What does a TRUMP presidency look like?

[The Minsky Moment]

He might get away with it, but he is doing his best to make it exciting by systematically demolishing his potential defenses one by one.

[Razgovory]

This may be the root of the Trump's classified documents problem and it's very, very stupid.

https://www.cnn.com/2022/08/25/politics/trump-maralago-documents-private-concerns-legal-tom-fitton/index.html

Basically, the dipshit who runs Judicial Watch, a dipshit who isn't a lawyer, told Trump to ignore The National Archives and just keep any documents he wanted.  Trump, a dipshit himself, took the legal advise from the other dipshit.

Washington (CNN)Not long after the National Archives acknowledged in February that it had retrieved 15 boxes of presidential records from former President Donald Trump's Mar-a-Lago residence in Florida, Trump began fielding calls from Tom Fitton, a prominent conservative activist.

Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives "strong-arm" him into returning them, according to three sources familiar with the matter.
Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.
The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
While Trump continued to publicly tout his cooperation with the Archives, privately the former President began obsessing over Fitton's arguments, complaining to aides about the 15 boxes that were handed over and becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago, according to people with knowledge of his behavior at the time.
Trump even asked Fitton at one point to brief his attorneys, said a person familiar with the matter.

"The moment Tom got in the boss' ear, it was downhill from there," said a person close to the former President, who spoke on the condition of anonymity to discuss internal matters.

In a phone interview with CNN, Fitton would neither confirm nor deny conversations he's had with Trump, but noted that he has been vocal on social media and television that Trump had the right to keep the documents he took with him at the end of his presidency because they inherently were personal.
Trump's interactions with Fitton shed new light on his evolving— and often conflicting— posture toward the Archives dating back to before he even left office and his recent reluctance to hand over more documents after initially giving up the 15 boxes in January. While he was in contact with Fitton behind the scenes, Trump continued to claim publicly that he was cooperating with government officials.
Trump didn't completely stonewall the government as Fitton had advised, turning over some material in June following a meeting between his lawyers and federal investigators at Mar-a-Lago. But after a Trump lawyer claimed all classified material had been provided, investigators developed evidence suggesting that was not the case, leading to the August 8 search.
A similar dissonance has emerged between Trump's private and public response to the FBI's search of his Mar-a-Lago resort.
Publicly, Trump and his allies have celebrated the surge in enthusiasm and fundraising among Republicans — with the former President painting himself as a victim of the "deep state." Some in Trump's orbit have even gone so far as to indicate that a potential indictment would give Trump a political boost as he mulls another presidential run.

But privately, the former President and his allies have become increasingly concerned. One source close to the former President told CNN that Trump has posed questions about a potential indictment to members of his inner circle. Another adviser acknowledged that while Trump has certainly been in legal peril before, including while he was president, this seems different and potentially more dangerous, particularly because the former President no longer has the legal protections afforded to the executive office.
A spokesperson for Trump did not respond to multiple requests for comment.
The actions of Trump's legal team since the FBI's search -- including a legal filing seeking a "special master" that a judge found problematic and told the team to clarify by Friday -- have only fueled questions about Trump's strategy as his legal woes have multiplied.

Trump's team seems to be primarily concerned with the public relations fight -- and Trump's political prospects. While Trump has publicly called for the release of the affidavit justifying the search of his residence, his lawyers have yet to take any legal action to seek its disclosure.
Meanwhile, Fitton's conservative Judicial Watch, which frequently uses litigation to try to pry loose government activity and records, has filed to unseal the affidavit. So has CNN, along with other news outlets, including The Washington Post, NBC News, and Scripps.
FedExing Kim Jong Un's letters
When federal agents arrived at Trump's oceanfront estate on August 8, more than a year had passed since Archives officials first began asking representatives of the former President to return various materials that were removed from the White House and taken to Mar-a-Lago.
Among them had been Trump's correspondence with North Korean leader Kim Jong Un.

At one point during the protracted negotiations, a senior Archives official instructed Scott Gast, a former lawyer in Trump's White House counsel's office who had been appointed to coordinate with the National Archives, to send the letters using FedEx's overnight service.
"Please let me know before you mail it and then pass along the tracking code once it has been sent. I need to make sure I have staff on this end to receive the package," the official wrote to Gast and others in a June 2021 email obtained by CNN.
In the end, it took seven months for the Archives to finally receive the Kim letters. They were contained in the 15 boxes that Trump aides allowed Archives officials to arrange for pick up from Mar-a-Lago earlier this year, which contained 700 pages of classified documents, according to the Archives.
Sources close to the former President said his willingness to cooperate with Archives and, eventually, federal investigators broke down further once Fitton became a familiar voice inside his orbit.
Fitton told Trump that he had case law on his side due to Fitton's own failed effort a decade ago to gain access to certain records from former President Bill Clinton's time in office. In 2012, Judicial Watch sued to require the Archives to designate as presidential records audio recordings then-President Clinton made with a historian named Taylor Branch. Doing so would make them subject to Freedom of Information Act requests.
The suit was eventually dismissed by a judge, who wrote that NARA "does not have the authority to designate materials as 'presidential records'" and "lacks any right, duty or means to seize control of them."
Even though the Clinton case did not involve classified records, Fitton, nevertheless, believes his case proves Trump has the right to keep his records.
"I have been quite clear that President Trump is being abused here and the Justice Department has changed its position that they had in the Clinton case," Fitton told CNN. After the 15 boxes were returned, "I noted at the time that it was at odds with the position of the Justice Department in the Clinton-Taylor Branch case."
Legal concerns
Even people close to the former President have begun to privately question the competence of the legal team around him, particularly Christina Bobb, the former One America News Network TV host who has become one of the faces of Trump's legal team in the aftermath of the Mar-a-Lago search.
In her recent appearances across conservative media, Bobb has propagated a litany of conspiracy theories about the Mar-a-Lago search, including the baseless allegation that the FBI planted evidence while on Trump's property.

Bobb previously assisted Rudy Giuliani's behind-the-scenes efforts to overturn the 2020 election results. She signed the warrant receipts after the FBI searched Mar-a-Lago.
Bobb did not respond to a request for comment.
Last week, Fox News host Laura Ingraham, who has been a vocal supporter of Trump on her program, pushed back on Bobb over the decision by Trump's legal team not to file or join any motions related to the release of the federal affidavit filed to justify the search warrant.
"Are you not concerned that because you didn't join any of these motions for the full release of this affidavit that you are then waiving possible objections to the way redactions are being done by the Justice Department later on?" Ingraham asked Bobb.
Bobb replied that the team was going to wait and see what happened with the unsealing of the affidavit.
It took two weeks before Trump's lawyers formally waded into the legal fight over the search warrant. And when they finally did on Monday, their motion had numerous legal flaws and drew criticism from legal experts on both sides of the aisle. The motion was filed in a separate case, putting it before a different judge than Florida Magistrate Judge Bruce Reinhart, who approved the search warrant. That judge, District Court Judge Aileen Cannon, gave Trump's legal team until Friday to refine its legal arguments as part of its request for a "special master" — a third party attorney — to oversee the review of evidence obtained during the search.
While Trump's legal team has not filed any motions to unseal the affidavit, Trump and his legal team have argued publicly that it should be released.
On Thursday, Reinhart ruled that the Justice Department must release a redacted version of the affidavit by noon on Friday.


Another lawyer representing Trump, Alina Habba, suggested in a TV appearance Tuesday that the former President wants the DOJ to release the names of the witnesses who helped secure the search warrant for Mar-a-Lago, which would be contained in the affidavit and which government attorneys have argued could chill future witness cooperation.
"The president's position is the same as what I would advise him, which is to ask (the DOJ) to uncover everything so we can see what's going on. I understand the witness protection issue, but at the same time, these witnesses are truly not going to be concealed for very long," Habba said on conservative network Newsmax. "That's just not the nature of the DOJ and the FBI, and unfortunately in our country there's always leaks."
In addition to Bobb and Habba, Trump is being represented by Evan Corcoran, an attorney who has also represented former Trump aide Steven Bannon, and Florida-based attorney Lindsey Halligan, whose background is in insurance litigation. Trump has also retained Jim Trusty, a former assistant US attorney and Justice Department prosecutor, who is widely seen in his orbit as the most capable among his team.
As they've sought to undercut the federal probe, Trump's team and his allies have put forward additional theories that quickly wilted under scrutiny.
John Solomon, a conservative writer and one of Trump's designees to the Archives, read a statement from Trump's team claiming Trump had a "standing order" to declassify documents he took from the Oval Office to the White House residence -- something 18 former administration officials told CNN was patently untrue. Others have suggested the General Services Administration, a small government agency that helps with the presidential transition, was responsible for the documents that were sent to Mar-a-Lago.
The GSA said the responsibility for what is moved when a president leaves office rests entirely with the outgoing president and staff.

Trump wants political fight not a legal one
Trump's advisers have made it clear they want this fight to be a political not legal battle.
On Monday night, Solomon published a letter sent by the National Archives to Trump's legal team in May.
The letter stated clearly that the Archives had retrieved more than 100 classified documents totaling more than 700 pages, including some with the highest levels of classification.

"It shows that Donald Trump and his team knew...they were in possession of large amounts of highly classified information," said Elie Honig, a former Assistant US Attorney for the Southern District of New York and a CNN legal analyst. "This letter makes clear [Trump's team] was delaying."
While many legal experts shared this sentiment and said the letter was damning to Trump, the former President seemed to believe the letter showcased a political win — claiming it proved that he was the victim of a "witch hunt." Trump has pointed to the letter's mention of the communications the Archives had with the Biden White House over privilege issues, after the White House counsel's office was consulted over granting the FBI access to the boxes the Archives took from Mar-a-Lago. That was unrelated to the search warrant, however.
Trump's allies in conservative media have picked up on the narrative and amplified it. "The letter revealed that Joe Biden empowered the National Archives to waive any claims to executive privilege Trump might assert to block the DOJ from gaining access to the documents," conservative personality Dan Bongino said on his program.
Trump and his allies, however, have conflated the executive privilege questions over the documents Trump had handed over to the Archives with the FBI's search warrant, which the Biden White House says it had no knowledge of.
The White House's counsel's office deferred the decision to the archivist, declining to weigh-in on whether the FBI should have been allowed to access the documents the Archives retrieved from Mar-a-Lago "given the political implications and optics," said Bradley Moss, a Washington-based national security lawyer.
"If anything, the Biden White House went out of its way to not get involved in whether or not this became a truly criminal matter," Moss said.
Some of Trump's allies believe the former President is more secure than ever, at least politically speaking. In the days following the FBI search, Trump raised millions of dollars and saw an outpouring of support -- including from his potential GOP rivals in a 2024 presidential primary.
"Republican voters are looking at this [search] and saying if they can do this to him, they can do this to anyone," one source close to Trump said. "It's exactly where we want them to be."

[The Minsky Moment]

That 2012 case is not helpful for Trump.  It does indicate NARA can't seize documents itself under the Presidential Records Act (PRA).  But that's why NARA referred the matter to DOJ, which seized them under the authority of the US criminal code, not the PRA.

Truly awful legal advice.

[grumbler]

Trump takes bad legal advise from bad actors.  Film at eleven.

[The Minsky Moment]

+ The original 15 boxes turned over to the Archivist includes intelligence information gathered from clandestine human sources and signals derived intelligence, among others

+ The classified material was unfoldered and intermixed with other records.

+ Some of the material has handwritten notes from Trump

+ The DOJ addressed the Patel de-classification claims in the affidavit, although the response is redacted.

+ On June 8 2022 DOJ counsel put Trump on notice that Mar-a-Lago was not an authorized location to store classified documents.  (As of that date, Trump had represented through counsel that all classified docs had been returned)


https://storage.courtlistener.com/recap/gov.uscourts.flsd.617854/gov.uscourts.flsd.617854.102.1.pdf

[crazy canuck]

+ On June 8 2022 DOJ counsel put Trump on notice that Mar-a-Lago was not an authorized location to store classified documents. (As of that date, Trump had represented through counsel that all classified docs had been returned)


https://storage.courtlistener.com/recap/gov.uscourts.flsd.617854/gov.uscourts.flsd.617854.102.1.pdf

In better times, this alone would have ended a presidential hopeful's aspirations.

[The Minsky Moment]

There is also a letter attached from Trump's counsel that states that Presidents have authority to declassify documents but does not contend that Trump ever did so with respect to the Mar-a-Largo documents.  It then goes on to discuss the documents as if they are classified.

[Maladict]

+ The classified material was unfoldered and intermixed with other records.

I got yelled at by NARA staff for having two, closed, folders somewhat near each other on the same table. 
You should see the process involved in getting a staple removed from a document. Trump must be the worst thing that ever happened to them.

[Josquius]

There is also a letter attached from Trump's counsel that states that Presidents have authority to declassify documents but does not contend that Trump ever did so with respect to the Mar-a-Largo documents.  It then goes on to discuss the documents as if they are classified.

Ah but see he's still the president see.

... Which will make the next election weird.

[The Minsky Moment]

This is going to come down to the Supreme Court, I think.
It does not appear that Trump has a defense under the laws as written.

He doesn't have a constitutional defense either, under the controlling Nixon-era precedents.  But this Supreme Court has shown they are willing to shoot down longstanding precedents from that era. 

[grumbler]

There is also a letter attached from Trump's counsel that states that Presidents have authority to declassify documents but does not contend that Trump ever did so with respect to the Mar-a-Largo documents.  It then goes on to discuss the documents as if they are classified.

Not even the President can classify and declassify documents on a whim.  Declassified documents must be so marked wherever the classification appears, and the authority for declassification has to be spelled out on the cover.  There's no such thing as a verbal declassification, even for the POTUS.

[crazy canuck]

There is also a letter attached from Trump's counsel that states that Presidents have authority to declassify documents but does not contend that Trump ever did so with respect to the Mar-a-Largo documents.  It then goes on to discuss the documents as if they are classified.

Not even the President can classify and declassify documents on a whim.  Declassified documents must be so marked wherever the classification appears, and the authority for declassification has to be spelled out on the cover.  There's no such thing as a verbal declassification, even for the POTUS.

That is probably why Trump's lawyer did not attempt to claim that the documents had been declassified.

[The Minsky Moment]

Classification is a red herring; the DOJ isn't seeking to charge under Section 1924 (the code provision governing mis-use of classified docs), as there are questions whether it applies to the President, and it doesn't apply to ex-Presidents.  They are investigating under US code provisions that don't turn on classification.  But g is right - there is zero evidence of declassification.

Executive privilege is also a red herring because the privilege exists to protect the confidentiality of executive communications but DOJ isn't seeking to attack that confidentiality or reveal the contents of the documents; on the contrary, they are acting to preserve their confidentiality.  DOJ is not seeking to use the contents of the documents as evidence against Trump; it is using the mere fact of their presence at Mar-a-lago to establish the elements of the crime.

What's left is an argument that the criminal statutes relating to mis-use of government records are unconstitutional as applied to ex-Presidents.  But it is unclear how that argument could be made, especially to a Court supposedly adhering to textualist interpretation of the Constitution. Ex-Presidents have no status or powers under the Constitution whatsoever. Any assertion of right could only be premised on separation of powers grounds.  But how can Trump claim a violation of separation of powers based on actions taken by the DOJ and the Archivist, both officers of the executive branch operating under valid Presidential authority?

[viper37]

There's no such thing as a verbal declassification, even for the POTUS.

really?  I'm surprised...

[HisMajestyBOB]

So Biden didn't just declassify everything by waving his arms?

https://omaha.com/news/biden-reacts-to-trumps-claim-he-declassified-docs/video_a5f717bd-9b75-5f5e-a84d-a52db1488dd1.html