I don't have access to McCarthy's full piece, so can't comment on it directly, but I did read the full DoJ filing on my way into the office today. A couple of reactions:
1. Trump was not "bulldozed". He had plenty of time to petition for a special master (could have done so the day the warrant was executed), but chose to wait weeks to do so. Should the DoJ have waited and waited and waited to see what Trump would do before starting the difficult work of determining which intelligence sources might be compromised due to Trump's idiocy? (In the filing, the DoJ mentions that a number of top secret documents were tagged with HCS status, which is reserved for documents that may reveal a human source.)
2. In requesting a special master, the DoJ points to the rules of federal procedure that comment that a special master IS NOT appropriate in these cases, and the cases that Team Trump cite are related to law firms being raided, not resorts or private residences.
3. On the issue of personal property, it's probably worth reminding people that it wasn't Joe Biden or the DoJ who were so haphazard in their document practices that any private property alleged to have been seized was mixed in with the documents that TRUMP DOES NOT OWN.
This is one of those cases where the filing is readily available[1], easily readable, and not a long read. You should take a look at it yourself before launching into wide-ranging proclamations that "the government’s position is that Trump is a clear and present danger to national security, a mastermind who is plotting seditious and treasonous acts against the United States; and also that he’s a bumbling fool, who, despite being a billionaire, left the evidence in desk drawers in his office". The story you'll read in the filing is that the gov't made MULTIPLE attempts to retrieve those sensitive documents for almost two years, and Team Trump either outright lied when they stated that there were no more documents at Mar-a-Lago, and delayed and made excuses when that was readily disproven. Given the pattern of non-cooperation that the DoJ details in the filing, it's amazing that they were as patient as they were when it came to securing and recovering these documents. No grand conspiracy here - just Team Trump caught screwing up (again) and working harder to hide the f-up than just getting it resolved properly in the first place.
To mitigate the damage to national security that may be underway due to Trump's carelessness. If any of those documents (especially the HCS ones) included enough clues to compromise intelligence or sources, you want to deal with that ASAP.
From Klon Kitchen (a former member of the CIA writing for The Dispatch) this morning[1]:
"TMD: In addition to the Confidential, Secret, and Top Secret classifications highlighted by the Justice Department, the partially redacted affidavit released last Friday noted some of the documents recovered from Mar-a-Lago were marked as 'HCS' and 'SCI.' What do those labels mean?"
"Kitchen: HCS is human intelligence reporting, and it’s a marking that both the CIA and Defense Department human intelligence intel controllers require on any information that contains human source reporting. And by having HCS in it, that reporting is in more restricted distribution channels than even normal top secret information."
"And then SCI — all SCI is Top Secret, but not all top secret is SCI. Information that is top secret almost always includes SCI. The presence of SCI or HCS is one of the things that takes a piece of intelligence across the goal line from Secret to Top Secret. HCS and SCI are very common in top secret documents, but anything that has that information is very, very sensitive. It moves the material into a category of information that is truly in need of protection, and has a whole host of handling instructions that don’t include taking it into your basement and just allowing it to just be stored in a box."
"TMD: What are the real-world stakes of documents like the ones that were allegedly stored at Mar-a-Lago falling into the wrong hands?"
"Kitchen: On the lower end of things, there’s the risk of that source or method of information drying up, and we just lose it. Because this is the president’s information, we give him very particular stuff. We don’t bother him with all the things that guys like me used to have to read all day. He gets stuff that really matters, where there’s a decision to be made, and where a piece of intelligence meaningfully changes the situation. Anyone who sees this material could theoretically be able to understand a situation, and how we know about it, and what we’re thinking about it, and what we’re doing about it, better than 95 percent of the entire intelligence community."
"You have to think about why we’re giving the president a piece of information in the first place. We are trying to inform him of something that is truly important, so that he is not caught unaware, or so that he can make a decision about an opportunity, or about defending against a risk. And we have to give information to the president in such a way as to where he understands why we’re making a conclusion that we’re making, and how reliable or trustworthy that assessment is."
"If we say, for example, 'Hey, Putin is going to invade Ukraine on Thursday at 3 p.m.,' the president will rightly ask, 'Well, how do you know that? Why do you believe that just because this guy says so?' 'Oh, well actually sir, he’s the Deputy Minister of Defense, and he’s been on our payroll for three years.'"
"That kind of stuff gets captured, and if that’s found out, even if we don’t say 'it was the Deputy Minister of Defense,' Putin knows, 'Okay, there were six people who knew the answer to this, I’ll just kill them all to make sure.' It’s that kind of thing."
Team Trump had PLENTY of time to do the right thing here and blew it. If anything, the DoJ is being much more reasonable than anyone has any reason to expect them to be, given the GINORMOUS mess that Trump created all on his own.
You never fail to amaze me Chris with your research and rebuttal. Kudos. Steve's thoughts are always an anomaly to me. I guess it's no shock as his friend EE pounded me with 4 emails this morning, all deleted without a second look btw.
There is simply no defense for trumps actions, yet we continue to see the massive effort to shift it away from the orange guys stupidity and blame someone else. He had every opportunity to return the documents. He elected not to. He elected to have his attorney lie about them being returned. Wait? Why?
At least he had a great excuse..."MINE." Says it all doesn't it. I can't imagine why Steve struggles to get his head around it.
Not a lot of "research" went into this. I just happen to be subscribed to a number of pretty good newsletters* with a decent train ride to the office every morning to read them, so that when opportunities to regurgitate them pop up, I'm ready.
Andrew McCarthy’s latest post says the DOJ is likely to indict Trump on obstruction and causing false statements to be made to the FBI.
I think they should do it without delay if they have the evidence. Trump’s move will be to flex violence. If DOJ does this, they must clean house and remove any whiff of partisan politics. Biden must stand strong and be prepared to call out the National Guard to maintain order. This must not be political.
As Reagan once said, if it takes a bloodbath, let’s get it over with.
Either way, I’m tired of posturing and political pussyfooting. The GOP bent to Trump from the first candidate debate and now he thinks he’s invincible, protected by his MAGA thugs. Well when the Bradley Fighting Vehicle comes rumbling down the street let’s see who’s the law and order president.
Ideally it would be without delay: however, I can see that this may run into DOJ's policy to avoid the appearance of election tampering regarding November's midterms. I don't agree that that applies, as Trump is neither running for any office nor are any of these elections being held for POTUS - but I can see that being a possible delaying factor.
For folks wishing to read the McCarthy piece, I was able to get it from archive.is[1].
Steve, I'm curious about an issue that McCarthy almost raises, which is to what extent a former President can exert an "executive privilege" claim against the current President, who is acting through his Executive agencies (the DoJ in this case). (Thus not creating a Separation of Powers issue, had Congress sent someone to grab the papers instead.)
Any thoughts on that? The DoJ filing leaned heavily on the position that Trump enjoys NO protection on that front, leaving the attorney-client privilege issue as his sole remaining defense.
From what I was able to gather (and McCarthy touched on) is that the issue of FPOTUS executive privilege relies heavily on the umbrella the current POTUS provides. It’s the same with access to classified information btw. The current POTUS has a very wide latitude in what is shared or able to be “on loan” or in possession by FPOTUS’s. In Trump’s case, uniquely, he is excluded from any privileges other than what is prescribed by law. I think if it was politically possible, Biden would strip Secret Service protection from Trump too. There’s a stipend for office expenses for FPOTUS, and I bet Trump has his company collect rent (a thing to check on). In any case, we’re in uncharted territory. The loss of all trust between an FPOTUS and the government has not been seen in history, including Nixon. The courts can’t rely on former cases as authoritative here. Which is why Trump’s motion for a special master is important.
Trump’s lawyers did float the idea to the DOJ prior to filing their motion. The first motion was for a cease and desist, which the judge did not grant, but also did not deny. This could account for the 2 week delay.
I find you’re missing the big view,,,,,protecting our nation’s security. The man has a checkered past, to what extent can be argued. He should not have top security or national security documents period. His disdain for the rule of law is legendary. What would you have the government do that they did not try? No one trusts the government or trump! Yet we must abide by rules and the law.
The doctrine is not “he’s guilty because of his past” or “he looks guilty.” I believe Trump violated PRA and laws governing handling classified information. Precisely some of the laws that James Comey said HRC violated but he would not prosecute. Apparently she didn’t look guilty enough. If the government has evidence of Trump conspiring to sell or otherwise use the information then let’s see it. If it’s just about PRA I see no reason the DOJ should not wait and take this at its own pace.
Trump may just be a victim of his own strengthening of the applicable laws regarding these documents, driven by the post-Clinton non-indictment. And DOJ appears to have been moving at their own pace, and not just from a PRA perspective but also for other statutes.
"What became law was S. 139. It had been introduced by Sen. Orrin G. Hatch (R-Utah) as the Rapid DNA Act of 2017. But sometimes Congress hollows out existing legislation and replaces it entirely with other legislation to move the process forward more quickly. So S. 139 was replaced with H.R. 4478, which extended Section 702 for another five years."
"It also had a stipulation editing 18 U.S. Code §1924. It originally read:"
"Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both."
"With Trump’s signing S. 139 into law, that became: '… shall be fined under this title or imprisoned for not more than five years, or both.' And with that, it became a felony."[1]
Are you for , or against tRump, Mr. Berman? "Democrats are more toxic" and have politically biased FBI agents protecting Hunter? You ignore that the Mar-a-Lago subpoena was drawn up by a Florida FBI office, not the DC office you accuse of coddling Hunter. Also you ignore that FBI Director Wray is a tRump appointee, not Biden [as is Judge Cannon]. Also the AG at the time of the investigation of Hunter was Bill Barr, another tRump appointee and acolyte [at least until Barr wouldn't validate the "stolen election " crap - hence the ketchup incident in WH dinning room].... Who's toxic ????
I do not define things in that way “for” or “against” Trump. Doing so leads to all kinds of unintended and negative results.
I am “for” the rule of law, the equal application of it, and strong protections from political quid pro quo and vengeance sprees against any politician. Regardless of someone’s opinion of Trump as president, we can’t set up precedents that could be used later by someone worse than him. And regardless of how awful he is, 70 million voted for him, and there’s no indication he can’t get that number again in 2024, especially if it appears he’s been railroaded--even a whiff of it. What I or you think he deserves is beside the point. If we make it “for” or “against” Trump, Democrats will end up outlawing the GOP as a whole because that’s the logical conclusion.
If anything the DOJ has provided Trump great leeway in returning these documents because he is the FPOTUS. Anybody else would have seen far more immediate action taken against them.
I'd also argue that Trump is capable of conspiring to commit crimes: he's just really really bad at it.
Sep 1, 2022·edited Sep 1, 2022Liked by Chris J. Karr
An excellent point by Asha Rangappa:
"The fact that Trump never formally declassified anything, and also never raised it to DOJ, but is asserting it (unofficially) now, is actually an incredibly damning admission by Trump. That's because it means that *he wanted these secrets to still have value*"
If Trump intended to both hold on to these documents and retain their value, then is it safe to call it a conspiracy?
I don't have access to McCarthy's full piece, so can't comment on it directly, but I did read the full DoJ filing on my way into the office today. A couple of reactions:
1. Trump was not "bulldozed". He had plenty of time to petition for a special master (could have done so the day the warrant was executed), but chose to wait weeks to do so. Should the DoJ have waited and waited and waited to see what Trump would do before starting the difficult work of determining which intelligence sources might be compromised due to Trump's idiocy? (In the filing, the DoJ mentions that a number of top secret documents were tagged with HCS status, which is reserved for documents that may reveal a human source.)
2. In requesting a special master, the DoJ points to the rules of federal procedure that comment that a special master IS NOT appropriate in these cases, and the cases that Team Trump cite are related to law firms being raided, not resorts or private residences.
3. On the issue of personal property, it's probably worth reminding people that it wasn't Joe Biden or the DoJ who were so haphazard in their document practices that any private property alleged to have been seized was mixed in with the documents that TRUMP DOES NOT OWN.
This is one of those cases where the filing is readily available[1], easily readable, and not a long read. You should take a look at it yourself before launching into wide-ranging proclamations that "the government’s position is that Trump is a clear and present danger to national security, a mastermind who is plotting seditious and treasonous acts against the United States; and also that he’s a bumbling fool, who, despite being a billionaire, left the evidence in desk drawers in his office". The story you'll read in the filing is that the gov't made MULTIPLE attempts to retrieve those sensitive documents for almost two years, and Team Trump either outright lied when they stated that there were no more documents at Mar-a-Lago, and delayed and made excuses when that was readily disproven. Given the pattern of non-cooperation that the DoJ details in the filing, it's amazing that they were as patient as they were when it came to securing and recovering these documents. No grand conspiracy here - just Team Trump caught screwing up (again) and working harder to hide the f-up than just getting it resolved properly in the first place.
[1] https://www.foxnews.com/politics/doj-filing-trump-raid-special-master-request-read-document
I know all that. It’s not the point. Yes, the government is supposed to wait. Why rush?
To mitigate the damage to national security that may be underway due to Trump's carelessness. If any of those documents (especially the HCS ones) included enough clues to compromise intelligence or sources, you want to deal with that ASAP.
From Klon Kitchen (a former member of the CIA writing for The Dispatch) this morning[1]:
"TMD: In addition to the Confidential, Secret, and Top Secret classifications highlighted by the Justice Department, the partially redacted affidavit released last Friday noted some of the documents recovered from Mar-a-Lago were marked as 'HCS' and 'SCI.' What do those labels mean?"
"Kitchen: HCS is human intelligence reporting, and it’s a marking that both the CIA and Defense Department human intelligence intel controllers require on any information that contains human source reporting. And by having HCS in it, that reporting is in more restricted distribution channels than even normal top secret information."
"And then SCI — all SCI is Top Secret, but not all top secret is SCI. Information that is top secret almost always includes SCI. The presence of SCI or HCS is one of the things that takes a piece of intelligence across the goal line from Secret to Top Secret. HCS and SCI are very common in top secret documents, but anything that has that information is very, very sensitive. It moves the material into a category of information that is truly in need of protection, and has a whole host of handling instructions that don’t include taking it into your basement and just allowing it to just be stored in a box."
"TMD: What are the real-world stakes of documents like the ones that were allegedly stored at Mar-a-Lago falling into the wrong hands?"
"Kitchen: On the lower end of things, there’s the risk of that source or method of information drying up, and we just lose it. Because this is the president’s information, we give him very particular stuff. We don’t bother him with all the things that guys like me used to have to read all day. He gets stuff that really matters, where there’s a decision to be made, and where a piece of intelligence meaningfully changes the situation. Anyone who sees this material could theoretically be able to understand a situation, and how we know about it, and what we’re thinking about it, and what we’re doing about it, better than 95 percent of the entire intelligence community."
"You have to think about why we’re giving the president a piece of information in the first place. We are trying to inform him of something that is truly important, so that he is not caught unaware, or so that he can make a decision about an opportunity, or about defending against a risk. And we have to give information to the president in such a way as to where he understands why we’re making a conclusion that we’re making, and how reliable or trustworthy that assessment is."
"If we say, for example, 'Hey, Putin is going to invade Ukraine on Thursday at 3 p.m.,' the president will rightly ask, 'Well, how do you know that? Why do you believe that just because this guy says so?' 'Oh, well actually sir, he’s the Deputy Minister of Defense, and he’s been on our payroll for three years.'"
"That kind of stuff gets captured, and if that’s found out, even if we don’t say 'it was the Deputy Minister of Defense,' Putin knows, 'Okay, there were six people who knew the answer to this, I’ll just kill them all to make sure.' It’s that kind of thing."
Team Trump had PLENTY of time to do the right thing here and blew it. If anything, the DoJ is being much more reasonable than anyone has any reason to expect them to be, given the GINORMOUS mess that Trump created all on his own.
[1] https://morning.thedispatch.com/p/the-morning-dispatch-trump-team-likely
You never fail to amaze me Chris with your research and rebuttal. Kudos. Steve's thoughts are always an anomaly to me. I guess it's no shock as his friend EE pounded me with 4 emails this morning, all deleted without a second look btw.
There is simply no defense for trumps actions, yet we continue to see the massive effort to shift it away from the orange guys stupidity and blame someone else. He had every opportunity to return the documents. He elected not to. He elected to have his attorney lie about them being returned. Wait? Why?
At least he had a great excuse..."MINE." Says it all doesn't it. I can't imagine why Steve struggles to get his head around it.
Not a lot of "research" went into this. I just happen to be subscribed to a number of pretty good newsletters* with a decent train ride to the office every morning to read them, so that when opportunities to regurgitate them pop up, I'm ready.
* Including The Racket!
Two comments:
1. I think Trump’s special master lawsuit might have been treated more favorably if it had been filed in a timely manner.
2, Thinault’s dismissal seems to suggest that the FBI is not tolerant of agents who let political biases affect their work.
Andrew McCarthy’s latest post says the DOJ is likely to indict Trump on obstruction and causing false statements to be made to the FBI.
I think they should do it without delay if they have the evidence. Trump’s move will be to flex violence. If DOJ does this, they must clean house and remove any whiff of partisan politics. Biden must stand strong and be prepared to call out the National Guard to maintain order. This must not be political.
As Reagan once said, if it takes a bloodbath, let’s get it over with.
Either way, I’m tired of posturing and political pussyfooting. The GOP bent to Trump from the first candidate debate and now he thinks he’s invincible, protected by his MAGA thugs. Well when the Bradley Fighting Vehicle comes rumbling down the street let’s see who’s the law and order president.
Ideally it would be without delay: however, I can see that this may run into DOJ's policy to avoid the appearance of election tampering regarding November's midterms. I don't agree that that applies, as Trump is neither running for any office nor are any of these elections being held for POTUS - but I can see that being a possible delaying factor.
Trump may not have the wherewithal to come up with this conspiracy but I argue there are many people around him who do. Ultimately he is responsible.
For folks wishing to read the McCarthy piece, I was able to get it from archive.is[1].
Steve, I'm curious about an issue that McCarthy almost raises, which is to what extent a former President can exert an "executive privilege" claim against the current President, who is acting through his Executive agencies (the DoJ in this case). (Thus not creating a Separation of Powers issue, had Congress sent someone to grab the papers instead.)
Any thoughts on that? The DoJ filing leaned heavily on the position that Trump enjoys NO protection on that front, leaving the attorney-client privilege issue as his sole remaining defense.
[1] https://archive.ph/yId9G
From what I was able to gather (and McCarthy touched on) is that the issue of FPOTUS executive privilege relies heavily on the umbrella the current POTUS provides. It’s the same with access to classified information btw. The current POTUS has a very wide latitude in what is shared or able to be “on loan” or in possession by FPOTUS’s. In Trump’s case, uniquely, he is excluded from any privileges other than what is prescribed by law. I think if it was politically possible, Biden would strip Secret Service protection from Trump too. There’s a stipend for office expenses for FPOTUS, and I bet Trump has his company collect rent (a thing to check on). In any case, we’re in uncharted territory. The loss of all trust between an FPOTUS and the government has not been seen in history, including Nixon. The courts can’t rely on former cases as authoritative here. Which is why Trump’s motion for a special master is important.
Trump’s lawyers did float the idea to the DOJ prior to filing their motion. The first motion was for a cease and desist, which the judge did not grant, but also did not deny. This could account for the 2 week delay.
I find you’re missing the big view,,,,,protecting our nation’s security. The man has a checkered past, to what extent can be argued. He should not have top security or national security documents period. His disdain for the rule of law is legendary. What would you have the government do that they did not try? No one trusts the government or trump! Yet we must abide by rules and the law.
The doctrine is not “he’s guilty because of his past” or “he looks guilty.” I believe Trump violated PRA and laws governing handling classified information. Precisely some of the laws that James Comey said HRC violated but he would not prosecute. Apparently she didn’t look guilty enough. If the government has evidence of Trump conspiring to sell or otherwise use the information then let’s see it. If it’s just about PRA I see no reason the DOJ should not wait and take this at its own pace.
Trump may just be a victim of his own strengthening of the applicable laws regarding these documents, driven by the post-Clinton non-indictment. And DOJ appears to have been moving at their own pace, and not just from a PRA perspective but also for other statutes.
"What became law was S. 139. It had been introduced by Sen. Orrin G. Hatch (R-Utah) as the Rapid DNA Act of 2017. But sometimes Congress hollows out existing legislation and replaces it entirely with other legislation to move the process forward more quickly. So S. 139 was replaced with H.R. 4478, which extended Section 702 for another five years."
"It also had a stipulation editing 18 U.S. Code §1924. It originally read:"
"Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both."
"With Trump’s signing S. 139 into law, that became: '… shall be fined under this title or imprisoned for not more than five years, or both.' And with that, it became a felony."[1]
[1] https://www.washingtonpost.com/politics/2022/08/10/trump-fbi-search-surveillance-law/
Are you for , or against tRump, Mr. Berman? "Democrats are more toxic" and have politically biased FBI agents protecting Hunter? You ignore that the Mar-a-Lago subpoena was drawn up by a Florida FBI office, not the DC office you accuse of coddling Hunter. Also you ignore that FBI Director Wray is a tRump appointee, not Biden [as is Judge Cannon]. Also the AG at the time of the investigation of Hunter was Bill Barr, another tRump appointee and acolyte [at least until Barr wouldn't validate the "stolen election " crap - hence the ketchup incident in WH dinning room].... Who's toxic ????
I do not define things in that way “for” or “against” Trump. Doing so leads to all kinds of unintended and negative results.
I am “for” the rule of law, the equal application of it, and strong protections from political quid pro quo and vengeance sprees against any politician. Regardless of someone’s opinion of Trump as president, we can’t set up precedents that could be used later by someone worse than him. And regardless of how awful he is, 70 million voted for him, and there’s no indication he can’t get that number again in 2024, especially if it appears he’s been railroaded--even a whiff of it. What I or you think he deserves is beside the point. If we make it “for” or “against” Trump, Democrats will end up outlawing the GOP as a whole because that’s the logical conclusion.
If anything the DOJ has provided Trump great leeway in returning these documents because he is the FPOTUS. Anybody else would have seen far more immediate action taken against them.
I'd also argue that Trump is capable of conspiring to commit crimes: he's just really really bad at it.
An excellent point by Asha Rangappa:
"The fact that Trump never formally declassified anything, and also never raised it to DOJ, but is asserting it (unofficially) now, is actually an incredibly damning admission by Trump. That's because it means that *he wanted these secrets to still have value*"
If Trump intended to both hold on to these documents and retain their value, then is it safe to call it a conspiracy?
https://twitter.com/AshaRangappa_/status/1565045927366344704?s=20&t=HPIkehUdH1TJkhWIBkLrPA