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

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

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.

Trump Is His Own Special Master

Trump Is His Own Special Master

Let’s see if we can sum up the situation surrounding the decision by a Federalist Society judge in Florida appointed by Donald Trump allowing a so-called special master to examine the documents taken by Donald Trump from the White House.

Trump does not own the documents. They were taken by him from the White House on or before January 20, 2021 when he left office. Trump admitted as much when he returned 15 boxes of documents and other materials to the National Archives in February of this year, and when he had his lawyer, Christina Bobb, hand over to the Department of Justice some 50 classified documents from the Mar a Lago storage room in June. So the documents he voluntarily returned, at least, cannot be assumed to be subject to either attorney-client privilege or executive privilege because Trump gave them back to the government, which owns them.

Then there are the documents that were seized pursuant to a legal search warrant issued by a different federal judge who examined a request from the DOJ that included a long section of evidence obtained from witnesses and other methods as to why there was probable cause that the documents were present at Mar a Lago. This assertion in the application for the search warrant that was borne out by the fact that the FBI found them where they said they would be.

The FBI application for the search warrant cited the fact that the documents had not been returned to the government was itself evidence of potential obstruction of justice. The seized documents, and the documents turned over previously, are evidence in a criminal investigation. Even if some of the documents end up being found somehow, for some reason, subject to executive privilege, there is no provision in the law or in the rules regarding executive privilege that would exempt those documents from being used as evidence that a crime was committed, such as obstruction of justice or violations of the Espionage Act.

There is no provision in the law for a president to shield himself from prosecution by asserting executive privilege or attorney-client privilege over evidence. In this case Trump’s removal of the documents from the White House, is itself an apparent violation of the Presidential Records Act. A good analogy would be the provision in the law, long upheld by the courts, that a client cannot assert attorney-client privilege over evidence that a crime was committed in the communications between the suspect and the attorney. Neither can the attorney assert protection of attorney-client privilege for the same reason.

In short, if there are communications that may prove that a crime has been committed, there are no provisions in the law to shield that evidence. For example, if a suspect asked his lawyer to call a compatriot and tell him to pick up the proceeds of a drug sale so that money could be used for any reason including paying the attorney, that communication would not be protected as a privileged communication between the attorney and the suspect.

The same would apply to any assertion of executive privilege that would seek to deny to the government evidence that a crime had been committed. In the Trump case, that evidence is the documents Trump removed from the White House. They are, at the very least, potential evidence of violating the Presidential Records act. The documents could be evidence that Trump sought to obstruct justice by hiding them from the government, which owns them, and refusing to turn them over. The classified documents could also be evidence of violations of the law regarding the improper storage, movement, and release of national defense information, or NDI, which is covered under U.S. Code 793 involving the improper gathering, storage, transmission, or loss of national defense information. It is not necessary for so-called NDI to be classified, only that the information involve the national security of the United States.

Judge Cannon, who Trump appointed in May of 2020 and who did not take office until several days after Trump had lost he election, also asserted in her order that Trump might suffer “reputational damage” due to some documents that might be subject to executive privilege if they were used as evidence in the FBI criminal investigation. The good judge ignores, of course, that any person under investigation by the FBI and the DOJ for committing a crime, and any person whose home is searched for evidence of crime pursuant to a legal search warrant, has his or her reputation damaged. So the judge appears to have put Trump in a class of exactly one as someone a federal judge has to protect from having his reputation harmed by the fact that he is under investigation by the DOJ. Her move to appoint a special master to “review” the documents Trump took from the White House, as well as to bar the DOJ even from interviewing witnesses about the documents while the special master is completing his or her review, is clearly an attempt to protect Trump from the DOJ’s investigation of his potential criminal behavior.

There is also the matter of whether Trump, as a former president, can assert executive privilege at all. Richard Nixon tried to use executive privilege in his assertion of ownership over the White House tapes, an assertion that was denied by the Supreme Court unanimously. Another court decision found that the power to assert executive privilege belongs to the sitting president, and in this case, President Biden has not asserted executive privilege over the documents Trump took to Mar a Lago.

And then there is the very odd portion of the judge’s order where she specifically allows the review of the Trump documents by the Director of National Intelligence (DNI) to continue. The DNI, along with the Central Intelligence Agency, National Security Agency, and Defense Intelligence Agency, are reviewing the documents to assess any risk to national security that may have resulted from Trump storing classified documents in insecure locations in Mar a Lago and having them moved around and potentially seen by persons who do not have the security clearances necessary even to be in the presence of the classified documents.

The judge has essentially ruled that one part of the executive branch, the part that deals with enforcing the law, cannot see the documents until they have been reviewed by the special master, but another part, which deals with matters of intelligence and national security, can see them.

Judge Cannon has let us know that while national security matters to her, the security of the man who appointed her, Donald Trump, matters even more. That is what she has done by allowing the appointment of a so-called special master to review the documents Trump illegally removed from the White House. She has protected Trump, at least for the time being, from the DOJ’s investigation and potential prosecution.

With the Federalist Society, the Republican Party, and Donald Trump, you get what you pay for, and Judge Aileen M. Cannon is clearly bought and paid for by all of the above, and as of today, they are getting their money’s worth.

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 read his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Reprinted with permission from Lucian Truscott Newsletter

#Endorse This: Colbert Roasts Trump's Pet Judge With Tuneful Parody​​

#Endorse This: Colbert Roasts Trump's Pet Judge With Tuneful Parody​​

Late Show host Stephen Colbert came roaring back and immediately laid into the judge who ruled in favor of a “special master” for the Donald Trump classified documents case with another “fake news alerts” installment.

Colbert started the bit with a broadcast TV segment of the news, including the headline “Judge Aileen Cannon to Appoint ‘Special Master'” below mugshots of the Florida federal judge and her patron Trump, as well as images of what appeared to be pages from Cannon’s ruling. Then came a funny accordion riff of 80's hit Come On Eileen -- but with parody lyrics to play off the judge's first name.

“Oh screw you Aileen, he stole top secret things

"And then mixed theem, with Time maaaagaziiines.”


Watch the entire segment below: