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Putin's Desperate Draft: Head To The Ukraine Front -- Or The Gulag

Intelligence officials in Great Britain are telling reporters that “the Kremlin’s real goal is to mobilize 1 million,” in the planned conscription announced by Russian President Vladimir Putin on Wednesday, according to The Guardian newspaper in London. British defense officials “reiterated in a briefing on Friday that it was their belief it will be very hard for Russia to reach 300,000, never mind any larger figure.”

Another official, speaking anonymously, told the Guardian that Putin’s announced goal of drafting 300,000 into the Russian army is “an immense number of people to then try to get in any sense of semblance to be able to fight in Ukraine. The authorities will face major challenges even in mustering this number of personnel…and we think that they will be very challenged in training, let alone equipping such a large force quickly.”

The Washington Post reported yesterday that conscripts are being told they are to be sent for 15 days of training before potential deployment to the front lines in Ukraine.

Allow me to put this into perspective for you. At West Point during our first-year summer training in what was in those days called Beast Barracks, we didn’t handle a rifle for anything other than close-order drill for the first three weeks. When we finally began instruction on the M-14 and M-16 rifles, we spent the first part of a week learning safety procedures when handling firearms and the second part learning to disassemble, clean, and reassemble both weapons. Only then were we trucked out to the firing range to begin learning to shoot the things.

We were issued one bullet at a time when firing the weapons from the standing, kneeling, sitting, and prone positions at first. Finally, after several days of this, we were given clips (for the M-14) and magazines (for the M-16) and taught to use the weapons for more rapid fire at targets downrange. All in all, our weapons training took two weeks, off anD on, with time out for meals, physical training, parades, and classroom instruction on tactics and other subjects.

Then we were given several weeks of tactical training in the field, learning squad and platoon maneuver, planning for combat attacks, how to execute orderly repositioning of forces, and how to defend fixed positions.

The U.S. Army spends about 10 weeks in Basic Training of new recruits and then puts them through another two to three months of what is called Advanced Individual Training for the various combat arms, like Infantry, Armor, Signal Corps, Field Artillery, Engineers, Air Defense, and Aviation. Training for service in non-combat specialties like Ordnance (ammunition), Transportation, Civil Affairs, Military Intelligence, and Psychological Operations can take longer. Soldiers can also be sent for training in Airborne Operations, Special Forces, and Rangers, all of which can add months to the total time necessary to train a soldier to be ready for combat.

Fifteen days? Putin isn’t training soldiers, he’s preparing to send human beings to be live targets for the Ukrainian army.

And what is he going to do to arm and supply his ill-prepared recruits? New battalions and regiments comprised of hundreds of thousands of recruits will need thousands of new armored vehicles, resupply trucks, howitzers, tanks, and other combat equipment Russia does not have after the loss of multiple battalions of such equipment in Ukraine since February.

The last time Russia experienced this level of mobilization was during World War II when the Soviet Union sent millions of barely-trained coNscripts into combat against the forces of Nazi Germany, which had invaded from the west and reached positions just outside of Leningrad and Moscow by the winter of 1941. The Soviets were able to push back the German armies during that winter and into January of 1942 by being more prepared than the Germans were for the brutal Russian winter, and by sending hordes of soldiers to counter the German offensive and regain land that they had taken.

Soviet casualties over a four-month period were estimated at more than 650,000. Soviet NKVD units (Commissariat for Internal Affairs – a kind of state police force) were positioned behind the Soviet front lines with orders to shoot any Soviet soldiers attempting to retreat, and they even went to field hospitals and executed soldiers who had shot themselves in the foot or the hand to get off the front lines.

In other words, a good part of the Soviet strategy to win the war on the Eastern Front during World War II depended on their army being willing to suffer far more casualties than the German army -- in other words, to spend bodies to take land.

Putin appears to be readying Russia to use similar tactics against the army of Ukraine, which is much smaller than even the Russian army as currently constituted. Putin may be preparing to send so-called human waves against Ukrainian forces to retake territory he has lost and take more of Ukraine than his forces now occupy.

It is a tactic of desperation, evident by his call-up of reserves and drafting of young Russians almost immediately after his army suffered the severe defeat they were dealt by Ukraine in its northeast recently, when the Ukrainian army retook more than 3,500 square miles that had been occupied by Russia since last March.

Putin’s desperate gamble is not going over well within Russia. His draft has been focused on poorer regions in the country’s east and north and has not yet encompassed the largely middle class cities of Moscow and St. Peterburg. The Washington Post reported yesterday that “more than 1,300 people were arrested at anti-mobilization protests in cities and towns across Russia on Wednesday and Thursday, in the largest public protests since Russia invaded Ukraine on February 24.” Reports from inside Russia describe scenes of men being rounded up and forced onto buses headed for military bases. The Post reported that there have been “dozens” of attacks on military recruitment offices across Russia, with some being set on fire.

One scene I saw on the news last night showed recruits being loaded onto buses while their families, including wives, mothers, and children, were held at bay by SWAT-equipped Russian state police wearing helmets, bullet-proof vests and face shields, and wielding automatic weapons. In fact, the state police seen in news footage putting down riots and defending buses filled with recruits from demonstrating families look to be better equipped than many of the soldiers in Ukraine, who have in the past few weeks been reported to be laying down their arms and taking off their uniforms and heading away from the front lines, attempting to disappear into the civilian population ahead of the Ukrainian offensive.

Kremlin spokesman Dimitri Peskov was quoted in the Post saying, “The information about a certain feverish situation in airports is very much exaggerated.” He was referring to multiple reports from Russia that flights out of Moscow and other cities have been overbooked over the past few days, and ticket prices have skyrocketed as thousands of mostly male Russians are attempting to flee the country ahead of Putin’s mass mobilization. I saw a “Flight-Aware” video on Twitter last night showing what looked like at least a hundred flights leaving Moscow and St. Petersburg, heading south toward Turkey and Azerbaijan and east toward India and other Asian nations that still accept flights from Russia.

It is looking more and more like Putin is preparing for a kind of last stand to protect the areas Russian forces have already taken in Ukraine. “Russian red lines are not necessarily where they say they are,” a British defense official told the Guardian. “There are parts of the territory that Russia now controls which are of greater strategic significance to Moscow than others.” The defense official was referring to Crimea and the parts of Luhansk and Donetsk in the east that Russian forces and Ukrainians friendly to Russia have occupied since 2014.

Former Russian President Dimitri Medvedev threatened yesterday that Russia might use tactical nuclear weapons to defend Ukrainian territory Russia now holds. "Russia has announced that not only mobilization capabilities, but also any Russian weapons, including strategic nuclear weapons and weapons based on new principles, could be used for such protection. The Donbas (Donetsk and Luhansk) republics and other territories will be accepted into Russia. There is no going back,” Medvedev said.

He currently serves as the deputy chairman of Russia’s Security Council and is thought to be close to Putin. He is at least the third former Russian official who has been quoted over the last three days as threatening the use of nuclear weapons to defend territories within Ukraine that Russia is using referendums to force into the Russian Federation. There are reports out of Ukrainian cities in the east that local police working with the occupation governments and the Russian military are taking down names of people who have voted against referendums on joining Russia.

Meanwhile, Putin is facing increasing criticism from his right within Russia of his losses in the war and his failure to have taken Kyiv and conquered the country in the short time he had predicted before he launched his attack on Ukraine last February. To pacify his internal opposition, Putin gave a speech on Wednesday saying that he would annex the regions over which Russia does not have full control. He issued a vague threat to use nuclear weapons to defend the annexed regions as part of “Russian soil.”

It's a bad situation over there in Russia, and it’s getting worse. Putin is making more promises that he very likely cannot keep, and his mobilization of reserves is turning into a full-fledge draft that many Russians do not like at all. A country that only a generation ago had breadlines around the block in downtown Moscow and rampant poverty in its outlying regions got used to the luxury of eating regularly and using their cellphones and having the freedom to travel outside of Russia.

Sanctions are causing shortages outside of Moscow and St. Petersburg, and much of the lifestyle Russians enjoyed before this year is now endangered by Putin’s war on Ukraine and by his crackdowns inside Russia. Some Russian experts in this country are wondering how much longer Putin can last. Others point to his KGB-trained expertise in political oppression and speculate that his dictatorial strength should not be underestimated.

Historians disagree about exact figures, but as many as 10 million civilians died in the last Russian Revolution and civil war in 1917. Putin’s will to power in this century has already cost his economy dearly and could be just as expensive in human terms.

Watch this space.

Beyond Unhinged: How Trump Confessed To Bank Fraud On 'Hannity'

With just about anything attached in any way to Donald Trump, you don’t even know where to start. But his Wednesday night interview with Sean Hannity on Fox News is in a class of exactly one. I looked for a transcript online, so I could quote from the interview, but there isn’t one. In fact, it’s hard to find the whole thing from beginning to end, because it’s such a target-rich environment. Nearly all the sources featuring the interview just run their favorite clips.

Where do you start? We’ve all heard about Trump’s out-of-the-blue speculation that the FBI searched Mar a Lago because they were looking for Hillary Clinton’s emails. We’ve heard his explanation of the process of declassification of secret documents just by “thinking about it.” But receiving far less coverage has been his rant against New York Attorney General Letitia James, who filed a 222-page lawsuit on Wednesday against Trump, his three adult children, and the Trump Organization for fraud, lying on official documents, and a whole host of other charges.

So, let’s start right there. Trump complains that James has been out to get him for years. “Her whole campaign was based on this, and then she came after us,” Trump began, in response to yet another gelatinous question from lapdog Hannity. “We’ve been going over this for years, and I actually thought because our values are really high, the company is great, like places like this [turns to indicate the gold-leaf ornamentation on the wall behind him] so many other places that I have like this, frankly, I mean, just to do among the finest places in the world, I actually thought that they would never bring a case, and she brought it. And the reason I thought she didn’t have a case, I was of the impression she wanted to settle, but I had a problem because how do you pay something even it’s a small amount of money if you’re not guilty?”

It was on September 15 that Trump’s lawyers sat down with the Office of the New York Attorney General and tried to settle the case before it was filed. Exactly one week later, Trump acts all surprised that this terrible thing has happened to him.

As he sat there talking to Hannity amidst the splendor that is Mar a Lago, Trump was aware that his company is set to go to trial next month on criminal tax fraud in Manhattan, “a case that could expose the company to steep financial penalties if it is convicted,” the New York Times reported.

But let’s go back to the interview, as Hannity surprises us with a question that verges on a modicum of specificity even as it seeks to set Trump up to deny a primary aspect of the case against him, that he inflated the value of his properties in order to qualify for hundreds of millions in loans, $300 million from Deutsche Bank alone: “Did you ever in your life fill out a loan application while in the Trump organization?” Hannity pleads.

“Well, you know, we make loans, but I have very little debt,” Trump lies with an approximation of a straight face. And yet he persists. Hannity somehow manages to get out, “Here’s what I want to tell you,” before being interrupted by Trump with this: “They’ve demeaned me for years with this stuff, and now they find out I have very little debt.”

Hannity then proceeds to help Trump craft a defense: “I was told that in your financial statements, when you make a loan application, and you can confirm if you know this or do not know this, do you put in a caveat that actually says, these are all valuations because I don’t know a lending institution, a financial institution, that would lend money to anybody, and just go by the borrower’s estimation of valuation of a particular property. So if you’re buying a $100 million property and you’re putting X, Y, and Z up for leverage, you estimate its value at this, and they estimate it as this, don’t they have a fiduciary before they give you that amount of money, so that they determine what the value is?”

Trump relaxes. He’s in his element. He has an obsequious pretender at his feet who doesn’t know anything even close to what he knows about the world of big finance and billionaire-ness: “First of all, these are banks that have the best law firms in the world, the biggest and best and most powerful…they do their own work, they don’t rely on us. But what we do is, we have a disclaimer and we put this as my people put it together, I would look at it, and it looked fine, but it’s not overly important. What’s important is the property. I have the best property. We have a disclaimer, Sean, right on the front, and it basically says, you know, get your own people, you’re at your own risk, this was done by management, it wasn’t done by us, it was done by management, so don’t rely on the statement that you’re getting. And by the way, it goes on for like a page and a half, it’s a very big disclaimer, it’s a very powerful disclaimer.”

This is Trump acting out what he has told the “best law firms in the world, the biggest and best and most powerful,” basically telling them how to do their jobs, because, you know, I’m Trump and I know all about this stuff.

Hannity presses on, agreeing with Trump that the lenders have their own valuations, “they’ve got their own bosses and shareholders they have to answer to,” because it’s not your fault, it’s the fault of these biggest, bestest, most powerful people you’re dealing with.

Leaning forward, again indicating the gilded magnificence of the room at Mar a Lago, Trump confidently says, “So they would look at a property like this, I don’t even have a mortgage on this property, I don’t have a mortgage on most of my properties,” says the man who has signed away practically everything he owns to Deutsche Bank to get the money he’s living on.

“You know, I used to read where he’s overextended, he has so much money he borrowed, and I’m saying, what are they talking about? But actually, the one good thing is that people see what a great company I built. I built a great company. A powerful company. A company that’s very lowly-leveraged, with among the best assets anywhere in the world, and you look at this asset, and she has this down to $75 million dollars, I can tell you, it’s many times that number. She said, oohh, he evaluated it at 75 or whatever it is, and she valued it at 75, or whatever it is, this is Letitia James, no, but if I were going, I don’t even have a mortgage on this property, but if I was going to put a mortgage on this property, the institutions are going to be coming over, they’re going to be going through comparable properties all over Palm Beach or wherever it is, Miami, we have them all over, we have tremendous properties…”

Are you following this? This is Mar-a-Lago he’s talking about. Trump has been charged in the New York lawsuit with overvaluing his properties to use them as collateral for loans. Letitia James, who did her due diligence and looked up all the comparable properties in Palm Beach, determined that Mar-a-Lago was worth $75 million. The New York attorney general discovered in Trump’s financials that that he valued it at $739 million in order to qualify for loans.

What Trump does, in his roundabout, incoherent interview with Hannity, is take a shovel in hand and dig a big hole and jump into it wearing his blue suit and red tie and black lace-up shoes, when says Letitia James doesn’t have a case against him for overvaluing his properties on loan applications, but look at me! I’m right here on national television and I’m providing all the proof you need that I overstated the value of my properties, in this case, Mar-a-Lago, which isn’t worth what non-billionaire Letitia James said it was worth, but “many times that number.”

These public statements by Trump, made on the same day he was sued in New York State, are all admissible in James’ lawsuit against him. She says he overvalued his properties. Trump’s defense is, no I didn’t, and yet here he is admitting that’s exactly what he did, and he got away with it because the banks with all the best and biggest and most powerful law firms went along with it and loaned him money, so it’s all their fault, not his. And yet it’s Donald Trump’s name on those loan applications Hannity asked him if he filled out, and it’s his name on those valuations, and whether the banks went along with his numbers and loaned him money or not, he attested that what he was putting on those financial documents was true.

That, my friends, is called bank fraud, live on the Sean Hannity show on Fox News for everyone, including Letitia James, to see. And that’s why we need a new word for “unhinged.”

Upholding Justice Department, 11th Circuit Panel Spanks Cannon Hard

Only 48 hours after the Trump legal team filed its response to the Justice Department’s request that the 11th Circuit Court of Appeals end the restrictions imposed on the 100 folders of highly classified documents, that appeals court -- citing legal precedent after precedent after precedent -- eviscerated the order handed down by Florida District Court Judge Aileen Cannon and ruled in the government’s favor.

In a scorching decision, the panel of three judges – two appointed by Trump and one by Obama -- found that Cannon erred on nearly every point of the law and procedure. The circuit court ordered that her restriction on the DOJ’s use of the classified documents is “stayed,” or lifted, as well as her requirement that “the government…submit the classified documents to the special master for review.”

The legalese is a bit dense, but that sounds an awful lot to me like the circuit court has told the DOJ that it does not have to submit the classified documents seized from Mar a Lago to the special master for review. That part of Cannon’s order is now moot, and the special master will not have to ensure that everyone reviewing the documents has a security clearance high enough to do so.

The circuit court appeared to rely heavily on the government’s “need to know” rules about classified documents, that anyone seeking to see, or even hold onto classified documents must not only have an appropriate security clearance but must establish a “need to know” in order to have the documents. The circuit court found that Trump had “no possessory interest” in the documents because their classified markings clearly show they belong to the government.

“For our part,” the court wrote, “we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”

The court went on to complete its cancellation of Trump’s legal arguments by noting, “Plaintiff [Trump] has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the documents.”

KAPOW!

Further, the court takes apart Trump’s continued insistence that he had somehow declassified the documents at some unspecified point in the past: “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”

BAM!

That’s where demanding a special master got him, and that’s where allowing his team to request Judge Raymond Dearie to serve in that capacity ended him up.

The circuit court went on to consider Trump’s argument, endorsed by Judge Cannon, that he would suffer irreparable harm due to “the threat of future prosecution and the serious, often indelible stigma associated therewith.” Disposing of that fiction, the court quoted a precedent that noted “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”

BOOM!

As if all that were not enough, the Circuit Court spends about three pages enumerating all the procedures involved in the classification of documents and the rules necessary to protect them from exposure to forces hostile to the national security of the United States.

“We are not persuaded,” the court wrote, with the arguments made by Judge Cannon that a national security review of the classified documents could continue while restrictions remained on the DOJ and FBI. Endorsing the government’s argument to the contrary, the court continued, “The United States explains that there are circumstances where its national-security assessment of the classified materials is inextricably intertwined with the criminal investigation…thus, an injunction delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public.”

THUMP!

Finally, the circuit court took on Judge Cannon’s order that the special master should review the classified documents for possible protection under executive privilege. “The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree,” the court states plainly. Pointing Cannon to a precedent whose importance she should have recognized, the court went on to say, “The Supreme Court has recognized that for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’”

ZANG!

The whipped cream on the pie the circuit court launches into the face and reputation of Cannon is found in the final two pages of its decision and is worth quoting in full here. Analyzing whether Trump would be “substantially injured” by lifting the restrictions on the classified documents imposed by Judge Cannon, the court concludes:

First, as we have explained, Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.

Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation. “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 U.S. 323, 325 (1940).

Third, because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States’s use of these records imposes the risk of disclosure to the United States of Plaintiff’s privileged information.

THWACK!

The 11th Circuit Court of Appeals punishing rejection of both Cannon’s order and Donald Trump’s legal reasoning is complete.


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

Dearie Challenges Trump Lawyers To Prove He Declassified Mar-a-Lago Documents

"You can't have your cake and eat it."

That is what Judge Raymond Dearie told Trump’s lawyers yesterday when they objected to his demand that they submit a sworn affidavit attesting to any actions Trump had taken to declassify the 100 folders of top-secret documents the government is seeking permission to use in its criminal investigation of Trump. Dearie, acting as special master, pressed Trump’s lawyers repeatedly on whether Trump had actually declassified the documents Trump removed from the White House and took with him to Mar a Lago.

The meeting, held in Dearie’s court in Brooklyn, was supposed to address the schedule he proposed for reviewing the 11,000 documents and other materials Trump removed from the White House when he left office on Jan. 20, 2021.

Instead, the session devolved into a lengthy back-and-forth between the judge and Trump’s attorneys over Trump’s repeated claims that he had declassified the secret documents seized by the FBI during its August search of his hotel/club/residence in Palm Beach, Florida.

Part of the subject of the meeting was Dearie’s plan for both sides to examine all the documents and submit their proposed labels for each one – personal, privileged, or unprivileged – by October 7. Trump’s lawyers objected to that schedule and asked for more time, possibly until the end of the month, before the documents have to be categorized.

The primary issue, raised by the government in its motion to Judge Cannon over a week ago and in its appeal of the judge’s order last Friday, is the status of the 100 folders with various classification markings that hold an unknown number of classified documents. The Department of Justice has asked that Judge Aileen Cannon’s order restricting their use by the government in its criminal investigation be lifted. Trump’s lawyers claimed to Cannon last week, and yesterday in their answer to the DOJ appeal, that the documents should not necessarily be considered classified, and neither court should accept the government’s word that they are classified.

In yesterday's filing to the appeals court, Trump’s lawyers wrote, “The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”

During the initial stages of the meeting, Dearie appeared to accept that the documents are classified, referring to the markings on them showing various levels of classification, including Secret and Top Secret/Sensitive Compartmented Information. He told Trump’s lawyers that in effect, Trump was trying to have things both ways: He is refusing to certify that he declassified the documents while asking Cannon and the Circuit Court as well as Dearie, the new special master, not to accept the DOJ’s contention that all of the documents remain classified.

Trump’s lawyers contended that having to certify that the documents were declassified would cause them to “disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.” Responding to that, Dearie proclaimed, “I can’t allow litigation strategy to dictate the outcome of my recommendations to Judge Cannon. What am I looking for? As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?” The “it” Dearie referred to is the contention of Trump’s lawyers that the classification status of the documents should remain in question.

Responding to an assertion by one of Trump’s lawyers that Dearie was “going a little beyond what Judge Cannon contemplated,” the judge replied testily, “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. I think I’m doing what I’m told [by Judge Cannon].” Trump’s lawyers said the issue was not about “gamesmanship,” and told the judge, “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”

It was at that point that Judge Dearie told the Trump legal team, “You can’t have your cake and eat it.” He then announced that henceforth he will operate on the assumption that the documents are classified according to their markings and proceed accordingly. Dearie’s decision raised the possibility that he will move quickly to review the classified documents and that he may recommend to Cannon that she lift her order restricting their use by the government. After all, he seemed to indicate, after both the DOJ and the Trump legal team have reviewed the documents and labeled them as private, privileged or not privileged, everyone will have seen the documents, classified and otherwise, so the issue of restricting the use of their content will be moot.

Dearie’s meeting lasted only 40 minutes, and based on his attitude about his duties as a special master and the way he dismissed the contentions of Trump’s lawyers, it may turn out to have been the longest 40 minutes of the former president’s life.

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

Trump's Big Day With Special Master Doesn't Go Well (For Him)

Senior Judge Raymond Dearie, sitting in the Eastern District of New York in Brooklyn, fired a warning shot over Trump’s head in his first act as special master in the case of the 11,000 documents Trump removed from the White House upon leaving the presidency, which he refused for months to return to the government as required by law.

At issue before Judge Aileen Cannon in Florida, and now before the 11th Circuit Court of Appeals in Atlanta in the appeal filed by the Department of Justice last Friday, are 100 classified folders containing an unknown number of secret documents which the DOJ wants the Circuit Court to release from Cannon’s stay restricting their use by the FBI and DOJ. Trump has publicly claimed that he declassified the documents in question in multiple tweets and other public statements, but notably, his lawyers have refrained from making the same claim in their filings opposing the DOJ’s motion to release them for use in its criminal investigation of Trump.

Trump’s lawyers have called the classified documents Trump held in Mar a Lago “alleged classified documents,” and Judge Cannon has seemed to question whether the documents are indeed classified as their markings would indicate and which the DOJ has said they are.

In Dearie’s letter to both the Trump lawyers and the DOJ yesterday laying out a proposed schedule for his work as special master, the judge in effect told Trump to put up or shut up about declassifying the secret documents he held. In their response to the judge’s proposed schedule, Trump’s lawyers squawked loudly: “The Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government,” Trump’s lawyers wrote. “The Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.”

Got that? For the first time, Trump has allowed his lawyers to acknowledge that he faces a potential indictment, and he does not want to be forced to show his hand before the indictment comes down and the prosecution demands that he do so.

In plain English, Trump and his lawyers are understandably reluctant to answer the judge about whether or not Trump declassified the documents held at Mar a Lago because Judge Dearies has faced them with the option of either telling the truth or lying. Having gotten away with lying in public for his entire adult life, Trump is clearly uncomfortable with the position he has put himself in: legal proceedings in court, before a judge, require that parties tell the truth, and lies told by either the plaintiff – Trump – or his lawyers are punishable.

Trump’s problem is that he took a whole slew of classified documents out of the White House, which the government subsequently seized, but he has no corresponding documents proving his statements that he declassified them. If they had been declassified, the documents themselves would have markings declaring them to be “declassified.” None of the documents seized from Mar a Lago or turned over to the National Archives or to the DOJ have such markings.

Declassification is a complicated and lengthy process. If a document is to be declassified, it must be sent to the agency which first classified it to be reviewed. At this point, the agency can object to the declassification and provide reasons why it should remain secret. If there are no objections, the document is sent around to other intelligence agencies or to the Department of Defense, if the DOD had used the document, and those agencies get an opportunity to review it and object to its declassification on the grounds that it might compromise ongoing operations, endanger a human source used in the production of the document, or reveal sources and methods of obtaining intelligence.

After this lengthy process, the document is returned to the agency which produced it for a final review and formal declassification. At that point, the document essentially becomes a record that would be available to the press and to the public via a Freedom of Information application, or it might be publicly released by the person or agency that requested the declassification.

Trump’s big problem is that he wanted secrets, not public information, because secrets have value that publicly available information does not. What good is a classified document if everyone knows what it says? If Trump had in fact declassified the documents in question, there would have been no argument about them in court before either Judge Cannon or the Circuit Court, and certainly there would be no reason for Judge Dearie to question Trump and his lawyers as to whether they had been declassified.

It's a box Trump himself constructed and locked himself into through a combination of arrogance and ignorance. Trump kept the documents because he believed “they are mine,” as he has said several times, an act and allegation of totalitarian levels of self-regard. But he had no knowledge of what is involved in declassifying information because he had never formally done so. He knew all about revealing secrets, as he did when he revealed secret information about Israel to the Russian ambassador and foreign minister only days into his presidency, and which he probably did in his private meeting with Vladimir Putin at Helsinki, which he held without any aides or even his own translator, agreeing to use Putin’s instead.

He could have let the DOJ have the classified documents the FBI took from Mar a Lago and been done with it. Instead, he went into court and asked for a special master to review the documents, and now here he is, having to respond to the demands of the very person he got a federal judge to appoint for the purpose of going through Trump’s professional underwear drawer, as it were.

Welcome to your big day, former President Trump, and good luck. You’re going to need it.

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

Justice Department Rips Judge Cannon A New One With Appeal Brief

Judge Aileen Cannon may have thought she had granted the Department of Justice enough leeway to complete its investigation of Donald Trump for his mishandling and unsecure storage of classified documents at Mar a Lago, but in its appeal filed yesterday, the DOJ launched into a 29-page first-year-law lecture on the judge’s delusions about the law and her misunderstanding of the practicalities of conducting a national security investigation.

Cannon thought she was making two major concessions to the DOJ in her order issued on Thursday appointing Judge Raymond Dearie as special master. Previously she had told the DOJ it could not use the 100 folders of classified documents in their criminal investigation of Donald Trump. That order was specific and to the point. In her Thursday order, however, the judge told the DOJ that her previous order did not “restrict the Government from conducting investigations or bringing charges based on anything other than the actual content of the seized materials; from questioning witnesses and obtaining other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents.”

This is what is usually called playing chicken with the government by those practicing before the bar. First, she tells the DOJ they can’t touch the classified documents or use them in any way whatsoever, even as they go about interviewing witnesses. Then she comes along and appears to reverse that restriction by allowing the DOJ to use the classified documents but not their contents. This is like telling a kid you can have your football back, but you can’t fill it with air and you can’t play with it.

The second concession she thought she was making was telling the special master that he was free to “prioritize” his review of the 11,000 documents, indicating that he could review the 100 classified documents first and then make “recommendations” to the judge as to how he thought the government could use them. The judge was depending on the DOJ and the special master to read-between-the-lines and conclude that her order was reasonable and go on with their business.

The DOJ is not satisfied with the judge’s so-called compromises and went straight at her order, calling it “unprecedented” because it enjoins “the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security.” The DOJ thus makes two major points: First, the classified documents don’t belong to Trump, they belong to the federal government, and second, this is a national security investigation, and the government should be accorded the same deference and discretion that courts have always yielded to the branch of government that is charged by the Constitution with defending the country.

And that’s just the first sentence of the DOJ’s appeal.

The DOJ proceeds to deliver twenty-three more pages attacking Judge Cannon on her interpretation of the law, her misunderstanding of or refusal to concede various facts in evidence, and her abject deference to Trump, which apparently caused her to drop to her knees as she cited “the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.” The unprecedented circumstance she refers to is that Trump isn’t merely a common citizen, but a former president.

The DOJ’s position beforee the 11th Circuit, naturally, is that Trump is a citizen like any other, and while he should be accorded his rights under the law, he is not entitled to the special rights Cannon delivers to him on a silver platter in her order appointing the special master.

The DOJ makes no bones about pointing out that Judge Cannon appears to live on a legal planet occupied by exactly one person: herself. The entire purpose behind her order – the appointment of a special master to review the documents removed from the White House by Trump as to whether they are entitled to protection by attorney-client or executive privilege – is negated by the fact that neither privilege was ever asserted by Trump. The DOJ points out to the 11th Circuit that Judge Cannon appears to have claimed these privileges for Trump on her own, without input from the former president other than his original request that a special master be appointed for this purpose.

Talk about unprecedented! Only on Planet Cannon are federal judges entitled to claim executive privilege and attorney-client privilege for a plaintiff when neither privilege has been asserted.

The Nixon tapes decision by the Supreme Court established that even when a president or a former president asserts executive privilege over materials that he holds – in Nixon’s case, the White House tapes – such an assertion is “overcome by the government’s ‘demonstrated, specific need’ for them…because they are central to its ongoing investigation.”

That the “ongoing investigation” in both the Nixon and Trump cases was and is criminal in nature bears heavily on the rejection of the claim of either privilege, according to the DOJ appeal. The DOJ also points out that presidents cannot claim executive privilege over communications within the Executive Branch, only when such communications are sought by the Congress or by entities outside of the government. In this case, the DOJ reminded the Circuit Court, Trump is attempting to use the claim of executive privilege to prevent investigators who are part of the Executive Branch – the FBI and DOJ – from gaining access to materials which were classified by the Executive and owned by the Executive, from being used in a legitimate function of the Executive: a criminal investigation of the mishandling of national defense documents.

These are elements of law and procedure which should not have to be explained in an appeal to a Circuit Court, and yet here is the DOJ, in an echo of The Prime of Miss Jean Brody, having to do just that for a judge who -- like the title character in the play and film -- seems to have an unusual affection for authoritarian leaders, and particularly for Donald Trump.

The DOJ basically rehashes its argument that limiting the FBI’s access to and use of the 100 classified documents prevents the risk assessment by the Director of National Intelligence into whether or not the mishandling of national defense information by the former president has harmed the national defense. This is another case in which executive privilege cannot be claimed over documents owned by the government that are necessary to another part of the Executive Branch – the intelligence community – in carrying out its duties of helping to defend the nation.

The DOJ doubled down here in its appeal, pointing out that while Judge Cannon’s order may have appeared to allow the national security review of the classified documents to go forward, its limitations on the FBI blocked the assessment and thus damaged national security. The 100 classified documents “were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.” By blocking the FBI from using the contents of the documents while interviewing witnesses and from analyzing the contents of the documents, the FBI is constrained from assisting the Director of National Intelligence in proceeding with the national security review.

Then the DOJ revealed a new wrinkle in its argument. The appeal claimed that the judge’s restrictions on the FBI’s use of the classified documents made it impossible to determine if any classified documents were still missing. The DOJ cited the 48 empty folders found at Mar a Lago with classification markings and told the Circuit Court that the judge’s order forbidding the FBI from using the contents of the classified documents prevented the government from identifying patterns in the documents Trump kept at Mar a Lago that might help determine the nature or even the specific names of the documents missing from the 48 empty folders.

In other words, the DOJ in its appeal to the 11th Circuit is coming close to accusing Trump of withholding secret documents in an attempt to thwart the government’s criminal investigation. The appeal strongly indicates that the DOJ believes some of the secret documents are missing from the folders because Trump has done something with them beyond hiding them, which would be included in the government’s national security assessment of harm caused by the fact that so many documents appear to be missing as well as by the mishandling of the seized documents themselves.

The DOJ goes into great detail describing Trump’s denials that he had even removed documents from the White House, and then his attempts to delay their return to the National Archives, including his incomplete response to a subpoena for the documents in which he had one of his lawyers certify that no more classified documents were being stored at Mar a Lago on June 3. The FBI search of Trump’s resort/club/residence in August turned up some 23 additional boxes of unreported material, including the 100 folders of classified documents the DOJ wants the appeals court to order released from Judge Cannon’s stay.

The bulk of the rest of the DOJ appeal goes into the legal issues involved and how Judge Cannon either ignored them or outright violated precedents and procedures. Lots of invocations of Rule 41(g) which requires that a plaintiff must show that “he had a possessory interest in the property seized by the government.” The DOJ takes pains to show Trump did not have any claim on the materials as much of the property and all of the classified documents seized by the FBI belong to the government under the Presidential Records Act and several other statutes regarding the handling of classified materials.

The DOJ includes a lengthy primer on how Trump cannot claim ownership of classified documents, nor can he claim executive privilege with respect to them, and lists a series of court decisions setting forth why executive privilege is qualified, not absolute. This primer was included in the DOJ’s last filing but obviously ignored by Judge Cannon wearing her “Miss Jean Brodie” robes as she found for Trump and against the government on every issue cited by the DOJ once again, this time with emphasis added.

Trump’s claim that he declassified the documents in question – which he made publicly but was never formally included in any of his filings to Judge Cannon – is dismissed by the government with a tsunami of details about what must be done to declassify documents, none of which Trump ever carried out. In fact, the DOJ asserts, there would be no contest over the contents of the classified documents if Trump had indeed declassified them, because at that point the contents could be made public and would not be subject to any restrictions placed by the judge on the documents. The entire matter would be moot.

What the whole thing boils down to in everything Judge Cannon has done to restrict the governments actions with regard to the classified documents, up to and including the appointment of a special master, is that she is all tingly and hot over one issue: the DOJ is engaged in a criminal investigation of the former president, and she doesn’t like it, so she has done her best to stop it.

Leaving aside all the legal twists and turns in the DOJ’s appeal, in plain English there is no possible claim of privilege, there is no issue over usage of contents, and no restrictions any judge could reasonably impose within the strictures of the law, because there is no case.

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

Trump Is Full Of Bluster -- But We Have To Take His Threats Seriously

The last time, following the search of the former president’s resort/club/residence at Mar a Lago, he had Lindsey Graham making his threats for him: “And I’ll say this. If there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle … there will be riots in the street,” Graham said during an appearance on a Fox News show on August 28.

This time, Trump isn’t deputizing others to do his dirty work for him. Appearing on Hugh Hewitt’s radio show – yes, the smiling face of the so-called reasonable right has a show, as well as a column in the Washington Post – Trump made a double threat of what would happen if he is indicted by the DOJ. He began this way: “If a thing like that happened, I would have no prohibition against running,” Trump told Lapdog Hewitt, clearly threatening to run for president even if under indictment.

But he saved his best threat for last: “I think if it happened, I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.” Asked by Hewitt what he meant by “problems,” Trump doubled down. “I think they’d have big problems. Big problems. I just don’t think they’d stand for it. They will not sit still and stand for this ultimate of hoaxes,” Trump said, making an obvious reference to his followers.

Hewitt then asked Trump how he would deal with the “legacy media” when they inevitably accuse him of inciting violence. “That’s not inciting. I’m just saying what my opinion is,” Trump answered, perhaps having been warned by his lawyers to watch his words. “I don’t think the people of this country would stand for it.”

Okay, it doesn’t meet the legal definition of incitement of violence, but Trump was obviously calling out to his supporters using the pronoun “they,” as he goaded them to “not sit still and stand for this ultimate of hoaxes.” His prediction of “big problems…big problems” was reminiscent of Trump goading his followers to come to Washington D.C. on Jan. 6 because it will “be wild!”

The words are deliberately indistinct, parsed in Trumpian fashion to get around any potential future charge of inciting a riot, but the MAGA hordes know exactly what he’s talking about. He’s telling them if the DOJ indicts him, they should take to the streets and not only “be wild” but do things that will cause “big problems,” as if the problem of the assault on the Capitol wasn’t “big” enough.

They are armed, folks, Trump’s followers are, with high-powered assault rifles and high-capacity magazines and plenty of ammunition. Forbes magazine in 2021 quoted the National Sports Shooting Foundation, an industry trade group that refers to assault rifles as “modern sporting rifles,” as estimating that there were about 20 million of them in the country in 2018.

“About 22.8 million firearms were sold nationwide in 2020, a record-breaking figure,” Forbes reported. “There were about 393 million guns in U.S. civilians’ hands in 2018, about 120 guns for every 100 people, according to a study by the Swiss-based Small Arms Survey. NSSF places the number even higher, at 434 million in 2020.”

Those figures are four years and two years old, respectively. But if we just take the number of assault rifles estimated in 2018, 20 million, and ignore the obvious fact that the number has doubtlessly increased significantly since then, the fact is that civilians in the U.S. are walking around with at least 10 times the number of such weapons that are in the armies of Ukraine and Russia combined. Those armies, and our army, have trained their soldiers to handle their weapons safely and fire them accurately. However, the average American civilian has had zero training in the use of the high-powered weapons because our laws don’t require such training.

There are more than 20 million assault rifles out there, not to mention semiautomatic pistols and other kinds of “sporting rifles,” as the firearms trade group absurdly calls them, and we have to assume that a lot of them are owned by the hordes of “conservative” supporters of Donald Trump.

These are the people who listened to Trump as he was ginning up his followers to attack the Capitol back in December of 2020, and they are the people Trump is addressing right now as he all-but comes right out and says they should prepare themselves to cause “big problems” if or when he is eventually indicted for committing crimes in the multiple investigations he is facing.

The last time this happened, we and the FBI and the Capitol Police and the Pentagon and every other law enforcement authority in the country just sat back and said to ourselves, oh, that’s just Trump shooting his mouth off. Nothing to see here.

And then the people who listened to what he was really saying attacked the United States Capitol, injuring some 140 police officers and directly or indirectly causing the death of 10 people.

They are listening this time, too, and some of them, as I’ve written previously in this column, are out there wearing ridiculous uniforms and face masks and they have been training themselves for the next time Trump calls them out.

He is preparing the ground for his armed followers to take to the streets if the DOJ or any other law enforcement authority indicts him for committing the multiple crimes he has been accused of.

It’s time we take him at his word, and it’s time the FBI and the DOJ and Homeland Security and the Pentagon started preparing for what’s coming.

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

With Ukraine Retreats And Restless Russians, These Are Bad Days For Putin

They’re coming at Vladimir Putin from the left, what there is of it, anyway, and the right and above and below for that matter. Even before the huge losses Russia suffered over the weekend – experts now say Russia lost 3,400 square miles of Ukraine it had held since close to the beginning of the war – seven Russian lawmakers in Putin’s hometown of St. Petersburg demanded that Putin be charged with high treason in a letter they sent to the State Duma, the lower chamber in Russia’s government. The letter claimed that Putin’s war in Ukraine had compromised Russia’s security, caused NATO’s expansion into Finland and Sweden, damaged the country’s economy, and strengthened Ukraine by causing an infusion of military aid into the country from western nations.

The letter, sent to five political factions in the Duma and to the Russian Security Council, didn’t get very far. The seven lawmakers were quickly summoned to the St. Petersburg police station and charged with discrediting the Russian military, a law Putin passed in March after he ordered the invasion of Ukraine.

Sure, it’s not much, but it’s a chink in the heretofore impenetrable armor of the Russian President. Yesterday, Chechnyan leader Ramzan Kadyrov criticized the Russian military after Ukrainian forces swept the Russian army from a huge swath of territory in Ukraine’s northeast. "They have made mistakes and I think they will draw the necessary conclusions," Kadyrov said on his Telegram channel, the Russian equivalent of Twitter. "If today or tomorrow no changes in strategy are made, I will be forced to speak with the leadership of the Defense Ministry and the leadership of the country to explain the real situation on the ground to them," Kadyrov added. That’s about as close to real criticism as it gets in Russia, especially from a man described as a “key ally” of the Russian president.

Chechnya has a significant number of its citizens in the Russian military on the front lines of the war in Ukraine. Kadyrov was appointed as leader of Chechnya by Putin in 2007.

Putin is appearing increasingly tone-deaf to the combat losses being suffered by the Russian military and to the political consequences of the avalanche of body-bags that have been shipped back home. On Saturday, as Ukraine overran key military strongholds in the towns of Kupyansk and Izyum, Putin was in a park in central Moscow celebrating the opening of a gigantic new Ferris wheel which he trumpeted as being larger than the one in London.

Right-wing Russian social media exploded in fury at the contrast between Putin’s merry-making in Moscow and the savage battles being fought by his army in Ukraine. “You’re throwing a billion-ruble party,” one infuriated blogger posted on Saturday. “What is wrong with you? Not at the time of such a horrible failure.” The Washington Post went on to report that the blogger claimed the Russian Army was lacking such basic military equipment as first aid kits, flak jackets, night vision goggles, and drones. “The authorities in Moscow carried on with their festive weekend, with fireworks and state television showing hundreds lined up to ride the new, 460-foot-tall Ferris wheel,” the Post reported.

The Russian media, much of it state-owned, has continued to push the fiction that the Kremlin's “special military operation” in Ukraine is going swimmingly. But back at home, and sometimes from soldiers on the front lines themselves, on the social media platform Telegram, opposition to the cluelessness being shown in Moscow has been growing, the Post reports.

Russian bloggers on Telegram, some of whom are embedded with Russian units in Ukraine and appear to be largely pro-Russian military, have fed their readers a steady diet of news from the front that conflicts with the lies being pushed by the government back home. According to the Post, they have claimed that “the Russian Defense Ministry is…underestimating the enemy and withholding bad news from the public. One of the bloggers, Yuri Podolyaka, who is from Ukraine but moved to Сrimea following its annexation in 2014, told his 2.3 million Telegram followers on Friday that if the military continued to play down its battlefield setbacks, Russians would ‘cease to trust the Ministry of Defense and soon the government as a whole.’”

“It’s time to punish the commanders who allowed these kinds of things,” one pro-Russian blogger from eastern Ukraine said last week, as Ukrainian forces massed across northeastern Ukraine preparing for their offensive. He went on to claim in a video posted on Telegram that Russian forces did not even put up a defense as Ukrainian forces moved on Balakliya and other Ukrainian towns in that region.

That was last week. By Saturday Balakliya, Izyum, and other Russian-held towns had fallen.

This is not good for Putin. He can control Russian TV and print media, but he is showing signs of having completely lost control of the unregulated Telegram platform on which much of the negative news about the war is appearing. One Telegram poster on Saturday called Russia’s flight from the onslaught of the Ukrainian attack a “catastrophe,” the Post noted, pointing out that the retreat left Ukrainian citizens who had collaborated with the Russian military at the mercy of Ukraine’s army as it moved into captured towns.

Meanwhile, back in the west, experts and military officials in the U.S. and Europe were calling the Ukrainian offensive a turning point in the war. One U.S. military official told the Post, “The Russians are in trouble. The question will be how the Russians will react, but their weaknesses have been exposed and they don’t have great manpower reserves or equipment reserves.” He was echoing reports from the front lines in Ukraine that Russian forces had abandoned small arms, ammunition, artillery pieces, trucks and even tanks as they retreated in the face of the Ukrainian attack.

Military experts warn it’s too soon to say if Ukraine will be able to continue to exploit its gains, but the Ukrainian tactical victory over the weekend is the largest setback for Russia since they pulled out of areas around Kyiv in April and were forced to retreat back into Russia.

Russia still holds a large swath of Ukrainian territory in the east and across the south, connecting Russian territory to Crimea in a so-called land bridge. But Ukrainian forces were said to have made significant gains in areas around the port city of Kherson in the south, and by taking Izyum and the rail lines supplying Russian forces in the east and towards the south, Ukraine is making it more difficult for Russia to resupply its forces there.

Military experts have been lamenting the “static battlefront” across eastern Ukraine for months. But Ukraine’s army just gave Putin and those same western experts a lesson in military tactics they should have remembered, if they even knew it before. At West Point, they teach Plebes in first-year tactics classes that the army that moves first and most decisively and best concentrates its power according to its own strengths on the enemy’s weak points has the best chance of victory.

Ukraine proved that elemental tactical truth last weekend. Now we’ll see if they can turn a tactical victory into a strategic one and force Putin to recalculate what his chances are in Ukraine.

Not only the west, but Putin’s own people in Russia are watching what he does next, and a lot of them are showing that they are not happy with him at all right now.

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

Trump's New Claims On Stolen Classified Documents Are Way Beyond Absurd

The Trump response to the Justice Department's filing with Judge Aileen Cannon on her order for the special master is 21 pages long, but they don’t waste any time getting right into the meat of their ridiculous crap-ola. On page one, Trump asserts that the “Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”

Got that? On line 3 of the filing, Trump and his lawyers are telling the judge that the papers he turned over to the National Archives in January, and the classified documents he turned over to the DOJ in June, and the classified documents seized by the FBI on August 8 – all of them, irrespective of the fact that they were all the work-product of the federal government and by law belong to the federal government, well, Judge Cannon, they are mine.

One page later, it gets worse. Trump’s lawyers refer to the classified documents in question – you know, the ones we’ve all seen in the photograph taken by the FBI in Trump’s office – as “purported ‘classified records.’” In other words, they are contesting that the documents marked classified as Top Secret/Sensitive Compartmented Information and others marked Top Secret and Classified, are not classified documents at all. The filing then goes on to contest the government’s contention that “if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump's term in office.”

Gee, what could those “actions” have been? Well, what they are apparently indicating without coming right out and saying so is that Trump declassified the documents during the time he served as president, despite the complete lack of evidence that this is true.

When documents are declassified, they are marked as such in order that they are permitted to be held and seen by persons without security clearances. None of the documents Trump turned over, nor any of those seized by the FBI, have those declassification markings.

Politico pointed out on Friday that in the joint filing by the government and Trump’s lawyers proposing potential special masters, “Trump’s attorneys once again did not echo Trump’s claim that he had declassified any of the materials he possessed at Mar-a-Lago.” Well, folks, that stance is out the door, because in today’s filing, Trump is not only asserting that the classified documents are “Presidential records” under the legal definitions of the Presidential Records Act (PRA), but they are only “purported classified documents.”

The Trump filing then dives into a legal analysis on the “merits” of the government’s claims, under subheads like “APPLICABLE LAW,” and “PRESIDENT TRUMP IS LIKELY TO SUCCEED ON THE MERITS.” Don’t you just love that one? They refer to the former president as “President Trump,” and that appellation carries on throughout the rest of the filing: There were “materials seized from President Trump,” the argument in the filing was “raised by President Trump.” They tell the judge that “President Trump clearly has an individual interest in and need for the seized property.”

It’s “President Trump” this and “President Trump” that, almost as if they figure if they keep referring to him as “President Trump” enough times, the judge is more likely to agree with the fiction that he is somehow still “President Trump” and not a civilian plaintiff engaged in a lawsuit with the government. They even go so far as to assert, “The Government contends that President Trump can have no such interest in the purported ‘classified records.’ But, again, the Government has not proven these records remain classified. That issue is to be determined later.”

The don’t specify when “later” is, but presumably they are making a not terribly subtle reference to that time dearly hoped for and conspired for by the former president when he will be returned to office by fiat, or some other magical way, and then he can do with all of the documents what he wishes, because of course, as he has said repeatedly, “they are mine.”

And then there is this: “However there still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established. This Court’s Order exercising jurisdiction did not make findings as to the classification status of any documents. Further, whether it was lawful for the Government to seize those documents has yet to be determined by a court of competent jurisdiction.”

Let’s take a moment to parse this jewel: they are alleging that the government “assumes a fact not yet established” that the classified documents we’ve all seen – including, presumably, Judge Cannon – in the FBI photograph showing multiple documents with multiple and very serious classification markings. And then, incredibly, they are questioning whether the FBI search and seizure of the documents from Mar-a-Lago was “lawful” because it has not been “determined by a court of competent jurisdiction.”

Wow. A federal judge – albeit a different federal judge from Judge Cannon – issued a legal search warrant in response to a legal request backed up by uncontested reasons for probable cause, and yet that judge was allegedly “not competent” to do it. Moreover, they are indicating that this is yet another issue they will pursue in some future lawsuit not yet filed by Trump.

It gets worse by increments and then by tsunami. Trump asserts that “The president has the power to declassify documents,” even though he is not the president anymore – which, if you read the wording of the filing, they are contesting, as well. Then they assert that “A former president has an unfettered right to access Presidential records,” using an exceedingly tortured reading of the Presidential Records Act (PRA) which conveniently omits the fact, very much in evidence, that the “presidential records” in question were removed from the White House under circumstances that do not comport with the PRA, and moreover that the classified records removed from the White House were not stored in the secure conditions mandated by law for such highly sensitive documents.

They go on to assert that contrary to the DOJ’s exhaustive explanation of why a national security intelligence assessment cannot be carried out without the assistance of the FBI, the judge’s order does not forbid the FBI from assisting in the intelligence assessment, which is, again, a tortured reading of Judge Cannon’s original order which clearly does bar the FBI from even looking at the seized documents or using them when interrogating witnesses.

You would think, reading the new Trump filing, that his lawyers have trouble reading and understanding the English language, but perhaps it is the case that they understand something about Judge Cannon which is “not in evidence” in this case, i.e., that she is such a profoundly entranced Trumpazoid that she will read her own words in her previous order about appointing a special master exactly like Trump says she should, and of course reject the government’s motion to exclude the 100 classified documents from her order.

Trump contends that the government and the people will not suffer “irreparable harm” by the appointment of a special master, but of course, “PRESIDENT TRUMP AND THE PUBLIC WOULD BE HARMED BY THE STAY,” (emphasis in the Trump filing.) And why, you might ask, would this be so? Well, what we’re dealing with here, according to the Trump filing, is an “investigation of a former President of the United States by the administration of his political rival.”

What happened to “President Trump?” Well, all of a sudden in their filing the Trump lawyers came up against a brick wall: the administration of the actual President is investigating the “former president,” as their wording grudgingly admits. There is simply no other way to put it, unless they wanted to assert that one president is investigating another president in a country for which the Constitution mandates that there can be only one president at a time. Amazingly, given the ridiculous depths into which the entire the Trump filing dives, it seems that even Trump lawyers are unwilling to suffer the immediate disapprobation that would attend to such a patently absurd contention.

Even though this filing by the Trump legal team does not specifically echo Trump’s claim that he “automatically declassified” all of the documents seized at Mar-a-Lago, they certainly point in the direction of bringing up that contention in a future lawsuit. In fact, if there is a thread throughout the filing it is the dangling of issues that might be brought up either when the DOJ appeals, or in more lawsuits Trump is no doubt contemplating.

It is what you would expect from a man who has his excellent team of lawyers and the excellent team of Big Mac chefs at the local McDonald’s on speed dial.

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

Federal Grand Jury Investigating Trump's 'Save America' Super-PAC Grift

A federal grand jury sitting in Washington D.C. has issued subpoenas aimed at the Save America PAC, the operation Trump formed soon after Election Day 2020 to exploit his lie that the election had been stolen from him. Trump has used the super-PAC to raise funds for his own political future as well as to distribute money to candidates he has endorsed around the country.

This grand jury appears to be separate from the one already investigating Trump’s efforts to overturn the election. Subpoenas from this new grand jury were issued to, among others, the execrable Stephen Miller, Trump’s speech writer and senior adviser in the White House, and Brian Jack, Trump’s former White House political director. Miller has been paid by the Trump super-PAC since leaving the White House, and Jack has worked as an adviser to Trump after leaving the White House, as well as for Rep. Kevin McCarthy (R-CA), the House minority leader.

The grand jury has also subpoenaed several other people who worked on the Trump campaign or in the White House in various positions, such as the campaign finance director and the former chief of staff to Ivanka Trump. According to the New York Times, at least one of the new subpoenas was signed by Thomas P. Windom, a veteran fraud prosecutor in the Department of Justice, and another was signed by Mary L. Dohrmann, a federal prosecutor whom the Times reported has been working with Windom in recent months.

The other grand jury has issued subpoenas seeking information about the scheme Trump developed after the election to send fake slates of electors to Congress in order to disrupt the count on January 6 or to throw the election into the House of Representatives. These subpoenas, according to the Times, “sought communications with several pro-Trump lawyers — like Kenneth Chesebro — who helped devise the electors plan.” Other subpoenas were sent to Republican state representatives and senators allied with Trump, as well as to Republican state officials in the states that sent the slates of fake electors to Congress.

The two prosecutors behind the subpoenas seeking information on Trump’s super-PAC have also made appearances in court to oppose a motion by John Eastman to retrieve his cell phone from the FBI, which seized the device last June. Eastman was the Trump lawyer who devised the fake elector scheme and was one of the speakers at the Trump rally on the Ellipse just before the assault on the Capitol on January 6.

The new grand jury and the subpoenas issued to persons associated with Trump’s super-PAC mark a significant expansion of the criminal investigation of the former president, who is also under investigation for his removal of thousands of documents and other materials from the White House when he left office. The documents include at least 100 with classification markings up to the highest, most sensitive secrets the nation has, including several marked TS/SCI, for Top Secret/Secure Compartmented Information. This designation is used for documents so secret that they must only be viewed in a SCIF, or Sensitive Compartmented Information Facility, overseen by an intelligence official who keeps a written record of everyone who sees the documents.

The SCIF at Mar a Lago was taken out after Trump left office. The documents marked TS/SCI, which should have been stored inside such a facility, were found by the FBI in the basement of Mar a Lago in a minimally secured storage room and in a box in Trump’s office, which is located just off the resort’s main ballroom, frequently used for weddings and public events like political fund raisers.

The Save America PAC was registered with the Federal Elections Commission on November 9, 2020, two days after news organizations had called the election for Joe Biden. (If you need evidence that Trump knew he had lost the election, there it is.) The Trump super-PAC has not doled out very much of the money it has raised to Republican candidates endorsed by Trump. “Instead, it has hoarded cash or used it to pay firms and groups devoted to helping Mr. Trump, including his own businesses, or to undermining his enemies,” according to the Times. The super-PAC also has paid lawyers for Trump, including Christina Bobb, who signed the official certification on June 3 attesting that there were no remaining classified documents stored at Mar a Lago. The FBI, of course, found more than 100 new classified documents when it searched the Trump resort/club/residence on August 8. Another lawyer who has been paid by the Trump super-PAC is Lindsey Halligan, whose name has appeared on court filings involving the appointment of a special master to review the documents Trump removed from the White House.

The Save America PAC has also spent more than $200,000 at Trump hotel properties, according to the Times. Profits from the hotels owned by Trump would go directly into the bank accounts of the former president. The Trump super-PAC also paid nearly $8.7 million to Event Strategies, Inc., the company that helped organize the Ellipse rally on January 6.

Why it would take $8.7 million to organize a rally held about 200 yards from the White House is a mystery. Those must have been some very expensive bullet-proof plastic shields protecting Trump and the other speakers at the rally, and they must have been standing on some very expensive sheets of plywood used in the construction of a very expensive stage for the rally.

Or maybe Event Strategies paid inflated salaries to a whole bunch of people who “worked” on the rally, who then turned around and kicked back some of the money to YKW. The acronym this time stands for You Know Who.

For future grand jury updates, watch this space.

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


With Rapid Offensive, Ukraine May Have Reached Turning Point In War

If you’re an officer at any level of command in a unit engaged in combat, it’s never a good sign when you get reports that your soldiers are taking off their uniforms and attempting to blend in with the civilian population. In military terms, that’s called desertion, and in this country it’s punishable by a significant stay at the Disciplinary Barracks in Fort Leavenworth, Kansas. I don’t know for sure, but if I were to guess, I’d think the punishment in Russia is a firing squad.

Several Russian units that have endured significant losses in areas east of Kharkiv have suffered desertions in that manner, the Ukrainian General Staff told reporters in Kyiv today. CNN quoted a military spokesman in Kyiv as saying, “Personnel of the occupying forces in civilian clothes resort to desertion and try to return to the territory of the Russian federation,” it added. “So, during the day, more than 15 such cases were noted.”

Just off the bat, if Ukrainian forces are close enough to Russian positions that they are able to detect these desertions, that would mean the Russian military is in what we used to call in the Army, a hurt-locker. “Geo-located social media videos confirm Ukrainian forces are fast advancing in the region,” CNN reported.

The Institute for the Study of War, a D.C.-based think tank that has had excellent reporting about the war since Russia launched its attack in late February, put it this way: “Ukrainian successes on the Kharkiv City—Izyum line are creating fissures within the Russian information space and eroding confidence in Russian command to a degree not seen since a failed Russian river crossing in mid-May.” What they’re talking about are the front lines in the combat taking place in the region south of Kharkiv where Ukraine has gained the most ground in the last few days.

The Wall Street Journal reported on Friday that Ukrainian forces had advanced at least 31 miles in the area south and east of Kharkiv, the largest Ukrainian city close to the Russian border and a key strategic position Ukraine has held since early in the war. The gains are Ukraine’s “biggest breakthrough in months of grinding combat.” Other reports are comparing the situation in the northeast of Ukraine to the moment during the war in April when Ukraine successfully drove Russian forces from positions they had occupied to the north and east of Kyiv. In colloquial military-ese, that’s big stuff.

The Ukrainian campaign in the east came as a surprise to Russia as well as war-watchers here, because Ukraine had spent about two weeks telegraphing its intentions to re-take Kherson in the south. Reports from the front lines in Ukraine are sketchy at the moment, but apparently that offensive is indeed under way, and Ukraine is achieving sporadic gains around Kherson, mainly using the HIMARS guided rocket system the U.S. recently shipped to Ukraine, as well as long-range artillery using 155 mm Howitzers, also supplied by the U.S.

But the Ukrainian offensive around Kherson does not appear to be a feint intended to distract Russia while Ukraine attacks elsewhere. Michael Kofman, the director of Russian studies at Center for a New American Security, a research institute just outside Washington, tweeted yesterday: “These appear to be interrelated offensives. Kherson likely intended as a more deliberate, sequenced advance. Kharkiv to take advantage of favorable conditions.”

Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, told reporters at a news conference in Germany, “There is fighting — both offense and defense — all the way from Kharkiv all the way down to Kherson.”

The saber-rattling by Ukraine about Kherson and the gains they have made there forced Russia to move a number of its combat units south from the area east of Kharkiv, leaving that region vulnerable to attack by Ukraine, an offensive that is now fully underway according to multiple reports from the area.

Ukraine’s most significant offensive gains are in an area around the city of Kupyansk, a rail hub with a population of about 30,000 that has served as a key point in Russia’s resupply lines and a headquarters for Russian units in the northeast. The Institute for the Study of War predicted that Ukraine will likely take Kupyansk in 72 hours -- and in fact the Journal has since reported that Ukrainian forces took control of Kupyansk on Thursday night.

This was significant not only because as a rail-hub the city has served as the main point for Russian resupply in the northeast, but because it cut off Russian forces south toward Izyum, a larger city that Russia has used as a headquarters and staging area for its units in Ukraine’s east. According to the New York Times, Ukraine has driven the Russians out of Izyum.

This stuff is hard to follow and it takes referring from one map to another to pinpoint the towns and areas that reports from the front lines are talking about, but it appears that Ukrainian forces have retaken Balakiia, which was held by Russia and is just west of a strategic rail line between Kupyansk and Izyum. If Ukraine makes further advances east of Balakiia, which seems likely, it will cut off one of two major rail lines that run from Russia to Izyum, further endangering Russia’s hold on that key Ukrainian city. The map of the front lines in the northeast of Ukraine, supplied by the Institute for the Study of War, looks like this:


The small bulge into the area in red held by Russia just north of Izyum marks the Ukrainian front line east of Balakiia, close to one of the rail lines from Russia, depicted in black-and-red spotted lines. The Journal reported that, “A video purportedly filmed in Balakliia showed tearful women embracing Ukrainian soldiers on their doorstep and offering them pancakes.”

The Journal also reported that civilian occupation authorities installed by Russia announced yesterday that they were evacuating women and children in advance of what appeared to be Ukraine’s inevitable re-taking of Kupyansk. It was in that area that Russian soldiers were seen removing their uniforms and attempting to desert or “escape back to Russia,” as the Journal put it.

Given Russian losses across the entire front line in northeastern Ukraine, which have been heavy, but it seems to me that if the deserters make it back to the Russian border, it’s not likely they will be greeted with victory parades.

Secretary of Defense Lloyd Austin announced on Thursday that the U.S. will send another $675 million in military supplies to Ukraine, including 105 mm Howitzers, ammunition, Javelin anti-tank rockets, and air-launched missiles designed to knock out Russian radar installations. These things would be deployed by Ukrainian jet aircraft, so if you just go by the resupplies and what they’re intended for, it looks like Ukraine intends to keep up its campaigns in the northeast and the south and has aims to drive Russian forces completely out of the country.

Meanwhile, Russia just requested an emergency meeting of the Security Council of the United Nations to “discuss western arms supplies to Ukraine,” according to the Times. Russia has used previous Security Council meetings to accuse the U.S. and NATO of fomenting the war in Ukraine. That sounds suspiciously like the desperate bleating of a government that began a war that is not going well at all.

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

Upholding National Security, Justice Serves Notice On Trump's Judge

The Department of Justice yesterday put a federal court judge in Florida and the 11th Circuit Court of Appeals on notice that we are headed for a Constitutional crisis, not to mention a national security nightmare. In its first filing, the DOJ notified the 11th Circuit that it intends to appeal Judge Aileen Cannon’s order that a special master be appointed to review all 11,000 documents Donald Trump removed from the White House to Mar a Lago when he left office. At the same time, the DOJ filed with Judge Cannon a motion for a “partial stay” of her order pending its appeal to the 11th Circuit.

What the DOJ is asking of the Florida judge is to exempt approximately 100 highly classified documents from her order for the special master. Trump has no legal right to claim that “he owns or has any possessory interest in classified records,” the DOJ told the judge. Addressing the issue raised by Trump that he somehow can assert executive privilege over the seized documents, the prosecutors reminded the judge that in May when the department issued a subpoena for the records held at Mar a Lago, Trump “himself declined to assert any claim of executive privilege over the classified records” the FBI seized. That would have been Trump’s opportunity to claim executive privilege, the DOJ filing said. That he failed to do so at that time, or when he turned over even more documents to the National Archive in January, should discount his recent claim of executive privilege as a delaying tactic and nothing more.

The DOJ quoted the 1974 Supreme Court case over the White House tapes,­ United States v. Nixon, reminding the judge that the decision found that any claim of executive privilege or any other privilege over “classified” (emphasis in the filing) records would be overcome by what the Supreme Court had called, “the government’s demonstrated, specific need” for the evidence in question, in this case, the 100 classified documents the DOJ is asking the judge to exempt from her order.

“The government, and the public would suffer irreparable harm absent a stay,” the motion said, reminding the judge that “the court correctly recognized the government’s vital interest in conducting a national security risk assessment of the possible unauthorized disclosure of the classified records and any harm that may have resulted.”

This is what is colloquially referred to as calling out the big guns. When the government puts “national security” and “risk” in the same sentence, they are putting members of the judicial branch on notice that what is at stake here is far above their pay grade to block, bar, or delay because national security is constitutionally the business of the executive branch, not the judiciary.

The rest of the DOJ motion consists of laying a groundwork and fact pattern for a potential appeal should Judge Cannon refuse to grant its request for a stay of her order regarding the classified documents. It’s complicated, but the DOJ began by explaining that the national security assessment and its investigation of Trump’s handling of the classified documents cannot be “segregated” from one another.

The motion included this blockbuster piece of news: Because of “uncertainty regarding the bounds of the court’s order,” the intelligence community (read: Director of National Intelligence, or DNI) consulted with the DOJ and decided it would have to “pause temporarily this critically important work.” Pulling the lanyard on yet another big gun, the DOJ said that “the government and the public are irreparably injured when a criminal investigation involving risks to national security is enjoined.”

DOUBLE BOOM! Not one but two big revelations here:

The DNI suspended its national security review of what may have happened to the top-secret documents Trump had in Mar a Lago because of Judge Cannon’s order. And two, the DOJ is for the first time telling the judge and the world that its investigation of Trump is not simply criminal in nature. It’s an investigation of whether or not Trump caused damage to the national security, an offense which would violate U.S. Code 793 involving the disclosure or even the movement of “national defense information” without the safeguards and security measures dictated by law for such highly sensitive material.

The DOJ spends a lot of time in its motion detailing the errors made by Judge Cannon in her order, pointing out that a special master has no need whatsoever to review classified documents because “the classification markings establish on the face of the documents that they are the government’s records, not the Plaintiff’s (Trump’s) personal records.” The DOJ points out that a review of the classified documents is not necessary for attorney-client privilege because none of them contain any communication between Trump and his lawyers. Then the government went into a lengthy disquisition on why the classified documents are not covered by executive privilege either. Again, it’s complicated and involves several Supreme Court decisions concerning assertions of executive privilege, but the gist of it is that a president or especially a former president cannot claim executive privilege over materials within the executive branch, only over materials being sought by other branches, such as a congressional committee, or by a civilian seeking to break the privilege in a judicial proceeding.

To make their point, the DOJ attorneys cited U.S. Code Section 793 specifically as “prohibiting the unauthorized release of national defense information. The classified documents are not merely relevant evidence; they are the very objects of the relevant criminal statute,” U.S. Code 793.

Then the DOJ reminded the judge that it’s not only 793 that’s at issue. “The government is investigating the adequacy of response to a grand jury subpoena for all documents in the Plaintiff’s possession ‘bearing classification markings.’” That, my friends, is a reminder that Trump is suspected of obstructing justice, because the subpoena in question, issued in May, is the one Trump did not fully and willingly respond to, giving rise to the search warrant executed by the FBI in August that turned up more than 100 classified documents he had not turned over to the government.

Practically the rest of the DOJ motion is a primer for Judge Cannon, explaining to her, since she demonstrably does not know, how a federal investigation works and how the FBI and the intelligence community are one in the same, and so barring the FBI from “reviewing” the classified documents prevents the intelligence community from doing the same thing -- something the judge apparently believed she was allowing in her order on the special master.

I know I’m overusing the phrase, “it’s complicated,” so I’ll boil it down in non-legalese.

The Director of National Intelligence is formally positioned in the chain of command over the CIA, DIA, NSA, and other parts of the intelligence community, although she, Avril Haines, presides over an office that essentially coordinates all the various arms of intelligence gathering but does not do any intelligence work itself. In other words, she has a staff, but they’re bureaucrats – in old fashioned terms, paper-pushers. She doesn’t have any agents or investigators.

So, if the DNI wants to conduct a review of materials to determine whether their mishandling has resulted in a threat to national security, Haines has to call upon the FBI to do the investigation for her. For example, if the DNI wants to know who has seen a particular classified document, or all of them for that matter, she must ask the FBI to do the interviews of the relevant witnesses, who might include aides to the former president, friends of his, or the workers at Mar a Lago who were seen on surveillance cameras carrying boxes of classified documents from one place to another.

An estimation of what potential damage might have been done to the national security cannot be done without (1) the classified documents, and (2) the FBI agents necessary to do the investigations about them.

Judge Cannon’s order on the special master, grossly slanted in Trump’s direction as it was, did not allow for this cross-pollination between the FBI and the intelligence world. Cannon thought she could bar the FBI from “reviewing” the classified documents or conducting interviews with witnesses as part of their criminal investigation, while allowing the risk assessment by the DNI to use the documents.

Major, major error. The judge was trying to appear like she gave a damn about national security by allowing the DNI investigation to go forward, while barring the FBI and DOJ criminal investigation from using the classified documents. The DOJ took several pages to spell out for her how and why that cannot be done. If you do one investigation, you do the other. The DOJ motion includes an appendix written by Alan E. Kohler, the assistant director of the counterintelligence division of the FBI, explaining in great detail, six pages of detail, why the DNI’s national security review and the DOJ’s criminal investigation of Trump are “inextricably linked,” to use the document’s language.

I rather doubt that Judge Cannon, sitting down there in Florida with her Federalist Society membership card and more than excellent MAGA credentials, even knew that the FBI has a “counterintelligence division” or that the DOJ has a national security division. She should have, naturally, because the search warrant for Mar a Lago was executed by Jay I. Bratt, the chief of the DOJ’s Counterintelligence and Export Control Section of the National Security Division. She could have learned this by reading news stories or if she missed it in the news, she’ll be able to learn it today if she reviews, all the way to the bottom, the motion filed by the DOJ today, because right there in black and white is Bratt’s signature.

The DOJ informed Trump’s lawyers they were filing the motion today, and Trump, of course, is going to oppose the motion.

The DOJ has given Judge Cannon until Thursday to exempt the 100 pages of classified documents from her order on the special master. If she does not grant the DOJ motion, they will file an appeal with the 11th Circuit at that time.

It’s all very risky, of course. There is Judge Cannon, as Trumpy of a Trumpster as ever sat on the bench, and there is the 11th Circuit, where Trump has appointed six of eleven judges.

In the past, at least, the federal judiciary right up to the Supreme Court, has shown great deference to the government when matters of national security or cases involving the military are brought. It is not the job of judges to defend the nation. It is the job of the executive branch of the government which oversees the Department of Defense and the intelligence agencies, all of which are engaged in the defense of the nation.

This may turn out to be yet another norm jettisoned by judges who believe their oath is not to the Constitution but to Donald Trump. We already have seen the damage one of them can do to the rule of law and potentially to the national security. Next week we’ll get a chance to see how many more, and how deeply, Trump has sunk his team of judicial saboteurs into the fabric of our democracy.

Watch this space.

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

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