In case you missed it, or you want to refer back to it, here’s a link to the post about this matter from Saturday:
You can find the link to the full order here.
This tweet is the first in a thread from PopeHat.
I don’t think the absolute freakout over this is warranted. I don’t think it’s the right outcome, equitably, but numerous elements of the written decision don’t support it being the catastrophe people are saying. But there seems to be very little point in saying so. https://t.co/9VTtpbiMB1
— EnemyOfTheHat (@Popehat) September 5, 2022
(Just added tweets 8-10 that I found particularly interesting.)
/8 This is also a fair observation: that the judge turned the absolute incoherent garbage of the Trump papers into a narrative that, even if you disagree with it, uses the appropriate test and asks necessary questions. https://t.co/3eiEIidGMX
— EnemyOfTheHat (@Popehat) September 5, 2022
/9 I’d disagree with Asha that Trump didn’t ask for an injunction — he did, but only incredibly briefly and without any necessary analysis. The judge doing a party’s work for them is something you see occasionally with pro se litigants and badly represented parties, not ex-POTUS.
— EnemyOfTheHat (@Popehat) September 5, 2022
/10 some people have suggested this is the judge giving Trump every break to make the result bulletproof. It’s possible. It would be a fairly extravagant example of the genre. I’ve seen judges do it with pro se litigants, though none comparable to Trump. https://t.co/j8XzvbAeSs
— EnemyOfTheHat (@Popehat) September 5, 2022
And for what it’s worth, the Obama Bros basically said “so what if she does approve a Special Master” in their podcast – before the ruling. Their take is that it will slow things down a little bit but that the train has left the station and there is no stopping it.
I will be interested in what Lawfare has to say about this, too, but there’s no analysis from them yet.
Balloon Juice attorneys, what say you?
Open thread.
Goku (aka Amerikan Baka)
Thanks WG!
Damien
I feel like the “special master so what?” position ignores the multiple ways that this FedSociopath blatantly disregarded precedent and law in arriving at this decision. Lovely.
Wyatt Salamanca
One more example of dickishness from TFG
h/t https://www.theguardian.com/books/2022/sep/05/donald-trump-tried-pay-lawyer-horse-book-david-enrich-servants-of-the-damned
Lapassionara
This just sucks. Trump didn’t request an injunction, but the judge enjoined further review by the DOJ, except to evaluate harm to national security. So, with an injunction comes an immediate appeal. But even immediate appeals take a while, so this is just another delay. And if appealed, it goes to the 11th Circuit, not a great place right now for liberal points of view. Sigh.
feebog
Lots of comments on Twitter about appealing, but the appeal would go to the 11th circuit, a very conservative court. Not sure it would be reversed there.
Scout211
Just to remind everyone, SCOTUS ruled against F-POTUS and his presidential records earlier this year, including issues of executive privilege.
SCOTUSblog
Omnes Omnibus
Reposted from below: District judge do dumb shit all the time. If this survives an appeal, I will be more concerned.
Xenos
Way out of my range of expertise here, but I think Popehat is likely to be right. Very stupid approach by the judge – if I were the DOJ I would go after her jurisdiction, as that can not be waived. She needs a firm reversal by the appeals court.
in any case, there is not much for a social master to do.
trollhattan
@Wyatt Salamanca: I remember how it turned out when Tony Soprano bought a race horse.
Baud
I think the injunction is the real problem. And treating Trump as special because he was president. The Special Master Isn’t a huge problem in itself.
Also, the court didn’t really have jurisdiction.
Chief Oshkosh
We can all wish that this most recent ruling isn’t that big a deal, but it is. If every Trump-appointed judge tosses precedent, hell, tosses just basic logic, then we de facto are no longer a nation of laws. This is how despots come to power “legally.”
Baud
@Chief Oshkosh:
I for one welcome the Dark Brandon empire.
Balconesfault
What’s the chance that this ruling was written by a panel of well paid Federalist Society lawyers and slipped under the judge’s door over the weekend?
James E Powell
Carried over from the earlier thread:
The real absurdity is that the order is for a neutral person. If someone claims to be neutral about Trump, then they are a pro-Trump person & a liar. Cf. Finding jurors for the OJ trial who heard nothing about the case.
Republicans will not accept any special master who is not a pro-Trump Republican and they will not accept any result that is not a pro-Trump result.
The court is looking for another Bill Barr.
James E Powell
@Goku (aka Amerikan Baka):
Carried over from an earlier thread:
Care to make a little wager?
JoyceH
I’ll admit I’m surprised at the ruling. I always underestimate how little self-esteem the Trump judges have. Siding with a request that’s legal gibberish publicly brands her a dirty judge and bought off.
But the upshot ought to be interesting. If past is prologue, Trump is going to interpret this ruling as complete vindication (“the judge said I did nothing wrong, the documents were perfect, fire the FBI…”) and then come out with some damaging admission/confession to criminality just out of the blue (“good thing they didn’t check the towel cabinet in the pool cabana, the documents in there have Putin’s fingerprints on them.”)
Joseph Patrick Lurker
WG,
By “Obama Bros”, are you specifically referring to Tommy Vietor and Jon Lovett? Do you have a link to the podcast to which you referred?
hueyplong
You’re citing to the wrong commentator. Go with Bradley Moss instead of Popehat.
raven
Carlo Graziani
From the order:
So, they have to agree on a list of candidate SMs, and at least that means that DOJ can limit her freedom to appoint some Federalist Society hack. That’s something.
Coming to agreement on schedule and limitations by Friday is going to be interesting, though.
dm
I agree on the “not a big deal”, but I’m not a lawyer.
The Special Master will say: these notes to his lawyer dated after 20 Jan 2021 aren’t Presidential Records (even if on stolen White House stationery), and can’t be used in any investigation. These stolen materials, on the other hand, are fair game for us as evidence. Especially the ones with classified markings.
Hopefully the Special Master and minions will handle the classified materials with gloves, so they can still be finger-printed.
It won’t change anything because Justice had already brought in a taint team to avoid the possibility of contaminating their investigation with attorney-client privileged materials.
Well, precedent, I suppose.
PPCLI
The specific ruling is troubling, but what’s more troubling still is the sense that we will be seeing an avalanche of such blatantly lawless Federalist Society Trump-judge rulings over the next few years, upheld by the activist 11-th circuit and shadow docket reaffirmed by the SCOTUS. I worry we’ll look back on this as just one more step toward the vanishing of the rule of law.
Mustang Bobby
The law studies I’ve undertaken have been at the behest of Perry Mason and Jack McCoy, but my first thought is that this will slow things down but not end it, and when Trump and the gang gets indicted they can’t complain that they got railroaded, even though they will. A snow fence doesn’t stop a blizzard.
Bill Arnold
@James E Powell:
Maybe. State your terms.
Scout211
@hueyplong:
Bradley P Moss Twitter
JoyceH
I would love it if the appeals court overturned the ruling with one sentence – “request filed in wrong jurisdiction”.
patrick II
Marcy Wheeler makes the interesting observation that none of Trumps non-classified trophy material that was mingled in with the classified documents was dated after November November 2020. Marcy speculates, with some evidence, that Trump’s filing system was putting whatever he had read into a box to be carried away when finished and filled. So, boxes from November and December of 2020, and January of 2021 may still be missing. The FBI is probably right about missing material.
JoyceH
@JoyceH: adding to my last – which is what this judge should have said in the first place.
Bill
DOJ has probable cause to arrest. If they want to get this done they can prep walk him today. Every delay is a win for tfg.
James E Powell
@Bill Arnold:
I guess the first part is defining “gets away with it” – I say does no time, pays no fine.
The stakes should be mostly symbolic. For my wagers, bragging rights are more important than the stakes. I don’t want anyone – especially me – to suffer economic loss.
Goku (aka Amerikan Baka)
@hueyplong:
Why?
@James E Powell:
No thanks. I’m not much of a betting man
Anonymous At Work
Almost Retired
Omnes said it more succinctly, but with the federal judiciary at the District Court level, it’s “another day, another thoroughly appealable crackpot decision.” Don’t panic yet.
Here in Los Angeles, when I practice in state court, I don’t worry much about crazy decisions at the Superior Court level. Maybe it’s because our last Republican governor didn’t appoint many crazies, maybe it’s because the Judges face potential election challenges, maybe it’s because they want to appear moderate because they envision a lucrative post-retirement career as a $1,000 per hour neutral-for-hire (or “rent-a-Judge” to be less charitable).
Federal Court is a whole different animal, at least in my experience. The Judges appointed are often far more ideological and, recently, woefully inexperienced as part of the Republican effort to pack the Court with young ‘uns who will bedevil us for 40 years or more. Plus, they have a position for life, and seem to become more imperious the longer they are on the bench.
Crazy-ass rulings from the bench in my employment discrimination cases in federal court were basically the norm. And more often than not, it was fully or partially fixed on appeal. Whenever I was assigned to the late, great (OK, not great but finally late) Judge Manny Real, I simply told the client to expect an appeal.
That being said, I’m practicing in the 9th Circuit, not the 11th. However, appellate courts love to scrutinize a district court decision into oblivion if it raises significant issues (“We shall decide this at our loftier level, you peon.”) So even in the 11th, I wouldn’t expect a rubber stamp.
As Baud and Omnes said, I’m waiting for the appellate court to speak before I return to the District Court decision to determine the appropriate freak out level.
And, btw, am I glad I’m almost done with this legal bullshit!!!
James E Powell
@Bill:
The history of prosecutions of rich & well-known people says the exact opposite. Slow & steady wins these races.
Brachiator
I enjoy and hopefully learn from the legal opinions here.
Trump enjoys any delays he can get. He has unleashed his inner rage monster and feeds on his rallies. This gives him maximum opportunity to get his lies before the public. He is also trying to work the midterms.
A question. Does it matter that Trump has never formally asserted ownership of these documents or explain why he has kept them?
Also, does it matter that Trump has never clarified which of his staffers has had regular access to these documents?
Has Trump confirmed that he still has any documents that he has not returned to the government? Has he given any documents away?
If Trump were to be taken into custody, would his Secret Service detail go to jail with him?
Quantumman
I do not comment often but I feel a need to here. This really concerns me. This keeps alive Trumps possibility of slithering out of this illegal keeping of classified documents. The more stuff like this keeps happening the probability he escapes increases. If he escapes I see him emerging more powerful than before to his followers. He keeps creeping towards being above the law.
Another Scott
I’m NAL and don’t pretend to be one.
But I have a very vague recollection of some infamous case years ago where one judge was initially in charge of the case then some second judge in another court somehow got involved and then the first judge said – hey, not so fast, this is my case – and somehow shut it down. (Sorry, I don’t remember anything specific about it.)
Could something like that happen here with Magistrate Judge Bruce Reinhart in the U.S. District Court for the Southern District of Florida? Isn’t it clear that Aileen Cannon shouldn’t have gotten involved in the first place? Is that a way to get Cannon out of the case without an appeal to the 11th Circuit?
Thanks.
Cheers,
Scott.
(“Who is aware that there’s almost never One Weird Trick, but it sometimes seems to happen when the law is involved.”)
Carlo Graziani
@Goku (aka Amerikan Baka): Betting stakes on BJ should be posting favorite recipe for crow, together with pictures of finished dish.
gene108
@Damien:
I like it. I hadn’t thought about not appealing.
The chances this ruling gets seconded upon appeal by more Federalist Society sociopaths does exist. The old rules no longer apply. We’re in uncharted legal territory.
Anonymous At Work
@Brachiator: Answering in sequence:
prostratedragon
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,”
Christ what bullshit!
H.E.Wolf
In the spirit of John Cole’s post, I’m spending no time on Judge Cannon’s ruling – my project for today is updating a small portion of the zillion-address-changes list that I’m doing for the local Blue team. The wrist braces I use for data entry projects are the same that I used for sword-and-shield class, so I feel Very Powerful. :)
I figure every update I do, is a person who’s that much more likely to be reached by a field organizer in their region (instead of the region they used to live in).
Meanwhile, Electoral-Vote blog (consisting of two very level-headed writers) is fond of pointing out that a week is a long time in politics. Things may look different, and better, by next Monday.
gene108
@Balconesfault:
I’d put it at 50/50.
WaterGirl
@Joseph Patrick Lurker: Yes, I am referring to the Pod Save America guys.
I listened to two or three of their podcasts last night on the same general subject, but I’m pretty sure the one I was referring to was Jon F. and Dan which would make it the one from Thursday night.
kindness
Do I trust this Supreme Court to not go absolutely into the tank for Trump? No, they positively will. MoscowMitch really screwed us over loading up the Federal benches with trolls.
WaterGirl
@hueyplong: To clarify, are you suggesting that Bradley Moss is a better resource for this stuff than Popehat?
James E Powell
@PPCLI:
We’ve already seen quite a few important ones, starting with Bush v Gore. But up to now, voters have not considered the supreme court to be very important
As of August 8th, President Joe appointed 74 judges & one justice!!! Elections matter and the next one is #@$%^!!! critical.
Goku (aka Amerikan Baka)
@kindness:
As mentioned before, the SCOTUS ruled against him earlier this year on executive privilege grounds
WaterGirl
@hueyplong:
JaneE
I hope the DOJ makes as much of their litigation public as they possibly can without jeopardizing prosecution or national security. Every additional piece of documentation about Trump’s actions, whether criminal, careless of national security, or just plain narcissistic or stupid gets more play in the press and chips away at the voters who are pro-Trump but not zealots. Not everyone who believes Trump’s lies can deny the evidence they see, over and over again, and more damning every time.
“Whatever you think about Trump the truth is always worse” is both a meme and a fact.
gene108
@JoyceH:
Low self-esteem? On the contrary, this was a flash of brash cockiness. She just lit up the “Bat Signal” to say, “Leonard Leo, I’m ready for my SCOTUS nomination!”
Anonymous At Work
@Goku (aka Amerikan Baka): All of the Justices are politicians at some level. They’ll want to steer clear of Trump on a personal and political level, even it limits Alito and Gorsuch et alia’s desire for an Executive Branch with all the powers of a dictator.
hueyplong
@WaterGirl: Yes, because of one of Popehat’s points and my own subjective POV.
I have reached my limit of instances in which an obscene Free Pass For Trump Only can be stomached as “not that big of a deal.”
It’s merely for delay, alright, but delay is all he seeks. When you know what Trump’s team plausibly asked for and for which they supplied even arguable support, this result is just outrageous.
I’m starting to lose my faith in the integrity of a system in which I am supposedly a part. That will either piss you off or depress you and I guess I’m in the anger stage.
MazeDancer
Apparently, Judge Cannon is ambitious.
There was discussion with Neal Katyal and Bradley Moss about how her Special Master decision would hinge, not on law, but on whether she wanted to make The Federalist Society short list for SCOTUS.
She gave Trump everything.
No doubt DoJ is prepared.
livewyre
@Quantumman: When events turn this way, I can see the temptation to read power into it, maybe even in the form of disembodied will. Some folks just seem to make things happen their way. But stopping there is its own hazard.
This is where causality comes in, which is the secret power in favor of law (i.e. consensus, i.e. us). Even a thoroughly corrupt ideologue has to keep up appearances in order to sound reasonable and keep, say, elections from turning on the backlash from a rogue decision. That presents an unavoidable vulnerability – a chance for the truth to get its boots on. And the opposition to law has gotten sloppy and complacent without rules to keep time by.
It may sound odd in light of the above, but our best move in this forum may be to keep faith in the DoJ – not because of anyone there being particularly special, or even because of the virtue of any particular law, but because they are operating in favor of law as a principle. They stand for our democratic consensus. There may not be much for us to do to support them in their capacity as an executive agency, but giving in to (well-funded) fear and public confusion only gets in their way. Let’s do otherwise.
jackmac
This is so tiresome and depressing. The fix is in for this a**hole at almost every level. And if any appeal gets a far as the Supreme Court, you just know how they’ll rule. He continues to skate past troubles without any accountability.
Eunicecycle
@Anonymous At Work: as long as a Republican is President, right?
Another Scott
@jackmac: As JC said downstairs, all we can control is our reaction to things.
Remember that TFG lost all of his election challenges.
We aren’t doomed.
Hang in there.
Cheers,
Scott.
zhena gogolia
@MazeDancer: As soon as I looked at her picture, I knew she would give TFG everything.
jonas
@prostratedragon: Shorter judge Cannon: “The government’s actions have the potential to hurt the plaintiff’s feelings…”
That’s a kind of jurisprudence…
Bill
@James E Powell: well he’s 76 years old now. How much time have you got ?
New Deal democrat
I put this in the last thread, but it is on point here.
On Saturday I wrote:
https://balloon-juice.com/2022/09/03/two-long-reads-from-lawfare-both-are-worth-your-time/#comment-8610431
“Two things jump out from the hearing summary:
1. This judge really, *really* wants to appoint a special master.
2. This judge really, *really* wants that special master’s authority to include issues of executive privilege.
“….
“… I see her issuing a broad order, including executive privilege, and under a rubric of “extraordinary circumstances” and “equitable jurisdiction,” essentially placing herself in the role of “supervising judge” overseeing anything having to do with this search warrant. She will have to avoid relying on the PRA; avoid enjoining the government from taking certain actions (because that’s appealable); and finding that this case is sui generis for purposes of avoiding Nixon as controlling precedent.”
This morning Judge Cannon granted Trump’s request and ordered the appointment of a special master to review questions over the materials seized at Mar-a-Lago. She also halted the use of the materials for “criminal investigative purposes” pending the special master’s review.
She wrote:
“Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, the Plaintiff’s Motion is Granted in Part….
“The Court takes into account the undeniably unprecedented nature of the search of a prior President’s office…”
“The Court is not convinced that similar concerns with respect to executive privilege should be disregarded ….”
Thus concludes this installment of my mind-reading services.
——
There is some discussion in legal Twitter about the fact that the Judge did not give any parameters as to how the special master could determine if “executive privilege” applies. Hint: there are none that could apply.
Trump will now claim executive privilege as to *all the documents, and refuse to budge. This creates an issue that could be litigated for a full year or two.
Also, by not delineating any specific standards the judge is ultimately reserving the issue to herself under her “supervisory authority.” This will also create a huge morass of issues, that could take several years to untangle.
in the meantime, so long as her restraining order on the DoJ is in effect, they can’t prosecute him for anything having to do with these records.
no doubt, just as she intended.
Chief Oshkosh
@Baud: You laugh now, but some lads get the rod. Dark Brandon looked you over, he’s given you the eye, and he’s sending the goon squad.
Baud
@Another Scott:
I’m doomed, but for completely unrelated reasons.
While DOJ does their thing, tomorrow is the official celebration of the IRA and Wednesday, the Obamaa come back to the White House.
Chief Oshkosh
@PPCLI: Yep. Each one of these “special” rulings moves us further from accountability (for Republican thugs, anyway).
M31
about ‘protecting national security secrets’ — is there any reason to think that all of these documents aren’t already in the hands of foreign agents? I’d assume that the CIA/NSA/etc. agencies are treating all the intel in those docs as blown already (I mean, if they aren’t they’re really stupid)
so are these secrets really important as secrets? Not that we shouldn’t punish the guilty, but is the world worse off if these secrets were actually public?
Baud
@M31:
Can’t prove a negative.
Sure Lurkalot
My hope is that the DOJ and IC have already connected dots beyond our imagination (or perhaps more appropriately, darkest fears) and incriminations drip out from yesterday to that day when that fucking asshole croaks and beyond. I will never ever understand the deference, love and adoration given to such a sick fuck. Makes me wish I could change species.
Anonymous At Work
@Eunicecycle: Mostly but until they create Trump or DeathSantis as the American Orban, they’ll hold back. Can’t reveal their hand before the game is fully fixed.
jackmac
@Another Scott: Thanks Scott for your reassurance. My initial reaction was ‘no, not again.’ But there are other avenues that could nail TFG (the 1/6 committee and investigations in Georgia and New York). And, delightfully, this Trumper judge is forever tainted by her brown nose ruling.
Chief Oshkosh
@James E Powell: Do you have a list of such? I’m not certain there are a lot of examples that support this claim.
Also, weren’t you arguing in other posts in this thread that Trump will not due time or even pay a fine? Trump’s always gotten away with it by delaying, by outlasting those pursuing justice.
Another Scott
@M31: Someone made the point here a day or so ago that good intelligence agencies don’t trust anyone – not even themselves. The point isn’t that the information will destroy the world if it gets out. The point is that they recognize that all information will eventually get out – either through “leaks” or espionage or normal declassification decades later. The point of having national secrets is to control when the information is released and making sure that if it is valuable to an enemy that it stays out of their hands as long as possible (within the law and applicable rules).
So, yes, national security is damaged if TFG let important secrets get out. (Remember that just because something is published in the FTFNYT doesn’t mean that it’s declassified. The rules matter.)
And the broader principle that there is a legal process for controlling and releasing information that must be followed – even by the crybaby narcissist TFG. Precedent matters.
My $0.02.
Cheers,
Scott.
New Deal democrat
@Bill: “DOJ has probable cause to arrest. If they want to get this done they can prep walk him today.”
If the DoJ planned on making use of any of the seized documents in their case, as I read the judge’s stay order, they would be barred from arresting him.
E.TA.: on another point, Armando has been right, that the practicing lawyers who have seen relying on the majesty of the law have been wrong:
https://twitter.com/MarcACaputo/status/1566832086195081216?cxt=HHwWgMC8heTewL4rAAAA
Lacuna Synecdoche
Chris Geidner via Watergirl @ Top:
This is the part that really pisses me off. Anyone want to explain how a former president can assert executive privilege against the current administration? There’s only one president at a time, and right now that president is Joe Biden – not Donald Fucking Trump.
I mean, granting review for executive privilege legitimizes the spurious and ridiculous concept that a former president can withhold government documents, including classified materials and national defense information, from the current administration.
Think about the consequences of that. For instance, just as starting point, it would mean a former president could withhold information vital to national security from the current president, who may urgently need that information to defend the country, but now has to waste time – weeks, months, years (?) – proving it in a federal court to a judge appointed by, and ideologically aligned with, his corrupt predecessor?
It’s fucking ridiculous.
featheredsprite
I have read that DOJ tries to not pursue some targets within 60 days of an election. We are in that 60 day period. DOJ has the proof and have undoubtedly read it all. Maybe they didn’t strongly object.
Having a Master putzing around shouldn’t impede the investigation.
WaterGirl
@gene108: Perhaps sense of personal shame or public humiliation works better.
prostratedragon
@Lacuna Synecdoche: Isn’t there explicit law about how executive privilege claims are to be judged, and hasn’t that law already been fulfilled?
Bill
@James E Powell: like ken lay for instance, dead before DOJ could get him sentenced. Oh well.
Another Scott
@featheredsprite:
Made me look. Lawfare (from 2020):
LIfe – and the law – is complicated.
See the original for embedded links.
I am sure that Garland will follow any guidance closely, but I’m also sure that he will make sure that everyone – no matter their status – is subject to the same laws as the rest of us.
FWIW.
Cheers,
Scott.
UncleEbeneezer
Dorothy A. Winsor
@WaterGirl: Maybe self-respect rather than self-esteem.
Anonymous At Work
A couple of things:
oldgold
Here is someone as outraged as I am over this corrupt ruling.
@NormOrnstein
”An outrageous usurpation of power and threat to the rule of law. She has violated her oath of office and the judicial code of ethics. All to protect her benefactor. She ought to be impeached and removed from office.”
Bill Arnold
@gene108:
That is true. She’s betting her future on Red.
From her Judiciary Committee disclosure form, she declared that she was a financial tabula rasa , at least prior to confirmation. (Don’t know how usual this is. Retyped by me because the pdf is images.)
Lacuna Synecdoche
featheredsprite:
Garland can exercise that discretion in an overabundance of caution, but I don’t see why it would be necessary in Trump’s case. The next presidential election isn’t until 11/2024, more than two years away, and Trump hasn’t even announced his candidacy yet.
I think Garland would be well within his rights, and within historical norms, if he continued investigations or even brought charges before this year’s mid-term election.
It’s not like a presidential election is 10 days away – which, it should be noted, didn’t stop Comey from announcing an investigation into Hillary Clinton 10 days before the 2016 presidential election.
Damien
I feel like we’re going to need a law school Flexner report, because there has come a rot from within. Every sitting and prospective judge should get an inspection of every aspect of their lives that makes a colonoscopy feel like a thermometer, with every little piece of it publicly available.
While I’m at it I’d like a pony
Martin
Biden should lean into this. The WH should, given the judge’s ruling that executive privilege is on the table, demand that the Special Master turn over all documents to the WH counsel (Stuart Delery) so he can determine if these WH documents can be evaluated by the FBI (obviously yes, since they are part of the executive branch).
As yet, nobody has explained to me how you assert executive privilege against the executive branch, or how a private citizen can assert executive privilege or how a judge or agent of a judge can assert executive privilege. But if the judge wants to put it on the table, then Biden should take it with both hands.
Ben Cisco🎖️🖥️♦️👌🏽
Every advantage to the Orange Oaf, and then take a hammer to his junk.
So long as that’s how it plays out, I’m good with it.
Martin
@oldgold: I agree she should be impeached. This ruling is completely nonsensical.
oldgold
@Martin: In my opinion, it is beyond nonsense. It is corrupt.
Martin
@prostratedragon: Not exactly. But more to the point – executive privilege is something that the WH legal counsel/President asserts. Only they can assert it. And it’s an assertion that the executive branch retains some rights from the *other branches*. So the only executive privilege that can be asserted here is that the WH says that *Congress* or the *courts* may not evaluate these documents, not that the FBI (part of the executive branch) cannot.
It makes no sense at all. At the very heart of it is the fact that in order for a document to be subject to executive privilege, it needs to be the property of the executive branch – which means that it’s been stolen by Trump. Executive privilege is *proof* these are stolen. By virtue of it being stolen goods, Trump would have no rights to them whatsoever.
There is a fair evaluation for atty/client privilege, but only for documents that are Trumps private property, and not government property. That’s fair game.
O. Felix Culpa
If the issue with the documents is Executive Privilege, isn’t Joe Biden the current Executive? And as such, couldn’t he just waive privilege, as he has on other occasions? I don’t recall that privilege resides in ex-presidents.
Bill Arnold
@New Deal democrat:
Are you quoting something? She writes:
“…the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. …”
This wording, unless she’s clarified it, blocks the FBI’s use of the materials for their counter intelligence investigation, which is mostly what this investigation into an extremely illegal classified documents trove at Mar-a-Lago is about.
This part of the order is not an out; it appears to cover damage assessment, not the counterintelligence investigation (though please correct me if I’m wrong):
James E Powell
@Chief Oshkosh:
@Bill:
I do not have a list, but people with money – and in this case a lot of political support in the judiciary – can make any small omission by the prosecution into an outcome determinative issue. The prosecution needs to make sure every i is dotted, every t crossed, every bullshit objection prepared for. And even with all that, I still say no time, no fine.
What I think is at stake is not just the preservation of Trump. I think his downfall will reveal things the Republicans do not want made public.
My favorite conspiracy theory that has no evidence is that Ken Lay is still alive. Or maybe that he was murdered by the Bush crime family to keep him from turning state’s.
James E Powell
@Lacuna Synecdoche:
But we all agree what Comey did was wrong and we do not want our people to do wrong things.
Scout211
Judge Cannon said in court that she didn’t think it was that cut and dry (or similar wording). However, see my comment at #6 above. Appellate court and SCOTUS have already ruled against Trump earlier this year regarding his presidential records and his claim of executive privilege after leaving office.
IANAL, but I would be highly surprised if Cannon didn’t know of that previous ruling. But she is now just trying to make it seem less definitive in order to seek this delay, for Trump.
Baud
@James E Powell:
I’m not convinced all of “us” do not want that.
WaterGirl
@Dorothy A. Winsor: Yes, self-respect!
You have such a way with words, you should think about being a writer! :-)
New Deal democrat
@Bill Arnold: It’s actually the opposite: the government can continue to review the documents as part of any counterintelligence operation or assessment, but can’t do anything with them to further any prosecution, until the special master review is complete (which she has structured in a way to allow for years of litigation).
Sc0tt
@Balconesfault: good point- seems quite likely
Wapiti
@James E Powell:
Republicans will not accept any special master who is not a pro-Trump Republican and they will not accept any result that is not a pro-Trump result.
The court is looking for another Bill Barr.
One wonders: are Obama’s credentials as a lawyer up to date? He’d probably be able to be cleared for the classified stuff pretty quickly.
New Deal democrat
@Bill Arnold: in further response, go to p. 23 of the Court’s ruling, paragraph 2 of the conclusion.
Unfortunately I can’t copy and paste from the document, but it specifically states that the stay is for “criminal investigation” purposes. She specifically exempts the OSDI from the stay.
@Bill Arnold:
Bill Arnold
@New Deal democrat:
The usual term in the US appears to be “Counterintelligence Investigation”, with “Counterintelligence Operation” the Soviet term.
At any rate, she says “investigative purposes”, not “criminal investigative purposes”. IMO she is trying to block investigation of potential distribution of US classified material to enemies of the USA, perhaps because her benefactor who put her on the bench is involved.
catclub
The cambodian secret bombing was not secret to the Cambodians, but it had to be kept secret from the US public. For reasons.
dm
@Another Scott: I’m kind-of glad this decision came down today, in time for Preet and Joyce Vance to discuss it tomorrow on they podcast (assuming they weren’t planning to take the week off).
karen marie
@Xenos: I don’t understand, if/given jurisdiction is an issue, why that wasn’t addressed in the first response by the DOJ. Doesn’t not addressing that at the outset concede jurisdiction?
JPL
@zhena gogolia: I just saw her pictures and she gave him all they requested and more.
On appeal, it should be overturned, but nothing is certain with trumpettes on the court.
scary
prostratedragon
@New Deal democrat: and if the intel people want to make a criminal referral from their examination? (Not really asking you, just wondering how on earth this judge thinks things would go.)
karen marie
I’m sorry, what?
I’m going to guess that you believe lie detectors are an accurate gauge of a subject’s truthfulness.
See page 3 of the pdf, page 433 of the text.
Bill Arnold
@New Deal democrat:
Unfortunately, it does not. It says “investigative purposes”, unadorned, quite clearly. It talks about “criminal investigation” elsewhere, but not in the parts that are the order.
And the ODNI is not tasked the counter intelligence investigations, AFAIK (they may do some). it is a different part of the government:
Different parts of the governement?
The FBI’s Counterintelligence Program
ODNI
James E Powell
@catclub:
Obligatory Doonesbury.
James E Powell
@karen marie:
Subject matter jurisdiction cannot be conceded.
MisterForkbeard
@Damien: The part of this that bothers me is:
1) The judge knowingly and explicitly (she even says so!) overruling precedent and law to give Trump a break “for the appearance of fairness”
2) That the entire conservative (and MSM) mediasphere will claim Trump is vindicated and the DOJ is over their skis. This is basically what happened with the Mueller Report, too. And it’ll have a similar (but not as bad) effect, where huge parts of the populace will just decide that Trump is innocent.
jimmiraybob
I wonder if Hillary or Obama maintain enough clearances to step in as Special Master. Now, that would be special.
Dorothy A. Winsor
@jimmiraybob: Perhaps Cannon will let Trump give security clearances to whoever he chooses.
I’m only half kidding.
Brachiator
There is a YouTube channel, MeidasTouch, that gives a brief 20 minute analysis of the judge’s decision. It appears to be reasonable, but I am not certain about the host’s legal credentials.
But some may be interested. He highlighted text from the actual ruling, cited previous cases. But I know that a mere appearance of competence does not always pan out
I thik that both sides have until September 9 to recommend a special master.
Let the delay begin.
UncleEbeneezer
jimmiraybob
@Dorothy A. Winsor: His only obvious choice would be for him – Trump – to be Special Master. He is the chosen…… I mean, only one.
Another Scott
@karen marie: The state of the art may have advanced a little since 1937. ;-)
Wiley.com (from 2018):
I don’t know if they would use any of those techniques, or anything else, to try to lift fingerprints from the MaL papers. But one has to assume that anything (like fingerprint oil and sweat) that touches the paper will change it and those changes can be measured and quantified (given enough time and effort). E.g. Burnt 2000 year old scrolls can be “read”.
Thanks.
Cheers,
Scott.
karen marie
@Lacuna Synecdoche: Trump believes he has the right to keep hidden from Biden and any future president papers created during his administration. He “retruthed” last week a claim that the reason for the “raid” is that Biden wanted to see the papers related to Trump’s decision to pull out of the Iran nuclear agreement.
burnspbesq
Kurt Eichenwald went ballistic on Twitter, and I fully agree with him. The order disregards reams of dead-on-point case law. It’s hard for me to imagin DOJ not filing a notice of appeal and motion for stay by COB today, holiday or not.
https://twitter.com/kurteichenwald/status/1566835323417645056?s=21&t=A8-xkEeg8HcX3AyA0AI05A
burnspbesq
@karen marie:
Jurisdiction can never be waived. Appellate courts can raise it sua sponte even if neither party raises it.
New Deal democrat
@Bill Arnold:
“Accordingly, it is hereby ordered and adjudged as follows:
“1….
“2. The government is temporarily enjoined from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this Court. The government may continue to review and use the materials used for intelligence classification and national security assessments.”
Have a nice Labor Day.
New Deal democrat
@prostratedragon: “and if the intel people want to make a criminal referral from their examination?”
Then that will be another source of lengthy litigation (just as the judge wants).
prostratedragon
@burnspbesq:
But how does Eichenwald really feel?
(Hoo boy, am I ever with him.)
karen marie
@Another Scott: I am familiar with modern fingerprint techniques. I don’t think you read the section I pointed to. Modern techniques don’t help if there’s nothing there to find. “Impressions may be lost after a few days.”
This is trial testimony of a fingerprint analyst for the Boston Police Department in a case tried two months ago:
You can’t find what’s been obliterated by handling or time, or was never there in a useful form in the first place.
Damien
@MisterForkbeard: This is, to me, the most pressing problem with Republicans: their total rejection of rule of law, precedent, and stare decisis as concepts that shape the actions of the world we live in. The very notion that an ex-President would have some remaining grasp on the high office would spin the framers of the Constitution so fast in their graves they’d challenge Newtonian physics. And to not only overrule precedent but precedent that had been reaffirmed LAST FUCKING YEAR in the idea of “fairness” is so bonkers I think Judge Cannon needs a CAT scan.
These people don’t like being bound to the same laws as the rest of us, but by rejecting that binding they unsettle the foundations of peace in this country with every single blatantly corrupt move like this. I genuinely do not understand the concept that law is just a plaything; these are the kind of people who would have dismissed the criminal complaint against Aaron Burr just because he was sitting VP.
Idiots
Another Scott
I’ve been a little surprised that nycsouthpaw has been so quiet today. Maybe he’s doing a lot of reading. He did post this though:
It is very disconcerting that such an obviously incorrect ruling, which she never should have gotten involved in in the first place, has us questioning our own lying eyes and the plain meaning of words (“They’re not his documents – they belong to the United States! The law is clear!!1” “He has no executive privilege – it belongs to the office. A/C privilege is not the same as EP!!1”) and wondering whether the 11th Circuit will seriously just close their eyes and go Leeroy Jenkins along with her and expect the rest of us will just sigh and say oh well, waddayagonnado??
[ Bluto ] Did we give up when the Germans bombed Pearl Harbor??! No! Activist Judges! Activist Judges! Activist Judges!! [ /Bluto ]
Grr…,
Scott.
(“Yeah, it needs some work. But throwing Activist Judges in their faces is so appealing…”)
Bill Arnold
@New Deal democrat:
Tx for pushing back on my mild rudeness, for which I apologize. I learned that my PDF viewer does not handle line breaks in search strings, ugh.
It is still not clear that counter intelligence investigation using the materials is not blocked by the order.
Another Scott
@karen marie: We’re talking past each other, I think.
There’s a difference between being able to detect something and something not being there. Techniques for detection are improving all the time. Whether the thing detected is good enough for a positive ID is a valid question, but that’s not what I was addressing.
ScienceDirect.com:
I would assume the federal crime labs are more likely to have advanced fingerprinting techniques in-house (and access to state-of-the-art external techniques) than local PDs. (Yes, there are too many examples of crime labs making stuff up.)
Thanks.
Cheers,
Scott.
Felanius Kootea
@Another Scott:
What are the steps that can be taken in the US to penalize and root out corruption within the judiciary? Is there anything anyone can do legally if this judge and others like her simply rule in favor of right wing benefactors when it suits them?
With Trump having appointed roughly 100 Federalist Society judges, how do people who still believe in the rule of law address attempts to “dismantle the administrative state” through the judiciary?
Geminid
@dm: I don’t know why the FBI wouldn’t have checked the fingerprints on these documents already. Maybe they haven’t. But it seems like they would want to establish who handled them, and had no reason to put this off.
Bill Arnold
@burnspbesq:
Here’s the threaderapp unroll for those who avoid twitter:
https://threadreaderapp.com/thread/1566835323417645056.html
Scout211
This seems clear to me, but IANAL or part of the intelligence community.
Here is an easier to read pdf. version
On page 24 of 24
Bill Arnold
@Scout211:
Yes, but that does not, if I understand the language, cover allowing counterintelligence investigation.
Scout211
Deleted. Misunderstood the comment I was responding to: Investigation vs. review.
way2blue
My *guess* is that Trump’s goal is to slow down the process in hopes that a R Congress will find a way to shut it down entirely. Or at least drag it out long enough to become moot.
Harraman
@prostratedragon: The offenses are in a league of their own as well, which should trump the delay occasioned by the use of a third party review of all documents. Burden should be on Trump to ID documents of concern and the Judge sort it out. Certainly unequal treatment here. But can see why DOJ just might live with the decision as long as Judge builds a fire under the SM.
Warblewarble
Is today the day lenard Leo became President?
Elie
It is clear to me that the Trumpites are not going to follow rules of any kind. What does that mean for trying to get justice or anything else to save our democracy? I don’t know but we had better start getting our methods for dealing with this. I have no intention of just giving in to this stuff. We cannot give up and must just keep looping ropes of justice and due process over and over. Are there precedents in history for this? For righteous people to defeat lawlessness when the momentum so favors the lawless?
Another Scott
@Felanius Kootea: IANAL. I assume that it’s the same as always:
If a federal judge breaks the law, they risk indictment, trial, conviction, etc. Some federal judges have been removed that way.
Judges can be reversed, told to try again, etc., on appeal.
Judges can be impeached by Congress, tried, and removed. That’s happened a few times too.
There are no short-cuts.
There are still checks and balances, but they take time. And they depend on the 3 branches keeping their oaths and doing their jobs. Things get hinky when the courts become overt political actors, when the Congress lets the POTUS do whatever s/he wants, when the POTUS ignores the law.
That’s why, of course, we have to vote every election as if democracy and the rule of law is on the line – because it is.
My $0.02.
Cheers,
Scott.
Another Scott
@Bill Arnold: IANAL.
It’s my understanding that she risks getting slapped down hard if she tries to insert herself in a counter-intelligence investigation. That’s not her place, and she knows it.
She’s saying, as I understand it, that the 9000+ stolen US Government documents that don’t have security markings cannot be used in a prosecution until the SM looks over them. She’s not going to block access to the few dozen/hundred (!!!) documents with classification markings that are subject to the CI investigation.
It’s still a ridiculous situation that she’s decided to wallow in. But she’s not fighting the serious national security implications of what was found.
I think she’s trying to find a way to say that sure it’s totally normal for a FPOTUS to take anything he wants cause he’s special, but oopsie, maybe he should have had better bookkeeping and returned the classified stuff sooner. NARA has it all now, so no harm no foul, and anyway he’s special so we can’t punish him…
I don’t think that’s going to work, but we’ll see.
My $0.02.
Cheers,
Scott.
Another Scott
via nycsouthpaw:
I don’t see a reply that gives a strong answer to that question. Other than, roughly, “she has jurisdiction until she’s told by a higher court that she doesn’t…”
:-/
Cheers,
Scott.
Bobby Thomson
With all due respect to PopeHat, Neal Katyal shredded the judge’s opinion in a few paragraphs
Another Scott
@Bobby Thomson: Thanks for the pointer.
This seems to be the start of the thread:
(via Popehat ;-)
Cheers,
Scott.
Bill
The order isn’t as broad as some seem to suggest. It says no investigative purposes, not no prosecutorial purposes. So perhaps that includes grand jury. DOJ can still drive on over, put the guy in handcuffs, drag his sorry butt to jail, charge him by an information with several serious felonies, make him post bail, and if he wants a probable cause hearing he should have one, then let the trial judge sort it out. If Judge Cannon complains the DOJ can say their “investigation” was done weeks ago.
Crimson Pimpernel
@Bill Arnold: Demolishing future white collar criminal investigations would probably be a plus for an undetermined number of Federalist Society members and clients.