When the Justice Department filed its opposition to a Special Master, there were a number of elements that immediately stood out. The first that I noted was the most important: the allegation that the FBI believed that Trump or his associates “likely” acted to obstruct their investigation. Such public statements are always serious in a criminal case because they can commit investigators to the path of prosecution. I also later noted the curious inclusion of the now widely known photo of classified files that has been widely published. I warned that the photo could leave a misleading impression that this was how the documents were found by the FBI, which has occurred. I then asked why it was included as Attachment F. At best, it seems superfluous. At worst, it could be staging. That debate is now raging on cable programs and the Internet. Update: the photo came up in the hearing after the Trump counsel called it “perfectly staged” but there was no ruling on the Special Master.
As I mentioned earlier, the photo was entirely unnecessary. The attachment is referenced only once in noting that documents had covers with classified markings. That point has not been disputed and the court hardly needs a picture of these documents to establish the point.
Then there is the picture itself. I immediately flagged the danger of people misreading the photo because the photo did not state whether this was a picture of how the documents were found as opposed to placed by agents. That fear was quickly proved valid as various people assumed that Trump or his staff had left classified material strewn across the floor.
Putting aside that anticipated confusion, there remains the motive in the inclusion of the photo. Since I fail to see the need for this single photo, I have said that it appeared included for public consumption. Some on the left have insisted that it is “ludicrous” to suggest such a motive despite a series of leaks from the government as the Justice Department was in court demanding absolute secrecy.
The only textual reference is found on page 13 and simply says
“Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).”
Other basic facts in the filing did not seem to warrant such photo support. Yet, the reason for the concern is not simply because the photo was superfluous. It was also the photo itself. The documents were laid out for the photo and evidence marker with a box that prominently featured Trump’s collection of framed Time magazine covers. (Trump was previously ridiculed for his hanging of faux Time covers in his resort).
It is possible that the FBI was showing that these files were intermixed in that box with the framed Time covers. If so, that is an appropriate combination if it is being used not to show the covers as cited in the text but to show the commingling of documents raised in other parts of the filing. We simply do not know.
It is, also, entirely possible that the placement of the documents next to these Time covers was not intentional. However, a great number of photos were taken of the scene from individual documents to boxes to the storage room. Of all of those documents, the Justice Department selected this photo even though some of the covers had to be redacted. This was the only photo that the Justice Department wanted released into the public docket.
When combined with the leaks from the government, there is a reasonable concern that the photo was included not for the court but for public consumption to help frame the public debate. It is striking to see so many pundits on the left expressing shock that we should doubt that claims or representations of the government, particularly after the documented history of bias and false statements by Department officials in related Trump investigations.
In the end, this is not nearly as important as the affirmative statement that agents believed that obstructive conduct had occurred. Yet, with the objections to the leaks from the government, such concerns are magnified when the Justice Department is resisting the release of any information from its prior filings. That control of the framing of the public record is a huge advantage that the government has used in prior cases.
284 thoughts on “FBI Faces Criticism Over Release of Photo of Classified Documents on Floor”
Anonymous the Stupid self-deleted so he has an excuse to complain. He said: “Blah, blah, blah…”
I don’t know why he thought it was blah blah because I was speaking to John and thanking him for clarifying the stupidity of ATS. It was very helpful so in thanking John I said: ““What is the purpose of the National Archivist ? Is it their job to preserve the historical record of the United States ? Or is it their job to serve as an investigatory arm of the current administration?”
Anonymous the Stupid is such an ignorant putz.
In related news …
“Within a week of the FBI search of former President Donald Trump’s Mar-a-Lago resort, former White House chief of staff Mark Meadows handed over texts and emails to the National Archives that he had not previously turned over from his time in the administration, sources familiar with the matter tell CNN. Meadows’ submission to the Archives was part of a request for all electronic communications covered under the Presidential Records Act. The Archives had become aware earlier this year it did not have everything from Meadows after seeing what he had turned over to the House select committee investigating January 6, 2021. …”
So what ?
Do you honestly think there is a single Chief of Staff that did not take records with them ?
Regardless, this is a mistake on DOJ/FBI/NARA/WH.
Any records turned over are subject to FOIA requests.
I know those of you on the left think that if you can just know absolutely everything that you will finally be able to “get Trump”
It is amazing how difficult learning is for some people.
Mueller and his illegal gang of angry democrats anally probed Trump and people, and cam up with nothing – except more anger for not bagging a great white whale.
The left thinks everyone successful outside of government is a crook and every democrat successful inside is an angel. The odds tend to work the other way. Private sector success generally requires aggressively persuing self interest. But it also requires acting with trust. People do not do business twice with those they can not trust.
For those in government – trust is irrelevant, they have power, often exclusive power. You MUST work with them whether they are honest or not.
As lord Acton said – power corrupts. Look at someone who has never worked out of govenrment and the only question is how corrupt they are. Look at someone in business who is successful, and you have found someone who can be trusted.
The left has hounded Trump and associates for 6 years now and come up empty handed.
At some point an intelligent person would grasp there is nothing there.
I would point out that Nikki Haley is suing the NY AG’s office. They got tax records from the IRS and they leaked them. That is a federal crime.
Trump has fought vigorously to protect his tax records. Not because he is guilty of anything. But because those in govenrment are not trustworthy, and fighting ensures the spotlight will be on them.
“So what ?”
It’s more evidence that Meadows acted contrary to the PRA, and it suggests (with some uncertainty), that the MaL search prompted Meadows to finally obey the law and turn over presidential records that should be with NARA.
“Any records turned over are subject to FOIA requests.”
Depends on whether they’re classified or restricted on some other basis, but unless they are, the public is supposed to be able to access government records.
“… those of you on the left think …”
Don’t pretend to read my mind. It makes you look foolish.
What is the purpose of the National Archivist ?
Is it their job to preserve the historical record of the United States ?
Or is it their job to serve as an investigatory arm of the current administration ?
Biden’s Reichstag speech accused those on the right of violating our laws and norms.
But inarguably it is the democrats who violate norms.
We constantly get into legal debates where those ont he left seek to transform some law into something far outside of its intents.
This all puportedly started as a disagreement over who is responsible for the whitehouse papers of the prior president.
I say purportedly – because the NORM is that changes of administrations are chaotic. There is no time to sort between the personal, and official records – not to mention the fact that the WH is unique within the federal government in that there are THREE catagories of records – the personal, the official and the political.
We are NOT witnessing the weaponizaton of the PRA. We are witnessing the weaponization of the entire federal govenrment for political purposes.
We are witnessing the conduct the left FEARED Trump would engage in. What was most disturbing about Biden’s litany of the sins of MAGA republicans, is that he was attacking his own conduct and attributing it to Republicans.
Republicans fear the conduct of Democrats – because increasingly they DO destroy the norms and mores of society.
Democrats fear that Republicans will do as they do. And that fear is likely justified.
Turn about is fair play.
The courts long ago determined properly that the PRA is not a weapon – political or criminal.
For all of US history, new administrations did not investigate prior administrations – nor did the ever investigate incoming administrations.
Both those norms were violated by Democrats, the left.
Increasingly what we see is the politics of power, of destruction, of lawlessness.
“What is the purpose of the National Archivist ?
Is it their job to preserve the historical record of the United States ?
Or is it their job to serve as an investigatory arm of the current administration “
John, you have greatly simplified the argument I am having with ATS. Thank you. The PRA was not meant to be an investigatory arm. ATS cites many things that do not pertain and to answer him means a tedious game of word play by him and then continuous appeals to authority. Add that to his lies and deception and one gets a mess.
Thanks again. In three lines you cleared my head. Unfortunately the DOJ doesn’t use common sense and doesn’t care about truth. The Biden administration will drive the country into the dirt.
The PRA was ALSO not meant to gather from the prior administration all records (and copies) of everything from that administration – not merely as an investigative tool for DOJ/FBI but also as a means of preventing that from becoming public.
NARA as an example has ONE of the copies of the declarataion of independence,
It has ONE of the copies of the constitution.
Many of these were made. NARA has not gone out using the PRA and demanded that every privately held copy of the declaration or constitution must be turned over to the national archives.
The national archives is empowered and obligated to keep A record of the primary sources of US history as it happens.
It is not empowered to keep ALL records of american history as it happens.
Very few documents in all of government today are originals. The originals exist on computers,
No one took the computers with them as they left the white house.
It is likely that every document that Trump currently possesses is a copy not an original.
And that NARA already has every single one of them – probably on computer.
There is potentially a legitimate dispute over a small number of “originals” – aparently Trump kept a signed copy of the Stone pardon – even there – as those things goes – there are nearly certainly – as with the declaration of independnece a few dozen “originals” – and Trump is as entitled to one as Stone is and any of the other people who receive “origninals” of the various documents signed by presidents.
NARA does not exist to confiscate from everyone all of US history.
It exists to make certain that there is ONE complete copy of everythin in the national archives.
NOT to make sure that no one else has their own copies of things that they care about – includijng presidents and cheifs of staff.
From the start the NARA angle of this has been BOGUS – an OBVIOUS pretext.
While there is a legitimate fight over what is personal (and political) and govenrment,
Under no circumstances was NARA or the PRA envisioned as the sole custodian of ALL of the records of US history.
Primarily the PRA exists to help presidents protect the massive records generated because some presidents can not afford to preserve tens of millions of documents.
The PRA only makes NARA the temporary custodian of those documents – eventually those go to the presidents library. Which is owned by the president or a foundation he creates and operated privately – though with help by NARA – particularly regarding classified documents.
There have been very few disputes over the ownership of presidential documents before – because NARA has never presumed before that they were ITS property.
The left wing nuts here who keep claiming this is all govenrment property are INCORRECT.
NARA’s custody is mostly temporary. NARA is never more than a custodian – FOR THE EX-PRESIDENT,
They are not the OWNER.
The claim is constantly that Trump is deviating from the norms.
Mostly that is NOT true.
It is True that Trump likely PERSONALLY retained things in his PERSONAL posession that Obama did not.
Because Rightly Trump did not trust NARA or Biden, or DOJ or FBI or the WH.
And they are proving his lack of trust to be justified.
But the real violation of Norms is by govenrment.
The only PRA fight was by JW trying to get NARA to recover Clinton documents in order to make them public.
And JW lost. NARA is not there to confiscate documents from anyone.
It is a tool for presidents to protect their documents when they do not have the personal resources to do so.
NARA also exists to make PUBLIC the records of the US govenrment.
NARA has a very important and well defined role in handling classified documents.
NARA is the only agency that handles classified documents that can not classify anything.
But it can DECLASSIFY. Though there are so many exceptions that we still can not declassify the JFK documents – despite more than one presidential EO, NARA is directed to declassify most documents within 5 years. and some within 25 years.
NARA’s role is to make things PUBLIC
The Biden admin is using NARA to HIDE things.
It is very important to remember the purposes of agencies and laws.
When you are trying to figure out who is violating norms – it is not the word play over laws that informs us.
It is the actual purpose of the PRA or NARA that tell us who is outside the norms
The reason for Judge ABJ’s decisions is that the PRA is not really about Ownership – everything ends up in the presidential library eventually anyway which is publicly accessible but privately owned and mostly privately operated.
Trump could win most of his fight with NARA by completing his presidential library tomorow.
In theory he could designate MAL as a presidential library and NARA would likely have to deliver everything to it.
That would be stupid. But it would be within the law.
ABJ’s decision is close to perfectly on point here – it is about whether NARA has the authority under PRA to seize anything – and the answer was unequivocally NO.
The PRA makes NARA custodian. PResidents are still owners.
I want to expand on what I have been writing to address Meadows.
I suspect under the current circumstances he is just trying to duck a high profile court battle and capitulating.
But there are actually similar circumstances with those of Trump.
If we ignore actual classified documents,
Does anyone think that those in the WH and govenrment do not keep some evidence of their accomplishments ?
The argument that everything is government property is ludicrously stupid.
If meadows receives an email from Netenyahu praising him for work on some negotiation – and that letter is not classified – can Meadows print it our and take a copy home with him ?
The Role of NARA is to make sure that nothing is LOST.
It is not to assure that no one else has copies of what they participated in accomplishing during an administration.
Nor is this some secret. Every single “official” signing has dozens of pens and many copies of the documents.
Pens used are handed out to everyone – NARA does not confiscate them all.
A few of the many originals even go to people instrumental in passing some law or treaty or negotiation.
NARA is responsible to have AN official document not ALL official documents.
We have never seen anything like this before – because no one previously misunderstood the role of NARA or the PRA so badly as to do anything this stupid.
It is not surprising this nonsense came from the left.
Benito Musolini – Fascism: Everything in the state, nothing outside the state, nothing against the state.
That is not Trump or any republicans.
But that is a head of the National Archives that thinks that all power over documents belongs to him, through the state.
“nothing outside the state”.
“nothing against the state”
How can the Archivist preserve the records (plural) when some of them aren’t turned over?
And like everyone else in the country, the Archivist is supposed to obey legal subpoenas.
“How can the Archivist preserve the records (plural) when some of them aren’t turned over?”
Really, what does this statement even mean ?
Are you saying that the national archives must retrieve from every possible source every single copy of every record ?
Are you saying that no one in government is permitted to print a glowing letter or something they are proud of to take home with them without risking the wrath of the archivist ?
As I noted before is the Archivist required to go out and retreive every extant copy of the constitution or declaration of indepence ? Or those copies not in the national archives all criminal ?
“And like everyone else in the country, the Archivist is supposed to obey legal subpoenas.”
Whether a subpeona is legal is a decision for a court.
Whether a subpeona has been obeyed is a decision of a court.
I have issued many subpeona’s – often for records that I already had just to prove that the other party had those records. Nearly always I KNOW that the other party did not fully comply.
I have to decide if I am going to ask the court to press the other party harder or let it slide.
What I can not do, is go to the local police and demand that a search warrant be issued.
You are wrong about the PRA – but honestly I do not care.
If you wish to use the National Archives as a weapon – Fine, turn about is fair play.
I am near certain that Biden is the only president ever to waive executive priviledge for a prior president.
That will be the norm in the future.
Trump may not have ended his rhetorical attacks on Clinton after the election – but the Trump administration left Clinton alone, they left Obama alone.
Was DOJ/FBI under Trump targeting the DNC ? Was it targeting Obama, Rice ? Did Trump have the FBI investigate Uranium One or the Clinton foundation ? Did they look into Clinton or Obama’s book deals ? Their real estate deals ?
Did NARA send people to Obama’s or Biden, or Pleoufe’s home to root arround and search for documents ? Or any other member of the Obama administration ?
The is plenty of misconduct – possibly even criminal of the Obama administration to investigate.
Yet that did not happen.
But Biden and his staff have actively sought that.
And in 2025 the Republican administration that is near certain will be investigating the Biden administration.
Those of you on the left are convinced that Trump and his supporters are evil and crooked – and yet, you have investigated the schiff out of them and found nothing.
And STILL you are sure the next document will be the smoking gun.
Somewhere in Melania’s intimates is the proof that Trump is the most evil crook that has ever lived.
You do not live in the real world. You live in a fantasy world where what you beleive is must be true. Whether it makes sense or not.
The laws do not work as you keep trying to force them to. They were obviously not intended for the purposes that you try to use them for.
But in the end it does not matter.
The courts will likely shoot all this down. But if they do not, you will still not come up with your smoking gun, because it does not exist.
In the end those who live by the sword, die by the sword.
If you change all the rules, all the norms and mores, if you transform the law into something it is not,
Those will be the rules when you are not in power.
And you do not grasp that.
I do not pretend to read you mind.
You constantly say what you think.
And I did listen to Biden’s Reichstag Speech
If you d not want to be accused of thinking things – do not say them.
Please revise my comments and change THINK to SAY or DO.
I do not pretend to know your minds. I do not think YOU know your minds.
But your words and acts speak for themselves.
Well, we are definitely in the “Show me the man and I will fund the crime” zone here. This is not about justice. It’s about revenge.