THE ORANGE MONSTER IS CIRCLING THE TOILET DRAIN AND THE NOOSE KEEPS GETTING TIGHTER

 

The damning new DOJ filing implicates Trump more deeply than ever

 

By Greg Sargent

Columnist|

August 31, 2022 at 11:51 a.m. EDT

 

At key moments in the Mar-a-Lago saga, you could squint at emerging revelations and conclude that Donald Trump himself might not be directly implicated. Perhaps his aides botched the transfer of documents to the National Archives. Or perhaps they failed to fully account for documents when archives officials came knocking, and fumbled things again when the FBI followed suit.

 

The key takeaway from the Justice Department’s latest filing in the case is that this notion is getting impossible to sustain. The new filing implicates Trump himself in the hoarding of national security secrets more directly than anything yet.

The filing — which contests the Trump team’s demand for a special master to review seized documents — provides a detailed ticktock of efforts to recover documents from him. That began with archives officials demanding them throughout 2021 and culminated in the Aug. 8 search of his Mar-a-Lago compound.

 

Two big revelations in that ticktock implicate Trump in a fresh way.

The first revelation: We now have clearer insight into how classified documents were apparently kept at Mar-a-Lago after Trump’s team turned over a bunch to the National Archives. And it now appears more likely that Trump was involved in deceiving law enforcement about it.

 

After Trump’s team gave some documents to the archives in January — following efforts throughout 2021 to retrieve them — the FBI developed evidence that “dozens” of boxes “likely” containing classified information still remained at Mar-a-Lago, the filing says.

That evidence was borne out. After the missing documents were subpoenaed, Trump lawyers met with FBI agents on June 3, and showed them more documents in a Mar-a-Lago storage room. The filing notes that Trump’s own lawyers treated those documents as classified.

 

That undercuts Trump’s claim that he magically declassified them with a wave of his post-presidential wand. Instead, they apparently remained classified and he kept them long after the archives began demanding them, and he kept them after missing documents were supposedly turned over.

 

What’s more, on that day, Trump’s lawyers gave agents a sworn statement declaring that a “diligent search” to locate “any and all” remaining and relevant documents had been conducted.

Importantly, that statement also said this characterization was being delivered “on behalf of the Office of Donald J. Trump.” That appears to suggest the statement — reportedly signed by lawyer Christina Bobb — was authorized by Trump himself.

This information turned out to be highly misleading. Which would mean Trump may have authorized his lawyers to mislead law enforcement.

 

To see why, let’s look at the next revelation. It gives us a clearer understanding of how the evidence suggested Trump was personally engaged in obstruction, and how suspicions of that drove the decision to search Mar-a-Lago.

 

After receiving that sworn statement, says the filing, investigators developed evidence of still more classified documents remaining at Mar-a-Lago. Importantly, this included evidence that documents had been moved from the storage room.

 

Here again, evidence was borne out: The subsequent search found 33 more boxes or other items, with more than 100 classified documents, including some highly classified ones. Three classified documents were in desks in Trump’s office.

 

It’s hard to imagine that Trump himself did not know these documents were put in his office, or that Trump had no involvement in making that happen.

 

Here’s a really critical point in the filing: Investigators executed the search because that evidence of those still-stored documents pointed to obstruction, i.e., obstruction of the ongoing FBI investigation into the hoarding of documents.

 

That strongly suggests Trump held classified documents even after his lawyers swore on his behalf that a full search had been executed, and also that some were held in his office as part of that effort to obstruct, says former FBI counsel Andrew Weissmann.

“Is it really the case that for 18 months, nobody, including counsel, ever discussed this with the president or took direction from him?” Weissmann asked rhetorically, noting that the filing says some of these documents were “interspersed with personal items.”

 

Weissmann told me prosecutors can now ask the court for permission to subpoena Trump’s lawyers, in order to directly ask whether Trump authorized the original statement misleading investigators about classified documents still held at Mar-a-Lago.

Indeed, Weissmann said that Trump’s lawyers are now “potential witnesses.” Weissmann added that the idea that Trump wasn’t in the loop on all this is “inconceivable.”

 

Trump’s call for a special master appears designed as a stalling tactic, and it may work. Alternatively, Trump may never be criminally charged. But if the information in the filing is accurate, then Trump is implicated more deeply in this whole affair than we knew only 24 hours ago. We also have a clearer picture of law enforcement’s theory that Trump committed obstruction.

 

Remarkably, the public is getting all this new information courtesy of tactics Trump himself attempeted. This filing happened because Trump’s team pursued this “special master" strategy, prompting this response. And the release of the affidavit for the search warrant, which also contained very damaging revelations, was a response to Trump and his propagandists demanding it.

 

In a strange twist of poetic justice, Trump’s own screams of a coverup — which are rooted in his conviction that he can spin away any set of damaging facts with his magical reality-bending powers — are resulting in an uncommon level of transparency that is only further damning him.

 

 

Trump aggravates the GOP’s national security and crime problem

 

By Jennifer Rubin

Columnist|

August 31, 2022 at 11:01 a.m. EDT

 

 

Donald Trump walked right into it. His brain trust stupidly requested a “special master” to review the documents he took from the White House — totally improper since he does not own the documents and his claim of “executive privilege” is inapposite. (Executive privilege raised against part of the executive branch, the Justice Department, makes no sense.) 

Incompetent counsel comes with a price, in this case a damning photo of scattered top-secret documents at Mar-a-Lago, included in a Justice Department filing on Tuesday night ahead of a Thursday hearing on the “special master” request.

The photo starkly countered Trump legal counsel’s earlier claims that all classified materials had been returned, and it showed that highly classified papers had been dumped on a floor outside a storeroom. Other documents were found in desks in Trump’s office, the filing said. It also made clear that until well after the search warrant was executed, Trump had never invoked executive privilege. 

As former prosecutor Renato Mariotti tweeted, “The location of the classified documents (in the drawer in Trump’s desk) and the fact that they were mixed in with other documents (presumably Trump’s personal property) is evidence that Trump was responsible for the willful retention of those documents.”

One line in the Justice Department filing looms large: “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

The filing reveals the extent of the concealment. When the warrant was executed on Aug. 8, the documents found were “more than twice the amount produced on June 3, 2022” in response to a subpoena. A telling detail might support a charge of obstructing the investigation: Trump’s counsel, while attesting that all classified materials had been returned, prohibited Justice Department representatives from looking in the boxes in June.

As Andrew Weissmann, a former Justice Department attorney, put it: “The Trump filings for a Special Master were a huge misstep. DOJ has used its response to disclose damning proof of a series of crimes, which it would not otherwise have been able to do. And one very compelling photo.”

Republicans are now faced with the prospect of continuing to defend the indefensible or cutting loose the leader of their cult, risking that their voters will stay home in the midterms. This is what comes from defending someone contemptuous of America’s national security interests and willing to betray our democracy to retain power.

Moreover, Democrats have figured out how to attack Republicans who fancy themselves as defense hawks but rationalize such blatant disregard for our national security and engage in hysterical, dangerous and utterly unwarranted attacks on government officials protecting our national security secrets.

President Biden, in a speech in Wilkes-Barre, Pa., on Tuesday, delivered a stemwinder on crime. He declared: “Let me say this to my MAGA Republican friends in Congress. Don’t tell me you support law enforcement if you won’t condemn what happened on the sixth” — Jan. 6, 2021. “For God’s sake, whose side are you on?” He went on: “You can’t be pro-law-enforcement and pro-insurrection. You can’t be the party of law and order and call the people who attacked the Capitol on January 6th ‘patriots.’ ”

Referring to the execrable Sen. Lindsey O. Graham (R-S.C.), Biden thundered: “The idea that you turn on a television and see senior senators and congressmen saying, ‘If such and such happens, there will be blood in the street.’ Where the hell are we?”

He reiterated: “It’s sickening to see the new attacks on the FBI, threatening the life of law enforcement agents and their families for simply carrying out the law and doing their job ... There is no place in this country, no place, for endangering the lives of law enforcement. No place. None. Never. Period.”

He might have added, you cannot be pro-democracy or tough on crime if you make baseless excuses for a former president who allegedly violated the Espionage Act (among other statutes cited in the Justice Department affidavit), concoct meritless conspiracy theories that evidence was planted or dismiss ample evidence of obstruction. You cannot be on America’s side and defend Trump. Period.

For far too long, members of the lawless party have conned voters into believing the party is a valiant defender of national security and tough on crime. In truth, they defend the lifting of our nation’s most closely guarded secrets, refuse to condemn efforts to hinder the investigation and target law enforcement. By doing so, they join Trump in subverting our national security.

 

TRUMP AND HIS ATTYS GOING DOWN THE TOILET MORE QUICKLY EVERY DAY

 

 

Trump’s loony rants should remind the GOP his nomination would be disastrous

 

By Jennifer Rubin

Columnist|

August 31, 2022 at 7:45 a.m. EDT

 

One does not need a medical degree or a therapist’s license to conclude that defeated former president Donald Trump’s nutty rant insisting that he be made president immediately or the 2020 election be rerun is the sign of an unhinged personality. Under pressure from the increasingly potent espionage investigation, he might be losing his grip. For a change, you don’t hear Republicans rushing forth to support his latest insane demand.

Trump’s posting of QAnon messages and implicit threats (in increasingly unintelligible syntax) suggests that he is losing the ability or desire to control his impulsive outbursts. This is the guy whom millions of Republicans want to nominate for president.

 

Since the redacted affidavit was released last week, the only two defenses from Republicans are no defenses at all. The first, courtesy of Sen. Lindsey O. Graham (S.C.), amounts to extortion: Prosecute Trump and there’ll be blood in the streets. The second is the laughable inquiry: Is that all? It’s not “all,” because the affidavit was heavily redacted. Moreover, the notion that we are talking “just” about documents ignores that most espionage cases are about documents (or equivalent material). That’s where the secrets are.

 

Trump defenders ignore at their own risk ample indications in the affidavit and news reports that documents were withheld even after a Trump lawyer represented that all confidential material had been returned, that the documents were in an unlocked storage area and that documents were moved. Any rational adult should be aware that evidence might show that Trump violated statutes the Justice Department cited in the affidavit (concerning obstruction and concealment/mutilation/removal). If so, aggravating crimes in addition to violation of the Espionage Act may be at issue.

Still, there is little to no sign that Republicans are ready to distance themselves from someone who risks an indictment in state and federal court and resorts regularly to incoherent rants that not even right-wing media dare repeat (lest they scare their viewers and listeners). Instead, they mutely march along, taking his advice on nominees and reiterating their support for another presidential run.

 

Their refusal to confront Trump’s current mental and legal status takes procrastination to a whole new level. Are they hoping that he’ll be indicted well in advance of 2024? Well, if past is prologue, then we shouldn’t discount the possibility that they would still nominate him. (Martyr! Deep state!). Hoping that another candidate comes along to point out that Trump is unelectable is peculiar given their own insistence, amplified by the right-wing media, that he’s the only one to lead the party.

 

If they are counting on the good sense of GOP primary voters to dump him, they might take a look at the MAGA loonies voters picked in primaries ahead of the midterms (e.g., Jan. 6 attendee and Pennsylvania gubernatorial candidate Doug Mastriano; MAGA provocateur and election-denier Kari Lake in Arizona).

 

Just how they expect to rid themselves of someone like Trump is unclear. They have delegitimized law enforcement, the media and the few sane Republicans (e.g., Rep. Liz Cheney). So, figuring out who exactly is supposed to now convince the base that Trump is, after all this, too toxic and deranged to be the nominee may be a challenge.

 

This dilemma is entirely of the GOP’s own making. Years of sycophancy or silence, years of building a right-wing media cocoon and years of selective listening may prevent the party from engaging in rudimentary self-preservation. Maybe party leaders simply intend for him to run, lose, take the party down and set off a more violent version of Jan. 6 — because that’s the direction we’re heading in.

 

NEW INC. MAGAZINE COLUMN BY HOWARD TULLMAN

 

Why Life Isn't Grand for Brands

Rising inflation, and more powerful tools that allow consumers to compare and buy products, is putting some big names under pressure. They can't live off the past--neither can your company. 

BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH INVESTORS@TULLMAN

Much like the COVID-19 pandemic completely upended the centuries old idea of the five-days-in-office work week, made Zoom (and its lesser clones) an essential workplace and social tool for users of all ages, and accelerated the nationwide adoption of insta-clinics and telemedicine by roughly a decade, the pandemic's supply chain disruptions, abundant price gouging, and the resultant rampant inflation have also changed consumer behaviors. Shoppers today are absolutely crushing the price premiums that major brands in every vertical have historically been able to extract from consumers.

Interestingly enough, because beggars can't be choosers, we're seeing that private labels and other store and local brands are also more available and attractive to consumers than the bigger brands - even apart from price - because they're more likely to be locally sourced and produced and therefore able to beat some of the supply chain and trucking issues in order to be more regularly available on the store shelves. One of Covid-19's lasting lessons will be the need for vendors to have far more redundancy, resilience and local warehousing capability. 

Online shopping, which puts us just a click away from a cheaper choice and voice/mobile search, which places a premium on an answer rather than a choice, have already dramatically diminished the incremental importance of packaging and brand identities. But the economic pains and other disruptions caused by Covid-19 and their influence on "smart" shoppers may have had an even greater and longer impact.

In addition, the mass onsite and drive-by testing protocols, along with casual neighborhood inoculations of millions of Americans by strangers in random popped-up locations, have also completely changed consumers' perceptions of, and relationships to, their "family" docs, the mystery and magic of exorbitantly priced wonder drugs, and to the traditional ways of accessing, securing, and delivering health care. If you think any desperate consumer cared whether they were getting a Moderna or a Pfizer shot in the rush to get vaccinated, you don't understand how little the brand name of the vaccine mattered.

We have now trained hundreds of millions of consumers to expect "free" tests and vaccinations, to have these administered by quasi-professionals they've never met before or vetted in any way, and, most importantly, to be utterly indifferent to the brand and manufacturer of any vaccine that they were fortunate enough to receive. Of course, there were plenty of resistant and stupid anti-vaxxers-- may they rest in peace. And, while the world isn't yet entirely convinced that generic drugs will get the job done in every case, the genie is never going to be fully stuffed back into the bottle.  

However, the single biggest shift so far and the greatest threat to the big legacy brands has been in the ways in which we view and manage our time.

It's only now becoming apparent that one of the very modest silver linings of the pandemic and all of its continuing consequences is that it gave every one of us the gift of additional time. Life slowed down, work became more episodic and manageable for many of us. Millions of others retired (voluntarily or otherwise). And the idea-- which had come to seem like tech-centric gospel--that our time was more valuable than money has gradually morphed into a new view that making a life is immeasurably more important than making a living.  Also, that, while trading money for time would always be a calculation of consequence, we now all had an opportunity to reevaluate how to best strike the balance between the two and their relative primacy and priority in our lives.  

We abruptly and unexpectedly had a moment-- free of history, prior obligations, and most consequences-- to catch our collective breaths, take stock of our lives and decide how best to get on in a new and reordered reality.

It turns out that when you give people new choices, they ask hard questions about the value of old products and fancy brands top that list. Millions of consumers took that opportunity to examine, reevaluate, and compare their work, options, services, products, commitments, and relationships, and even religions in new and different ways. Freed from the daily stress and pressures of traditional office work and from the FOMO feeling that everything always needed to be done at once, the world took a beat and the big, expensive brands across the board are taking a beating as a result. If you think buying Bayer, Tide, or Charmin for just a few bucks more is still seen by millions of consumers as a bargain, when the house brands are clearly just as effective, you haven't been shopping lately. Again, when the issue is simply getting TP (as it was for a month or two during the pandemic), what name, type, or flavor it turns out to be doesn't make a bit of difference.

Brand loyalty used to be an inertia-driven way that we escaped decision fatigue. Instead of the angst of having too many choices and too little time to think about them, it was easiest to stick with the tried and true. In typical test cases, buyers offered too many choices simply pass and choose to buy nothing. No one is looking for more choices; they want clear and obvious solutions that they can be confident in and which they believe were provided by vendors and suppliers whom they could trust. Brands used to offer that promise and assurance and acted as a form of shorthand for trust and authenticity. Of course, that was before the rampant rise of shrinkflation, which again has been largely attributed to (mainly because it's so obvious) to the big brands and major producers whose packages and contents have been reduced.

But post-pandemic life is changing in many ways. Given the luxury of additional time for a variety of reasons and a pervasive sense that prices are out of control (they aren't) and that consumers are being gouged by predatory retailers along with the interesting fact that dads are doing a lot more of the day-to-day shopping, the whole retail experience has become a new ball game.

Comparison shopping is rampant and made infinitely easier by the internet. The idea, ease, and satisfaction of investigating LKQ (like, kind and quality) products available at lower price points has taken hold, and the immediate and visible presence of more and more private label and generic products aggressively advertised and promoted at demonstrably lower prices for what are essentially identical famous brand offerings has put enormous pressure on some brands who provide staple goods to become far more price competitive.

Every aisle in every store now offers side-by-side comparative advertising -- along with claims of equal efficacy and results -- and more and more consumers are becoming comfortable with the switch to private label and generic offerings. These days, the greater the perceived similarities between products appear, the less important a specific brand choice becomes and frankly the web has made for millions of smarter consumers as well in terms of appropriate substitutions and generic alternatives. It wasn't too long ago that no one could even pronounce ibuprofen and now it's got Tylenol on the run.    

Big brands became lazy during the pandemic and convinced themselves that their brands alone would carry the day even in the face of shrinking package contents accompanied by increased prices. They made two major errors: (1) they confused frequency of purchases with loyalty when the fact is that there were often few or any alternatives for the typical consumer, and (2) they believed that consumer purchase and brand choices were expressions of preference when, in fact, they were often dictated by availability.    

There's really no end in sight to the continued deterioration of consumer attachment to any specific brand per se, which means that the big brands need to move quickly to up their value proposition - by increasing the bundle of benefits their products and services offer as well as the overall experience.  They need to keep raising the bar unless they're prepared to fall further and further behind their competition.  

Brands only partially control their own destiny today. The wisdom and knowledge of the crowd and the clock have just as much to do with their fate and fortunes as anything within their own direct control.

AUG 30, 2022

The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.

PERFECT....EXACTLY THE IDIOTS WHO WOULD SUPPORT THIS CROOK

 

The Lawyers Who Enabled Trump’s Assault on Our Republic

 

The Lawyers Who Enabled Trump’s Assault on Our Republic

 August 12, 2022 

 

They forced the nation to live through the catastrophic consequences of their cowardice.

By Steven Harper, J.D.
Adjunct Professor of Law
Northwestern University Law School

---

Former White House counsel Pat Cipollone thinks that Mike Pence should receive the Presidential Medal of Freedom for refusing Trump’s demand to commit a felony and subvert a presidential election. That’s how low the bar for heroism among Trump administration alumni has sunk.

Lawyers Who Supported a Lawless President

When they entered the legal profession, the attorneys advising Trump swore an oath to uphold the Constitution. Those who took government jobs in his administration swore it again. But many of them facilitated Trump’s relentless efforts to undermine the rule of law.

The most notorious members of what former Attorney General William Barr now calls Trump’s post-election “clown show” may have been Rudy Giuliani, Sidney Powell, John Eastman, and Jeffrey Clark. But Barr, Cipollone, and others with law degrees – including Pence – helped to create the dangerous creature that roamed the White House on January 6, 2021. Their silence during Trump’s second impeachment and the months that followed has allowed that creature to continue haunting the country today.

Belatedly, three key Trump advisers with law degrees have now come forward to reveal the ugly truth about the man they had enabled for years.

Heroes or hypocrites?

William Barr

Barr, one of Trump’s most outspoken defenders in his administration, politicized the Justice Department to serve Trump’s personal agenda. For example:

• He kneecapped special counsel Robert Mueller’s report by issuing a deceptive and misleading “summary” before it was public. Then he launched an all-out effort to discredit the entire Trump-Russia investigation. Finally, he intervened in cases Mueller had brought – and won – against Trump advisers Roger Stone and Mike Flynn, both of whom became prominent players in the insurrection.
• For months preceding the 2020 election, Barr sowed doubts about its integrity while admitting that he had no supporting evidence.
• In the opening sentence of his December 14, 2020 resignation letter – which Trump tweeted immediately – Barr reassured Trump that “the Department’s review of voter fraud allegations in the 2020 election… will continue to be pursued.”

Barr now says that before he resigned, he told Trump repeatedly that the claims and conspiracy theories about widespread election fraud were “nonsense” and “bullshit.” But prior to the insurrection and for months thereafter, he did not reveal that to the public.

Pat Cipollone

Criticizing Trump publicly has been unfamiliar and uncomfortable territory for Pat Cipollone. American taxpayers had paid him to represent the office of the president, not Trump personally. Apparently, he forgot.

• During Trump’s first impeachment trial, Cipollone led the defense legal team and was among those lawyers who, in the service of Trump, lied repeatedly to the Senate and the public.
• On December 18, 2020, he participated in the “unhinged” Oval Office meeting when Sidney Powell and others urged Trump to seize voting machines and appoint her special counsel to pursue non-existent election fraud.
• In the infamous Oval Office session on January 3, 2021, he told Trump that Jeffrey Clark’s scheme to overturn the election was a “murder-suicide pact.”
• On January 6, Cipollone urged Trump to stop the attack on the U.S. Capitol. He warned that Trump would have blood on his hands, and he was right: Five people died and more than 140 law enforcement officers were injured.

But it took a public shaming by Rep. Liz Cheney (R-WY) and the riveting testimony of a young staffer, Cassidy Hutchinson, to flush Cipollone out and into the witness chair. Finally – 18 months late – he revealed what he knew about Trump’s traitorous misconduct.

Steven Engel

Engel was with Trump from the beginning of his administration. As assistant attorney general in charge of the Justice Department’s Office of Legal Counsel (OLC), he flew under the public radar, but his dubious legal opinions provided cover for Trump’s flagrant abuses of power.

• After the House subpoenaed former White House counsel Don McGahn to pursue Mueller’s evidence that Trump had obstructed justice, Engel issued an opinion that Congress could not compel McGahn or other Trump advisers to testify – even to confirm what they had already told Mueller. More than two years later – after an appellate court rejected Engel’s position – McGahn eventually appeared. By then, no one cared.
• The inspector general for the intelligence community (IGIC) determined that the whistleblower complaint leading to Trump’s first impeachment presented a “credible” matter of “urgent concern” and should be provided to Congress immediately. But Engel issued an opinion permitting Trump to withhold it. His conclusion and underlying legal analysis generated an unprecedented rebuke from the entire inspector general community — more than 60 IGs throughout the federal government: “[W]e agree with the ICIG that the OLC opinion creates a chilling effect on effective oversight and is wrong as a matter of law and policy.”
• Days after Trump’s first impeachment trial in the Senate had begun, Engel issued an opinion defending Trump’s stonewalling of every subpoena that three House committees had issued to the executive branch during Congress’s Trump-Ukraine investigation. Constitutional scholar Frank O. Bowman III observed that Engel’s position was, “to be plain, ridiculous… absolutely daft…” If accepted, “The result is not only to neuter the impeachment power, but more profoundly, to cripple the fundamental check on executive mismanagement, abuse, corruption, and overreach embodied in their own power of oversight.”

At the Oval Office meeting on January 3, 2021, acting Attorney General Jeffrey Rosen and his deputy, Richard Donoghue, told Trump that if he appointed the manifestly unqualified Clark to replace Rosen, they would resign. Engel warned Trump that mass Justice Department resignations – including his own – would follow, and Clark would be “left leading a graveyard.”

But for more than a year, Engel said nothing publicly about that meeting.

Blood on Their Hands

While the January 3 Oval Office meeting was underway, the Washington Post broke the story of Trump’s tape-recorded call pressuring Georgia election officials the previous day.

“I just want to find 11,780 votes,” Trump urged Georgia Secretary of State Brad Raffensperger.

At that point, Cipollone, Engel, Rosen, and everyone else attending the Sunday night session knew that Trump was proceeding simultaneously on multiple fronts to overturn the election.

But as January 6 approached, they remained silent.

As the House impeached Trump for his role in the insurrection, they remained silent.

As GOP-dominated state legislatures and their Republican governors relied on Trump’s Big Lie to adopt draconian voter suppression laws and propose legislation seeking to thwart future popular presidential vote outcomes, they remained silent.

As Trump and his allies rewrote the story of the insurrection so that the armed mob became “peaceful protesters” and the attackers became “tourists,” they remained silent.

And as Republican leaders flip-flopped, they remained silent.

In the immediate aftermath of the attack, Sen. Mitch McConnell (R-KY) condemned Trump. Now he says he’d vote for him again.

Likewise, Rep. Kevin McCarthy (R-CA) said that Trump bore responsibility for the attack. Now he has returned to his familiar role as Trump’s lackey.

On January 7, 2021, Sen. Lindsey Graham (R-SC) said, “Count me out… The president needs to understand that his actions were the problem, not the solution. … It breaks my heart that my friend, a president of consequence, would allow [Jan. 6] to happen, and it will be a major part of his presidency. It was a self-inflicted wound.” In September 2021, Graham said that he hoped Trump runs again in 2024.

What If?

If Barr had broken his silence before January 6, would the violent attack on the Capitol even have occurred? 

In the immediate aftermath of the attack, if Cipollone, Engel, Rosen, and others had revealed what they knew, would Trump have remained the face of the GOP?

If collective fear hadn’t kept all of them quiet for so long, would Trump today be the “clear and present danger to democracy” that former Judge J. Michael Luttig warned?

Late is better than never for Republicans who resisted Trump’s attempted coup and have now come forward. But they are not profiles in courage. Their prolonged silence forced the nation to live through the catastrophic consequences of their earlier cowardice.

And those consequences endure.

TOTAL HYPOCRITES AND LIARS - WHAT PAYROLL DID PERVERT MATT G PROTECT WITH HIS PPP LOANS?

 

 

Assessing Trump’s Claim of ‘Executive Privilege’ on FBI Access to MAL Docs

by Michael Stern

August 28, 2022

 

The National Archives and Records Administration (NARA) and former President Donald Trump are locked in a long running dispute over records taken from the White House in January 2021. According to a NARA May 2022 letter and more recent reporting, the agency went back and forth with Trump’s lawyers about “missing Presidential records” throughout 2021 and well into 2022. In January 2022, Trump transferred 15 boxes of records from Mar-a-Lago to NARA.

 

It’s an exchange that may now also be relevant to Trump’s asking a federal district court in Florida to appoint a Special Master to filter out documents subject to “executive privilege.”

 

The May letter establishes a timeline showing how Trump and NARA have tussled over the documents and reveals the former president raised the possibility that executive privilege would block their review by law enforcement and intelligence agencies. But NARA rejected the executive privilege argument and shared the documents with the FBI. Below I discuss the statutory and constitutional framework for assessing Trump’s dispute with NARA regarding FBI access to the 15 boxes and explain why from a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege. It really had no choice in the matter.

The Presidential Records Act and Timeline of Events

Some of the documents in the 15 missing boxes were marked as Top Secret and included Sensitive Compartmented Information and Special Access Programs—which are among the nation’s most closely guarded secrets. Based on those classification levels, NARA informed the Department of Justice, which determined that it should examine them for two reasons: (1) to evaluate whether they contained evidence of criminal activity, and (2) to assess potential damage to national security stemming from how the documents were stored at Trump’s Mar-a-Lago residence before being returned to Washington. The White House counsel, acting on behalf of President Joe Biden, then made a formal request that NARA allow the FBI to inspect the contents of the boxes. On April 12, 2022, NARA provided Trump notice that it planned to provide access to the FBI, and that it could do so just a few days later.

This notice was not simply a courtesy, but a formal step required by the Presidential Records Act (PRA). Although the PRA declares that “[t]he United States shall receive and retain complete ownership, possession, and control of Presidential records,” it does not provide all executive officials with unfettered access to such records. Instead, the PRA assigns to the archivist of the United States (who heads NARA) the “responsibility for the custody, control, and preservation of, and access to” the records of each former president, and it establishes procedures pursuant to which NARA may provide access to others, including the incumbent president.

 

Specifically, the PRA provides that “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” presidential records of a former president “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of the current business of the incumbent President’s office and that is not otherwise available.” It further instructs NARA to issue regulations for providing notice to a former president when materials are to be made available pursuant to this provision. Under the applicable NARA regulations, the former president is normally given 30 days advance notice, but NARA retains the discretion to adjust the period as appropriate.

Here NARA decided that the urgency of the matter made it appropriate to shorten the initial notice period considerably (to as little as six days), but upon request from Trump’s representatives (and with the acquiescence of the White House counsel) it extended that period for an additional 11 days, until April 29, 2022. At that point, Trump’s team asked in writing for additional time to review the materials in the 15 boxes for the purpose of determining whether any document therein was “subject to privilege” and consulting with the former president so he could decide whether to assert “a claim of constitutionally based privilege” to block the FBI’s access to any such documents, the letter shows. Alternatively, they informed NARA it should consider their request to be “a protective assertion of executive privilege made by counsel for the former President.”

 

But in the May 10 letter, NARA denied these requests. The agency pointed out that four weeks had already passed since it informed Trump of its intent to provide access to the FBI, implicitly suggesting that this was adequate time for a review of the relatively limited quantity of material at issue. In any event, NARA noted “there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where ‘such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available 44 U.S.C. § 2205(2)(B)’” (emphasis in original). It expressed strong doubt that a former president could ever successfully assert a claim of executive privilege against an executive branch agency authorized to obtain access to presidential records by the incumbent president, but it argued that in any event “[t]he question in this case is not a close one,” given that the FBI required access both for purposes of a criminal investigation and to make a damage assessment of potentially compromised classified materials. Accordingly, NARA denied both Trump’s request for a further extension of time and his “protective assertion of executive privilege.” Instead, it informed his lawyers that the FBI would be permitted to access the boxes of material as early as May 12, which (presumably not coincidentally) was exactly 30 days after NARA’s initial notice of intent to provide access.

 

Assessing Trump’s Executive Privilege Claim

From a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege, it really had no choice in the matter.

To understand why this is so, it is helpful to break down the question into three questions:

(1) Does a former president ever have the right to successfully assert executive privilege to prevent access to presidential records by the incumbent president or executive agencies acting under the incumbent’s authority?;

(2) If such a right exists, could it be successfully exercised under the current circumstances?; and

(3) Who decides the first two issues?

Executive Privilege by a Former President

 

First, the PRA makes clear that nothing in its provisions are to be interpreted as expanding or diminishing the former president’s constitutional rights. Indeed, both the statutory language and legislative history make clear that Congress has been extremely skeptical of the notion that a former president can successfully assert executive privilege under any circumstances without the support of the incumbent president. While the executive branch has taken a different view, that argument has never extended so far as to suggest that the former president can successfully assert the privilege in opposition to the incumbent, much less that he can do so when the incumbent himself is seeking access to presidential records for purposes of carrying out the constitutional functions of the executive branch.

For example, when in the 1980s the Office of Legal Counsel issued a much criticized opinion (later rejected by the D.C. Circuit) that an incumbent president should ordinarily defer to a former president’s assertion of executive privilege with regard to the latter’s presidential records, it nonetheless explained that “this principle must yield when it conflicts with the discharge of the incumbent’s constitutional responsibilities;” thus, “if the incumbent President believes that the discharge of his constitutional duties (e.g., investigation and prosecution of alleged crimes) demands the disclosure of documents claimed by the former President to be privileged, it may be necessary for him to oppose a former President’s claim.” (emphasis added). Similarly, the author of the opinion, Assistant Attorney General Charles Cooper, when summoned to defend it before Congress, explained that “an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands and perceives them.”

 

Whether a former president should ever have the unilateral power to assert executive privilege over the objection of the incumbent remains an unsettled issue, as the Supreme Court recently recognized in Trump v. Thompson. As I have pointed out elsewhere, this notion is in considerable tension with OLC’s general approach to executive privilege. At least one member of the Supreme Court (Justice Kavanaugh) nevertheless believes that “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim.” In Thompson, however, Justice Kavanaugh was writing in the context of a congressional request (from the January 6th Committee) to access presidential records; it is by no means clear that he would maintain the same view where the incumbent president himself was seeking access to the records for purposes of carrying out the executive’s legal and constitutional functions.

 

Indeed, Kavanaugh, during his tenure in the White House counsel office, famously defended a controversial executive order on presidential records issued by President George W. Bush. That order made it extremely difficult for the public, Congress or the courts to access presidential records over the objection of a former president. However, the order explicitly provided that it did not address access by the incumbent president to those records, a fact somewhat bitterly noted by congressional critics at the time.

 

In short, the notion that a former president can block his successor from accessing presidential records that the incumbent believes he needs for purposes of carrying out executive functions would be the most extreme manifestation of a doubtful legal theory, and one that has no support in any legal authority to date.

Applying Executive Privilege to the Mar-a-Lago Documents

 

Second, even if some circumstances might allow a former president to block an incumbent president from accessing the former’s records, that certainly is not the case here. The Biden administration has identified two purposes for reviewing the 15 boxes of materials. The first, law enforcement, is precisely the type of core executive function that Cooper noted would justify disregarding the former president’s claim of executive privilege. The second, conducting a damage assessment of classified materials that had been missing for over a year to determine whether remedial steps needed to be taken, is perhaps even more compelling.

Indeed, during the congressional hearings that led to the enactment of the PRA, one of the points supporters of the bill made was that incumbent presidents needed to have access to the records of their predecessors for national security purposes. For example, some PRA proponents noted that during the Kennedy administration some assurances made to the French government during the Suez crisis were only documented in records that former President Eisenhower took with him when he left office, and which only he and his family could access. One witness cited this example of the “insanity” of the prior system and urged Congress:

We cannot allow the most secret documents to be taken away every 4 years and treated like the personal property of a private citizen—the ex-President of the United States. A new President should not be required to come hat in hand, begging his predecessor to let him see vital documents relating to the national security.

Another witness, the former White House counsel to President Ford, explained that under the proposed legislation “no President can restrict a successor in office from getting continuous access to those records that the successor may need.”

Even if former President Trump has a colorable argument that the FBI does not really need access to these documents (and, to my knowledge, no such argument has been made publicly), it seems highly unlikely that any court would substitute its judgment (or the judgment of a politically unaccountable former president) for that of the incumbent president in circumstances such as these. As NARA noted in its letter, this does not appear to be a close question.

To be sure, it is possible that the 15 boxes of documents contain privileged documents which are not classified and which have no bearing on either the criminal investigation or the damage assessment. Had Trump’s representatives reviewed the materials and identified such documents, they might have had a much stronger claim that executive privilege protected those specific documents (or indeed fail to meet the statutory standard that they are needed for the conduct of current business and not available elsewhere). But it appears that Trump’s representatives did not conduct that review and no such documents have come to light. Thus, it is impossible to assess whether privilege protects any part of the 15 boxes.

 

A Court Must Decide a Former President’s Privilege Claim

 

Finally, longstanding executive branch doctrine makes clear that the archivist, as a subordinate executive branch official, has no authority to countermand the sitting president’s decision on whether to honor the former president’s invocation of executive privilege. Indeed, NARA regulations provide that it cannot honor the former president’s invocation of privilege unless the incumbent president affirmatively decides to support it. The only viable option for a former president to challenge an access request by the sitting president is to file suit in the United States District Court for the District of Columbia, which the PRA vests with jurisdiction “over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.”

 

However, Trump (who is hardly shy about filing legal actions to protect his rights, real or imagined) chose not to challenge the archivist’s decision through the manner prescribed. This suggests perhaps that his true objections are more political than legal in nature.

If the federal court in Florida grants his application for appointment of a special master, he will have the opportunity to make the case for applying executive privilege to a different set of documents—those seized by the FBI during its search of Mar-a-Lago—but will face similar obstacles to success.