Mar a Lago raided by FBI

[Swerd]

… I can't even imagine what those crazy high level clearances entail.

Here's an example of crazy.

In 1971-72, I was in Pensacola, FL where the US Navy trained all the people going into the field of "communications intelligence". It was called the Naval Communications Training Center, abbreviated as NavCommTraCen. Everyone there called it Nitsy-Titsy. It was located on a retired air field left over from the 1920s, called Corry Field. Apparently it is still there now, but is called the Information Warfare Training Command Corry Station (IWTC Corry Station). I included the link to show an example of the Navy's unclassified (sanitized) language it now uses to publicly discuss these things. In 1971 when I was sent there, no public discussion was done, and the word "cryptology" was never mentioned.

During the early 1970s a number of airliners were high-jacked and flown to Cuba. Pensacola was near Cuba, and it was feared that people traveling from Nitsy-Titsy might be held by the Cuban govt. Because it was perceived as a security risk, it was proposed that flying from Pensacola be prevented. When asked what kind of travel would be alright, the answer was people leaving Nitsy-Titsy could travel by Greyhound Bus to Atlanta and fly from there. It was quickly pointed out that airliners high-jacked to Cuba had originated from many widely dispersed locations around the US. As far as I know, the idea was dropped. I left Pensacola in May of 1972, and never went back.

 

[mtrycrafts]

A law attempting to impose additional requirements beyond the constitutional requirements is unlikely to survive a legal challenge (in my opinion, the law would be DOA). It would require an amendment to the constitution.

This issue came up recently in the context of 18 U.S.C. 2071:

>>>Section 2071 says anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” government documents is guilty of a crime carrying a penalty of up to three years in prison. In addition, anyone who violates the law “shall forfeit his office and be disqualified from holding any office under the United States.”

But the law can’t override the U.S. Constitution, which provides the qualifications for president, according to experts cited by the New York Times and a post at the Election Law Blog by Rick Hasen, a professor at the University of California at Los Angeles School of Law.

Jason Willick, a columnist for the Washington Post, summed up the argument in a tweet.

“Nope, can’t impose qualifications on holding the presidency by statute—the qualifications are set out in the Constitution. The search for ‘one weird trick’ to banish Trump from politics will have to continue.”<<<

Could Trump be banned from office if he's convicted of taking government documents?

Former President Donald Trump wouldn’t necessarily be disqualified from office if he was convicted of taking government documents, despite a statute that says so, several legal experts say.

www.abajournal.com

It might be a good idea, but it would require an amendment to the Constitution.

While I agree about the constitution setting requirements to be a president or run for that office, I would posit that the 2nd amendment doesn't specifically states restrictions who cannot own a firearm we do have boatloads of laws in place to control possession, age restriction, who cannot have them.
Why or how would the qualification to run or be a president be any different?

 

[Mr._Clark]

While I agree about the constitution setting requirements to be a president or run for that office, I would posit that the 2nd amendment doesn't specifically states restrictions who cannot own a firearm we do have boatloads of laws in place to control possession, age restriction, who cannot have them.
Why or how would the qualification to run or be a president be any different?

If the Republicans had passed a law in 2018 that said Donald Trump is the only person qualified to be president, would that be constitutional?

 

[Mr._Clark]

I'm with Trell on this question. Trump went far beyond his usual reckless & irresponsible behavior. His 'souvenir collection' from his White House days may be a result of his hoarding tendencies, but it also creates a serious threat to US national security. His intentions don't matter – neither does his being president. The Espionage Act makes it clear that Trump's acts constitute a serious violation of the law.

It's always been simple to guess Trump's mindset. His decisions seem to always be based on answers to this question:

• Can I make money or gain power with these documents?

Trump's actions emphasize the need for reforming how classified documents are handled. As an elected president, Trump immediately acquired full access to any & all classified information. All he had to do was ask for it. No vetting process is required of a president.

To get clearance at the highest levels, anyone else would have to go through an elaborate background investigation of his/her past. Police, past employers, coworkers, school officials, neighbors, and five non-family character references will all be interviewed. Questions requiring assessments would include these:

• Does this person have a criminal record, especially any felony convictions?
• Does this person have a clean employment record?
• Is this person considered honest or a frequent liar?
• Does this person spend a lot more money than he typically earns, have any unusual debts, especially gambling debts?
• Does this person have a alcohol or drug problem?
• Does this person prefer sex with the opposite or same sex?
• Does this person have any past affiliation with extreme or unusual political groups, foreign or domestic?
• Does this person have anything else that could create a risk for foreign agents to blackmail him/her?

Can we afford to grant full access to critical national defense information to elected politicians without any vetting process? Trump clearly would have failed a background investigation for a security clearance. Can we afford to allow someone, such as Trump, to gain unrestricted access to critical secrets?

Many years ago, in 1971, I had to go through a background investigation like this. My work in the navy required it. I find myself truly angered that Trump acts like he is above all laws, the Espionage Act in particular.

Keep in mind that I was speculating on a possible motive, not intent. The following is reasonably decent overview of the differences:

>>>Although motive and intent are often used interchangeably, they are distinct concepts in criminal law. Motive deals with an individual’s underlying reasons for committing a crime, whereas intent is concerned with their willingness to carry out specific actions related to the offense.

Definition of Motive

Usually, a person’s motive can be determined by looking at various factors leading up to the commission of the crime. For example, if Bill punched Barry, an examination of the facts might reveal that Barry had stolen Bill’s watch, giving Bill a motive for punching him. Although investigators may be able to determine a person’s motive, that does not link them to the crime; the prosecutor does not have to prove the defendant had a reason to engage in criminal behavior. However, a judge or jury may consider motive when hearing the case.

Definition of Intent

Intent refers to a person’s conscious decision to commit an act that violates state or federal laws. Generally, intent is an element of an offense that the prosecutor must prove. For example, in Florida, a person commits battery when they “actually or intentionally touch or strike another person..” or they “intentionally cause bodily harm to another person.” Returning to the example of Bill and Barry, if Bill was waving his hands in the air while telling a story and accidentally hit Barry, his actions were not intentional, and he would not be charged with battery. However, if he purposefully punched Barry, he may be charged.<<<

The Difference Between Intent and Motive? | The Webster Law Office

Although motive and intent are often used interchangeably, they are distinct concepts in criminal law. Learn more about the differences in this blog.

thewebsterlawoffice.com

In criminal cases, providing evidence of motive typically comes up in the context of convincing the finder of fact (e.g. a jury) that the defendant was the person who committed the crime. In a variation of the example above, if Barry was killed but it was unclear who did it, his stealing of Bill's watch would give Bill a motive and make it more likely that Bill did it, but there would still need to be evidence Bill actually did it with the necessary intent.

In other words,, in terms of criminal liability it doesn't really matter what Trump's motivation was. The DOJ does not need to convince a jury he wanted to make money or gain power with the documents (your proposed motivation). The DOJ also does not need to convince a jury he's an egotistical wack job (my proposed motivation).

 

[mtrycrafts]

If the Republicans had passed a law in 2018 that said Donald Trump is the only person qualified to be president, would that be constitutional?

Most likely not.

 

[Mr._Clark]

A couple thoughts on the Special Master situation.

It seems to me several issues in this case are being conflated in the court filings and in the recent court opinion.

One of the primary issues is Trump's assertion of executive privilege. A second is ownership of the documents that were retrieved from Mar-a-Lago. A third is the Presidential Records Act (PRA).

Trump is asserting that he can assert executive privilege against the execute branch itself. In a sense, he is asserting that the documents were protected by executive privilege "at birth" while he was president, and he is the only person that can waive it, even though he is now a private citizen.

This is a bit odd on the face of it, because Trump is a private citizen, so what gives him the power to invoke executive privilege against the executive branch itself? Unfortunately, this is not quite as clear as it might appear because the Supreme Court in Nixon v. Administrator of General Services did state in dictum that a former president does potentially retain some limited executive privilege:

Richard M. NIXON, Appellant, v. ADMINISTRATOR OF GENERAL SERVICES et al.

www.law.cornell.edu

To my mind it would be absurd for a court to conclude that a former president could assert executive privilege with regards to classified documents and thereby prevent a current administration from having access to the documents. These documents are prepared by employees of the executive branch to enable the executive branch to carry out the responsibilities of the executive branch. The dictum in the Nixon case appears to be there because the court didn't want to make an across-the-board ruling that executive privilege cannot be applied against the executive branch itself, even though the court held that executive privilege didn't apply to the documents at issue in that case. I have not researched this issue, but I'm not aware of a single case in which a court upheld a claim of executive privilege by a former president against the executive branch when the executive branch waived the privilege. Thus, even for non-classified documents, an assertion of executive privilege strikes me as being extremely weak.

A practical problem with appointing a special master to determine what is covered by executive privilege is that there is no law defining what would be protected by it. Every court case I'm aware of has held that, in so many words "We don't know what (if anything) might be covered by executive privilege, but we do know that the documents at issue in this case are not covered by executive privilege." In theory, a special master might be able to put some documents that are not covered in one pile, and create another pile of documents that are "unknown" because the documents are not similar to any other prior cases involving executive privilege.

In terms of privilege vs ownership, these are separate issues but the court seems to be conflating them (Trump's lawyers are doing their best to conflate them). A successful assertion of a privilege means that the information (evidence) cannot be entered at trial. For example, if my lawyer decides to communicate with me by writing on a government-owned vehicle, and I take a picture of the writing on the vehicle, I might be able to keep the content of the writing from being entered as evidence at trial on the basis that the information is attorney-client privileged. However, that does not mean that I now own the government's vehicle. In other words, even if Trump is successful in keeping the contents of some of the documents from being used as evidence, it doesn't mean he owns the documents themselves or the information in the documents.

By way of example, if a former president walked out of the White House with detailed plans for a top secret aircraft that required billions of taxpayer dollars to develop, does anyone think the former president could auction off the plans to the highest bidder, domestic or foreign?

There also seems to be some confusion about how the PRA fits in. A lot of the discussion seems to be based on the notion that the PRA somehow supersedes the other federal laws dealing with defense information, concealing evidence, etc. I can't see how this could be true. The PRA does not purport to grant former presidents immunity to other laws.

The PRA does give a former president some discretion to retain personal documents. Again, I can't see how this would supersede other laws. If a president stole a car while president and he made a written record of it, he could very well assert that this document is personal and he's therefore not required to turn it over under the PRA. However, this would not mean that the document could not be seized during a law enforcement investigation into the stolen car. The PRA does not create some sort of super-duper ownership/immunity law that protects former presidents from all other laws.

At the risk of creating a straw man, Trump's lawyers seem to be arguing that a former president can take any documents he wants with him after he leaves office, and this private citizen somehow has special powers and privileges to do anything he wants with these documents (and any information in the documents), and everyone else on the planet is powerless to do anything about it. No law or court case says anything remotely similar to this, but Trump's lawyers seem to be "all in" at this point because they really do not have anything else.

And that's my huge opinion.

 

[mtrycrafts]

He lost his clearance when he left office.
Also, all the government documents are not his, never was. In office he may have created some or by others, still belongs to the government, I would think.
I believe the judge is the one who inserted the Executive Privilege into the case, not Trump's lawyers.
What a mess. All the DOJ manpower used because of him. Just wow.

 

[MaxInValrico]

A couple thoughts on the Special Master situation.

It seems to me several issues in this case are being conflated in the court filings and in the recent court opinion.

One of the primary issues is Trump's assertion of executive privilege. A second is ownership of the documents that were retrieved from Mar-a-Lago. A third is the Presidential Records Act (PRA).

Trump is asserting that he can assert executive privilege against the execute branch itself. In a sense, he is asserting that the documents were protected by executive privilege "at birth" while he was president, and he is the only person that can waive it, even though he is now a private citizen.

This is a bit odd on the face of it, because Trump is a private citizen, so what gives him the power to invoke executive privilege against the executive branch itself? Unfortunately, this is not quite as clear as it might appear because the Supreme Court in Nixon v. Administrator of General Services did state in dictum that a former president does potentially retain some limited executive privilege:

Richard M. NIXON, Appellant, v. ADMINISTRATOR OF GENERAL SERVICES et al.

www.law.cornell.edu

To my mind it would be absurd for a court to conclude that a former president could assert executive privilege with regards to classified documents and thereby prevent a current administration from having access to the documents. These documents are prepared by employees of the executive branch to enable the executive branch to carry out the responsibilities of the executive branch. The dictum in the Nixon case appears to be there because the court didn't want to make an across-the-board ruling that executive privilege cannot be applied against the executive branch itself, even though the court held that executive privilege didn't apply to the documents at issue in that case. I have not researched this issue, but I'm not aware of a single case in which a court upheld a claim of executive privilege by a former president against the executive branch when the executive branch waived the privilege. Thus, even for non-classified documents, an assertion of executive privilege strikes me as being extremely weak.

A practical problem with appointing a special master to determine what is covered by executive privilege is that there is no law defining what would be protected by it. Every court case I'm aware of ha held that, in so many words "We don't know what (if anything) might be covered by executive privilege, but we do not that the documents at issue in this case are not covered by executive privilege." In theory, a special master might be able to put some documents that are not covered in one pile, and create another pile of documents that are "unknown" because the documents are not similar to any other prior cases involving executive privilege.

In terms of privilege vs ownership, these are separate issues but the court seems to be conflating them (Trump's lawyers are doing their best to conflate them). A successful assertion of a privilege means that the information (evidence) cannot be entered at trial. For example, if my lawyer decides to communicate with me by writing on a government-owned vehicle, and I take a picture of the writing on the vehicle, I might be able to keep the content of the writing from being entered as evidence at trial on the basis that the information is attorney-client privileged. However, that does not mean that I now own the government's vehicle. In other words, even if Trump is successful in keeping the contents of some of the documents from being used as evidence, it doesn't mean he owns the documents themselves or the information in the documents.

By way of example, if a former president walked out of the White House with detailed plans for a top secret aircraft that required billions of taxpayer dollars to develop, does anyone think the former president could auction off the plans to the highest bidder, domestic or foreign?

There also seems to be some confusion about how the PRA fits in. A lot of the discussion seems to be based on the notion that the PRA somehow supersedes the other federal laws dealing with defense information, concealing evidence, etc. I can't see how this could be true. The PRA does not purport to grant former presidents immunity to other laws.

The PRA does give a former president some discretion to retain personal documents. Again, I can't see how this would supersede other laws. If a president stole a car while president and he made a written record of it, he could very well assert that this document is personal and he's therefore not required to turn it over under the PRA. However, this would not mean that the document could not be seized during a law enforcement investigation into the stolen car. The PRA does not create some sort of super-duper ownership/immunity law that protects former presidents from all other laws.

At the risk of creating a straw man, Trump's lawyers seem to be arguing that a former president can take any documents he wants with him after he leaves office, and this private citizen somehow has special powers and privileges to do anything he wants with these documents (and any information in the documents), and everyone else on the planet is powerless to do anything about it. No law or court case says anything remotely similar to this, but Trump's lawyers seem to be "all in" at this point because they really do not have anything else.

And that's my huge opinion.

They'll make up anything to suit their purposes. The President is not a king.

 

[Mr._Clark]

He lost his clearance when he left office.
Also, all the government documents are not his, never was. In office he may have created some or by others, still belongs to the government, I would think.
I believe the judge is the one who inserted the Executive Privilege into the case, not Trump's lawyers.
What a mess. All the DOJ manpower used because of him. Just wow.

In a sense, he never had a security clearance, but former presidents have traditionally been allowed access after they leave office. Biden (wisely in my opinion) barred Trump:

>>>WASHINGTON — President Biden said on Friday that he would bar his predecessor, Donald J. Trump, from receiving intelligence briefings traditionally given to former presidents, saying that Mr. Trump could not be trusted because of his “erratic behavior” even before the Jan. 6 attack on the Capitol.

The move was the first time that a former president had been cut out of the briefings, which are provided partly as a courtesy and partly for the moments when a sitting president reaches out for advice. Currently, the briefings are offered on a regular basis to Jimmy Carter, Bill Clinton, George W. Bush and Barack Obama.<<<

Biden Bars Trump From Receiving Intelligence Briefings, Citing ‘Erratic Behavior’ (Published 2021)

President Biden said there was “no need” for former President Donald J. Trump to get the briefings, traditionally given to ex-presidents as a courtesy and to keep them informed if their advice is needed.

www.nytimes.com

Somewhat off topic, I'm curious why Biden has (apparently) not declared all documents in Trump's possession that had been classified as being classified as a way to nullify Trump's claim that he had declassified them. If Trump still has some documents that had been classified, it would make his continued possession of them a crime, even if Trump somehow managed to show that he had previously declassified the documents.

Biden could do it without acknowledging that any documents had been declassified (e.g. "To the extent any claim is made by Trump that documents in his possession were declassified by him while he was president, I hereby reverse any and all such declassification measures.")

One potential downside is that it could lead to an argument by Trump's lawyers that Biden's actions implicitly acknowledge that Trump had the power to declassify the documents. But, this isn't anything that a little lawyerly word massage couldn't cure (I'm trying, and failing, to resist the urge to comment on a happy ending after the word massage).

 

[Swerd]

He lost his clearance when he left office.

In a sense, he never had a security clearance …

Trump was allowed full access to see any state secrets because he was president, but he never had a security clearance in the sense that anyone else would have. He never went through the vetting process of a background investigation. That's the case for all presidents. They get access only because they were elected president.

If he had a background investigation, he would have been denied a clearance for at least these reasons:

• He had huge debts, including some very large loans from Deutsche Bank, which has been linked to unwarranted Russian involvement. That alone would make him likely to be blackmailed by a foreign government. So would other suspicious aspects of his history with Vladimir Putin.
• He has a long history of suspicion of tax evasion.
• He has a long history of stiffing contractors.
• He has a long history of suspicion of sexual abuse, possibly assault.
• He would have almost certainly lied to investigators during his background interview, or refused to answer their questions. The law allows you to avoid answering questions to prevent self-incrimination, but no law allows you to lie or refuse to answer questions for security clearance interviews.

 

[Alex2507]

 

[Alex2507]

 

[Trell]

DOJ have said earlier that they would seek an emergency relief if the Trump approved judge did not let them resume reviewing the seized documents at latest today. I guess DOJ will do so now.

>>>A U.S. judge on Thursday refused to let the Justice Department immediately resume reviewing classified records seized by the FBI from Donald Trump's Florida estate in an ongoing criminal investigation, siding with the former president.<<<

Judge rules for Trump, blocks review of seized classified records

A U.S. judge on Thursday refused to let the Justice Department immediately resume reviewing classified records seized by the FBI from Donald Trump's Florida estate in an ongoing criminal investigation, siding with the former president.

www.reuters.com

Judge appoints special master, rejects DOJ bid to delay Mar-a-Lago ruling

Aileen Cannon appointed Raymond Dearie, a senior judge in the Eastern District of New York, to lead an independent review of the seized materials.

www.politico.com

https://www.washingtonpost.com/national-security/2022/09/15/trump-mar-a-lago-special-master-review/

 

[mtrycrafts]

DOJ have said earlier that they would seek an emergency relief if the Trump approved judge did not let them resume reviewing the seized documents at latest today. I guess DOJ will do so now.

>>>A U.S. judge on Thursday refused to let the Justice Department immediately resume reviewing classified records seized by the FBI from Donald Trump's Florida estate in an ongoing criminal investigation, siding with the former president.<<<

Judge rules for Trump, blocks review of seized classified records

A U.S. judge on Thursday refused to let the Justice Department immediately resume reviewing classified records seized by the FBI from Donald Trump's Florida estate in an ongoing criminal investigation, siding with the former president.

www.reuters.com

Judge appoints special master, rejects DOJ bid to delay Mar-a-Lago ruling

Aileen Cannon appointed Raymond Dearie, a senior judge in the Eastern District of New York, to lead an independent review of the seized materials.

www.politico.com

https://www.washingtonpost.com/national-security/2022/09/15/trump-mar-a-lago-special-master-review/

Well, they may not be classified in the first place.
From a Trump Judge. Brainless.

 

[MaxInValrico]

Well, they may not be classified in the first place.
From a Trump Judge. Brainless.

Utterly clueless. If the government says something is classified, it is. It's that simple and there is no dispute about it.

This is what judicial activism looks like. Take note.

 

[ryanosaur]

Utterly clueless. If the government says something is classified, it is. It's that simple and there is no dispute about it.

This is what judicial activism looks like. Take note.

Nope…
Judicial activism is only when a liberal judge rules counter to conservative sensibilities.
When a conservative judge rules counter to any common sense interpretation of precedent or outright makes up their own rules, it is “law and order!”

Hypocrisy knows no bounds.

 

[mtrycrafts]

And, this brainless is on a federal bench for life?

 

[Trell]

And, this brainless is on a federal bench for life?

She appears to be a caricature of a Trumpist judge. Do note there have been many Trump appointed judges going against Trump, election fraud cases comes to mind.

Recently I read an article of a lawyer having experience with judge Cannon in court describing her as "very bright, very conservative and very inexperienced". That is, she is unqualified to be a federal judge.

That lawyer wants to remain anonymous in case he/she has to argue a case in front of Cannon again.

 

[mtrycrafts]

She appears to be a caricature of a Trumpist judge. Do note there have been many Trump appointed judges going against Trump, election fraud cases comes to mind.

Recently I read an article of a lawyer having experience with judge Cannon in court describing her as "very bright, very conservative and very inexperienced". That is, she is unqualified to be a federal judge.

That lawyer wants to remain anonymous in case he/she has to argue a case in front of Cannon again.

Hopefully the 11th circuit court has better judges even though 6 were appointed by Trump. Maybe they can put her in her place.

 

[Mr._Clark]

In the appeal, the DOJ raised the potential ethical problem I've been harping on.

>>>The Justice Department’s filing Friday at the 11th Circuit makes clear that prosecutors continue to object strongly to any role for a special master in connection with potentially classified documents. In addition, prosecutors suggest that a portion of one of Cannon’s orders directing that Trump’s lawyers be provided with copies of all the seized records is another improper intrusion on the Justice Department’s prerogatives.

“Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought,” prosecutors wrote.

Prosecutors did not elaborate on the reference to “witnesses,” but one attorney involved in Trump’s drive to limit prosecutors’ access to the records, Evan Corcoran, was also involved in preparing an affidavit submitted to DOJ in June claiming that all the documents marked classified had been turned over to the government. Prosecutors say that was not true.<<<

Justice Dept. asks appeals court to restore access to Trump raid documents

The DOJ's widely expected escalation of the legal fight came one day after a Trump-appointed judge rebuffed prosecutors’ request for a stay.

www.politico.com

From the DOJ's motion:

>>>[N]either Plaintiff nor the court has cited any authority suggesting that a former President could successfully
invoke executive privilege to prevent the Executive Branch from reviewing its own records.<<<

https://www.politico.com/f/?id=00000183-48f7-dd78-adb3-6dff488e0000

If the judge's position is correct, a former president can violate the law by taking any documents he wants with him when he leaves office, even documents that were prepared by intelligence agencies to assist the executive branch in carrying out its duties with regards to national security. And, if the judge is correct, as a private citizen, the former president can then invoke executive privilege against the current executive branch itself (even though the executive branch itself has made it clear it not asserting executive privilege) to block (at least for a time) not only criminal investigations but also national security investigations, and also block the executive branch from accessing intelligence documents that were prepared to assist the executive branch in carrying out its duties.

In other words, the judge thinks a private citizen has the unique power (not held by any other human in existence), to prevent the executive branch from accessing material that is necessary for the executive branch to perform its constitutional role (national defense), even if the material in question was specifically prepared to enable the executive branch to perform ies responsibilities under the constitution.

The notion that any legal entity (let alone a private citizen) has these awesome superpowers is absurd.

The United States v. Nixon decision is the root of the problem. This decision was very poorly worded. The Supreme Court needs to do away with the dictum in the Nixon case suggesting that a former president can assert executive privilege against the executive branch itself.