In Trump's Stolen Classified Docs Case, DOJ DONE FUCKING AROUND

"As an initial matter, the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him."

Thus begins the government's response to Donald Trump's motion for a Special Master to sift through the documents seized from his South Florida garbage palace on August 8. This is lawtalk for "I feel like I'm taking crazy pills here," because WTF even are we talking about? The government got a warrant to search the property and take back records which are legally the property of the United States government, that's what they did, and yet here they are being hauled into court to account for themselves three weeks later.

Because apparently US District Judge Aileen Cannon, a Trump appointee, is taking crazy pills, and at a high dose.

Last Monday, after sitting on their hands for a full two weeks during which much of the warrant and underlying affidavit were unsealed by US Magistrate Judge Bruce Reinhart thanks to media lawsuits, Trump's sparklemagic legal team bumbled into Judge Cannon's courtroom with a Newsmax hit masquerading as a legal pleading. The court told them to take that shit away and come back with something resembling a legal document, and on Friday night they did. Well, sort of. They still weren't articulating any legal basis for what they were asking for, or explaining why they couldn't get it from Judge Reinhart, not to mention they still hadn't figured out how to serve the US Attorney's Office. Nonetheless, on Saturday Judge Cannon took it upon herself to treat the motion as if it had been filed on an emergency basis, announcing a "preliminary intent" to appoint a Special Master, and ordering the government to respond by last night in advance of a hearing tomorrow afternoon.

Which was fucking crazy, and also guaranteed to produce a worse outcome for Trump than if he'd just kept his stupid mouth shut in the first place. Because the Justice Department likes nothing more than to "speak through its filings," and this dumb motion effectively handed the microphone to Attorney General Merrick Garland and said, "The floor is yours, take all the time you need."

After an introduction in which prosecutors point out that, under the law, Trump is entitled to exactly none of the relief he seeks, they turn to a "detailed recitation of the relevant facts, many of which are provided to correct the incomplete and inaccurate narrative set forth in Plaintiff’s filings." They lay out, in painstaking detail, the eighteen months during which the National Archives (NARA) begged him to give back what he stole, only to discover "184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET" in the first tranche of boxes returned back in January 2022.

NARA then referred the matter to the Justice Department, in a letter quoted in the DOJ's response:

Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.” Id. (internal quotations omitted). The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.

Note the language about "highly classified records" being "unfoldered" and "intermixed," because we're going to come back to it after we talk about all the ways Donald Trump's lawyers are up shit's creek without a paddle. Because it was clear to the government that a lot more stuff was missing, even after the first round of document production, so they went to a grand jury in May and asked for a subpoena to get the rest of it back.

In June, when Jay Bratt, the head of the DOJ's Counterintelligence Division, showed up to collect the documents, Trump's lawyers Evan Corcoran and Christina Bobb handed them one Redweld of documents, with Bobb, who was custodian of the records, signing a statement attesting that a "diligent search was conducted of the boxes that were moved from the White House to Florida" in response to the subpoena, and that "any and all responsive documents" had been turned over. And then a lawyer who appears to be Corcoran told the FBI that there were no government documents stored anywhere but the pool shed, and that he had gone through the boxes to ensure that all classified records were returned.

Notably, "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." Also notably, at that June meeting, "neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege."

And then someone told the FBI that, not only were there government records stored in other areas of the club, but that documents were getting moved around to conceal them from law enforcement. Which is what lawyers would refer to as obstruction.

Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.

When the FBI returned on August 8 with their duly signed warrant, they found "over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena," and "three classified documents that were not located in boxes, but rather were located in the desks in the '45 Office,'” AKA the Mar-a-Lago bridal suite, which has been refashioned as a home for Trump's cosplay government in exile. This rather gives the lie to the representations made in writing and verbally by Corcoran and Bobb.

The warrant authorized agents to seize the entire box or drawer in which government records were found, because that may constitute evidence of improper storage of classified documents under the law. And that's why Trump's passports got swept up in this search, because apparently he was storing them in "a desk drawer that contained classified documents and governmental records commingled with other documents." As one does.

And that is only the first third of this filing, which makes Donald Trump and his lawyers look guilty as shit! There is no reason we should be seeing this now, except that Trump could not for once in his life shut the fuck up. So here we are looking at a photograph of a pile of highly classified documents that were stored in a box with framed Time magazine covers and stashed in the pool shed at the former president's private club.

Now let's talk about the legal arguments, shall we?

Trump has said that he needs a more detailed inventory of items taken so that he'll be able to file a Rule 41 motion for return of property. The law is very clear that you don't get personal property back if it was seized pursuant to a duly executed warrant. No, not even if you're a rich white guy. But, in point of fact, much of what was seized is not personal property, because, again it is a government record which belongs to the American people. And, while we're getting salty, Uncle Merrick says he filed a particularized inventory of what was seized under seal, and implicitly threatens to dump it on the public docket if Trump's got more appetite for embarrassment after last night's dick kicking. Also, every media outlet in the country just entered the case this morning seeking to kick loose the sealed documents, so odds of us getting that inventory are pretty good.

Trump further demands that prosecutors be preliminarily enjoined from examining the evidence seized at Mar-a-Lago. Which might have made some sense three weeks ago if he could been bothered to get off his ass. But at this late date, there is no "preliminary" and nothing to "enjoin," since the government has already completed its review of the records, after pulling out anything which is potentially attorney-client privileged. And, by the by, Trump wouldn't be entitled to an injunction anyway, since the DOJ is investigating violations of the Espionage Act and the possible dissemination of highly sensitive government secrets, which rather outweighs any nebulous harms accruing to Trump from losing access to whatever blackmail info he was hoarding about the President of France. Allegedly!

The appointment of Special Master is unnecessary, the Department of Justice argues, because prosecutors have already seen whatever might be filtered out, and the imposition of a master would in fact impede those investigations. But, if Judge Cannon decides to go buck wild and appoint one anyway, the DOJ requests that she find someone with the appropriate security clearance, impose a September 30, 2022, deadline, subject the master's privilege determinations to judicial oversight, and restrict the review to issues of attorney-client privilege. This last is because Trump is making noise about asserting executive privilege to block the Justice Department from seeing the documents he stole, and the DOJ is part of the executive branch, so SHUT UP THAT IS NOT A THING.

Judge Cannon scheduled a hearing for tomorrow at 1 p.m. ET on the motions. In the meantime, Donald Trump is out of his goddamn gourd.

Cool. Awesome. Carry on.

[Trump v. United States, Docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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