This week, Trump told a Newsmax host that he recently hosted defendants being prosecuted for attacking the Capitol on January 6. He also said he’s “financially supporting ” some of them. “It’s a disgrace what they’ve done to them,” Trump said. He also said he will look “very favorably” about giving “full pardons” to individuals convicted of attacking the Capitol if he wins the 2024 presidential election.
We saw the same defiance in his court appearance this week in Florida. Last week I wrote about Trump’s motion asking a court in Florida to appoint a special master to review the material seized from Mar-a-Lago. Specifically, he wants the special master to screen for executive privilege.
(Among the things wrong with that: A sitting president has the right to assert executive privilege over particular records if another branch of government wants to see them. Biden waived executive privilege as to these documents. Moreover, these records are going to the DOJ, which is part of the executive branch, so it would make no sense to exert executive privilege over them.)
On Tuesday, the DOJ filed its response, offering new details about the case. (I updated the timeline I’ve been assembling with the new information.)
Ordinarily, I don’t like making predictions, but after reading the DOJ’s response, it’s safe to say that the DOJ will indict Trump for his handling of these documents. Their presentation of the facts and law was devastating. They’re clearly angry that he has been lying and they’re not messing around. You can read their brief here.
Here are the facts and the law in a nutshell:
- When Trump left the White House in January of 2021, he took boxes of presidential records to Mar-a-Lago, including highly classified national secrets.
- Under the Presidential Records Act (PRA) all presidential records belong to the government and must be stored in the National Archives.
- In January 2021, National Archives and Records Administration (NARA) officials identified records Trump had failed to turn over to the archives. They spent all of 2021 trying to get the documents back, including threatening to involve law enforcement.
- In January 2022, Trump returned 15 boxes of government records, which included highly sensitive classified documents.
- NARA officials asked the DOJ to investigate to make sure that the classified documents had been handled and stored as per regulations.
- During its investigation, the DOJ developed evidence that Trump was still hoarding classified documents, so in May, they issued a grand jury subpoena for all documents bearing classified markings.
- In response to the subpoena, Trump turned over a “limited number” of documents and his lawyer signed a declaration stating that no additional documents with classified marking remained at Mar-a-Lago.
- Afterward, the DOJ developed evidence that Trump still retained classified documents.
- On August 8, pursuant to a search warrant, the FBI found lots more classified documents at Mar-a-Lago.
(For links to sources for all of this, click here).
Pretty straightforward, right? Trump was caught red-handed hoarding stolen materials after refusing to give them back. He really has no defense.
So what did he do? Did he claim to be innocent? Did he claim that he had no idea the documents were there and try to blame someone else?
Nope.
Trump admitted that he retained top secret government documents.
As part of its response to Trump’s lawsuit demanding a special master to review the seized documents, the DOJ included this photo:
This kind of image is standard after law enforcement conducts a search. When they find evidence of a crime, they photograph the evidence on the premises. Trump, however, was indignant because he thought the implication was that he was sloppy with such documents. On social media, he posted this:
Legal and political observers were stunned: Here he was, freely admitting that, as of August 8, 2022, he possessed documents marked classified.
This creates an interesting situation. First, he made the prosector’s job easy because the hard part is proving that he knowingly had them. Also, because juries are fact-finding bodies, it doesn’t leave much for a jury to do.
It turns out this wasn’t just an inadvertent slip.
In Trump’s reply filed in his Florida lawsuit for a special master, he claimed that he had the right to possess the documents.
His reply brief is difficult to read—not because of the legalese, but because it is written in gibberish. If you want to go ahead and give it a try, it’s here. Meanwhile, I’ll translate the pertinent parts into understandable English.
Trump opens with a long sentence containing his greatest hits:
[Fact check: It wasn’t a raid, the search was supported by a valid search warrant; the setting was not “secure” under the laws governing how national secrets can be stored; he had no right to possess the Presidential records; and yes, the DOJ is entrusted with the responsibility of evaluating evidence and deciding whether to bring charges. That’s actually the DOJ’s job.]
He also says this:
As I translate that sentence, he’s saying the issue is whether “a president” (meaning Trump) can possess “his own Presidential records.”
Here he explains why he’s allowed to possess the documents:
Translation: He seems to be saying that even if he did take presidential records, the only statute he can possibly violate is the Presidential records act. Problem #1: The Espionage Act makes it a crime for a person to take or conceal national security secrets. Problem #2: It’s also a crime to conceal documents in order to obstruct an investigation. (And you’re also not supposed to blow off grand jury subpoenas).
He then points out that the Presidential Records Act does not contain an enforceable provision:
The logic seems to be that there are no enforcement provisions in the Presidential Record Act (the former president is “exhorted” but not “required”) so the fact that he refused to return the documents is not an illegal act, which means he was entitled to possess the documents, which means he should get a special master. (Me = 😕)
He also says:
Translation: He is characterizing his interactions with the government from January 2021 until the execution of the search warrant as “standard give and take.” Then he implied (for the first time) that he was assembling these documents for a presidential library. (Yeah, riiight.) But notice that the idea that he was collecting the documents for inclusion in a library is an admission that he was collecting the documents.
Trump’s “strategy” is akin to election denial: Go big. Dig in.
Notice that in claiming the right to possess government documents and withhold them by asserting executive privilege, he is claiming to have the power of a sitting president. It’s almost as if . . . he thinks he won the election, or he can’t admit he didn’t win the election, or he can’t let go of the power he once had. His “defense” that he had the right to possess the documents is big and audacious. He’s asking his supporters (and the judge in Florida) to find that he can rightfully possess government documents and assert executive privilege in an obvious attempt to thwart a criminal investigation.
The problem is this: Because of what the Republican Party has become, a lot of people will support him.
Will the judge rule in his favor?
Anna Bowers, writing for Lawfare, offered this excellent and interesting summary of what happened at the hearing on Trump’s special master on Thursday. The full transcript is here.
It was clear at the hearing that the judge wanted to side with Trump. (If she does it will be nutso and I’m sure the DOJ will immediately appeal.)
However, the judge did not issue a preliminary injunction stopping the FBI and DOJ from continuing their work. One thing from the hearing that struck me was the discussion in which Bratt, the DOJ lawyer, explained to the court that if the court wants to stop the DOJ’s work, the court needs to issue an injunction. Bratt explained that ordinarily, with special master cases, the DOJ stops its investigative work while the special master screens the documents, but in this case (classified and government records) the DOJ does not feel it needs to stop its investigation while a special master does its work—so if the court wants the DOJ to pause the criminal investigation, it will have to issue a formal injunction.
I took this to mean that the DOJ will continue doing its work until it is formally enjoined from doing so.
As of Saturday evening when I am posting this, the judge still hasn’t issued an order, which means they are moving forward with the investigation. I think it’s safe to say the DOJ lawyers working on this are working through the Labor Day Weekend because, at any moment, they may be forced to stop
The longer this drags out, the more likely the whole issue becomes moot.
If the judge rules in Trump’s favor, how much can it help him?
Not much, really. It looks to me like at best he can slow down the process for a month or two. Trump is hoping, of course, to find a way to thwart the investigation, but if the DOJ wants to indict him, there really isn’t anything he can do to stop them.
Republicans Rush To Trump’s Rescue
This is what Speaker McCarthy had to say on Friday morning, the day after the hearing:
https://twitter.com/GOPLeader/status/1565714199648632837
On the other hand, Bill Barr (Trump’s former AG who was willing to do Trump’s bidding up to the time Trump wanted Barr to help him stage a coup):
Barr: I think for them to taken things to the current point they probably have pretty good evidence.. People say this was unprecedented, well it’s also unprecedented for a president to take all this classified information and put them in a county club pic.twitter.com/k1L32WqWGX
— Acyn (@Acyn) September 2, 2022
I intended to write more about the Republican reaction to Trump’s lawbreaking and place it in a larger historical context, but this is already long enough, don’t you think? I’ll save that for another week.
A question from a reader:
“Everyone seems so focused on indict vs. not indict as the existential battle with the DOJ, but I’m kind of past that and wondering more and more about a jury. How would prosecutors even begin to approach jury selection for a Trump trial? One MAGA in the jury box, and the whole thing is sunk. Seems reasonable for the defense to ask for at least one trump voter, and totally plausible that one of them just lies about their agnostic affiliations to serve the great leader with an acquittal.”
To begin with, I suspect the DOJ will frame an indictment so that the charges can be brought in Washington D.C. instead of Florida. Obviously, a D.C. jury will be less inclined to contain diehard MAGAs, and the U.S. Court of Appeals for D.C. is a better place to be than the Fifth Circuit.
The jury’s job is to weigh the evidence and determine the facts. The jury does not apply the law, or decide how the law should be applied. That is the task of the court. Some forms of evidence allow a jury more discretion than others. For example, testimony can be believed or disbelieved, but a document is what it is. There is less room for discretion in the fact finder. In fact, if you recall, Paul Manafort was charged only with financial crimes for which there was documentary evidence. There was a Trump supporter on the jury who wanted to acquit but later said she had no choice because the evidence was so solid.
This is why when Social Media explodes with, “There is enough evidence to indict him now,” I say “slow down.” The standard given by the DOJ for when to bring charges is whether the admissible evidence is enough to secure and maintain a conviction, and very little of the evidence you see on the Internet is admissible in court.
Now you need something fun (particularly if you clicked through and tried to read Trump’s brief):
https://twitter.com/usopen/status/1565888136000978944
Always learn a lot from your analysis — and your doggie is beautiful!
Thanks! (When I first posted this, I had dog pictures — but I changed my mind and put a tribute to Serena Williams.)
I know these blog posts take a TON of your time, so thank you! I really get a lot out of them. You have a terrific way of framing all of the info to make it more easily understood by us non-lawyer types. And I missed JJ tonight, but appreciate the nod to Serena!
Thanks again, Teri!
What does it say about me that your blog post is what I most look forward to on Saturday nights?
As the DOJ speaks through its pleadings, it seems to be appeasing some of the impatient populace.. I was pleased to see someone on Twitter post (something to the effect of): ‘Don’t arrest him yet because after that he will know what DOJ already knows.’ Exactly! I’m happy with the drip-drip-drip, and with Trump’s public confessions to crimes digging him a deeper hole.
In reading the order from Judge Howell, and the DOJ’s application to unseal two discrete subpoenas, etc., I was quite interested in the wording indicating there may be (are) other subpoenas. I took notice of the second subpoena being addressed to the Trump Organization after DOJ got jerked around at MAL in June.
Then, I thought about Weisselberg’s plea. The Southern District of NY was very clear that Weisselberg was not cooperating in their case, yet he got a sweetheart plea deal. I wondered at the time if that might technically be true because the information he provided only aided other DOJ investigations, not the one in which he was a co-defendant with the Trump Org. Might Weisselberg have answered other subpoenas regarding other Trump properties without anyone finding out?
Please give JJ a belly rub for me.
Gail
Thank you, Teri. I appreciate your dedication to untangling this debacle.
This is the first I’ve heard about the DOJ threatening law enforcement. It worked(sort of) because TFG soon turned over some documents. Maybe a stronger threat was necessary.
Can DOJ indict on the current obstruction and unlawful possession charges prior to potentially bigger more egregious but related offenses (i.e. how he may have used the documents with foreign adversaries) or do they usually wait until they have evidence to move forward with the whole case at once?
Excellent as always.
Very curious about the “Presidential Library” excuse, as this already came up as “Obama dun it” (and turned out that that cache of records, wherever stored, is still in NARA’s control).
So much appreciate your synthesis and translation. I saw some of the original filing and your puzzle solving skills are amazing!
I couldn’t help but notice the marker in the photo of the recovered documents was “2A”.
The gun nuts use this as shorthand for guns – as in 2nd amendment.
In Trumpian conspiracism, this could be seen as a call to arms. I would have thought the FBI would have avoided such symbolism. Maybe it’s a joke? Coincidence?
I typed a lot of briefs in my decades as a legal secretary, and the Trump response read like something someone who barely made it through high school but had read a couple of John Grisham novels might think sounded like legalese. (And yet the judge treated it as something deserving of admission to a court, which tells you just about everything you need to know about either the loyalties or the fears of the judge.)
Thanks for another sober, rational explication of what normally just gets infuriating headlines and no substance!
About looking forward to my post: I considered changing the name from “Musing about Books, Law, and Politics” to “Nerding out on Books, Law, and Politics” !!
I would guess that the information that Weisselberg isn’t cooperating came from Weisselberg and not the government. Doublecheck that. If it came from Weisselberg, he may have had good reason to downplay any deal he made.
Thank you for all you do!
I have not seen anywhere discussed the possibility or probability that some or all of the classified documents have been photocopied and that those copies are still possessed (or have otherwise been put to some purpose) by the former President. The classification and intelligence reviews by the DNI must certainly be assuming the material has already been compromised, either intentionally or through negligence and inadequate protection. Even if the former President could simply declassify the documents by saying so, the reason for classification and protection of the information and its source does not go away. Collecting and returning the classified documents to NARA is at this point just housekeeping – the damage to the United States has been done.
This is why one of the reviews going in is a national security review to make sure that US security was not compromised in the way the documents were handled.
It’s also why the government is talking about documents “with classified markings” and documents that “have to do with national defense” so that they don’t get into the silly argument of whether a president can unilaterally declassify documents (he can’t).
Thank you for this Teri! Your blog is everything I need to comprehend the tangled web that continues to envelop Trump. What a mess, Trump STILL Trumping . I am left wondering about this judge, however, and wondering when you think we may hear her judgement? Do you personally think she didn’t rule from the bench because she was afraid of the backlash from both sides? Do you think she should have recused herself?
Thank you for this spot-on analysis. We are in dangerous times.
Thank you. Once again nonsensical premises are being given weight. Looks like the delaying tactics have fallen flat in this case. Cheers to all those sacrificing their holiday weekend in the pursuit of clarity, including you and your adorable sidekick.
I am actually more optimistic than I have been about this debacle. I don’t think anyone ever told TFG about loose lips sinking ships … or else he just decided it didn’t apply to him, which is most likely the case. My question is… what would the consequences be? Because no… I don’t want him confined to a country club with access to media. I’m sick of hearing him and his crimes definitely fall in the “black out” range.
Your comprehensive translations are appreciated. Thank you for taking the time to do this.
I believe the “2A” marker links the image to the textual description in the inventory of items found. No way to avoid it except to skip the number “2.”
I don’t think she needed to recuse herself, but I think that every day that goes by without an order is a good sign.
We’re so far way from consequences, but I think it’s safe to say that if he’s convicted he will be subject to the same rules as anyone else.
Thank you so much for your research and analysis. You are one of the very few on social media who understands the issues and the processes.
I think others understand it, but they are not trying to educate. Did you see my post a few weeks ago on Reflectors, Attackers, and Poppers?
Same here. Saturday night, I’m thinking: “Oh boy, tomorrow morning I get to read Teri’s take on the week, sorting out the legal tangle!!!”. Not quite like Christmas morning, but a treat nonetheless.
The Trumpista Judge is in an interesting predicament. Her not flat out stopping the DOJ’s work is something I would expect from someone caught in her particular moral dilemma. Trying to have it both ways, in other words. I’m relieved that should a “special master” move forward it probably doesn’t delay things that much, and ideally it all becomes moot.
The 48 empty folders intrigue me. I wonder what the DOJ and the intelligence agencies tasked with assessing the damage to the US make of this. I don’t know how detailed the government’s record keeping is – do they know what’s still missing? It says to me Trump either: is still sandbagging documents, sold them, or destroyed them. Or misfiled them with the items retrieved.
I’m relieved to read: “[the DOJ’s] presentation of the facts and law was devastating. They’re clearly angry that [Trump] has been lying and they’re not messing around.” Much as when Biden’s win was finally confirmed in 2020, resulting in an unforgettable euphoric cheer that arose from the streets in the USA and in cities around the world, the same will happen when justice is finally done with TFG.
So true. I suspect there is a think tank staffed with attorneys that actually do get paid although not by Trump. The yoyos he hires cannot put this b.s. together themselves.
Thank you for providing this wise, coherent, and direct analysis. When working with documents from this guy there is always a lot of chaff to sift off, and you have done a great job.
And thank you even more for providing easy to access links to review the original & underlying documents (I can’t thank you enough for including those!)
Straight from the Archives’ (NARA) website:
https://www.obamalibrary.gov/news/nara-press-release-statement-obama-presidential-records
I enjoy reading your analysis. If I understand your history correctly you were always a defense attorney. I think you would have been a devastating prosecutor. I am looking forward to seeing your analysis when TFG comes to trial being convinced by your analysis that the DOJ has every intention of indicting.
Thank you for all this. I appreciate the time and expertise you put into your explanations. In our age of wanting instant gratification, patience is hard. Your calm helps with the patience.
Hi, Teri!
I am so happy that I decided to act on Tomi’s (Ahonen) recommendation to check out your blog! First, a disclaimer: Seeing how it’s already very late in the evening, moving forward, I can”t possibly take on the responsibility of my sentences not making any sense. (Maybe I should have waited to write you, but then I probably would have forgotten to, and I really wanted to, so, no. Moving on. And watch out for those run-on sentences!)
I just wanted to let you know that I (along with the growing number of those whose lives you’ve apparently already improved simply by existing in the world) am so very grateful that you’ve chosen to take on the job of educating the masses! Happy to still (not dead, yet) be able to recognize, and appreciate, all of the time and effort that – obviously, duh! – goes into putting together these weekly analyses. Talk about your Herculean tasks! (I can’t, even.)
I regret not coming to the party earlier, but I didn’t know about you until today. Better late than never and all that happy horse poop. Besides, we’re still (unfortunately) not done with TFG and all his hateful maga-ots. There’s no way I’ll he missing any more of your juicy reads. My anxiety is almost manageable (is this what it feels like?!) since reading your post. *sigh* 🙂
Bless you, Teri Kanefield!
(W-o-o-o-w. . . I had no idea that falling in love was still possible! 😀 *bahaha* I simped hard over you in that little love letter, there, didn’t I?!)
I do hope your prediction is correct. I am growing increasingly irked and tired of Grahamesque predictions of violence. It’s clear to me that, if it comes to pass, it will be the fault of MAGAworld’s reaction to the proper actions of a dedicated DOJ, not a “witch hunt.” So, if the disaffected and well-armed are going to act on the basis of lies, they’ll face the consequences, just as have the J6 insurrectionists. It is something horrible that the country will need to go through, if the radical discontents can’t see the truth. But to avoid this by putting Trump above the law would be a huge mistake, i.e., giving in to threats by failing to prosecute his serious crimes. Failure to lawfully defend the republic will be its deathblow, more so than any violence from MAGA reactionaries coerced by GOP members whose naked lust for power is on full display.
Well, as soon as I read the judges ruling today, I thought of this “(If she does it will be nutso)”.
Am I surprised? Not at all.
But it made me wonder…since she did not stop the DOJ from further reviewing the documents over the weekend while she made her decision, could this be her way of trying to appease both sides?
Either way, I’m sure she’ll be bashed for it one way or another. There’s no pleasing everyone.
Thank you again, btw for another great analysis without any fluff, just straight up facts.
And may I say, having pets eases the anxiety we all feel sometimes. There’s nothing like playing ball with your dogs (German shepherd here) over and over…and over, lol
Thank You for the excellent enumeration of facts and presentation of experienced legal interpretation of why the judges’ decision for a “Special Master” is obviously her attempt to kow-tow to her benefactor-trump. It also is one illustration of the often-touted poor legal qualifications of the trump/republican appointed judges. Thank You for your time and I will be passing this around.