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Monday, December 09, 2019

Tag: justice department

No Comparison: The Biden And Trump Classified Documents Cases

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I’m getting a creepy feeling this subject is going to be talked about all year and into the next, making it prime meat as a campaign issue against President Joe Biden if he decides to run for reelection. And there is more: Be forewarned that the fairness doctrine doesn’t apply in politics.

Today, the Republican-led House Oversight Committee wrote to the White House and asked for the visitor logs for Biden’s house in Wilmington, Delaware. "Without a list of individuals who have visited his residence, the American people will never know who had access to these highly sensitive documents," Rep. James Comer (R-KY) wrote to White House Chief of Staff Ron Klain.

Take a deep breath before you read the next sentence. No, the House Republican chairman of the Oversight Committee didn’t send an equivalent letter to former president Donald Trump, asking for visitor logs for Mar-a-Lago. Can you imagine? They would have to send a box truck for the Mar-a-Lago logs, with all the weddings and fund raisers and Christmas and New Years celebrations held there every year.

As the New York Times proved in an excellent interactive photo piece a couple of months ago, there were not one, but two entrances to the Mar-a-Lago ballroom that had direct access to the stairway above it, at the top of which was Trump’s office, from which many of the most sensitive classified documents were recovered by the FBI during their August search of the property. There would also have to be a list of the many, many employees of caterers and staff of Mar-a-Lago who had access not only to the ballroom, but to the storage room in the basement where the chairs for events in the ballroom were stored. As we know, Trump kept classified documents in the basement storage room where there was no lock until the Department of Justice demanded that one be installed in June of last year.

Asked on a CNN Sunday morning show why he hadn’t requested visitor logs from Trump for his club/hotel/residence, Mar-a-Lago, Comer replied, "I don't feel like we need to spend a whole lot of time because the Democrats have done that for the past six years.”

So, there you have it: This is the way what must now be referred to as the Trump/Biden classified documents cases will play out between now and November of 2024. Remember all the excuses the Trump people and Republicans made for the presence of hundreds of classified documents recovered by the FBI from Mar-a-Lago? Oh, the documents ended up there because of the chaotic packing-up of Trump’s White House in the final days before January 20, 2021. It’s just a simple disagreement with the National Archives. Trump wasn’t aware of what was down there in some musty storage room in Mar-a-Lago! That was handled by underlings.

And of course, they argued that everybody did it, meaning that every president accidentally took classified documents from the White House when they left office.

That one stings a little, given the recent drip-drip-drip of stories about classified documents turning up in Biden’s garage (locked, he pointed out the other day) stored alongside his vintage Corvette.

James Sauber, one of the White House counsels, announced last week that “a small number” of classified documents had been found among Biden’s papers at the Penn Biden Center think tank in Washington. Then more classified documents were found at Biden’s home in Delaware. On Saturday, the White House said that five more pages of classified documents were found at Biden’s Delaware residence. In each case, the documents were reported to the National Archives (NARA), which sent people to retrieve them.

I hardly have to remind you what happened in the case of the Trump documents, but here it goes: NARA began to seek documents it thought had been taken by Trump from the White House back in mid-2021. Trump stiff-armed them until the NARA officials informed his lawyers that the agency was turning the case over to the Department of Justice. Suddenly, in January of 2022, Trump turned over 13 boxes of documents to the NARA, which found classified documents among them.

The DOJ stayed involved and sent a subpoena for classified documents to Trump in May. Trump’s lawyers responded in June, turning over an envelope containing several classified documents to representatives of the DOJ at that time. They also had one of Trump’s lawyers – who worked for his Super PAC – sign a statement saying the documents were recovered during a diligent search of Mar-a-Lago. It didn’t amount to a sworn statement that they had turned over all the classified documents Trump had, but it was close.

The DOJ developed information, apparently from employees in Mar-a-Lago, that there were more documents stored there, and in August executed a search warrant. They recovered 13,000 more documents from the basement storage room. Among those and other documents from Trump’s office were 113 more classified documents. The DOJ started calling Trump employees before a Washington D.C. grand jury. It turned out that several of those employees had lawyers paid for by organizations run by Trump, such as his Super PAC. Several of the Trump employees took the Fifth Amendment during their grand jury testimony.

Attorney General Merrick Garland appointed Jack Smith, who was serving as a war crimes prosecutor at the Court of International Justice at the Hague, as special prosecutor. He took over the documents investigation and has issued new subpoenas for more testimony about the documents case, as well as the investigation of Trump’s efforts to overturn the results of the 2020 election.

Now a second special prosecutor, Robert Hur, has been appointed to investigate the Biden classified documents. Biden’s lawyers have announced that they are fully cooperating with the investigation. In contrast, Trump filed suit in a Florida federal court last year to stop the use of the classified documents in the DOJ investigation, delaying the investigation for several months while the case wound its way not once, but twice, through the 11th Circuit Court of Appeals.

Finally, the 11th Circuit threw out Trump’s lawsuit. The “special master” process that had been ordered to go through all 13,000 of the seized documents was ended and the documents – all of them, classified and unclassified – were returned to the DOJ for their investigation.

So, you get the picture: Trump took thousands of documents from the White House on purpose and fought tooth and nail for two years to keep them and to stymie both the NARA and the DOJ. Biden took a small number of classified documents with him when he left the vice presidency – we don’t know the number, but it’s more than ten – and immediately turned them over to the National Archives and is cooperating with the DOJ and the special prosecutor appointed to investigate the case.

You can depend on House Republicans to continue to make a big deal about the Biden classified documents while pooh-poohing what Trump did. What else is new? It’s who they are, and it’s who Trump is, but it’s going to be a pain in the collective ass of the Democratic Party. House Republicans are writing letters and making requests now, but they will follow up with subpoenas – the same kind of subpoenas that multiple Trump witnesses either avoided or completely refused to comply with – Hi, Steve Bannon! – and we’ll hear about every single one of them, no matter what they end up proving – Hi! Benghazi Committee!

I hate to say this but watch this space. We’re only halfway through January. It’s promising to be a very, very long year.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this is reprinted with permission.

Judge Unseals Coup Evidence Implicating Scott Perry And Trump Attorneys

Federal investigators have examined email exchanges between three Trump-affiliated attorneys and far-right Rep. Scott Perry (R-PA), a key figure in Republican efforts to overturn the results of the 2020 presidential election, a newly released court order showed.

The revelation emerged after Chief Judge Beryl Howell of the district court in Washington, D.C., granted the Justice Department’s request to unseal two previous court rulings — a memorandum and order from June and a memorandum opinion from September — declaring that the requested communications weren’t protected by any claims of privilege.

The tranche included 37 email exchanges between Perry, coup-plotting Trump attorney John Eastman, and former Justice Department officials Jeffrey Clark and Ken Klukowski; an autobiography draft; and other writing in which Perry and the others discussed subverting the 2020 election.

Sections of the unsealed rulings — first reported by Politico — were redacted but nevertheless offer a clearer view into the DOJ’s swiftly expanding investigation into the January 6, 2021, Capitol attack and efforts by Trump and his allies to damage democracy irreversibly by keeping a defeated president in power.

The order disclosed details of the DOJ’s investigative processes from May through September — including investigators’ acquisition of over 130,000 documents through June search warrants — which included seizing Perry’s phone and searching Clark’s home in June.

The records included email conversations between Perry and Eastman about a phone call and communications between Clark and others disseminating news stories, the unsealed rulings showed, according to NBC News.

Last June the House Select Committee, a bipartisan congressional panel that has investigated the January 6 insurrection, aired testimony by former White House aide Cassidy Hutchinson that Perry had pushed for Clark to take over the DOJ to help illegally keep then-lame duck President Trump in power.

"He wanted Mr. Clark — Mr. Jeff Clark — to take over the Department of Justice," Hutchinson had told congressional investigators of Perry in footage aired at a televised hearing.

Howell’s June opinion highlighted several exchanges that the DOJ’s filter team, on the lookout for records protected by privilege, flagged, including an email Klukowski sent Perry on November 11, 2020, with an attachment titled "Electors Clause/The Legislature option," per Politico.

The document, whose author wasn’t identified, argued "in support of the proposition that 'The Constitution makes state legislatures the final authority on presidential elections,’” Howell noted in the opinion.

Klukowski, NBC News reported, sent Perry another email on Christmas eve with a document titled "State Legislatures Can Self-Convene to Appoint Presidential Electors." No author was named for this document either.

Howell agreed with the filter team in her ruling that the documents weren’t covered by privilege in Klukowski’s case because he "was still employed in the federal government and therefore Congressman Perry could not have been his client.”

In her September opinion, Howell ruled that about 331 documents obtained from Clark, including the outline of an autobiography that Clark had penned recounting Trump’s effort to install him as acting attorney general, weren’t protected by attorney-client privilege.

"The outline's conclusion does not contain thoughts or legal strategies related to the congressional committee investigations, but rather a promise to 'resist communism' and work on 'Covid litigation and against wokeism," Howell said.

Although all four men have loomed large in various government investigations into Trump’s failed 2020 coup, none have been charged.

Clark’s attorney issued a statement on Friday blasting Howell’s decision to unseal the order, decrying the release as “incumbent on those at the department who sought this unsealing to explain why doing so is anything other than a calculated move to increase pressure on those being scrutinized as part of the investigation and to prejudice a possible future jury pool.”

As Cryptocurrency Crashes, It's Orange Jumpsuit Time For Fraudsters

I follow the crooks and criminals so you don't have to -- but I need support to continue covering their misdeeds, so please consider becoming a paid Substack subscriber to my columns.

Count ’em: eight counts over 14 pages in the dry yet chilling language of the federal prosecutors from the Southern District of New York, charging Sam Bankman-Fried (current residence: a jail cell on Grand Bahama Island) with two kinds of wire fraud, two kinds of conspiracy to commit wire fraud, commodities fraud, securities fraud, money laundering, and conspiracy to defraud the United States by violating campaign finance laws.

The title of Count One gives you an idea of the flavor of the thing: “Conspiracy to Commit Wire Fraud on Consumers.” There it is, in black and white, the gist of the entire business of Bankman-Fried’s FTX: to defraud consumers – that would be the suckers who invested in his cryptocurrency business by transferring their money into his accounts -- for which they were rewarded certificates, or account statements, or something anyway, stating that they were now the proud owners of FTT’s, the crypto-tokens representing their investments.

In the icy phrasing of the indictment, Bankman-Fried and others in on the conspiracy were engaged in “obtaining money and property by means of false and fraudulent pretenses, representations and promises,” and using that money and property to “pay expenses and debts of Alameda Research, Bankman-Fried’s proprietary crypto hedge fund, and to make investments.”

Breaking that down into plain English, Bankman-Fried was taking the money of his customers and using it to repay loans that had been made to his hedge fund and make investments in other companies, real estate, and in other ways, none of which had been disclosed to his customers or authorized by them. He was, in effect, stealing. The thing he was using to steal his customer’s money, his cryptocurrency, was advertised as a new way of investing your money that was outside of the control of the banking system and the U.S. government. Why investors would want to wire their money over to the Bahamas, or wherever else Bankman-Fried held the funds, is a subject for another column. But the fact that the customers’ money would be outside of the control of the U.S. government gives you a clue as to why people who take what ended up being in the tens of billions and turn it over to a 30-year-old man who had no previous experience in handling investments of that or any other size.

The rest of the indictment lays out how the money Bankman-Fried took from others was misused. Some of the fraud was committed against banks or other investment firms or individuals who bought into the scam sufficiently that they were willing to lend billions of dollars to Alameda Research, which has been described variously as Bankman-Fried’s investment bank or hedge fund. Those lenders lost their money, too, alongside that of the individuals who gave Bankman-Fried their money and received cryptocurrency in return.

The commodities fraud charge simply represents another law broken by Bankman-Fried and others while doing the same thing – taking money with one hand and giving it to the other hand, Alameda Research, not to invest for the customers, but to pay expenses incurred by the hedge fund/investment bank and to make investments that had nothing to do with achieving a return on investment for the consumers but everything to do with misappropriating their money and using it for purposes beneficial to Bankman-Fried and the eponymous “others.”

The charge of money laundering refers to misusing money that “represented the proceeds of some form of illegal activity, to wit, the wire fraud alleged in Count Two.” So, he was taking his ill-gotten gains from committing one crime and using them to commit another.

In fact, as you read the indictment it becomes evident that the entirety of what Bankman-Fried and his two businesses, FTX and Alameda Research, were doing was committing crimes. The federal government is saying that it wasn’t a legitimate business endeavor, by which Bankman-Fried would solicit money from investors and then turn around and invest the money for them so they could achieve a gain from their investment, i.e., more money. The entire purpose of FTX and Alameda Research was to defraud “customers,” that would be the investors, out of their money so Bankman-Fried and “others” could use the money for their own purposes – none of which they had told the investors about. In fact, the indictment is filled with words like “misrepresented,” “conceal and disguise,” “deceitful and dishonest,” “manipulative and deceptive device and contrivance,” and “materially false information.”

The indictment, in short, lays out in eight separate violations of the federal laws how the businesses owned by Bankman-Fried (he owned 90 percent of Alameda Research and apparently all of FTX) were entirely based on lies and deceit. They weren’t real.

They took money that was real and converted it into a cryptocurrency they told people was real but wasn’t. Bankman-Fried was just moving money around for his own purposes and for his own gain. All his claims in the flurry of interviews he has given over the last month that he didn’t understand what had happened or where eight billion dollars had gone when it went poof were filled with lies. The federal indictment lays out the story that he knew exactly what he was doing.

Some amazement has been expressed by legal experts over the past 24 hours about how the Southern District was able to put this indictment together in such a rapid fashion, given that the collapse of FTX happened just a month ago. However, reading the indictment gives the answer: Bankman-Fried is just a thief. All he was doing was stealing other people’s money, and now an orange jumpsuit awaits him at the Manhattan Federal Correction Facility where he will stay upon being extradited from his jail cell in the Bahamas to the U.S. to answer for his crimes.

In act two of the crypto crash, Binance -- the world’s largest cryptocurrency exchange when it comes to volume -- announced on Tuesday that it is “pausing” withdrawals from its own USDC magic cryptocurrency accounts after more than $2 billion was withdrawn in the last 24 hours, with $1.14 billion of that coming today.

Changpeng Zhao, the founder of Binance, was the character who started the whole crypto snowball rolling down the proverbial hill when back in November, he announced in a Tweet — because of course he did — that he was selling his holdings in FTX’s digital currency, leading to a run on FTX’s accounts and the same sort of “pause” in withdrawals by FTX customers.

As noted above, FTX is now in bankruptcy and Sam Bankman-Fried is in jail in the Bahamas awaiting deportation to face charges in the Southern District of New York.

You’re going to love this one. In the world of cryptocurrency, which advertises itself as a place to put your money to get away from the prying eyes of banks and the government, the USDC cryptocurrency is known as a “stablecurrency” because its value is pegged to the U.S. dollar, according to The Observer. And of course what the customers of Binance have been doing over the last 24 hours is converting their holdings of this so-called “stablecurrency” into good old U.S. dollars because, well, U.S. dollars which need to be deposited in banks which are overseen and regulated by the boogeyman U.S. government, are turning out to be just a tad more stable than Binance’s so-called stablecurrency.

So all these cowboy investors who have been putting their money in crypto are running back to the banks and big-momma U.S. government to take care of them.

Meanwhile, Binance has announced that they are unpausing withdrawals of dollars from their USDC accounts because they have successfully done what’s called a “token swap,” which involved swapping one cryptocurrency for another.

Sound like three-card-monte to you? Which cup is the little ball under now, investors?

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which these columns are reprinted with permission.

Facing Fresh Contempt Citation, Trump's Lawyers Need Still More Lawyers

This is my umpteenth-plus column about Donald Trump flipping off the rule of law. and the American way To support this coverage of his misdeeds, please consider becoming a paid Substack subscriber.

Remember Christina Bobb? She is number four of Trump’s lawyers, or maybe she was number five? I guess she could have been the sixth lawyer -- who had to go online, that is, and google “lawyers who are willing to represent other lawyers who work for or have worked for Donald Trump” so she could somehow come up with a lawyer of her own to start the long process of building a defense for why she signed a document on June 3 of this year attesting that all of the classified documents Trump had taken with him to Mar-a-Lago from the White House had been returned previously or were being handed over to a representative of the Department of Justice that day.

Poor thing. A former host on the former far-right OAN network, and by now well on her way to becoming a former lawyer of Donald Trump as well, Bobb signed the declaration because another of Trump’s lawyers, Boris Epshteyn had called her the night before and asked her to show up at Mar-a-Lago along with yet another Trump lawyer, one Evan Corcoran, to meet with the lawyers for the DOJ who were there to pick up documents that were responsive to a subpoena the DOJ had served on Trump a week or so before. Bobb would later tell the FBI that she didn’t know Evan Corcoran, had never met him, and in fact was working for Trump as an adviser to Trump’s super PAC…one of them, anyway...and not on the documents case.

So, let’s review: We’ve got Donald Trump, the man who stole the documents, all 22,000 of them it would turn out, who is also owner of Mar-a-Lago where all the documents stolen from the White House were kept. We’ve got the disgusting election denier Boris Epshteyn.. And we’ve got Evan Corcoran, who was actually representing Trump in the matter of the stolen documents. We’ll call Corcoran the third man, the one designated by men numbers one and two, to turn to Bobb, who had nothing whatsoever to do with the stolen documents, and hand her a piece of paper saying that she had suddenly been appointed “custodian of records” for the Trump office, and tell her to sign it.

Bobb – we’ll call her the first woman – demanded to read the document, which as it turned out, certified that a diligent search had been done of the boxes “moved from the White House to Mar-a-Lago,” and that all the documents called for in the DOJ subpoena had been turned over. Bobb, as first woman, apparently smelled something fishy, and right then and there demanded that a disclaimer be added to the official statement saying that the certification was based on information that had been given to her by others, the others being men numbers one, two, and three.

That’s a lot of lawyers who find themselves in legal jeopardy because the Washington Post is reporting that the same DOJ that issued the subpoena for the classified documents at Mar a Lago, the same DOJ that would later in August conduct a search of the resort/hotel/residence owned by Donald Trump, the same DOJ that would discover no less than 103 additional folders of classified documents that were not among those covered by the certification signed by Bobb, witnessed by Corcoran, overseen by Epshteyn, and ultimately ordered by Donald Trump – yes, that the by-now-familiar DOJ has asked a federal judge in Washington D.C. to hold the Trump office in contempt of court for failing to comply in a timely and accurate fashion to that good old subpoena that was issued to Trump way back in May of this year.

FINALLY, you may be saying to yourself. And I would agree. Trump was asked by the National Archives for the documents he stole from the White House way back in 2021, and he stalled. He stalled and stalled until the National Archives said they were turning things over to the DOJ, and then in January of this year, Trump returned more than 20 boxes of documents to the National Archives and told them that was it. That was all he had.

The DOJ had evidence that wasn’t, in fact, it, so they issued the May subpoena, they conducted the August FBI search of Mar-a-Lago, they recovered the 103 extra folders of very highly classified documents, some of which were discovered by the FBI inside a leather box in Trump’s own desk, and then this week, two more classified documents turned up when still more lawyers for Trump, who must now be joining the lengthening queue at the internet site “lawyers who are willing to represent other lawyers who work for or have worked for Donald Trump,” found them during a search of – get this – a storage facility in West Palm Beach, Florida where they reportedly were among coats of armor and other presidential memorabilia, you know, because as president you are given a lot of stuff like coats of armor and classified documents, and you have to find someplace to store them.

Well, don’t you?

Inquiring minds are asking, among many, many other questions, how is Donald Trump going to find anyone at all willing to represent him now that Special Counsel Jack Smith has taken over the Trump investigation and is handing out new subpoenas to new people, who will be trying to find lawyers to represent them, and petitioning courts for contempt citations, and going through all 22,000 documents that have been released to his office now that the whole "special master" scam has been shut down.

Maybe some enterprising young lawyer who just passed the bar down in Florida will rent an office in a mini-mall in West Palm Beach and hang out an enterprising shingle: “Law firm willing to represent other lawyers who work for or have worked for Donald Trump.”

Talk about a booming business. That young lawyer will be driving a Ferrari by New Year's.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

Trump Lawyers Find More Classified Documents In Florida Storage Unit

At least two more items marked with some level of classification have been found in a storage unit outside of West Palm Beach. Considering that the Trump Organization—100 percent owned by Donald Trump—is made up of over 500 different “companies,” would anyone like to hazard a guess as to how many buildings, homes, garages, sheds, and storage units might still need to be searched?

Lawyers for Donald Trump have reportedly completed a search of the Trump National Golf Club at Bedminster, New Jersey, and Trump Tower in New York City, and have notified the Justice Department that they found no additional classified material.

Which means, based on past experience, that the FBI should immediately go into these locations and conduct a search. And they should bring plenty of boxes. Case in point, back in June, an attorney for Trump signed a written statement claiming that all material “marked as classified and held in boxes in a storage area” at Trump’s Mar-a-Lago resort had been handed over to the government. This is in addition to the document Trump tried to get one of his attorneys to sign making the same claim in January. Those statements were blatant lies.

Is there really no unclassified material at Bedminster and Trump Tower? Even though The Washington Post reports that Trump’s attorneys hired an outside team to conduct the search, there’s no reason to believe that this search was either thorough or accurate. Trump’s team has demonstrated repeatedly that they will lie to cover up his crimes, and the Trump Organization was found guilty just this week on 17 criminal counts … criminal counts for which absolutely no one will do time, the fine will be trivial, and the company will pick up the tab.

The search of the two Trump properties was carried out in response to a grand jury subpoena ordering Trump to hand over all classified materials. However, with what has happened in the past, it seems absolutely ridiculous that anyone at the federal court, DOJ, FBI, or National Archives would trust the results of this search. In fact, it was an absolute breakdown in any trust of Trump’s legal team that caused Chief U.S. District Judge Beryl Howell to authorize an FBI to search at Mar-a-Lago in the first place.

The lesson that Trump and all members of his staff have learned—not just this year, and not just in this case, but over decades, on topics from money laundering to charity fraud—is that there is rarely, if ever, a serious personal penalty involved in lying to the government. So why not lie? Besides, if those “search teams” did happen to stumble across any document stamped Top Secret, Trump could always just claim he had already declassified it. Then his attorneys could carry on reporting that they found nothing classified. Back to step one.

The Trump team has certainly had plenty of time to conduct their search/cover-up since that grand jury subpoena was issued all the way back in May. The only possible response now is to simply have the DOJ request new search warrants and follow this up themselves.

Of course, it’s entirely likely that they will not find any classified documents—after all, if the outside team conducted an actual search, that would be an excellent time to box up any documents found and move them somewhere else. However, the search still has to be done. Otherwise, the courts are sending a clear message of, “Hey, we know you hid massive amounts of stolen property and repeatedly lied about giving it back, and we know that some things are still missing, but we’re just going to trust you when you say you don’t have them.”

Honestly, hiding or destroying this material should be a snap. The fact that such large quantities of highly classified materials were found in Mar-a-Lago in the first place was entirely due to Trump’s endless supply of hubris—he wanted those nuclear secrets close, where he could use them to underline what a big deal he was to people who stepped into his office to schedule a golf outing. Ten minutes of actual thought would have placed those documents where they could not be found, but that would require putting ego aside, and Trump couldn’t manage that.

Are there more classified documents at Bedminister and Trump Tower? We don’t know. We didn’t know before this “search,” and we still don’t. But we can be absolutely sure that this search by Team Trump was an absolute waste of time and an insult to everyone seeking justice.

Reprinted with permission from Daily Kos.

Trump: I'll Have The Loser Combo Plate And A Diet Coke, Please

What follows is my umpteenth-plus report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, please consider becoming a paid Substack subscriber and help me find my way.

This is what it sounds like when a Circuit Court of Appeals slams the door on you: “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”

The decision that came down on Thursday night against Donald Trump by the 11th Circuit was unanimous. Before the court’s recent decisions against him, Trump would have described the two judges on the panel he had appointed to the bench as “mine,” the same way he described as “mine” the hundreds of classified documents he had squirreled away in a dank basement of Mar-a-Lago and in a drawer of his own desk. In its 21-page decision, the 11th Circuit all but told him, no they’re not, and no we’re not.

I’ve been down the various rabbit holes the DOJ and the 11th Circuit have wandered through because a single federal judge in Florida, the execrable Eileen Cannon, took it upon herself to step out of her judicial robes and take on what is constitutionally the job of the executive branch, namely, making decisions about whether to undertake an investigation of a citizen for committing a federal crime. Cannon figured she knew better than the attorney general of the United States, whose job it is to investigate federal crimes, so she threw a series of roadblocks in front of the Department of Justice, which was attempting to determine why in God’s name Donald Trump had taken some 22,000 documents owned by the federal government to his home and office in Palm Beach, Florida, and what he did with them.

Judge Cannon put a hold on the DOJ’s use of the documents, all 22,000 of them, as evidence in its investigation, and turned them over to a special master in Brooklyn, of all places, to review the whole lot of them to see if any were subject to either attorney-client or executive privilege protections.

The DOJ quickly got the 11th Circuit to step in and remove from the special master review the hundreds of classified documents found in the possession of the former president by pointing out the obvious: They have markings on them bearing several levels of classification by the federal government which clearly labeled them as property of the government. The DOJ’s second appeal, asking that the entire process of the special master review be halted and all of the documents returned to its investigation, is the one which the 11th Circuit ruled on Thursday night. To put it mildly, it wasn’t a good night for Judge Cannon. The 11th Circuit found she lacked jurisdiction and basically said that her entire “theory of the case” was laughable on its face.

Trump has already been to the Supreme Court once, asking that they overrule the 11th Circuit’s first decision on the classified documents. The Supreme Court refused to hear that appeal with no dissents, strongly indicating that it will do the same thing again if Trump appeals the circuit court's latest decision.

It's been quite a month for the former president. “His” election-denying candidates, almost every one of them, lost their races for various offices around the land on Election Day. Later in November, Attorney General Merrick Garland appointed a former U. S. attorney, Jack Smith, as special counsel to run both investigations of Trump – one into his attempts to overturn the election of 2020 and his incitement of the attack on the Capitol, and the other into his theft and mishandling of classified documents after he left office. Smith has been serving as chief prosecutor at the International Court of Justice at the Hague in the Netherlands. The prospect of having Jack Smith look into the crimes he is alleged to have committed is not a welcome one for the former president.

And then last week, Trump decided he would invite a notorious anti-semite and apologist for Adolph Hitler over for dinner at his club in Palm Beach. His dinner guest, the rapper and former multi-billionaire Ye, brought along a friend of his, Nick Fuentes, another notorious anti-semite, Holocaust denier, and admirer of Hitler. Fuentes, you will recall, was one of those who marched around Charlottesville, Virginia back in 2017, carrying tiki torches and shouting “Jews will not replace us.”

Trump was still dealing with the blow-back from that dinner when it became known that his former chief of staff, the oily and unctuous Mark Meadows, has been ordered to testify before the special grand jury in Fulton County, Georgia, which is looking into, among other things, Trump’s phone call with Georgia Secretary of State Brad Raffensperger, when he asked the man in charge of the state’s elections to “find 11,780 votes, which is one more than we have,” so that he would be declared winner of the presidential election in Georgia. Meadows, it turns out, placed the phone call to the Georgia secretary of state, and once he got him on the line, handed the phone to his boss, Donald Trump. So, he was involved in the clearly illegal call (election tampering), he had obviously discussed it beforehand with Trump, and he doubtless has more to tell the Georgia grand jury than has come out so far.

Then “his” justices on the Supreme Court ruled that the House Ways and Means Committee can have access to a whole slew of Trump's tax returns that will show that he has never, ever paid any federal taxes.

Meanwhile, back in Washington, the grand jury now being supervised by Jack Smith has been very busy. Former Trump aide Stephen Miller testified before that grand jury this past week – the one investigating January 6 and the efforts made by Trump to overturn the election of 2020. Later in the week, a federal judge ordered two former White House lawyers, Pat Cipollone and his deputy, Patrick Philbin, to testify before the same grand jury. Cipollone and Philbin testified in September, but refused to answer some questions, citing executive privilege. Trump sued in federal court asserting executive privilege in an attempt to prevent his two lawyers from being forced to testify and answer the questions they refused last time. The legal proceedings have gone on behind closed doors with the judge overseeing the grand jury in Washington. He has previously ordered other witnesses to testify when they tried to assert executive privilege, and it appears that is the case with these two very key witnesses.

Speaking of witnesses, we are, beginning today, witness to The Whole Thing Coming Apart at the Seams for Donald Trump. Nothing has been going right for the man. He announced his candidacy for president at mid-month in November and has not done a thing as a candidate yet. No rallies. No announcements of endorsements. No big statements on World Affairs. In fact, the only major public statement he’s made was a video he taped for something called the Patriot Freedom Project, a far-right extremist group raising money for the families of indicted and convicted 1/6 insurrectionists. “People have been treated unconstitutionally, in my opinion, and very, very unfairly, and we’re going to get to the bottom of it,” Trump said in the video. “The country is going communist.”

Trump hasn’t acted like a candidate or spoken like a candidate or looked like a candidate. Oh, wait a minute. I forgot that he got on his Truth Social account one night recently and spread right-wing, white supremacist, and QAnon conspiracy theories for hours. The sole positive thing that has happened for him, if it can be called that, is having his Twitter account restored by the odious Elon Musk. That would be the social media network on which hate speech has skyrocketed since Musk took it over, according to a report in the New York Times this morning.

We have wondered for six years when something like this would happen. He’s being forced to give a deposition in E. Jean Carroll’s rape lawsuit. His closest aides are spending half their time with their own lawyers and the other half being questioned by lawyers before grand juries. A court to which he appointed two judges has ruled against him unanimously not once but twice in a case involving the search of his residence and office by the FBI at Mar-a-Lago. The search was legal, the court said. Former presidents are subject to the same laws everyone else must obey.

And Trump himself? Well, he’s out there posting hate and cozying up to Nazis and whining about being victimized as he watches the transactional sycophants in his party inch away from him not because he’s an awful person who spreads hate and tells lies and breaks the law, but because he’s a loser.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

Latest Hearing On Stolen Documents Didn't Go Well For Trump's Lawyer

This is my umpteenth report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, consider becoming a paid subscriber and help me find my way.

In addition to losing at the Supreme Court on Tuesday in his appeal to keep his tax records out of the hands of Congress, Trump had a bad time at the 11th Circuit Court of Appeals, too.

Three Republican-appointed judges – two put on the bench by Trump and one by George Bush – expressed barely concealed skepticism of arguments put forth by James Trusty, the attorney for Donald Trump, who faced off against the Department of Justice in its appeal seeking to cancel the special master appointed by another Trump judge, Aileen Cannon of Florida.

The case has been dragging its way through the courts since Trump petitioned Cannon to appoint a special master to review the thousands of documents seized by the FBI last August from Trump’s residence and office at his Mar-a-Lago resort/hotel/club in Palm Beach, Florida. This is the second time the DOJ has appealed to the 11th Circuit about the matter.

In its first appeal, the DOJ sought to have 103 folders of classified documents released from the review by the special master so they could be used as evidence in its criminal investigation of the former president. The 11th Circuit granted that appeal in September. Two of the judges who heard the case today signed the decision in September – Judges Andrew L. Brasher and Britt C. Grant – in ruling unanimously against Trump. They were joined on Tuesday by the chief justice of the 11th Circuit, William H. Pryor Jr., the former attorney general of Alabama.

Trump went to court today with an argument the DOJ called “novel and erroneous” in the brief filed last week. The Trump position on the documents he removed from the White House when he left office in January of 2021 and took with him to Mar-a-Lago was that because he was president at the time when the boxes of documents were put on a truck and driven to Florida, they were ipso facto his property.

As the DOJ pointed out in its brief last week and on Tuesday during oral arguments, that argument flies in the face of the Presidential Records Act, a federal law passed by Congress after Watergate, which mandates that all documents and materials produced or used by a president while in office are the property of the government, not the individual serving as president. Perhaps realizing the ”I took them, so they’re mine” argument wasn’t holding much water, Trump’s lawyers took another slant on the case. The appointment of the special master was necessary and should be maintained, they said, because the search warrant executed in August was a “general warrant” and thus illegal.

“You didn’t establish that it was a general warrant,” Pryor told Trusty bluntly.

Judge Pryor didn’t think much of Trump’s lawyer’s arguments, and neither did the other two Trump-appointed judges, who ruled in September that Trump had failed to establish that the government had shown “callous disregard” for his constitutional rights in seeking the warrant from a federal judge and searching his home and office. The failure by the former president to prove callous disregard was “reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” the 11th Circuit wrote in September.

Judge Pryor told Trump’s lawyer that he had to accept that not even Cannon had ruled that the government had shown callous disregard for Trump’s rights. “Your brief doesn’t even attempt to argue that it [callous disregard] was satisfied,” Pryor told Trusty.

Trump’s lawyers told the court that the search of Mar-a-Lago was illegal because the FBI had taken Trump’s golf shirts and a photo of Celine Dion along with the classified documents it seized in August. Pryor dismissed that argument with this: “The problem is, you know, the search warrant was for classified documents, and boxes, and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.”

At another point, Trump’s lawyer was cut off abruptly by Judge Grant when he called the search of Mar-a-Lago a “raid.” “Do you think a raid is the right term for the execution of a warrant?” Grant asked Trusty, who quickly apologized for using what he called “a loaded term.”

Trusty tried to argue that a search of a former president’s residence was a special case. Pryor wasn’t having that, either. “Other than the fact that this involves a former president, everything else about this … is indistinguishable,” Pryor told Trusty, referring to the search warrant. “We’ve got to be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into district court and to have a district court entertain this kind of petition…and interfere with the executive branch’s ongoing investigation,” Pryor said.

He then went even further. “If you can’t establish that it [the search] was unlawful,” Pryor said, “then what are we doing here?” Trusty replied that the former president had asked for the appointment of the special master hoping that by going through that complicated process, he could prove that the search was unlawful.

Pryor expressed amazement at the brazenness of the argument: “The end object of the search [through the records by the special master] is to establish it was an unlawful seizure?” Pryor asked Trusty. A CNN reporter who observed the arguments described the incredulity frequently expressed by the judges this way: “Pryor’s facial expressions throughout suggested exasperation with the Trump team’s arguments, as he repeatedly shook his head as Trusty attempted to answer his questions.”

Folks, it’s never a good sign when the chief judge in the court of appeals hearing your case is shaking his head in disbelief.

Stay tuned. We’ll be watching for the court’s ruling and will report on it here.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

Why Didn't Justice Department Defend Alabama Prisoners From Starvation?

This is the third in a series of columns about the current crisis in Alabama’s prisons. Read the first here and the second here.

What happened in Alabama prisons during the most recent work stoppage — the Alabama Department of Corrections served severely reduced portion sizes only twice a day, from September 26 to October 26, 2002 — was nothing less than the weaponization of food by a government against its own citizens.

The last time state actors played Hunger Games against their own in the United States was the Civil War, when President Lincoln issued “General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field,” commonly known as the “Lieber Code” after its main author Francis (Franz) Lieber.

The Lieber Code promulgated the essential rules of engagement for Union Army soldiers during the Civil War. Those rules specifically stated that it was “lawful to starve the hostile belligerent, armed or unarmed”... so as to hasten on the surrender.”

The excuse provided by the Alabama Department of Corrections (ADOC), namely that they didn’t have the correctional staff to cover the positions vacated by the incarcerated workers, is unavailing.

While it’s true that inmate workers were not appearing for their work assignments, posts didn’t go unmanned. Starting around the third day of the strike, the ADOC forced participants in the state’s work release program to go back inside prisons and prepare the meals. The Alabama Department of Corrections forced scabs to come in and break the picket line by working inside.

One man on work release reported that a lieutenant “made [him]” enter a prison and prepare meals or lose his work release status. “It was either come over here or go over to lock up,” he said in an interview.

According to Frank Ozment, a Birmingham, Alabama attorney with years of experience representing prisoners in the Yellowhammer State, taking work release inmates back inside has happened only once before, during the pandemic, when men from the Frank Lee Community Based Facility/Work Center were taken to Draper Correctional Facility in Elmore, Alabama to build an intake center.

When the work release employees realized that COVID patients were housed at that particular facility, they balked and the matter was eventually resolved. It’s important to note that taking work release prisoners to Draper Correctional Facility didn’t involve a work stoppage nor were the tasks assigned to these individuals supposedly being carried out by overworked officers.

The guards were less than enthusiastic about the strike or an expectation that they fill in essential roles; indeed, some may have refused to pitch in. According to screenshots provided by an unnamed source, one ADOC officer posted to Facebook: “They could wade knee deep in shit and starve before I would cook them even a morsel of food!!! When they got a bellyful of living in filth they could clean everything back up too…I wouldn’t lift a finger!!!”

It’s not as if the human rights violations occurring in the facilities seemed to bother the entire guards corps. Memes poking fun at starvation, comments about serving the wards only bread and water proliferated under posts about the strike from accounts purporting to be correctional officers proliferated during the strike.

Of paramount importance in understanding what unfolded during that strike is that neither the State of Alabama nor ADOC has ever directly refuted the claims of inadequate meals. Through counsel, the state of Alabama denied the allegations by claiming inmates' representations of the content and quantity of meals were inaccurate. Kelly Betts, spokesperson for the Alabama Department of Correction, did not answer questions posed to her via email about the meals and the effects of reduced calories on the people who ate them.

However, if the pictures are not representative of what was actually distributed as meals and the claims of inmates are not describing what was served to them accurately, then the state can — and should — provide evidence of what was served. There’s no reason to suspect that these records don’t exist or are even difficult to collect.

Stacey Lee George, a former Alabama correctional officer who resigned last month and worked in the kitchen during his 13-plus year career, reports that kitchens maintain these records on computers. If the ADOC provided sufficient calories during the shutdown, they have the evidence as a matter of daily practice. They’re simply not providing that evidence in any forum. A Freedom of Information Act request seeking copies of all records indicating what was served has not yet been responded to by the Alabama Department of Corrections.

Neither the spacing of the distribution of the meals nor their content was a consequence of the strike’s circumstances. The meals were intentionally prepared and delivered. The state of Alabama and its Department of Correction used outlawed tactics of war to manage people who have been entrusted to their care. What happened in Alabama prisons in September and October violated the prohibited use of food as a method of punishment. It was an attempt to harm the wards and starve them into submission.

And the United States Department of Justice (DOJ) is complicit in this gastronomical gambit, all while the biggest and most powerful law enforcement agency in the country is supposed to be protecting people from unlawful abuse by state agencies like ADOC.

On December 9, 2020, the DOJ filed suit against the State of Alabama under the Civil Rights of Institutionalized Persons Act (CRIPA) alleging that the conditions in Alabama prisons were so bad that they violated inmates’ Eighth Amendment and Fourteenth Amendment rights to due process and to be free from cruel and unusual punishment. The case has been pending for the past two years.

Eleven days into the strike, on October 7, 2022, 37 inmates filed a motion to intervene — to become parties to the action to have their complaints heard — in the DOJ suit. And instead of taking action to assure that inmates were fed during the stoppage, the DOJ opposed this motion to intervene, arguing that allowing the inmates to enter the case at that point would disrupt the discovery process.

In the responses filed since October 7, 2022, DOJ provided no other reason why the inmates shouldn’t be allowed to become plaintiffs, nor did the department deny that the meals were as meager and infrequent as alleged. None of the DOJ lawyers even contacted attorneys for the intervening plaintiffs. DOJ failed to make a statement in its response to the inmates’ Motion to Intervene that starving prisoners is unlawful.

It’s not clear that the DOJ took any action to assure the prisoners were fed; Aryele N. Bradford, spokeswoman for the DOJ’s Office of Public Affairs, said in an email that the DOJ will not comment on pending litigation.

The department’s silence and apparent inaction isn’t borne of strategy; it’s vanity.

“The one thing the government doesn't like to do is lose. And that's a good thing. But they're not going to do anything that they don't think is a slam dunk. I mean, that's just been my experience with them almost throughout my career,” said Ozment.

Indeed, legal scholars agree. “For DOJ, success is measured solely by winning percentage in the courts; the basis of a favorable decision does not matter, and winning is an end in itself. For the agency, success is a function of: (a) winning percentage not just in the courts, but in an overall enforcement effort most of which occurs outside the judiciary; and (b) the advancement of a particular policy agenda…” wrote Neal Devins, professor of law and government at the College of William and Mary and Michael Herz, professor of law at Yeshiva University's Cardozo School of Law in a 2003 article in the Journal of Constitutional Law.

In the responses filed since October 7, 2022, DOJ provided no other reason why the inmates shouldn’t be allowed to become plaintiffs, nor did the department deny that the meals were as meager and infrequent as alleged. It’s not clear that the DOJ took any action to assure the prisoners were fed. An email asking that exact question was posed to four separate lawyers representing the DOJ in this matter and none of them replied.

It’s not that the claims of retaliation with food don’t belong in the pending litigation. CRIPA confers standing on the Attorney General to institute a civil action to enforce any existing constitutional and federal statutory rights of people who are confined within institutions.

In the 2020 lawsuit, the United States alleges that defendants have violated the Eighth and Fourteenth Amendments, but the most recent problems add another constitutional dimension. To the extent that ADOC served skimpy trays as retribution for engaging in a protest that the department itself admits was peaceful, the substandard meals implicated inmates’ First Amendment rights.

Whatever particular rights violation the DOJ wants to concentrate on, lawyers for the agency filed the suit ostensibly to protect the incarcerees from harm. To learn that they’re being systematically starved and then oppose any kind of relief for that deprivation undermines the DOJ’s stated commitment to protecting people in institutions and may even introduce a conflict of interest in the currently pending litigation.

The irony of the DOJ’s prioritization of winning over taking a moral stand is that it may undermine their chances of winning. The DOJ depends on inmates to testify and provide evidence in their original case but it’s clear now that there’s little incentive to do so.

One of the intervening plaintiffs, Inmate Billy Crowe, has testified and reported problems to the DOJ through an established hotline. After he moved to intervene in the DOJ’s case during the strike, Crowe’s been beaten severely several times, once while two guards watched, according to his sworn statement made in support of his motion to amend, alter or vacate Judge Proctor’s order denying his attempt to get some relief.

“This is getting old,” said Ozment, who represents Crowe.

And from the department’s response to the mass starvation, Crowe and other inmates know that the DOJ isn’t their champion.

According to one incarcerated man whose identity is being withheld because of fear of retaliation, the people confined in Alabama have little hope that anyone on the outside will help them.

I'm starting to see a lot of guys being more inspired to say, you know what..the courts have turned their backs on us and shut down the parole board, and Alabama has shut down. Society has been shut down," he said. "So now it's time for us to shut down on them and let them run this prison system themselves without us. They already know they cannot run it.”

Whether these men and women will ultimately testify for the DOJ remains to be seen.

They may testify in another proceeding. According to Ozment, who represented one of the intervening plaintiffs, inmate Billy Crowe, Judge Proctor’s decision doesn’t prevent the prisoners’ from initiating a new action to address the problems with food and ultimately establish the law regarding the minimum requirements for prison meals that courts have sidestepped so far. Ozment is considering representing prisoners in such an action if he can find financial backing.

Weaponization of food works -- and that’s its peril and promise. Organizers paused the Alabama prison strike when it became clear that men were becoming ill as a result of the lack of food. It’s not that the strikers didn’t send their message; they did. Prisons can’t function without the laborers willing to do the work — and the current assemblage of guards have indicated that they’re not so willing.

And the Department of Justice is even less willing to do anything to correct these situations.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.