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Monday, December 09, 2019 {{ new Date().getDay() }}

Elizabeth Prelogar

Like Donald Trump’s own government while he was president, in which multiple cabinet secretaries were either fired or resigned under pressure and undersecretaries, chiefs of staff and national security advisers seemed to come and go through a revolving door, it’s a mess. Like Trump’s reign over his own business, the Trump Organization, which underwent multiple bankruptcies and endured a barrage of 3,500 lawsuits in which he or his company were defendants at least 1,500 times, it’s a mess. Like Trump’s love life, during which he has been divorced twice, carried on multiple overlapping affairs, and was charged by 26 different women with sexual harassment, assault or rape, it’s a mess. Like Trump’s beleaguered attempts to overturn the 2020 election, during which he lost no less than 60 lawsuits, attempted to get a secretary of state to “find” thousands of votes so he could win, tried to file slates of fake electors, and ultimately incited a riot against the United States Congress, it’s a mess.

We’re talking, of course, about Trump’s illegal removal of thousands of documents, hundreds of them highly classified, from the White House as he left office in 2021. The National Archives, where the documents belong, and the DOJ, went round-and-round with Trump for months, more than 18 months in fact, trying to achieve the return of the documents and other materials Trump removed to his Mar-a-Lago estate.

The National Archives asked for them politely. Nothing doing, said Trump at first. Then the National Archives threatened to involve the Department of Justice. That dislodged 15 boxes of documents and other materials, but the National Archives knew they didn’t get everything, so the DOJ got involved. Still nothing from Trump. Finally, the DOJ issued a subpoena for all the stuff Trump was storing in very unsecure places in Mar a Lago. Trump’s lawyers turned over a few files and certified that a “diligent search” of Mar a Lago had been done, and that there weren’t any more documents to be found.

The DOJ famously went to a federal judge and got a search warrant and on August 8, found two dozen more boxes of files, including the 100 classified folders currently at issue once again, this time before the Supreme Court, at least for the moment in the person of Ginni’s husband, Clarence Thomas, who ordered the DOJ to answer Trump’s request for a “stay” that would return the 100 classified folders to the special master, which resulted in today’s filing.

This is not supposed to be the way these things are handled, is the gist of what Solicitor General Elizabeth B. Prelogar wrote in today’s filing with the court. Although she did not come right out and say it, this is a simple case of a criminal investigation of a theft of stolen goods, and everything done by Trump and his lawyers up until this point has been to dissemble and delay and come close to destroying the normal legal process for such a case.

She said it in more elegant legal language, of course, but Solicitor General Prelogar wasted no time getting to the point in her brief. Referring obliquely to the actions of Judge Aileen Cannon in Florida, which promulgated the current action before the Supreme Court, Prelogar wrote on page 4 of the DOJ brief, “District courts [Judge Cannon] have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search [of Trump’s Mar-a-Lago estate in this instance] are ordinarily resolved through criminal motions practice if and when charges are filed [criminal charges against the former president]. Here, however, the district court granted the extraordinary relief applicant [Trump] sought, ordering that a ‘special master shall be APPOINTED to review the seized property’ and enjoining further review or use of any seized materials ‘for criminal investigative purposes’ pending the special-master process, which will last months.”

She reduced the whole thing into two sentences. The mess we’re in, Prelogar told the Supreme Court, is entirely the making of Donald Trump – first for stealing the documents, second for resisting returning them, and third for getting a federal judge with no proper legal authority to intervene and delay the DOJ’s criminal investigation of him.

Referring to the harm which it is necessary to establish in order to file for a stay of an order in any court, especially the Supreme Court, Prelogar wrote that the “applicant,” meaning Trump, “has not even attempted to explain how he is irreparably injured by the Court of Appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court.” She is essentially telling the court that Trump’s motion for a stay has no business before any court, much less the Supreme Court, and thus should be dismissed forthwith.

It’s more complex than that, unfortunately, because Trump’s lawyers raised an issue of jurisdiction they said the court should consider. The 11th Circuit Court of Appeals, in its decision removing the 100 folders of classified documents from the purview of the special master and returning them to the DOJ’s criminal investigation of Trump, slapped down the jurisdictional issue in a footnote, but Trump’s lawyers are clearly hoping that the Trump Team on the Supreme Court, led by Ginni’s husband, will see things differently.

It's complicated, but the New York Times did an excellent job of explaining the jurisdictional issue: “The technical issue for the justices in the new case arises from the interplay of Judge Cannon’s two rulings in September. Mr. Trump’s lawyers said the Justice Department had only filed an appeal from the first one, while the scope of Judge Dearie’s review was detailed in the second one. That meant, they said, that the appeals court lacked jurisdiction to block the special master’s review of the sensitive documents.”

Do you see what’s going on here? Because it’s not just an ordinary mess, but a Trumpian mess, it’s a little hard to discern, but here is the best summary I can do: Trump went to the Supreme Court and did not ask them to overturn the 11th Circuit’s order returning the 100 classified documents to the DOJ. Instead, Trump asked the court to order that they be put back under the authority of the special master to review them.

WTF? Why would Trump even care if the classified documents are back in the pile being gone through by the special master, who is reviewing everything to see if it is protected by executive or attorney-client privilege?

The DOJ quite correctly points out in its brief that the classified materials are not in any way “personal” documents which might be found to belong to Trump by the special master. Because they are marked classified by the government, they clearly belong to the government and retain relevance to the current administration because they are national security secrets that the government needs to protect the nation, a responsibility given to the Executive Branch by the Constitution. Trump doesn’t need to look at classified documents in his home or office in Mar-a-Lago, because he isn’t president anymore. His responsibility for the nation’s security ended on January 20, 2021 when Joe Biden moved into the White House and assumed the presidency.

The DOJ put it this way: The applicant, Trump, “certainly cannot establish the clear error required to justify the relief he seeks — particularly because he does not acknowledge, much less attempt to rebut, the Court of Appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the executive branch’s authority to control the use and distribution of extraordinarily sensitive government records.” Nor did Trump attempt in any of his court filings, including this one to the Supreme Court, to argue that he declassified the documents in question. Even if he had the authority, which he does not, that wouldn’t matter either, because one of the crimes he is being investigated for having committed involves the mishandling of national defense information, which need not be classified in order to come under the statute involved, which is entitled “U.S. Code 793 – Gathering, transmitting, or losing defense information.”

I could quote more from the DOJ filing, for instance, when it reminds the Supreme Court that what Trump is seeking to do is an unprecedented intrusion into the criminal justice system which “restricts the government from using its own documents in an ongoing criminal investigation.”

But such a deep dive isn’t really necessary this time, because the DOJ has been through all of this before in its filings with Judge Cannon and the 11th Circuit, and we’ve heard all the arguments before by both sides, and we, the DOJ, and indeed the courts – all three of them -- already know what’s going on. Trump took 11,000 documents from the White House. He knows he did it, and he knows that he is very likely going to be indicted on multiple counts of obstructing justice and mishandling of national defense information, so all he is trying to do is put off the day that happens.

None of this would be going on if Trump wasn’t afraid of being charged with a crime and potentially facing prison. That is why Trump has created the mess that is before the courts, now all the way up to the Supreme Court. It’s the way he deals with everything. He waves his arms around, or he has his lawyers wave their arms around, and he points over there and over there and over there as he tells lie after lie after lie. At one of his recent rallies, Trump attacked the FBI and the DOJ for searching Mar-a-Lago because all the stuff he had there was “guarded by the Secret Service and my people,” and besides, “it’s all mine.”

The Secret Service of course protects Trump, not his property, whether it is a house or a golf course or the documents he stole and stored at Mar-a-Lago behind a door the DOJ had made him put a lock on, which he regularly makes fun of at his rallies.

Trump tells his MAGA horde it’s all a big joke, just another witch hunt by the libs. He hasn’t told his lawyers it’s all a joke, however. He’s had them file motion after appeal after motion to create the legal mess he’s trying to hide behind as he attempts to delay the day he will face a jury and the possibility of being found guilty of the felonies he knows he committed, at least the ones surrounding the documents, anyway. All his other felonies will have to wait, because the case of his theft of the documents is already in court, and he hasn’t even been indicted yet.

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.

Reprinted with permission from Lucian Truscott Newsletter

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