Tag: merrick garland
'Too Many Secrets': Washington Post Urges Reform Of Classification System

'Too Many Secrets': Washington Post Urges Reform Of Classification System

The discovery and voluntary relinquishing of classified documents at properties connected to President Joe Biden ignited a firestorm among politicos given the story's concurrence with the ongoing saga surrounding former President Donald Trump's hoarding of top-secret texts at his Mar-a-Lago golf compound in Palm Beach, Florida.

The United States Department of Justice's appointment of special counsels to investigate each case – Jack Smith for Trump and Robert Hur for Biden – signals that Attorney General Merrick Garland seeks to remain impartial in pursuit of the truth.

And although the circumstances of the two scandals lack a fundamental equivalency – with Trump's being presumed as a criminal matter and Biden's being likened to Hillary Clinton's exonerated negligence – the stories have nevertheless triggered discussions over the federal government's policies regarding sensitive materials.

On Sunday, The Washington Post editorial board expanded on that topic, opining that "the classification system for managing secrets is overwhelmed and desperately needs repair."

The paper's editors had two main points. The first was that "too much national security information is classified, and too little declassified. For years, officials have stamped documents 'secret' in a lowest-common-denominator system that did not penalize over-classification and made declassification difficult and time-consuming. For example, in November, a 2004 interview of President George W. Bush and Vice President Dick Cheney with the 9/11 Commission was released to the public. It should not have taken 18 years."

They cited a statement given in 2004 by then-Republican Rep. Christopher Shays of Connecticut, who lamented the quantity of information that intelligence organizations deem unfit for public knowledge.

"There are too many secrets," Shays said. That formed the basis of the Post's second argument.

"Over-classification is counterproductive, making it harder for agencies to function, draining budgets and eroding public confidence. Agencies put their best people to work on the most urgent problems, and declassification is a low priority," the Board explained. "Now comes a 'tsunami,' as the Public Interest Declassification Board warned two years ago: an explosion of digital information. Yet management of classified materials 'largely follows established analog and paper-based models.'"

The editors then suggested a solution.

"A good start would be to simplify the classification process into two tiers, 'secret' and 'top secret,' eliminating the lower 'confidential' level, while protecting those secrets that need special handling," they said. Recall that "confidential" was the marking that plagued Clinton during her 2016 presidential campaign.

The Post also alluded to a meeting held by "government experts" from the Hudson Institute in which they determined that “the growing volume of classified records already exceeds the ability of humans alone to process them.”

The editors concluded that the Hudson Institute's realization was a "wake-up call," adding that "the whole system needs to be fixed, and its dysfunction should not be ignored for another decade."

Reprinted with permission from Alternet.

Will New Special Counsel Make Indictment Of Trump 'Much Easier'?

Will New Special Counsel Make Indictment Of Trump 'Much Easier'?

Legal experts are weighing in after Attorney General Merrick Garland announced Thursday afternoon he has appointed Andrew Hur as special counsel to review President Joe Biden’s handling of classified documents, a small number of which were found in his Pennsylvania office and Delaware home from his time as Vice President.

Last month Garland, after more than 500 days into the Justice Department’s investigation of Trump’s handling of classified documents, appointed Jack Smith as special counsel to investigate the ex-president. Both special counsels are former Trump appointees.

Republicans have been attacking President Biden, despite aides immediately contacting DOJ and the National Archives to return the documents, which are believed to have been misplaced. In stark contrast, Donald Trump or his aides are believed to have been responsible for the packing for transport of hundreds of classified documents from the White House to an unsecured area of his Mar-a-Lago resort. Trump himself reportedly personally packed boxes of classified documents after the National Archives demanded their return, but did not send all of them back.

Noted national security attorney Brad Moss on Thursday said, “I have no issue with Garland appointing a Special Counsel here regarding the Biden documents. I think it’s pointless [Hur will still report to Garland in the end] but the politics of the moment require it. It changes nothing in terms of my legal analysis of liability.”

On Wednesday Moss had said about the Trump versus Biden classified documents issues, “Objective legal analysts have spent six months making clear that criminal liability for Trump exists only because of his obstruction. Absent that, DOJ wouldn’t bother prosecuting an accidental mishandling case here.”

“Nothing I have seen has changed my mind yet that Biden and his team, for now at least, are not at risk of criminal exposure,” he also said Wednesday. “Nor do I have any reason to believe this changes the calculus on an indictment of Trump. That said, this sloppiness by Biden’s staff angers me.”

“I still don’t view it as a criminal issue,” he added.

Former U.S. Attorney Barb McQuade said on MSNBC just after Garland’s announcement that she believes the appointment of a special counsel makes it “more likely” that Trump will be prosecuted in the classified documents case.

On Wednesday McQuade toldThe Guardian’s Hugo Lowell, “Cases typically are charged criminally only when an aggravating factor is present… difference with Trump is that two of the four are met, and that is willful violation and obstruction.”

“The two factors that are present for Trump do not appear to be present in the Biden case… these cases are very different,” she added.

Former FBI Special Counsel Andrew Weissmann, who spent two decades at DOJ, appears to agree with the other experts.

“Appointment of Hur makes it much easier for Jack Smith to bring Trump MAL docs charges,” Weissman tweeted. “Gives DOJ the necessary reality and appearance of balance and fairness.”

“Even after AG Garland’s announcement still no facts from which to think anything Biden did was with knowledge and intent,” he also said.

Reprinted with permission from Alternet.

Stop Attacking Merrick Garland: He's On The Case And Trump Is Scared

Stop Attacking Merrick Garland: He's On The Case And Trump Is Scared

It has become something of a sport in certain media circles and elsewhere to complain, sometimes vociferously and repeatedly, that the Attorney General of the United States has been too plodding and reticent in the way he and his department have gone about the business of investigating Donald Trump for crimes committed while in office and afterwards, specifically, his attempts to overturn the results of the election he lost in 2020, and his removal from the White House and subsequent mishandling of thousands of government documents, hundreds of them classified, when he stored them in insecure facilities at his home and office at Mar a Lago in Palm Beach, Florida.

Critics of Garland are fond of pointing out that two years have passed since Trump’s meetings and phone calls with lawyers and other aides making plans to appoint fake slates of electors from battleground states he lost, and use the fake electors to stall or even stop the counting and certification of electoral ballots on January 6, 2021. More than a few articles I have read complain that Garland did not pick up the torch passed by Robert Mueller in his report, which detailed numerous instances of Trump apparently obstructing justice and/or congressional investigations of the attempt by Russia to influence the 2020 election and/or aid Trump’s campaign. In Mueller’s report, he held that Department of Justice rules prevented him from bringing charges against a sitting president. Well, these writers want to know, what about now? Trump is no longer president. Why couldn’t the DOJ charge him with obstructing justice in the ways that Mueller found he did back in 2019?

Merrick Garland has empaneled two grand juries in Washington, D.C., to investigate Trump’s possible criminal behavior in trying to overturn the presidential election, his incitement of the crowd that assaulted the Capitol on January 6, and his apparent theft of government documents when he left office, as well as his 18-month-long obstruction of attempts by the National Archives and the DOJ to get him to return the documents to the government, where they belonged. Reports in the press say that the DOJ – that would be Merrick Garland’s DOJ – has put hundreds of witnesses before both grand juries and questioned them about Trump’s alleged crimes. An entire team of DOJ attorneys, operating under the supervision of the U.S. Attorney for the District of Columbia, has been working non-stop to assemble documentary evidence, video evidence, audio recordings, and testimony of witnesses about Trump’s various alleged crimes.

During this time, Trump has done everything in his power to stop or delay the DOJ investigation. He had one of his lawyers lie on an affidavit certifying that he had turned over all the classified documents sought by a DOJ subpoena. The DOJ was forced to go into federal court and get a search warrant, which they used to search Mar-a-Lago, where they turned up 103 folders of classified documents Trump had failed to turn over pursuant to the subpoena. Getting the search warrant, carrying out the search, and going through all 22,000 pages of government documents that Trump held at Mar-a-Lago has taken time.

Trump then sued in federal court in Florida and got a judge, conveniently one he had appointed to the federal bench, to order a special master to review all 22,000 of the documents Trump took from the White House for possible protection under either attorney-client or executive privilege. That process, begun in September, is still ongoing and has caused the Department of Justice to file two appeals with the 11th Circuit Court of Appeals seeking access to the documents the FBI seized from Mar a Lago so they can be used as evidence in their criminal investigation of Donald Trump.

The DOJ won its first appeal and was granted the right to use the 103 folders of classified documents in its investigation. Oral arguments will be held next Tuesday in Atlanta on the DOJ’s second appeal, which seeks access to the unclassified documents for use in its criminal investigation of Trump. All of this has taken several months, and the special master process is still not finished.

The DOJ has faced repeated attempts by witnesses it has subpoenaed to avoid testifying before its grand juries. Trump has had his SuperPAC fund lawsuits by witnesses seeking to avoid testifying. The DOJ has had to grant immunity to at least one witness to force him to testify truthfully about several matters under investigation, including the documents investigation and the January 6 investigation.

Now Trump has filed the necessary paperwork to become a candidate for the presidency in 2024, in an obvious attempt to make it more difficult for the Department of Justice to carry out its investigations of him. He has already started yapping about a “witch hunt” and comparing it to the Mueller investigation. He has his minions out in droves echoing his complaints. Rep. Marjorie Taylor Greene has called for defunding the DOJ investigation of Trump and the special counsel Garland appointed yesterday to lead the investigation. Recently she even went so far as to call for the impeachment of Merrick Garland.

Which brings up the most recent thing Garland has done in his investigation of Trump: On Friday he appointed former U.S. attorney and war crimes investigator Jack Smith as special counsel and put him in charge of both branches of the criminal investigation of Trump. The Republican right has raised a deafening scream in unison, of course, which should give you some idea of how frightened they, and Trump, are of this appointment. They should be. Special Counsel Smith will bring a fresh set of eyes to an investigation that has accumulated thousands of pages of evidence and thousands of pages of witness testimony.

Investigations like the one being carried out by the DOJ against Trump are enormously complicated and taxing. There is a tendency for prosecutors to get bogged down in the details of what they are investigating. If Special Counsel Smith is anything like he is being described by legal experts over the last 24 hours, he will get rapidly up to speed with the ongoing investigation and will have the opportunity to cut through some of the fog that has accumulated over the months, making decisions that might narrow its focus, enable prosecutors to reach conclusions, and begin to bring indictments.

Prosecuting a former president of the United States has never been done before. The new special counsel cannot just look at evidence and bring charges. He must bring charges that can be proved in a court of law and will convince a jury, some of whom may have voted for Trump, to convict him on charges that carry a decade or more of jail time if he is convicted. That is not an easy task.

Plodding and painstaking and reticent are good things for a prosecutor to be. Merrick Garland has said repeatedly over the last two years that no one in this country is above the law. I don’t think he has qualm one about charging Donald Trump for his crimes, but it’s not up to him whether Trump goes to jail. That will be up to a jury of Trump’s peers, an unknown if there ever was one.

Stay tuned. Merrick Garland is on the case, and so am I.

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.

In Latest Appeal, Trump Tries To Hide A Very Dangerous Secret

In Latest Appeal, Trump Tries To Hide A Very Dangerous Secret

Merrick Garland appointed a special counsel, Jack Smith, to take over the two criminal investigations of Donald Trump that are already underway. Smith is a former head of the Department of Justice’s public integrity division, and has been the chief prosecutor in The Hague at the International Criminal Court prosecuting war crimes in Kosovo since 2018.

The appointment of Smith as special counsel comes on the day after the DOJ filed its reply brief with the 11th Circuit Court of Appeals in the matter of Trump’s lawsuit that sought the order to appoint a special master to review all of the materials seized at Mar-a-Lago for protection under attorney-client or executive privilege. Judge Eileen Cannon had ordered that all the documents seized by the FBI could not be used by the DOJ in its criminal investigation of Trump until the special master review process was completed.

The DOJ appealed the order concerning the classified documents to the 11th Circuit, which quickly ordered that the DOJ be allowed to use the 103 folders of classified documents the FBI found in its search of Trump’s office and personal residence in its investigation and prosecution of Trump. The DOJ filed a second appeal asking that the 11th Circuit order that the department can use all of the documents recovered from Mar-a-Lago in its prosecution. Trump opposed the motion, and yesterday’s DOJ filing responded to Trump’s answer to the DOJ’s appeal.

The position Trump is taking with the 11th Circuit is astounding. Essentially, Trump is telling the court that because the government documents were removed from the White House while he was still president, in late January of 2021, they are his personal property. It’s his “I took them, so they’re mine” defense. The assertion flies in the face of the Presidential Records Act, which states that any document shown to the president or used by him in the execution of his official duties is a presidential record and is therefore the property of the federal government and belongs in the National Archives along with all other records of his administration.

The DOJ in its filing called Trump’s position “novel and erroneous.” Not only did Trump never assert in his initial lawsuit before Judge Cannon that the documents at Mar-a-Lago were his “personal” records, he failed to raise his “novel and erroneous” argument in the previous action before the 11th Circuit.

The federal rules of procedure and several Supreme Court cases, cited by the DOJ in its brief, say that a plaintiff cannot raise in an appeal issues which the plaintiff did not use in his or her initial lawsuit. In other words, it’s not allowed to suddenly come into the appeals court and say, “Oh, wait a minute. I forgot to raise this issue before, so here it is this time.”

The Presidential Records Act (PRA) does not allow a president to designate official records as “personal” simply because he removed them from the White House during the time he was president. In fact, the PRA was passed by the Congress after Watergate specifically to disallow that. After leaving office, Richard Nixon attempted to keep possession of the White House tapes and assert that they were his property in order to prevent them from being used by reporters and historians writing about what he did while he was president. The PRA specifically forbade that and designated all records, documents, and other materials that originated while a president is in office as documents and materials owned by the government, not the president.

Further, the DOJ noted, it wouldn’t matter if the documents seized at Mar-a-Lago were the personal property of Trump, because search warrants like the one authorizing the search of Mar-a-Lago regularly give the FBI the right to seize anything found in the property subject to the warrant that may have been used in a crime. From the DOJ brief: “A document’s categorization as a ‘personal’ record does not preclude the government from obtaining it through a search warrant or using it in a criminal investigation. Law enforcement officials routinely conduct judicially authorized searches to seize evidence of crimes…Nothing in the law prohibits the government from using documents recovered in a search if they are ‘personal,’ and the search warrant here authorized the government to seize materials stored collectively with records bearing classification markings regardless of their status as ‘personal’ or Presidential records.”

The documents seized from Mar-a-Lago were taken pursuant to just such a warrant and purpose – for use in an investigation and possible criminal prosecution of the former president, not only for taking the documents with him to Mar-a-Lago, but for mishandling them after he left office. The documents are also needed by the DOJ to prove that Trump committed obstruction of justice when he refused for more than 18 months to return them to the government, along the way defying a subpoena for the documents in question. Failure to respond in a timely and honest fashion to a subpoena from the federal government is the very definition of obstruction of justice.

The rest of the DOJ’s 40-page brief goes deeply into the weeds of issues of jurisdiction and one essential issue which Trump mooted for himself by asking for and being granted review by a special master in the first place. In his first lawsuit before Judge Cannon, Trump raised an issue under Rule 41(g), which gives a person the right to apply for the return of any property seized pursuant to an “unlawful” search and seizure. Trump had asked for return of his property and documents under that rule, but because of the special master review, he and his legal team have already been given access to all of the 22,000 documents seized by the FBI, so the DOJ simply responded, “Plaintiff has now had an opportunity to review all of the seized records except those bearing classification markings, and the government has no objection to Plaintiff retaining copies.” That excludes the classified documents, which the government has previously held belong to it because of their classified markings.

Way down in the weeds of the Trump filing and the DOJ response, there are other, even more complicated corners revealing what is really behind Trump’s appeal. And here we turn to Marcy Wheeler at her Emptywheel blog for some clarification. It is often the case that a person will file a great big lawsuit, and subsequently, an appeal that raises a whole bunch of great big legal issues and makes all sorts of great big claims only because he, the plaintiff, wants to protect one or two things that if brought to light will cause him real damage.

Wheeler thinks that is exactly the case here, and it concerns a document over which Trump claimed executive privilege. It is not a single document, however, but what the DOJ called a “compilationthat includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.”

Based on a close read of the DOJ brief, Wheeler wrote in her blog that Trump is claiming executive privilege over the “compilation” because it provides proof that Trump was using classified material after he left office “into his ongoing personal business.” The “compilation” documents, along with a document that apparently concerns the pardon of Roger Stone, both include a classified document along with non-classified materials. According to Wheeler, both of the documents “were stored in a readily accessible desk drawer. And they both reflect more personal business.” And they were both accessible by Trump’s personal secretary, Molly Michael, who was Trump’s executive assistant in the White House and who moved in the same position with Trump to Mar-a-Lago after he left office.

Wheeler believes, and I think she’s right, that the DOJ wants access to all of the documents seized from Mar a Lago, both classified and unclassified, because they want to use the documents they described as “compilation” when they question Molly Michael before the Washington grand jury. She is the witness who can provide evidence the DOJ needs to prove that Trump did not take the documents from the White House solely because he wanted them as “souvenirs,” as some reports have said, but because he wanted to use some of the classified documents in his post-White House personal business. “[Molly Michael] is likely the witness who can say when it was compiled. She would be the witness who could explain why Trump integrated a Secret document into his ongoing personal business. She might even testify that she saw the entire compilation, including the page over which Trump is claiming privilege, which would vitiate that privilege claim.”

That’s what’s really going on behind the scenes of the Trump and DOJ filings with the 11th Circuit. Trump is trying to protect himself from being charged with a very serious crime – misusing classified documents for personal gain – as Wheeler points out, a criminal act any juror could easily understand. For that reason, among all the others, the DOJ is trying to get the 11th Circuit to kick all the documents loose from the restrictions put on them by Trump’s personal pet, Judge Aileen Cannon.

So that’s where we stand tonight, folks, as the new special counsel, Jack Smith, is said to be somewhere over the Atlantic Ocean flying back from The Hague to take over the criminal prosecution of Donald Trump. The 11th Circuit will hear oral arguments next Tuesday concerning the DOJ appeal, and legal experts today said that based on its quick resolution of the last appeal in favor of the DOJ, it is likely to do the same thing this time.

Watch this space. I’ll be covering the next steps in this case that may end up with a former president of the United States facing a jury of his peers for the first time in our history.

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.