Scrapping for Scraps
DOJ seeks to protect what belongs to the American people.
What are scraps for some is salvage for others.
Does America know the whereabouts of 10,900 documents taken by Trump illegally from the White House?
That’s what’s remaining of the documents found at Mar-a-Lago after the 100 ‘classified’ documents, which the DOJ is attempting to remove from the purview of the Special Master. So worded is the DOJ appeal of Judge Cannon’s ruling filed Thursday, September 15 with the 11the Circuit Court of Appeals in Atlanta.
Recall the events of Monday, February 5:
A federal judge intervened on Monday in the investigation of former President Donald J. Trump’s handling of sensitive government records, ordering the appointment of an independent arbiter to review a trove of materials seized last month from Mr. Trump’s private club and residence in Florida.
The judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, also temporarily barred the Justice Department from using the seized materials for any “investigative purpose” connected to its inquiry of Mr. Trump until the work of the arbiter, known as a special master, was completed. (1)
…she went on, the government had not suggested there was any “identifiable emergency or imminent disclosure of classified information arising from” Mr. Trump’s retention of the materials. Instead, she added, “the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure.” (2)
Aside: Someone please explain to Judge Cannon that investigative reporting is different from ‘leaking information’ to the press.
Several impressions surfaced during last week’s back and forth in ‘Trump v. United States’ as to the legal disposition on the release of the documents “seized” at Mar-a-Lago.
Several reflections also surfaced on how one uses language to report events “accurately.”
Consider: Were the Mar-a-Lago documents “seized,” or “recovered?” The documents were ‘seized’ if they were not turned over upon request; ‘recovered,’ if they were intentionally removed, hidden, then discovered.
Consider: How does one accuse mishandling of government property if one maintains that the property belongs to him?
Recall there is no concept of ‘public’ or ‘government’ in Trump’s head.
Positive and negative impressions of the judicial system ‘at work:’
On the one hand, CNN and MSNBC present a parade of experienced legal advisors to explain what’s going on — a respectful yawn, here; a rueful yawn, there. And with news of a decision, the same parade of legal advisors pass off a staged giddiness that justice is “at hand.”
On the other hand, a cynicism expressed by Judge Cannon and others — notably Trump — of the investigative process in general and which under-girds a refusal to even acknowledge the public interest in the documents. The furthest Judge Cannon’s conceded in her response to the government request for the 100 ‘classified documents release was to instruct the Special Master to proceed to examine these documents, first.
Upon review the government is seeking a stay of Judge Cannon’s decision to block any investigation by the FBI until Special Master Dearie has “cleared” the documents of privilege.
DOJ argues, if ‘possession’ is relevant, then why did Trump instruct his lawyers to lie about the whereabouts of the documents? Why did Trump lawyers neglect to assert ‘executive privilege’ in positing which documents were ‘classified,’ a claim Trump contradicted by saying he had the privilege of declassifying?
Follow me here, it gets better.
Other “tracks” were revealed last week: a helicopter ride with Trump and unmarked cartons of documents, surveillance cameras at Mar-a-Lago, the ‘dumbed down’ interpretation of the withdrawal of potential evidence as “a storage problem.”
When in office, Trump rarely read documents or attended to their presence. However, once out of office, Trump has an intense interest in government documents.
Reality Check
The DOJ needs the 100 ‘classified documents’ removed from review on privilege by the Special Master in order to protect the value of the documents’ removal as evidence in its allegation that the Espionage Act might have been broken.
Then why did the government acquiesce in the appointment of a Special Master? This can be viewed as a conciliatory move, a non- prejudicial tactic. The government is trying not to appear ‘political’ in its reasoning and trying not to undermine its effort in the interests of the American people.
As tedious as this sounds, such a concession exposes a familiar Trump tactic: to delay until 2023 at least the disposition of these documents and their recovery. Trump lawyers will have to tread a tight wire or face charges of obstruction. DOJ will have to move swiftly. Trump is cruising the nation looking for other willful ignoramuses.
What the government can do and has done is to subpoena phone records and emails identifying when and where information but not content. The subpoenas have been raining down on Trump and his allies. Last week, 40 subpoenas were issued to Trump allies and staffers.
For the DOJ, this is the only ground to cultivate until another Trump appointed judge attempts to intervene.
In making its case, the department provided its most detailed explanation to date of why it contends Judge Cannon’s blocking of immediate access to the documents marked as classified, if allowed to stand, will hamper the intertwined criminal investigation and national security assessment.
By forbidding criminal investigators from analyzing the contents of the documents or using them to conduct witness interviews, the department said, Judge Cannon was thwarting efforts to discern any potential patterns in the types of records that Mr. Trump kept. Such insights might help identify any other records that may still be still missing — a question raised by the F.B.I.’s discovery of empty folders for classified material in the search. (3)
In other words, there is no compelling interest for justice in the judge’s injunction; instead, an attempt to bolster the former President’s claim that a violation of his fourth amendment rights occurred August 8. (4)
America has been here before:
The filing cited a 1974 Supreme Court ruling that rejected President Richard M. Nixon’s attempt to use executive privilege to block the Watergate prosecutor from obtaining tapes of his Oval Office conversations, saying that precedent meant any assertion of executive privilege by Mr. Trump would be overcome as a matter of law. (5)
On August 8, 2022, Trump was not President, but a citizen.
September 19
Notes
2-Charles Savage, Alan Feuer, and Glenn Thrush, “Judge Keeps Block on Inquiry Into Mar-a-Lago Files and Names Special Master”
https://www.nytimes.com/2022/09/15/us/trump-documents-special-master.html?smid=nytcore-ios-share&referringSource=articleShare
3-Savage, ibid.
4-https://medium.com/@rodneyclough/the-t-word-5a3e8866fae0
5-Savage, ibid.
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