Tag Archives: DOJ

We Have Reached the End of the Line

Leave a reply

OR: The Trump Noose Tightens on the National Neck

The Trump administration, laced through and through with unqualified and incompetent appointees to positions of great responsibility, mistakenly snatches a man (Kilmar Abrego Garcia) off the street and, in the face of a court order to stop, puts him on a plane for a hellhole prison in El Salvador. The court orders his return. Trump’s Department of “Justice” declines and appeals. The Supreme Court majority eventually votes unanimously to order the administration to “facilitate” the victim’s return. In doing so, however, the Court gratuitously and unnecessarily “advises” the District Court judge to act with due regard for the separation of powers and the President’s supreme authority over foreign affairs.

As was 100 percent predictable, the administration leaps upon that advice and says “no thanks, we’re not going to bring him back. Mr. Garcia, charged with no crime, can rot in El Salvador for all we care and there is nothing you can do about it because this decision is made under the President’s Article II power to control absolutely the foreign affairs of the country, just as the Court suggested.”

Recall that in a prior decision this same Supreme Court held that the President could conspire with the Department of Justice to commit crimes, including the crime of trying to overturn an election he clearly lost, and could not be held accountable for his criminal conduct in office. Further, in carrying out his “executive powers,” the President’s motives could not be questioned.

So, here we are. A man properly in the United States, charged with no crimes, is ripped from his family and employment, hustled onto a plane full of others similarly situated for the most part, and imprisoned in a foreign country. With the apparent approval of the highest court in the land.

Trump then invites the dictator of El Salvador to the White House where that dictator labels as “preposterous” the question of his returning his prisoner to the United States. In a statement that is typical of people who consider themselves unbound by law, the Salvadoran President Nayib Bukele told Trump: “To liberate 350 million people, you have to imprison some. That’s the way it works.”

The power of courts to hold the federal government in contempt of court and sanction it or its attorneys is far from clear. https://www.congress.gov/crs-product/LSB11271 That is perhaps why the District Court judge, in whose face the Department of Justice has metaphorically spit, has thus far fumed and fussed over the DOJ’s recalcitrance but has not issued any form of mandatory punishment for its resistance to the court’s mandates. Likely the judge realizes that the Supreme Court, having recently pronounced the unprecedented and astonishing doctrine of presidential immunity for crimes committed in office, will not support mandatory sanctions against DOJ for its disobedience.

And we now hear the President of the United States and people who work for him remarking that the power to snatch people off the streets and imprison them in foreign countries permits the federal government to do this to American citizens as well as people like Mr. Garcia who were properly here under work permits but were not citizens. Many of us have seen the videos of armed men in blackened vans visiting people in their homes for what are ludicrously labeled by the men as “wellness checks.” And some people are literally being assaulted on the streets, arrested and hauled away with no formal charges, no due process, and no opportunity to get counsel. These behaviors are blatant violations of our criminal laws and the Constitution.

We have reached the point of no return. The President has made clear he will stand for no resistance to his wishes. It seems virtually certain therefore that we will soon experience a declaration of martial law and a presidential directive to imprison here or abroad, without trial or other due process, anyone the President or his compliant appointees selects for removal. Or maybe he won’t even bother with a declaration that he likely regards as superfluous.

If allowed to get away with this, the President will have completed his subordination of the Constitution and brought about his dictatorship over the United States. As insane as that future seems, there is little happening now that suggests it is an overblown scenario. Trump has repeatedly made clear that he regards the Constitution as authorizing him to “do whatever I want.” We are there now. He is doing whatever he wants.

It is beyond dispute that if he can with impunity deport and imprison Mr. Garcia, he can do it to anyone, including American citizens who cross him or are merely suspected of being “disloyal.” Anyone who has studied the history of dictators surely knows that is how the process works.

The question then becomes: who will stop him and how? Certainly not the Republican cowards in Congress who value retaining what they fancifully believe is their “power” over their oaths to support the Constitution. It was once believed that the senior military leadership would handle the problem, but Trump has replaced most of those who might have acted decisively to restrain him. The courts lack both the will and the mechanisms for holding the President to account.

Trump’s abuse of power is plain and open. He believes the law does not apply to him and that the Constitution grants him powers that the Founders would never have imagined. Who then will stop him? And when?

Where is the Moral Outrage at Nazis Running the Federal Government?

1 Reply

OR: Trump Administration is Guilty of Kidnapping, Unlawful Transport & Crimes Against Humanity

The Washington Post reported on Saturday, April 5, that: 1) the Department of Justice that has admitted it mistakenly deported Kilmar Abrego García to a prison in El Salvador, and (2) DOJ has argued to an appellate court that the U.S. government is helpless to secure his return. https://tinyurl.com/yzm27mjy

In effect, the U.S. Department of Justice, an element of the Executive Branch of what was, at least prior to Trump’s re-election, the most powerful and influential country in the world, says it has no means of compelling or negotiating for Mr. Garcia’s return. This, even though the United States is paying El Salvador about $6 million to hold the group of deportees of which Mr. Garcia is a member.

In effect, Attorney General Pam Bondi’s Justice Department is arguing that it (1) deported Mr. Garcia by mistake, (2) violated Mr. Garcia’s civil rights, (3) violated Mr. Garcia’s rights under multiple amendments to the U.S. Constitution, not least of which was due process of law, (4) essentially kidnapped Mr. Garcia and unlawfully transported him to a foreign country where it relinquished control of him to a foreign government over which the United States has zero influence, (5) that the Judicial Branch of the U.S. government effectively has no remedial authority as against a decision of the Executive Branch regarding a foreign national “removal decision.”

In short, the US government is saying “who cares?”

These astonishing arguments reveal a fundamental error that the Trump administration continues to make. It appears to believe that the Executive Branch of the U.S. government is the final word on legal decisions even where, as here, the Executive admits it make a mistake that, in effect, may destroy a man’s family and perhaps forfeit his life.

I cannot resolve the conflicting claims as to whether Mr. Garcia was a member of MS-13 that has now been declared a terrorist organization by the Trump administration. However, the admission by the administration that Mr. Garcia’s deportation to El Salvador was mistaken would seem, regardless of anything else, to compel the U.S. government to bend every effort to secure his return. AG Bondi says, “no, we may have erred in deporting him, but we owe him no duties now and are helpless to do anything to rectify our mistake. Let him rot in El Salvador.”

This is a perfect illustration of why we insist on due process in this country. That process, which may be slow and even tedious, helps assure that grotesque mistakes like the Garcia case do not occur. The Trump administration has shown time and again that it has no regard for constitutional protections, and that it will arrogantly disregard any damage it may do in it rush to prove how tough it is on “crime.”

Now, after the government disregarded direct orders from a District Court judge to stop the deportation of Mr. Garcia and to provide him with the due process of law to which every resident is entitled under the Constitution, the Supreme Court has finally, days late, awakened to the inescapable realization that it can’t paper over this outrage. But in doing so, the “moral majority” on the Court seems singularly unmoved by the potential human catastrophe that the incompetent fools running the Trump administration have created.

We have grown accustomed, though hardly accepting, of Justices Alito and Thomas (that one, who takes hugely expensive favors from sponsors with business in the Court without a whimper from the Chief Justice) taking severe umbrage at decisions they consider insufficiently respective of Christian values. Now, when the government has monumentally screwed up a deportation case, putting at risk of death by gang execution, among other risks, a father never accused of a crime here or in El Salvador, all we get are lectures about the proper procedure for bringing the issue before the Court and about the lower court being more respectful of the President’s authority over foreign affairs.

How exactly the Garcia case implicates the President’s foreign affairs powers has not been fully explained. We know the obvious: El Salvador is a sovereign country and to retrieve Mr. Garcia from its clutches may require some negotiating. But it shouldn’t be that hard a problem. The US is paying El Salvador a lot of money to house the people it has snatched off the streets and out of homes — the way a good Gestapo does — and shuttled out of the country as fast as possible without even a nod to due process. It shouldn’t take a negotiating genius, as Trump claims to be, to figure out a way to induce the El Salvadoran establishment to release at least one man that our government admits should never have been sent there in the first place.

Yet our Supreme Court, while nodding to the continued need for due process of law and all the rest seems most concerned with lecturing the District Court judge, the main judicial authority standing up for Mr. Garcia, about not overreaching into the President’s foreign affairs prerogatives.  Is this a hint to Trump to slow-walk the entire business in the hope that Mr. Garcia will be murdered in the hellhole prison in El Salvador thereby solving the US government’s embarrassing problem? Is it a signal to Attorney General Bondi that her abject indifference to Mr. Garcia’s welfare is just fine if the US government just goes through the motions of seeking Mr. Garcia’s safe return?

Compare what has transpired. The District Court judge, closest to the evidence of what occurred here, found that Mr. Garcia’s removal, when the government knew an order was imminent to stop his removal, was a “grievous error” and that the risk to Mr. Garcia “shocks the conscience.” While DOJ claims Mr. Garcia is a member of the MS-13 gang, the District Court judge found that the government had not proved that claim:

That silence is telling…. As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador — let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.

The judge’s ruling against the government was sustained by a three-judge panel of the 4th U.S. Circuit Court of Appeals, based in Virginia, not exactly a liberal bastion of judicial decision-making.

DOJ, at the behest of the morally vacuous Attorney General appointed by Trump, claimed that the order to return Mr. Garcia was, despite conceded errors in deporting him to the El Salvadoran hellhole prison, “indefensible” because, golly, damn, it “commands Defendants to do something they have no independent authority to do: Make El Salvador release Abrego Garcia, and send him to America.”

“If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business,” Solicitor General D. John Sauer wrote. In simpler English, DOJ objects to being compelled to do its job because just imagine the horror of having to return “removed aliens” whose rights we have violated.

I haven’t read all the briefs, but reliable reports note that the “Government lawyers compared the administration’s power to bring Abrego Garcia back to a court ordering the administration to end Russia’s war in Ukraine or return Israeli hostages held by Hamas in Gaza.”

Arguments like that should have led the Supreme Court majority to, at a minimum, sanction government counsel for arguments lacking reason, precedent, and common sense. But no, the Court seemed more concerned with being sure no one stepped on the President’s authority in foreign affairs. No sense of moral outrage that the government conceded a terrible, potentially life-threatening and unconscionable error, then argued we should just ignore it and let the chips fall on Mr. Garcia who, after all, is, in the eyes of the Trump administration, a bad person, evil incarnate. The DOJ attitude recalled a segment from the Dragnet TV series of the 1950s. Detective Jack Webb captures a serial killer and asks him “what have you got against people?” The killer answers: “People? I got nothing against people. What do I care about people?”

The Americans arguing that the courts should butt out of this and leave Mr. Garcia to his fate apparently do not understand that if the government can do this to Mr. Garcia, it can do it to anyone. Indeed, there is talk of “removing” US citizens now.

In preparing this post for publication, I read that the government has balked at the timeline established by the District Court to explain what it’s going to do to comply with the court’s orders now reinforced by the Supreme Court. The judge, quite rightly, is having none of it. He should hold the government in contempt and, if necessary to get DOJ to comply, hold weekend hearings. This fiasco has gone on too long already and Mr. Garcia remains at risk.

Another Day That Will Live In Infamy

4 Replies

The day after the Japanese attacked Pearl Harbor, President Roosevelt addressed the nation and the world in a speech delivered to a joint session of Congress. The opening line was:

Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

The attack was surely one of the lowest points in the country’s history. Thereafter, the country resumed its belief that it was immune from foreign attack, a belief shattered again on September 11, 2001. Our government took steps to assure the country and the world that such an event could never happen again. In many ways the upending of our way of life, driven by the response to that day, continues some 23 years later.

During the anti-communist hysteria of the post-World War II period, Americans were terrified that the “enemy within” would destroy our democracy. That fear spawned and nourished Senator Joe McCarthy’s campaign to find and remove the communists he believed had infiltrated American institutions. You know the story, I’m sure.

You also know that on January 6, 2021, the United States Capitol was attacked, not by foreign troops or foreign terrorists but by Americans inspired by the lies of then President Donald Trump. Trump was desperate to stay in power and was prepared to use any means at his disposal to accomplish his goal. Recall that Trump said many times, and believed,

I have an Article II, where I have to the right to do whatever I want as president … But I don’t even talk about that.

The proof that he believed that can be found, among many other places, in his conduct following the 2020 election. The indictment alleging his crimes related to staying in power says:

70. In late December 2020, [Trump] attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature, thus giving [Trump’s] lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with [Trump’s]….

74. That afternoon, [Trump] called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, “People tell me [Co-Conspirator 4] is great. I should put him in.” [Trump] also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, [Trump] responded, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”

75. On December 28, Co-Conspirator 4 sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department ….CoConspirator 4’s letter sought to advance [Trump’s] fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.  The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors….

76. The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 by email and told him that his proposed letter was false, writing, “Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election.” ….

77. On December 31, [Trump] summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, [Trump] again raised claims about election fraud that Justice Department officials already had told him were not true—and that the senior Justice Department officials reiterated were false—and suggested he might change the leadership in the Justice Department.

78. On January 2, 2021, just four days before Congress’s certification proceeding, CoConspirator 4 tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4’s draft letter, which contained false statements, to state officials. He told them that [Trump] was considering making Co-Conspirator 4 the new Acting Attorney General, but that Co-Conspirator 4 would decline [Trump’s] offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.

79. The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had “concerns” to a stronger false claim that “[a]s of today, there is evidence of … significant irregularities that may have impacted the outcome of the election in multiple States.”

80. Also on the morning of January 3, Co-Conspirator 4 met with [Trump] at the White House—again without having informed senior Justice Department officials—and accepted [Trump’s] offer that he become Acting Attorney General.

81. On the afternoon of January 3, Co-Conspirator 4 spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed [Trump] that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be “riots in every major city in the United States.” Co-Conspirator 4 responded, “Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.”

82. Also that afternoon, Co-Conspirator 4 met with the Acting Attorney General and told him that [Trump] had decided to put Co-Conspirator 4 in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with [Trump] for that evening….

84. [Trump] moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included CoConspirator 4, the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department’s Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, [Trump] expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4’s plans to investigate purported election fraud and to send his proposed letter to state officials—a copy of which was provided to [Trump] during the meeting. [Trump] relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.

The foregoing detailed allegations, chapter-and-verse, showing Donald Trump’s attempt to use the Justice Department to support his knowingly false claims of election fraud were described by the Supreme Court this way:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives….

The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function….”

… the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime….

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution….’”

Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts….

Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

The Court thus saw no conflict or inconsistency in describing Trump’s attempts to force the Justice Department to support his knowingly false claims of election fraud as mere “discussions” implicating the DOJ’s authority to investigate “allegations of election crime” and the President’s duty to “take Care that the Laws be faithfully executed.”

The intellectual dishonesty underlying this treatment of the constitutional allocation of powers is blatant and undeniable. Pandora’s Box has now been opened. Ignoring the facts alleged in the indictment, the Court has adopted Trump’s view of Article II of the Constitution: the President can do whatever he wants. He is indeed above the law. Recall that in the end, the only thing stopping Trump’s plans to use DOJ to subvert the election was the threat of the DOJ leadership to resign if he persisted. If they had knuckled under to his unlawful demands, Trump might well have succeeded in overthrowing the election and restoring himself to power, thereby ending American democracy.

What the Court’s opinion did not acknowledge is that Joe Biden, not Donald Trump, is President of the United States. What is true of Trump as President is true of Biden as well. The Sword of Damocles has been unsheathed and it has two edges.

*****

It is not hyperbole to observe that July 1, 2024, will now rank alongside December 7, 1941, and January 6, 2021, as another day of infamy. July 1, 2024, was the day the American Constitution was destroyed by the United States Supreme Court.

The President of the United States is now free to use the Department of Justice to subvert American elections. But that’s not all. The Trump indictment addresses the Justice Department issues and concludes that absolute immunity attaches to attempts to use the Department to subvert elections

But remember, the President is the Commander in Chief of the Armed Forces of the United States, the largest and most powerful military force on the planet. The President is also the directive force behind all the federal agencies. He oversees the Cabinet — the people appointed by the President and who supervise those agencies.

What the Supreme Court has said about the power of the President over the Justice Department applies to the other federal departments and, indirectly, the agencies under them. If there are differences now between the U.S. President and a dictator, they are not apparent. If the President is absolutely immune from criminal responsibility for trying to or actually suborning the Justice Department to commit crimes, what prevents him from doing the same with the military?

The Court’s decision in Trump v. United States ranks alongside the Court’s worst opinions in history and may be the worst of all. Raising the President to imperial status is a graver threat to democracy than the decisions holding that “separate but equal” in education was adequate and that it was in the national interest and consistent with the Constitution to relocate into detention camps Japanese-Americans during World War II

Ben Franklin famously was asked, “”Well, Doctor, what have we got, a republic or a monarchy?” His response: “A republic, if you can keep it.”

 Turns out, we can’t.

Merrick Garland Should Resign

2 Replies

Attorney General Merrick Garland appointed Robert K. Hur to investigate and determine whether to prosecute President Biden for retaining in an unsecured manner confidential government documents during periods when he was not Vice President or President of the United States.

Mr. Hur is a very smart man with great intellectual and experiential credentials. The report issued is remarkable in its level of detail and thoroughness with which the investigation was conducted. I believe it reached the clearly correct conclusion in declining prosecution of Mr. Biden and his “ghostwriter” to whom some confidential information was provided during the writing of Mr. Biden’s books.

The problem traces to the fact that Mr. Hur was a Trump appointee during his prior service as the United States Attorney for Maryland, a position in which he served from 2018 to 2021. https://en.wikipedia.org/wiki/Robert_K._Hur Why Garland chose him to lead the investigation of President Biden will probably remain a mystery.

What is clear is that Mr. Hur, in deciding that the evidence did not warrant prosecution, went out of his way to psychoanalyze Biden’s thought/emotional processes and, in the end, in an action reminiscent of James Comey’s decision to violate DOJ policy and knife Hillary Clinton in the back on the eve of the 2016 election, to comment on how Biden would come across in front of a jury. The basic idea was to present Biden as a kindly old man with a failing memory who would be seen as sympathetic by some or all the jurors who would, out of sympathy, acquit him of any criminal charges.

These comments were not necessary to the ultimate conclusions of the report. The evidence alone, combined with the historical practices of prior presidents and vice presidents, including the conservative icon, Ronald Reagan in particular, and the history of non-prosecution by DOJ, were sufficient to support the non-prosecution conclusion. But Mr. Hur took the opportunity to plunge a knife in Biden’s back anyway, suggesting that he had, deliberately or otherwise, presented himself as an “historic figure” and a “man of presidential timber” but also a man whose memory was “significantly limited” with “limited precision and recall” of the details of events many years in the past.

At trial, the report found, “Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” Thus, the report concluded, it would be “difficult to convince a jury that they should convict him — by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness.”

Given the thoroughness of the document investigation, reported in hundreds of pages of intricate details, including photos of document containers and of Biden in meetings with various folders and documents present at his place (shocking!), the absence of evidence that any of the secret materials were ever disclosed to anyone from a foreign power or otherwise seen by anyone except the ghostwriter assisting Biden in preparing his book manuscripts, the evidence and the evidence alone was a sufficient basis for the declination to prosecute. Indeed, the report makes this point repeatedly. The observations about Biden’s view of himself in history and the suggestion that he would appear to a criminal jury as a kindly doddering old man were gratuitous and completely unnecessary to the critical findings of the investigation.

Mr. Hur cannot possibly be unaware of the hypocritical claims being relentlessly made by Republican supporters of Donald Trump, and by Trump himself, that President Biden is “over the hill” and not mentally competent to serve another term as President. Yet Hur volunteered both his psychoanalysis of what was motivating Biden through his long years of public service and his commentary about how Biden would likely appear to a jury if prosecuted, which, of course, the report found unjustified.

I acknowledge that Hur drew a sharp distinction between President Biden’s response to the document investigation – full and immediate cooperation – with that of Donald Trump – resistance, lies, obstruction”

Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.

That brief admission that Biden handled the investigation appropriately in contrast to Donald Trump does not overcome the gratuitous and disingenuous undermining of Biden, given Hur’s presumptive awareness of the currency of the issue in the political arena.

In the circumstances, Mr. Hur’s treatment of Biden’s alleged mental state is grotesquely political. The inclusion of those observations in the report will play out however it does. But Merrick Garland appointed him and enabled this repeat of the Comey experience to undermine another Democratic candidate for president.

Garland bears the ultimate responsibility for this situation and should resign now. He permitted Hur to “weaponize” the investigation into a political attack on President Biden that is enabling paroxysmal enthusiasm among the fascists supporting Trump, characterized as a “political nightmare” and “political disaster” by USAToday. http://tinyurl.com/57hzncsh

Garland diddled around with the Trump insurrection case, resulting in delays that may lead to the 2024 election being held before Trump is tried for public conduct in January 2021, an unconscionable failure. Now this.

It’s time for a new Attorney General.

 

 

 

The Answer is Blowin’ in the Wind

Leave a reply

Those of you close to my generation will recognize that phrase as part of the refrain from Bob Dylan’s famous song that became a 1960s anthem against oppression and war. The song was made broadly famous by Peter, Paul & Mary, singing it here in 1966: https://bit.ly/3J6WK2w Joan Baez, among others, sang it in 1967: https://bit.ly/3SHSEB8

The lyrics to that song came immediately to mind when I read the report that the Department of Justice has, at long last, rejected Trump’s claims to be above the law. DOJ filed a brief arguing that Donald Trump’s claims of “absolute immunity” from civil suits must be limited at least regarding the January 6 abomination he sent to descrate the Capitol  https://bit.ly/3moh3jm

You know the story: Trump summoned the mob to DC and incited them to attack the Capitol to stop the final certification of Joe Biden’s electoral victory. True, he mentioned in passing that they should be peaceful, but that was classic Trump. Say one thing, then the opposite again and again. He also said, for example, “if you don’t fight like hell, you’re not going to have a country anymore.” His message was received loud and clear as evidenced by what the mob did. One of the many remarkable videos was produced by the New York Times, showing exactly what happened: Day of Ragehttps://nyti.ms/3mlhISw Many of those later arrested have testified under oath that they understood Trump had invited them to Washington and urged them to do just what they did.

Those revelations can come as no surprise to anyone with a fully functioning mind. Recall that Trump famously said, “I have Article II where I have the right to do whatever I want as president.” It’s on tape. He said it. He believed it. Still does. Often wrong, but never in doubt.

As recounted in the USAToday story, a group of House Democrats filed two civil suits and two Capitol police officers filed the third one. USAToday reports that Trump’s lawyers have argued to the Court of Appeals for the District of Columbia Circuit that, “The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? … The answer is undoubtedly, yes.”

The Department of Justice rejected that position: “The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit.’”

Let’s briefly examine the “absolute immunity” claim. Let’s pretend you’re in law school. You adopt Trump’s position that he was addressing the election results, a “matter of public concern” and thus just “doing the job of the president.” He should, you contend, be immune from vexatious and meddlesome civil suits [law students love to talk like that] that could interfere with his ability to carry out his many constitutional responsibilities.

Having adopted the role of professor of law, I hook my thumbs in my vest [law profs love vested suits, or did back in the day], frown, pace a bit, spin, and face you: “That sounds pretty good, doesn’t it? Don’t we have to protect the nation’s chief executive and chief law enforcement officer from being hauled into court every time he says something that someone doesn’t like? Isn’t it true that someone always objects to virtually everything the president, any president, says?”

You smirk at having been recognized as oh-so-clever as to receive that rare law school commodity: praise from a professor. You are sure the other students are burning with envy at your achievement and recognition.

Then I, thumbs out of the vest now, lean forward closer to you, and you start to get a queasy feeling. I glare into your eyes and ask, “but suppose the president’s January 6 speech included this statement:

…and if you meet resistance from police at the Capitol, just knock them down, beat the hell out of them. Anybody gets in your way, kill them. I don’t care, but get the job done. Safe our country! Save meeee!

President still immune? Suppose Trump further said, “Mike Pence, the vice president I mistakenly chose to elevate from well-earned obscurity, failed to do his job. He needs to be set straight. Punished if he won’t do what needs to be done. If he refuses to comply, I say, Hang Mike Pence! Repeat after me, Hang Mike Pence! Hang Mike Pence!”

You spend the rest of class looking at your shoes, wondering why you didn’t just get a job.

You think back to Trump’s penchant for lying and making outrageous claims, then, when called out for it, saying, “oh, that? I was just joking.” On January 6, his followers knew he wasn’t joking. They understood exactly why he summoned them and what he wanted them to do.

The claim of “absolute immunity” is utterly implausible in a country with a democratic republican Constitution that sets up a three-part balance of power structure in which each of the three main branches acts as a check on the other two. It makes for complex problems and many troublesome questions, to be sure. Democracy is “messy,” according to a popular formulation. But one thing is clear: no man is above the law.  A president who incites violence in an effort to interfere with constitutionally mandated processes designed for the peaceful transfer of power must be held accountable by those directly harmed by his conduct.

Now, to return to our law school conceit for a bit longer, some will argue that the proper method for holding the president accountable is impeachment and nothing more. Impeachment certainly would work … if it worked. But Trump was impeached twice and not convicted because the Republican members of Congress refused to hear all the evidence, refused even to hear witnesses, and announced they would support him even before the “trial” occurred. Republicans thus made that constitutional process a sham.

It follows that the inherently political process of impeachment is not sufficient to hold a president accountable for inciting violence that harms not only the democratic system but individual citizens as well. Therefore, there must be another remedy.

To paraphrase Trump, if you don’t hold a president accountable for inciting insurrection, you’re not going to have a country anymore.

Now to conclude today’s lesson, let’s look at the broader implications of the position taken by the Justice Department. Despite what I’ve said above, I have little hope that the courts are going to agree with the Department of Justice. I am especially doubtful that the 6-Justice conservative majority on the Supreme Court, where the case is inevitably headed, is going to hold the president accountable as DOJ has proposed.

However, many observers, the writer included, have repeatedly expressed frustration that the Attorney General was going to let Trump skate despite his many crimes. While this set of civil cases is a far cry from a criminal indictment, the position taken by Justice signals that even its relatively conservative approach to “presidential law” has its limits. It may also signify that the Special Counsel appointed to independently investigate Trump’s many crimes has more juice behind his mandate than first appeared. Hope that it is so because our survival as a democratic republic depends on it. The answer, my friends, is blowin’ in the wind.

 [Pedagogical Note: in law school, the professor rarely jumped from one proposition you thought was right to the death blow to your sense of self-worth. Instead, they usually proceeded in small steps, slowly sucking the life out of what you thought was the intellectually plausible content of your thoughts, then delivering the coup de grace at the end. I have collapsed the dialogue in the interest of time and space. It was always worse.]

Judge in Trump’s Pocket Played Like a Fiddle

Leave a reply

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men even when they exercise influence and not authority.”

So wrote John Emerich Edward Dalberg-Acton, 1st Baron Acton, an English Catholic historian, politician, and writer who lived from 1834 to 1902. No better contemporary example of Baron Acton’s statement exists than Donald Trump. The same Trump who having falsely promoted the Big Lie that he was denied re-election due to massive voter fraud. The same Trump who directed a failed attempt to overthrow the government and install himself as president-emperor. The same Trump who stole multiple classified government documents and removed them to an insecure facility in his Florida mansion.

In the same fashion that he has conducted his entire life, Trump is now fighting desperately to stop the Department of Justice from indicting him for that theft. He is using the courts, aided by a judge he appointed, and issuing threats of violence if he is held accountable for his actions.

Word is that Trump pre-paid millions of dollars to induce a lawyer to represent him, given his long history of refusing to pay lawyers and others who worked for him.

This saga has many parts. I will try to simplify them.

*****

Let’s be clear about a few things at the outset. Trump made no mere “mistake” in removing top secret and other classified documents from the White House during his last days there. He meant to take them, meant to keep them and, most likely, meant to use them for personal profit. The documents and folders are clearly marked with classifications. No person with reasonably normal vision could have mistaken the nature of those documents.

Second, there is no evidence that Trump declassified the documents while he was president. None. Zero. There are elaborate procedures for declassifying documents and an evidentiary record of such actions would have been created. That record has not been produced because it doesn’t exist. The declassification defense is just another Trumpian lie being used by Trump’s lawyers to obfuscate and delay. Remember this question of declassification as you read on. It is the punchline of Trump’s latest “joke’s on you.”

None of this should surprise anyone who has been paying attention for the past five years.

Trump has shown time and again that he lacks respect for American institutions and the checks and balances that preserve our democracy. Trump’s interests are entirely transactional and acquisitive. His conduct in office repeatedly showed a complete lack of concern for national security. He regarded the documents from his presidency as belonging to him – his private property notwithstanding the federal laws on preservation of records. Indeed, Trump clearly did not regard the law, any law, as applicable to him. As he famously said, “I have an Article II, where I have to the right to do whatever I want as president.”

Third, Trump is no longer the President of the United States. His lawyers are as confused about that reality as Trump himself. Forms of address matter and referring to Trump as “The President” or “President Trump” is misleading. Trump is not the president. His term ended January 20, 2021. Of that there is no doubt.

Fourth, and finally, one of the basic tenets of legal argument is that you should not try to prove too much. I will explain below how that principle undermines Trump’s position.

The Chronology

The timeline is well known:

January 6, 2021 – Donald Trump, unable to establish a legal basis for remaining in office, sends a violent mob to stop the government from certifying the election of Joe Biden

January 20, 2021 – Joe Biden inaugurated as 46th President of the United States – Trump leaves the White House with many boxes of materials

Months pass – some classified documents are returned, others are withheld, and their existence denied

August 5, 2022 – Search Warrant approved based on showing of probable cause to  believe multiple serious crimes committed

August 25 – Court order approving release of redacted search warrant affidavit

The Search Warrant Affidavit

The original affidavit for the search warrant makes clear:

(1) DOJ is conducting a “criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records;”

(2) after some boxes of documents were returned, it became clear that “there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the [Mar-a-Lago] in an unauthorized and insecure location. There is also probable cause to believe that evidence of obstruction will be found at [Mar-a-Lago];”

(3) there was also “probable cause to believe that the locations to be searched at [Mar-a-Lago] contain evidence, contraband, fruits of crime, or other items illegally possessed in violationof18 U.S.C. §§ 793(e), 1519, or 2071;”

(4) “Classified information of any designation may be shared only with persons determined by an appropriate United States Government official to be eligible for access, and who possess a “need to know;”

(5) “highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified;”

(6) repeated requests for return of classified documents were made for more than six months before the National Archives was informed that 12 additional boxes of records were found;

(7) the initial 15 boxes of documents contained 184 documents bearing classification marks;

(8) Trump’s lawyer told DOJ the former president “has absolute authority to declassify documents;” [but did not say that he had in fact declassified them]

(9) a Trump administration official publicly claimed, without proof, that Trump had declassified all the documents at Mar-a-Lago;

(10) DOJ thus concluded that “probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation 18 U.S.C. §§ 793(e), 2071, or 1519 will be found at [Mar-a-Lago].”

The Less-Redacted Search Warrant Affidavit

Following more legal filings, a less-redacted version of the search warrant affidavit was filed and publicly released. After comparing the two versions, very few new facts were revealed:

(1) the June 3 release of documents to DOJ was by prior arrangement with Trump’s attorney who represented in writing that there were no more classified documents remaining at Mar-a Lago;

(2) the June 3 release contained an additional 38 documents with various levels of security classification;

(3) Trump’s lawyer did not claim that the documents had been declassified;

 (4) DOJ soon learned about, and obtained, security camera footage covering the storage room in Mar-a-Lago but the affidavit material discussing that footage remains redacted.

Note again that the Trump counsel letter asserting the president’s “absolute authority” to unilaterally declassify documents stops short of asserting that Trump actually declassified any of the classified documents found at Mar-a-Lago. One of the most illuminating aspects of the arguments made by Trump’s lawyers is how careful they are to avoid asserting as fact that he declassified any of the seized documents while in office. They make much of his presumed powers to declassify but never say he did so. [Hint: this will soon become one of the most blatant deceptions of a willing dupe, the Trump-appointed judge to whom the case was assigned]

The Raid on Mar-a-Lago

DOJ subsequently raided Mar-a-Lago and took possession of many additional classified documents that Trump’s representatives had claimed were not there.

In keeping with prior Trump practice, a lawsuit was filed to delay the criminal investigation of Trump by seeking appointment of a Special Master to review all the documents. A Trump-appointed judge agreed, over DOJ’s strong objections, to appoint the Special Master and ordered DOJ to stop its criminal investigation.

Trump’s Judge Issues Bizarre Decision to Delay Criminal Proceedings

The judge’s order that reads more like a political polemic than a sound judicial evaluation of the competing claims about the documents. But it’s worth noting some of the findings made by the judge:

  • “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it”
  • Despite that statement, the court’s decision applied to all the seized documents
  • Trump would be “deprived of potentially significant personal documents, which alone creates a real harm”
  • Trump made no effort to show a particularized need for any of the seized personal materials that had been haphazardly stored in the Storage Room at Mar-a-Lago for many months, even after he knew DOJ was interested in them
  • Trump might suffer “unquantifiable potential harm by way of improper disclosure of sensitive information to the public”
  • No evidence was cited by the judge as to what “sensitive information” of a personal nature was in the documents and Trump cited none
  • “[Trump] has claimed injury from the threat of future prosecution.” This finding is astonishing. Judge Cannon is completely off the rails here – the threat of criminal prosecution is present in every criminal investigation and is, indeed, the purpose of document discovery which in this case was being conducted pursuant to a grand jury subpoena. If this threat were grounds for a Special Master review, such a review would be automatic in every criminal investigation, and it’s not.
  • “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude…. the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence.”  Here the judge gives up all pretense and declares that Trump, as a former president, should have privileges accorded to no other citizen under criminal investigation.
  • This point is further established by the court’s later reliance on “[Trump’s] inability to examine the seized materials in formulating his arguments to date – the documents had been requested multiple times over many months during which Trump had ample opportunity to evaluate what he had. His failure to act should not confer an advantage in an argument about the equities of the situation.
  • The judge further cites “Trump’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents.” The judge claims to be unaware of the Fact that the Trump administration for an extended period refused to cooperate in the transition to the Biden administration. This cannot be true unless Judge Cannon has been living under a rock for the past few years. The refusal to cooperate was widely reported for an extended period.
  • Apparently determined to ignore the Fact of the classified markings on hundreds of seized documents, Judge Cannon treats everything as Trump’s personal material: “this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material.”
  • Finally, the judge declares that the possibility of Trump’s having an interest in the comingled personal items seized is sufficient to warrant a Special Master for ALL the documents, including those marked classified! Trump’s decision to mingle the documents and later decline to examine them when demanded by DOJ is thus used as an excuse to give Trump a litigation advantage against the government.

This opinion will likely be the subject of law school examinations in future years as indicative of how judicial bias can undermine the rule of law. It almost certainly would receive a failing grade at any creditable law school if presented in answer to an exam question.

DOJ’s Motion for a Partial Stay

DOJ filed a motion for a stay of Judge Cannon’s order only as regards the classified documents and the ongoing criminal investigation related to the unlawful removal and improper storage of those documents. As to the seized classified documents, DOJ argued, among other points, that,

[Trump] does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them.

[Trump], however, has no right to the “return” of classified records, which are not “his” property.… Classified records also are not “personal” to [Trump] and would not reveal any sensitive personal information.…. Accordingly, [Trump] has no cognizable “individual” interest in any classified records (or in having a special master review those records), and he cannot be “irreparably injured” if such records are not returned to him.

 Trump Claims Personal Ownership of Government Records

That should have been the end of it, but, as usual, Trump continued to argue. His response to DOJ’s motion for partial stay characterized the case as a “document storage dispute” in which “the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”

That utter nonsense stands right alongside Trump’s continued lie that the 2020 election was stolen.

Trump’s lawyers then argued that Trump had the right, and by implication only [no evidence], had exercised the right to convert federal government classified documents into his personal documents:

 The [Presidential Records Act] accords any President extraordinary discretion to categorize all his or her records as either Presidential or personal records …. the former President has sole discretion to classify a record as personal or Presidential….

At best, the Government might ultimately be able to establish certain Presidential records should be returned to [the National Archive]. What is clear regarding all the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with [the National Archive], but not with the Department of Justice.

Trump’s position at that point is that he simply cannot be criminally liable for mishandling documents of the highest secrecy classifications because … well, because he was president and well, he could, like he said, do whatever he wanted. Further, Trump’s argument is that the next president is powerless to uncover documents, including highly classified ones, that are evidence of a crime committed by the former president. That is not and cannot be the law.

If you’ve been following the “reasoning” closely, it has perhaps dawned on you that if Trump has the rights he claims to have – to convert secret government documents this personal property at will – then all other presidents must have had the same rights. Thus, for example, President Clinton could now assert personal ownership over documents that were classified during his presidency and compel their disclosure. Same for presidents Bush II, Carter, and Obama.

Trump’s argument, in addition to inconsistency with statutory and case law, proves too much and thereby violates a cardinal rule of advocacy. It should have been rejected outright.

Trump’s opposition to the DOJ motion for a partial stay also violates at least two other principles of advocacy. For example, he argues “the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office.” But Trump’s team, following in the footsteps of the incompetents who failed in more than 60 attempts in the courts to change the outcome of the 2020 election, does not allege, yet alone prove, that he took any steps to declassify the seized documents while in the White House. Even if it were true that he had the powers he claims, he would have to show they were exercised. They weren’t and his lawyers know it. Their argument is pure sophistry.

The second, and closely related problem, is that Trump’s lawyers appear to believe he is still President of the United States. They refer to him in their legal papers as either the “former president” or as “President Trump,” whichever suits their claim of the moment. This is more sophistry. Trump is no longer president and has not been since January 20, 2021. He cannot, therefore, continue to exercise the powers granted to the president under the Constitution.

Consider for just a moment what the situation would be if Trump were right. President Biden would decide X policy as a matter of national security. Trump would countermand that policy, claiming he had the right to exercise the powers of the presidency indefinitely. Preposterous on its face.

Equally fatuous is Trump’s claim that he has the right to indefinitely restrict access to his “Presidential records” as defined in the Presidential Records Act. Putting aside that the statute cannot be construed to permit a president to conceal documentary evidence of a crime, the argument ignores 44 USC sec. 2202 that says, “The United States shall reserve and retain complete ownership, possession, and control of Presidential records….”

Whatever else Trump may be, he is not the United States.” And his claim that “there still remains a disagreement as to the classification status of the documents” lacks even the rudiments of a viable argument. Matters are not “in dispute” just because one party, without factual basis, claims they are. We know that Trump has made a lifetime practice of bald-faced lying but his attorneys are subject to a higher standard, as is the judge.  They should be particularly sensitive to this because of the many failed attempts to overturn the 2020 election without evidence to support their outlandish claims.

Trump’s Judge Rejects DOJ’s Motion for Partial Stay

DOJ’s Reply In Support Of Its Motion To Stay Pending Appeal thoroughly eviscerates Trump’s claims that the Presidential Records in dispute are his personal property. Nonetheless, and unsurprisingly, Trump’s handpicked judge rejected DOJ’s position by giving full credence to Trump’s claim that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials …; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials.” The judge also continued to give controlling weight to Trump’s bootstrap argument that he “has not had a meaningful ability to concretize his position with respect to the seized materials.”

The judge should have said that Trump chose not to do so when the opportunity was readily available during the months of haggling with the government about whether he had classified documents and, if so, which ones. Instead, apparently because Trump is entitled to special treatment under the judge’s conception of the law, Judge Cannon simply gives Trump yet more opportunities to delay justice, opportunities no other citizen would have been granted.

The effect of Judge Cannon’s rejection is remarkable. He went to some lengths to describe the various investigative steps still open to DOJ while repeatedly foreclosing any reliance on the content of the seized classified documents. Worse, his decision means that the Special Master will have to decide whether the government properly classified the seized documents.

The decision gives no hint of how the Special Master is to make such determinations, but it seems certain this will require extensive inputs from the intelligence community, leading to further delays in the criminal investigation into which the judge has inserted the court. When the Special Master’s report becomes available, Trump will almost certainly challenge each adverse finding, leading to more opinions from the judge and appeals. Neither the Special Master nor the judge have any particular expertise in the decisions they will be making.

Among the on-going investigative actions permitted by the judge’s order are “as indicated in the September 5 Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments.” This logical inconsistency perfectly illustrates the travesty of the judge’s decision: the seized documents can somehow be used for further intelligence classification even as the Special Master, and eventually the judge himself, decide whether the documents were properly classified.

Another stunning misrepresentation by Judge Cannon resides in this remarkable statement:

“there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure.”

The judge is more concerned about leaks from the government than about the national security implications of leaving the classified documents in Trump’s control.

In a final attempt to show his even-handedness, Judge Cannon notes:

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved …. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.

The problem here is that it is not the determination of the Department of Justice that are at issue. It is the determinations of the agencies that classified the documents in the first place. Rather than giving any presumption of validity to the government’s classifications, and without any attempt by Trump to show that the classifications were defective or overridden by an actual presidential decision, the judge has inserted the judiciary into a process it is incompetent to evaluate. The opinion reads like a sophisticated but unmistakable MAGA polemic on the evils of the federal government.

Hey, Judge – Fooled Ya!

Rather than spend more time analyzing the DOJ arguments against the judge’s bizarre and illogical decision, let’s leap ahead to the final step in which Trump, through his lawyers, springs the trap on Judge Cannon.

The judge’s order denying DOJ’s motion for a partial stay was issued September 15. The Special Master wasted no time thereafter. A letter from Trump’s lawyers states: “On September 16, 2022, Your Honor invited the parties to the above-captioned litigation to provide a docketed letter with suggestions regarding the agenda for tomorrow’s hearing.” Then this:

the Draft Plan [set out by the Special Master] requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

The appropriate response to this astounding claim should be:

claims regarding declassification have been waived and no further action regarding them is required. The stay is lifted as to the classified documents and DOJ is free to use them in its criminal investigation as it chooses. Trump’s counsel have been more than a little too cute in their attempt to manipulate and delay these proceedings and the pending criminal investigation. Neither the Special Master nor the court will countenance further obfuscation. The Special Master is relieved of any duty to consider the classification of the classified documents. At a later date the court will consider whether Trump’s counsel should be sanctioned for their attempt to manipulate this proceeding for purposes of delay.

Recall that the presence of classified documents in the materials removed by Trump was known as early as February of 2022. https://wapo.st/3BPYXMs It is now late-September and Trump’s lawyers have exposed their delay strategy in the starkest terms. They baited Trump’s appointed judge who took the bait. Now he looks like just another sucker who was played by Trump. Trump’s loyalists in the White House have been lying and dissembling about Trump’s theft of classified documents for more than a year. Last year they claimed the boxes contained nothing but newspaper clippings. https://wapo.st/3Sesd4u

It’s past time for either the district court judge and/or the 11th Circuit Court of Appeals to declare an end to the Trump charade. It should not take long to confirm that the purloined classified documents are authentic and that, by itself, should be sufficient for the grand jury to indict Trump on multiple criminal counts.

Answers to Senator Mike Lee’s 8 Stupid Questions

2 Replies

On August 10, U.S. Senator, and Trump sycophant, Mike Lee published an opinion piece on, where else, Fox News, entitled, Trump raid leaves me with 8 important questions as a Senate Judiciary Committee member.  I am here to help. For the record, note that Lee twice clerked for Justice Samuel Alito, who famously wrote the majority opinion imposing his religious views on the country while overturning Roe v Wade.

See also https://shiningseausa.com/2022/05/05/justice-alitos-masquerade/

After reminding us he was a federal prosecutor, Lee poses his eight questions.

  1. Did Attorney General Merrick Garland personally sign off on this action?

Answer: A modest effort by Lee would have told him the answer. It’s clear now that Garland did sign off, reflecting awareness on the part of DOJ that its investigation at Mar-a-Lago was singularly important.

  1. Why break into the safe at Trump’s Mar-a-Lago home rather than seize it, take it into custody, and seek a warrant to open it?

Answer: It’s unclear why Lee cares about this, but most likely it’s just part of the “Trump as victim” narrative that Republican sycophants constantly promote to show their loyalty to Trump, as opposed, you know, to loyalty to the country they swore to protect and defend.  The warrant governing the entire search almost certainly permitted the FBI to “break into the safe” if that is in fact what they did. You would have thought that Trump, faced with the “raid,” would have just opened the safe. Maybe he did. Lee wasn’t there. Or Trump refused to open it, so he could add to his victimization ploy.

  1. Why execute a search warrant rather than seek the items through an informal process such as a subpoena?

Answer: Lee is either deliberately ignorant or just plain stupid. Trump would never have complied with a subpoena and Lee knows that. Pursuing a subpoena would just have delayed everything, alerted Trump to the target of the investigation, and likely resulted in destruction of or further secreting of the evidence. Trump refused to answer Special Counsel Mueller’s questions, has claimed that everything he did is forever protected by some form of privilege and in general declared himself immune from, and superior to, the law. If Lee has not learned any of this, his “opinion” is worth exactly nothing. He just going along to get along with the Republican narrative that the man who led the attempt to overthrow the government on January 6 did nothing wrong.

  1. If this is genuinely about presidential records, why would the former President — who was in charge of declassifying documents — be subject to prosecution for retaining custody of the same documents? It’s important to note that classification authority belongs to the president of the United States — NOT to bureaucrats at the National Archives.

Answer: Senator Lee knows a lot less about the classification of federal government documents than he would have you believe. For a short course introduction, see https://twitter.com/MarkHertling/status/1557911337468133377  If you want to look further into General Hertling’s military chops, look at this: https://en.wikipedia.org/wiki/Mark_Hertling

  1. If this is the product of the growing political weaponization of federal law enforcement agencies, shouldn’t all Americans be outraged by the Democrats’ plan to hire an additional 87,000 federal agents?

Answer: Clever but no cigar. By characterizing this as a hypothetical, Lee leaves himself room to say, “I never said there was growing weaponization, etc.” But, of course, a claim of weaponization is exactly the message he intended to deliver.

Why he thinks the increased staffing for the Internal Revenue Service (that’s the 87,000 new employees) is relevant here will remain a mystery to all rational people. But if anyone wants to know, read this: https://wapo.st/3SOxMHZ And if weaponization is the allegation, perhaps Sen. Lee should do a little reading about the Trump administration, especially the last year or so. Might start with Betrayal, The Final Act of the Trump Show, by Jonathan Karl. Or these:

The Fourth Reich — It’s Them or Us https://bit.ly/3QIoCLy

Donald Trump — A Gangster in the White House https://bit.ly/3Po4kpB

Trump’s Documents – Trump’s Crimes https://bit.ly/3zMWik4

  1. How is this aggressive action defensible in light of the FBI’s and DOJ’s treatment of Hillary Clinton, who was never subjected to such an invasive intrusion of privacy, even though she mishandled classified material and destroyed evidence?

Answer: Sen. Lee should see a doctor about his memory loss. I will not waste time with this old, very old, line of Republican deflection, except to note that Secretary Clinton did not attempt to stage a coup to prevent the lawful and peaceful transfer of power. Oh, and DOJ’s (FBI’s Comey, remember him?) treatment of Hillary Clinton was likely to ultimate cause of her loss to Trump in the 2016 election.

  1. Why should we assume that the federal bureaucracy isn’t targeting Republicans when the FBI and DOJhave taken no action regarding flagrant violations of the law by pro-abortion extremists threatening Supreme Court justices at their homes?

Answer: Prosecutorial decisions about political protests are more than a little different than investigation of known crimes involving national security. And, just for the record, AG Barr’s records of using DOJ for Trump’s personal and political benefits is undeniable. We can match the good senator deflection for deflection, but it’s pointless. Trump removed documents from the White House that he knew had the highest security classification. Why? Republicans like Lee don’t care about the national security of their country. They are only interested in being seen by Trump as 100% loyal to him, just in case, you know, he becomes president again.

8. Did FBI Director Christopher Wray intentionally wait to carry out the raid until after his oversight hearing with the Senate Judiciary Committee last week? I asked him whether he was concerned with warrantless “backdoor searches” under Section 702 of the Foreign Intelligence Surveillance Act. He seemed unperturbed.

Answer: What if he did? Lee is a US Senator and can ask the FBI questions until he is blue (or is it red?) in the face.

Lee’s rant ends with his false hope that the FBI has been appropriately careful in handling the decision to raid Trump’s “home:”

If there’s something we don’t know, something that will clarify the reasons for the raid, then the FBI needs to articulate that justification soon as possible. If there isn’t, we’ve got problems at the FBI.

In this statement, Lee reveals his ignorance of how DOJ/FBI works OR, more likely, is just playing to the victimization/fears of the Trump base that somehow the federal government is out to get them. Senator Lee and most other people are not entitled to know every detail of criminal investigations, regardless of the target. Lee seems to forget, as he has forgotten his oath of office, that Trump is subject to the law the same as everyone else. The investigation of Trump is based on well-founded concerns of criminal behavior in a vast range precisely because, not instead of, his having been president. The reason is simple enough: if the president can commit crimes and not be called to account, the Constitution is meaningless and, as Benjamin Franklin feared, the republic is lost.

Trump May Skate on Obstruction of Justice

2 Replies

I am very sorry to report that the statute of limitations [SoL] has run against Donald Trump’s acts of obstruction of justice when he asked FBI Director James Comey to leave Michael Flynn alone. More on that in a moment.

First, I want to call to all readers’ attention the Lawfareblog at https://www.lawfareblog.com. For readers interested in, and able to tolerate reading lawyers’ opinions, this site has some of the most serious, law-focused discussion you will find anywhere regarding many of the key issues facing the country. As in the analysis of Trump’s obstruction conduct in the earliest known case, sometimes the lawyers’ analysis does not have a happy outcome. But it is always thought provoking, written by serious and accomplished people. Lawfareblog.com is a vast resource that I hope you will visit and support.

Now, back to the bad news. The article that addresses the Statute of Limitations issue regarding Comey and Flynn is at https://bit.ly/3LJqn9q. The SoL expired on February 14 with no action by the Department of Justice to hold Trump accountable for the first of at least 10 instances of obstruction of justice identified by Mueller. The Special Counsel took no action because he believed he was bound by the DOJ position that it could not indict a sitting president. Mueller also had a very narrow understanding of the job he has been given, as detailed in the compelling and important book, Where Law Ends, by Andrew Weissmann, one of Mueller’s chief deputies. I reviewed the book at https://bit.ly/3LENvWF

It is a remarkable work, and everyone should read it.

Mueller’s failure to act left it to the Garland DOJ to pick up the case after Trump left the White House. He didn’t. The running out of the SoL means that, regarding the Comey-Flynn episode, we are SOL. As more time passes, the SoL will foreclose, one by one, any possible accountability for the other nine cases Mueller identified and several that, in my opinion, he inexplicably missed.  See, for example, my extensive discussion of the Mueller Report on the obstruction of justice issues:

https://bit.ly/33zmPFI

https://bit.ly/3LDkdYB

https://bit.ly/3JDzIhf

https://bit.ly/3oYM7o7

https://bit.ly/3I52g2I

The Lawfare blog includes a heat map that graphically illustrates the threat posed by the calendar for 14 possible charges of obstruction (4 more than Mueller identified and more in line with my analysis). In thinking about the obstruction issues, it is important to understand that there are three crucial elements to conviction on any charge:

Obstructive Act

Connection Between the Act and an Active Investigation

Corrupt Intent

By the end of July 2022, DOJ will lose the ability to charge Trump with the two instances in which even Mueller thought were the stronger cases for proving obstruction.

Meanwhile, as Lawfare notes with concern, DOJ remains mute.

At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.

The balance of the Lawfare article consists of an analysis of five scenarios regarding DOJ’s posture. Lawfare admits this is all speculation – it must be since AG Garland is not talking. Many of the five scenarios are decidedly offensive but that doesn’t mean they aren’t correct explanations of what is happening – and, not happening.

Lawfare then makes a compelling case for the Attorney General to explain to the country what is going on regarding Trump’s obstruction of justice. Silence is the least acceptable path forward. Lawfare is right about this, I believe. Read it, I urge you, and judge for yourself.

 

Terrorism in the Air – Ban the Perps

2 Replies

This blog has twice addressed what the media and airlines continue to call “unruly” passengers who refuse to follow flight crew instructions: Time for Strong Action Against Unruly Air Travelers  https://bit.ly/3uyZn6w and An Anti-Masker Walked into a Bar …  https://bit.ly/3Jj9xMP

I have noted that the term “unruly” fails to describe the violent conduct of these, mostly, anti-maskers accurately and fully. The current of today’s post describes their behavior as terrorism. That, I submit, is closer to the truth. Bear in mind that these people are almost certainly among those who are fond of telling Black people to “just comply” with police instructions and, in effect, blaming them when they are killed. These events usually occur at traffic stops but there are many other examples. Yet, when these people board aircraft, knowing what the mask rules are, they chose not only to refuse compliance, but they physically assault flight attendants and other passengers.

I have advocated that the situation presents immediate grave dangers that should be addressed with aggressive, immediate and automatic enforcement of the law and common sense.

It is now widely reported that Delta Air Lines has written the Department of Justice to request government creation of a no-fly list for these terrorists. It’s about time.

The main reasons I believe that airlines have been hesitant to simply exchange the names and agree to ban these nuts from flying is the antitrust laws. Someone would no doubt accuse the airlines of conspiring to limit competition. While I don’t believe such a claim has merit, it would be expensive to defend and pointless in the end. The better solution is the one Delta has finally requested. It remains remarkable only that the entire industry has not joined immediately in this request.

I haven’t found the letter yet but continue to believe that a government-approved no-fly list is an excellent idea, although the same outcome could be achieved by DOJ issuing a Business Review Letter, a common technique permitting firms to propose courses of conduct that might raise issues and to ask DOJ to clear them in advance. This is not a subject on which competition is materially involved or that could possibly be jeopardized. It’s a problem of safety about which there should be no “competition.”

As for the administrative difficulties of managing such a list, remember that airlines have always been able to manage connecting flights involving not only their own flights, but also their flights in conjunction with other carriers’ operations. A no-fly list would be a piece of cake compared to that.

So, come on, DOJ, let’s not turn this into another endless investigation. Take the action Delta requests. As for the terrorists, it’s simple: just comply.

 

The Cat is Out of the Bag

Leave a reply

When it was revealed that General and Chairman of the Joint Chiefs of Staff, Mark Milley, had intervened in anticipation that Trump might use the military to keep himself in office, strong backlash was heard from some in the military, present and former. They appeared to believe that it was wrong for Milley to move independently of the president who was his commander-in-chief, regardless of his fears that Trump might act to subvert the election with military force or start a nuclear conflict and declare martial law.

That position was, I thought at the time, unbelievably short-sighted and mindless. Accepting that chain-of-command is important, I thought, and still believe, that General Milley is an American hero for seeing a fundamental danger to the country and acting to prevent it.

Now come three other generals (retired) arguing that “The military must prepare now for a 2024 insurrection.” https://wapo.st/3e8J6vH “We are chilled to our bones at the thought of a coup succeeding next time.”

I am too, and so should you be. We are facing the most serious threat to our democracy since the Civil War.

The case made by the generals is compelling:

  • Many of the insurrectionist mob on January 6 were veterans or, even more remarkable, active-duty military;
  • The commander of the Oklahoma National Guard refused to compel COVID vaccination of his Guard members because the Governor of the state said he should not follow the President’s directive;
  • “The potential for a total breakdown of the chain of command along partisan lines … is significant should another insurrection occur. The idea of rogue units organizing among themselves to support the “rightful” commander in chief cannot be dismissed;”
  • The real possibility exists that state Guard units will follow their political preferences if their candidate loses the next election;
  • Access to state arms repositories might be loosened to aid insurrectionists prepared to do battle;
  • Often ignored, the distraction of a violent domestic conflict over the election with a divided military would make the U.S. vulnerable to attack by international enemies;
  • We have passed the stage of mere strong political disagreement and must urgently prepare for worst-case scenarios, by, among other things, holding the leaders of January 6 to full accountability for their actions;

The generals who have spoken out about the danger have made several compelling proposals for preventive measures:

  • An immediate civics review for all uniformed and civilian military regarding the Constitution they have sworn to uphold and on the subject of election integrity, the laws of war and how to deal with illegal orders;
  • Re-inform members about the “unity of command,” so there is no question about who is in command;
  • “identify, isolate and remove potential mutineers” and “propagandists who use misinformation to subvert the chain of command.”
  • war-game the next potential post-election coup attempt to identify weak spots, debrief the findings and act to prevent breakdowns in the military and in connected civilian agencies.

A major step in support of this pro-democracy agenda involves the military and Department of Justice acting aggressively and urgently to hold accountable those who participated in and/or led and/or conspired to induce the attack on the Capitol. Regardless of what led people to involve themselves in what was a blatantly and unquestionably unlawful assault on the government, minds are not going to be changed any time soon.

The remedy for now is to make clear that the penalties for such conduct will be administered severely and promptly. Military who participated should be expelled from the service. They have no excuse for violating their oaths of loyalty to the Constitution. Similarly, the January 6 House Select Committee must adopt a sense of urgency and work continuously until its mission is completed.

Simultaneously, the Department of Justice must, with equal urgency, complete its investigations and indict the leaders in Congress and the former White House (and associated advisors) and elsewhere who participated in, conspired to incite or aided-and-abetted the January 6 assault. It should not take a week or more to hold in contempt individuals who refuse to comply with subpoenas or who falsely claim the Fifth Amendment while simultaneously proclaiming their innocence and make false accusations about the process.

Among the other obvious dangers here is that these investigations will drag on, the TrumpPublican Party will regain full control of the Congress (not dependent on the cooperation of people like putative Democrat Sen. Joe Manchin) and activity to investigate and hold accountable will be halted. If that happens, you can kiss our democratic republic goodbye, perhaps for good. The authoritarian goals of the TrumpPublicans are to entrench their power permanently. Democracy is at stake. Time is running out. Politics as usual is not good enough. If we do not act in the face of the threat, we will deserve what we get.