Mar-A-Lago Legally Searched by FBI

[Gunnar]

In perhaps the most damning assessment yet from any of Trump's former associates, William Barr, on Fox, says there's no legitimate reason for classified docs to be at Mar-a-Lago and doubts Trump declassified everything.

“No. I can’t think of a legitimate reason why they should have been – could be taken out of government, away from the government if they are classified,” Barr said of the documents found at former President Donald Trump’s Florida resort.

“I, frankly, am skeptical of the claim that [Trump] declassified everything,” Barr added.

“Because frankly, I think it’s highly improbable, and second, if in fact he sort of stood over scores of boxes, not really knowing what was in them and said ‘I hereby declassify everything in here,’ that would be such an abuse and that shows such recklessness, it’s almost worse than taking the documents,” he said.

Barr also rejected criticism that the FBI search was in the wrong because it was “unprecedented.”

“Let me just say, I think the driver on this from the beginning was loads of classified information sitting in Mar-a-Lago. People say this [raid] was unprecedented – well, it’s also unprecedented for a president to take all this classified information and put them in a country club, okay,” Barr said.

“And how long is the government going to try to get that back? They jawboned for a year, they were deceived on the voluntary actions taken, they went and got a subpoena, they were deceived on that they feel, and the facts are starting to show that they were being jerked around,” he added. “And so how long, you know, how long do they wait?”

Asked about his stance on Trump’s request for a special master to review documents pertaining to the FBI raid at Mar-a-Lago, Barr called the idea a “red herring” and “waste of time.”

“Well, I think the whole idea of a special master is a bit of a red herring,” Barr said, adding, “at this stage, since they have already gone through the documents, I think it’s a waste of time.”

Barr said there’s a “legitimate concern” about protecting documents that could be related to Trump’s private lawyer communications, but it does not “appear to be much of it,” and noted he’s “not sure you need a special master to identify it.”

“What people are missing is that all the other documents taken, even if they claim to be executive privilege, either belong to the government because they are government records – even if they are classified, even if they are subject to executive privilege – they still belong to the government and go to the Archives,” he added.

Barr doubled down on the comments in a phone interview Friday with The New York Times, which reported he laughed when asked what he thought of Trump’s argument for needing a special master in the case and said that he doesn’t think one “is called for.”

As more information is revealed, Barr said, “the actions of the department look more understandable.”

“It appears that there’s been a lot of jerking around of the government,” he told the Times. “I’m not sure the department could have gotten it back without taking action.”

[¥akaSteelhead]

https://www.msnbc.com/all-in/watch/fold ... 7640901659

Trump themed bar, in trump tower, proudly on display - classified cover sheet.

[Binger]

Does anyone see the parallels between the MAL search and the Steele Dossier and the BYU/Duke volleyball story? There are a lot. There are so many.

[Res Ipsa]

https://www.msnbc.com/all-in/watch/fold ... 7640901659

Trump themed bar, in trump tower, proudly on display - classified cover sheet.

For clarification, the cover sheets (folders) are not classified. And when a document is declassified, the cover sheets are commonly reused. So, no classified information has been disclosed and no laws were broken.

[Binger]

https://www.msnbc.com/all-in/watch/fold ... 7640901659

Trump themed bar, in trump tower, proudly on display - classified cover sheet.

For clarification, the cover sheets (folders) are not classified. And when a document is declassified, the cover sheets are commonly reused. So, no classified information has been disclosed and no laws were broken.

Day one: DOJ and FBI leaked that Trump had nuclear secrets and is guilty of espionage.
Week Two: Trump has piles of classified docs.
Week Three: Trump had empty folders marked classified.
Next Week: Melania Trump shopped at Victoria's Secret.

[Res Ipsa]

For any masochists out there, the transcript of the oral argument available here: https://www.documentcloud.org/documents ... transcript

The transcript cleared up one question I had: although the search warrant says that the Filter team would be used for documents in the ‘45 office, the Filter team was actually used for all docs seized in the search. in my opinion, that was a good decision.

After reading the transcript, I think the jurisdiction issue is a pretty big deal, which Trump’s lawyers really don’t have an answer for. I’d defer to Dr. Exiled in this, but I don’t think the fourth amendment issues come into play until Trump is charged with a crime. A potential criminal defendant has very little in terms of rights to examine evidence during the investigative phase.

Part of Trump’s counsel’s strategy is to conflate the fourth amendment issues in a suppression hearing with the motion he actually filed. They argued that the government was trying to completely deprive Trump of the right to challenge the constitutionality of the search. It’s pretty clear from the judge’s questions that they were successful in confusing her on that issue, but the government’s lawyers did a good job cleaning that issue up. That’s not a knock on the judge. This motion is really a square peg in a round hole, and I doubt she’s ever seen anything quite like it in her career.

In contrast, she clearly was up to speed on the executive privilege issue. She’s been taken to task by some legal experts for challenging the government’s claim that Nixon v. USA held that a former President can’t exercise executive privilege. I went back and read the case and I think she’s right. The case doesn’t hold that executive privilege does not apply to a former president. It holds that whatever interest a former President may have, the Public Records Act doesn’t violate it. The government can certainly use the case to argue that the privilege belongs to the office and can’t be used to withhold documents from the executive branch. But Nixon involved a record keeping Act as opposed to a criminal investigation, so there are potential distinctions to be drawn.

I think the legally correct result would be for Judge Cannon to hold that she has no subject matter jurisdiction and dismiss the case. Or alternatively, dismiss based on venue. The PRA was specifically intended to be the way disputes between NARA and former presidents are resolved. The only reason it hasn’t is that Trump kept possession of records he was required to turn over to NARA, jerked NARA around about turning them over, turned over some but not all without disclosing what he kept, withheld documents he was required to produce under a grand jury subpoena, and submitted a false affidavit from his designated records custodian that he’d produced all responsive documents. Trump can file NARA lawsuit in the district court in DC.

I’m glad she’s taking her time.

[Doctor CamNC4Me]

Does anyone see the parallels between the MAL search and the Steele Dossier and the BYU/Duke volleyball story? There are a lot. There are so many.

Bing Bong’s Law!

- Doc

[¥akaSteelhead]

I think arguing executive privilege for someone who is no longer the executive seems pretty obvious. Several courts have ruled on Trump's previous claims of privilege re materials going to the Jan 6 committee. Non of them have found them compelling.

https://www.lawfareblog.com/trump-loses ... -privilege

[Doctor CamNC4Me]

From the transcript - Trump’s lawyer:

Your Honor, just briefly, you are in a challenging but yet, respectfully, a unique position to restore order, to help restore public confidence in the impartial administration of justice. You know, the temperature is very high on both sides here, very high. There is a significant lack of trust between the parties. And I'm not speaking out of turn and I'm not being accusatory, I just think there is. I think it is evident from what you see out in the public eye.

Sigh … totally not a veiled threat. Regardless, the government makes a good point that ODNI has to make a damage assessment. The problem with that is that’s a fairly exhaustive process just for one document. It’s not like they look at the document and are like, “Oh, yah. This one made a lot of grave damage to the United States. See there? It has TS markings and it names a CIA handler, so therefore it made lots and lots of damage to us. Ouch.”

No. They have to backward track the chain of custody of each and every document. People are interviewed. Meetings are had to piece together the route a document has made. Legal is involved. Working groups are created where people are taken away from other jobs they need to do and are assigned to a damned fact-finding mission. Reports are made. More meetings to make sure everything they’re doing is in kine with laws and policies. More interviews. And then guilty parties are hemmed the “F” up; you have to find the guy or gal who was holding the bag, so to speak, and then probably charge them. This ODNI thing will probably take a year or more. I’m not sure how else it could go.

- Doc

[Res Ipsa]

I think arguing executive privilege for someone who is no longer the executive seems pretty obvious. Several courts have ruled on Trump's previous claims of privilege re materials going to the Jan 6 committee. Non of them have found them compelling.

https://www.lawfareblog.com/trump-loses ... -privilege

That’s how some have portrayed it, but that’s not what the Supreme Court has said. From the article you linked to:

This does not, to be clear, mean that a former President can never assert executive privilege. The Supreme Court decided that issue long ago, holding in Nixon v. GSA that a former President retains some authority to assert executive privilege. But a former President’s assertion of executive privilege, the court concludes, is an insufficient basis to override the judgment of the current president and Congress that the documents should be disclosed.

Although the article tries to minimize the effect of what the Supreme Court did in the recent case, declaring that the part of the Court of Appeals opinion that addressed the right of a former President to assert the privilege, rendered what the Court of Appeals held on that topic as without any value as precedent.

So, the holding of the case discussed in the law fare article is that the privilege would not apply even if Trump had won the election. Executive privilege is a qualified privilege, and the Court held that the subpoenaed material was not protected.

Personally, I think there is some sense in allowing a former President to assert the privilege. If the purpose is to protect the office, a former President could have an interest in doing so. I also think that the deference the Court shows to the current President over the past President makes sense.

The DC Court of Appeals opinion does, I think, indicate that there is very little chance Trump will be able to use executive privilege to prevent use of any presidential papers as evidence against him. If the legislative branch has an interest that makes the privilege inapplicable, the executive branch’s interest in law enforcement should be more than sufficient.

I should add that the PRA anticipates executive privilege by former presidents and provides the means of resolving claims of that type.