The Trump Investigation(s) Thread

[malchior]

Since we've been seeing filings in the MAL search there has been some discussion about the unusual structure that former DOJ folks have noticed. Thread unrolled here.

The tldr; is that it appears that there might not be a AUSA leading the investigation. They note this would be odd since someone would typically be in the lead presenting evidence to a grand jury. It looks like a "Main justice" group that is involved in classified data spills is in the lead. They don't really go beyond into implications but it might seem that they really are focusing on damage first and worrying about charges later.



This could be about venue since this is "early days".

[malchior]

As expected the Trump judge bent over backwards to give Trump another shield. I get what Fed is saying but it seems to be a variant of it could be worse. I'd actually like to hear Fed talk about the impact of it looking like the judge was in the bag from Trump from the jump.

[malchior]

Other folks? They think it's a sham.

[Octavious]

So he will just tie this up in courts u til the next election. Sweet.I give up

[Carpet_pissr]

Is this simply a delay tactic or does this provide other advantages? I guess someone on his team being able to review the docs will allow them to build a better defense, but does the weirdly named ‘special master’ have any other powers?

[El Guapo]

Is this simply a delay tactic or does this provide other advantages? I guess someone on his team being able to review the docs will allow them to build a better defense, but does the weirdly named ‘special master’ have any other powers?

A big question is who gets appointed as the special master. Someone serious, or Steve Bannon?

[malchior]

That's where it gets even more tortured. Apparently the judge indicated that the special master would help with the executive privilege claims. So a lot of folks are waiting to weigh in until we see who the judge appoints. But no matter what there are a lot of complicated paths here. DOJ should appeal it but the 11th circuit is approximately 40% full of judges appointed by...Trump as well. And then SCOTUS. And if it goes to SCOTUS it could delay the criminal investigation for what another year? The other path is trying to quickly work through the special master and hope the special master and judge don't delay everything.

In any case, we'll see what happens but a day like this is why I'm so pessimistic about the folks saying the DOJ or the courts will save us. Even if any of this looked fair for us it'd still be too ponderous to deal with the threat. But it doesn't help my mood that so many nat sec lawyers are saying they've been denied special masters in far better circumstances by the courts. Yet for Trump? All deference and protections are being granted.

Edit: A lot of folks are also pointing out the judge essentially ruled for an injunction that wasn't asked for (to prevent the any document review on the criminal investigation proceeding) and essentially acted like he was a defendant without counsel. She also essentially signaled that she didn't trust the 'taint team' process that regular people are subjected to. That's going to be fun for future prosecutions.

Edit2: FWIW I sought out analysis from Trump folks that talked about the merit of the legal arguments. They don't seem to exist in any substantive form. I found plenty of cheering and mocking the DOJ/saying the FBI raid. How it was now clearly illegal for instance (a tortured read of this naturally). It seems like the centrists are like - maybe this isn't as bad as it looks but most mainstream analysis is this is nuts and almost everyone non-crazy thinks this is yet another underserved legal victory for Trump.

[malchior]

Neal Katyal walks through how awful this decision is

This special master opinion is so bad it’s hard to know where to begin:
1. She says Biden hasn’t weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this ...
is privileged. Archivist says it is “not a close” question

2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Priv isn’t some post-presidential privilege that allows Presidents to keep documents after ...
they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen docs...

3. She says the “reputational” harm to Trump justifies a special master. That’s insane–every crim deft has reputational harm. Are we now going to have special masters in every crim investigation?

4. She says the Special Master should screen materials for exec privilege, without ever once explaining what specific material is subject to exec priv, particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate Q out?

5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That’s a bazooka when one needs at most a scalpel.

6. She tries to enjoin the Exec Branch from using these materials in an investigation, but the govt has already reviewed all the materials. It makes no sense.

7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won’t have the docs back during the investig. That’s not irreparable, he can get them back later &if they are improperly used to bring an indictment, he can move to dismiss the indictment

8. Her analysis of standing is terrible. Trump wouldn’t own these docs anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client docs, that handful of material can be separately dealt with–you don’t enjoin the entire investig for that

9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.

[malchior]

NY Times - Deeply problematic. The NY Times published quotes saying this ruling was radical overstepping with multiple experts tearing down the judge's decision. This is pretty astonishing. It's almost like the GOP stuffed the judiciary with unqualified extremists.

A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.

This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.

Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.

Judge Cannon, a Trump appointee who sits on the Federal District Court for the Southern District of Florida, also blocked federal prosecutors from further examining the seized materials for the investigation until the special master had completed a review.

In reaching that result, Judge Cannon took several steps that specialists said were vulnerable to being overturned if the government files an appeal, as most agreed was likely. Any appeal would be heard by the Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.

Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed.

...

“Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”

A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.

“The opinion seems oblivious to the nature of executive privilege,” he said.

The Justice Department is itself part of the executive branch, and a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.

[Carpet_pissr]

Is this simply a delay tactic or does this provide other advantages? I guess someone on his team being able to review the docs will allow them to build a better defense, but does the weirdly named ‘special master’ have any other powers?

A big question is who gets appointed as the special master. Someone serious, or Steve Bannon?

I just realized that the special master is appointed by the judge, not selected by Trump.

Rudy would have been an epic choice.

[El Guapo]

Is this simply a delay tactic or does this provide other advantages? I guess someone on his team being able to review the docs will allow them to build a better defense, but does the weirdly named ‘special master’ have any other powers?

A big question is who gets appointed as the special master. Someone serious, or Steve Bannon?

I just realized that the special master is appointed by the judge, not selected by Trump.

Rudy would have been an epic choice.

I mean, given what the judge has done to date, I wouldn't rule out some crazy Trumpworld person getting appointed to the role. I'm not sure how sophisticated / cynical this judge is, but Rudy would probably be too obvious. I think someone Bill Barr-esque isn't out of the question, though.

[Zaxxon]

[Carpet_pissr]

LOL

[Carpet_pissr]

Is this simply a delay tactic or does this provide other advantages? I guess someone on his team being able to review the docs will allow them to build a better defense, but does the weirdly named ‘special master’ have any other powers?

A big question is who gets appointed as the special master. Someone serious, or Steve Bannon?

I just realized that the special master is appointed by the judge, not selected by Trump.

Rudy would have been an epic choice.

I mean, given what the judge has done to date, I wouldn't rule out some crazy Trumpworld person getting appointed to the role. I'm not sure how sophisticated / cynical this judge is, but Rudy would probably be too obvious. I think someone Bill Barr-esque isn't out of the question, though.

Does Bill Barr still have top security clearance to be able to view the files?

[malchior]

I heard a good discussion this morning involving Andrew Weissman that this could very well lead to another *significant* delay. If the DOJ goes along with the special master, the idea is that Trump's team will challenge everything to the special master, then the district judge, possibly appeal to the 11th circuit which is full of Trump appointees, and supervised by Clarence Thomas, then perhaps appeal yet again to SCOTUS which is more delay. The other path is DOJ appeals or goes to the judge to reconsider but the same risks apply too. I'm going to give Fed's ep a listen but all the analysis seems to be the same way so far.

Edit: I gave Serious Trouble a listen and it seemed like Fed was himself bending over backwards himself to give Cannon reasonable doubt about 'whether the fix is in'. He wants to wait to see the Special Master first, wants to see some of her decisions, which seems plausible. Fed and Barro talked through scenarios that could drag this out long term as well. I'm getting that sinking feeling here that this will drag out.

Does Bill Barr still have top security clearance to be able to view the files?

He typically wouldn't unless he holds a position that requires it. That is a pretty small group in private practice. He went to write a book so I suspect he had to relinquish active status. However he might be in the window to be granted access quickly. The other question is whether the DOJ would find it acceptable. I doubt it.

FAQ

What do the terms “active”, “current” and “expired” security clearance mean?

An “active” security clearance is one in which the individual is eligible for access to classified information. A “current” security clearance is one in which the individual’s eligibility for access to classified information was terminated, but can be reinstated (recertified) without a new investigation, provided no new potentially disqualifying conditions exist. A security clearance remains “current” for two years after it is terminated as long as the underlying PSI is not out-of-date. Previously PSIs went out-of-date after 5, 10, or 15 years depending on the level of clearance. Now all PSIs go out-of-date after five years, but a clearance can be reinstated up to seven years if a new investigation is concurrently initiated. If there is either a two year break in access to classified information or the last PSI is more than seven years old, an individual’s clearance becomes “expired.” Both “active” and “current” security clearances are relatively easy to transfer between employers within an agency like the Department of Defense (DoD). Reciprocal acceptance of an “active” or “current” clearance by one agency (e.g. DoD) that was granted by other agency (e.g. DHS) can sometimes be problematic. When a person with an “expired” clearance is sponsored for a security clearance, he/she will be processed in the same manner as someone applying for the first time.

[malchior]

Evidence that Trump sought out this judge specifically. This is really ugly.

When former President Donald Trump summoned up years of bubbling resentment and sued Hillary Clinton and everyone else involved in Russiagate earlier this year, he naturally filed his lawsuit in South Florida—home to his oceanside estate.

And yet, when his attorneys formally filed the paperwork, they selected a tiny courthouse in the sprawling federal court district’s furthest northeast corner—a satellite location that’s 70 miles from Mar-a-Lago. They ignored the West Palm Beach federal courthouse that’s a 12-minute drive away.

Trump’s legal team, it seemed, was specifically seeking out a particular federal judge: one he appointed as president.

The tactic failed, and Trump instead got a Clinton-era judge whom he promptly tried to disqualify for alleged bias. U.S. District Judge Donald M. Middlebrooks called him out in a snarky footnote.

“I note that Plaintiff filed this lawsuit in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon, who Plaintiff appointed in 2020. Despite the odds, this case landed with me instead. And when Plaintiff is a litigant before a judge that he himself appointed, he does not tend to advance these same sorts of bias concerns,” Middlebrooks wrote in April.

Months later, Trump is once again suing in the Southern District of Florida, this time seeking to hamper the FBI investigation into the way he kept hundreds of classified records at Mar-a-Lago. Except this time, he got Cannon.

The strategy is already paying off.

[LordMortis]

Judge Aileen Cannon... It's not a conspiracy when it's out in the open. Then it's just influence and privilege.

[malchior]

It's crazy that no one can even defend this crazy order. Good thing this 38-year old MAGA extremist the ABA called unqualified has a lifetime job.

[Kraken]

Appeal it to whom? More trump appointees?

[Scoop20906]

It amazing. It just means more Trump airtime while the media follows this story instead of trying to bash Biden and the democrats.

[malchior]

Cool. He had information on a foreign nation's nuclear arsenal in his golf course. If this was an ally this is amongst their most guarded secrets. If it is an adversary, it might help to uncover how the information was obtained. Insanity.

[Smoove_B]

This seems like a good guess given his...association with the Saudis.

10 to 1 it's Israel.

[malchior]

This is getting to the point where it all feels too absurd to be real. The former President has committed crimes that'd have anyone else locked up to protect society. His deeply terrible legal team found a judge willing to basically throw rule of law out the window to block an investigation into the crimes even though she has no insight into how much damage is being done. It's hard to even calibrate this. We're in hell.

[Smoove_B]

Reality Winner was arrested and jailed for 3 days before entering a "not guilty" plea in front of a judge. And then she was immediately taken back to a jail cell and denied bail where she sat until October of the next year for her trial.

She wasn't the President, which is unfortunate for her, I suppose. So I guess that's the new Step 1 for doing crime - Be President.

[malchior]

We have to also wonder why someone is leaking this information about the investigation. It's looking very bad. It isn't a leap to assume we're being told this to potentially create pressure to act because it's worse than we know.

[El Guapo]

We have to also wonder why someone is leaking this information about the investigation. It's looking very bad. It isn't a leap to assume we're being told this to potentially create pressure to act because it's worse than we know.

I mean, the true audience here might be the 11th Circuit and/or SCOTUS. Basically "we know you are probably inclined to delay this endlessly but you should be aware that there could be really bad consequences from that."

[malchior]

That's fair. It could be. If we continue to see revelations like this leak out I don't think we can do anything but believe it's an indicator someone is signaling trouble. It's becoming clear that someone believes they can't rely on the system to work. And frankly that looks about right.

In any case, stepping back this country is in an extremely perilous position. The GOP filled the judiciary with unqualified, biased, and frankly unethical judges. I find it ironic people were so concerned about rule of law concerns and days later we saw more evidence that rule of law is in tatters and will not save us. We have to start getting realistic here. The times ahead probably aren't going to leave anyone with clean hands.

[malchior]

So you issue a wacky ruling that tons of lawyers call out as overbroad, an abuse of judicial power, not tied to facts, etc. so what else would the NY Times do but write a weird puff piece talking about how good a student they were in high school. Surreal.

Valentin Rodriguez Jr., a defense lawyer based in West Palm Beach who worked opposite Ms. Cannon when she was a prosecutor and has appeared before her as a judge, said she was thorough, meticulous and often willing to rule against the government, as she did in Mr. Trump’s case.

“The general feeling that I’ve gotten from her is, ‘I don’t buy everything the government has to tell me,’” Mr. Rodriguez said. “You can’t expect that if you and the government have some sort of agreement, over sentencing or a plea, that that’s necessarily going to convince. In that sense, you could call her something of a freethinker.”

Judge Cannon went to lengths to allow Mr. Trump’s legal team to clarify its argument after an initial filing that was too vague. During a hearing in the Trump case last week, she also seemed to help one of Mr. Trump’s lawyers remember that his client’s request for a special master included not only to review documents under attorney-client privilege but also to assess any that could be covered under executive privilege.

...

“Aileen was always an incredibly dedicated and diligent student,” said Alejandro Miyar, a lawyer who worked for the Obama administration. He was one of 17 Ransom graduates who signed a letter in 2020 supporting Ms. Cannon’s nomination.

The letter described her as “personable and trustworthy, a genuinely caring person who treats others as she would want to be treated herself.”

“What more can we ask of another human being?” it read.

Ms. Cannon graduated from Duke University, spending a semester in Spain and a summer writing short feature articles for El Nuevo Herald, a daily Spanish-language newspaper, then graduated from the University of Michigan Law School.

...

Howard Srebnick, a Miami lawyer who went to the same high school as Judge Cannon, said she had all the necessary credentials to be a federal judge. She worked as a federal prosecutor, clerked for a conservative federal judge and spent time in a large law firm, Gibson, Dunn & Crutcher, in Washington, where she was known as a quiet presence who disliked attention.

“I don’t think anyone could say she’s professionally or intellectually unqualified,” Mr. Srebnick said.

[Unagi]

And yet so many people say that she is professionally and/or intellectually unqualified.

[LordMortis]

And yet so many people say that she is professionally and/or intellectually unqualified.

Reading her wiki page, she seems professionally qualified from the peanut gallery seats. Intellectually... Umm... Not enough information but the Federalist Society and their rampant general intellectual fraud puts her squarely in the I'd never personally trust her in any capacity category.

[LawBeefaroni]

And yet so many people say that she is professionally and/or intellectually unqualified.

Her friends and family say she's awesome. Good 'nuff.

[El Guapo]

Why would you name a high school Ransom?

[LawBeefaroni]

Why would you name a high school Ransom?

Because the annual tuition is over $45K?

[Isgrimnur]

Paul C. Ransom, an educator and New York lawyer, opened Pine Knot Camp in 1896 as a school for boys in Coconut Grove.

[Jaymann]

And here I thought they were hacked by ransomware and it was a condition of getting their computers back.

[Kasey Chang]

IMHO, the ONLY reason that Trump would have that many secret, top secret, Compartmentalized info only, and all that at Mar-A-Largo, was because he had talked to Putin and Putin wanted him to look at secrets. Whether Putin has spies in place to get copies of them is debatable, but that would NOT surprise me. It's probably MUCH easier to access Mar-what-ever than the WhiteHouse.

Now, with news that Trump has un-secured NUCLEAR secrets regarding a different country at Mar-a-lago, there's NO REASON why he NEEDED unsecured access to that info. It's clearly an FYI situation. So why would Trump KEEP it? Again, the only thing that makes sense to me would be "Putin asked him to look at it", just put the idea in his head when they met, so Putin's spies can access (very reasonable assumption that Mar-a-lago is a LOT less secure than any US agency locations or Whitehouse)

At least Walker did it for money. Trump did it for ego and nothing else.

[Scoop20906]

At least Walker did it for money. Trump did it for ego and nothing else.

I'm not confident any longer that Trump was holding on to this stuff to show off. It seems logical to me he saw it as an opportunity to gain power through favor/influence which always come down to money. Trump might not sell it for cash but sharing that information gained him benefit in someway and all roads to Trump are covered with money. This isn't a weird mistake. He thought he could get away with it so he tried to and so far NO ONE has stopped him. I don't think he set out to be a traitor but his actions to enrich himself have made him just that. I'm sure many other people convicted under the espionage act still think of themselves as patriots. "Whats the big deal?" right?

edit: Trump has always felt that if he can get away with something then he will do it. It seems no one tried to stop him packing up these boxes and leaving with him. It hard to imagine those people are not being tracked down by the intelligence agencies who own those docs and firing them all and revoking their clearance. This is a major dust up and shows an incredible lack of control and oversight in the executive branch and if many people aren't fired I have to wonder what else is wrong there.

[Newcastle]

@ Scoop - Interesting take. I think that leverage and self enrichment are an angle for sure; secondarily I would have to assume his desire to help Putin. Trump only has about 400 million in loans coming due in the next year or so. Those are some serious secrets he was peddling.

@ El Guapo is right on the money when he said the Washington Post leak was geared to the 11th circuit & Supreme CT. justices who will see this. Obviously this was for public consumption as well to let us know the gravity. The FBI/Justice is pretty much saying that there is some hard core stuff there. [I am fervently praying that the spooks gave him bad documents. I know farfetched, but hoping.]

I sincerely wonder if the rash of 9 Russian businessman/executive deaths is spurred by these documents. I am referring to the high rate of suicides amongst Russian businessman & Gas executives; thats been in the news of late. There was a few articles just recently because of the death of a Lukoil executive. Secondarily there was a Russian dissident who just died a few weeks ago [ politico has article]. Really wonder if there is a connection. I hope not, but it wouldn't surprise me.

[El Guapo]

Paul C. Ransom, an educator and New York lawyer, opened Pine Knot Camp in 1896 as a school for boys in Coconut Grove.

I mean, I figured it was probably something like that, but if my name was Paul C. Murder, I wouldn't name my school Murder Groves.

[Isgrimnur]

You could always retire to Ransom Canyon, TX:

Ransom Canyon derives its name from the older designation, cañon de Rescate, "Canyon of Ransom"; for it was in this region that Spanish and Anglo traders negotiated with the Comanches for the return of the hostages.