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.
I once needed three attempts at drafting a civil RICO complaint sufficient to convince a federal judge in the Southern District of Florida that I had properly pled a claim for relief. Fortunately, the rules contain a mechanism for amendments to pleadings. It is always the plaintiff’s burden at the outset of a case to allege facts which, if proven, will provide a cognizable remedy. And it is only at that point that a defendant is required to respond to the substance of the claim. That is part of what we call “due process,” and the rules are drawn to afford the parties plenty of opportunities to refine and hone their positions so that everyone knows what the case is about and no one can complain about the outcome except in limited circumstances.
After a review of the record in this case, however, I’m beginning to wonder whether I simply haven’t drawn the right judges. Without taking a deep (and boring) dive into the procedural weeds, it appears that the court has managed the judicial equivalent of turning a sow’s ear into a silk purse for the former president. Judge Cannon basically filled in the blanks in Trump’s deficient complaint, announced an intention to grant some sort of relief before the case was at issue (indeed, unless I somehow missed it, actual service of process was an afterthought; maybe Truth Social has magically become an authorized efiling portal), asserted “equitable jurisdiction” without any sort of competent factual predicate, ignored the efforts of the special magistrate altogether, and created out of whole cloth what I will call the “special solicitude doctrine” applicable (at least initially) to former presidents who are subjects of criminal investigations, a wonderfully remarkable feat for an originalist. The court even managed to limit the unanimous ruling in United States v. Nixon, 418 U.S. 683 (1974) to sitting presidents. The practical effect of the order is that a former president has been afforded the right to claim a privilege he does not have in order to reclaim possession of property he does not own.
With all due respect to Prof. Turley, my view is that this case is a procedural and substantive abomination.
I am signing my comment because my last post appeared as Anonymous for reasons I don’t pretend to understand.
Mike Appleton
it appears that the court has managed the judicial equivalent of turning a sow’s ear into a silk purse for the former president
We often have referred to Hillary as a cow, sow, heifer and female dog but never a silk purse. Then again she has also been referred to as a runt with a “c” but why bother mentioning the obvious as to Democrats perverting the Department of Justice and the Courts.
James Comey sends his best
Mike:
“I once needed three attempts at drafting a civil RICO complaint sufficient to convince a federal judge in the Southern District of Florida that I had properly pled a claim for relief. ”
(…)
“Judge Cannon basically filled in the blanks in Trump’s deficient complaint, announced an intention to grant some sort of relief before the case was at issue (indeed, unless I somehow missed it, actual service of process was an afterthought; maybe Truth Social has magically become an authorized efiling portal), asserted “equitable jurisdiction” without any sort of competent factual predicate, ignored the efforts of the special magistrate altogether, and created out of whole cloth what I will call the “special solicitude doctrine” applicable (at least initially) to former presidents who are subjects of criminal investigations, a wonderfully remarkable feat for an originalist. The court even managed to limit the unanimous ruling in United States v. Nixon, 418 U.S. 683 (1974)”
*****************************
I had no idea your case involved a great matter of state such as when a politicized DOJ takes on a former and likely future POTUS at the behest of the opposing party and its likely candidate in opposition. Do tell how you case is of the same constitutional magnitude as this one. As for US v. Nixon, that was decided under Fed.Rule Crim.Proc. 17(c) which explored the scope of executive privilege when Presidential papers were subpoenaed in the face of a specific criminal charge – not a fishing expedition. In response and in 1974, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA) of 1974. That law was changed in 1978 and is the Presidential Records Act (PRA) of 1978 which governs Trump’s situation. The two cases could not be premised more differently and hence the judge paid little attention to the claimed precedent.
Maybe this is why the judge had so much problem with your RICO complaint.
Oh, my! That’s gotta sting!
Mike,
There was a problem a couple weeks ago in either the WordPress system, its partner authenticator services, and perhaps elsewhere in that users’ login credentials were not passed along and this bug resulted in their comments sometimes posting as anonymous. I do not know the cause of this or if a solution was recently implemented.
I did locate the comment you mentioned and have edited it by affixing your name in the author element.
@Mike Appleton,
While there is some truth that there is a bit of a luck in the draw when it comes to judges… in this case w.r.t Trump the judge didn’t make a purse out of a sows ear.
Trump actually has a good case to get this tossed.
The facts already before us show that the FBI blew it on this raid.
The warrant was overly broad. It was a hoover vacuum. See a piece of paper? Suck it up.
Were this really about a NARA issue… it would have been handled much differently.
Clearly overreach on the part of the DOJ/FBI.
You also seem to have conflated too many things into this.
If you stick to the facts… the results of the Special Master will end up having this case tossed.
-G
In fact, this case is not dissimilar to an overdue charge from the library.
As that noble and patriotic statesman, James Comey, once said, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” (i.e. if Comey had indicted Hillary, Comey would have convicted Obama).
Did I get this wrong, your belief is that corruption, if extant in this case as you imply, must favor communists (liberals, progressives, socialists, democrats, RINOs) only, and never conservatives (i.e. Americans)?
Unreasonable prosecutors have brought this jurisprudentially and historically absurd, frivolous case.
By all means, do continue attempting to block the forest with the trees.
So the takeaway from Turley is, it’s all Garlands fault that he does not recognize Trump is above the law. Never mind there are missing documents marked top secret.
HER MAJESTY QUEEN HILLARY IS ABOVE THE LAW
“30,000 E-Mails”
“BleachBit”
“For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”
– James Comey, FBI Director, July 5, 2016
Obama used a pseudonymous account to participate in the e-mail exchanges referenced by Comey above.
If Comey had indicted Hillary, Comey would have convicted the irrefutably guilty Obama.
Obama criminally participated in the mishandling of classified material with Hillary, apart from being immutably ineligible for the office of president.
Based on what I am reading on this blog, Obama when he participated in the email exchanges with Hillary automatically declassified the material!😀
Has your brilliant proposal not been previously contradicted by the fact of the aforementioned pseudonymous account?
I defer to the declassification experts around here, but I think declassification still works because even under a false name email account Obama is still the President conducting official business with his Sec of State.
+100
Problem is, no one has ever claimed or even intimated that Obama declassified the material.
No reasonable witness would express that 6 years post facto.
No sorry to tell you but this is NOT what J Turley said.
You can not be that stupid? No way No how, what did you do with all the money your parents gave you for schooling, use if for a sex change?
LMFAO How can something that is missing have it’s marking known? If the document is missing so is it’s marking. This is just another ‘we finally got him’ fail.
I take it that you’re unaware that classified document folders have cover sheets, and the document itself is placed in the folder. An empty folder with a classified cover sheet tells you there’s a missing classified document.
More craziness from anonymous.
The only ones above the law here are the demonKKKrats including demonKKKratic judges. Examples of this is the judge that signed the warrant for the raid who was a known Trump hater. Other examples are all of those who lied under oath about the so called Russian collusion nothing burger, Queen Hillary with her private server and her deletion of 33,000 emails using bleach bit plus her destruction of blackberry cell phones. Then there’s Obama who was previously mentioned.
Trump was the POTUS which gives him unique and sole authority to declassify and the Records Act allows a POTUS determine what is a presidential record (see 2012 case upholding this very issue in favor of Bill Clinton). DOJ does not have a legal basis of any of this which is why they are now talking about indicting Trump for obstruction of a non-crime. Same playbook as the failed Mueller debacle.
Jonathan: Now that the usual crowd has had their say over Judge Cannon’s decision I’d like to bring up another topic. Over the weekend Darren Smith posted a number of beautiful photos of, I presume, somewhere on the east coast. Disappointing he didn’t indicate the location. Also disappointing was that he didn’t use the opportunity to discuss how climate change may seriously adversely affect the areas he likes to visit.
It is clear climate change is taking hold already. Severe drought and unprecedented heat in the West. Record flooding in Mississippi, Kentucky and Louisiana. Rivers and other waterways are drying up. Extreme weather is being made worse by global warming. Greenland’s ice sheet is disappearing into the oceans. Climate change scientists predict sea levels will rise 10 inches in the next 20 to year 30 years. That’s not far off. And the effect on populations that live on or near the water? Climate scientists also predict a “great migration” from coastal areas. For those with means finding suitable house inland is not a problem. But for the poor, Black and Hispanic, moving is not an option. This is where structural racism comes into effect. Underserved Black and Brown citizens are going to suffer. In Jacksonville Kentucky, a predominantly Black town, the flooding was intense and caused one the water plants to fail. Black residents are without drinkable water. This could have been prevented years ago had the white state authorities spent the money necessary to repair and replace the aging infrastructure in Jacksonville. The state refused. Structural racism is embedded in Kentucky.
I know that you and those on this blog who are absorbed with Trump’s legal problems and climate change is probably not a priority issue. I suspect some are even climate change deniers. But for those who live on the water what will you do when your house is destroyed by flooding or some other extreme climate caused weather event and you are forced to seek higher ground–permanently?
“And the effect on populations that live on or near the water?”
Doesn’t seem to concern Obama. Waterfront home on Martha’s Vineyard and a new Beachfront home in Hawaii.
Jacksonville Kentucky? are you sure it wasn’t Jackson Mississippi? I thought it was in mississippi where they had a collapse of their water system.
First , the climate is always changing, it has never not been changing, but it does so incredibly slowly. They said the Arctic was going to be ice free by 2013, and 2016 and 2018. Well there’s more summer ice now than in 15 years. Greenlands ice sheet hasn’t even lost 1% of its total mass in the past 80 years. It isn’t going anywhere soon. Please go read some stories about flooding, there have always been bad floods every year. Some years they are in one place, some years in another. Human infrastructure is probably the biggest reason why some of these floods happen, we have built on too many flood plains, and created levees which while protecting against floods in most years, create floods downriver, because the river is now deeper and faster. Climate change does not cause weather events. These events have been happening since the earth had clouds. The American West is mostly desert. Its natural condition is drought. And it certainly isn’t unprecedented. Just because you don’t know about it, doesn’t mean it hasn’t happened.
You are flooded (no pun intended) by weather events across the globe constantly and they all shout CLIMATE CHANGE! There has been no increase in the frequency or strength of these events, you just can’t turn around with the internet, TV, radio talking about them. They happened before , we just didn’t have the instant access to videos of them .
“There has been no increase in the frequency or strength of these events . . .”
But there has been a massive *decrease*, over the last 100 years, of climate-caused deaths. If you look at a bar chart, it looks like a steep ladder going down. That *decrease* has been caused by industrialization and a massive increase in the production and consumption of fossil fuels — both of which the climate Chicken Littles want to destroy.
Incidentally, deaths from extreme *cold* are about four times higher than deaths from extreme heat. If the climate is heating up, isn’t that a good thing?
There is no evidence climate change is caused by mankind. Co2 is not the determinative factor in the greenhouse effect. H2O is the primary and wholly determinative compound that drives the greenhouse effect. Would you have the world sequester the oceans? Those who moan about CO2 and wail about climate change fall into two camps: liars and morons.
“Climate change scientists predict . . .”
Wake me when they can accurately predict next week’s weather.
Learn the difference between climate and weather. Climatologists are not the ones who predict weather. Meteorologists predict weather.
“Learn the difference between climate and weather.”
That’s rich, coming from the environmental nihilists who routinely conflate the two: “Oh, doomsday — lots of rain” (weather). “A hurricane” (weather). “Heat” (weather). “Oh, no. It’s cold” (weather).
Incidentally, those two are part of the same science. If you can’t accurately predict the local and the short-term (weather), you certainly cannot do so for the global and the long term (climate).
Apparently, you are not honest enough to acknowledge that the climate Malthusians for decades have been wrong about their predictions.
You’d think that a track record of failures would cause people to spurn those “experts.”
Then, again, some still trust Fauci and the CDC.
All a distraction away from the coming election, defund police, inflation, fuel, baby formula, CRIME, the border, fentanyl, DOJ/FBI Hunter’s laptop.
Make President Trump and Make America Great Again aka MAGA the center of attraction and deflect. The Democrats need Babaika to distract.
Trump commuting espionage and being a traitor is a bit more then a distraction.
All a distraction just like your groundless post’s.
Does Babaika visit you too?
THE POWER OF THE FEDERAL COURTS TO DECLARE LEGISLATIVE AND EXECUTIVE ACTS UNCONSTITUTIONAL
__________________________________________________________________________________________________
“It’s the [Constitution], stupid!”
– James Carville
_____________
What would the American Founders have done?
The vote would have been restricted by States. The first general vote criteria were male, European, 21, 50 lbs. Sterling/50 acres. Turnout was 11.6% in 1788. Communists (liberals, progressives, socialists, democrats, RINOs) would have never been elected.
The judicial branch would have conducted Judicial Review of all acts of the executive and legislative branches, and violators would have been impeached and convicted, per the Constitution.
Since 1860, every act of the executive and legislative branches has taken America further away from the “manifest tenor” of the Constitution. Under Lincoln’s whopping 39.8% “mandate,” the denial of constitutional secession, an unconstitutional war, the unconstitutional seizure of power under “martial law,” the suspension of habeas corpus, the denial of freedom of speech, the denial of freedom of the press, the denial of private property rights, the failure to enforce extant immigration law, and the illicit rewriting of the Constitution to deny States the power to restrict votes through the “Reconstruction Amendments,” to appease Karl Marx, and under the duress of war and brutal post-war military occupation and oppression, were all “injurious,” antithetical and unconstitutional. Karl Marx’s letter of congratulation and commendation to Lincoln: https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
Chief Justice Roger B. Taney tried valiantly to put America back under the dominion of the Constitution in 1861 but was “resisted by a force too strong for me to overcome.”
It’s been all downhill ever since.
_________________________
“Judicial Review in the United States”
“The doctrine of judicial review holds that the courts are vested with the authority to determine the legitimacy of the acts of the executive and the legislative branches of government.”
– DOJ, Office of Justice Programs
___________________________
Marbury v. Madison
The U.S. Supreme Court case Marbury v. Madison (1803) established the principle of judicial review—the power of the federal courts to declare legislative and executive acts unconstitutional. The unanimous opinion was written by Chief Justice John Marshall.
– Library of Congress
_________________
“The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department.”
“I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power.”
“I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.”
– Chief Justice Roger B. Taney, May 28, 1861
One poster from the left tells us that the judge in this case is inexperienced. Aileen Mercedes Cannon was born in 1981 in Cali, Colombia. Her mother had fled Cuba under Fidel Castro at the age of seven.[2]
Cannon attended the University of Seville in Spain in 2001. She earned a Bachelor of Arts from Duke University in 2003, and a Juris Doctor, magna cum laude, from the University of Michigan Law School in 2007. She was inducted into the Order of the Coif and began her legal career as a law clerk to judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit.[3]
Career
Cannon worked as an associate at Gibson, Dunn & Crutcher from 2009 to 2012. She served as an assistant United States Attorney for the Southern District of Florida beginning in 2013.[3] Cannon has been a member of the Federalist Society since 2005.[1]. The person who posted that she is inexperienced is inexperienced in properly presenting the facts. Research! We don’t need no stinkin research!!
To be fair, none of that demonstrates judicial experience. But she is more qualified for this job than Trump was for the presidency.
he didn’t use the opportunity to discuss how climate change may seriously adversely affect the areas he likes to visit.
35 years of age and natural born citizen?
wrong post my bad
That’s an exceptionally low bar.
Trump was more qualified than a peanut farmer… You know… Jimmy Carter….The guy who was the worst president in the modern era until Biden was placed as president.
I’d say Trump is the worst president in US history, with GWB in second place.
Aileen Mercedes Cannon was born in 1981 in Cali, Colombia. Her mother had fled Cuba under Fidel Castro at the age of seven. Cannon attended the University of Seville in Spain in 2001
Her being an immigrant Latina educated, in part, in Seville, makes her more qualified than the non-biologist (TM) SCOTUS nominee now Justice who can not define a woman/womyn, who is actually Latina (unlike Sotomayor-desastre) and a non-septuaginarian Marxist, like the typical Democrat tyrant
The Ukrainian call, the Russian collusion hoax. I expect this will be the trifecta. The more that comes out the more it favors Trump. DOJ prove me wrong and prove you have an ounce of credibility. Political hit jobs keep coming, transparency is the answer. BTW still waiting on the proof Schiff promised he had on Russian collusion.
Jonathan: There have been other negative reactions to Judge Cannon’s unprecedented attempt to side with Trump. Here are a few other reactions:
Paul Rosensweig, a former homeland security official under George W Bush, said it was extraordinary for Judge Cannon to block the DOJ from steps like even interviewing witnesses about the classified docs recovered at Mar-a-Lago: “This would seem to me a genuinely unprecedented decision by a judge–Enjoining the ongoing criminal investigation is simply untenable”. Ryan Goodman, a NYU law professor says: “Judge Cannon had a reasonable path she could have taken–appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise. Instead, she chose a radical path”. But trying to halt the criminal investigation of Trump seems Judge Cannon’s intent. She is, after all, a member of the Federalist Society who chose all of Trump’s appointments to the federal bench.
The list of other critics of Judge Cannon’s decision is too long to cite here. The only Q is where are the legal authorities on the “right” who support your untenable position that Judge Cannon’s decision was “the right thing to do”?
@Dennis,
I don’t see it that way.
You’re claiming that the judge’s actions were unprecedented in an attempt to side w Trump.
You’re implying that her actions were out of line. But that’s far from reality.
I think as Turley points out and from information not only presented to the courts, but also present in the public eye due to leaks from the FBI…
The warrant was a clear overreach and event the DoJ and FBI admitted in taking both personal and privileged information for which they had no right to do so.
In fact the warrant was so broad it was clearly a 4A violation. The sheer volume of documents recovered and from all areas of the house indicate that it was a fishing expedition.
The law is clear on this. Were it you and not Trump, you’d be screaming for your 4A rights being violated.
Now if you want to be a cynic… you could say that it was intentionally broad because this was an effort to spy on Trump. That the warrant was to get any and all docs Trump had, knowing that it couldn’t be used to prosecute a case. Meaning they wanted to see what Trump had, but limit this from going to court in order to limit Trump’s options for a response.
-G
“even[] the DoJ and FBI admitted in taking both personal and privileged information for which they had no right to do so.”
No, they did not admit that they had no right. Get the facts straight.
“it was clearly a 4A violation.”
So far, no court has said so. You have an opinion, but it’s the courts that will determine this.
@Anon
Clearly you don’t comprehend what you hear and read.
Just a simple example… FBI raid took Trump’s passports (active and expired).
That’s one example where they admitted that they took it and returned it.
Then read the court filings.
You can’t make this stuff up.
-G
That’s quite a non sequitur.
I’m well aware that they took Trump’s passports, which were in the desk drawer with docs with classified markings, and that the government returned them.
I’m also aware that in the government’s response to Trump’s motion, the government noted the following:
… certain personal effects were commingled with classified material in the Seized Evidence, and they remain in the custody of the United States because of their evidentiary value. 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.
First, the search warrant authorized seizing and retaining items in containers/boxes in which documents with classification markings were stored. See MJ Docket D.E. 17 at 4. Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.
Second, even if the personal effects were outside the scope of the search warrant (contrary to fact), their seizure and retention would not violate the Fourth Amendment because they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant. See, e.g., United States v. Wuagneux, 683 F.2d 1343, 1353 (11th Cir. 1982) (“It was also reasonable for the agents to remove intact files, books and folders when a particular document within the file was identified as falling with the scope of the warrant. To require otherwise ‘would substantially increase the time required to conduct the search, thereby aggravating the intrusiveness of the search.’” (citation omitted)).
Third, even if the personal effects were seized in excess of the search warrant—which Plaintiff has not established—Criminal Rule 41(g) does not require their return because that Rule was amended in 1989 to recognize that the United States may retain evidence collected while executing a warrant in good faith. See, e.g., Grimes v. CIR, 82 F.3d 286, 291 (9th Cir. 1996). As the Advisory Committee explained in connection with the 1989 amendment of Criminal Rule 41(e) (now subsection (g)), Supreme Court precedent permits “evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant,” to be used “even against a person aggrieved by the constitutional violation,” and “Rule 41(e) is not intended to deny the United States the use of evidence permitted by the fourth amendment and federal statutes.” The decoupling of Criminal Rule 41(g) from the Fourth Amendment also explains why a motion to return property provides no forum to litigate the scope of a search warrant: failure to comply with a search warrant or the Fourth Amendment is neither necessary nor sufficient to prove a movant’s entitlement to the return of property under Criminal Rule 41(g).
Fourth, and independent of the three foregoing reasons, the former President could obtain the return of his personal effects under Criminal Rule 41(g) only if he satisfies the four-part Richey test. …
What part of that do *you* disagree with?
@Anon
All of it.
Too long to get into details.
But Iowan has it right.
Anything from this search would be inadmissible which means it wasn’t executed with investigating a crime and intent to go to trial.
The more we look at this… the more we know something isn’t kosher.
“Too long to get into details.”
It isn’t. You just don’t want to.
So far, no court has said so. You have an opinion, but it’s the courts that will determine this.
There is no relief for the victim of an illegal warrant. Not until they get in front of a judge and object to evidence presented at trial. Then the evidence can be excluded for cause. Garland has no intention of ever using any of this as evidence. Garland2.0 is just as pathetic as Mueller 1.0
Trump is a pig, a thief and a liar. These things are proven. He STOLE NARA documents. This is a fact. So what should the DOJ do? Just let him get away with stealing NARA documents, lying about returning all of them, do with them as he pleased, or seek a search warrant to compel their return? Turley argues, without any legal authority, that the DOJ should have sent a second subpoena–what for, when the first subpoena only netted less than half of the NARA documents? WHY should Citizen Trump be treated any better than anyone else caught illegally possessing NARA documents? If anything, he should be held to a higher standard because he took an oath to protect and defend the Constitution from adversaries, both foreign and domestic.
So, now, the beef is that the warrant was “overbroad”. So, what was the FBI supposed to do when Trump commingles medical records, letters and emails flowing between him and legal counsel, his passports, newspapers, magazines and framed fake Time Magazine covers in boxes with empty file folders, TS/SCI documents and other materials? Appoint a “filter team” to go through every box while they were still at MAL, remove irrelevant items, retain relevant items– or do what they did, which was take any box that contained NARA documents and sort through them later on. If they had sorted through the boxes at MAL, that would have taken hours, maybe days, there might have been disputes about whether some should be taken or left. This would have opened up the FBI to claims of planting documents or other baseless claims that the FBI engaged in wrongdoing. Taking items out of boxes destroys the context into which the materials were located and maintained, which would open up the seizing agents to questions about their testimony later on. It was proven by CCTV footage that people had been moving papers and files between boxes in a storage unit. The boxes had been labelled, so why was this done, other than for purposes of concealing evidence and obstruction of justice? This is why the FBI had to take any box containing anything responsive to the search warrant and sort through the materials later on with a filter team. Context is also the reason why the FBI took some of the materials from boxes and photographed them in the location where they were found–to prove, for instance, which ones had been stored in Trump’s office, which is unsecure, which ones were found in a storage locker, etc.. A tipster told the DOJ that the documents would be found in multiple locations. This is routine practice. When the FBI executes a search warrant at a house or hotel room for illegal weapons or drugs, they ALWAYS take photos of the location where the items were found when the warrant was executed. We have all seen photos of rows of assault rifles and hand guns laid out on a bed, or rows of bags containing heroin displayed on a kitchen table. This standard procedure, which is something Turley knows, so he is just pandering when he claims that the photo showing the TS/SCI papers lying on the floor was calculated to mislead people. The FBI never claimed this is how they found the documents.
The bottom line of the equation is that Trump could have prevented this by simply allowing the NARA to take custody of the papers before he left the White House. Or, he could have voluntarily returned all of them: 1. when requested; or 2. when subpoenaed. He did neither. The public should rightfully be riled up about Trump causing this crisis in the first place by taking documents he had no right to possess, lying about returning all of them, plus his unwarranted attacks on law enforcement. It’s only the followers of alt-right media who think that law enforcement is in the wrong in this situation, aided and abetted, of course, by Turley.
Look in the mirror to see what you described aboutt Trump. Keep on name calling. It makes you sound as ignorant as your posts always are.
Perfect proxy for showing how scared the left is getting. I just scrolled past after the first line, knew it was another ignorant troll
Not only should AG Garland have appointed a special master in this case but failed to do so, he should have appointed a special counsel to deal with the Hunter Biden Laptop. One thing that Senator McConnell got right was blocking Garland from the Supreme Court.
The question that comes to mind is did they read the privileged material before they returned it? Being the choir boys that are the FBI I’m sure that they quickly cast their eyes away from the privileged material. Has anyone noticed that the FBI agents who carried out the raid were all carrying fishing poles. Many fish bite if you got good bait. Here’s a little point that I’d like to relate. With my pole mama and my line Ima goin fishen yes Ima goin fishen and the FBI a goin fishen too.
Jonathan: Not a big surprise. In this case Trump was engaged in judge shopping. He knew that filing his motion for a Special Master with Judge Reinhart, who authorized the search warrant, would have fallen on deaf ears. So Trump found a sympathetic Judge Cannon, he appointed, who is doing her best to throw sand on the gears of justice.
Several points need to be made re your column. First, a Special Master in a criminal case is “unprecedented”. In the vast majority of appointments they involve civil cases–often involving accounting issues. To appoint a Special Master at this stage of a criminal investigation is a bizarre exception to the general rule. You actually admit this when you say: “[i]t is not common to see this type of review at this stage”. Exactly!
There has been strong reaction to Judge Cannon’s decision and they are not confined to the “left”, as you claim. Barbara McQuade, a former federal prosecutor says: “A privilege [executive] belongs to the current executive branch, not a former president”. Jay Bratt, the DOJ’s counter intelligence chief says: “He [Trump] is no longer the president…he did not have the right to take those documents”. All the federal statutes on the issue make that clear. As a private citizen Trump has no right to assert executive privilege over docs he had no right to take in the first place. All of this fell on Cannon’s deaf ears who apparently wants to obstruct, or at least slow the normal course of a criminal investigation.
Whether the DOJ appeals or just agrees to a Special Master the criminal investigation will continue. Judge Cannon’s decision is just a temporary roadblock. The road will eventually be cleared so Trump can be indicted after the mid-term elections.
The left hates transparency, the rule of law and now…
—
Democrats have ‘hatred’ for black conservatives, says Virginia Lt. Gov. Winsome Sears
For Democrats “to continue to win, they need to get 80 to 90% of the black vote,” said Winsome Sears. “That’s why they are so full of hatred when conservatives like me, or libertarians, don’t think the way they do.” Sears is black.
And yet Trump is the one who committed multiple felonies by stealing classified documents.
And yet Trump is the one who committed multiple felonies by stealing classified documents.
The trial must have been held in the Star Chamber. When is he scheduled for execution, or is that a secret only you know as well?
Sammy, why do you have to continuously prove you know absolutely nothing? Stop trying to prove your pretend friend smart by comparison to you. It doesn’t help either.
that is assuming that the docs. aren’t actually de-classifieed
No special master says the left because we are so honest. But what do we see?
—
FBI ignored ‘eyewitness testimony’ of Joe Biden’s involvement in Hunter’s China deal: senator
“The suppression and censoring of his testimony and Hunter’s influence peddling impacted the 2020 election to a far greater extent than anything Russia or China could have ever achieved”
The left hates transparency. That is what a special master affords.
—
‘25,000 dead registrants’: Why legal nonprofit is suing Soros-backed Michigan elections chief
“We had pictures of their gravestones in the complaint,” said former DOJ attorney J. Christian Adams. “We sent Jocelyn Benson, the secretary of state in Michigan, notice about these dead people before the 2020 election. She didn’t do anything.”
Just wondering, how many of these 25000 dead voters actually voted in the 2020 election?
You have proven Trump’s claim. One can’t and that is why election reform is needed and that those in control of elections should do their job. 4,000 of them have been dead for more than 20 years.
Thanks for finally recognizing this problem.
Thank goodness we still have some judges who understand that the rule of law supercedes partisan loyalties. How long this can ontinue depends on forthcoming elections to stop this prog/left onslaught into socialist tyranny.
Great. A Federal Judge followed the law. This should not be astonishing enough news to warrant the subject of a post. It remains to be seen who will be appointed, and at this stage, I don’t hVe a whole lot of faith in the integrity of the situation.
I honestly do not know how to help 21st century liberals understand that their party is no longer about compassion, humanity, or the disenfranchised. There is no more backward, ignorant, or backward looking fool than a privileged, liberal, American.
A judge actually following the law should not be cause celebre. Tired of the p****y footing around. Never, as an independent, voting dem again.
In at least 6-10 comments, “Anonymous” has mentioned “for the umpteenth time” that classification of the documents was not relevant/pertinent.
With equal fervor and rigor, I wish Anonymous would mention “for the umpteenth time” that Trump did not STEAL any documents. All documents (classified or not) were removed on or before January 20, and Mar-a-Lago was a SCIF at least until that time.
The ISSUE is over his RETENTION of documents beyond that point, and/or accusations that he was hiding them.
AS I’ve said on numerous occasions, selective facts can be more damaging than a lie.
Lin,
That is why I skip over Anonymous comments, and a few others whom repeat the same selective facts over and over again.
Personally, I am in wait and see mode who the Special Master is going to be, their background, and what they may turn up or their judgement may be.
Otherwise, it is all speculation.
“That is why I skip over Anonymous comments,”
You are smart Upstate. Anonymous the Stupid spins and lies too much so his posts shouldn’t exist on the blog. They do, and my anonymous replies exist as well. Not reading any (including mine) of them is smart. If I have something to say I post it under my alias.
I wish anonymous comments weren’t permitted. The blog would be a lot better.
Last paragraph: me, too.
Mar-a-Lago was not a SCIF. If it were a SCIF access to the property would have been controlled.
Have you ever been to Mr-a Lago?
No.
Are you suggesting that everyone entering Trump’s Mar-a Lago property had an FBI background check and a TS/SCI security clearance? And that they presented evidence of same when entering the property?
Are you suggesting everyone entering the White House had an FBI background check?
Have you? We thought not.
The answer is, yes, many times.
a) I don’t know that all of the documents were taken prior to noon on Jan. 20, 2021. That seems plausible, but if you know that as a fact, please cite your evidence. Even if they were, the law requires all Presidential Records to be turned over to NARA at the end of the President’s term(s) in office, and that clearly did not occur with Trump.
b) To the extent that I’ve characterized them, I’ve probably referred to them as illegally in his possession, not stolen. It’s not my job to correct every other person about this distinction.
c) I believe that *sometimes* “selective facts can be more damaging than a lie,” and *other times* they are not — that whether or not it’s the case depends on the specifics of the situation, the selection of facts, and the lie(s) involved. IF you want to argue that I’ve presented “selective facts” that are “more damaging than a lie,” THEN I await your actual argument about that. IF you are claiming that about what someone else wrote, THEN you should address yourself to that person.
d) I find it odd that you want someone to mention BOTH that the alleged crimes do not hinge on whether the documents were classified AND also that “Trump did not STEAL any documents,” but you apparently do not want to be that person.
e) Re: “classification of the documents was not relevant/pertinent,” no, I haven’t claimed that. It’s pertinent, especially if some of them remain classified. However, the alleged crimes do not hinge on it.
“The ISSUE is over his RETENTION of documents beyond that point, and/or accusations that he was hiding them.”
Those are some of the issues, but not the only ones. Others include his failure to turn them over when subpoenaed, the possibility that he allowed people lacking security clearances to view them, his failure to properly secure them, and whether he’s obstructed the investigation.
@Anon,
You seem to be misinterpreting the law. NARA does not say that.
There is a negotiations as to what is to be returned and what is to be kept.
You want an example… ask Turley about Clinton’s sock drawer reference.
_G
Pay better attention. I said that the PRA (not NARA) requires it. Have you read the PRA?
And how do you know that MAL has/had a SCIF? Those documents, when seized, were in a closet with a padlock on the door.
Trump is guilty, at the least, violating the Espionage Act, and at most treason.
MaL had a SCIF when Trump was President, as is routine for the residence of a sitting President. It has not had one since he left office, as the DOJ stated when the grand jury subpoenaed the documents in May.
Trump had the legal right to have those documents at MAL and protection exists. It is likely better protection than the Capitol Building where Cobert’s team unlawfully entered after being thrown out earlier.
Wally:
“Trump is guilty, at the least, violating the Espionage Act, and at most treason.”
*****************************
We’ve told you oh several hundred times that for treason to be in play a war has to first be declared. Your legal analysis is about as interesting as your non de plume. See Ex parte Bollman. It’s a legal blog, guessing gets you no points. In fact, it gets you ignored.
Lin, “With equal fervor and rigor, I wish Anonymous would mention “for the umpteenth time” that Trump did not STEAL any documents. All documents (classified or not) were removed on or before January 20, and Mar-a-Lago was a SCIF at least until that time.
The ISSUE is over his RETENTION of documents beyond that point, and/or accusations that he was hiding them.”
Whether he took them before or on the 20th is irrelevant. Once he was no longer president and in possession of those documents he was in ILLEGAL possession of those documents. They should never have left the white house in the first place. After Trump ceased being president the SCIF designation is no longer official. Especially when the documents in question were NOT supposed to be there at all regardless of whether it was before or after the 20th.
The continued retention of those documents after being asked several times for them and lying about giving all of the documents back legally can be defined as theft. Trump did steal those documents and preventing the FBI from looking into those boxes in June and asserting to the FBI that they gave everything back IS legally defined as willfully hiding the documents from the FBI.
It is NOT a “selective fact” that Trump’s (now former) attorney said, in an affidavit, that ALL of the NARA documents were returned in June. That is a fact. A tipster told the FBI not only was that untrue, but that even more NARA documents could be found in multiple locations OTHER THAN storage. That is a fact–more than twice the number of documents voluntarily returned earlier were found in August. These are NOT “selective facts”. Trump left the NARA and DOJ with no choice other than to force him to return the documents via a search warrant. And, as to the irrelevant papers, like medical records, passports, letters and emails from his attorneys, why didn’t Trump remove these during the year and a half that he had the boxes? He personally went through the boxes last December. Why didn’t he take out these items then?
If Trump had some legal entitlement to these documents, why did he voluntarily hand over 15 boxes of them, and why did his lawyer lie about returning all of them? And, where did you come up with the story that MAL was a SCIF?
This situation is truly Unique, which is an overused word these days. This is ‘one of a kind’ in that the ‘defendant,’ the ‘accused party’ is not just an individual, Donald J. Trump — this is the 45th president of this country.
And so when so many of you make your comments and observations about whether the attorney General, Garland and his DOJ, can make a case, that misses the point — if ever there was a situation in which the case being made cannot be esoteric, or not easy to comprehend for the average person in this country, this is such a situation.
And if they’re having this much trouble at this point with their case, and the reputation of the DOJ and the FBI dating back to 2015-16 with respect to Donald Trump and his allies is visibly compromised so even Trump haters can’t deny the compromise completely, I have an idea which I think Joe Biden should do, and do now, if Joe Biden wants to unify this country right now- Pardon Donald Trump and do it before the November 2022 election.
I have not seen or heard anyone else suggesting this but maybe someone has and it’s been suppressed by the MSM….
If Joe Biden still has enough common sense in his declining brain to overrule his many ‘handlers,’ in the interests of this great nation, and to preserve the peace and prevent civil war — pardon DJT.
Pardon him from what? Pardoning Trump would be an admission that Trump is guilty.
Trump wouldn’t do what you suggest if the situation were reversed. Maga republicans would never accept such a notion.
I certainly would. I’d even pardon Bill, but not Hillary.
Trump doesn’t deserve to be pardoned. He has literally NO moral compass and NO remorse. He knew, before he stole the papers, that it was improper because Pat Cippoline and Pat Philbin both told him. The NARA told him to leave the papers, but he took them anyway, lied about returning them and forced the DOJ to get a search warrant. He has benefitted politically and financially from the theft. The DOJ cannot let this go.
That would actually be a good move. It would make Biden look magnanimous and sincere in trying to heal the nation. Then, if Trump accepted the pardon, the blue annons could argue it was an admission of guilt, which is why Trump would never accept. Thus, it would be a double win for Biden, which of course is why they’ll not offer it, he is too retarded and his handlers are too malicious.
If Trump is guilty of crimes, he should be indicted, not pardoned.
Another politically motivated DOJ case circling the drain. You can see the judiciary isn’t going along with this “banana republic” style investigation as the judge flatly rejected these claims of “integrity” by the so-called (Leaky) Filter Team.
“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.”
That’s a judicial slapdown.
“ 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.”
The judge is wrong in this case and shows why she may not be experienced enough to understand that what happened is common. What the judge didn’t mention is that the FBI investigative team notified the review team of the documents and according to the law returned then to the review team to include them with the documents already segregated as privileged.
Marcy wheeler has a more detailed explanation of this.
“ What happened, we can tell from context and the available inventory, is that after an initial privilege review released material to the investigative team, the investigative team found two individual documents seized from the storage room that might be privileged, and then turned them over to the filter team. That complies, to a T, to the requirements of the law and the warrant (which only required the filter team review stuff from Trump’s office). This is what happens in every single criminal case in the US. But Cannon deemed it as proof of failure, and so used it to require a Special Master review everything anew.”
https://www.emptywheel.net/2022/09/05/judge-aileen-cannon-thinks-64-tax-and-medical-records-no-investigator-has-read-are-more-important-than-11282-stolen-government-documents/
The filter team let things slip through. That makes them incompetent or political. Either way, that is why in this case a special master was needed immediately after the records were taken.
“The filter team let things slip through. That makes them incompetent or political. Either way, that is why in this case a special master was needed immediately after the records were taken.”
That is not incompetence. It’s routine. This happens all the time. The fact that they did follow the law when the investigative team found the documents means they are being diligent in their duty. A special master was never needed.
“That is not incompetence. It’s routine. This happens all the time. “
The filter team is supposed to prevent the wrong documents from reaching the investigatory team. When documents do that proves the filter team screwed up. Anyone with reasonable brain power should easily recognize that.
Sevvy:
“The judge is wrong in this case and shows why she may not be experienced enough to understand that what happened is common.”
**************************
Thankfully, you are. Tell us what you did in the FBI, Daddy!
Mespo, according to more experienced people who KNOW what they are talking about this is correct. These instances of missed reviews are common.
https://www.emptywheel.net/2022/09/05/judge-aileen-cannon-thinks-64-tax-and-medical-records-no-investigator-has-read-are-more-important-than-11282-stolen-government-documents/
The empty head links to the empty wheel.
When did you stop beating your wife and kids?
Sevvy:
” … according to more experienced people who KNOW what they are talking about this is correct.”
************************************************
Hard to argue with your “source.” I always get my legal anaysis from non-lawyer bloggers who live as ex-pats with their “terrorist” dog:
“Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Motherboard, the New Republic, and Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.
(…)
Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. Marcy, her spouse, and June Bug the Terrorist FosterEx Dog recently moved to Ireland.”
In that vein and just today, I was asking my barrista (who writes things on my cup) about her thoughts on Andrew Smithers new book “The Economics Of The Stock Market.” Great news! As for the Miller/Modigliani Theorem, she’s for it!
What if they appoint a Biden supporter as a Special Master? It must be quite difficult to find anyone unbiased at this point.
This was an abuse of power. Material they were not supposed to take and are prohibited from using will still get leaked. Then they’ll shrug their shoulders and say, “What difference does it make?”
They will need to appoint someone who is already cleared to review TS/SCI classified documents. That’s a very small pool of people to choose from and it’s very likely they are all in government intelligence.
and it’s very likely they are all in government intelligence.
What, people don’t retire?
Sec. of State Mike Pompeo is available.
Pompeo would be seen as too biased. I would have to be someone who is trusted by both parties.
I’d like to see Rick Grennell as Special Master. You would hear the sphincters slamming shut from miles away…
If anyone abused power, it was Trump, who stole the documents. that he was “not supposed to take”. You keep overlooking the simple fact that all of this is on Trump who was told not to take the papers in the first place.