1. #82741
    The Undying Breccia's Avatar
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    DOJ asks judge to withhold about 100 documents from the special master, and more importantly, allowing them to continue to read them.

    "They're kind of vital to national security," they said, "that's why Trump wasn't allowed to take them. Also, there is a criminal exception, thanks Nixon, and please infer whatever you want about us saying that under oath."

    Oh, and they reminded the judge ("politely") that Trump doesn't own any of the government documents.

    - - - Updated - - -

    DWAC delays vote, and spends $3 million to stay alive until they get quorum.

  2. #82742
    The Undying cubby's Avatar
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    Quote Originally Posted by tehdang View Post
    Simply what it says. The privilege endures the president's tenure and can be asserted and tested in Court.

    Google and read the court decision if you need further information from the Supreme Court. I won't copy and paste the entire opinion. I would also ask you to google and read multiple articles if you need further details about what "attorney-client privilege" and "executive privilege" mean, as different from a judge evaluating and/or dismissing the claim, and as different from a FBI refusing to instruct its taint team to consider seized documents potentially protected by executive privilege. I think much of your confusion would be resolved by re-considering the difference between "The FBI refused to acknowledge the existence of potentially privileged documents" and "A future court decision might consider but reject the assertion of executive privilege over documents."
    What I'm asking you, specifically, is what does that line from Nixon vs GSA mean in this case? Using the precedent case US vs Nixon as well. How are you saying this applied to the situation with the documents seized from MaL by the FBI?

    (and apologies if you've summarized your position like this previously, and I missed it - you can just link the post and I'll find it from there)

  3. #82743
    Quote Originally Posted by Breccia View Post
    My bet? The error is "we published a book filled with objective falsehoods and don't want to get sued".
    Is that a thing? Publishers being held liable for the bullshit some unhinged propagandist author puts in a book? Don't think I've ever heard of that.

  4. #82744
    Quote Originally Posted by tehdang View Post
    Simply what it says. The privilege endures the president's tenure and can be asserted and tested in Court.

    Google and read the court decision if you need further information from the Supreme Court. I won't copy and paste the entire opinion. I would also ask you to google and read multiple articles if you need further details about what "attorney-client privilege" and "executive privilege" mean, as different from a judge evaluating and/or dismissing the claim, and as different from a FBI refusing to instruct its taint team to consider seized documents potentially protected by executive privilege. I think much of your confusion would be resolved by re-considering the difference between "The FBI refused to acknowledge the existence of potentially privileged documents" and "A future court decision might consider but reject the assertion of executive privilege over documents."
    Problem is, this isn't like Attorney Client privilege. Executive Privilege is only about communications between the sitting president and others he talks to so that he can do his job. However, it is only the current sitting president that can assert that, not previous ones.

    Anything communications, writings, executive orders, correspondence, presents or anything else that involves the sitting President belongs to the Office of the Presidency, not the actual person who is President. Thing is, Biden could easily state it isn't privileged documents as far as Executive Privilege goes.

    Thing is, Trump already tried to test it in court. He failed, numerous times.

  5. #82745
    Quote Originally Posted by s_bushido View Post
    Is that a thing? Publishers being held liable for the bullshit some unhinged propagandist author puts in a book? Don't think I've ever heard of that.
    Yes. The whole thing about sec 230 is that social media platforms aren't held to the same standards as publishers. If you publish books with a bunch of defamatory claims, you can be held responsible.
    Quote Originally Posted by Rudol Von Stroheim View Post
    I do not need to play the role of "holier than thou". I'm above that..

  6. #82746
    The Undying Breccia's Avatar
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    Quote Originally Posted by s_bushido View Post
    Is that a thing? Publishers being held liable for the bullshit some unhinged propagandist author puts in a book? Don't think I've ever heard of that.
    Yes, publishers can be liable for the content they willingly publish. Remember, Dominion is going after FOX News.

  7. #82747
    Quote Originally Posted by s_bushido View Post
    Is that a thing? Publishers being held liable for the bullshit some unhinged propagandist author puts in a book? Don't think I've ever heard of that.
    They should slap a big ole sticker on it states "This book is a work of fiction. Nothing in it is true in any way."

    Make that a condition of publishing the book.

  8. #82748
    Quote Originally Posted by gondrin View Post
    They should slap a big ole sticker on it states "This book is a work of fiction. Nothing in it is true in any way."

    Make that a condition of publishing the book.
    This doesn't work if the work still defames real people. Netflix recently settled for something like this centered around queen's gambit where they tried to claim the whole thing was fictionalized. They settled after the judge said they couldn't use that argument because, despite netflix arguing the whole thing was fictionalized and people understood it not to be true, they were still using the person's real name and showed a reckless disregard for the truth.

    So if you're going to try to use the argument that the book is a work of fiction, you'd better not reference real people at all.
    Quote Originally Posted by Rudol Von Stroheim View Post
    I do not need to play the role of "holier than thou". I'm above that..

  9. #82749
    The Undying Breccia's Avatar
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    Quote Originally Posted by cubby View Post
    What I'm asking you, specifically, is what does that line from Nixon vs GSA mean in this case? Using the precedent case US vs Nixon as well. How are you saying this applied to the situation with the documents seized from MaL by the FBI?
    Can Trump claim executive privilege to shield Mar-a-Lago documents?

    U.S. courts have not definitively ruled on the extent to which former presidents can assert executive privilege. The U.S. Supreme Court last year side-stepped the question in Trump’s bid to block White House records from the Jan. 6 committee, leaving it a gray area in the law.

    Former President Richard Nixon attempted to claim the privilege to prevent White House records from being made public after his resignation. The Court in that case said Nixon could be heard on his privilege claims but ultimately rejected his attempt to shield the records, finding the sitting president is “in the best position” to make privilege determinations.

    To eventually win a court order shielding the records, Trump would first have to establish that he can assert the privilege even though he is no longer in office, said Heidi Kitrosser, a law professor at Northwestern University. She said the former president's team has only a "very weak argument" to do so, noting the lack of clarity from the Supreme Court.

    Trump would then have to overcome Biden's position that executive privilege does not apply to the materials, and must show any harm from privilege violations outweighs the government's need for the documents in its criminal probe into Trump's possession of classified records, Kitrosser said.

    In the case over presidential records at Trump’s Mar-a-Lago resort, Biden deferred the decision on whether privilege applies to the National Archives and Records Administration. In a May letter to Trump’s private counsel, months before the raid, the national archivist said it "would not be viable" for Trump to assert executive privilege, as the records would only be viewed by other parts of the executive branch.

    Allowing someone who is not in the executive branch to decide whether the privilege applies to records is unprecedented, experts said.

    “Having an appointed third party decide between an incumbent’s and a former president’s claim violates the very constitutional basis of the privilege as a presidential power,” said Mark Rozell, dean of the Schar School of Policy and Government at George Mason University.
    1) No ruling about Nixon has any meaning here. Nixon tried to assert privilege while not in office, and his claims were rejected. Trump is trying to assert new privilege, and the courts have specifically ruled against that. If Trump had asserted privilege before he left office, that would be a different story, but not one that's currently taking place.
    2) Immediately after the courts ruled against Nixon in the context of this current case (and not some other, unrelated case), Congress passed a law Trump is now accused of breaking. Not only did Nixon lose, he made things worse for Trump, not better.
    3) Pretty much any legal scholar has said Trump has a very difficult battle here, if not impossible, because his case is unPresidented and he has no proven leg to stand on. For every one that backs Trump (literal dick-sucking not required) there's ten who disagree. Including Barr.
    4) The entire issue is irrelevant for the current situation. NARA, as listed above, wanted everything back that Trump stole, including privileged material, because Trump isn't allowed to have it. At best, Trump can try to block it from being subpoena'd by the Jan 6th committee, but that wasn't the warrant that was served. There is no reasonable situation in which Trump not only steals privileged material, but gets to keep it.
    4a) Well, except lawyer-client, but the FBI has already separated those out.
    5) And there is still a crime exception. Biden can read everything, and if he sees privilege is blocking his ability as head of the Executive Branch to enforce the law, he can remove the privilege. If Trump continues to push the issue, Biden might simply ask Garland's opinion on the subject (knowing the answer ahead of time) and follow his advice.

    And finally:

    6) When someone tries to say "you don't understand lawyer-client privilege" to an actual lawyer, that response should be treated with the lack of respect it deserves.
    7) When someone posts a statement, that statement is repeatedly challenge with solid, viable sources, and they respond with "I don't have time to explain, Google it yourself" they do not have an argument. They have a talking point, abd probably one they don't understand, possibly by grabbing a single line from a random court case that happens to have their search keywords in it.

    Not even tehdang believes tehdang.

    - - - Updated - - -

    Quote Originally Posted by Ripster42 View Post
    So if you're going to try to use the argument that the book is a work of fiction, you'd better not reference real people at all.
    Also, the author would very likely take offense to his work being called false.

  10. #82750
    Quote Originally Posted by Ripster42 View Post
    Yes. The whole thing about sec 230 is that social media platforms aren't held to the same standards as publishers. If you publish books with a bunch of defamatory claims, you can be held responsible.
    hmm...I see.

  11. #82751
    Quote Originally Posted by Edge- View Post
    At least they're delivering some laughs by triggering Trump. Because outside of that they're largely pretty fuckin useless at doing much more beyond hoovering up some liberal donor dollars because most of them probably can't find gainful employment within their former political party operations.
    Don't underestimate the potential impact of goading Trump into PR fiascos.

  12. #82752
    The Undying Breccia's Avatar
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    So, the DOJ's counterfiling is now public. I'm okay at reading legalese, obviously @cubby would be better, but...it reads like "you fucked up".

    Here's just an example:

    Finally, Plaintiff himself declined to assert any claim of executive privilege over the
    classified records at the point when it would have been appropriate to do so. On May 11,
    2022, Plaintiff’s custodian of records was served with a grand jury subpoena seeking “[a]ny
    and all documents or writings in the custody or control of Donald J. Trump and/or the Office
    of Donald J. Trump bearing classification markings.” D.E. 48 Attachment C. To the extent
    that Plaintiff believed that any such records could be subject to a valid assertion of executive
    privilege, he should have advised the government of such a claim at that time and could have
    attempted to pursue such a claim through a motion to quash. But despite having several weeks
    to respond to the subpoena, Plaintiff did not do so.
    Instead, on June 3, 2022, Plaintiff’s
    counsel produced a set of classified records to the government, and Plaintiff’s custodian
    certified that “[a]ny and all responsive documents” had been produced after a “diligent
    search.” D.E. 48 Attachment E. Plaintiff cannot now maintain—following the government’s
    seizure of additional classified records that Plaintiff failed to produce—that classified records
    obtained in the search, which were responsive to the grand jury subpoena, are shielded from
    the government’s review by executive privilege. And his failure to raise any such claim in
    response to the subpoena both undercuts his entitlement to equitable relief and further
    underscores that no plausible claim can be made now.
    Yeah, this is a solid point. "If the items were really privileged, he would have said so before". And there's 18 pages of that.

    The DOJ does cite the Nixon case, which 100% backs their claim, because the documents are part of a criminal investigation. Which this is.

    First, the government is likely to succeed in its appeal of the Order as it applies to
    classified records. Indeed, the government is likely to succeed even under the Court’s own
    reasoning, which focused principally on Plaintiff’s “personal documents.” D.E. 64 at 9; see id.
    at 12-13, 14-16, 20-21. Plaintiff does not and could not assert that he owns or has any
    possessory interest in classified records; that he has any right to have those government
    records returned to him; or that he can advance any plausible claims of attorney-client
    privilege as to such records that would bar the government from reviewing or using them.

    And although this Court suggested that Plaintiff might be able to assert executive privilege as
    to some of the seized records, Supreme Court precedent makes clear that any possible
    assertion of privilege that Plaintiff might attempt to make over the classified records would be
    overcome by the government’s “demonstrated, specific need” for that evidence. United States
    v. Nixon, 418 U.S. 683, 713 (1974) (“United States v. Nixon”)
    . Among other things, the classified
    records are the very subject of the government’s ongoing investigation.
    The DOJ basically give the judge a week to change her mind, or they'll appeal an instantly win.

  13. #82753
    Quote Originally Posted by Breccia View Post
    So, the DOJ's counterfiling is now public. I'm okay at reading legalese, obviously @cubby would be better, but...it reads like "you fucked up".

    Here's just an example:



    Yeah, this is a solid point. "If the items were really privileged, he would have said so before". And there's 18 pages of that.

    The DOJ does cite the Nixon case, which 100% backs their claim, because the documents are part of a criminal investigation. Which this is.



    The DOJ basically give the judge a week to change her mind, or they'll appeal an instantly win.
    And they better win on appeal. This would be such a terrible precedent to set no matter who is or was in office.

  14. #82754
    Based on the backlash even among conservative circles I don't think just assuming it would be upheld because the appeal courts are Republican favoured is a fir position.

    This appears to be just 1 rogue judge.
    It ignores such insignificant forces as time, entropy, and death

  15. #82755
    Quote Originally Posted by Gorsameth View Post
    Based on the backlash even among conservative circles I don't think just assuming it would be upheld because the appeal courts are Republican favoured is a fir position.

    This appears to be just 1 rogue judge.
    A judge who was appointed only because of her age. She had no experience at all. The only requirements was being on a list for the Federalist Society and being really young in order to be a judge for decades.

  16. #82756
    I Don't Work Here Endus's Avatar
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    Quote Originally Posted by s_bushido View Post
    hmm...I see.
    Here's the basic difference between publishing and internet sites protected by Section 230;

    Publishing only happens with direct approval. You submit, editors look the work over and choose whether or not they'll publish. This is even true of self-publication companies, who won't edit the material, but will check it over to be sure it fits within their ethical guidelines, precisely because the law would hold them liable if they didn't and something unlawful got published.

    What that would look like on a site like, say, MMO-Champion, is if every single forum post got flagged for moderator approval, and a mod had to come along and personally review and approve every single post. Obviously, posting would grind to a halt and the site would die as a result. The Section 230 protections exist precisely because the model is unlike real-world publication and there's no oversight/review before "publication"; doing so simply is not feasible. If you had a digital journal which published digital articles after board review, those wouldn't get the same protections, because despite being entirely Internet-based, it's still following that normal publication approach.


  17. #82757
    Quote Originally Posted by Endus View Post
    Here's the basic difference between publishing and internet sites protected by Section 230;

    Publishing only happens with direct approval. You submit, editors look the work over and choose whether or not they'll publish. This is even true of self-publication companies, who won't edit the material, but will check it over to be sure it fits within their ethical guidelines, precisely because the law would hold them liable if they didn't and something unlawful got published.

    What that would look like on a site like, say, MMO-Champion, is if every single forum post got flagged for moderator approval, and a mod had to come along and personally review and approve every single post. Obviously, posting would grind to a halt and the site would die as a result. The Section 230 protections exist precisely because the model is unlike real-world publication and there's no oversight/review before "publication"; doing so simply is not feasible. If you had a digital journal which published digital articles after board review, those wouldn't get the same protections, because despite being entirely Internet-based, it's still following that normal publication approach.
    Very well explained. There are too many people who don't understand what S230 allows and what the 1st Amendment allows for this subject.

  18. #82758
    The Undying Breccia's Avatar
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    Quote Originally Posted by Endus View Post
    Here's the basic difference between publishing and internet sites protected by Section 230;
    I'll also add, that even online sites have a limit, but barring criminal activity (no conspiring to murder JFK on Twitter) they get to decide what that limit is. That limit is not the First Amendment. Facebook is not a government agency. Anyone who claims their First Amendment rights are being stifled by a social media ban is lying, trolling, or a fucking dumbass.

  19. #82759
    I Don't Work Here Endus's Avatar
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    Quote Originally Posted by Breccia View Post
    I'll also add, that even online sites have a limit, but barring criminal activity (no conspiring to murder JFK on Twitter) they get to decide what that limit is. That limit is not the First Amendment. Facebook is not a government agency. Anyone who claims their First Amendment rights are being stifled by a social media ban is lying, trolling, or a fucking dumbass.
    I mean, there's a certain legal standard they can be held to; if someone posts child porn (illegal content, using an incontrovertible example), and it's reported to staff, and they either choose not to remove it or drag their feet unreasonably in responding, that can result in legal consequences. But the key part there is that the material has to be brought to staff attention, and you have to prove they were negligent in their response to those reports. If it isn't reported, they can plead ignorance, precisely because there's too much content for manual oversight, but if it is, that excuse goes away and there's essentially a timer that starts for a reasonable response. That's all in Section 230; it isn't just a blanket immunity.


  20. #82760
    The Undying Breccia's Avatar
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    Sometimes it's worth burning a CNN point.

    Trump loses in court again. He had a RICO lawsuit against Clinton and the Democrats for conspiring to lie about him and Russia.

    The lawsuit was thrown out on the grounds that it was bullshit.

    "Oh, come on, what did the judge really say?"

    ...really? Okay. Fine. I'll start at the beginning.

    First, the pleading itself. A complaint filed in federal court must contain “a short and plain
    statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). Each
    allegation must be simple, concise, and direct. Each claim must be stated in numbered paragraphs,

    Plaintiff’s Amended Complaint is 193 pages in length, with 819 numbered paragraphs. It
    contains 14 counts, names 31 defendants, 10 “John Does” described as fictitious and unknown
    persons, and 10 “ABC Corporations” identified as fictitious and unknown entities. Plaintiff’s
    Amended Complaint is neither short nor plain, and it certainly does not establish that Plaintiff is
    entitled to any relief.


    More troubling, the claims presented in the Amended Complaint are not warranted under
    existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme
    Court
    . To illustrate, I highlight here just two glaring problems with the Amended Complaint. There
    are many others
    .
    And it goes on like that. For sixty-five pages.

    Page nine:

    The Amended Complaint also contains impermissible fictitious-party pleading. “As a
    general matter, fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson,
    598 F.3d 734, 738 (11th Cir. 2010)
    Trump had forty-one fictitious parties. He was allowed zero.

    Page fourteen:

    Plaintiff’s conclusory allegations to the contrary are belied by the material cited in his own Amended Complaint.
    Pages twenty-three to twenty-five are about how Trump missed the statute of limitations, because his tweets weren't court filings. No really, there's an entire page of footnotes on how wrong Trump was on that one.

    Pages thirty-five and thirty-six:

    For one, Plaintiff has not alleged facts that bring the DNS internet traffic at issue within
    the statutory definition of a “trade secret.” Plaintiff suggests that because DNS data could reveal
    a compilation of sensitive information about him, it is a trade secret.13 (DE 237 at 31). That is
    incorrect. To constitute a “trade secret,” as that term is statutorily defined, “the owner [must have]
    taken reasonable measures to keep such information secret” and the information must “derive[]
    independent economic value, actual or potential, from not being generally known to, and not being
    readily ascertainable through proper means by, another person who can obtain economic value
    from the disclosure or use of the information.” 18 U.S.C. 1839(3). Critically, Plaintiff fails to allege
    that he or anyone else could or did derive economic value from information regarding the
    frequency with which his computers interacted with certain other computers. See Kairam v. West
    Side GI, LLC, 793 F. App’x 23, 28 (2d Cir. 2019) (affirming dismissal of DTSA claim in part for
    failure to allege how the purported trade secret derives independent economic value from
    nondisclosure). He alleges that such data has political value and that Clinton, as his political rival,
    sought it for political purposes. (Am. Compl. ¶ 138). But this does not suffice to plausibly allege
    a trade secret, which must derive economic value from nondisclsoure.
    Almost every single paragraph is how fucking badly Trump screwed this up. Every fact is wrong. Every filing is wrong. Every precedent is miscited. Every term is misunderstood, often to a hilarious degree.

    Those examples? They weren't even my favorites. I just grabbed three pages at random, assuming Trump fucked on them. I was right, three for three. I had to throw in the tweets thing because it was just too Trumpian.

    There's a reason this lawsuit skipped past the news -- it's fat orange garbage. I'd @cubby on this just to give him a laugh on Friday. Seriously you have to read this shit, it's like Plan 9 From Outer Space where Trump is Ed Wood.

    Finally, the conclusion:

    Fundamentally, Plaintiff cannot state a RICO claim without two predicate acts, and, after
    two attempts, he has failed to plausibly allege even one. Plaintiff cannot state an injurious
    falsehood claim without allegations of harm to his property interests. And Plaintiff cannot state a
    malicious prosecution claim without a judicial proceeding, but he unsuccessfully attempts to
    misconstrue, misstate, and misapply the law to do so anyway. Moreover, Plaintiff’s statutory
    claims premised on the DNS data rest on a misconstruction of the conduct those laws proscribe
    and the harms they remediate. Because Plaintiff was unable to cure his Complaint even with all its
    shortcomings clearly laid out for him, and because most of Plaintiff’s claims are not only
    unsupported by any legal authority but plainly foreclosed by binding precedent as set forth by the
    Supreme Court and the Eleventh Circuit, I find that amendment would be futile and that this case
    should be dismissed with prejudice as to the Defendants that have raised merits arguments.
    Just read that. Read that! It's amazing that the judge didn't have Trump's lawyers dragged out of the courtroom in shackles.

    I mock Trump left and right for not paying people, which has led to this: a "lawsuit" so ridiculously poor I state without exaggeration I could have done a better job than this.

    - - - Updated - - -

    You know it's bad for the GOP when the National Review is scared. I'll spare you the second wall of text, but basically, by the DOJ saying "we need to read these and we need to read them right now" they were basically announcing, under oath, "We are forming a case against Donald Trump, and the urgency is because he did something illegally stupid."

    - - - Updated - - -

    MMO-C's third least favorite lawyer, former Trump lawyer Ty Cobb, who--

    "Wait, wasn't he the guy with the mustache?"

    No...okay well yes, it's incredible, but he was last seen walking away from representing Trump in the Mueller investigation, quitting in disgust because Trump refused to do anything reasonable.

    And now, he's giving interviews on CBS News that Trump is in trouble because he refused to do anything reasonable.

    Ty Cobb, who was a White House lawyer during former President Donald Trump's administration, suspects the Justice Department investigation into whether Trump mishandled White House documents — some of them highly classified — is really about a broader inquiry into potential crimes related to the Jan. 6, 2021, Capitol riot and efforts to overturn the 2020 election.

    "It is about the bigger picture, the Jan. 6 issues, the fake electors, the whole scam with regard to the 'big lie' and the attempts to…cling to the presidency in a desperate fashion," Cobb said on this week's episode of "The Takeout" podcast.

    A clue for Cobb, a former federal prosecutor, was the scope of the warrant authorized to search Trump's Mar-a-Lago compound.

    "The search warrant is unusually large and broad," Cobb told CBS chief Washington correspondent Major Garrett. "It's very, very comprehensive in terms of the types of documents that the government could take."

    "For example, you can take any box that has a document. You can take any box adjacent to a box that has it," he said. "Those are pretty broad parameters."

    Cobb said he does not believe the documents investigation is the biggest threat.

    "I think Trump is in serious legal water, not so much because of the search, but because of the obstructive activity he took in connection with the Jan. 6 proceeding," Cobb said. "I think that and the attempts to interfere in the election count in Georgia, Arizona, Pennsylvania and perhaps Michigan. That was the first time in American history that a president unconstitutionally attempted to remain in power illegally."

    Cobb also thinks that Trump's actions around the Jan. 6 attack on the Capitol could lead him to be barred from running for the presidency again.

    "There is a simple way to disqualify President Trump," Cobb said. "He clearly violated the 14th Amendment of the Constitution's Article III when he gave aid and comfort and three hours of inaction with regard to what was happening on the grounds of the Capitol. That clearly gave aid and comfort to the insurrectionists."
    "Okay, that's bad. But at least he's treating Trump with the respect he des--"

    "I believe Trump to be a deeply wounded narcissist, and he is often incapable of acting other than in his perceived self-interest or for revenge," Cobb said. "I think those are the two compelling instincts that guide his actions."
    And remember, this was someone Trump hired on purpose. Quit within a year because Trump is, well, basically insane.

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