Dakinikat is a little under the weather, so I’m filling in today. Before I get to the news of the day, I wanted to share some images of the late Queen Elizabeth II from Twitter.
One more, a double rainbow appeared over Buckingham Palace after Elizabeth’s death.
Skies clearing over Buckingham Palace with the arrival of a double rainbow. Call me a sentimental fool but it looks like the sign of a heavenly reunion. pic.twitter.com/ywEy6dKDJP
As far as I’m concerned, the top story is the DOJ’s latest effort to reason with MAGA Judge Aileen Cannon, while at the same time perhaps saving her from the further public humiliation of having her decision overturned by an appeals court.
The Justice Department is seeking to overturn a federal judge’s ruling that blocked investigators from reviewing a range of highly-sensitive documents seized from former President Donald Trump’s Mar-a-Lago estate.
Prosecutors said in a new court filing that U.S. District Court Judge Aileen Cannon’s decision to temporarily halt the FBI’s ability to probe the ex-president’s handling and storage of classified materials would cause “irreparable harm” to efforts by the intelligence community to protect national security interests.
“[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised,” Justice Department counterintelligence chief Jay Bratt argued in the filing. “But that inquiry is a core aspect of the FBI’s criminal investigation.”
The Justice Department delivered an unsparing assessment of Cannon’s contention that Trump might have a legitimate executive privilege claim over some of the seized documents, contending that a former president had no plausible right to assert ownership of classified records.
“That authority falls upon the incumbent President, not on any former President, because it is the incumbent President who bears the responsibility to protect and defend the national security of the United States,” Bratt wrote.
The DOJ filing amounts to a full-throated rebuke of the ruling by Cannon, a Trump appointee who was confirmed to a seat in the Southern District of Florida a week after Trump’s defeat in the 2020 election. Prosecutors used the filing to describe her ruling as a danger to national security, one ignorant of the FBI’s integral role in modern counterintelligence work, and lacking in an understanding of the complexities of executive privilege.
Also notable that DOJ says disclosing classified docs to a special master would harm national security. Would seem to further confirm sensitivity of the docs since it would not be difficult to find an experienced jurist with a security clearance. These docs are different. https://t.co/1Jm6fWkc2t
The department, in forceful and foreboding language, argued that determining the national security implications of Mr. Trump’s retention of the documents was so intertwined with its criminal investigation that carrying out a separate risk assessment was impossible under the conditions imposed by the court.
Justice Department lawyers complained that the judge’s order was impeding efforts to determine whether there may yet be “additional classified records that are not being properly stored” and noted that the search had recovered empty folders marked as classified whose contents “may have been lost or compromised.”
In an order on Thursday evening, Judge Cannon directed Mr. Trump’s lawyers to respond to the government’s filing by Monday.
In an affidavit accompanying the filing, Alan E. Kohler Jr., the assistant director of the F.B.I.’s counterintelligence division, wrote that the intelligence community’s assessment of the classified material was “inextricably linked with the criminal investigation.”
Department lawyers wrote that “uncertainty regarding the bounds of the court’s order and its implications for the activities of the F.B.I. has caused the intelligence community, in consultation with D.O.J., to pause temporarily this critically important work.”
The government and the public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” is frozen or delayed.
The DOJ brief criticizing the Special Master ruling is a work of art. I’ve read some great DOJ briefs but this is among the best. Garland brought the A team
(Now admittedly, it was an easy target. But still, just in tone & sophistication &clarity & law)https://t.co/LHJaai5T2v
Ultimately, the Justice Department said that a special master could be appointed to review personal documents and some other items seized by FBI agents on Aug. 8 in a court-approved search of Mar-a-Lago, setting aside materials as necessary.
But prosecutors argued that Cannon should prohibit the special master from reviewing classified documents — and should restore investigators’ access to those documents right away.
Barring the FBI from using the classified material in the investigation, even temporarily, “could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security,” prosecutors wrote.
It was the first time they have suggested in court filings that there could be more unsecured classified material the government has yet to locate.
Allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” prosecutorswrote in their Thursday filing, noting that those seized documents have already been moved to a secure facility, separate from the rest of the seized Trump papers.
Remember the empty folders marked classified that turned up during the search? The FBI needs to learn what those folders originally contained.
FBI Assistant Director Alan E. Kohler submitted a declaration saying that Cannon’s prohibition of investigators’ use of the seized classified material could prevent them from understanding what may have happened to the significant number of empty folders found with classified markings.
The FBI’s investigation, Kohler wrote, “could be instrumental in determining what materials may once have been stored in those folders and whether they may have been lost or compromised.”
Judge Cannon is on notice that she will have to choose between protecting Trump and protecting the national security of the United States of America.
One week ago, we learned an intriguing detail about the search of Donald Trump’s residence at Mar-a-Lago: Along with the roughly 100 classified documents recovered, the government also found 48 folders with banners marked “classified” but which were nonetheless empty.
What we didn’t know was how significant the government considered that finding; the empty folders were merely listed on an inventory list.
On Thursday, though, the Justice Department served notice that the empty folders are of significant interest. And it argued that tracing them to specific classified documents is among the urgent reasons that its review should be allowed to continue….
Among the handful of reasons mentioned: the empty folders. And the Justice Department implies that it might indeed be able to use the folders to determine whether there are larger issues than Trump merely having possessed classified documents. Specifically, it cites the possibility that classified documents might have been “lost” or “compromised.”
“The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised — steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation,” the DOJ’s filing states.
Later in the filing, the Justice Department again returns to the idea that classified documents might still be missing.
“In addition, the injunction against using classified records in the criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored — which itself presents the potential for ongoing risk to national security,” it says.
The idea that the government hasn’t recovered all classified documents is hardly far-fetched. Trump, after all, failed to return all the documents when they were subpoenaed months ago, even as his lawyer asserted that all requested documents had been returned, federal prosecutors said last month.
It’s already the consensus that abortion is going to be a good issue for Democrats in November.
What’s only now becoming clear — as Republicans scrub their campaign websites of prior positions on abortion and labor to turn the focus of the midterms back to President Joe Biden and the economy — is just how much the issue is altering the GOP’s standard playbook.
For the first time in years, Republican and Democratic political professionals are preparing for a general election campaign in which Democrats — not Republicans — may be winning the culture wars, a wholesale reversal of the traditional political landscape that is poised to reshape the midterms and the run-up to 2024.
“The environment is upside down,” said Michael Brodkorb, a former deputy chair of the Minnesota Republican Party. “The intensity has been reversed.”
It isn’t just abortion. Less than 20 years after conservatives used ballot measures against same-sex marriage to boost voter turnout in 11 states, public sentiment has shifted on the issue so dramatically that Democrats are poised to force a vote on legislation to protect same-sex marriage to try to damage Republican candidates. Following the school shooting in Uvalde, Texas, Democrats from Georgia and Wisconsin to Illinois and California are running ads supporting gun restrictions, once viewed as a liability for the left, while openly engaging Republicans on crime.
In an advertising campaign shared with POLITICO, the center-left group Third Way said the PAC it launched last year to defend moderate Democrats, Shield PAC, will start spending at least $7 million next week on digital and mail ads in seven competitive House districts to counter Republican attacks on crime, immigration and other culture war issues.
The advertising push follows polling in Rep. Abigail Spanberger’s Virginia district that suggested counter-messaging by Democrats on public safety could blunt the effect of “defund the police” attacks by Republicans. As a result, while Spanberger is airing ads tearing into her Republican opponent on abortion, Shield PAC will be running a digital campaign bolstering Spanberger’s credentials on police funding.
On Thursday, POLITICO reported that Sen. John Kennedy (R-LA) broke ranks with his Republican colleagues to help confirm Andre Mathis to the U.S. Court of Appeals for the Sixth Circuit — the first Black man to be confirmed to that court in nearly a quarter century.
“Mathis did so by one vote, clearing the Senate 48-47 with Sen. John Kennedy (R-La.) breaking from his party to give the nominee the votes,” said the report. “If Mathis’ nomination failed, Democrats would’ve had to bring it up again — burning valuable floor time during a time crunch before the midterms.”
The report continued: “When asked why he voted for the Biden-appointed nominee, Kennedy told reporters: ‘He did a great job in committee, in my opinion. He’s a partner at Butler Snow, which is a major national law firm. The criminal record that they talked about, that he forgot to face some traffic tickets, when they contacted him about it through a warrant, he just said, ‘It’s true, I forgot to pay them,’ and he paid up, but I just didn’t think that was disqualifying.”
athis’ unpaid traffic tickets were a point of contention for other Republicans on the Senate Judiciary Committee. Sen. Marsha Blackburn (R-TN) provoked controversy when she interrogated Mathis over the tickets, referring to them as a “rap sheet.”
“The conservative Kennedy rarely diverges from his party,” noted the report. “His vote only proved decisive with three Democratic senators out of office due to Covid — Sens. Jon Ossoff (Ga.), Jacky Rosen (Nev.), and Bob Menendez (N.J.)
I’m going to end there, and I’ll see you in the comments. Have a great Friday and a fantastic weekend!!
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I’m not a fan of royalty, but it does seem significant that Queen Elizabeth II of Great Britain may be dying. She took the throne on February 6, 1952 and is the “longest reigning monarch in world history.” She is 96 years old. The queen is in Scotland and she did not return to London for the appointment of the new Prime Minister Liz Truss. Her family members are either with her at Balmoral Castle or on their way there.
UPDATE: Queen Elizabeth II has died.
The Queen died peacefully at Balmoral this afternoon.
The King and The Queen Consort will remain at Balmoral this evening and will return to London tomorrow. pic.twitter.com/VfxpXro22W
Queen Elizabeth II is under medical care at Balmoral Castle after doctors became concerned about her health, Buckingham Palace said Thursday. Her family is traveling to Scotland to be by her side.
“Following further evaluation this morning, the Queen’s doctors are concerned for Her Majesty’s health and have recommended she remain under medical supervision. The Queen remains comfortable and at Balmoral,” the palace statement said.
All of the queen’s children, including her heir, Prince Charles, were either at her bedside or en route. The others are Edward, Andrew and Anne, who was already in Scotland for some events there this week.
Prince Harry and Meghan are en route to Balmoral, a spokesperson for the couple said. Prince William was also on his way to Balmoral. His wife, Catherine, remained in Windsor as their children, Princes George and Louis and Princess Charlotte, are on their first full day at their new school, Kensington Palace said.
The statement comes a day after Buckingham Palace said Wednesday that the queen, who is 96, had canceled a virtual meeting with the Privy Council on doctor’s advice to rest.
The statements may have been vague on details, but the fact that they were issued at all speaks volumes. The palace typically provides minimal information about the queen’s health.
This morning the deaths of two renowned journalists were announced.
Sad news just in this morning that our beloved Bernard Shaw has passed away at age 82. A trailblazer and a true CNN original. Rest in Peace: https://t.co/Dr5CrEuxpY
Former CNN anchor Bernard Shaw died Wednesday of pneumonia unrelated to Covid-19, Shaw’s family announced in a statement Thursday. Shaw was 82.
Shaw was CNN’s first chief anchor and was with the network when it launched on June 1, 1980. He retired from CNN after more than 20 years on February 28, 2001.
During his storied career, Shaw reported on some of the biggest stories of that time — including the student revolt in Tiananmen Square in May 1989, the First Gulf war live from Baghdad in 1991, and the 2000 presidential election.
“CNN’s beloved anchor and colleague, Bernard Shaw, passed away yesterday at the age of 82. Bernie was a CNN original and was our Washington Anchor when we launched on June 1st, 1980,” Chris Licht, CNN.
Chairman and CEO, said in a statement Thursday. “He was our lead anchor for the next twenty years from anchoring coverage of presidential elections to his iconic coverage of the First Gulf War live from Baghdad in 1991. Even after he left CNN, Bernie remained a close member of our CNN family providing our viewers with context about historic events as recently as last year. The condolences of all of us at CNN go out to his wife Linda and his children.”
Anne Garrels, longtime foreign correspondent for NPR, died on Wednesday of lung cancer. She was 71 years old.
At NPR, Garrels was known as a passionate reporter willing to go anywhere in the world at a moment’s notice if the story required it. She was also a warm and generous friend to many.
When she arrived at NPR in 1988, she already had a lot of experience under her belt — including 10 years in television news at ABC, where she was bureau chief in both Moscow and Central America.
Garrels made a strong impression on NPR’s Deborah Amos. “She was this glamorous television reporter who came here,” she said. “She didn’t dress like the rest of us in the beginning. And she’d has this long and remarkable career before she landed here … She was always braver than me, and I always understood that she was braver than me.”
That bravery led Garrels into many war zones. And when it came to covering a war, she was there at the beginning, in the middle of the battle, and at the peace table. She was the kind of reporter who would drive alone across a war zone if that’s what it took to get the story.
Read more at NPR.
This morning Steve Bannon surrendered to prosecutors in New York on state charges similar to the federal ones for which Trump pardoned him.
Stephen K. Bannon has been charged with money laundering, fraud and conspiracy in connection with the “We Build the Wall” fundraising scheme, for which he received a federal pardon during Donald Trump’s final days in the White House.
Bannon, 68, was convicted this summer of contempt of Congress and is awaiting sentencing in that matter. He surrendered to prosecutors in Manhattan Thursday morning on the charges outlined in a newly unsealed state indictment and is expected to appear in court in the afternoon.
Arriving at the Manhattan district attorney’s office in a black SUV shortly after 9 a.m., Bannon stopped to shake hands with his attorneys before speaking briefly to a horde of journalists. In his remarks, he echoed past declarations that he was being prosecuted for political reasons, including in an effort to influence November’s upcoming midterm congressional elections.
“This is all about 60 days until the day!” he said, before being escorted into the building.
Bannon’s case will be handled in New York Supreme Court by Manhattan District Attorney Alvin Bragg and New York Attorney General Letitia James.
In a statement issued after the indictment was unsealed, Bragg said Bannon “acted as the architect of a multi-million dollar scheme to defraud thousands of donors across the country – including hundreds of Manhattan residents.”
Bannon “took advantage of his donors’ political views to secure millions of dollars which he then misappropriated,” James said in her own prepared remarks. “Mr. Bannon lied to his donors to enrich himself and his friends.”
In August 2020, Bannon was yanked off a yacht by law enforcement agents to face his indictment in the federal “We Build the Wall” case. In that indictment, he was accused of personally pocketing $1 million from “We Build the Wall,” a Trump-aligned cash collection drive that Bannon helped to orchestrate starting in December 2018.
I was hoping for news from the DOJ on whether they will appeal the insane decision by Judge Aileen Cannon to appoint a special master to examine the government documents that Trump stole. But the only news I’ve seen is that they are proposing to unseal more of the Mar-a-Lago search warrant, perhaps to use in their response to Judge Cannon.
NEW: The DoJ has applied to unseal more of the MAL search warrant affidavit before judge Reinhart. More details to come, and h/t to @johnhawkinsonhttps://t.co/ED1bX9TP4Z
NEW: the DoJ is investigating Trump’s Save America PAC. It’s of note that this PAC raised money off the big lie, and it’s using it to pay for several 1/6 witness lawyers – including Cassidy Hutchinson’s first lawyer. https://t.co/xAi8iAGn1h
A federal grand jury investigating the activities leading up the Jan. 6 attack on the U.S. Capitol and the push by former President Donald Trump and his allies to overturn the result of the 2020 election has expanded its probe to include seeking information about Trump’s leadership PAC, Save America, sources with direct knowledge tell ABC News.
The interest in the fundraising arm came to light as part of grand jury subpoenas seeking documents, records and testimony from potential witnesses, the sources said.
The subpoenas, sent to several individuals in recent weeks, are specifically seeking to understand the timeline of Save America’s formation, the organization’s fundraising activities, and how money is both received and spent by the Trump-aligned PAC….
Trump and his allies have consistently pushed supporters to donate to the PAC, often using false claims about the 2020 election and soliciting donations to rebuke the multiple investigations into the former president, his business dealings, and his actions on Jan. 6.
After the FBI raided Trump’s Mar-a-Lago estate last month, Save America PAC sent out a fundraising email in which Trump urged supporters to “rush in a donation IMMEDIATELY to publicly stand with me against this NEVERENDING WITCH HUNT.”
A federal grand jury in Washington is examining the formation of — and spending by — a PAC created by Donald J. Trump after his loss in the 2020 election as he was raising millions of dollars by baselessly asserting that the results had been marred by widespread voting fraud.
According to subpoenas issued by the grand jury, the contents of which were described to The New York Times, the Justice Department is interested in the inner workings of Save America PAC, Mr. Trump’s main fund-raising vehicle after the election. Several similar subpoenas were sent on Wednesday to junior and midlevel aides who worked in the White House and for Mr. Trump’s presidential campaign.
Among the roughly half-dozen current and former Trump aides in the White House and the 2020 presidential campaign who are said to have received subpoenas this week were Beau Harrison, an aide to Mr. Trump in the White House and in his post-presidency, and William S. Russell, who similarly worked in the West Wing and now for Mr. Trump’s personal office, according to several people familiar with the events….
The fact that federal prosecutors are seeking information about Save America PAC is a significant new turn in an already sprawling investigation of the roles that Mr. Trump and some of his allies played in trying to overturn the election, an array of efforts that culminated with the violent mob attack on the Capitol on Jan. 6, 2021.
Another Trump aide was subpoenaed in connection with planning for the January 6 coup attempt.
Via @adamgoldmanNYT and me, Trump personal aide subpoenaed by the J6 grand jury looking at fake electors as prosecutors widen their reach https://t.co/DrUVxMkFyw
Federal prosecutors issued a subpoena to a personal aide to former President Donald J. Trump as part of the investigation into the events leading up to the riot at the Capitol on Jan. 6, 2021, people familiar with the matter said.
The move suggests that investigators have expanded the pool of people from whom they are seeking information in the wide-ranging criminal investigation into efforts by Mr. Trump and his allies to reverse his loss in the 2020 election and that agents are reaching into the former president’s direct orbit.
This week, F.B.I. agents in Florida tried to approach William S. Russell, a 31-year-old aide to Mr. Trump who served as a special assistant and the deputy director of presidential advance operations in the White House. He continued to work for Mr. Trump as a personal aide after he left office, one of a small group of officials who did so.
It was not immediately clear what the F.B.I. agents wanted from Mr. Russell; people familiar with the Justice Department’s inquiry said he has not yet been interviewed. But a person with knowledge of the F.B.I.’s interest said that it related to the grand jury investigation into events that led to the Capitol attack by Mr. Trump’s supporters.
That investigation is said to have focused extensively on the attempts by some of Mr. Trump’s advisers and lawyers to create slates of fake electors from swing states. Mr. Trump and his allies wanted Vice President Mike Pence to block or delay certification of the Electoral College results during a joint session of Congress on Jan. 6 to allow consideration of Trump electors whose votes could have changed the outcome.
EXCLUSIVE: Trump told his White House team he needed to protect Russiagate documents … which he called his 'evidence' of a deep state plot against him.https://t.co/MBHBkGWFcB
IN HIS FINAL days in the White House, Donald Trump told top advisers he needed to preserve certain Russia-related documents to keep his enemies from destroying them.
The documents related to the federal investigation into Russian election meddling and alleged collusion with Trump’s campaign. At the end of his presidency, Trump and his team pushed to declassify these so-called “Russiagate” documents, believing they would expose a “Deep State” plot against him.
According to a person with direct knowledge of the situation and another source briefed on the matter, Trump told several people working in and outside the White House that he was concerned Joe Biden’s incoming administration — or the “Deep State” — would supposedly “shred,” bury, or destroy “the evidence” that Trump was somehow wronged.
Trump’s concern about preserving the Russia-related material is newly relevant after an FBI search turned up a trove of government documents at the former president’s Mar-a-Lago residence.
Since the search, Trump has refused to say which classified government papers and top-secret documents he had at Mar-a-Lago and what was the FBI had seized. (Trump considers the documents “mine” and has directed his lawyers to make that widely-panned argument in court.) The feds have publicly released little about the search and its results.It’s unclear if any of the materials in Trump’s document trove are related to Russia or the election interference investigation. A Trump spokesperson did not respond to a request for comment.
I have a few more articles to share, but I’ll do it in the comment thread. Sorry this post is so late; my internet keeps going in and out.
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I was hoping we might hear something from the DOJ this morning, but so far they haven’t responded publicly to Trump judge Aileen Cannon’s ridiculous decision yesterday. According to The Guardian,
Lawyers for Donald Trump are conferring with justice department counterparts to come up by Friday with a list of possible candidates to be the “special master” approved by a district court judge over the former president’s hoarding of classified documents.
So far, I haven’t seen that reported anywhere else.
However, Hillary Clinton did make a public statement today in a Twitter thread.
Comey admitted he was wrong after he claimed I had classified emails.
Trump’s own State Department, under two different Secretaries, found I had no classified emails.
When former President Donald Trump summoned up years of bubbling resentment and sued Hillary Clinton and everyone else involved in Russiagate earlier this year, he naturally filed his lawsuit in South Florida—home to his oceanside estate.
And yet, when his attorneys formally filed the paperwork, they selected a tiny courthouse in the sprawling federal court district’s furthest northeast corner—a satellite location that’s 70 miles from Mar-a-Lago. They ignored the West Palm Beach federal courthouse that’s a 12-minute drive away.
The tactic failed, and Trump instead got a Clinton-era judge whom he promptly tried to disqualify for alleged bias. U.S. District Judge Donald M. Middlebrooks called him out in a snarky footnote.
“I note that Plaintiff filed this lawsuit in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon, who Plaintiff appointed in 2020. Despite the odds, this case landed with me instead. And when Plaintiff is a litigant before a judge that he himself appointed, he does not tend to advance these same sorts of bias concerns,” Middlebrooks wrote in April.
On Monday afternoon, Cannon single-handedly hit the brakes on the most politically sensitive and consequential FBI investigation ever undertaken. Convinced by Team Trump’s legal arguments that the routine Justice Department methods for carefully handling seized documents aren’t good enough when investigating this particular former president, she ordered that a “special master” be tasked with playing referee to dictate what happens with classified documents that are evidence of a crime.
“The investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness,” she wrote in her order.
Read the rest at The Daily Beast.
“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,” a Duke law professor said to @charlie_savage about Judge Cannon’s ruling. He was hardly alone. https://t.co/emYuocpHiM
A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said….
Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. 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.
Judge Cannon, a Trump appointee who sits on the Federal 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, Judge 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 Court of Appeals for the 11th Circuit in Atlanta, where Mr. Trump appointed six of its 11 active judges.
Some of the expert reactions:
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 University of Texas….
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,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.” [….]
“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 N.Y.U., said there was no basis for Judge 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.
Read the whole thing at the NYT.
In other news . . .
From CNN this morning:
NEW: there is now video evidence of former Coffee County GA GOP chairwoman Cathy Latham escorting two people who admitted to breaching voting machines into election offices under the direction of Sidney Powell. https://t.co/Qh7VJFtkKv
A Republican county official in Georgia escorted two operatives working with an attorney for former President Donald Trump into the county’s election offices on the same day a voting system there was breached, newly obtained video shows.
The breach is now under investigation by the Georgia Bureau of Investigation and is of interest to the Fulton County District Attorney, who is conducting a wider criminal probe of interference in the 2020 election.
The video sheds more light on how an effort spearheaded by lawyers and others around Trump to seek evidence of voter fraud was executed on the ground from Georgia to Michigan to Colorado, often with the assistance of sympathetic local officials.
In the surveillance video, which was obtained by CNN, Cathy Latham, a former GOP chairwoman of Coffee County who is under criminal investigation for posing as a fake elector in 2020, escorts a team of pro-Trump operatives to the county’s elections office on January 7, 2021, the same day a voting system there is known to have been breached.
The two men seen in the video with Latham, Scott Hall and Paul Maggio, have acknowledged that they successfully gained access to a voting machine in Coffee County at the behest of Trump lawyer Sidney Powell.
Text messages, emails and witness testimony filed as part of a long-running civil suit into the security of Georgia’s voting systems show Latham communicated directly with the then-Coffee County elections supervisor about getting access to the office, both before and after the breach. One text message, according to the court document, shows Latham coordinating the arrival and whereabouts of a team “led by Paul Maggio” that traveled to Coffee County at the direction of Powell.
Three days after the breach, Latham texted the Coffee County elections supervisor, “Did you all finish with the scanner?” According to court documents, Latham testified she did not know what Hall was doing in Coffee County. But when confronted with her texts about the scanner, she asserted her Fifth Amendment rights.
More from The Washington Post:
Security camera footage reviewed by The Washington Post shows two out-of-state technology consultants at the Coffee County elections office in the weeks after outsiders copied elections system data there on Jan. 7, 2021. https://t.co/kgQ4ZYcwcH
The new video adds to the picture of the alleged breach in Coffee County on Jan. 7, 2021, and reveals for the first time the later visits by Logan and Lenberg. It also provides further indications of links between various efforts to overturn the election, including what once appeared to be disparate attempts to access and copy election system data in the wake of Trump’s loss.
Experts have expressed concern that such efforts could expose details of voting systems’ hardware and software that are intended to be tightly controlled, potentially aiding hackers who might seek to alter the results of a future election. Data copied from elections systems in other states has been published online. Georgia state officials and voting-machine makers have downplayed the risk, pointing to safeguards that they say protect the systems from tampering.
The Post reported last month that a data forensics firm hired by the pro-Trump lawyer Sidney Powell copied software and data from the Dominion Voting Systems machines used by Coffee County. The Georgia Bureau of Investigation has said it is investigating the matter.
Details of the Coffee County incident have come to light largely because of a flurry of subpoenas and depositions by plaintiffs in a long-running federal lawsuit against Georgia authorities over the security of the state’s elections. Emails and other records they obtained from the data forensics firm, Atlanta-based Sullivan Strickler, showed that the Coffee episode was part of a coordinated multistate effort to access voting equipment in a hunt for evidence that the election was rigged….
The security footage shows only the exterior of the office’s entrance area, and it is not clear what the consultants Logan and Lenberg did inside….
David Cross, a lawyer who represents some of the plaintiffs in the civil case, said the additional visits raise questions about why the two men returned. “The biggest concern that we have is future elections,” said Cross, whose clients are pressing Georgia authorities to replace the state’s ballot-marking machines with hand-marked paper ballots.
Logan and Lenberg have played roles inthe multistate pursuit of voting machines by Trump supporters. Michigan Attorney General Dana Nessel (D) has asked for a special prosecutor to decide whether to pursue charges against them and others for allegedly conspiring to unlawfully access elections equipment in three counties there last year. Logan and Lenberg also provided affidavits as expert witnesses in a post-election lawsuit in Antrim County, Mich., after a judge granted SullivanStrickler access to Dominion Voting Systems machines there.
Another election interference story from David Folkenflick at NPR:
NEWS: Shortly after the 2020 election, a Fox News producer begged colleagues not to let Jeanine Pirro back on the air. She was spouting election fraud conspiracies pulled from the web.
More in my NPR exclusive on Dominion’s $1.6B defamation suit agst Fox: https://t.co/9xyj8iKHN4
The November 2020 email from an anguished Fox News news producer to colleagues sent up a flare amid a fusillade of false claims.
The producer warned: Fox cannot let host Jeanine Pirro back on the air. She is pulling conspiracy theories from dark corners of the Web to justify then-President Donald Trump’s lies that the election had been stolen from him. The existence of the email, confirmed by two people with direct knowledge of it, is first publicly disclosed by NPR in this story. Fox News declined comment.
Pirro was far from alone in broadcasting such false claims. In the weeks that followed Election Day 2020, other prominent Fox stars, commentators and their guests heavily promoted them.
A repeat target was Dominion Voting Systems, the election machine and technology company. Trump and his allies alleged on Fox that Dominion was engaged in a conscious effort to throw the 2020 race to Joe Biden. They implied and falsely asserted on Fox programs that Dominion’s machines and software either discarded Trump’s votes or transferred them to Biden. Dominion argues their false claims were frequently egged on by Fox’s own stars.
The producer’s email is among the voluminous correspondence acquired by Dominion’s attorneys as part of its discovery of evidence in a $1.6 billion defamation suit it filed against Fox News and its parent company. Dominion alleges it has been “irreparably harmed” by the lies, conspiracy theories and wild claims of election fraud that aired on Fox.
Pirro’s role remains under sharp scrutiny. She attended Trump’s belligerent address from the White House late on election night 2020 and advanced his arguments on the air.
Read more at NPR.
That’s it for me. I hope we’ll learn more about the DOJ’s response to Judge “Loose Cannon’s” decision during the course of the day. What other stories are you following?
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In a major blow for the government, a federal judge approved former President Donald Trump’s request for a special master to oversee all the evidence the FBI seized last month from his Mar-a-Lago estate and temporarily blocked parts of the Justice Department’s investigation.
U.S. District Judge Aileen Cannon — a Trump appointee — said in her ruling Monday that the special master should be able to review the documents seized to address both questions of attorney-client privilege and also to litigate claims of executive privilege.
Government employees screening the documents had only set aside ones that may have been protected by attorney-client privilege and argued that executive privilege was not at play here.
“In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public,” she wrote.
Trump had requested that a special master, a third party attorney, review the material seized on Aug. 8 to assess for potential attorney-client or executive privilege issues.
Trump’s attorneys argued in a recent court filing that “left unchecked, the DOJ will impugn, leak, and publicize selective aspects of their investigation with no recourse for [Trump] but to somehow trust the self-restraint of currently unchecked investigators.
The Justice Department had argued against the special master request, saying that a special master “is unnecessary and would significantly harm important governmental interests, including national security interests.” In a statement on Monday, DOJ Spokesman Anthony Coley said, “The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.”
Cannon allowed a national security review of the records to continue but temporarily blocked the government from reviewing and using them for its “investigative purposes.” She systematically rejected the DOJ’s arguments that Trump’s special-master request was filed too late, was superfluous and that Trump had no right for review because he didn’t own the documents in question that were seized.
Cannon did not immediately grant Trump’s request to get back more of his property more quickly.
Legal analysis by lawyers and scholars has not been kind to the judge. Just so you know, there is no such thing in law as a “special master” to review “executive privilege”.
Judge: Because Trump is a former President .. "The stigma associated with the subject seizure is in a league of its own. 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"
This is astounding. How does he get away with this?
This judge basically did Trump’s lawyers’ work for them, making arguments under the 4-part Richey test which Trump did not brief or argue, making executive privilege arguments that Trump did not press fully in the hearing, and granting an injunction when one wasn’t requested https://t.co/qD0aWUiNys
Many lawyers online Lawyers question how a former President can claim executive privilege against the Justice Department since it is part of the executive branch.
Nothing about the MAL search warrant process was special and her reasoning wd lead to appointment of a special master in EVERY criminal case. The only thing special is a former president stealing highly classified docs.
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) September 5, 2022
But Monday’s ruling does in part grant the late request from Trump’s lawyers to stop the DOJ from reviewing documents collected in the department’s investigation of Trump’s retaining and handling of classified materials.
In the ruling Cannon, cited concerns over the potential damage to Trump should materials in the custody of the DOJ be leaked to the public. “In addition to being deprived of potentially significant personal documents, which alone creates a real harm,” wrote Cannon, “Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.”
While ruling may temporarily delay proceedings, the DOJ has already had a chance to conduct their own review of materials seized in the raid, and will have a chance to influence the selection of the “special master.” Judge Cannon has ordered both camps to submit their proposed candidates by September 9th.
What about the damage done to our national security, our nation, and our allies by Trump?
NEW: Judge grants Trump's special master request to review "personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege."
The executive privilege review component is a doozy, expect more from DOJ on this.
They still are NOT personal records then and would absolutely not be subject to return to Trump under Rule 41.
5) how on earth is the IC doing it’s damage assessment without the FBI being involved? That’s ludicrous. So these are EP-protected records for criminal purposes
In opposing the appointment of a special master, Justice Department lawyers told Cannon they had already sorted through the documents, using a “filter team” to separate out more than 500 pages of potentially privileged documents. That arrangement was approved by a U.S. magistrate judge who authorized the Mar-a-Lago search warrant. Prosecutors said appointing a special master would be pointless, given the previous filter team review — but Cannon disagreed. They also said that there was no legal basis to appoint a special master in this case and that Trump had no rights to possess White House documents once he left office.
On Friday, Cannon unsealed a detailed inventory list of items seized from Mar-A-Lago. It showed that Trump intermingled classified and unclassified materials in boxes at Mar-A-Lago and had dozens of empty folders that bore a “classification” marking.
Georgia Landscape, by Hale Woodruff, circa 1934-1935
I’ve always liked this blog because they don’t pull punches ever.
On November 12 2020, after Donald Trump had already been defeated, the Senate was able to ram through the confirmation of 39-year-old Federalist Society hack Aileen Cannon to the District Court of Southern Florida. The political payoff for Trump has been swift:
his refers to this particular thread provided by lawyer, teacher, and law analyst Steve Vladeck followed by the Ashey Rangappa tweet I posted above.
Needless to say, this kind of lawlessness, designed to try to run out the clock and make it harder to indict Trump as 2024 gets closer, would mean a lot less were 11CA and the Supreme Court not also controlled by Republican hacks willing to wink at the law to help out Daddy Trump.
Here’s the thread by Vladeck.
Never thought I’d have to teach about “executive privilege” as a basis for bringing a claim *against* the executive branch.
Cat and kitten, by Théophile Alexandre Steinlen, 1920
Happy Caturday!!
Yesterday we got new information about the highly classified documents Trump stole from the government and carelessly left lying around his office at Mar-a-Lago. In her Friday post, Dakinikat wrote about the empty folders marked classified and the boxes containing classified documents mixed with news clippings, and personal items like clothing. The inventory from the search also shows thousands of unclassified government documents, which also belong in the National Archives.
Twenty-seven documents with classified and top-secret markings were recovered from former President Trump’s office at his Mar-a-Lago estate in Florida, according to a detailed inventory of what the FBI removed during its court-approved search of the home last month.
The eight-page inventory detailing more than 10,000 government documents removed in the search includes the location where each item was found and whether it was classified, but not the subject matter. In many cases, highly classified materials are listed as having been stored in the same boxes as hundreds of unclassified items, including newspaper and magazine clippings and clothing.
Among the boxes were 48 empty folders marked with a classified banner. Those empty folders could be of particular concern as the Office of the Director of National Intelligence assesses the risks to national security that could result from disclosure of the contents, because it could be difficult to determine what information might have been inside and where it is now….
FBI agents removed more than 100 documents containing classified information — including some marked top secret and meant to be available only in special government facilities — from the Trump estate during their Aug. 8 search, along with over 30 boxes of materials including thousands of government records.
What was in those empty folders?
Identifying what was in the empty folders marked classified and where the information is now should be a priority, said Rep. Sean Patrick Maloney (D-N.Y.), a member of the House Intelligence Committee.
“Why are there folders that contained classified information that are now empty? Where are the documents?” Maloney said. “Those questions need to be answered.”
Still LIfe with Flowers and cats, Paul Gauguin, 1899
Without knowing more about the folders, it is difficult to say how alarmed intelligence officials might be, Maloney said.
They could be the type of generic folders in which confidential information is transported within the White House, or they could be folders from intelligence agencies that provide details about the sources of the information, the date it was collected and broad descriptions of what it is about, said Larry Pfeiffer, a high-ranking CIA officer in the George W. Bush administration and senior director of the White House Situation Room in the Obama administration.
“If there were any meticulous records that were kept by the staff secretary, executive secretary or the [director of national intelligence’s] presidential daily briefing staff, they may be able forensically to figure out if there are any missing documents,” Pfeiffer said.
That 48 classified documents could be missing is the “worst-case scenario,” he said.
“That’s terrifying, because then what happened to them? Where are they? Are they still hidden somewhere? Are they hidden in another Trump location? Did he give them away to some people as souvenirs? God knows,” Pfeiffer said.
Immediately after a federal judge released the Dept. of Justice’s detailed list of items the FBI seized from Mar-a-Lago experts agreed among the most concerning details was that there were a large number of empty folders marked “Classified.”
Glenn Kirschner, a former federal prosecutor of 30 years, tweeted out his surprise and concern.
“OMG!” exclaimed Kirschner, who is also an MSNBC/NBC News legal analyst. “Court just released an inventory of evidence of crime seized at Mar-a-Lago.”
“Dozens of EMPTY folders labeled ‘Classified’ or ‘Return to Military Aide.’ Trump didn’t pack up EMPTY folders to take with him to FLA. Things just went from bad to worse to unfathomably dangerous.” [….]
Andrew Weissmann, a former General Counsel of the Federal Bureau of Investigation who has also worked as chief of the criminal fraud section of DOJ observed: “It’s the empty classified folders that are of most concern.”
“Where are the contents? Trump has not addressed that at all in all his bluster and obfuscation. What were you doing with these?” asked Weissmann, who also worked for Special Counsel Robert Mueller….
National security attorney Brad Moss wrote, “Very first question the FBI would ask the person who had in their home office 43 empty folders with classified banners is ‘where did the documents from those folders go????'”
And later he added: “Why. Are. There. Empty. Folders?”
We know very little about what this [the empty folders] means right now, though, and experts say it doesn’t necessarily mean the documents are missing, as some Trump critics theorized. What it does seem to reinforce is how sloppily classified information was handled.
In both the search warrant affidavit released last week and a Justice Department filing in a court case this week, the government has pointed to a February referral from the National Archives. The referral raised concerns about Trump’s potential mishandling of sensitive documents and urged an investigation.
“Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified,” the National Archives said.
The biggest question is obviously: Why were those folders empty? Since classified documents were previously returned “unfoldered” — and others were recovered in the search last month — and now we have classified-marked folders without documents in them, it’s possible they match up.
Whether they actually do match is another matter, as is whether the documents can even be traced to a given folder.
From a national security expert:
David Priess, a former CIA officer whose work there included delivering the President’s Daily Brief, said Friday that the presence of empty folders doesn’t mean documents are missing, but also that it’s possible we won’t know for sure. He said the folders could contain markings allowing them to be traced to specific documents (but that’s not certain), or that they could be connected using forensic techniques.
“We cannot rule out that those empty folders contained classified documents that were not discovered in the search and seizure,” he said. “We just don’t know. That’s much harder to determine.”
He also noted it was possible that the folders were separated from the documents when they were still in the White House, before they were taken to Mar-a-Lago.
But mostly, he said, it’s further evidence of something we already knew: The documents were haphazardly stored.
There’s more analysis at the WaPo link.
Family Portrait, Carl Kahler
It’s not just the documents that were found in Trump’s office that were mishandled. The Washington Post published a long read yesterday on the storage room where boxes of documents were stored and why Mar-a-Lago was such a dangerous place for government documents to be kept: Deep inside busy Mar-a-Lago, a storage room where secrets were stashed. The storage room is below the estate’s giant living room.
It was dug into the foundations of the early 20th-century building not long after Trump bought the place, a former employee said, carved out to create more space to store tables, chairs, umbrellas — the stuff necessary to complete Trump’s conversion of what had once been a grand residence for a single family into a private club for 500 members.
At the southeast corner of this area, behind a simple door, is a large closet-type space that workers once called “the mold room” in honor of leftover stonework molds deposited in the corner, the former employee said. Today, staffers think of the room more like the former president’s personal closet, one said. It is here, in this windowless nook, where some of the nation’s most sensitive secrets allegedly were stashed….
Court filings say a top Justice Department official and a gaggle of FBI agents were allowed to tour the storage room when they visited Mar-a-Lago on June 3 to pick up classified documents collected by Trump’s lawyers in response to a grand jury subpoena. A lawyer for Trump saidthe room was where they would find all of documents that had been carted from the White House to Florida after Trump left office.
Two months later, agents returned with a court-approved search warrant and carted off more than two dozen boxes of documents and assorted other items gathered from the storage room and the former president’s office. The raid exposed anew the potential risks of keeping highly sensitive material at a club that hosts weddings, galas and other large events, where outsiders are common and many employees — as well as some visitors — are foreign nationals.
Not yet clear is why Trump chose the basement storage room to keep highly sensitive documents nor who exactly had access to the documents kept there — or who could have gotten access had they tried….
People close to Trump said a variety of Mar-a-Lago and Trump staffers had access to that area beneath the public living room. Access to the closet where the documents were kept was more restricted, they said.
John White Alexander, The Green Dress, 1890-99
More on security concerns at Mar-a-Lago:
Experts said security at the Spanish-style club has long been a headache. The facility has served a frequent residence for Trump and his family during the winter months, including while he was president. But it also boasts tennis courts, a dining room, two pools, a spa and beachfront facilities, all open to its members and their guests. Its giant ballroom and other larger areas are frequently booked for large parties and political and charitable fundraisers, all open to even more visitors, some of them foreign nationals.
Since Trump left office, Republican candidates also have flocked to the club for official events, to genuflect to Trump and attempt to secure his endorsement. Political donors have flocked, too. People who have visited the club since Trump left office said they were allowed in without so much as an identification check.
“I think Mar-a-Lago is a counterintelligence nightmare,” said Joel Brenner, former head of U.S. counterintelligence under the director of National Intelligence and former inspector general for the National Security Agency, citing the flow of hundreds of people, the presence of foreign nationals and Trump’s long-established carelessness with national secrets.
A person who is familiar with the club’s workings and spoke on the condition of anonymity described regular movement from club facilities to the basement and back. “This is an operating property,” this person said. “There’s a kitchen and a guy who does pastries and a liquor cabinet. There’s a restaurant here. You see activity. A guy getting vodka to bring to the bar. A person going to get cupcakes to bring upstairs.”
As I said, this is a very long, but interesting article.
Two more developments on the purloined documents story:
Former Attorney General William P. Barr dismissed former President Donald J. Trump’s call for an independent review of materials seized from his Florida home on Friday — and said an inventory of items recovered in the search last month seemed to support the Justice Department’s claim that it was needed to safeguard national security.
“As more information comes out, the actions of the department look more understandable,” Mr. Barr told The New York Times in a phone interview, speaking of the decision by the current attorney general, Merrick B. Garland, to seek a search warrant of the complex at Mar-a-Lago.
“It seems to me they were driven by concern about highly sensitive information being strewn all over a country club, and it was taking them almost two years to get it back,” said Mr. Barr, who resigned in December 2020, as Mr. Trump pushed him to support false claims that the election had been stolen.
“It appears that there’s been a lot of jerking around of the government,” he added. “I’m not sure the department could have gotten it back without taking action.”
Asked what he thought of the argument for the appointment of a special master, an independent arbiter to review the material that could delay the investigation, Mr. Barr laughed.
Pierre Bonnard, Children and a Cat, 1909
“I think it’s a crock of shit,” he said, adding, “I don’t think a special master is called for.” [….]
Mr. Barr’s comments, which echo the assessment of many Democrats and a few Republicans, including the former Bush adviser Karl Rove, came as Mr. Trump’s supporters tried to downplay the importance of the inventory unsealed by a federal judge in Florida.
The eight-page document, which was made public with the tacit assent of the former president’s lawyers, revealed that the F.B.I. recovered 11,179 documents or photographs without classification markings belonging to the government, and more than 100 others marked top secret, secret or confidential.
“It’s hard to wrap your head around him taking so much sensitive materials,” Mr. Barr said. “I was, let’s just say, surprised.”
Within a week of the FBI search of former President Donald Trump‘s Mar-a-Lago resort, former White House chief of staff Mark Meadows handed over texts and emails to the National Archives that he had not previously turned over from his time in the administration, sources familiar with the matter tell CNN.
Meadows’ submission to the Archives was part of a request for all electronic communications covered under the Presidential Records Act. The Archives had become aware earlier this year it did not have everything from Meadows after seeing what he had turned over to the House select committee investigating January 6, 2021. Details of Meadows’ submissions to the Archives and the engagement between the two sides have not been previously reported….
The records Meadows turned over to the Archives were not classified, and the situation is markedly different from the Archives’ efforts to retrieve federal records from Trump and its referral to the Justice Department earlier this year when classified materials were discovered among documents the agency retrieved from Mar-a-Lago.
The source familiar with the discussions said that the Archives considered Meadows to be cooperating, even though the process started slowly.
“This is how it’s supposed to work,” the source added, saying it was not the kind of situation that needed to be referred to the Justice Department.
As you can see, I’m still totally obsessed with the stolen documents story. There are actually other things happening, and I’ll post some more items in the comment thread. I hope you’ll do the same.
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