Trump Tried To Executive Privilege Himself Out Of A Criminal Investigation? This Year? WTF???

That dog won't hunt, dude.

Hooboy! There was so much crazy shit in Trumpland last night, it was like 2019 all over again. Only less worse, because Joe Biden is president, so it doesn't feel like we're going to DIE every single day. Phew!

Late in the afternoon, Trump finally filed his "major motion" responding to the search warrant to seize documents at his house — only two weeks after the "raid." You're doing great, sweetie!

Then the New York Times put out a crazy story on the hundreds of classified documents Trump made off with and stashed in the basement at his private club. And after midnight, disgraced reporter John Solomon's Just the News published a May 2022 letter to Trump's lawyer Evan Corcoran from the National Archives telling him that it wasn't going to allow Trump to assert executive privilege as a means to thwart a criminal investigation. (That last link, to Solomon's site, has been updated to one at the National Archives itself. Thanks NARA!)

With the caveat that these three stories are essentially the same story , let's put the lawsuit aside for another post and start with the Archives letter.

Penned by the acting Archivist Debra Wall, the letter refers to a months-long back and forth between Trump's lawyers and the National Archives and Records Administration (NARA) about the materials it retrieved from him back in February which contained classified documents, including special access program materials, i.e. extremely sensitive defense information for which there are statutory mandates governing storage and disclosure. So when they discovered that Trump had been stashing that shit in a storage room off the hallway by the pool, NARA referred the case to the Justice Department, which in turn asked President Joe Biden, the sitting executive, to grant the DOJ access to them.

"In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials," Wall wrote. "NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them."

There is far too much news this morning for us to go back over Trump's effort to use the Presidential Records Act and a post-presidential claim of executive privilege to block the House January 6 Select Committee's gaining access to his White House records last year. Suffice it to say, he lost at the Supreme Court — and the issue there was Congress getting hold of the documents for legislative purposes, not the DOJ, which is, after all, an executive agency whose IRL job is to investigate crimes.

So when Trump's lawyers tried to claim executive privilege over the documents to stop that criminal investigation, the Archivist told them to pound sand.

Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” such records “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B). Those conditions are satisfied here.

The letter refers to extensive correspondence between the Archives, the Justice Department, and Trump's lawyers, who failed to assert privilege over any specific document, instead seeking to to block disclosure by making "a protective assertion of executive privilege" over the whole lot. Something to keep in mind when Trump's minions claim he was "cooperating" with the FBI the whole time. And we'd note that four months ago Trump wasn't claiming that he'd telepathically declassified the documents, or that the General Services Administration stuck them in his suitcase , or that he was writing a memoir , or just stashing them somewhere safe , or whatever dumb excuse he comes up with this afternoon.

In June, Trump designated John Solomon as his representative to the National Archives, and Solomon was all the way up the ass end of Rudy Giuliani's efforts to craft lies about Joe Biden and Ukraine. If Solomon's outlet is publishing this letter, it's pretty clear that he didn't get it from the DOJ. But it's not clear why Team Trump would think this letter helps in any way, if indeed they are the ones who used Solomon to put it out there. Because this letter proves that Trump knew he had retained government property, both classified and unclassified, and so did his lawyers.

Anyway! Trump tried to shut down the DOJ's investigation by claiming executive privilege, but the Archivist wasn't having it.

The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B).

To the contrary, the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.”

Which is how the DOJ got its hands on the documents in May and came to bring the matter before a grand jury. And that brings us to the Times piece, which opens with the scoop that the Archives has recovered more than 300 documents marked classified from Trump after he left office, and that the former president went through the boxes himself, according to multiple sources.

After NARA engaged in extensive negotiations with Trump's lawyers to attempt to get all the stolen documents back, the DOJ issued a subpoena, and Jay Bratt, the head of the DOJ's Counterintelligence Division, paid a personal visit to Mar-a-Lago in June, in what should have been an unmistakable signal that Trump's lawyers needed to take that shit seriously and return any government property still in Trump's possession.

Last week, the Times   reported that one of Trump's lawyers signed a statement at that time guaranteeing that the former president had turned over all documents with classified markings — something that was clearly not true, since the search two weeks ago produced a boatload more classified stuff. Now the Times has gotten clarity on which lawyer was stupid enough to put her name on that statement.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Not to put too fine a point on it, but that reeks to high heaven. Corcoran is a former US Attorney who has been practicing white collar law for decades. Christina Bobb, whose last gig was as an OAN host, is ridiculous and possibly dirty . But as between the two of them, Corcoran was certainly better able to gauge the risk of handing a document like that the FBI. In any event, neither one of them comes out of this looking good.

And just to whet your appetite for the lawsuit, Trump claims that during Bratt's visit, one of the FBI agents accompanying him told Corcoran, "Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense."

Fuckin' hell, right? Well, at least that asshole isn't president any more.

[ NYT / NARA ]

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