Category: “Dead Skunk in The Middle of The Road”

The New York Times

‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry

Charlie Savage – September 6, 2022

WASHINGTON — A federal judge’s extraordinary decision Monday to interject in the criminal investigation into former President Donald 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 the University of Texas.

Siding with Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the FBI 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.

Cannon, a Trump appointee who sits on the U.S. 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, 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 11th U.S. Circuit Court of Appeals in Atlanta, where 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.

“This would seem to me to be a genuinely unprecedented decision by a judge,” Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”

Born in Colombia in 1981, Cannon graduated from Duke University in 2003 and the University of Michigan Law School in 2007. After clerking for a Republican-appointed appeals court judge in Iowa, she worked as an associate for a corporate law firm for three years before becoming an assistant federal prosecutor in Florida.

In her Senate questionnaire, she described herself as having been a member of the conservative Federalist Society since 2005. Trump nominated her in May 2020, and the Senate confirmed her on Nov. 12, nine days after he lost reelection.

After Cannon was assigned to Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.

“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 NYU, said there was no basis for 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.

The department had argued that even if a special master were appointed, there would be no legal basis for that person to examine issues of executive privilege. It cited a 1977 Supreme Court case involving the papers of former President Richard Nixon, who had tried to use executive privilege to shield them even though the sitting president disagreed.

But Cannon wrote that she was not convinced and believed the Justice Department’s stance “arguably overstates the law.” In that case, she said, the Supreme Court also stated that former presidents retained some residual power to invoke executive privilege.

The Supreme Court also said the incumbent officeholder is in the best position to assess such issues. But Cannon wrote that the justices had not “ruled out the possibility” that a former president could ever prevail over the current one.

“Even if any assertion of executive privilege by plaintiff ultimately fails in this context,” she wrote, “that possibility, even if likely, does not negate a former president’s ability to raise the privilege as an initial matter.”

She did not address a 1974 Supreme Court case that upheld the Watergate prosecutor’s demand for White House tapes as part of a criminal investigation despite the attempt by Nixon, then the sitting president, to block it by asserting executive privilege.

“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Shane said, “they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.”

Cannon allowed a separate review of the documents, by the Office of the Director of National Intelligence, to continue. It is assessing the risk to national security that the insecure holding of sensitive documents at Mar-Lago may have caused.

David Alan Sklansky, a Stanford University law professor, said he was glad that work had been allowed to continue given its importance. But he said there was an inherent contradiction in allowing the executive branch to use the files for that purpose while blocking it from using them for an active criminal investigation.

“There is this odd situation where one part of the executive branch can use the materials and another not,” he said.

In reasoning that she had a basis to install a special master, Cannon relied heavily on a 1975 appeals court ruling. It held that courts had jurisdiction to decide whether to order the IRS to return a businessman’s records that he claimed had been taken unlawfully, and laid out a multipronged test for such situations.

One part of the test is whether the government had displayed a “callous disregard” for the constitutional rights of the person subjected to the search. On that issue, she sided with the Justice Department, which had obtained a warrant from a magistrate judge.

But she said the other parts of the test favored Trump. They included whether he had an individual interest in and need for the seized property, would be “irreparably harmed” by a denial of that request and lacked any other remedy.

While Trump does not own the government documents he repeatedly failed to return, the warrant permitted the FBI to take anything else of his that he had left in the same containers as evidence of how he stored sensitive information.

Cannon noted that a department report said this had included “medical documents, correspondence related to taxes and accounting information.”

“In addition to being deprived of potentially significant personal documents, which alone creates a real harm,” she wrote, Trump faced “an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.” A footnote insinuated that the Justice Department might leak those files to reporters.

In weighing such factors, she emphasized Trump’s status as a former president.

“As a function of plaintiff’s former position as president of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Cannon’s reasoning “thin at best” and giving “undue weight” to the fact that Trump is a former president.

“I find that deeply problematic,” he said, emphasizing that the criminal justice system was supposed to treat everyone equally. “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”

Samuel W. Buell, a Duke University law professor, agreed.

“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”

Daily Beast

It’s Over: Trump Will Be Indicted

Brad Moss – August 26, 2022

I have finally seen enough. Donald Trump will be indicted by a federal grand jury.

You heard me right: I believe Trump will actually be indicted for a criminal offense. Even with all its redactions, the probable cause affidavit published today by the magistrate judge in Florida makes clear to me three essential points:

(1) Trump was in unauthorized possession of national defense information, namely properly marked classified documents.

(2) He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago.

(3) He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant earlier this month.

Read the Redacted Mar-a-Lago Affidavit the Feds Just Released

That is the ball game, folks. Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury.

The cruelest irony for Trump is that it never needed to be this way.

Put aside that in the chaos following his election loss Trump’s team never undertook the normal procedure for properly sorting through and archiving his presidential records in coordination with the National Archives and Records Administration (NARA). Put aside that properly marked classified records were shipped to Mar-a-Lago and sat there for months until he began turning stuff over to NARA in late 2021.

If he had fully cooperated at that point, and returned all of the records to NARA last year, this likely never would have become a criminal matter. DOJ would have declined to take any action, notwithstanding the existence of the classified records, and it would have been a “no harm, no foul” situation. Just another minor story in the Trump saga of incompetence.

But Trump just could not bring himself to play by the rules. He turned over 15 boxes last January but did not turn over all the records. Political operatives from conservative organizations started whispering into his ear that he had legal precedent on his side to refuse to turn over the classified records to NARA (he did not). His lawyers surprisingly wrote a rather condescending letter to DOJ in May 2022, effectively arguing that even if there were still classified records at Mar-a-Lago the FBI lacked the authority to take any criminal action against Trump given his former status as president. Then, in June 2022 after the FBI executed a subpoena to recover more records at Mar-a-Lago, two Trump lawyers wrote (and one signed) a sworn affidavit reassuring the government there were no more classified records at the property.

We now know that statement was not true. The FBI found multiple more classified records, including some with markings for Top Secret/Sensitive Compartmented Information (TS/SCI) during the search this month, and not just located in the storage room with the other boxes of records. They found records located in different parts of Mar-a-Lago.

Of course, there are various arguments for why a prosecution might not succeed in this situation.

There is the contention by Trump and his allies that he declassified the documents, whether through a “standing order” or more specific verbal action. No evidence has been produced corroborating that assertion, and there certainly is no indication that the classification markings themselves were ever revised to reflect the declassification. The Trump lawyers in May certainly did not provide any such evidence in their letter to DOJ, and they similarly provided no evidence of it in their “motion” filed earlier this week in district court in Florida seeking a Special Master.

And that is before we even consider if the classification status would matter for an Espionage Act prosecution, which only requires that the information relate to the national defense.

Trump’s Coup Attempt Will Always Be a Way Worse Crime Than Stealing Documents

There is also the issue of selective political prosecution and supposed bad faith by the government in its decision to pursue the case. This is something that has been mentioned ad nauseum by Trump allies on cable news, and was briefly mentioned in the “motion” filed earlier this week in court. Lacking from those arguments is anything beyond rank speculation. That will not fly in court. Just ask Sidney Powell how well it works to try to litigate in court the way you argue on cable news. Hint: it does not go well.

All in all, this case should and in my opinion will result in an indictment. Sure, an indictment does not equal a conviction. Trump is still assumed innocent until proven guilty. There are unknown variables like whether the prosecution would occur in Florida or in D.C. We do not know what evidence Trump might have to substantiate his declassification claim. And we do not know what the courts would say about his various arguments.

Get the popcorn ready either way.

Bradley P. Moss is a Partner and national security attorney at the Washington, D.C. Law Office of Mark S. Zaid, P.C. 

Politico

‘It’s the accumulation’: The Jan. 6 hearings are wounding Trump, after all

David Siders – July 20, 2022

The conventional wisdom about the Jan. 6 committee hearings was that no single revelation was going to change Republican minds about Donald Trump.

What happened instead, a slow drip of negative coverage, may be just as damaging to the former president. Six weeks into the committee’s public hearing schedule, an emerging consensus is forming in Republican Party circles — including in Trump’s orbit — that a significant portion of the rank-and-file may be tiring of the non-stop series of revelations about Trump.

The fatigue is evident in public polling and in focus groups that suggest growing Republican openness to an alternative presidential nominee in 2024. The cumulative effect of the hearings, according to interviews with more than 20 Republican strategists, party officials and pollsters in recent days, has been to at least marginally weaken his support.

“It is definitely kind of this wet drip of, do you really want to debate the 2020 election again? Do you really want to debate what happened on Jan. 6?” said Bob Vander Plaats, the evangelical leader in Iowa who is influential in primary politics in the first-in-the-nation caucus state. “Frankly, I think what I sense a little bit, even among some deep, deep Trump supporters … there’s a certain exhaustion to it.”

Trump’s public approval rating among Republicans remains high as he prepares for a widely expected run for president again in 2024. He still tops most primary polls, and Republicans largely haven’t been persuaded by much of what the Jan. 6 committee is doing. They were more likely last month than last year — before the hearings began — to describe the events of Jan. 6 as a “legitimate protest.”

But for many Republicans, the ongoing, backward-looking call-and-response between the committee and Trump may nevertheless be getting old.

“I think what everybody thought was that the first prime-time hearing was such a non-event that that would continue,” said Randy Evans, a Georgia lawyer who served as Trump’s ambassador to Luxembourg. “But over the course of the hearings, the steadiness, the repetitiveness, has had a corrosive effect. You’d have to be oblivious to the way media works, the way reputations work, the way politics works, to not understand that it’s never the one thing. It’s the accumulation.”

Evans said, “This is all undoubtedly starting to take a toll — how much, I don’t know. But the bigger question is whether it starts to eat through the Teflon. There are some signs that maybe it has. But it’s too early to say right now.”

For more than a year after Trump lost the presidential election, his political durability was not even in question. But the committee hearings appear to have had an effect on Trump’s enormous fundraising operation, which has slowed in recent months. Florida Gov. Ron DeSantis, who may run in 2024, has been gaining on Trump in some polls, including in New Hampshire, the first primary state, where one recent survey had DeSantis statistically tied with Trump among Republican primary voters. Republicans are still poring over a New York Times/Siena College poll last week that showed nearly half of Republican primary voters would rather vote for a Republican other than Trump in 2024.

In a series of focus groups with 2020 Trump supporters from across the country since the riot at the Capitol on Jan. 6, 2001, Sarah Longwell, a moderate Republican strategist who became a vocal supporter of Joe Biden in 2020, for more than a year found about half of participants consistently said they wanted Trump to run again. But that number has fallen off since the hearings began, she said.

“We’ve had now three focus groups where zero people have wanted him to run again, and a couple other groups where it’s been like two people,” Longwell said. “Totally different.”

The Trump supporters in her focus groups are still dismissive of the hearings, Longwell said, “and I don’t think people are sitting down and being persuaded” by them.

However, she said, the hearings have “turned the volume up on the Trump baggage.”

“The other thing,” she said, “is I cannot tell you how much these Republican voters want to move on from the conversation of January 6^th.”

‘Political Theater’

That’s a far cry from the Republican view of the hearings when they started: Rep. Jim Banks (R-Ind.) derided what he called a “prime-time dud.” Jim Justice, the Republican governor of West Virginia, dismissed them as “political theater.” And Sen. Josh Hawley of Missouri called them a “complete waste of time.”

One reason that the hearings are resonating now is that even if Republicans don’t agree with the committee’s findings, they read polls. The percentage of Republicans who say Trump misled people about the 2020 election has ticked up since last month, while a majority of Americans say Trump committed a crime. Perhaps most problematic for Trump, 16 percent of Republicans in the Siena College survey said they would vote for someone else in the general election or aren’t sure what they will do in 2024 if Trump is the nominee.

That’s a relatively small segment of the Republican electorate, but a critical one in competitive states that will decide which party controls the White House.

“I think you’re starting to see the impact of the hearings, and just overall his behavior since he lost the election,” said Dick Wadhams, a former Colorado Republican Party chair and longtime party strategist.

“He’s got a hard-core base, and there’s no doubt about that,” said Wadhams. “I voted for him twice, I loved his accomplishments. But I do think he’s compromised himself into a situation where it would be very difficult for him to win another election for president.”

Electability concerns may loom especially large this year for Republicans, who view Biden as a beatable incumbent. His cratering public approval ratings, now hovering below 39 percent, are worse than Trump’s at this point in his presidency. One senior House Republican aide described the resonance of the Jan. 6 committee hearings as in part a product of the contrast they are drawing between “a golden opportunity to win back the White House in 2024 and the only person who might not be able to do it.”

A Trump spokesperson did not respond to a request for comment. Trump has regularly criticized the committee’s work as a partisan exercise. And because most other Republicans view it that way, too, it’s unlikely that many of Trump’s opponents will leverage the committee’s revelations explicitly in the run-up to 2024.

Proxy wars

Still, the Republicans who may run against Trump in 2024 are increasingly breaking with him as the midterm year drags on.

On Friday, former Vice President Mike Pence will campaign in Arizona for gubernatorial candidate Karrin Taylor Robson, while Trump that same day appears in the presidential swing state for Robson’s rival for the GOP nomination, former TV news anchor Kari Lake. Former New Jersey Gov. Chris Christie and former Secretary of State Mike Pompeo, among others, have split with Trump in midterm endorsements in other states. So has outgoing Maryland Gov. Larry Hogan, who engaged in proxy war with Trump in the gubernatorial primary held Tuesday in Hogan’s home state.

As much has anything, those midterm primaries – coinciding with the Jan. 6 committee hearings – have laid bare the willingness of Republicans in at least some cases to disassociate their adoration for Trump with support for him politically. Trump’s endorsement has pulled Republicans across the line in competitive primaries in places like Ohio and Pennsylvania, but his chosen candidates have flopped in other races, including in Georgia and Nebraska.

“The effect of the hearings will be negligible on Trump’s favorable ratings among Republicans,” said Whit Ayres, the longtime Republican pollster. “The ‘Always Trumpers’ and the ‘Maybe Trumpers’ are resolute in their insistence that they are paying no attention whatsoever to the hearings. It’s almost an article of faith among Republicans to say, ‘I am not paying attention to these hearings’.”

However, Ayres said, “The way it translates is that they believe that other candidates will carry less baggage … and that gets reinforced by what seeps into the political water from these hearings.

And as the Jan. 6 committee prepares for another hearing on Thursday, the ongoing focus on Trump’s behavior on Jan. 6 is now in the political waters.

John Thomas, a Republican strategist who works on House campaigns across the country, said that in recent conversations with state party chairs and Republican activists in numerous states, “almost to the T, and I don’t really care what state it’s in, they all say, ‘Love Trump, love his policies, wish he would just be a kingmaker.’ And that’s really a shift, because six months ago, a year ago, it was, ‘Trump’s got to run again, he’s the only one who can fight the swamp, drive the policy agenda.’”

“It’s not Trump hatred,” Thomas added. “It’s Trump fatigue. I think [the Jan. 6 committee hearings] reminds people to the degree that they’re tuning in that, eh, is this that important of an issue? No. But damn … And then Trump goes on his rants and it’s like, ‘We’re tired of it.’”