DOJ Filing Before Eleventh Circuit Only Seeks to Stay of Part of Special Counsel Order

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and redacted by in part by the FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump's Mar-a-Lago estate in Florida. On Thursday, a federal judge appointed a special master to review the documents. 

Late Friday, the Justice Department filed its long-awaited appellate filing related to the special master order of United States District Judge Aileen Cannon. While the Administration previously argued that the appointment itself is a threat to national security and unsupportable, it notably dropped its opposition to the appointment on appeal and only appealed one aspect of the order.  In its motion for a stay pending appeal, it is only asking the 11th Circuit to allow it to continue using classified documents seized from former President Donald Trump’s Mar-a-Lago property in a criminal investigation. The filing may reflect that time is running out for the Administration since a special master is now in place and is likely to prioritize (and release) these very documents. The motion pending appeal does not prevent the DOJ from later challenging the whole appointment but it will come after the special master has begun his work.

While legal experts pushed the department to challenge the entire order, the Department is seeking a smaller target.  In litigation the rule is the same as in hunting: “aim small, miss small.”  The DOJ could have just asked for a stay based on the arguments that a special master is facially improper. Instead, it focused on access to these documents in the first filing.

Despite a chorus of legal experts claiming that the entire order is legally unfounded and unsupportable, the DOJ is not making those arguments in court.  Indeed, it is not making the sweeping demands that it presented before Judge Cannon. It is only seeking access to roughly a hundred out of the thousands of documents seized in the Mar-a-Lago raid.

The filing states

“Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process.”

However, retired judge Raymond Dearie is now in place and was reportedly asked to prioritize those documents. It is likely that he would finish his review of the small number of documents relatively quickly. That would leave the Justice Department potentially with access as Dearie worked through the rest of the thousands of documents seized.

The filing seems intended to not just secure a victory before that release but also to abandon its prior sweeping legal claims. It is a smart move.  The first such move in this litigation by the Justice Department.  The Eleventh Circuit could always go further on its own to strike down the order or indicate unease with the order as a whole but the Justice Department is only seeking a narrow remedy on the strongest claim dealing with classified documents. The decision on the motion pending appeal could give the DOJ an insight on whether the court is willing to go further on a more general rejection of the order.

That is a change from the prior litigation. Media pundits mouthed the same exaggerated claims and challenged those of us who argued that it was clearly possible to release a redacted affidavit; liberals suddenly shuddered at the thought of doubting the Justice Department.  Then the government produced a redacted version that caused no such harms while confirming important facts in the case. The DOJ then made the same claims in opposition to a special master; claiming that the appointment would threaten national security.

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.

Now, after all of those over-wrought claims, the DOJ is only asking for access to the 100 documents — which is precisely where Dearie is expected to begin.

The DOJ would clearly like to eke out a victory before the Special Master rules. He is likely to give access to the documents as legitimately in the possession of the government. That would not only allow the use of the documents in the criminal investigation but it would blunt any negative ruling over other material that may have been improperly seized or retained. The DOJ itself acknowledged not just errors in its filtering process but also the seizure of potentially attorney-client protected material.

The question now will be whether the Eleventh Circuit wants to expedite the matter to order the access or give Dearie a chance to release the documents after a review. If Dearie were to act quickly, it could moot the appeal.

The only delay might be a challenge over the executive privilege claims that President Trump has raised with the Court. Judge Cannon has noted that the Court has never conclusively held that a former president cannot raise such privilege arguments. However, access could be restored before that question is resolved by the trial court though the Trump team could still object.  Conversely, it is not clear if the 11th Circuit will view that question as a threshold matter to be resolved before any access is given. If so, there would be a need for a full briefing and argument on the constitutional and statutory issues.

Here is the filing: DOJ Motion Pending Appeal

This blog was edited to add a copy of the motion pending appeal and add to the discussion of the options following the filing.

377 thoughts on “DOJ Filing Before Eleventh Circuit Only Seeks to Stay of Part of Special Counsel Order”

  1. This started with YOUR hypothetical. It is not my problem to explain why your assumptions in your hypothetical are true.

  2. Yes, I know, your not responsible for anything.
    You not responsible for your own choices.
    You not responsible for the force you subject others to as a consequence of your vote.

    1. Did you vote for Biden?

      If so, that means you’re responsible for the way the Biden Admin screwed up the Afghanistan pullout, yes?

      you’re responsible for all the illegal aliens the Biden Admin is letting in, and for every single crime they commit here.


  3. If you have taken in immigrants – good for you. Though I have no reason to trust you.

    And yes, your beleifs damn you. One need not have a crystal ball to take you at your word.

    It is likely DeSantis and Abbott will keep this up. Probably getting better at it with time.

    They succeed in making this an effective attention getting issue Because of the hypocracy of those like you.

    Martha’s vineyard could not figure out how to deal with 50 illegals.
    Southern border states are dealing with morel than 2M a year – because of YOUR failures.

    1. “ Martha’s vineyard could not figure out how to deal with 50 illegals.
      Southern border states are dealing with morel than 2M a year – because of YOUR failures.”

      False. Martha’s Vineyard had no issue dealing with the 50 immigrants dumped by Desantis. They organized aid, shelter, food and legal representation fairly quickly.

      Southern border states have been dealing with immigrants for decades. They are better situated to deal with large influxes of immigrants. The reason for the complaints are mostly because of the amount of money and resources spent on it. Resources and money that the republican congressmen refuse to address so they can continue to have an excuse to criticize the current administration.

      Desantis only succeeded in pointing out the incompetence of trying to make a point by violating state and federal law with LEGAL aliens waiting on their asylum hearings. Many of those migrants have family that they were waiting to go to until DeSantis’ stupid stunt took them where they didn’t need to be. Now he’s having a hard time defending his idiotic blunder instead of making his “point” on immigration

      1. “False. Martha’s Vineyard had no issue dealing with the 50 immigrants dumped by Desantis. They organized aid, shelter, food and legal representation fairly quickly.”

        And then transported them to an abandoned military base somewhere else.

        Did they get informed consent before having MA national guardsmen escort them to the busses ?
        Did the kidnap them ?

        MV promotes (virtue signals) itself as a sanctuary city.

        Do you know anything about the law and history of sanctuary ?

        If a church, country, city, … gives you sanctuary, that means it takes you in. It feeds you, cloths you and keeps you.

        Assange received Sanctuary from Equador for years. He was given an apartment in their embassy and taken care of for years. He was not given a meal and shipped off to a military base,.

        What is obvious is that MV is hypocritical.
        They are a sanctuary in name only.

        1. “ MV
          And then transported them to an abandoned military base somewhere else.

          Did they get informed consent before having MA national guardsmen escort them to the busses ?”

          Yes they did, they didn’t have to lie to them about what was going on. They also coordinated with local authorities to provide for their basic needs. It shows MV figure it out. DeSantis just lied to them and sent them to MV under false pretenses. There’s no excuse for that.

          1. “they didn’t have to lie to them about what was going on.”
            They did not ? So the Massachuetts national guard was brought in despite the fact that the voluntarily agreeed to go to an abandoned military base ?

            “They also coordinated with local authorities to provide for their basic needs.”
            Do you read what you write ? “They coordinated with they” of course they did.

            The white elites of MV did not want any brown people – I beleive they were called Trash on twitter and by one media outlet. And the local authorities did not want any brown people.
            I will bet that MV would have given them all Posche’s to get them off the island.
            But instead they collected money for them – which MV kept, and they had the National guard haul them off “voluntarily, after informed consent” ROFL.

            1. John B. Say,

              “ They also coordinated with local authorities to provide for their basic needs.”
              Do you read what you write ? “They coordinated with they” of course they did.”

              Apparently you can’t read for comprehension. MV residents coordinated with local authorities to provide for their needs.

              Asking the national guard to assist by moving them temporarily to an abandoned military base is not “getting rid of brown people from their island”. That’s your poor attempt to portray it as racist or elitist.

              The migrants are supposed to be somewhere else and I’m sure they will be taken to their destinations. However, since DeSantis stunt they are now eligible for a special visa because they were victims of state sponsored human trafficking.

              Making false claims does your already poor excuses much worse.

              1. Absolutely MV coordinated – but not to meet the needs of these brown people, but to remove them.

                What these people needed was a place to say, and jobs. If those can not be found at MV, then there is no place in the country where they can.

                This community sells itself publicly as a sanctuary community – It is not DeSantis that falsely promised illegal immigrants jobs, shelter and sustanance – MV explictly and implicitly promised exactly that. That is precisely what sanctuary means.

                Further MV fund raised on the back of these brown people, then kept the money and FORCED them out.

                You do not need the National Guard for people leaving voluntarily.

                Further MV and MA arranged fro them to be sent to an abandoned military base. Trump wanted to keep detaineers at abandoned military bases as they awaited deportation – democrats in congress refused. But aparently these military bases are good enough when the people of Martha’s vineyard might have to see a brown person.

                I am not opposed to using older military bases to house illegal immigrants, but putting them up in military bases is NOT Sanctuary, it is NOT a route to a job or productive incorporation into the country. It is warehousing, it is jailing them in preparation for deporting them. Something those of you on the left oppose.

              2. These Venesuelans exposed the people of Martha’s Vineyards as frauds and racists and hypocrits.

                Your defense of them exposes you as the same.

                DeSantis’s “crime” is exposing YOUR hypocracy.
                DeSantis did nothing that Biden and the people of Martha’s Vineyard have not done.

                The differences is that Texas, and Florida, and Arizona, never claimed they were a sanctuary. They never claimed they wanted millions much less only 50 illegal immigrants.
                Texas, Florida, and Arizona, are not hypocrits.

                Martha’s vineyard is, You are.

                Further you and the people of Martha’s Vineyard are LIARS.
                You do not welcome or even want diversity, you do not want immigrants in your community.

                You want to FORCE diversity on OTHERS – not you.
                You want to FORCE immigrants on OTHERS – not you.

                You are immoral – in so many ways.

                You lost this fight the moment that Martha’s Vineyard brought the secret service in to FORCE these people onto busses to abandoned military bases.

                All the things you rant about – are both FALSE and irrelevant.
                It does not matter how DeSantis got these people to Martha’s Vineyard.
                The evidence sugguests he did so reasonably and legally, that he made no promises that Martha’s Vineyard had not itself made publicly.

                But even if DeSantis broke the law – so What ? these immigrants break the law by the thousand everyday, and the communities they invade must cope with them regardless. All that is different is that the communities along the southern border did not offer these people sanctuary.

                Martha’s Vineyard INDUCED people to come in order to look enlightened and moral – in the expectation they would NEVER have to live up to their offer.
                When 50 people actually showed up – they proved to be frauds, liars, hypocrits, virtue signalers. And worse they were unwilling to tolerate for themselves what they FORCED on others.

                almost 5 M people have illegally arrived in the US in 22 months. These people are being taken in by communities all over the US. Communities that did not offer sanctuary, that did not promise to take these people. that did not promise to provide food, shelter, jobs. Grudgingly these communities are taking illegal immigrants in. They have no choice. The Biden admin is not enforcing our immigration law.

                Yet, Martha’s vineyard can not manage 50 people, when most of the country has far more.

                MV has about 20,000 permanent residents. That means they should proportionately be taking in 120 illegal immigrants PER YEAR, to match what the country as a whole must do.
                MV has 200,000 summer residents – so much for the idiotic claims that MV has no place to house these people.
                For every current MV resident there are 10 empty beds.

              3. Continuing to argue this just makes you a racist hypocrite.

                The KKK offered all kinds of “rational” justifications for their bad conduct – just as you are doing.

                When you drown in bias you can beleive any justification for your own bad behavior or that of those you support.

                YOU claim that is what Trump supporters do all the time,

                But as evidenced by your defence of this, YOU are the one who allows your ideological bias to warp your arguments and your perception of reality.

              4. One day there were 50 brown people on the island.
                The next day the people of Marthas Vineyard had worked their political magic and the national guard arrived to escort those 50 brown people off the island.

                In the real world that is “getting rid of brown people”

                It is not quite as Bad as Roosevelt rounding up americans of japanese descent,
                It is not quite as bad as Hitler rounding up jews.
                It is very very close to “no colored allowed here”.
                It is identical to “Irish need not apply”.

        2. “ Assange received Sanctuary from Equador for years. He was given an apartment in their embassy and taken care of for years. He was not given a meal and shipped off to a military base,”

          You’re engaging in false equivalency. Assange was just one individual in a different country with different laws regarding asylum.

          MV had to 50 individuals dropped off without notice or due process as a political stunt. Your excuses are not making DeSantis decision any more justified.

            1. “ That is how asylum works – throughout the world.”

              Each country has its own asylum requirements. They are not all applied equally.

          1. “MV had to 50 individuals dropped off without notice or due process as a political stunt.”
            Texas has about a million people dropped off without notice or due process as a political stunt.

            “Your excuses are not making DeSantis decision any more justified.”
            No excuses at all.

            I am happy. DeSantis is exposing those of you on the left as the racist elites you are.
            Keep pretending that a few sandwiches and coffee and on your way to the nearest military base guarded by the national gaurd is a good look.


      2. If DeSantis violated any law, then DHS violates the same law all the time.
        And Martha’s Vineyard violated the same law when it used the National Guard to Forcibly remove these peopel to an abandoned military base.

      3. son that we have millions of people trying to cross illegally is because this administration is openly ignoring the law, and magically expecting that the millions of people in the world who might want to come to the US without waiting through the legal process are rushing to get in before the door closes and we return to the rule of law.

      4. And again these are not migrants.

        Your own claim they are seeking asylum defeats that.

        A migrant is someone who comes and goes – usually with the seasons.

        In immigrant is someone who seeks to permanently come here.
        An immigrant seeks asylum.

        Finally the legally correct term is alien – someone from another nation.

        We get this word mumbo jumbo from you leftists all the time.

        Next you will insist we call them “wanting asylum persons”.

        When words are constantly changing and becoming ever less accurate,
        the purpose is deception.

        1. “ A migrant is someone who comes and goes – usually with the seasons.”

          Nope. They are migrants because they are here temporarily, just like seasonal migrants. The term is legal. Once that are granted asylum they are immigrants.

          They term alien also applies because they are not citizens. and in this case they are currently legal aliens as they are here legally as migrants who are here temporarily. This is how the law characterizes them in legal terms. FYI even a migrant can apply for asylum. The requirements for seeking asylum only requires that the person be present in U.S. soil to make that declaration. That’s the law.

          1. “They are migrants because they are here temporarily”
            That is correct, soon enough they will be going back where they came from,
            only with a criminal records so that they will not be able to ask for asylum in the future.

            Migrant does not mean temporary. it means cyclical.
            Why do you wish to keep pushing stupid ?

            “The term is legal.”

            “Once that are granted asylum they are immigrants.”
            Illegal border crossers will not get asylum. They are not even getting the oportunity to request it under Biden.
            Asylum requests – as with Trump are only accepted at ports of entry. There are a bit more than 200K of those per years – slightly up from Trump. Slightly more are getting approved – but not much. USIS gets further behind each year. Even if they allowed illegal immigrants to apply – they will never get to them.

            “They term alien also applies because they are not citizens. and in this case they are currently legal aliens as they are here legally as migrants who are here temporarily.”
            They are illegal aliens that is the legal term, that is the factually correct term.
            If they applied for asylum at a port of entry they are asylees.

            “This is how the law characterizes them in legal terms.”
            Have you been correct about anything regarding law here ever ?

            ” FYI even a migrant can apply for asylum.”
            A legal migrant – and there is such a thing, can request asylum.
            an illegal alien can fill out the form. But if they show up near a court they will be deported.

            “The requirements for seeking asylum only requires that the person be present in U.S. soil to make that declaration.”
            If this were true it would be happening it is not.
            All applications for Asylum that have been accepted were from ports of entry.
            BTW there are bazzillions of requirements for granting asylum – including that the asylee can not live safely in another country.

            Your trying to game the system.
            Your not fooling anyone.

            1. John B. Say says,

              “ “They are migrants because they are here temporarily”
              That is correct,…”

              “ Migrant does not mean temporary. it means cyclical.
              Why do you wish to keep pushing stupid ?”

              Stupid seems to be your problem.

              Cyclical would mean the same individuals would be returning in a regular basis. Seasonal migrants. These are just migrants. As in a singular event which is correct. They are awaiting their hearings so those folks migrated here. They become immigrants once they are granted asylum because they are now on a more permanent status.

              You really don’t understand the differences between the terms obviously.

              1. People who come to a country once to live permanently or atleast for years at a time are immigrants.
                People who come and go who are not seeking to like in the new country permanently are migrants.
                They can be seasonal, or they can come and go on some other basis – like the state of the economy.
                But if they come intending to stay – they are immigrants.

                This is just typical idiocy of the left attempting to redefine words without any rational basis.

                We have two words, they have different meanings.
                We specifically have two words because throughout the world there are two different catagories of people that cross borders.

                YOUR effort to mangle the meaning of the words, destroys the ability to communicate.

                In Svelaz Fantasy world what is the difference between a migrant and an immigrant ?
                And what is the name we give to people who are not seeking permanent or long term residence ?

                We have two words, for two different things.

                BTW we call all cyclical movement of animals migrating. Not just human.
                Often the cycle is seasonal, but it only needs to be cyclical.

                Regardless these people are illegal immigrants.
                Or if you prefer illegal aliens which covers both illegal migrants and illegal immigrants.

                Those properly requesting asylum may or may not be allowed to wait in the US.
                If they have properly requested asylum and they have been allowed in the US, they are legal.
                They are still immigrants not migrants, and they are also still aliens – the overall legal term for foreigners within another nation.

              2. Svelaz – you are just plane wrong and you are butchering the language.

                Migrant: A person who moves regularly in order to find work

                immigrant: A person who leaves one country to settle permanently in another.

      5. So your argument is that because the left has victimized southern border states for decades, that it is OK to continue to do so.

        I have heard rapists use that as a defense – do you really think it looks better on you ?

        You are correct that southern border states have had to deal with this.
        It is time that those people – like you and those in Martha’s vineyard start having to deal with it too.
        Your the ones that think this is a good idea.

        It is time you had “skin in the game”, that the costs of the decisions that you make are atleast partly born by you.

        1. “ So your argument is that because the left has victimized southern border states for decades, that it is OK to continue to do so.”

          Your strawman argument is irrelevant. Southern border states are not victimized by the left. They have the unfortunate consequence of being BORDER states. They have always had these problems regardless of who was in charge in Washington DC.

          I’ve already had “skin in the game” after spending a decade living in El Paso Tx. What you are insinuating is that they should “suffer” like the border states. Problem is republicans can fix that by providing actual resources and funds. Not just building a wall that has already proven to be useless and too expensive for republicans. Trump tried by baselessly claiming Mexico would pay for it. That was a lie and republicans balk at the $22 billion price tag.

          Republicans share the blame for the problems at the border. They like to complain but offer no realistic and practical solutions.

          1. We ALL know that we can fix the entire southern border problem by Electing Trump in 2024.

            Is that really where you want this ?
            Do not be stupid and claim republicans have no solution – when it is obvious not only that they do,
            But that it worked far better than this – and essentially cost nothing.
            While the Mexican’s did not pay for it. The reduction in costs dealing with illegal aliens was enough to cover 10 years of border wall building.


  4. Deliberately inconveniencing another is a Tort – actual harm.
    You are threatening harm.

    You do not think through what you say.

    You clearly have no moral foundations – if you think you are entitled to direct harm at others, just because you call it inconvienence.

    Being shot in the head is inconvenient.


    Look what I found buried within the Presidential Records Act (below). Did everyone else know about this? Haven’t seen it mentioned anywhere yet.

    Certainly seems to suggest DOJ & Libs are wrong/Kavanaugh et al are right; Exec Priv as to a POTUS’ own records survives his office, at least for several years. Also looks like a FPOTUS is indeed Master of his Papers during those years, and that DOJ & FBI may have actually violated the PRA via this whole debacle. Good thing for them there’s no criminal liability under the PRA.


    “ Codifies the process by which former and incumbent Presidents conduct reviews for executive privilege prior to public release of records by NARA (which had formerly been governed by Executive order 13489).

    Establishes procedures for Congress, courts, and subsequent Administrations to obtain “special access” to records from NARA that remain closed to the public, following a privilege review period by the former and incumbent Presidents; the procedures governing such special access requests continue to be governed by the relevant provisions of E.O. 13489.”

    1. My thought is the PRA is unconstitutional. That is not the view of the court todate.

      But it is facially obvious.

      NARA is part of the executive. Whether you give it ownership or custody or anything of the documents of prior administrations, you inherently put those documents in the complete control of the current president.

      Given that probably 1/3 of the documents in a given whitehouse are political rather than government documents,
      Any time you have a party transition you place the political documents of one party in the total control of the other.

      The only means to avoid this is for the ex-president to own most of the WH documents of their administration.

      NARA has lots of provisions that restrict the current president. Those restrictions sound wise. But they are at odds with the constitution, and with dozens of supreme court decisions regarding the power within the executive.

      Ultimately the ex-president and his staff must have the power to decide what they are keeping and what they are leaving as the last official act as they head out the door.

      What the president keeps – he MUST own. NARA can take over whatever is left, but the incoming president can not be denied complete access to whatever is left.

      The above is not how things are, But it is how things MUST be to be constitutional.

      Congress can fund record preservation by ex-presidents. But the ex-president must own and control those documents,
      Otherwise the current president does. There is no means to constitutionally make a current executive responsible while restricting the current president.

      The possession of documents by an Ex-president does not preclude the current president from gaining access or even possession – but that must occur through order of the courts – fully in compliance with the 4th amendment.

      The PRA attempts to create an unconstitutional hybrid.

      if that is what we actually want – we must amend the constitution.

      1. I see your points. I would add that the likely, practical fix here by eg SCOTUS is to apply a standard akin to “legal title vs equitable ownership”. (Ie NARA has former, FPOTUS has the latter; at least for some years after a POTUS leaves office.) – This approach/concept has deep roots throughout our legal foundation, and is, for practical & logistical purposes, emblematic of what actually occurs w these Presidential Papers, and what is feasible & reasonable.

        Also, whether or not PRA will actually be ruled “unconstitutional”, its the current law governing administration of these papers and is clear guidance as to what Congress intended. Current SCOTUS majority seems especially partial to this particular approach.

        1. I am not going to predict how the courts resolve this.

          The bits of the PRA I have read seem confused about whether NARA is a custodian or an owner of the documents.
          And ultimately the documents end up in a private foundation created by the president with atleast limited NARA management which further confuses things – did congress intend to take ownership from FPOTUS and then later give it back ? It makes more sense that Congress intended NARA to take over the burden of protecting these documents until there was a suitable custodian.

          But there is a constitutional problem no matter what. Any NARA rights at all, mean the same rights belong to the current president.

          Fundimentally precisely how the courts resolve all of this DOES NOT MATTER.
          It is quite clear that Trump can legitimately claim that the documents he has are his.
          He may lose that fight, but there is no way to make a valid legal position that the courts ultimately reject into a crime.

          Those on the left do not seem to grasp this. They can win absolutely every legal claim in this fight and still be told by the courts there is no crime at all and you can not criminally prosecute this.

          It is my opinion that the courts SHOULD find PRA unconstitutional as that best resolves unfixable constitutional issues.
          But I doubt they will do that.

          I would note that even if the documents are all Trump’s personal property – that does not preclude the Biden admin from going to court to gain access – which they would likely get.
          But again there still is no crime here.

          What congress intended is completely irrelevant if the PRA is unconstitutional.
          At the very least the courts are going to have to engage is some creative blindness or gamesmanship to avoid the constitutional problems.

          I strongly suspect that in addition to the politics – Judge ABJ was not giving JW access to Clinton Audio tapes,
          That ABJ with some basis in prior court decisions concluded that Whatever Whitehouse documents POTUS decided were his, were his. That does resolve the constitutional issues, even if it seems to elide some of the language of the law.
          If WH records are the property of NARA – the courts can order NARA to go out and get documents not in their posession.

          Despite the likely politics, I thing ABJ’s resolution is likely to be adopted by higher courts. Regardless of how binding or weak some on the left think it is, it is the best we have, and it has the least constitutional problems.

          But ABJ’s decision would mean Trump can say FU to NARA.

          1. There is still the problem of crimes under the espionage act. Trump clearly cannot avoid that as he has deliberately obstructed and concealed documents from the DOJ. Plus the lax security measures that required the most sensitive classified documents the government can have. That in itself is just one charge out of many that are possible under the espionage act.

              1. There’s plenty of factual basis for charges under the espionage act this is why it’s irrelevant whether those documents were classified or not. Trump had illegal possession of defense information.

      2. This is an entirely moot children’s game in a kindergarten sand box; a tempest in a teapot.

        At the point in time when the president conceived declassification of any or all material, that material was declassified.

        Classification and declassification of material is an exclusive function of the executive branch.

        No legislation to affect classification or declassification of material of the executive branch is possible or constitutional.

        The legislative branch has no power to usurp the power of the executive branch.

        Power of the executive branch may only be transferred to the legislative branch through amendment.

        The legislative branch may attempt to impeach a sitting president for any reason.

        Ideations of members of the legislative or judicial branches do not bear and do not prevail over the dominion of the Constitution.

      3. John, you make a lot of sense. Somewhere in the law, as I mentioned to ATS “6) The PRA doesn’t state how records of a former president should be turned over to the archivist. That matter is negotiated by the two.” things are not entirely clear and that is why the courts eventually become the mediator, not the FBI.

        I think the Constitutional limits of the PRA were recognized so they made the law murky.

        1. To a large extent the PRA is irrelevant to all of this.
          It is not a criminal law. Trump and NARA can fight till the end of time, the worst that happens is one side goes to court and the courts dictate. Ultimately it does not matter alot what the courts decide.

          But I do not think the PRA is constitutional or fixable. But my bet is the court will find it is constitutional.

          In the end it is probable that NARA will get most of what they want. And the next fight will be over turning it over to the DOJ.

          If that fight happens – it becomes clear that NARA was being used (willingly) politically.

          I would note that With the PRA, without the PRA most outcomes will be close to the same.
          The courts are not likely to deny the current administration access to documents of the prior administration.
          But they will require going through the court to do so. That is the check against weaponizing the PRA.

      4. John B. Say,

        “ NARA is part of the executive. Whether you give it ownership or custody or anything of the documents of prior administrations, you inherently put those documents in the complete control of the current president.”

        It’s obvious that your understanding of what the PRA is about is flawed. The PRA was created as a result of the Nixon White House trying to obstruct a criminal investigation. Congress which is the appropriate branch to created it so future presidents wouldn’t be able to obstruct a lawful investigation again.

        “ Ultimately the ex-president and his staff must have the power to decide what they are keeping and what they are leaving as the last official act as they head out the door.”

        No. Because an ex-president is no longer president. All documents created when he was an government official are officially property of the government not the president. That is especially true regarding classified documents.

        Because the law as it is NOW your claims obviously are irrelevant and would be for a long time. It’s your personal opinion and there’s nothing wrong with that. However, as the law is currently written and in regards to Trump’s claims he was illegally in possession of government property.

        He can only have ACCESS to the documents, but that is questionable since Biden could have revoked Trump’s security clearance without him knowing it. Trump cannot claims ownership of the documents with the very narrow exception of truly personal documents.

        Currently the special master has requested Trump’s lawyers for specific documentation on which documents he declassified and they are refusing to do so. Clearly Tump lied about declassifying documents and his lawyers cannot produce the evidence that he did without making him look like a liar or put thing themselves in legal jeopardy over the claims.

        The constitution gives congress the authority to create laws and when they created the PRA it clearly was constitutional.

        Trump is now defying the special master’s requests after demanding it. This will not bode well for Trump when the 11th circuit court of appeals considers the DOJ’s request.

        1. Nixon era history does not change the constitution. You do not seem to grasp that.

          I would further note that the nixon era history is extremely relevant here.

          The courts did NOT say – this material belongs to the Government.
          It said this material belongs to the president, but that does not stop government from obtaining access during a criminal investigation.

          Further the courts continued that logic After the PRA passed.

          There are two independent questions that those on the left blurr.

          Access and ownership (or Control).

          It is extremely unlikely that any court is going to say that DOJ can not get access to these documents.
          It is extremely unlikey that any court is going to say that DOJ can have access to these documents without going to court and raiding sufficient need. I want them is not good enough, but the ccourts will not second guess DOJ regarding whatever they claim is a need. BTW that is the gist of all prior court cases, both Nixon era and later.
          The current government can obtain access – pretty much the same as they can gain access to any other private persons documents, by asserting a public need and going to court.
          I also want to be clear that while the courts will inevitably grant access, they are NOT going to grant limitless access.
          The DOJ/FBI investigative team will gain access, they will NOT be able to share these documents with the WH or Congress, or whoever they please.

          The 2nd question is ownership. the closest we have to a resolution of ownership is the Judge ABJ case.
          The question of ownership is mostly only relevant to classified documents.
          Trump probably can not own classified documents, but contra leftists, he can posess them legally.

          Ownership is important because if Trump owns or legally controls the documents – only the courts can grant access over trump;s objections. but if the courts determine that the Government owns these – then DOJ/FBI can do with them whatever they please.

          Government ownership means that Trump can not make them public – which is likely what he wants regarding documents that are damaging to the FBI/DOJ/WH.

        2. It is quite clear that you have absolutely no clue what the constitution actually says – and frankly that you do not care.

          It does not matter why congress did what it did – and you are actually wrong about that.

          Congress addressed the presidential documents issue because Nixon’s unplanned departure left a mess.
          Congress tasked NARA with preserving presidential documents in the time between a presidents departure and that president making arrangements to take responsibility for those documents.

          By the time of Nixon we were dealing with Millions of documents and there were past instances when presidential documents had been lost. Past Presidents often left the whitehouse relatively poor. Without the ability to store and care for their own documents

          The legal issues you are ranting about were SUBSEQUENT to the PRA.

          The PRA itself is internally conflicted speaking of ownsership, custody, and control, on occasion interchangeably – while they are not.
          That said the construction of the PRA makes NARA the custodian of the documents – losely following the direction of the ex-president, until the expresident can take custody of them. The PRA NEVER ends up with the government in control or owning the documents. The PRA sets up NARA as an agent of the ex-president. NARA even has language limiting the rest of the administrations access to these documents.

          The problem I raised is that the PRA as written is unconstitutional.
          there are only two choices:
          The Ex-president owns the documents – in which case he can chose to work with NARA or not.
          The government owns the documents in which case the expresident has no meaningful voice and all PRA provisions limited the current government are unconstitutional

          What is not possible is what the law does – which is essentially set NARA up as an independent branch of government not completely under the control of the president with some autonomous powers.
          There is absolutely no possibility the courts will accept that.

        3. You do not seem to grasp that constitution trump’s law.

          PRA either as actually structured – or as you argue, is facially unconstitutional.

          While courts have not found that so far, they have consistently ruled in favor of reading NARA in its most constitutional way.
          Which is that NARA is a CUSTODIAN, and that the ex-presidents use of NARA is voluntary.
          And that the rest of government can get prior presidents documents from NARA in the same way as they could from the expressident – by going to court.

          You do not seem to grasp that it does not matter how you interpret the PRA if that interpretation is unconstitutional.

          You do not seem to grasp that even if NARA somehow survives a facial constitutional attack.
          That does not change the fact that the courts are not going to read NARA as altering the constitution.

        4. The constitution does not give congress the authority to create unconstitutional laws.

          If you do not wish to be called stupid – do not make stupid claims.

        5. No Trump is not defying the special
          All he has said is that he does not wish to address the issue of what is declassifed NOW.

          The fact the SM offered was a minor win for Trump.

          Properly the SM should treat anything marked classified as classified and ignore whether Trump claims it is declassified.
          Whether documents marked classified are classified is a question of fact, not law.
          Dearle is supposed to assume they are what they say they are.

        6. No the SM asked whether Trump wished to address the question of whether documents marked classified are actually classified.

          That is not an issue that DOJ would want Dearle to touch.
          Any finding that any documents marked classified might not be would be damning for DOJ.

    2. There is a more fundimental issue with all of this.

      It does not actually matter what the courts decide.

      What they will NOT do, is decide that Trump using every legal means at his disposal to resist this is evidence of a crime.
      Trump can lose nearly every legal battle and DOJ/FBI still do not have evidence of a crime from those decisions.

      1. “using every legal means” begs the question.

        The issue is whether he used illegal means.

        1. No question begging at all.

          You do not just get to assume illegal means.

          I am constantly joking about Trump scaling the WH fence on Jan 21, 2021. but that is not entirely a joke.

          All the known facts are fully explained by LEGAL conduct. The probability of illegal conduct is very near Zero.

          Fighting NARA and DOJ tooth and nail in the courts- which Trump did not do, would not be a crime.
          No matter how much criminals like Mueller would like to beleive otherwise.
          Our affirmative obligation to cooperate with government is very small. the constitution itself makes expending it impossible
          There is very little that NARA or DOJ or FBI can demand of Trump that he is obligated to do.
          When Trump refuses to cooperate – which is his right – even with a subpeona, Government is obligated to get an ORDER from a court. That is how affirmative obligations are handled constitutionally.

          So there is absolutely nothing over the desputes over these documents that can be turned into a Crime – no matter how many left wing nut legal experts try to claim otherwise. You can only get there by sovietizing our legal system.
          Not happening.

          I would note that citing a criminal statute in a warrant does not meet the 4th amendments requirements for probable cause.
          Absolutely nothing we have seen in the Warrant or the affadavit meets the constitutional requirements for a warrant or constitutes probable cause than ANY crime has been committed.

          Maybe there is something in the redacted portion – but it is very hard to immagine what.

          Mostly this smells like FISA Warrant II.

          And if you think that DOJ/FBI/Biden are getting away with that – you are mistaken.

          You poisoned the well with Crossfire Huricane.

          1. “You do not just get to assume illegal means.”


            I didn’t. My stance is that we don’t know. But it’s so hard for you to acknowledge not knowing that you can’t even see it when someone else has that stance.

            YOU do not just get to assume legal means either.

            1. Are you telling us we need to put you on hormone blocking agents or castrate you? We don’t know if you are a pedophile. It’s hard for the authorities to know one way or the other, so you are arguing for immediate castration.

            2. Your stance is all over the place and your arguments are not self consistent.

              What you do not know, does not allow you to make logically incosistent assumptions or arguments.

            3. I want to directly address “we do not know”.

              While technically correct, there is alot we do know, or that we can rule out as highly unlikely.

              As an example it is highly unlikely that Trump had Musk secret documents onto a SPaceX flight and then picked them up at touchdown.

              The point is that just because we do not have some answers, does not mean that all things are possible.

              We DO KNOW to a reaonably high degree of certainty that these documents did not get to MAL illegally.
              The most probable means are:
              GSA transported them late in the Trump presidency.
              Trump personally transported them on his last day or before.

              Both of these remove the documents from the whitehouse While Trump is still president.
              So there is no theft. No crime.

              It is possible as I noted that Trump scaled the whitehouse fence on Jan 21, 2021.
              The odds of that are infinitesimal.
              The odds of anyone other than the two things I cite or permutations of those are all miniscule.

              You are DOJ is free to try to prove something different.
              But thus far they have not, and it is highly unlikely they will.

              1. ““we do not know” [is] … technically correct”

                That’s why you were begging the question when you said “using every legal means”

                You do not know.

                1. You are as tedious as you are stupid.

                  We do not know that Stars trillions of light years away do not have planets.
                  That does not change the fact that the Sun does.

                  We do not know that Trump did not return to the WH on the night of Jan 21, 2021 and scale the fence and steal classified documents.

                  That we do not know that is false does no allow us to assume it is true.

                  You can not extrapolate from what you do not know to a crime.

                  Allegations of crimes must be based on what we KNOW.

        2. To date there is no actual allegation of using illegal means – beyond the typical left wing nut – anything that thwarts our wishes is illegal nonsense.

          1. If you’d simply read the warrant cover sheet, you’d know that there are allegations of illegal means:
            – illegal retention of NDI
            – obstruction
            – illegal concealment or removal.

            1. It is perfectly legal for the past President to have given himself something that ‘might be now considered NDI

              Removal has been answered. The President or GSA has all the legal rights to move these documents.

              Pushing a process crime as a political cudgel may see SCOTUS review. DoJ better be careful setting such precedent.

              1. No, actually, it’s not legal for the Former POTUS to keep NDI that has been subpoenaed, and it’s not legal for him to attempt to conceal that NDI in his effort to prevent its return under the subpoena.

            2. No there are not. An allegation of a crime requires particularity – specifics.

              Not somewhere sometime someone may have violated 18 US 793.

              If there is not claims that can (and have) be tested then it is just speculation of rumor.

              The fact that the warrant does not contain allegations of the crime is not surprising – Warrants are orders authorizing a search. It is a grant of power based on the credibility of the allegations in the AFADAVIT.

              What we have of the Afadavit does not allege a crime, nor does it support the crimes listed.
              We do not know anything about what has been redacted.

              Given the DOJ/FBI/SC history with the collusion delusion – we have very good reason to beleive that THIS DOJ, these FBI agents, are full of Schiff. They are either highly politically biased, or incredibly incompetent or both.

              You seem to forget that this is the same FBI, the same DC office, to a very large extent the same agents, who foist the collusion delusion on us. \

  6. I just noticed some very interesting language in the Presidential Records Act (see below). Wondering what you all think?

    To my mind, this clear language supports Kavanaugh’s view that eg, a FPOTUS indeed retains some power over an executive privilege that still exists to protect a FPOTUS’ Papers after he leaves office. Also seems to shoot down the Left’s insistence that a FPOTUS isnt basically “the” or “a” Master of his own Presidential Records; at least for the several years following a President’s Term, during which the PRA precludes NARA’s public disclosure of any of his Papers/Records:

    “Codifies the process by which former and incumbent Presidents conduct reviews for executive privilege prior to public release of records by NARA (which had formerly been governed by Executive order 13489).

    Establishes procedures for Congress, courts, and subsequent Administrations to obtain “special access” to records from NARA that remain closed to the public, following a privilege review period by the former and incumbent Presidents; the procedures governing such special access requests continue to be governed by the relevant provisions of E.O. 13489.”

    1. Also seems to suggest the DOJ & FBI may have violated the PRA w this whole debacle. Warrant and even subpoenas were thus entirely inappropriate as an approach or remedy here. Good thing for Biden Inc & Garland that PRA violations aren’t criminal. Also, Biden indeed can NOT yield omnipotence over Trump’s Presidential Papers, per the PRA itself.

      1. The PRA actually requires NARA to protect the documents in its custody from the rest of government.

        That does not mean they have no access at all. But it generally means they must go to court to do so.

        The PRA also requires NARA to consult the ex-president regarding anyone’s access to past whitehouse document.s

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