The past couple of days covering the ongoing scandal of donald trump hoarding a number of boxes containing government documents in violation of several laws in the US Code had seen a few twists.
trump's lawyers - some of them newly hired and almost none of them with experience regarding national security matters - had made various court filings insisting on a "Special Master" be assigned by the judge - who happens to be a trump appointee - to go through all the documents seized by the FBI for possible "privileged" information belonging to trump. I'll defer to Emptywheel to explain how wrong the whole thing is:
Yesterday, five days after their first attempt to submit a whack filing asking for (among other things) a Special Master to review the seized documents — but not for attorney-client privilege, but for Executive Privilege (documents that, by definition, belong at the Archives) — and after some polite prodding from an wildly pro-Trump Judge, Aileen Cannon, they submitted their second attempt.
I’m not going to go through it in depth this time... But here are two key details. First, in response to one of the really helpful prods from Judge Cannon, Trump’s lawyers confessed that, no, they hadn’t thought to formally inform DOJ about this lawsuit before she reminded them that’s necessary...
But, two days after she nudged them to do so, Trump’s lawyers decided to call Jay Bratt, and asked him if he’d really like formal notice that they want to sue him to prevent him from doing his job.
He did.
So sometime on Monday, maybe — that’ll be 21 days after the FBI seized 27 boxes from Trump’s hotel, more than three times as long as it took for FBI to find 184 unique pieces of evidence that Trump violated the Espionage Act back in May — DOJ will have formal notice that this is going on, which would be the earliest that Judge Cannon could conceivably say, “Stop what you’re doing!!”
But she won’t, because first she’s going to give DOJ a chance to weigh in, even if on accelerated schedule.
With that in mind, here’s the second point. On their second attempt, Trump’s lawyers managed to ask for the thing they needed to do if they really wanted a Special Master: to ask for an injunction... I’m not sure they’ve made this ask properly. At this point, 18 days after the search, it’s probably not even worth the effort figuring it out. The point, though, is how this will work. 21 days after the search of Trump’s house, 17 days after DOJ told Trump they’re going to pursue some other option to access the stuff already identified as attorney-client privileged (one of which might be asking Reinhart to allow them to access it), and 14 days after Trump started getting stuff — his passports — that was out of scope of the investigation, is the first moment that they will have formally told a judge, “Emergency!!! We need a Special Master!!!”
Emptywheel is spelling out that there's a time limit to these things, and trump's people kept being too slow about it. However:
Update: Two significant developments. First, Judge Cannon has issued an order to the government — which has not yet been served — to respond to Trump’s motion by Tuesday... Meanwhile, Director of National Intelligence Avril Haines has told various Committee Chairs and Ranking Members that the IC is conducting a classification review and what sounds like a preliminary damage assessment. That suggests the stolen documents are already out to the agencies.
Update (to the earlier update): In DOJ’s initial response, they’ve noted that the privilege review is already done...
This is basically the lead-up to the Justice Department's filing last night of their response to trump's lawyers asking for a Special Master injunction: You're too slow, it's too late, you're toast. Back again to Emptywheel in a different must-read article about how THAT went:
DOJ’s response to Trump’s request for a Special Master last night did a bunch of things — most notably, debunking lies Trump’s camp had been telling...
In yesterday’s filing, the government demonstrated what properly protecting NDI looks like in practice. The example that has — deservedly — gotten the most attention is the description of case agents and National Security Division attorneys having to get additional clearances to access this information.
In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents...
In short, "this stuff was so classified our people had to get extra super-clearance just to do their jobs of finding out just what the hell happened." Back to Emptywheel:
DOJ also described that the classified materials that have been seized have been segregated and properly stored.
All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information.
DOJ intends that these special protections will extend to these court proceedings: DOJ demanded that if Judge Cannon decides to appoint a Special Master, she pick someone who is already cleared at the TS/SCI level...
There's not a lot of those to begin with, and not a lot of them who would be favorable to trump after all the damage he's done. Above all, what Emptywheel is pointing to is the reality that the FBI has already had enough to time to sort the documents to where they had already filtered out anything that could be construed as "privileged" for trump, which shouldn't have been that much to begin with.
Thrown in for the judge's review were various photographs documenting just how the FBI served their warrant and how the found the classified materials at Mar-A-Lago. See this?
 |
Pictured provided by the Department of Justice,
shared via AP Newswire |
Remember the saying "A picture is worth a thousand words"? Here's the proof. These are documents reportedly recovered from trump's personal office - which was not a secured room - five of which are listed TOP SECRET, most of them with redactions covering certain pages to confirm that these are documents still considered classified.
Other than half of social media pointing out how hideous trump's choice of carpeting was, the other half of social media made up of lawyers and former/current military intelligence officers were pointing out how damaging this evidence is.
I'm with Betty Cracker at Balloon Juice about how damaging this is:
It does make Trump look bad, and that’s because he is bad. There’s no plausible excuse for taking the documents in the first place, refusing to turn them over when requested, returning some documents and concealing others and lying about that.
But aside from that, I’m so glad the photo was included because, contra Turley, some people really do need you to draw a picture for them, and the court isn’t the only audience here...
More broadly, the picture is a signal that DOJ lawyers understand exactly who they’re dealing with and how he has squirmed out of so many past jams. Trump is a squid who emits ink clouds of lies and chaos to escape danger. A picture cuts through all that bullshit...
At every turn in this saga, Trump did what you’d expect him to do — lie, bluster, rabble rouse, dispatch shoddy weasels to obfuscate on TV — and the DOJ cut him off at the knees every time. It’s not rocket surgery to predict what he’ll do, and not even a mouth as big as Tangerine Baal’s can ingest dozens of boxes of paper, so there was going to be evidence...
If you read closer - both the actual DOJ filings and the mood of the whole situation - you might notice that trump is running out of time (as well as places to hide). In the DOJ filing itself, the department asks that if Judge Cannon does play along with trump's demands and appoint a Special Master that she does so by specific calendar deadlines: Provide a list of candidates for the department to approve by September 7 (a week from now) and ensure the Special Master complete review by September 30 (end of the month).
Attorney General Garland does not want trump to play the DELAY DELAY DELAY game like he always does. There is an unstated implication that the Justice Department has already gathered enough evidence to find criminal charges against trump and others who may have helped him violate the US Code covering Presidential Records, Espionage, and Obstruction.
It's not a question of IF, it's a question of WHEN.
The only thing saving trump now is this court review for a Special Master, but even that won't be long enough to reach 2023 if it happens. The next best thing saving trump is the courtesy the Justice Department gives political figures during election cycles by holding off on any criminal charges or reveling any investigations so as to avoid influencing voter turnout. (FBI Director Comey violated that courtesy when he reported Hillary's emails were under review back in 2016, and there's solid evidence it affected media coverage and voter turnout, and Comey's been eating shit for that ever since). trump himself is not up for a vote but he is a dominant leader of the Republican Party, so the courtesy applies.
So trump may have some time between now and November 8 to breathe a little. After the votes are counted, he's gonna be running for cover like a Thanksgiving turkey, and he may even be eating that meal in a jail cell awaiting his bail hearing.
Let Justice Be Done, everybody.
