Mega-Thread: Trump Focused Discussion

[Breccia]

Surprising nobody at this point, Trump told the King of Jordan he'd give him the West Bank.

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This NYTimes article explains the PRA issue and how it helps Trump.

It doesn't.

What has the Trump legal team said about the act?

Mr. Trump’s lawyers have insisted that it is the only law that governs the dispute over the documents marked as classified. “The ultimate disposition of all the ‘classified records,’ and likely most of the seized materials,” they contend, “is indisputably governed exclusively by the provisions of the Presidential Records Act.”

Their premise appears to be that any government document handed to the president becomes a presidential record.

Among their assertions, Mr. Trump’s lawyers have claimed that he could have deemed the most disputed documents — more than 100 records marked as classified — as his own personal property, the National Archives could not second-guess him, and even courts would have “very limited judicial oversight over such categorization.”

They have also intimated that because the Presidential Records Act gives former presidents and their representatives a right to have access to presidential records from their time in office, there was no problem with Mr. Trump keeping them, including classified ones, at Mar-a-Lago.

And they have claimed that the Presidential Records Act lacks any criminal enforcement mechanism, so it was improper for the Justice Department to open a criminal investigation into Mr. Trump’s handling of sensitive government documents.

Is the Presidential Records Act the only relevant law?

No, said Margaret Kwoka, an Ohio State University professor who specializes in information law.

To start, presidents also routinely handle documents produced by departments and agencies like the Pentagon and the C.I.A. As agency records, they are instead governed by the Federal Records Act, which has no provision allowing a president to declare any to be his personal property.

The Presidential Records Act states that presidential records do not include “official records of an agency.” A 1993 ruling by the Court of Appeals for the District of Columbia Circuit says the law avoids any “potential definitional overlap” by making clear that if a document qualifies as an agency record, that trumps any possibility it could also be considered a presidential record.

“Certainly anything produced by an agency and given to a president would be considered an agency record,” Ms. Kwoka said.

Mr. Aftergood agreed that agency records keep that status even when brought into the White House.

Pointing to this and other apparent flaws, Ms. Kwoka suggested that Mr. Trump’s lawyers may be raising their claims about the act “to create a bunch of confusion around something that doesn’t have to be that confusing” in order “to win over a portion of public opinion or delay the legal proceedings.”

Why do Mr. Trump’s lawyers say he might own the files marked as classified?

Based on their premise that the Presidential Records Act is the only relevant law, they have asserted that “all of the records at issue in the government’s motion” — meaning those marked as classified — can only be presidential records or “personal records, the determination of which was in President Trump’s discretion.”

And they have cited a 2012 ruling, by Judge Amy Berman Jackson of the Federal District Court for the District of Columbia, in arguing that the Presidential Records Act gives “extraordinary discretion” to departing presidents to decide whether materials should be designated as presidential records for the National Archives or personal records to keep.

Notably, Mr. Trump’s legal team has not argued that he actually deemed any of the disputed documents as his personal property. Instead, the lawyers have coyly insinuated that he might have done so — in an apparent effort to persuade the government to back off.

“To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the P.R.A. and cannot possibly form the basis for any criminal prosecution,” they wrote.

What are some of the problems with this idea?

First, there may be a timing problem.

In some instances, the Trump legal team hints that Mr. Trump might have designated the records as personal before leaving office. But in one place in their filing on Monday, the lawyers implied that despite being out of office, he may still wield that purported power: “Critically, the former president has sole discretion to classify a record as personal or presidential.”

But the same 2012 ruling they cited makes clear that any such decision has to be “made during, and not after, the presidency.”

A broader problem would arise if any of the documents at issue are agency records, which are not subject to the Presidential Records Act even if they are shown to the president, agreed Mark J. Rozell, an information law specialist at George Mason University and the dean of its Schar School of Policy and Government.

“He can’t just willy-nilly declare agency records to be his personal property,” Mr. Rozell said.

How far does a former president’s right of access extend?

It is very likely to be far less expansive than Mr. Trump’s lawyers imply.

Pointing to a provision of the Presidential Records Act that says “the presidential records of a former president shall be available to such former president or the former president’s designated representative,” they have claimed that this means he “has an unfettered right of access.”

Thus, they wrote, whether it was improper for Mr. Trump to be holding onto presidential records at Mar-a-Lago was a “civil matter governed by the P.R.A.” and was not a legitimate basis for a criminal investigation.

That argument takes the access provision out of context. The provision exempts former presidents from general limits the National Archives imposes on public access to presidential records that are already in its custody. It does not say former presidents can indefinitely retain custody of presidential records. And it does not apply to agency records.

Mr. Trump’s legal team has also cited this provision in pushing back against the Justice Department’s proposal to exclude documents marked as classified from the special master’s review. The lawyers made the novel suggestion that Mr. Trump could designate the independent arbiter as his representative to give that person unlimited access to the files.

What about their claim that there is no enforcement mechanism?

It raises several issues.

The Trump legal team has argued in various filings that the Presidential Records Act lacks an enforcement mechanism for resolving document disputes between the head of the National Archives, known as the archivist, and a former president. Sometimes the lawyers declared that without qualification; other times they have said it has no “criminal” enforcement mechanism.

“The government reads into the Presidential Records Act an enforcement provision that does not exist; the law exhorts a former president to interface with the archivist to ensure the preservation of presidential records, but it does not oblige the former president to take any particular steps with respect to those records,” they wrote in an Aug. 31 filing, for example.

But the act does have an enforcement mechanism, according to Judge Jackson’s 2012 ruling. A provision of it, she noted, bestows the archivist “with authority to invoke the same enforcement mechanism found in another statute, the Federal Records Act.” That law says that the archivist can ask the Justice Department to initiate an action to recover missing records — exactly the sequence of events that took place.

The Federal Records Act does not specify whether such an action should be a lawsuit or a criminal investigation. But it goes on to say that the department may also seek “other redress provided by law.”

There are criminal laws empowering the government to retrieve records from people who have no legal right to be holding them. The search warrant cited several, including the Espionage Act, which criminalizes the unauthorized retention of documents related to the national defense, which could harm the United States or aid a foreign nation.

“Whether or not it is a presidential record doesn’t answer the question of whether he would be required to turn it over to the Justice Department if it’s demanded, because it still relates to the national defense,” said Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation-of-powers law.

Bolded for "chapter" headlines, underlined for emphasis. Orange and underlined for the most important part.

The president has some powerful abilites, such as the ability to pardon. The former president does not. Trump did not cite privilege, did not declassify, and did not invoke the PRA before leaving office -- or at least, he has provided no evidence of any and has not said any under oath. Until such evidence appears that NARA somehow missed, or until Trump himself signs the form/says so on the stand, these defenses should be handwaved as irrelevant, because Trump's word is as good as useless, tweets aren't official statements, and Trump may as well be arguing that he's an elderly Dutch woman.

[tehdang]

I said DIRECTLY. He's not objecting saying its under executive privilege. He's doing it in a round about way by asking for the Special Master.

He picked the most direct way to raise the issue of executive privilege in his lawsuit. Since the only "harm" is the DoJ refusing to consider it in his review, the most direct response is to compel the issue to be raised under a special master. He literally used it, successfully, to correct the only harm he suffered, in the only way it could be corrected.

You must have me confused with some guy that thought executive privilege meant nothing could possibly be seized or something. I don't understand how you imagined a more direct way to go about this.

We will never know what was classified that was recovered from Mar-A-Lago. Unless Biden / Future president declassifies it. Those details will never come up in the public trial.

If this is intentional, you're moving the goalposts. If this is unintentional, here's your reminder that not every document potentially protected by executive privilege also is classified. So when you asked about any possible documents "you imagine are covered by executive privilege," and immediately switch to the category of classified documents, you're either forgetting your first post, or conflating privilege and classification levels.

Trump is free to have those documents back. He will never get back anything marked classified. Ever.

Two times in the same post! In your previous post, you wondered "AND how do you expect them to screen those? There are no markings associated with that." When I pointed out the obvious, that they went through the same trove to screen for attorney-client privileged documents without any markings on those, you act like you posted regarding who wants what documents back? Are you certain that you understood your initial question when you asked it?

Just to reiterate:
You: What documents do you imagine are covered by executive privilege?
Me: I can't specifically know until it's challenged in court
You: We will never know what was classified that was recovered from Mar-A-Lago.
Me: Classified and privileged are the same now???

You: AND how do you expect them to screen those? There are no markings associated with that.
Me: They already showed they could do the same for attorney-client privileged documents, which also don't bear markings
You: Trump is free to have those documents back
Me: ???

[Kaleredar]

He picked the most direct way to raise the issue of executive privilege in his lawsuit. Since the only "harm" is the DoJ refusing to consider it in his review, the most direct response is to compel the issue to be raised under a special master. He literally used it, successfully, to correct the only harm he suffered, in the only way it could be corrected.

You must have me confused with some guy that thought executive privilege meant nothing could possibly be seized or something. I don't understand how you imagined a more direct way to go about this.

If this is intentional, you're moving the goalposts. If this is unintentional, here's your reminder that not every document potentially protected by executive privilege also is classified. So when you asked about any possible documents "you imagine are covered by executive privilege," and immediately switch to the category of classified documents, you're either forgetting your first post, or conflating privilege and classification levels.

Two times in the same post! In your previous post, you wondered "AND how do you expect them to screen those? There are no markings associated with that." When I pointed out the obvious, that they went through the same trove to screen for attorney-client privileged documents without any markings on those, you act like you posted regarding who wants what documents back? Are you certain that you understood your initial question when you asked it?

Just to reiterate:
You: What documents do you imagine are covered by executive privilege?
Me: I can't specifically know until it's challenged in court
You: We will never know what was classified that was recovered from Mar-A-Lago.
Me: Classified and privileged are the same now???

You: AND how do you expect them to screen those? There are no markings associated with that.
Me: They already showed they could do the same for attorney-client privileged documents, which also don't bear markings
You: Trump is free to have those documents back
Me: ???

Let me get this straight:

Your hang up is not that:

Trump was keeping extremely sensitive documents that could imperil national security.

Trump lied about having returned said documents.

Trump made no effort to return all of said documents.

In fact, from your responses I'd wager the guess that none of that bothers you at all.

Your hang up is that you insist the FBI took the wrong documents from Trump in a manner you regard to be insulting to Trump, and therefore their entire case is to be invalidated, regardless of what he did or did not take or have, which you further vaguely imply he deserved to have anyway and store in the manner he wished because he was president and, having been president everything he had in his possession is his, forever, if he so wishes it to be.

And before you deflect to Hillary Clinton or some nonsense, answer me simply: is any of the above inaccurate as to your assessment of the situation? As in, quote a statement and say "no I don't believe this, I firmly believe X, Y and Z"

[masterhorus8]

He picked the most direct way to raise the issue of executive privilege in his lawsuit. Since the only "harm" is the DoJ refusing to consider it in his review, the most direct response is to compel the issue to be raised under a special master. He literally used it, successfully, to correct the only harm he suffered, in the only way it could be corrected.

You must have me confused with some guy that thought executive privilege meant nothing could possibly be seized or something. I don't understand how you imagined a more direct way to go about this.

If this is intentional, you're moving the goalposts. If this is unintentional, here's your reminder that not every document potentially protected by executive privilege also is classified. So when you asked about any possible documents "you imagine are covered by executive privilege," and immediately switch to the category of classified documents, you're either forgetting your first post, or conflating privilege and classification levels.

Two times in the same post! In your previous post, you wondered "AND how do you expect them to screen those? There are no markings associated with that." When I pointed out the obvious, that they went through the same trove to screen for attorney-client privileged documents without any markings on those, you act like you posted regarding who wants what documents back? Are you certain that you understood your initial question when you asked it?

Just to reiterate:
You: What documents do you imagine are covered by executive privilege?
Me: I can't specifically know until it's challenged in court
You: We will never know what was classified that was recovered from Mar-A-Lago.
Me: Classified and privileged are the same now???

You: AND how do you expect them to screen those? There are no markings associated with that.
Me: They already showed they could do the same for attorney-client privileged documents, which also don't bear markings
You: Trump is free to have those documents back
Me: ???

I've already posted that classified documents cannot be covered by executive privilege and any documents that ARE covered by executive privilege are for NARA to handle, both as per the Presidential Records Act. And as the FBi is acting under NARA's request, they have all of the permissions they need to handle any of the docs they take.

Now sit down and process why that matters.

Any and all posts you make that ignore this simple fact will be reported as trolling.

[Muzjhath]

I never asked you about their right of collection. In fact, I've stuck close to certain problems in the way they were reviewed after collection. They were detailed in the actual special master order, for god sake (copies of which may be freely found on the interent)! I don't need your services in substituting in questions I didn't ask, and I'm well aware you're just guessing on attorney-client privilege. For the FBI's part, they tried to, and confessed to the judge as having partially failed, to incorporate attorney-client privilege in its review of seized materials. In as much as they made an attempt, they were right to do so. In as much as they documented failure, they were subject to an order for a special master to make sure no further errors were committed and uncaught.

I made this observation as to why the DoJ breached Supreme Court precedent in their review of documents. I am willing to accept hastiness in the review, actual malice, and hopes that no defense lawyer would point it out and ask for a judgement as possible explanations.

You have my questions in my prior post, if you decide to take them up. I didn't ask you your opinion on whether the search warrant was lawful, or a raid was warranted, or if either of those could be considered hasty, if you would review the post.

So, you're entirely fine with a former POTUS having Nuclear Secrets stashed in their bookshelf (at least if it was something they specifically handled during their term in office.
Or you are just dogwhistling about the FBI for in their sweep for things that a former POTUS shouldn't have lying around because it's government propery also picked up personal stuff that they consirered evidence. Some that might be Attorney-Client information. And you're dogwhistling about it either because you think that Trump isn't a former POTUS, or because you think it's 100% fine for him to have any documments he has.

As for the Attorney-Client information, if that was mixed with evidence of a crime stumbled upon while executing a search warrent to collect on said crime, I'm sure said privilege would be waverd. See the mention of a murderweapon warpped in printed emails between killer and attorney.

[masterhorus8]

@cubby How are attorney client privilege documents that lose the status as they're being used as evidence of a crime normally discovered? I assume that this sort of thing isn't something that the attorney that's a part of said documents would be the one to hand over? Are they typically "stumbled" upon?

And in the relevant scenario of MAL, would you consider the crime of having the classified documents be enough to review any and all documents that were stored with them to be additional evidence for review and check if they're at all related? And I'd assume that anything unrelated would be legally obligated to be returned and their contents unable to be referenced, otherwise it'd be dismissed as unlawfully obtained info?

[Breccia]

You: Trump is free to have those documents back
Me: ???

This is a lie. You are lying.

[Endus]

He picked the most direct way to raise the issue of executive privilege in his lawsuit. Since the only "harm" is the DoJ refusing to consider it in his review, the most direct response is to compel the issue to be raised under a special master. He literally used it, successfully, to correct the only harm he suffered, in the only way it could be corrected.

You must have me confused with some guy that thought executive privilege meant nothing could possibly be seized or something. I don't understand how you imagined a more direct way to go about this.

If this is intentional, you're moving the goalposts. If this is unintentional, here's your reminder that not every document potentially protected by executive privilege also is classified. So when you asked about any possible documents "you imagine are covered by executive privilege," and immediately switch to the category of classified documents, you're either forgetting your first post, or conflating privilege and classification levels.

Two times in the same post! In your previous post, you wondered "AND how do you expect them to screen those? There are no markings associated with that." When I pointed out the obvious, that they went through the same trove to screen for attorney-client privileged documents without any markings on those, you act like you posted regarding who wants what documents back? Are you certain that you understood your initial question when you asked it?

Just to reiterate:
You: What documents do you imagine are covered by executive privilege?
Me: I can't specifically know until it's challenged in court
You: We will never know what was classified that was recovered from Mar-A-Lago.
Me: Classified and privileged are the same now???

You: AND how do you expect them to screen those? There are no markings associated with that.
Me: They already showed they could do the same for attorney-client privileged documents, which also don't bear markings
You: Trump is free to have those documents back
Me: ???

Trump having any documents whatsoever that were either classified in any way whatsoever or that were covered under Executive Privilege means he's a criminal who's stealing intelligence from the USA.

Your "defense" involves pointing to a separate-but-related crime as if that means he's not a criminal.

If Trump claims any of those documents are protected under Executive Privilege, that means A> the DOJ shouldn't review them, due to privilege, and B> Trump is confessing to a crime.

[Breccia]

A> the DOJ shouldn't review them, due to privilege

Barring the crime exception. Like, say, plotting a murderous insurrection.

[Endus]

Barring the crime exception. Like, say, plotting a murderous insurrection.

Also barring the current President potentially stepping in and waiving whatever executive privilege might exist.

Cause if he can't, that's fucking ridiculous and your system is broken as fuck.

[postman1782]

https://www.cnn.com/2022/09/14/polit...y-6/index.html

Yep, Mark Meadows is talking, he has fully complied with his J6 subpoena finally.

[Kaleredar]

Also barring the current President potentially stepping in and waiving whatever executive privilege might exist.

Cause if he can't, that's fucking ridiculous and your system is broken as fuck.

Tehdang's assumption seems to be "The things the FBI took that they claim Trump allegedly wasn't supposed to have was stuff that was discussed between Trump and his confidants, and because Trump was president that means such things are executive privileged, but because Trump discussed it with confidants it also makes it attorney-client privileged, so therefore he gets to exert infinite executive privileged that Biden can't revoke but that Trump doesn't need to follow any sort of chain of custody on because it's also attorney-client privileged, and the FBI further had no right to look into these documents because this could have been the case about the documents and they overstepped their bounds, rendering the whole thing invalid."

And I don't think 1) that's what the nature of the documents the FBI took were or 2) that's how the law works even if they were, but he clearly needs some way to ameliorate Trump of any guilt, and therefore ameliorate himself for being a Trump supporter.


Like I've said. I don't know if he thinks Trump is innocent of this, but I maintain that he simply does not care. He seems to think the FBI had absolutely no right to look into these documents, period, so whatever they discover is a moot point because they should never have been allowed to look into it in the first place. A similar notion to someone arguing "I don't think the officer went through the proper channels to obtain the warrant to search my property when he discovered the 27 mangled corpses in my basement, so they have no right but to declare a mistrial and let me walk."

[Gorsameth]

https://lawandcrime.com/2020-electio...ce=mostpopular

Dumbass Trump's Assistant Attorney General Jeffrey Clark is claiming he is immune to an ethics investigation, he is being investigated by the Bar Association for ethics violations, and he is under CRIMINAL AND CIVIL investigations for false statements, conspiracy and obstruction, post election for what he did trying to overturn the election.

He and his lawyers claim that the charges should be thrown out, because the Republicans acquitted Trump during the 2nd impeachment hearings after January 6th happened.

I have no experience with Bar hearings but I can't imagine that falsely claiming your immune because someone else was acquitted while they are investigation you for making false statements is going to be helpful.

They seem like the sort of hearing where they will not tolerate bullshit.

[Flarelaine]

I'm curious. I imagine it could be protections for religious institutions who choose not to do same-sex marriage ceremonies which is fine and all as long as they're a private business/institution. But at the same time I imagine same-sex couples wouldn't be flocking to many of those businesses/institutions for their weddings, either.

I'm not sure after all those stories of same-sex couples doubling down on the bakers who had said they wouldn't bake cakes for them.

[postman1782]

I have no experience with Bar hearings but I can't imagine that falsely claiming your immune because someone else was acquitted while they are investigation you for making false statements is going to be helpful.

They seem like the sort of hearing where they will not tolerate bullshit.

Nope, it's not really a good argument. It will also be used in his criminal trial that is upcoming.

[Breccia]

In other news about Trump's legal worries, Trump has offered NYState a settlement offer and it was summarily rejected, strongly implying that NYState will sue Trump and/or one of his children for all those back taxes.

That was for the civil investigation. There is also a criminal investigation into Trump Org, due to start next month.

[beanman12345]

I have no experience with Bar hearings but I can't imagine that falsely claiming your immune because someone else was acquitted while they are investigation you for making false statements is going to be helpful.

They seem like the sort of hearing where they will not tolerate bullshit.

And Trump wasn't even criminally acquitted, just politically. It's such a bad argument.

[Ripster42]

@cubby How are attorney client privilege documents that lose the status as they're being used as evidence of a crime normally discovered? I assume that this sort of thing isn't something that the attorney that's a part of said documents would be the one to hand over? Are they typically "stumbled" upon?

And in the relevant scenario of MAL, would you consider the crime of having the classified documents be enough to review any and all documents that were stored with them to be additional evidence for review and check if they're at all related? And I'd assume that anything unrelated would be legally obligated to be returned and their contents unable to be referenced, otherwise it'd be dismissed as unlawfully obtained info?

They can subpoena them from the lawyer and have a taint team look them over in rare instances for evidence of a crime. It happened to ghouliani recently.

And yes, that's what the taint team was doing and what the special master will do with the docs found at MAL as the warrant allowed them to seize all docs stored alongside docs that were labelled as classified.

[Breccia]

And Trump wasn't even criminally acquitted, just politically. It's such a bad argument.

Team Trump has only one defense: time. And it's not even a good one. For one, being in the WH and/or getting a pardon only go so far. For two, Trump has already proven repeatedly that, while he demands loyalty, he does not repay it. He gave out way fewer pardons than I expected, but more importantly, way fewer than his allies expected, too. And for three, the more and more Trump continues to dominate the party as a basically proven criminal, the less and less effective all those gerrymandering and voter restriction rules will be, since not only will independents be less motivated to vote for a bankrupt spy surrounded by felons, Democrats might mobilize specifically to counter that.

But they're out of good choices. They committed a bunch of crimes, got caught, and want the people in power to deem it partisan and remove the penalties for their friends.

The term for this is "fascism".

[Draco-Onis]

Team Trump has only one defense: time. And it's not even a good one. For one, being in the WH and/or getting a pardon only go so far. For two, Trump has already proven repeatedly that, while he demands loyalty, he does not repay it. He gave out way fewer pardons than I expected, but more importantly, way fewer than his allies expected, too. And for three, the more and more Trump continues to dominate the party as a basically proven criminal, the less and less effective all those gerrymandering and voter restriction rules will be, since not only will independents be less motivated to vote for a bankrupt spy surrounded by felons, Democrats might mobilize specifically to counter that.

But they're out of good choices. They committed a bunch of crimes, got caught, and want the people in power to deem it partisan and remove the penalties for their friends.

The term for this is "fascism".

I don't think pardons are the goal here a lot of republicans have argued for fascism, that the executive is above the law and its power is absolute. If Trump wins in 2024 there's no doubt we are heading to a dictatorship. He will fill every post with loyalist who will carry his will and change laws with the backing of the reich wing supreme court.

He will also shore up the leadership of the armed forces something he failed to do last time.