In another defeat for the Justice Department, a federal court has ordered not just the appointment of a Special Master but halted the use of the seized Mar-a-Lago documents by prosecutors until the legal status of these documents is established (The ongoing intelligence security review of classified material can continue). As with the compelled release of a redacted affidavit, the Justice Department seriously overplayed its hand (as it did in earlier filings) in claiming that an appointment would undermine national security and making extreme, unestablished legal arguments. The ruling by U.S. District Judge Aileen Cannon will not necessarily change the ultimate trajectory of the case but it will force critical reviews and rulings on issues from attorney-client privilege to executive privilege.
For weeks, I have been writing about both the value of an appointment of a Special Master to reassure many in the public of an independent review and to address unresolved and difficult questions over these documents. While brushed aside by many legal experts, the prosecution of Donald Trump would require courts to address some long-unresolved questions.
The appointment and review will cause delay but it was unlikely that the prosecutors would bring charges until after the midterm election anyway due to the long-standing policy.
The order also does not halt the criminal investigation, only the use of the documents. Prosecutors can still interview witnesses on what was known to be the content of boxes, what steps were taken to allegedly move or conceal material, and other issues critical to establishing crimes of obstruction.
Many faculty on the left continue the curious objections to a court seeking review of the FBI or not accepting its overbroad claims of authority. It is a bizarre shift that we have seen in other Trump investigations where liberals suddenly express shock that a court would countermand sweeping national security claims or seek to review the Justice Department’s review of material for privilege. It does not matter that there appears to have been mistakes by the taint team and that privileged material (as well as an assortment of private material from medical records to tax records) were seized.
The same breathless coverage followed the order that we have seen in prior Trump-related matters. AEI’s Neil Ornstein suggested that Judge Cannon is now engaged in obstruction by simply ordering a third-party review. The over-wrought response to this order is par for the course over the last six years.
Harvard Professor Laurence Tribe (who recently said that Trump could clearly be charged with the attempted murder of former Vice President Michael Pence) declared that an order to appoint a special master to review the documents is analogous to the Dred Scott decision as an abuse of judicial power.
Others have impugned Judge Cannon’s integrity and dismissed her as a “Trump judge.” Ironically, many of these same experts denounced Trump for such attacks on “Obama judges” when they ruled against him.
Most are dismissing the order as utterly without legal merit. Stephen I. Vladeck, a law professor at University of Texas and CNN contributor, expressed outrage at “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation.” (Vladeck was one of the experts who previously supported an array of criminal allegations against Trump and pushed a false claim related to the clearing of Lafayette Park). While it is admittedly less common to use a special master in a criminal case, it is not “unprecedented” for a court to conduct in camera reviews of seized material. In this case, the court wants to use a special master to perform that function. Moreover, special masters are commonly appointed in the federal courts in an array of cases where judges need assistance in creating a record for a ruling on motions.
Keep in mind that The Justice Department itself recognizes that it may have gathered some attorney-client privileged documents in this ridiculously broad search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency. Judge Cannon notes that the Justice Department’s own taint team missed privileged material and rejects the government’s assurance that it still caught the errors (emphasis added below):
“Counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review.“
Notably, Judge Cannon also rejected the blanket denial of possible executive privilege arguments by the Justice Department and correctly notes that the assertion of some privilege by a former president remains unresolved in controlling precedent.
The Justice Department may appeal the decision. Special masters are routinely appointed as an extension of the authority of the court to help create a record upon which the judge can rule. It is not common to see this type of review at this stage but this is hardly your common criminal case given the intersecting constitutional and attorney-client privilege claims. Such appointments are generally left to the discretion of the trial court by appellate courts.
Yet, that does not mean that appellate judges might not tailor the order (or even block it entirely). That would not surprise me any more than a decision upholding the authority of Judge Cannon to appoint special master. There are good-faith arguments against executive privilege claims and other issues. For example, appellate judges could question the scope of the bar on the use of the documents. They could loosen the ruling to allow the use of some documents with classification markings or require threshold determinations to free up such material.
However, the appointment of a special master in my view was the right thing to do. It was unfortunately another step that Attorney General Merrick Garland could have taken but refused to do so. Garland has had at least four opportunities to take modest steps to assure the public on the department’s motives and means in this controversy.
You can read Cannon’s full order here.
As always, whenever JT is over the legally-principled target, he receives flak from the Leftist hacks.
Of course in the interest of equal justice, appointing a special master is the right thing to do. It’s not as though the FBI/DOJ have instilled confidence over the last 6 years that they will not violate the rights of a defendant to manufacture a prosecutable case. They alone are responsible for building that reputation and it would be utterly idiotic to leave the sifting through of evidence to a so called Taint Team organized within an agency proven to be seriously tainted.
the speech Biden gave in Philadelphia sounds more persussive in the original German. He likely plagiarized it just like “Doktur” Jill plagiarized her “dokturit”
🤡
JT was nowhere near the legally principled target. He missed it by a good ten miles.
No content.
JT was nowhere near the legally principled target. He missed it by a good ten miles.
LOL! Well, of course he wasn’t over the legally principled target. He is however dropping his legally-principled truth bombs on your position..
Thank you for walking into that trap. Well done!
Olly,
As I have mentioned before, they seem desperate, shrill even.
I agree UF. If they actually had an airtight case, it wouldn’t matter that a special master was appointed. Notice that these American Marxists can’t make a case that the current regime is doing anything good for our country. Instead, the regime has mounted a disinformation campaign against their political enemies and it’s backfiring spectacularly.
“If they actually had an airtight case, it wouldn’t matter that a special master was appointed.”
They might have an airtight case. Why do you think they opposed the appointment of a special master? I was trump who was demanding one because he KNOWS he is going to be indicted.
All within the state, nothing outside the state, nothing against the state.
–
Benito MussoliniJoseph Biden – Democrats – Liberal News OutletsBenito Mussolini was born on July 29, 1883 in north central Italy. In 1902 he moved to Switzerland to find work and became involved in socialist politics. When he returned to Italy in 1904, it was as a journalist for a socialist press which was no coincidence. Fascism was the goal all along.
“ The appointment and review will cause delay but it was unlikely that the prosecutors would bring charges until after the midterm election anyway due to the long-standing policy.”
That’s only Turley’s opinion. The DOJ has not always adhered to that policy. Trump is not a candidate and he is not the focus of the election.
What if prosecutors do bring charges before the election? If the DOJ has evidence beyond reasonable doubt they will have to file charges regardless of the policy.
The DOJ said that it’s still at the early stages of the investigation. It also tries to avoid acting during the 60 days before an election in a way that affects a candidate (not relevant here) OR a political party (possibly relevant here). There’s no reason to expect any charges before the election, even if there were no Special Master review.
“If the DOJ has evidence beyond reasonable doubt they will have to file charges regardless of the policy.”
No, nothing requires them to file charges before the election.
The DOJ has a history of not always following that policy. I would be surprised if they did file charges against Trump before the election.
What would happen if they did? Republicans? Democrats? Currently republicans are no longer certain to win any sizable majorities in either house.
I am still waiting for the post where JT acknowledges that Trump stealing highly classified and documents is a serious federal crime. I think I will be waiting a very long time.
I am still waiting for evidence Trump did not declassify the documents. You know prove the crime.
The documents were marked classified, if they were de-classified they would have different markings. Also Trump declassifying very sensitive documents just so he can take them home demonstrates an absolute disregard for national security.
The documents were marked classified, if they were de-classified they would have different markings.
WRONG (still)
Trump was busy declassifying documents for the last three months of his term in office. He followed the protocol Sending a request to the originating agency for declassification. Those agencies responded with heavily redacted documents. President Trump sent the documents back, and ordered the document bear no redactions. As time ran out the President declassified the copy he had markings in tact and took it with him.
“He followed the protocol Sending a request to the originating agency for declassification.”
Prove it.
prove he didn’t. that is how it works
No, the person who made the claim is the one with the burden of proof. Shifting the burden to someone else to disprove it is a fallacy: https://iep.utm.edu/fallacy/#MisplacedBurden
The alleged crimes don’t depend on whether the documents were classified. The warrant sought documents with classification markings, and it found many that Trump had not turned over, despite his having been subpoenaed for them.
and it found many that Trump had not turned over, despite his having been subpoenaed for them
The President does not have to give the govt his personal papers he separated from the papers given by the President to the National Archives.
Per the PRA, they are not his personal papers. Even Trump isn’t asserting that they’re his personal papers. In fact, his assertions of executive privilege for some of them prove that they belong to the Executive Branch.
What are you talking about. The President has rights to the papers and the archivist has a job to preserve history and provide documents to the government.
Can you tell us what you are trying, but failing to say? Calling actions criminal doesn’t help in anyone’s understanding of your point.
Dear Sammy, ‘JT’ does not deal in Lies You are asking him to lie re: Pres. Trump ‘stealing’ docs…… so you will be waiting not just ‘a very long time…’ but Forever. If you can possibly look outside the MSNBC storyline, Pres. Trump never stole documents per his enemies’ Frame-up. .
Well he is probably waiting for evidence. Only evidence so far is marked empty folders which is likely not a crime.
So a newby unqualified judge whom Team Trump selected to appoint to the bench and then forum-shopped to get this case before has ruled that the FBI (led by a Trump-appointed director) needs to avoid the appearance of bias AGAINST Trump by delaying this thing until a Trump-approved Special Master is appointed to gum up the investigation. And ignoring all precedent to do so.
Nope, Justice is not blind. All criminal defendants should get a judge they appointed to decide their case.
The appointment of a Special Master was the right thing to do. DOJ cries foul. They do not want anyone looking at the stuff??? they took, trust us???????????????? sure??? Lets see if the y appeal, they will lose but also it may be costly, perhaps the appeal courts will give Trump more wins. Appeal all the way to the Supreme Court, C, Thomas is the Supreme Coourt Judge overseeing Atlanta/florida, perhaps they will take it up and rule against the DOJ in such away DOJ can’t do anything. Also, Biden Admin has a poor track record with their appeals since they use the Left Wing crazy ideas of the radical left so called legal experts.
How do you think the process works for every other subject of an FBI search?
Chuckiechan’s 9:31 comment hits home. But for the “fruits of the poisonous tree” exclusion of DOJ evidence pursuant to a finding of illegal scope of search (unlikely), all the information DOJ hoped to glean from its efforts has already been gained.
If, in fact, Trump is found to have willfully concealed documents, in my mind, the only reason would be either (1) they were exculpatory (in his mind) in defending against all the accusations against him, or (2) they reflected (in his mind) the collusive and unrelenting effort to politically destroy him.
He must have believed that they would mysteriously disappear if he did not keep or make copies of them.
And indeed, neither he nor we will ever know if all the documents that DOJ seized were acknowledged or listed..
His comment is one big assumption. What matters is that Trump illegal took government records to his home. He already asserted to the FBI in June that he gave back everything. When it turned out not to be true. Trump and his team obliterated any sense of trust. The FBI had no reason to trust anything Trump claimed after that. The search confirmed the reason not to trust anything Trump claims.
The bigger question now is about those empty folders marked classified? Did he lose them? Misplace them? Gave them to someone? Sold them? Since Trump has already made it clear to the DOJ his claims cannot be taken at face value there is a bigger problem for Trump than that of the DOJ allegedly “copying and hiding” what was privileged.
Trump will still have to answer questions about what was in those empty folders.
Svelaz: We are to believe that Chuckiechan only makes “assumptions,” Prof. Turley expresses “shoddy opinions,” and YOUR comments are worthy of our time? You should thank me for the time it takes to read yours. Several others don’t/won’t.
Lin,
“ Obviously, the FBI already has by now copied and hidden what was privileged in order to build another phony revenge case against Trump.”
“Obviously” as in, readily proven, he claims the FBI copied and hid what was privileged. Obviously he has provided zero proof of this “obvious” action by the FBI.
I’m just pointing out the “obvious” that his assumption is just an assumption, unless he provides some sort of proof of how “obvious” it is that the FBI indeed copied and his privileged documents. My comments are just that, comments. Just like yours.
Svelaz: please don’t open your response to me by quoting someone else (chuckiechan). Please attribute your quote to the maker/speaker. You know better than that.
What matters is that Trump illegal took government records to his home.
The President is well inside his legal rights to take personal documents with him
He took Presidential Records, which are owned by the government.
Time magazine covers?
He took Presidential Records, which are owned by the government.
You have yet to provide the Authority by which the National Archivist has nonrenewable power to tell the President he cannot declare ANY document personal.
The PRC is a civil law, with no penalties.
Trump isn’t the President. The Archivist has the power to tell the former President because it was signed into law by both Congress and the Executive.
Do you know or understand the law. It doesn’t seem so.
What have I got wrong concerning the PRC?
The PRC is administered by the Executive Branch. What little power it has, is delegated from the President.
Evidence does not support PRC claims
Evidence does no exist to claim any information at MAL is classified
Iowan2, Trump took government records home mixed in with his personal records. It’s still illegal to take government records home. The search warrant proved he did indeed steal government records.
DEAR iIOWAN2… your ‘What matters…’ really only matters to you, and to others like Sammy, Anonymous (the one I’ve seen others refer to as ‘Anonymous The Stupid…’ ), Natacha,et al…It is a blinded world-view.. It appears there is an unconditional acceptance of the pumped out storylines against DT,,,, Many of us have seen that this Lying (beg. with the Steele Dossier, just keeps snow-balling….
Obviously, the FBI already has by now copied and hidden what was privileged in order to build another phony revenge case against Trump. It is what they do. They play the “squeeze for justice” game until people plead guilty to walking on water. The only “Law and Order” left in the USA is in TV reruns.
“Obviously,” you’re assuming facts not in evidence.
For a law professor, Turley regularly avoids focusing on the legal details.
Contrast his response with the shorter response of law professor Orin Kerr that starts to dig in on the legal issues:
I know it’s un-Twitter-like to ask a genuine Q, not try to score points, but a Q. I understand how a court can enjoin further execution of a warrant. But does a federal court have authority to enjoin executive branch “use” of seized materials for “investigative purposes”?
The warrant is a court order, so executing it is a judicial issue (putting aside, at least for now, that this was another court’s order). But this seems to be an order to enjoin the investigation *after* the warrant was executed.
…
Some cases:
“Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.” Deaver v. Seymour, 822 F.2d 66 (DC Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin govt from indicting plaintiff).
https://scholar.google.com/scholar_case?case=2356063336897097753&q=822+F.2d+66&hl=en&as_sdt=2006
[excerpt from that case]
Lots of good citations in this recent district court case, to the effect that federal courts lack the power in a civil action to enjoin the executive branch from prosecuting a criminal case. The case is McPhee v. United States, 2021 WL 5014815 (SDNY 2021).
[excerpt from that case]
Similar, from Ali v. United States, 2012 WL 4103867 (WDNY 2012).
[ditto]
Ok, so it seems like a federal court in a civil action lacks the power to enjoin a federal prosecution. To my mind, that raises a lot of questions. Judge Cannon has tried to enjoin “use” of the seized materials “for investigative purposes.” First, is indicting Trump “use”?
Second, if a federal court lacks power to stop the executive branch from prosecuting a case, can it have power to stop the executive branch from investigating a case to see if a prosecution is appropriate? (I would think they go together– both core executive branch functions.)
To my mind, this is one of the weirdest parts of Judge Cannon’s order. Appointing a special master is very odd here. But the bigger deal is enjoining “use” of the seized materials that were already searched, for further “investigative purposes” (whatever that means).
In the context of a contraband case, where proving the case is all about using the seized items, that injunction amounts to a judicial takeover of the executive branch’s investigation. I don’t see how a federal judge has the power to do that.
I take the judge’s view to be that she has to control the executive branch’s investigation to stop it from potentially violating Trump’s rights. But under our system of separated powers, that has to be dealt with ex post, not through an injunction. LA v. Lyons, 461 US 95 (1983).
https://twitter.com/OrinKerr/status/1566858604644143104
Now that’s a legal analysis. Turley clearly isn’t going to delve into legal analysis since his primary focus is to disseminate the Fox News narrative. Also Turley has so far ignored former AG William Barr’s criticism of Trump’s lawyers poor legal reasoning.
Actually, Turley went to great lengths to explain how the order was NOT an injunction against the investigation. So, without getting into the weeds, he distinguished and dispensed with this popular “lawfare” objection to the order.
Where did he address that?
You apparently do not understand that the the DOJ has items from at least 3 sources: the tranche that NARA took in early 2022, the items that were turned over by Corcoran in June of 2022, and these items that were taken in the August, 2022 search. Judge Cannon’s ruling only applies to the 3rd, and she very explicitly said “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 … The Government may continue to review and use the materials seized for purposes of intelligence classification and national security assessments” (emphasis added). The first sentence is what Prof. Kerr was discussing and what Turley has not addressed the legality of.
Kerr is a conservative law professor, and his discussion was not an example of “lawfare.”
This whole thing is undeniably lawfare. Don’t fool yourself. A beef over possession of presidential/personal records and whether the president dotted every bureaucratic “i” and crossed every deep state “t” to de-classify evidence of IC malfeasance, and now we are back to constructing an obstruction charge where the underlying conduct was probably not criminal. That my friend, is lawfare.
As to the “legal” argument, the authorities cited by Professor Kerr said a Court could not enjoin an investigation — an entire investigation, or a prosecution — an entire prosecution.
Turley, above: “The order also does not halt the criminal investigation, only the use of the documents. Prosecutors can still interview witnesses on what was known to be the content of boxes, what steps were taken to allegedly move or conceal material, and other issues critical to establishing crimes of obstruction.”
And as you correctly pointed out, the DOJ has seized three groups of documents. The DOJ is not enjoined from continuing its investigation or prosecuting anyone. It is only enjoined from using the group of documents seized under the warrant.
So, the district court is not enjoining an investigation or prosecution, it merely exercising its jurisdiction over the execution of a judicial warrant.
IMHO, Professor Kerr knows the difference, but he made a disingenuous argument that does not hold water under scrutiny and its only apparent purpose was to arm keyboard warriors in comment sections.
“the authorities cited by Professor Kerr Professor Kerr said a Court could not enjoin an investigation — an entire investigation, or a prosecution — an entire prosecution.”
You don’t quote them saying that. Please specify what part of the rulings you’re referring to.
“[The DOJ] is only enjoined from using the group of documents seized under the warrant.”
Correct. But Kerr argues that that’s inconsistent with precedent, and you haven’t quoted any ruling to the contrary.
“the district court is not enjoining an investigation”
It’s enjoining the use of these materials in their investigation, which is what Kerr was addressing the legality of.
Don’t be pedantic. I told you what the authorities say, and it is the same thing that Professor Kerr says they say. A Court should not enjoin a criminal prosecution. If you don’t accept my (and Prof. Kerr’s) summary of those cases, you are free to read them yourself. I’m not doing your homework. However to quote the good professor, “Ok, so it seems like a federal court in a civil action lacks the power to enjoin a federal prosecution.” “Seems” is kinda squirrelly. So he is not even sure of his underlying premise. Then he takes that squirrelly authority that “may” stand for that limited proposition and wishcasts that it prevents a court’s from doing anything to prevent not only a prosecution but even an investigation that might lead to a prosecution. That’s called poor lawyering. It is a looser’s argument. It’s wrong. A court has inherent jurisdiction to regulate the execution of a judicial warrant. This is a silly argument by a silly lawyer grasping at straws.
But does a federal court have authority to enjoin executive branch “use” of seized materials for “investigative purposes”?
The seized material should not have been seized. Medical records, business accounting records, medical records, media media clippings, Clothes. Just a short list of things taken under an unconstitutional general warrant. Plus personal records from the Presidents term in office.
Is it just me or do others share my skepticism with regard to the use of government “taint teams?” Who on this earth believes that the other side in any legal dispute can be trusted to make fair and impartial judgments with regard to the permissibility of access to your documents or other belongings? Would the government allow defendants unfettered access to its documents as long as they employed a taint team? Even setting aside the widespread leaking of information by the government and the demonstrated political bias of the FBI and the DOJ, why would anyone trust any government?
It’s not just you. No lawyer worth his or her salt, and not wanting a malpractice lawsuit, would trust the other side in any lawsuit to make fair and impartial judgments with regard to the permissibility of access to their client’s documents seized by the other side, particularly when the other side is the government.
“ However, the appointment of a special master in my view was the right thing to do. It was unfortunately another step that Attorney General Merrick Garland could have taken but refused to do so.”
Turley who is supposedly a lawyer doesn’t seem to understand that it was Trump’s own lawyers who were supposed to ask for a special master, not Garland. Trump’s lawyers took too long to file the motion and that was after a laughably bad motion at first. The FBI already finished reviewing the documents and determined a scant fee were not related to the investigation and were promptly returned according to the law.
Judge Cannon’s justification for granting a special master was essentially that the FBI was too good at reviewing the documents. It won’t change the overall course of the case which is clearly trump facing felony charges.
The DOJ will likely appeal the ruling. If it doesn’t they will have a lot of leeway on negotiating who the special master will be.
If you read the order you will see that Trump’s lawyers asked for a special master informally very soon after the raid. The request was denied. They then filed their motion.
They could have filed their request with the court the same day as the search, just like Michael Cohen’s lawyers did.
“They could have filed their request with the court the same day as the search . . .”
Actually, they couldn’t.
Trump listed Nuclear Docs (Nuclear Docs!) on eBay. And the bidding didn’t expire until three days after the search. (There’s something in the eBay ToS that prohibits filing for a SM while items being auctioned might, somehow, be related to the underlying search.) According to the auction description, Trump had those Nuclear Docs (Nuclear Docs!) stuffed down his socks. (Apparently, the DOJ’s General Warrant wasn’t general enough.)
I was the winning bidder on three of those Nuclear Docs (Nuclear Docs!), and am open to offers. This is your chance to own a piece of history — of what is surely to “get Trump.” No, this time I mean it, really.
It seems like “asking” only comes through filings in court. What constituted asking anyway, a spokesman saying something on tv? The same people were suggesting planting of evidence and crying that Trump wasn’t home. Would he have preferred to have been dragged out in his pajamas with his hair undone? They should be thankful America was spared that sight.
Svelaz wrote, “Turley who is supposedly a lawyer doesn’t seem to understand that it was Trump’s own lawyers who were supposed to ask for a special master, not Garland.”
It comes as no big surprise that Turley’s point has blown completely over your head, the point is that Attorney General Merrick Garland COULD appoint an independent Special Master but he chose not to do so. Debating the choice made by the Attorney General is fair game whether you like it or not.
Svelaz wrote, “The DOJ will likely appeal the ruling.”
That would be very bad idea at this point. Doing so would throw another piece of propaganda out there to validate the claims that this whole fiasco is a witch hunt.
Witherspoon,
Garland had no obligation to appoint a special master. None. Turley’s opinion that he should have ignores the fact that it was Trump’s own lawyers who could have demanded a special master as soon as the FBI executed the search warrant. It took them two whole weeks after a laughably bad motion failed to articulate what they wanted from the Trump appointed judge.
Garland had agents and experts specifically cleared for handling and reviewing those documents already assembled for the task as per the law and rules set in the warrant.
Turley’s shoddy opinions on the legal aspects of the case have been ridiculed by real lawyers as shockingly amateurish. Maybe Turley is not as good as he portrays himself to be.
Svelaz: You state (on a daily, if not hourly basis), “Turley’s shoddy opinions on the legal aspects of the case have been ridiculed by real lawyers as shockingly amateurish. Maybe Turley is not as good as he portrays himself to be,” “Turley is a liar,” etc.
Perhaps you should move to a blog site more to your liking/approval.
lin, critiquing things that one believes to be erroneous is a wholly legit choice for a person to make. If you think that the only people who should be commenting here are those who agree with Turley’s views, then that’s a truly bizarre stance.
Anonymous/Svelaz:
The comment by Svelaz that I EXPRESSLY quoted (10:44 a.m.) is/was not “critiquing things that one believes to be erroneous.” It was a personal and immature attack on Turley. Your SUBSTANTIVE comments on the TOPIC of the post are welcome, and subject to criticism by others. THanks anyway
Lin,
“ Svelaz: You state (on a daily, if not hourly basis), “Turley’s shoddy opinions on the legal aspects of the case have been ridiculed by real lawyers as shockingly amateurish.”
You exaggerate too much. Criticism of Turley’s opinions is perfectly in line with Turley’s beliefs on free speech. If he’s going to issue opinions, including bad ones he shouldn’t be surprised, nobody should, that there are going to be disagreements and criticism or even ridicule.
Isn’t the whole point of the blog to have a debate or express criticism or disagreement?
Besides being in an echo chamber is not as appealing as being in a forum where controversial opinions or claims can be challenged or ridiculed with the impunity that freedom of speech provides. No?
Lin, I don’t understand this continuous barrage of derogatory statements against Turley. They are generally without content and erroneous. It is non-stop by this particular individual. I don’t think anyone would mind if they based their statements on legitimate facts. The Professor gave us a gift returned with spitefulness.
I am trying to figure out if the claims of others that he is a paid troll are valid. Turley is a Democrat who stands for the rule of law. Is their only way of canceling Turley’s voice through calling the man a liar when he works so hard trying to relate his unbiased truth?
S. Meyer, criticism is not derogatory. You do that on a daily basis on everyone who challenges your own claims or statements.
“ Is their only way of canceling Turley’s voice through calling the man a liar when he works so hard trying to relate his unbiased truth?”
Nobody is cancelling his voice by calling him a liar. He is still writing his opinions and columns. That’s never going to change. If I choose to call Turley a liar when he is lying it’s my prerogative to do so. If you are offended at the motion I suggest you find a safe space to avoid the discomfort of being offended. There’s always the option of ignoring me too. Just as I can ignore you too.
“criticism is not derogatory”
You are. You should understand where the word criticism applies. Challenges of fact and opinion with facts is perfectly fine. You are almost always absent of fact.
“Nobody is cancelling his voice by calling him a liar.”
You are trying to cancel out his voice by being contemptible. It doesn’t work, rather it demonstrates that leftists do not rely on fact or the truth.
“If I choose to call Turley a liar when he is lying it’s my prerogative to do so.”
Go right ahead. If a monkey could speak, I would give him that right also. The monkey would likely do a better job.
I am not offended, but since Turley doesn’t have the time or nature to answer such attacks, I will. I am not doing it in his place because that is not my job. I am doing it because I am grateful for what he offers.
Svelaz, you seem to think that you are entitled to critique Professor Turley’s legal analyses on a daily basis. Many readers of Res Ipsa are attorneys who appreciate Professor Turley’s efforts to bring his insights to readers. From my perspective, it is an unseemly pattern – the First Amendment notwithstanding.
“ Svelaz, you seem to think that you are entitled to critique Professor Turley’s legal analyses on a daily basis. ”
I AM entitled to criticize professor Turley. It’s the consequence of the professor’s right to express his opinion. This is a basic principle of freedom of speech.
“ Many readers of Res Ipsa are attorneys who appreciate Professor Turley’s efforts to bring his insights to readers.”
There are a few, and they are just as entitled to express their opinions or criticize Turley as I am. If Turley chooses to make flawed legal analysis on a daily basis there’s going to be daily criticism as well. Why is this so hard to grasp? It’s the entire point of the blog. Where ANYONE can voice their opinions, criticisms, agreements, ridicule, or mock Turley’s opinions or someone else posting.
People post gripes and criticisms of democrats, lefties, liberals, Marxists, etc on a daily or hourly basis. How is that any different than what I do? Freedom of speech is a double edged sword. People often forget that.
No one criticizes your free speech. They criticize your misuse of it. Keep it up as by now everyone is aware of your addled brain and inconsequential remarks.
“ No one criticizes your free speech. They criticize your misuse of it. Keep it up as by now everyone is aware of your addled brain and inconsequential remarks.”
But you do; example,
“ criticism is not derogatory”
You are. You should understand where the word criticism applies. Challenges of fact and opinion with facts is perfectly fine. You are almost always absent of fact.”
The irony couldn’t be more clear.
I’m not misusing it. I’m just exercising it just like you.
Criticism of JT’s views (legal or otherwise) on any time period basis is fair game. As for name calling, personal insults, and the like, I am not a fan of it in all cases — whether it’s directed at JT or other commenters.
Criticism is fine, but continuous insults without reason is not.
Svelaz wrote, “Garland had no obligation to appoint a special master. None.”
Now you’re just trolling again.
No one said the Attorney General had an obligation to appoint a special master. Could ≠ should ≠ obligation; you are extrapolating to absurdity what others have written.
Svelaz wrote, “Turley’s opinion that he should have ignores the fact that it was Trump’s own lawyers who could have demanded a special master as soon as the FBI executed the search warrant.”
Turley’s opinion ignores nothing and you’re a damn fool for saying he did.
Just because Trump’s lawyers could have asked (not demanded) for a special master doesn’t negate that the Attorney General should have appointed one before the raid took place, the Attorney General made a choice and it’s fair game to say that that choice was a bad choice.
You’re logic is a complete failure.
Svelaz wrote, “It took them two whole weeks after a laughably bad motion failed to articulate what they wanted from the Trump appointed judge.”
That’s completely irrelevant to the point that Truley made.
Witherspoon,
“ Just because Trump’s lawyers could have asked (not demanded) for a special master doesn’t negate that the Attorney General should have appointed one before the raid took place, the Attorney General made a choice and it’s fair game to say that that choice was a bad choice.”
If you are not disagreeing with the fact that Garland was not obligated to appoint a special master then there would be no reason why she should appoint one. Trump’s lawyers should have been the ones asking for one the day of the search. Garland shouldn’t have to compensate for the incompetence of Trump’s lawyers. Turley is putting the responsibility of appointing a special master on Garland without pointing out that Trump’s lawyers could have done it themselves. Turley is avoiding pinning accountability on Trump’s lawyers because they were already shown to be incompetent and inexperienced.
Turley’s claim that Garland should have appointed a special master wouldn’t dissuade any motions if transparency among Trump supporters. Trump’s supporters would have claimed that the special master is still appointed by a “corrupt DOJ” and it shouldn’t be trusted.
Trump’s lawyers had every opportunity to ask for a special master themselves. Turley ignores this simple fact just so he can focus on heaping the responsibility only on Garland instead of Trump who is supposed to have the best lawyers and advisers money can buy.
Svelaz wrote, “If you are not disagreeing with the fact that Garland was not obligated to appoint a special master then there would be no reason why she should appoint one.”
“No reason”?
Only an ignorant absolutist would write that kind of imbecilic nonsense.
Your claim is completely devoid of logic.
Try again if you dare.
“ Only an ignorant absolutist would write that kind of imbecilic nonsense.”
I wouldn’t be making that kind of accusation after witnessing your own ignorant absolutist claims regarding your “absolute fact” that the FBI committed a crime by photographing those classified documents they released to the public. It was embarrassingly humorous to watch a sharp witted marine mop you around the floor.
Garland had no reason to appoint a special master. That still didn’t negate the option of Trump’s lawyers asking for one. The problem being that they took too long after the search warrant was conducted and they filed a really bad motion requiring clarification was not Garland’s problem.
Turley’s suggestion that Garland could have appointed a special master to ensure transparency ignored the fact that it was Trump’s lying and insinuations of corruption that “necessitated” the appointment of one. Garland and the DOJ already knew trump was lying and obstructing the investigation. It’s Trump’s own fault that he is the one insinuating corruption to deflect from the fact that Trump clearly broke the law and he’s in real trouble. Garland is not obligated to play Trump’s game of delay and obfuscation.
Svelaz wrote, “I wouldn’t be making that kind of accusation after witnessing your own ignorant absolutist claims regarding your “absolute fact” that the FBI committed a crime by photographing those classified documents they released to the public. It was embarrassingly humorous to watch a sharp witted marine mop you around the floor.”
You know it bald faced lies like that one that prove to everyone around here that you’re an internet troll.
I did not, I repeat I DID NOT wrote that it was an absolute fact that the FBI committed a crime by photographing those classified documents, I said that it was an absolute fact that when I was instructed about the handling of Top Secret documents when I was in the military that it was ILLEGAL and a prosecutable offense to take photos of any document labeled Top Secret. If that rule has changed then sobeit, but is would not be logical that it would change.
If you’re too stupid to understand the difference in what I wrote before and what you just wrote then I can fix your kind of stupid.
FO!
Witherspoon,
“ I did not, I repeat I DID NOT wrote that it was an absolute fact that the FBI committed a crime by photographing those classified documents, I said that it was an absolute fact that when I was instructed about the handling of Top Secret documents when I was in the military that it was ILLEGAL and a prosecutable offense to take photos of any document labeled Top Secret.”
You were clearly insinuating it was a crime for the FBI to photograph those documents. And you immediately started to move the goalposts as soon as it became evident that you were basing your “absolute fact” on 25year old knowledge which obviously is outdated.
You didn’t know what you were talking about and you were clearly shown that was the case.
You just got mad because you got caught making claims about things you clearly didn’t know what you were talking about.
It was hilarious.
I’m not a Marine. USAF Cop 1982-2008. But thank you for the compliment.
Safeside, my apologies, it’s even funnier coming from an airman. Thanks for the laugh.
Safeside824,
Thank you for your many years of service.
Safeside824 wrote, “I’m not a Marine. USAF Cop 1982-2008.”
At least now I can reasonably understand why you wouldn’t share a foxhole with me. It’s a grunt thing not an Air Force Cop thing. 😉
Tell me you don’t know what Air Force Cops do, without telling me you don’t know what Air Force Cops do😘
“It won’t change the overall course of the case which is clearly trump facing felony charges.”
Do the lefties ever get sick of writing “the walls are closing in,” “this is it this time,” “orange jumpsuit,” blah blah blah
No.
Turley who is supposedly a lawyer doesn’t seem to understand that it was Trump’s own lawyers who were supposed to ask for a special master, not Garland.
Garland does not need a judges order to appoint a special master. Trump made the request to Garland the day after the armed raid. Garland refused to respond.
That’s incorrect. Only a court may appoint a special master. That individual acts as an officer of the court subject solely to the court’s instructions and grant of authority.
How many weeks have passed? How many copies and digital images have been made? At this point, does it matter?
How many copies and digital images have been made?
You put to rest the lie that the govt was forced to raid the Presidents home in order to retrieve documents the govt had to have.
Okay, be interesting to see what the Special Master finds in the documents.
Finally, something that resembles transparency.
Wonder how long this is going to take.
There won’t be much of a difference. No matter what the special master finds it will not change the fact that Trump illegally took government property and willfully obstructed a criminal investigation. The damage is already done and Trump shot his mouth off multiple times and dug himself deeper into legal jeopardy.
They already lied by omission, they did not include passports on the inventory that was released.
They were allowed to take ANYTHING that was with those government documents as per the warrant. After the FBI’s review team found the passports they followed protocol and returned them to Trump. They didn’t lie. They did exactly what the warrant allowed them to do and did exactly what the rules required them to do with items that are not government records that belong to NARA.
….SO…..after Years of now confirmed LYING, beginning at least as we know with the Fake Steele Dossier. ‘Svelaz’ tells us that ‘they (..the Feds..) didn’t lie.’ (about all of this M-a-L debacle… Fortunately we’re not all blinded by the MSNBC storyline…
It is time to put adults back in charge! The indulgent fantasies of the current folks in charge can get us all killed.
Biden his Administration, Congress and government agencies have no credibility and are not to be trusted. Even the courts seem corrupt.
The adults are National Socialist Democrats. History shows them for who they are.
It’s wise to remember that America has 3 co-equal branches of government. There are 2 “political” branches consisting of the “Legislative” branch (Congress/state legislatures) and the “Executive” branch (Presidents/Governors/Mayors). The 3rd branch was designed to be “non-political” focusing only on legal and constitutional issues – Judicial Branch.
This 3rd “Judicial Branch” has the final authority and jurisdiction to provide “judicial review” over the other 2 political branches.
This was the American system designed by James Madison, Alexander Hamilton, John Jay and other founders. Today there is not a single college professor of government in the USA that has read as much about government as Madison.
Not a Trump fan myself but the Judicial Branch has the jurisdiction to appoint an independent master to provide appropriate checks & balances on the DOJ (part of a “political” branch of government). The DOJ was never designed as “non-political” by the Framers of the Constitution.
Excellent post.
I would further note that it is incipient on the judicial branch to avoid purely political matters as much as humanly possible – though that is not always possible.
It is also incipient on the remaining branches to resolve political conflicts outside the judiciary.
Everything related to elections is an excellent example.
We have had a holy war going on over “gerrymandering” – with those on the left thinking they have found an inherent evil that needs corrected, without grasping there is not any objectively correct way to construct a political district.
That inherently means this is a political question, not an actual legal or judicial one.
Increasingly SCOTUS is removing the creation of political districts from the domain of the courts.
That is wise. This is a political matter, and any court resolution is political.
I personally would advise legislatures and executives to resolve all election issues without the courts.
Whenever courts are drug into election conflicts – they can not help but appear political and probably can not avoid political biases.
I like runnoff’s as a solution to close elections – no judicial intervention, just a new election.
I do not like ranked choice voting, but it is still far better than court battles.
The 4th Ammendment says search warrants must be specific in what they are looking for, where they are allowed to look, andcwhat they allowed to take. Violation of ANY of these requirements (HIPAA too). make the search illegal. Supreme Court is very clear here.
Wasn’t the search warrant sort of “specific” that the raiders could take anything in the vicinity of any document that they thought Trump shouldn’t have? You know like a box of wall photos, boxes of confidential attorney/client documents, boxes containing individual US Passports, boxes containing private medical information, boxes of shoes, boxes of dirty underwear, box with a blender, etc, etc…
It appears that “anything” is specific enough for the political left’s Sturmabteilung troops.
Witherspoon,
Given the nature of his haphazardly Trump kept these government records that did not belong to him and the fact that he did indeed keep classified information mixed in with these boxes of random things it is reasonable to take everything that was suspect of having those documents. FBI agents were lied to and were prohibited from looking inside the boxes. When it was discovered that there was zero accountability for who had access to or who potentially saw these documents and when the FBI/DOJ had every reason to take anything that may have contained government documents based on the list NARA had of what was missing.
It was Trump’s fault that he was extremely careless about where he put these documents and by putting them with other things not related to government records the government had a right to take anything that was placed within it near documents specified in the warrant.
Blaming the FBI/DOJ for Trump’s inability to keep things separated is just poor argument.
Svelaz wrote, “Blaming the FBI/DOJ for Trump’s inability to keep things separated is just poor argument.”
Blaming the “victim”? Wow!
The FBI had a freaking search warrant to literally search for the documents they were after. They could search the boxes for what the documents they were after and leave the rest! Anything that didn’t fall within the scope of the documents they were after should have been left behind; but nooooooooo…, these witch hunters from the DOJ and the FBI literally worded the warrant so they could take any f’ing thing they wanted even if it was irrelevant to the documents they were after and/or dead wrong for them to take it. This is good evidence that this whole fiasco was a witch hunt.
You’re trying to rationalize something that they did that was wrong by blaming the victim and that’s shows a clear anti-Trump bias as in the ends justifies the means.
The FBI followed the actual search warrant, which was approved by a judge, not the warrant that you wish to substitute.
Intermixing of materials with classified markings and other materials is legally relevant to whether Trump took appropriate care of the former.
“The FBI followed the actual search warrant . . .”
“General warrants” (which are unConstitutional) are easy to follow. They say, in effect: “Go where you want. Take what you wish.”
“. . . which was approved by a judge . . .”
Who had recused himself from a previous Trump case, and who openly expressed hostility to Trump.
When you ignore those facts — and the FBI’s history of attempting to frame Trump, and its history of putting the screws to Twitter and Facebook — you can conclude anything or nothing about this case.
This warrant didn’t “say in effect: ‘Go where you want. Take what you wish.’”
You attack the judge because you are unwilling to delve into the legality of the warrant itself. Here, again, is a legal discussion of why you’re wrong about the warrant being too broad:
“Some are arguing, as does @AndrewCMcCarthy below, that the warrant used to search Mar-A-Lago was a general warrant that violates the 4th Amendment. I think this is incorrect. Here’s a thread that explains my view, looking at the relevant caselaw. …”
https://twitter.com/OrinKerr/status/1558714519244795904
IF you think some of what he wrote is mistaken, THEN you should identify it and explain the mistake, likewise citing caselaw.
The warrant is too broad.
The only protection we the people have against a rogue govt undertaking illegal searches is after charges are filed, and then a citizen can petition the judge to suppress the evidence, as fruit of the poisoned tree.
There is no pre charge path to challenge a warrant.
Just one reason Garland will not file charges. But this was always a propaganda vehicle
“. . . THEN you should identify it and explain the mistake . . .”
I don’t take my marching orders from those who lay traps and who are Apologists.
Anonymous wrote, “The FBI followed the actual search warrant, which was approved by a judge, not the warrant that you wish to substitute.”, “Intermixing of materials with classified markings and other materials is legally relevant to whether Trump took appropriate care of the former.”
Yup I know and I alluded to that in my comment.
It’s my opinion that the warrant was way too broad and gave the FBI an intentional legal out so they could confiscate actual documents that were irrelevant to their search even if they had absolutely no right to legally possess those documents. It’s been reported that they confiscated private attorney/client and medical documents and they had absolutely no right whatsoever to confiscate those documents without probable cause that there was something in them that revealed illegal actions that was NOT covered in the warrant.
The location of the documents may be relevant to be photographed when found but the contents of the other documents they were with is not relevant other than the fact that they were not the documents they were after and those documents should not have been authorized in the warrant to be confiscated especially when the contents of those other documents was privaledged attorney/client of private medical information. No one has the legal right to read attorney/client information or private medical information unless they have probable cause, and a the legal documentation to support it, that there was something illegal that the attorney/client documentation would reveal and the warrant did not cover that. This is why the DOJ should have appointed a Special Master to go though 100% of the documents prior to allowing the FBI to go through them. The DOJ literally failed to administer appropriate constitutional protections to Donald Trump and gave this investigation the stench of being purely political and he should be fired as a result of his failure.
Remember I don’t like Donald Trump one bit and I don’t support him putting his name in the ring as a candidate for the 2024 Presidential election.
Personally I think the warrant was so broad that it was very likely unconstitutional in its scope and therefore violated President Trump’s individual rights making anything they confiscated not admissible in a court of law; but of course, that won’t stop members of the DOJ and the FBI from leaking trickle after trickle of information that was confiscated to the anti-Trump media for public propaganda distribution over the next couple of years.
“It’s my opinion that the warrant was way too broad”
I encourage you to read this legal discussion of that issue by conservative law prof Orin Kerr:
https://twitter.com/OrinKerr/status/1558714519244795904
“It’s been reported that they confiscated private attorney/client and medical documents and they had absolutely no right whatsoever to confiscate those documents without probable cause that there was something in them that revealed illegal actions that was NOT covered in the warrant.”
Each of those items was in a box with documents that had classified markings, and they absolutely has a legal right to confiscate the entire box.
“those documents should not have been authorized in the warrant to be confiscated”
Whether they should have been is a matter of opinion. That they were is a matter of fact.
“No one has the legal right to read attorney/client information or private medical information …”
There is no evidence that they read it, only that it was confiscated and separated from the documents with classified markings. It’s astounding that Trump placed these items in the same boxes and shows a clear lack of care for the docs with classified markings.
“Personally I think the warrant was so broad that it was very likely unconstitutional in its scope”
Are you open to changing your mind? If so, read the discussion I linked to.
I don’t do twitter, period.
Anonymous asked, “Are you open to changing your mind?”
Sure I am, it happens routinely, but it will be actual facts that change my mind not opinion or propaganda narratives.
Professor Kerr is dealing with facts. If you’re open to changing your mind then you should read it and decide for yourself if he has a valid point. Don’t assume immediately that it will be propaganda.
Anonymous wrote, “Professor Kerr is dealing with facts. If you’re open to changing your mind then you should read it and decide for yourself if he has a valid point. Don’t assume immediately that it will be propaganda.”
I didn’t assume anything, I simply stated that I don’t do Twitter (period) and changing my mind will take facts not opinion of propaganda. That is not stating or implying that what you linked to was opinion or propaganda, I don’t know what it was because I don’t do Twitter, period.
Give me a non Twitter method of reading whatever it is you want me to read and I’ll at least give it a go.
“Sure I am, it happens routinely, but it will be actual facts that change my mind not opinion or propaganda narratives.”
Great. What do you think about Kerr’s argument, copied below? (Note to Darren: that is a Twitter thread and not copyrighted, so there is no copyright infringement in copying almost the entire thread.)
“I don’t do twitter, period.”
I don’t have a Twitter account, but you don’t need one to read tweets, and there are some very knowledgeable people who post discussions, so I encourage you to reconsider reading relevant Twitter threads.
Since you won’t read it on Twitter, I’ll copy some of it here, but I cannot post the images he has embedded, which are largely excerpts from legal documents, including rulings. I’ll continue from where the first comment left off:
First, some background. The Fourth Amendment requires that warrants must have a particular description of the evidence or contraband that the government has probable cause to seize. This is part of what is called the particularity requirement. [embedded image]
The idea is that government searches and seizures have to be limited, and warrants can’t be “general.” The government can only look for items that they have probable cause to seize, and the warrant only authorizes the seizure of what the government had probable cause to seize.
The claim that the Mar-A-Lago warrant is an unlawful general warrant focuses on a specific phrase in the description of items to be seized.
I understand the disputed language to be in Part C, okaying seizure of “any government . . . Records” during the Trump Administration. [embedded image]
“Any government . . . records” is really broad, the argument runs. I mean, 99.9% of “government . . . records” are totally innocuous—not evidence of any crime at all. Focusing on that phrase, the warrant is general, and therefore violates the Constitution of the United States.
I think this argument is wrong, though. Here’s why.
In cases involving searches for documents, it’s the norm for the government not to know the exact form of every document they’re looking for. Documents are often described by a combination of their content and their form.
So the warrant will describe the category of information that the documents relate to (such as some topic, or evidence of some particular crime), as well as examples of the form they’ll take (like the type of document itself).
In Andresen v. Maryland, 427 U.S. 463 (1976), the Supreme Court indicated that these should be construed together. That is, the form of the document named should be read as limited by the category of information.
https://scholar.google.com/scholar_case?case=14197358558293770809
In Andresen, the government was searching for docs about a fraudulent real estate transaction. The description of items to be seized added a general phrase in the list of forms: “together with other fruits, instrumentalities and evidence of crime at this [time] unknown.” [embedded image]
The Supreme Court ruled that the warrant was particular because you had to read that general phrase in the list of items as to form as implicitly limited by the earlier language as to substance — that is, about the suspected real estate transaction. [embedded image]
Following Andresen, it’s not uncommon for a warrant seeking documents to first list the category of information (often, evidence of particular crimes of which there is probable cause) together with a list of the form in which that info might appear.
Under Andresen, the form list is read as implicitly limited by, and read in conjunction with, the preceding description of the substance. The form list limits the category of documents, making it more particular, rather than expands it, making it less particular.
Under Andresen, I think that’s how a court would construe the warrant. A list of the crimes sought is usually enough to make a warrant particular. But the Trump warrant goes on to be more particular by listing specific types of documents—to be read in conjunction with the crimes.
Therefore, limiting the scope of the search by naming a particular form the records might take — in part C, Trump-era government documents — would not make the warrant general.
An example of this from a similar warrant is US v. Manafort, 314 F. Supp.3d 258 (D.D.C. 2018).
Yes, that’s Paul Manafort, DJT’s former campaign manager.
Here’s the description of the things to be seized used to search his home:
https://casetext.com/case/united-states-v-manafort-8 [embedded image]
Manafort made the same basic argument McCarthy is making. “Any and all financial records” is super-broad, Manafort argued. And all computers is super broad, too. That makes the warrant an unlawful general warrant, he argued. [embedded image]
The court disagreed, relying on Andresen, construing the form in which the evidence appeared (as financial records, inside computers, etc.) as limited by the preceding description of the the crimes for which there was probable cause to find evidence. [embedded image]
Seems to me that Trump’s warrant is similar to Manafort’s warrant — just substitute “government . . records” during the DJT administration in the Mar-A-Lago warrant for “financial records” in the search of Manafort’s house. Similarly constitutional, I think.
To be clear, this doesn’t rule out every possible Fourth Amendment challenge to the warrant. When more facts become known, we will have more basis to know if there are any constitutional issues about the warrant.
Based on what we know at this point, though, the claim being made that the “government . . . records” clause violates the Fourth Amendment seems inconsistent with the cases.
(There’s also the remedies question, but this thread is long enough….)
/end
Kerr wrote, “Therefore, limiting the scope of the search by naming a particular form the records might take — in part C, Trump-era government documents — would not make the warrant general.”
That’s Kerr’s argument thesis in a nut shell and it’s hogwash.
Kerr and you are welcome to your own opinions, and that’s what Kerr’s writing is, but not your own facts; this simply does not apply to attorney/client and personal medical documents. The generalized nature of the warrant is exactly what the FBI agents used to justify taking things they otherwise couldn’t have taken.
Encompassing the search to include any “Trump-era government documents” IS too broad and too open to individual interpretation. You and I might disagree as to what a “Trump-era government document” might include, you seem to think anything goes, I do not.
We have the Constitution and the justice system to protect individual rights from government overreach and the Supreme Court would likely strike down this warrant because of the exceptionally over broadness of the warrant regardless of what Kerr’s opinion is. I honestly think President Trump’s rights have been violated but that’s not to say that the FBI didn’t obtain something criminally incriminating for someone, but if the warrant was unconstitutional then whatever they confiscated will likely be inadmissible in a court of law especially if it came from a document that was protected by individual rights or Executive privilege. I honestly think the DOJ bit off more than they can Constitutionally chew with this one plus they have openly lied multiple times to everyone about their reasons for not releasing redacted documents pertaining to the raid. The DOJ and the FBI have shown us that they cannot be blindly trusted when it comes to anything related to Donald Trump and they appear to think they are above the law.
Furthermore; much of the confidential advice given to the President of the United States by his personal advisors while he is President of the United Sates falls under Executive privilege and that privilege doesn’t become non-existent because the President is no longer the President. My understanding, despite all the nonsensical claims made by partisan hacks, is the only thing that can revoke a President’s Executive privilege is if that particular President chooses to revoke his/her own Executive privilege selectively or in total or a court of law strikes it down on a selective basis. The court can’t totally strip a former President of their Executive privilege, to do so would set a precedence that would completely destroy any President the ability to ever get confidential advice from anyone.
Furthermore; as I understand declassification of documents, if the President of the United States while actively performing the duties of the President stated that a specific document or documents are declassified, that’s a done deal, period, end of discussion. No one in the government can override that decision once it’s made by the President and the president that declassified the document(s) then becomes the only person that could reclassify the document. Also logic dictates that once a document becomes unclassified, it should never become reclassified because you would be trying to classify something that could already be in the public domain.
There are too many questions surrounding the entire process leading up to and including the actual raid and the leaks that have followed the raid to jump on the Kerr’s opinion bandwagon.
This is a failed attempt to change my opinion.
Personally I hope this makes it way all the way to the Supreme Court of the United States, there needs to be something very close to absolute clarity for this kind of actions from the DOJ and the FBI going forward. We have a Constitution and a Supreme Court for exactly this kind of perceived government overreach.
Steve,
You declare Kerr’s discussion — supported by caselaw — to be “hogwash,” but you don’t actually provide a counter to any of the caselaw he cites. You note “That’s Kerr’s argument thesis in a nut shell,” but then you proceed to ignore the evidence that he presents to support his claim. If you think that he’s misinterpreting Andresen v. Maryland, say why. If you think that US v. Manafort isn’t a valid example, say why. If you can’t counter the evidence he provides to support his these, then yours is not an evidence-based response, only a raw dismissal.
“this simply does not apply to attorney/client and personal medical documents.”
Those were taken in the search because they were comingled with the documents that have classified markings and other government documents that were the subject of the search. The DOJ already told the judge that “Personal effects without evidentiary value will be returned. Nonetheless, contrary to Plaintiff’s contention, personal effects in these circumstances are not subject to return under Criminal Rule 41(g), for four independent reasons. …” And they discussed those reasons. Have you read their argument, and if so, what elements do you dispute?
Then there was an exchange in the hearing where Judge Cannon refused the government’s request/offer, which was “We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing. … The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.” Did you read the hearing transcript?
“Encompassing the search to include any “Trump-era government documents” IS too broad”
It isn’t. Those are documents covered by the PRA and owned by the government. By law (signed into law by the Executive Branch agreeing to this), “The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.”
“much of the confidential advice given to the President of the United States by his personal advisors while he is President of the United Sates falls under Executive privilege and that privilege doesn’t become non-existent because the President is no longer the President.”
He cannot assert executive privilege against the Executive Branch.
Any EP document is by definition a presidential record and should be in the possession of NARA.
“as I understand declassification of documents, if the President of the United States while actively performing the duties of the President stated that a specific document or documents are declassified, that’s a done deal, period, end of discussion”
There’s paperwork required, so that the government knows what is being declassified. But this is also a red herring, because the 3 alleged crimes do not hinge on whether the documents were or were not classified. Also the subpoena was for all documents with classified markings, and he was clearly in illegal possession of many documents with classified markings.
Anonymous wrote, “You declare Kerr’s discussion — supported by caselaw — to be “hogwash,” but you don’t actually provide a counter to any of the caselaw he cites.”
Come on Anonymous, admit it, you either didn’t read anything beyond my first sentence or you didn’t comprehend it. I was quite clear with my opinion and I’m not going to repeat myself. It’s fine if you don’t like my opinion.
“by conservative law prof Orin Kerr:”
Another appeal to authority by Anonymous the Stupid. He assumes that if Kerr is conservative, conservatives should agree with him. Not true. It is what he says that counts.
“ Another appeal to authority by Anonymous the Stupid. He assumes that if Kerr is conservative, conservatives should agree with him. Not true. It is what he says that counts.”
He didn’t say that at all. All he said was read what Professor Kerr has to say and then decide for yourself if he made a valid argument. That’s it.
Svelaz, the 12:40 PM comment was from the troll Meyer, who doesn’t understand what is and isn’t a fallacious appeal to authority.
ATS was appealing to authority when he stated a conservative professor agreed with him. It wouldn’t be such an appeal if ATS stuck to the facts. He didn’t. That is where the difficulty arises.
Witherspoon, Trump is no victim. He’s at best a careless idiot. At worst a careless criminal.
What happened to Trump is no different than what happens when police find drugs in a car. They search everything and confiscate the car and arrest the driver. Trump’s argument is close to the equivalent of “oh, I didn’t know that was there” defense. Except Trump loudly declared “Thats mine!”.
Svelaz, you only know what the DoJ leaked to the media. We know the FBI has a history of lying. We have all the proof we need, just in the crimes committed getting (4)FISA warrants.
Take a minute and read Rule 41 of the Federal Rules of Criminal Procedure. “Sturmabteilung”…weak strawman, the Federal Rules of Criminal Procedure do not differentiate right or left.
I wrote a comment in another of Jonathan’s blogs about a Special Master…
This move by U.S. District Judge Aileen Cannon doesn’t do a damn thing to remove the wretched stench surrounding this whole political witch hunt fiasco emanating from the DOJ and the FBI but it does have the effect of a court ramming a small piece of reality down the throat of the biased partisan hacks at the DOJ and the FBI.
The political left has been trying to politically lynch Donald Trump for his politics and trumped up nonsense for over six years and they haven’t yet come up with anything that’s prosecutable, it’s one witch hunt after another; so again…
Let the anti-Witherspoon trolling smears begin.
Something else…
The DOJ and the FBI have already seen all the documents that they confiscated from President Trump’s Mar-a-Lago home regardless of whether they could legally have/see the documents or not, and I’m dead certain that anything they think could be used to smear Trump will be slowly leaked out to the public, even if it’s confidential medical or attorney/client information they’ll find some way to leak it, this is what they do.
The verifiable track record of anti-Trump actions from within the DOJ and the FBI is there and I no longer trust anything the DOJ or the FBI says or does when it comes to Trump and that’s saying something from someone that doesn’t like Donald Trump one bit and doesn’t support him running again.
Fool me once, shame on you; fool me twice, shame on me.
Has it occurred to you that when you when you use smears like “the political left’s Sturmabteilung troops,” it invites people to respond in kind?
As you sow, so you shall reap.
Anonymous wrote, “Has it occurred to you that when you when you use smears like “the political left’s Sturmabteilung troops,” it invites people to respond in kind?”
Yes that has occurred to me; however, when the entire context of what I wrote along with that specific phrase is taken into account, the rhetorical labeling is relevant and warranted. Weaponizing the FBI for a political “show me the man, and I’ll show you the crime” witch hunt is dead wrong and should be opposed by everyone on both sides of the political aisle with the strongest rhetorically accurate language available. The comparison to Sturmabteilung troops is rhetorically fair.
Those rationalizing the actions taken by the DOJ and the FBI with the Mar-a-Lago raid have swallowed the political left’s ends justifies the means BS.
Whether it’s warranted is a matter of opinion. You think it is; I think it isn’t. I disagree that the FBI has been “weaponiz[ed] … for a political “show me the man, and I’ll show you the crime” witch hunt.”
The items with classified markings should not have been in Trump’s possession. The government has been trying to get them back for a year and a half. The belong to the government. Trump even had Chistina Bobb lie to the government in a legal certification that everything had been returned. They lied that all materials with classified markings were properly secured. They lied that they were all in the storage room. … For all we know, yet other documents are at other Trump properties.
Justice seems very very brisk when it comes to hotly pursuing Trump. Even with J6 Commissions, no cross examinations of witness, and great efforts to even interview Secret Service agents. Meanwhile you can ignore a subpoena if you’re Hillary, you can acid wash your emails (and your jeans), have a private server, get a lap dog media, and hammer all the evidence. Clinton Foundation anyone. John Durham is so so so so slow. And may have actually hurt Lady Justice the most. I fear this is how Republics end.
DOJ and NARA spend 18 months trying to recover those documents. In June a trump attorney signed an affidavit stating that all documents had been returned. Obviously that was a lie, a lie that will cost that attorney money and potentially time in prison.
I don’t think many readers here fully comprehend the seriousness of this situation. Some of the documents recovered from MAL contain this countries most coveted information, information that in the our enemies’ hand would do extreme hard to our county’s security.
I served honorably for 25 years on active duty in the US Navy. I held one of the highest security clearances-Cosmic Top Secret. The facility where I needed that clearance had armed Marines at each door to the facility. They had orders to use up to lethal force to prevent unauthorized personnel from entering the facility.
What trump did is, at the very least, criminal. At the most it’s treasonous.
How do you know that anything of major importance to national security is in the documents? The government tends to over classify.
The classification markings indicate documents related to confidential human sources. I’m unaware of the government unjustifiably classifying documents that way. Revealing this information puts people’s lives at risk.
The classification markings indicate documents related to confidential human sources. I’m unaware of the government unjustifiably classifying documents that way. Revealing this information puts people’s lives at risk.
You know who is a confidential human source? Stephen Halper, and Joseph Misfud. Spies attempting to infiltrate the Trump Campaign.
But your repeating a lie does not make it relevent. All the documents are declassified.
ATS, the classification markings on a folder, are not a danger to anyone. It is the content of what is inside the folder that counts. Even though previously you didn’t realize Trump had the clearance for the files at MAL, you still wish to go down the same path.
We should only ask that you place the same burdens on the FBI and DOJ for corrupting our system. That causes human lives to be lost as well.
Jonathan Turley: “Like all sites, we attract trolls and juvenile posters who want to tear down the work of others. It is a sad reality of the Internet and the worst element of our species. Don’t feed the trolls. Ignore them. They are trolls and live under cyber bridges for a reason.”
I believe you to be a troll, and I will not indulge you as if you’re a good-faith discussant.
youre still ATS and your handlers are desperate if you’re their crack troll
You keep promising not to reply to me. I even thanked you yesterday for that promise. You lied like you always do.
Wally: “Some of the documents recovered from MAL contain this countries most coveted information, information that in the our enemies’ hand would do extreme hard to our county’s security.” For example? Nuclear secrets?
Human confidential sources in other countries.
You have no idea what is in the document. Wild speculation.
None the less, not relevent, as the documents in President Trumps possession are declassified.
We know for a fact what the classified markings on some of the documents are because the DOJ told the court, and Trump’s lawyers have not disputed it.
“the documents in President Trumps possession are declassified.”
Prove it.
Also accept that the 3 alleged crimes do not hinge on whether they’re classified.
Prove what exactly? The President has plenary power to declare a room full of documents declassified, and the declaration or action in not reviewable?
Prove your claim that “the documents in President Trumps possession are declassified.”
That a President CAN declassify materials does not imply that he DID declassify these materials.
You CAN eat rotting meat. Doesn’t mean that you DID eat rotting meat.
“We know for a fact what the classified markings on some of the documents are because the DOJ told the court, and Trump’s lawyers have not disputed it.”
Faulty logic. Trump’s attorney’s not disputing something doesn’t prove what you think.
Potentially very interesting, but doubt much will happen.
Turley’s Trump-protective (and Fox News fee-earning) legal distortions are sell-evident. I just want to add here that he needs a 6th-grade-level grammar lesson: “While brushed aside by many legal experts, the prosecution of Donald Trump would require courts to address some long-unresolved questions.”
Attacking the messenger is unfortunate, yet, revealing.
The legal double standard is obvious to all fair-minded citizens; the Garland DOJ & the Wray FBI are laser focused on prosecuting / harassing anyone in President Trump’s orbit.
Equal application of the law is not being practiced.
“sell-evident”
And you need a second grade spelling lesson.
“Fox News fee-earning”
And a third grade punctuation lesson.
Pro tip: When you attempt to attack the man by being a grammar scold, don’t shoot yourself in the foot.