Trump’s stealing, mishandling, and concealing of United States defense secrets is on the Republican Party for refusing to remove Donald Trump from office when it was clear he was not fit to be president. They had the chance to remove him (twice) but instead shielded him.
This is on them.
New Information about the Search Warrant
This week the DOJ released a heavily redacted copy of the affidavit accompanying the warrant to search Mar-a-Lago. I updated this timeline of the stolen-documents case with the new info. If you want to get caught up, click here to check it out. In a nutshell, Trump stole top-secret defense documents and refused to give them back, so the court approved a search warrant so the government could retrieve them.
The fact that Trump thought he could make off with US military secrets when he lost reelection is weird and creepy.
Trump’s relationship to executive privilege offers a good sense of what we’re dealing with.
(Executive privilege is the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch. The idea is that the president should be able to communicate freely with advisors. The privilege is never absolute. There are always occasions when the need for the information outweighs the president’s privacy interests. Moreover, privileges can’t be used to conceal crimes.)
Trump and Executive Privilege
On Aug. 24, 2021, the House select committee investigating the Jan. 6 attack on the U.S. Capitol issued a request for documents, including presidential documents housed at the National Archives. (The PRA, The Presidential Records Act, requires all records generated by the President to be housed at the NARA.) The Act also gives the sitting president final authority over whether to assert executive privilege over presidential documents.
President Biden declined to assert executive privilege and authorized the Archives to release the records to Congress.
On October 18, 2021, Trump sued to stop the records from being sent to Congress on the ground that he was asserting executive privilege and that his wishes should outweigh Biden’s because they involved his tenure in the White House.
Trump lost. The court held that if the incumbent president and the former president differ over whether to claim privilege over particular documents, the incumbent president gets the final say because the privilege protects the office of the presidency, not a particular president. Trump appealed. He lost again. He appealed to the Supreme Court, which refused to hear his case, meaning it was over.
So the National Archives sent the presidential records to the House select committee.
But . . . (da dum, da dum) . . . it turns out that Trump was hiding records at Mar-a-Lago, so in fact, the select committee didn’t get all the records.
This spring, when the National Archives and FBI were trying to get the documents back, Trump again claimed executive privilege. His new lawyer, Corcoran, when telling the NARA and FBI why they couldn’t have the documents, made the same arguments that Trump had made in his losing lawsuit. A National Archives official, in a letter dated May 10, patiently explained to Trump why he doesn’t have the right to assert executive privilege.
Trump still refused to turn over the records, so the FBI obtained a search warrant and retrieved the documents.
Even after all of that, this week Trump filed a motion asking the court to appoint a special master to review the seized material partly on the grounds that they’re covered by executive privilege.
Me = facepalm. There’s no getting through to this guy, right?
The irony is that even if the documents seized were covered by executive privilege (they’re not because Biden gave permission for them to be released), this would mean, by law, they would need to be housed in the National Archives. Thus his claim this week of executive privilege was an admission that he is in possession of stolen documents because, by law, privileged records belong in the National Archives.
So Trump stole materials and then tried to claim a privilege he doesn’t have—even after courts and others have repeatedly told him he doesn’t have the privilege.
Just for fun, let’s take a look at what Trump filed in court this week
Once in a while, we need comic relief. The filing is here.
It’s easy to read. In fact, it looks like he wrote it himself. For example, I’ll bet Trump wrote this part:
“President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential Primary and in the 2024 General Election, should he decide to run.”
He added that his endorsement in the 2022 midterm elections was “decisive” for Republican candidates. (I think he meant the primaries). And apparently, the FBI should have taken into account that searching his premise would “distress most Americans.” Most? I don’t know about that.
He explains that when his family moved from the White House to Florida, “like most Americans, the move involved boxes. It was done during the day, with the boxes in full view.” The paragraph mentions “movers” three times. (As one of my followers on Twitter asked, ‘Is he trying to throw Allied Van Lines under the bus?”) I thought this was odd. Then I noticed that on a heavily redacted search warrant affidavit left unredacted mention of moving trucks:
Then the obvious occurred to me. It’s possible that Trump is accused of having sensitive top secret defense secrets packed and moved by a commercial mover. (These are documents highly regulated as to where and how they can be stored and who can have access.)
We do get the story from his viewpoint. He admits that earlier in the year, some of the documents he returned included some he believed were covered by “executive privilege,” which means he shouldn’t have taken them. On May 11, he “accepted service” of a grand jury subpoena. He “determined” that his staff should “search for documents bearing classified markings, even if they had been declassified.” On June 2: He “invited” the FBI to retrieve “responsive” documents. On June 3: Jay Bratt and 3 FBI agents came. Trump greeted them in the dining room. Before leaving “President Trump’s last words to Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”
So helpful! (He likes calling himself “President Trump.”)
Of course, he didn’t return all the top secret documents, which was why the FBI finally came in with a search warrant to get them all.
What he says about Garland’s press announcement is so deluded that I can’t even. Because Garland doesn’t mention the message Trump passed along to him about how his supporters were so angry about the search that they had to find a way to bring the temperature down, he concludes from Garland’s speech is that the decision to search Mar-a-Lago was to diminish the “leading voice in the Republican Party, President Trump.”
He also makes an “everyone was mean to me” argument. No kidding. This was a heading in his brief:
THE GOVERNMENT HAS LONG TREATED PRESIDENT DONALD J. TRUMP UNFAIRLY
What he’s doing, actually, is trying to set up a political persecution defense. The problem is that the appropriate time to do that is at trial, not in the pre-indictment stage.
He also mixes in a Fourth Amendment argument, claiming that the search violated his Fourth Amendment rights. Here’s the problem with that: If a defendant’s Fourth Amendment rights are violated, the remedy is to file a pre-trial motion to suppress the evidence. This happens after the indictment.
Trump’s attitude toward executive privilege is similar to his attitude toward the election fraud claims
No matter how many times Trump lost in court over his election fraud claims, and no matter how many times he was told by people like his own Attorney General Barr and White House counsel that there was no fraud and he lost the election, he insisted that he won the election and there was widespread fraud.
For more on why, see this post
Well, I was one of the “not enough consequences” thinkers. I’m in the right place to learn. Thanks for the unique viewpoint so clearly supported. Very glad to have found your site!
Such a thought-provoking perspective. But as Asha Rangappa and Jennifer Mercieca point out, we must not confuse the political with the legal. Voting them out is, as you write Teri, a political action. But what about Justice? What about the law? Trump was not convicted in his impeachment. Trump initiated the lawsuits he lost, they were not imposed on him. His associates have suffered censures of various kinds for their misbehaviours, but they are not Trump. What does law mean when faced with someone who refuses to accept laws? Do we just give up on law? Law is waiting to be asserted “without fear or favour”.
I believe you misunderstood what I wrote here. I never said “Give up on the law.” You might want to read it again.
Andrew Weissmann tweets that Trump has suffered “no actual consequences” for his behavior. Might actual consequences look something like this?
“Steven J. Hoffenberg, a brash New York debt mogul who spent 18 years in federal prison after admitting to running a fraud scheme that prosecutors said was then among the largest such crimes in U.S. history, was found dead on Tuesday in the modest apartment in Derby, Conn., where he had lived for about two years. He was 77.”
https://www.nytimes.com/2022/08/26/business/steven-hoffenberg-dead.html
“Someone suffered worse” does not make Weissmann’s statement true.
Weissman’s statement is not true. What Weissman is doing is reflecting back popular biases on Twitter. See my blog post from last week on the dangers of that.
Thank you for your opinions.
If you have one concerning the recently released 0LC memo by Barr that the Citizens for Responsibility and Ethics in Washington sued for through FOIA, could you point me to it? Thank you.
I never wrote about that, sorry!
I think, on a personal at least, that it means that Trump hasnt faced real concequences or taken responsability for anything in his life in general, right now a man on his 60´s, well set on his world view and aware of his priviliges and lifetime of getting away with anything, even a real scenario of facing jail time wont make an impression on him, since he belives it will be scott free or be able to outmanuver “his” enemies with money or bullying…
And on the emprisionment, I think most people dont really care if criminal harms others in prision, a shoplifer cannot shop lift while in jail, a date serial rapist wont be raping women outside (might assualt others in jail, but a) ppl usually dont care, b) probably wont be as easy), im not saying I agree necesarily but I do see their point, and Id argue that some criminals migth lose their pull while incarcerated. But the real question then what to do with lawbreakers, specially violent ones?
I appreciate that you haven’t mentioned here how he likely sold secrets, and that many CIs have died since he took office. The matters at hand right now are sufficient to condemn the GOP; their complicity with this truth-ignoring repeat law breaker should mean they never get elected again.
When/if we see what I believe is highly likely to be true, we will address it. You don’t conflate issues, and that heels me keep them separate too.
Helps.
Darn keyboard gremlins.
At this point, that’s all specuation.
Wonderful summary Teri. Bringing clarity to legal process is your gift.
Re: Consequences It seems that when many people use the term ‘consequences’ what they really mean is ‘punishment’ … because in their view, without punishment there is no real negative effect for the perpetrator. In this view Trump has suffered no real consequences as he has not been punished for his transgressions, legal or moral.
They don’t just mean punishment, they mean “criminal punishment,” as if that makes any difference. The problem is that punishment will never accomplish what they think it will, so no matter what punishment occurs, they will shout that it isn’t enough.
The problem is that their premise is wrong.
Thank you for this! I appreciate your clarity, especially in that the rEpublican party is the bad guy here, not the government/DOJ and that they bear responsibility for tRump etc al.
I don’t know how punishment will go for him but consider this: the majority of the American people don’t want him as President; he lost reelection (and he knows it) and that has to be galling. . He’s broke or near enough so doesn’t have a “fortune” of which to be proud. The rEpublican party IS turning their back on him. He can’t declare for 2024 office without losing his legal defense funds and can’t even attract his former high powered attorneys. And he will be indicted on some charges at least. Nothing he values or sees as making him special is left to him. His punishment is self inflicted but it’s still probably the worst in his mind. I enjoy that for now.
Thank you for your careful analysis! True personality disordered folk like TFG drawn to unfettered power, and having no respect for law or life, will never respond to rational appeals or boundaries (punishment)-but will only continue to distort and exploit. Enablers will always be necessary to perpetuate serious damage. Unfortunately, numerous enablers have been successfully recruited by TFG.
Hope grows realizing there are more supporters of democracy and are mobilizing as awareness and resistance to lies, political violence and autocracy grows. We have work to do!
Pulls out Teri’s “To Do” list.
Our country definitely needs more JJ’s and fewer TFG’s …
If this has been answered previously, I apologize for the repeat.
I would be interested in knowing your opinion of the news media asking (demanding?) for the release of the full affidavit “because the people have a right to know?”
If the DOJ thinks their investigation would be compromised, then why does the media think release would be a good thing to do?
The media’s job is to try to find things out. They’ll always do that. The courts tell them no when the info will harm the investigation, which is why we got a heavily redacted affidavit.
Thanks, Teri. I look forward to seeing every blog you post and have learned so much. It’s truly frightening at how much our country has been put at risk by Trump and his supporters. Big problem is we may never know how much damage he has caused. It’s also scary to realize so much damage has been going on for decades, and Trump seems to be the culmination of that damage. I hope we make it through.
Trump is a clear and present danger to this country. The problem is incapacitating him in any form will only serve to increase his appeal to his followers. What actions do you see can be taken to reduce his power? Is it realistic to assume there is someone else, just as vile, waiting to take his place or does his power derive from his charisma?
Yes, unfortunately. And,…. His name is Ron DeSantis ♀️
“Put the blame where it goes: On the Republican Party for defending and shielding lawbreaking.”
“Republicans break the laws they don’t like (and cheer those who break the laws they don’t like).”
And paradoxically, “Law and Order” citizens have embraced this philosophy.
THIS is Mitch McConnell’s Legacy! And yes, the entire Republican Party is complicit for allowing ALL of this to reach this point.
“It’s an ill wind that blows against the empire.”
ap
Teri, I count on you as the voice of sanity, clear and understandable, in the wilderness of media and professional opiners. (That may not be a real word but it’s the one I need here)
Thanks for putting the accountability issue in perspective. If I can rephrase: there have been consequences but trump and his cronies chose to ignore them; that’s not the same as no consequences. The media somehow “forgets” the consequences because they see “better” headlines.
Some days I can think rationally, others I just want to make the world sit in a corner for a time out or until sanity takes over. Again thank you
I guess we’re going to get a “special master”. https://youtu.be/mlZChZQqoDY
This is not accurate. The judge drafted a preliminary order and scheduled a hearing, and asked for the DOJ to respond. The word “inclined” was not in the court’s order. (I addressed this question in the body of the piece). Also keep in mind that a special master will do nothing to change the outcome.
If you click through you can read a copy of the actual order: https://twitter.com/OrinKerr/status/1563649285878476800
I can see how people have gotten the idea that there will be a special master, but what is happening right now is briefing on the matter and a hearing. After that, the court decides.
By then, it’s likely that the FBI will already have viewed everything.
Thank you!!
I too was thrown by all the headlines that the judge is “inclined” to go for a special master (which seems like closing the barn door after the horse is gone, anyway, especially now that we know there will be an assessment of the impact on national security from the mishandling of these documents). The inevitable oversimplification of these formal legal procedures by our media, and the media’s innate need to come up with headlines that gin up enough outrage to gain a click, are not serving us well these days. Thus my reason for always turning back to your rational, detailed posts.
I don’t think enough attention is being paid to the fact that this is an *ongoing* investigation (hence the need for the redactions in the affidavit). Doesn’t that suggest that retrieval of documents is not the end point, but just a step along the way to something that could be even more serious, both for us and for Trump and for the Party that’s shielding and defending him? I don’t want to encourage pointless speculation, but we’ve all been living in terrible suspense for almost seven years now (hence all the complaining about lack of consequences), and lord, we long for something like closure!
Yes, it seems a Special Master really isn’t an appropriate response. If he had not been President, then perhaps he might have a case. But ironically, nothing belongs to him because he became President.
Must be hard to wrap his hairsprayed head around that. Seems just a delay attempt.
Thanks, Teri, for another great post.
R
Thank you Teri for addressing that. Sometimes I really get annoyed with the way the media writes its headlines. And trying to find “what really happened” is no longer an easy walk in the woods. I try to follow media sources that have shown a tendency to just report the “facts”, but I know I’ve not been totally successful in that pursuit.
And thank you for the Twitter links. I’m not on Twitter (for various reasons), so I do appreciate being able to look at those. Sometimes it’s quicker to click on one of your links (or copy/search) than it is to do a Google search.
I appreciate your blogs and posts!
Even the oldest Republicans have changed. It’s so disheartening to see elder statesmen, for ex as mple in the Senate deteriorate. Your summary has such clarity. Thank you, the weekly blogs are so clarifying and factual. Thank you so much.
I truly appreciate your educative commentary relayed in a clear manner that most people can understand. I have a much better understanding of what has long been a mind-blowing inexplicable situation to me. Your explanation about Trump flaunting laws and continuing to commit crimes because he has been enabled and applauded by a Republican party that has equal contempt for laws with which they disagree makes perfect sense. What I’m not clear about is the solution beyond an electorate that will vote out these Republicans. I fear Trump will continue to commit crimes of an escalatory nature and/or incite his supporting militias to do so. I think he will remain a danger to our country and could inflict even more serious damage than he already has BEFORE we have time as a country to make the necessary political reforms at the voting booths. I don’t see it so prison so much as a consequence Trump deserves as I do as a necessary measure to protect our country. What is your opinion on what should be done to protect our country from Trump?
*BANG* (“Like they did in the old days!”)
Great article, and thank you for such a comprehensive explanation.
Just a couple of nits.
Nixon was going to be impeached, but the full house vote on the articles was never taken. His own party convinced him to resign before that could happen, so he was not technically impeached. He did resign and was pardoned (the pardon was a huge mistake and part of what got us to somebody like Trump).
Trump didn’t secure the GOP nomination until the convention in the summer of 2016, not 2015. Through the primaries, they had a pretty scattered free for all, and those living in reality didn’t think he could actually win the nomination.
Thanks! Will fix.
But what about Judge Cannon’s order issued this afternoon?
I was going to answer here, but I think I’ll add your question to the blog post.
Simply brilliant. Clear. You name the invisible obvious: the Republican electeds are responsible. Thank you.
Thank you so much for your thoughtful and incredibly well researched work. I learn so much.