEY THEN HIRED CHRISTOPHER STEELE, FORMER MI6. CHRISTOPHER STEELE’S MAIN SOURCE IS A GUY BY THE NAME OF DANCHENKO. HE IS NOW ON TRIAL FOR LYING TO THE FBI. WE KNOW, AND WE'VE BEEN ABLE TO CONFIRM, AND REPORTED, WIDELY BELIEVED, FIRST OF ALL, THE MEDIA YOU ALL GOT IT WRONG ON THE RUSSIA ISSUE. MY SHOW GOT IT RIGHT.

>> President Trump: FULL OF SURPRISES. SHOULD BE RETURNED. THEY ARE 100% WRONG. THEY GOT IT WRONG.

>> Sean: THEY GOT IT WRONG. AND THIS IS IMPORTANT. THIS DRAGGED THIS COUNTRY THROUGH HELL FOR THREE YEARS. I THINK YOU WERE WATCHING SOME OF THE COVERAGE. SO MY NEXT QUESTION IS IF, IN FACT, THEY COULDN’T GET THE FISA WARRANT, ACCORDING TO ANDREW MCCABE, WITHOUT HILLARY’S DOSSIER, THEY RUINED CARTER PAGE'S LIFE, AND THEN BECAUSE THERE WAS A CONNECTION TO YOU THAT WAS A BACKDOOR TO YOUR CAMPAIGN, YOUR TRANSITION TEAM, AND YOUR PRESIDENCY, HERE’S MY QUESTION. DANCHENKO WAS THE SOURCE FOR CHRISTOPHER STEELE. HE TOLD THE FBI IN JANUARY OF 2017 THAT IN FACT IT WAS ALL TOTAL B.S. BARTOK, NOT TRUE. NONE OF IT. THEN A FEW MONTHS LATER HE’S ON THE FBI’S PAYROLL. AND YET THEY USED HIS WORDS AS THE SOURCE TO SPY ON YOU AS A PRESIDENT AND CANDIDATE.

>> President Trump: HE WAS ON THE PAYROLL, AND ANOTHER VERY HIGH UP IN THE FBI WAS WORKING WITH THE MUELLER CAMPAIGN. THINK OF THIS. WITH THE MUELLER WHICHWITCH, ANOTHER ONE OF THE WITCHHUNTS. AT LEAST, I TELL YOU WHAT, WE HAVE SHOWN THE PEOPLE OF THIS COUNTRY THERE WAS SUCH CORRUPTION, WHETHER IT BE ELECTIONS, WHETHER IT BE OPEN BORDERS, WHETHER IT BE THE KIND OF THINGS WE'RE TALKING ABOUT RIGHT NOW. THE CORRUPTION IS UNBELIEVABLE. THEY HAVE A HIGH MAN IN THE FBI, AND I THINK THEY JUST PERP-WALKED HIM OUT OF THE BUILDING A COUPLE WEEKS AGO, RIGHT, WHEN THEY FOUND IT. THEY WERE PAYING -- HE WAS IN CHARGE. THINK OF THIS. HE WAS IN CHARGE OF FOR MUELLER, FOR THE MUELLER GROUP -- 18 RADICAL LEFT DEMOCRAT HATERS, WHO SAID NO COLLUSION. THERE WAS NO COLLUSION AFTER TWO YEARS. BUT HE WAS IN CHARGE. HE WORKED FOR THE FBI. THEY WALKED HIM OUT OF THE BUILDING. THEY WALKED HIM OUT. THEY GOT RID OF HIM. BUT HOW WAS THAT FAIR TO ME? SO WHEN SOMEBODY SAYS LIKE, YOU’RE NOT VERY TRUSTING OF THE FBI -- THERE HAVE TO BE CHANGES MADE, SEAN. BECAUSE OUR COUNTRY IS SICK. OUR COUNTRY HAS SO MANY PROBLEMS RIGHT NOW. OUR COUNTRY IS SICK. WE REALLY HAVE A COUNTRY THAT’S GOING DOWNHILL. AND IT’S GOING DOWNHILL. YOU KNOW, I SAY, WHEN I GIVE RALLIES, I'LL SAY WE HAVE A FAILING COUNTRY. BUT I SAY WE HAVE A COUNTRY IN IN DECLINE.

>> Sean: I WATCHED YOUR RALLY IN OHIO, AND ALSO THE ONE IN PENNSYLVANIA, AND I WANT TO ASK YOU ABOUT THAT. THIS IS THE LAST QUESTION ON THIS TOPIC. AND I WAS IN COURT YESTERDAY. IT WAS ABOUT THE ISSUE OF WHETHER OR NOT YOU CAN DECLASSIFY. FIRST OF ALL, I DON'T KNOW, WHY DID YOU APPROVE A SPECIAL MASTER THAT SIGNED ONE OF THE FISA WARRANTS? THAT WAS SURPRISING.

>> President Trump: WELL, THE LAWYERS HAD A LOT -- I DIDN’T KNOW ANY OF THE PEOPLE INVOLVED. BUT YOU KNOW, IF YOU LOOK AT IT, HE WAS STUNG BADLY BY THAT, BECAUSE THE FBI LIED TO HIM, AND PEOPLE IN THE JUSTICE DEPARTMENT LIED TO HIM. SO IF YOU THINK ABOUT IT, YES, HE APPROVED IT, AND HE GOT STUNG VERY, VERY BADLY BY THAT. SO, YOU KNOW, WE WILL SEE.


Raymond Dearie's appointment as special master to review records the FBI seized from Mar-a-Lago was a positive development for former President Trump, whose lawyers recommended him. But their call for the low-profile New York judge was befuddling given Dearie has no apparent connection or loyalty to Trump.

Driving the news: Two sources with direct knowledge of the closely held deliberations now tell Axios what Trump's legal team was thinking:

• Lawyers and advisers to the former president believe Dearie's role on the secretive court that approved controversial warrants used to surveil former Trump campaign aide Carter Page in 2016 and 2017 made Dearie a deep skeptic of the FBI.

• The two sources were granted anonymity because they were describing sensitive discussions within the Trump team.

Details: Dearie's seven years on the Foreign Intelligence Surveillance Court, including during the Page case, is a matter of public record and has been reported. But it has not been previously reported that this experience drove the Trump team's thinking in requesting him....

Flashback: The Justice Department's investigation into Russian election interference in the 2016 presidential election and connections to the Trump campaign involved a flawed process.

• Dearie, 78, served for seven years on the FISC. He was one of the judges who signed off on FISA warrants to surveil Page.

• Two of the four approved warrants were later declared invalid after a DOJ Inspector General report found a series of misstatements and omissions in the FBI's applications to get the warrants.

• A former FBI lawyer, Kevin Clinesmith, pleaded guilty in 2020 to altering an email submitted as part of the surveillance application — a felony charge.


The FISA process typically is not adversarial in real time because people who do not know they are under surveillance cannot push back against FBI claims in court.

• Judges historically have appeared to give the FBI significant deference in these cases. But the Page saga showed how that trust could be misplaced.

• Trump's lawyers are betting that has made Dearie more skeptical of the FBI than an average judge — in a way that endures beyond the Page case.


-- Scoop: Team Trump sees special master as deep FBI skeptic, by Jonathan Swan and Sophia Cai, Axios, September 18, 2022


>> Sean: YOUR LAWYERS ARGUED YESTERDAY THAT THEY NEED TO SEE THE DOCUMENTS TO BE ABLE TO ANSWER WHETHER THEY WERE DECLASSIFIED OR NOT. AND THE SPECIAL MASTER IS SAYING, "WELL, YOU CAN’T HAVE YOUR CAKE AND EAT IT TOO." WHO IS RIGHT?

>> President Trump: WELL, I THINK THE LAWYERS, YOU KNOW, ARE SAYING SOMETHING. BUT I DECLASSIFIED THE DOCUMENTS WHEN THEY LEFT THE WHITE HOUSE. IN OTHER WORDS, WHEN THEY LEFT THE WHITE HOUSE, THEY WERE DECLASSIFIED.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Sep 24, 2022 12:57 am

Special Master Judge Dearie tells Trump's team to put up or shut up on claims of planted evidence
by Mark Sumner
Daily Kos Staff
2022/09/22 · 15:41

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In yet another sign of just how much everyone who is not Judge Aileen Cannon is fed up with Donald Trump’s lies about the documents that were removed from Mar-a-Lago, recently appointed special master, Judge Raymond Dearie, has ordered Trump’s legal team to be specific in its claims about “planted evidence.”

Dearie has given the Department of Justice until Monday to submit a complete list of everything they took during the search of Trump’s Florida storage rooms and office. When that list is in, Trump’s team then gets four days to tell Dearie:

• if any items are on the list that they think the FBI or DOJ has added; or
• if any items are not on the list because the FBI or DOJ left them out.

It’s a put-up or shut-up moment. Just as he did with Trump’s hedging around declassification, Dearie has little tolerance for these false claims and distractions.


“This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.”


When it comes to declassification, Trump has claimed to “declassify everything” outside of court, but when Dearie pressed Trump’s legal team, they refused to name a single document that was declassified. Trump may still be going on television to talk about his ability to magically think documents into a declassified status, but he’s going to have a very difficult time raising this in a court—his attorneys were given the opportunity to do just that, and they passed.

Similarly, Trump has also been hinting that some of the documents found at Mar-a-Lago may be been planted by the FBI, going back to comments he made on his failing social media platform the day following the FBI search. Trump and his representatives have repeated these claims several times in interviews and at rallies. During his Wednesday night interview with Fox pundit Sean Hannity, Trump was at it again, suggesting that the FBI could have “dropped something” into the piles of documents that were photographed at Mar-a-Lago, or that they might have “added something” later. But even on Hannity, Trump wasn’t willing to get more specific.
13:16 >> President Trump: THE PROBLEM THAT YOU HAVE IS THEY GO INTO ROOMS -- THEY WON'T LET ANYBODY NEAR THEM, THEY WOULDN'T EVEN LET THEM IN THE SAME BUILDING. DID THEY DROP ANYTHING INTO THOSE FILES? OR DID THEY DO IT LATER? THERE'S NO CHAIN OF CUSTODY HERE WITH THEM.

>> Sean: WOULDN'T THAT BE ON VIDEOTAPE POTENTIALLY?

>> President Trump: NO, I DON’T THINK SO. THEY ARE IN A ROOM.

-- Donald Trump speaks out on the FBI's raid on Mar-a-Lago: Fox News host Sean Hannity sits down with former President Trump in an exclusive interview to discuss the Mar-a-Lago raid and the two-tiered system of justice, by Sean Hannity, Fox News, Sep 21, 2022

Dearie isn’t about to let this claim by Trump derail or delay the special master process, saying it will run “concurrently” with the process of reviewing documents.

This order also sets a fairly swift series of dates for which the remaining steps in that process will happen. By Friday (i.e., tomorrow), both sides are to agree on an electronic hosting site for the documents. By Monday, all the documents are to be in place on that site, with unique numbers for every page. Trump’s team is to immediately begin reporting any pages that they feel are privileged, “on a rolling basis,” and these documents will be dealt with as they appear.

Trump’s team is to finish with this by Oct. 14, when it will submit “its final and complete log of designations,” and both sides are to finish their review of any disputed documents by Oct. 21. It’s not quite the Oct. 7 date Dearie wanted at the outset, but it’s also not the post-election Nov. 30 date set by Judge Cannon.

None of this means Trump will shut up about “planted documents.” After all, he absolutely has not shut up about “declassifying documents.” But it does mean he’ll have a very hard time if he ever tries to make such a claim in court.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Sep 24, 2022 5:45 am

Trump Claims He Declassified Documents. Why Don’t His Lawyers Say So in Court?: Judges this week highlighted the gap between Mr. Trump’s public claims that he declassified everything and his lawyers’ reluctance to repeat that claim in a courtroom.
by Glenn Thrush, Alan Feuer and Charlie Savage
New York Times
Sept. 22, 2022

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WASHINGTON — Former President Donald J. Trump claimed on Wednesday that when he was in the White House, his powers were so broad he could declassify virtually any document by simply “thinking about it.”

That argument — which came as he defended his decision to retain government documents in his Florida home in an interview with the Fox host Sean Hannity — underscored a widening gap between the former president and his lawyers. By contrast, they have so far been unwilling to repeat Mr. Trump’s declassification claim in court, as they counter a federal investigation into his handling of government documents.

Over the past week, a federal appeals court in Atlanta — along with Mr. Trump’s choice for a special master to review the documents seized last month — undermined a bulwark of his effort to justify his actions: Both suggested that there was no evidence to support the assertion that Mr. Trump had declassified everything — in writing, verbally or wordlessly — despite what the former president may have said on TV.

On Thursday, the special master, Judge Raymond J. Dearie, also appeared to take aim at another one of Mr. Trump’s excuses — that federal agents had planted some of the records when they searched his Mar-a-Lago estate. In an order issued after the appellate court had ruled, Judge Dearie instructed Mr. Trump’s lawyers to let him know if there were any discrepancies between the documents that were kept at Mar-a-Lago and those that the F.B.I. said it had hauled away.

By the time the Hannity interview aired late Wednesday, a three-judge appellate panel of the Court of Appeals for the 11th Circuit — which included two jurists appointed by Mr. Trump — had blocked part of a lower court order favorable to the former president. The panel brushed aside the suggestion that he had declassified 100 highly sensitive documents found in his residential and storage areas as both unfounded and irrelevant.

The court wrote that there was “no evidence that any of these records were declassified” and took note of the fact that, when Mr. Trump’s lawyers appeared before Judge Dearie this week, they too “resisted providing any evidence that he had declassified any of these documents.”

The appellate panel went on to declare that the declassification issue, which Mr. Trump has repeatedly thrust at the center of the case, was “a red herring” that would not have factored into its ruling even if it had been extensively argued before them. Even if Mr. Trump had, in fact declassified the records, the judges wrote, he was still bound by federal law, including the Presidential Records Act, that required him to return all government documents, classified or unclassified, when he left office.

Declassifying an official document would not alone “render it personal” or turn it into a possession he could hold onto after leaving office, the court said.

The judges in Atlanta were not alone in their opinion.

One day earlier, Judge Dearie expressed a similar form of skepticism. He pointedly told Mr. Trump’s legal team that since the classified documents were clearly marked classified, he intended to consider them as classified — unless they offered evidence to the contrary.

Wednesday’s ruling was a major victory for the Justice Department, which argued that the earlier decision by Judge Aileen M. Cannon, whom Mr. Trump appointed to the Federal District Court for the Southern District of Florida, had hamstrung its investigation and hampered the intelligence community’s ability to conduct a separate intelligence assessment.

On Thursday, Judge Cannon modified her order for the special master review to exclude documents marked as classified, in line with the appeals court decision.

Nonetheless, the order seemed to raise new questions. Judge Cannon did not issue a written opinion explaining why she had taken that step before Mr. Trump indicated whether he would appeal to the Supreme Court. By pre-emptively removing the portions of the order that the appeals court had blocked, she may have rendered any further litigation over the matter moot. Mr. Trump’s lawyers did not respond to requests for comment.


Laurence Tribe@tribelaw · Sep 22
She might have wanted to avoid the humiliation of having the Supreme Court decline an effort by Trump’s lawyers to get the Court to overturn the 11th circuit.
Ryan Goodman@rgoodlaw · Sep 22
Good point in NYT:
Judge Cannon revised order “by pre-emptively removing the portions of the order that the appeals court had blocked, she may have rendered any further litigation over the matter moot”—i.e. erased Trump’s chance to appeal to Supreme Court
https://nytimes.com/2022/09/22/us/polit ... ation.html

Charles Carreon@legalnewsbeat
Replying to @tribelaw
Judge Cannon could concede she misapplied Richey & dismiss the case.

That would save Trump the embarrassment of dismissing, which he should, to preserve his 5th Amendment right against self-incrimination that Judge Dearie has imperiled by his order demanding sworn disclosures.

4:56 PM · Sep 23, 2022

Shortly after Judge Cannon’s order was issued, Judge Dearie released his own scheduling order for the review that will now be focused only on the roughly 11,000 documents that are not marked as classified.

Under his plan, the two sides would identify any disputes over whether the records are government or personal property, or privileged or unprivileged, by Oct. 21.

After Judge Cannon rules on the disputed files, Judge Dearie said, he will entertain a motion, should Mr. Trump wish to file one, to get back the seized items. Judge Dearie also said he would not seek any compensation since he is still actively hearing cases, but would hire a retired magistrate judge from the Eastern District of New York, James Orenstein, to assist him at a rate of $500 per hour.

Mr. Trump will still have to foot the bill, as specified in a previous ruling by Judge Cannon.

It remains possible that Mr. Trump’s lawyers will appeal the matter to the Supreme Court, hoping to get the court’s conservative majority to frame a broad new definition of presidential authority that the government says is at variance with judicial precedent and norms. But the lawyers might also pursue a narrower strategy, seeking to delay the inquiry in hopes of shielding Mr. Trump from legal liability, rather than trying to leave a more durable constitutional imprint.

During the hearing before Judge Dearie, Mr. Trump’s lawyers provided a glimpse of what the declassification gambit may actually be about. It appears to be a strategy that the former president’s legal team is holding in reserve should he ultimately challenge the legality of the Mar-a-Lago search in a suppression motion or file court papers — known as a Rule 41 motion — to get some of the seized materials back from the Justice Department.

James Trusty, one of Mr. Trump’s lawyers, gave a hint about what he and his partners have been planning, telling Judge Dearie that they might offer evidence at some point that Mr. Trump declassified the documents. But to do so, Mr. Trusty said, the legal team needed to see the classified material first.

While Judge Dearie welcomed the idea that Mr. Trump’s lawyers might one day prove their claims, he seemed less pleased to hear them making arguments but not providing evidence.

“I guess my view of it is,” he said, “you can’t have your cake and eat it.”

The idea of a magic-wand process by which a president can both exercise power and absolve himself of legal liability holds deep appeal to Mr. Trump, according to people close to him. And while many legal experts have dismissed such a broad definition of presidential power, several of the former president’s key allies — including the former White House aide Kash Patel; the journalist John Solomon; and Tom Fitton, who runs Judicial Watch, a conservative legal group — have urged him to adopt that defense.

Mr. Trump’s legal team has merely hinted at the possibility that he declassified the documents, without taking a firm position in court, where making a false statement can have professional consequences.

In a letter to the Justice Department in May, Mr. Trump’s legal team first put forward a coy insinuation that Mr. Trump might have declassified everything — while stopping short of actually saying he did so. At the time, Mr. Trump had just received a grand jury subpoena for any sensitive records that remained at Mar-a-Lago, and the letter argued that Mr. Trump could not be charged under a law that criminalizes mishandling classified information.

Even then, there were indications that the classification debate, while foremost in the former president’s mind, was of limited use for his lawyers.

No credible evidence has emerged to support Mr. Trump’s claims, but even if they turned out to be true, legal experts say that would not get him out of legal trouble.

When the Justice Department later obtained a search warrant for Mar-a-Lago, it listed as the basis of the investigation three other laws for which prosecutors do not need to prove that a document was classified as an element of the offense. They include the Espionage Act and obstruction.


Mr. Trump has continued to insist in public that he had declassified everything the government seized from his residence.

Yet if the former president is serious about using that claim as the cornerstone of his defense, he will ultimately have to take the risk of backing up those assertions in court — under oath.

Mr. Trump’s lawyers could also submit sworn declarations, though it is unclear if they would be willing to do so; federal investigators are currently examining whether members of his legal team falsely attested that they had returned sensitive materials to the government before the search warrant uncovered dozens of documents.
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