A story about a pathetic man's downfall [34 Felony Convictions]

[TwiceHorn 31,517]

2 minutes ago, TexasEd said:

So she wants Trumps team to agree that the classified docs should not be subject to the SM so that her ruling does not go against Trump but can be what he asked for (as long as they change it)?

I scratched your back granting the SM now scratch mine and make your request reasonable or I will have to rule against you.

Well, the thing tomorrow is appointment of a Special Master.  As it currently stands, the Master would have to have an appropriate security clearance (that also happens to probably make it difficult for Trump to propose some kind of partisan hack), if they can bypass that need that makes the appointment objectively easier for everyone.  

If it is true that she wants to fellate Trump, then it also makes it easier for her to appoint some kind of hack.  I am assuming that someone that's a lawdog, with executive privilege knowledge/experience AND a top secret clearance, is going to be hard to find and not the kind of person that tends to be a Trumpkin.

[Foosters 17,860]

10 minutes ago, TwiceHorn said:

Well, the thing tomorrow is appointment of a Special Master.  As it currently stands, the Master would have to have an appropriate security clearance (that also happens to probably make it difficult for Trump to propose some kind of partisan hack), if they can bypass that need that makes the appointment objectively easier for everyone.  

If it is true that she wants to fellate Trump, then it also makes it easier for her to appoint some kind of hack.  I am assuming that someone that's a lawdog, with executive privilege knowledge/experience AND a top secret clearance, is going to be hard to find and not the kind of person that tends to be a Trumpkin.

I haven't read any of the filings, so I'll take you at your word, but you're reading is that Trump's legal team has or soon will concede that some of the highly classified materials are not subject to any privilege and they will not object at this time to the govt retaining them?

The meat of the govt's case in a possible future indictment?

[Grade of D as in David 13,253]

Marco Rubio 

[tx 3 putt 77,274]

36 minutes ago, Grade of D as in David said:

Marco Rubio 

 

he's already made too many public comments about this

[Mole 4,333]

3 hours ago, Gil Bang said:

 

 

Leon Panetta seems like a good pick?

He’s too busy with his sweet drum gig.

[tx 3 putt 77,274]

[WhatTheBuck 28,795]

Seth Meyers did a bit on Marco tonight. He had clips of Marco’s current excuse-making and the very different comments he made on Hannity back in the day when they were all up in arms about Hillary’s emails.

He’s a hypocrite and a phony, of course. We knew that. But I never really noticed before that he’s sort of got a speech impediment. 

[NWBuck 8,577]

1 hour ago, WhatTheBuck said:

He’s a hypocrite and a phony, of course. We knew that. But I never really noticed before that he’s sort of got a speech impediment. 

I mean, I guess having your tongue up Trump’s ass would technically impede your speech 

[Fudge Nuggets 19,211]

6 hours ago, Chewbacca said:

9 hours ago, Fudge Nuggets said:

He won't sue them because he's a broke ass bitch and can't get anyone to work for free any more.

I don't think he's broke. He's grifted hundreds of millions of dollars. He's not giving that money away. He does have issues getting good lawyers because of nonpayment.

That money is going straight back to the Russians he previously borrowed from.  You don't fuck around with them.

[Fudge Nuggets 19,211]

9 hours ago, Beau Vine said:

This is borderline porn:

 

 

I liked the "They'll have to kill me first." part the best.  Can we set something up for Saturday?

[TwiceHorn 31,517]

7 hours ago, Foosters said:

I haven't read any of the filings, so I'll take you at your word, but you're reading is that Trump's legal team has or soon will concede that some of the highly classified materials are not subject to any privilege and they will not object at this time to the govt retaining them?

The meat of the govt's case in a possible future indictment?

Now you can. https://www.courtlistener.com/docket/64911367/trump-v-united-states/

Not my read of Trump.  My read of the judge.

Seems to me she either has to hold off on the special master appointment until she rules on the stay or, if Trump will concede, can keep moving with the master, at least.

Also, this and the motion for stay are fun because it really puts the spotlight on the classified documents. Any argument that this is like an "overdue library book" is going to look especially frivolous.

Edited September 9, 2022 by TwiceHorn

[Ten Bears 2,483]

19 hours ago, tx 3 putt said:

And that horses name ……….

Ivanka 

 

Did Ivanka abort that baby?

[Guest]

20 hours ago, tx 3 putt said:

Picture taken in that three-month period when swing music was a big thing judging by that suit and shoes. 

♫ Zoot suit riot... throw back a bottle of beer ♫

Edited September 9, 2022 by FirstTimeCaller

[Underdog 28,762]

Everybody swallows…

Yeah, but daddy says I’m the best…

[Tuco 5,077]

I’m thinking it’s Mueller. Sure, recycling characters from earlier seasons may demonstrate a lack of creativity, but I think he needs a redemption arc.

[Fudge Nuggets 19,211]

2 minutes ago, Tuco said:

I’m thinking it’s Mueller. Sure, recycling characters from earlier seasons may demonstrate a lack of creativity, but I think he needs a redemption arc.

He'll fuck it up.

[TwiceHorn 31,517]

Gone unnoticed is this.  https://www.courtlistener.com/docket/64911367/71/trump-v-united-states/

The gubmint moved to unseal the "Status of the Privilege Review Team's Filter Process."  During the hearing, it was discussed and referenced, but not unsealed because Trump objected without stating grounds.

Now the gubmint is saying it should be unsealed and made public, so the DOJ sees value in shedding some daylight on their processes.

It may also shed some light on what are the documents and what could be the privilege claims.

That Trump doesn't want it unsealed must mean it's embarrassing.

Good times.

[Pig Bellmont 8,719]

Not every judge is willing to entertain Trump’s bullshit bad faith. Always fun to read a good bench slap

[Kyrie Eleison 9,312]

On 9/7/2022 at 3:44 PM, TwiceHorn said:

In the past, at least, appointment party has not been a real good predictor of ideological behavior by judges.

The "Opus Dei chapter" of the Federalist Society, and Leonard Leo, its Komandant, has made the vetting process more reliable for appointing ideologues.  And it's worth noting that those ideologues are bad enough in their own right, but do not necessarily fully align with MAGA or Trump.

But, to date, Herr Leo and his gruppe have mostly vetted Supreme Court and Circuit Court of Appeals judges and are less concerned with and influential on district court appointments, probably because a district court judge is the least likely to be ideologically useful.

A guy like Alan Albright, the Trump appointee in Waco, has no real history of militant fundamental Catholicism, or MAGA membership or anything else, that I am aware of.  He tried patent cases most of his career, which is about as apolitical as you can get.

And, as demonstrated here, people seem to think he's mostly a righteous dude on the bench.

For district court judges, their names are sponsored by the state's Senators, and when those Senators are Cruz and Cornyn, that may be enough said.  I'm not really aware that FedSoc "double checks" their submissions for ideological purity.  Also, it is not unheard of for judicial appointment "candidates" to suck up to whomever they need to, very insincerely, just so they can get the appointment.

Alan's a good dude; very careful, pragmatic, and he'll bend over backwards to make sure you get a good trial.  And that motherfucker can run like the wind.  I'll occasionally go for a lunchtime run 1-2x/week down on the Brazos, and while I'm nowhere near fast, I'm not that slow.  That sumbitch will be on the same trial occasionally and just hauls ass past me.  I bet he's running 7-8 min miles easy.

we'll stop and visit occasionally, and he's as salt of the earth, unpretentious as you'd ever meet in any profession.  you'd never know he's an Art. III unless he told you. 

[956 Worldwide 34,743]

10 hours ago, Gil Bang said:

 

 

Leon Panetta seems like a good pick?

Clinton had her clearance withdrawn at her request.  I would think they might want to go lower profile. There must be a lawyer on the President’s Intelligence Advisory board. They are nonpartisan and not government employees and would have a clearance.

https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/04/president-biden-announces-appointments-to-the-presidents-intelligence-advisory-board-and-the-national-science-board/

 

[TexasEd 8,067]

7 hours ago, WhatTheBuck said:

Seth Meyers did a bit on Marco tonight. He had clips of Marco’s current excuse-making and the very different comments he made on Hannity back in the day when they were all up in arms about Hillary’s emails.

He’s a hypocrite and a phony, of course. We knew that. But I never really noticed before that he’s sort of got a speech impediment. 

Yeah, it involves sweating and simultaneous dry mouth and salivating.  He also has a drinking problem, not necessarily alcohol, just drinking. But he seems to be able to do it with one hand.

 

Edited September 9, 2022 by TexasEd

[The Original Greaser Bob 2,844]

1 hour ago, Tuco said:

I’m thinking it’s Mueller. Sure, recycling characters from earlier seasons may demonstrate a lack of creativity, but I think he needs a redemption arc.

He needs a "golf/bass fishing until he passes on" arc.

 

[BehoId, The Underminer! 11,669]

58 minutes ago, Pig Bellmont said:

Not every judge is willing to entertain Trump’s bullshit bad faith. Always fun to read a good bench slap

also, it's not quite a finding that it was made for reasons other than to actually litigate the dispute, but it is close.  so it seems like there is a good grounds for some fees under R11 or some such.

[TexasHooch 5,122]

59 minutes ago, Pig Bellmont said:

Not every judge is willing to entertain Trump’s bullshit bad faith. Always fun to read a good bench slap

I just read through much of it.  It's really, really great.

Some of my favorite lines:

Quote

At its core, the problem with Plaintiff’s Amended Complaint is that Plaintiff is not attempting to seek redress for any legal harm; instead, he is seeking to flaunt a two-hundred-page political manifesto outlining his grievances against those that have opposed him, and this Court is not the appropriate forum.

Quote

It is not simply that I find the Amended Complaint “inadequate in any respect”; it is inadequate in nearly every respect.

Quote

Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way.

 

[BehoId, The Underminer! 11,669]

theworstfuckinglawyers.gif

[Bozo_Casanova 26,520]

Hot T in the footnotes!

 

[Tuco 5,077]

3 minutes ago, Bozo_Casanova said:

Hot T in the footnotes!

 

Considering the timing, is this judge subtly telling Cannon she's being played.  Well, Cannon and all the other Trump appointees mentioned. 

[High Plains Drifter 11,050]

 

"inadequate in every respect"

 

 insert <stormymushroom.meme> of choice here

 

 

[Pig Bellmont 8,719]

16 minutes ago, Tuco said:

Considering the timing, is this judge subtly telling Cannon she's being played.  Well, Cannon and all the other Trump appointees mentioned. 

No, that footnote was in an order denying a motion for disqualification from a few months ago. 

[Neonmoon 38,130]

More evidence Trump installed Cannon to get favorable judgements. 

[Pato del Muerto 52,553]

So trump decides to live in mar a lago, a place that is specifically non-residential, so he can be close to cannon for his court filings and have a large resort staff in which foreign agents can easily be placed for ongoing dirty business. 
 

or maybe put cannon at that particular spot because it was nearest available to his MAL plan. 

[Pig Bellmont 8,719]

Just now, Pato del Muerto said:

So trump decides to live in mar a lago, a place that is specifically non-residential, so he can be close to cannon for his court filings and have a large resort staff in which foreign agents can easily be placed for ongoing dirty business. 
 

or maybe put cannon at that particular spot because it was nearest available to his MAL plan. 

I think this gives him more credit or assigns more intelligence/intent to what’s happening. I think it’s as simple as he thinks he’s owed loyalty by anyone appointed while he was president 

[Js1 85,472]

24 minutes ago, Neonmoon said:

More evidence Trump installed Cannon to get favorable judgements. 

Duh 

[texastough 1,129]

4 hours ago, TwiceHorn said:

Now you can. https://www.courtlistener.com/docket/64911367/trump-v-united-states/

Not my read of Trump.  My read of the judge.

Seems to me she either has to hold off on the special master appointment until she rules on the stay or, if Trump will concede, can keep moving with the master, at least.

Also, this and the motion for stay are fun because it really puts the spotlight on the classified documents. Any argument that this is like an "overdue library book" is going to look especially frivolous.

There is no way Trump can concede that no privilege applies to the classified documents. That is almost as good as an admission of guilt in the coming criminal prosecution.

My guess is their brief argues that the personal and governmental records were commingled at MAL, and potential privileges could apply to, for example, personal/presidential documents that made reference to classified documents. In other words, argue that it still takes a special master to sort out how all the records were being used/reviewed by Trump. 

Admittedly its a shitty argument but its the best I can come up with. Either way its a brilliant strategy to put Trump in this position.

[texastough 1,129]

My federal rules of procedure and rules of evidence are super rusty. Anyone know whether positions taken by Trump in this proceeding could have a res judicata effect, or at least be admissible in a criminal proceeding about him stealing the docs? 

Because if so, this also basically forces Trump to commit to his defense for the criminal proceeding in a day or two.  It would be pretty fatal to take a different position than in this case.

[Pig Bellmont 8,719]

4 minutes ago, texastough said:

My federal rules of procedure and rules of evidence are super rusty. Anyone know whether positions taken by Trump in this proceeding could have a res judicata effect, or at least be admissible in a criminal proceeding about him stealing the docs? 

Because if so, this also basically forces Trump to commit to his defense for the criminal proceeding in a day or two.  It would be pretty fatal to take a different position than in this case.

Yeah you’re basically describing estoppel. You can’t take a position in one case, and then take the opposite position in a later matter. 

[Beau Vine 54,341]

7 minutes ago, Pig Bellmont said:

Yeah you’re basically describing estoppel. You can’t take a position in one case, and then take the opposite position in a later matter. 

What do you mean "you can't?"  What are the consequences of doing so?

[C-Man 27,246]

3 minutes ago, Beau Vine said:

What do you mean "you can't?"  What are the consequences of doing so?

Yeah, Republicans do this shit all the time! (See Marco Rubio, above.) 😉

[WhatTheBuck 28,795]

1 hour ago, Pato del Muerto said:

So trump decides to live in mar a lago, a place that is specifically non-residential, so he can be close to cannon for his court filings and have a large resort staff in which foreign agents can easily be placed for ongoing dirty business. 
 

or maybe put cannon at that particular spot because it was nearest available to his MAL plan. 

He also relocated to Florida because of legal troubles in New York. 

[TwiceHorn 31,517]

2 hours ago, Kyrie Eleison said:

Alan's a good dude; very careful, pragmatic, and he'll bend over backwards to make sure you get a good trial.  And that motherfucker can run like the wind.  I'll occasionally go for a lunchtime run 1-2x/week down on the Brazos, and while I'm nowhere near fast, I'm not that slow.  That sumbitch will be on the same trial occasionally and just hauls ass past me.  I bet he's running 7-8 min miles easy.

we'll stop and visit occasionally, and he's as salt of the earth, unpretentious as you'd ever meet in any profession.  you'd never know he's an Art. III unless he told you. 

On the conspiracy front, he did work for a good while at Bracewell LLP,

F/k/a Bracewell and  . . . . GIULIANI!!!!!

Surly/oh shit, he's a MAGAT for sure, got Trump's dick in the back of his throat/surly

[Tuco 5,077]

24 minutes ago, texastough said:

There is no way Trump can concede that no privilege applies to the classified documents. That is almost as good as an admission of guilt in the coming criminal prosecution.

My guess is their brief argues that the personal and governmental records were commingled at MAL, and potential privileges could apply to, for example, personal/presidential documents that made reference to classified documents. In other words, argue that it still takes a special master to sort out how all the records were being used/reviewed by Trump. 

Admittedly its a shitty argument but its the best I can come up with. Either way its a brilliant strategy to put Trump in this position.

I would argue that some of the documents had hand-written notes on them, which were part of decision making process, and therefore protected.  And it would take a Special Master to review the all the documents to find those notes. 

It would be idiotic for the defense to argue that classified documents were not in Trump's possession - particularly if there were handwritten notes on them.  I think they will concede that.  I assume that they will argue that he had the rights to the documents for extremely murky, but previously untested, rationalizations. 

[Grade of D as in David 13,253]

3 minutes ago, C-Man said:

Yeah, Republicans do this shit all the time! (See Marco Rubio, above.) 😉

And supreme court appointments 

[TwiceHorn 31,517]

16 minutes ago, Pig Bellmont said:

Yeah you’re basically describing estoppel. You can’t take a position in one case, and then take the opposite position in a later matter. 

Closely related concept, but the term he's looking for is "judicial admission."

https://www.lawserver.com/law/evidence/judicial-admissions

Does not generally work "between lawsuits," but the holding of another court based on a judicial admission can then become res judicata/collateral estoppel.

[TwiceHorn 31,517]

8 minutes ago, Tuco said:

I would argue that some of the documents had hand-written notes on them, which were part of decision making process, and therefore protected.  And it would take a Special Master to review the all the documents to find those notes. 

It would be idiotic for the defense to argue that classified documents were not in Trump's possession - particularly if there were handwritten notes on them.  I think they will concede that.  I assume that they will argue that he had the rights to the documents for extremely murky, but previously untested, rationalizations. 

Yep, that's one of the nightmare scenarios.  It does have to be factually supported, though.  And, there are still "outs" in the form of executive-to-executive privilege is not a thing: the documents are the crime itself, not merely evidence of the crime (which makes complete sense but is non-precedential); and Biden can validly waive any potential claim of privilege, which is the giant Kings' X, here.

Edited September 9, 2022 by TwiceHorn

['stache 21,827]

Here's a pretty good article from Law 360. I haven't been able to really follow any of this, but this article sets it out pretty clearly.

Experts Say Mar-A-Lago Judge Shows Poor Grasp Of Privilege

By Carolina Bolado ·  Listen to article

Law360 (September 7, 2022, 9:23 PM EDT) -- A Florida federal judge's decision to appoint a special master to screen documents seized at former President Donald Trump's Mar-a-Lago estate for executive privilege shows a "fundamental misunderstanding" of the subject, experts told Law360.

In an order issued Monday, U.S. District Judge Aileen M. Cannon granted Trump's request for a special master to go over the more than 11,000 documents seized by the FBI at Mar-a-Lago to filter out any documents protected by attorney-client privilege and executive privilege, which allows a president to block the release of confidential communication from the courts and the legislative branch.

But Judge Cannon treats attorney-client and executive privilege similarly in the order and seems to think it should not be a problem for a special master to screen for both, when in fact they are very different, according to Jonathan Shaub, a University of Kentucky College of Law professor whose research focuses on the Constitution's separation of powers.

"To say that something is protected by executive privilege is to say that the president has decided its disclosure would harm the public interest," Shaub said. "But we're not talking about disclosure here. This is the court saying that the executive branch couldn't access government documents. The idea that privilege protects documents from being accessed by the FBI is a fundamental misunderstanding of what privilege is."

Mark Rozell, a professor at George Mason University who wrote a book on executive privilege, called Judge Cannon's decision "a mess" and said her analysis on executive privilege is "not substantiated by past precedent or understanding regarding the principle of executive privilege."

Executive privilege, Rozell said, is intended to protect confidential communications between a president and senior level staff and others. Presidents can claim privilege over a document that might compromise confidentiality and expose information that could be damaging if it became public, he said.

Trump has already attempted to assert executive privilege in another legal battle over documents requested by the U.S. House of Representatives' January 6 Select Committee, which sought communications between Trump and others on the day of the Capitol riot. In January, the U.S. Supreme Court rejected a request by Trump to prevent the National Archives and Records Administration, or NARA, from releasing the White House records to the committee.

But, as Rozell pointed out, in this case, the documents at issue from Mar-a-Lago, Trump's Florida home as well as a private club, are not being turned over to a committee in another branch of government or a media outlet. They would stay within the executive branch.

In a letter to Trump's attorney in May, NARA stated that the former president could not assert executive privilege to block others within the executive branch from reviewing the documents. The U.S. Department of Justice reiterated this in its brief to the court, arguing that binding Supreme Court precedent forecloses Trump's argument that review of the documents within the executive branch raises any privilege concerns.

Rozell agreed, saying that in the admittedly small world of executive privilege experts, he would be "hard-pressed to find anybody who would see an executive privilege issue genuinely at stake here."

"The bar is quite high to establish that executive privilege is merited in any particular case," Rozell said. "It's not just some blanket power that can be used to withhold any and all information that a president or ex-president doesn't want to be revealed publicly."

Rozell said Trump might be able to argue that disseminating information even within the DOJ increases the number of people with access and the potential for future leaks of information that could damage the national interest. But Trump may have difficulty making that argument, given that the FBI found highly classified documents stored in unsecured locations at Mar-a-Lago, where it is unclear who might have had access to them, he said.

"If the former president wants to make a claim that we need to restrict access to these documents, well what does that say about how he handled them in the first place?" Rozell said. "It just lacks credibility, and yet it could be the one argument he could hang an executive privilege claim on."

Because there are so few documents, if any, where executive privilege might apply, Shaub said a special master could presumably be done with his or her review relatively quickly. But he said Judge Cannon's opinion is "so far out there on so many levels and sets an extreme precedent on future investigations" that he think it is likely the DOJ will appeal.

"You have a district court that's enjoining the government from investigating. That causes all sorts of separation of powers issues," Shaub said. "It's very far out of the mainstream and would be overturned if it does get up to the Eleventh Circuit."

At the Supreme Court, Trump's arguments might find favor with Justices Clarence Thomas and Brett Kavanaugh, both of whom indicated in the court's January decision in Trump v. Thompson  that they believe a former president can assert executive privilege, although it is unclear if they think it would apply to block another executive branch agency from access to documents.

Michael Stern, a former congressional lawyer, noted that Trump cannot exert executive privilege against personal records, so if he is exerting the privilege, he is conceding that the documents are presidential records that should have been in NARA's possession and not at Mar-a-Lago.

"[Judge Cannon] really didn't address that," he said. "She skirted around that and didn't discuss it at all."

Stern, who thinks Trump will likely lose on any executive privilege claims, added that the former president cannot claim privilege over classified documents and state secrets.

Judge Cannon will need to give "pretty extensive guidance" to the special master as to which documents might fall under the executive privilege umbrella, according to the University of Kentucky's Shaub. She asked the parties to define the parameters for a special master as well as to suggest some options for who might be up to the task by Friday.

Picking someone for the job is going to be a difficult task, according to experts, because of the high-profile and political nature of the case as well as the presence of hundreds of classified documents to review. Both the DOJ and Trump have said they want someone who already has a security clearance, but the only people who have current clearances are government employees or contractors, according to Kel McClanahan, executive director of National Security Counselors, a public interest law firm specializing in national security law.

McClanahan filed a letter with the court Aug. 29 putting forward four candidates — including Rozell and Shaub — as potential special masters. He said he assumes the parties will not agree on any candidates, so he wanted to alert the court to experts on the topic. His other two suggestions were Heidi Kitrosser, a professor at Northwestern University Pritzker School of Law, and Mitchel Sollenberger, a political science professor at University of Michigan-Dearborn.

"It's hard to find a more appropriate special master than someone who has literally briefed the Supreme Court on the issue of executive privilege," McClanahan said.

He said a retired federal judge, especially one who might have experience sitting on the Foreign Intelligence Surveillance Court, would also be a good option for a special master.

Whoever it is will have to be willing to step into the center of a political maelstrom.

"The person who would willingly take this on is someone who is either doing this for the good of the country or a complete masochist," McClanahan said. "This will be a thankless job."

[Pig Bellmont 8,719]

17 minutes ago, Beau Vine said:

What do you mean "you can't?"  What are the consequences of doing so?

 

The consequences are that the later made argument could be disallowed by the court. 

[Beau Vine 54,341]

6 minutes ago, Pig Bellmont said:

 

The consequences are that the later made argument could be disallowed by the court. 

You just went from "can't" to "could be [disallowed]." 

Which is it?

[Fudge Nuggets 19,211]

35 minutes ago, Pig Bellmont said:

Yeah you’re basically describing estoppel. You can’t take a position in one case, and then take the opposite position in a later matter. 

Do you not remember who we are talking about?

[TwiceHorn 31,517]

23 minutes ago, 'stache said:

Here's a pretty good article from Law 360. I haven't been able to really follow any of this, but this article sets it out pretty clearly.

Experts Say Mar-A-Lago Judge Shows Poor Grasp Of Privilege

By Carolina Bolado ·  Listen to article

Law360 (September 7, 2022, 9:23 PM EDT) -- A Florida federal judge's decision to appoint a special master to screen documents seized at former President Donald Trump's Mar-a-Lago estate for executive privilege shows a "fundamental misunderstanding" of the subject, experts told Law360.

In an order issued Monday, U.S. District Judge Aileen M. Cannon granted Trump's request for a special master to go over the more than 11,000 documents seized by the FBI at Mar-a-Lago to filter out any documents protected by attorney-client privilege and executive privilege, which allows a president to block the release of confidential communication from the courts and the legislative branch.

But Judge Cannon treats attorney-client and executive privilege similarly in the order and seems to think it should not be a problem for a special master to screen for both, when in fact they are very different, according to Jonathan Shaub, a University of Kentucky College of Law professor whose research focuses on the Constitution's separation of powers.

"To say that something is protected by executive privilege is to say that the president has decided its disclosure would harm the public interest," Shaub said. "But we're not talking about disclosure here. This is the court saying that the executive branch couldn't access government documents. The idea that privilege protects documents from being accessed by the FBI is a fundamental misunderstanding of what privilege is."

Mark Rozell, a professor at George Mason University who wrote a book on executive privilege, called Judge Cannon's decision "a mess" and said her analysis on executive privilege is "not substantiated by past precedent or understanding regarding the principle of executive privilege."

Executive privilege, Rozell said, is intended to protect confidential communications between a president and senior level staff and others. Presidents can claim privilege over a document that might compromise confidentiality and expose information that could be damaging if it became public, he said.

Trump has already attempted to assert executive privilege in another legal battle over documents requested by the U.S. House of Representatives' January 6 Select Committee, which sought communications between Trump and others on the day of the Capitol riot. In January, the U.S. Supreme Court rejected a request by Trump to prevent the National Archives and Records Administration, or NARA, from releasing the White House records to the committee.

But, as Rozell pointed out, in this case, the documents at issue from Mar-a-Lago, Trump's Florida home as well as a private club, are not being turned over to a committee in another branch of government or a media outlet. They would stay within the executive branch.

In a letter to Trump's attorney in May, NARA stated that the former president could not assert executive privilege to block others within the executive branch from reviewing the documents. The U.S. Department of Justice reiterated this in its brief to the court, arguing that binding Supreme Court precedent forecloses Trump's argument that review of the documents within the executive branch raises any privilege concerns.

Rozell agreed, saying that in the admittedly small world of executive privilege experts, he would be "hard-pressed to find anybody who would see an executive privilege issue genuinely at stake here."

"The bar is quite high to establish that executive privilege is merited in any particular case," Rozell said. "It's not just some blanket power that can be used to withhold any and all information that a president or ex-president doesn't want to be revealed publicly."

Rozell said Trump might be able to argue that disseminating information even within the DOJ increases the number of people with access and the potential for future leaks of information that could damage the national interest. But Trump may have difficulty making that argument, given that the FBI found highly classified documents stored in unsecured locations at Mar-a-Lago, where it is unclear who might have had access to them, he said.

"If the former president wants to make a claim that we need to restrict access to these documents, well what does that say about how he handled them in the first place?" Rozell said. "It just lacks credibility, and yet it could be the one argument he could hang an executive privilege claim on."

Because there are so few documents, if any, where executive privilege might apply, Shaub said a special master could presumably be done with his or her review relatively quickly. But he said Judge Cannon's opinion is "so far out there on so many levels and sets an extreme precedent on future investigations" that he think it is likely the DOJ will appeal.

"You have a district court that's enjoining the government from investigating. That causes all sorts of separation of powers issues," Shaub said. "It's very far out of the mainstream and would be overturned if it does get up to the Eleventh Circuit."

At the Supreme Court, Trump's arguments might find favor with Justices Clarence Thomas and Brett Kavanaugh, both of whom indicated in the court's January decision in Trump v. Thompson  that they believe a former president can assert executive privilege, although it is unclear if they think it would apply to block another executive branch agency from access to documents.

Michael Stern, a former congressional lawyer, noted that Trump cannot exert executive privilege against personal records, so if he is exerting the privilege, he is conceding that the documents are presidential records that should have been in NARA's possession and not at Mar-a-Lago.

"[Judge Cannon] really didn't address that," he said. "She skirted around that and didn't discuss it at all."

Stern, who thinks Trump will likely lose on any executive privilege claims, added that the former president cannot claim privilege over classified documents and state secrets.

Judge Cannon will need to give "pretty extensive guidance" to the special master as to which documents might fall under the executive privilege umbrella, according to the University of Kentucky's Shaub. She asked the parties to define the parameters for a special master as well as to suggest some options for who might be up to the task by Friday.

Picking someone for the job is going to be a difficult task, according to experts, because of the high-profile and political nature of the case as well as the presence of hundreds of classified documents to review. Both the DOJ and Trump have said they want someone who already has a security clearance, but the only people who have current clearances are government employees or contractors, according to Kel McClanahan, executive director of National Security Counselors, a public interest law firm specializing in national security law.

McClanahan filed a letter with the court Aug. 29 putting forward four candidates — including Rozell and Shaub — as potential special masters. He said he assumes the parties will not agree on any candidates, so he wanted to alert the court to experts on the topic. His other two suggestions were Heidi Kitrosser, a professor at Northwestern University Pritzker School of Law, and Mitchel Sollenberger, a political science professor at University of Michigan-Dearborn.

"It's hard to find a more appropriate special master than someone who has literally briefed the Supreme Court on the issue of executive privilege," McClanahan said.

He said a retired federal judge, especially one who might have experience sitting on the Foreign Intelligence Surveillance Court, would also be a good option for a special master.

Whoever it is will have to be willing to step into the center of a political maelstrom.

"The person who would willingly take this on is someone who is either doing this for the good of the country or a complete masochist," McClanahan said. "This will be a thankless job."

That's completely fair.  She mentally analogizes it too closely to attorney-client privilege, which is virtually inviolate except in very narrow circumstances, waiver and crime-fraud.

But, to also be completely fair, 99.9% of district judges outside of D. D.C, would probably struggle with it, too.  And, the two major cases, US v. Nixon and Nixon v. GSA require quite a bit of "interpretation" or "extension" to apply to this scenario, although I think the interpretation made by the government, and the Archivist, is completely fair and reasonable, and, ultimately, correct.  Trump v. Thompson showed that to be true under the PRA.

I started looking at this 30 years in that Presidential Power class and have been following it ever since.  And there hasn't been much to follow until recently, but I watched Trump v. Thompson real carefully.

Nichols, another Trump appointee, is kind of mad at the 1/6 committee for forcing him to make new law on executive privilege in Meadows' case.  He's familiar with it, though. https://www.msn.com/en-us/news/politics/judge-rankled-by-jan-6-committee-push-for-executive-privilege-ruling-in-meadows-case/ar-AA11zFKB

Edited September 9, 2022 by TwiceHorn

[Nuge 1,971]

3 hours ago, FirstTimeCaller said:

Picture taken in that three-month period when swing music was a big thing judging by that suit and shoes. 

♫ Zoot suit riot... throw back a bottle of beer ♫

Trump's favorite swing band - The Cherry Poppin' Daddies

Edited September 9, 2022 by Nuge