Mar a Lago raided by FBI

lovinthehd

lovinthehd

Audioholic Jedi
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.
The current SC?
 
M

Mr._Clark

Audioholic Field Marshall
The current SC?
Anything is possible I guess, but the issue would need to be appealed to the Supreme Court as a "live" issue (i.e. an issue that is necessary to resolve the case).

In my prior post I inadvertently referred to United States v. Nixon (1974)("Nixon 1") rather than Nixon v. Administrator of General Servs (1977)("Nixon 2"). Nixon 1 was decided while Nixon was president. The court acknowledged that executive privilege exists, but the court held that executive privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” In other words, a sitting president cannot invoke executive privilege to block the DOJ from gaining access to documents in a criminal trial.

At first glance, it looks like Trump should lose based on Nixon 1 because it's a criminal case. However, Trump's lawyers will undoubtedly argue that Nixon 1 doesn't control because the records themselves (e.g. audio tapes) contained evidence of crimes in Nixon 1, whereas in the Trump case the classified documents themselves (presumably) do not contain evidence of a crime.

If the appeals court rejects the Trump argument, the issue in Nixon 2 is a moot point and the court would not need to reach the issues in Nixon 2. However, if the court agrees with the Trump argument, the Nixon 2 issue would need to be addressed (i.e. the issue of whether or not a private citizen can invoke executive privilege against the executive branch itself with regards to documents marked classified).

Notice that the DOJ needs to argue both Nixon 1 and Nixon 2 because there are, at least in theory, ways to distinguish both cases. If the dictum in Nixon 2 were to be overruled, this would not be necessary. In other words, if the Supreme Court were to create a bright line rule that a private citizen cannot assert executive privilege against the executive branch, the need for the DOJ to argue either of the Nixon cases would disappear.

In general, the Supreme court avoids overruling prior cases unless it has to in order to reach the outcome it wants. Thus, realistically, even if the Nixon 2 issue does reach the Supreme court, I suspect the court would just apply Nixon 2 and hold that executive privilege does not apply to the documents at issue rather than overrule Nixon 2. Because Nixon lost in Nixon 2, it's difficult to conceive of a fact pattern that would require the Supreme Court to overrule Nixon 2 in order to hold that Trump loses.

In theory, the court could decide that Nixon 2 creates excessive difficulties during criminal investigations, and determine that it is a "live" issue on that basis. I'm not sure what would happen in this scenario. My best guess is that the court would procedurally restrict the circumstances and timing of executive privilege claims.

Thus, the evil dictum in Nixon 2 will probably be with us for a long time.
 
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Trell

Trell

Audioholic Ninja
I guess DOJ wants to have a chat with Eric Herschmann, assuming they have not had one already.

>>>A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.

The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.

The account of the conversation is the latest evidence that Mr. Trump had been informed of the legal perils of holding onto material that is now at the heart of a Justice Department criminal investigation into his handling of the documents and the possibility that he or his aides engaged in obstruction.<<<

 
M

Mr._Clark

Audioholic Field Marshall
I guess DOJ wants to have a chat with Eric Herschmann, assuming they have not had one already.

>>>A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.

The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.

The account of the conversation is the latest evidence that Mr. Trump had been informed of the legal perils of holding onto material that is now at the heart of a Justice Department criminal investigation into his handling of the documents and the possibility that he or his aides engaged in obstruction.<<<

From the article:

>>>Some of Mr. Trump’s advisers, including informal ones such as Tom Fitton, of the conservative legal advocacy group Judicial Watch, have told the former president that he could hold onto the documents as personal records, according to people briefed on their discussions.<<<

Fitton, who is not a lawyer, reportedly based is legal advice to Trump on a case he was involved with in which his private group had sued to get access to audio tapes from Clinton's presidency.


This is what Fitton said at the time:

>>>"We respectfully disagree with the Court," Judicial Watch president Tom Fitton told POLITICO via e-mail Thursday. "The idea that a president could spirit official recordings and documents out of the White House and that there is nothing that can be legally done about it is a misreading of the Presidential Records Act. It is ironic that a law passed in response to the Nixon tapes controversy would allow Bill Clinton to keep tapes of his official actions secret and unavailable to the American people. And it is shameful that the ‘most transparent administration in history’ would defend this gamesmanship. We are considering an appeal.”<<<

Here's what Fitton said more recently when Trump took of government documents with him:

>>>No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” he yells. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.” <<<


Fitton may suffer from various things, but a foolish consistency is not one of them.
 
GO-NAD!

GO-NAD!

Audioholic Spartan
From the article:

>>>Some of Mr. Trump’s advisers, including informal ones such as Tom Fitton, of the conservative legal advocacy group Judicial Watch, have told the former president that he could hold onto the documents as personal records, according to people briefed on their discussions.<<<

Fitton, who is not a lawyer, reportedly based is legal advice to Trump on a case he was involved with in which his private group had sued to get access to audio tapes from Clinton's presidency.


This is what Fitton said at the time:

>>>"We respectfully disagree with the Court," Judicial Watch president Tom Fitton told POLITICO via e-mail Thursday. "The idea that a president could spirit official recordings and documents out of the White House and that there is nothing that can be legally done about it is a misreading of the Presidential Records Act. It is ironic that a law passed in response to the Nixon tapes controversy would allow Bill Clinton to keep tapes of his official actions secret and unavailable to the American people. And it is shameful that the ‘most transparent administration in history’ would defend this gamesmanship. We are considering an appeal.”<<<

Here's what Fitton said more recently when Trump took of government documents with him:

>>>No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” he yells. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.” <<<


Fitton may suffer from various things, but a foolish consistency is not one of them.
I suspect this case may take a backseat to other Trump news over the next few days...
 
Trell

Trell

Audioholic Ninja
M

Mr._Clark

Audioholic Field Marshall
I suspect this case may take a backseat to other Trump news over the next few days...
I'm assuming you're referring to the fraud lawsuit filed in NY:


It's obviously not a trivial matter, but I'm somewhat skeptical because these types of cases tend to be difficult to prove:

>>>Yet her case against him could be difficult to prove. Property valuations are often subjective, and the financial statements include a disclaimer that they have not been audited. And at a trial, his lawyers will most likely emphasize that Deutsche Bank and his other lenders were hardly victims; all of his loans are either current or were paid off, some early.
Mr. Trump also famously does not use email, so any instructions he might have given his employees about the company’s financial statements might not be in writing. The lack of a damning email — or a witness inside his company willing to testify against him — might complicate her effort to show that he intentionally used his financial statements to defraud lenders and insurers.<<<

Who knows, it could eventually lead to Trump taking a big hit but I'm not holding my breath.

I noticed Trump invoked his favorite "witch hunt" accusation:

>>>Mr. Trump has cast each inquiry as part of a never-ending “witch hunt” and denied all wrongdoing.<<<

To my mind there may well be a "witch" and the prosecutors may well succeed in one or more of the cases.
 
ryanosaur

ryanosaur

Audioholic Overlord
More telling is the fact that she felt enough prosecutable evidence exits to refer to the Feds and IRS for further investigation. Not being familiar with how these matters work, I doubt that she would make such referrals lightly: her professional and political reputation/existence may very well rest on the veracity of such claims.
 
Trell

Trell

Audioholic Ninja
The NY lawsuit is 280 pages, if I heard correctly in the CNN clip above, with many examples.

I’m sure the media will start digging into that in the weeks to come, much to the Republicans chagrin as there are other things than yet another Trump case they want to talk about.
 
TLS Guy

TLS Guy

Seriously, I have no life.
I watched the whole presentation by the New York AG. On multiple occasions Trump had two valuations on the properties, one very high and one very low. He used the high ones for loans at a preferred rate of interest. He even grossly exaggerated the square footage of some properties! He used the low valuations to reduce his tax obligations. This will not be hard to prove, as two valuations on the same property can not possibly be that far apart. The AG has really done her homework and has Trump by the short and curlies.

I think not only Trump but his children and may be some others are in serious trouble. I bet when this is over the family won't have two pennies to rub together, and probably more than him will do a perp walk. This will probably play out over a long time frame due to complexity and the amount of court and investigative time it will take. But this whole family is now in deep trouble.

I would also bet that with all those top secret documents he absconded with Trump has, or was about to commit, high treason. He think the level of criminality that will eventually be proven, will be absolutely staggering.
 
M

Mr._Clark

Audioholic Field Marshall
Hot off the press, Trump lost his appeal in the Mar-a-Lago case.

>>>WASHINGTON — A federal appeals court on Wednesday restored the Justice Department’s access to documents with classified markings that had been seized last month from former President Donald J. Trump’s Florida residence, handing a victory to federal investigators in their efforts to examine Mr. Trump’s hoarding of sensitive government records.

In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit blocked part of an order by a federal judge that had temporarily barred the department from using the classified materials in its inquiry into whether Mr. Trump illegally retained national defense documents and obstructed the government’s repeated efforts to recover them.<<<


The article includes a link to the decision. The appeals court unanimously ruled against Trump on every single factor and every single legal issue.


Appealing this to the Supreme Court would be a fool's errand, but Trump is the man for the job.
 
Trell

Trell

Audioholic Ninja
Hot off the press, Trump lost his appeal in the Mar-a-Lago case. [ ...] The appeals court unanimously ruled against Trump on every single factor and every single legal issue. [...] Appealing this to the Supreme Court would be a fool's errand, but Trump is the man for the job.
Some talking heads says Trump often wants to just delay so he might very well appeal.

I wonder how Trump supporters are going to spin this as two of the three judges where appointed by Trump and the decision where unanimous.
 
GO-NAD!

GO-NAD!

Audioholic Spartan
I'm assuming you're referring to the fraud lawsuit filed in NY:


It's obviously not a trivial matter, but I'm somewhat skeptical because these types of cases tend to be difficult to prove:

>>>Yet her case against him could be difficult to prove. Property valuations are often subjective, and the financial statements include a disclaimer that they have not been audited. And at a trial, his lawyers will most likely emphasize that Deutsche Bank and his other lenders were hardly victims; all of his loans are either current or were paid off, some early.
Mr. Trump also famously does not use email, so any instructions he might have given his employees about the company’s financial statements might not be in writing. The lack of a damning email — or a witness inside his company willing to testify against him — might complicate her effort to show that he intentionally used his financial statements to defraud lenders and insurers.<<<

Who knows, it could eventually lead to Trump taking a big hit but I'm not holding my breath.

I noticed Trump invoked his favorite "witch hunt" accusation:

>>>Mr. Trump has cast each inquiry as part of a never-ending “witch hunt” and denied all wrongdoing.<<<

To my mind there may well be a "witch" and the prosecutors may well succeed in one or more of the cases.
As I understand it, the Trump Org offered to settle the case, but the AG refused, so she must feel she has a strong case.
 
M

Mr._Clark

Audioholic Field Marshall
Even if Trump declassified the documents before he left office, this wouldn't change the nature of the documents or the information in them.
From the 11th Circuit decision:

>>>the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them<<<

The court's statement is in the context of Trump's request for return of the documents. In order to prevail, Trump would need to prevail based on the factors listed in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975).

This is Richey factor (2) listed in the 11th Circuit decision:

>>>The factors a court should consider when deciding whether to exercise
jurisdiction include (1) whether the government “displayed a
callous disregard for . . . constitutional rights” in seizing the items
at issue; (2) “whether the plaintiff has an individual interest in and
need for the material whose return he seeks;” (3) “whether the
plaintiff would be irreparably injured by denial of the return of the
property;” and (4) “whether the plaintiff has an adequate remedy
at law for the redress of his grievance.”<<<

Nevertheless, the court's statement that "the declassification argument is a red herring because declassifying an official document would not change its content" undoubtedly applies to the criminal laws, Sections 793, 2071, and 1519, listed in the search warrant:

>>>Because Section 793 predates the modern system of classifying sensitive material, it does not use the phrase classified information. Instead, the statute protects information and material “relating to” or “connected with” national defense—often called national defense information. . . .
Another statute cited in the Mar-a-Lago search warrant and affidavit is 18 U.S.C. § 2071, which generally prohibits, among other things, willfully and unlawfully concealing, removing, mutilating, obliterating, or destroying a “record,” “paper,” or “document” that is “filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States.” . . .
The Mar-a-Lago warrant and affidavit also lists 18 U.S.C. § 1519—a statute criminalizing certain acts of destruction of evidence in obstruction of certain federal investigations or proceedings. Congress intended § 1519 to have a broad scope, and prosecutors have used it to charge an array of behaviors aimed at undermining investigations, including creating false reports, hiding objects, and shredding documents. <<<

https://crsreports.congress.gov/product/pdf/LSB/LSB10810

In other words, as of right now "declassification" is completely irrelvant to any legal issue that has been raised by the DOJ.

Having said that, Trump would need to prove he declassified the documents if the DOJ were to indict him on additional charges under Section 1924:

https://www.law.cornell.edu/uscode/text/18/1924

If the DOJ indicts Trump under Sections 793, 2071, and 1519, I'd expect them to also indict him under 1924.
 
highfigh

highfigh

Audioholic Slumlord
Admit that you were caught brown handed. ;)
Nah, it wasn't that bad.
I watched the whole presentation by the New York AG. On multiple occasions Trump had two valuations on the properties, one very high and one very low. He used the high ones for loans at a preferred rate of interest. He even grossly exaggerated the square footage of some properties! He used the low valuations to reduce his tax obligations. This will not be hard to prove, as two valuations on the same property can not possibly be that far apart. The AG has really done her homework and has Trump by the short and curlies.

I think not only Trump but his children and may be some others are in serious trouble. I bet when this is over the family won't have two pennies to rub together, and probably more than him will do a perp walk. This will probably play out over a long time frame due to complexity and the amount of court and investigative time it will take. But this whole family is now in deep trouble.

I would also bet that with all those top secret documents he absconded with Trump has, or was about to commit, high treason. He think the level of criminality that will eventually be proven, will be absolutely staggering.
Square footage should be easy to find, if someone has been asked to loan money and if it's any kind of mortgage, a title search is required. That would include checking the state's GIS database, which will show many details of the buildings in question. Anyone who loans money in a mortgage deal without due diligence wither owns the lending company or will soon find themselves out of a job.
 

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