The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019

Tag: trump documents

Trump Lawyers Refuse Special Master Order On Documents He 'Declassified'

By Karen Freifeld and Sarah N. Lynch

NEW YORK (Reuters) -Former President Donald Trump's lawyers resisted revealing whether he declassified materials seized in an August FBI search of his Florida home as the U.S. judge appointed to review the documents planned his first conference on the matter on Tuesday.

Judge Raymond Dearie on Monday circulated a draft plan to both sides that sought details on documents Trump allegedly declassified, as he claimed publicly and without evidence, though his lawyers have not asserted that in court filings.

In a letter filed ahead of Tuesday's hearing, Trump's lawyers argued it is not time and would force him to reveal a defense to any subsequent indictment - an acknowledgement that the investigation could lead to criminal charges.

Dearie, a senior federal judge in Brooklyn, was selected as an independent arbiter known as a special master. He will help decide which of the more than 11,000 documents seized in the August 8 search of Trump's Mar-a-Lago home should be kept from the Justice Department's criminal investigation into the alleged mishandling of the documents.

Dearie will recommend to U.S. District Judge Aileen Cannon which documents may fall under attorney-client privilege or an assertion of executive privilege, which allows a president to withhold certain documents or information.

It is unclear whether the review would go forward as instructed by Cannon, the Florida judge appointed to the bench by Trump in 2020 who ordered the review.

Trump is under investigation for retaining government records, some marked as highly classified, at the resort in Palm Beach, his home after leaving office in January 2021. He has denied wrongdoing, and said without providing evidence that he believes the investigation is a partisan attack.

The Justice Department on Friday appealed a portion of Cannon's ruling, seeking to stay the review of roughly 100 documents with classified markings and the judge's restricting FBI access to them.

Federal prosecutors said the special master review ordered by the judge would hinder the government from addressing national security risks and force the disclosure of "highly sensitive materials."

On Tuesday, Trump's legal team filed its response to the Atlanta-based 11th U.S. Circuit Court of Appeals, opposing the government's request and calling the Justice Department's investigation "unprecedented and misguided."

In their 40-page filing, Trump's attorneys said the court should not take the Justice Department at its word that the roughly 100 documents in question are in fact still classified, and said the special master should be permitted to review them as a step towards "restoring order from chaos."

In Cannon's order appointing Dearie as special master, she asked him to conclude his review by the end of November. She instructed him to prioritize the documents marked classified, though her process calls for Trump's counsel to review the documents, and Trump's lawyers may not have the necessary security clearance.

The Justice Department has described the special master process as unnecessary, as it has already conducted its own attorney-client privilege review and set aside about 500 pages that could qualify. It opposes an executive privilege review, saying any such assertion over the records would fail.

The August FBI search came after Trump left office with documents that belong to the government and did not return them, despite numerous requests by the government and a subpoena.

It is still unclear whether the government has all the records. The Justice Department has said some classified material still could be missing after the FBI recovered empty folders with classification markings from Mar-a-Lago.

(Reporting by Karen Freifeld, additional reporting by Sarah N. Lynch; editing by Scott Malone, Will Dunham, David Gregorio and Chizu Nomiyama)

Durham Dismisses False Reports About Trump’s Paranoid ‘Spying' Claims

Special Counsel John H. Durham is pushing back against Fox News' reports suggesting former President Donald Trump was preoccupied with conspiracy theories and spying on staff members.

According to The New York Times, Fox News' reporting explained details about Durham's motion which suggested former Democratic presidential nominee Hillary Clinton's campaign was secretly surveilling the Trump White House servers. But now, however, Durham actually refuted those reports, himself.

On Thursday, February 17, the special counsel's team wrote a statement in its court filing. “If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information,” Durham’s team wrote.

Per The Daily Beast, Durham tried to defend himself against allegations made by defense attorneys who argue that his Feb. 11 court filing was an attempt to "inflame media coverage.” In right-wing reports about the filing, they also falsely claimed that it included evidence to support the notion that the Clinton campaign conspired against the former president.

Trump has also pushed similar claims. Last week, the former president claimed the baseless conspiracy theory should be “punishable by death.”

"This is a scandal far greater in scope and magnitude than Watergate and those who were involved in and knew about this spying operation should be subject to criminal prosecution," Trump reportedly said. "In a stronger period of time in our country, this crime would have been punishable by death. In addition, reparations should be paid to those in our country who have been damaged by this."

Reprinted with permission from Alternet

Hillary Clinton Pushes Back Against ’Trump & Fox’ Over Durham’s Fake Conspiracy Probe

Former U.S. Secretary of State Hillary Clinton is striking back at Donald Trump, the disgraced former president and her 2016 presidential opponent. Trump and the far-right-wing media silo, including Fox News, has been wrongly spinning a legal filing from special counsel John Durham – reportedly mischaracterizing it in the process.

“Trump & Fox are desperately spinning up a fake scandal to distract from his real ones,” tweeted Clinton, who also served as a U.S. Senator, and First Lady.

“So it’s a day that ends in Y.”

Clinton also exposed Trump and his allies’ playbook: “The more his misdeeds are exposed, the more they lie.”

“For those interested in reality, here’s a good debunking of their latest nonsense,” Clinton added.

She pointed to a detailed and amusing Vanity Fair article from the highly-respected Bess Levin: “You’ll Never Believe It but Hillary Clinton Did Not, in Fact, Spy on Trump’s White House.”

Here’s how it begins:

Imagine, if you will, that a special counsel appointed by the federal government declared in a court filing that he had evidence that a major political figure—let’s call her Hillary Clinton—had paid spies to infiltrate the White House and run surveillance on Donald Trump in order to frame him as a foreign asset. The whole thing would be a big flipping deal! One for which there would be major, major consequences and far-reaching fallout. The country, nay, the world would be gripped by the story, and for good reason—a former candidate for office spying on the president? In the White House? That would be crazy! And you’re right—it would be crazy if something like that had actually happened. Which it didn’t, though unfortunately for reason, logic, and the concept of the truth, Donald Trump, Fox News, and various other deranged conservatives cannot be convinced of that.


Reprinted with permission from Alternet

Poll Shows GOP Hypocrisy On Trump Document Scandal Versus ‘Her Emails’

The vast majority of Americans believe Donald Trump removing classified and top-secret documents and storing them in his suite at Mar-a-Lago is “wrong,” “serious,” and warrants a criminal investigation by the Dept. of Justice.

A just-released poll by The Economist and YouGov finds seven in ten Americans (70%) say it’s important for presidents to follow the Presidential Records Act, including 90% of Biden voters and 68% of Trump voters.

But for Republicans, the bar is far higher for Hillary Clinton and her private email server – a far-less serious act.

More than nine out of ten Republicans say Clinton’s use of a personal email address – not a crime – was “serious,” but the majority of Republicans (52%) say Trump removing classified and even top-secret federal government documents from the White House for apparent post-presidency use – possibly if not likely a criminal act – was not.

The poll does reveal nearly eight in ten Americans (79%) say it was “more wrong,” than “more right” of Trump to remove the classified documents, including a strong majority of Republicans (61%).

Meanwhile, most Americans (57%) say they would approve of the Dept. of Justice opening a criminal investigation into Trump possibly violating the Presidential Records Act by removing the classified and even top-secret intelligence and national security documents. Only 29% of Republicans agree.

Reprinted with permission from Alternet

Amid Trump Document Scandal, ‘But Her Emails’ Still Haunts DC Press

Responding to critics of the New York Times’ halting, timid coverage of the unfolding story of how Trump smuggled top secret documents out of the White House and stashed them at Mar-a-Lago for a year, the Times’ top Trump chronicler, Maggie Haberman, claimed it wasn’t for the newspaper to suggest whether Trump broke any laws. “Many are awaiting [Attorney General] Merrick Garland’s view on what’s against the law, which law enforcement and not reporters dictate,” she tweeted.

Haberman’s rationale was stunning — journalists are clearly in a position to determine whether public figures like Trump have broken laws by absconding with 15 boxes of documents when the Presidential Records Act requires that all records created by presidents be turned over at the end of their administrations. The idea that the Times newsroom has to wait for law enforcement to officially make determinations of lawbreaking is a new approach.

That’s certainly not how the Times covered the manufactured Hillary Clinton email scandal for two years, commonly referred to as the media’s But Her Emails fiasco. In the first Times article about the Clinton email story in March 2015, and in the first paragraph of that story, the daily openly suggested the presumptive Democratic nominee had broken the law [emphasis added]:

Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.

It wasn’t until August 2015 that the FBI began investigating the Clinton server and whether it involved transmission of classified material. By then, the press had spent five months leaning into the idea that possible criminality was fueling the endless coverage .

The media’s chronic and dishonest But Her Emails coverage, framed as nonstop horse race updates, changed the course of American history by denying Clinton the chance to become the first woman president. By helping elect Trump, it also hastened a political unraveling at home, as he unleashed a new brand of criminal and authoritarian rule. To date, the D.C. press has never acknowledged its sins of 2016; and has made no serious attempt to grapple with what went so wrong.

Reprinted with permission from Press Run

Trump Makes Bonkers Statement About Punishment For Innocent Clinton Aides

Late on Friday, special counsel John Durham filed a shocking document with the court in which he indicted no one for anything. It adds no charges or suspects, and concerns only the technical possibility of a conflict of interest for a law firm which, Durham admits in the opening section, could be addressed with a simple voluntary statement.

Naturally, the right has gone wild over this breakthrough proof of an extensive conspiracy.

Following this procedural request for a motion to “inquire into potential conflicts of interest,” Donald Trump made the only possible response, calling for Hillary Clinton and her whole campaign team to face the death penalty. “In a stronger period of time in our country,” wrote Trump in a statement, “this crime would have been punishable by death.” But apparently, this is a weak time, so no one is likely to hang for the crime of a professional conflict of interest—a possible conflict of interest—that would require a change in attorney. Which is all that Durham is asking for in filing for an inquiry.

The whole court filing has to do with the sole existing charge generated by the expansive, multi-year, multi-million dollar investigation of Michael Sussman, who was indicted in 2021 by a grand jury on a single charge of lying to the FBI. That indictment came because Sussman brought the FBI’s attention to data files that suggested a connection between a server in Trump Tower and a Russian bank and claimed he was not doing this for any client, when in fact his firm had been hired by the Clinton campaign, as well as others.

What does Durham’s new filing add to that case? Exactly nothing.

On the surface, Durham is complaining that Sussman’s attorneys, from the firm Latham and Watkins, have a potential conflict of interest because of a next of shared clients between that firm and Sussman’s firm. That’s it. Durham is asking for a “voluntary waiver” explaining the scope of any connection. Story over.

Except that Durham included in the filing a “Statement of Facts” including a couple of things that did not appear in Sussman’s indictment. Things that don’t appear to be facts at all.

Following the filing, Fox News pundits from Laura Ingraham to Sean Hannity seem to have discovered that Sussman is accused of goading the FBI into looking into potential connections between Trump and Russia. This is being treated as new information that somehow reveals the entire Trump—Russia connection was a setup from the beginning.

There is only one thing wrong with this: Everything.

First, there’s very little new in this highly technical procedural request. The charge against Sussman was fully described six months ago when the original indictment was made. At the time, the Department of Justice even put out a handy announcement explaining that:

“Sussman... met with the FBI General Counsel at FBI Headquarters in Washington, D.C. Sussmann had requested the meeting to provide the General Counsel with certain data files and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank. Sussmann, who had previously represented the Democratic National Committee in connection with a cyber hack, falsely stated to the General Counsel that he was not bringing these allegations to the FBI on behalf of any client.”

That’s it. That’s the entire crime in question, and all the details about it have been available for months. It should also be noted that the data that was passed over by Sussman was not connected to any charges leveled against members of Trump’s organization or campaign, and was unconnected to the over 100 meetings between Trump’s team and Russian operatives described in the report compiled by the Republican-led Senate Intelligence Committee.

The new filing from Durham doesn’t suggest that anyone else is going to be indicted. It doesn’t suggest that there will be any additional charges against Sussman. It provides only vague additions to the information already included in the earlier indictment. But there is one implication buried in the new document that has generated all that heat on the right and led to Trump’s call to string ‘em all up.

That information involves a second meeting, one that took place between Sussman and the FBI in February 2017. Durham has lodged no charges against Sussman related to that meeting. Not only is it brought up for no apparent reason in this document concerning Sussman’s legal representation, but there’s also an extra implication about that meeting that would change the whole nature of the case.

To understand what it is, the easiest route is to look at the reply filed by Sussman’s attorney. In brief, Sussman’s legal team says that Durham’s “factual background” includes several items that aren’t facts at all.

“Approximately half of this Factual Background provocatively—and misleadingly —describes for the first time Domain Name System (‘DNS’) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (‘EOP’), that was allegedly presented to [the CIA] in February 2017. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.”

The answer, says the legal team, is that Durham wants to imply that Sussman was handing over data after Trump took office, and targeting systems belonging to the government. Which, says Sussman’s team, Durham knows is not true.

“... the Special Counsel is well aware that the data provided to [the CIA] pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with [the CIA] happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist.”

Sussman met with the CIA shortly after Trump had already taken office, but brought in data related to the campaign period. That seems like a pretty decent case in support of Sussman’s claim that he was acting only to bring this information to the government’s attention as a good citizen, and not as an agent of a campaign that no longer existed.

This is probably why none of this information was in the indictment. It’s not clear if any of this was ever run past the grand jury, or whether Durham just decided to fling this into the case without ever bothering with that step.

Durham has clearly included in his “factual background” claims not in evidence as part of the indictment, including implications that Sussman went to the CIA with information on official servers from after Trump took office. That claim has been further expanded by right-wing operatives to describe all of this as part of a conspiracy to connect Trump and Russia that began during the campaign and continued after Trump took office; one that involved the Clinton campaign hacking into government servers and planting evidence.

However, missing from this scenario is:

  • Any evidence that the Clinton campaign was involved with Sussman bringing information to the government at any time.
  • Any evidence that anyone ever illegally accessed any server, government or otherwise.
  • Any evidence that the data provided included anything other than information collected before Trump took office.
  • Any evidence that Sussman did more than collect actual data, as provided to him, with nothing added, exaggerated, or falsified in any way.

As Marcy Wheeler at emptywheel has pointed out, this set of additional “facts” was spawned out of a conversation that occurred in 2017. One in which Kash Patel—former Devin Nunes' assistant and eventual chief of staff to the acting secretary of defense—questioned Sussman:

Patel: What was your contact [with the CIA] about?
Sussman: So the contact [with the CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.
Patel: And when did that contact [with the CIA] occur, month and year?
Sussman: February 2017.

As Wheeler rightly points out, this shows Patel has known about this information for over four years. He knew who Sussman talked to. He knew the topic of the conversation. He knew the date. He knew all this when he was absolutely in a position to act on this information as part of the House investigation. He did nothing.

And that’s all that’s in Durham’s document. That’s the “new” information that has the right ready to drag the gallows back onto the Capitol lawn.

Piecing together the “facts” in Durham’s latest filing results in an extraordinary claim associated with that February 2017 meeting. It indirectly claims, or at least heavily implies, that tech specialist Rodney Joffe accessed DNS servers—including those associated with the Executive Office of the President—for the purpose of gathering derogatory information about Donald Trump. But if that’s the case, why isn’t Joffe facing any charges?

Maybe Durham is saving that until, say, October. Because the whole purpose of the document filed last Friday seems to have been nothing more than dribbling one scant drop of water into a right-wing conspiracy theory that has long gone dust dry.

Reprinted with permission from Daily Kos

Rubio Says Trump Absconding With Top Secret Documents ’Is Not A Crime’

In a rare Fox News moment, host Bret Baier reported that many are concerned about the lack of Republican “alarm” over Donald Trump absconding with at least 15 cartons of documents and other items, some of which were classified, or even “top secret” classified, and storing them in his suite at Mar-a-Lago, compared to the massive coverage the media gave the Hillary Clinton email story.

U.S. Senator Marco Rubio (R-FL), who is the Ranking Member on the Intelligence Committee, and also serves on the Foreign Relations Committee, responded by saying “it’s not a crime” to break federal law – the Presidential Records Act of 1978, in this case, by removing the documents or flushing them down the toilet.

It seems odd that the Ranking Member of the Senate Intelligence Committee would be unaware of federal laws about retention of presidential documents, especially handling of classified and top-secret national security documents.

The Florida Republican also suggested Trump had turned over all the missing documents, which is false.

Rubio began by claiming he doesn’t know what’s true because “they” have made up so many stories about Trump “over the years.”

He goes on to suggest, apparently erroneously, that Hillary Clinton’s treatment of classified documents was pleaded in a federal court case.

Reprinted with permission from Alternet

How Trump Could Be Prosecuted For White House Document Scandal

In her forthcoming book Confidence Man: The Making of Donald Trump and the Breaking of America, the New York Times’ Maggie Haberman reports that White House staff believed that a clogged toilet in the White House was caused by the former president flushing documents down the commode. This reporting comes not long after the National Archives and Records Administration retrieved 15 boxes of White House documents from Mar-a-Lago — documents that should have been given to NARA when Trump was still in office.

During Trump’s four years as president, he was known for tearing up documents. All of this begs the question: Could Trump be prosecuted for destroying White House records? And according to attorney Chris Truax, the U.S. Department of Justice could, in fact, prosecute the former president — although it wouldn’t be easy.

“Revelations about Donald Trump’s ‘document retention practices’ have come fast and furious over the last two weeks,” Truax explains in an article published by the conservative website The Bulwark on February 14. “First came confirmation from the National Archives that Trump really did habitually tear government records into shreds — a fact which has been reported in the media since 2018. Then came the news that Trump had improperly retained 15 boxes of documents in violation of the Presidential Records Act and shipped them to Mar-a-Lago.”

Truax continues, “Now, there are numerous reports in the press that several of these improperly retained documents were classified. Some of them were supposedly even top secret. And now, the National Archives has referred the situation to the Department of Justice for possible prosecution. Is prosecution a real possibility? Or is this yet another case where Trump’s clearly out-of-bounds behavior either can’t or won’t be prosecuted?”

The attorney goes on to explain that for the Department of Justice, building a case against Trump for destroying White House records would be difficult but not impossible.

“There are problems with prosecuting Trump for mishandling classified documents,” Truax explains. “For example, the Department of Justice would have to demonstrate that Trump himself was responsible for removing the documents — and that he had done so knowing they were classified. Establishing those facts will be hard even if they are true, and these documents were not removed either by accident or at the direction of someone else.”

Truax adds, “Perhaps the biggest problem, though, is that when it comes to classified information, a sitting president really is kind of above the law. While he was president, Trump had the ultimate authority to decide what was classified and what wasn’t. There is at least one documented example of him ‘declassifying’ highly sensitive information on a whim so he could brag about it to the Russians. If he were criminally charged with improperly handling classified documents after he left the presidency, he could always claim that he had declassified those particular documents while he was still president. This would not be a defense to be proud of, but it might also be hard to disprove.”

The Presidential Records Act of 1978, Truax notes, “requires the White House to preserve presidential records and transfer them to the National Archives.”

“Even though Trump has clearly violated both the spirit and the letter of the law,” Truax observes, “he can’t be directly prosecuted under the Act because it doesn’t have criminal penalties. There are, however, other statutes — in particular, 18 U.S.C. § 2071 — that deal with the improper handling of government records and that could form the basis of a prosecution. This statute makes it a felony punishable by three years in prison to willfully and unlawfully conceal, remove, mutilate, obliterate, or destroy a federal record.”

Truax adds, “Applying that to the records that Trump took to Mar-a-Lago might be tricky because in order to commit the crime, you have to know what you are doing is illegal, and you have to know that the records you are removing from federal custody are federal records…. Funnily enough, the activity that puts Donald Trump in the greatest legal danger is also the most absurd: his habit of tearing up documents into little pieces…. Trump was repeatedly warned that tearing up documents was illegal, both by White House Counsel Don McGahn and by his first two chiefs of staff, Reince Priebus and John Kelly.”

According to Truax, the Department of Justice would need to show “intent” if it prosecuted him for tearing up White House documents.

“It’s a flagrant, long-term, habitual violation that Trump knew was wrong even as he continued to engage in it,” Truax writes. “The only possible excuse for his behavior is that he believed that laws like the one he violated were for little people and not for him. Now, it’s up to Merrick Garland to show Trump that he was wrong.”

Reprinted with permission from Alternet