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Mar-a-Lago Raid: Feds Ask Judge To Partially Stay Special Master Order, Will Appeal If Don’t Get Their Way

Mar-a-Lago Raid: Feds Ask Judge To Partially Stay Special Master Order, Will Appeal If Don’t Get Their Way

“the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings … and (2) requires the government to disclose those classified records to a special master for review.”

Last we checked in on the Mar-a-Lago Raid legal proceeding, Judge Aileen M. Cannon issued a Labor Day order announcing she will appoint a Special Master, and prohibiting the feds from using the seized documents until further notice (except that the feds could continue their national security risk assessment), Judge Appoints Special Master, Temporarily Bars FBI/DOJ Review Or Use Of Records Seized in Mar-a-Lago Raid:

Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorneyclient and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].

The feds continued to leak like crazy after the order, in a form of lashing out, getting the word out to The Washington Post that some of the documents related to a foreign government’s nuclear program (the leak didn’t say that such documents were classified). For years during Russia Collusion attacks, whenever there was a news cycle that might help Trump in the public eye, the feds leak something to grab back the news cycle; that tactic seems to be renewing itself.

Regardless, the feds were not happy with the result, and filed a Motion for a Partial Stay Pending Appeal with Judge Cannon. Procedurally, they have to ask the District Court for a stay before seeking a stay in the appeals court. That certainly will happen if Judge Cannon turns them down.

Here’s excerpts from Motion to District Court for Partial Stay Pending Appeal:

Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit….

[The motion] is limited to the Order’s directives with respect to the seized classified records1 because those aspects of the Order will cause the most immediate and serious harms to the government and the public. The classified records—a discrete set of just over 100 documents—have already been segregated from the other seized records and are being maintained separately….

Here are the grounds for the stay, the feds argued:

First, the government is likely to succeed in its appeal of the Order as it applies to classified records…. Plaintiff 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. And although this Court suggested that Plaintiff might be able to assert executive privilege as to some of the seized records, Supreme Court precedent makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s “demonstrated, specific need” for that evidence. United States v. Nixon, 418 U.S. 683, 713 (1974) (“United States v. Nixon”). Among other things, the classified records are the very subject of the government’s ongoing investigation.

Second, the government and the public would suffer irreparable harm absent a stay…. The Court thus stated that its Order was not intended to “impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (‘ODNI’).” D.E. 64 at 1-2. But the review and assessment on their own are not sufficient to address and fully mitigate any national security risks presented. The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work….

Third, the partial stay sought here would impose no cognizable harm on Plaintiff. It would not disturb the special master’s review of any other records, including any personal materials or records potentially subject to attorney-client privilege….

The feds simultaneously filed a Notice of Appeal, and also a Motion to Unseal Notice of Status of Privilege Review Filter Team,  in which the feds want to reveal the nature of the privilege review, but not the documents themselves.

 

 

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Comments

Colonel Travis | September 8, 2022 at 7:51 pm

So tired of the DOJ acting like it is America’s Sun King.

    I wouldn’t compare to King Louis XIV millions consider him to have been a great king; even Voltaire loved him.

      Colonel Travis in reply to Danny. | September 8, 2022 at 9:16 pm

      No offense to the news of the day but I don’t care how much Euroslobs drool over their royalty, we don’t do that here, we don’t have a kingdom governed by a sovereign class. We don’t have a monarchy, we certainly have a DC oligarchy that considers themselves above all others. I don’t want that kind of country.

        “…we don’t have a kingdom governed by a sovereign class..”

        Yeah, but it seems like it sometimes.

        I didn’t vote you down either. I was actually surprised it got a response because I considered it a joke but if taken seriously Louis XIV actually did unite a nation, reign in the power of the aristocratic elite and left a major legacy.

        All Merrick Garland is doing is thuggishly going after his political opponents with neither law nor precedent but intending on a D.C. Jury and Democrat (fascist) judge to rubber stamp him.

      Colonel Travis in reply to Danny. | September 8, 2022 at 9:26 pm

      PS – I didn’t vote you down, just giving my reasoning here.

    CellarDoor in reply to Colonel Travis. | September 9, 2022 at 10:46 am

    Merrick Garland, AKA Merrick Garfinkle will NEVER allow a President et that the goys love and adore to continue. Biden’s cavaient is over 70% Jewish. How is this ok?

      If you want to engage in conspiracy theories while using anti-semitism Donald Trump should be your first target, his family is partly Jewish, he has Jewish grandchildren and was the most Jew friendly president of my lifetime.

      If you want to follow Anton Denikin, Symon Petlura, and Nestor Makno in thinking that what is wrong with the Biden administration isn’t what it does but that it is Jewish (based on a lie told by yourself similar to the Whites I just listed) F you STFU and GTFO I never want your opinion to count for everything; the reason Republicans tell you F you isn’t because they are establishment it is because you are the scum of the Earth.

      Orthodox Jews-voted well over 90% for Trump.

      We don’t need anti-Semites, we don’t want anti-Semites.

They want their man to be the special master so they get to decide what they get to keep and what is law breaking records.

    Absolutely. God forbid we have a former prosecutor who became a judge for something rubber-stamp like FISA who will simply wave a magic hand over the items and declare them all fair game. I want some bitter old defense attorney who will *start* at the clothes and books and ask questions like “In one sentence, describe why this pair of pants is going to be evidence in any kind of wackadoodle prosecution you’re trying. How about this golf shirt? This bestseller book? These New York Times articles? This photo of the cabinet six months into his term? This trophy from Baron’s room that reads “Little League Fifth Place’? ” and go from there. In about five hours, he can send about 95% of the loot back and go about the job of separating out attorney/client and executive privilege documents, declassified docs that the FBI wants to grab and reclassify, etc… After about eight hours (and two trucks to haul back the stuff), he can get down to the actual documents that are under dispute and the real work starts.

Can’t see the DOJ/FBI winning on this one, or in any appeal. Their bias and impropriety is apparent.

    They own the judiciary.

      starride in reply to Barry. | September 8, 2022 at 9:31 pm

      Thomas is over the 11th

        They don’t own every single member, but they do own the judiciary. That should be obvious. The FBI / DOJ breaks the law routinely, just as they did here when they raided the private residence of a former president.

        And they are never held accountable.

    Subotai Bahadur in reply to oldschooltwentysix. | September 9, 2022 at 3:53 pm

    That makes the assumption that we are under a rule of law, that said rule of law is internally consistent and consistent with the Constitution, and that precedents count more than political animus. Given the last generation or so, those points would be a bugger to prove.

    Subotai Bahadur

DOJ claims that Trump can’t possibly assert any sort of right of ownership over “classified documents.” But he has claimed to have declassified everything before leaving office. They completely ignore this fact.

So the question is, do they think the judge is an imbecile or are they just incompetent?

Of course, not being a lawyer, it could be I’m missing something. Maybe it’s completely normal to ignore the other guy’s defense and assume the judge will, too.

    From what I have seen in real world appeals (not the TV show or movie versions) by the government, the appellant often ignores the judge’s decision and argues whatever they want. And in this case, the current junta and deep state wants what Trump declassified re-classified. If Trump is indicted for having re-classified documents, a jury in D.C. will find Trump guilty. As Brandon once said “truth over facts” as the Democrats’ truth is their narrative.

      DaveGinOly in reply to BillB52. | September 9, 2022 at 12:37 am

      Considering the absolutely foolish and untrue things that Barr has been spouting, it’s all part of a performance. They’re trying to gin up Dem voters to get out and oppose anyone remotely connected to Trump. If this is what they’ll get up to in an attempt to staunch the bleeding they may suffer in the midterms, imagine what they will do as the 2024 election comes near. By that time, Schiff will probably say he has proof Trump eats children.

      r2468 in reply to BillB52. | September 9, 2022 at 12:39 am

      I didn’t know you could reclassify something that was declassified. Considering how info spreads.

        Milhouse in reply to r2468. | September 9, 2022 at 12:45 am

        I don’t see why not. It might not be effective, but legally why couldn’t you?

          Arminius in reply to Milhouse. | September 9, 2022 at 3:55 am

          Because we only have one President at a time. While in office a President’s ability to classify or declassify information is absolute.

          https://www.courtlistener.com/opinion/111990/department-of-navy-v-egan/?court_cafc=on

          “484 U.S. 518 (1988)
          DEPARTMENT OF THE NAVY
          v.
          EGAN

          No. 86-1552.
          Supreme Court of United States.

          III

          …The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U. S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). This Court has recognized the Government’s “compelling interest” in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U.S. 507, 509, n. 3 (1980). See also United States v. Robel, 389 U.S. 258, 267 (1967); United States v. Reynolds, 345 U.S. 1, 10 (1953); Totten v. United States, 92 U.S. 105, 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.”

          This has never been done before so I would otherwise grant that this might be a legal grey area. But there is nothing grey about this. This is despicable.

          Legally you can’t do it when your sole reason to reclassify it is to prosecute your predecessor and possible successor.

          I hope you realize what a monstrous tyrant Biden is. The mask definitely came completely off in Philadelphia. Plugs Biden always was a vile, petty, vicious, vengeful, mendacious, narcissistic mediocrity.

          I realize the Ex Post Facto Clause is in Article I and therefore pertains to the legislature. But can you imagine any court in the land agreeing that a President can use their Article II Section authority to create ex post facto crimes? That’s what’s Biden is doing. And if the Constitution doesn’t address it it’s because the founders didn’t contemplate a megalomaniacal President who would think he could usurp legislative authority to write laws, then write ex post facto laws.

          Arminius in reply to Milhouse. | September 9, 2022 at 4:20 am

          If I wasn’t clear enough, let me expand on my point. If Biden “reclassifies” the documents seized by the FBI and now in the DoJ’s possession then that means they were unclassified when they were in Trump’s possession. “Reclassifies” is in scare quotes because in my 20 years as a Naval Intelligence that was never a category. I’ve read documents going back to the beginning of the modern classification system and well before my time. “Reclassified” was never a thing. Biden is just inventing it now in order to prosecute his predecessor.

          I doubt it will fly. Moreover, I believe Biden (or at least his puppeteers) hope it doesn’t fly. Because if it does his head is next on the chopping block.

          The DoJ is claiming that Trump has no authority to claim executive privilege because that authority rests solely with the office of the Presidency. Really? Then that means executive privilege doesn’t exist. The reason for executive privilege is so a President can get honest advice from trusted counselors.

          If those counselors know that their communications with the President is only privileged so long as the President they’re advising remains in order and the next President can expose their communications then they won’t necessarily give blunt, completely honest advice.

          And what kind of twisted hellworld are we going to be in if a President’s lawful exercise of authority while in office be re-criminalized when he departs?

          I hope it doesn’t need to be said, but as the court case I cited observes the President derives his lawful authority to classify (and the power to classify is the power to declassify) anything the President determines to be national defense information.

          Subordinate officers like the AG, DNI, DCI, Director of the FBI aren’t mentioned in the Constitution. If they can claim legitimate authority to classify or declassify information (and there is a declassification process and virtually no one has unilateral authority to declassify anything and certainly not Hillary Clinton) it is only because the President delegated that authority.

          Under our Constitutional system none of these Biden underlings can overrule any President. That’s what they’re doing now. What happened on January 6 wasn’t an insurrection. This is.

          mailman in reply to Milhouse. | September 9, 2022 at 6:36 am

          Because its an impossibility to make something super duper top secret again once its been declassified and people have had a nosey at what it was thats been declassified right. Seems even a rocket scientist could have worked this one out.

          Milhouse in reply to Milhouse. | September 9, 2022 at 10:35 am

          Arminius, nothing in your long screed gives any reason why a president can’t classify something, just because it was once classified and was then declassified. How is it different from something that was never classified in the first place? If a president can wake up one morning and decide to classify something that never was classified before, then he can do the same for something that he or a previous president declassified.

          Of course nobody could be prosecuted without fair notice of the new classification. But that’s the same whether it’s being classified for the first time or the second. I see no legal reason why there should be any difference.

          Mailman, you simply repeat that it wouldn’t be effective. OK, so it wouldn’t be. How does that make it legally impossible? Lots of useless and stupid things are legally possible.

          starride in reply to Milhouse. | September 9, 2022 at 12:23 pm

          Actually Arminius you make a point if a document is classified it would have a document number, once that document is unclassified that document containing that number is then open for public review. To reclassify the information in that document, the government would have to create a new document and document number.

          Voyager in reply to Milhouse. | September 9, 2022 at 12:41 pm

          The process requires the document in hand to induct it into control. Functional you are classifying documents, and putting restrictions on what information can be copied from that document to other documents before those too become classified materials.

          So in theory and Original Classifier can classify an Encyclopedia Britaniaca, provided they have a copy on hand that they can mark and induct, but that has no effect on the copy on your shelf.

          But I don’t think you can classify a document without physical possession of it.

        That is like closing the door after the cows got away…

      Bruce Hayden in reply to BillB52. | September 9, 2022 at 12:40 am

      Except that the trial would not be in DC, but FL.

        Why would it be in Florida? The alleged crime — removing the documents — would have happened at the White House.

          Excellent point.

          Dimsdale in reply to Milhouse. | September 9, 2022 at 9:27 am

          But if removing documents, or potentially exposing them to view by enemies of the state (should we include DOJ in that?) is a crime, then every president should have all of their belongings scoured (a la MAL) before leaving office. And how do they wipe their minds, if the insinuation is that they intend to distribute said knowledge to foreign adversaries?

          Obama still has, what, 30 million document they say? Hillary servers are probably all duplicated by the ChiComs and the Russians. That leaves the only point in persecuting/prosecuting President Trump being a political one.

          How can the DOJ logically insist that an appointed, unbiases and cleared Special Master should not go over the documents? Were all the FIB agents cleared when they picked it up (after spreading it on the floor)?

          I would ask “what do they have to hide?” but I think it is obvious.

          I believe Pres. Trump saw this coming miles away, and took precautions. I imagine he was wondering why it took so long, but of course, the timing for the 2022 elections was paramount in the eyes of the highly biased DOJ.

          Milhouse in reply to Milhouse. | September 9, 2022 at 10:40 am

          The talking point about 0bama’s “30 million documents” is invalid, because it’s not true. He didn’t take anything; he asked the archives to make those documents available to him, so the archives created a facility in Chicago where it stores them. They remain under its custody, and he can go there and look at them. They are not under his custody.

          That doesn’t mean what Trump did was illegal; but it does mean you can’t use that as an argument for Trump.

          starride in reply to Milhouse. | September 9, 2022 at 12:28 pm

          Because Trump did not personally remove the documents from the Whitehouse. The GSA did. To charge Trump the GSA would have to be charged as the actual people that took the documents and it would have to be proven that Trump was involved with the GSA in a conspiracy to remove the documents. otherwise they have to prove that Trump removed the documents in his briefcase.

      Elzorro in reply to BillB52. | September 9, 2022 at 10:18 am

      A DC Jury will find Trump Guilty of anything Lawfare Prosecutors throw against the wall. A DC jury is guaranteed conviction of any non leftist defendant on any charge,

    Milhouse in reply to irv. | September 9, 2022 at 12:44 am

    I noticed that too, but if a document was once classified, doesn’t that show that it was a government document, not a private one, and so it belongs to the USA, not to Trump? That seems to be what they’re arguing; and if this is so, then of course it can’t be protected by attorney-client privilege, and Biden has waived executive privilege, so there’s nothing for the special master to determine about such a document. It’s a fair argument, but only if the premise, that Trump’s private papers wouldn’t have been classified, holds.

      Mauiobserver in reply to Milhouse. | September 9, 2022 at 1:04 am

      But if Trump de classified them then even if Biden reclassified them there is no crime for taking them for his future library etc.

      As I understand it when the documents were reviewed before the raid the DOJ requested additional security but not return of the documents.

      It seems like this is a general plan to search every aspect of his political and business life to see if they can get something or anything to prosecute.

        Milhouse in reply to Mauiobserver. | September 9, 2022 at 3:06 am

        You’re just not listening. The point isn’t that they may have been reclassified. Nobody claimed that. The point is that if they were once classified then they must have been government documents, not private ones. And if they were government documents then Trump had no right to take them. More to the point, they cannot be privileged, so there’s no reason the special master should review them.

        I don’t know whether the premise, that private documents would not have been classified, is correct. But if it is, then this follows.

          Arminius in reply to Milhouse. | September 9, 2022 at 5:03 am

          Please pay attention. Because this makes the DoJ conduct even more lawless and egregious. This was decided a decade ago in Judicial Watch, Inc., v. National Archives and Records Administration.

          https://www.judicialwatch.org/wp-content/uploads/2022/08/JW-v-NARA-Clinton-Tapes-opinion-01834.pdf

          Per the Presidential Records Act it’s up to the President’s sole discretion to distinguish between Presidential and personal records. Moreover, if NARA disputes a President’s decision then it has one recourse only.

          “Plaintiff Judicial Watch, Inc. brings this action against defendant National Archives and Records Administration (“NARA”) under the Administrative Procedure Act (“APA”), 5 U.S.C. §701, et seq. Plaintiff asks the Court to declare audiotapes created by former President William Jefferson Clinton and historian Taylor Branch during the Clinton administration to be “Presidential records” under the Presidential Records Act (“PRA”), 44 U.S.C. § 2203(f), and to order defendant “to assume custody and control” of them and deposit them in the Clinton Presidential Library. Plaintiff contends that defendant has acted arbitrarily and capriciously
          under the APA by failing to exercise control over the audiotapes and by not making them available in response to a Freedom of Information Act (“FOIA”) request. Defendant has moved to dismiss [Dkt. # 6] under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted.

          The Court will grant the motion to dismiss pursuant to Rule 12(b)(1) because plaintiff’s
          claim is not redressable. NARA does not have the authority to designate materials as
          “Presidential records,”>/b> NARA does not have the tapes in question, and NARA lacks any right, duty,
          or means to seize control of them.

          Got that Milhouse? 10 years ago when the items in an ex-President’s possession concerned Clinton, the DoJ was making the exact opposite arguments it was making against Trump. That it’s up to the President to determine what is and what isn’t a Presidential record. Moreover, the PRA isn’t a criminal statute. Therefore the DoJ can’t tell the FBI to storm into former President Clinton’s Hamptons version of Mar-a-Lago and seize them. Sure, flying down to Epstein’s under-age rape island made Clinton no angel. But it didn’t make him ORANGE MAN BAD level evil. Because, not orange.

          “Because the audiotapes are not physically in the government’s possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them. Def.’s Mem. in Support of Mot. to Dismiss at 1, 15–18.
          Defendant considers this to be an “extraordinary request” that is “unfounded, contrary to the PRA’s express terms, and contrary to traditional principles of administrative law.” Id. at 1. The Court agrees.

          Wow. The DoJ argued that seizing improperly categorized Presidential records from an ex-President would be contrary to the PRA’s express terms and would be an “extraordinary request.” And the court agreed! Until the DoJ discovered the ORANGE MAN BAD exemption to the PRA. And they found a Trump-hating magistrate. And again the court agreed! No doubt if he could borrow some body armor, a junior G-man badge, and go along.

          “The PRA authorizes NARA to invoke the same enforcement mechanism embodied in the Federal Records Act, which begins with a request to the Attorney General to institute an action for the recovery of missing records.”

          Since the PRA is not a criminal statute, if the DoJ were to institute an action to recover the missing records it could only be a civil suit. Except when ORANGE MAN BAD!!!

          Basically this is a lawless attempt by the government to criminalize a civil statute. So it wouldn’t matter if those documents are in fact Presidential records. There is no law on the books that empowered the DoJ to invade MAL and seize them.

          Dimsdale in reply to Milhouse. | September 9, 2022 at 9:30 am

          That said, didn’t Hillary, thankfully not president, get to decide which of her 30K emails and documents were subject to government subpoenas?

          Why can she and not he? Oh, Democrats….

          2nd Ammendment Mother in reply to Milhouse. | September 9, 2022 at 10:09 am

          That would be assuming that Trump possessed the only copy of the documents. I’d place bets there are several hundred government flunkies with .pdfs on their laptops that go home with them every day.

          Milhouse in reply to Milhouse. | September 9, 2022 at 10:45 am

          Arminius, you idiot, the president does not have any authority to simply declare government property to now be his property. If a document was governmental rather than personal, and the president then “decides” it’s personal, he’s a thief.

          Nothing in that Judicial Watch case says otherwise. In that case there was no proof that the tapes were ever government property. Clinton could claim they were his, and the archive couldn’t prove otherwise. But if private documents are never classified, then the fact that something was classified would prove it wasn’t private. And if it wasn’t private then it still isn’t private.

          Mauiobserver in reply to Milhouse. | September 9, 2022 at 2:25 pm

          If Trump de classified them and there are people who have already testified to this then they were NOT classified when seized by the FBI therefore he did NOT take classified documents.

          Also once again when the DOJ and achieves team visited the first time they did not demand all the documents. They requested and received some and requested and obtained more security for the rest.

          If those documents include sensitive information about the political, medical, financial issues with the President he surely would have been entitled to executive privilege when in office and certainly when the GSA shipped the documents to Florida.

          It makes no sense that a new administration can assert that no claim or classification by its predecessor is valid and prosecutable. Biden and his DOJ are saying basically that they revoke any authority the constitution gave the President while Trump was in office.

          gospace in reply to Milhouse. | September 9, 2022 at 4:12 pm

          Milhouse- I think you’re missing the point. All the liberal idiots are claiming- “TRUMP STOLE GOVERNMENT PROPERTY!” We’re talking pieces or paper. Pievces of paper, not gold. Stuff that can be copied. And when the POTUS receives anything from subordinates- whether he’s receiving the original or a copy of the original- it’s not the only copy in existence.. The government already admits, in more ways then one, they know everything that Trump has- one being all the leaks that say they didn’t find what theywere looking for. Likely the Russiagate stuff, but that’s all speculation. If they already kn0w everything he has, it means they have a copy themselves, and whether he made a copy and gave them back the original or kept the original and gave them back the copy is irrelevant. There’s no way to prove he stole anything, unless you’re going to claim the paper the copy was made on was purchased by the government and Trump didn’t reimburse them. As other’s have pointed out- previous court decisions place the onus is on the outgoing president to determine what’s his and what isn’t. Not NARA, and certainly not the FBI.

          And I don’t think the Supreme Court, which is where this is eventually headed, is going to look too kindly on a new POTUS stripping the old POTUS of any semblence of executive privelege. That’s banana republic territory.

          Mauiobserver in reply to Milhouse. | September 9, 2022 at 7:27 pm

          So then Trump is stealing government property if he takes key documents from his Presidency to build a library or use for his memoirs.

          If that is the case then no government official ever can take documents out of government buildings or perhaps even to another office.

          This case seems to have nothing to do with facts or the law. It is just destroy Trump and his supporters while team Biden sells us out to China, Ukrainian oligarchs and anyone else with cash.

          The DOJ and FBI need to be relocated to Nome Alaska and Minot North Dakota if the GOP wins in 2024. Staff should be given 2 weeks max to report for work even if TDY for a time. Failure to show up on site and put in a full workweek should result in immediate dismissal and disqualification for future government employment or contracting.

      Elzorro in reply to Milhouse. | September 9, 2022 at 1:10 am

      In order to reclass a document it would have had to be declassed prior to the reclass. Biden can not waive a constitutional right held by Trump for Trump. They have changed their position from marked classified to classified. Right in the middle of the pleadings.

        Yeah, chasing their tails, I do believe.

        Milhouse in reply to Elzorro. | September 9, 2022 at 3:08 am

        Executive privilege belongs to the executive. That is Biden, not Trump. Trump was the executive, but he isn’t any more. So Biden can and has waived it.

        In any case there can be no executive privilege against the DOJ, because the DOJ is in the executive branch. The notion is absurd. Executive privilege can only exist against the other two branches. Which makes it even more absurd to have a special master, who is in the judicial branch, reviewing documents for executive privilege.

          Arminius in reply to Milhouse. | September 9, 2022 at 5:37 am

          None of what you’re saying is true, Milhouse. It’s a legal grey area that a sitting President can waive the executive privilege of a prior President. Because no President has ever done that. For a very good reason.

          I’ll try to explain this one more time, and hopefully this time it sinks in. The whole point of executive privilege is that the President needs to get frank, brutally honest counsel from trusted advisors. Those advisors may be inhibited if they know their conversations may be made public when the next President moves into the WH.

          If Biden can waive Trump’s privilege, then in 2024 the next guy can waive Biden’s. As I said, it is not clear if Biden has the authority to do that because no previous President has been stupid enough to try this stunt. Because now anyone Biden wants advice from has to think, “Will this “private” conversation be all over the internet in 2 years? I need to watch what I say.”

          Let’s go, Brandon!

          Arminius in reply to Milhouse. | September 9, 2022 at 5:47 am

          “In any case there can be no executive privilege against the DOJ, because the DOJ is in the executive branch. The notion is absurd.”

          I meant to comment on this specifically.

          You don’t know how government works? Executive privilege means the conversation is privy to those in on it. If the DoJ isn’t invited to be in the room, then they don’t get to eavesdrop later. Do you imagine that the DoJ can demand to know everything a President says to anyone? They can’t demand that when a President is in office, and they can’t demand it later.

          Per your flawed understanding of privilege, anyone giving advice to the President would have to parse their words as if they were speaking to a federal agent as if they are under criminal investigation. Because if a rabid partisan who hates their predecessor’s guts as much as Biden does is the next inhabitant of the WH then they just might be.

          That doesn’t lead to the frank, open discussions that Executive Privilege is designed to protect.

          CommoChief in reply to Milhouse. | September 9, 2022 at 9:28 am

          I believe the DoJ is barking up the wrong tree. They, and many others, seem to be ignoring the Presidential Records Act which grants the outgoing POTUS the power to determine what are personal papers.

          The statute is broad. Just like the Antiquities Act we rely upon the judgement of the POTUS to use that power narrowly but if there’s a disagreement as to the scope the POTUS is the one who ultimately decides.

          Milhouse in reply to Milhouse. | September 9, 2022 at 10:52 am

          “Executive privilege means the conversation is privy to those in on it.”

          No, it doesn’t. It means that the executive doesn’t have to disclose its internal deliberations to the other branches. It is simply nonsense to talk about anything being privileged from the executive itself.

          The executive is a unitary thing. It is not a lot of different departments. All executive power is vested in the president of the day, and DOJ is simply the president’s agent. So of course DOJ can’t demand anything of the president. But it can demand something from a former president, who is no longer the executive. And he can’t claim its own privilege against it!

          And since the privilege belongs to the executive, not to Donald Trump, the executive, which currently is Joe Biden, can waive it. That’s obvious. It may be unwise for him to do so, but how can you argue that he can’t? It’s his privilege. Nobody else’s.

      starride in reply to Milhouse. | September 9, 2022 at 12:33 pm

      The PRA does not cover documents created by agencies. Documents created by agencies are automatically considered a copy. The PRA only covers original documents etc. generated by the office of the president itself. Now could the DOJ complain that a copy of the declassified document was theirs, yes they could but it would then be a matter of them splitting hairs. I would be very surprised to see a competent judge agreeing that a president could not keep copies of documents for his personnel keepsake.

    Arminius in reply to irv. | September 9, 2022 at 7:46 pm

    On another thread dealing with the deliberately obtuse Milhouse I mistakenly said I could only think of one reason to “reclassify” documents; so that Biden could conduct an ex post facto prosecution of a predecessor and possible future rival.

    I said that would be a bridge too far for any sane court to put up with. But I was driving around today and then another, simpler explanation hit me.

    Trump, as is well within his Article II authority as CinC, declassified Crossfire Hurricane documents. Those documents undoubtedly contain damning information regarding illegal activity on the part of the DoJ/FBI/swamp to get Trump.

    It is of course illegal to abuse the classification system to hide information that would be embarrassing to the government or reveal that the government acted illegally. But of course that is exactly what the government does all the time. Note that the same FBI cabal that conducted the operation to get Trump, code named Crossfire Hurricane, were the same bunch that conducted the home invasion at MAL.

    Presumably because they knew what they were looking for.

    This anecdote may seem irrelevant at first. Some documents are so compartmentalized that you need to sign them out from the SSO even though they’re never going to leave the SCIF. You sign then out, you use them as long as you need, then return them to the SSO who does a page count and signs them back in.

    When as a Junior Officer you see a Commander (O-5) on all fours on the floor desperately tearing apart burn bags looking for that signed out document which he swears was RIGHT THERE (!!!) on the desk he was using just minutes before. Now we’re locking up and the SSO needs it back. Sweat pouring down the crack of his @$$ which the Navy Summer Whites can’t hide. You sometimes wonder if you made the right career choice.

    Imagine how those Crossfire Hurricane FBI agents feel if they didn’t find what they were looking for. Or for that matter Biden. It may be Hunter is the least of his worries now. Trump may have declassified the goods on the Obama/Biden administration who had to be eyeballs deep in the operation to eliminate Trump so Obama’s handpicked successor could win.

    What if, like that CDR of my acquaintance they couldn’t find what they were looking for and time is running out?

The Gestapo seem awfully scared of transparency.

    Dimsdale in reply to Ironclaw. | September 9, 2022 at 10:07 am

    And it isn’t transparency as much as it is oversight and what is privileged, and particularly, what is attorney-client privilege. Seizing the documents without Pres. Trump’s lawyer present has to inject a certain (high) level of illegality into the mix, not to mention the general warrant, heavily redacted affidavit, and the NINE hours it took for them to “find” what they were looking for. All of this is the basis for a good tossing by a real judge.

    If their mission was to perform a third world dictator siege on a political opponent, mission accomplished; Maduro or Castro could not have done it better. The whole thing smells to high heaven, and anyone that supports this actions should be highly suspect.

Garland is really creepy. Just saying.

Now, who would not want somebody telling them that there are limits?
The D.O.J.
Another Fiefdom.

PuttingOnItsShoes | September 9, 2022 at 1:57 am

Just a question here, I wonder if this crew’s ability to to argue and brief effectively is impaired and atrophied due to to their long experience of working with compliant judges in the DC circuit and other compliant facets over system.

Will the appeal be to a single charge at the circuit level?

Plaintiff does not and could not assert that he owns or has any possessory interest in classified records

What classified records? Surely that is begging the question? Trump says everything in his possession was declassified by him. As POTUS classification authority is plenary and DoJ is subsidiary to POTUS where do they get off claiming they have greater classification authority than POTUS?

    Milhouse in reply to randian. | September 9, 2022 at 3:10 am

    As I wrote above, I believe hte point is that he can’t assert that he owns or has any possessory interest in records that once were classified. Which depends on the premise that private documents wouldn’t be classified.

      taurus the judge in reply to Milhouse. | September 9, 2022 at 6:57 am

      Yes he can Milhouse and I’ll take a slightly different direction than Arminius (everything he has told you is 100% correct as applied but you are now talking a fine point)

      I actually was involved in an incident years ago in an official capacity regarding the “possession and sale” of Govt property ( specifically Army TM’s and FM’s at various surplus outlets)

      Start with Title 17 USC- the USG typically does not copyright or restrict distribution of any documentation ( except in rare cases and those documents would have to be clearly marked)

      Remember, a security classification is nothing more than a control measure of “who and how” a document can be reviewed- there is no express “ownership” claim implied in said classification.

      The president ( as CEO and CIC with plenary power over classification and distribution) has authority to “possess” and keep anything he so desires and yes he could override a USG claim of ownership too.

      On this hypothetical re-class- here is an example because people who don’t deal with this don’t have a full understanding of how this works.

      Doc: abc-123

      This sentence is whatever is above top secret
      ——————————-

      Trump declassified that document- its whatever he says it is.

      Now, Biden “revokes” that ( legal grey area) and reclassifies the INFORMATION IN THE DOCUMENT (not the paper its printed on)

      The NEW document will become abc-123R1 ( whatever the document convention says as a continuing revised document) and carries whatever classification its given

      The USG is simply playing legal prestidigitation for a psyops case

        That and the Presidential Records Act which, like it or not, grants the outgoing POTUS the power to decide what constitutes his personal papers.

        It’s analogous to the Antiquities Act in that ultimately the power rests with POTUS to make the determination. If he says every single document that came in that WH, digital or hardcopy, are his private papers that’s what it is.

        Is the PRA too broad? IMO yes. That doesn’t alter the statutory authority granted by Congress.

        In this case we, probably, have an attempted catch-22 re info declassified by DJT being reclassified by the Biden Admin. The docs containing the info are part of what DJT considers his private papers.

        This is a spat with the National Archives ginned up into a ‘get Trump’ adventure that will ultimately fail. IMO. If not the members of the Biden WH will be very unhappy with the results when the shoe is on the other foot; a reinterpreted PRA and no executive privilege would make for many nights of flop sweat in 2025 when the consequences come calling.

          Dimsdale in reply to CommoChief. | September 9, 2022 at 10:13 am

          It is the Reid “nuclear option” story all over again; be careful what you wish for, because it will come back to bite you, and really hard, down the road.

          Honestly, I think the Archives were put up to it, but that is irrelevant now.

        Taurus, the USG can’t have copyright in any document that it created. That’s explicit in the copyright law. Anything the USG creates is automatically in the public domain. But the physical document is still USG property. And no, the Presidential Records Act does not authorize a president to appropriate government property to himself. He can claim something was never government property in the first place, and it’s up to you to prove him wrong, but if you can prove it then he’s a thief.

        The argument here seems to be “This was once classified; that means it was government property, not Trump’s private property, and therefore it still is”. But that depends on the premise that private property would not be classified, and I don’t know whether that’s really the case. An awful lot of arguments in this mess seem to be based on former officials’ recollections of what would normally be done, which doesn’t rule out something being done differently.

        E.g. the argument that declassified documents are always marked. Yes, they normally are. You may never have seen one that wasn’t. But that doesn’t mean it has to be, and if Trump says he declassified something without marking it, it’s up to you to prove beyond reasonable doubt that he’s lying, and you can’t do that.

          taurus the judge in reply to Milhouse. | September 9, 2022 at 12:12 pm

          No Milhouse, you are way overthinking this. Listen to those of us here who know how this works.

          Let me break this down a different way because the DOJ has deliberately created this convoluted confusion and has people discussing and arguing non-sequiturs to keep them in a loop of confusion. ( and its working)

          First- lets have document “X” (#X-123) with a classification of TS ( authorship doesn’t matter because it was commissioned by the USG)

          The document is 2 parts: The physical paper and the content.

          The USG claims no “ownership” over the paper any more than they do office supplies and the beloved Skilcraft pens.

          The “content” has a distro (distribution list) from “unlimited- general” all the way up. ( the required clearance and other restrictions is still a “distro” list)

          ALL “unclassified” documents are by default “unlimited general” distribution thus “anyone’ can have (own) them. ( that’s how all the field manuals, tech manuals and other stuff can legally be sold)

          A “reclassification” can happen but that’s a ladder change downward ( a TS document downgraded after a suspense date to just “classified” is an example)

          There is no such thing as “upward’ classification because you cant classify that which is already known.

          So, if Biden decided to reclass THE INFORMATION CONTAINED IN DOCUMENT #x-123- then a NEW DOCUMENT marked “whatever” with a # of x-123 (parent document information) with a rev number.

          So, when/if Trump DEclassified these- they went to general distro and open to whatever. Those documents can be “his property” ( just like a field manual bought at the flea market)

          Now, if Trump REclassified ( notice the subtle change)- then it was DOWNGRADED ( which would require proper storage and security) but as POTUS he STILL RETAINS HIS CLEARANCE and “NEED TO KNOW” ( just like all the rest of us who still have active clearances as contractors after retirement as USG contractors)

          Obviously, Trump did some of both but in either case, he has full authority to hold them in his possession and the PRA be damned because it doesn’t apply in this case as that question has been long adjudicated.

Is it a viable strategy to side step this whole issue and attack the overly broad nature of the search warrant directly?

Wow.

I mean, I can understand wanting a stay of “You can’t use these documents while the Special Master reviews them” — but they’re appealing to try and keep the Special Master from even seeing the documents in dispute?

This seems like a clear admission that they know they’re in the wrong.

Or am I missing something?

    Dimsdale in reply to clintack. | September 9, 2022 at 10:16 am

    No. That is precisely my position. Why don’t they trust a Special Master unless they can’t control and direct him/her?

    And I think Pres. Trump just baited them so they would do something predictably leftist and stupid (yes, I know; it is redundant).

    Milhouse in reply to clintack. | September 9, 2022 at 11:05 am

    They’re saying these particular documents are demonstrably not Trump’s personal property, so they can’t possibly be subject to attorney-client privilege, and they also can’t be subject to executive privilege, so there’s nothing for the Special Master to decide about them.

    Whether they’re correct depends on whether the fact that something is (or once was) classified proves it can’t be private property. I don’t know whether that’s true, but it seems to be what they’re asserting.

      taurus the judge in reply to Milhouse. | September 9, 2022 at 12:46 pm

      They are deliberately lying and playing games with semantics and you are simply incorrect.

      They are trying to “mix’ laws and come up with a third law

      Some documents are Trumps personal property

      Some documents the is the legal and authorized possessor of ( which covers documents still with a classification being kept securely IAW requirements)

      The DOJ knows EXACTLY what documents trump had sent to him because the GSA has a packing list by document # ( thats how that process works)

      If there was a dispute in his “authority” to have them- they NEVER WOULD HAVE BEEN RELEASED and in the event of a legitimate error- they would have been recovered IMMEDIATELY.

      “Privilege” has no part here- that’s a DOJ straw argument to confuse the masses and make them beli8eve Trump did something wrong.

      They dont want the Special Master because it will PROVE what I have posted in this thread.

      When that happens, Trump utterly defeats them and their whole case goes down the drain.

      They are playing legalese kabuki with semantics hoping nobody who understands this actually looks but it seems the judge did.

PuttingOnItsShoes | September 9, 2022 at 7:56 am

Since we are pretending that the doj has any good faith interest in attempting to take these documents, I will respond. But let’s remember we’re only pretending that the doj is acting in good faith; we know that it’s a malignant endeavor.

First of all let’s stipulate that the copies that Trump had of anything the doj is claiming to be classified are not the only copies. Therefore if they are Declassified, there’s no reason whatsoever that Trump cannot claim these are personal “copies” of documents for his personal memoirs. He can have a disagreement with the presidential archivist under civil procedures, but with the doj attempting to intervene in a civil matter, again the archivist is engaging in extortion by attempting to gain advantage over the disagreement through invoking criminal liability. The archivist called the cops on his defendant in a civil matter against the president. It is the archivist who is incurring potential criminal liability for extortion in attempting to gain leverage in a civil case through the invocation of criminal liability.

But the real problem with what the doj is doing is that Trump has a civil case against the doj along with Clinton and others in deprivation of Rights among other things. So this raid is really a retaliatory raid, which is a further abuse and ongoing violation of the 18 USC 241 and 242 conspiracy against rights and deprivation of rights under color of law; and it’s even worse than that, the threat of criminal prosecution to gain an advantage in a civil case is also known as extortion. So in a balanced and true rule of law system, which we don’t have, the doj would have more liability than Trump would.

The doj had been informed that trump had claimed declassification of the documents prior to doing the raid, so that would have been a critical question to adjudicate prior to them just asserting a contrary claim.

And all of this should have been adjudicated before anything was brought before a grand jury.

There’s no question that the doj was trying to seize documents that trump might use in his civil case against the doj and conspired with the archivist to fabricate probable cause in Bad Faith.

In many other contexts, these assertions may be consider a stretch perspective; however after a 6 year history of attempting to get trump including all the false investigations and threat of false charges starting with Russia gate, which was a manufactured predicate, the above represents the central probability of the truth of the case in light of the entire evidentiary record.

Based on the past 6 years, it should be obvious to any REAL judge that the DOJ is out to get Trump, and nothing they say or write should be construed as truthful.

They are the poster case of:

FALSUS IN UNO, FALSUS IN OMNIBUS

They blew their credibility wad years ago.

Trump should not only oppose the application for a stay but also seek a permanent injunction and contempt against DOJ/FBI for every leak. This case has to be litigated the Chicago way:

“Jim Malone: You wanna get Capone? Here’s how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That’s the Chicago way
Jim Malone: You wanna get Capone? Here’s how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That’s the Chicago way”

The DOJ is simply a mafia gang employed by the organized crime syndicate that masquerades as the Democratic Party. They do not recognize any rule of law except whatever they may represent as a law that furthers their criminal activities. Moreover, any and all actions taken by the Obiden Junta and their criminal associates are null and void. Patriots must realize this truth and not just protest and resist but take actions to protect their liberties as our ancestors did in 1776.

2nd Ammendment Mother | September 9, 2022 at 10:11 am

Seems like Trumps attorney should get to call a few witnesses: Hillary Clinton and Scooter Libby come to mind

The logic of Biden waiving Trumps plenary presidential privilege and exemptions is absurd. Nobody can waive anyones constitutional rights for them w/o consent. But the rabid left democrats would throw Trump in prison for keeping a copy of the White House Christmas Dinner Menu and call it classified,

    Milhouse in reply to Elzorro. | September 9, 2022 at 11:06 am

    Trump has no privilege. The privilege belongs to the executive. That was once Trump, but now it is Biden. So it’s his privilege, and it’s obvious that he can waive it.

      Milhouse, if you can call Arminus “an idiot”, we should have the same privilege in return. So just consider it said mentally here.

      As regards privilege and retainment of same once leaving office…… does a police officer / prosecutor / any elected office holder lose all privilege protection for actions during office because he/she retires? Nope. He no longer has the authority of that office – but he’s not suddenly total “Sue Me” bait either.

      And the whole concept of Biden being able to ex post facto docs Trump unclassified re-classified to create a crime that wasn’t at the time is and should be repugnant ti any one who respects justice and the rule of law.

      As for your premise that the govt “owns” every single copy of a particular doc World without end, Amen – ridiculous. There’s a True Copy of my birth certificate in both the local county records office – and my desk drawer. I own one of those (guess which one). If I xerox it I own that copy as well. And if it’s not classified when I took possession it’s not a crime to possess either.

      A doc, especially one where it’s not the only copy, and especially especially when it’s not classified or otherwise restricted at the time is not a piece of furniture that you steal if you take it with you when you leave office. The Bill and Hill show did the latter, btw, and despite it being technically a felony they were given the option of voluntary return, not a made-for-tv media event with armed enforcers.

      This whole propaganda-ized fishing expedition stinks to high heaven. Anyone citizen not blinded by Orange Man Bad should be sick at the depths the current Powers That Be are willing to go to retain that power. As should you.

      starride in reply to Milhouse. | September 9, 2022 at 12:45 pm

      That may be true in reality but it would destroy the office of the presidency if an incoming president revoked executive privilege’s of his predecessors. No president could ever have private meetings with his advisers. The sitting president could wave executive privilege of those tapes in Clintons sock drawer if they wanted to.

      Elzorro in reply to Milhouse. | September 9, 2022 at 12:56 pm

      I appears that when the ‘now so called classified but in their last pleading called marked classified’ documents were moved to Trumps home HE held the privilege and also the plenary authority to declass said documents at will, he did so, upon that fact his case will rest and he will win it. This was an illegal search and seizure by the Fruitcakes of the Poisonous Tree and BTW this has not yet been litigated yet. The left is wailing and flailing but alas it all will fail on the leftist face plant coming soon.

The exercise of a citizens constitutional right, plenary power, or enumerated privilege, can NEVER be converted in to a crime. No matter when the exercise occurs. Even for a President and CIC.

They’ve got the stuff at all because the judge said it was Ok to grab particular things. I don’t see passports listed, but no telling what legal interpretations and common practice land on.

Now the FBI n DoJ, who seized the pile o docs via this judge’s delegated authority, assert that same judge doesn’t have the authority to check what was seized.

I think it’s worth finding out if they took some of Melania’s dainties, presumably in case there were nuclear codes written on them in invisible ink. Whether the judge under who’s authority the warrant was issued thinks that’s covered would also be good to know.

Clearly, these people have too much time on their hands, and worse a confused sense of their own autonomy.

Maybe it’s just me, but whenever I hear a government agency or activity (can you say “2020 vote counting?”) say they don’t need any oversight (or auditing)… that’s exactly when they need the most oversight possible. Honest people acting in full accordance with the law don’t mind oversight – it proves their actions are beyond reproach. But when Reich Minister Heinrich Garland opposes it, you know it is because his actions cannot withstand scrutiny.

PuttingOnItsShoes | September 10, 2022 at 2:07 am

Please notice, just yesterday had another corrupt judge, the one who stepped in when Reinhardt, recused himself from the Clinton suit filed by trump, just dismissed Trump’s suit against Clinton and the doj now to remove the peril to the doj from interjecting Criminal liability into a civil matter to gain advantage enter takeaway the the potential argument that trump had a valid reason for retaining a documents in support of his suit against third parties thereby establishing his personal possessory interest in them.

To the core…