Trump lashes out at Gov. Doug Ducey following certification

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

Appeals court reverses Judge Cannon's ruling, FBI investigation of Trump/classified docs can resume
by Glenn Kirschner
Sep 22, 2022

The 11th Circuit Court of Appeals just reversed Judge Aileen Cannon's order directing the FBI to stop investigating the crimes surrounding the classified documents Donald Trump stole from the White House and unlawfully concealed at Mar-a-Lago.

Notably, the three-judge appellate panel consisted of two federal judges who had been appointed by Trump. This video reviews some of the blunt, direct findings of the appellate court in reversing the thoroughly unsupportable ruling of Judge Cannon.

This video also takes on the recent interview of Trump by Sean Hannity in which Trump asserted that he could just magically think that classified documents are declassified and it would be so. The appellate court opinion had something to say about whether there was ANY evidence that Trump had declassified any of the documents that were seized from Mar-a-Lago.

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.


Highlights:

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, by Glenn Greenwald
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

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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

Postby admin » Mon Oct 03, 2022 5:10 am

Motion to Extradite Appeal
Donald J. Trump v. United States of America, No. 22-13005
by Juan Antonio Gonzalez, United States Attorney
September 30, 2022

Donald J. Trump v. United States of America, 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

MOTION TO EXPEDITE APPEAL

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001

MATTHEW G. OLSEN
Assistant Attorney General

JAY I. BRATT
Chief, Counterintelligence and Export Control Section

JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1 and 27-1(a)(9), the undersigned hereby certifies that the following have an interest in the outcome of this case:

American Broadcasting Companies, Inc. (DIS)
Associated Press
Bloomberg, LP
Bratt, Jay I.
Brill, Sophia
Cable News Network, Inc. (WBD)
Cannon, Hon. Aileen M.
Caramanica, Mark Richard
CBS Broadcasting, Inc (CBS)
Corcoran, M. Evan
Cornish, Sr., O'Rane M.
Dearie, Hon. Raymond J.
Dow Jones & Company, Inc. (DJI)
Edelstein, Julie
Eisen, Norman Larry
E.W. Scripps Company (SSP)
Finzi, Roberto
Fischman, Harris
Former Federal and State Government Officials
Fugate, Rachel Elise
Gonzalez, Juan Antonio
Gray Media Group, Inc. (GIN)
Gupta, Angela D.
Halligan, Lindsey
Inman, Joseph M.
Karp, Brad S.
Kessler, David K.
Kise, Christopher M.
Knopf, Andrew Franklin
Lacosta, Anthony W.
LoCicero, Carol Jean
McElroy, Dana Jane
Minchin, Eugene Branch
NBC Universal Media, LLC (CMCSA)
Patel, Raj K.
Rakita, Philip
Reeder, Jr., L. Martin
Reinhart, Hon. Bruce E.
Rosenberg, Robert
Seidlin-Bernstein, Elizabeth
Shapiro, Jay B.
Shullman, Deanna Kendall
Smith, Jeffrey
The New York Times Company (NYT)
The Palm Beach Post
Times Publishing Company
Tobin, Charles David
Trump, Donald J.
Trusty, James M.
United States of America
Wertheimer, Fred
WP Company, LLC
Dated: September 30, 2022
Is/ Sophia Brill
Sophia Brill

UNITED STATES' MOTION TO EXPEDITE APPEAL

The United States respectfully requests that this Court expedite this appeal and suggests the following briefing schedule, with no extensions permitted: October 14, 2022: Opening Brief for Defendant-Appellant United States November 4, 2022: Response Brief for Plaintiff-Appellee Donald J. Trump November 11, 2022: Reply Brief for Defendant-Appellant United States. The United States also asks this Court to set this matter for oral argument at its earliest convenience, whether that be on the first available calendar after the end of the expedited briefing schedule or through a special sitting. Plaintiff-Appellee Donald J. Trump (''Plaintiff') opposes the relief sought in this motion.

Under 11th Circuit Rule 27, I.O.P. 27, there is good cause to expedite this appeal. To begin, the two key questions presented here are legal in nature; this appeal does not require review of an extensive factual record. Further, the parties have already briefed the disputed legal issues thoroughly in the district court and, to a significant degree, in the recent stay litigation before this Court. See Trump v. United States, 2022 WL 4366684 (11th Cir. Sept. 21, 2022) (per curiam). Those proceedings have occurred on compressed timeframes without hindering the parties' ability to present their positions. Expediting this appeal will also serve judicial efficiency because a ruling in the government's favor may render further proceedings before the special master and the district court unnecessary. Finally, expediting the appeal would serve the interests of justice because the portions of the district court's injunction that have not been stayed restrict the government's ability to vindicate the strong public interest in proceeding expeditiously with the criminal and national security investigation that underlies these proceedings.

In support of the motion, the government states:

1. On August 8, 2022, the government executed a lawfully issued search warrant seeking records that may have been unlawfully retained at a residence belonging to Plaintiff -- the former President of the United States -- after his tenure in office, including government records bearing classification markings. On August 22, Plaintiff filed a "Motion for Judicial Oversight and Additional Relief" asking the district court to appoint a special master to consider potential claims of executive and attorney-client privilege, and to enjoin the government from using the seized documents to advance its criminal investigation in the meantime. Dist. Ct. Docket Entry ("D.E.") 1. Between August 22 and August 31---a span of nine days-the parties fully briefed the dispute, following an accelerated briefing schedule set by the district court. See D.E. 28, 29, 48, 58.

2. On September 1, the district court heard argument on the motion. On September 5, the court granted Plaintiffs motion in part. D.E. 64. The court ordered the appointment of a special master to review all of the seized property and to recommend how to rule on Plaintiffs privilege assertions. Id. at 1, 23. The court also enjoined the government from reviewing or using the seized materials for criminal investigative purposes pending the special master proceedings, although it allowed the government to "continue to review and use the materials seized for purposes of intelligence classification and national security assessments." Id at 23-24.

3. The government filed a notice of appeal three days later, on September 8. D.E. 68. On the same day, the government moved in the district court for a partial stay of the court's ruling pursuant to Federal Rule of Appellate Procedure 8(a)(1), as applied to the subset of approximately 100 seized records that bear classification markings. D.E. 69. The government argued that it was likely to succeed on the merits both as to the court's lack of jurisdiction and as to Plaintiff's inability to make any plausible assertion of privilege as to those records bearing classification markings. The government further argued that the district court's injunction caused irreparable harm because it constrained the government's ability to assess and mitigate the national security risks arising from the improper storage of classified records and because the injunction hindered the government's ability to conduct its criminal investigation. Plaintiff filed a response on September 12, D.E. 84, and the government filed a reply on September 13, D.E. 88. The district court denied the partial stay request on September 15. D.E. 89.

4. The next day, on September 16, the government sought a stay of the district court's injunction from this Court under Federal Rule of Appellate Procedure 8(a)(2), to the extent the injunction related to records bearing classification markings. Once again, the parties presented full briefing based on accelerated deadlines directed by the Court: Plaintiff filed his response on September 20, and the government's reply followed that same day.

5. The following day, on September 21, this Court granted the government's motion, staying the district court's order as to documents bearing classification markings
. Trump, 2022 WL 4366684. The three-judge panel unanimously found that the government had a substantial likelihood of success on the merits because the district court lacked jurisdiction under binding Circuit precedent. Id. at *7 (citing Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975)). Specifically, in the "absence" of any showing that "the United States acted in callous disregard of [Plaintiff's] constitutional rights" -- a factor that is "indispensable" under Richey -- the panel concluded that "the district court abused its discretion in exercising equitable jurisdiction." Id. The panel also found that the district court's injunction caused the government irreparable harm by constraining its ability to protect national security and to conduct its criminal investigation. See id. at *10-12.

6. On September 26, this Court set a briefing schedule for the parties, which provides that the United States shall file its initial brief by October 19, followed by Plaintiff's brief 30 days later, November 18. The government then has 21 days to file its reply. Barring any request from Plaintiff for an extension of time, briefing would be complete by December 9. However, if Plaintiff were to request and receive any extensions of time, briefing could well stretch into 2023 (even if the government files its briefs before its allotted deadlines).

7. During the pendency of this appeal, the district court appointed the Hon. Raymond J. Dearie as special master. D.E. 91. The district court's order appointing Judge Dearie directed him to "proceed with all reasonable diligence and to conclude his review and classifications by November 30, 2022, subject to modification if necessary as proposed by the Special Master." D.E. 91 at 5. Judge Dearie then issued a case management plan requiring the parties to submit documents for his review on a rolling basis. D.E. 112. However, that process has already encountered delay due to difficulties engaging a vendor to facilitate the document review process. See D.E. 121 (request by the government to contract directly with a vendor in light of issues encountered by Plaintiff). On September 29, subsequent to the parties' submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master's review process to December 16 and making other modifications to the special master's case management plan, including overruling the special master's direction to Plaintiff to submit his designations on a rolling basis. D.E. 125.

8. There is good cause to expedite this appeal for several reasons. First, this appeal does not require the parties or the Court to analyze an extensive factual record. Instead, this appeal presents two questions of law: (1) whether the district court erred by exercising equitable jurisdiction over Plaintiff's motion; and (2) whether the district court erred by granting a preliminary injunction barring the government from reviewing or using evidence seized pursuant to a search warrant in an ongoing criminal investigation, pending a months-long special master process to consider, inter alia, Plaintiff's executive privilege claims. Indeed, when the United States moved this Court to partially stay the district court's order, a three-judge panel was able to review and to comprehensively summarize the factual and procedural history of this matter within six days of the stay motion being filed. See Trump, 2022 WL 4366684.

9. Second, the parties have already briefed these legal disputes thoroughly, including analyzing the most pertinent authorities, when litigating Plaintiffs motion in district court. Additionally, although the government's partial stay motions pertained specifically to seized records bearing classification markings, the government's arguments regarding jurisdiction and the legal viability of any privilege assertions overlap substantially with its arguments pertaining to all seized records. The parties briefed these issues on compressed schedules directed first by the district court and then by this Court. Given that the appeal will concern the same issues and, for the most part, the same case law and statutory authorities, there is little reason to give the parties nearly three or more months to brief their well-established positions.

10. Third, expediting this appeal will serve the interests of judicial economy. The motions panel concluded that Plaintiffs uncontested failure to make a showing as to the first factor set forth in Richey "is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here." Trump, 2022 WL 4366684, at *7. Although the panel's determination related specifically to the documents bearing classification markings, its reasoning arguably applies more broadly. [size=120]If this Court agrees that the district court lacked jurisdiction, further proceedings before the special master and district court would end. Alternatively, if this Court upholds the district court's exercise of jurisdiction but concludes that Plaintiff cannot assert executive privilege against the Executive Branch in these circumstances, as the government maintains, such a ruling would substantially narrow the special master proceedings. Absent such resolution by this Court, the special master proceedings could result in prolonged litigation, including through seriatim appeals to the district court from reports and recommendations and other rulings issued by the special master.
See D.E. 91 at 6 (parties may contest any "scheduling plans, orders, reports, or recommendations" issued by the special master).[/size]


11. Finally, an expedited appeal would serve the interests of justice. Based on the district court's orders thus far, the government is barred from accessing all of the materials except those with classification markings recovered in August pursuant to a lawful search warrant -- and it may continue to be barred from doing so until mid-December or later. To be sure, the government sought a partial stay of the district court's September 5 order only as it pertained to records bearing classification markings because those aspects of the order caused the most serious and immediate harm to the government and the public. And the motions panel agreed that the injunction against the government's review and use of those records for criminal investigative purposes "risks imposing real and significant harm on the United States and the public." Trump, 2022 WL 4366684, at *11. Even if not to the same degree, such harms persist with respect to the district court's injunction against the government's review and use of thousands of remaining documents and other materials that were recovered pursuant to a court-authorized search and may constitute evidence of crimes. The government is thus unable to examine records that were commingled with materials bearing classification markings, including records that may shed light on, for example, how the materials beating classification markings were transferred to Plaintiff's residence, how they were stored, and who may have accessed them. The records not marked as classified may also constitute evidence of potential violations of 18 U.S.C. § 1519 (obstruction) and 18 U.S.C. § 2071 (concealment or removal of government records). In short, an expedited schedule for briefing and argument may enable the government, if it is successful in this appeal, to more quickly resume its full investigation without restraints on its review and use of evidence seized pursuant to a lawful search warrant.

12. The government therefore proposes the following briefing schedule and asks the Court to specify that no extensions shall be granted to either party: October 14, 2022: Opening Brief for Defendant-Appellant United States November 4, 2022: Response Brief for Plaintiff-Appellee Donald J. Trump November 11, 2022: Reply Brief for Defendant-Appellant United States.

13. This schedule would afford the government 14 days from the present (or 18 days from the date of the Court's scheduling order) to submit its opening brief and would afford Plaintiff 21 days to submit his response. It would truncate the government's time to submit its reply from 21 days to 7.

14. For similar reasons, the government respectfully requests that the Court hear argument on this appeal at its earliest convenience, whether that be on the first available calendar after the end of the expedited briefing schedule or through a special sitting.

15. Counsel for the United States has conferred with Plaintiffs counsel, Christopher M. Kise, who states that Plaintiff opposes the relief requested in this motion.

In sum, the United States respectfully requests that the Court expedite this appeal for the good cause shown in this Motion.

JUAN ANTONIO GONZALEZ
United States Attorney
99 NE. 4th Street, 8th Floor
Miami, FL 33132
(305) 961-9001

September 30, 2022

Respectfully submitted,

MATTHEW G. OLSEN
Assistant Attorney General

JAY I. BRATT
Chief, Counterintelligence and Export Control Section

JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986
Counsel for Appellant

CERTIFICATE OF COMPLIANCE

This motion complies with the word limit of Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 2,132 words. 1bis motion complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E) and 32(a)(S)-(6) because it was prepared in a proportionally-based typeface using Microsoft Word 2016, 14-point Garamond.

Sophia Brill

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 30, 2022, I electronically filed the foregoing motion with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.

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

Postby admin » Thu Oct 06, 2022 8:03 am

Motion for Partial Stay Pending Appeal
Donald J. Trump, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.
No. 22-13005-F
by U.S. Department of Justice
September 16, 2022

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

MOTION FOR PARTIAL STAY PENDING APPEAL

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001
MATTHEW G. OLSEN
Assistant Attorney General
JAY I. BRATT
Chief, Counterintelligence and Export
Control Section
JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1, counsel for Defendants-Appellants certify that the following have an interest in the outcome of this appeal:

American Broadcasting Companies, Inc. (DIS)
Associated Press
Bloomberg, LP
Bratt, Jay I.
Brill, Sophia
Cable News Network, Inc. (WBD)
Cannon, Hon. Aileen M.
Caramanica, Mark Richard
CBS Broadcasting, Inc. (CBS)
Corcoran, M. Evan
Cornish, Sr., O’Rane M.
Cunningham, Clark
Dearie, Hon. Raymond J.
Dow Jones & Company, Inc. (DJI)
Edelstein, Julie
Eisen, Norman Larry
E.W. Scripps Company (SSP)
Finzi, Roberto
Fischman, Harris
Former Federal and State Government Officials
Fugate, Rachel Elise
Gonzalez, Juan Antonio
Gray Media Group, Inc. (GTN)
Gupta, Angela D.
Halligan, Lindsey
Inman, Joseph M.
Karp, Brad S.
Kessler, David K.
Kise, Christopher M Knopf, Andrew Franklin
Lacosta, Anthony W.
LoCicero, Carol Jean
McElroy, Dana Jane
Minchin, Eugene Branch
NBC Universal Media, LLC (CMCSA)
Patel, Raj K.
Rakita, Philip
Reeder, Jr., L. Martin
Reinhart, Hon. Bruce E.
Rosenberg, Robert
Seidlin-Bernstein, Elizabeth
Shapiro, Jay B.
Shullman, Deanna Kendall
Smith, Jeffrey
The New York Times Company (NYT)
The Palm Beach Post
Times Publishing Company
Tobin, Charles David
Trump, Donald J.
Trusty, James M.
United States of America
Wertheimer, Fred
WP Company. LLC.

Dated: September 16, 2022 /s/ Juan Antonio Gonzalez

Juan Antonio Gonzalez
United States Attorney

INTRODUCTION AND SUMMARY

The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security. In August 2022, the government obtained a warrant to search the residence of Plaintiff, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes including unlawful retention of national defense information. Along with other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution. Two weeks later, Plaintiff filed an action seeking the appointment of a special master to review the seized materials and an injunction barring the government from continuing to use them in the meantime. The court granted that extraordinary relief, enjoining further review or use of any seized materials “for criminal investigative purposes” pending a special-master process that will last months. A36-A37.1

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.

First, the government is likely to succeed on the merits. The district court appointed a special master to consider claims for return of property under Federal Rule of Criminal Procedure 41(g) and assertions of attorney-client or executive privilege. All of those rationales are categorically inapplicable to the records bearing classification markings. Plaintiff has no claim for the return of those records, which belong to the government and were seized in a court-authorized search. The records are not subject to any possible claim of personal attorney-client privilege. And neither Plaintiff nor the court has cited any authority suggesting that a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records. Any possible assertion of executive privilege over these records would be especially untenable and would be overcome by the government’s “demonstrated, specific need” for them, United States v. Nixon, 418 U.S. 683, 713 (1974), because they are central to its ongoing investigation.

Second, the government and the public would suffer irreparable harm absent a stay. The district court recognized the government’s overriding interest in assessing and responding to the national-security risk from the possible unauthorized disclosure of the records bearing classification markings. The court thus stated that its order was not intended to “impede” an ongoing “classification review and/or intelligence assessment” of those records by the Intelligence Community (IC). A14-A15. But as the head of the Counterintelligence Division of the Federal Bureau of Investigation (FBI) explained in a sworn declaration, the criminal investigation is itself essential to the government’s effort to identify and mitigate potential national-security risks. A38-A43. The court’s order hamstrings that investigation and places the FBI and Department of Justice (DOJ) under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities. It also irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to Plaintiff’s counsel.

Third, the limited stay sought here would impose no cognizable harm on Plaintiff. It would not disturb the special master’s review of other materials, including records potentially subject to attorney-client privilege. Nor would a stay infringe any interest in confidentiality: The government’s criminal investigators have already reviewed the records bearing classification markings, and the district court’s order contemplates that the IC may continue to review and use them for certain national-security purposes.

Finally, because the government and the public will suffer irreparable injury absent a stay, the United States respectfully asks that the Court act on this motion as soon as practicable.

STATEMENT

A. Background


1. In the year after Plaintiff left office, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act (PRA). A44. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, which the law defines to include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, id. § 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” Id. § 2203(g)(1).

Plaintiff ultimately provided NARA with 15 boxes of records in January 2022. A44. NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Id. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order 13,526 § 1.2(1) (Dec. 29, 2009).

NARA referred the matter to DOJ, noting that highly classified records appeared to have been improperly transported and stored. A63-A64. DOJ then sought access to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. A44-A45; see 44 U.S.C. § 2205(2)(B). Plaintiff, after receiving notification of DOJ’s request, neither attempted to pursue any claim of executive privilege in court, see 44 U.S.C. § 2204(e), nor suggested that any documents bearing classification markings had been declassified. See A45.

2. The FBI developed evidence that additional boxes remaining at Plaintiff’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information. On May 11, 2022, Plaintiff’s counsel was served with a grand jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” A48.

In response, Plaintiff’s counsel and his custodian of records produced an envelope containing 38 documents bearing classification markings. A76-A77. Plaintiff’s counsel represented that the records came from a storage room at Mar-a-Lago, where all records removed from the White House had been placed, and that no such records were in any other location. A76-A77. Plaintiff’s custodian also certified, “on behalf of the Office of Donald J. Trump,” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” A50. Again, Plaintiff did not assert any claim of privilege, and did not suggest that any documents bearing classification markings had been declassified.

3. The FBI uncovered evidence that the response to the grand-jury subpoena was incomplete, that classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation. On August 5, 2022, the government applied to a magistrate judge for a search warrant, citing 18 U.S.C. § 793 (willful retention of national defense information), 18 U.S.C. § 2071 (concealment or removal of government records), and 18 U.S.C. § 1519 (obstruction). A54. The magistrate judge found probable cause that evidence of those crimes would be found at Mar-a-Lago and authorized the government to seize, among other things, “[a]ny physical documents with classification markings, along with any containers/boxes ... in which such documents are located.” A96, A98. The magistrate judge also approved the government’s proposed filter protocols for handling any materials potentially subject to personal attorney-client privilege. A87-A88.

The government executed the warrant on August 8, 2022. The search recovered roughly 11,000 documents from the storage room as well as Plaintiff’s private office, roughly 100 of which bore classification markings, including markings indicating the highest levels of classification. A17 & n.4; see A51 (photograph); A115-A121 (inventory). In some instances, even FBI counterintelligence personnel required additional clearances to review the seized documents. Dist. Ct. Docket Entry (D.E.) 48 at 12-13.

B. Proceedings below

1. Two weeks later, Plaintiff filed a “Motion for Judicial Oversight and Additional Relief” asking the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege, to enjoin DOJ from further review and use of the seized documents, and to order the government to return certain property under Rule 41(g). The district court granted Plaintiff’s motion in part, authorizing appointment of a special master to “review the seized property,” make recommendations on “assertions of privilege,” and “evaluate claims for return of property.” A36. Pending the special-master review, the court enjoined the government from “further review and use” of all seized materials “for criminal investigative purposes.” Id. The court stated that the government “may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” A37.

The district court acknowledged that the exercise of equitable jurisdiction to restrain a criminal investigation is “reserved for ‘exceptional’ circumstances.” A21 (quoting Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974)). The court also concluded that Plaintiff had not shown that the court-authorized search violated his constitutional rights. A22. But the court concluded that the other considerations set forth in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), favored the exercise of jurisdiction, principally because the seized materials included some “personal documents.” Id.; see A22-A25. The court similarly found that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property,” namely, his personal effects and records potentially subject to personal attorney-client privilege. A26. The district court then held that “review of the seized property” was necessary to adjudicate Plaintiff’s claims for return of property and potential assertions of privilege. A27-A32. As to attorney-client privilege, the court concluded that further review would ensure that the attorney-client filter process approved in the warrant had not overlooked privileged material. A28-A29. The court did not resolve the government’s arguments that a former President cannot assert executive privilege to prevent the Executive Branch from reviewing its own records and that any assertion of privilege here would in any event be overcome. A29-A30. Instead, the court stated only that “even if any assertion of executive privilege by Plaintiff ultimately fails,” he should be allowed “to raise the privilege as an initial matter.” A30-A31.

2. The government appealed and sought a partial stay of the order as it applied to records bearing classification markings. D.E. 69. The court denied the motion. A4-A13. The court declined to address the government’s argument that those records are not subject to any plausible claim for return or assertion of privilege, instead referring generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” A7. The court reiterated that its order does not bar the IC’s review and assessment of the records bearing classification markings and suggested that even criminal investigative steps are permitted if they are “truly ... inextricable” from the IC’s activities. A11-A12. But the court gave little further guidance on distinguishing between permitted and prohibited investigative steps.

Finally, the district court confirmed that as part of its special-master review, the government must allow Plaintiff’s counsel to inspect the records bearing classification markings. D.E. 91 at 4. The court directed the master to prioritize review of those records, and directed him to submit all recommendations by November 30, 2022, subject to extensions. Id. at 5.

ARGUMENT

In determining whether to grant a stay pending appeal, this Court considers (1) the likelihood of success on appeal; (2) whether the movant will suffer irreparable injury; (3) the balance of hardships; and (4) the public interest, which merges with harm to the government. Nken v. Holder, 556 U.S. 418, 434-435 (2009); Hand v. Scott, 888 F.3d 1206, 1207 (11th Cir. 2018). “Ordinarily the first factor is the most important.” Garcia- Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). Here, all factors strongly support a partial stay.

I. The government is likely to succeed on the merits as to the records bearing classification markings.

The district court erred in exercising jurisdiction as to the records bearing classification markings. Even if the exercise of jurisdiction were proper, there would be no basis for preventing the government from using its own records. And the court’s suggestion that there are “factual and legal disputes” about the records bearing classification markings, A7, is incorrect and not relevant in any event.

A. The district court erred by exercising jurisdiction as to records bearing classification markings.

1. “In order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.” United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005). The district court held that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property.” A26. But “plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). Plaintiff lacks standing at least as to the discrete set of records with classification markings because those records are government property, over which the Executive Branch has exclusive control and in which Plaintiff has no property interest. See 44 U.S.C. § 2202; Exec. Order 13,526, § 1.1(2); see also Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).

2. Likewise, the district court’s exercise of equitable jurisdiction regarding an ongoing criminal investigation—which is reserved for “exceptional” circumstances, Hunsucker, 497 F.2d at 32—cannot extend to these records. Under Richey, four factors guide the exercise of that jurisdiction: (1) whether the government has “displayed ‘a callous disregard for the constitutional rights’” of the search’s subject; (2) “whether the plaintiff has an individual interest in and need for the material”; (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.” 515 F.2d at 1243-44 (citation omitted). None of those factors favors exercising jurisdiction as to the records with classification markings.

On the “[f]irst, and perhaps foremost” factor, id. at 1243, the district court correctly found that Plaintiff has not shown any violation of his rights. A22. The remaining factors apply only to “material whose return [plaintiff] seeks” and to injury resulting from “denial of the return of the property.” Richey, 515 F.2d at 1243. Plaintiff has no right to the “return” of records with classification markings, which are not his property. Id. The district court reasoned that other materials in which Plaintiff might have a cognizable interest cannot readily be separated from those in which he does not. A22. But that rationale is inapplicable to records with classification markings, which are easily identifiable and already segregated from the other seized materials. D.E. 48 at 13.

3. Plaintiff has observed that the PRA generally provides that presidential records from his tenure shall be “available” to him. 44 U.S.C. § 2205(3). But a right to access records in NARA’s custody does not support any claim for the return of records owned by the government. Id. § 2202. And Plaintiff is in any event poorly positioned to invoke the PRA in seeking extraordinary equitable relief because he failed to comply with his PRA obligation to deposit the records at issue with NARA in the first place.

B. The records bearing classification markings are not subject to any plausible claim of privilege that would prevent the government from reviewing and using them.

The district court restrained the government’s review and use of seized materials to allow the special master to consider claims for return of personal property and assertions of attorney-client or executive privilege. None of those rationales applies to the records bearing classification markings: The markings establish on the face of the documents that they are not Plaintiff’s personal property, and neither Plaintiff nor the court has suggested that they might be subject to attorney-client privilege. Plaintiff has never even attempted to make or substantiate any assertion of executive privilege. Even if he did, no such assertion could justify restricting the Executive Branch’s review and use of these records for multiple independent reasons.

1. Executive privilege exists “not for the benefit of the President as an individual, but for the benefit of the Republic.” Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (GSA). Consistent with the privilege’s function of protecting the confidentiality of Executive Branch communications, it may be invoked to prevent the sharing of materials outside the Executive Branch. Cf. Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (per curiam). But neither Plaintiff nor the district court cited any case in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch itself.

To the contrary, in what appears to be the only case in which such an assertion was made, the Supreme Court rejected former President Nixon’s claim that a statute requiring the GSA to review documents and recordings created during his presidency violated executive privilege.
GSA, 433 U.S. at 446-55. The Court emphasized that the former President was attempting to assert “a privilege against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. And the Court “readily” rejected that assertion because the review at issue was “a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns.” Id. at 451.

This case similarly involves potential assertions of executive privilege by a former President against “the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. Here, too, review and use of the records in a criminal investigation is a “limited intrusion by personnel in the Executive Branch sensitive to executive concerns.” Id. at 451. And an executive privilege claim would be especially implausible as to records like those at issue here because the Constitution vests the incumbent President, as “head of the Executive Branch and as Commander in Chief,” with the authority “to classify and control access to information bearing on national security.” Egan, 484 U.S. at 527. Accordingly, even if an assertion of privilege might justify withholding the records at issue from Congress or the public, there would be no basis for withholding them from the Executive Branch itself.

2. Even if a former President could assert executive privilege against the Executive Branch’s review and use of its own documents, any such assertion would inevitably fail as to the records bearing classification markings. Executive privilege is qualified, not absolute. In United States v. Nixon, the Supreme Court emphasized that privilege claims “must be considered in light of our historic commitment to the rule of law.” 418 U.S. at 708. The Court thus held that executive privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id. at 713; see also In re Sealed Case, 121 F.3d 729, 754-56 (D.C. Cir. 1997) (applying United States v. Nixon in the context of a grand-jury subpoena). This case does not involve a pending trial, but the need for the records bearing classification markings is even more clearly “demonstrated” and “specific”: The government is investigating potential violations of 18 U.S.C. § 793(e), which prohibits unauthorized retention of national defense information. The records here are not merely relevant evidence; they are the very objects of the offense. Similarly, the government’s investigation of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of justice, requires assessing the adequacy of the response to a grand-jury subpoena for all documents in Plaintiff’s possession “bearing classification markings.” A48. Again, the records at issue are central to that investigation.

Even more clearly than in United States v. Nixon, there is no risk that the government’s review of the seized records would chill communications by future presidential advisors. See 418 U.S. at 712 (presidential advisors would not “be moved to temper the candor of their remarks by the infrequent occasions of disclosure” for a “criminal prosecution”). Just the opposite: The government seeks to ensure compliance with laws protecting the confidentiality and proper treatment of sensitive government records—a process that should enhance, rather than undermine, the candor of future presidential communications.

3. Finally, Plaintiff declined to assert executive privilege when his custodian was served with a grand-jury subpoena seeking “[a]ny and all documents or writings” in his custody “bearing classification markings.” A48. Instead, Plaintiff’s counsel produced a set of classified records to the government, and Plaintiff’s custodian certified that “[a]ny and all responsive documents” had been produced after a “diligent search.” A50. Now that the government has discovered more than 100 additional responsive records, Plaintiff cannot claim that those records are shielded from review by a privilege that he failed to assert at the appropriate time.

C. No factual or legal disputes justify the district court’s order as to the records bearing classification markings.

The district court did not identify any basis on which Plaintiff might successfully assert executive privilege—or any other legal ground—to prevent the government from reviewing the records bearing classification markings. Instead, it stated that the specialmaster process is needed to resolve “disputes as to the proper designation of the seized materials.” A7-A8. That is doubly mistaken.

1. Plaintiff has never disputed that the government’s search recovered records bearing classification markings. See A115-A121. Instead, the district court cited portions of Plaintiff’s filings in which he suggested that he could have declassified those documents or purported to designate them as “personal” records under the PRA before leaving office. A7-A8. But despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps—much less supported such a representation with competent evidence. The court erred in granting extraordinary relief based on unsubstantiated possibilities.

2. In any event, even if Plaintiff had asserted in court that he declassified the records, the government would still need to review the records to assess that claim, and they would still have been responsive to the grand-jury subpoena for all records “bearing classification markings.” A48. Any assertion of executive privilege would thus plainly be overcome under United States v. Nixon because the government would still need to assess the records in investigating possible violations of Sections 793(e) and 1519. And if the records had actually been declassified, the government would have an additional compelling need to understand what had been declassified and why (and who has seen it) to protect intelligence sources and methods.

Similarly, Plaintiff only weakens his case by suggesting that he might have purported to categorize these records as “personal” records under the PRA. Such a categorization would be flatly inconsistent with the statute, which defines “personal records” as those “of a purely private or nonpublic character which do not relate to” the President’s official duties.
44 U.S.C. § 2201(3). And if Plaintiff truly means to assert—implausibly—that records containing sensitive national-security information fit that description, he cannot maintain that the same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of” his official “duties.” United States v. Nixon, 418 U.S. at 705.

II. Absent a partial stay, the government and the public will be irreparably harmed.

The district court’s order irreparably harms the government and the public by (A) interfering with the government’s response to the national-security risks arising from the mishandling and possible disclosure of records bearing classification markings; (B) impairing a criminal investigation into these critical national-security matters; and (C) forcing the government to disclose highly sensitive materials as part of the specialmaster review.

A. By enjoining the review and use of the records bearing classification markings for criminal-investigative purposes, the district court’s order impedes the government’s efforts to protect the Nation’s security. As explained by the Assistant Director who oversees the FBI’s Counterintelligence Division, the Bureau’s national-security and law-enforcement missions cannot be bifurcated without impairing its work. A38-A43. Since the 9/11 attacks, the FBI has integrated its intelligence and law-enforcement functions when it pursues its national-security mission. A41. The FBI’s investigation into mishandling of classified information is thus “an exercise both of the FBI’s criminal investigation authority and of the FBI’s authority to investigate threats to the national security.” Attorney General’s Guidelines for Domestic FBI Operations 6 (2008), https://www.justice.gov/archive/opa/docs/guidelines.pdf. Enjoining criminal investigative activity in this area thus inevitably harms national security.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Furthermore, although the court purported to leave the IC’s review and assessment undisturbed, those reviews involve DOJ and FBI personnel and are closely tied to the ongoing criminal investigation. A40-A42. The court offered little guidance on how FBI and DOJ personnel should bifurcate their efforts, forcing them to discern that line for themselves on pain of contempt should the court later disagree with their judgments—a threat that will inevitably chill their legitimate activities.


B. The injunction also unduly interferes with the criminal investigation. It prohibits the government from accessing the seized records to evaluate whether charges are appropriate and even from “bringing charges based on” those records. A9. “The notion that a district court could have any input on a United States Attorney’s investigation and decision whether to ... bring a case” is “entirely incompatible with the constitutional assignment to the Executive Branch of exclusive power over prosecutorial decisions.” In re Wild, 994 F.3d 1244, 1287 (11th Cir. 2021) (Tjoflat, J., concurring).  

Moreover, the public has an “interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17 (1973); see Cobbledick v. United States, 309 U.S. 323, 325 (1940) (“[E]ncouragement of delay is fatal to the vindication of the criminal law.”). The government’s need to proceed apace is heightened where, as here, it has reason to believe that obstructive acts may impede its investigation. See A108-09 (finding of probable cause for violations of 18 U.S.C. § 1519 and discussing risks of “obstruction of justice”). And the prohibition on review and use of records bearing classification markings is uniquely harmful here, where the criminal investigation concerns retention and handling of those very records.

Finally, requiring disclosure of classified records to a special master and to Plaintiff’s counsel, see D.E. 91 at 4, would impose irreparable harm on the government and public. The Supreme Court has emphasized that courts should be cautious before “insisting upon an examination” of records whose disclosure would jeopardize national security “even by the judge alone, in chambers.” United States v. Reynolds, 345 U.S. 1, 10 (1952). In criminal proceedings, courts have routinely rejected arguments that cleared defense counsel are entitled to classified information without the requisite “need to know”—even after a prosecution has commenced. See, e.g., United States v. Daoud, 755 F.3d 479, 483-85 (7th Cir. 2014) (reversing order requiring disclosure); United States v. Asgari, 940 F.3d 188, 191 (6th Cir. 2019) (similar). Indeed, in the Classified Information Procedures Act (CIPA), 18 U.S.C. App. III, which governs criminal proceedings, Congress aimed “to protect classified information from unnecessary disclosure at any stage of a criminal trial,” United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002), including by permitting the government to move the court ex parte to withhold classified information from the defense, see 18 U.S.C. App. III § 4; United States v. Campa, 529 F.3d 980, 994-96 (11th Cir. 2008). Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

III. A partial stay would impose no cognizable harm on Plaintiff. Allowing the government to use and review the records bearing classification markings for criminal-investigative purposes would not cause any cognizable injury to Plaintiff. Plaintiff has no property or other legal interest in those records. None of the potential harms to Plaintiff identified by the district court, cf. A34, are applicable to those records. Criminal investigators have already conducted an initial review of the records, A19, and the court allowed other government officials to continue to review and use them for national-security purposes. Plaintiff has identified no cognizable harm from merely allowing criminal investigators to continue to review and use this same subset of the seized records.


Plaintiff’s only possible “injury” is the government’s investigation, but that injury is not legally cognizable. “[T]he cost, anxiety, and inconvenience of having to defend against” potential criminal prosecution cannot “by themselves be considered ‘irreparable’ in the special legal sense of that term.” Younger v. Harris, 401 U.S. 37, 46 (1971). That is why courts have exercised great caution before interfering through civil actions with criminal investigations or cases. See id.; see also, e.g., Deaver v. Seymour, 822 F.2d 66, 69-71 (D.C. Cir. 1987); Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993). The district court erred by departing from that fundamental principle of judicial restraint.

CONCLUSION

The district court’s order should be stayed to the extent it (1) enjoins the further review and use for criminal-investigative purposes of the seized records bearing classification markings and (2) requires the government to disclose those records for a special-master review process.

Respectfully submitted,

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001

Dated: September 16, 2022

MATTHEW G. OLSEN
Assistant Attorney General
JAY I. BRATT
Chief, Counterintelligence and Export
Control Section
JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW  
Washington, DC 20530
202-233-0986

Counsel for Appellant

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 5,197 words. This brief also complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E) and 32(a)(5)-(6)because it was prepared using Microsoft Word in Garamond 14-point font, a proportionally spaced typeface.

/s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2022, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. Plaintiffs’ counsel was also notified of this motion by email.

/s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

_______________

Notes:

1 References to “A__” refer to the Addendum to this motion.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Oct 06, 2022 8:28 am

Lawyer refused Trump instructions to tell Archives all documents returned
by Rebecca Beitsch
The Hill
October 4, 2022

Correction: Attorney Alex Cannon worked for the Trump campaign after being employed by the Trump Organization. An earlier version of this story misrepresented the nature of his employment.

A former attorney for Donald Trump rebuffed the former president when he asked him to submit a statement to the National Archives earlier this year affirming that all presidential records at Mar-a-Lago had been returned.

The attorney, Alex Cannon, refused, according to multiple reports, because he was not sure such a statement was true.

Cannon was facilitating the return of records to the Archives that had been stretching at that point for nearly a year.

Trump himself eventually packed the 15 boxes that were turned over in January, according to The Washington Post, which first broke the story, before asking Cannon to submit the statement to the Archives.

Cannon, a former Trump Organization attorney who would later work with Trump’s campaign team, reportedly told others he was uncomfortable making such a statement and that Trump staff encouraged him not to do so.

Sources contacted by the Post said Cannon was also hesitant to review the contents of the boxes, as he did not have a security clearance and was unsure if they might contain classified records.

The Trump team ultimately did not send a sworn statement to the Archives and instead released a public statement in February when news of the returned boxes broke, insisting the records were returned in a “friendly” manner.


However, the volume of classified records within the 15 boxes — 184 in total — would ignite a referral to the Department of Justice (DOJ).

The Trump team would later submit a sworn statement to the Justice Department that it had returned all presidential records on the premises after the DOJ issued a subpoena for such records.

In that second production, the Trump team turned over 38 classified records. But again, there appeared to be hesitancy to sign a declaration that all records had been returned. Earlier reporting from The New York Times indicated that Trump attorney Evan Corcoran drafted the statement but handed it to another attorney, Christina Bobb, to sign.


After receiving the statement, the Justice Department would go on to secure a warrant to search Mar-a-Lago, recovering another 100 classified records and some 200,000 pages of presidential records.

A spokesman for Trump bashed both the DOJ and the media in response to the reports.

“Biden’s weaponized DOJ has no greater ally than the fake news media, which seems to only serve as the partisan microphone of leakers and liars buried deep within the bowels of America’s government,” Taylor Budowich said in a statement.

Those documents are now at the center of a legal dispute between the Justice Department and Trump, who has claimed executive privilege allows him to retain the records and secured a victory from a Florida judge who backed his request to have a special master review the evidence.

The DOJ has argued that any presidential records — classified or otherwise — are not Trump’s personal property and he has no right to retain them.

Cannon was reportedly sidelined from dealing with the Archives after failing to sign the statement, and he has since left Trump’s team to work for a D.C.-based law firm. He did not respond to request for comment.

Cannon previously appeared in video clips during the House Jan. 6 committee’s first slate of hearings, telling the panel’s investigators he spoke briefly with Trump ahead of the certification and told him he was not aware of any widespread voter fraud.

“He asked me if we were finding anything. And I said that I didn’t believe we were finding it or I was not personally finding anything sufficient to alter the results of the election. And he — he thanked me. That was our interaction,” Cannon said.


—Updated at 5:03 p.m.

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

Trump asks his lawyer to lie about documents AND Trump asks Supreme Court/Clarence Thomas for help
by Glenn Kirschner
10/5/22

Two related stories just broke. First, the Washington Post reported that Trump asked one of his lawyers to lie: "Trump's lawyer refused his request in February to say all documents returned." The lawyer, Alex Cannon, refused to lie for Trump. And now, Donald Trump is looking for help from the Supreme Court. As Politico reported: "Trump asks Supreme Court to intervene in Mar-a-Lago documents case."

The question remains . . . where is the Department of Justice? Why has Trump not been held accountable for a single crime?

This video exposes those questions.



Transcript

so two new stories broke, friends. both
involving Donald Trump trying to get
away with his classified documents
crimes.
let's talk about that.
because Justice matters.
hey all. Glenn kirschner here. so let's
take on two related stories, both stories
involve Donald Trump asking for favors,
though
first let's take a look at what Donald
Trump asked one of his lawyers to do.
headline: Trump's lawyer refused his
request in February to say all documents
returned after initial return of 15
boxes. attorney Alex Cannon thought there
might be more records at Mar-A-Lago,
people familiar with the matter said.
former president Donald Trump asked one
of his lawyers to tell the National
Archives and Records Administration in
early 2022 that Trump had returned all
materials requested by the agency,
but the lawyer declined because he was
not sure the statement was true,
according to people familiar with the
matter.
as it turned out, thousands more
government documents, including some
highly classified Secrets, remained at
Trump's Mar-A-Lago residence and private
club.
the later discovery of those documents
through a May grand jury subpoena, and
the August 8 FBI search of the Florida
property, are at the heart of a criminal
investigation into the potential
mishandling of classified material, and
the possible hiding, tampering, or
destruction of government records.
now friends, let's not dance around this.
let's not use gentle euphemisms. Donald
Trump asked one of his lawyers to lie
to cover up his crimes,
to facilitate his unlawful retention and
concealment of government documents of
classified information of top secret
materials,
of information about the nuclear weapons
programs of foreign countries.
when will Donald Trump be held
accountable for his crimes?
and another story broke today, friends,
after Donald Trump asked one of his
lawyers to lie for him about the
documents he stole from the government
and unlawfully concealed at Mar-A-Lago.
now Donald Trump is asking the Supreme
Court to help him out.
here's today's reporting from Politico.
headline: Trump asks Supreme Court to
intervene in Mar-A-Lago documents case.
Trump's request would put about 100
potentially classified documents back
into the special Master review.
former president Donald Trump is asking
the Supreme Court to intervene in the
fight over records the FBI seized from
his Florida home as part of an
investigation into alleged retention of
classified information, theft of
government documents, and obstruction of
justice.
lawyers for Trump asked Justice Clarence
Thomas on Tuesday to issue an emergency
order that would restore an outside
reviewer's authority over about 100
documents with classification markings
found at Trump's Mar-A-Lago estate
during the August 8 search. such a move
would make it easier for Trump to
continue to pursue claims that those
documents, some marked top secret, or with
even more restrictive classifications,
should not be in the hands of the
justice department investigators.
you know, maybe Donald Trump should just
tell Justice Thomas that, you know what?
I've got a bunch of your wife's emails
in those boxes, in those documents that I
was keeping at Mar-A-Lago before the FBI
took them from me. so, Justice Thomas, you
know, you might want to seriously
consider granting review of this case.

you know, when will Donald Trump be held
accountable for his crimes -- obvious
crimes, transparent crimes, dangerous
crimes,
the kind of crimes that if it were you
or if it were me, we would already be
cooling our heels in a jail cell?
when will Donald Trump be held
accountable,
Department of Justice?
heck, it's one of the three words in the
name of your organization: "Department of" --.
you know,
when
we're waiting.
we've seen the crimes.
we know you all have the evidence.
a federal judge has already announced
that there's more than enough evidence
to charge him,
to indict him.
when?
because Justice still matters.
it still matters,
as long as we're living in a democracy.
it still matters,
Department of --
you know --
Justice!
friends,
please stay safe, please stay tuned,
and I look forward to talking with you
all again
tomorrow.
[Music]
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Mon Oct 10, 2022 8:44 am

Trump wanted to trade Mar-a-Lago files for ‘sensitive’ documents about 2016 Russia probe: report: Trump plotted to exchange classified documents for the FBI’s files on the investigation into his ties to Russia, a New York Times report claims
by Bevan Hurley
independent.co.uk
10/9/22



Former president Donald Trump tried to make a deal with the National Archive to trade classified documents he took to Mar-a-Lago in exchange for files that he believed would prove a 2016 investigation into his ties to Russia was a “hoax”, according to a new report.

In a piece published on Saturday, The New York Times claimed that Mr Trump discussed the deal with his advisers last year as the National Archives increased pressure on him to return a cache of top secret documents he took when he left the White House.

Mr Trump’s aides did not pursue the deal, The Times’ report notes, but adds that the former president repeatedly urged them to lie about what was in the trove of documents he was hiding at Mar-a-Lago.

After 18 months of negotiations between Mr Trump and the National Archive and Department of Justice to return the documents, the FBI raided Mar-a-Lago in August and confiscated several boxes of material.

It was later reported that the files included top secret information about a foreign nation’s nuclear programme.


On Friday, Rolling Stone reported that FBI special agents had interviewed several witnesses as part of efforts to determine if Mr Trump had hidden classified or sensitive government documents at his Trump Tower home and office or his golf club in Bedminster, New Jersey.

Per The Times, the National Archives’ top lawyer Gary Stern repeatedly pressed Mr Trump during 2021 to return two dozen boxes of presidential records that he had been holding in his private residence at the White House.

Mr Trump’s attorneys tried to assure Mr Stern that the boxes contained “nothing of consequence”, The Times writes.

Mr Trump “floated” the idea of exchanging the records for information that would “expose” the 2016 FBI investigation into his campaign’s ties to Russia.

However, his aides didn’t act on the suggestion as they knew that the government was entitled to have the files returned, The Times notes.

The Times also states that Mr Trump and his aides did not tell the archives lawyers that the boxes contained classified information, instead claiming it contained material such as newspaper clippings.

Neither Mr Trump or any of his representatives informed the archives that the files contained classified information, the report states. It was only when they came to Mar-a-Lago in January to collect 15 boxes of material that they became aware of the sensitive nature of the files, The Times states.

They then alerted the Justice Department, who launched an investigation into mishandling of classified documents.

Mr Trump has reportedly been obsessed with punishing his perceived enemies at the Justice Department over their investigation into his business dealings and campaign ties to Russia in the lead up to the 2016 election.

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

How Trump Deflected Demands for Documents, Enmeshing Aides: The former president exhibited a pattern of dissembling about the material he took from the White House, creating legal risk not just for himself but also some of his lawyers.
by Maggie Haberman and Michael S. Schmidt
New York Times
Oct. 8, 2022

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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


Late last year, as the National Archives ratcheted up the pressure on former President Donald J. Trump to return boxes of records he had taken from the White House to his Mar-a-Lago club, he came up with an idea to resolve the looming showdown: cut a deal.

Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.

In exchange for those documents, Mr. Trump told advisers, he would return to the National Archives the boxes of material he had taken to Mar-a-Lago, in Palm Beach, Fla.


Mr. Trump’s aides never pursued the idea. But the episode is one in a series that demonstrates how Mr. Trump spent a year and a half deflecting, delaying and sometimes leading aides to dissemble when it came to demands from the National Archives and ultimately the Justice Department to return the material he had taken, interviews and documents show.

That pattern was strikingly similar to how Mr. Trump confronted inquiries into his conduct while in office: entertain or promote outlandish ideas, eschew the advice of lawyers and mislead them, then push lawyers and aides to impede investigators.

In the process, some of his lawyers have increased their own legal exposure and had to hire lawyers themselves. And Mr. Trump has ended up in the middle of an investigation into his handling of the documents that has led the Justice Department to seek evidence of obstruction.

The path began well before Mr. Trump left office.

Concern about Mr. Trump’s habit of bringing documents to his White House bedroom began not long after he took office. By the second year of his administration, tracking the material he had in the residence had become a familiar obstacle, according to people familiar with his practices, and by the third year, there were specific documents that West Wing officials knew were not where they should be.

In the closing weeks of his presidency, the White House counsel, Pat A. Cipollone, flagged the need for Mr. Trump to return documents that had piled up in boxes in the White House residence, according to archives officials.

“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,” Gary M. Stern, the top lawyer for the National Archives, told Mr. Trump’s representatives in a 2021 letter, using an abbreviation for the agency’s name.


Mr. Stern added that he had raised his concerns about the issue with another top White House lawyer in the final weeks of the administration.

More on the Trump Documents Inquiry

Documents Still Missing?: A top Justice Department official told former President Donald J. Trump’s lawyers in recent weeks that the agency believed he had not returned all the records he took when he left the White House, according to two people briefed on the matter.

Deflecting Demands: Mr. Trump spent a year and a half deflecting, delaying and sometimes leading aides to dissemble when it came to demands from the National Archives and the Justice Department to return the material he had taken, interviews and documents show.

Supreme Court Request: Mr. Trump asked the justices to intervene in the litigation over sensitive documents that the F.B.I. seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.

Dueling Judges: The moves and countermoves by a federal judge and the special master she appointed reflect a larger struggle over who should control the rules of the review of the documents seized from Mar-a-Lago.


Mr. Stern acknowledged to Mr. Trump’s representatives the complications that had come with the abrupt end of Mr. Trump’s term. “We know things were very chaotic, as they always are in the course of a one-term transition,” he wrote. “This is why the transfer of the Trump electronic records is still ongoing and won’t be complete for several more months. But it is absolutely necessary that we obtain and account for all original presidential records.”

Throughout 2021, Mr. Stern doggedly pressed Mr. Trump’s representatives to have him hand over the boxes.

Mr. Stern went back and forth about the issue with the people Mr. Trump had originally designated to represent him in dealing with the archives — among them Mark Meadows, the former White House chief of staff, and three lawyers who had worked in the White House Counsel’s Office.

In September 2021, as Mr. Stern increased the pressure on Mr. Trump to return the boxes, Mr. Trump told Mr. Meadows that there were about a dozen boxes that had been taken from the White House but that they only contained newspaper clippings and personal effects, according to three people briefed on the matter. (To some aides, Mr. Trump claimed that the contents of the boxes included dirty laundry.)

Mr. Meadows shared Mr. Trump’s characterization of the contents of the boxes with Patrick Philbin, another of Mr. Trump’s representatives to the archives and a former White House lawyer. Mr. Philbin in turn relayed the message — which months later would prove to be false — to Mr. Stern.


But archives officials made clear that even newspaper clippings and printouts of articles seen by Mr. Trump in office were considered presidential records. The archives often found personal effects among the materials presidents turned in, and the archives would send them back to Mr. Trump if they ever found any.

Still, Mr. Trump returned no boxes.

By the fall, Mr. Stern was growing increasingly frustrated and dealing with Alex Cannon, a lawyer who had worked for the Trump Organization, the 2020 campaign and then Mr. Trump’s political action committee. Mr. Cannon had also been involved in responding to requests for documents from the congressional committee investigating the Jan. 6, 2021, attack on the Capitol.

In a conversation in late October or early November of last year, Mr. Stern told Mr. Cannon that he had tried other avenues for retrieving the documents and failed. He acknowledged that the Presidential Records Act did not contain an enforcement mechanism but suggested that the archives had options, including the ability to ask the attorney general to assist in retrieving the documents, according to people briefed on the discussions.

Mr. Cannon told Mr. Stern that the documents would be returned by the end of the year, the people said.

Around that time, Mr. Cannon, who told others he worried the boxes might contain documents that were being sought in the Jan. 6 inquiry, called Mr. Trump, who insisted that the boxes contained nothing of consequence.

Nonetheless, Mr. Cannon told associates that the boxes needed to be shipped back as they were, so the professional archivists could be the ones to sift through the material and set aside what they believed belonged to Mr. Trump. What is more, Mr. Cannon believed there was the possibility that the boxes could contain classified material, according to two people briefed on the discussions, and none of the staff members in Mr. Trump’s presidential office at Mar-a-Lago had proper security clearances.

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.


Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

A spokesman for Mr. Trump did not respond to a request for comment. A representative for the archives did not respond to a request for comment. Mr. Cannon declined a request for comment.

By the end of last year, a former adviser to Mr. Trump in the White House, a lawyer named Eric Herschmann, warned him that he could face serious legal ramifications if he did not return government materials he had taken with him when he left office. Mr. Herschmann told Mr. Trump that the consequences could be greater if some of the documents were classified.

Finally, after telling advisers repeatedly that the boxes were “mine,” Mr. Trump consented to go through them, which his associates said he did in December. Mr. Stern was alerted that the boxes were ready for retrieval.

But neither Mr. Trump nor any of his representatives informed Mr. Stern that they contained classified information. In January, the agency arranged for a contractor with a truck to go to Mar-a-Lago to pick up the boxes — which totaled 15, three more than the agency thought Mr. Trump had taken from the White House — and drive them to the Washington area.

Not knowing that the boxes contained classified information, agency personnel began opening the boxes in a room that did not meet government standards for handling secret materials. When they realized the sensitivity of the material, they quickly moved the boxes to specially secured areas, where their contents could be more closely examined.

Shortly thereafter, the National Archives alerted the Justice Department that classified materials may have been mishandled, leading federal authorities to open an investigation.

Around the time the archives retrieved the boxes, officials at the archives became skeptical that Mr. Trump had returned everything and made clear they believed there was more in his possession.

Mr. Trump told Mr. Cannon last winter to tell the archivists that he had returned everything. Mr. Cannon, concerned about making such a definitive statement to federal officials, refused to do so.


Their relationship ultimately became strained over the issue. Mr. Trump has told several advisers that he blames Mr. Cannon for the entire situation because the lawyer told him to give records back, while informal advisers like Tom Fitton, who runs the conservative group Judicial Watch but is not a lawyer, suggested Mr. Trump could claim the documents were personal records and hang on to them.

By the spring, a grand jury investigation had begun, and by June, the Justice Department was moving full steam ahead with the investigation, having issued a subpoena for any remaining classified material.

In a face-to-face meeting at Mar-a-Lago on June 3 between one of Mr. Trump’s lawyers, Evan Corcoran, and a top Justice Department official overseeing the investigation, Jay I. Bratt, the lawyer returned another set of documents in response to the subpoena.

Another Trump lawyer, Christina Bobb, then signed a statement on behalf of Mr. Trump saying that “based upon the information that has been provided to me,” all documents responsive to the subpoena were being returned after a “diligent” search.

Yet two months later, during the Aug. 8 search of Mar-a-Lago, the F.B.I. found more than twice as many documents marked as classified as had been turned over in June, including some in Mr. Trump’s office. The F.B.I. also found dozens of empty folders marked as having contained classified information. Among the crimes that the search warrant said the authorities might find evidence of was obstruction.


Ms. Bobb has hired a criminal defense lawyer and signaled a willingness to answer questions from the Justice Department.

In the aftermath of the search, investigators remained skeptical that they had retrieved all the documents and, in recent weeks, a top Justice Department official told Mr. Trump’s lawyers that the department believed he had still not returned all the documents he took when he left the White House, according to people familiar with the discussions.

Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT

Michael S. Schmidt is a Washington correspondent covering national security and federal investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one for reporting on workplace sexual harassment and the other for coverage of President Trump and his campaign’s ties to Russia. @NYTMike

A version of this article appears in print on Oct. 9, 2022, Section A, Page 24 of the New York edition with the headline: How Trump Deflected Demands for Boxes of Documents, Enmeshing Aides.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Oct 12, 2022 8:51 pm

Response in Opposition to the Application to Vacate in Part the Partial Stay Issued by the United States Court of Appeals for the Eleventh Circuit
by Elizabeth B. Prelogar
Solicitor General
Department of Justice
Donald J. Trump, Applicant, v. United States of America
October, 2022

IN THE SUPREME COURT OF THE UNITED STATES

DONALD J. TRUMP, APPLICANT
v.
UNITED STATES OF AMERICA

RESPONSE IN OPPOSITION TO THE APPLICATION TO VACATE IN PART THE PARTIAL STAY ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

PARTIES TO THE PROCEEDING

All parties to the proceeding appear in the caption to this case. See Sup. Ct. R. 24.1(b).

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

Trump v. United States, No. 22-cv-81294 (Sept. 5, 2022) (order granting preliminary injunction and providing that a special master shall be appointed)

United States v. Sealed Search Warrant, No. 22-mj-8332 (Aug. 5, 2022) (issuing search warrant)

United States Court of Appeals (11th Cir.):

Trump v. United States, No. 22-13005 (Sept. 21, 2022) (granting partial stay)

IN THE SUPREME COURT OF THE UNITED STATES

No. 22A283

DONALD J. TRUMP, APPLICANT
v.
UNITED STATES OF AMERICA

RESPONSE IN OPPOSITION TO THE APPLICATION TO VACATE IN PART THE PARTIAL STAY ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

The Solicitor General respectfully files this response in opposition to the application for a partial vacatur of the Eleventh Circuit’s order partially staying the September 5, 2022 order of the United States District Court for the Southern District of Florida.

This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review. In August 2022, the government obtained a warrant to search the residence of applicant, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes, including wrongful retention of documents and information relating to the national defense as well as obstruction of justice. Among other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution.

Two weeks later, applicant filed this civil action seeking the appointment of a special master to review the seized materials for claims of privilege or return of property and an injunction barring the government from continuing to use those materials during that review process. District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are ordinarily resolved through criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief applicant sought, ordering that a “special master shall be APPOINTED to review the seized property” and enjoining further review or use of any seized materials “for criminal investigative purposes” pending the special-master process, which will last months. Appl. for Partial Vacatur App. (App.) B at 23.1.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief at all -- and is appealing the court’s September 5 order in its entirety on an expedited basis -- the government sought only a partial stay of the portions of that order that caused the most serious and immediate harm to the United States and the public by “enjoin[ing] the government’s use of the classified documents and requir[ing] the government to submit the classified documents to the special master for review.” App. A at 29. The court of appeals granted that modest relief, holding that “the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over [applicant’s] motion as it concerns the classified documents” and that all of the equitable factors favored a partial stay. Id. at 22; see id. at 15-29.

In this Court, applicant does not challenge the stay insofar as it reinstates the government’s authority to use the documents bearing classification markings in its ongoing criminal investigation. Applicant instead seeks to partially vacate the stay to the extent it precludes dissemination and review of those documents in the special-master proceedings. Applicant is not entitled to that relief for multiple independent reasons.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29.
As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “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.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)). In addition, applicant has not shown that the court of appeals erred -- much less “clearly and demonstrably erred” -- in issuing a partial stay. Planned Parenthood v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay) (citation and internal quotation marks omitted). The district court appointed the special master to review claims of privilege and for the return of personal property, see App. B at 23, but applicant has no plausible claim of privilege in or ownership of government records bearing classification markings. As the court of appeals recognized, applicant thus has no basis to demand special-master review of those records. App. A at 18-19. Applicant does not acknowledge, much less attempt to rebut, the court’s careful analysis of those issues.

Instead, applicant principally asserts (Appl. 9-29) that although the court of appeals had jurisdiction to stay the district court’s injunction, it lacked jurisdiction to stay the special master’s review. That is wrong for three independent reasons. First, the court of appeals correctly held that it had pendent jurisdiction to address the special master’s review because the injunction -- which precluded the government’s use of the documents “pending resolution of the special master’s review,” App. B at 23 -- is “inextricably intertwined” with that review,
App. A at 15 n.3 (citation omitted). Second, 28 U.S.C. 1292(a)(1) grants appellate jurisdiction to review “nterlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions” (emphasis added). [i]Appellate jurisdiction thus lies over the entire order granting an injunction, as this Court has held in interpreting other statutes granting jurisdiction to review particular types of “orders.” See, e.g., BP p.l.c. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1537-1538 (2021). Here, the district court’s September 5 order not only granted an injunction, but also provided that a “special master shall be APPOINTED to review the seized property,” including the records bearing classification markings. App. B at 23. Third, a directive compelling the Executive Branch to disclose information that is classified or otherwise implicates national security is itself immediately appealable as a collateral order. Cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 n.4 (2009).

The court of appeals thus correctly held that it had appellate jurisdiction to review and stay the portion of the September 5 order that requires the government to turn over the documents bearing classification markings for special-master review. And even if there were some doubt on that score, applicant certainly cannot establish the clear error required to justify the relief he seeks -- particularly because he does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records. The application should be denied.

STATEMENT

A. Statutory And Factual Background


1. Applicant’s term of office ended in January 2021. Over the next year, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act of 1978 (PRA), Pub. L. No. 95-591, 92 Stat. 2523 (44 U.S.C. 2201 et seq.). App. A at 3-4; App. D at A44. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. 2202, which the law defines to include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, 44 U.S.C. 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. 2203(g)(1).

In response to repeated requests from NARA, applicant ultimately provided NARA with 15 boxes of records in January 2022. App. D at A44 (May 10, 2022 letter from NARA to applicant’s counsel). NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Ibid.; see App. A at 3. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. 707, 707 (Jan. 5, 2010). Sensitive Compartmented Information and Special Access Program material are subject to additional restrictions. Special Access Programs, for example, may be created only by cabinet-level officials or their deputies and must be based on “a specific finding” that “the vulnerability of, or threat to, specific information is exceptional.” § 4.3(a)(1), 75 Fed. Reg. at 722.

NARA referred the matter to the Department of Justice (DOJ), noting that highly classified records appeared to have been improperly transported and stored. App. D at A63-A64 (affidavit in support of search warrant). DOJ then sought access to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. Id. at A44-A45; see 44 U.S.C. 2205(2)(B). After receiving notification of that request, applicant neither attempted to pursue any claim of privilege in court, see 44 U.S.C. 2204(e), nor suggested that any documents bearing classification markings had been declassified. App. A at 4; App. D at A45.

2. The FBI developed evidence that additional boxes remaining at applicant’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information. On May 11, 2022, applicant’s counsel was served with a subpoena issued by a grand jury in the District of Columbia for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” App. D at A48 (subpoena).

In response, applicant’s counsel and his custodian of records produced an envelope containing approximately three dozen documents bearing classification markings. App. D at A76-A77. Applicant did not assert any claim of privilege and did not suggest that any of those documents had been declassified. App. A at 5. To the contrary, the envelope had been wrapped in tape in a manner “consistent with an effort to handle the documents as if they were still classified.” App. D at A78. Some of the documents in the envelope bore classification markings at the highest levels, including additional compartmentalization. Id. at A77. Applicant’s counsel represented that those records had been retrieved from a storage room at Mar-a-Lago, where boxes removed from the White House had been placed, and that no responsive records were located anywhere else at Mar-a-Lago. App. D at A76-A77. Applicant’s custodian provided a sworn certification in writing “on behalf of the Office of Donald J. Trump” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” Id. at A50. The certification further stated that “[n]o copy, written notation, or reproduction of any kind was retained as to any responsive document.” Ibid.

3. The FBI uncovered evidence that the response to the grand jury subpoena was incomplete, that additional classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation. The government applied to a magistrate judge for a search warrant, citing 18 U.S.C. 793 (willful retention of national defense information), 18 U.S.C. 2071 (concealment or removal of government records), and 18 U.S.C. 1519 (obstruction). App. D at A54. The magistrate judge found probable cause that evidence of those crimes would be found at Mar-a-Lago and authorized the government to seize, among other things, “[a]ny physical documents with classification markings, along with any containers/boxes * * * in which such documents are located.” Id. at A98; see id. at A96-A98 (warrant and attachments). The magistrate judge also approved the government’s proposed filter protocols for handling any materials potentially subject to personal attorney-client privilege.
Id. at A87-A88.

The government executed the warrant on August 8, 2022. The search recovered more than 11,000 documents from the storage room and applicant’s private office, roughly 100 of which bore classification markings, with some indicating the highest levels of classification and extremely restricted distribution. App. B at 4 & n.4; see App. D at A51 (photograph); App. G (inventory). In some instances, even FBI counterintelligence personnel required additional clearances to review the seized documents. D. Ct. Doc. 48, at 12-13 (Aug. 30, 2022).

B. Proceedings Below

1. Two weeks after the search, applicant filed a pleading styled as a “Motion for Judicial Oversight and Additional Relief” asking the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege, to enjoin the government from further review and use of the seized documents, and to order the government to return certain property under Federal Rule of Criminal Procedure 41(g). See D. Ct. Doc. 1, at 1-21 (Aug. 22, 2022).

On September 5, 2022, the district court granted applicant’s motion in part, directing that a “special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property,” with the “exact details and mechanics of this review process [to] be decided expeditiously following receipt of the parties’ proposals.” App. B at 23. “[P]ending resolution of the special master’s review,” the court enjoined the government from “further review and use” of the seized materials “for criminal investigative purposes,” but stated that the government may continue to review and use those materials “for purposes of intelligence classification and national security assessments.” Id. at 23-24. The court explained that the injunction was issued “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” Id. at 1.

The district court denied the government’s subsequent motion for a partial stay of the September 5 order as it applied to the records bearing classification markings. App. D at A4-A13. The court declined to address the government’s argument that special-master review is unnecessary and unwarranted with respect to that discrete set of records because they are government records not subject to any plausible claim for return or assertion of privilege. Instead, the court referred generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” Id. At A7. And the court reiterated that the injunction preventing the government from using the seized records for investigative purposes was necessary “to uphold the value of the special master review.” Id. At A32.

2. The court of appeals granted a stay of the order “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.” App. A at 29. The court observed that it had appellate jurisdiction to review the injunction under 28 U.S.C. 1292(a)(1), App. A at 15, and rejected applicant’s contention that it lacked jurisdiction over the special-master portion of the district court’s order, id. At 15 n.3. The court of appeals noted that the injunction expressly applied “‘pending completion of the special master’s review’” and “‘in natural conjunction with the appointment of the special master.’” Ibid. (brackets and citation omitted). And the court explained that “pendent jurisdiction” would allow it to review even “an otherwise nonappealable order” where, as here, “it is inextricably intertwined with an appealable decision.” Ibid.

The court of appeals then held that the government had satisfied the traditional standard for a stay set forth in Nken v. Holder, 556 U.S. 418 (2009). App. A at 15-16. The court concluded that the government “is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over [applicant’s] motion as it concerns the classified documents.” Id. at 22; see id. at 16-22. Among other things, the court of appeals emphasized the district court’s conclusion that the government did not engage in the sort of “callous disregard” for constitutional rights that circuit precedent makes an “indispensable” prerequisite for an exercise of equitable jurisdiction in this context. Id. at 17 (citation omitted). Applicant did not dispute that conclusion -- indeed, his filings in the court of appeals did not even allege that the search violated the Fourth Amendment.

The court of appeals also found that the government would suffer irreparable injury absent a stay. Crediting an affidavit from a senior FBI official, the court concluded that “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,” including risks to national security. App. A at 26-27. The court also concluded that “allowing the special master and [applicant’s] counsel to examine the classified records” would needlessly jeopardize “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” Id. at 27 (citation and ellipsis omitted). The court further held that applicant had not shown that he would suffer substantial injury from a “limited” stay applicable only to the records bearing classification markings and that the public interest favored a partial stay pending appeal. Id. at 28-29.

3. Meanwhile, before the district court denied a stay, it had issued a September 15, 2022 order (App. C at 1-8) appointing Judge Raymond J. Dearie as the special master and providing the promised “details and mechanics of th[e] review process,” App. B at 23. After the court of appeals entered the stay, the district court sua sponte modified the September 15 order by deleting the portions of that order addressing review of the records bearing classification markings. D. Ct. Doc. 104, at 1 (Sept. 22, 2022).

4. After the court of appeals granted the stay, it also granted the government’s motion to expedite the appeal, which applicant had opposed. Briefing is set to be complete by November 17, 2022. 10/5/22 C.A. Order. Meanwhile, the government’s investigation is ongoing, as is a national security review and assessment being coordinated by the Office of the Director of National Intelligence, see App. D at A40-A42.

ARGUMENT

Applicant seeks to vacate the partial stay entered by the court of appeals to the extent it precludes review of the documents bearing classification markings in the special-master proceedings. The application should be denied. “A stay granted by a court of appeals is entitled to great deference from this Court.” Garcia-Mir v. Smith, 469 U.S. 1311, 1313 (1985) (Rehnquist, J., in chambers). Vacatur of such a stay is appropriate only when (1) the case “very likely would be reviewed [by this Court] upon final disposition in the court of appeals”; (2) “the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay”; and (3) applicant’s rights “may be seriously and irreparably injured by the stay.” Western Airlines, Inc. v. International Brotherhood of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers) (citation omitted); see Valentine v. Collier, 140 S. Ct. 1598, 1598 (2020) (Sotomayor, J., respecting the denial of application to vacate stay); Planned Parenthood v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay). None of those requirements is satisfied here.

I. THIS COURT WOULD NOT LIKELY GRANT REVIEW IF THE COURT OF APPEALS REVERSED THE DISTRICT COURT’S ORDER

Applicant makes little effort to show that this Court would likely grant review if the court of appeals reversed the district court’s order enjoining the government from using the documents bearing classification markings pending a special master’s review. Cf. Appl. 9-10. Indeed, the application does not even address the court of appeals’ reasoning supporting its conclusion that the government is substantially likely to succeed on the merits. Instead, applicant focuses almost entirely on the assertion that the court lacked jurisdiction to stay the special master’s review. But the jurisdictional question presented here arises from the unusual -- indeed, unprecedented -- order entered by the district court, and is therefore unlikely to recur. And applicant does not contend that a decision by the court of appeals exercising jurisdiction and reversing that order would conflict with any decision of another court of appeals or otherwise satisfy this Court’s traditional certiorari standards.

II. APPLICANT HAS NOT SHOWN THAT THE COURT OF APPEALS CLEARLY AND DEMONSTRABLY ERRED IN GRANTING A STAY

A. The Court Of Appeals Did Not Clearly And Demonstrably Err In Exercising Appellate Jurisdiction


Applicant recognizes (Appl. 3 n.3) that the court of appeals had jurisdiction to review the portion of the district court’s September 5 order enjoining the government’s use of the documents bearing classification markings, and he does not challenge that portion of the stay. Instead, he argues (Appl. 9-29) only that the court of appeals lacked jurisdiction to stay the September 5 order “to the extent it * * * requires the government to submit the classified documents to the special master for review.” App. A at 29. 3 That argument lacks merit for three independent reasons: (1) the court had pendent jurisdiction to address the special-master review that formed the predicate for the injunction; (2) the court had jurisdiction to review the entire September 5 order under 28 U.S.C. 1292(a)(1); and (3) the court had jurisdiction under the collateral-order doctrine to review the directive to disclose classified documents in the special-master proceedings.

1. The court of appeals had pendent jurisdiction

The court of appeals correctly recognized (App. A at 15 n.3) that it had pendent jurisdiction to address the special-master review to which the injunction was expressly tied. Pendent appellate jurisdiction permits review of an otherwise non-appealable issue if it is “‘inextricably intertwined with’ or ‘necessary to ensure meaningful review of’” an immediately appealable ruling. Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 531 (2021) (citation omitted). For example, in Clinton v. Jones, 520 U.S. 681 (1997), this Court held that because the appellate court had jurisdiction to review the district court’s denial of a motion to dismiss on presidential immunity grounds, it had pendent jurisdiction to review the district court’s ruling staying trial. Id. at 707 n.41. Likewise, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court affirmed appellate jurisdiction to review the denial of a motion to dismiss for failure to state a claim pendent to the denial of qualified immunity. Id. at 673 (citing other cases).

The injunction here is an immediately appealable ruling under 28 U.S.C. 1292(a)(1), as applicant acknowledges. Appl. 3 n.3. But the injunction expressly applies only “pending resolution of the special master’s review.” App. B at 23. The district court itself explained that it issued the injunction “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” Id. at 1. And the court reiterated that it viewed the injunction as necessary “to uphold the value of the special master review.” App. D at A32. The special-master review is thus inextricably intertwined with the injunction because it was the very predicate for the injunction. See Jones, 520 U.S. at 707 n.41.

Applicant asserts that the two are not inextricably intertwined because resolution of the propriety of the injunction “does not ‘necessarily resolve’ the Special Master issue.” Appl. 25; see Appl. 24-25. But that conflates “inextricably intertwined” with the disjunctive “necessary to ensure meaningful review” path to pendent jurisdiction. Whole Woman’s Health, 142 S. Ct. at 531 (citation omitted). And in any event, the assertion is incorrect. In staying the injunction, the court of appeals concluded that the district court likely abused its discretion in even entertaining applicant’s motion as to the records bearing classification markings -- a conclusion that necessarily dictates that the special-master review of those records is improper. App. A at 16-22. The government has also argued that the injunction is unwarranted precisely because the special-master review process is unnecessary with respect to the documents bearing classification markings, over which applicant has no plausible claim of privilege or for return. App. D at 12-17. Again, that argument necessarily resolves not just the validity of the injunction, but also the propriety of the special-master review to which the injunction is expressly tied.

Applicant also contends (Appl. 21-22 & n.12) that pendent appellate jurisdiction is available only in cases where the appealable order is the denial of an immunity defense. But this Court has never articulated such a limitation. See Whole Woman’s Health, 142 S. Ct. at 531; Iqbal, 556 U.S. at 673; Jones, 520 at 707 n.41.4 Nor is there any sound basis to limit pendent jurisdiction to cases involving immunity defenses. Denials of immunity are immediately appealable under the collateral-order doctrine on the theory that “the central benefits” of immunity -- avoiding the costs and inconveniences of trial -- otherwise “would be forfeited” as a practical matter. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-144 (1993). If pendent jurisdiction is available under a doctrine grounded in those practical considerations, a fortiori it should be available when, as in Section 1292(a)(1), Congress has specifically authorized an appeal by statute.

2. The court of appeals had jurisdiction under 28 U.S.C. 1292(a)(1) over the entire September 5 order

Even setting aside pendent jurisdiction, Section 1292(a) provides that “the courts of appeals shall have jurisdiction of appeals from[] * * * [ i]nterlocutory orders of the district courts * * * granting * * * injunctions.” 28 U.S.C. 1292(a)(1) (emphasis added). It is thus the entire order that is appealable under Section 1292(a)(1). This Court made exactly that point in construing the parallel language of Section 1292(b): “As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). And the Court recently employed the same interpretation of “order” to conclude that a court of appeals has jurisdiction to review all grounds for removal addressed in a remand order, not just the federal-officer ground providing the basis for appellate review under 28 U.S.C. 1447(d). BP p.l.c. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1537-1538 (2021). Here, the district court granted an injunction in its September 5 order. App. B at 23. It follows that the court of appeals had jurisdiction to review the entire order -- including the portion directing that a “special master shall be APPOINTED to review the seized property.” Ibid.5

Applicant contends (Appl. 19) that Yamaha and BP are inapposite because Section 1292(b) supposedly serves “a wholly different purpose” than Section 1292(a). But what matters is the statutory text, not its perceived purpose. See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496-2497 (2022). The plain text of Section 1292(a)(1) confers jurisdiction to review “orders * * * granting * * * injunctions,” 28 U.S.C. 1292(a)(1) -- just as the text of Section 1292(b) confers jurisdiction to review certain “order[s]” that “involve[] a controlling question of law,” 28 U.S.C. 1292(b), and just as the text of Section 1447(d) confers jurisdiction to review certain “order[s] remanding a case,” 28 U.S.C. 1447(d). Applicant’s observation (Appl. 19-20) that a court of appeals has discretion to reject an appeal under Section 1292(b), but not Section 1292(a), is a non sequitur; courts of appeals have no discretion to refuse appeals under Section 1447(d) either, but that does not undermine the textual point above. See BP, 141 S. Ct. at 1538.

Finally, applicant errs in invoking (Appl. 18-19) Abney v. United States, 431 U.S. 651 (1977). Abney held that the denial of a motion to dismiss an indictment on double-jeopardy grounds is immediately appealable under “the so-called ‘collateral order’ exception to the final-judgment rule,” id. at 657; see id. at 657-662, but that “other claims contained in the motion to dismiss” are not necessarily immediately appealable, such as a challenge to the sufficiency of the indictment, id. at 663. But Abney’s holding ultimately rested on the text of Section 1291: as the Court explained, 28 U.S.C. 1291 provides appellate jurisdiction over a “final decision,” and a ruling rejecting a double-jeopardy claim qualifies as a “final decision” under the test set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), but a ruling rejecting a sufficiency claim does not. Abney, 431 U.S. at 658. That reasoning is inapplicable to Section 1292(a), which provides appellate jurisdiction over “orders,” not just particular decisions within those orders. If anything, Abney’s focus on statutory text underscores the inaptness of applicant’s purposive and policy-based arguments (Appl. 19-21).

3. The directive to divulge classified documents is reviewable as a collateral order

A third independent basis for appellate jurisdiction is that the special-master directive is itself a collateral order, at least as applied to the records bearing classification markings. See Al Odah v. United States, 559 F.3d 539, 542-544 (D.C. Cir. 2009) (per curiam); cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 n.4 (2009) (leaving the question open). An interlocutory ruling is immediately appealable as a collateral order if it is “conclusive,” “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Industries, 558 U.S. at 106 (citation omitted).

The district court’s order compelling the disclosure of documents bearing classification markings in the special-master proceedings during the pendency of an ongoing investigation satisfies those criteria: it conclusively determines the government’s obligation to disclose those sensitive materials; compelled disclosure outside the Executive Branch is an important issue separate from the merits of the underlying dispute; and disclosure, once made, is irreversible. Applicant agrees as to the first point, but argues (Appl. 29) that appointment of the special master presents “no particularly important issue.” That mistakes the relevant inquiry, which is whether the disclosure of classified records -- not the appointment of a special master more broadly -- is important and separate from the merits. Likewise, that “the Special Master Order is reviewable on appeal” (ibid.) is nonresponsive to the point that appellate review of a ruling compelling the disclosure of classified documents will likely be futile once disclosure has occurred.

The D.C. Circuit held exactly that in Al Odah, finding appellate jurisdiction to review an order compelling disclosure of classified records.
559 F.3d at 543-544. Applicant attempts to distinguish Al Odah (Appl. 28) on the ground that the classified documents there were to be disclosed to the habeas petitioners’ counsel. But applicant likewise has insisted that the documents bearing classification markings be disclosed to his counsel under the district court’s order. See D. Ct. Doc. 83, at 4-5 (Sept. 9, 2022); D. Ct. Doc. 97, at 3 (Sept. 19, 2022); see also App. C at 4. And in any event, even disclosure only to the special master would be important and effectively unreviewable on appeal, especially in light of “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” App. A at 27 (citation and ellipsis omitted). As this Court has emphasized, courts should be cautious before “insisting upon an examination” of records whose disclosure would jeopardize national security “even by the judge alone, in chambers.” United States v. Reynolds, 345 U.S. 1, 10 (1953).

* * * * *

Even if all three of the independent grounds for appellate jurisdiction set forth above might ultimately be found unavailing, applicant still would not be entitled to partial vacatur of the stay because the court of appeals did not clearly and demonstrably err in determining that it had jurisdiction. This Court has expressly left open the question whether an order compelling disclosure of classified government records is immediately appealable as a collateral order, Mohawk Industries, 558 U.S. at 113 n.4; by definition, that means that the exercise of appellate jurisdiction in this case is not “clearly wrong,” Planned Parenthood, 571 U.S. at 1062 (Scalia, J., concurring in denial of application to vacate stay). 6 Likewise, because this Court has not had the opportunity to apply the logic of Yamaha and BP to the parallel language in Section 1292(a) or to address pendent jurisdiction in circumstances like these, the exercise of appellate jurisdiction here cannot be said to be “clearly wrong.” Ibid. Indeed, the most that applicant could possibly establish about appellate jurisdiction in this case is that it presents a “‘difficult’” question, which “cuts against vacatur, since the difficulty of a question is inversely proportional to the likelihood that a given answer will be clearly erroneous.” Id. at 1061-1062 (citation omitted).

B. The Court Of Appeals Did Not Clearly And Demonstrably Err In Determining That The Government Was Likely To Succeed On The Merits

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged -- much less shown -- a violation of his constitutional rights. Id. at 17. Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1). Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court -- which would be yet another reason the government is likely to succeed on the merits here.


As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents -- much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19. And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

C. The Court Of Appeals Did Not Clearly And Demonstrably Err In Its Application Of The Remaining Stay Factors

Finally, applicant does not contend that the court of appeals clearly and demonstrably erred in applying any of the other equitable factors constituting the “accepted standards” for a stay pending appeal. Planned Parenthood, 571 U.S. at 1061 (Scalia, J., concurring in denial of application to vacate stay) (citation omitted). Those factors include “whether the [government] would have been irreparably injured absent a stay”; “whether issuance of a stay would substantially injure other parties”; and “where the public interest lay.” Ibid. (citing Nken v. Holder, 556 U.S. 418 (2009)). The court applied that standard and found that all of the factors favored a partial stay. App. A at 23-29.

As relevant here, the court of appeals explained that the government would be irreparably injured by having to disclose the classified records, some of which reflect the highest levels of classification and extraordinarily restricted distribution, to the special master and applicant’s counsel in light of “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” App. A at 27 (citation and ellipsis omitted). The court found the public interest favored a stay for largely the same reasons. Id. at 28-29. The court also observed that applicant had not explained how he would be harmed by “the limited scope of the stay” with respect to the documents bearing classification markings. Id. at 28. None of those findings is clearly wrong -- and applicant does not contend otherwise.

III. APPLICANT WILL NOT SUFFER IRREPARABLE INJURY FROM THE STAY

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm -- much less irreparable injury -- on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[ i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits.
See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion -- that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 -- is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

Indeed, because applicant has no plausible claims of ownership of or privilege in the documents bearing classification markings, see App. D at 12-17; App. F at 2-6, he will suffer no harm at all from a temporary stay of the special master’s review of those materials while the government’s appeal proceeds.
And applicant further undermined any claim that he is suffering irreparable injury from the stay by opposing the government’s motion to expedite the underlying appeal and urging that oral argument be deferred until “January 2023 or later.” Appl. C.A. Opp. to Mot. to Expedite 2 (Oct. 3, 2022). Applicant’s failure to establish any risk of irreparable injury provides yet another independently sufficient reason to deny his request to disturb the modest partial stay entered by the court of appeals.


CONCLUSION

The application should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR
Solicitor General
OCTOBER 2022

______________

Notes:

1 The appendix to the application is divided into seven lettered sections but not consecutively paginated. This response cites the appendix using the relevant section designation and the internal pagination of the documents contained in that section.
 
2 The analysis would be different if the court of appeals were to affirm the district court’s unprecedented order. Enjoining the government, pre-indictment, from using classified records recovered under a lawful search warrant pending a special master’s review is an extraordinary intrusion raising significant national-security concerns. Cf. Department of the Navy v. Egan, 484 U.S. 518, 520 (1988) (explaining that the Court granted certiorari “because of the importance of the issue in its relation to national security concerns”). That is especially so because those records are the very subject of the investigation concerning wrongful retention of documents and information relating to the national defense, as well as obstruction of justice. See App. D at A57-A86.
 
3 Applicant is wrong to suggest (Appl. 13-15 & n.9) that because the district court appointed Judge Dearie and specified the details and mechanics of his review in its September 15 order, the court of appeals effectively stayed that later order too. The court of appeals expressly disclaimed having done so, see App. A at 15 n.3, and its order stays only the “district court order” (singular), id. at 29. The district court itself apparently did not understand the court of appeals to have stayed any portion of the September 15 order because after the stay was entered, the district court sua sponte modified that order to conform to the stay of the September 5 order. See D. Ct. Doc. 104.
 
4 Indeed, this Court has acknowledged that appellate courts reviewing interlocutory injunctive orders may properly review issues beyond just the injunction. E.g., Deckert v. Independence Shares Corp., 311 U.S. 282, 287 (1940) (on appeal from grant of preliminary injunction, court of appeals had jurisdiction to review orders denying motions to dismiss); see Munaf v. Geren, 553 U.S. 674, 691 (2008) (“[A] reviewing court has the power on appeal from an interlocutory order ‘to examine the merits of the case and upon deciding them in favor of the defendant to dismiss the bill.’”) (citation and ellipsis omitted).
 
5 Contrary to applicant’s suggestion (Appl. 13-14), that portion of the order was not merely precatory. Although the district court had not yet identified the special master or supplied the “exact details and mechanics of th[e] review process,” App. C at 23, the September 5 order itself made plain that the government would have to submit the seized documents for special-master review, see id. at 14-19, 23. Indeed, as noted above, that review is the very predicate for the injunction.
 
6 Mohawk Industries also recognized that mandamus may be an alternative path to appellate review in similar circumstances. See 558 U.S. at 111 & n.3. The government specifically preserved that alternative in the court below, see App. F at 8 n.2, thus providing yet another reason why the court of appeals did not clearly and demonstrably err in precluding the special master’s review of the documents at issue here, cf. Thigpen v. Roberts, 468 U.S. 27, 29-30 (1984).
 
7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Oct 13, 2022 7:29 am

Employee told FBI that Trump personally directed moving of Mar-a-Lago records: report
by Julia Mueller
The Hill
10/12/22 7:51 PM ET

An employee of former President Trump said the former president personally instructed workers in moving boxes of documents at his Mar-a-Lago residence in Palm Beach, Fla., according to a new report from The Washington Post.

The employee witness, who was not identified, told FBI agents that Trump directed his people to move boxes to his residence after a May subpoena from the government requested any remaining classified documents, the Post reported. Security footage allegedly confirmed that account.

The witness reportedly first denied handling such documents, but switched stories in a second interview with federal agents, admitting to handling boxes of documents at Trump’s behest.

The revelation is the latest development in the ongoing investigation into the former president’s treatment of classified materials and, since the report suggests Trump directed the documents to be moved after the government issued its subpoena, it could shore up arguments that Trump failed or refused to comply with the government’s requests for the documents.

Months after the government subpoenaed Trump in search of the documents believed to remain in his possession, FBI agents in August executed a search warrant at Mar-a-Lago and uncovered more than 100 classified documents and dozens of empty folders marked as classified, taken from the White House.

The former president has offered up varying defenses for how the documents came to kept at the Palm Beach, Fla., resort after the end of Trump’s time in office, including claims that he declassified the materials, though his attorneys have not gone so far in their legal arguments.

The discovery of the classified documents at the former president’s home has heightened national security concerns, as some of the materials included high-level secrets and intel. Agents conducting the Mar-a-Lago search were reportedly looking for classified documents on nuclear weapons among the materials, according to the Post.

A new report from The New York Times last week suggests Trump may still be in possession of classified documents even as the Justice Department battles with Trump in court over the review of the materials.

The Hill has reached out to Trump for comment.
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